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Category Archives: assessment of risk

In the pool or not in the pool?

 

This reported case is a Circuit Judge decision, so not binding on any other Judges, but it is interesting and raises a potentially important issue.

C (Interim threshold not crossed) [2019] EWFC B5 (15 February 2019)    

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B5.html

 

A child C, was 6 1/2 and had lived, for all but four months of his life, with his maternal grandparents, who held a Child Arrangements Order.  C’s cousin, D, was admitted to hospital with fractures to both legs, she being a non-mobile baby.  A police investigation was taking place in relation to D’s injuries. As part of that, the police informed the Local Authority that for a period during the time when those suspicious fractures had occurred, D had been spending time with the grandparents.

 

In the vernacular, the grandparents  (whilst by no means the main suspects for those injuries) were in the ‘pool of perpetrators’   – or were they?

  1. On 8 th October 2018, [the] police apparently advised the local authority that C should be removed from the care of his maternal grandmother and placed with his aunt R, while further and urgent investigations were undertaken.  The grandparents reluctantly gave their section 20 consent to this, feeling they had no option.  The local authority applied for emergency protection orders for D and her brother E on 11 th October, and subsequently care proceedings were issued.  Those two children are subject to interim care orders and are currently in foster care.  HHJ Owens has listed a fact-find hearing to determine the cause of D’s injuries, due to take place in the week before and after Easter, in April 2019.  

 

The LA issued care proceedings for C  (I don’t know that I would have done that, prior to a decision being made about D’s injuries, but the LA were obviously worried that C’s carers may have been responsible for such serious injuries to a baby.  It rather depends on whether that’s a theoretical possibility that they might have been responsible based just on timing, or some evidence that pointed more strongly towards them)

The Court had originally made an EPO and later ICO for C.

 

This was the judgment from a later contested ICO hearing.  It was complicated further because the LA were proposing that C be placed with his father (who was not involved in D’s life at all and thus absolutely not under any suspicion about D’s injuries)

 

#spoiler alert – the title of the case rather gives away the judicial decision, but read on to find out why.

 

An argument deployed at Court was that the Court, faced with a father and grandparents, could apply a private law filter to the case and decide which placement was better for the child in the interim while D’s injuries were being assessed (in effect, a ‘beauty parade’ exercise)

 

The Court, rightly, did not agree. The legal position had to be that the child be with grandparents unless the LA could satisfy the Court that there were reasonable grounds to believe he was likely to suffer significant harm in the grandparents care and further, that the risk of harm was such that C’s safety required separation from the grandparents.

 

 

  1. I have found this application difficult to determine because it was initially presented to me as a simple exercise of my discretion in respect of weighing up the pros and cons of two competing placement options, but, for the reasons I have given, I do not regard that as the correct approach as a matter of law.  I am grateful to all counsel who have shown flexibility in dealing with the issues that were troubling me, but I have received no written submissions about the question of interim threshold, and no evidence or submissions in respect of the application of the welfare checklist.  Because there has in my judgment been inadequate formulation of the nature of the risk that each of the grandparents is said to present to C, there has been inadequate consideration as to how those risks might be contained so as to enable C to continue to be cared for by his grandparents.  The case law is clear that the key to any application for an interim care order in which it is proposed that a child is separated from his primary care givers is proportionality.  I have had no evidence or submissions to enable me to consider whether the course of action proposed by the local authority is necessary or proportionate in safeguarding C’s welfare.

 

Threshold

 

  1. The threshold document is very short on factual detail and does not explain why it is said that C, who it is accepted has never suffered any harm in his grandparents’ care, is at risk of significant harm from either of them

 

  1. Paragraphs one to nine set out the history of D’s admission to hospital and the local authority’s concerns about the care she and her brother E received in their mother’s care. 

 

  1. Paragraphs 10 to 16 concern the grandparents, although there is not a single specific allegation against the paternal grandfather. 

 

  1. At paragraph 10 it is said that E has spent a considerable amount of time in the care of his maternal grandparents.  It is then pleaded:

 

The maternal grandparents have, therefore, had, at the very least, very regular contact and extensive contact with their grandchildren and have failed to protect them from suffering significant harm.

 

  1. There can be no doubt that D has suffered significant harm.  However, this paragraph does not plead when either of the grandparents had regular or extensive contact with D, or in what way they should have acted in order to prevent her serious and significant injuries.  The threshold document does not identify which, if any, of the injuries allegedly sustained by E amount to significant harm.  It is not pleaded in what respect either of the grandparents should have prevented his injuries being sustained.

 

  1. At paragraph 11(a) the local authority pleads that it considers that C would be at immediate risk of significant harm if he returned to the care of his grandparents at this time, because:

 

(i)                  D’s treating clinicians consider that her injuries were inflicted non-accidentally;

(ii)                None of the adults who had care of her or were in contact with her at the time have been able to provide any explanation for the injuries;

(iii)              The paternal grandparents and extended family, are reluctant to acknowledge the possibility of the injuries being inflicted non-accidentally … and show a lack of acceptance around the severity of D’s injuries and the need for local authority involvement with the children.

 

  1. In my judgment, this paragraph fails the President’s test in Re A .  It does not set out why the A + B + C of D’s injuries and the grandparents’ reluctance to contemplate their being inflicted non-accidentally amounts to the X + Y + Z of an immediate risk of significant harm to C if he was in their care.  Within the evidence, I have not seen a specific reference to either of the grandparents suggesting that there should not have been local authority involvement with D.  There is a reference in the first social work statement to the maternal grandmother expressing her reluctance for C to be living with his aunt stating that ‘she had done nothing wrong’ , but if this is what is relied upon, it is not explained why this would mean that C is at risk of significant harm.

 

  1. It is not specifically pleaded whether either of the grandparents was caring for D or in contact with her at the time her injuries were sustained, or whether they were specifically asked to give an explanation or not.  If they were not there when the injuries were sustained I am not sure why they should be criticised for not having an explanation for their cause.

 

  1. If proved, showing a lack of acceptance around the severity of D’s injuries and the need for local authority involvement, is of course a valid concern in general, but in my judgment not on its own sufficient to stand as an explanation that C is at ‘immediate risk of significant harm’ from his grandparents.

 

  1. Paragraph 11(b) includes the statement that ‘one of the adults within the potential pool of perpetrators is the maternal grandmother’.

 

  1. It was repeated to me a number of times in submissions that the grandmother is in the pool of perpetrators’ .  She is not.  A person is ‘in the pool’ only after a finding of fact has been made to that effect.  I understand that an allegation has been made against her within D and E’s proceedings, but findings have not yet been made.  The threshold is for the local authority to prove.  If the grandmother is alleged to be in the pool of perpetrators as part of these proceedings, it is not because she accidentally found herself there, or someone else put her there, it must be because the local authority positively asserts that she had the opportunity and the motive to cause these very serious injuries, and that she was there at the time the injuries thought to have been sustained.  In support of its assertion, and in order for the Court to come to the conclusion that there are reasonable grounds to believe that C is at risk of suffering significant harm from his grandmother, the local authority must spell this out in its threshold document and provide evidence in support. 

 

 

(*On first reading, I thought that HHJ Vincent was saying a person is only ‘in the pool of perpetrators’ if a finding of fact about the injury has been made, but he is saying that actually a finding of fact has to be made that ‘X and Y and  Z are the people who could have caused the injuries to C, if the Court later goes on to find that C was injured deliberately’  – that doesn’t usually arise, because the issue of whether someone is ‘in the pool’ is not itself contentious.  But of course here, and in any case where a child is potentially being placed with family members whom the LA assert may be ‘in the pool of perpetrators’ – the issue really should be whether the LA satisfy the Court that this person is reasonably likely to be  ‘in the pool’ and they are not just placed ‘in the pool’ on the LA’s say so.  The remarks about ‘motive’ are interesting, because there’s barely ever evidence as to motive in physical harm to children.  But of course, it is relevant for the Court to consider a 6 year period of problem-free care of C, the limited time the grandparents would have spent with C and lack of evidence as to say  – substance misuse, anger management, violence, or being overwhelmed or frustrated, because those are the usual causes of physical abuse – it is very rare to see actual evidence of sadistic intent)

  1. I have not found any other evidence within these proceedings to suggest that the maternal grandmother had care of D in the week or so before her admission to hospital.

 

  1. Nonetheless, SW still asserts in her conclusion that ‘MGM is currently in the pool of perpetrators for causing injuries to D and/or failing to protect her’.

 

  1. A perpetrator does not fail to protect, they perpetrate.  The pleaded allegation is that MGM is in the pool of perpetrators. 

 

  1. I am unaware of what is pleaded against MGM in the proceedings concerning D and E, and I accept there may be specific allegations and evidence that puts her in the frame more clearly.  However, I am concerned with C, and the pleaded threshold document in respect of him.  The threshold document does not explain upon what facts it relies to suggest that the grandmother could reasonably be believed to be in the pool of perpetrators, and scrutiny of the local authority evidence in this case does not assist. 

 

  1. At paragraph 12 it is pleaded that D’s injuries are so severe, ‘with no explanation as to causation and no clarity, at present, around the possible perpetrator, that the local authority does not consider that it can be safe for C to return to his grandmother’s care’. Again, this allegation does not explain why it is that the severity of D’s injuries and the fact of the perpetrator remaining unidentified pose an immediate risk of harm to C from his grandmother. 

 

This next paragraph,  it took me a while to work out who “Q” was – it is the mother’s partner.

 

  1. At paragraph 13 it is alleged that the presentation of the maternal grandmother and mother’s presentation at the hearing of the EPO were ‘extremely alarming’.  They were seen to physically and verbally restrain Q by sitting on him and putting their hands over his mouth, while he clenched his fist.  This allegation may well need to be explored further, but whether true or not and whatever the reasons for and the significance of this behaviour is, again, the threshold document does not explain why this means that C is at immediate risk of significant harm from his grandparents. 

 

 

 

In conclusion

 

 

Is interim threshold crossed?

 

  1. I have looked at the threshold allegations carefully. 

 

  1. I have considered all the evidence in the bundle and I have listened carefully to the oral evidence of Y and of the guardian.

 

  1. I am not satisfied that threshold is pleaded with sufficient clarity to set out why it is said that either the maternal grandmother or the maternal grandfather present an immediate risk of significant harm to C.  I have reviewed all the evidence and I am not satisfied that there are reasonable grounds for believing that on the date protective measures were taken, C had suffered or was at risk of suffering significant harm as a consequence of the care given by his grandparents, which or that the care given by them was not the level of care one would reasonably expect a parent to give.

 

  1. I do not accept that asserting repeatedly that the grandmother is in the pool of perpetrators with respect to D’s injuries, and being concerned that there is insufficient information and clarity around the circumstances of D’s injuries is sufficient to form the basis of a threshold allegation against the maternal grandmother. so far as C is concerned.  If the local authority wishes to put forward a positive case in respect of the maternal grandmother then it is required to set out in the threshold document what facts are relied upon and then to provide the evidence in support of its contention.  They have not done so.  The evidence is at best equivocal.  While at an interim stage there is of course no requirement to prove the section 31 final threshold is crossed, there must be evidence to satisfy the Court that there are reasonable grounds to believe the section 31 circumstances exist.

 

  1. There is no single specific allegation against the maternal grandfather in the threshold document.

 

  1. All the remaining allegations are generalised and none of them provides an explanation as to why it is said that the care that has been given to C or is likely to be given to him by his grandparents should he return to their care, is below what one would reasonably expect from a parent, and why it would put him at risk of suffering significant harm.  

 

  1. Because I do not find interim threshold to have been crossed, I have no jurisdiction to make an interim care order in respect of C and he should in my judgment be returned to his grandparents’ care.

 

  1. In reaching this conclusion I am not suggesting that the local authority’s concerns about the grandparents are baseless, and I accept that SW and the guardian have genuine concerns about the grandparents’ ability to work co-operatively with them, their insight and acknowledgment of the severity of D’s injuries and the existence and impact of domestic abuse upon their grandchildren.  However, the case law is clear, the local authority must meet a high standard when seeking to justify the continuing separation of C from his grandparents.  I must only consider making an order which interferes  with their right to a family life where the strict statutory grounds are made out.

 

 

 

 

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Tense – nervous, headache

 

This is a case in which the Court of Appeal unpicked a decision of a Circuit Judge, where the tenses that were applicable to the threshold criteria became confused.

