Notable interesting cases.
Re T & Ors (Children) (Adequacy of Reasons)
[2023] EWCA Civ 757
Neutral Citation Number: [2023] EWCA Civ 757
Case No: CA-2023-000862 and 000863
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HH Judge Oliver
ZC21C00130
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 29 June 2023
Before :
LORD JUSTICE BAKER
LADY JUSTICE SIMLER
and
LORD JUSTICE WARBY
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RE T AND OTHERS (CHILDREN) (ADEQUACY OF REASONS)
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Amanda Weston KC and Josephine Fathers (instructed by Oliver Fisher Solicitors) for the First Appellant
Gemma Taylor KC and Sharan Bhachu (instructed by Thompson Law) for the Second Appellant
Sarah McMeechan and Samuel Prout (instructed by Local Authority Solicitor) for the First Respondent
Julie Okine and Barbara Hecht (instructed by Hecht Montgomery) for the Second Respondent
Ramanjit Kang (instructed by Creighton and Partners) for the Third to Sixth Respondents, by their children’s guardian
Hearing date 29 June 2023
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Approved Judgment
LORD JUSTICE BAKER :
1.
These two appeals concern findings of fact in public law children proceedings. They are appeals by a 19-year-old man, hereafter referred to as S, and his mother against the judge’s decision dated 21 March 2023, by which he made findings of fact against them. The findings came within care proceedings brought by the local authority in respect of S’s younger siblings: T, a 16-year-old girl; U, a 14-year-old girl; V, a ten-year-old girl; and W, a five-year-old boy. The appeals are supported by the children’s father, acting through his litigation friend, but opposed by the local authority and the children’s guardian.
2.
The principal issue arising on the appeals is, once again, the adequacy of the reasons given by the judge for the serious findings he made against S and his mother.
3.
Although the history of the matter which led to the proceedings, and of the proceedings themselves, is complicated, it can be summarised fairly briefly for the purposes of these appeals.
4.
The family has been known to the local authority for 15 years. The father has diagnoses of severe post-traumatic stress disorder with psychotic features and dependent personality disorder. The mother is often his sole carer. There have been lengthy difficulties with housing, money and immigration status which have had an effect on the mother’s ability to care for the children. In November 2008, S and T were placed in foster care for a month under s.20 of the Children Act 1989 when the mother had to stay in hospital after giving birth to U. In the following years, a number of referrals and assessments were made and completed. Between July 2017 and March 2018, the children were the subject of child protection plans under the category of emotional harm. At that stage, the local authority had concerns about the mother’s anxiety, her ability to prioritise the children’s needs, and the speech and language development of U and V, both of whom were described by CAMHS as selectively mute.
5.
Towards the end of 2020, the local authority began to be concerned about T’s peer groups: she was reported missing from school on one occasion and was found with a friend who had been assessed as being at high risk of sexual exploitation.
6.
On 5th February 2021, police officers were called to the family home by S as a result of an incident involving T. While they were there, T made allegations that her brother had sexually abused her on occasions when she was aged 11 and 12. She further alleged that her mother had known about the abuse and done nothing to protect her.
7.
T was subsequently interviewed under the ABE procedure. She repeated her allegations and also alleged that on another occasion her mother had slapped her cheek and kicked her.
8.
S was interviewed and denied the allegations. The mother also denied knowing or being told about the allegations. She raised concerns about T’s behaviour and the young persons with whom she was associating at school which had led to a deterioration in her behaviour and use of illegal substances.
9.
T has been the subject of an interim care order since the beginning of the proceedings. She has stayed in foster care and several different residential placements. During this time she has suffered significant mental health crises and self-harmed on many occasions. She has absconded from the placements many times and on most occasions returned to her family home. On one occasion when she absconded, she alleged sexual assault by a stranger. At several points during the proceedings, T retracted the allegations against S and her mother, then repeated them, then retracted them again. All professionals accept that her presentation is very complex and extremely worrying. A particular practical concern is that she will reach the age of 17 in the next three months at which point she will be beyond the age at which a care order can be made.
10.
Meanwhile the three younger children remained at home with their parents. By agreement, S moved out of the family home.
11.
On 19 July 2021, S was joined as an intervenor to the proceedings. His lawyers applied for T to give evidence at the fact-finding hearing. That application was opposed by the local authority and the guardian. After a Re W hearing on 19 November 2021, the judge came to the conclusion that T would not give evidence. Participation directions were also made in respect of S.
12.
The findings sought by the local authority were set out under the following headings:
(1)
When T was aged around 11 to 12, S sexually abused her by anally raping her on 20 occasions and on one occasion taking a photograph of her with one of her breasts exposed.
(2A) T informed her mother that S had abused her. The mother told her not to tell anyone. Mother failed to protect T and is unable to protect the children from sexual harm from S.
(3)
The mother has influenced or sought to influence T to conceal or withdraw her allegations about S.
(4)
On 5 February 2021, the mother hit and kicked S, pulled her hair and choked her.
(5)
During December 2020, the mother grabbed T’s hair and S hit, grabbed and punched her.
(5A) At times there were heated arguments between T and the mother. These escalated into physical altercations and necessitated the police being called. On those occasions, T was beyond the control of her parents.
(5B) On 27 December 2020, S physically intervened in an argument between T and her mother and accepts restraining his sister.
13.
The fact-finding hearing was originally listed in December 2021 but had to be adjourned due to a number of practical and evidential difficulties. The original time estimate given by the parties had been 13 days. The court reduced the time listed to 10 days, then reduced it again to 9. The adjourned hearing listed in April 2022 had to be adjourned again and the fact finding finally went ahead in August 2022. In the event, it continued over twelve days in August, September and October during which fifteen witnesses gave oral evidence to supplement the extensive written evidence. At the conclusion of the evidence, the court directed written submissions with the intention of delivering judgment in November 2022. A request for the matter to be listed for oral submissions was refused. Instead, the court afforded the parties the opportunity to file supplemental submissions in response.
14.
Before judgment could be delivered, however, U made allegations of a similar nature against S. It was therefore agreed that judgment would be delayed while the allegations were investigated and the local authority decided whether to seek further findings. In the event, it was decided that no further findings would be sought. The judge was then asked to hand down a written judgment (which could then be translated and explained with the assistance of intermediaries) but declined to do so because of shortage of time.
15.
On 21 March 2023, the judge delivered an oral judgment in which he made substantially the findings sought by the local authority. Following the judgment, lawyers representing S initially invited the judge to clarify the judgment, but those representing the mother subsequently informed the court that they intended to appeal against the findings and the request for clarification on behalf of S was withdrawn.
16.
On 9 May 2023, notices of appeal were filed on behalf of both S and the mother. On 7 June, permission to appeal was granted on both applications.
17.
At the hearing of the appeal today, we have been told that the current position of the family is as follows. S is now living in independent accommodation. He does not visit the family home and has no direct contact with his siblings. T has a place allocated for her in semi-independent accommodation but is currently back living in the family home. U’s circumstances have deteriorated very alarmingly. She is currently detained in a mental health unit under section. The two younger children, V and W, who were briefly removed into foster care at the end of last year after U made her allegations, are currently at home.
The judgment
18.
At an early stage in the judgment, the judge explained what he was going to do in these terms (at paragraph 3):
“This judgment can only last about an hour because I have another hearing. It cannot therefore go into every single detail of every single bit of evidence of the 12 days of hearing, otherwise we would be here for 12 days. If it needs to be expanded, it will be. But I am going to give much more of an overview than anything else.”
19.
He then referred to the law in these terms:
“10.
The law that I need to apply has been agreed between junior counsel in the case. I have a 14-page note dated 27 October 2022. That note will not be read in full, but I will, if necessary, read it into the judgment at a later stage.
11.
Suffice it to say the burden of proof falls on the Local Authority. It is on the balance of probabilities. It is not for the person against whom allegations are made to prove they are innocent.
12.
One has to be always aware of lies. Sitting as I have done in the last three weeks in the criminal jurisdiction, I am very familiar with the Lucas direction, based on a 1981 Queen's Bench case, which has been adopted into the family courts by, for example, Ryder LJ in Re M [2013].
13.
The purpose of the fact finding is, as Peter Jackson LJ said in A (no 2) [2019] EWCA, to answer the questions what, when, where, who, how, and why. I am of course equally aware that I am dealing with allegations of sexual abuse, and Baroness Hale many moons ago said there was no higher standard of proving allegations of sexual abuse than any other. That has been reiterated by other judges over time.
14.
I am aware that I need to assess the credibility and reliability of the witnesses, and in this case those who have wanted to give evidence have done so. If I am able to identify an alleged perpetrator, I should do so. In this case that is an academic question, because this is not, "Something happened, and there is a pool of perpetrators". In this case the allegations are explicitly made against S. So, the question is not who, but did he?
15.
I have to bear in mind the length of time that has occurred since the allegations were made, and I have to bear in mind retractions, that is somebody making an allegation and then retracting it.
16.
In addition, I have to be aware about allegations made by children, and ABE principles. Again, there is a 13-page agreed note setting out the law I need to follow. Children who make allegations should be listened to, but I should not prejudge issues at stake. I need to examine in detail what has been alleged to have happened. There has been no cross-examination of T in this case, although there was an ABE interview. That I need to bear in mind when considering her allegations.
17.
I am also aware that there was no direct medical examination, and I have to make sure that I do not obtain unreliable evidence, because children can be both poor historians, and are suggestible. Indeed, that is a point made by Ms Taylor, from memory, in her submissions. Although Ms Croft makes the point that if she is suggestible to have made the allegations, she might be suggestible therefore to have been asked to withdraw them. I am aware of course of the ABE guidelines, and the details set out therein. Again, I do not intend to repeat any more of the law relating to that. It is well known by me, and can be read into the judgment if it becomes necessary.”
20.
In paragraphs 18 to 40, the judge set out some but by no means all of the relevant history, focusing on T’s allegations. He then continued with these observations:
“41.
The evidence I have just read out shows that T was inconsistent in her allegations. She would allege them, and then there would be occasions when she would withdraw them. This has led certainly S's team and perhaps mother's team to say that she is making this all up. Obviously T has been unwell mentally, and has had some periods in psychiatric support, and from what I have read out certainly there were occasions when she seemed to link going home with "if I say it's all lies", in other words wanting to go home being only capable of being achieved if she said that she was telling lies.
42.
The difficulty with anyone who makes allegations and then withdraws them and then makes them again is that it is difficult to see if there is a consistent pattern in what is being alleged. But it is fair to say that over the period that T made the allegations she was always consistent that it was anal rape, not oral or vaginal; that she only ever named S; that it happened on a number of occasions; and it happened when she was in Year 6 or 7, when she was 11 or 12; and it happened in her bedroom. Those, throughout all of the discussions she had with the police officers, the video recorded interview and so on, were consistent.
43.
If one looks at the two specific occasions when she withdrew the allegations, it is when something was going on, for example in April of 2021 she wanted to go home, and therefore she was saying that she had made it up all up, she hated [her residential unit] she said at that time; and also in August to October of 2021 she again was very unhappy, particularly in [another residential] unit}. Especially it was at the time when she had the phone removed from her, because she had worked out how to remove her password in August.
44.
It is not unusual in a case where there are allegations of sexual abuse for the person making those allegations to withdraw them and then repeat them. One has to look at the motivation for why the person withdrew them, and it seems to me in this case that T’s motivation for withdrawing them was either encouragement by her mother that by doing so she would go home, which she clearly wanted, or because she was unhappy where she was, and wanted to go home. It is of note that at one point she did complain that although it was in her words her that had been abused, she was the one who was being punished for being away from home, not unfamiliar words to those of us who have done this kind of work for some time.
45.
The suggestion that in fact T was, if you like, going off the rails, and it was as part of her general behaviour, was one pursued by Ms Taylor and Ms Weston on behalf of their respective clients. Mother in her evidence made it clear that she did not believe the allegations that T had made against S, and I have already indicated that S has said that T was lying when she made the allegations. Both mother and S say that the reason that T has behaved like she has, and made these allegations, is because of the people she was mixing with at school, and the fact that she was under the influence of drugs.”
21.
The judge then made some observations about aspects of the evidence relating to T’s alleged drug-taking, mixing with other young people, and exploitation. He continued:
“53.
The great difficulty for both T and her mother is that T alleges that she told her mother about the allegations prior to 5 February 2021, T says it was about two or three years before she had told her mother, and that this is denied by mother. Mother, when the police officer was in the house in February 2021 talked about T being dishonest. She does not ask any more detail, she does not say, "Well, what do you mean? What's this all about? For goodness sake, tell me, I'm horrified". In fact, mother is very much more concerned in suggesting that T is lying than that T should be believed. It came as a surprise to me, as I know it did to others, that mother did not appear to want to find out more about the allegations in 2021, she did not want to know what, why, when, where, how, the points that are raised in the caselaw for example. She says, "Well, it was because there was no interpreter", but I do not find that valid. It is something she would have, I believe, as a concerned mother, wanted to have identified, wanted to understand, wanted to find out what her daughter had allegedly suffered.
54.
Of course we know that mother does not actually believe that S sexually abused T, so she starts from the premise that she believes S not T. And she found it very difficult to even accept that it was possible that this could have happened, because it is not how she brought her children up, it is not in her culture, and it only happens to people without brains. Again, mother was concerned about the way that it would present to the community if S was found to be the alleged perpetrator.
55.
I have already suggested that T said that her mother had tried to influence S to withdraw the allegations by writing the letter, which mother said she never did, and by the suggestion that if S withdrew the allegation she might be able to come home. Mother denies all of that. T made it clear on two occasions that her mother had told her to withdraw the allegations, that if she did she would be able to come home, that was particularly in June of 2021.
56.
There were certainly occasions when mother would go and see T at an early stage in [a medical unit] when she was able to get into the unit and to have contact with T without being overheard. And we know that on at least two occasions then, although subsequently it has been more than that of course, T would abscond to the family home, and have unsupervised contact.”
22.
The judge then concluded with his findings in these terms:
“57.
If I now return to the allegations, the first one, as I have said, is that, "When T was aged 11 or 12, S allegedly anally raped her, and took photographs".
58.
I am aware that there is no physical evidence to show that this happened, the medical examination produced nothing, but I am satisfied that T is right in her allegations. I know that she made them, withdrew them, made them, withdrew them, and made them again, but I am satisfied that she was clear in what she said, and that she was telling the truth. I find allegation 1 proved.
59.
Allegation 2A is that, "T informed her mother that Shad raped her at about the time this was happening, and that he had taken a photograph of her in her bra". It goes on to say that, "Mother told T not to tell anyone, including her father, or she would get in trouble, and would embarrass her, the family, and no one would believe her. Mother did nothing in respect of the allegations, and it is therefore alleged mother failed to protect T, and she is unable to protect the children from sexual harm from R".
60.
We know that mother seems from answers to questions in cross-examination to be concerned about how the family would look, and therefore would be embarrassed. Mother has consistently refused to believe T. Mother has consistently said that T is lying. I cannot see why T would want to make up that she told her mother something previously if she had not. Why do it? What is the point? You tell somebody something because that is what you tell them, but to say, "Well, I told you three years ago, and you did nothing about it", I do not understand why she would have wanted to do it, what her motivation would have been, and I am entirely satisfied that paragraph 2A is made out.
61.
2B, "Mother has influenced or sought to influence T to conceal or withdraw her allegations about S".
62.
This, I am afraid, I am entirely clear relates both to the letter and the suggestion that by withdrawing the allegations T can come home. That is proven as well.
63.
"On 5 February 2021 mother hit and kicked T, pulling her hair and chocked her".
64.
I have not dealt with this allegation so far. Clearly there was a real fight going on, if I can put it that way, at the family home, on 5 February. There had been a previous occasion when the police were called, we know, in December 2020. I am sure that both T and her mother, when fighting, ran at one another. I know that T told the police on 5 February that her mother grabbed her hair, and started to choke her. Mother does not accept it. She said that T should not go out. Mother says that T attempted to attack and rip her top. I had little evidence about this in fact, and my instinct is that if there had been this hair pulling and choking, it was part of a six of one, half a dozen of the other, both of them were fighting one another, and the same way that T was attempting to attack her mother and rip her top, so her mother was attempting to attack her. So, yes, it is proven, but it is part of I think a two-way street.
65.
Again, allegation 4, "During December 2020 mother grabbed Ts hair, and S hit, grabbed and punched her".
66.
This is another one of those fights where both of them were having a go at one another, T was being aggressive, mother was being aggressive back. So, it is a "yes, but". I am satisfied that that was just another fight going on.
67.
5A is really a continuation of the same, that, "There were heated arguments between T and mother which escalated into physical altercations, and on the occasions when this happened, T was beyond the control of her parents".
68.
Yes, that is definitely clear.
69.
5B, which again is part of really 4, that, " S physically intervened in the argument between T and her mother on 27 December 2020, and restrained his sister".
70.
Yes, he did, but I think that was no more than trying to stop the two of them fighting, so that is a "yes, but" again. "Yes, proven, but".
71.
Those are the allegations, and those are my findings on the allegations. As I said, it is not a comprehensive tour of each piece of evidence from each of the witnesses, which I can expand on in written detail if necessary in the future. But those are my findings in relation to the allegations. The first two I found proven. The remaining three are what I would call "yes, proven but there are matters to take into account". …”
The appeal
23.
The two appeal notices put forward overlapping grounds expressed in different terms. On granting permission to appeal, I directed the appellants to consolidate the grounds. I am very grateful to their representatives for complying with that direction which has made our task much more straightforward.
24.
The five consolidated grounds of appeal are:
(1)
Flawed approach and inadequate reasoning – the judge’s reasoning and approach to the evidence were flawed and failed to meet the minimum standard of adequate reasoning, having regard to the seriousness of the allegation and the material before the court.
(2)
Failure to set out and apply key authorities – the judge failed to or did not properly set out and apply key authorities and guidance and in doing so was wrong to make findings against the appellants.
(3)
Factual errors and misunderstandings – the judge made numerous factual errors and misapprehensions and relied on them as the basis of his reasoning and in doing so was wrong to make findings against the appellants which are unsustainable in law.
(4)
Wrong decision that the evidence supported the findings against the mother – the judge erred in law and was wrong to find that the evidence supported the findings being made against the mother.
(5)
Procedural irregularity in giving judgment – the systemic impact of failing to prepare a written judgment and instead providing an ex tempore judgment in a very limited timeframe was highly adverse and amounted to a serious procedural irregularity.
Grounds 1 and 5
25.
The principal focus of the appeal has been on ground 1, supplemented by ground 5. On these grounds, the appellants have very strong arguments.
26.
Perceived deficiencies in judgments in the family courts have led this Court to give guidance as to how the difficult task of judgment-writing should be approached. In Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407 at paragraphs 59 - 60, Peter Jackson LJ gave this guidance:
“59.
Judgments reflect the thinking of the individual judge and there is no room for dogma, but in my view a good judgment will in its own way, at some point and as concisely as possible:
(1)
state the background facts
(2)
identify the issue(s) that must be decided
(3)
articulate the legal test(s) that must be applied
(4)
note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned
(5)
record each party's core case on the issues
(6)
make findings of fact about any disputed matters that are significant for the decision
(7)
evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties
(8)
give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes.
60.
The last two processes – evaluation and explanation – are the critical elements of any judgment. As the culmination of a process of reasoning, they tend to come at the end, but they are the engine that drives the decision, and as such they need the most attention. A judgment that is weighed down with superfluous citation of authority or lengthy recitation of inessential evidence at the expense of this essential reasoning may well be flawed.”
27.
Having cited this passage in Re C, D and E: (Care Proceedings: Adequacy of Reasons [2023] EWCA Civ 334, I continued (at paragraph 24):
“In suggesting this approach, Peter Jackson LJ was plainly not being overly prescriptive. Judges adopt different approaches to writing judgments. Some leave all their analysis to the end, whereas others include parts of it at various points in the judgment. There is no hard and fast rule about this. Peter Jackson LJ acknowledged as much in Re S (A Child: Adequacy of Reasons) [2019] EWCA Civ 1845 at paragraph 34):
"I would also accept that a judgment must be read as a whole and a judge's explicit reasoning can be fortified by material to be found elsewhere in a judgment. It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself.””
28.
