Stockton On Tees Borough Council v F (the Father) [2016] EWHC 2689 (Fam)

[2016] EWHC 2689 (Fam)Case No MB16C00004THE FAMILY COURT AT MIDDLESBROUGHRussell StreetMiddlesbroughTS1 2AEDate 27 th May 2016B E F O R E:MR JUSTICE BODEY
Between
Stockton on Tees Borough CouncilF
Compril LimitedTelephone: 01642 232324Facsimile: 01642 244001Denmark House169-173 Stockton StreetMiddlehavenMiddlesbroughTS2 1BY

Approved Anonymised Judgment

[1]This is a final hearing in care proceedings relating to four children whom I will name in a minute, and who have been in foster care since being removed from the father's care in November 2015 for reasons to which I will come. As between Stockton on Tees Borough Council ('the Local Authority') and the father ('the father') and the Children's Guardian, Sue Hyland, there is really no live issue. They are agreed that pursuant to the Local Authority's Care Plan, the father will cooperate and engage conscientiously with the Local Authority over the next three or four months in the hope, that following closely identified work on parenting, he will be able to resume caring for the children.[2]The mother does not agree with this plan. She would ideally like to children to be in her care, although she realises that for reasons I will mention, she cannot realistically put herself forward at this stage as their carer. She strongly disagrees that the children should ever have been placed in the father's care, as they were before November 2015, and she opposes them being placed in his care by the Local Authority under a care order. She feels that if they cannot be with her, they should remain in foster care during their childhood. She highlights in her statement and through Mr Burdon, her counsel, the more unsatisfactory aspects of the father's parenting and she particularly relies on the precipitating event in November 2015, when she asserts that the father lost his temper and lashed out at the third of the four children, causing him physical injuries.[3]The Local Authority has been represented by Miss McKie; the mother by Mr Burdon; the father by Mr Mather; and the Children's Guardian by Miss Johnstone and I am grateful to them for the cooperative way in which this hearing has been conducted. I have read all the relevant parts of the bundle. I have heard oral evidence from the father and the social worker Ms L.[4]As to the background, there are four children who are the subject of these proceedings: a girl W, born [date stated] who is 12; a girl X born on [date stated] who will very soon be 10; a boy Y born on [date stated] who is age six; and a boy Z born on [date stated] who is aged four. W, X and Z are currently in foster care together. Y has been placed in foster care separately because his behaviours were too challenging for him to be in the same foster placement as his three siblings.[5]The mother has also had one other child of whom the father is not the father. She is called V who was born on [date stated], so that she is now aged two. Unhappily for the mother, she was at some point removed from the mother's care and has now been adopted.[6]The current arrangements for contact to the four children with whom the court is concerned are that they see their father twice a week for two hours and they see their mother once a week for two hours. In the mother's case, contact is separated out as between W and X and, on the other hand, Y and Z.[7]In 2002, the parties commenced a relationship. Their four children were thereafter born on the dates which I have stated. The relationship failed and in April 2012, the parents separated. The children remained with the mother, having contact with the father which he accepted, in a police interview which I will mention, became sporadic.[8]The mother entered into a relationship with a Mr D which involved domestic violence including he children. There were also issues of neglect of the children. On 19th March 2013 the children were placed on Child Protection Plans under the category of neglect.[9]On 30th April 2013, with the then Local Authority's involvement, the children moved to the care of the father. Initially this was to be a temporary arrangement but it became longer standing. In the event, they remained in the care of the father until November 2015, thus for a period of two and a half years.[10]On 6th January 2014, in connection with private proceedings then ongoing between the mother and the father, there was a psychological assessment of the mother. That concluded that unhappily she has learning difficulties with an IQ of 68, implying significant cognitive difficulties.[11]On 14th August 2014, the private law proceedings as between the father and the mother were concluded with a Child Arrangements Order granting residence of the four children to the father. The mother was ordered to have contact to the four children but it was to be supervised.