 

I don’t myself much care for the way that the constructors of section 31 brought tenses into the definition, particularly because they involve some semantic dancing on the head of a pin to the way that people actually consider the threshold in practice. I wrote earlier this year about the Court of Appeal decision that largely turned on the common conflation of ‘is suffering’ (which is what the statute says) and ‘has suffered’ (which is what everyone in Court always says, largely because you are talking about something that inevitably happened in the past but having to do so in the present tense) . In that case, having lectured everyone on the need to stick to the language of the statute ‘is suffering’, the Court of Appeal forgot its own advice and talked frequently about ‘has suffered’

 

Hence the title, and by now, you could probably do with an Anadin yourself

 

 

 

Re K (A child : Threshold findings) 2018

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2044.html

 

  1. On 18 May 2018 HHJ Tolson QC sitting at the Central Family Court dismissed an application for a care order and instead made a private law order that a little girl, then aged six months, to whom I shall refer as K, should live with her mother. The basis for this outcome was that the judge found that the threshold for intervention under section 31 of the Children Act 1989 had not been made out. This appeal by K’s children’s guardian, for which I gave permission on 17 July, is supported by the local authority but opposed by the mother.
  2. Events since the making of the judge’s order have led to this appeal becoming historic. The local authority issued further proceedings on 14 August, and on 23 August K was removed from her mother’s care and placed in foster care under an interim care order. The outcome of these earlier proceedings is nevertheless of some significance as providing a baseline for future decisions. In the circumstances I describe the background in only the broadest detail and avoid making any observations that might bear on welfare decisions yet to be taken by the Family Court.

 

One might well think that a Judge who had decided that there was no likelihood of future harm for a child is on thin ice before the Court of Appeal when the appeal arrives and the likelihood of future harm has developed into actual harm leading the child to have to be removed.  That could just be bad luck, of course.

 

  1. The evidence that the judge heard showed that the mother had done reasonably well in the foster placement and that no harm had come to K since her birth. Nonetheless, when the matter came before the court for final hearing on 23 April, all parties invited the judge to adjourn to allow for further expert evidence and the assessment of other potential carers. The judge refused this application as well as other adjournment applications made during the hearing. He said in effect that he would “see where we go”. His approach led to uncertainty in the minds of the parties as to what was and what was not within the scope of the hearing. That approach is challenged in the grounds of appeal, but the parties are agreed, rightly in my view, that it is no longer necessary to investigate that aspect of the matter.
  2. In the course of his judgment the judge described the mother as having been a deeply troubled teenager. He considered the report of an independent social worker who had acknowledged the mother’s ability to look after K’s basic care in a highly supported environment but gave the opinion that her volatility would prevent her from giving safe, consistent and nurturing care in the community. That was also the opinion of the allocated social worker and of the guardian, who advised that K would not be safe if placed in her mother’s independent care. The psychiatric expert initially expressed cautious optimism but tempered this when she received the other professional opinions. The judge however did not accept this evidence, essentially on the basis of the mother’s performance since K was born. He emphasised that the language of “risks” and “concerns” was not good enough. He was impressed by the mother’s presentation in court. The judge found and was entitled to find that the mother had not been volatile around or towards K. He posed this question to himself:
    1. “Accordingly in my judgment the question whether, when the mother was first placed in the mother and baby foster placement, she was likely to be volatile around her own child has to be judged in large manner by her actual behaviour around [K]. There is no evidence that she is anything other than calm when around [K]. There have been no incidents with the foster carer despite the latter’s, as the professionals say, too-intrusive approach.”

He concluded that while there was reason to believe that the threshold was crossed at an interim stage when the proceedings began, “My judgment on this evidence is that there neither is nor was a likelihood of significant harm to this child”. He continued:

“The possibility, which I acknowledge exists, that the mother will be so volatile in future that he daughter suffers significant emotional harm is one in my judgment which can sensibly be ignored in the context of the threshold justifying state intervention. This, I emphasise, is not to say that the professionals are wrong. I can of course acknowledge that we may be back in court in months’ or even years’ time with the professionals telling me that I was the one who got it wrong. I hope I can profoundly respect their opinion. It is simply the case that on this evidence I cannot be satisfied that the ‘risks’ and ‘ concerns’ which they identify establish the necessary likelihood.”

 

 

The judicial conclusion that the case did not warrant or justify adoption or separation was not the subject of the appeal. The appeal focussed on whether the Judge was wrong in law to conclude that threshold was not crossed and whether he made two separate errors – the first, in considering the likelihood of significant harm to be based on the facts as they were at the time of the final hearing rather than at the date of issue/intervention, and second in tying together the issue of whether threshold was crossed and what the welfare decisions for the child should be.  (In effect, whilst a Judge HAS to take the harm into account when deciding the right order, he or she ought not to take into account what the plans for the child might be when making the factual decision as to whether threshold is met)

 

The first of these is interesting. It does seem to fly in the face of common sense – if a Court is deciding whether to make an order on the basis of future harm, surely they look at the facts as they present at the time of making the order? Well, yes and no.  That’s massively relevant when deciding whether to MAKE the order, but not at all relevant in deciding whether the threshold criteria were met at the time of issue.  The threshold issue is a purely factual analysis, and the welfare issue is balancing up all of the facts and deciding whether an order is proportionate, necessary and better for the child than making no order.

 

In bald terms – if a mother is misusing heroin before the baby is born, then that is a fact which can satisfy the threshold at the time of issue and meet the threshold criteria for making a final order. But the mother being abstinent for six months of the proceedings, having insight into the problems heroin caused her and working hard with support groups is a massive factor in whether an order is needed at all, and if so, what sort of order should be made.

 

(Think of threshold as being whether you get into a nightclub at all, and welfare as being the range of options available to you once you are in there – you can get drunk, dance, flirt with people, get into a quarrel, or leave having had an uneventful evening)

 

  1. On behalf of K’s guardian, Ms Porter argues that the judge was wrong to limit his consideration of the threshold to the mother’s direct behaviour towards K. Instead he should have looked at the wider context, as required by section 31. She next argues that he paid insufficient attention to the relevant date for consideration of the threshold, namely the time when protective action was taken. Lastly, he allowed the issues of threshold and welfare outcome to become entangled, repeatedly referring while considering the issue of threshold to the need for rigorous scrutiny of the option of what he described as “state-sponsored adoption”. These submissions are echoed by Ms Rahman for the local authority. In response, Ms Hibbard, who appeared below for the mother also, argues that the judge did not misdirect himself in any way. She points out that he gave reasons for disagreeing with the professional assessments of risk based upon the mother’s actual care for K.
  2. We are grateful for the clear and precise way in which the arguments have been presented. Having considered them, I am in no doubt that the judge’s decision that the threshold for the making of a public law order was not met in this case was wrong for the following reasons.
  3. Firstly, the case put by the local authority and the guardian was based on the whole of the history, which covered not only events during K’s short lifetime but all the evidence, including incontrovertible evidence concerning events that took place before she was born and while her mother was pregnant with her. By limiting his consideration to the way in which the mother had behaved with K, the judge excluded from his consideration the solid wall of evidence relating to the mother and father’s personal histories. Had he taken a full overview of the matter, it would have been overwhelmingly apparent that at the time proceedings were taken in November 2017, there was a likelihood of harm to K as a result of her being born to two very young and volatile parents. The professional evidence did not consist of expressions of “risks” and “concerns” with no basis in fact. Here the facts were plain, and the likelihood of harm arose from them. Those facts undoubtedly disclosed risks of significant harm that could not sensibly be ignored. In this case the threshold under section 31(2) of the Children Act 1989 was not only met, it was obviously met.
  4. Secondly, the judge misdirected himself by failing to focus on the relevant date of his assessment, namely whether, at the time when protective measures were put in place and using the statutory tense, K “is likely” to suffer significant harm. Instead he became distracted by the mother’s performance in the mother and baby foster placement. That evidence could only influence the assessment of whether the threshold had been crossed insofar as it might shed light on the significance of the evidence as it stood at the relevant date: see G (Children) [2001] EWCA Civ 968 at paragraph 23. Here, however, there was no suggestion that the later evidence cast new light on the earlier evidence in a way that lessened its significance, and that is certainly not how the judge approached the matter. Had he asked himself the right question – was the threshold satisfied at the date proceedings were issued? – there could only have been one answer.
  5. Thirdly, the judge entangled questions relating to the welfare outcome with the question of whether the threshold had been met. The judge’s role is to find the facts, apply the threshold test to them and, where appropriate, make welfare and proportionality evaluations. These are separate exercises, one leading to the next. It is quite possible to reason that the threshold has been crossed but that welfare does not require separation of parent and child. It is not possible to reason that, because the child and parent should not be separated, the threshold has not been crossed.
  6. For these reasons, if my Lord agrees, this appeal must be allowed to the extent that the judge’s finding that the threshold of likelihood of significant harm had not been crossed must be set aside

 

Care proceedings and diplomatic immunity

This photo has NO relevance to the case being discussed. I know sometimes I’m tenuous, but this time there’s literally no connection. It may as well be a picture of the Frog Brothers. (“We trashed the one who looked like Twisted Sister!”)

 

 

Sadly, my gut instincts that I’d used the Lethal Weapon 2 gag about diplomatic immunity proved correct, and I’ve got nothing else. Believe me, I’ve tried…. I have utterly no reason to believe that Balki from Perfect Strangers was a diplomat, but at least I’ve made you think about Perfect Strangers again. Goodness, that was an awful show.  Was it as bad as Small Wonder, a show involving a precocious child who also happened to be a robot? They are both about as relevant to this case.

 

 

 

But this is a case in which a woman who worked for the High Commission of X country (we never get to learn which) became involved in care proceedings – it being alleged that she had hit her children 4o times with a belt and shaved the head of one of the children as a punishment.

 

This is what the Judge found proved

 

  1. My judgment in October 2017 recorded the basis upon which the threshold criteria were satisfied. To summarise, the children had suffered significant physical and emotional harm as a result of the mother having smacked and slapped all of them; having hit all of the children with a belt using up two or three strikes; having thrown a shoe at D’s head causing injury; having shouted at D and threatening to send him to X if he did not behave and thereby scaring him; and having threatened to cut D’s hair as a punishment. That abusive behaviour towards the children was to be addressed by the mother engaging in therapeutic work, a detailed programme of which had been endorsed by me in my judgment. At that time, the mother had expressed a willingness to commit herself to the therapeutic work required. It is important to bear the above in mind when assessing the situation now.

 

The Court had to hear legal argument about whether :-

 

(a) She had diplomatic immunity at the time that the allegations had occurred and

(b) Whether her diplomatic immunity was a shield against care proceedings

 

A Local Authority v X and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/874.html

 

A lot of the judgment is quite dense, so I’m just going to give you the whistlestop highlights – if you’ve got a diplomatic immunity / care proceedings crossover case or when you get one in the future, you’ll want to read the whole case.

Just by way of context, by the time of this hearing, the LA plan was to rehabilitate all of the children to mother’s care, she would be moving back to X and the LA sought no orders. The Guardian vehemently opposed that plan.  The older children wanted to go back to mother’s care, but in England, not in X country.

In terms of whether diplomatic immunity applied, as the mother had left the employment of the High Commission of X, a notice had been given. The diplomatic immunity ends 31 days after that notice.  (So if you have diplomatic immunity and leave the job that attracts it, you still keep the immunity for 31 days after your last day. Who knew?)

 

  1. It is the FCO’s policy that, pursuant to Article 39(2) of the VCDR, individuals who enjoy privileges and immunities by reason of their diplomatic functions shall cease to enjoy them when they leave the country, or alternatively shall normally be considered to have ceased to enjoy them 31 days after their functions (or those of the person from whom that individual derives their privileges and immunities, in the case of a family member) come to an end.

 

The FCO certificate and the 31 days of grace had ended before the allegations were said to have happened, so diplomatic immunity would not have applied. However, the Court went on to consider and determine whether it would have been a shield in any event.

 

  1. Re B (Care Proceedings: Diplomatic Immunity) [2002] EWHC 1751 (Fam), [2003] 1 FLR 241 considered the making of an interim care order in respect of a 13-year-old child of a member of the administrative and technical staff of a foreign mission who was found to have suffered serious non-accidental injuries consistent with repeated and severe hitting. The father and his family were accepted as having no immunity from care proceedings, which were civil proceedings, provided that they related to acts performed outside the course of the duties of the father. It was not suggested the beating and bruising of the child came within the scope of the duties of the father, and on this basis the court found the father, mother, and the child had no immunity from family proceedings and so continued the interim care order with the child being placed in foster care. Nothing in that decision suggested that the child lost her diplomatic rights and privileges by reason either of being the subject of an interim care order and/or being placed with foster parents [see paragraph 17].