Under ground one, it is asserted in particular that the judge failed properly to set out the evidence, or adequately analyse key features of the evidence, or record each party’s key case on the issues, or give a proper explanation for his findings. A number of crucial omissions from the judgment have been identified. The summary of background facts is incomplete – in particular there is no reference to the history of the family’s involvement with children’s services. The judgment does not identify the witnesses who gave oral evidence, let alone summarise what they said. It is therefore impossible to determine what weight has been given to any particular part of the evidence or how the findings have been made. There is no reference to the lengthy submissions prepared on behalf of the appellants, save a statement early in the judgment that the judge had read them, nor to the core issues as identified by counsel.
29.
Particular criticism is made of the judge’s failures with regard to T’s evidence. The following points are made about this.
(1)
There is no analysis of what is described by the mother’s counsel as the critical issue of the timing and context of T’s allegations.
(2)
There is no consideration of what the mother’s counsel described as the granular detail of T’s allegations. Points were made by all parties about this in detail. They did not receive any or any sufficient analysis in the judgment.
(3)
There is no or no adequate explanation of how the judge has evaluated the evidence of T’s lies, her retractions, and her presentation at home, at school or in care.
(4)
There is no consideration of the credibility or consistency of her allegations.
(5)
There is no real consideration of the evidence given by the safeguarding lead at T’s school.
(6)
Of particular significance, there is no reference to the alleged breaches of the ABE guidance or their impact on the reliability of what was said in the interview. These breaches received extensive attention in closing submissions on all sides.
(7)
An assessment of T was carried out by a consultant psychiatrist, Dr Mohammed. He was not called to give oral evidence but produced a report which was filed in the proceedings and referred to in submissions. His report included statements made by T about the allegations and the context in which they were made. It contained information relevant to T’s suggestibility, her account of the influence of other young people with whom she was associating, and her view of her relationship with S. The assessment and report are not mentioned in the judgment.
30.
Furthermore, and equally concerningly, say the appellants, there is no account of the appellants’ evidence and only passing references to it. On behalf of the mother, particular complaint is made of the judge’s failure to mention difficulties that arose with interpretation of her evidence. On behalf of S, it is submitted that the judge erroneously described his case as being a simple denial whereas his case was much more nuanced. He accepted that something had happened to T but denied that he was the perpetrator. In his four witness statements, he set out in considerable detail evidence about his relationship with T and why it had deteriorated. Ms Weston KC on his behalf drew attention to what she described as his sympathetic and nuanced account of T’s behaviour. He also provided an explanation for the photograph. He gave oral evidence for nearly a day. There is barely any mention of his written or oral evidence at all in the judgment.
31.
On behalf of the local authority, it is recognised that ground 1 is the “key ground”. Ms McMeechan and Mr Prout cite the well-known observations of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, in particular paragraph 114-115:
“114.
Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. …
115.
It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted.”
32.
While acknowledging significant omissions, the local authority submitted that the judgment is nevertheless not devoid of reasoning and analysis and is sufficiently detailed to meet that standard and the guidance in Re B (Adequacy of Reasons). Despite severe time constraints, the judge covered much ground in his judgment. It is argued that it is “not unexpected” that judges in the family court will have to give judgment in less than ideal circumstances and for that reason this Court has introduced the practice of seeking clarification of the judge’s reasons. It is submitted that the appellants’ complaints about the omissions from this judgment could be met by putting such a request to the judge.
33.
In written submissions on behalf of the guardian, trial counsel Ms Caroline Croft, whilst opposing the appeal, put her argument rather faintly, observing that the judgment “is not devoid of reasoning”. She accepted on behalf of the children that the judgment could have been fuller and that there were areas of evidence, circumstances and submissions which were not set out in the judgment. She surmised that these omissions may well be due to the fact that the judge was explicit that he did not necessarily view this judgment as the full judgment but as an overview that could be amplified if required. She accepted that “giving brief overview judgments is likely to be a practice which could not be encouraged” , but submitted that it was justified in the unusual circumstances in which this judge found himself and the practical difficulties he was facing. She adopted the same position as the local authority about clarification, submitting that the judgment is sufficiently indicative of the process the judge followed in arriving at his decision to warrant inviting the judge to give further reasons.
34.
Ground five follows on from ground one. It is argued that the systemic impact of failing to prepare a written judgment and instead providing an ex tempore judgment in a very limited timeframe was highly adverse and amounted to a serious procedural irregularity. On behalf of S, it is submitted that by adopting this course, the judge was failing to comply with the clear guidance given by this court in the cases cited. On any view, it failed to meet the minimum standards required. On behalf of the mother, it is stated that she left court with little or no understanding of why the judge had reached his findings. On behalf of the local authority and the guardian, it is submitted that it is entirely normal for a judge to deliver a judgment ex tempore even in complex cases, that the judge had little choice but to proceed in the way he did, that it was not a procedural irregularity, and that any omissions can be tackled by a request for clarification.
Discussion and conclusion
35.
As Lord Neuberger observed some years ago (in the first Annual BAILII Lecture in 2012):
“Judgments are the means through which the judges address the litigants and the public at large, and explain their reasons for reaching their conclusions. Judges are required to exercise judgement – and it is clear that without such judgement we would not have a justice system worthy of the name – and they give their individual judgement expression through their Judgments. Without judgement there would be no justice. And without reasons there would be no justice, because decisions without reasons are certainly not justice: indeed, they are scarcely decisions at all.”
36.
It is widely recognised that judges sitting in the family court, where the pressure of work is very great and resources limited, face enormous difficulties and challenges. Plainly the judge was short of time on 21 March. But the course he took of delivering what he intended to be a relatively short overview judgment, with a view to the parties asking for further reasons if they so chose, is plainly irregular.
37.
I agree with the local authority and the guardian that the practice of giving ex tempore judgments should not be discouraged. But this was not an ex tempore judgment. According to the definition given by the Incorporated Council for Law Reporting for England and Wales, an ex tempore judgment is one given orally at the conclusion of a hearing as opposed to being reserved and delivered (usually in writing) at a later date. This was a reserved judgment given orally six months after the conclusion of the evidence and four months after receiving written submissions. An ex tempore judgment after a short hearing where the issues are straightforward can be sensible and proportionate. But giving an ex tempore judgment after a case of this complexity would have been an unwise course in any circumstances.
38.
I do not accept that the practice adopted by the judge of giving what he described as an overview with further reasons to follow if requested is consistent with the clear guidance given by this Court in the cases cited above. This ought not to have been an overview of the judgment, or an outline of the judgment, or a summary of the judgment. It was the judgment.
39.
With respect to this experienced judge, he ought to have adopted the course suggested by the parties of handing down a written judgment. Cases of this length and complexity, in which serious findings are going to be made which will have a lifelong impact of members of the family, require a much more detailed analysis. I have cited on a number of occasions, and completely agree with, Lewison LJ’s observation in Fage, which in turn is a repetition of statements in earlier authorities, that “there is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case”. Nor need the judge refer to every point of the evidence. As Peter Jackson LJ said in Re B, what is needed is an identification and analysis of the “key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned”. Regrettably that is not what happened in this case.
40.
I agree with the appellants’ submissions that the omissions from the judgment are extensive and significant, in particular the absence of any analysis of the ABE interview, or any assessment of credibility and reliability, or any detailed analysis of the appellants’ evidence, or the evidence of the safeguarding lead, or any reference to Dr Mohammed’s report, or any real consideration of the detailed submissions made on behalf of the parties. There was some analysis of the reliability of T’s allegations, but given the omissions in the judgment it was inevitably incomplete. The analysis of the evidence was manifestly insufficient, with crucial aspects of it not mentioned at all, and the judge’s explanation for his findings was perfunctory. The assertion in the judgment that S’s case was a bare denial completely failed to do justice to the nuanced evidence he gave both in four statements and nearly a day of oral evidence, and the lengthy submissions filed on his behalf. Anyone reading the judgment – be it the parties, the public, an appellate court, professionals working with the family, or in later years the children themselves – would have no idea how the judge assessed the complex evidence he heard, why he preferred some parts of the complex and contradictory evidence and rejected others, or why he reached his conclusions on the very serious – life-changing – allegations.
41.
In Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149 I said, at paragraph 61:
“there are cases where the deficiencies in the judge’s reasoning are on a scale which cannot fairly be remedied by a request for clarification As King LJ said in Re I (Children) [2019] EWCA Civ 898 (at paragraph 41):
“It is neither necessary nor appropriate for this court to seek to identify any bright line or to provide guidelines as to the limits of the appropriate nature or extent of clarification which may properly be sought in either children or financial remedy cases.”
But where the omissions are on a scale that makes it impossible to discern the basis for the judge’s decision, or where, in addition to omissions, the analysis in the judgment is perceived as being deficient in other respects, it will not be appropriate to seek clarification but instead to apply for permission to appeal.”
In Re C, D and E, supra, I added at paragraph 31:
“In this case, the deficiencies are on a scale which cannot fairly be remedied by a request for clarification. We would not have been asking the recorder to clarify an ambiguity or omission in part of his reasoning but to set out his reasoning in its entirety. For my part, I would not be confident that we would be asking the recorder to set out an analysis which he had in fact carried out but for some reason omitted to include in the judgment. Rather, where the absence of recorded analysis is on this scale, there is a danger that we would be asking him to carry out an ex post facto rationalisation for a decision he has made without proper analysis. We would be asking him to perform a task that should have been undertaken before the decision was made, namely, as McFarlane LJ described it in in Re G [Re G (A Child) [2013] EWCA Civ 965], “that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place”. This would be wrong as a matter of principle and manifestly unfair to the parties, in particular the mother but also the children.”
42.
Although the judgment in this case does contain some reasoning, I find that it falls into the same category. The deficiencies are on a scale which cannot fairly be remedied by a request for clarification. Where the absence of recorded analysis is on this scale, there is a danger that we would be asking him to carry out an ex post facto rationalisation for a decision he has made without proper analysis.
43.
For those reasons I would allow the appeal on grounds 1 and 5. The judgment and findings must therefore be set aside.
44.
In those circumstances, I can deal with the other grounds very briefly. As to ground 2, I would not be minded to allow an appeal on this ground standing alone. I am not persuaded that the way in which the judge identified and set out the legal principles gives rise to a ground of appeal. He failed to apply them in the ways set out in grounds 1 and 5 but ground 2 does not add to that argument. Grounds 3 and 4 involve an analysis of the evidence. Subject to what is said below, there may have to be a rehearing of all or some of the allegations. In those circumstances, it would be better to refrain in this Court from commenting on the evidence to avoid inadvertently influencing the outcome of any rehearing.
45.
What should happen now? In particular should there be a complete rehearing? As Ms Taylor KC for the mother rightly says, the factors to be taken into consideration are the same as those relevant when determining whether to hold a fact-finding hearing in the first place. They were summarised by McFarlane J (as he then was) in Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam), and approved and developed by this Court in Re H-D-H (Children), Re C (A Child) [2021] EWCA Civ 1192 and reiterated recently by this Court in Re H-W (Care Proceedings: Further Fact-Finding) [2023] EWCA Civ 149. In short terms, they are:
(a)
The interests of the child (which are relevant but not paramount);
(b)
The time that the investigation will take;
(c)
The likely cost to public funds;
(d)
The evidential result;
(e)
The necessity or otherwise of the investigation;
(f)
The relevance of the potential result of the investigation to the future care plans for the child;
(g)
The impact of any fact finding process upon the other parties;
(h)
The prospects of a fair trial on the issue;
(i)
The justice of the case.
46.
For my part, I have considerable doubt whether a re-trial would be justified applying those criteria to the current circumstances of this case. S and U are currently living away from home; by the local authority's interim plan T ought to be too, although she is not currently using the placement held open for her. The assessments which have been carried out so far point to the two younger children remaining at home. The threshold criteria with regard to T, and probably U, can surely be agreed on the basis that, in the somewhat archaic language of s.31(2)(b)(ii) of the Children Act 1989, at the relevant date they were likely to suffer significant harm as a result of being “beyond parental control”. I think it highly likely that the threshold criteria with regard to the younger children can also be agreed without the need for a full rehearing of the fact-finding. That was the view expressed on behalf of the mother and the local authority, in the event that the appeal was allowed. In written submissions, counsel for the guardian argued for a full rehearing. In oral submissions, however, Ms Kang, who appeared in place of Ms Croft, informed us that the guardian had reconsidered the matter and would now if at all possible wish to avoid a rehearing, providing a form of words for the threshold and a detailed care plan can be agreed and approved by the court that ensures the children are protected. There may then be an issue as to the order – care order, supervision order or no order – but that plainly is a matter for submissions.
47.
These are not issues which this Court is equipped to resolve. If my Lady and my Lord agree, I would therefore propose that the proceedings be remitted to the Designated Family Judge for Central London to be listed for an urgent issues resolution hearing. I hope that all issues could be agreed without any need for a re-hearing which, as all parties agree, would be likely to cause further harm to this already very damaged family.
48.
I conclude by expressing my thanks to all the professionals involved in this complex and very worrying case, counsel and solicitors, social workers, the children’s guardian, and also the many other professionals, some mentioned in the judgment, others not, who have worked tirelessly to help these children.
LADY JUSTICE SIMLER
49.
I agree.
LORD JUSTICE WARBY
50.
I also agree
Appeal granted due to failure to get Psychologist report done on mother.
Neutral Citation Number: [2023] EWCA Civ 721Case No: CA-2023-000602
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT WORCESTER
Recorder Rowbotham
WR22C50115
Royal Courts of Justice
Strand, London, WC2A 2LL27 June 2023
B e f o r e :
LORD JUSTICE SINGH
LORD JUSTICE BAKER
and
LORD JUSTICE ARNOLD
____________________
E (A CHILD) (CARE AND PLACEMENT ORDERS)
____________________
Lorna Meyer KC and Faye Edwards (instructed by Parkinson Wright LLP) for the Appellant
Matiss Krumins (instructed by Local Authority Solicitor) for the Respondent
Hearing date : 13 June 2023
____________________
HTML VERSION OF APPROVED JUDGMENT ____________________
Crown Copyright ©
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on 27 June 2023.
LORD JUSTICE BAKER :
This is an appeal by a mother against care and placement orders made in respect of her son, E, who is now just over a year old. The appeal is opposed by the local authority and by the children's guardian.
The mother, who is now aged 21, had a very traumatic childhood. She was born in the United States and moved to this country at a young age with her parents and siblings. After moving here, she was sexually abused by her half-brother. He was subsequently convicted of a series of sexual offences involving the mother and her sisters, sent to prison for nine years, and later deported. Following the breakdown of her parents' marriage, her mother formed a relationship with another man who was emotionally abusive to all members of the family.
Throughout her teenage years, the mother suffered from mixed anxiety and depression, had suicidal thoughts and regularly self-harmed. In addition, she had various physical health problems, including Ehlers-Danlos syndrome and fibromyalgia. Between the ages of 11 and 18, the mother was under the care of the local Child and Adolescent Mental Health Team through whom she received counselling and various forms of therapy including cognitive and dialectical behaviour therapy. At various points she was referred to the local Complex Needs Service and to the Women's Rape and Sexual Abuse Centre.
The mother has had a series of short-term relationships with men, some of which have been abusive. In 2019, she was sexually assaulted again. In 2021, she started a relationship with the father which she has subsequently described as violent and abusive. At the point when she became pregnant in 2021 aged 19, the mother was receiving support from adult social care and was being treated as an outpatient by the adult local mental health team who had prescribed anti-depressant medication. Medical reports from this period included in the court papers identify her diagnosis as emotionally unstable personality disorder. In October 2021, she was seen by counselling psychologists within the team to determine whether she should undergo a full psychological assessment to determine whether she should receive further psychological treatment. A report from the psychologists following this referral recorded that the mother had described her main difficulties as her lack of ability to regulate her emotions and suicidal ideation. She raised the question whether she might be autistic, describing sensory issues she experienced and stating that autism ran in her family with three siblings diagnosed as autistic and a fourth under investigation. At that stage, the counselling psychologists thought that psychological work might be too much for her and recommended that she should concentrate on her pregnancy and "transition to motherhood". It was agreed, however, that she would be referred for a neurodiversity assessment by a "family psychologist" to establish whether she was on the autistic spectrum. The report concluded that "once [her] situation is more settled, she has had her baby and established herself in her new role and has had the assessment by the family psychologist, we would be happy to consider a re-referral to psychology."
Following this report, the mother was referred for an assessment by the family psychologist. According to a later letter (9 January 2023) from the mental health team, however, no such assessment has so far been carried out.
During her pregnancy, the mother attended all health and social care appointments. She told NHS staff that the father of the child she was expecting and with whom she was in a relationship was controlling and had threatened to kill himself if she separated from him. A multi-agency risk assessment conference was held, but the mother was reluctant to engage with that process or speak to the police. The local authority placed the unborn baby on a child in need plan due to concerns about domestic violence and the mother's mental health difficulties.
Following an initial child protection conference in May 2022, the unborn baby was made subject to a child protection plan. On 26 May, the mother gave birth to E. Mother and baby were discharged from hospital to the maternal grandmother's house. The original plan was for an assessment period of six weeks under those arrangements, after which the mother and E would move to the mother's own bungalow.
Over the next few weeks, the grandmother told the local authority allocated social worker that she had concerns about the mother's care of E and about her mental health. On 23 June, the mother was seen by her psychiatrist after reporting feeling low and with thoughts of self-harm. The social worker arranged to meet both parents on 27 June at their separate addresses. On arriving at the mother's bungalow, the social worker was informed by the mother of her concerns about the father's mental health. Shortly afterwards, the father arrived and there was an altercation during which the father exchanged blows with the mother's sister. According to the social worker, the mother needed prompting to remove E from the room during the fight. The police and an ambulance were called, and later that day the father was sectioned under s.136 of the Mental Health Act 1983. Thereafter, his contact with E was stopped, and he later declined further assessment and decided not to put himself forward to care for the child.
On 14 July, the local authority started care proceedings. In the local authority's initial statement, the social worker reported that the mother had demonstrated a reasonable knowledge of a child's needs, that she could manage a child's basic care and was able to show emotional warmth to E with whom she was said to have "a lovely bond". The local authority's concerns were as to the consistency of her care for the child, her mental health problems, and her abusive relationship with the father. At the first court hearing, E was made subject to an interim care order on the basis of a care plan under which he remained with his grandmother. On 16 September, however, the grandmother withdrew from the kinship assessment process, informing the social worker that she was unable to cope with the mother who was not prioritising care of the child but instead spending time with a new partner. At that point, E moved to a foster placement where he remains.
Meanwhile, on 10 August, the mother had applied in the care proceedings for a psychological assessment under Part 25 of the Family Procedure Rules. The draft letter of instruction filed in accordance with the rules set out the proposed instructions to the expert in these terms:
"1. Please carry out a full psychological assessment, including an assessment of the intellectual, social and behavioural functioning of [the mother], to include an assessment of her ability to function as an individual and as a parent and whether she has any psychological issues which may affect her parenting ability, taking into account the history of this case.2. Does mother, either in her history or presentation, present with any mental health illness, disorder, or any other psychological/emotional difficulty, and if so, what is her diagnosis?3. How mother's association with risky adults impact on her child in the short, medium and long term?4. Does mother's mental health/psychological profile mean she associates herself with risky adults?5. How does mother's psychological profile impact on her ability to meet the child's needs in the short, medium and long term?6. Does mother's mental health/psychological profile pose any risks to herself, her child and others? What are those risks?7. What are the experiences and antecedents which would explain her difficulties if any (taking into account any available evidence or any other clinical experience)?8. What treatment is indicated, what is the nature and likely duration?9. What is mother's capacity to engage in and partake in any treatment or therapy?10. Are you able to include the prognosis for, timescales for achieving and likely durability of the change?11. What is mother's ability to parent her child whilst undertaking such treatment or therapy, in the short, medium and long term?12. What other factors might indicate positive change?13. Please provide details and recommendations of any therapy, treatment or courses that may be available? For example, names of courses and therapy and how mother can access this."
A skeleton argument filed with the application under Part 25 noted that there had been no recent assessment of the mother and referred to the conclusion reached by the community psychologists in October 2021. Addressing the issues identified in s.13(7) of the Children and Families Act 2014 (see below) and in particular the impact giving permission would have on the child's welfare, it was submitted that E deserved to be brought up by his mother if at all possible and that any risks that may prevent that should be properly assessed by an appropriate expert. It was acknowledged that normally no additional expert's report would be required in addition to the assessment of the social worker and children's guardian. In this case, however, given the mother's background and multiple diagnoses, it was submitted that a psychologist should be instructed to assess her possible complex psychological needs, any associated risks and the timescale of any treatment required to alleviate those risks. These issues could not properly be addressed in the social worker or guardian's assessments. Without a psychologist's report, there would therefore be a significant gap in the evidence.
