R and RA (Children) [2010] EWCC 60 (Fam) (8 September 2010)

HHJ HAYWARD SMITH QC:

Introduction

The length of time it is taking to determine the future of R and RA is greatly to be regretted. The history of these proceedings so far is set out in various judgments. They should all be read in order fully to understand the twists and turns this case has taken. On 28^th November 2008 I delivered a fact-finding judgment in which I found that RA’s father had caused a non-accidental fracture to her arm in January 2008 when she was just over five months old. I found that both the mother and the father had lied to me and that the mother was trying to protect the father. On 9^th October 2009 I delivered a further judgment after a hearing which was intended finally to determine welfare issues. In that judgment I found that the mother had lied to me, and to many others, about her continuing relationship with the father and in effect could not be trusted safely to parent the children. I made care orders and placement orders. I did so reluctantly, whilst acknowledging positive features of the mother’s parenting.
On 9^th April 2010 the Court of Appeal allowed an appeal by the mother reported at [2010] 2 FLR 661 They set aside the orders I had made and invited reconsideration. On 5^th May 2010 the mother applied for me to recuse myself from the case. I declined to do so, and gave my reasons. Since that hearing there have been significant developments. Both the mother and the father now accept that despite their past repeated strong denials, persisted in until mid-July 2010, they have been seeing each other on a regular basis, and indeed living together for at least each weekend. They accept that the sighting captured on CCTV on 18^th July 2009 was them. The mother’s present position is that she accepts that she has told numerous lies to many professionals involved in this case and to me. She says she is now telling the truth. She asks that the children be returned to her. She says that she has now separated from the father and that he has threatened her and her mother, the maternal grandmother, and the children’s foster parents.
The father played no part in the proceedings before me after the fact-finding judgment in November 2008. He played no part in the Court of Appeal hearing. He has now re-entered the proceedings. His current position is that the children should not be placed with the mother; he says that they should be placed with him. He has put forward relatives who will be assessed by the Local Authority, by way of viability assessments at the outset, as alternatives to his own care of the children. The maternal grandmother was a party to these proceedings but is now taking part as a witness for the mother. She was supportive of the mother’s case, or she put herself forward as an alternative carer, supported by her current partner. The grandmother’s stance may have been tempered by events during her evidence at this hearing but at present that is unclear and may need to be considered for the next hearing in November.
In view of the dramatic change of position both by mother and father, I directed this hearing as a further fact-finding hearing, to be followed by another welfare hearing in November.
There were three judgments given in the Court of Appeal. They were agreed on the outcome of the appeal but their reasons differed. At one stage it was suggested by counsel that I should embark on an analysis of the judgments, to determine precisely which findings were overturned and which findings remained intact. I declined to do so; instead I have examined matters afresh. Much of the ground covered in my judgment of October 2009 has not needed to be re-trodden but because it is now accepted that my findings were correct, apart from an alleged sighting in the vicinity of a contact centre which is still disputed. I need say no more about that in the light of the current evidence.

The Mother

I have in the past found the mother to be a very plausible witness, despite my adverse findings in November 2008. My finding in October 2009 that she had lied was based on the evidence of the sighting of the mother and father together near social services offices on 18th July 2009. Before I made that finding I recall hesitating for a long time; I found it very difficult to believe that the mother was lying about that. The grandmother’s evidence that she had her old daughter back, and other evidence, gave me much pause for thought. I was very tempted to give the mother the benefit of any doubt. If I had given in to that temptation, the children would probably have been returned to their mother, although she was in reality still in a clandestine relationship with the father. I would have been returning the children to an environment where they would have been in significant danger. When the Court of Appeal reversed my decision and directed that the matter be reconsidered, my initial reaction was to be pleased that the mother had been given another chance. I was then prepared to believe that my adverse findings in the October 2009 judgment may have been wrong. It was in that spirit that I embarked on a reconsideration of this case. I said words much to that effect in court on 5^th May 2010.
In his judgment in the Court of Appeal on 23^rd March 2010, the President said:

‘The mother has been ably represented on this appeal, but she must appreciate several things. The first is that she has come within a whisker of losing her children. The second is that she may still do so. Thirdly, she has forfeited the judge’s trust. Abuse apart, she has committed what is perhaps the most serious offence which a parent can commit: she has lied to the judge. The mother must understand that she is not engaged in some elaborate game with the Court in which being found out results in a tap on the wrist and no more. The future of her children is at stake. The issues could not be more important. Wiser heads than hers have decided, rightly in my view, that the father is a danger to her children. Every court sympathises with a woman who has to choose between her partner and her children, but no court will tolerate lies which put children at risk. We have directed the judge to think again. Quite what he will decide I do not know. What I do know is that, rightly, he will not tolerate further lies.’

Those very clear words were directed to the mother. They did not have the result intended. She continued repeatedly to lie and still continues to do so. There was further evidence of alleged sightings of the mother and father together or in the same vicinity in September 2009 and April 2010. I have not explored that evidence because it is now not necessary to do so. The mother’s solicitors filed a statement from a friend of the mother at the Refuge dated 22^nd July 2009 to the effect that on 18^th July 2009 the mother had been at the Refuge with her all day. If that were true, the sighting on that day was not of the mother. A further statement was filed by the mother’s solicitors from a keyworker at the Refuge. Although not as categorical as the other statement, it was intended to support the mother’s case that at the time of the July 18th sighting the mother was at the Refuge. I make it clear I do not criticise the keyworker; there is nothing in that statement which appears to be untrue. Nevertheless it was intended by the mother to support her case. The mother now agrees that she was with the father on that occasion. Those statements were filed on her behalf in an effort by her to mislead the Court. There was a further statement to the same effect by the same friend dated 24^th June 2010. On 29^th June 2010 the mother signed another statement which includes the following:

‘I repeat again for the avoidance of doubt that I have not seen the father since 31^st January 2009 when we separated.’