 

 

Under diplomatic immunity, the person cannot be imprisoned or arrested. Neither is it possible to bring  a civil lawsuit for actions that relate to the functions the person was carrying out as part of their duties.  It is, however, possible to bring  a civil case for behaviour or alleged behaviour which was outside of the duties of the diplomat.  (It obviously isn’t part of your duties as a diplomat to hit your children with a belt)

 

The Effect of Diplomatic Immunity on the Court’s Jurisdiction

  1. Given the conclusions I have reached, neither the mother nor the children retained their diplomatic privileges and immunities which were lost on 31 January 2018.
  2. That conclusion does necessarily permit the court to make final care orders. Both Mr Newton QC and Miss McKenna QC sought to persuade me that the court had no jurisdiction to do so if the children retained their diplomatic privileges and immunities. Even if they do not, as I have found, there may be other obstacles to the court’s jurisdiction.
  3. The decision of the then President of the Family Division, Lady Justice Butler-Sloss, in Re B [see above] suggested that there might be limits to the court’s power to enforce either interim or final care orders. Arguments that the court had no jurisdiction to make care orders were rejected in that case. The President considered Article 29, Article 30, Article 31 and Article 37(2) in coming to the following conclusion:
  4. “17. The father is within the group of administrative and technical staff of the embassy. Consequently, he and his wife and children enjoy, as I understand it, the following privileges under the 1964 Act which are relevant to these proceedings. His person is inviolable. His private residence is inviolable. He has immunity from criminal proceedings and is not obliged to give evidence in any proceedings. No measures of execution can be taken against him. He and his family are not, however, immune from civil proceedings in the case of acts performed outside the course of his duties. It has not been suggested to me that the beating and bruising of B come within the scope of the duties of the father. Prima facie, it would therefore appear on the written evidence before me that the father has no immunity from family proceedings, including care proceedings which are civil proceedings. This loss of immunity would also seem to apply to the mother and to B, who derive their immunity from the father.”

The President went on to consider whether she was able to make orders which could not ultimately be enforced. She did not find this to be an impediment and concluded that the making of an interim care order fell within the exception to Article 37(2) of the 1964 Act. She went on to consider whether the child was being detained under the interim care order and concluded that the child’s present situation did not breach her rights under Article 29 of the VCDR [paragraphs 32 and 35].

  1. Having come to those conclusions, the President recognised that there were limits to the power of the court to enforce any orders which might be flouted by either of the parents [paragraph 37]. Though it was not strictly necessary for her to consider the impact of the European Convention on Human Rights on the 1964 Act, she expressed the opinion that the European Convention Article 3 rights of the child had been breached. In those circumstances, the court as a public authority had a positive obligation to protect a child who had been exposed to abusive treatment which appeared to fall within article 3. Her final conclusion on the court’s jurisdiction reads as follows:
  2. “40. … if I were wrong in the view I have taken of the Diplomatic Privileges Act 1964, leaving this court with jurisdiction to entertain the local authority’s application, I would find myself satisfied that such a result is necessary in order to read the 1964 Act in a way that is compatible with the Human Rights Act 1998.”

I respectfully adopt that analysis which also applies to the making of final care orders.

  1. In this case I am being asked to make final care orders in respect of S, E and SL. That course is opposed by the local authority and by the children’s mother. I have concluded that I do have the jurisdiction to make final care orders in respect of these children in circumstances where they have lost their diplomatic privileges and immunities. Though I was not required to do so, I would have come to the same decision if the children had retained their diplomatic privileges and immunities. My reasoning is as follows.
  2. The President in Re B held that any limitation on the power to enforce orders should not prevent orders being made. In that case there was little argument regarding enforcement and, in consequence, I do not regard the remarks made about the power of enforcement as determinative of the issue. It would be surprising in my view if the provisions of Article 37(2) permitted proceedings to be brought but did not also permit consequent orders to be enforced. It would also be contrary to the rule of law for a court to determine a person’s legal rights and then not enforce them. Principles such as the rule of law are well recognised in international law and are relevant, in my view, when interpreting the provisions of Article 37(2). In Jelicic v Bosnia (2008) 47 EHRR 13, European Court of Human Rights held that there had been a breach of Article 6(1) for the failure to enforce a final judgement in respect of the contents of a bank savings account. The Court declared in paragraph 38 as follows:
  3. “The Court reiterates that Art.6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a contracting state’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Art.6(1) should describe in detail the procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions. To construe Art.6 as being concerned exclusively with access to a court and the conduct of proceedings would indeed be likely to lead to situations incompatible with the principle of the rule of law which the contracting states undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Art.6.”
  4. In this context I note that Article 31(3) of the VCDR contains no prohibition on enforcement for diplomatic agents in proceedings under the civil and administrative jurisdiction of the receiving state in respect of actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions [Article 31(1)(c)]. That Article also extends to members of the administrative and technical staff of a mission who do not enjoy immunity for acts performed outside the course of their duties. It is plain in this case that the mother’s behaviour towards her children was not within the course of her duties as a member of the administrative and technical staff of X High Commission. There was nothing in Article 31(1)(c) which prevented the enforcement of care orders in public law proceedings and the enforcement of such orders would, in my analysis, also be compatible with Article 29 which provides for the inviolability of the person of the diplomatic agent who shall not be liable to any form of arrest or detention.
  5. The local authority, supported by the mother, sought to argue that the provision of foster care for the children comprised an element of detention contrary to Article 29. I do not accept that submission and neither did the President in Re B. The children presently placed in foster care were not locked in or prevented from leaving the home and therefore their present situation fell very far short of a breach of any rights they might have under Article 29 of the VCDR. That conclusion was supported by the judgment of the current President of the Family Division in in Re A-F (Children) [2018] EWHC 138 (Fam) [see paragraphs 37-44]. There was nothing in the children’s circumstances in foster care which amounted to a deprivation of their liberty or an infringement of any rights they might have pursuant to Article 29 of the VCDR.
  6. Did the mother retain any residual rights and privileges which might prevent the making a final care orders in this case? Article 39(2) provides that, when the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country or an expiry of a reasonable period in which to do so but shall subsist until that time even in case of armed conflict. However, with respect to acts performed by such person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. Here, it is clear that the mother’s residual immunity did not extend to acts performed outside the course of her duties such as are engaged in these proceedings.
  7. In conclusion I find that, should I consider the children’s welfare so requires, I have the jurisdiction to make final care orders in respect of these children, all of whom have lost their entitlement to diplomatic privileges and immunities as has their mother.

 

 

In short then

 

  1. Diplomatic immunity ends 31 days after the position ends
  2. If there is diplomatic immunity, it means that there can’t be an arrest or prosecution
  3. But if the behaviour is outside of the diplomats professional functions, a civil case (such as care proceedings can be brought)
  4. Making of an ICO is not a breach of the child’s diplomatic immunity in relation to detention
  5. It isn’t possible, however, to commit a parent with diplomatic immunity to prison for breach of a Court order

 

In the case in question, there was criticism of the Guardian’s position and the amount of work done. (This was the LA and mother’s position about that, rather than the judicial conclusion)

 

  1. I record that the Children’s Guardian has been criticised by the mother and the local authority. These criticisms were in effect (a) that she failed to meet with the children’s mother until August 2017 at which time the proceedings had been ongoing for many months; (b) in consequence, she had an inadequate understanding of the mother; (c) further, she had an inadequate understanding of the home circumstances and any change in those by not meeting with C, the children’s older sister, until 3 February 2018; (d) she entertained an unrealistic doubt in the mother’s obligation to return to X; and (e) she had a belief that X was a dangerous country per se where any children should not be required to live regardless of the quality of parenting they might receive. It was asserted that, for those reasons, I should approach her evidence with a considerable degree of caution.

 

 

The Court’s take was

 

  1. Although the Children’s Guardian’s recommendation was based on welfare considerations, with any impact of the children’s immigration status being consequential, the making of a final care order in relation to S on the basis that, should the mother be required to return to X, he would return to long-term foster care for the remainder of his childhood was a wholly disproportionate outcome. It was founded on an evidential basis about the risks in X which was not established to the relevant standard of proof and it represented, on one view, the making of an order which had the impermissible effect of depriving the Secretary of State for the Home Department of her power to remove S from the UK. As contended for by the Children’s Guardian, final care orders with a contingency plan for long-term foster care which precluded the return of all three children to X were also, in my view, impermissible for the same reasons.
  2. Though I understand the concerns expressed by the Children’s Guardian in this difficult and finely balanced case, I have concluded that she sought to protect the children from both their mother and their homeland and, in so doing, lost sight of the children’s welfare in the short, medium and long-term. Her evidence focused on the negatives in the relationship between the mother and children rather than attempting to balance these against the positive changes achieved by the mother during the entirety of the legal process. In coming to this conclusion, I do not accept all of the criticisms made of the Children’s Guardian by Miss McKenna though I was persuaded by her overall submission that I should be circumspect about accepting the recommendations made by the Children’s Guardian.

 

The children would be returning to the mother under a rehabilitation plan, and going back to X in due course, under no statutory orders.

“I completely forgot”

 

This is a successful appeal (indeed fairly unusually it was an appeal that by the time the Court of Appeal came to look at it, all four parties were in agreement should be granted) about a decision in the High Court to make a finding of sexual abuse against a child, T, who had just turned 16 when the High Court considered the case. T had been the subject of a Care Order and Placement Order when she was six, then placed for adoption.

 

(Bit nervous about this one, as I know that 75% of the silks in the case read the blog… and I have a mental crush on all three of them. And because I also have a lot of respect for the High Court Judge who gets monstered in the appeal judgment)

 

The adoption got into difficulties, and T went into respite care for a short time in May 2014. She went back to her adopted family at the end of May and that carried on until the end of August 2014, at which point the adopters agreed a section 20 arrangement – the social work team wishing to remove T as a result of her allegation to a CAMHS worker. The allegation was that during that period from May 2014-August 2014 when she was with her adopted family, the adoptive father had sexually assaulted her, including one allegation of rape.

P (A Child), Re [2018] EWCA Civ 720 (11 April 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/720.html

 

The section 20 arrangement continued. It was obvious to all that T would not be going back to the adopters. (Listen, I know that at this point, the adopters are legally her parents and I don’t seek to diminish that, but I think to understand the case it is easier to say adoptive parents and birth parents). The s20 continued until the Local Authority issued proceedings in April 2016. By that time, T had given an ABE interview, made further allegations and declined a second ABE interview and made partial retractions of the allegations. Her behaviour had deteriorated and by the time of the Court case, had been detained under the Mental Health Act 1983. (which is rare for a child)

 

The first question the case raises then, is why this child was under a section 20 arrangement for so long, rather than proceedings having been issued?   I’ll preface this by saying that obviously a case involving an allegation of rape against a child – particularly rape where the alleged perpetrator is an adopter and someone still approved to adopt children, ought to have been placed before the Court. Very quickly after those allegations were made – perhaps allowing a short period of time for the investigation to take place.

(I can’t lay my hands on the authority at the moment, and Hershman McFarlane is being uncooperative, but I’m fairly sure that there is a mid 1990s authority that says where the LA believe the child has been the subject of serious sexual or physical abuse, they ought to place it before the Court by issuing proceedings… I wish I could find the authority. Perhaps one of my illustrious silk readers can illuminate us.  The Act itself just says that the LA can’t issue proceedings unless they believe the threshold criteria to be met – so it says that there are situations where they shouldn’t, it is silent about the circumstances in which they should. The LA don’t have to issue proceedings on every child where the threshold is met. )

 

So what follows is not a justification or excuse for the delay, but an attempt to consider the context.

 

Here are some possible reasons why proceedings were not issued :-

 

  1. It just never got considered (prior to April 2016), and it wasn’t a conscious decision not to, so much as just nobody thinking about it.
  2. The adoptive parents were not asking for T back, T didn’t want to go back, T was in what was considered to be a safe place, and so there was a thought process that nothing was to be gained by going to Court. T wasn’t going to be adopted by anyone else and a Care Order would add nothing to the situation on the ground. Perhaps people even actively thought about the ‘no order principle’ and considered that it wasn’t possible to make out a case that the making of a Care Order (as needed by article 8) would be ‘proportionate and necessary’
  3. This was happening BEFORE the s20 drift was coming to judicial attention and prominence as an issue, and when those s20 cases did emerge, that’s when the LA did take action.
  4. Perhaps everyone was caught up in the day to day management of T and what she needed in terms of placement and stability, and overlooked the bigger picture.
  5. Let’s be quite honest – there’s the potential that the parents in this case were treated differently (because they were adopters) to the way they would have been treated as birth parents.