For reasons that are unclear, the hearing of her application was delayed and eventually listed on 26 October 2022 before HH Judge Bugeja. A report from the mother's psychiatrist reported that she had said she had not self-harmed for seven months and advised that, as long as she continued to take her medication and engaged with the mental health team, the prognosis was good. No other evidence was filed for the hearing, but in a position statement counsel set out the local authority's position as follows:
"The local authority does not oppose mother's application however it does question the necessity of it in order for these proceedings to be concluded justly …. Due to the passage of time the allocated Social Worker CB has completed all of the proposed sessions of mother's parenting assessment and sadly this will be a negative assessment…. In summary since E has not been in his mother's care, mother has been living a really chaotic lifestyle, partying, drinking and taking drugs. Mother has met a number of different partners and brought them to her home, one of those partners has a history of violence. The allocated Social Worker CB has described a pattern prior to E being in mother's care and now, where mother places herself in risky situations.Mother has not taken support offered to her from Adult Services who offered her a care package, to go in and meet her needs to help her keep on top of the housework and she has not accepted that.The home conditions are described as atrocious. Mother's attitude to working with her mother is reported as very flippant about everything, sadly the Social Worker is unable to report anything positive as mother has not done anything to improve. It is noted that when Mother's flat was cleaned up it was Mother's parents that actually did this.Mother has not shown any insight when asked what she feels she needs to do to have E returned to her care – her response was that she just needs a day or two to sort the house out. When challenged about her lifestyle and the need to make changes mother replied she would not do all of those things if E was in her care."
After hearing submissions, the judge dismissed the application. Her reasons are set out in an agreed note of judgment:
"M did appear to make some progress but the updating statement suggests this has not been sustained. I accept it is a position statement not witness statement, and I will direct LA to file primary evidence. The update would have been shared with M and she would have known of concerns during assessment progress. The LA say M continues to live chaotic lifestyle, no significant changes made since E was moved from her care. She may be disheartened by process and delay and she has had medical difficulties, at the time of this application, there were risk factors to her ability to safeguard E whilst in care. The concerns in the LA's evidence are primarily not capable of resolution by a psychological assessment ….[The] question needs to be whether it is proportionate and necessary based on merits. I make it clear delay is one factor I take into account; I must remind myself of all matters sets out within s.13. M's position is she requires psychological because only with this that court can understand interactions of various conditions and what support she requires and further, what support package from LA that could be offered to ensure E could return to her. Suggested in any event, court will need to consider contact if E remains in family unit. F is neutral. LA indicate don't oppose but do submit not necessary. Child Guardian is opposed stating that although useful not necessary to determine outcome as court will have wealth of information to determine final orders for E.Court has regard to s.13 and the law which I won't set out in this short judgment. I am satisfied there is sufficient evidence to determine these proceedings. It is not necessary and proportionate for this piece of work to be completed on the back drop of the LA's continued concerns. A psychological assessment is not necessary to determine contact issues and I take the view there is sufficient evidence, no gaps in this evidence, which I accept is yet to be forthcoming in respect of recent updates. Once that is before the court, I do not find that a psychological assessment will fill a gap in this evidence. Mother's mental health is one aspect of this case and court has to consider if there is sufficient evidence to make a final decision. I dismiss this application."
In the course of the proceedings, the local authority filed a parenting assessment completed by the key social worker CB. It included the assertion that "since E has not been in his mother's care, mother has been living a chaotic lifestyle, party, drinking and taking drugs." In conversations with the social worker, the mother said that due to her childhood traumas she was unable to remember much of her childhood and could only provide a certain amount of information for the assessment. Noting that other professionals had also reported that the mother had only provided limited replies to questions, the social worker observed:
"It is unclear as to why this is as [the mother] is an intelligent person. It may be indicative of her struggling with her mental health and feeling overwhelmed to communicate with professionals or a distrust toward professionals to openly share information. In either regard it is a concern. It will be difficult to support [the mother] if she is not able to communicate and reflect on her experiences to assist with providing her support and guidance around many areas that would benefit herself such as understanding domestic abuse, parenting, discussing her own mental health and vulnerabilities and expressing E's care needs with professionals. It does unfortunately pose challenges when looking to undertake direct pieces of work with [her]."
The social worker summarised the mother's mental health history and commented:
"We have no confirmation from mental health professionals that [the mother's] current mental health is impeding on her decision making or resulting in erratic and impulsive decision making. It is however not within my professional expertise to fully understand the potential impact of her current circumstances and its potential impact on her decision-making ability. However, what is clear from discussions with [the mother] that changes in her life can influence changes in her mental health and result in its decline."
The social worker concluded that the mother had positive attributes – she loved E, was able to meet his routine care needs and had a basic level of insight. On the other hand, it was observed that at times E was secondary to the mother's relationships and her own needs. She had "complex mental health and emotional needs which impact on her parenting and decision-making". The social worker concluded that the mother would be unable to meet E's needs consistently without prompting and intervention but would continue to prioritise her relationships and expose E to risks.
Two further case management hearings took place, at the second of which the mother made an application for an assessment by an independent social worker which was also refused. The local authority issued an application for a placement order. An issues resolution hearing took place in February 2023, and the final hearing was listed before Mr Recorder Rowbotham on 2 and 3 March. In her statement filed on 17 February 2023, the mother said that she was still awaiting the assessment to establish whether she is autistic. She also challenged the assertions made by the local authority about her conduct in the period after E was born, denying that she had been leading a chaotic lifestyle, partying, drinking or taking drugs.
Prior to the hearing, the parties agreed the basis on which the threshold criteria for making orders under s.31 of the Children Act 1989 were satisfied. In summary, it was agreed that at the date on which proceedings were started E was at risk of physical and emotional harm as a result of the following matters: (a) the mother had been the victim of domestic abuse during her relationship with the father; (b) the father was unable to control his anger; (c) the father suffered from severe depression with thoughts of self-harm and suicide, and (d) when the parents were living together, the home conditions were poor and unsafe for a small baby. There was no reference in the agreed threshold document to the mother's "chaotic lifestyle". No direct evidence was filed to support the allegations about her lifestyle made at the hearing in October 2022 and the local authority did not pursue findings about them.
Threshold having been agreed, the issue to be determined by the recorder was whether to make the care and placement orders sought by the local authority. On behalf of the mother, it was again argued that no decision could properly be taken unless the court had a psychological report on the mother and that the hearing should be adjourned for an assessment to be carried out. The recorder heard evidence from the social worker, the mother and the guardian on the first day. Having heard submissions on the morning of the second day, he delivered judgment in the afternoon.
At the outset of his judgment, the recorder set out the issues and the parties' positions in these terms:
"3. …. The available options before the court, therefore, are somewhat stark: either that I order a return to the mother's care or else a care plan of adoption. There is, in reality, a third route of an adjournment, which I will come to in due course.4. The local authority's application is supported by the guardian and, perhaps somewhat unusually, actively supported by the father. It is opposed by the mother, who seeks an adjournment for psychological or other assessment with more substantial consideration to be given to the support that she would need to achieve rehabilitation to her care.5. The headline questions before me, as I understand them to be, are therefore as follows. First, can the mother provide good enough care to E? Second, is there a need for further evidence such as to justify an adjournment? And third, is this really a case where it can be said that nothing else will do but adoption?"
The recorder summarised the background, including the mother's circumstances and health difficulties and the history of the proceedings. He then recorded his impression of the mother as a witness, describing her as intelligent and thoughtful and observing that nothing in her answers led him to conclude that she was a fundamentally dishonest witness. On the other hand, he found that she was not always open with professionals (for example, over her use of cannabis) and was someone who over-estimated her abilities (for, example, her ability to take cannabis alongside other prescribed medication). He noted the evidence that she had struggled to manage home conditions when on her own and lacked insight into the pressures she would face looking after E and whether she could do so with little support available from her limited social network of family and friends. Having summarised the law and the basis on which it had been agreed that the threshold was crossed, the recorder turned to his welfare analysis. He noted "many positives on the mother's side of the balance sheet", and described her as being "in many respects, a very impressive individual who has faced much in the way of trauma but who has fought and continues to fight to make improvements in her life".
The recorder then turned to the issue which lies at the heart of this appeal:
"52. I have read a very detailed parenting assessment completed by the allocated social worker. There are some points in that assessment in which I believe the mother has been unfairly criticised. I do not see, for example, any evidence of a 'party lifestyle' as has been described, with the use of drugs (save the use of cannabis). I do not see any evidence in this case, and it appears to be accepted that there is no evidence, of regular heavy drinking. I do not see evidence before me of multiple risky partners since she separated from the father, with one caveat to which I will turn.53. It does seem that the mother has been able to maintain her separation from the father and that concerns early on that she would be unable to prioritise E over that relationship have, in the end, been proven to be unfounded.54. In my view, all of that does cast some doubt on the decision that was made by Her Honour Judge Bugeja in October of last year not to accede to the mother's Part 25 application for expert psychological assessment. I do not say that in any way to criticise the learned Judge; I say that because the factual matrix which was presented to her on that occasion has not, in my view, been made out, particularly in terms of the allegations of partying, abuse of alcohol and the suggestion that the mother had failed to make any changes or maintain any changes since proceedings were issued.55. I have considered very carefully whether this now presents a gap in the evidence that it is necessary at this stage to fill. Certainly, the mother may well have what might be thought to be a complex psychological profile, particularly when set against a history of significant trauma that must at least raise the spectre of unmet emotional need.56. I have wrestled very carefully with the mother's request for an adjournment and/or psychological testing. Certainly, that is an application that she pursues and I have been provided with timescales for various experts ranging from four weeks and upward, although of course the reality would be that, if I were to sanction such assessment at this stage, the proceedings would need to be extended for significantly longer than just the length of time it takes for that instruction. It does not seem to me, as the local authority would have it, that this is a clear cut case. Rather, it is a very finely balanced case involving a very young infant and a deeply vulnerable, first-time mother whose vulnerabilities, rightly or wrongly, have not been fully assessed.57. I cannot know if Her Honour Judge Bugeja would have reached the same conclusion she did last year in October had the local authority not pleaded its case in the way it did. Having seen the agreed note of her decision, it is clear that the learned Judge did place weight on the facts alleged by the local authority in concluding that the mother had made 'no progress' since proceedings had begun. In fact, those submissions made by the local authority appear to me to have been almost entirely unfounded, particularly with regards to partying and drug use, and there seems little doubt that the court – innocent as it may have been on the part of the advocates on that occasion – was misled by the local authority.58. On the face of it, therefore, there is an evidential gap. The question now, as it was for Her Honour Judge Bugeja in October, remains one of necessity. The question is not simply "is there a gap in the evidence?" but "how big is that gap and does it need to be filled with regard to the criteria under section 13(7) of the Children and Families Act 2014 and Part 25?". As matters stand today, I am not persuaded that this is a gap that does need to be plugged at this stage in order for the court to make decisions as to E's welfare. I do not say that simply to avoid delay, although I have to note that we are already in week 32 of proceedings and I am conscious of the statutory duty arising from the 'no delay' principle and the notion and assumption that delay is likely prejudicial to a child's welfare. I note in passing that the option was always there to the mother to appeal the decision of Her Honour Judge Bugeja had she felt it had been made unfairly. We are now some four months on and at final hearing.59. There seems to me to be ample evidence at this time that the mother is not able to provide good enough care at a fundamental level. That conclusion arises in part from the simple fact that the mother's mental health is said to be stable with a good prognosis, which is accepted by the local authority, and yet there are still outstanding issues concerning her parenting.60. The local authority accepts that the mother's mental health does not pose a direct risk to the child. It is said (and the mother accepts) that there have been dips during these proceedings, albeit they are not reflected within [her treating psychiatrist] Dr P's letter. In my view, it would have been odd had there not been dips in anybody's mental health considering what appear to have been changes of course, first looking at the maternal grandmother as an alternative carer, then looking at the paternal aunt; the removal of E into foster care; and, finally, confirmation that the local authority, having been twin-tracking the case, were seeking adoption. It seems to me very obvious that the mother at those times and today will have struggled.61. I have to take the mother and Dr P at their word. The issues in this case are not simply to do with the mother's mental health needs but go much further and cover a wider range of challenges. The mother herself does not accept that she has additional psychological needs that would prevent or impact upon her parenting of E. She cannot, therefore, argue in the same breath that she needs an assessment to identify deficits in her parenting (and offer potential remedies for the same) that she does not accept exist.62. There are issues outside and above those arising from any question of her mental and psychological health that, in my view, are sufficient to justify the making of a final decision today…"
Over the following paragraphs the judge identified and analysed those issues, including the mother's cannabis use, her history of using relationships as a "coping mechanism", the vulnerabilities of her current partner, concerns about her ability to prioritise her baby's needs, and her own limited social network. He rejected the local authority's characterisation of her lifestyle as "chaotic" – a characterisation which he described as "deeply unhelpful" – but observed that there were indicators of "a fundamental lack in stability which poses challenges, and significant challenges at that, were one to consider placing a young baby in the mother's sole care." He accepted her counsel's submission that the contact records were "overwhelmingly positive in terms of the mother-son engagement and interaction" but added that the records demonstrated that "at this stage" she could not be left unsupervised with E because there were things that she still needed to learn and also that she remained overly defensive to criticism which did not bode well for her ability to work with professionals. He gave as an example the occasion when the mother had to be prompted to remove E from the vicinity of the fight in the home.
The recorder considered whether the mother should be given the opportunity to do further work before the final decision was taken:
"87. It may be said that the mother needs to do further work. Certainly, the parenting assessment concludes that she needs to go on a parenting programme. I was somewhat critical and remain somewhat critical that CB was unable to put her finger on any particular type of work that might include; but ultimately, she did explain in her oral evidence that the big concern is not that the mother lacks parenting ability per se but that she lacks the ability to do these things consistently. The issue, therefore, is not necessarily teaching the mother the basics but ensuring that she is able to implement those skills on a consistent basis. In CB's view, there is not a course that could address that particular issue and I took from what she said that, to some extent, she was at a loss as to what she could recommend in such circumstances.88. Some of the mother's strengths in this case, to which I have already alluded, do in my view also give rise to weaknesses. There is no doubt that she is fearlessly independent in some regards but in other ways I also find that she is highly dependent on others, as evidenced by her need to engage and find new partners in addition to the partner that she already has. I also, for the reasons that I have already given, find that her confidence in her own ability does in many respects blind her to the deficits in her own abilities. At the end of having listened to the mother in evidence and having read her witness statement, it seems to me that she is still not clear about the areas in which her parenting could be supported but that she remains otherwise overly confident as to her ability to care for E were he to return to her care tomorrow.89. Taken as a whole, I find that the mother is not able to provide good enough care. The above issues, in my view, go far beyond those aspects of her ability to care and the mother's own needs that would be addressed in any psychological report, either in identifying the reasons for any deficit in parenting and/or identifying work or sources of support that might remedy the same. There is no support that has been identified that could, in my view, remedy or buttress the care that she could provide to make it good enough at this time. There are also, in addition to all of the above, ongoing concerns around the mother's ability to work openly with professionals which casts serious doubt on her ability to work and engage in any rehabilitation plan while other supportive work may be provided."
Under the heading "The available options and Re B-S analysis", the recorder then set out his conclusions. He rejected the mother's proposal of an adjournment in these terms:
"For all the reasons that I have already given I am of the view that a psychological assessment of the mother at this juncture, while it might inform any decision that the court makes, is not 'necessary'. For all the reasons that I have indicated, there is sufficient evidence before me of parenting deficit and inability to provide good enough care. I do not, at this stage, require any further information, not least where the mother's own evidence is otherwise that her mental and psychological needs are being met and do not impact on her parenting. It would, in my view, be disproportionate to adjourn this matter further for a report that I do not consider necessary."
Concluding that neither parent was able to offer E the stability and consistency he needed, the recorder made the care and placement orders sought by the local authority. He finished with the following observation:
"I do, however, make one final plea. There may be some time to go between placing E for adoption and finding an adoptive placement. Within that time, it is clear to me that the mother should still be offered support to both maintain what improvements she has been able to make and to make further improvements. She is a very young mother. There is a good and high probability that she will have children in the future. I would ask in those circumstances that the local authority continue to engage meaningfully with her and that the recommendation made in the parenting assessment, that the mother engage in a parenting programme, be one that is taken on in a meaningful way and that referrals are made and the mother assisted to improve in her parenting skills. I also make a plea directly to the mother. She has made progress. She has listened to things that the local authority have said in several regards. I would ask that she make all efforts to continue in that vein, that she continue to work with her treating clinician and that she take up any offer of work that the local authority is able to provide her with."
On 27 March 2023 (three days out of time), the mother filed a notice of appeal, relying on four grounds:
(1) the lower court failed to analyse, at all, the credibility of the local authority's evidence given a finding was made they misled the court at a previous hearing;
(2) there was a clear and identifiable gap in the evidence, which the court was wrong to conclude did not require further assessment;
(3) the learned judge erred in his failure to adequately analyse the level and nature of the support the mother is likely to require if caring for E, which led to an erroneous conclusion that "there is no support that could remedy her parenting at this time";
(4) proportionality – the judge did not fully or adequately evaluate the placement option with E being in the care of his mother.
On 15 May 2023, I extended the time for filing the appeal notice and granted permission to appeal on all grounds.
I propose first to consider grounds 2, 3 and 4 together.
I start with the well-known dicta of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050:
"50. …Basically it is the tradition of the United Kingdom, recognised in law, that children are best brought up within natural families. Lord Templeman, in In re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, 812, said this:'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'… It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.51. That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in section 31(2) is made out."
Part III of the Children Act 1989, to which Hedley J referred, is headed "Support for children and families provided by local authorities in England" and contains detailed provisions, the first of which is section 17, headed "Provision of services for children in need, their families and others". Section 17(1) provides:
"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) -(a) to safeguard and promote the welfare of children within their area who are in need; and(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,by providing a range and level of services appropriate to their needs."
This is consistent with the positive obligation under Article 8 of ECHR on the State through the local authority to provide such support as will enable the child to remain with his parents: Re D (A Child)(No.3) [2016] EWFC 1, [2017] 1 FLR 237 paragraph 152, Re H (Parents with Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59, paragraph 42.
This obligation features in every case in which the court is being asked to order the removal of a child from his or her parents. It is particularly important when the order which the court is being asked to make is for the permanent removal of the child by approving a plan for adoption. Under Article 8, any interference with the exercise of the right to respect for family life should be proportionate to its legitimate aim. There can be no greater interference than the permanent removal of a child. In YC v United Kingdom (2012) 55 EHRR 967, the ECtHR said (at paragraph 134):
"The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family."
Following on from YC and other cases in the European Court, the Supreme Court addressed the exceptionality of a plan for adoption in Re B (A Child) [2013] UKSC 33, [2013] 1 WLR 1911. At paragraph 104, Lord Neuberger said:
"adoption of a child against her parents' wishes should only be contemplated as a last resort – when all else fails. Although the child's interests in an adoption case are "paramount" (in the UK legislation and under article 21 of UNCRC), a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them."
He continued (at paragraph 105):
"The assessment of [the parents'] ability to discharge their responsibilities must, of course, take into account the assistance and support which the authorities would offer. That approach is the same as that suggested by Hedley J in the passage quoted … above and I agree with it. It means that, before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support."
At paragraph 198, Baroness Hale of Richmond, concluded:
"It is quite clear that the test for severing the relationship between parent and children is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short where nothing else will do."
In subsequent cases, this Court gave guidance as to how a judge goes about ensuring that the obligation to intervene only when necessary and proportionate is discharged. The guidance was summarised and endorsed by the Supreme Court in Re H-W [2022] UKSC 17, [2022] 1 WLR 3243. In a judgment with which other members of the Court agreed, Dame Siobhan Keegan cited from the judgment of Sir James Munby P in Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563 adopting a passage from the judgment of McFarlane LJ (as he then was) in Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670:
"The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option … What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."
Dame Siobhan added:
"This is now rightly the accepted standard for the manner in which a contemplated child protection order must be tested against the requirement that it be necessary and proportionate."