[12]Between October 2014 and November 2015 there were about eight occasions when the agency tasked with supervising the mother's contact to the children (or else the school), made referrals to the Local Authority in relation to the children. These referrals, which were not always found to be justified, involved the children repeatedly suffering from head lice, W having very bad eczema, the children having a number of minor injuries, probably from poor supervision by the father, including in particular that on 2nd November 2015, Y had a large scratch on his back thought to have been from fighting with Z; and lastly suggestions that the children were in not very clean clothing and were hungry. This latter point, hunger, was in relation to Y and Z who were seen, for example, eating from the slop bin. Nonetheless, the children continued in the care of the father supported there by the Local Authority.[13]On Sunday 15th November 2015, the father now says that two events occurred. First, about mid-afternoon, he says that he accidentally slapped Y whilst the boys were playing and whilst he was trying to knock a Duplo brick out of Y's hand because he thought Y was about to throw it a Z. The second event which occurred, according to the father, was that Y fell down the stairs at or after 5pm. It is a curiosity that, when speaking of that fall down the stairs, that two of the children have dated it as happening the following morning. I say this is 'a curiosity' and that has to be what it must remain, for it has not been possible to explore who is right about the date and, indeed, what the significance of the inconsistency might be. From the father's point of view, he says that the children are not reliable on dates and have simply got the date wrong. He is adamant that this fall was on the Sunday afternoon and not the Monday morning.[14]At all events, on the morning of Monday 16th November 2015, Y was seen at school to have bruising to the side of his face. He was referred to a paediatrician a Dr K who reported the following injuries: i) A pink mark on the left side of Y's face measuring 10cm x 7cm in front of the ear which was linear with a central clearing in between. There were petechial spots around the bruising with other such spots and bruising on the front and back of the left pinna, being part of the ear. There was also bruising on the top margin of the left ear. ii) A bruise 1cm square to the top of the head on the left hand side above the left eye. iii) A linear mark 5cm long on the inner aspect of Y's thigh with a smaller but similar mark adjacent. iv) Other injuries which were of no concern. There are photographs before me which demonstrate very clearly the bruising and marking to the left side of Y's face and to his left ear.[15]Because Dr K could not be available for this hearing, a second paediatrician, Dr A, was jointly instructed to consider the injuries by way of a paper exercise and to give answers to a series of well formulated questions. He concluded that the injury to the left of Y's face was an impact injury from an open hand and he gave the opinion that it was non-accidental. He has since stated that it was 'a significant blow to the side of the head and Y was lucky not to sustain an intracranial injury', that is a brain injury. As regards the bruise to the top of Y's head, Dr A gave the opinion that this was consistent with a fall and was probably an accidental injury. As regards the injury to the Y's right inner thigh, Dr A originally was of the view that this was a hand print injury and non-accidental. However, having been asked to consider the father's recent statement (in which the father speaks of a gripping of Y's thigh in fun and in play) Dr A gave the opinion that this could have been the mechanism which caused the injury. He felt that if the father is telling the truth then he would describe that injury as an 'excessive accidental injury'; but if the court felt that Y was telling the truth (and Y has said that the father slapped him on the thigh), then Dr A's opinion would unchanged that this was non-accidental.[16]The outcome of the examination of Y by Dr K on 16th November 2015 was that the Local Authority very understandably asked the father to agree to the children being accommodated while the events were investigated. The father agreed with that and the children have been in foster care ever since, as described at the outset of this judgment.[17]On 1st December 2015, the father gave a police interview which is before me. Following that interview, the police determined to take no action. Throughout that interview, the father gave no explanation as to what had happened to Y other than that he (Y) had fallen downstairs which must have been the cause of his injuries. He, the father, denied ever having caused any injury to Y's head. When it was put to him that the ear injury was in keeping with a non-accidental injury and therefore inflicted rather than having been caused by a fall down the stairs, the father answered:
"To be honest with you, I don't know. I mean I can't answer. I mean I can only go on what I know and that's all I know."