 

However, ALL of those issues are hard to excuse the fact that T’s sister, X, remained with the adoptive parents. So the LA had an allegation of rape by T, known about for over 18 months, and knowing that a younger sister was still living with the adopters.

 

(So either they didn’t believe T’s allegations OR they thought for some reason that X was safe, but the point is they couldn’t know for sure either way)

Anyway, the Court of Appeal were critical of the delay

 

12.Unfortunately, and to my mind inexplicably, the state of affairs whereby T was accommodated under CA 1989, s.20 was maintained from August 2014 until the institution of care proceedings in April 2016, notwithstanding the clear and stark issue of fact created by T’s allegations and the father’s wholesale denial. Irrespective of the fact that T’s mental health and presenting behaviour may have rendered it impossible for her placement in the family home to be maintained, the need to protect and have regard to the welfare of the younger sibling, X, who remained in the family home, required this significant factual issue to be determined

 

The next issue in the case is that the adoptive parents agreed that the threshold was met for T, because she was beyond parental control. The LA, however, sought a finding about the sexual abuse allegations (five findings in all). That obviously makes sense given that X wasn’t beyond parental control, and there was a need to establish what happened to T, to decide if X was at risk of sexual harm. That makes sense to me. (I can’t, so far, make sense of why it appears that the proceedings were about T, and not T AND X – and the Court of Appeal say that

 

 

50.So far as X is concerned, although she has been the subject of arrangements made under the Pre-commencement Procedure operated within the Public Law Outline, no proceedings have ever been issued with respect to her since the making of the adoption order )

 

The High Court heard from 16 witnesses at the finding of fact hearing. Things went wrong when Parker J came into Court to deliver her judgment

 

 

 

 

The judgment

17.The oral evidence had been concluded on 18 November 2016 and closing submissions were delivered on 18 and 25 November. The case was then adjourned to 8 December 2016 for the delivery of judgment. On that occasion, however, the Judge explained that she had been occupied with other cases and had been unable to prepare a written judgment. She had, however, reached “some conclusions” and, with the parties’ agreement, she stated what those were in the course of a short judgment which runs to some 6 pages in the agreed note that has been prepared by the parties. In short terms, the Judge rehearsed a number of the significant points in the case, for example, T’s mental health, the recording of her allegations and the ABE interview process, any evidence of inconsistency and T’s overall reliability, and an assessment of the father’s credibility before announcing her conclusion in the following terms:

 

 

 

“I have come to the conclusion therefore, and I am sorry to have to do so as I thought the mother and the father were the most likeable people, but during the course of 2014, there was an attempt at least, it may have been more, of sexual congress between the father and T.”

18.The case was then adjourned to 30 January 2017 for the delivery of a full judgment. A note of what had been said in court on 8 December was agreed between the parties and submitted to the Judge. On 30 January the Judge again indicated that, due to pressure on her time as a result of other cases, she had not been able to prepare a full judgment. Instead the Judge gave a lengthy oral judgment, seemingly based on prepared notes.

 

 

19.On 30 January, when the Judge had concluded her judgment, counsel for the father immediately identified a number of aspects in which, it was submitted, the judgment was deficient. The Judge directed that an agreed note of what she had said should be prepared and submitted to her within 7 days, together with requests from each party identifying any suggested corrections or requests for clarification.

 

 

20.The parties, in particular those acting for the parents, complied with the tight 7-day timetable. The Judge was provided with an agreed note of judgment which runs to some 115 paragraphs covering 42 pages. In addition, counsel submitted an annotated version of the note indicating possible corrections, together with a list of more substantial matters which, it was claimed, required clarification. In doing so those acting for each of the parties were complying precisely with the process originally described by this court in the case of English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 and subsequently endorsed in the family law context by this court on many occasions.

 

 

All of this was compounded then, because despite knowing that the case was going to be appealed, following the judgment in January 2017, the transcript of the judgment wasn’t made available. The transcribers sent it to the Judge on 18th March 2017 – the Judge sent an approved copy back to them SIX MONTHS later, September 2017, but that approved copy never got sent to the parties or the Court of Appeal.

 

The Court of Appeal (at the time of hearing the appeal) were therefore working from an agreed note of the judgment rather than the transcript

The Judge’s decision

26.Early in the judgment of 30 January the Judge records the decision that she had already announced at the December hearing in the following terms (paragraph 17):

 

 

 

“I have decided that she has been sexually interfered with by her father and that she has been caused significant emotional harm by reason of her mother’s disbelief in telling her so, although my criticism of the mother was highly muted in the circumstances for reasons I will come back to.”

27.After a summary of the evidence the Judge stated (paragraph 58):

 

 

 

“It is against that background that I need to assess the threshold.”

 

She then set out the content of the local authority fact-finding Schedule introducing it with the following words:

 

“I am asked to make findings in terms of:”

 

Unfortunately, the judgment does not record the Judge’s decision on any of the five specific findings of sexually abusive behaviour alleged in the local authority Schedule save that, at paragraph 71, the Judge stated “I also find that the description T gives of her father attempting to penetrate her is wholly believable”. Whether that statement amounts to a finding is, however, not entirely clear as it simply appears as a statement in the 8th paragraph of a 40 paragraph section in which the Judge reviews a wide range of evidence.

28.The basis of the appeal is that the Judge’s judgment fails sufficiently to identify what (the local authority would submit, if any) findings of fact the Judge made.

 

 

29.Before leaving the 30 January judgment, it is necessary to point to 2 or 3 other subsidiary matters that are relied upon by the appellants as indicating that the judgment, substantial though it may be in size, is inchoate:

 

 

 

  1. a) Prior to listing the witnesses who gave oral evidence the Judge states “I think I heard the following witnesses”. The list of 13 witnesses is said to omit 3 other individuals who also gave oral evidence.

 

  1. b) In the closing stages of the judgment the Judge makes one additional point which is introduced by the phrase “one thing I forgot to say” and a second which is introduced by “also one thing I have not so far mentioned, and I should have done”.

 

  1. c) At the very end of the judgment, and after the Judge has gone on to deal with procedural matters unrelated to the findings of fact there appears a four paragraph section dealing with case law related to the court’s approach to ABE interviews where it is asserted there has been a breach of the ABE guidelines. That section is preceded by the phrase “I completely forgot”.

 

There are of course, all sorts of different styles and approaches one can adopt to delivering a judgment and the Court of Appeal are not trying to be prescriptive or to fetter a Judge’s discretion of   stylistic delivery. Having said all that, if the immediate comparator that comes to mind is Columbo talking to Roddy McDowell, that’s not a good thing.

 

Have I ever been happier to be able to get a particular picture into the blog? Maybe Kite-Man, but I am VERY pleased about this one

 

The appeal itself

30.Two notices of appeal issued on behalf of the father and mother respectively were issued in August 2017. Although this was many months after the making of the care order and the delivery of the oral judgment in January 2017, I accept that the delay arose because the parties were waiting for the Judge to engage in the process of clarification that she had directed should take place and, thereafter, the production of a final version of the judgment. There were also considerable difficulties in securing legal aid, caused at least in part by the absence of a judgment. At various stages the Judge’s clerk had given the parties some hope that a final judgment might be produced. The notices of appeal were only issued once the parties were forced to conclude that a final version of the judgment was unlikely to be forthcoming. Following the failure of the efforts made by the Court of Appeal to obtain a judgment, I granted permission to appeal on 16 November 2017.

 

 

31.The grounds of appeal and skeleton arguments that argue the cases of the father and of the mother from their respective positions engage fully with the underlying facts in the case in addition to arguing that the process as a whole has been fatally compromised by the court’s inability to produce adequately precise findings and to do so in a judgment which sufficiently engages with the significant features of the evidence. As it is on this latter basis that the appeal has preceded by consent, my Lords and I have not engaged in the deeper level, granular analysis of the evidence that would otherwise be required.

 

 

32.In terms of the English v Emery Rheimbold process, those acting for each of the two parents submitted short (in the mother’s case 3 pages, in the father’s case 5 pages) requests for clarification on specific issues. Each of those requests is, on my reading of the papers, reasonable and, even if a specific request were unreasonable, it was open to the Judge to say so.

 

 

33.The resulting state of affairs where the only record of the Judge’s determination is imprecise as to its specific findings and silent upon the approach taken to significant elements of the evidence is as regrettable as it is untenable.

 

 

34.That the state of affairs that I have just described exists, is made plain by the stance of the local authority before this court. Rather than simply “not opposing” the appeal, the local authority skeleton argument, as I will demonstrate, specifically endorses the main thrust of the appellant’s case. Further, we were told by Miss Hannah Markham QC, leading counsel before this court, but who did not appear below, that the local authority’s position on the appeal has been approved at every layer of management within the authority’s children services department. For one organ of the state, the local authority, to conclude that the positive outcome (in terms of the findings that it sought) of a highly expensive, time and resource consuming, judicial process is insupportable is a clear indication that the judicial system has, regrettably, failed badly in the present case.

 

 

35.Against that background it is helpful to quote directly from the skeleton argument prepared by Miss Markham and Miss Grieve on behalf of the local authority:

 

 

 

“5 At the heart of the appeal are findings that (father) behaved in a sexually inappropriate way towards his daughter T. The findings are set out in this way, as it is accepted by the respondent local authority that the judgment given by Mrs Justice Parker does not particularise the findings made nor does it cross refer findings to the local authority Schedule of findings. As such the findings have not been accurately recorded or set out.

 

….

 

“14 The local authority does not oppose the appeal for reasons set out below.

 

15 However the local authority does not accept that all grounds as pleaded would be matters or arguments which the local authority would either not oppose or indeed agree, if taken in isolation. The focus in approaching this appeal has been to stand back and have regard to the fairness and integrity of the judgment and the process taken by the parties to try to clarify the judgment and in particular the findings made.

 

16 It is submitted that it must be right and fair that a party against whom findings are made should know the actual findings made and the reasons for them. It is submitted that reasons on reasons are not necessary, but clarity as to findings and a clear basis for them is a primary requirement of a Judge.

 

17 It is significant that the learned Judge has resisted requests of her to clarify her judgment and that in particular she has not taken opportunities to set out the findings she has in fact made.

 

18 Dovetailing into that error is the argument that flows from that omission; absent clear findings it is impossible to see, understand and argue that the Judge formulated her findings on clear, understandable and right reasoning.

 

 

21 In this instant case it is submitted on behalf of the parents that the judge did not even set out the findings, not least allow them to see whether she fairly and with significant detail set out her reasoning for coming to the findings she then made. Further requests of the Judge were properly made and the learned Judge has neither responded to them nor clarified why she is not engaging in the requests of her

 

 

23 (Having listed the short specific findings made by the Judge) It is acknowledged that these matters are the most detail (the Judge) gives to her findings. Whilst it is asserted by the local authority that the learned Judge was able, within the ambit of her wide discretion to make findings, it was incumbent upon her to set out with clarity what those findings were and how she came to make them.

 

24 It will be apparent from the matters set out above that she failed in this task and that she failed to cross refer back to paragraph 59 (where the Judge listed the content of the local authority Schedule of findings) and set out what she had or had not found proved.”

36.The local authority identified two specific grounds relied upon on behalf of the father, one asserting that the Judge rejected the father’s case on the deficits on the ABE interview, against, it is said, the weight of the evidence, but provides no analysis for coming to that conclusion. Secondly the local authority accepts that there were many examples of inconsistency within the accounts that T had given. In both respects the local authority expressly acknowledged that the Judge failed to engage with these two important aspects of the case and failed to set out her findings in respect of each.

 

 

37.The local authority, rightly, argue that a Judge has a wide discretion to accept or reject evidence in a case such as this and that the Judge does not have to refer expressly to each and every detail of the evidence in the course of their judgment. The local authority’s skeleton argument, however, accepts “that a fair and balanced assessment of the cases advanced and evidence for and against said cases is necessary, proportionate and fair and has not occurred sufficiently in this complex case.”