In another passage she said this:

‘As I have said repeatedly, I left the father in June 2009 after an argument about this case. I have not seen or spoken to him since. I have no intention of restarting my relationship with the father.’

That statement includes other vehement denials that she had been seeing the father and seeks a further analysis of the CCTV recording of 18^th July 2009. After the Court of Appeal judgments had been given, the Local Authority arranged for further assessments to be carried out of the mother and the father by VC and WG two social workers who had not previously been involved in the case. Each of them was scrupulous in trying to approach this case with an open mind. VC told me that she had deliberately not read statements filed by previous social workers so as not to be unfairly influenced by them against the mother and the father. Furthermore I am wholly satisfied that each of them carefully and sympathetically gave every opportunity to encourage the mother and the father to tell the truth. This was particularly so in the case of the mother as to any continuing relationship she had with the father. In her assessment report VC said:

‘When I first approached this assessment as laid out in the previous interim care plan, my focus was to work with the mother in a very open and non-judgmental way. I wanted to create an opportunity to give the mother a fresh start and allow space for her to be completely honest with me about her relationship with the father. I spent some time explaining to her and reassuring her that if she was still in a relationship with the father, or was in a difficult position in relation to him and needed help to break out of this, that I was very open to discussing this with her and helping her access any relevant support that she might need. My approach in this case was to start from the beginning and try to give the mother any separation support and emotional space to deal with the situation she was in. The mother vehemently denied all the way through that she was in contact with the father.’

In her evidence before me VC stressed what she had said in her report. I quote from her evidence:

‘I gave the mother every opportunity to tell me the truth about the relationship with the father. I struggle to think of anything else I could have done.’

It could not have been made clearer to the mother.

VC carried out the main work with the mother. The assessment sought to explore (1) the history of the mother and father’s relationship, (2) family life in the home, prior to RA’s injury, (3) the impact on the family of the children being placed with the maternal grandmother and subsequently foster-care, (4) the subsequent supposed separation of the couple.
The assessment started on 30^th April 2010 and ended on 15^th July 2010. During that assessment the mother repeatedly lied. VC found her lies frustrating; she said to me:

‘The mother is very believable. You want to believe her. Her stories are well thought-out and well put together.’

That evidence resonated strongly with me; it describes perfectly my own experience of listening to the mother’s evidence.

Apart from being peppered with lies by the mother about her ongoing relationship with the father, the assessment revealed potential worrying features about the mother’s parenting that had not been so apparent at earlier hearings. They have not been explored in detail at this hearing. The mother has always tried to portray herself as a very good mother; yet there must have been many stresses and strains in the household prior to January 2008. R had a severe speech impediment. The maternal grandmother had urged the mother to seek help for R. RA was regularly violently sick after feeds. It was a problem. The mother was coping with two very young children with difficulties, on her own without any support network. The father was out working for most of the time; he went to work very early, as early as 2am or 3am, and would no doubt have been tired when he came home. Yet the mother said that she was under no stress. She denied that there had been any violence in the home; yet R was hyper-vigilant towards men; when he moved to the foster-carers it was many months before he was able to relax in the male foster-carer’s presence. There was a constant worrying air of watchfulness by R; VC said she felt it was likely that R’s behaviour stemmed from previous incidents in the home. VC went so far as to question whether my finding that the father had caused RA’s injury was correct; she postulated that the mother must have been under such stress in the home that she may have caused the injury.
Much of VC’s assessment was not the subject of cross-examination by Mr Tolson QC for the mother because counsel had agreed it was outside the ambit of this hearing. There were however potentially worrying features of life in this family’s household before January 2008.
The assessment came to an end in July 2010 when the case took a dramatic turn. On 8^th June 2010 I ordered that the mother’s phone records be disclosed; they were disclosed. The Local Authority undertook a detailed analysis of many hundreds of pages of phone records. They show that on numerous occasions the mother’s phone had been used in areas near the father, where she denied having been. As a result of those phone records, the mother was forced finally to admit that she had been lying about her relationship with the father.
On 14^th July 2010 the mother’s solicitors telephoned the Local Authority. They were concerned. They followed the telephone call with a letter dated 15^th July 2010. It is an important letter and it reads as follows:

‘We thank you for your letter of 15^th July 2010. We confirm our further telephone conversation yesterday when we informed you that what we now say is an outline of the situation as we understand it but that we still have to see our client to obtain full details. The reason why we telephoned yesterday evening was because we feel that the matters which have come to our attention raise serious child protection concerns. Our client informed us that the father had followed her from the contact centre when contact was still taking place at the location which he himself had attended. As a result, he discovered where our client was living and was also able to make threats to her. As a result of these threats, our client has admitted spending time with the father at weekends, although we are not sure whether this can be said to amount to any kind of relationship. The general nature of the threats are that if our client does not obtain the care of her children then as far as the father is concerned, nobody will have his children. He has threatened that he will get (whether this means harm, seriously injure, kill, we do not know) firstly our client; secondly our client’s mother and thirdly the foster-carers. It is the case that the father has apparently told our client that he knows where the foster-carers live because he was driving down a particular road and saw their son outside what is presumably their home. There was a report of a man meeting the father’s description outside the Refuge; as a result our client’s placement at the Refuge has been compromised and she was asked so far as we know to find somewhere else to stay last night, 14^th July 2010, and we understand that she stayed with a friend. We are concerned that the father will realise on Saturday 17^th July 2010 that something is amiss, and may well then pose a risk to the foster-carers and therefore the children, and also the Refuge.’