The father now accepts that he was not truthful to the police in this interview in the light of his current version as to how the left hand side of Y's head became injured, which I will come to shortly.[18]On 5th January 2016, the Local Authority issued these care proceedings which, as I say, come on for final hearing before me in the last part of this week. The Threshold Statement sets out various deficits in the father's parenting of the type which I have already mentioned: head lice, eczema, inadequate supervision, numerous minor injuries to the children, and generally the father struggling to manage particularly the boys' behaviour. But more especially, paragraph 1 of the threshold asserts that the injuries to Y (and particularly the injuries to the left hand side of Y's face), had been caused by the father. The father had to respond to that assertion and in so doing he said that he accepted Y had the various marks noted by Dr K but went on:
"I do not accept that these marks were inflicted."
He then set out the fall of Y down the stairs which I have already mentioned as being his explanation (at that time) for Y's head injury. He acceded to the assertion that he struggled to manage Y and Z's behaviour, saying:
"I accept that I do find it difficult to manage their behaviour. I do get angry but only to the extent that any parent gets angry and it is not causing the children significant harm when I simply raise my voice to chastise them when necessary."
[19]There was a stage when the Local Authority's plans were on a contingent basis. If the court held that the injuries to Y were non-accidental injuries, then the plans of the Local Authority were that the children should remain in long-term foster care for the foreseeable future. If, on the other hand, the court was not satisfied that the injuries to Y were non accidental injuries (and therefore that those injuries are to be treated as accidental injuries), then the plans were for rehabilitation to the father following a package of work which the Local Authority intended do with him or cause him to do with other agencies.[20]In the light of the recent position which the father now puts forward, including his assertion that there was an accidental mechanism for the injury to the side of Y's head (the incident with the Duplo brick which I have mentioned), the Local Authority's plan has effectively changed to being a plan for rehabilitation with the father in any event, whatever precisely was the cause of Y's injuries. The Children's Guardian supports that approach. On the face of it, that might have meant that there was no need for any fact finding in this case, because if there were to be a care order (as seems inevitable), then nothing would turn on precisely what caused the injuries to Y, whether the cause was a genuine accident or some form of loss of temper, or something else.[21]However, since the mother's case rests squarely on the assertion that the father struck out in anger, and since on any view the father was not frank at the outset of the investigations and misled the Local Authority and the Police, it did seem to me to be right to conduct a short fact finding process on the discrete issue of the mechanism of the injury to the left side of Y's head. It was, in effect, common ground that the other injuries did not merit investigation - in other words, that it would not be proportionate to investigate them - in particular given Dr A's view that, in principle, it may have been rough play (excessively rough play) which caused Y's thigh marks.[22]I have just mentioned the father misleading the professionals. In summary, what I have in mind in so saying are(a) his answers to the Local Authority's Threshold Statement to which I have already referred and(b) the police interview dated 1st December 2015, to which I have also referred. The entirety of that police interview is founded on the father's claim that the fall down the stairs was the cause of the injuries, when in fact the father accepts in his recent statement that he knew as early as the evening of 16th November 2015 after speaking with Dr K, that the fall was not regarded as being a valid explanation for Y's injuries.[23]So Mr Burdon puts the case in this way: that following those two lying and deceitful occasions when the father had denied being the cause of the injuries to Y's face he, the father, suddenly comes up five months later following Dr A's report, with the alternative explanation of having accidentally struck Y around the face whilst trying to stop Y throwing a brick. Mr Burdon submits that this raises, in his expression, 'an index of suspicion'. I accept that submission, namely that the father's failure to come forward sooner with what he now says happened raises very real suspicions about what happened. It is right to say also that W has spoken of the father's anger and of his smashing things. She and X have spoken of his flicking them, which he admits, although this was clearly in a completely different league from that which triggered these proceedings. Y also told the authorities that the father had smacked him. However, when weighing up what the children have said, it has to be noted that W attends at a school with a special provision unit and that Y has been referred to the CAMHS. The mother herself agrees that she finds Y's behaviour challenging and it is for that reason that he is separated from his siblings in foster care. There have been no ABE (Achieving Best Evidence) interviews with the children, perhaps because it was felt disproportionate. It is clear to me that I cannot place pivotal reliance within the fact finding process on disputed things which the children have said.