DCFS v DE, NE and H, T and J - Judgment

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS FAMILY DIVISION CAUSE NO. FAM 237 OF 2010 BETWEEN: DEPARTMENT OF CHILDREN AND FAMILY SERVICES APPLICANT AND DE 1st RESPONDENT AND NE 2nd RESPONDENT AND H & T & J (by Mrs. M. McCormac, their Guardian ad Litem) Appearances: Mrs. S. Bothwell of the Attorney General’s Chambers for the Applicant Mr. C. Fee of Samson and McGrath for the 1st Respondent Mrs. K. Thompson for the 2nd Respondent Guardian ad litem in person Before: Hon. Justice Richard Williams Heard: 19th & 20th February 2015 & 2nd, 3rd, 4th, 10th, 11th, 12th, 16th, 17th, 18th, 24th, 25th, 26th March 2015 & 4th, 5th May & 4th August 2015 Written Submissions: Applicant - 9th June 2015 & 14th August 2015 1st Respondent – 9th June 2015 2nd Respondent - 22nd July 2015 & 26th August 2015 Guardian - 17th August 2015 Draft Judgment Circulated: 21 October 2015 Judgment Delivered: 26 October 2015 HEADNOTE Children Law (2012 Revision) - Supervision orders - Threshold Criteria - Definition of harm - Care/supervision proceedings standard of proof - Welfare checklist - Function of Judge in relation to the making of findings - Making of a Residence and contact orders at the same time as making an supervision orders - Making a prohibited steps order against a non-party. JUDGMENT The Parties and the Applications

¶ [1] The Department of Children and Family Services (the "DCFS") applies for supervision orders for three children pursuant to s.33 the Children Law (2012 Revision) ("the Law"). The three children who are my paramount consideration are firstly H, a 16 year old girl born on 18 May 1999. I shall refer to her as H in this judgment. Secondly, T, a 12 year old girl born on 11 April 2003. I shall refer to her as T in this judgment. Thirdly, J, a 5 year old boy born on 5 May 2010. I shall refer to him as J in this judgment. I will on occasion refer to the three of them collectively as the children in this judgment.

¶ [2] The children's biological mother, DE, was born in Honduras on 27 August 1980 and is 35 years old. NE was born in the Cayman Islands on 21 December 1950 and is 64 years of age. NE is the biological father of T and J. NE accepts H as a child of the family. H is aware that NE is not her biological father although he is named as her father on her Honduran birth certificate. I shall refer to DE as "the mother" and NE as "the father" in this judgment. The Court’s Investigative Duty and the Law

¶ [3] During this overly protracted hearing the parties seemed intent on trawling through, in great detail, the whole history of the parties’ relationship from its inception to the close of the hearing. They also sought to analyse in great detail the mother’s relationships and movements in Honduras. Although some of the information is relevant, the bulk of the parties’ drawn out analysis is not as helpful to the Court when determining the applications as the parties appear to believe it to be. It is interesting to note that the parties chose not to review in detail during their submissions, or at all, the majority of the dated historical evidence they recounted during the evidence stage of the hearing. This may be a belated recognition, when carrying out their reviewing exercise of the whole case to enable them to produce their submissions, that a large part of the evidence was not as relevant as was first thought by some of the parties. As the parties have been afforded the opportunity to conduct such an exercise at this hearing, the Court would not now expect them to seek, or feel the need, to again do so at any future hearing relating to these children.

¶ [4] Although issues for determination have greatly narrowed down since filing of the application for supervision orders, and the prevailing circumstances are now different to the those placed before the Summary Court at the commencement of these public proceedings when the emergency protection order applications were granted in April 2014, it is still necessary to look at some of this family’s history and to review the proceedings to put matters into context. When conducting such an exercise, in a case of this nature, I adopt the approach of Thorpe L.J. outlined in Re F (Shared Residence Order) [2003] EWCA Civ 592, [2003] 2 FLR 397 where he said: "One of the functions of the judge is to make findings and that another function is to be selective and to make findings that are relevant and necessary for the disposal of the issue." Thorpe L.J. stated that, when considering what orders would be in the best interest of a child, a Judge was not required to make findings on every area or issue that has been presented to the Court for determination or which had become apparent during the hearing. He concluded that the Judge must determine the factual issues that have implications for the decisions that he has to take in relation to the child.

¶ [5] The law that I am principally concerned with is contained in s.3 and s.33 of the Law. Although the parties all accept that the threshold criteria is met with respect to the children and invite the Court to make supervision orders in relation to the children¹, before I may make any order with respect to any of these three children, I must first be satisfied that the threshold set out by s.33(2) of the Law is satisfied. If I am satisfied, I must then go on to consider s.3 of the Law, the welfare checklist at s.3(3) of the Law and the no order principle at s.3(5) of the Law.

¶ [6] S.33(2) of the Law provides: "A court may only make a care order or supervision order if it is satisfied – (a) that the child concerned is suffering, or is likely to suffer, significant harm; and ¹ This is spelt out in the Agreed Statement of Facts document signed by all of the parties. 151026 DCFS v DE NE et al Judgment (b) that the harm, or likelihood of harm, is attributable to- (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect the parent to give to him; or (ii) the child's being beyond parental control."

¶ [7] This means that the Court must conclude, upon considering all of the relevant facts, that the preconditions in a) and b) are satisfied. As stated by Wall J in Re G (A minor) (Care Proceedings) [1994] 2 FLR 69 this section means that the Court has to be satisfied by evidence that the significant harm suffered by the relevant child is attributable to the care, or absence of care, given to the child by the parent(s) against whom the order is sought. In this context the phrase "attributable" should be given its normal meaning and does not mean merely capable of being attributed to the parent.

¶ [8] As mentioned in my judgment delivered on 27 May 2014, the DCFS initiated its protective arrangements when it sought and obtained emergency protection orders. When I consider whether any of the children are suffering significant harm I may consider the circumstances at the time when the protective arrangements commenced and not just the circumstances at the date of this hearing. At the time that the protective measures were taken the DCFS asserted that "each child had suffered significant harm to either their physical well-being, emotional or psychological development" and that they "faced a significant risk of harm due to the parenting they had been receiving". This assertion is accepted by all of the parties in the Agreed Statement of Facts. Having regard to the case of Southwark LBC v B [1998] 2 FLR 1095 when considering whether one of the children is likely to suffer significant harm, the relevant date is the date upon which the DCFS initiated the arrangements to protect the children, provided such arrangements have been continuous in place to date.

¶ [9] When I consider future harm, it is not whether I am satisfied that it is more likely than not, but that there is a real likelihood of significant harm. The House of Lords in RH and Others (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 defined "likely" to mean: "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case."

¶ [10] When considering the meaning of "is likely to suffer" Lady Hale stated in Re S-B (Children) [2009] UKSC 17, [2010] 1 FLR 1161 at para. 8: "The leading case on the interpretation of these conditions is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 2 WLR 8, [1996] 1 FLR 80. Three propositions were established which have not been questioned since. First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is: 'a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case' (per Lord Nicholls of Birkenhead, at 585F, 23 and 95 respectively)."

¶ [11] Lady Hale in RE B (A Child) [2013] UKSC 33 (para. 192) helpfully stated that the definition of harm: "is wide, but it is not infinite. The focus is upon the child suffering that harm, so upon the child suffering ill-treatment or suffering the impairment of her health or development. Ill-treatment will generally involve some active conduct, whether physical or sexual abuse, bullying or other forms of active emotional abuse. Impairment may also be the result of active conduct towards the child, but it could also be the result of neglecting the child's needs, for food, for warmth, for shelter, for love, for education, for health care. Generally speaking, however, the harm is likely to be the result of some abusive or neglectful behaviour towards the child. But this is not invariably the case, as is shown by the inclusion, by way of example, "impairment suffered from seeing or hearing the ill-treatment of another". We now know that serious harm may be done to the development of children who see or hear domestic violence between their parents.2"

¶ [12] In Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 Lady Hale spelt out at paragraph 70 that: 2 My emphasis by underlining. 151026 DCFS v DE NE et al Judgment "The standard of proof in finding the facts necessary to establish the threshold under section 31(2)3 or the welfare considerations in section 1 of the 1989 Act, is the simple balance of probabilities, neither more nor less." This was echoed by Lord Hoffmann in the same case when he stated at paragraph 13: "I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is the proof that the fact in issue more probably occurred than not."

¶ [13] If I agree with the parties that the threshold criteria has been met in relation to the children, I must follow the approach set out in s.3 of the Law when determining what orders I should then make. I must consider each child separately. Pursuant to s.3(1) the child's welfare shall be the Court's paramount consideration when determining any question with respect to the upbringing of that child. When determining what is in that child's best welfare interests, I must have regard to each of the factors set out in the s.3(3) welfare checklist. Pursuant to s.3(5) when I am considering whether or not to make an order under the Law with respect to the child, I should not make an order unless I consider that doing so would be better for the child than making no order at all. The Parties' Positions and the Orders Now Made by this Court

¶ [14] Mr. Fee helpfully summarised in his written closing submissions the issues for the Court's determination and consideration in this judgment as being: 3 Equivalent provision to s.33(2) of the Law. 151026 DCFS v DE NE et al Judgment • What arrangements, if any, should be put in place for T to have contact with her mother; • Should a residence order in relation to J be made in favour of the mother or father; • What contact arrangements should be put in place for J with the non-resident parent; • What conditions, if any should be placed upon the mother regarding her interaction with AE when the children are in her care; and • What orders can or should be made in respect of T regarding future psychological or psychiatric assistance/treatment?

¶ [15] Mrs. McCormac, the Guardian ad Litem ("the Guardian"), put it more succinctly at the outset of her evidence in chief when she said: "At the heart of this dispute is the extent of contact between T and J and the mother and the main residence for J, so my evidence will focus on these aspects." In Relation to H

¶ [16] At the outset of the hearing the parties informed the Court that the DCFS' application for a one-year supervision order for H and for a residence order in relation to H in favour of the father was unopposed by the mother, supported by the father and recommended by the Guardian. No orders for contact were sought, all the parties agreeing that any contact would resume with the mother whenever H wished it to commence.

¶ [17] Accordingly during the hearing, on 4 August 2015, finding that the threshold criteria was satisfied, recognising H’s welfare as being paramount and having regard to the no order principle at s.3(5) of the Law and the matters set out in the statutory welfare checklist at s.3(3) of the Law, I made a 12 month supervision order in relation to H naming the DCFS, with its consent\(^4\), as the supervisor and a residence order in favour of the father. When I made the orders I recognised that a supervision order is compatible with any s.10 order and it can only be made before H’s seventeenth birthday\(^5\) and expires when she reaches eighteen. In Relation to T

¶ [18] At the outset of the final hearing all the parties took the same position concerning the making of a final supervision order in relation to T as they had done with H. There appeared to be a difference of opinion in relation to the length of that order. Ordinarily a supervision order is made for up to one year, but it can be extended upon application (Schedule 3, para. 6 of the Law). Having considered all of the factors set out in paragraph 5 above I now make a supervision order for one year in relation to T naming, with its consent, the DCFS as the supervisor.

