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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> A (Fact Finding) [2014] EWFC B182 (02 January 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B182.html Cite as: [2014] EWFC B182

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IN THE FAMILY COURT AT EAST LONDON
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A (A CHILD)

		.2nd January 2014

1. A, a boy, was born on 2^nd August 2013. He is now aged 15 months old. That is, of itself, really quite remarkable because this little boy was born at 26 weeks gestation after a failed medical termination. The decision to terminate the pregnancy came about because A's mother, developed a severe infection during her pregnancy and her own life was at risk.
2. A's mother is originally from Bosnia. A's father is from a Nigerian Muslim family. A is therefore of dual heritage. There are issues as to how extensive the parent's relationship was in the lead up to the birth of A but what is agreed is that they neither married nor lived together; they separated prior to his birth and they are not in a relationship now.
3. The London Borough of Barking and Dagenham (the LA) became involved in this family when concerns were raised by the medical team caring for A regarding the extent to which his mother was able or even willing to care for him. Accordingly, on his discharge from hospital on 24.12.2013, where he had remained from birth, he was placed in foster care, with his mother's consent, under s.20 of the Children Act 1989. The LA issued its proceedings in relation to A on 4^th February 2014 and an ICO was made on 19 February 2014.
4. This is the final hearing in the case and I have to first decide whether allegations made against the father by the mother are true. Those allegations do not form the factual basis for the statutory threshold and are not relied upon by the LA but they are essential facts in the case and have a direct bearing upon the welfare decision that I need to make. I must then consider whether the statutory threshold is crossed and if so, how. Finally, whether the threshold is crossed or not I must decide what orders, if any, I should make for the future care of this child.

Background

5. The mother lived in Bosnia until around 2008. In January 2008 she married D, a British man she had met on line. They married in Bosnia and he returned to England. In July 2008 she followed him to the UK on a spouse's visa. She has lived here ever since. She has a mother who still resides in Bosnia.
6. The mother's marriage lasted until January 2012. The mother maintains that at the end D was controlling towards her. I make no findings in that regard nor is it necessary that I should. The mother says that they divorced.
7. The mother met the father through an internet dating site in 2012. Their relationship was not sexual until late 2012. They never lived together. There is an issue about how much time they actually spent together and how "serious" their relationship became. The mother says that they were seeing each other frequently though during 2012 they had frequent break ups. It is her case, however, that they would passionately re-unite and resume their relationship. She maintains that the father proposed to her and that the intention was that they would marry, until he was told of her pregnancy.
8. Father, on the other hand maintains that during 2012 they dated on 6 occasions. He agrees that in 2013 their relationship became more intense and that he stayed over at her home on occasions during that time. He insists, however, that their relationship ended March 2013.
9. It is the mother's case that their relationship was punctuated by domestic violence. She alleges that the father was controlling – he did not like her to work at nights, he did not like her to wear short skirts, he suggested that she should cover her hair and that she would look good in a hijab. In addition she alleges that when they argued he would frequently place his hands around her throat. In her written evidence it appeared that she alleged that he had "forced" her to have sex with him when she had not wanted to. In fact she does not allege rape. That is significant and I shall return to it in due course. The father refutes that he was ever controlling or violent.
10. Towards the end of Feb 2013 the mother discovered that she was pregnant. Again there is a dispute as to how father was told and when. The mother says that the father was deeply unhappy with the news. The father maintains, and this is a significant difference between them, that he did not know about the pregnancy until after they separated. It is the mother's case that it was after he became aware of the pregnancy that the most serious physical assault took place when the father returned to visit her one evening in April 2013. She alleges that he flew into a rage and assaulted her, knocking her to the floor, then proceeded to try and "kick the baby out of her", threatening that neither she nor the baby would live. The father denies that this happened. This allegation was not reported to the police until almost a week after A was born in August 2013.
11. The circumstances of A's birth were traumatic indeed. In about July 2013 it would seem that the mother had a series of seizures for the first time in her life. Whilst living with her friend she developed what was believed to be meningitis and encephalopathy and a fit. She suffered a number of seizures. Her waters then broke and were thought to be infected. The obstetric team decided to terminate her pregnancy in order to save her life. The mother's diagnosis is still unclear. I have a large number of medical reports in the papers dealing with her condition and prognosis. I do not intend to recite the detail of those reports here. Suffice to say that she continues to suffer fits and her condition is not yet under control. It has been observed that separate to her fits there are periods where she is confused and disorientated and when she suffers the sort of mood instabilities associated with an acute neurological condition.
12. A's prognosis was considered to be poor. However, due to his reasonable condition at birth he was transferred to the Neonatal Intensive Unit. In his first week of life A suffered seizures, sepsis, Patent Ductus Arteriosus and developed necrotising enterocolitis requiring a bowel resection. He clung to life however and has survived, growing in strength day by day.
13. A was discharged from hospital on 24.12.2013 where he had remained from birth and placed in foster care. His mother consented to A being placed in foster care under s.20 of the Children Act 1989. The LA issued its proceedings on 4 February 2014 as a result of the concerns regarding the mothers commitment to A and her ability to provide him with good enough care. A remains in foster care subject to an Interim Care Order granted to the Local Authority on 19 February 2014.
14. The child's father does not have Parental Responsibility for him. However, the father was joined in these proceedings on 17.03.2014 as DNA test results dated 18.02.2014 confirmed that he is the father.
15. The timetable for the proceedings was extended to 47 weeks (until 26th December 2014) due to the complexities of the case, including the medical conditions of both the Mother and the child. The case was allocated to a District Judge with the agreement of all of the parties but rather late in the proceedings the case was transferred to be heard by me when there appeared that there was a prospect of further complication due to international issues. In fact I would observe that the international matters have not troubled me as they were resolved before I had to make any decision. However, there was undoubtedly the potential for complexity in this case arising from the extensive medical evidence regarding the mother's health. As it happens, many months down the line, the medical issues have also resolved and the case has become more about fact finding. However, I would like to take this opportunity to observe that these issues always had the potential to be fully contested and their presence as a feature in the case should have made it a case in which listing before a CJ was raised by the LA and considered on allocation.