[24]The father's detailed evidence for what he now says is the true explanation for Y's injuries is contained at C212 in the bundle. He also explained what had happened from the witness box, when answering questions from Mr Mather. He told me that he and the boys were playing with these Duplo bricks, which are bricks larger than Lego. Y was kneeling, Z was sitting and he (the father) was crouching behind Z facing Y. He told me that the two boys are very competitive and that if Y does not get what he wants, he is quite likely to lash out and throw a tantrum. The father told me that these Duplo bricks are about six inches long and one and a half inches deep, made of hard plastic. At one point during the game, the father told me that Y picked up one of the bricks left handedly and held it at the side of his head. He demonstrated this and it would be exactly what a person would do if he was about to throw something. He said that his reaction was to hit the brick out of Y's hand by way of 'a swipe' (his word). He demonstrated this, swinging his right arm right across the front of his body from right to left. However he said that just at that moment, Y moved his hand and his, the father's hand, hit Y's face open handedly on the left hand side of Y's head. Y started to cry and the father cuddled him, reassuring him that it was an accident. This crying lasted for up to five minutes.[25]The father accepted in evidence that this swipe was hard but denied that it had come through his having lost his temper. Asked by Mr Mather why he had not told the truth earlier, the father told me that he had been too ashamed. He said he felt horrible and disgusted with himself for what he had done. It was Dr A's report which caused him to come forward with what he now says happened. He said that he was frightened of being judged by other people and thought the professionals would regard him as a bad parent such that he might lose the children. In answer to Mr Burdon, the father accepted that this was on any view 'a gross overuse of force', but he said that it was just a split second thing and that in hindsight, he must have used more force than he intended. He accepted that there was a pinkening or slight reddening of Y's face immediately afterwards which he noticed when cuddling him. Therefore, in answer to further questions from Mr Burdon, he accepted that he realised that the marks on the left hand side of Y's face had been caused by him (the father). Following on from that, the father accepted in answer to Mr Burdon that he knew that what he was telling the police about the fall down stairs having been the explanation for the injuries, was untrue.[26]As part of the context of deciding what happened on that day in November 2015, there has to be factored in the relationship which the father is seen to have had with the children and the other qualities as a parent which he appears to have shown, in spite of the various deficits which have also been demonstrated. That evidence comes from an assessment of the father completed on an unspecified date in February 2016 by [a senior family worker and a family worker]. They attended at the family home on occasions of the father's contact to the children on four occasions, twice in the morning between 7am and 9am and twice in the afternoon between 3pm and 6pm. Mr Burdon says that this only amounts to a snapshot when the father was being closely watched and that it is not representative of how he would cope if he was on his own with the children all the time. W at one point said words to the effect: "Dad doesn't hit us, he just flicks our head with his fingers if we're naughty. It only hurts for a second", being something I have already mentioned and being something which the father accepted in his evidence, saying that he sometimes did this if the children were naughty and sometimes as part of a game with them.[27]The evaluation of the father's relationship with his children involved the family workers saying that the family home had presented no concerns at any stage due to health, hygiene or hazards to the children. It was adequately heated. There was no concern about the children's presentation. W and X's room was seen to be slightly messy but there was no other comment of that type regarding untidiness. There were no concerns through the assessment in relation to the father's supervision of the children. The children did not demonstrate any noteworthy behaviour and were:
"…generally well behaved through the assessment."