¶ [19] By the hearing on 4 August 2015 all of the parties had agreed that a residence order could be made in favour of the father. The disagreement was in relation to T’s contact with the mother. The mother sought a continuation of a flexible staying contact regime based around T’s wishes including a Friday to Sunday arrangement. The Guardian’s recommendations were adopted by the father, and \(^4\) Schedule 3 para.8 (1) of the Law. \(^5\) S.33(3) of the Law. 151026 DCFS v DE NE et al Judgment she forcefully contended that any contact between T and her mother should be supervised. Ms. Dominique Orakwue, the current social worker, stated in her report of 16 February 2015 that T and J should have supervised contact with the mother which should transition into unsupervised contact. Mr. Fee submits that, in discussions held outside of the courtroom during the hearing, the social worker’s recommendation changed to one of unsupervised contact between T and her mother. Then, during her oral evidence, Ms. Orakwue again recommended supervised contact for a period of two months, three hours on Saturday and Sundays. The Guardian and the DCFS appeared to disagree over the time frame for contact supervision, the latter indicating that it may only be for two months.

¶ [20] At the hearing on 4 August 2015 the Court considered the belated disclosure that the mother was pregnant with the child of AE, her boyfriend. In addition the Court was made aware that T had again harmed herself by taking a further overdose and that upon release from hospital she was residing with her paternal aunt, AM. As a consequence, directions were given about the filing of evidence and further submissions. In the meantime all the parties agreed that T should remain with AM, and that an interim residence order be made in favour of AM. AM attended Court and I was able to determine that she was an appropriate person to offer this respite care. I note that she has a Bachelors’ Degree in Psychology and that she was the former Director of Social Services for eleven years. The father’s residence order was suspended and the interim supervision order extended.

¶ [21] On 4 August 2015 all of the parties, save for the mother, agreed that for the time being any contact between T and her parents should be supervised. The mother contended that her contact should remain as it was before. On 4 August 2015 I ordered that the contact would be supervised, but that could be varied if the DCFS, in consultation with the Guardian, felt it appropriate. Both the DCFS and the Guardian supported this approach to the interim contact.

¶ [22] In her affidavit sworn on 10 August 2015 the mother did not comment upon or express any different view about the orders she felt should be made in relation to T. The Guardian and the DCFS, in their written submissions filed subsequent to 4 August 2015, did not change the position about the interim arrangements for T. The Guardian stated that: "T needs considerable care in order to safeguard her emotional, physical and mental development and health. The current arrangement provides the safest environment for T that she has had in a considerable time, but it is not yet possible to anticipate how long that will need to continue." My view on the evidence placed before me during the hearing and, without consideration of any subsequent events, has not changed since 4 August 2015 and I am satisfied that the arrangements put in place on that date should remain until further order.6 6 This is subject to the contents of paragraph 25 below. 151026 DCFS v DE NE et al Judgment

¶ [23] In their latest submissions both the DCFS and the Guardian contend that the Court should not, at this time, make orders requiring T to attend for assessment with a psychiatrist and a psychologist as it may be counter-productive for her welfare if forced upon her. I agree with their contention and although I recommend that a psychological and psychiatric evaluation take place, I leave it at the discretion of the DCFS in consultation with the Guardian to work with T to get her to voluntarily attend.7 As set out in his counsel’s written submissions filed on 26 August 2015, the father does not oppose such an approach.

¶ [24] It has recently been brought to my attention that, following the presentation of all of the evidence and of the parties’ submissions, there have been further concerning developments in relation to T. I have been informed that the DCFS now intend to make an application for a care order in relation to T. Due to my absence from the jurisdiction for most of September and the Chief Justice’s view that the hearing of the application for a care order should be delayed so that I be the judge to hear it, the Guardian’s absence from the jurisdiction until mid-October, the personal circumstances of the mother’s Counsel who understandably has been unable to attend court and due to the fact that the mother now appears in person as her attorneys were granted leave to come off the record by McMillan J. (Actg.) on 24 September 2015, the parties have had difficulty finding a mutually convenient date to list the application. 7 This is subject to the contents of paragraph 25 below. 151026 DCFS v DE NE et al Judgment

¶ [25] I have considered whether I should further delay the completion of this judgment pending the proposed hearing. However, due to the need for this overdue decision to be given and the uncertainty of the hearing date, I deem it appropriate to give this judgment. The parties should be aware that the orders I make herein, especially those relating to T, are based on the evidence currently before me and do not take into account the events which I may be told have followed and which may have resulted in any change of circumstances. Therefore, any order I make herein is subject to any changed arrangements that the DCFS, apparently with the consent of the parties, has put in place since the hearing. The status quo that has emerged from such recent arrangements should remain until the proposed upcoming hearing. In Relation to J

¶ [26] All of the parties take the same position in relation to making of a supervision order in relation to J as they did with T. I am satisfied that a one-year supervision order, naming the DCFS as the supervisor, should be made and I make that order.

¶ [27] The dispute is about residence and contact orders. The father, supported by the Guardian and DCFS, seeks a residence order in his favour. The mother seeks a residence order in her favour. If a residence order is granted to the father the mother seeks staying contact. If a residence order is granted to the mother she contends that J should have contact with his father from Tuesday after school until Friday morning. At the hearing on 4 August 2015 the Guardian and the DCFS contended that any contact between the mother and J should be supervised. The Guardian did not agree with the DCFS that the period of supervision should end after two months.

¶ [28] In the written submissions submitted by the DCFS and the Guardian after 4 August 2015, they commented upon the mother’s pregnancy and how this may impact J. The submissions highlighted the Guardian’s troubling concerns about J’s deteriorating behaviour, the renewed relationship between the mother and AE, and the fact that neither H or T are around when J is at either of his parents’ homes. The Guardian states: "I remain very concerned about J. There is a risk that his needs will be to some extent overlooked by all the time that has had to be invested into T (and, to a lesser extent, H) and I would recommend that there be a further review of J’s situation specifically, perhaps once he has returned to normal schooling for a few weeks." I fully endorse the Guardian’s recommendation for there to be an ongoing review of J’s situation, especially upon his return to school this term. It may be that an update about J could be given at the proposed hearing concerning the recent developments concerning T and remarked upon in paragraph 25 above.

¶ [29] The DCFS, in its latest submissions, indicates that if AE will not be residing with the mother but living elsewhere and will not be on the property when J is there or have any contact with him, it is content for J to continue his visits with the mother. If such a contact arrangement were put in place the Court has been told that the social worker would conduct unannounced home visits to ensure that AE is not present during the periods that J is there. This seems to be a different view to that expressed at the hearing, as it appears that the DCFS is no longer recommending that J’s contact be supervised.

¶ [30] The mother stated in her 10 August 2015 affidavit that AE will not be coming to live with her after the baby is born. The mother confirms that they are in a relationship and that after the baby is born he will want to come and help look after the baby, spend time with the baby, but will not be moving into the house. She says that AE coming to the house “will have to happen” after the baby is born. She went on to say that if the Court remains of the view that she and AE should not be together when J and/or T are with her, then she will abide by such a requirement.

¶ [31] Although, I share the Guardian’s concerns about the mother’s relationship with AE arising out of the contents of the mother’s affidavit in support of her application for a protection injunction, the breaches of that injunction and her unsatisfactory explanations for the same and about why J has come into contact with AE, I am not satisfied that it would be in J’s best interest for contact to be restricted to supervised at this time. The frequency of the contact would be too greatly reduced. However, having regard to the mother’s pregnancy and her apparent need for even greater support from AE due to the pregnancy, I am of the view that the current arrangements should be varied. A residence order should be made in favour of the father where J is more settled. J should have contact with his mother from Friday after school until Sunday evening. This should happen on three weekends out of every four, so that the children can have at least one weekend per month all together at the father’s property.

¶ [32] When making this residence and this contact order I also have regard to J’s poor behaviour at school after his visits with the mother. I am satisfied that he is more settled at his father’s house and there will be less disruption if J is with the father and siblings during the week.

¶ [33] The mother should take notice that if J’s conduct at school remains poor on the Monday after a contact weekend or AE comes into contact with him whilst he is in the mother’s care, then the arrangements I have now ordered will change, even to the level of supervised contact.

¶ [34] All of the parties recognise the importance of maintaining inter-sibling contact if the children are not placed within the same household. Although the parties did not outline the specifics of this contact during the hearing, I have addressed this important consideration when making the order set out in paragraph 31 above. In Relation to any Ancillary Orders

¶ [35] AE has been a significant, yet not positive, figure in these proceedings. I will address his involvement more fully later on herein. On 26 March 2015 AE gave an undertaking not to contact any of the children. He was bound by the terms of the undertaking until the final determination of these proceedings. As the proceedings in relation to H came to an end on 4 August, it is arguable that the undertaking that he gave in relation to her came to an end at the same time.

¶ [36] With this in mind I considered the English Court of Appeal decision in *Re H (Prohibited Steps Order)* [1995] 1 FLR 638 where it was held that a person referred to in the definition of a prohibited steps order included a person who was not a party. Having considered the welfare checklist and the incidents of violence in the household involving AE and the mother witnessed by the children\(^8\) and the likelihood that he would be attending more frequently at the mother’s property due to her pregnancy, I made an interim prohibited steps order preventing AE from having any contact with the children. I felt and still feel that such an order to be in the children’s best interests to facilitate the framework of contact be put in place for J and his mother and to ensure that AE does not come into contact with J and T. This is a binding court order and if breached by AE, or if a breach of it is encouraged by the mother, then the mother’s contact arrangements will J will be promptly varied.

¶ [37] Although I had heard from AE during the hearing about the incidents and given him the opportunity to address the Court about whether or not he should come into contact with the children, because I had not afforded him the opportunity to specifically address the making of a prohibited steps order, the orders made on 4 August 2015 were only interim orders. \(^8\) See paragraph 9 Agreed Statement of Facts. *151026 DCFS v DE NE et al Judgment*

¶ [38] As AE was called as a witness for the mother and as he is in regular contact with the mother, I invited Mr. Fee to inform AE of his right to attend at Court to make submissions concerning the continuation of the prohibited steps order. I note that in his closing submissions Mr. Fee stated that the mother was willing to abide by whatever condition the Court believed to be necessary in respect to AE. Procedural Background

¶ [39] To put the current proceedings into context, it is necessary to outline the procedural background and it is therefore convenient to repeat some of the detail set out in the May 2014 judgment. DE and NE’s Marriage

¶ [40] The mother and father have been married to each other twice. Their first marriage was dissolved in March 2004. They remarried in August 2009, but on 24 September the following year NE petitioned for divorce. The Petition was proved on 23 October 2010. They remain married pending determination of the children issues and the ancillary relief proceedings. Following the mother and father’s separation, and prior to the protective measures taken by the DCFS on 17 April 2014, all three of the children lived with the mother. Private Law Children Proceedings

¶ [41] On 26 January 2011, in private law and pre-Children Law proceedings, Quin J. granted interim care control9 to the mother with interim staying access for T and J 9 Order made prior to enacted of Children Law. 151026 DCFS v DE NE et al Judgment with the father. It appears that Quin J. was not asked to make any orders in relation to H.