In Re H (Parents with Learning Difficulties: Risk of Harm), supra, at paragraph 67, I suggested a three-stage approach to evaluating a proposal that a child remain with or be placed back with birth parents:
"first, … identify and describe the level of support needed by the family, secondly ascertain what can and should be being done under the local authority's obligations, and thirdly … determine whether, with that in place, the child's welfare needs will be met."
That approach was suggested in the context of a parent with learning difficulties. But in fact the positive obligations on the local authority imposed by Article 8 of ECHR and s.17 of the 1989 Act require that approach to be followed in every case when determining whether a child should remain or be placed back with birth parents.
The first stage – identifying the level of support needed by the family – involves a thorough assessment of both parent and child. In most cases, a social work assessment will be sufficient. But in some cases, where the parent and/or the child have or may have other needs, other assessments will be necessary. Where, for example, the parent or child has a physical or learning disability, specialist assessment will normally be required. It is recognised that the assessment of parents with learning difficulties or disabilities requires specialist understanding and techniques, commonly delivered in this country through the so-called "PAMS" (Parenting Assessment Manual Assessments) model. A parent with autism may or may not have a learning disability, but their neurodiverse condition merits assessment for the same reason – to identify the level of support needed and, importantly, how and by whom it should be delivered. Such an assessment can only be carried out by someone with the requisite expertise.
In recent years there has been concern about the excessive instruction of experts in children proceedings: see for example the Family Justice Review. Parliament has addressed this by passing s.13 of the Children and Families Act 2014 (headed "Control of expert evidence, and of assessments, in children proceedings") which, so far as relevant to this appeal, provides:
"(1) A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.…(6) The court may give permission as mentioned in subsection (1) … only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.(7) When deciding whether to give permission as mentioned in subsection (1) … the court is to have regard in particular to(a) any impact which giving permission would be likely to have on the welfare of the children concerned …(b) the issues to which the expert evidence would relate,(c) the questions which the court would require the expert to answer,(d) what other expert evidence is available (whether obtained before or after the start of proceedings),(e) whether evidence could be given by another person on the matters on which the expert would give evidence,(f) the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,(g) the cost of the expert evidenced, and(h) any matters prescribed in the Family Procedure Rules."
Part 25 of the Family Procedure Rules provides detailed regulation of expert evidence consistent with these statutory provisions.
The need for courts to exercise vigilance over applications for expert evidence in children's cases has been reiterated frequently, for example in the "President's Memorandum – Experts in the Family Court" (4 October 2021) in which the President of the Family Division stated:
"Such expert evidence will only be "necessary" where it is demanded by the contested issues rather than being merely reasonable, desirable or of assistance (Re H-L (A Child) [2013] EWCA Civ 655)"
He added:
"The instruction of an expert is the primary reason for delay in Family Court proceedings relating to children. The recent statistics show that an application for the instruction of an expert is almost invariably granted. To avoid delay, courts should continue to consider each application for expert instruction with care so that an application is granted only when it is necessary to do so."
There are grounds for concern that parties in care proceedings have been too ready to apply for, and judges too ready to grant, a psychological assessment of their clients. On the basis of the information in the papers before us, however, this was not one of those cases. This was a very young mother involved in care proceedings concerning her first child. The application made for a psychological assessment in this case was based not on speculation nor on the Micawberish hope that something would turn up but rather on the solid foundations of the mother's circumstances and personality – the background of serious abuse and trauma, the history of self-harm, the lengthy engagement with CAMHS throughout her teenage years, the diagnosis of emotionally unstable personality disorder, and the suggestion, as yet unassessed, that she may be on the autistic spectrum. Faced with a client with this constellation of problems, the mother's lawyers were fully justified in applying for a psychological assessment so that the court could be fully informed about her needs and the level and type of support she would require to care for her son.
The recorder accepted that there was a gap in the evidence but was not persuaded that it needed to be plugged for the court to make a decision about E's future welfare. His reasons for reaching this conclusion were as follows.
First, he took into account the inevitable delay that would follow were he to adjourn the hearing, noting that the proceedings had been continuing for 32 weeks, over the statutory 26-week period. It is plain from his judgment, however, that he did not consider that, by itself, this was a decisive factor. In that respect he was plainly right. If there is an evidential gap which has to be filled before a decision can be taken about a child's future, it is very unlikely that the fact that it might take a few months to fill the gap would by itself warrant refusing an adjournment, bearing in mind the lifelong consequences of the decision reflected in the statutory principle in s.1(1) and (2) of the Adoption and Children Act 2002 that, when coming to a decision relating to the adoption of a child, the paramount consideration must be the child's welfare throughout his life.
Secondly, he found that there was "ample evidence" that the mother was unable to provide good enough care at a fundamental level. That conclusion, which does not sit easily with his observation a few paragraphs earlier that this was a "very finely-balanced case", was based in part on what he described as the "simple fact" that her "mental health is said to be stable with a good prognosis … and yet there are still outstanding issues concerning her parenting." But the fact that her mental health was stable did not undermine the case for a psychological assessment. That was based not solely on her mental health but also on her psychological profile, which the recorder accepted may be "complex", her history of significant trauma, and the fact that she had been referred for an assessment to establish whether she was on the autistic spectrum, a referral which 18 months on has yet to be taken up.
Thirdly, another factor which the recorder thought counted against directing a psychological assessment was the fact that the mother herself did not accept that she had additional psychological needs that impinged on her parenting. In his view, that precluded her arguing "in the same breath" that she needed an assessment. Given her young age and the strong prima facie evidence that she has psychological needs, it is debateable how much weight should be attached to the mother's own assessment of whether they impinge on her parenting. From the child's perspective, the fact that his mother does not at present accept that she has additional psychological needs that may affect her parenting does not obviate the necessity of an assessment before concluding that she cannot look after him and nothing else but adoption will do.
Fourth, the recorder took into account the various issues about her parenting capacity identified in the social work assessment, summarised in paragraph 22 above. But to a greater or lesser extent, the mother's "complex psychological profile" impinged on most if not all of those issues – in particular, her use of relationships as a "coping mechanism", her ability to prioritise E's needs, her limited support network, and her "fundamental lack of stability". Far from being "issues outside and above those arising from her mental and psychological health", they were inextricably linked to it. The social worker's observation in the parenting assessment about the difficulty the mother had in communicating and about her past experiences and the challenges this posed to professionals working with her is a further illustration of the importance of understanding more about her psychological profile in order to identify what support she would need to care for E safely. The evidential gap therefore impeded a full and fair evaluation of her ability to meet E's needs.
Finally, the recorder took the view that the assessments carried out by other professionals were sufficient to enable him to reach a decision about E's future. It is plain, however, that an assessment of the mother's psychological profile and how it impinged on her parenting abilities was beyond the professional capacity of the social worker and guardian. This is reflected in the observation of the social worker in the parenting assessment that it was not within her professional expertise to fully understand the potential impact of the mother's circumstances on her decision-making ability.
For these reasons, there was in my view a strong case for saying that, even if the mother had not previously applied for a psychological assessment, an adjournment ought to have been granted to provide the court with the essential evidence needed to determine whether the mother could be supported to look after her child. To my mind, the argument is made even stronger by the fact that an application for an assessment was made on her behalf, very properly, at the outset of the proceedings and was refused by the judge in October 2022 on grounds that in some respects were later accepted to be wrong – including assertions that were, in the recorder's words, unfairly critical of the mother, unfounded and misleading.
On behalf of the local authority, Mr Matiss Krumins, in addition to reiterating the reasons identified by the recorder for refusing the adjournment and assessment which I have considered in the preceding paragraphs, submitted that the judge was right to conclude no support had been identified that could remedy or buttress the mother's care. It is notable, however, that the recorder was critical of the social worker for being unable to identify any work which the mother might do to address her problems with parenting. Without a report addressing the mother's complex psychological profile, neither any of the parties nor the court was in a position to delineate the nature and level of support that might be required. In his helpful written submissions filed on behalf of the guardian opposing the appeal, Mr Matthew Maynard rightly pointed out that this was far from a single issue case but rather one in which a number of variables were presented as risk factors. But as explained above, many of those variables were related, to a greater or lesser extent, to the mother's psychological profile. Mr Maynard was also right to say that the recorder was fully aware of the evidential gap, that he addressed its significance at length, and that his decision to exercise his case management powers by refusing the adjournment was reached after consideration of all the evidence. I recognise that by allowing this appeal we would be interfering with a decision by a trial judge who was best placed to evaluate the evidence. That is not a decision to which this Court comes unless satisfied that the judge was wrong.
Drawing together the threads in grounds 2, 3 and 4, I agree with the recorder that there was a clear and identifiable gap in the evidence, but I find that he was wrong to decide that there was no necessity for a psychological assessment. As a result, he was not in a position to conduct an adequate analysis of the level and nature of the support the mother would require were she to care for E, and therefore unable to conduct the fair balancing of the realistic options for E's future care which was essential before reaching a conclusion that a plan for adoption was necessary and proportionate.
For those reasons, I would allow the appeal on those grounds, set aside the care and placement orders, and remit the local authority applications for rehearing by another judge, to be allocated by the Family Division Liaison Judge.
After some hesitation, Ms Lorna Meyer KC, who presented the appellant's case, agreed with the Court's proposal that, if the appeal was allowed on the ground that the judge had been wrong to decide the case without a psychologist's report, we should grasp the nettle and order the report ourselves rather than remit that question to another judge for determination. I recognise the impact which giving permission for the instruction of an expert at this stage in the proceedings may have on the timetable for the proceedings. Applying the statutory criteria in s.13 of the 2014 Act, I am satisfied that, for the reasons set out in this judgment, the instruction of a psychologist is necessary to resolve the proceedings justly. I consider the questions identified in the original draft letter of instruction to be broadly apposite and that they cannot be answered by any other professional currently involved in the proceedings or in treating the mother. As to E's welfare, under s.1(2) of the Children Act 1989, this Court is obliged to have regard to the general principle that any delay in determining the question of E's upbringing is likely to prejudice his welfare. He is now 13 months old and the effect of allowing this appeal and approving the instruction of a psychologist is likely to delay a decision about his future until the Autumn when he will be 18 months old. Nevertheless, I have decided that such a delay is justified because, without the full information as to the extent of the mother's psychological problems and the feasibility of providing her with support so that she can care for her son safely, the court is not in a position to identify, compare and contrast the advantages and disadvantages of the realistic options for E's future.
Although the mother's representatives had complied fully with Part 25 when applying before the judge in October, they had not updated their application ahead of the hearing of the appeal. We were assured, however, that the expert the appellant's solicitor is minded to instruct has worked across a broad spectrum of forensic and clinical psychology settings, including in the family court, and has experience in areas that include trauma, domestic violence, substance misuse, personality disorders, family dynamics and attachment, treatment analysis and needs. She would be able to prepare a report in eight weeks.
On the basis of that information, if my Lords agree, I would be prepared to include in the order allowing the appeal provision for a psychological assessment and invite counsel to agree detailed directions for the instruction of that expert to be included in the order following this appeal.
Having concluded that the appeal should be allowed on grounds 2, 3 and 4, I do not consider it necessary to consider ground 1. That concerned the judge's treatment of the social worker's evidence. There is a risk that any comments by this Court about that evidence may unintentionally influence the conduct or outcome of the rehearing. Nothing said in this judgment should be read as indicating any view as to the right outcome of the proceedings.
LORD JUSTICE ARNOLD
I agree. In many ways the recorder's extempore judgment is an impressive one: it contains a careful and detailed review of the evidence and a clear analysis of the issues. As the recorder was plainly conscious, he had been placed in a difficult position by the previous decision of HHJ Bugeja which was based upon inaccurate information about the mother provided in the local authority's position statement. The recorder wrestled with the dilemma this presented. It is understandable that he reached the conclusion he did. With the benefit of the submissions from leading counsel for the mother, who did not appear below, and the greater opportunity for reflection afforded to this Court, however, it can be seen that he reached the wrong conclusion.
LORD JUSTICE SINGH
I agree with both judgments.
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Interesting case appealing the refusal to allow parental responsibility.
Neutral Citation Number: [2023] EWCA Civ 689
Case No: CA-2022-000580
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Ms Justice Russell
[2022] EWHC 295 (Fam))
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 16/06/2023
Before :
SIR ANDREW MCFARLANE PRESIDENT OF THE FAMILY DIVISION
LORD JUSICE MOYLAN
and
LORD JUSTICE DINGEMANS
- - - - - - - - - - - - - - - - - - - - -
RE A (PARENTAL RESPONSIBILITY)
- - - - - - - - - - - - - - - - - - - - -
Ms Caoilfhionn Gallagher K.C and Mr Christopher Barnes (instructed by ITN Solicitors) for the Appellant
Mr Mark Jarman K.C and Ms Maria Stanley (instructed by Cafcass Legal) for the Respondent Children
Mr Ben Jaffey K.C, Ms Carine Patry K.C and Mr Alexander Laing
(instructed by Government Legal Department ) for the Lord Chancellor and Secretary of State for Justice
Hearing dates : 29th and 30th March 2023
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely at 10.30am on 16th June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
Sir Andrew McFarlane P:
1.
The focus of the present appeal is upon the distinction that is made within the Children Act 1989 [‘CA 1989’] between married and unmarried parents with respect to the court’s power to revoke parental responsibility. In short, where parents are married or are in a civil partnership, there is no power to revoke the parental responsibility of a father or second female parent. That position is in contrast to unmarried fathers, unmarried second female parents or step-parents where, by CA 1989, ss 4(2A), 4ZA(5) or 4A(3) respectively, the court has the power to bring their parental responsibility to an end. The appellant mother asserts that this distinction adversely discriminates against married mothers in breach of their rights, and those of their children, under the European Convention on Human Rights [‘ECHR’]. The judge at first instance, Ms Justice Russell, dismissed the mother’s application for a declaration of incompatibility under Human Rights Act 1998 [‘HRA 1998’], in part because the judge made a prohibited steps order which in practical terms removed from the father the right to exercise his parental responsibility. The mother now appeals to this court against that decision with the permission of the judge.
2.
This judgment has the following structure:
-
The statutory scheme [paragraphs 4 to 11]
-
The factual background [paragraphs 12 to 13]
-
The prohibited steps order [paragraphs 14 to 15]
-
Declaration of incompatibility [paragraphs 16 to 17]
-
The Appellant’s case [paragraphs 18 to 46]
-
The position of the children’s guardian [paragraphs 47 to 51]
-
The Lord Chancellor’s case [paragraphs 52 to 77]
-
Discussion:
(a)
The historical context [paragraphs 78 to 83]
(b)
ECHR Article 14 taken with Article 8 [paragraph 84]
(c)
Status [paragraphs 85 to 86]
(d)
Justification [paragraphs 87 to 102]
-
Northern Ireland decision [paragraph 103]
-
Russell J’s decision [paragraphs 105 to 106]
-
Conclusion [paragraph 107].
3.
During the hearing it was accepted that this court will need to determine for itself whether to grant a declaration of incompatibility. In those circumstances, and without intending any disrespect to the judge or to counsel’s arguments with respect to the appeal, I will only turn to consider the reasons given for dismissing the claim in the first instance judgment after reaching a conclusion on the substantive application.
Acquisition and revocation of parental responsibility: the statutory scheme
4.
One of the central concepts introduced by CA 1989 was that of ‘parental responsibility’. Parental responsibility is an umbrella term meaning ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’ [CA 1989, s 3(1)].
5.
Acquisition of parental responsibility is primarily provided for by CA 1989, s 2(1)-(2A):
‘(1) Where a child’s father and mother were married to, or civil partners of, each other at the time of his birth, they shall each have parental responsibility for the child.
(1A) Where a child—
(a)
has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008; or
(b)
has a parent by virtue of section 43 of that Act and is a person to whom section 1(3) of the Family Law Reform Act 1987 applies,
the child's mother and the other parent shall each have parental responsibility for the child.
(2)
Where a child’s father and mother were not married to, or civil partners of, each other at the time of his birth—
(a)
the mother shall have parental responsibility for the child;
(b)
the father shall have parental responsibility for the child if he has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.
(2A) Where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies—
(a)
the mother shall have parental responsibility for the child;
(b)
the other parent shall have parental responsibility for the child if she has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.
6.
The effect of CA 1989, s 2 is that, in all cases, whether married or not, a child’s mother will have parental responsibility. Where a child’s father and mother were married to, or civil partners of, each other at the time of the birth, the father will have parental responsibility. Where a woman was married to, or in a civil partnership with, a mother who has given birth in the circumstances stipulated in Human Fertilisation and Embryology Act 2008, s 42 or s 43 together with Family Law Reform Act 1987, s 1(3), that woman will be treated as a parent and will have parental responsibility [CA 1989, s 2(1A)].
7.
Where a child’s father, or second female parent, were neither married nor in a civil partnership with the child’s mother at the relevant time they will only have parental responsibility ‘in accordance with the provisions of’ CA 1989. The further provisions that are there referred to are s 4 (fathers), s 4ZA (second female parents) and s 4A (step-parents):
4 Acquisition of parental responsibility by father.
(1)
Where a child’s father and mother were not married to, or civil partners of, each other at the time of his birth, the father shall acquire parental responsibility for the child if—
(a)
he becomes registered as the child’s father under any of the enactments specified in subsection (1A);
(b)
he and the child’s mother make an agreement (a “parental responsibility agreement”) providing for him to have parental responsibility for the child; or
(c)
the court, on his application, orders that he shall have parental responsibility for the child.
(1A) The enactments referred to in subsection (1)(a) are—
(a)
paragraphs (a), (b) and (c) of section 10(1) and of section 10A(1) of the Births and Deaths Registration Act 1953;
(b)
paragraphs (a), (b)(i) and (c) of section 18(1), and sections 18(2)(b) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and
(c)
sub-paragraphs (a), (b) and (c) of Article 14(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.
(1B) The Secretary of State may by order amend subsection (1A) so as to add further enactments to the list in that subsection.
(2)
No parental responsibility agreement shall have effect for the purposes of this Act unless—
(a)
it is made in the form prescribed by regulations made by the Lord Chancellor; and
(b)
where regulations are made by the Lord Chancellor prescribing the manner in which such agreements must be recorded, it is recorded in the prescribed manner.
(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.
(3)
The court may make an order under subsection (2A) on the application—
(a)
of any person who has parental responsibility for the child; or
(b)
with the leave of the court, of the child himself,
subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4).
(4)
The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
4ZA Acquisition of parental responsibility by second female parent
(1)
Where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies, that parent shall acquire parental responsibility for the child if—
(a)
she becomes registered as a parent of the child under any of the enactments specified in subsection (2);
(b)
she and the child's mother make an agreement providing for her to have parental responsibility for the child; or
(c)
the court, on her application, orders that she shall have parental responsibility for the child.
(2)
The enactments referred to in subsection (1)(a) are—
(a)
paragraphs (a), (b) and (c) of section 10(1B) and of section 10A(1B) of the Births and Deaths Registration Act 1953;
(b)
paragraphs (a), (b) and (d) of section 18B(1) and sections 18B(3)(a) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and
(c)
sub-paragraphs (a), (b) and (c) of Article 14ZA(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.
(3)
The Secretary of State may by order amend subsection (2) so as to add further enactments to the list in that subsection.
(4)
An agreement under subsection (1)(b) is also a “parental responsibility agreement”, and section 4(2) applies in relation to such an agreement as it applies in relation to parental responsibility agreements under section 4.
(5)
A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.
(6)
The court may make an order under subsection (5) on the application—
(a)of any person who has parental responsibility for the child; or
(b)with the leave of the court, of the child himself,
subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4).
(7)
The court may only grant leave under subsection (6)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
4A Acquisition of parental responsibility by step-parent
(1)
Where a child’s parent (“parent A”) who has parental responsibility for the child is married to, or a civil partner of, a person who is not the child’s parent (“the step-parent”)—
(a)
parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or
(b)
the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.
(2)
An agreement under subsection (1)(a) is also a “parental responsibility agreement”, and section 4(2) applies in relation to such agreements as it applies in relation to parental responsibility agreements under section 4.
(3)
A parental responsibility agreement under subsection (1)(a), or an order under subsection (1)(b), may only be brought to an end by an order of the court made on the application—
(a)
of any person who has parental responsibility for the child; or
(b)
with the leave of the court, of the child himself.
(4)
The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
8.