There was some minor normal sibling squabbles and some defiance of parental boundaries. However "….the father was able to resolve these difficulties appropriately and in a calm manner." He encouraged good behaviour and manners and there were amiable interactions between the siblings. The workers continued:
"Throughout the assessment there were positive and warm interactions between the father and the children. They often approached him for hugs and affection which he offered and this appeared to come naturally to him. Conversations between him and the children appeared to flow, particularly at meal times which were generally positive … he offered the two boys age-appropriate play and activities."
On two occasions W spoke to one of the workers, expressing a preference to live with the father.[28]In their Conclusion, the workers note that the father had taken on board advice which they had given him and implemented it in the next session. They say:
"The children appear to have a good and trusting relationship with their father and approached him throughout the assessment for affection and comfort. We concur that he demonstrated that he is able to meet the children's basic needs in terms of ensuring safety, emotional warmth, stimulation, guidance and boundaries."
When Dr K saw Y on 16th November 2015, he said:
"… I could see there was a good interaction between Y and his dad."
During the police interview on 1st December 2015, the Detective Constable who was conducting the interview, said:
"… what I will say is that you've got a good rapport and a good bond with your kids and that was quite clear when I went out."
[29]As regards the Children's Guardian, on the 16th May 2016 she recorded W saying that she would wish to live with her father and that she misses him a lot. She recorded X saying that she was worried that she would not be able to go back to her father and that if she were given three wishes, her first wish would be to go back to him. She described contact with him as 'feeling safe'. The Children's Guardian was doubtful whether Y was able to describe his feelings, but when they did a game of the 'holiday bus', Y said that he would take his father with him on the bus. Z was too young to express any such wishes. I am not saying and would never say that children do not love parents who have harmed them and may harm them again. Sometimes children do not state their frank feelings about a parent because they are too scared of that parent or worried about displeasing him or her; but there is a valid body of information as just summarised which is relevant as part of the background to and context of the father's conduct on 15th November 2015.[30]Miss McKie referred me in passing to Re S (A Child) [2014] EWCA Civ 25, in which Lord Justice Ryder described the expression 'non-accidental injury' as a catchall for everything which happens to a child which is not an accident. It is clear that the expression 'non-accidental injury' covers a wide range of factual possibilities. Lord Justice Ryder said this:
"… the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction."
[31]In considering the facts of this case and in applying the civil test of the balance of probabilities, it is clear that the father's lies count against him. However, as Mr Mather has submitted, one is only too aware in this Division that, unhappily, parents and others do not always tell the truth about things from the outset. It would help them and it would help the court if they did; but they do not always do so. Mr Mather asked me to remind myself of the R v Lucas direction, whereby it is necessary to remember that people may lie for a number of reasons and that such lies do not necessarily indicate culpability, nor that they have done something which they say they did not do. Here the father explains his lies on the basis of being ashamed and of being worried that he would be thought of as a bad parent and might lose the children.[32]The first question I have to ask and answer is whether the father's current explanation for the relevant injuries to Y is a complete fiction, in other words, entirely invented in order to cover up either for a routine use of smacking of the children, or else for a particular occasion of a loss of temper? If that were to be case, then the court and the social workers and the Children's Guardian would still be nowhere near knowing the truth of what actually happened to this youngish boy and I would need some persuasion that rehabilitation should still be the care plan. However, having seen and heard the father, and in spite of his lies and the false explanation of a fall, I have concluded that his eventual explanation is not a wholly invented one. The father, as it seemed to me, had the demeanour in the witness box of one who was recounting facts of which he had been a part. Further to that, he did make concessions against his own interests, for example, that the brick was only a light one and that Y cried for as long as five minutes. I acknowledge that as in all things, I may be wrong in my conclusion and that this is necessarily a fallible process, but I do no find that the father has wholly invented what he now says happened as a cover for something else much more serious. So, I find that there was some sort of incident with Y brandishing a brick in the terms broadly as the father has described and as he says he recalls it.