¶ [42] At the hearing on 29 March 2012 the Chief Justice primarily dealt with financial ancillary relief matters, but he also referred to children issues in his judgment. He noted that the care and control of the children had been vested in the mother by consent and that the terms of access had "been agreed and defined for expression in the written order to follow." The final order contained a comprehensive access order. T and J were to have alternate weekend contact with the father from 10:00AM on Saturday until Monday morning and some midweek contact. The parties agreed half of all school holidays, Christmas arrangements, the sharing of the children's birthdays and arrangements for the mother and father's birthdays and Mother's Day and Father's Day. The final order reflected that the parents also agreed joint custody.

¶ [43] On 30 November 2012 the Chief Justice approved the draft final order with a slight amendment in relation to the midweek access. Although the financial orders made by the Chief Justice were appealed, it is evident that the children issues had been fully resolved.

¶ [44] The private law proceedings only returned to Court after the Court of Appeal had ruled on the disputed financial matters. On 25 February 2014 the mother filed a summons seeking leave to take the children on holiday to Honduras and orders relating to the renewal of H's passport. The application was opposed. On 27 March 2014 directions were given for the parties to contact the Listing Officer and to fix a hearing in relation to the temporary removal application and a hearing for the outstanding ancillary relief financial issues. The removal application was the only outstanding issue in the private law proceedings in relation to the children. PUBLIC LAW PROCEEDINGS Background Leading Up to the Making of the Ex Parte Emergency Protection Orders on 17 April 2014

¶ [45] The DCFS applied for emergency protection orders ("EPO") in relation to all three children on 17 April 2014. The Form C11 Supplement was completed by Ms. Carla Court, the then allocated social worker. In the form the DCFS set out the ground for the application as being that there was reasonable cause to believe that the children are likely to suffer significant harm if they are not removed to accommodation provided by or on behalf of the DCFS. At paragraph 2B in the Form C11, the DCFS indicated that enquiries were being made about the welfare of the children under s. 50(1)(b) of the Law and those enquiries were being frustrated by access to the children being unreasonably refused to someone who was authorised to seek access and there was reasonable cause to believe that access to the children was required as a matter of urgency.

¶ [46] The reasons for the application were set out in paragraph 5 of Form C11. To summarise, the reasons were the nature of the relationship between H and the mother which included physical confrontation between them and resultant injury to H. In addition there were concerns that the children had witnessed incidents of domestic violence between the mother and AE and that H had been drawn into one such incident.

¶ [47] On 17 April 2014, an eight day emergency protection order was granted in the Summary Court. The DCFS was authorised to remove the children to accommodation provided by or on behalf of them and to prevent the children from being removed from that accommodation. Background - The Summary Court Following the Making of the Ex Parte Emergency Protection Orders on 17 April 2014

¶ [48] The EPOs were served on the mother on 17 April 2014. At that time all three children were removed from her care and placed with father, where they remained until the matter came before the Grand Court on 1 May 2014.

¶ [49] At the next hearing, which came before Magistrate Foldats on 25 April 2014, the DCFS sought an extension of the EPOs. The Learned Magistrate, with the consent of the parties, extended the EPOs for a further seven days. It appears the Learned Magistrate may have been misinformed by those in attendance at the hearing that there were pending private law residence order proceedings in the Grand Court. As a consequence, the Magistrate decided that the public law proceedings should, following the making of the extended EPOs, be transferred to the Grand Court. Background Following Transfer to the Grand Court

¶ [50] When I became seized of the matter, I immediately put in place enquiries to locate a Guardian ad Litem for the children. Mrs. M. McCormac was available and she was appointed on 1 May 2014. On 29 April 2014 the DCFS’s Form C2 Application was filed and issued. Although the face of the document continually referred to interim supervision orders, all of the parties accept that the Application Form was filed in pursuance of an application for full supervision orders.

¶ [52] The threshold criteria and the making of supervision orders were not opposed at the hearing before me on 1 May 2014. Despite this, I was still required to consider the evidence placed before me. When I then considered that evidence, and when I go on to consider the additional evidence now before me, I note that in the Children Act 1989 Guidance and Regulations, Volume 1, Court Orders, para. 3.37 issued by the Department of Health in 1991 the following is stated: "The child’s version of events may form an integral part of 'reasonable grounds for believing' as could, for example, medical evidence that certain symptoms were consistent with abuse. After further assessment this may be rejected at the full hearing. Court findings of fact leading to the making of interim orders should therefore not be binding on the court at the final hearing, and should not be regarded as prejudicial to any of the parties to the proceedings."

¶ [53] I also note the following helpful guidance, drawn to my attention by the Guardian, given by Lady Hale at paragraph 20 in *Re W (Children)* [2010] 1 FLR 1485: "It is, of course, not unknown for children to make false allegations of abuse. But it is also not unknown, indeed it is believed to be more common, for children to conceal or deny the abuse which is happening to them. They may have been 'groomed' to believe it normal and natural. They may have been threatened with dire consequences if they tell the secret. They may be perfectly capable of working out for themselves that making a complaint will lead to pain and distress for all concerned and probably to the breakup of the whole family. These are powerful deterrents to coming forward or persisting in complaints. It is as much for this reason as for any other that the family justice system has sought to minimise the deterrent effect of its own processes. Were requests for children to give evidence to become routine, the uncertainties which this would generate would add to the deterrent effect both in individual cases and in general." Factual Background Leading Up to the Making of the Interim Supervision Orders and Ancillary Interim Orders Made in May 2014

¶ [54] Upon reviewing the evidence I was satisfied that there were reasonable grounds for believing that each child's circumstances fulfilled the criteria for the making of full supervision orders. The reasons for my decision to make interim supervision orders and ancillary interim orders were set out in my detailed judgment dated 27 May 2014. As it is relevant to the current determination, for convenience, I herein repeat significant portions of my review of the evidence set out in that judgment.

¶ [55] On 11 December 2013 a referral was made from T’s school that a teacher had witnessed AE inappropriately kissing T on the mouth. This allegation does not seem to have formed a part of Ms. Court’s ongoing investigation, nor has it ever been put forward as a reason for making a supervision order.

¶ [56] On 14 January 2014 a referral was received by the DCFS from a counselor at H’s school stating that H had disclosed that she and her mother fought often and that her mother became aggressive both verbally and physically towards her. When Ms. Court met with H and T on the same day to discuss the report, she gained the impression that they sought to minimise DE’s behaviour. H indicated that DE had got angry during a row arising out of her refusal to let H attend a party. H said that they had been arguing and that her mother pushed her on the couch, putting her hands on her throat for a few seconds. T did not give great detail about the argument at the time, but did say that her mother went out with AE and that she could smell alcohol on her breath on her return. It is clear that the mother and AE’s damaged and violent relationship was often fueled by them drinking alcohol.

¶ [57] On 12 February 2014 the DCFS received a further referral from a counselor at H’s school. The DCFS was informed that the counselor had seen her with a “busted lip” and that H had told him it had been caused during a confrontation with her mother during which her mother had pushed her from behind causing her to fall and hit her lip. The counselor stated that H had asked him not to inform her mother of her report to the school.

¶ [58] On 17 March 2014 a further referral from H’s school was made. It concerned a physical altercation between the mother and AE in which the counselor had been informed by H that the mother had an injury and “blood was spilt.” H had told the counselor that she had to get involved, by stepping in between the two adults during the fracas. She told the counselor that she had had to use a beer bottle to hit AE on the head and the shoulder, which caused him to stop and leave the property. The counselor was aware that, despite this incident, AE had returned to the property a week later. The mother in her affidavit said that she was not cut and there was no blood on the scene. The mother also said that H did not get physically involved in the argument, but simply shouted at AE.

¶ [59] Towards the end of March 2014 the counselor at H’s school reported to the DCFS that there had been a kitchen fire at the home whilst the mother was working. H had called 911 and sent a text message to AE to ask him to contact her mother because she did not have credit on her phone. The counselor was concerned that the children did not have emergency access to their mother. It is also concerning that the children did not have appropriate adult supervision at the home at that time.

¶ [60] On 17 April 2014 the counselor at H’s school reported to the Department that H had told him about another major altercation between her mother and AE in the early hours of the morning. The counselor was told that H was the only child at the home. She told the counselor that the adults were drinking alcohol and a very violent fight occurred. H reported that AE pushed and hit the mother in the face and her mother was throwing glass items at the floor in front of him and hitting him with a broom. H said that AE had started hitting her mother in the face in the yard and, yet again, she had had to intervene to break up the fight, this time using a broom. H said that the police arrived at the scene.

¶ [61] The police incident report records that AE had told them that there had been an argument with the mother during which glass had been smashed and that both parties had got physical. The mother told the police officers that she had seen AE when she was at a bar in George Town. She said that they had been drinking and that he took her to her home. The mother said that he had asked her for sex and she refused. She told the police that he then became abusive and grabbed her, punching her in the face and that he then left the location. The police took photographs of her injuries.

¶ [62] At the interim supervision hearing Ms. Court stated that, when she met with the mother and AE at the Department Office in West Bay to talk about the various incidents, both of them "emphatically denied" that any of the children had witnessed domestic violence or that either of them drank to excess. I accept that this most troubling denial took place and it is not the only time during these proceedings that the mother has wrongly denied events or her actions, only changing her position when the available evidence makes such a position no longer tenable.

¶ [63] On 28 April 2014 Ms. Court interviewed H and T separately to try and obtain further information regarding all of these incidents. She felt that on this occasion the girls were more forthcoming with information.

¶ [64] Ms. Court rightly contended that the nature of H’s relationship with her mother is unhealthy, relying upon the evidence of a number of violent disagreements between them within a relatively short period of time, during which the mother has caused physical harm to H. Ms. Court highlighted the mother’s inability to properly care for the children due to evidence leading her to believe that the mother was drinking excessive amounts of alcohol which in turn led to violent altercations and H having to take on some of the parenting roles in the household. Ms. Court also rightly contended that the children had suffered emotional harm due to the mother’s threats to them, and they were fearful of what she may do.