Whether or not parental responsibility, once it has been acquired by a father or second female parent, can be revoked depends upon the method of acquisition. Where parental responsibility is acquired under CA 1989, s 2, because the father or second female parent was married to, or in a civil partnership with, the mother, no provision is made in s 2, or elsewhere in the Act, for their parental responsibility to be brought to an end. This is in contrast to unmarried fathers, unmarried second female parents or step-parents, where the court is given power to bring parental responsibility to an end under ss 4(2A), 4ZA(5) or 4A(3). The parental responsibility of any person is, however, extinguished by adoption [Adoption and Children Act 2002, s 46(2)].
9.
The appellant mother in the present appeal asserts that the distinction between married or civil partnered parents, and those who are neither married nor in a civil partnership, is in breach of the ECHR rights of married mothers and their children in circumstances where the father has acted in a manner that would justify removal of parental responsibility if they were unmarried.
Control of the exercise of parental responsibility in the statutory scheme
10.
Irrespective of whether or not there is a statutory power to bring parental responsibility to an end, in every case the court may control and limit a parent’s ability to exercise parental responsibility through the making of prohibited steps orders, and may enhance the ability of the other parent to exercise parental responsibility with respect to specific issues. CA 1989, s 8(1) provides that:
‘“a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
“a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.’
Whilst a prohibited steps order and/or a specific issue order may normally be made to regulate one or more aspects of the exercise of parental responsibility, it is accepted that, where the facts of the case justify it, the court may make a combination of orders which have the effect of prohibiting a parent from taking any step in the exercise of his or her parental responsibility and clothing the other parent with the exclusive right to exercise parental responsibility without reference to any other person who holds parental responsibility.
11.
For example, in P v D [2014] EWHC 2355 (Fam) at [109] Baker J, as he then was, noted that, in very exceptional cases, the power to grant a prohibited steps order extends to making an order prohibiting a parent from taking any steps in the exercise of his or her parental responsibility. In H v A (No 1) [2015] EWHC 58 (Fam) MacDonald J granted an order prohibiting a father from taking any steps in the exercise of his parental responsibility with respect to each of his children until they achieved the age of 18 years and a restriction order under CA 1989, s 91(14) was granted for a similar period. In HH Sheikh Mohammed Bin Rashid Al Maktoum v HRH Princess Haya Bin Al Hussein [2021] EWHC 3480 (Fam), I made orders affording the mother in a high-profile case sole responsibility over any aspect of the children’s medical care or schooling.
Factual Background
12.
The factual background to the present case is described in detail in the judgment of Russell J ([2022] EWHC 295 (Fam)). It is only necessary to indicate the principal features here:
a)
Two children, X and Y, were born in 2007 and 2010 respectively;
b)
Their parents had married in 2006 and, by virtue of CA 1989, s 2, their father has parental responsibility for both children;
c)
During the marriage, the father was physically, emotionally, psychologically and sexually abusive to the mother. More generally, he behaved in a coercive and controlling manner towards her;
d)
The parents separated in 2013 and the children have remained in the care of their mother;
e)
The father’s abusive and threatening behaviour towards the children and the mother continued and worsened after the separation;
f)
By 2015, the children had been placed on child protection plans by the local social services as a result of their father’s behaviour and the social workers advised that he should not be permitted to have any contact with the children;
g)
The children last saw their father in December 2016, over six years ago;
h)
On police advice, in order to protect herself and the children from the father’s behaviour, the mother and children moved to a confidential location, resulting in the loss to the children of their familiar home, friends and school. In addition, the children’s names have been changed;
i)
In 2018, the father was convicted in the crown court for breaching a non-molestation order. Based upon a diagnosis of paranoid schizophrenia, the court made a Hospital Order and imposed an indefinite Restraining Order under the Protection from Harassment Act 1997;
j)
Before Russell J it was assumed that the father had been released from hospital some time in 2019, whilst his whereabouts were known, and he was served with notice of the proceedings and each hearing, there was very limited information about his current circumstances. ;
k)
In her judgment, Russell J made extensive findings of violent, abusive and coercive/controlling behaviour by the father towards his wife and the children, both before and after separation;
l)
The children, particularly X, the eldest, have clear recollections of their father’s violent and disturbing behaviour. Russell J found that the cumulative impact upon X of the father’s behaviour had been profound.
13.
Looking at the father’s course of conduct as a whole the judge accepted that [paragraph 34]:
‘… when considered in the context of [the father’s] continuous harassment, threats, and abuse over a prolonged period of time, it is evidence of dangerous, obsessive behaviour which led [the mother] and the children to feel like prisoners in their own home. It must be observed that it is almost impossible for those who have not experienced it to understand the powerlessness, lack of control over one’s own life, fear and trauma induced in victims of stalking. [The mother] has suffered from PTSD (and is prescribed medication for anxiety) which is directly attributable to [the father’s] abusive behaviour and harassment.’
Russell J also held [paragraph 127] that the abuse and ill treatment suffered by the mother and children over a prolonged period ‘arguably came near to meeting the ECHR Article 3 minimum level of severity if it had been perpetrated by an agent or agents of the State’.
The prohibited steps order
14.
On the basis of the findings that she had made, Russell J was readily persuaded to make extensive orders under CA 1989, s 8 giving to the children’s mother the right to exercise parental responsibility exclusively, and without reference to their father. The substantive order, made on 7 July 2021 [‘the prohibited steps order’], which is a combination of specific issue and prohibited steps orders, states that the mother ‘is expressly permitted to make all decisions and give parental consent unilaterally without reference to, without informing, and without consulting with [the father]’. A non-exhaustive list is then given of decisions which are to be exclusively taken by the children’s mother, including matters concerning the children’s names, travel, which country they are to live in, education and medical treatment. The order goes on to state plainly that the mother is not required to engage with the father ‘in the exercise of any aspect of parental responsibility’.
15.
The July 2021 order prohibits the father from removing the children from the care of their mother, or from any educational, medical or other institution to which she has entrusted their care. He is prohibited from requesting (or getting others to do so on his behalf) any information about the children’s schooling or health. The order directs that he is to have no contact by any means with the children. In addition, the order imposes a prohibition upon the father making any application to the court under CA 1989 without the prior leave of the court, pursuant to CA 1989, s 91(14).
Declaration of incompatibility
16.
The mother argued that the statutory scheme was incompatible with her right to a private and family life under Art 8 ECHR, and taken together with Art 14, discriminates against married mothers and children of married parents.
17.
Human Rights Act 1998, s 4 gives the court the power to declare that primary legislation is incompatible with a Convention right. Pursuant to s 4(2), if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of incompatibility. A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision and is not binding on the parties to the proceedings in which it is made (HRA 1998, s 4(6)).
Declaration of incompatibility: the Appellant’s case
18.
At the centre of the Appellant’s case, which was presented with clarity by Ms Caoilfhionn Gallagher KC and Mr Chris Barnes, is the assertion that some vulnerable children and their mothers are barred from obtaining recognition from the State that their father has acted in a way that justifies the removal of his parental responsibility. It is argued that no amount of prohibited steps or other orders reducing the exercise of parental responsibility can equate with an order for the removal of parental responsibility. The removal of parental responsibility is to be seen as ‘the gold standard’, yet it is not available to a particular class of children and mothers.
19.
Where courts are given the power to remove parental responsibility in other circumstances, the absence of such a power for mothers who are married or in a civil partnership is, Ms Gallagher submits, incompatible with the ECHR and cannot be justified as a distinction simply based on birth status.
20.
Within the ECHR, Ms Gallagher targeted the main focus of her submissions on Art 14 taken with Art 8.
21.
By ECHR Art 8:
‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
By Art 14:
‘The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
These obligations are for the State, as a public authority.
22.
The Art 14 discrimination relied upon by the Appellant is the inability for married mothers and their children to apply for removal of parental responsibility, irrespective of whether the remedy would be granted in any particular case. It is discrimination based solely upon marital/birth status. It is not gender specific discrimination, as the legislation applies to fathers and to second female parents, but it is specific as to parental status.
23.
Reference was made to the relevant Scottish law which, in contrast to CA 1989, by virtue of the Children (Scotland) Act 1995, s 11(2)(a), enables the court to make an order depriving any person of some of all or his parental responsibilities or parental rights in relation to a child.
24.
In describing the holding of parental responsibility as affording a ‘status’ to a parent, Ms Gallagher relies upon a reference to that effect that I made in Re W (Direct Contact) [2012] EWCA Civ 999 at paragraph 80:
“Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents….”
25.
The appellant’s case is, therefore, that parental responsibility is a matter of status and that it cannot be reduced to being a mere label. Ms Gallagher accepted the court’s observation that, irrespective of parental responsibility, the separate status of being a child’s ‘father’ cannot be removed and that position is the same whether or not the parents were ever married or in a civil partnership. She nevertheless pointed to the continued possession of parental responsibility as being a distinct and different status to that of being a ‘father’.
26.
In a statement in support of her application, the Appellant states that she finds it incredibly hard to understand how it is fair for the father to retain parental responsibility simply because they were married. She says ‘I feel forced to have an ongoing [parental] relationship with him and this presence feels both intimidating and intrusive to our lives’.
27.
The primary remedial measure available to a court under HRA 1998 to meet a possible conflict between domestic legislation and ECHR Convention rights is for the court to read the domestic provision down in a compatible manner. By HRA 1998, s 3(1), a court is required, so far as it is possible to do so, to give effect to primary and secondary legislation in a way that is compatible with Convention rights. The Appellant’s case is that reading down is not possible in the present case having regard to the provisions of CA 1989, s 2 when read in the light of s 4, which applies to unmarried parents. The Lord Chancellor agrees that it is not possible to read in, or to infer that there is, a power of revocation of parental responsibility for married parents. That concession is not, however, a concession that the provisions of the CA 1989 on this issue are incompatible with the ECHR.
28.
Turning to focus her submissions on Art 14 taken with Art 8, Ms Gallagher first noted that it was conceded at first instance that the issues engaged in this case are within the ambit of Art 8 rights to family life. No point is taken within the appeal and this court is invited to accept that that is so.
29.
Secondly, in order to establish that there has been discrimination, Ms Gallagher points to the reference in Art 14 to ‘or birth status’. It is agreed that marriage is a status for these purposes and the appellant’s primary case is that the rule that married fathers cannot be deprived of parental responsibility is prima facie discrimination based upon the status of marriage or civil partnership or birth status in the case of the child/children concerned. Again, no issue is taken on these points by other parties.
30.
Once a prima facie case of discrimination is established, Ms Gallagher correctly submitted that the burden shifts to the State to justify the difference in treatment. Ms Gallagher based her submissions on justification on the leading Supreme Court authority of R (Tigere) v Secretary of State for Business, Innovation and Skills (Just for Kids Law intervening) [2015] UKSC 57 where, at paragraph 33, Baroness Hale DPSC described the fourfold test that is to be applied:
‘33. With those considerations in mind, I turn to the issue of justification. It is now well-established in a series of cases at this level, beginning with Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, and continuing with R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621, and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, that the test for justification is fourfold: (i) does the measure have an legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim;
(iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?’
31.
Ms Gallagher referred to European Court of Human Rights [‘ECtHR’] authority establishing that ‘very weighty reasons’ must be advanced to justify a distinction based upon a person’s birth status [Fabris v France [GC] (2013) 57 EHRR 19; Wolter and Sarfert v Germany (2018) 66 EHRR 13] or marital status [Sahin v Germany [GC] [2003] 2 FLR 671; Sommerfield v Germany [GC] (2004) 38 EHRR 35]. Ms Gallagher submitted that the court was, therefore, required to identify very weighty reasons in the present case where the discrimination was based upon marital and/or birth status.
32.
Ms Gallagher referred to three ECtHR cases which, in different ways, focussed upon a distinction drawn between married and unmarried parents.
33.
In PM v UK (App 6638/03) the court found a breach of Art 14 with regard to a difference in treatment for tax purposes relating to child support between fathers who had been married parents and those that had not been married. It was held that where an unmarried father had acted to support his child as a married father would do, there was no reason for treating him differently to a father who was now divorced and separated.
34.
In McMichael v UK (1995) 20 EHRR 205, the case, in so far as it is relevant, related to the acquisition of parental responsibility where different regimes as between married and unmarried fathers were justified. Ms Gallagher submitted that such justification is not proportionate where a distinction which promotes traditional family values through marriage is to be maintained in the face of conduct which would otherwise justify the recission of the parent’s status.
35.
The third case, Smallwood v UK (1998) 27 EHRR CD155 concerned an unmarried father who complained of discrimination following an order under CA 1989, s 4 rescinding his parental responsibility, which could not have been made had he been married to his child’s mother. In the context of the issue raised in Smallwood, the ECHR Commission considered that the distinction between married and unmarried parents fell within the UK’s margin of appreciation so that no appearance of violation of Art 8 in conjunction with Art 14 was disclosed. Ms Gallagher submits that the issue before the Commission in Smallwood did not apply to the present case.
36.
More generally, Ms Gallagher submitted that the fact that there may be a rationale for a distinction between married and unmarried parents in other contexts, does not mean that such a distinction in the present circumstances is justified.
37.
Ms Gallagher submitted that it was a flawed approach for the court to rely upon the fact that the Law Commission and subsequently Parliament had established and maintained the current distinction between married and unmarried fathers with respect to the discharge of parental responsibility. The court was taken to the first Law Commission Report on ‘Illegitimacy’ (1982: Law Comm 118) [‘the first LC Report’]. The primary focus of this first report, which looked at proposals for removing some or all distinctions between children born in or out of wedlock, was upon the acquisition of parental rights rather than their removal, but consideration was given to removal in paragraphs 4.41 and 4.42. Paragraph 4.41 considered a proposal for the law to allow for the restriction of the rights of all parents (married or unmarried) when they are shown to be ‘obviously unsuitable parents’. That proposal was roundly rejected by the Commission at paragraph 4.42:
‘4.42 For a number of reasons we are not attracted to this kind of solution. In the first place it would affect many more married than unmarried couples and would thus go far beyond the scope of this Report. Moreover it would involve a fundamental change in legal philosophy for which we have not found any great support or real justification. Our law (in common with that of other common law countries) is firmly based on the principle that the family is a unit in which there exists a broad parental authority. Whilst we are aware that there will be occasions on which even married parents abuse that authority, we believe that the law already follows the right course in relation to them by providing machinery for intervention when necessary, rather than by imposing rigid and artificial limitations when not strictly necessary. A further objection to this type of solution is, we think, that it would raise very considerable problems in defining the parental rights which might be restricted or the circumstances in which they would not be exercisable. We have already pointed out that it is not easy, as the law stands at present, to make an exhaustive catalogue of "parental rights". In view of this fact, we do not think that it would, in the absence of a comprehensive codification of the law on this topic, be possible to define satisfactorily those rights to which parents would or would not be entitled or the circumstances in which all or any parental rights could not be exercised.’
38.
The Law Commission’s 2nd Report on ‘Illegitimacy’ (1986: Law Comm 157) [‘the second LC Report’] contained more settled proposals for reform and, at paragraph 3.3, drew the distinction between married and unmarried fathers with respect to the removal of parental rights:
‘3.3 There is one respect in which the position of a father who has been granted all the parental rights and duties by means of an order under clause 4 of the draft Bill will differ from that of a married father, in that the court will have power to revoke the order. This was provided for in our earlier Report and, in the present state of the law relating to family responsibilities, we consider that it should be retained. We recognise that, owing to the widely varying extent to which unmarried fathers in fact assume responsibility towards their children (and indeed towards the mothers who bring those children up), it would not be in the best interests of the children if fathers were automatically to enjoy full parental status. Where the parents are in fact living together and co-operating in bringing up their children, we hope that such orders will frequently be applied for and granted. However, unless the courts are able to remove parental powers where it subsequently proves not to be in the child's best interests for the father to have them, the courts may be reluctant to make such orders at all. A court will necessarily have to have regard to the extent to which it will be able to protect the child's interests should the need arise in the future and under the present law the powers of the divorce courts in relation to married couples are somewhat more extensive than those under the Guardianship of Minors Acts. The time may come when the general framework of the law relating to the responsibilities of parents, not only towards their children but also towards one another, is such that this can be reconsidered; but for the time being we consider that the power to revoke these orders, in what we hope will be exceptional circumstances, should be available.’
39.
By the Law Commission’s 3rd and final report on this area, their proposals had been broadened into the wider scheme that was then taken up by Parliament and enacted in the CA 1989 (‘Family Law: Review of Child Law Guardianship and Custody’ 1988 Law Comm 172) [‘the third LC Report’]. It was in this 3rd Report that the Commission set out and developed the concept of ‘parental responsibility’ and, at paragraph 2.11, recommended, as a matter of principle, that parental responsibility should only be lost through adoption:
‘2.11 Allied to this is the principle that parents should not lose their parental responsibility even though its exercise may have to be modified or curtailed in certain respects, for example if it is necessary to determine where a child will live after his parents separate. Obviously, a court order to that effect will put many matters outside the control of the parent who does not have the child with him. However, parents should not be regarded as losing their position, and their ability to take decisions about their children, simply because they are separated or in dispute with one another about a particular matter. Hence they should only be prevented from acting in ways which would be incompatible with an order made about the child's upbringing. … These principles form part of our general aim of "lowering the stakes" in cases of parental separation and divorce, and emphasising the continued responsibility of both parents, to which we shall return. However, they are equally important where children are committed to local authority care. The crucial effect of a care order is to confer parental responsibilities upon the authority and there will be detailed regulations about how these are to be exercised. But the parents remain the parents and "it will continue to be important in many cases to involve the parents in the child's care". Clearly, the order will leave little scope for them to carry out their responsibilities, save to a limited extent while the child is with them, because the local authority will be in control of so much of the child's life. But the parents should not be deprived of their very parenthood unless and until the child is adopted or freed for adoption.’
The Law Commission, however, maintained the distinction established in their earlier reports so that parental responsibility acquired by an unmarried father could be brought to an end by a court order (paragraph 2.18).
40.
Ms Gallagher considered that reliance upon the analysis and justification of the Law Commission, which was subsequently adopted by Parliament, for the distinction between married and unmarried fathers was flawed because the focus of the justification was upon encouraging the acquisition of parental responsibility by unmarried fathers. If, as was held in McMichael and Smallwood, there is justification for a distinction between married and unmarried fathers at the time of acquisition, that does not, in the Appellant’s submission, justify there being a distinction in the approach to recission of parental responsibility on the basis of marital status. It is the Appellant’s case that no valid justification for this distinction can be put forward.
41.
Drawing her submissions together, Ms Gallagher referred to the four stages of the test set out by Baroness Hale in Tigere. She accepted that (i) was established and that recognising the importance of parental responsibility being held by both parents in a stable family unit was a legitimate aim.
42.
In relation to (ii), however, she questioned how there could be any rational connection between that aim and the protection of a uniquely harmful group of abusive fathers. Indeed, she submitted, that there was a total disconnection between protecting such a group and the maintenance of a stable family unit.
43.
In any event, a less intrusive measure, namely permitting a mother or children to apply to revoke the parental responsibility of a married father, would be entirely proportionate. In those circumstances, Ms Gallagher submits that it is not possible to hold that a fair balance has been struck, as required by stage (iv) of the Tigere test.
44.
Ms Gallagher cautioned against reliance upon the analysis of the Law Commission more than 30 years ago. It was an analysis made before any of these provisions had come into force and on the basis of the limited proposals that were made for an unmarried father to gain parental responsibility either by agreement or court order. Following the change in the law providing for parental responsibility to follow the naming of a father on the child’s birth certificate, the number of unmarried fathers who have parental responsibility has greatly increased. That has been a very significant change and it was not one within the contemplation of the Law Commission back in the 1980’s.
45.
At the core of Ms Gallagher’s submission is the assertion that the justification that exists for a distinction between married and unmarried fathers with respect to the acquisition of parental responsibility does not carry through to justifying a distinction between those two groups with respect to revocation. Her case is that there is no necessary connection between acquisition and revocation. In any event, Ms Gallagher questioned whether the justification that existed when the CA 1989 was enacted of encouraging mothers to make parental responsibility agreements, or for courts to make a parental responsibility order, is valid where the acquisition is by the father being named on the birth certificate. There was, Ms Gallagher pointed out, no evidence that the distinction has any impact or relevance upon a mother deciding to agree to a father being named in their child’s birth certificate. A blanket bar against revocation of a married father’s parental responsibility goes further than the policy or objective of encouraging the acquisition of parental responsibility by unmarried fathers so that it protected married fathers from an application for removal even where they have committed marital rape or murder.
46.