[33]So what was going on in the father's mind that day and what was he trying to do? There is a range of possibilities from a loss of temper, or a wish to punish Y who may have been misbehaving, down to a benign intent of saving Z from perhaps being struck. I would reject any suggestion having seen he father, and considering all the background as I have laid it out, that he wanted purposely to harm or hurt Y and I do not think that that has been put forward. Nor do I consider that this was something in the nature of harsh punishment.[34]So one is left in the realms of an action which in fact caused harm but without the wish or intention so to do. What the father was intending to do (as I am satisfied having seen and heard him) was, for want of a better word, to 'disarm' Y so as to stop him throwing the brick at Z, or hitting Z with it. The way he did this was as he now accepts completely inappropriate and inept and actually, because of the force used, very dangerous. Even if he had dislodged the brick, it would have hurt Y's hand or arm and there must have been a risk of his striking Z in the process. There were many other better ways, as the father now recognises, whereby he could have restrained Y's arm and found some way of defusing the situation. However, I accept that the father's reaction was a split second one even though it was a gross over reaction to what was happening. It was in the words of Lord Justice Ryder 'an injury caused by an element of wrong involving recklessness'.[35]That suffices as my fact finding and concludes all I need to say about that aspect of the case. I trust it has cleared the air. I hope it will leave the Local Authority better informed as to what they are dealing with over the three or four months to come in working with the father. It will avoid any risk of someone further down the line, when decisions about actual rehabilitation of the children to the father have to be taken, saying '… but what if the injuries to Y were non accidental?'[36]The threshold for interference by the state through the Local Authority is clearly met in this case and no one has suggested that it is not. Counsel have been working on the Threshold Statement and I know it is about to be passed up to me. Neither parent is in a position currently to care for the children and therefore a care order is the only viable option available to the court. This gives management of the children to the Local Authority, pursuant to their Care Plan. That Care Plan, as I have said, is for rehabilitation to the father if all goes well. That will restore the children to the care within which they were being brought up before November 2015; it will restore W and X to where they have said they very much want to be and the two boys will naturally go with them. It may be difficult now to reinstate Y into this unit and that is something which the father and the Local Authority must be aware of and will have to work sensitively towards.[37]Over the next three to four months, the father will be offered the services which we have discussed during the case and which I know are set out in the Addendum Care Plan to which I am about to be taken.[38]The mother will also be offered the services that are referred to in a PAMS report on her. That report is dated 25th March 2016, having been prepared by [two social workers]. There is also a second report by the same workers dated 5th April 2016 considering both the mother and her current boyfriend, a Mr N. Those reports set out the help which the Local Authority intend to offer to the mother and I not need to repeat them here. The conclusion and I read from the report on the mother alone, is that:
"…. she would need a high level of daily support, consistent oversight and prompting from professionals and other sources of support to be able to manage the children and ensure that the home would be maintained to a good standard and to be able to provide consistency and daily routines for the children."
[40]One of the recommendations of the PAMS report was for a teaching course for the mother around independent living skills, which would teach her the skills and knowledge required to meet the children's basic needs on a daily basis and to parent them effectively. I mention this because Mr Burdon's cross examination of social worker Miss L was on the basis that at the end of the summer 2016, there might be the possibility of what I will call a 'straight choice' as between the two parents. In my judgment, it would be rather unkind to leave the mother thinking that that would be the situation. The assessments of her show that she would have very real difficulties parenting these children. She did not succeed following assessments in retaining V and she herself has had the insight to realise that for her to manage all four children in contact, even for the limited periods of time involved, has proved too difficult for her. Nothing in relation to children is ever set in stone and everything is always reviewable; but I do urge the mother not to hold out major hopes that there is a real possibility of her being able to resume the care of the children in the foreseeable future. I think it is right that I should say this in the hope of helping her come to terms with it.