¶ [65] The counselor had highlighted that the children had become wary about discussing with him what was happening in the family home, because they had come to realise that he would pass the information on and as a consequence the adults would have to be questioned about it. Ms. Court indicated the children refused to speak with her for two and a half weeks. She said she became aware that the children were fearful that, if they continued to discuss these matters, their mother would find out and there would be consequences for them. This highlights one of the understandable concerns of the Guardian that H and, in particular, T have on a number of occasions been obligated, at the request of the mother, to withhold information and even to lie to the professionals involved in this case. In my May 2014 Judgment I was rightly concerned that if H and T were to reside in the mother’s property this might hinder the investigation then being carried out by the Department and the Guardian.

¶ [66] In her affidavit evidence before the Court at the interim supervision hearing, the mother accepted that she and H had arguments, but said these were caused due to her trying to appropriately discipline and protect her. The mother denied in the affidavit evidence that she had ever been physically aggressive or violent to H in the way that is described in the application.

¶ [67] At the 1 May 2014 hearing I found the mother’s denial about the nature of her altercations with H to be concerning. I noted the mother’s denial about H getting physically involved in the fracas on 17 March, because in her affidavit, the mother related that she and the children were “very close and have a loving relationship” and that they “get on great” together and “have lots of fun together.” She said they have a “normal family life.” The mother’s expressed views were and remain highly inconsistent with the worrying reports which had been made by H to the school counselor and to Ms. Court. She wrongly attempted to minimise the seriousness of their exchanges, and exhibited an inability to recognise how fractured her relationship with H is and the risk to the children from her unhealthy relationship with AE.

¶ [68] In relation to the 11 January 2014 incident, H told the social worker that she and her mother had a row concerning her being able to go to a party. As the argument progressed the mother made disparaging remarks about H’s biological father. She said that her mother “got in her face” and was yelling and calling her names. H admitted that she rolled her eyes towards DE, following which she said her mother slapped her in the face really hard. H said that she responded by swinging a plastic ketchup bottle at her mother, which hit her. H told Ms. Court that her mother grabbed her hair and proceeded to hit her in the face several times with her fist. H said that T ran from the kitchen to get AE to help because she was scared about how bad the fight had become. H said that she tried to back off by moving back towards the living room, as her mother was being so physical with her, but she fell back onto the couch and her mother then came at her and started choking her. She said that she started hitting her mother in the face and tried to push away and that, in the end, AE had pulled her mother off her. H said that she then went up to her bedroom at which time the mother came up to the room and started hitting her in the head on more than one occasion. H told Ms. Court that this was the last time that her mother had hit her so many times and so severely.

¶ [69] During the 28 April 2014 interview, H told Ms. Court about the 12 February incident. Initially H had said that she and her mother had an argument, and when she turned away from her mother, her mother had pushed her from behind causing her to fall on the floor and bust her lip. However, during the April interview H told Ms. Court that she did not fall from a push by the mother, but that the injury had been caused by the mother punching her in the face. Troublingly the mother was asked by the social worker about how H received the injury and initially said she was unaware about how this could have happened. I noted at the May hearing that the mother stated that H’s injured lip was caused by her swinging the back of a hand towards H and catching her on her lip. The mother said that the lip was not cut and did not swell up. However, both the school counselor and the social worker noted the injury on the lip. During cross-examination by Mrs. Bothwell during the current hearing, although confused about which of the heated exchanges it was with H, the mother said that she had hit her in the mouth when she was disrespectful to her.

¶ [70] During the current hearing, the mother still disagreed with H’s reports concerning this and other incidents stating: "The majority of what (H) says is untruthful, majority she is a liar." Interestingly she also went to say "greater part of what (T) says means that she is a liar in some things, I not say in all." When considering these statements in the context of the reported nature of her relationship with both of these children, they highlight how dysfunctional it is. The mother even said similar in relation to J during the hearing, namely: "When he say he was hit on the bottom (by AE) he not tell the truth, as he never around, when he say he kicked him in the head that not true, when he said (AE) taking to the beach." Apart from the concern this raises about J coming into contact with AE, this also illustrates a similar unhealthy trait developing in her relationship with J.

¶ [71] During the hearing I informed the mother that I was firstly concerned about the detail of the incident and secondly by the fact, that if the mother was right, both H and T were telling such significant and serious lies. The mother, in answer, explained that she felt that they were both lying so that they could live at their father’s because they would be given more liberty there than at her house. I found this to be a very concerning reply, because it showed no insight about the seriousness of the situation and emotional harm that the children were suffering due to her continual blaming of them and not accepting that she herself was, at the very least, partly at fault.

¶ [72] I do not share the alarming view which the mother expressed in May that the incidents reported to the Court could be viewed as being a very small number of isolated incidents. A number of serious and unacceptable incidents occurred within a short period of time and the mother has given inconsistent accounts as to what happened.

¶ [73] At the 1 May 2014 hearing Ms. Court rightly stated that she was worried that the mother was placing her own emotional needs before the needs of the children. She reached this conclusion as she then correctly believed that the mother had a history of allowing AE back into the household despite the violent altercations between them, some of which H has had to intervene in. She said this has put not only H at particular risk of physical harm, but placed all of the children who may witness an incident or who may be drawn into the same, at risk of both physical and emotional harm.

¶ [74] This is a serious concern that still exists, especially as I am satisfied that, despite the injunction being obtained by her, the mother clearly failed to break her ties with AE, continuing to rely upon him for financial and emotional support. She stated in cross examination that AE is: "loving and understanding – (AE) helped me a lot – groceries, money the car. Sentimentally he help me, (he) filled the vacuum for my children for all 3 of them. ...If I say I without food, he go buy it. If I need cash and if he has it I will get it." She then went on to say that AE is "a good influence on my children, very loving and very responsible."

¶ [75] The mother, in her affidavit sworn on 30 April 2014, agreed that the details of the 17 April incident were generally accurate. Importantly, she told the Court in May 2014 that her relationship with AE had ended and that she wanted nothing more to do with him. Despite this, the mother had still not applied for an injunction to restrain him from coming to the property. At the hearing Ms. Court indicated that there had been more than one incident with AE and yet, until the child protective actions were taken by the DCFS, the mother always allowed him back into the property. Ms. Court was at the interim supervision hearing insightfully concerned that this pattern would continue.

¶ [76] In her affidavit evidence before the Court on 1 May 2014, the mother said that she had not spoken to AE since the children had moved to the father's property. However, on the first day of the hearing the DCFS informed the Court that they had received information that the mother and AE had very recently been seen together in public. At the hearing I felt that this situation required careful monitoring as I was concerned that, if the mother was maintaining this unstable and physically harmful relationship, she was prioritising her own emotional needs over the children’s safety. Events since the interim hearing have shown my and Ms. Court’s concerns to be well-founded. The mother is incapable of ending her relationship with AE or fully comprehending how her inability to do so negatively impacts the children. This leads to my inevitable finding that the mother, although she may say the opposite and tries for a short time after each hearing to create the impression that she had separated, frequently prioritises her own emotional needs over the children’s welfare. Findings and the Threshold Criteria Set Out in 27 May 2014 Judgment

¶ [77] Having regard to the evidence about the violent and “disturbing” incidents in the home witnessed by and involving H, I was satisfied there were reasonable grounds to believe that the circumstances, in respect to H, set out in s.33(2) were made out. I found that there were reasonable grounds to believe that the harm was both physical and emotional. I noted at paragraph 80 of my judgment that: “The mother characterises the incidents as being a very small number of isolated incidents. However, I do not share the view that they are either a very small number or isolated. The allegations are of a number of incidents within a short period of time and are most concerning in nature. It does appear that the mother in her affidavit seeks to minimise the serious nature of the reports.”

¶ [78] In relation to T, the fact that AE had been permitted by the mother to return to the property after incidents of violence satisfies me that the reasonable grounds for believing are also made out in relation to likely physical and emotional significant harm. I was concerned that health issue and violent nightmares being experienced by T were likely as a result of her experiences within the mother’s home.

¶ [79] In relation to J importantly, and as it has now turned out insightfully, I stated that: "I am concerned, until there is greater clarification concerning the mother’s ability to keep the boyfriend away from the property, from herself and from the children that there are reasonable grounds for believing there is a likelihood of J suffering physical and emotional harm. I require her to seek a protection order preventing her boyfriend from coming to the property or having any contact with her wherever she may be. If this is done and thereafter she ensures that she does not facilitate any breaches of the terms of the order, she will be better placed to have J return to live with her." It is important to remember that, prior to the hearing on 1 May 2014, the DCFS had recommended that a residence order be made in relation to J in favour of the mother, but this changed at the start of the hearing due to information received about AE’s continued interaction with the family.

¶ [80] I concluded that that the harm was attributable to the lack of care given to the children by the mother, which fell below what it would be reasonable to expect a parent to give.

¶ [81] I considered the welfare checklist at the 1 May 2014 hearing. I found that T and H wished to reside with each other and they had concerns about possible repercussions against them from the mother as a consequence of the disclosure about events that occurred in the household. I had concerns about the mother’s ability to meet each child’s physical and emotional needs and elevate them above her own. I was satisfied that the children had coped well with the move to the father’s home. When deciding what orders to make I had regard to each child’s age, sex and religious persuasion. It is significant, and I had hoped that the mother would have carefully noted this and acted upon it, I stated the following in relation to J: “It is likely that having regard to his age and his bond with the mother, if the mother is able to satisfy the Court that she will ensure that her boyfriend will no longer be returning to the property or having any contact with her and/or the children, he could return to her care.” I also added that “J, subject to the mother excluding the boyfriend for the property, it may be that she will be better able to meet J’s needs.” Alas for reasons already touched on herein and to be further addressed, I find that the mother has failed and is simply unable to heed this clear indication given to her. Interim Supervision, Residence and Contact Orders Made in May 2015

¶ [82] I was satisfied that supervision orders were required to ensure the safety of each child, as they would enable the DCFS to actively intervene and assist the family. On 1 May 2014 I made a three-week supervision order for J and eight-week supervision orders for T and H. I note, on a review of the file, that on 16 May 2014 there was a further hearing to deal with issues concerning J. On 16 May 2014 I ordered that the interim supervision order made in relation to J be extended for a further 4 weeks and when it expired, if then further extended, it should be made to expire on the same date as T & H’s orders. My reserved judgment circulated on 27 May 2014 relates to the three week supervision order made on 1 May 2014.

¶ [83] On 1 May 2014, as reflected in my reserved judgment of 27 May 2014, I found that it was in each child’s best interests for an interim residence order to be made in favour of the father. I ordered that J should have week day contact with his mother after school between 3:00PM to 5:30PM and, if possible, on at least one day over the weekend. I felt that contact should be reviewed and this is why the interim supervision order for J was made for only three weeks.