Position of the parties

16. The LA has continued to pursue its application, seeking to prove that it had crossed the threshold on the basis of its threshold facts as set out in the threshold document. It does not support the mother's allegations against the father but acknowledges that they have been made and need to be resolved. On outcome it supports a placement with father under a child arrangements order in the event that the mother's allegations are not proven and as a fall back position in the event that they are proven, a placement with the paternal grandparents pending the father undergoing DVIP work. Whichever the final placement the LA argues that a supervision order will be necessary to negotiate what will be a difficult relationship between the day to day carer of the child and the mother. As the paternal family live in the LB of Haringey (LBH), the LA nominates the LBH as holder of that supervision order.
17. LBH has attended and been represented throughout. Its position initially was one of opposition. However, I commend the fact that the LBH has had a team manager in attendance throughout the hearing who has listened with obvious care to the unfolding evidence and no doubt with the assistance of her Counsel, come to the conclusion that a supervision order is indeed necessary.
18. The mother concedes the threshold findings set out on the amended schedule. During the course of the hearing she conceded that she was unable to care for A without the support of her mother and that there was some doubt as whether her mother would ever be able to get a visa to come to the UK. Accordingly, though with some reluctance, she concedes that A is best cared for within the paternal family but seeks findings that the father has been the perpetrator of violence against her in accordance with the four incidents set out on her schedule of allegations. Consequently, she insists that this would only be possible after there has been work done with the father to address his alleged violent tendencies.
19. The father refutes the allegations of violence and seeks a finding that the mother has fabricated the allegations she makes against him. He seeks a child arrangements order and intends to parent A with the support of his parents.
20. The paternal GPs have been in court throughout the hearing, with the consent of all parties and my approval. They have maintained, if I might observe, a dignified and neutral appearance in spite of having to listen to what must have been very upsetting allegations from the mother against their son.
21. At the conclusion of the evidence from the parents I gave the parties my decision on the fact finding issue which was really the only issue in respect of which there was a contest. I summarised my reasons. This is my full Judgment. I turn now to deal with those allegations.

