AW v Director of Child & Family Services

• Jurisdiction: Bermuda
• Judgment Date: 20 June 2008
• Date: 20 June 2008
• Docket Number: Appellate Jurisdiction 2008 No. 16
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Bell, J

Appellate Jurisdiction 2008 No. 16

BETWEEN:

AW

Appellant

and

Director of Child & Family Services

Respondent

Mr P Harshaw for the Appellant

Ms M Goodwin for the Respondent

The following cases were referred to in the judgment:

Langley v Liverpool City CouncilUNK [2005] EWCA Civ 1173

D v Attorney GeneralBDLR [2004] Bda LR 45

Re H and othersUNK [1996] 1 All ER 1

S v S Appellate Jur 2004 No. 25

Re D and another (Minors)UNK [1995] 4 All ER 385

Children Act 1998

Care order — Whether removal of children from home was lawful — Sworn evidence — Disclosure of reports — Power to order assessments

JUDGMENT of Bell, J

Introduction

1. This is an appeal against a decision of the Magistrates” Court, sitting as a Special Court, namely the Family Court (‘the Family Court’), made on 3 April 2008. On that date, the Family Court confirmed a care order which had been made on 19 February 2008 in respect of the three children of the Appellant. Those children are OW, a boy born on 29 November 2003, WW, a boy born on 7 June 2006, and TW, a girl born on 27 May 2007. The care order placed the children under the care of the respondent (‘the Director’).

2. The order made on 3 April 2008 was the last in a succession of orders which had been made by the Family Court since its first order, which was made on 11 October 2007. That order was an interim order made under the provisions of section 32 of the Children Act 1998 (‘the Act’), within a matter of hours of the children having been taken from the Appellant's home by a combination of a police officer who was a member of the Child Victims Unit, Sergeant Renay Rock, and Annisha Peets-Cottie, a social worker in the employment of the Department of Child & Family Services (‘the Department’).

The Care Orders

3. The order made by the Family Court on 11 October 2007 was an interim care order (although not so described) for the three children, made for an initial period of twenty-eight days. The order provided that the Department should use its best efforts to find alternative accommodation for the Appellant and the children, and set a review date for 9 November 2007. On 9 November 2007, the Family Court made a four month care order for the three children, and directed that they should be placed at the discretion of the Director. The plan of care prepared by the Department was to be implemented, with a further review on 19 February 2008. On that date, the Family Court ordered a further six month care order for the three children, again ordered that the plan of care prepared by the Department should be implemented, and set a review date for 13 March 2008. On 13 March 2008, the Family Court confirmed the care order which it had made on 19 February 2008 with respect to the three children, ordered that the Department should be satisfied with the Appellant's employment and new residence before placing the youngest of the three children, TW, back in her care, and set a review date for 3 April 2008. Finally, on 3 April 2008 the order which is the subject of the appeal was made, and this again confirmed the care order made on 19 February 2008 for the three children. The Family Court ordered that the youngest child, TW, should be put back into the care of her mother, the Appellant, once the Department was satisfied in relation to her employment and accommodation, and set a review date of 15 July 2008.

4. That is intended as no more than a brief summary of the procedural history of matters, and it will in due course be necessary to consider in more detail the nature of the proceedings before the Family Court on the various occasions on which it made orders, and determine whether the Family Court acted properly on those various occasions, and particularly whether it acted in accordance with the provisions of the Act.

Procedural Matters

5. On 15 May 2008 the matter came before the Chief Justice on the Appellant's application, which sought leave for the Appellant to file and rely upon an affidavit sworn on 22 April 2008. The Chief Justice made an order to that effect, dealt with various procedural matters, and gave the Director leave to file affidavit evidence in reply. Affidavits were subsequently filed by Ms. Peets-Cottie, who had been the lead social worker in the matter from 9 October to 5 December 2007, and by Darren Francis, a social worker in the Department who became the lead social worker on 5 December 2007.