¶ [84] On 16 May 2014 I extended J’s interim supervision order and, following the Court being informed that the mother had applied for a non-molestation and exclusion order against AE, I acceded to the DCFS’ recommendation that J should reside with the mother and have regular contact with his siblings and his father, usually from Tuesday afternoon until Friday morning. When agreeing, I accepted the social worker’s assurance that the DCFS would closely monitor J in that placement.

¶ [85] As Ms. Court offered, at the hearing on 16 May 2015, to facilitate supervised contact on a voluntary basis in relation to T, I ordered supervised contact to take place at least twice a week. I added that, if all the parties agreed, the Guardian being well placed to share the wishes of T about contact with the parties, the frequency and nature of the contact could be varied. The contact soon after the hearing developed into T regularly staying with her mother on the weekends, for extended periods during school vacations and that this is partly driven by T’s wishes to see her mother. Procedural Background Following the 16 May 2014 Hearing

¶ [86] Following the 16 May 2014 hearing interim supervision orders were in force in relation to all three children. There was a residence order made in the mother’s favour for J. There were residence orders made in the father’s favour in relation to H and T. The DCFS was directed to prepare letters of instruction for a psychological assessment for T and H, which were to be perfected with the other parties. The Court, when shown the perfected letters, would then consider whether to make an order giving leave for T and H to be seen by the psychologist. A report dated 10 October 2014 was filed by Diane Shultz, educational psychologist, in relation to T.

¶ [87] On 20 June 2014, 18 July 2014 and 25 August 2014 the interim supervision orders were extended.

¶ [88] Although the papers in the injunction file are confusing and incomplete, it appears that on 13 May 2014 Quin J. made a non-molestation order, a no contact order, an order prohibiting AE from coming within 150 feet of the mother and an order excluding AE from entering or coming within 100 yards of the mother’s property. When the return date came on before me on 31 October 2014 the order, unopposed by AE, was extended until 31 October 2015.

¶ [89] On 2 January 2015 Ms. Orakwue took over from Ms. Court as the allocated social worker to this family.

¶ [90] At the hearing before me on 9 January 2015 the parties agreed that there should be a residence order made in favour of the father in relation to H and T and that the threshold criteria had been made out so a supervision order should be made to the DCFS in relation to all three children. There remained a dispute between the mother and all the other parties about whether a final residence order in relation to J should be made to her or the father. There was no agreement about the level and type of contact for the mother to the children, especially due to concerns held by the Guardian. As it appeared that the issues had narrowed and that the parties would present their case focused on the limited issues, directions were then given to only a two to three-day final hearing.

¶ [91] The hearing commenced on 19 February 2015. Thereafter the Court received 16 days of evidence which, due to the full court lists, was spread over four months. During the hearing, on 26 March 2015 AE gave the above-mentioned undertaking not to contact any of the three children. At the close of the evidence on the 5 May 2015 the parties were directed to file their written submissions by or on 8 June 2015. Unfortunately, the written submissions from the father were not received until 22 July.

¶ [92] As outlined in paragraph 12 above, the Court of its own motion requested the parties to attend on 4 August 2015 to address the issues resulting from the late and very recent disclosure of the mother’s pregnancy with AE’s child, and from intervening events concerning T which the Guardian wished the Court to be made aware of. The mother was directed to file her affidavit dealing with her pregnancy by or on 10 August 2015 and the other parties were given leave to file written submissions concerning the developments by or on 17 August 2015, thereby putting the Court in a position to complete this judgment.

¶ [93] The mother’s affidavit was filed on 10 August 2015. She informed the Court that the baby was due on 21 November 2015 and confirmed that AE is the father. She also confirmed that she had been in a relationship with him since December 2014 and stated that the relationship had been very good since then as the past difficulties no longer existed. The mother stated that there had been no incidents since April 2014. She confirmed that she first became aware of the pregnancy in April/May 2015.

¶ [94] In her affidavit the mother stated that there will be no change in her living arrangements when the child is born. She said that the children were her first priority and that she would not do anything that would prejudice her relationship with them or them spending extended periods of time with her. She stated that she understood why the Court had put restrictions in place that is why she said she is taking things slowly in her relationship with AE. Having regard to events over the past year the mother surprisingly says that she believes that she and AE have shown that they will comply with court orders concerning him coming into contact with the children. She reiterated that she would abide by any requirements the Court deems to be necessary as the children of a priority. Although saying she would comply with any order of the court, the mother during her evidence in chief on 16 March 2015 said that she felt that the injunction should be removed, that AE should see the children because she did not think he would harm them as he had "changed a lot". The mother stated that she had learned a lot from her counseling and the program she had attended at the Family Resource Centre. I note that the Centre commended her and gave her an award for successfully completing the program. She said that AE had also attended courses and that she felt that he also had benefited from them.

¶ [95] The written submissions prepared on behalf of the Guardian were filed on 14 August 2015 and those for the DCFS were filed on 17 August 2015. The submissions prepared on behalf of the father were belatedly filed on 26 August 2015. Additional Review of the Evidence

¶ [96] Although the mother’s pregnancy and in particular T’s recent incident of self-harm have added a further dimension to the case which will require further review and assessment after this judgment, I am satisfied that it is appropriate to make the orders outlined earlier in this judgment, although they should be read in light of my comments in paragraph 25 above. Although the outcome of this hearing may not have the finality that was hoped for due to recent events, I am of the view that it is appropriate for the past evidence to be reviewed and dealt in this judgment. Any relevant findings will then be on the record for future hearings and will therefore not need to be re-argued at a later date.

¶ [97] As I stated earlier in this judgment, and as it appears acknowledged by the parties by the nature of their written submissions I need not make findings on every factual issue placed before me. When reviewing the evidence I have recognised the importance of focusing on the concerns that led to the DCFS involvement.

¶ [98] A significant concern is the mother’s inability to detach and/or, as illustrated by her actively encouraging the breach of an exclusion order made to keep AE away, recognise the need for her to detach herself from an abusive relationship and the resulting risk for the children. There are also concerns emanating from T and H’s unsettled childhood again primarily due to frequent moves caused by the mother facilitating her then relationships. There are also concerns about the mother’s parenting ability as exhibited by the nature of her fractious and sometimes violent relationship with H, her using the children to tell lies to professionals and report back to her the events in the father’s house, the over mature behaviour and appearance of T and the troubling behaviour of J at school after he spends time with his mother and the troubling behaviour of J after he has been staying with her.

¶ [99] Although I have already commented on her relationship with AE, it requires further analysis. The mother relied upon the contents of her affidavit sworn on 14 July 2014 during both injunction hearings. AE during his oral evidence submitted that there was an incident involving him, the mother and H, that he did not agree that all the things in the mother’s affidavit was true, saying that it was a one-off incident. I am concerned that he fails to recognise how violent and damaging their relationship had become. He felt that the mother had painted a bad picture of him in the affidavit as she was hurt because the children had been taken away from her. He said that he did not see their relationship as a risk to the children. Sadly, this shows a lack of insight in relation into the nature of their relationship and the effect of what happened between them on the children.

¶ [100] In her affidavit the mother indicated that she and AE had separated after the incident on 17 April 2014 when he was “violent towards her.” The mother stated that AE had been “aggressive and physically abusive to her on a number of occasions over the last few months” and it was getting “progressively worse” and she was “afraid” that she would end up “getting seriously hurt”. She mentioned the incident in November 2013 when, during an argument at the home, he was “pushing and shoving” her around the house during which she felt very afraid of him and that he would really hurt her. She stated that he was "getting more aggressive and angry" and that he grabbed a large cooking pot and swung it at the door damaging the door. The mother said that she telephoned the police and made a report. In the affidavit she stated that after that incident she "noticed a change in him" and he was "becoming more aggressive and would argue more often". She stated that there had been "a number of arguments in 2013" where he became "very angry" and that she was afraid for her safety. She highlighted that many of the incidents occurred after AE had been drinking are and that it was "impossible to reason with him or calm him down" and that she had felt "extremely vulnerable and frightened at what he could do."

¶ [101] In the affidavit she stated that "usually" the incidents had taken place when the children were not at home but "occasionally" it happened when "they\(^{10}\) have been there, in particular H." She said that H had "seen him become aggressive and physical" with her and that she had even "tried to intervene to help her on a couple of occasions by shouting at him and telling him to leave." She recalled this happening in one particular argument on around 17 March 2014. She said that "I was very upset that (AE) had once again become violent with me, but also that (H) had seen this and felt she needed to try to protect me. I want to make sure that the children are never exposed to this again."\(^{11}\)

¶ [102] In her affidavit the mother went on to say that this happened again on 17 April 2014 and that this was "the most serious incident." She stated that she had been \(^{10}\) My emphasis. \(^{11}\) My emphasis. 151026 DCFS v DE NE et al Judgment out and returned to the home with AE and he started telling her that he wanted to have sex. She said no and he kept saying that he wanted it and as she continued to refuse he began pushing her, grabbing her and the hit her in the face. She said she tried to defend herself and grabbed a glass photo frame and tried to use it to hit him to get him away from her. She said it fell onto the floor and smashed and that he kept coming at her so she grabbed a broom and tried to use it to defend herself. She said he continued hitting and grabbing her and they ended up in the yard outside. She said that H was there and saw this and that H grabbed a broom and tried to use it to help her get AE off her. She said that she was hurt in the incident and her eye was cut and swollen. She said that after the incident AE had attended the property knocked on the window at night and that she was very afraid of what he might do that is why she was seeking the injunction.

¶ [103] In the police report exhibited to the affidavit, the mother stated that she been at the Havana Bar and that is when she saw AE. She said that they both drank before he took her home.

¶ [104] She acknowledged that it was made clear to her at the hearing on 1 May 2014 that she needed to obtain protection for herself and that she must do so to be able to demonstrate that her relationship with AE was finally over. She also acknowledged that AE’s behaviour towards her was one of the concerns that the DCFS had about returning the children to her care.

¶ [105] During cross-examination on 16 March 2015 she spoke about the April incident and informed the Court that, when they went home in the early hours of the morning, she refused to have sex with him. She recalled that he hit her causing her to fall to the floor and leaving her with black and blue eyes. He grabbed her so hard that she was left with fingerprint marks on her arms and it was at this stage that H stepped in, telling him to leave the home. She said that he laid hands on her again and that she picked up a broom to try and defend herself, but he managed to hit her again in the face, at which time H tried to get in between them. She said she defended herself with a glass frame and that the glass broke. Even on the mother’s version of events evidence, which is not consistent with H’s, this was a very disturbing incident and clearly resulted in significant harm, particularly emotional and most fortunately in the circumstances not physical, to H.