The mother's allegations

22. The mother seeks findings that:
23. 1. Between summer 2012 and March 2013 the father was physically abusive towards her including grabbing her by the throat after an argument;
24. 2. In March 2013, the police were called by neighbours to the mother's property when the father was physically abusive to her;
25. 3. On a date unknown the father forced the mother to have sex with him against her will;
26. 4. In April 2013 the father physically assaulted the mother including punching and kicking her in the stomach when he knew she was pregnant stating that he would "kick the baby out" of her.
27. The father seeks a finding that he has not been the perpetrator of violence against the mother and that the allegations have been fabricated.
28. It is for the mother to prove her allegations as she is the party who seeks to rely upon them. The standard of proof is the simple balance of probabilities. What that means is that she must satisfy me that it is more likely than not that the father did the things that she describes.
29. In the event that I am not satisfied as to any of those allegations then it follows that I must find that the father is not the perpetrator of violence against the mother. However, the mere fact that the mother is unable to prove that her allegations are true to the appropriate standard does not necessarily lead to the finding sought by the father that they were fabricated. The same requirement as to proof applies to him in relation to the finding that he seeks. He too must satisfy me that it is more likely than not that the allegations made by this mother have been fabricated by her.
30. I decide whether I am satisfied to the appropriate standard on the evidence that I have heard and read. I confirm that I have considered all of the evidence contained in the Bundles and in the papers submitted separately. In addition, on the issue of fact finding I have listened to the oral evidence of the mother and the father from the witness box. I do not intend to recite all of the evidence in the case, only the parts necessary to explain my decision making. I intend to deal with that evidence in the context of the issues.
31. By observing the parents in the witness box I have a unique opportunity to assess them as witnesses of truth and I do that by considering their evidence and their replies to questions put in cross examination designed to test that evidence. They enter the witness box as equals. They may not leave the witness box as equals in terms of credibility but that is how they begin. I turn now to the key evidence on these matters.

The mother

32. The mother has had a difficult history so far as her health is concerned. It is perhaps easy to forget that in the space of little more than a year she has suffered a series of significant health traumas. Her neurological problems began seemingly without warning in July 2013 when she suffered her first black out. Up until that point she had no health problems. She suffered further seizures in hospital with the result that a decision was made to deliver her 26 week old foetus.
33. The impact of these traumatic events is set out fully in the extensive medical evidence filed in the case and I do not propose to rehearse them here. Suffice to say that I bear in mind this evidence about the mother when assessing her as a witness.
34. Her case is that the relationship between her and the father was passionate, intense, and developing into one which would be long term. She told me that the father was possessive of her and very controlling as a result. She said that as their relationship developed he began to make suggestions that she should not dress in the way that she did and that she would look good with her head covered in a hijab. As time wore on the suggestion became more of an insistence, she said, that if they were to remain together long term she would have to comply with his views as a Muslim regarding dress and behaviour.
35. The four incidents set out above are supported by little detail. The first is a very general allegation that the father was abusive throughout the relationship including grabbing her by the throat after they had had an argument. Her first evidence on this allegation is set out at paragraph 12 of her statement where the assertion is that that between summer 2012 and March 2013 the father would "regularly grab me by my throat if we were having an argument and…slap and push me…". In her oral evidence she maintained that these violent exchanges would take place 2-3 times a month. Interestingly when she gave this evidence in chief she demonstrated the action of putting a hand over her mouth and it was some time before she actually said he had grabbed her by the throat. At first she seemed to be suggesting that this happened just once but then she said it was a regular thing and became "normal" to her. The mother's evidence on this was a curious mix of dramatic assertion and "matter of fact" presentation.
36. The second allegation is that the police were called to the property in March 2013 by neighbours after they had heard the commotion in her flat as the father had hit her. She was confronted in her evidence with the police report regarding this evidence and the point made that no complaint was made by her at the time about being assaulted by the father, there were no injuries noted, her responses to the domestic violence risk assessment disclosed no complaints about his behaviour and in fact the police record suggested that it was she who was preventing him from leaving the flat. The mother had no answer to this other than to assert that she was too afraid to tell the police what had actually happened. That of itself is not an unreasonable assertion and is frequently the reason that domestic abuse is under reported.
37. The mother's attention was also drawn to the fact that there was a police record of a call out to her flat by the father 9 days before when he had returned to see her laying on her bed, apparently unconscious. It was put to her that out of concern he had called the police who had had to force entry. There were pills, it was put, on her bedside. The mother did not deny that this had happened as suggested but responded that she did not remember clearly these events and thought that they did not happen as recorded or as suggested by the father.
38. The mother's third allegation is serious indeed. In her schedule she asserts that the father "forced" her to have sex with him against her will and that she was too afraid to report this to the police. In her written evidence she repeats "there was one incident where the father "forced me to have sex with him when I did not want to". No date or time frame was given. In her oral evidence the mother withdrew this very serious allegation saying that what she meant was that there were occasions when she did not really want to have sex but he persuaded her to and as she loved him she would give in to his persuasion. In cross examination she admitted that he had never forced her to have sex and went on to say "he was not that kind of man". She took issue with the suggestion that even her written evidence suggested "rape" but it clearly does. What is more that allegation is repeated in the schedule of findings followed by the comment that she had not called police as she was too afraid. It has never been withdrawn or explained further until the hearing before me.
39. Her final and now most serious allegation is that in April 2013 the father attended at her property where they had an argument about the pregnancy. She asserts that he punched her to the floor and kicked her in the stomach saying that he would "kick the baby out". She maintains that it was following this assault that she had her first seizure. However, she sought no medical attention following the assault and this is in spite of the fact that she told Dr H, the psychiatrist, that she had suffered a "bleed" as a result. This allegation was not reported to police until August, and after the mother had given birth to A. In answers to questions put in cross examination she said that in her view this extreme piece of violence was a "one off" because of his anger about her pregnancy. She said this "my opinion of [the father] is that he is not a violent man…". A few moments later, however, she was demonstrating in the witness box how her head was banged against the wall and she was kicked in the belly by him on that occasion.
40. The mother denied the father's version of events which was that he had dropped food off for her but there had been no contact between them at this time. She was unable to explain why she did not seek medical attention given the severity of the attack and what would surely have been legitimate concerns regarding the wellbeing of her baby.