 

 

38.Miss Kate Branigan QC, leading Miss Lianne Murphy, both of whom appeared below for T, acting on the instructions of the children’s guardian adopt a similar stance to that taken by the local authority. In their skeleton argument (paragraph 10) they state:

 

 

 

“Albeit T maintains that the allegations made against her father are true, the children’s guardian has had to conclude that the judgment as given by the court on 30 January 2017 is not sustainable on appeal and that inevitably the appeals on behalf of both appellants must succeed.”

 

Later (paragraph 14) it is said:

 

“Regrettably we accept that it is not possible from the judgment to identify what findings the court has made. At paragraph 59 of the judgment note, the court sets out the detail of the findings it is invited to make, but at no stage thereafter does the learned Judge indicate which of the findings she has found established to the requisite standard nor does she attempt to link what she is saying about the evidence to the specific findings sought….On this basis alone the judgment is arguably fatally flawed.”

 

And at paragraph 15:

 

“We further recognise in certain key respects the court has failed to engage with the totality of the evidence to the extent that any findings the court has purported to make are unsustainable in any event. In particular, we accept the arguments advanced on behalf of the appellant father… that the court failed to undertake a sufficiently detailed analysis of the context in which T’s allegations came to be made, failed to engage with the professional evidence which called into question the reliability of those allegations and did not weigh appropriately in the balance the inconsistencies which were clearly laid out on the evidence in relation to T’s accounts.”

39.In the light of the parties’ positions, the oral hearing for this appeal was short. All were agreed that the appeal must be allowed with the result that, at the end of a process which started with allegations made in August 2014, and in included a substantial trial before a High Court Judge, any findings of fact made by the Judge and recorded in her oral determinations made in December 2016 and on 30 January 2017 must be set aside and must be disregarded in any future dealings with this family.

 

 

40.For our part, my Lords and I, rather than simply endorsing the agreed position of the parties, had, reluctantly but very clearly formed the same view having read the note of the 30 January judgment and having regard to the subsequent failure by the court to engage with the legitimate process of clarification that the Judge had, herself, set in train

           41.Before turning to the question of what lessons might be learned for the future and offering some guidance in that regard, a formal apology is owed to all those who have been adversely affected by the failure of the Family Justice system to produce an adequate and supportable determination of the important factual allegations in this case. In particular, such an apology is owed to T, her father and her mother and her younger sister X, whose own everyday life has been adversely affected as a result of professionals justifiably putting in place an intrusive regime to protect her from her father as a result of the statement of the Judge’s conclusions 16 months ago.      

 

    

The Court of Appeal were asked to give some clarifying guidance in relation to the issue of what happens where the parties ask (as they must) for the Judge to clarify flaws in the judgment and after a period of time the Judge has not done so. For a start, when does the clock for the appeal start to tick? After judgment, or after the request for clarification, or after receipt of such clarification?

 

 

 

42.Whilst it is, fortunately, rare for parties to encounter a situation such as that which has arisen in the present case, such circumstances do, however, occur and we have been invited to offer some limited advice or guidance.

 

 

43.The window in which a notice of appeal may be issued under Civil Procedure Rules 1998, r 52.12(2) is tight and is, in ordinary circumstances, limited to 21 days. It is often impossible to obtain a transcript of a judgment that has been delivered orally within the 21 day period. Unfortunately, it is also the experience of this court that not infrequently problems occur in the five or six stages in the administrative chain through which a request for transcripts must proceed and it may often be months before an approved transcript is provided. Whilst it is plainly more satisfactory for the judges of this court to work on an approved transcript, and that will normally be a pre-requisite for any full appeal hearing, the Lord or Lady Justices of Appeal undertaking evaluation of permissions to appeal in family cases are now more willing to accept a note of judgment (if possible agreed) taken by a lawyer or lawyers present in court in order to determine an application for permission to appeal rather than await delivery of an approved transcript of the judgment. It is therefore important for advocates attending court on an occasion when judgment is given to do their best to make a full note of the judgment so that, if it is needed, that note can be provided promptly to the Court of Appeal when a notice of appeal is filed.

 

 

44.The observation set out above requires adaptation when a party seeks clarification of the Judge’s judgment. In such a case, it must be reasonable for the party to await the conclusion of the process of clarification before being obliged to issue a notice of appeal, unless the clarification that is sought is limited to marginal issues which stand separately to the substantive grounds of appeal that may be relied upon.

 

 

45.Where, as here, the process of clarification fails to achieve finality within a reasonable time, it is not in the interests of justice, let alone those of the respective parties, for time to run on without a notice of appeal being issued. What is a reasonable time for the process of post judgement clarification? The answer to that question may vary from case to case, but, for my part, I find it hard to contemplate a case where a period of more than 4 weeks from the delivery of the request for clarification could be justified. After that time, the notice of appeal, if an appeal is to be pursued, should be issued. The issue of a notice of appeal does not, of itself, prevent the process of clarification continuing if it has not otherwise been completed. Indeed, in some case the Court of Appeal at the final appeal hearing may itself send the case back to the Judge for clarification. The benefit of issuing a notice of appeal, apart from the obvious avoidance of further delay, is that the Court of Appeal may itself directly engage with the Judge in the hope of finalising any further outstanding matters.

 

 

Whilst the Court of Appeal say that because of the administrative nightmare that is obtaining an approved transcript, they will accept an agreed note from the lawyers I wonder how on earth that is going to work with cases involving only litigants in person (eg about 90% of private law proceedings)

Radical mountaineering in Leicestershire

A family with their three adult children and three minor children were stopped at Harwich port, we don’t know the reasons  (but can probably guess).  The father’s home was searched as a result and some significant things found as a result.

(The LA involved is not named to assist in anonymity, so please don’t assume that it is Leicester or Leicestershire because of the title of the post. You will see why I gave it that title later, be patient!)

 

The family’s version of events was that all of them were travelling to Holland, with the intention of visiting a children’s play park for the day, to sleep in their rented car overnight and travel back the next day.  That made the authorities query why it was that the father had been to a camping store the day before, spending six hundred pounds.  This was not a wealthy family.

One of the adult siblings gave evidence that the camping and outdoors equipment was for a later trip planned to Scotland, where they would be climbing mountains.

 

  1. Then there is B’s evidence about the equipment. She told me that the planned trip was to Scotland at Easter. The father had talked about his pleasure in going to Aviemore as a teenager. She appeared never to have heard of the Cairngorms when she was asked but perhaps that is not absolutely fatal to her case. More importantly, Aviemore is a ski resort, is at elevation, and there was likely to be still snow up there. To suggest that this family planned to sleep in a tent in potentially harsh weather conditions is absolutely fanciful. The father has diabetes and other health conditions. He needs to relieve himself frequently. B told me it was planned that she and the other children would go for long walks and climb a mountain. There was no suggestion as to what was going to happen to the father, and how he was going to keep up, or how the younger children would cope if they were tired or wet or cold. I may be wrong in having detected an inconsistency in B’s evidence as to whether or not they were intending to sleep in different camp sites taking their equipment with them, or whether they were going to stay at the same (unidentified) campsite every night and go for walks during the day. It is inconceivable that the father either would have subjected himself to such conditions or that he would have been left shivering in a tent whilst the family went on without him.
  2. I asked B whether she had ever climbed a mountain and she said she thought she had in Wales. She then said she had climbed one in Leicester recently. It had been very high and very steep. Leicester is an extremely flat part of the country. It is obvious to me that B was making up her evidence as she went along and I am quite satisfied that the Aviemore trip was a smokescreen. The family cannot even agree for when it was planned.
  3. I am satisfied that I have been told a series of untruths by the adults about the background to the Holland trip, what was intended, and the surrounding circumstances, and that in itself is probably one of the most important features of my findings

 

Indeed, Leicestershire is not known for its  mountains. Taking my lead from the Hugh Grant movie, I have established that there is one summit in Leicestershire which squeaks into being classified as a mountain, being (just) over 2000 meters in height.  Preparation for the Cairgorms it is not.

 

Perhaps the family were misinformed

 

Humphrey Bogus, sorry Bogart

 

Re Y children (findings as to radicalisation) 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3826.html

 

  1. Radicalisation cases have only come to the forefront of the court’s attention during the last two and a half years, particularly since the escalation of troubles in the Middle East with the Syrian conflict and the rise of the Islamic State, called as well by various other different names. Radicalisation is not new.
  2. I stress that the courts see cases where religion is said to be harmfully impressed on children, or provides a harmful environment or lifestyle for them, as in cases of other religions as well. I have professional experience of childcare litigation concerning fundamentalist Christian sects and certain Hindu and Jewish groups, for example. I recognise also that the UK has not been immune from sectarian Christian violence both historically and recently.
  3. I repeat, as I have said to the parties, that not only do I realise how sensitive is this case, but how difficult are issues which concern freedom of thought, religion and expression; and personal autonomy. At the same time I have to look at s.31 of the Children Act in respect of care proceedings now presently in being in respect of the three index children. This case is about significant harm or the risk thereof and child welfare in respect of young people who cannot truly decide on their political and religious beliefs, and crucially, activities stemming therefrom.

 

The Judge heard evidence as to some of the matters found within the families purchases/packing, which was compared to the instruction list prepared by Isis and circulated to people who were intending to join up with them in Syria. In a peculiar set of circumstances, possession of this list is a criminal offence (don’t google the list, it will almost certainly flag you up with people / agencies you don’t want to be flagged up with), so even the Judge having temporary possession of it was potentially placing her in breach of the criminal law.

 

  1. There are a number of other matters which give rise to concern. They had an itinerary with them which Mr. Poole submits is written in stilted and unusual terms. It is not the kind of list of activities that one might expect to see, and has detail, particularly in relation to timings, which seems, objectively, unnecessary for this sort of trip. It is suggested that this is a kind of decoy document, intended to distract the authorities from the real purpose and to support the case that this was a weekend jaunt. Isis documentation online giving guidance about a planned journey to Syria via northern Europe suggests that such documentation might be useful and also suggests obtaining return tickets, so the existence of returns does not help. The father does not have very much money. The passports had been obtained in contemplation of this trip many months before, costing over £200. Yet the journey had not been booked. There are various other expenses, such as the ferry, which cost over £400. The suggestion is that this was a very unusually expensive trip to make for what was going to be just a day and a morning in Holland, for the purposes of a trip to the play park. The necessity or desirability of visiting that venue has not really been established.
  2. Further the father was unable to give a convincing reason for the presence of a Turkish phrase book in the property since the family had never been to Turkey. In the father’s house there was found a list signed with the signature of R and there was another list obtained made by B, headed “Things to get”. The day before the trip was made the father went to two branches of a camping shop, one in Area T and one in Area S, and spent over £600 on equipment. That equipment has considerable correspondence with a “suggested equipment list” in another document called “Hijrah (emigration) to the Islamic State”, emanating from supporters of Islamic State which is to be found online, the possession of which is a criminal offence. I have been given a copy of that document in the hope that I am not transgressing by its being in my possession. I have tried to protect the parties and they have accepted this by ensuring that the document’s copies are numbered and are retained, will be returned, and are viewed only within the courtroom.

 

 

For the same reasons, the Court has to be careful in stipulating the commonalities between the family’s camping shopping/packing for Holland and the Isis list.