¶ [106] During her evidence on 24 March 2015 she said that she viewed the relationship between her and AE as being a lasting relationship. She stated that she “sees her future” with AE, but not at the cost of her children. She still failed to recognise the nature of her abusive relationship, because she reiterated that she wished the injunction to be withdrawn and she saw “no reason why AE should be prevented from seeing the children.” AE also stated his concerns about the injunction remaining in force.12

¶ [107] Despite the highly troubling content of her affidavit and oral evidence outlining what the mother said happened to her at the hands of AE, and therein clearly 12 Paragraph 13 AE’s affidavit sworn in February 2015. 151026 DCFS v DE NE et al Judgment stating that she recognised the concerns of the DCFS and the importance of protecting herself and the children from AE all being relied upon as late as injunction hearing on 31 October 2014, it is disturbing that even on her own evidence by December 2014, less than two months after the filing of the affidavit, she and AE state13 that she was back in a relationship with him and that shortly thereafter, sometime in February 2105, she became pregnant with his child. My view has not changed since the substantive interim supervision hearing, in fact it has been vindicated by her actions, it is abundantly clear that she is unable to prioritise the children over and above her need to remain in this historically abusive relationship. The Guardian in her oral evidence with some conviction firmly stated that: "When it comes to making a difficult decision, the evidence shows that (the mother) will decide on what she wants and not what is best for the children. It has been shown that she is willing to disregard court orders and in effect allowed things to happen that will conceal what she really intends to do."

¶ [108] When I reach my conclusion about her failing to prioritise the children’s needs, I have regard to the fact that the mother knew about her pregnancy in April/May 2015. This hearing came before the Court in May 2015, but she chose not to relay this highly significant information to the Court. The first she mentioned it was, when really she had no other option but to do so, via her attorney in June 2015, at least 8 weeks later. Having regard to the fact that she could have been in no doubt about the real concerns about her interaction with AE, it was unacceptable for her 13 Paragraph 8 AE’s affidavit sworn in February 2015. 151026 DCFS v DE NE et al Judgment to fail to disclose this to the Court, the Guardian and the DCFS far sooner. This is on the background of her saying "as previously explained, I was pregnant in 2014." It seems that it was her second pregnancy the father having become aware of the first in December 2014 when J told him about the first baby being lost before birth. Therefore, even during the final hearing she has still withheld information and made belated disclosures, which unfortunately characterises her approach with the professionals and the Court. When that is put in context with her inconsistent and sometimes selective disclosure it affects the reliability of her evidence as well as the Court’s confidence when considering her stated promises to prioritise the children and not expose them to risk of harm, especially if they are with her for extended periods of time.

¶ [109] I also have regard to the fact that the mother travelled with AE to Honduras. On the balance of probabilities, I find the mother’s evidence about this to be implausible and her failure to admit and disguise the ongoing relationship to be most concerning. On the night before the flight she says she attended at AE’s father’s house as she happened to be in the area as she was up at Rum Point with friends. During cross examination by the Guardian, the mother stated that she was able to go to Rum Point that weekend as she had cancelled her weekend visit with T and J because she was unwell and knew she was travelling on the Monday. Putting aside the fact that the mother was in effect saying that she felt well enough to travel up to and socialise at Rum Point rather than prioritising T and J, she said she went to the house to hand AE his employee’s pass to the Airport car park which she had kept in her travel bag for two years. She then sought to convince the Court that, by coincidence, on the next day they both happened to be on the same flight to Honduras and that, when she went to the house to leave the card for him, she had no idea he was then travelling. The mother further said during cross examination that when she spoke to AE he did not tell her he was travelling the next day. The mother said she first knew AE was on any flight was when she heard his name read out on the PA system at the Airport. She said she was flying with a friend called OS who was not called as a witness. I note the mother also says that AE’s father is lying when he told the social worker that he had seen her on two previous occasions at his house when AE was also there, as this she says was the first time she had been there.

¶ [110] The mother only belatedly confirmed that she had been seeing AE in breach of the order when she was informed that she had been seen in his company. In her evidence in chief, she said that she did not have any contact with him after she got the injunction until he started to communicate with her by sending her flowers in November 2015. Ms. Court said that she had seen her with him on 3 occasions, the mother only agreed to there being two. She accepted that she told the social worker that he had never been there when the children were there. She then said that he had seen J outside of her home and that was only because she could not get to an appointment at the psychologist as her car had broken down. She said that she called AE, that he came and that she and J went in the car. She talked of another occasion when AE picked her up to enable her to do some shopping, but she dropped him at his office and then she drove alone to the shop. She said that both of these occasions were in January 2015. The mother said that the father was lying as he had not seen J and her in AE’s car coming out of her driveway in August 2014. The father gave a vivid description of what he had seen when he was driving past and I prefer his evidence to the mother’s. The Guardian also put to the mother that J had told her that AE had been fishing with him and that she joined him in that and was cooking the fish. The mother’s reply was that J was lying.

¶ [111] The mother was also asked in cross-examination about Christmas 2014 when she stayed with AE. The mother said that she went there only after he had called her on Christmas morning. She was asked why this was, as she had told Ms. Court that they had been seeing each other from early December. She replied that they were not together from early December but only that he had sent her flowers. It was then put to the mother by the Guardian that AE’s children had said that she had been the one who went out to buy the presents which AE had given to them and she was asked how would that be if AE called her out of the blue on Christmas morning and they were by then still not together. The mother replied that she had purchased the presents little by little when AE told her that the children were going to be there and that they were presents from her and not from the husband. This of course is concerning, because before relaying this she had just told the Court that she and AE were not seeing each other and it was only on Christmas Day morning that he invited her to come to his house for Christmas. She said she was surprised to hear that Alyssa, one of AE’s children, had told the Guardian that she and AE never intended to end their relationship and pretended to not be together. That passage of the evidence also satisfied me that she was still in a relationship with AE before Christmas day. When this evidence is considered along with the father's evidence that he saw her and J in AE's car, on the balance of probabilities, leads me to find that their relationship continued, albeit in a surreptitious manner, even though she had obtained the injunction.

¶ [112] The mother's evidence concerning the interaction with AE following the making of the interim supervision order was not convincing. It is clear to the Court that she obtained the injunction because she felt it would help her in these proceedings to have been seen to have done so, rather than to protect her and the children. I am satisfied that she has facilitated AE in breaching the injunction on a number of occasions and has not been forthright about her interaction with him in her written and oral evidence. Her evidence concerning her interaction with AE has not been consistent and her demeanor when being cross examined on the subject was awkward. It is her expressed view that he has changed, he is a good influence on the children and that his coming into contact with her or them would not place them at any risk. I accept that she has told the Court that, if the Court ordered the children not to come into contact with AE, she would abide with that direction. Although following this hearing I am willing to accept that she might be able to do so, with the Court's prohibited steps order in place, if the children were with her for fairly short periods of time, I am not satisfied that she would be able to do so if they stayed with her for extended periods of time due to her need to interact with AE, especially after the birth of their child.

¶ [113] It is evident that the mother has had an unsettled life from a young age and sadly this has impacted on H and T. Although the mother still recommends the maternal grandmother as being a suitable carer for T, there is evidence to show that her mother and family members were unable to protect her and provide her with the stable home when she was a teenager. Although her evidence was confusing and not as frank as it should have been, it is evident that she became pregnant with her son, R, when she was aged only 16. She stated in her evidence that R’s father was her first boyfriend and he was aged 17. Rather oddly the grandmother registered the birth of R in Roatan under her name and the name of her son. This misleading and inaccurate registration has still not been amended.

¶ [114] When H was born her biological father ("NE") was aged about 40 and her mother was aged about 18/19. NE was stationed with the US Army in Honduras. The mother moved 6 months after they had met from La Ceiba to be with him in Comayagua. The mother became pregnant and H was born after her biological father had left Honduras. The mother stated that following a hurricane she was unable to locate him. H’s biological father has still not been located and he has not played any role in these proceedings. The mother said she worked in Roatan until she married the NE when she was aged about 20/21. T was born in April 2003 and, after they divorced in the same year, the mother returned to Roatan with both girls.

¶ [115] Thereafter she met D, and she said had a relationship between 2004 and 2008. She said they had a number of separations during that time, something that would have been unsettling for H and T. D was a police officer and they left to St. Pedro where they stayed for a few months before he and they had to move on extremely short notice to Cortes due to threats made to D from criminals due to police activities. She was, as is a manner of her evidence at this hearing on a number of matters, initially less than frank about this as in her earlier affidavit from April 2014 in which she was seeking leave to take the children to Honduras for a holiday. There she simply said: "We moved to St Pedro/Cortez and stayed there for around 2 years. The Petitioner alleges in his affidavit that I had to leave San Pedro in the middle of the night, and he implies that it was because (D) had killed someone. This is absolute nonsense. D and I had separated and I was living independently in San Pedro/Cortez when the Petitioner contacted me and told me he wanted to see me...."14 In the same affidavit the mother is actually misleading and partly inconsistent with her oral evidence given at this hearing when she said at paragraph 33: "D and I had separated sometime before all of this and he was still working in St Pedro when I left. There was no killing or fleeing in St. Pedro as the Petitioner alleges. I don't know why he has said this other than to try to help his case about it being dangerous." During cross-examination by Mrs. Thompson she said that the words in the affidavit were not her words and that they had moved within the same night to Cortes as: 14 During cross-examination she said that she and D had finally separated after a fight. She said the father contacted her about a month after the final separation. 151026 DCFS v DE NE et al Judgment "Person D had arrested, family of that person wanted to kill him, as he had had killed one of them." She later said during cross examination: "They capture someone in drugs and his relative wanted to kill him. I not know if he killed or injured him. I told the children that he killed him in self defence." The father's evidence is that the children told him precisely that.

¶ [116] D left her in Cortes and she had to provide for the children without his support. Although there are inferences that she worked as a prostitute in Cortes, there is insufficient evidence for me to make such a finding. It is clear that, whilst there, she and the children lived in inadequate accommodation and that at times the children were not cared for appropriately when she went out to work or to socialise.

¶ [117] I am satisfied that it is that unsatisfactory state of affairs for H and T that resulted in the father contacting the mother and proposing marriage to her, so that she, H and T could return to a more stable and safer life in the Cayman Islands. The mother does not accept that T told the father horrific stories of her life in Honduras, but she did accept that she herself told the father that she wanted a new life and was afraid for the children.

¶ [118] Some insight into this period of time in Honduras is gained from the letter written by H on 16 November 2014 and exhibited to the affidavit of the paternal aunt, AM. It is not contended by any party that this letter was not freely written by H, nor that the words therein are not her own. Although I am cautious when I review it, I also have regard to her disclosure to the Guardian and to Ms. Court.