The father

41. The father was a quietly spoken young man who registered no anger or bitterness in response to the mother's evidence against him or the case put to him by Counsel on her behalf. Like his parents he sat quietly through the evidence. No head shaking or gesticulating of his denials, just a dignified stillness.
42. The manner of his presentation was not the only difference between him and the mother. His evidence was supported by dates and details whereas hers was, as I have said, absent both.
43. The father describes a very different relationship between himself and the mother. He is able to give times and dates of their meetings. His case is that he was cautious about the relationship. He admitted that his parents were not approving of him and his siblings embarking upon relationships until they had completed their education. The result was that he had sought out a relationship using the internet. He denied that he had any intention that he would marry the mother, or that he had bought her a ring or even indicated that was what he wanted. Crucially, it was his case that the relationship ended after the incident when the police were called on 14^th March and he only saw the mother on one further occasion when he dropped food off at her home the first time. When he did it the second time he told me that he had not seen her.
44. It was put to him on behalf of the mother that his family are strict Muslims and as such were disapproving of the mother. He said he could not speak for them. However, he denied that his parents were closed to other religions pointing out that his mother was a catholic who had converted. He said that it would have been more of an issue that she was already married than the fact that she dressed immodestly. He said "in all honesty they would judge her on her actions not on how she looked and her actions include false allegations. That is why she would not be marriage material from their perspective"
45. He stood steadfastly by his evidence that they had broken up before he had heard about the pregnancy. He told me that the mother had fabricated the story she told me about getting a pregnancy test and doing it when he was there. He said that the reason they broke up was because of her infidelity and the fact that she was married and nothing else.
46. He told me of the occasion on 5^th March when he had been late in visiting her. When he got to her flat she did not come to the door. He did not have a key, something that she confirmed in her evidence, and is perhaps surprising given her suggestions as to the extent of their relationship. In any event, he looked through the letterbox and could see her laying apparently unconscious on her bed. He shouted but could not rouse her and so he called the police. That instance was for him in keeping with her tendency to demand constant urgent attention from him and if she did not get it she would react in an extreme fashion.
47. He denied that he used to regularly argue with her and grab her by the throat or that he was violent or abusive to her ever. He maintained that when the police were called on 14^th March they had been arguing because of what he had discovered about her (ie that she was married and in contact still with her former husband) and he wanted to leave but she would not allow him to go. The extreme incident of violence, alleged to have taken place in April 2013, he said was fabricated.
48. He was challenged that he had denied paternity to the CSA in October 2013. The point being made was that he sought to avoid responsibility for his child. He denied that this was the case insisting that he was confused about the paternity issue and arguing that this was because of the manner in which he discovered about the pregnancy.