The father was a member of a prescribed organisation, ALM and had involved the children in their activities

  1. I am satisfied on all the evidence that the father is closely associated with ALM. I accept that he was not charged along with those recently convicted. I accept that there is no evidence that he has spoken or written in public on its behalf. However he has supported it online, and it has a significant online presence which I accept is important for the promotion of its ideas. I do not know whether he is a member, I do not know whether one can be a member of an organisation such as ALM, I doubt very much whether it has a list of members, or whether it has a joining fee or anything of that kind. Z told me that the father is well known to the membership. He is not part of the management or governance insofar as there is one – the ‘inner echelons’ as it was termed in the hearing- and, therefore, not one of the decision makers, but he is intimately known within and loosely part of the organisation.
  2. Sub-question (b) is whether ALM is a proscribed organisation, which it is accepted it is.
  3. The next sub-question is “(c) Did the father take the children to inappropriate ALM demonstrations?” There were two particular demonstrations. He took J (then aged 9) and F (then aged 7) to one in 2009 in London attended by HA. The second was a demonstration outside the Pakistani Embassy after the Pakistan Army had become involved with students in “The Red Mosque” incident. I have seen photographs of the father standing next to HA, outside the Embassy with F and L. The two boys were holding a placard of which the father said he was not able to tell me the origin, which refers to the Pakistan Army as, essentially, “the devil”. There are other placards next to the boys. I note one, relevant to another issue, supporting the introduction of Sharia law for Pakistan, because, the father told me, the students in the Red Mosque had called for Sharia law in Pakistan.
  4. I recognise that some people take children on political demonstrations (although not usually to events where violence might be predicted) and persuade their children to carry placards. Sometimes children are too young even to take persuading, sometimes the placards are put in the child’s pram. It could be said that the children, who probably do not understand in the least the point of the demonstration, are being used in order to put over and support adult views, in a way which could be seen as manipulative and even abusive. I recognise that this is not in any way an activity which is limited to any particular social or religious group. What the father involved the boys in was not illegal, and as a one-off would have been unlikely to have led to any child welfare intervention. However, the demonstration was linked with ALM, and it was not appropriate, in my view, for the boys to be actively involved in such a demonstration or such an organisation, knowing the views expressed by members and the possible consequences of the expression of those views: a public disturbance over which the father had no control, or the expression of harmful views. The father said these were peaceful protests but he was not to know that they would be so. Most importantly it demonstrates the influences to which he has wished to or at least been prepared to expose the boys. It is part of the overall picture.
  5. The next sub -question therefore is (d),
    1. “Did the father expose the boys to harmful views at ALM- inspired talks and take them to talks given by individuals later convicted and/or charged with terrorism offences?”
  1. The father was an attendee at Da’wah (proselytization or outreach) stalls. These are booths displaying literature in public areas, and not confined to ALM. Z told me that from his knowledge someone who attended such a stall who showed a particular interest in extremist themes might, after several visits, be invited to attend an evening meeting, once a degree of familiarity and common ground had been established between the stall minder and the enquirer. That was how he had come to be invited to evening events. The father told me that all were welcome at the stalls, of whatever age or religion, men or women, and this demonstrated how innocuous they were. He also said that Z had been welcome when it was thought that he was genuine, but would not have been had it been known that he was an undercover policemen. The father could not explain why this would be, if there was nothing wrong with the stalls. Z told me, and I accept, that the Da’wah stall attended by the father, to which at one time he took the boys, linked with ALM. At one time he took the boys, but stopped doing so. Z does not know why he stopped taking the boys, but it was at about the time ALM had spread the news that supporters were at risk of care proceedings.
  2. I conclude that the stalls were used as recruitment tools where people were given literature supporting ALM’s aims, and tested out, from which they were drawn into the inner circle as and when it was thought appropriate.
  3. Photographs of the father with ALM affiliates have been recovered from telephones of those persons. I accept that the father attended other protests with London ALM affiliates with many senior associates.
  4. Z told me that the father had been to a number of meetings with the boys, probably about five, at a local church hall. These were small meetings, 30 people only, where theological matters were discussed. The father is devoutly religious and it seems to me to be well within the acceptable spectrum of behaviour for the children to go to meetings – even if they may not be terribly interested and may not actually understand what is going on – which may express views about religious practices, even though they may be of more interest to the adults than the children. Those attendances do not seem to me to be of serious significance in themselves, but ALM members, later convicted of terrorist offences were present, and the father could not have predicted exactly what views would be expressed. It is all part of a pattern.

 

The police also found a letter in the family home from Lee Rigby’s killer.  If there’s an innocent reason to be in correspondence with him, I can’t think of it.

 

  1. Related also to this evidence and the conclusions that I have drawn is another reference to the killer of Lee Rigby, Michael Adebolajo. When the father’s home was first searched a letter was found from this gentleman from prison; whether it was an original or whether it was a copy does not matter. I suspect that, in the circumstances, it may very well have been a document made available to a number of people within this circle. It is a letter which is covered by r.39 of the Prison Regulations, which is intended to go to the legal representative. It is, in fact, quite a strongly worded letter making various strong comments about religious matters. It is both assertive and rambling and is quite closely written. It makes reference to a number of religious concepts, using a number of Arabic words, and also it makes various aggressive comments as to the role of various people in English political life, generally, and those who are connected with the Islamic religion. The father accepts that it was found in his house. He told RX that he did not know how he had come by it. He at first told me the same thing. Then he said that he had been given it, but could not remember who by. When asked again, he said that it had been a man. He could not remember who or the circumstances, just that he had been told or encouraged to read it. He said that he had not read it himself. He could not remember any conversation with the donor, such as, “Why are you giving this to me; what this is about; what am I going to get from this; what is its importance?” and so on. He cannot say why he kept this document, although he says that he did not read it and never gave it any thought afterwards. I do not accept this explanation. He must have known about the contents of and welcomed this letter in order to both have and retain it.

 

The police inspected all of the family’s electronic devices.  (Which, by the way, is the common denominator between cases where the LA have been able to prove radicalisation and the ones where the electronic devices are not explored are the ones where findings don’t get made)

 

  1. Various photographs emerged from the search of the family devices. I have a number of separate photographs of the children and the father, dressed in what looks like Middle Eastern style red-and-white headgear, in the case of both the children and father, with their faces partly obscured by the cloth and holding what I am told are ornamental swords. The adult children said these had been purchased by the family as a set at a boot fair, or similar outlet, and to be ornamental only. The two younger children were very little when these photographs were taken and I suppose they may not have been aware of the significance, as it is asserted by Mr. Poole to be, of this style of dress. The father says also that this cannot be connected with Islamic State because it was not then in existence. Mr Poole submits that that this is a style of dress associated very much with Islamic fighters, and has been for some time, and that posing with weapons is very much a radicalised style. Mr. de Burgos accepts that this style of dress and presentation would be regarded, and rightly so, as extremely culturally offensive if worn at a fancy-dress show or party, as to many people’s eyes it will have very significant associations with terrorism and with politically and religiously motivated violence.
  2. I cannot go so far as to say that the photographs of the two younger children, in themselves, would have caused them harm at the time, but it is quite possible that viewing them online later as older children might have done so and have given them expectations as to how they are expected to behave, what beliefs they are supposed to have and how they are supposed to treat other people. There are pictures of the older children, including J, when much younger, also in similar poses, in similar attire and with similar weapons. There are pictures of A with a gun, which he says was taken when he was working on someone’s home and he simply asked whether he could pose with that particular gun, an air rifle, as a joke. There are photographs of the father with a BB gun, also in a very similar pose. These are strongly reminiscent of the poses in photographs of ALM members posted online, referred to above. There are photographs of other weapons, the significance of which, the family has not been able to explain. RX told me that he perceived a clear association with the graphic execution scenes online, and so, independently, do I.

  1. Some of the material found, particularly on R’s telephone, is very shocking and very disturbing indeed. It does not come from normal news sites. Father says that they might have come from Fox News, but I find it very difficult to imagine or to accept that heads in buckets, details of crucifixions, the process of execution, dead bodies and dead fighters showing, it is asserted, the joy with which they died, material relating to bombings, a man with a knife to his throat, execution quads, would be shown on normal news channels. It is not my experience of the mainstream press. I cannot say where this material came from, but the evidence that I had from RT, the technical expert relied on by the police, and his overall view, was that there had been a lot of internet searching for this kind of horrific image, particularly relating to the process of decapitation. There was particular footage, which has nothing to do with Islam or the Islamic State at all, which relates to horrors in South America. He told me that that was an indication of the kind of search that was going on and that someone in the home had had a pre-occupation with looking for this material. No-one in the family has been able to tell me who that might be. The father tells me, and I accept, of course, that, as a Muslim whose family emanates from South Asia, although via East Africa, he has an interest and a passionate commitment to finding out what is going on in the Islamic world and I quite understand that, but the material which has been downloaded does not fit with what the father told me about his focus of interest, or with the pre-occupation with terrorism, demonstrated also by books removed from the home.

 

(I mean, there’s a lot wrong with Fox News, but I don’t feel I can hold them responsible for this)

 

 

  1. I cannot say who in the family has downloaded this material, but it is most likely that it has been a number of them. There were images found not only on R’s phone and other material on other devices as well. There is a very strong theme of there being someone in this family, or perhaps more than one someone, who has an interest in painful things being done to other people. This is not just related to terrorism. I saw a video retrieved from one of the family phones of the youngest child, who must have been seven or eight, perhaps younger, it is difficult to see. It is footage, apparently, taken by J, the child who is now nearly 16, of her younger brother being made to eat a raw chilli by his older sister, R. The young people around him seem to be totally unconcerned about the pain which it is causing him and the distress that he is showing. Anyone who has inadvertently bitten into a piece of raw chilli in a meal knows that it causes intense pain to the mouth, a very sensitive area. There is laughing in the background. It is not just that this was done, and it is a wholly inappropriate form of punishment, but that it does not seem to have evoked any form of sympathy or empathy at all. RX suggested that this might have been a punishment for some kind of religious transgression, but I cannot say. I am, of course, conscious that children used to have their mouths washed out with soap for swearing in the old days and I appreciate that treatment of children, which we would regard now as barbaric, was considered to be appropriate in the past. Nonetheless, the combination of features, lack of feeling for the victim, group participation in this punishment and it being filmed, no doubt for some form of record or enjoyment, gives rise to a very uncomfortable feeling indeed. It chimes with my sensation that there a nastiness about some of the attitudes in this family.
  2. I am also very struck by the father’s reaction to the discovery of this material. According to the father he has scarcely asked R why she has had this material on the phone, and took some time to even state that he had. The point is made by Mr. de Burgos that she is an adult and is entitled to do what she wants, but I would have thought that the father would want to enquire as to why his daughter had such interests, particularly because he is a loving father and the children have always been closely tied to the home and also, obviously, feel a high degree of responsibility for him. He does not seem to have tackled this issue at all, and the most likely explanation is that access to these kinds of images and their sharing was part of the norm. Furthermore, he told me that his little son had never told him about the chilli incident. He had not spoken to R or, indeed, any of the other children about why the video had been taken or what had been going on, or why she had punished L in this way. If that is true, it shows at the least a remarkable derogation of parental responsibility and lack of interest in what has been happening. His lack of interest strongly suggests that this was a form of punishment that was part of the norm within this family.
  3. DS has told me that all the electronic devices in the family were open to all members of the family. The father said that they were password protected. RT told me that he overrode one password. I am not prepared to accept that the children did not have access to this kind of material. I cannot say for certain whether they had. There is no actual evidence that they did. It may be unlikely that they would try to break into password protected material, but it may have been very easily available.
  4. It is highly likely that the children were shown it. I say that in particular because, during the family’s Eid celebration, there is a video of the family in front of the cake and a particular film being shown on the television. There are photographs of the family living room decorated with the Black flag bearing the Arabic word ‘shahada’. The father says that this was just part of a continuous streaming through YouTube or music that he wanted to listen to. Whether that is so, I am not going to decide, but let us assume that it is. It showed the ISIS flag and a black-clad figure against a desert background. It is very similar to some of the photographs found online and a very obvious approbation of the ISIS regime. Pro-Caliphate speeches can be heard in the background. The flag, the father accepts, which pictures the seal of the Prophet, is, as far as he knows, and as any of us know, only used by ISIS and not by any other group. So although it may incorporate a perfectly acceptable and holy image, it has very obvious connotations if shown on the screen. The children seemed to me to be looking at the screen in the photograph. The father says they were interested in the cake, but this video was very obviously there, right in front of their faces, and available to be watched. The father says that he was not interested in the background; he was merely interested in the “Nasheed”, the religious songs which accompany it. I do not find that an acceptable explanation. At the very least, the father was extremely careless about what he exposed his children to, but it is far more likely that this was a form of entertainment which the family wanted to look at and was available to the younger children as well.

 

 

We learn even that during the care proceedings, the father was posting pro Islamic State material on his Twitter feed, which he claimed was in protest at the way the English Courts were treating him and his family.

 

In case you are wondering, the later judgment

 

Re Y Children Radicalisation 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3825.html

 

shows that all three of the younger children were made the subjects of Care Orders and placed in care.

Watching the detectives

This is a quirky little case. I should tell you at the outset that we don’t get a conclusion and all of the answers. Half of the answer, with perhaps another half to come at a later stage.

The question arose in care proceedings. One of the issues in the case was whether the mother had genuinely separated from the father, or whether they were simply pretending to have done so and carrying on the relationship in secret. This happens from time to time in care proceedings.

The Local Authority paid a private investigator to watch the father, and the private investigator produced evidence that the father was staying overnight at the mother’s home, for about a week. (However, the evidence did not show whether or not the mother was also there, allowing the parents to run a defence that the father had been staying at that property but that mother and the children had not been)

Two legal issues arose in the case.