¶ [119] In the letter H stated that her mother is a "party girl" and has "dated many guys", not keeping from H and T details of what she did with her boyfriends. H disclosed that in Cortes they, including the mother's boyfriend, would often all share the same bed and that on one occasion she woke up to see the mother having sex with her boyfriend. H said that when the mother went out partying in Cortes that she would leave them in the care of a 16 year old boy who sexually assaulted her. H said that she informed the mother of this, but the mother took no action. H said that, when she was aged 9, the mother and some of her friends slept over after a night out. H said she woke up to find one of the mother's male friends touching her leg and "feeling her up". H stated that she been exposed to many things throughout her life when she lived with the mother and these were harmful things which left her very angry.

¶ [120] When the content of the letter was put to the mother during cross examination she said that she could not speak for the child, that she was ashamed when reading it, but stated that she never put H in any situations of the nature described. She later said that the majority of what H has said about this and the incidents involving AE were "untruthful" and that H "is a liar." Although I am not in a position, on the written evidence before me, to make findings about the alleged assaults on H, I am satisfied that the mother when in Honduras elevated her personal emotional needs in her relationships with men to such an extent that the stability in the day- to-day lives of H and T was detrimentally affected. I am also satisfied that the children were not properly supervised thus leaving them at risk from others. This is alarming, as history is repeating itself with her need to keep in a defective relationship with AE, which has caused harm to the children, in particular H. Over the years, save for the move back to Cayman with NE, the children were uprooted and moved not for their benefit but for the benefit of the mother’s various relationships.

¶ [121] The mother herself acknowledged in her oral evidence that the disclosure in the letter by H "raises serious concerns." The Mother was asked by Mrs. Thompson during cross examination whether the letter went to her "ability to care and level of protection mentally, physically and emotionally for H" and she answered, "I agree." The fact that H freely wrote a letter with this content, in itself shows that this girl’s relationship with the mother is seriously fractured and is an indication that she has suffered emotional harm from that relationship.

¶ [122] A great deal of time during the hearing was spent dissecting the various incidents involving the mother and AE and the mother and H. Having received that evidence, my concerns expressed in the interim supervision judgment remain. As I have already mentioned, the mother’s oral and written evidence setting out her versions to these incidents is itself troubling and establishes that the children have suffered harm by witnessing incidents of violence, and that there is a likelihood of substantial harm if they are in the household at the same time as AE and the mother. The concerns are exasperated by the fact that she, so soon after the return date of the injunction, granted on the basis of her disturbing evidence in her supporting affidavit in which she set out serious allegations, concerns about the resultant harm to all of the children and stating her goal that she never wanted the children to be exposed to it again, still felt it appropriate to return to relationship with AE.

¶ [123] She felt it appropriate to facilitate AE’s breach of the order whilst her public law case involving the safety of her children was under intense review and troublingly could not see why her actions would trouble the Court and the professionals.

¶ [124] The concern of the Court is also exasperated by the fact that she permitted AE to come into contact with J and that she sought to initially disguise the fact, only giving unsatisfactory reasons when she realised they had been seen by more than one person. The mother contends that this was only on two occasions when she had to use AE’s vehicle, but even if that is the true reason, that is not an acceptable excuse when it was made plainly clear to her by the Court, by the DCFS and by the Guardian that none of the children must not come into contact with him. If she genuinely felt that AE had “changed a lot” due to professional help he had obtained, was no longer a violent or jealous man, and was now a good influence on the children’s lives she should have stood behind her convictions and applied to the Court to persuade the Court to dismiss the injunction. It is simply not acceptable, and it is an indicator of future risk to the children, especially in light of the clear indications this Court gave in the interim supervision judgment and in light of the well-founded concerns of the supervising social worker and the children’s Guardian for the mother to have deceived the professionals by carrying on a relationship with AE behind their backs.

¶ [125] It is important to note the Guardian’s expressed concerns in her oral evidence, which I share: "That whilst much is made of physical risk I am more concerned with risk to the emotional development of T and J." The Guardian when reaching this conclusion refers to the psychological report in relation to T, prepared by Diane Schultz dated 10 October 2014. She noted that there were reports of T having difficulty sleeping and having frequent nightmares. She also noted that there were reports of her being verbally aggressive, being non-compliant with adult requests and having a difficulty paying attention. She noted that T: "expressed some reluctance to be 'honest' with her and that she 'admitted feelings of fear.'" She continued by recording that: "Trust was difficult to build with T. She understands the concept of a 'lie' and reports being coached at times to tell 'lies' by her mother. For example the family missed a scheduled appointment and T was told to say 'the car broke down.' T indicated in reality her mother overslept and there was no issue with the vehicle." I note that her vehicle was also used by the mother as an excuse as to why she and J had come into contact with AE, despite the protection order injunction being in place.

¶ [126] Mrs. Shultz went on to report that T gave her other examples of lies and stated that she felt conflicted when "forced to lie" or witnessing her mother lie. Importantly one example that T gave was her: "being coached to tell Social Services that her mother's boyfriend was not residing with the mother, when in fact he was cohabiting with her mother."

¶ [127] Mrs. Shultz stated that T: "appears to be scared of her mother, expressing fear that I would repeat things to her mother" which led her to the opinion that: "T is fearful of the repercussions associated with being totally honest about our own perceptions and feelings of the family dynamics and relationships." She went on to say that T appeared: "to be experiencing significant struggles with the family relationships" and stated that H had strong emotional ties with her as she was viewed as being like a parent. T also expressed "worry" and "fear" about receiving the same treatment from her mother that H had received during her adolescent years, informing the psychologist that H had received beatings resulting in marks with a belt from the mother as punishment. This was something which H confirmed with the psychologist. Mrs. Shultz felt that T had been: "deeply impacted by incidents, discipline procedures and domestic violence" within the mother's house. She went on to say that it was probable: "the family dynamics have contributed to aggressive behaviour and sleep disturbances", noting that T says her difficulties with sleep are less pronounced at her father’s house at which she reports feeling safe and where there are fewer interpersonal conflicts. In her recommendations, she sets out her opinion that domestic events and discipline procedures have impacted T negatively. Mother and T should have supervised contact and counselling sessions together for relationship building and to enable trust to be rebuilt. In my opinion the mother-daughter relationship is fractured.15 She recommended that T have a proper routine between Monday and Friday and this should not include moves between properties.

¶ [128] In light of events that have occurred since the report, it is evident that Mrs. Schultz had therein shown showed great insight and understanding of the situation, for example when she highlighted how critical it was for the parents to be consistent with T concerning rewards and consequences, and that the parents should not undermine one another but collaborate to give consistent care. I note that the Guardian highlighted in a report dated 13 June 2014 how T was “very worried” as she had nothing to report to her mother following her mother’s request on the telephone for her “to tell her everything that was going on in the father’s household.” It is evident that the relationship between H and T has been detrimentally affected by T seeking to gain favour with the mother by reporting to know what has been happening in the father’s household and because she has been required by the mother to take things from H or the father’s home without permission. Mrs. Schultz conclusions have sadly also been shown to be accurate when she stated: 15 Emphasis by underlining is mine. 151026 DCFS v DE NE et al Judgment "T struggles to regulate her emotional responses by bringing rational thoughts to bear on feelings. T needs to prepare for emotional situations by knowing her triggers. She should have an "escape" plan should she need to leave a challenging situation. Providing her with the designated "take a break spot" may assist her in getting away from a difficult situation before she becomes overwhelmed. This spot should ideally be away from siblings or family members and might include specific items which could calm her. She will likely run away and/or avoid conflict, this is a result of her poor problem-solving skills. When she is forced to deal with conflict she may lash out or become very aggressive. She requires support and guidance on problem solving and conflict resolution skills."

¶ [129] When I have regard to this conclusion, coupled with the mother's inability to act collaboratively with the father and T's concern about having to see her mother, set out in the second report of the Guardian, the instances of running away and self-harm\(^{16}\) were predicted. I note that there are times when T said she wanted to be with her mother, but it is highlighted in the Guardian's first report that this is coupled with her expressions of guilt when she blames herself when she has seen her mother crying. The Guardian highlighted in the second report that the "running away" incidents came at a time when T was very strongly expressing a desire to be with her mother and, as a consequence, she had set about making life very difficult for H and NE. The Guardian highlighted that T has again expressed the wish to be with the father and was able to recognise that she was being used by her mother. The Guardian also highlighted that, when T has been with her \footnotetext{16 Paragraph 20 of 1st report of the Guardian. 151026 DCFS v DE NE et al Judgment} mother, there have been reports from the school counselor that her behaviour had deteriorated and was too adult, whereas when she has come from her father’s home she behaved in the manner expected of a student of her age. The Guardian highlights that T could only live with the mother if the mother was able to demonstrate: "that she can fully care for the emotional needs of a girl who has clearly suffered badly from recent events rather than conducting herself in a way that makes T’s behaviour worse."

¶ [130] A pattern of concerns for the children within the family can be seen when comparing the October report to that prepared by Mrs. Shultz in relation to H in March 2015. She formed a view that the domestic violence within the mother’s household had: "appeared to impact H emotionally and undermined the trust between mother and daughter." She noted that H felt confident enough to inform the psychologist about the mother’s relationship with AE which she portrayed as being physically violent and she gave details about the mother being marked with bruises. Mrs. Schultz: "felt that a theme emerged relating to (H’s) Mom and (AE) that I would have perceived as a safety risk to (H)." She went on to say that what appeared: "Most damaging to (H) emotionally was mother’s tendency to minimise all about the domestic events." She noted that H could not understand why her mother was lying to the social agencies about AE, that she was concerned about the mother’s safety. I find it significant that H informed the psychologist that: "She felt her mother chose AE over her."

¶ [131] Mrs. Schultz commented upon the concerning nature of H’s relationship with her mother, and the physical punishment that that she received. She noted that H informed her that her mother had hit her in the face with a closed fist and that T had independently collaborated that with her. She indicated that H said that she loved her mother but was fearful of her.

¶ [132] In her conclusion Mrs. Schultz said that she was able to easily establish a rapport with H, who she found to have symptoms of depression and anxiety. As she had found in her report about T concerning T’s fractured relationship with the mother, she similarly found that in her: "opinion the relationship between mother and (H) appeared fractured." She stated that "H endorsed questions that suggested a high level of anxiety, fearful preoccupations, nightmares and memories of negative events that took place in her mother’s home. She reported spending a lot of time recollecting and re-experiencing the physical violence between AE and mother. She also reported a fear of physical altercations between herself and mother. She indicated a desire to suppress or eliminate painful thoughts and may have developed maladaptive coping mechanisms, which at one point included self-harm such as cutting herself on the forearm. She went on to say that she: "had concerns about H’s overall emotional well-being and felt she presented as anxious regarding her family dynamics..... In my opinion, H’s recollection of physical violence appears reliable. I believe H is emotionally vulnerable and the trust between daughter and mother has been damaged."