Although I acknowledge that that letter begins by saying that it is only an outline and that further details are required from the mother, it is nevertheless likely to have been carefully written on mother’s then instructions. Various passages in that letter are seriously incorrect; even then the mother was not telling the truth to her own lawyers and was making allegations against the father that were untrue. The father had not followed her from the contact centre; he had not recently discovered where she was living because he had already known since February 2009 where she was living. The parties were in a full relationship; the mother’s placement at the Refuge had not been compromised. The mother told me that she had said that she felt her place at the Refuge had been compromised because she wanted everyone to think that she was in danger, but that it was untrue. She was untruthfully trying to portray herself as a victim. After those revelations were made by the mother, it appeared to others, understandably, that her position at the Refuge was compromised because the father knew where she was. As a result, the mother moved up to Scotland to live with her own mother. It was all nonsense. The mother’s position at the Refuge was not compromised at all; the reality was that after the father had left hospital in February 2009 he and the mother were living together for much of the time. They met on 14^th February 2009, only a few days after a hearing before me on 2^nd February when I was told that the mother had permanently separated from the father. The mother spent at least every weekend with the father from February 2009 until July 2010. There is a dispute as to whether she spent any part of the week with him; he says she did; she said she didn’t. She told me she ‘popped in’ to see the father from time to time during the week to prevent him coming to the Refuge. I do not believe she was just popping in. They were living together as often as they could, consistent with the mother’s position at the Refuge, including during part of the week if she could. They were living together in the full sense, as husband and wife. The mother was paying various bills; she was paying the gas bills, the television licence, the electricity bills, and the car insurance. She was keeping records of some of the payments she made. They ran two cars together, one for him, one for her, when they could afford it. She used a VW; she would park it two streets away from the Refuge so that those at the Refuge would not know about it. Once, early on, the father drove the mother back to the Refuge and stopped two streets away. He knew where the Refuge was, and the mother told me that she did not mind his knowing. She herself had told him where it was not very long after she went there.
It follows that she was at the Refuge from January 2009 to July 2010 under false pretences and taking up valuable resources at the same time. She duped everybody concerned. She went out of her way to bolster her deceit. At the last hearing I heard evidence that she had said that she was worried about going too often to an area where the father lived to collect her travel warrant in case she saw him. Social services therefore arranged that she should go less frequently. I recall that it was that agreed evidence in particular (in addition to the grandmother; evidence to which I have referred) that gave me great pause for thought, before finding that the image on the CCTV on 18^th July 2009 was indeed the mother. The mother was deliberately pretending that she feared going to collect her travel warrant in order to cover her tracks and put social workers off the scent, and those at the Refuge. She would not even have been entitled to a travel warrant at the time, because she was using one of the father’s cars. The scale of the mother’s deceitful behaviour is breathtaking. She has deceived the Local Authority, the Refuge, me, the Court of Appeal and her own lawyers, amongst many others.
On 21^st July 2010 I was asked to make an injunction against the father to prevent him following the mother. I did so because I was told of the allegation that the father had followed her to the Refuge. He had done no such thing. I was being asked to make an injunction on a false basis. Mr Tolson has tried to persuade me that there may have been a mix-up at some point, because instructions that the mother had given to her lawyers may not been fully understood or implemented. I do not accept that there was a lawyers’ mix-up which caused me to make that injunction.
The mother shows no remorse for her lying. Mr Tolson on her behalf has repeatedly apologised. He has on a number of occasions offered her apologies to me. He began his cross-examination of VC and WG by apologising to them on behalf of the mother. The mother said in the witness box that she apologised, in answer to Mr Tolson’s prompt that she do so, but I detected no more than lip-service to the advice she had been given. I do not believe she feels any remorse. She has made it absolutely clear that the only reason she has now revealed her deception is because the analysis of her phone records left her with no alternative. I myself pointed out to her that it was very serious to lie, and in particular to get others to lie for her by preparing false statements for the court as to her whereabouts on 18^th July 2009. The mother replied that she did not know it was serious at the time, but she does now. She was lying in that answer; of course she knew it was serious; she is far from stupid. I detected no shame or remorse. The only sorrow the mother feels is sorrow at being found out.
Even now she continues to lie. She says that after she moved to live with her mother she told her mother the full story of her deception, that she had been living with the father and that it was her and the father shown on CCTV on 18^th July 2009. Yet when VC saw the maternal grandmother on 6^th August 2010 it became apparent to her that the mother had not told the maternal grandmother the full truth. When VC told the maternal grandmother that the mother had seen the father every weekend rather than every other weekend, and that they were both together on 18^th July 2009, the maternal grandmother according to VC was visibly shaken, distressed, angry and tearful.
When the mother was asked about that in her oral evidence to me, she said she had given the maternal grandmother all those details. She tried to defend herself by telling me that her own mother tells lies. I do not believe her. She was trying to defend herself by lying, and by falsely accusing her own mother of lying.
When the maternal grandmother gave evidence, she at first told me that the mother had told her everything when she went to Scotland in July 2010. It then became apparent that the mother had indeed lied to the maternal grandmother. She told her mother that she had left the Refuge because the father had found out where it was. The maternal grandmother was visibly shaken in the witness box when told that it was the mother herself in the early stages of her stay at the Refuge who had told the father where the Refuge was. The mother had told the maternal grandmother that the father had found the Refuge by following the mother from the contact centre. She was further visibly shaken when told about the mother and the father’s financial arrangements whereby the mother had taken responsibility for paying the father’s bills while at the Refuge yet living part-time with the father. The mother told me she had told the maternal grandmother about all that; she clearly had not, to judge from the maternal grandmother’s reaction in the witness box when being told about it in cross-examination by Miss Theis QC on behalf of the Local Authority. The maternal grandmother agreed that when VC had told her on 6^th August that the mother had been seeing the father every weekend, she had been absolutely disgusted.