1. Whether the LA had obtained the proper consents under the Regulation of Investigatory Powers Act (RIPA) to conduct covert surveillance of a person, whether this was a breach of article 8 of the Human Rights Act and thus whether damages should flow from it. (which is the really interesting bit of the case and which SPOILERS doesn’t get answered)

and

2. If there was a failure to obtain the proper RIPA consents, is the evidence inadmissible?

The latter is of interest, because it may impact on other scenarios where evidence is improperly obtained (and of course, we are thinking here of clandestine recordings whether audio or video, done without the knowledge of those being filmed)

We DO get an answer to that.

This is a decision of a circuit Judge, so it is not binding case law, but it is an interesting overview of the law (and I agree with the conclusions)

Re E and N (no2) 2017

http://www.bailii.org/ew/cases/EWFC/OJ/2017/B27.html

2. In the course of the hearing before me the applicant local authority sought to rely on surveillance evidence which covered the period of 28 and 29 April 2017. The evidence showed that the father had stayed at the mother’s address in circumstances where the parents had maintained that they have been separated since November 2016. The local authority accepted that the evidence did not show that the mother was present during the aforementioned period. The local authority relied on this evidence as part of a wider canvas to prove an allegation that the parents have remained in a relationship despite their maintained assertion that they have separated.

3. Both parents agreed that due to the father’s difficult personal circumstances at that time, with the mother’s permission, he stayed at the mother’s address. The mother was staying at her own mother’s property and she was not present when the father stayed at her address.

4. At the conclusion of the hearing the parties made detailed submissions. This included submissions about the surveillance evidence and the local authority’s asserted overzealous approach to the parents in attempting to prove its case. The parents invited me to make a number of findings in this regard. I decided to give a separate judgment on these issues so as not to jeopardise an expeditious resolution to the last hearing before me.

5. The local authority in its written submissions dated 7 June 2017 and refined in its written replies to the parents’ submissions dated the same, invites me to;

a. Endorse the decision to conduct such surveillance as reasonable, or to make no findings in circumstances where the court has not received any evidence on this issue, or

b. Make no comment about it (given that it does not go to the central issue of the disputed findings), or

c. Find that it would be inappropriate to make any findings on the mother’s submissions that go to or are capable of going to the issues of alleged breaches of her Article 8 rights, or

d. Transfer the decision on this issue to a different tier of the judiciary, and

e. Confine my judgment to the issues arising out of the hearing.
6. The mother having taken the lead on these submissions and supported by the father, invites me to find that;

a. The actions of the local authority were misjudged and deeply unfortunate given the duty on the local authority to act in a fair way within litigation against individuals,

b. The authorisation for the surveillance (if any) and the surveillance itself were not fair, reasonable or proportionate,

c. The local authority has not complied with the terms of the Act (below),

d. The mother has been unlawfully subjected to surveillance;

e. This is an example of an over-zealous prosecution of the local authority’s case against her,

f. The directed surveillance is a breach of her rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950).

The father further submitted that there is no justifiable reason or purpose for the surveillance to have extended to following the father to the reception area at the contact centre and at the father’s solicitors’ offices.

The Judge looked at the safeguards about agencies of the State carrying out covert surveillance of members of the public, that are set out within RIPA – the surveillance needs to be properly authorised under s28, and the officer authorising it must be approved under s30 to do so. (Here, what seems to have happened is that a senior manager of Children’s Services authorised it, which is not RIPA compliant)

28 Authorisation of directed surveillance.

(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

(2)A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3); and

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;…

(4)The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

(a)consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and

(b)is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation

The real point of this is that the authorisation of covert surveillance is firstly not a rubber stamp, and secondly, the decision about whether or not to authorise is taken by a RIPA officer someone who is trained in the application of the Act and the principles within it and not have a stake in the outcome of the investigation – i.e to scrutinise whether cover surveillance is really appropriate and proportionate.

The Judge did not reach a conclusion on whether the LA had failed to comply with RIPA or whether the parents article 8 rights had been breached – they would have to issue a claim and have proper evidence about this issue before a Court could rule on it. However, from what is said, I don’t think that what the LA did complied with RIPA (That doesn’t mean that they DIDN’T – they may have got a RIPA authorisation and not put that before the Court – though that seems a strange decision if so…)

In addition to the surveillance report, the only direct evidence in this connection is a document entitled “REQUEST FOR AUTHORISATION TO COMMISSION A PRIVATE INVESTIGATOR”. This documents was signed on 26 April 2017 by the “Director of Children and Learning Skills”. It is far from clear if the signature is that of the person making the application or the person authorising the request. On the face of it, the form does not appear to be a form authorising surveillance. This illustrates the evidential difficulties in the relief that the parents are seeking. These are exacerbated by further fundamental difficulties which include the lack of any formal application and the consequential lack of any formal reply. Therefore, having regard to the guidance that I have detailed above and the evidential difficulties that I have identified, in my judgment it would be entirely inappropriate for me to make any findings in respect of the local authority’s conduct, decision making processes and any alleged breaches of the parents’ Article 8 rights. Similarly, in my judgment it would also be entirely inappropriate for me to endorse the local authority’s actions. If there is to be such an enquiry into these issues, it must be undertaken in accordance with the guidance that I have set out above and by way of a formal application following which the court will give the necessary directions. Inevitably this will include the filing and service of appropriate evidence.

Anyhow, that whole issue will have to wait for part 3, if there is to be a part 3.

What we are left with is whether evidence that may have been obtained improperly is capable of being admissible, or whether it should not even get before the Court if it was obtained improperly.

15. However it is clear that the surveillance evidence is relevant to the issues in the case. Goddard LJ in the Court of Appeal decision in Hollington v. F. Hewthorn and Company Limited, and Another [1943] KB 587, at 593 and 594 explained the test in the following terms;

“Before dealing with the authorities, let us consider the question in the light of modern law relating to evidence … We say “modern law” because in former days, it is fair to say, the law paid more attention to competency of the witnesses that to the relevance of testimony …

It was not till the Evidence Act. 1843, that interested witnesses, other than the parties, their husbands and wives were rendered competent, and by the Evidence Act, 1851, the parties, and by the Evidence Act, 1853, their spouses, were at last enabled to give evidence …

But, nowadays, it is relevance and not competency that is the main consideration, and, generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded”.

Furthermore, the test for deciding “relevance” was succinctly expressed in the House of Lords decision by Simon LJ Director of Public Prosecution v Kilbourne [1973] 1 All ER 440, at 460 J in the following terms;

“Your Lordships have been concerned with four concept in the law of evidence: (i) relevance; (ii) admissibility; (iii) corroboration; (iv) weight. The first two terms are frequently, and in many circumstances legitimately, used interchangeably; but I think it makes for clarity if they are kept separate, since some relevant evidence is inadmissible and some admissible evidence is irrelevant in the sense that I shall shortly submit). Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.”
16. Keeping the concepts of “relevance” and “admissibility” separate, I will first deal with the issue of relevance before turning to consider the issue of admissibility. The factual matters that the local authority sought to prove included an allegation that the parents remain in a relationship. Therefore on a cursory analysis of the facts that remained in issue and required the court’s determination, it is clear that the surveillance evidence was relevant to this allegation. Indeed no party has sought to submit that it was not.

17. As to the question of admissibility, I have made it clear earlier in this judgment I am not making any findings in respect of the local authority’s conduct or whether the surveillance is compliant with the provisions of the Act. However the questions of compliance and legality have a close connection to the question of admissibility. There is no automatic bar to admissibility of evidence that has been improperly or illegally obtained. In the context of family law, this was considered and illustrated in the Court of Appeal decision in Imerman v Tchenguiz and others [2011] 1 All ER 555where at paragraph 177 Lord Neuberger MR concluded that;

“Accordingly, we consider that, in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, and will take into account the importance of the evidence, “the conduct of the parties”, and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.”

A Local Authority v J [2008] EWHC 1484 (Fam) is an example where surveillance evidence was admitted by the court, although Hogg J in this case was not asked to consider the provisions of the Act.

Furthermore, Re DH (A MINOR) (CHILD ABUSE) [1994] 1 FLR 679 whilst predating the Act and concerning an individual, Wall J admitted the covert recording of a child by the child’s father.
18. In these circumstances I have assessed the surveillance evidence to be relevant and admissible. Accordingly I have admitted the same as evidence in the case. I made the relevant findings in my first judgment after considering the surveillance evidence together with a number of other pieces of evidence and have considered it in the context of the totality of the evidence that was before me. However the issue of admissibility of evidence is entirely separate to the requirements of public authorities and public bodies to comply with statutory provisions that regulate their conduct and their duties to the public. In circumstances where a public authority or public body has acted in breach of statutory provisions and where any evidence that is adduced as a consequences of those actions is admitted by the court, this will not absolve the public authority or body from its duties under any relevant enactment

Evidence, if it is relevant, can still be admissible even if it was obtained unlawfully. I have wondered for a long time whether Re DH’s principle survived the HRA. As this is not precedent, and of course, a Circuit Judge can’t overrule the principle that Wall J set down in a superior Court, but it is an interesting debate that might be had at a later stage.

The Judge draws the interesting distinction that whilst the evidence itself might be admissible, that doesn’t stop a Court taking action about the improper or unlawful conduct – just because they got to use the evidence, doesn’t mean that they get away scot-free if they behaved badly in obtaining it.

Morocco Mole too…. inspired by my trip to Marrakech

That’s when I start promising the world to a brand new girl I don’t even know yet

 

Next thing, she’s wearing my Rolex.

 

I wrote about Part 1 of the Pauffley J hearing about alleged radicalisation where all of the evidence that might prove whether threshold criteria existed or not was in the hands of the security services and they (having originally tipped off the LA that they should do something) decided they didn’t want to cough up the material.

https://suesspiciousminds.com/2016/12/28/cloak-and-dagger-threshold/

I feel very very uncomfortable about this sort of thing.  I fully understand that in order to protect the citizens of this country, the security services will watch individuals and don’t want those under suspicion to know exactly what the security services knows and how they know it. I get that. But by the same token, if a parent is being accused of being a risk to their child and faces the possibility of losing their child, they are entitled to see what the evidence against them is and to test it.

The alternative is that we end up with a set of care proceedings run along the lines that Christopher Booker imagines happens all the time, where the parents aren’t told what they are supposed to have done and don’t get to fight the allegations.

I’m not sure how you square that circle. My gut feeling is that the children probably stay with the family unless and until the security services either have enough to charge the parents with a criminal offence, decide there is no risk, or that the information known can be safely shared without putting others at risk.

Anyway, you may remember from Part 1, that it ended with the Security services telling the Court that they were going to get a Public Interest Immunity (PII) certificate signed by the Secretary of State about the documents.

This is what happened next.

http://www.bailii.org/ew/cases/EWHC/Fam/2017/692.html

C (A Child), Re (No 2) (Application for Public Interest Immunity) [2017] EWHC 692 (Fam) (31 March 2017)

 

Those representing the Secretary of State asked for a CLOSED hearing. In basic terms (and I’m massively oversimplifying to make it possible for normal people to follow) that means that the lawyers for the Secretary of State would address the Judge about the documents and why they could not be shared, and nobody else would be in the room.