Ms Gallagher challenged Mr Jaffey’s contention, based upon R (SC and others) v Secretary of State for Works and Pensions [2021] UKSC 26, that neither a strict review, nor a high standard, should be applied where the context was one of social policy being developed over time. Ms Gallagher relied on the summary given by Lord Reed at paragraph 142 which demonstrated that the broad or narrow nature of the margin to be afforded to Parliament may vary depending upon a range of factors, but, where the basis of a difference in treatment depends upon one of the ‘suspect’ grounds, such as birth status, there is a general need for strict scrutiny. Ms Gallagher also relied on Lord Reed’s later description of the approach at paragraph 158:
‘158 Nevertheless, it is appropriate that the approach which this court has adopted since Humphreys [2012] 1 WLR 1545 should be modified in order to reflect the nuanced nature of the judgment which is required, following the jurisprudence of the European court. In the light of that jurisprudence as it currently stands, it remains the position that a low intensity of review is generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions, so that the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation. Nevertheless, the intensity of the court’s scrutiny can be influenced by a wide range of factors, depending on the circumstances of the particular case, as indeed it would be if the court were applying the domestic test of reasonableness rather than the Convention test of proportionality. In particular, very weighty reasons will usually have to be shown, and the intensity of review will usually be correspondingly high, if a difference in treatment on a “suspect” ground is to be justified. Those grounds, as currently recognised, are discussed in paras 101—113 above; but, as I have explained, they may develop over time as the approach of the European court evolves. But other factors can sometimes lower the intensity of review even where a suspect ground is in issue, as cases such as Schalk, Eweida and Tomþs illustrate, besides the cases concerned with “transitional measures”, such as Stec, Runkee and British Gurkha. Equally, even where there is no “suspect” ground, there may be factors which call for a stricter standard of review than might otherwise be necessary, such as the impact of a measure on the best interests of children.
159 It is therefore important to avoid a mechanical approach to these matters, based simply on the categorisation of the ground of the difference in treatment. A more flexible approach will give appropriate respect to the assessment of democratically accountable institutions, but will also take appropriate account of such other factors as may be relevant.’
The position of the children’s guardian
47.
The appeal is supported by Mr Mark Jarman KC and Ms Maria Stanley on behalf of the children’s guardian.
48.
Mr Jarman was clear that, whilst the ruling was not accepted as correct by the children’s guardian, no challenge was made to the judge’s finding that if she had had the power to do so, she might not have made an order revoking the father’s parental responsibility in this case. At paragraph 131 of her judgment, Russell J said:
“The rights of these children were given primary consideration by this Court in making the orders that it did; I have already alluded to the fact that had the court had the power to revoke parental responsibility, the considerations and conclusions in respect of best interests of the children would not necessarily coincide with the case put on behalf of [the mother]”.
49.
Mr Jarman took the court to the helpful distillation of the four key steps when considering whether or not there has been a breach of ECHR, Art 14 read with Art 8 as set out by Baroness Hale PSC in Re McLaughlin [2018] UKSC 48 at paragraph 15:
‘Article 14 of the Convention provides that:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
As is now well known, this raises four questions, although these are not rigidly compartmentalised:
(1)
Do the circumstances fall within the ambit of one or more of the Convention rights?
(2)
Has there been a difference of treatment between two persons who are in an analogous situation?
(3)
Is that difference of treatment on the ground of one of the characteristics listed or other status?
(4)
Is there an objective justification for that difference in treatment?’
50.
Mr Jarman submitted that there was no justification for affording a privileged position to married parents in this context and he pointed to the position under Scottish law where no such distinction is drawn. In short, the difference in treatment as between those parents who are married, and those who are not, is a clear case of discrimination in breach of Art 14 read with Art 8.
51.
Whilst Mr Jarman accepted that there would be no practical impact upon the mother or children if parental responsibility is removed from the father in the present case, given the comprehensive orders that have been made to limit his ability to exercise it, there was nevertheless a psychological impact that arose from knowing that he still held parental responsibility for the children.
Declaration of Incompatibility: Lord Chancellor’s response
52.
Mr Ben Jaffey KC, leading Ms Carine Patry KC and Mr Alex Laing on behalf of the Lord Chancellor and Secretary of State for Justice, invited this court to uphold the decision to refuse a declaration of incompatibility and to dismiss the appeal.
53.
Mr Jaffey commenced his submissions by drawing attention to the underlying policy of the CA 1989 which provides that parental responsibility granted to every mother is permanent and can only be revoked in the event that her child is subsequently adopted. The cohort of uniquely unmeritorious parents whose parental responsibility cannot be removed must, therefore, include some mothers who have acted in a wholly negative manner towards their children.
54.
The policy of the CA 1989 is to afford priority to marriage or civil partnership, and, despite the relevant provisions having been amended on a number of occasions since 1989, that priority has been maintained by Parliament. Rather than the difference in treatment being ‘simply’ because of marriage, as characterised by Ms Gallagher, Mr Jaffey submitted that the status of being married or in a civil partnership established a fundamental difference that was maintained throughout the legislative scheme. When a child is born, there is a need for at least one person to have parental responsibility, namely the child’s mother. Parliament has established that, where a couple are married or in a civil partnership, then parental responsibility, on the same irrevocable terms, should be extended to the other parent.
55.
In terms of the acquisition of parental responsibility, the choice made by Parliament not to give automatic parental responsibility to all unmarried parents is justified on account of the wide range of personal relationships that may exist, in distinction to those who have positively committed to the establishment of a family unit through marriage or civil partnership. A further aspect of the policy was for everything to be done to encourage unmarried fathers to gain and hold parental responsibility. Part of that latter aspect was to allow for revocation in order to encourage mothers and/or the courts to agree to the grant of parental responsibility to unmarried fathers.
56.
Mr Jaffey further submitted that it was artificial to divide consideration of acquisition from revocation; the two are inextricably linked. There is a different scheme for acquisition and a different scheme for revocation, depending on marital status. This is a distinction which has been firmly maintained by Parliament.
57.
In those cases where the parental relationship has broken down and a parent has behaved in a manner that justifies doing so, Parliament has given the courts power to neutralise and prevent the exercise of parental responsibility by that parent, whether they be mothers or fathers, married or unmarried. Parliament has not, therefore, left a mother without an effective remedy. In this manner, Mr Jaffey submitted that the scheme as a whole was justified.
58.
Turning to the detailed provisions in CA 1989, Mr Jaffey drew attention to
s 1(2A):
‘(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.’
The circumstances mentioned in s 1(7) are whether to grant parental responsibility to a parent under s 4(1)(c) or (2A) or s 4ZA(1)(c) or (5). Mr Jaffey submitted that these provisions established a presumption in favour of the grant of parental responsibility to unmarried fathers in the event of there being a dispute on the issue.
59.
Secondly, Mr Jaffey pointed to the fact that Parliament had, through the Domestic Abuse Act 2021, expanded the court’s powers to prohibit further CA 1989 applications by inserting a new section, s 91A, into the Act, with the result that these prohibitive powers were now even more readily available. These expanded powers have been described by Hayden J in F v M [2023] EWFC 5 in clear terms:
‘20. The provisions within Section 91A are transformative. The section provides a powerful tool with which judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm. This amended provision strikes me as properly recognising the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable, for a variety of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the court process becomes the only weapon available. Lawyers and judges must be assiduous to identify when this occurs, in order to ensure that the court is not manipulated into becoming a source of harm but a guarantee of protection.’
It is of particular note that the underlying facts in F v M were described by Hayden J as being ‘at the highest end of the index of gravity, within the sphere of coercive and controlling behaviour’.
60.
In support of his general submission that the distinction between married and unmarried parents in this context is justified, Mr Jaffey placed particular emphasis upon paragraph 4.42 in the first LC report [see paragraph 37 above] where it is said that ‘our law … is firmly based on the principle that the family is a unit in which there exists a broad parental authority’. The position endorsed by the Commission in that paragraph is that, whilst some parents may abuse their status, such circumstances can be met by bespoke orders rather than the alteration of the underlying structure as to the holding of parental authority.
61.
The principled approach of the Law Commission in the first report was maintained through to the third and final report so that, at paragraph 2.11 [see paragraph 39 above] the recommendation was that parents would retain the status of being a parent, and retain parental responsibility, save upon the making of an adoption order.
62.
Mr Jaffey commended the regime in CA 1989, Part 1 as a very well thought through scheme which deliberately sought for parents to retain parental responsibility, save for the exception established, in order to encourage the grant of parental responsibility to unmarried parents.
63.
Mr Jaffey relied upon the ECtHR decision in McMichael to the extent that a distinction in Scottish law, which did not afford automatic parental rights to an unmarried father in contrast to the position for married fathers, was both legitimate and proportionate in that it provided a mechanism for identifying ‘meritorious’ fathers to whom rights could be granted. Consequently, no breach of Art 14 read with Art 8 was established [McMichael paragraphs 96 to 99].
64.
Mr Jaffey submitted that the Smallwood decision was directly on point with the present case. In particular, the Commission held, in line with the ECtHR decision in McMichael, that there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers:
‘The Commission recalls that under English law a father automatically acquires parental responsibility for his children only if he is married to their mother. In contrast, the Commission notes that an unmarried father must apply for parental responsibility for his children born out of wedlock, which may be granted to him by court order or by agreement with the mother. The Commission recalls that the relationship between natural fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family based unit (see the above-mentioned McMichael v UK, para. 98). For this reason the Court has held that there exists an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights (ibid.).’
65.
Mr Jaffey pointed out that the decision in Smallwood had been applied in this court in Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 315 where permission to appeal on the grounds of discrimination had been refused. Ryder LJ described the court’s approach:
‘[8] The question of the differential treatment of married and unmarried fathers by the statutory scheme is not before this court for consideration. Neither mothers nor married fathers can have their parental responsibility removed. That was the issue in Smallwood v United Kingdom (Application No 29779/96) (1999) 27 EHRR 155, an admissibility decision of the Commission in which it was held that the difference in treatment between mothers, married and unmarried fathers in the context of the jurisdiction of the court to make an order which removes an unmarried father’s parental responsibility is not a violation of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention) taken in conjunction with Art 14. On that basis the father in this case was refused permission to appeal on the question of whether the differential treatment was proportionate and whether s 4(2A) of the CA 1989 was incompatible with the rights set out in Arts 8 and 14 of the European Convention.’
66.
By way of further illustration, Mr Jaffey referred to H v A (No 1) [2015] EWHC 58 (Fam) in which MacDonald J had encouraged counsel to abandon a ‘bold’ submission that the court should read into CA 1989 a power to revoke the parental responsibility of a married father on the basis that it had been Parliament’s intention to draw the distinction between married and unmarried fathers and that the ECtHR had held that the distinction did not establish a breach of Art 14 with Art 8.
67.
On the question of what test the court should apply with respect to evaluating the policy decision underlying the distinction between married and unmarried fathers in this context, Mr Jaffey referred to the decision of the Supreme Court in the Scottish case of R (SC) v Works and Pensions Secretary [2021] UKSC 26. In the course of an extended passage in his judgment, commencing at paragraph 97, Lord Reed PSC conducted a comprehensive review of the case law relating to the applicable test for justification, with particular focus upon ‘suspect’ grounds such as gender, marital status or birth status. At paragraph 115 the approach is summarised:
‘115 In summary, therefore, the court’s approach to justification generally is a matter of some complexity, as a number of factors affecting the width of the margin of appreciation can arise from “the circumstances, the subject matter and its background”. Notwithstanding that complexity, some general points can be identified.
(1)
One is that the court distinguishes between differences of treatment on certain grounds, discussed in paras 100—113 above, which for the reasons explained are regarded as especially serious and therefore call, in principle, for a strict test of justification (or, in the case of differences in treatment on the ground of race or ethnic origin, have been said to be incapable of justification), and differences of treatment on other grounds, which are in principle the subject of less intensive review.
(2)
Another, repeated in many of the judgments already cited, sometimes alongside a statement that “very weighty reasons” must be shown, is that a wide margin is usually allowed to the state when it comes to general measures of economic or social strategy. That was said, for example, in Ponomaryov, para 52, in relation to state provision of education; in Schalk, para 97, in relation to the legal recognition of same-sex relationships; in Biao v Denmark, para 93, in relation to the grant of residence permits; in Guberina, para 73, in relation to taxation; in Bah v United Kingdom, para 37, in relation to the provision of social housing; in Stummer v Austria, para 89, in relation to the provision of a state retirement pension; and in Yigøit v Turkey, para 70, in relation to a widow’s pension. In some of these cases, the width of the margin of appreciation available in principle was rejected in the statement that the court “will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’”: see Bah, para 37, and Stummer, para 89.
(3)
A third is that the width of the margin of appreciation can be affected to a considerable extent by the existence, or absence, of common standards among the contracting states: see Petrovic and Markin.
(4)
A fourth, linked to the third, is that a wide margin of appreciation is in principle available, even where there is differential treatment based on one of the so-called suspect grounds, where the state is taking steps to eliminate historical inequality over a transitional period. Similarly, in areas of evolving rights, where there is no established consensus, a wide margin has been allowed in the timing of legislative changes: see Inze v Austria, Schalk and Stummer v Austria.
(5)
Finally, there may be a wide variety of other factors which bear on the width of the margin of appreciation in particular circumstances. The point is illustrated by such cases as MS v Germany, Ponomaryov and Eweida v United Kingdom.’
68.
Mr Jaffey submitted that, as Lord Reed made clear, an issue such as that in the present case, where social policy is developing over time, is not one to which a strict approach or a high standard should be applied. The court should respect the choices that have been made by the legislature.
69.
Having described the manner in which the margin of appreciation is applied by the Strasbourg court, Lord Reed considered how such considerations were to be reflected in decisions of a domestic court at paragraph 143 onwards:
‘The approach of domestic courts
143 The concept of the margin of appreciation is specific to the European court. Nevertheless, domestic courts have generally endeavoured to apply an analogous approach to that of the European court. They have done so for two reasons. The first was explained by Baroness Hale in R (Countryside Alliance) v Attorney General [2008] AC 719, para 126:
“But when we can reasonably predict that Strasbourg would regard the matter as within the margin of appreciation left to the member states, it seems to me that this House should not attempt to second guess the conclusion which Parliament has reached. I do not think that this has to do with the subject matter of the issue, whether it be moral, social economic or libertarian; it has to do with keeping pace with the Strasbourg jurisprudence as it develops over time, neither more nor less: see R (Ullah) v Special Adjudicator [2004] 2AC 323, para 20.”
Accordingly, where the European court would allow a wide margin of appreciation to the legislature’s policy choice, the domestic courts allow a correspondingly wide margin or “discretionary area of judgment” (R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 380).
144 The second reason is that domestic courts have to respect the separation of powers between the judiciary and the elected branches of government. They therefore have to accord appropriate respect to the choices made in the field of social and economic policy by the Government and Parliament, while at the same time providing a safeguard against unjustifiable discrimination. As Lord Neuberger of Abbotsbury observed in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311, para 57, “there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable”.’
70.
Mr Jaffey submitted that on the issue of revocability of parental responsibility Parliament had to provide a coherent scheme, which, whilst it may not please everyone, does contain sufficient powers of mitigation to meet different situations.
71.
Moving on, Mr Jaffey stressed that, in determining the issue of incompatibility, the court should not focus upon the individual circumstances of the mother and children in the present case; an approach which had been made clear in the judgment of the court in R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 at paragraph 58:
‘58 The second question is whether there is a legitimate aim for the interference. There clearly is. It consists of the protection of the rights of others, including any children who are born to a transgender person, and the maintenance of a clear and coherent scheme of registration of births. It is important in this context to bear in mind that this is a question to be addressed at a general level. It does not turn on the facts of this or any other particular case. The question is not whether it would be in the best interests of YY [the child] to have the person who gave birth to him described as his mother on the long-form birth certificate. The question is whether the rights of children generally include the right to know who gave birth to them and what that person’s status was.’
72.
Mr Jaffey also relied upon the judgment in McConnell [at paragraph 59] as a recent re-statement of the established approach to be taken to determining proportionality:
‘The requirements of proportionality in the human rights context are now well established: see eg the decision of the Supreme Court in Bank Mellat v HM Treasury (No 2) [2014] AC 700, para 20 (Lord Sumption JSC) and para 74 (Lord Reed JSC).
There are four questions to be asked:
(i)
Is there a sufficiently important objective which the measure pursues?
(ii)
Is there a rational connection between the means chosen and that objective?
(iii)
Are there less intrusive means available?
(iv)
Is there a fair balance struck between the rights of the individual and the general interests of the community?’
It was accepted that the formulation in McConnell was on all fours with that of Baroness Hale in Tigere [see paragraph 30 above].
73.
Mr Jaffey drew the court’s attention to paragraphs 80 to 82 in the judgment in McConnell in which Lord Burnett of Maldon LCJ focussed on engagement in the domestic context with the international law concept of ‘margin of appreciation’, which he described as the ‘margin of judgment’, which is to be afforded by a domestic court to Parliament. The Lord Chief Justice identified two foundations of the margin of judgment relevant in that case. Firstly, the institutional competence of the courts as compared to Parliament. In doing so he described the limited perspective that a court must necessarily have to engage with issues of social policy, when compared to the broad field of vision and resources available to Parliament. The second foundation is the democratic legitimacy of Parliament:
‘82 The second foundation is that Parliament enjoys a democratic legitimacy in our society which the courts do not. In particular, that legitimises its interventions in areas of difficult or controversial social policy. That is not to say that the courts should abdicate the function required by Parliament itself to protect the rights which are conferred by the HRA. The courts have their proper role to play in the careful scheme of the HRA, as Lord Bingham emphasised in A v Secretary of State for the Home Department [2004] UKHL 56, at para 42. In appropriate cases that can include making a declaration of incompatibility under section 4 in respect of primary legislation where an incompatibility between domestic legislation and Convention rights has been established and the interpretative tool provided by section 3 does not provide a solution. Democratic legitimacy provides another basis for concluding that the courts should be slow to occupy the margin of judgment more appropriately within the preserve of Parliament.’
74.
Mr Jaffey’s overall submission on this point is that because the question in the present case involves an issue of social policy the margin to be afforded to the decision of Parliament is a wide one.
75.
In determining whether or not incompatibility with the ECHR is established, there is a need to consider the question of degree; is breach of just one individual’s ECHR rights in consequence of a legislative provision sufficient to establish incompatibility? Mr Jaffey pointed to the decision of the UKSC in Re Abortion Services (Safe Access Zones) NI Bill [2022] UKSC 32 as establishing [at paragraph 19] the test as being that described by the UKSC in Christian Institute v Lord Advocate [2017] UKSC 29 at paragraph 88:
‘If a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights . . .’ [emphasis added].
In so holding, Lord Reed PSC disapproved the alternative formulation given by Baroness Hale PSC in Re McLaughlin [2018] 1 WLR 4250, [2018] UKSC 48 that the provision ‘will inevitably operate incompatibly in a legally significant number of cases’.
76.
Mr Jaffey concluded by submitting that a deliberate policy choice had been made by Parliament in distinguishing between married and unmarried fathers in this context. That choice was justified and, despite the distinction that was thereby drawn, it was not incompatible with the Convention. In any event, where no withdrawal of parental responsibility could take away the hurt and harm done to the mother and children by the father’s abusive behaviour, where he would, in any event, retain the status of ‘father’, and where his ability to exercise parental responsibility has been totally removed, the impact on the mother and children of the difference in treatment was, as Russell J had found, minor.
77.
Mr Jaffey accepted that the point of focus in the current challenge is upon the mother and children not being able to apply for revocation, but, he submitted that it is the scheme as a whole which is being challenged and incompatibility should be determined on that basis.
Discussion
(a)
The historical context
78.
It is important to commence consideration of the status of parenthood under the law of England and Wales by looking at the recommendations of the Law Commission in the 1980’s. It is important to have some understanding of what had gone before and the basis upon which parental rights and the status of parenthood had been afforded to mothers and fathers, whether married or unmarried, in the lead up to that period and prior to the CA 1989.
79.
The common law in England and Wales at the beginning of the 20th century as to who held parental authority over a child born during a marriage was clear and simple:
‘The father of a legitimate child was exclusively entitled to exercise parental authority over the child; and the child’s mother had no legal right to custody or care and control.’ [Stephen Cretney ‘Family Law in the Twentieth Century’ p 566]
The position was reversed for an illegitimate child, with the mother having sole parental authority and the father having none [Barnado v McHugh [1891] AC 388]. Although the Legitimacy Act 1926 increased the opportunities for legitimation, the distinction between a married father having sole parental authority and an unmarried father having none was maintained as was the position of married mothers. Save for the making of an adoption order, there was no power to revoke or remove parental authority from a married father.