Discussion

49. As I announced at the conclusion of the hearing I am not satisfied that the father has assaulted and abused the mother as she alleges and consider it more likely that she has fabricated these claims against him. My reasons are as follows.
50. I have found the mother's evidence to be wholly unconvincing and utterly unreliable. It was riddled with inconsistencies and filled with sweeping but serious allegations supported with little or no detail, it was at times simply incapable of belief and it was unsupported and indeed undermined by the evidence of third parties.
51. Let me start with the internal inconsistencies. Her oral evidence frequently differed from her written evidence – either in complete contradiction or through the adding of detail that I would have expected to see in her primary account. The best example of this is to be found in her complete withdrawal of what was a clear allegation of sexual assault made in her statement and repeated in her schedule of allegations. There was no satisfactory explanation given for this. To that I add the inability to give any detail at all about these allegations – no dates, no level of frequency, no consistent description of how events unfolded.
52. Such detail as she did give was often lacking in logic and on occasions was frankly incredible. One example is the assertion that she did not seek medical assistance after what was on her account a brutal assault on her and her unborn child. I completely understand that victims of domestic abuse frequently fail to report the abuse that they are suffering. However, I am also aware that exception to that or the turning point for many is when the safety of a child is threatened. The mother described being kicked in her stomach. Such an assault would, in my assessment, cause any pregnant woman concern as to the effect on her unborn child. In this case those concerns must have been heightened further if we are to believe that, as she told Dr H, she had also suffered a bleed. If this is true I consider that she would have sought medical treatment. I find it inconceivable that she would have simply gone to bed and hoped to get better herself.
53. It is in the nature of such allegations that there are no third party witnesses but there are CRIS reports from the police regarding the call outs to the mother's home and also she has produced herself exchanges between herself and the father's sister around the time that this terrible last assault was to have taken place. None of that evidence lends any support whatsoever to her version of events. The police evidence supports the father's case in relation to the two call outs in March – namely that he had called the police out of concern on the first occasion and more significantly that the mother did not want the father to leave on the second occasion.
54. The exchanges between the mother and the father's sister do nothing to support her case. In my assessment they show the mother to be needy and rather desperate in her pursuit of the father (for example admitting to phoning him 15 times in a row and him failing to respond). What is more they suggest that their relationship was over by this time. The most emotional emails come at around the time that the serious assault is alleged to have taken place – 20^th April. They are highly emotionally charged, begging for the sister to intervene on her behalf with the father. The clear implication is that the mother had not seen him since her last communications a month before. They come in the early hours of the morning. They make no mention of the assault and indeed nor do the communications which follow in May. In the April and May exchanges she is unafraid to level accusations of lack of compassion, bad behaviour against the father but no mention is made of assaults. These are in my view the exchanges of a woman who feels abandoned by her partner and who is desperate to secure his return.
55. Finally, there is the late reporting of the final brutal assault, coming as it does some 4 months after the event. I remind myself that it is not unusual for victims to make late reports regarding assaults and that of itself does not suggest that the allegations are untrue. However, when viewed alongside the failure to seek medical treatment, I consider that in this case the late reporting adds yet more weight to the father's case that these allegations are fabricated.
56. Turning to the father, my impression of him was that he was an honest young man. When he met the mother he was (and possibly still is) a little unworldly and naïve. Without intending any disrespect to his parents, it seems to me that the rather unrealistic expectations as to relationships imposed upon him by them, however well intentioned, have in my view left him seeking out partners through the internet and conducting slightly clandestine affairs. For a young man whose life is otherwise so open and straightforward that cannot have been easy or healthy. However, he was an impressive young man and an impressive witness.
57. Although the burden has not been upon him to disprove these allegations inevitably in the face of such allegations the accused feels as though it is. As I have observed, in contrast to her, his evidence was steeped in detail, though given the lack of similar detail in her accusations he need not have bothered. For example, he had tried to trace his every movement during May 2013 when it appeared from the police reports that the most serious piece of violence was alleged to have taken place then – providing a comprehensive timetable of his whereabouts backed with evidence of his bank accounts showing where he was making purchases at various times. As I have said, the extraneous evidence (the police reports) supports his accounts rather than hers.
58. My assessment of him as a decent and naïve young man from a supportive though unrealistically restrictive family is supported by the evidence of the ISW who assessed him and his family. It was clear to me that he finds himself utterly bewildered by the events which have unfolded since meeting the mother. What is more, in the face of suggestions that he was a violent, abusive, controlling man who had so little regard for his son that he sought to deny his paternity he did not once betray any anger or hostile emotion. He is quite clearly not a volatile or angry man. Accordingly, I accept the father's account where ever it conflicts with the mothers.
59. All things considered then I do not find any of the mother's allegations proved. Accordingly and for the avoidance of doubt I find that the father has not been the perpetrator of any violence or abusive behaviour towards this mother.
60. Further, I am entirely satisfied that the allegations made have been fabricated by the mother. I see many cases in which a couples' emotionally charged exchanges, when viewed through the prism of their acrimonious separation, take on an exaggerated, imagined or mis-remembered level of abuse from one to the other. However, this cannot provide an explanation for the last of these allegations in my Judgment. The final allegation of assault simply did not happen. In the same way that the rape allegation did not happen and had to be withdrawn. I consider that the father's account of their relationship is the more accurate and the mother is a needy woman who wanted more from him than he had ever promised her. I consider it untrue that they were engaged and he had given her a ring (which can no longer be found). That is a fantasy and is what she wanted to happen but their relationship fell far short of that. Even his reaction to the issue of paternity, far from putting him in a bad light, is entirely in keeping with his account of the rather transient nature of their relationship and his belief that she was seeing other men.