In essence VC’s note of her interview with the maternal grandmother on 6^th August is correct, although the maternal grandmother may not actually have cried, as VC noted.
The mother has given inconsistent evidence about the father’s treatment of her. She was previously very supportive of the father and denied that she was frightened of him. That was her stance throughout the assessment by VC until 15^th July 2010 when the full extent of her lies was beginning to emerge. On that day she told VC that she feared for her life; she told VC that there had been two incidents of violence by the father towards her since January 2008, but she said there had been no violence in the home. She told VC that the father had threatened to get her and the maternal grandmother and the carers in the event that the children were not returned to him. She said that she had told him she would get the children back and return them to him. VC said that on that occasion, 15^th July, the mother appeared scared; but she also said that that very appearance by the mother could have been another facet of her deception.
On 15^th July the mother told VC that she had been an unwilling partner in continuing to see the father. She talked about being threatened by the father to continue the relationship. The mother told me that she was keen for the relationship to continue, because she loved him. I believe that to be true. I do not believe the mother was seeing the father because he was threatening her. She told me that the relationship had now ended; she said it ended on 17^th July 2010 when she left London. She said she now has no feelings for him and has had no feelings since 20^th July. I do not believe her.
VC does not believe their relationship is over, neither do I. VC suggests that a continuation of the relationship should be taken into account when future planning for the children is considered. I agree. It should. WG agrees with VC on that aspect, as indeed on all others.
The mother’s evidence-in-chief at this hearing began with a forensic flourish. The hearing was due to begin at 10am on the morning of the second day. I received notification that the mother and her counsel were still in counsel’s chambers and needed more time. The hearing began at about 11.10am. Mr Tolson then told me that the mother’s evidence would begin with some evidence that might have a dramatic impact on the future conduct of the case. He then called the mother. The mother told me that the night before RA’s arm was seen to be injured she and the father were having a row. RA was crying. The mother was angry, and she picked RA up, ‘a bit rougher than normal’. She said she cannot remember whether she picked RA up by one or both arms. She put RA to bed; RA continued crying. The father went into RA’s room and soon after he came out RA stopped crying. Later the mother went into RA’s room when she was asleep and noticed that the father had ‘swaddled’ RA in a blanket. It was all round her, not just tucked in. She said that the father must have picked RA up to do that. She said that RA’s crying was normal; it was her normal high-pitched cry and there was nothing unusual about the manner of her crying, or the time during which she cried. The mother said that she did not know whether the father would have seen her pick RA up in the way she described. She said she had told the father what she had done; he denies that she told him. The father says that he first heard this account when the mother gave it in the witness box at this hearing. The mother told me that although she had told the father what she had done, his reply was that either of them could have caused the injury and they agreed to tell the doctors that they did not know how the injury had been caused. The father denies that he said that either of them could have caused the injury.
The mother told me that when the father said to her that either of them could have caused the injury, she did not ask the father what he had done and she did not know what he had done. I find that astonishing and I do not believe that she would not have asked the father what he had done if what she told me is true.
The mother told me that after RA had gone to sleep on the night of 2^nd January 2008 the child had slept soundly until morning. RA had very serious vomiting problems. Moreover, she had a broken arm. I do not believe that her vomiting suddenly subsided that night and she slept soundly, notwithstanding a broken arm. The mother has told so many lies that I now find it impossible to know when she is lying or telling the truth. It may be that she has made this version up in the belief that it may help her. It may be that she has been influenced by VC’s evidence when she questioned whether the mother might have caused the injury. Whether the mother’s account of picking RA up roughly is true or not, I cannot say. In any event the mother’s admission, if that is what it is, is very muted. Having given that account, she then told me that she does not believe that she injured RA. She still says that she did not cause the injury and that the father must have caused it. She said at the time she picked RA up there was no change in RA’s crying. Whatever interpretation is put on the mother’s new account, it puts her in a bad light. If it is true that she may have injured RA, she has waited for two years eight months before revealing it. She has permitted a finding that the father was the perpetrator to go unchallenged, even while continuing in a relationship with him. If it is untrue, it is another lie of the mother, perhaps in some misguided attempt to persuade me that she is now being truthful. It is suggested that it may be the beginning of the real truth emerging and that it will take time for the mother to admit the whole truth. She has already had 2 years 8 months. If it is only the partial truth, and she used far more force than she is admitting, she is again not being completely frank. I do not know which of the three competing scenarios is correct.
The father says that when he came home from work on the night of 2^nd January 2008 both children were already in bed. He says that he now believes the mother caused the injury.
The strength of the evidence is insufficient for me to re-open the findings, save to the limited extent that I am about to indicate.
I have no more medical evidence as to whether, according to the mother’s new account, there would be likely to have been sufficient force acting upon RA’s arm to cause such a serious fracture. I do however remind myself of the evidence that was before me at the first fact-finding hearing. Dr King suggested that the fracture could have been caused by an adult gripping RA’s left arm below the elbow and pulling her up from lying flat and suspending her, so the body-weight was taken by one limb. That possibility was put to Dr Kovar and to Dr Halliday in cross-examination on behalf of the parents. They said that such a mechanism could cause a fracture if the arm were gripped below the elbow but not above. To cause a spiral fracture there would need to be a twisting or swinging motion; such handling would be far in excess of normal and not appropriate handling. The child would have been in great pain and the adult behaving in that manner would have been aware that such an event had occurred.
In the light of the mother’s new evidence I should amend my findings from my judgment of November 2008 to this extent. I now record as a possibility but no more that the mother might have caused the fracture. I cannot elevate it to a finding that she did.
The father was again taken through the events of 2^nd and 3^rd January 2008; he said:

‘I recall 2^nd January 2008 vaguely. I came home from work tired; I fell asleep on the settee. I woke up the next morning and went to work. There was nothing unusual about that night. I slept in bed as usual, after I’d left the settee. About 10am on 3^rd January 2008 I got a phone-call at work from the mother. I was in Uxbridge at the time. She was okay; she said that the baby’s arm was floppy. I remember her saying that. I thought nothing of it, but I stopped what I was doing and came home. I thought the mother was making a drama of it because she worries about little things. She wasn’t in a state when she rang me. I think I was in a state because I dropped everything and came home. When I came home the baby was in a sling, sleeping. She wasn’t in any pain. I got changed; the mother seemed calm, not hysterical or anything like that. It was a regular thing for RA to get herself into different positions in the Moses basket. I wasn’t worried. The mother didn’t tell me she’d done anything. I didn’t say, “We don’t know what’s caused it; let’s say we don’t know.”’

Later he said, appearing to change his story:

‘I thought nothing of it when I got home. I don’t mean I thought nothing of it at the time of the phone-call. I didn’t think anything of her arm, but we decided to take her to the hospital. I thought she was injured in the Moses basket; I’ve seen her twist her arm in the Moses basket. I didn’t ask why the mother had RA’s arm in a sling; I didn’t ask her whether she’d changed her and how her arm was on changing.’

Later he said, a result of what I thought was a leading question in re-examination by his counsel Miss Giz, ‘When I said I didn’t think anything of it I meant that I thought that the mother wouldn’t have done anything to harm RA.’
I considered the father’s account in detail in my judgment in November 2008. The father’s answers raise a number of unanswered questions which I need not, I think, analyse further. Now that the mother has made those partial admissions, the events surrounding the injury must be seen in a different light. I therefore amend my finding that the father was the perpetrator; I now find that both parents were possible perpetrators. Which of them was the perpetrator I cannot say. If I were to find that the father was the perpetrator, I would, on the present evidence, be giving too much weight to his previous history, and I refer to the evidence of his previous partner MH. I do not think that I should be persuaded by that evidence alone that the father was the perpetrator, in the light of the fresh evidence that now comes from the mother. When I made the finding against the father in November 2008 it was in the light of the evidence that it appeared very unlikely to have been the mother and I do not believe that anyone was then suggesting that the mother might have caused the injury. I amend my November 2008 judgment to that extent.
I make the following general findings about the mother. She has a very deep-seated tendency to lie. She is very deceitful. She is prepared to go to great lengths to bolster her lies. There are many examples. Her lie to social services to arrange for her travel pass to be collected less frequently in order to persuade social services that she was frightened of the father is a striking example. She also asked at one stage that the contact centre be changed so that she would not have to go anywhere near the father. She asked to be tagged in an effort to prove she was not seeing the father. She was bluffing. She is prepared to persuade others to lie for her. The statements of her friends are untrue and she knew them to be untrue. One such statement of a friend LT says that the mother would see her, usually on a Saturday. That was untrue because on Saturdays the mother was with the father. The mother told me she did not know LT had said that in her statement. I do not believe her. That is another lie told to me by the mother at this hearing in order to cover up her deliberately getting LT to lie for her.
The mother is a particularly dangerous liar because she appears so plausible. She has been able to maintain a tissue of lies for years, and to construct a lifestyle built upon them, and to dupe others into supporting that lifestyle. Her stay at the Refuge is an obvious example.
Her claim to be a very good mother has been potentially tarnished by evidence at this hearing. At paragraph 23 of my judgment of November 2008 I found that R was thriving in the care of his mother and father. That was the evidence before me at the time. VC’s evidence has thrown doubt on that finding. She described R as a very traumatised two-year-old, and a very scared little boy when he went into foster-care. The mother told me that there was no reason why R should show fear of the male foster-carer; she said that R would be present when she and the father had arguments, but they were not violent arguments and were not directed at R and often R would be watching television when the rows took place. The mother painted a picture of domestic harmony, apart from the occasional row which, she said, was nothing out of the ordinary. The father paints the same picture. R’s behaviour towards the foster-parent suggests otherwise.
I raised some parenting concerns in my judgment in November 2008. One of the contact notes read as follows; it appears at paragraph 51 of my earlier judgment, but I will read it again:

‘12^th August 2008: overall my main concern would be the neglect R suffers during some of the sessions. I was not keen on the way the father was telling R to “shut up” whenever he began crying, but R did seem to hold back his tears. My other concern would be how the mother does not intervene when father seems quite harsh with his choice of words. It could be because she agrees with his method, or that she feels that she should not undermine the father. However, I am concerned as to the way R is disciplined, compared to the average child of his age, as normally R is a fairly well-behaved child.’

At paragraph 264, 263 and 266 of that judgment I said:

‘Their time appears to be entirely taken up by the father working and the mother looking after the children. The impression they both gave was that they are a very isolated couple. That impression is in contrast to the Local Authority’s care assessment which records the mother as follows: “the mother reports that they have a group of friends that she socialises with. They have friends who live close-by and others who are more distant in location. She records that they are all very supportive and are positive relationships.”