80.
Reform was achieved by s 1 of the Guardianship Act 1973, which equalised the rights of a married father and mother with respect to their child. Separately, the Children Act 1975, s 85 established the twin concepts of parental rights and duties yet maintained that the mother of an illegitimate child had those rights and duties ‘exclusively’ [s 85(7)]. The only route by which the father of an illegitimate child could obtain parental authority was to be appointed as guardian following the death of the child’s mother, or by obtaining a custody order from the court under the Guardianship of Minors Act 1971.
81.
These core provisions provided the landscape within which the Law Commission then undertook its work during the 1980’s culminating in the CA 1989.
82.
Against the background of a very long-established legal structure within which, for much of the time, it was only the child’s father who held parental authority for a legitimate child, and where only a decade or so earlier the child’s mother had come to share such rights in equal measure, it is not correct to characterise the clear distinction drawn in the CA 1989 between married and unmarried fathers as being ‘simply’ or ‘merely’ because of marital status. On the contrary, in terms of who did or did not hold parental authority for a child, the distinction between being married or unmarried was legally the determinative factor.
83.
Regarding the direction of travel under these reforms, the historical perspective demonstrates that the positions of the married and the unmarried father were moving from diametrically opposite starting points. The one, automatically having full, irrevocable, and until recently sole, parental authority for his child, and the other having no rights during the life of the child’s mother save for those that might be afforded by a revocable court order. In terms of the CA 1989 reforms, it had always been a given under the law that the father of a married child would have full, irrevocable parental authority (save for adoption). The changes to be made related to the need to expand the avenues by which an unmarried father might obtain parental responsibility, and, as the relevant passages in its reports demonstrate, it was to that issue that the Law Commission gave its attention, and it was into that context that the question of revocation of parental responsibility was introduced.
(b)
ECHR Article 14 taken with Article 8
84.
There is essentially no dispute, and this court has readily accepted, that the issue raised in this appeal engages with family life rights within Art 8 and that a distinction is drawn between a married father and an unmarried father arising from the inability to apply to revoke the parental responsibility of the former. There is, therefore, prima facie discrimination based upon marital (or civil partnership) status.
(c)
Status
85.
Whether or not a parent has parental responsibility gives them a status in their child’s life which differs from that or a parent who does not have parental responsibility. It is, however, necessary to understand any such status as being of flexible weight or standing. Much, for example, will depend upon the degree to which a parent is able or permitted to exercise parental responsibility when determining the importance of that status for others in the family, be they the children or the other parent.
86.
When evaluating the importance of the status that is afforded by having, or not having, parental responsibility, it is also necessary to understand that there will be a separate status, namely that of ‘father’ or ‘parent’. In the present case, even if it were possible to revoke the father’s parental responsibility, he would still remain the children’s biological father. Insofar as it is said that there is an adverse psychological and emotional impact on the children and their mother from knowing that the father retains parental responsibility, it must be the case that a similar negative consequence will flow from knowing that he remains their father and that that status cannot be removed. These factors are of some importance when it comes to assessing the degree of significance of any discrimination resulting from the different treatment of married and unmarried fathers.
(d)
Justification
87.
A prima facie case of discrimination with respect to a relevant status having been established, focus shifts to the question of justification and the four-fold test set out in similar terms in Bank Mellat, Tigere and McLaughlin, firstly, whether the distinction has a legitimate aim sufficient to justify limiting the rights of a mother and/or children of a married father.
88.
The long-standing position under the law of England and Wales, as previously described, has been that a married father has always been afforded parental authority for his child and that this could not be revoked, save by adoption. The legitimate aim of prioritising the state of marriage, and ensuring clarity over legal authority and responsibility for a child within the marital family is plain to discern. Prioritising the state of matrimony, and more recently civil partnership, over other less formalised relationships has been maintained by Parliament as a central tenet of Family law, both with respect to children and in relation to the division of property in the event of separation.
89.
The Law Commission emphasised the fundamental nature of the priority to be afforded to parental responsibility within a marriage at paragraph 4.42 of its 1st Report:
‘Moreover it would involve a fundamental change in legal philosophy for which we have not found any great support or real justification. Our law (in common with that of other common law countries) is firmly based on the principle that the family is a unit in which there exists a broad parental authority.’
90.
Until the 1989 Act an unmarried father could not be afforded any parental rights or authority, save by a revocable custody order. The CA 1989, both initially and by later amendment, has altered that position by bringing some unmarried father’s into a position closer to that of their married counterparts by allowing them to acquire parental responsibility by agreement, court order or by being named on the birth certificate. But elements of the long-standing distinction with married fathers have remained in that some unmarried fathers will not have parental responsibility and those that do acquire it may have it removed by subsequent court order. This distinction, from the perspective of the Art 14 rights of an unmarried father, has been held not to establish a breach of the ECHR [see paragraphs 33 to 35 above].
91.
The legitimate aim of maintaining the status of married fathers and supporting the priority that has consistently been afforded by Parliament to the state of matrimony is plainly capable of justifying the limitation of a fundamental right.
92.
The second Bank Mellat consideration is whether the measure is rationally connected to that aim. The answer on this point must be in the affirmative. The legitimate aim is to maintain the priority afforded to the married state and to retain the irrevocable parental authority/responsibility of a married father that has existed for more than a century. The newly created ability to grant, but also to revoke, parental responsibility for unmarried fathers is not connected with the legitimate aim of prioritising the creation of, what are hoped to be, stable and enduring family relationships within marriage or civil partnership. The spectrum of relationships which may lead to a child being born to parents who are not married is broad and may run from a transient encounter to one which endures for as long as many marriages. The separate aim underpinning the law relating to unmarried fathers is, firstly, to allow parental responsibility to be afforded to some such fathers, and, secondly, to encourage that to take place by agreement, court order or by birth certificate by allowing for the responsibility to be revoked at a later time if that is justified.
93.
On that basis, the existence of a different scheme for unmarried fathers does not provide the support that the Appellant seeks to place upon it. That scheme can be separately objectively justified, and the reasons underpinning that scheme cannot be applied to married parents. The justification for there being a difference in treatment for married parents is, thus, not only the significance ascribed to them being married, but also the justification for there being a separate scheme for acquisition and revocation in the wider social setting within which unmarried parentage may occur.
94.
The third consideration requires consideration of whether a less intrusive measure could have been used to achieve the policy and can be taken shortly. Where the policy aim is to afford priority to the status of marriage or civil partnership by ensuring that the parental responsibility of both parents is retained, save for adoption or parental order, it must follow that any measure which allows for that status to be reduced would defeat the object of the policy. Here the element of discrimination arises solely from the ability of a mother or child to apply to revoke parental responsibility of an unmarried father. It is binary; either the same facility is introduced for married fathers, or it is not; there is no ‘less intrusive’ measure to be contemplated.
95.
Finally, there is the question of whether, bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, a fair balance has been struck between the rights of the individual and the interests of the community.
96.
In assessing the issue of balance, it is important to address a submission at the core of the Appellant’s case which is that, although a father’s ability to exercise parental responsibility may be reduced by prohibited steps and other orders, and/or by a prohibition on further court applications under CA 1989, s 91(14), this is not an adequate remedy. For reasons that have already been given, it is accepted that simply holding parental responsibility, irrespective of any ability actually to use it, is a relevant status in this context, and it is right that emptying a person’s status of any power to deploy it, does not remove the status itself. But the fact that the status remains does not mean that the ability of a court to make orders removing that status of all value is not an adequate remedy. In terms of protecting the mother and children from any future involvement of the father in their lives, the orders made in this case and similar cases is, indeed, an adequate remedy. The remaining status of being a holder of parental responsibility is but an empty vessel and, when determining what weight is to be attached to its continuing impact on the mother and children, it is likely to attract only minimal weight at most.
97.
A further feature that is relevant to the assessment of a fair balance, is the point made earlier that, irrespective of parental responsibility, the status of being the children’s father will remain and cannot be revoked, save by adoption or parental order.
98.
Taking those two factors together, the consequences of maintaining a distinction between married and unmarried fathers, and not permitting an application for revocation of a married father’s parental responsibility, are either of minimal severity or of little weight. Other than the maintenance of the status of holding parental responsibility, revocation would not cause any material change in the lives of the mother and children in the present case. The children’s father in the present case is wholly unable to exercise any aspect of his parental responsibility. He does not know where his children live and he does not even know their names.
99.
On the other side of the balance, it must be the case that, for families where a father has behaved so badly that removal of his parental responsibility may be justified, no weight will attach to the maintenance of stable family life within the context of a marriage. That aspect of an individual case does not, however, detract from the importance of the overall social policy aim of affording priority to marriage and civil partnership in the community as a whole, particularly where the court can provide practical protection by making a prohibited steps order.
100.
In granting permanent parental responsibility to all married fathers, Parliament was continuing to uphold a long-established principle of Family law in England and Wales. In the CA 1989 a new, and different, scheme was created for the attribution of parental responsibility to unmarried fathers. For reasons that have been upheld in the Strasbourg cases, the new scheme provided for parental responsibility to be revoked in order to encourage mothers (or courts) to consider agreeing to grant it. The two schemes for acquisition and revocation of parental responsibility by married, on the one hand, and unmarried fathers, on the other, are distinct from each other. Each of the schemes is justified on its own terms, the former being based on long-standing legal principle, and the latter on the need to provide for parental responsibility for some unmarried fathers where previously there had, effectively, been none. The distinction between the two schemes exists because they have different aims and they are designed to meet different circumstances.
101.
Drawing matters together, it is clear that the difference in the treatment of unmarried and married fathers is justified by the long-standing principle that married fathers (and mothers) should have irrevocable parental authority/responsibility for their children. Ms Gallagher’s repeated characterisation of the difference in treatment as being ‘simply’ because the father was married misses the point. Affording priority to the establishment, and maintenance, of stable family life by commitment through marriage or civil partnership is what it is all about. Whilst there is, therefore, a difference in treatment, and thus prima facie discrimination, as between married and unmarried fathers, the impact of that difference upon their children and the children’s mothers is, in reality, minimal. Parliament has given the court power to empty a father’s parental responsibility of all content and to prevent him making future applications to the court. A revocation order in the present case would make no material difference to the lives of the mother or children. Whilst the father retains the status of having parental responsibility, he also retains the status of being the children’s ‘father’; if the former could be removed, the latter would remain, with the consequence that the psychological or emotional benefit of revocation could only be minimal. The negative impact on a family that arises from an inability to apply to revoke parental responsibility, is, therefore, comprehensively outweighed by the overall benefit to the community of maintaining the priority that is attributed to marriage and civil partnership.
102.
Although the point does not arise here, given the clear justification for the two different schemes relating to parental responsibility, if matters were more finely balanced, this court would need convincing evidence of a significant adverse impact of the policy on the wives and children of married fathers before holding that Parliament had acted incompatibly with the HRA and ECHR in this area of social policy in casting the law as it has done. For the reasons that I have given, the evidence of adverse impact fails to come close to achieving that quality.
103.
In all the circumstances, the Appellant has failed to establish that the scheme within CA 1989, Part 1, and in particular the absence of a power for the court to revoke the parental responsibility of a married father, is in breach of ECHR Art 14 taken with Art 8, and the application for a declaration of incompatibility must, therefore, also fail.
Northern Ireland decision
104.
In a Northern Ireland High Court case of SV, FV and GV [2022] NIFam 11, Humphreys J considered the same issue, albeit in the slightly different legislative context of the Children (Northern Ireland) Order 1995. Humphreys J concluded that the distinction between married and unmarried fathers with respect to revocation of parental responsibility was justified and did not establish a breach of the ECHR rights of married mothers and their children. Humphreys J’s analysis is essentially on all fours with the approach of this court. This court was told that the applicants in SV, FV and GV had appealed to the Court of Appeal in Northern Ireland and that the appeal had been heard with judgment reserved.
Russell J’s decision
105.
In the light of the conclusion reached on the substantive application, it is not necessary to consider the first instance judgment of Russell J in detail. The judge’s analysis included the following steps and conclusions:
a)
The institution of marriage is a fundamental part of the socio-legal familial framework in the United Kingdom;
b)
Parliament intended to give mothers and married parents a special status;
c)
The underlying principles of the legislation have been upheld by the ECtHR;
d)
There is little or no difference between an order for revocation, on the one hand, and a series of prohibited steps and other orders, on the other;
e)
The approach under the ECHR requires that respect should be given, by applying a wider margin of appreciation to issues of economic or social strategy so that decisions of a State’s legislature will normally be respected unless ‘manifestly without reasonable foundation’;
f)
The fact that a married father retains the status of having parental responsibility for his children, despite orders having been made to remove any ability to exercise it, cannot be considered to be an interference with the ECHR Art 8 rights of the children and their mother;
g)
In the context of Art 14 taken with Art 8, ‘the difference in treatment, such as it is, is minor’ and was justified;
h)
Consequently, the statutory scheme is not incompatible with the ECHR.
106.
Although this court has reached the same conclusion by a process of analysis which, to a degree, differs from that of the judge, that is no basis for allowing the appeal which, it follows, must be dismissed.
Conclusion
107.
For the reasons that I have given, the application for a declaration of incompatibility is refused and the appeal dismissed.
Lord Justice Moylan:
108.
I agree.
Lord Justice Dingemans:
109.
I also agree.
Notable case that failed but offer insight.
In this case, the father brought the case to the high court to attempt to punish the mother with contempt of court for sharing court documents with the police.
Neutral Citation Number: [2023] EWHC 1074 (Fam)
Case No: HD20P00013
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date: 05/05/2023
Before :
MR JUSTICE MOSTYN
This judgment was delivered in public. The judge has made an anonymity order in respect of the claimant, the defendant and their child. All persons, including representatives of the media, must comply with this order. Failure to do so will be a contempt of court.
Mr Justice Mostyn:
In this judgment:
“the 1989 Act” is a reference to the Children Act 1989;
“s.8 proceedings” is a reference to proceedings for a child arrangements order applied for under s.8 of the 1989 Act;
“s.97(2)” is a reference to s.97(2) of the 1989 Act;
“the 1960 Act” is a reference to the Administration of Justice Act 1960; and
“s.12”, “s.12(1)” and “s.12(2)” are references to s.12, s.12(1) and s. 12(2) of the 1960 Act.
2.
This is my judgment on the reconstituted application by the claimant dated 5 December 2022 for permission to bring contempt proceedings against the defendant, his former partner and mother of his child, for breach of s.12 on 11 August 2020 by showing documents to officers of the Interested Party, the West Yorkshire Police (“the police”) which derived from ongoing s.8 proceedings.
The background
3.
The claimant is 28 years old and he is a serviceman in the Royal Marines. The defendant is 37 years old and is a specialist neurological physiotherapist. The parties began a relationship in early 2016. They have a child together, N, who is 5 years old. The defendant also has two older children from a previous relationship, aged 13 and 12.
4.
The parties separated in November 2017. On 24 November 2017, the defendant applied for an ex parte non-molestation order which was made on the same day, in relation to an incident on 12 November 2017 when she had reported domestic abuse to the police. At the return hearing the order was directed to remain in place until 24 November 2018.
5.
In December 2017, the claimant sought contact with N and made a C100 application for a child arrangements order. A finding of fact hearing took place on 26 and 27 March 2018 before District Judge Barraclough sitting in Huddersfield to determine the defendant’s allegations of domestic abuse. Judgment was given on 9 April 2018. Out of 17 allegations before the court, 4 were not proven, 3 fell away through the claimant’s admissions to the court and 10 allegations were found proven. Those proven allegations “did not necessarily amount to domestic abuse”; that was as far as the judge was willing to go in his findings.
6.
The judge concluded that his findings should not stand in the way of the claimant’s relationship with his child but that the safety of the defendant and child must be assured. The court therefore ordered the claimant to be referred to a Domestic Abuse Perpetrator Programme (“DAPP”) and for Cafcass to carry out the referral by 2 May 2018. On 18 September 2018, the claimant was referred to DAPP and on 27 September 2018, the DAPP provider assessed the claimant as unsuitable for DAPP for three reasons: first, that the surrounding circumstances and frequency of the domestic abuse incidents indicated low to medium risk; second, the claimant had passed his employer’s vetting and psychodynamic risk assessment; and third being on location and deployable with the Armed Forces at extremely short notice, meant that attending a programme of behavioural change that meets weekly would be impossible to sustain.
7.
A Section 7 report dated 21 December 2018 recommended no direct contact between N and the claimant. The report was prepared by a Cafcass officer who had not seen the claimant, nor had she considered the fact-finding judgment of 9 April 2018. On 8 January 2019 District Judge Barraclough ordered an addendum report to be prepared to ensure that the claimant was spoken to by Cafcass. That report recommended that the claimant should have indirect contact with N.
8.
On 12 March 2019 the Cafcass officer spoke to a RM officer and made untrue allegations about the claimant which led to the suspension of the claimant’s training. This led to the claimant intimating a claim against Cafcass for defamation and misuse of private information. Cafcass conceded liability. In a settlement agreement dated 6 March 2020 Cafcass apologised, agreed to pay the claimant’s costs and the sum of £27,500 in damages.
9.
District Judge Barraclough in his later judgment dated 8 April 2019 had concerns with the Cafcass officer’s views, especially that the claimant was a “particularly dangerous man” which had clearly been influenced by her discussions with the defendant. The Judge did not accept this and found that the officer had prejudged the matter. He held that he nonetheless needed clear and cogent reasons to depart from Cafcass’ recommendations for contact and directed the appointment of an independent social worker.
10.
On 3 December 2019 a final child arrangements order was made for the child to live with the defendant and to have direct overnight contact with the claimant on alternate weekends and midweek, together with periods in the school holidays and on special occasions. However, on 30 January 2020, the defendant began a second set of children proceedings, applying to suspend all contact under the final order. This was refused by Judge Barraclough. The defendant then sought to appeal that refusal. Permission to appeal was refused by Her Honour Judge Lynch on 18 February 2020.
11.
On 13 July 2020, the paternal grandmother applied for a child arrangements order to spend time with N. A hearing took place on 26 August 2020. The order made by District Judge Barraclough recorded:
“j) The Court expressed its concern that the [Position Statement dated of the Paternal Grandmother of 24 August 2020] appeared to have the imprint of the Father all over it given that it quoted substantially from the parental proceedings which have not been released into these proceedings.
k) The Paternal Grandmother indicated that she has prepared the Position Statement but that the Father had provided her with information
l) The Court recorded that confidentiality had been breached and technically both the Paternal Grandmother and the Father were in contempt of Court.”
12.
On 20 August 2020, following a complaint made by the defendant, the police visited the defendant at her home. The defendant had alleged that the claimant was harassing her. At the meeting the defendant disclosed certain documents deriving from the s.8 proceedings to the police. These are the documents which are the subject matter of the application before me.
13.
As a result of the defendant’s allegations to the police against the claimant, he was arrested on 26 August 2020. The day before, PC Cathryn Harrison sent an email to Warrant Officer Michael Seabrook in the RM human relations department. That email, redacted to preserve anonymities is attached to the judgment of Johnson J of 25 August 2022 (see below). In that judgment Johnson J held that the meaning of the email was:
“The claimant has threatened and told blatant lies to his former partner, sending her emails which make threats, drawing on his military background to control her, and causing her to be scared that she is under constant surveillance and affecting her mental health. He has thereby committed an offence of controlling and coercive behaviour against his former partner and an offence against her of harassment. His behaviour is not compatible with service in the armed forces.”
14.
The consequences of these events were that the claimant had restrictions placed on his liberty by virtue of the terms of police bail, including restrictive communication and freedom of movement conditions, as well as having to make frequent 600 mile round trips from Poole to Halifax and back to answer such bail.
15.
The claimant therefore issued defamation and misuse of private information proceedings against the Chief Constable of West Yorkshire police in the Queen’s Bench Division of the High Court. On 6 June 2022 Master Eastman made an anonymity order prohibiting the disclosure of the identity of the claimant and the child (TJM v Chief Constable of West Yorkshire Police (anonymity order)1). On 25 July 2022 Mr Justice Johnson handed down judgment on the trial of preliminary issues as to, first, the meaning of the email; secondly, whether it was defamatory of the claimant at common law; and thirdly, whether the email conveyed matters of fact or opinion: TJM v Chief Constable of West Yorkshire Police [2022] EWHC 2658 (KB). He held that the email had the meaning set out above; that the meaning was defamatory at common law; and that it amounted to statements of fact rather than opinion, save that the last sentence amounted to an expression of opinion. He directed that the pleadings should be amended to reflect his findings and that the matter should be listed for a costs and case management hearing.