6. It is clear from reading these three affidavits that there are material conflicts between the Appellant's version of events, particularly those of 11 October 2007, and that of the social workers. Although Mr. Francis did not take over as lead social worker until 5 December 2007, he had attended with Ms. Peets-Cottie at the Appellant's home on Ord Road on 11 October 2007. The conflict covered what was said by a police officer and the social workers to the Appellant when they arrived at her home, as well as the condition of the home itself, and the condition of the children. I took the view that because of the conflicts it was necessary to make a determination in relation to the underlying facts, and the three deponents were sworn and were cross-examined on their affidavits and generally. The cross-examination of the Appellant and Ms. Peets-Cottie was extensive and that of Mr. Francis was relatively brief. Having heard the deponents, I took the view that I preferred the evidence of Ms. Peets-Cottie and Mr. Francis to that of the Appellant. In making that ruling, I noted that my view in that regard should not be taken as a criticism of the Appellant, who would necessarily have been subject to very considerable stress by the events of the day. The social workers had been accompanied by a large number of police officers, of which again I make no criticism, but realistically that would have affected the Appellant, and of course the outcome was that the two younger children who were at home were removed by the police and the social workers, and arrangements were made to collect the oldest child from pre-school. That would be bound to upset the Appellant greatly, and indeed she acknowledged in her affidavit that at the time of the court hearing later that afternoon, she was not sure what had been said to the Family Court because she had been so upset. It is to be noted that the Appellant assisted the social workers by providing information in relation to the children, both in terms of their medical condition (the two younger children had both been born prematurely, and were then aged 16 and 4 months) and the pre-school arrangements for the oldest child.

The Events of 11 October 2007

7. The events of 11 October 2007 were put in train by two calls which were made to the Department, which detailed what Ms. Peets-Cottie had described in her affidavit as ‘the dangerous circumstances’ that the three children were then in at their residence. The two callers were respectively a nurse and a worker in a child protection agency, although in accordance with Departmental policy their identities were not revealed. The Appellant believed that the Department was acting on the basis of anonymous calls, but I accepted Ms. Peets-Cottie's evidence that this was not the case. Ms. Peets-Cottie was assigned to the case and contacted the Child Victims Unit of the Bermuda Police Service. She was informed that police officers had been called to the Appellant's residence in the past to deal with complaints of domestic violence, that the children's father, AD, was known to the police for drug involvement, and that the Appellant's home was located in a known ‘drug area’, where men were known to congregate, the implication being that their gathering was connected to the drug trade. For this reason the social workers were accompanied by no less than ten police officers when attending the Appellant's home, two of whom were from the Child Victims Unit, with the others being mainly narcotics officers.

8. Sergeant Rock of the Child Victims Unit entered the residence first, followed by the social workers and the other police officers. They explained to the Appellant that they were investigating complaints of child neglect, and were shown around the house by the Appellant. In relation to the condition of the house and the children, this is best demonstrated by setting out the relevant part of Ms. Peets-Cottie's affidavit, which is in the following terms, amended only by the use of initials to protect the identities of the children:

‘9. The house was dark, dusty and dank. I saw dirty clothes strewn about the house, not organized piles as if they were being sorted out. The house was generally speaking filthy and full of junk with plastic containers stacked up in the middle of the kitchen floor. There were holes in the ceiling and the floors were splintered and unstable. The kitchen sink was full of dirty dishes including baby bottles which were covered with ants. I recall asking the Appellant to provide us with bottles for the children and she gave us a sippy cup for WW which was filthy and a bottle out of the kitchen sink.

10. There were crumbs and other remnants of food on the furniture and floors and trails and trails of ants at least an inch thick. WW was picking up crumbs off the bedroom floor and attempted to eat them before I removed them from his hand. When I went into the bedroom where the Appellant told me she slept with the children, I saw the baby, TW, asleep face down on a pillow on the only bed in the room which was a double or queen-sized bed. There were ants on the bed. There was a ‘Pack and Play’ type playpen in the room but the baby could not be put in it because it was full of clothes, old food and ants. It appeared that Mr. D lived in the other bedroom and the Appellant's father was sleeping on a couch in the living room.

11. The bathroom was disgusting. There was standing water in the bathtub with a film on it. The toilet...