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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> X and Y (Children) [2018] EWHC 451 (Fam) (08 March 2018) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2018/451.html Cite as: [2018] EWHC 451 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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A LOCAL AUTHORITY |
Applicant |
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- and - |
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F and M And X and Y (by their children's guardian) |
Respondents |
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Miss Gemma Taylor for the children, X and Y
F appeared in person
M did not appear and was not represented
Hearing date: 22 January 2018
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Crown Copyright ©
Mrs Justice Knowles:
a) Whether the father should remain a party to the proceedings to revoke the placement orders with respect to both girls;
b) Whether the father should remain a party to proceedings pursuant to s.34(4) of the Children Act 1989, the purpose of those proceedings being to deny him any form of contact to the girls;
c) An application under the inherent jurisdiction whereby the local authority sought a declaration that it be absolved from any statutory obligation set out in the Children Act 1989 to consult, refer to and/or inform the father about any aspect of the girls' progress, development and/or well-being;
d) An application for permission to invoke the internet jurisdiction in relation to the girls;
e) An application for an order or declaration that (i) the local authority be absolved of its duty to provide notice to the father of any future legal proceedings involving the children and (ii) the court officer should not serve the father with notice of any proceedings or any documents relating to any future proceedings or join him as a party to any future legal proceedings without the permission of this court.
BACKGROUND
"…F is considered to pose a risk of physical, sexual and emotional harm to children. The offences appear an extension of the control he was exerting over his own children. They are now in the care of others, but it would be understandable if they were concerned about [F] attempting to make any further contact with them and any further contact would result in re-victimisation. He will be subject to numerous external controls on release and does not know of his children's whereabouts but will need careful monitoring when he is released from prison."
He also concluded that the sexual offences appeared almost sadistic given the degree of control exerted by the father over the girls.
THE PROCEEDINGS
Preliminary Matters
The Hearing; 22 January 2018
DISCLOSURE: DISCUSSION
"Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant's access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the need for a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary."
Within that context and given the court's wide discretion under the Rules to restrict a party's access to evidence filed in the proceedings, it is clear that disputes about the ambit of disclosure in children proceedings should be framed in terms of the need to identify, evaluate and weigh the various Convention rights that are in play in a particular case, typically Article 6 [fair hearing] and Article 8 [respect for private and family life].
"However, when considering what treatment is sufficiently severe to each the high threshold required for a violation of Article 3, the European Court of Human Rights has consistently said that this "depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim": see, for example, Kudla v Poland (2000) 35 EHRR 198, para. 91. The court has also stressed that it must go beyond "that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment": para. 92. Thus the legitimate objective of the state in subjecting a person to a particular form of treatment is relevant. A well-known example is medical treatment which may be experienced as degrading by a patient subjected to it against his will. However, "A measure which is therapeutically necessary from the point of view of established principles of medicine cannot in principle be regarded as inhuman or degrading": Juhnke v Turkey (2009) 49 EHRR 24, para. 71, citing Herczegfalvy v Austria (1992) 15 EHRR 437, para. 82. Obviously, the ends do not justify the means. But the context in which treatment takes place affects the severity of its impact. The context here is that not only is the state acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and consultant psychiatrist who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her…"
In this case, the court would be acting in support of the important public interest of a fair trial and the girls did have available to them specialist support from professionals which might mitigate any further trauma which disclosure might cause. Given these factors, I reluctantly came to the conclusion that Article 3 was not engaged in this case.
PARTY STATUS - CONTACT AND PLACEMENT: DISCUSSION
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
RELIEF UNDER THE INHERENT JURISDICTION: CONSULTATION WITH A PARENT
(3) No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.(4) The court may only grant leave if it is satisfied that –
(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.
(5) This subsection applies to any order –
(a) made otherwise than in the exercise of the court's inherent jurisdiction; and(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).
The local authority sought a declaration under the inherent jurisdiction that the girls' welfare was inconsistent with any obligation set out in the Act to consult with, refer to, and/or inform their father in relation to any aspect of their progress, development and/or well-being whilst the girls remained in the care of the local authority. Additionally, the local authority also sought a declaration that, in the exceptional circumstances of this case, the failure of the local authority to consult with, refer to, and/or inform their father about any aspect of the girls' progress, development and/or well-being would amount to a reasonable excuse pursuant to Section 84 of the Act.
"Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of (a) the child; (b) his parents …"
There is thus a statutory duty upon the local authority to ascertain the wishes and feelings of the father regarding any matter to be decided about the girls. Section 26 of the Act permits the Secretary of State to make regulations requiring the case of each child who is being looked after by a local authority to be reviewed in accordance with the provisions of the regulations. The regulations require the local authority, before conducting any review of a child in care's well-being, to seek the views of the child and his parents. It follows obviously that the local authority would need to keep the child's parents fully informed otherwise the views of the parents would be of little value.
"[27] … The objective of the process here is to ensure not only that there is proper planning but that the plan for the child continues to be the correct one, developing and evolving as the child's needs change. It is to fortify the rigour of review that the section imposes a wide-ranging duty to consult, not least with the parents. Even a parent who has behaved egregiously may nonetheless have some important contribution to make in the future. The requirement to solicit the views of a parent is not contingent upon a moral judgement of parental behaviour; it is there to promote the paramount objective of the statute as a whole, i.e. the welfare of the child. These duties are a statutory recognition of the need appropriately to fetter the corporate parent…"
I accept that analysis and note that Hayden J agreed that a local authority could only be absolved from its duty to consult and to provide information to a parent in "exceptional circumstances", approving the judgment of Coleridge J in Re C (Care: Consultation With Parents Not In Child's Best Interests) [2005] EWHC 3390 (Fam), [2006] 1 FLR 787 [see paragraphs 28 and 29 of Re O].
"If the Secretary of State is satisfied that any local authority has failed without reasonable excuse to comply with any of the duties imposed on them by, or under, [the Children Act 1989] he may make an order declaring that authority to be in default with respect to that duty."
Subparagraphs (2), (3) and (4) set out the consequent provisions if such a failure by the local authority is established.
"[30] The conclusions that I have come to are really these: the considerations which govern the dismissal of this father from further involvement in the proceedings, and the granting of the declarations seemed to me to be the same. Indeed, there is little point in him remaining a party if he is not going to be given any information; indeed, it would be impractical for him to remain a party if he was not going to be given information.[31] The second pivotal point, of course, is that this application is decided, first and foremost, on the basis of s.1 of the Children Act 1989 - that is to say, what is in S's best interests. Of course, hers are not the only interests, but they are the ones which are of paramount concern to the court.
[32] The third factor, self evidently, is that it is a very exceptional case only which would attract this kind of relief. Self evidently - and it hardly needs the human rights legislation to remind one - a parent is entitled to be fully involved, normally, in the decision-making process relating to his, or her, child, and if not to be involved, then at least informed about it. However, insofar as that engages the father's rights to family life, then by the same token it engages S's rights to privacy and a family life stop
[33] In my judgement, in this situation, her rights come very much further up the queue than the father's. I have to balance the rights as between the two of them. I am afraid to say that S's must overwhelm all others. It seems to me that if S was an adult now, who had been subjected to the behaviour which led to this father's imprisonment, and that as an adult she was to say, in circumstances where she needed, for instance, treatment that she did not want the perpetrator of those actions to be consulted, even if it was a parent, no one, for one moment, would suggest that such a person should be consulted. It so happens that this individual is not an adult, but should different considerations apply to this child when I am told she is intelligent and articulate; when her decisions and views seem to me to be entirely understandable and rational and objectively sensible? Thirdly, she has a mother who is fully involved in her life, albeit that she is not in this country, and a guardian, so long as these proceedings are underway, who is more than able to protect her interests, and indeed has been doing so.
[34] The next matter which I have to place in the balance is that there is no question, as there is in the adoption cases, of any very significant decision being made by the local authority. This is not a case where it is being suggested the child should be adopted, or moved out of the country, for instance. It is merely a question of the details of this child's life being worked out by the local authority under the umbrella of a care order.
[35] At the end of the day, standing back, I have come to the conclusion in similar circumstances and for similar reasons, as I did in relation to the application to discharge the father's parental responsibility, that this father has, as matters stand, forfeited consideration of his rights in relation to making decisions about this child's future. I cannot think that he can usefully participate in discussions about what is in S's best interests in circumstances where he has in the past wholly disregarded them, and in circumstances where the child desperately wants him not to be involved…"
RESTRICTING THE DUTY TO NOTIFY THE FATHER OF ANY FURTHER LEGAL PROCEEDINGS
CONCLUSION