The picture both painted of their relationship struck me as ideal and idealised; a far cry from the experience of the father’s ex-partners including MH. The father told me that the mother had a couple of friends, but they did not mix. He said, “I’m not in the habit of letting every Tom, Dick and Harry into my home; I’m a very funny person.”’

In addition Miss Theis has referred me to the father’s medical notes whilst in hospital in February 2009. They are referred to at paragraph 30 and 31 of my judgment of October 2009. I will not read them into this judgment again. In that judgment I expressed caution in relying on those notes as evidence that the mother was lying to me when she said that the father had not used cannabis and had not been violent to her. The evidential position has now changed. I now know that the mother is a very serious liar. Furthermore she has changed her evidence about the father’s use of cannabis. She told me at this hearing that he would use marijuana on a daily basis; he denies that. The father told me that when in a note of the 4^th February 2009 he is recorded as referring to hitting his wife, he was referring to his previous partner MH. Initially the father’s case was that he had never hit MH. Then he said that he had hit her twice. He told me at this hearing that he had hit her ‘once or twice’. I do not believe that the father was referring to MH in that note of 4^th February 2009. It is much more likely that he was referring to the mother. He was talking in the context of separation from the mother. I have much more confidence at this hearing in relying on those notes in the light of the scale of lying by both the mother and the father that I am now aware of. I find that those medical notes do contain an admission by the father of violence within his relationship with the mother prior to RA’s injury. The maternal grandmother had always believed that the father was violent to the mother, but there was then no evidence of it. They both denied it. I find that the father was violent to her during their relationship prior to January 2008. I cannot say how much violence, but I reject both their denials that there was no violence. I do not accept that their family life together prior to January 2008 was anything like the idealised picture that both would have me believe.
The Court of Appeal said that I should give myself an express Lucas direction in accordance with R v Lucas 73 Criminal Appeal Reports 159. I do so. I ask myself why the mother has lied; I remind myself that there are many reasons why she might have lied and they might be innocent ones. She has lied in order dishonestly to promote the unification of the children with herself and the father. If she had succeeded the children would be returned to a household where her baby suffered a serious fracture at the hands of a parent, and where the children were not protected and where thereafter both parents sought to hide what had happened. In other words, a household where the children would have been unsafe. She did not lie for an innocent reason. She may believe that she has lied to protect her children; she has not. She has tried to perpetuate the danger.

The Father

Like the mother, the father has repeatedly lied. On 23rd February 2009 after the mother and the father had resumed their relationship, the father met two social workers. I have a note of their meeting. It includes the following:

‘The father reported that he has separated from the mother. “It’s best that we split up. I don’t want to know about the mother. I can walk away from her.” The father went on to say he had no plans to go back to the mother in the future and that the relationship is finished’.

In the statement he made a few days later, 4^th March 2009, he repeated what he had said at that meeting. His statement includes the following passages:

‘On Friday 31^st January 2009 I took her to the railway station. When she left I knew from her face that she would not be coming back, and we have lived apart since then. As far as my separation from her is concerned, I regard it as final and do not harbour any hopes or intentions of a reconciliation either now or in the future.’

In a statement made on 6^th June 2010, over a year later, he said, ‘I have not seen the mother since we separated on 31^st January 2009.’ Of the CCTV sighting on 18^th July 2009 he said, ‘I don’t go along that street. I was categorically not there with the mother’. He explained the two phone-calls referred to in the October 2009 judgment. He said he had been, ‘slipped her number by a mutual friend’. He said there had been no response to the calls that he had made. His aim, he said, in phoning her had been to try and persuade the mother to come back to him. It was all lies. They had been together since February 2009.
In a further statement dated 19^th July 2010, dated after the mother’s disclosures to her solicitors but presumably before the father knew about it, he again strenuously denied seeing the mother. He said, ‘I can confirm and reassure the court that I have not been a relationship with the mother since January 2009.’ All the sightings were again strenuously ‘categorically’ denied. In that statement dated about six or seven weeks ago he supports the placement of the children with their mother; he seeks contact. That was his position according to the assessment carried out by WG. In a statement made on 12^th August 2010 there is a complete reversal of the father’s position; he says that their relationship ended on 16^th July 2010 which was presumably the date he discovered that the mother had admitted they had been seeing each other. In that statement he opposes the children being with the mother. He accepts that he cannot care for the children and puts forward two family members as alternatives. He there gives no explanation for his no longer supporting the mother as a carer, save to say, ‘In the light of what has recently happened, I am not sure they should be placed with the mother.’
The father told me that between February 2009 and July 2010 they were seeing each other three or four days during the week, as well as at weekends. The mother denies that. As I have already said, I think it likely that they saw each other on occasions during the week and saw each other as often as they could. The phone records show that they were phoning each other at least twice a day. The mother alleges that the father has been violent to her twice during 2009 and 2010, but never before then. She says that on 27^th June 2009 he hit her with his hand on the bridge of her nose, to the right, catching her under her right eye. There is evidence that she had a bruise at that time and went to hospital, where she gave an explanation of a can hitting here. She also says that on about 9^th July 2010 the father pulled her hand and threw a lighted cigarette at her hair. She told me how she had had to disentangle the lighted cigarette from her hair. At that point in her evidence she was nearly crying and it struck me that it was one of the very few times in the witness box at this hearing that she showed much emotion. The father denies that he assaulted her on either occasion. Although I am doubtful about much of the mother’s evidence, she did have a bruise on 27^th June 2009 and I did note her demeanour when dealing with the cigarette evidence in the witness box. I think it more probable than not that on those two occasions the father did hit her; it follows that I disbelieve his denials.
During the recent assessment which ended in July the father said that he still loved the mother; he said that as recently as 17^th August 2010. He now says that the relationship is definitely over because the mother has been lying to him. When he became involved in the proceedings again, he says he saw the papers and discovered that R’s hair had been cut and that R was going to school. He says the mother had not told him about that. She probably did not because she knew it would upset him.
There is independent evidence alleging that the father is still on occasions very aggressive. There was an occasion when it is alleged he became angry and verbally threatening and abusive to the female foster-carer outside the contact centre, at the time when he discovered the children were having contact with the maternal grandmother. The father disputes that and it has not been explored before me. I make no findings about it.
The father told me that he regards himself as a truthful man; he said that the mother is to blame for all their current problems. The thrust of Miss Giz’s submissions on behalf of the father is that the mother has indeed been at the heart of the problems, and that the father has in essence been following the mother’s lead. The father told me that he was not jointly responsible with her for the problems that they now faced, and indeed he told me he could see no way in which he could have behaved differently. He explained his recent change of heart whereby he now no longer supports the mother as carer of the children; he said it was because she intended to go to Scotland with the children and he would not see them. Yet he still describes her as a ‘very, very good mother, a perfect mother.’
In the witness box for the first time, he said that he put himself forward as carer for the children, and suggested that they live with him, or failing that, a relative. He said he came to that decision after he heard the mother in court describe how she had picked up RA roughly on 2^nd January 2008. The father asks for contact with the children. After the hearing in November 2008 he regularly spoke to them on the phone but that stopped in June 2009. I was told that the foster-carer used to ring the father’s phone, but could not get through after the Local Authority had indicated that the father’s telephone contact should be reduced. The father denies that there was any problem with his phone; he says that the calls just stopped. He says that he has always wanted contact, and that he went to social services’ offices to talk to one of the social workers and she said that she would come back to him, but she never did. I do not believe the father’s version of events. It is clear from the statement of that social worker dated 24^th April 2009 that the Local Authority were very alive to the issue of the father having contact with the children. She says this,