 

 

Discussion of procedural steps

 

  • I quite accept that the courts and the SSHD are even now in the relatively early stages of grappling with the problems consequent upon proceedings of this kind. I would be the first to accept that I have been engaged in a learning exercise. I suspect the same may be true for those advocates who have not hitherto had much experience of dealing with cases where PII might be asserted in circumstances such as these.
  • There have been several complicating factors leading to delay identified by Ms Wheeler in CLOSED session which are inappropriate for inclusion within this OPEN judgment.
  • At all events, there are some obvious conclusions to be drawn from events in this case. The first is that where the SSHD is faced with disclosure orders relating to material which is or may be sensitive and where the likelihood is that PII will be asserted, it is incumbent upon the GLD to set up a process for early and definitive decision making.
  • The spectre of a potential PII claim was manifest in this case from as far back as 3 November 2016. On that day, I received an urgent letter from the GLD, indicating there was material which for reasons of national security the SSHD was not at liberty to disclose. A further period of 28 days was requested to further consider the information with a view to either effecting disclosure, advancing a claim for PII or seeking a declaration under s.6 of the JSA 2013.
  • By the time of the 2 December hearing, the indications were that if the SSHD was unsuccessful in her bid to revoke the 4 October 2016 disclosure order, she would claim PII. As I observed towards the end of the December judgment, until there was a PII Certificate containing the SSHD’s judgment as to the harm to the public interest that would be caused by disclosure and the weight to be given to competing public interests, there was no appropriate mechanism for action.
  • It is disappointing to say the least that the PII Certificate was not issued until 7 March 2017, some three months later, and at a time when no fewer than four distinguished legal teams had spent a great deal of time and effort considering a landscape which did not comprise a claim for PII. Had the claim been made sooner, those endeavours would have been largely unnecessary.
  • Doubtless the GLD is an over-stretched organisation with many competing calls upon the time of those who work within. However, with an eye to the future and other similar cases, it seems to me that there must be mechanisms for significantly swifter specialist advice and consequent action. Had there been an application for PII in the autumn of last year, it would have been resolved before Christmas; the hearing of 2 December would have been superfluous to requirements; and the care proceedings would not have been mired in procedural argument for more than three additional months pending resolution of these issues.
  • As Mr Twomey suggests, delays, lack of clarity and inconsistency in the approach of the SSHD are unhelpful and tend to give rise naturally enough to scepticism and suspicion. The earlier there is (can be) precision the better. The stop / start approach of the last four to five months has been distinctly unhelpful. By some mechanism or another, strategies for avoiding anything similar should be devised as a matter of urgency.

 

Potential for conflict

 

  • Arising out of events on 25 January 2017, there was the potential for unfairness which Mr Twomey was right to identify in his written submissions. As he correctly identifies, on 25 January I met briefly with two members of the GLD to take possession of a bundle of CLOSED material; and I concluded that a hearing in CLOSED would be required. Mr Twomey maintained that the parties were unaware of what was said on behalf of the SSHD on that occasion and what I was shown. In fact, as Ms Wheeler related in her submissions of 6 February 2017, the documents I had read were CLOSED submissions and a Sensitive Schedule (also known as a damage assessment) explaining why the SSHD contends material should be withheld, the nature of the damage were disclosure to be ordered and the reasons for delay in progressing a formal claim for PII. But I was not provided with the material over which a claim for PII is being considered.
  • As for anything discussed between the GLD lawyers and me on 25 January, I can confirm that nothing of any substance was said. The sole purpose of the meeting was so as to comply with the necessary procedures for dealing with CLOSED material. My clerk, for example, is not able to handle CLOSED material. Thus it was necessary for me to meet with Mr Fitzgibbons and Mr da Silva to take possession of and later relinquish the CLOSED file.
  • Mr Twomey asked me to confirm whether or not those documents form part of the PII application. If they did not, then it would be necessary to consider whether I could fairly determine the PII application and / or how those documents could be treated so as to ensure a fair hearing.
  • In response to those submissions, I indicated that Ms Wheeler’s CLOSED submissions from late January had not been made available to me in readiness for the hearing on 15 March. Ms Wheeler’s initial view had been that there was no need for me to consider her earlier submissions afresh given that more pertinent material was now available in the form of the OPEN Certificate. Given the potential for a sense of unfairness if the January submissions were not once more made available, a copy was provided in advance of the CLOSED hearing.
  • No party sought to suggest there was any reason associated with events on 25 January, materials read or discussions with the GLD, which could have prevented me from dealing with the claim for PII. Accordingly, satisfied as I was that there was no reason to recuse myself, I convened a CLOSED hearing at which I heard Ms Wheeler’s oral submissions and probed a number of issues.
  • There was no judgment at the end of the CLOSED hearing. I indicated I would be preparing an OPEN judgment.

 

 

 

The Court considered the principles in deciding whether documents should be withheld from distribution under the Public Interest Immunity process

 

 

 

The three steps involved in making a PII claim – R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274

 

  • There are three required steps when the SSHD considers whether to make a claim for PII. First, whether the material is relevant and passes the threshold test for disclosure in the applicable proceedings – (Certificate §11). Second, if the threshold test is passed, whether the material identified as relevant and subject to disclosure attracts PII. The test is whether there is a real risk that disclosure would cause ‘real damage’ or ‘serious harm’ to the public interest – (Certificate §13 and 19). Third, if applying the ‘real damage’ test, the material attracts PII, the question arises as to whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purpose of doing justice in the proceedings. The factors in favour are set out in the Certificate at §18; those against between §§19 and 26.

 

 

Slightly disappointed that Pauffley J did not indicate that R v Chief Constable of the West Midlands Police, ex parte Wiley is a party guy and he knows it, but bigger fish to fry, no doubt.

 

 

 

Positions of the parties

 

  • The local authority’s position is that it will await the outcome of the PII hearing and will then take stock. Ms Morgan understandably submits there is a limitation upon the assistance she can give in relation to the Wiley balancing exercise, given that she has no knowledge of the material over which the SSHD asserts her claim for PII. Ms Morgan does though make a number of observations particularly as to the sufficiency of primary evidence absent disclosure. Ms Morgan’s overarching observation is that I should approach the balancing exercise on the basis that if the care proceedings conclude for want of established threshold criteria, the likelihood of the local authority being in a position to safeguard the child – or justify interference in his life – in any effective way would be virtually non-existent.
  • Mr Twomey suggests that the very significant delay in making the PII application calls for an explanation and raises a serious issue as to the merits of the claim. Mr Twomey suggested that when I considered the claim there were a number of issues which may be relevant but which might only be probed in CLOSED session. He cited eight matters and asked a number of associated questions – all of them useful to me during the CLOSED session.
  • On behalf of the child’s guardian, Mr Parker suggests there are two points which undermine confidence in the SSHD’s evaluation. First, that the unwillingness to provide disclosure was a position arrived at long before the balancing exercise set out within the Certificate. There is a risk, accordingly, that the Certificate is simply an ex post facto justification of the SSHD’s position. Mr Parker’s second general point is that the premise for the balancing exercise is flawed in that the SSHD understands the local authority’s application is for a supervision order whereas the interim measure does not reflect the true nature of the proceedings.
  • Mr Parker makes four points in relation to the Wiley balancing exercise which, he submits, increase the balance in favour of disclosure – the insufficiency of available primary evidence, the inappropriateness of the Channel programme as an alternative method of safeguarding, the current unavailability of the Desistence and Disengagement Programme and the unreasonableness of requiring the mother to surrender her travel documents permanently.

 

1. Relevance

 

  • The first question, as to relevance, is simply satisfied. The SSHD proceeds on the assumption that the material is relevant and, in principle, disclosable as the result of the 4 October 2016 orders for disclosure. That is clearly right.

 

2. Would disclosure damage the public interest?

 

  • The second issue is confronted within the Certificate in this way. The SSHD identifies that the Government’s approach to PII requires her to focus specifically on the damage that would be caused by the disclosure of the particular material in issue and to assert PII only if satisfied that disclosure of that material would bring about a real risk of real damage to an important public interest. The SSHD expresses herself satisfied that the material referred to in the sensitive schedule would cause serious harm as it includes information of one or more of eleven specified kinds.
  • Within her OPEN submissions, Ms Wheeler explained that the reasons include those relating to national security though it is not possible to be more specific in OPEN about the nature of the harm that would be caused by disclosure. The effect of the material engaging national security considerations was that disclosure would create a real and significant risk of damage to national security (§19 of the Certificate).
  • I have sound reasons for agreeing with the SSHD’s evaluation based upon materials provided to me in CLOSED.

 

3. The Wiley balance – factors for and against disclosure

 

  • The last part of the Wiley exercise involves balancing the factors in favour of and against disclosure. The SSHD when considering the impact of non-disclosure takes into account three specific points – the nature of the material, the open and available material and other powers to protect the child.
  • The SSHD considers the factors in favour of disclosure to fall into two categories. First, the strong public interest in ensuring that children are protected from the risk of harm and that the material of potential relevance should be available to parties to family court proceedings. And second, that in general legal proceedings should be conducted openly; open justice principles are in play and are an important factor in protecting the rights of individuals and maintaining public confidence in the justice system.
  • To my mind, the most significant, weighty and powerful of the factors militating against disclosure is that the material engages considerations of national security. The SSHD formed the view that disclosure would create a real and significant risk of damage to national security. I accord great respect to and share that assessment on the basis of the material made available to me in CLOSED session, namely Ms Wheeler’s CLOSED submissions and the Sensitive Schedule (or damage assessment).
  • The conclusion of the SSHD that national security considerations are engaged, a judgment formed on the basis of comprehensive materials made available to her, in Ms Wheeler’s submission, should properly be accorded great deference. As Lord Templeman observed in R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 @ 281, “As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence of national security or diplomatic secrets will be self-evident and preclude disclosure.

 

Other available evidence

 

  • Ms Wheeler urges me to consider the other factors put forward in favour of non-disclosure. Firstly, the existence of other available evidence from which the court may be able to draw inferences and find the threshold criteria satisfied. Second, in the event that the threshold criteria could not be satisfied and thus a public law order was unavailable, there could be recourse to other safeguarding measures such as the ‘Channel Programme’ and a new Home Office initiative, the ‘Desistence and Disengagement Programme.’ Thirdly, steps could be taken to disrupt travel plans involving flight to a war zone by continued passport restrictions.
  • It is clear that the SSHD’s contention as to the availability (and sufficiency) of other evidence causes the local authority, in particular, very real anxiety. Unwittingly, I suspect that I have contributed to the problem by observations made in the December judgment which play into the argument that further disclosure from the Home Office was (or is) necessary: see §§ 35, 39 – 42.
  • At that stage, however, I had not been required to consider the Wiley balancing exercise, I was not privy to Ms Wheeler’s CLOSED submissions and I had not considered the Sensitive Schedule. The landscape now is very different and disclosure questions call for a modified response.
  • Ms Wheeler is right to draw my attention to the available evidence. It amounts to a mixture of established facts as well as matters which give rise to likely inferences. It is unnecessary to descend into the particulars beyond observing that both parents have been stopped at airports (father in June 2014 and February 2016; mother in January 2016) and questioned pursuant to Schedule 7 of the Terrorism Act 2000. A police officer from the Safeguarding Unit of the Metropolitan Police Service Counter Terrorism Command (SO15) has made a statement. So, too, other officers who conducted the port stops and interviews.
  • More detail of available evidence is set out within paragraphs 3 to 8 of Ms Wheeler’s submissions dated 14 March 2017. Furthermore, Ms Wheeler makes the valid point that the letter from HM Passport Office dated 3 August 2016 refusing the father’s application for a replacement passport is of significance. It can and should be taken into account, argues Ms Wheeler, as part of the evidential picture.
  • I agree with Ms Wheeler’s submission that the Home Secretary’s decision to exercise the Royal Prerogative so as to refuse to issue the father with a passport (based on the assessment that he is an Islamist extremist who seeks to travel to Syria for jihad) is ‘evidence.’ The Home Secretary’s decision is amenable to judicial review but there has been no challenge.
  • I also agree with the suggestion that the denial of a replacement passport on the basis of the exercise of the Royal Prerogative would not be, of itself, sufficient to establish the threshold criteria. Clearly it is a factor of relevance which could be taken into account as part of the evidential picture though it is impossible to assess quite how much weight might be attached in advance of any hearing.

 

As I said earlier, these cases leave me uncomfortable. Yes, a flimsy and vague threshold could be constructed on the basis that the parents have been stopped at airports and questioned under the Terroism Act and that the Secretary of State has seen material such to persuade them to refuse to issue the father with a passport, but if the parents assert that these actions were wrong, mistaken or the result of some form of racial profiling without foundation in reality, how is an LA to prove likelihood of significant harm?

 

The Judge says something very important about the documents that have not been shared. In essence, they wouldn’t themselves establish threshold even if they could be seen and relied upon

Nature of the material – future progress of litigation

 

  • With the future of these proceedings in mind, it is appropriate that I should discuss a matter which arose during the course of CLOSED session. It seems highly unlikely that the material upon which the SSHD has formed her assessment leading to the application for PII would advance the local authority’s case to any significant degree. On any view, the material could not be provided to (and therefore be used by) the local authority for the purpose of legal proceedings, whether to inform its assessment of risk or for the purpose of commissioning any expert intervention. Moreover, the material does not advance an understanding of the parental relationship or contact with or intentions towards the child.

 

 

The judgment and story rather fizzles out there. Perhaps there was an application to withdraw the proceedings, perhaps not. We may never know.