Threshold

61. I have a copy of the agreed factual basis for the threshold. In addition it is conceded that the facts as stated cross the statutory threshold and the door is therefore opened to the making of a care or supervision order.

Welfare

62. A's welfare is now my paramount consideration. I am guided in my assessment of what is in his best interests by the welfare checklist. I do not intend to slavishly recite each of the factors on that list given that the issue of welfare is now conceded but I confirm that I have nevertheless given each element my full consideration.
63. A is a little miracle. He has survived a traumatic start in life. However, he has considerable health needs. Those needs will continue and will have an emotional and social impact upon him. He will need a carer who is able to understand and respond to those extensive needs and who can prioritise him.
64. There is no contest that the mother is unable to care for A. In the first place, as she concedes, her medical condition prevents her from being able to safely parent A alone. Whilst she had hoped to mount an argument that she could be supported in that care by her mother she had to further concede that there was a great deal of doubt as to whether her mother would be able to come to this country from Bosnia and even if she did, whether she would be able to remain. With reluctance therefore, her final position was that A would have to be cared for by the paternal family, subject to her misgivings about the father.
65. I confirm that having heard and read the evidence I am quite satisfied that not only is this mother rendered unable to provide good enough care for A by reason of her medical condition, there is also a considerable amount of evidence from the ISW and from the psychologist that she lacks basic parenting skills which would prevent her from providing for his emotional needs and his quite extensive physical and needs. Given her concessions on this matter I need go no further in rehearsing what that evidence is.
66. The father and the paternal family have been positively assessed as carers for A. Given that I have made no findings against the father I can approve the plan to place A in his care pursuant to a child arrangements order. He will be assisted and supported by his parents.
67. There will be contact between A and his mother in accordance with the LA advice. The allegations made and pursued in this case and the neediness of this mother demonstrate very clearly that negotiating this contact and setting boundaries for the mother will be a challenge. For that reason I am satisfied that the father and his family will need the support of their LA to ensure that it does not impact negatively upon A. I am grateful to the LBH for listening to the evidence and changing their position with regard to a supervision order and I make such an order to LBH.