‘Following on from the mother’s decision to separate from the father, I met with the mother and discussed the need for the children to have contact with the father. The mother said she understood this and would be in agreement to having less contact so that the father could have contact with the children one day of the week. The mother suggested this could be on a Friday. We have unable to make contact with the father to set up contact; I have made numerous calls to the father and left messages. He has not made any contact with me. We wrote to his solicitors on 6^th and 9^th April informing them of our difficulties contacting the father, and requesting that they provide us with information about his whereabouts. To date we have not had a response.’

She exhibits those letters to her statement. The Local Authority’s plan, should the father have made contact with them, was for the children to have direct supervised contact with him once a week. Further efforts were made to contact the father as set out in a statement of another social worker of 19^th June 2009. Various telephone messages were left for the father and various letters were written to his solicitors. The father did not contact the Local Authority; he dispensed with the services of solicitors because, as he told me, he quarrelled with them. The result is that the father has had no phone or other contact with the children since June 2009. He now seeks contact. The Local Authority and the guardian both ask me to make an order under section 34(4) of the Children Act permitting the Local Authority to refuse contact between the father and the children. This is a matter which must be properly considered and Miss Theis on behalf of the Local Authority assures me that it will be considered, and I accept that. But given the period that has elapsed between the father seeing the children or having any phone contact with them, it may be that having looked at the matter carefully the Local Authority will take the view that it is not in the best interests of the children at this time to resume contact with the father. Section 34(4) is permissive; it does not direct that there should be no contact; an order gives the Local Authority permission to refuse it if they think it appropriate. I think in the circumstances of this case the Local Authority should have the power to refuse contact, if that is a decision they come to in the interests of the children after the matter has been fully considered but I do urge them fully to consider it and I believe they will. I am going to make an order under section 34(4) that until further order the Local Authority may refuse permission for the father to have contact, if they regard it in the interests of the children that that should be so.
Much of the father’s evidence was not credible. He told me that he knew nothing of the hearing in July 2009, or the judgment of October 2009. Although he was seeing the mother on a regular basis, he said she did not tell him even of the fact that the hearing was happening. He said that she did not tell him that the court had adjourned to a police station to view CCTV images of 18^th July 2009. I find that highly unlikely. I bear in mind his counsel Miss Giz’s submission that the mother is so devious that it is possible that she was not telling the father things which the father was entitled to know. She may well not have told him about R’s haircut. Each of them was lying to professionals. It does not follow that they were lying to each other about such important matters that might impinge so seriously upon their lives. Having considered Miss Giz’s submission I think it highly unlikely that the mother would have said nothing at all to the father about any of this and I do not believe him.
I find that like the mother, the father is a liar. I do not believe much of what he says. He is however not as clever as the mother at telling lies; he is less plausible than she is; he is less manipulative. He is not as adept at concealing his lies. His reason for lying is not innocent. His reason is to fabricate a false case with the mother in order to secure the return of the children to a household where they would not be safe.

Findings of Fact

Peppered throughout this judgment are my findings of fact, but for convenience I will summarise the main findings. These findings are in addition to those that were made in my first judgment on 28^th November 2008 with the amendment already indicated.

(1) The mother is a serious and persistent liar.

(2) The mother has persistently lied from the time RA’s arm was fractured until this hearing, a period of two years eight months.

(3) The mother has lied to a very large number of people including medical staff, the Local Authority in its various forms including the social services department and the housing department. She has lied to her own lawyers. She has lied to me. Her case before the Court of Appeal was based on lies. She has lied to her own mother and even now is not being frank with her. She has lied to staff and others at the Refuge.

