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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> E and N, Re (No 1) [2017] EWFC B26 (Fam) (1 June 2017) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2017/B26.html Cite as: [2017] EWFC B26 (Fam) |
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B e f o r e :
____________________
In the matter of: | ||
Re E and N |
____________________
Miss Jillian Hurworth counsel for the mother instructed by Alan Durling of Asghar and Co
Miss Louise Desrosiers counsel for the father instructed by Manjit Rai of MMA solicitors
Miss Hayley Griffiths, counsel for the children instructed by Sarah Hindle of Stone king LLP
Date of the hearing:
8 to 12, 16 May 2017
____________________
Crown Copyright ©
His Honour Judge Moradifar:
Introduction
The law
"In determining any issues of fact, the burden of proof lies with the local authority and the standard of proof is the balance of probabilities. The court remembers and applies the rule that the findings of fact must be based on evidence and, in particular, in this case, I remind myself of the observation of Munby LJ (as he then was) in Re A (A child: fact-finding hearing: speculation) [2011] EWCA (Civ) 12:
"It is an elementary proposition that findings of fact must be based on evidence including inferences that can properly be drawn from the evidence and not on suspicion or speculation."
Furthermore, when considering care proceedings, the court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. An important part of the evidence in this as in every case is of course the evidence provided by the child's carers. The court must form a clear assessment of their credibility and reliability. When considering that evidence, and particular where it appears that lies have been told, the court must bear in mind that it is common for witnesses to tell lies and the court must be careful to remember that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that she or he has lied about everything."
This was reasserted by the President of the family Division in Re A (A Child) [2015] EWFC 11 who expressed in the following terms;
"i) Fact-finding and proof. It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. Findings of fact must be based on evidence and not on suspicion or speculation (Re A (A Child) (No 2) [2011] EWCA Civ 12. If the local authority's case is challenged on some factual point it must adduce proper evidence to establish what it seeks to prove. Whilst reliance is often placed upon material to be found in local authority case records or social work chronologies which is hearsay (often second- or third-hand hearsay) a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it."
"The local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President's Chambers, [2013] Fam Law 680: "Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority's files." It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority's concern about something. If the 'thing' is put in issue, the local authority must both prove the 'thing' and establish that it has the significance attributed to it by the local authority."
Aikens LJ in Re J (A Child) Re A (A Child) [2015] EWFC 11 (para 56) provides the following summary;
"
a. In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that "nothing else will do", when having regard to the overriding requirements of the child's welfare.
b. If the local authority's case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent "does not admit, recognise or acknowledge" that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern "has the significance attributed to it by the local authority".
c. Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great, or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged.
d. The formulation of "Threshold" issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ("he appears to have lied" etc.).
e. It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, "justify the conclusion that the child has suffered or is at the risk of suffering significant harm" of the type asserted by the local authority. "The local authority's evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]."
f. It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child's welfare. The court must guard against "social engineering".
g. When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall."
The allegations
"1. Prior to her pregnancy, the mother has been a regular user of drugs.
2. The mother has consistently used cannabis from approximately 1st January 2016 through to 29th June 2016.
3. The mother continues to use cannabis.
4. The father has used cannabis, cocaine and MDMA (Ecstasy) from approximately the end of January 2016 through to the middle of July 2016. The father continues to use drugs.
5. The father has sexually exploited the mother by prostituting her.
6. The father has controlled the benefits received by the mother.
7. The father has subjected the mother to domestic abuse and violence.
8. On the 29th and 30th June and 1st July 2016, the father attended at the offices of Slough Children's Services Trust where he was shouting and hitting doors and making staff fearful for their own safety. Further, on the 4th July 2016, the father attended at the offices of Slough Children's Services Trust offices, punching the reception glass door twice, picking up his bicycle in a threatening manner and putting staff in fear for their own safety, and shouting and screaming obscenities and threats in the reception area.
9. On or around the 28th & 29th June 2016, the mother and father refused to leave the hospital and became verbally abusive to hospital staff. The mother threw a computer keyboard and mouse which hit the receptionist.
10. The father has a history of anti-social, and violent, behaviour.
11. On the 21st September 2016 the Police attended the property of the mother and father. The mother and father had been smoking cannabis. The father had been smoking a lot of cannabis in the last couple of weeks which resulted in him having a medical episode that caused him to freak out. The father had smashed the mother's head against a sink and smashed the house"
Background
Evidence
"The mother first met the father on a date that she cannot exactly recall, possibly February or perhaps March 2015 but there was no relationship at that time between them. The relationship did not occur for at least three months afterwards. The father has not controlled the mother's benefits."
Analysis
"…she was scared that Jamal would find out she had disclosed that he sold drugs and took drugs, and what his reaction would be…there was a part of her that was worried about if there was any truth in Jamal's DV/Rape…
She would lie to social services and tell them that Jamal was not dealing drugs… she would tell them what they wanted to hear."
Conclusion
a. The parents met in February or March 2015.
b. The father initially introduced himself to the mother as Jamal and has used the name in the past.
c. In 2015 the father:
- Was a drug dealer
- Had debts relating to drugs
- Used the mother and her premises to deal in drugs
- Sexually exploited the mother by making her have sex with his friends
- Provided the mother with illicit drugs
- Controlled the mother by withholding drugs from her and controlling her money for period of three weeks in June 2015
d. R's identity was made up by either or both parents to deceive the professionals and the court about the true identity of the father. If R was made up by one of the parents, the other knew that this person did not exist and assisted the other by maintaining a lie about R's existence.
e. The parents have misled the professionals and the court about the true identity of the father.
f. The parents continue to have an emotional connection and reliance on each other.