¶ [133] Although I have not had the benefit of hearing from Mrs. Shultz in Court, and am conscious that no party has had the opportunity to examine her, the content of her report is relevant and important. It gives expert insight into the emotional harm that has been caused when in the mother’s home and would likely be caused to H and T if they were to reside in the mother’s home. I accept that concerns for T have also arisen during that time residing with the father. Despite the submissions made on behalf of the mother, I am not satisfied that these are caused by her living with the father, they are rooted in her fractured relationship with her mother, an issue which is still to be properly addressed and the professional intervention recommendations of Mrs. Shultz in her report have not been actioned.

¶ [134] As I recognised earlier in this judgment, in relation to J, there is a need to conduct an ongoing review. The warning signs have been reported by his school in relation to his behaviour there when he is staying at his mother’s home. Examples of inappropriate behaviour include him being involved in fights, trying to choke a child, shouting back at teachers, disrupting class and using bad language.17 It is concerning to hear that the assistant teacher dreads Mondays when J attends 17 Filler detail provided in the second report of the Guardian paragraph 68 to 74. 151026 DCFS v DE NE et al Judgment school from his mother’s property whereas by Thursday when he has been staying with and settled down by his father it is “like a new boy comes in.” I note that the school had provided a behaviour log for the parents to complete, which the father always filled out while the mother had to be persuaded to as she initially failed to do so.

¶ [135] In her report the Guardian highlights the emotional damage to a child of witnessing violent behaviour. She states that she is very concerned about the effect on J of being for long periods with his mother. She has concerns about his behaviour and lack of stimulus which he receives from his mother. The Guardian feels that it is important to keep the link between him and his mother, but that it is in J’s best interest to live with his sisters and father.

¶ [136] It is important to note that the Guardian has carefully considered whether the father is able to care for the children. In her second report she states that he has: “been doing an incredibly good job supporting and caring for the children. He is very keen to do the best for all three. He believes their best interests are served by all three children living with him. Wisely, he recognises that the demands of bringing up three children with this age range are considerable and it will be important that he receives ongoing support (if the court accepts my recommendation they should all live with him) to enable him to fully meet their physical and emotional needs. This will be especially important in relation to the support of T.” Although I may not fully agree with the recommendations for supervised contact, I accept the Guardian’s above observations. It is extremely important that her view expressed at paragraph 7 of the second report is acted upon where she stated: “..... it is very important that DCFS recognises that this family will need considerable support over the next years. At age 66, (the father) will (if my recommendation is accepted) have responsibility for two teenage girls who have had some very difficult life experiences and an active five-year-old boy. He also has to manage his own business in challenging times. NE is very willing to undertake that responsibility, it will be imperative for the welfare of the children that he receives support in meeting their emotional needs in particular.”

¶ [137] The mother has made some concerns about lack of information and interaction with social services. Since the change in social worker in January, it is evident that there has not been a significant amount of interaction. I expect that, following the making of a final supervision orders, the social worker, who now has had more than enough time to fully familiarise herself with the case, will ensure that there is appropriate exchange of information with both the mother and the father Conclusion

¶ [138] Although all the parties accepted that the s.33(2) threshold is made out in relation to all of the children, I remind myself that I may only make a supervision order if I am satisfied that each child with whom I am concerned is suffering, or is likely to suffer, significant harm which is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him. This is an objective test and I have considered with each child what care it would have been reasonable to expect the parents to have given to that child.

¶ [139] I remind myself that the burden of proof is on the DCFS who bring the case and the standard of proof is the balance of probabilities. So when considering the threshold criteria I consider whether the facts that the DCFS seek to prove more likely to have occurred and not on the evidence that has been put before the Court.

¶ [140] There is an abundance of evidence that H and T have suffered significant harm as a result of the care provided to them. There is some evidence that J has also suffered harm. I have highlighted this already in this judgment but some examples are the fact that H witnessed and been was drawn into physical altercations between the mother and AE. It is also accepted by the parties, and borne out by the evidence, that all of the children have witnessed some of the physical altercations between these two adults in the home.18 Lady Hale’s observations in Re B19 that serious harm may be done to the development of children who see or hear domestic violence between their parents is applicable to these children.

¶ [141] A further example is that H has been subject to excessive chastisement during physical altercations, resulting in physical injury, at the hands of the mother. 18 Paragraphs 9 and 17 of the Agreed Statement of Facts. 19 See paragraph 11 above. 151026 DCFS v DE NE et al Judgment

¶ [142] In relation to the mother's parenting of H and T there is evidence, which I accept, of lack of routines and unsettling house moves dictated by her relationships. There is evidence of placing too much responsibility on H. I accept the evidence of the mother influencing the girls so that they are not forthright with professionals in this case and influencing T to remove items from the father's property and report to her about what is happening there. This has caused emotional harm to the children.

¶ [143] Regrettably, the mother has again prioritised her needs to be in a relationship with AE. She has done so despite there being an injunction in place and she maintained that relationship in a surreptitious manner despite the Court's clear expressions of concern when the interim supervision order was made. I am concerned that she has remained so long with an abusive partner, and reared the children in this abusive environment, and I cannot be confident that she would keep a child in her full time care safe. I am not satisfied that in the future, if the children are in her property for extended periods of time, that she will be able to protect them from the type of incidents they witnessed previously. The mother is unable to recognise the real risk factors that exist for the children and even for herself. There is a real likelihood of the children suffering harm in these circumstances.

¶ [144] The mother, unlike the father, is unable to heed the advice given by Mrs. Shultz that each parent should not undermine the other parent, but seek to collaborate. As already highlighted, the mother has tried to undermine the placement at the father's by continually questioning T. The mother's mindset is vividly illustrated when during cross examination by Mrs Bothwell she stated that his motivation for looking after the children "was not out of love or concern" but because "he knows that I love my daughter and (it is) to hurt me. I think he is doing this to hurt me." This shows a total lack of insight about why the father has stepped into the breach, especially when one has regard to the Guardian's forceful commendation for him doing so. These are a few of the examples which have been earlier addressed in this judgment, and I am not satisfied the mother has any real insight into any of the concerns.

¶ [145] As the threshold criteria is accepted by all of the parties I need not carry out the more thorough review advocated by Lady Hale in Re B paragraph 193 of *Re B* where the criteria is a live issue between the parties. In relation to all three children I am satisfied that the s.33(2) threshold is met not only on the basis of the agreed statement of facts, but also because of my additional findings set out herein which I have made after a full review of the evidence.

¶ [146] When I consider the welfare issues I note that all of the parties agree that there should be a final supervision order in relation to all of the children. As highlighted by the Guardian, this family will need substantial assistance moving forward and the supervision order is an important part of that support of infrastructure.

¶ [147] H forcefully expressed her wish to reside with the father. All the parties agree that, in light of her age and understanding, the Court should have regard to her wishes. It is accepted that her physical and emotional needs are best met by living with the father and that it would be damaging to her to force her to change the status quo. When I made a residence order I had regard to her age and the fact that she is a female residing with her father. I am satisfied that a residence order is appropriate having regard to the harm that she has suffered and would be at risk of suffering if she were to reside with the mother. I am satisfied that the father is capable of meeting her needs, and I am fortified in reaching this conclusion by the Guardian’s view, expressed at paragraph 83 of her second report, that the father has “done an incredibly good job supporting and caring for the children”. I am not satisfied that the mother is capable of meeting H’s needs. Her relationship with the mother is so fractured, that at this time when considering the welfare checklist, I am not able to make an order for contact between her and the mother. It is important that under the supervision order, which may soon expire due to her age, that therapeutic work is undertaken to see if that can be some form of relationship between the two of them.

¶ [148] In relation to T’s welfare I am conscious that there have been potentially substantial developments since the hearing and that there is soon to be a hearing. Due to the still changing circumstances, when I consider the welfare checklist in relation to T I limit myself in this judgment as to whether the making of a supervision order is in her best interests. I am satisfied that the input of the DCFS under a supervision order is required having regard to T’s physical and emotional needs, her age and the harm which she has suffered and is at risk of suffering. I am satisfied that such an order is necessary when considering the capability of the parents to best meet her needs.

¶ [149] During the course of these proceedings T expressed differing views to the professionals about where she wished to live. Despite this, all the parties agreed prior to 4 August 2015 that a residence order should be made in the father’s favour as that better reflected T’s wishes Although things may have changed since the August hearing, due to events at the time I endorsed an agreed interim placement with T’s aunt with the consent of all of the parties which apparently reflected T’s then current wishes. I also ordered, with all the parties consent, that there be supervised contact for both parents. I do not believe it appropriate for me to further address the welfare checklist in relation to s. 10 orders for T due to the upcoming hearing.

¶ [150] It is agreed, following the Guardian’s forceful suggestion, that there should be a more substantial review of J’s circumstances. When I consider his welfare at this time, due to his tender age I do not place great weight on any wishes or feelings. However, I am satisfied that he is well cared for at the father’s property and that he is happy residing there, especially when his sisters are also there. Having regard to the level of care at the father’s home and the reports about his behaviour at school when he is staying at his mother’s property I am satisfied that his physical, educational and emotional needs are best met this time at the father’s property. However, I do feel that his emotional needs require him to have the ordered meaningful contact with the mother and it should not be limited to supervised contact. When I reach this conclusion I have carefully considered the concerns of the Guardian recommended supervised contact. When I make the order set out in this judgment I have regard to his age and the fact that he is a male as well as the harm that he has suffered and is at risk of suffering if he were spending extended periods of time under his mother’s care. I am satisfied that the father is best capable of meeting his needs at this time.

¶ [151] It is in all of the children’s best interests that they do not come into contact with the AE. I have considered the welfare checklist and in particular the harm that they have suffered or are at risk of suffering that it is appropriate to make a prohibited steps order preventing him coming into contact with them.

¶ [152] I wish to take this opportunity to thank the attorneys and the Guardian for the commendable amount of work that they have put into this case and for the assistance that they have given to the Court. I would like to place on record my gratitude to Mr. Fee, who due to the cap on the level of the mother’s Legal Aid, continued to represent her pro bono for a considerable number of days right up to the conclusion of the hearing. THE HONOURABLE MR. JUSTICE RICHARD WILLIAMS JUDGE OF THE GRAND COURT The judgment in this matter is being distributed on a strict understanding that in any report no person other than the attorneys (and any other person identified by name in the judgment itself) may be identified by name or location and in particular the anonymity of the child and the adult members of their family must be strictly preserved. This matter is not one of the cases in which the orders made within the public law proceedings will result with a child being removed from person(s) who have parental responsibility and being placed outside of the family.