(4) The mother is a very good liar. She has the ability to embellish what she says with a ring of truth and to manipulate what she says in order to bolster her credibility.

(5) The mother has successfully procured others to lie for her, including making false statements in these proceedings in order to mislead the Court.

(6) The father is a serious and persistent liar.

(7) The father has lied from January 2008 until now, a period of about two years eight months.

(8) The father has lied to social services, to his own lawyers, to the Court and others.

(9) The mother is a more accomplished liar than the father. She is more deceitful than him in that she can be so manipulative that people want to believe her.

(10) The father’s absence from these proceedings for a lengthy period was probably to bolster the fiction that he had separated from the mother.

(11) Whatever the mother or father say should be examined with caution. It is very difficult to tell whether they are telling the truth or lying.

(12) Either the mother or the father might have caused RA’s injury. It was one of them or both of them, I cannot make any finding as to which.

(13) At the hearing on 2^nd February 2009 I was told that the mother had separated from the father. 12 days later on 14^th February 2009 they resumed their relationship. A few days later on father’s release from hospital they began again living together whenever they could.

(14) They lived together at the father’s different addresses from February 2009 until July 2010. They were living together nearly every weekend and sometimes during the week.

(15) They were together as often as they could be, consistent with the mother remaining at the Refuge.

(16) They wanted to be together. It was mutual. The mother was not coerced by the father into being with him.

(17) They were phoning each other twice each day at least, using phones that they thought would not be detected, even though the mother’s own lawyers had given her a new phone with a number on it that the father was not supposed to know.

(18) The mother stayed at the Refuge under false pretences. She pretended that she was frightened of the father and that he did not know where the Refuge was. He did know because she had told him at an early stage. The mother was in effect leading a double-life at the Refuge and with the father.

(19) The mother often drove from the father’s address to the Refuge and left the car a few streets away, so her clandestine movements would not be detected.

(20) The mother and the father had been infatuated with each other for many years. They could not keep away from each other. They probably still are so infatuated. Neither of them influenced the other in continuing the relationship.

(21) During the relationship prior to January 2008 the father was violent to the mother. It is not possible on the current state of the evidence to say how often that occurred.

(22) The father was violent to the mother in June 2009 and July 2010.

(23) The mother has misled her own mother, the maternal grandmother, and has continued to do so until this hearing.

(24) The mother tried to protect her own position before me by falsely accusing her own mother of lying.

(25) The maternal grandmother is still protective of the mother; she was asked in evidence whether she had asked the mother any further questions after VC’s visit on 6^th August; she replied that she had not because maybe she did not want to know the whole truth.

(26) The mother failed to protect R from the father’s over-harsh treatment of him at some occasions of contact.

(27) In July 2010 the mother was willing that the children be moved from a stable foster placement where they had been since May 2009 to another placement because she was maintaining the children were at risk because the placement was known to the father. That was untrue, and she knew it to be untrue.

I record concerns that have been raised but not explored at this hearing about the mother’s parenting. I make no findings about them. They will need further consideration.

Submissions on behalf of the mother

I have been assisted greatly by detailed and very helpful submissions by all counsel. I do not mean any discourtesy to any other party or any other counsel if I refer only in this judgment to some submissions made on behalf of the mother by her counsel.
The thrust of the submissions on behalf of the mother is that the mother should not be written off as the carer of her children as a result of these findings. To do so, it is argued, would be to fall into the trap of a parent-centred approach, rather than a child-centred approach. They suggest that her lying was driven by a wholly misplaced sense that it was the best way to recover her children. They urge that exasperation should be put on one side in the hope of finding professional detachment. This, they suggest, should have been a simple case in which a young baby suffered a single injury at the hands of a stressed carer. I note that is a suggestion of mother’s counsel. It does not reflect the evidence in this case and they do not suggest otherwise. They stress that it is important to note that R never suffered any physical injury and appears to have a close relationship with his mother. They submit that the way forward is for the mother and the children to be with the mother and maternal grandmother in Scotland. I have given only a brief summary of their submissions. They are all matters to be considered at the next hearing before me in November. I wholly agree with their contention that it is important to put exasperation aside and to focus fully on what is in the best interests of these two small children, who have been waiting far too long to have their future determined.

Conclusion

The lies told by these parents have caused a wholly unacceptable delay in determining the future of these children. They have also wantonly consumed huge resources that could usefully have been applied elsewhere. They include resources of the Local Authority, of public funding for the lawyers, of court time and many others including in particular the Refuge. The mother I repeat was there under false pretences, taking valuable time and space and funds, from January 2008 until July 2010. The parents’ behaviour has been disgraceful.
I have been very critical of the Local Authority. That criticism was echoed by the Court of Appeal. I do not resile from what I have said about that, but it is only fair to the Local Authority to place the criticisms in context. Some in the Local Authority have believed throughout that the mother and father were lying about many things including the continuity of their relationship. It was that belief that led the Local Authority to behave in the way that they did. They behaved inappropriately at times, but it should be recorded publicly that their conduct of these proceedings has been coloured by their belief that the parents were not telling the truth. In that belief they were right. I do not say that to excuse what happened but to put it in context.
In the event that this judgment is made public or reported, care must be taken to insure that nothing is published which can lead to the identification of the children.

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	England and Wales County Court (Family)
You are here: BAILII >> Databases >> England and Wales County Court (Family) >> R and RA (Children) [2010] EWCC 60 (Fam) (8 September 2010) URL: http://www.bailii.org/ew/cases/EWCC/Fam/2010/60.html Cite as: [2010] EWCC 60 (Fam)

England and Wales County Court (Family)