16.
On 22 December 2022, the police wrote to the claimant’s solicitors conceding liability. The parties have negotiated a settlement whereby a statement will be made in open court which will say that the Interested Party has agreed to pay substantial damages to the claimant and that:
“The [Interested Party] acknowledges that the factual allegations about the Claimant are untrue, and that the opinion expressed about him is insupportable. He retracts and withdraws these allegations and that opinion, and he undertakes not to further publish or repeat them. He also accepts that the disclosure of the private correspondence to the Claimant’s employer was completely wrong, and he apologises for the invasion of privacy caused to the Claimant and his Child. ”
17.
On 26 August 2020 the defendant renewed her application to suspend contact, which was refused on 23 September 2020 by District Judge Barraclough who ordered that N should be joined as a party represented by a Guardian and directed Cafcass to appoint a Guardian.
18.
On 15 May 2021, the defendant made a report to the police that the claimant had sexually abused the child. The police reported this allegation to the Local Authority Emergency Duty Team. On 21 May 2021 and on 8 June 2021 Police and Children Services undertook a joint visit to the child’s home and on 16 June 2021 they undertook a visit to the child’s nursery, after which the local authority reported that the child made no disclosures during their visits.
19.
A case management hearing took place on 24 June 2021 before District Judge Uppal after which on 14 July 2021 an assessment report was filed. The report concluded that there was no evidence that N had experienced sexual harm nor were there any concerns in relation to her behaviour or emotional wellbeing.
20.
On 12 January 2022, the claimant went to Halifax police station to retrieve his mobile phone which the police had seized for forensic investigation following the defendant’s allegations in August 2020. On that day, West Yorkshire Police returned to the claimant his telephone along with, unexpectedly, two physical files, one green, one black. These contained the papers from the s.8 proceedings disclosed by the defendant to the police on 11 August 2020. The claimant took photographs of these files and handed the green file to District Judge Uppal at Huddersfield Family Court at the start of the second final hearing before him on 7 March 2022. The claimant told me at the hearing on 25 April 2023 that he handed the black file to the solicitors representing him in the defamation proceedings, and that subsequently the police collected that file from his solicitors and handed it to the defendant.
21.
In response, Ms Millin on behalf of the defendant stated that the contents of the black file (but not the black file itself) were returned to the defendant on 15 February 2022, who immediately commented that papers were missing. On 31 January 2023 my judicial assistant wrote to District Judge Uppal to request that the file(s) handed to him by the claimant should be sent to the High Court. District Judge Uppal caused the green file to be located in storage and for it to be sent to the Royal Courts of Justice in early February 2023.
22.
The defendant believes that the green file in my possession is not the full and complete original file and that many documents were removed and retained by the claimant.
23.
It is the defendant’s case that at her home she gave the two files to the police in relation to her allegations of coercive and controlling behaviour and harassment against the claimant on 11 August 2020. The documents included personal handwritten notes, her health records and bank statements, as well as documents deriving from the s.8 proceedings. The defendant says that she was unaware that she was not permitted to hand those latter documents to the police; and that her intention was to protect herself and her children from the claimant. In hindsight she accepts that it was not appropriate to disclose those documents to the police and she apologises to the court for this.
24.
The claimant’s case is that without permission from the court, the defendant committed contempt of court by publishing documents deriving from the s. 8 proceedings to West Yorkshire police. He submits that the following documents in the green file were clearly disclosed in breach of s.12:
i)
the claimant’s c100 application dated 1 December 2017;
ii)
the report dated 31 December 2020 of the independent social worker Mohammed Sarfraz;
iii)
the claimant’s position statement dated 18 March 2020;
iv)
emails from Judge Barraclough to the defendant and claimant and solicitor for the defendant in the s. 8 proceedings (detailing what took place in private (a) at a hearing on 18 March 2020 and the draft orders which followed and (b) on 8 April 2020 when the hearing was vacated);
v)
the DAPP assessment report dated 27 September 2018;
25.
He further claims that other documents, not in the green file, were, on the defendant’s own admissions, unlawfully disclosed namely:
i)
Cafcass report dated 21 December 2018
ii)
Cafcass notes
iii)
Court papers not including court orders
iv)
Social services’ notes
v)
Social services reports
26.
I ruled that I would only consider the question of permission by reference to the documents in the green file, as it would not be possible to make findings of fact as to whether any other missing documents were wrongfully disclosed by the defendant.
27.
On 7 March 2022, the second final hearing took place before District Judge Uppal over 3 days. The child was represented by her Guardian Angela Powell. The second final child arrangements order was made on 9 March 2022; it comprised a shared-lives-with order. Additionally, and wisely, District Judge Uppal made a s. 91(14) order to last until March 2026 against both the defendant and the claimant preventing them from making any further application in respect of N without permission.
28.
I understand that there have not been any issues in relation to the shared care of N since that order.
29.
On 5 December 2022, the claimant filed the instant contempt application against the defendant at the High Court, Family Division. The application was placed before me as box-work and on 25 January 2023, I listed the application to be heard on 1 February 2023 and gave directions for the claimant to file a skeleton argument setting out why the application should be heard anonymously and exactly which disclosures were said to constitute contempts.
30.
At the hearing on 1 February 2023, the claimant was represented by Ms Scotland and the defendant was unrepresented. Mr Farmer for the Press Association also attended and opposed the application for anonymity. The defendant requested an adjournment to allow her to obtain legal aid so as to obtain legal representation. I ruled at the hearing that the claimant required permission for the contempt application to proceed under FPR 37.3(5) and therefore reconstituted the claimant’s claim form as an application for permission and listed it and the question of anonymity to be heard on 7 March 2023. I ordered that the Chief Constable of West Yorkshire Police should be given leave to be joined as an interested party. The Chief Constable took up that leave. He requested a short adjournment of the final hearing due to prior professional commitments, which I granted. The hearing therefore took place on 25 April 2023, with the claimant dispensing with Ms Scotland and choosing to be unrepresented, the defendant being represented by Ms Millin and the Chief Constable being represented by Mr Cohen. Mr Farmer also attended.
Issues of law
31.
There are a number of issues of law I must deal with.
i)
What are the rules concerning the disclosure of information about s.8 proceedings to the police?
ii)
Why does this application require permission? What is the test on the permission application?
iii)
The claimant seeks anonymisation of himself, the child and the defendant. Is this possible, and if so, is this appropriate?
Disclosure of information about s. 8 proceedings: general
32.
In Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam) at [25] – [27] I attempted to summarise the historical reasons why, as I put it, it is a canonical principle that identification of the children who are the subject of family proceedings is seriously contrary to their interests and is to be avoided at all costs. I cited Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417 who described such proceedings as relating to "truly private" affairs and to transactions which are truly "intra familiam". It is for these reasons that disclosure of documents which relate to the proceedings, or which are likely to identify the children the subject of such proceedings, is generally proscribed by s.12 and s.97(2), although, as will be seen, this general proscription is disapplied in many circumstances by rules of considerable complexity.
Section 12 and the exempting rules
33.
I shall first examine the scope of the prohibition under s.12. It provides:
“Publication of information relating to proceedings in private.
(1)
The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say:
(a)
where the proceedings:
(i)
relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii)
are brought under the Children Act 1989 or the Adoption and Children Act 2002 ; or
(iii)
otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
…
(2)
Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.”
34.
Section 12 prohibits the publication of “any information relating to the proceedings”. There have been a number of cases which have considered the reach of s.12 where it applies alone, for example because the s.8 proceedings in question have concluded. I attempted to summarise them in In Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam) at [8] – [9], and concluded that in such a scenario, the following may be published:
i)
what any concluded s.8 proceedings related to, and if there are proceedings continuing which do not fall within s.97(2), to what they relate;
ii)
the name, address or photograph of the child;
iii)
the name, address or photograph of the other parties;
iv)
the date, time or place of the next hearing and of all future hearings of the proceedings;
v)
the nature of the dispute in the proceedings;
vi)
anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place; and
vii)
the text or summary of the whole or part of any order made in the proceedings.
I shall refer to this list as “the Re PP taxonomy”.
35.
A person coming cold to the prohibition in s. 12 of the publication of “any information relating to the proceedings” would no doubt be extremely surprised that it allowed not merely the media, but in fact anyone, to “publish” the name, address or photograph of the child as well as a report of the nature of the dispute in the proceedings. This is because there has long been a profound lack of understanding of what s.12 seeks to protect, as Munby J explained in Kelly v British Broadcasting Corpn [2001] Fam 59 at pp 71 – 72:
“For long it was thought that the effect of section 12 was to prevent publication of any information whatever about wardship proceedings. Again it was only in the late 1980s that a true understanding of the limited ambit of section 12 emerged … It suffices for present purposes to say that, in essence, what section 12 protects is the privacy and confidentiality: (i) of the documents on the court file; and (ii) of what has gone on in front of the judge in his courtroom. … In contrast, section 12 does not operate to prevent publication of the fact that wardship proceedings are on foot, nor does it prevent identification of the parties or even of the ward himself. It does not prevent reporting of the comings and goings of the parties and witnesses, nor of incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings. Nor does section 12 prevent public identification and at least some discussion of the issues in the wardship proceedings ”
36.
Therefore the actus reus of a contempt under s. 12 is disclosure of non-exempt information relating to s.8 proceedings that goes beyond these permitted matters. The mens rea is that the defendant must know that the contents of the disclosed material relate to the s.8 proceedings. It is not necessary to prove that she knew that her conduct had the capacity to interfere with the administration of justice.
37.
The central question in the matter before me is whether the prohibition applies where the disclosure is to a police officer by a party who is seeking protection from harassment for herself and the subject child.
38.
In Re B (A Child) [2004] EWHC 411 (Fam) Munby J considered the inconsistent judgments in In re M (A Child) (Children and Family Reporter: Disclosure) [2002] EWCA Civ 1199, [2003] Fam 26, and held at [72] – [73]:
“72.
In my judgment, and subject only to the exception … where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children, there is a "publication" for the purposes of section 12 whenever the law of defamation would treat there as being a publication. I recognise that this means that most forms of dissemination, whether oral or written, will constitute a publication, but I do not shrink from that. After all, the purpose of section 12(1)(a) is surely to protect what Lord Shaw called "truly private affairs", what Balcombe LJ in In re Manda [1993] Fam 183 at p 195 referred to as the "curtain of privacy" imposed by the family court for the protection of the particular child.
73.
In the light of what has happened in the present case I need to emphasise that there is a "publication" for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, a Minister of the Crown, a Law Officer, the Director of Public Prosecutions, the Crown Prosecution Service, the police (except when exercising child protection functions), the General Medical Council, or any other public body or public official. Specifically, I wish to make it clear that, whatever the position of the police may be when exercising child protection functions, the Minister of State for Children cannot for this purpose be taken as exercising such functions.”
39.
Thus, in these obiter comments, Munby J posited that a disclosure to the police by someone acting in furtherance of the protection of children, where the police themselves were exercising child protection functions, would not be a publication for the purposes of s.12.
40.
The response of the government to this judgment was to have Parliament enact s. 62(1) and (7) of the Children Act 2004, which came into force on 12 April 2005. The latter provision inserted s. 76(2A) into the Courts Act 2003. This provided:
“Family Procedure Rules may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.”
41.
This power led to the making of the Family Proceedings (Amendment No. 4) Rules 2005 (SI 2005/1976) (“the 2005 Rules”) which amended the Family Proceedings Rules 1991 for s.8 proceedings heard in the High and County Courts, and which came into force on 31 October 2005). Equivalent amendments were made to the rules governing s.8 proceedings heard by Magistrates.2
42.
The explanatory memorandum stated:
“The instruments specify the circumstances in which information may be disclosed in family proceedings heard in private involving children without needing to obtain the express permission of the court.”
The idea was to have a set of rules for all courts hearing s.8 disputes (as well as disputes about children under the High Court’s inherent jurisdiction) as to what could be disclosed, and to whom, without fear of breach of s.12. It was not, however, a comprehensive set of rules as, of course, in 2005 the Re PP taxonomy applied; and it continues to apply.
43.
For the purposes of this judgment, I need only refer to the amendments to the Family Proceedings Rules 1991. The 2005 Rules set out the additional types of disclosures which would not count as contempts for the purposes of s.12. They inserted a new rule 10.20A into the 1991 rules. Certain communications were obviously permitted such as those to another party, to the legal representative of a party, to the welfare officer, to the Legal Aid Agency, and to an authorised expert (r. 10.20A(2)(c)(i) –(vii)).
44.
Rule 10.20A(2)(c)(viii) permitted disclosure “to a professional acting in furtherance of the protection of children”. Rule 10.20A(4) defined such a professional as including a police officer who was exercising powers under section 46 of the Act of 1989 (removal and accommodation of children by police in cases of emergency) or was serving in a child protection unit or a paedophile unit of a police force (“a specialist police officer”).
45.
Therefore, a disclosure by a party (or indeed anyone, for that matter) to such a specialist police officer could be made without fear of contempt.
46.
Rule 10.20A(3) contained a table which laid out a variety of permitted disclosures including disclosure by a party of any information relating to the proceedings to a lay adviser, a McKenzie Friend, a spouse, a cohabitant or a close family member. That table allowed the text or summary of the whole or part of a judgment given in the proceedings to be communicated by a party to a police officer for the purposes of a criminal investigation. I remind myself that such a party was already allowed to disclose copies of orders to the police under s12(2).
47.
Therefore, this new scheme allowed a party to disclose anything about the proceedings to a specialist police officer but only the text or summary of the whole or part of a judgment given in the proceedings to a non-specialist police officer for the purposes of a criminal investigation. This distinction was unlikely then, and remains unlikely now, to be appreciated by a self-represented litigant.
48.
These 2005 Rules in turn were replaced, largely unaltered, by rules 12.73, 12.75, and PD 12G of the Family Procedure Rules 2010 (“FPR 2010”), which came into force on 6 April 2011.
49.
The FPR 2010 altered the 1991 rules, as amended in 2005, to remove the right of a party to reveal any information about a case to a spouse, a cohabitant or a close family member. Instead it allows a party to communicate with any other person (a) to enable that party by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings, or (b) to engage in non-court dispute resolution, or to make and pursue a complaint against (c) a person or body concerned in the proceedings or (d) regarding the law, policy or procedure relating to the proceedings (FPR 12.75(1)). However, if a disclosure is made by a party for purpose (a), then no further onward disclosure by the recipient is permitted (FPR 12.75(2)). This was presumably designed to prevent members of a party’s family acting as disclosure proxies for that party. It is of some relevance in this case where the claimant made disclosure of information about the s.8 proceedings to his own mother which she in turn used to mount her own claim for contact to her grandchildren.
50.
FPR12.73(1)(a)(viii) read together with the definition provisions in FPR 2.3(1) reproduced identically the previous rules about the right of anyone to make a lawful disclosure of any information relating to the proceedings to a specialist police officer.
51.
FPR 12.73(1)(c) introduced PD 12G which in turn contained an expanded version of the table provided by the 2005 amendment to the 1991 rules.
52.
As before, that table allowed the text or summary of the whole or part of a judgment given in the proceedings to be communicated by a party to a police officer for the purposes of a criminal investigation. That party was already allowed to disclose copies of orders to the police under s12(2).
53.
In S v SP and Cafcass [2016] EWHC 3673 (Fam), Baker J held that disclosure of information by the Cafcass officer in that case to the police did fall within FPR 12.73(1)(a)(viii). At [36] he stated:
“A series of public inquiries in this country have identified the need for agencies to work together in order to protect children. That is the context in which the Family Procedure Rules have to be interpreted and applied. Too narrow an interpretation of the rules would, in my view, jeopardise the welfare of children. It is axiomatic that the administration of justice and the protection of children requires disclosure of information between professionals to ensure that children are protected. In this case the police were investigating allegations of abuse between adults in a family and as part of the investigation asked the CAFCASS officer for details of the background. Part of the purpose of the conversation, in my view, was plainly the furtherance of child protection. The dispute between the adults, the history of harassment by S leading to the restraining order and the further allegations by S against the mother plainly raised concerns of professionals about the risk of harm to the children.”
54.
However, that judgment does not refer to the definition in FPR 2.3(1) of a professional working in furtherance of child protection as including a specialist police officer, nor does the judgment give any information about the status of the police officer to whom the disclosure was made. Para 6 merely says “on 22 January 2016 SP received a telephone call from a police officer and in the course of their conversation disclosed certain information about the proceedings.” In my opinion this decision does not throw any light on the question I have to answer.
55.
My conclusion is that the right of a party to disclose to a specialist police officer working in furtherance of child protection any information about the s. 8 proceedings, coupled with the right of such a party to disclose to a non-specialist police officer for the purpose of a criminal investigation the text or a summary of the whole or part of a judgment given, or an order made, in the proceedings, defines conclusively the extent of lawful disclosure, not falling within the Re PP taxonomy, which may be made to the police without fear of contempt. Disclosure by a party of, say, a s.7 Cafcass report to a non-specialist police officer would fall outside that freedom and be a breach of s.12, and thus a contempt, although the seriousness of the breach would be mitigated by the fact that were such a disclosure to have been made by a party to a specialist police officer or by the Cafcass officer to a non-specialist police officer, it would not amount to a breach. It is hard to understand why this aspect of the law of contempt, which, given its nature, ought to be as straight-forward and transparent as possible, appears to be so arbitrary and bereft of logic.
Section 97(2)
56.
The key question is whether a permitted disclosure to a non-specialist police officer would nonetheless contravene s.97(2). This provides:
“(2)
No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify:
(a)
any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or
(b)
an address or school as being that of a child involved in any such proceeding.”
(Emphasis added)
57.
This provision only applies while the proceedings are ongoing: Clayton v Clayton [2006] Fam 83. Contravention of it is a criminal offence: s.97(6).
58.
The words I have emphasised and underlined (“the publication phrase” ) were enacted and inserted by s. 62(1) of the Children Act 2004, again in direct response to the judgment in Re B, and came into force on 12 April 2005. It is clear that object of the amendment was to cut down the reach of s97(2). In using the concept of “any section of the public”, the framer of the phrase clearly contemplates that a lawful disclosure may be made to a body which is not a section of the public. This is confirmed by the explanatory memorandum to the 2005 Rules which stated at para 4.1 that it would not be an offence for a party to make a disclosure to other individuals or bodies, so long as disclosure is not made to the general public or any section of the general public, or to the media.
59.
Doughty, Reed and Magrath in Transparency in the Family Courts (Bloomsbury 2018) at para 2.118 state that during the public consultation after Re B it had become apparent that there was a risk of s.97(2) being breached simply by a parent mentioning to any individual that they were involved in a contact dispute.
60.
The explanatory note accompanying the Children Act 2004 states:
‘Section 62(1) amends section 97 of the Children Act 1989 to make clear that the publication of material from family proceedings which is intended, or likely, to identify any child as being involved in such proceedings (or the address or school of such a child) is only prohibited in relation to publication of information to the public or any section of the public. This section will make the effect of section 97 less prohibitive by allowing disclosure of such information in certain circumstances. In effect, this means that passing on information identifying, or likely to identify, a child (his school or his address) as being involved in court proceedings to an individual or a number of individuals would not generally be a criminal offence.”
61.
Transparency in the Family Courts rightly suggests at para 5.54 that even membership of a closed Facebook group may well amount to a “section of the public” for the purposes of s. 97(2), but this does not answer the question whether a police officer, acting in accordance with his or her duties falls into the definition.
62.
It seems to me that the language of the amendment is seeking to do more than just to engage in a headcount of the recipients of a disclosure. Fundamentally it is looking at people acting as citizens, rather than in an official capacity. Thus it is logical to conclude that for the purposes of the potential criminal liability in s.97(2), the police, acting as police, are not a “section of the public”.
63.
In my view, disclosure of all or part of a judgment in current s.8 proceedings to a non-specialist police officer is not caught by s.97(2), and disclosure of any other papers derived from such proceedings is probably not caught, for the following reasons.
i)
The actual language used permits disclosures to bodies, even large bodies, provided that they are not to “the public” in whole or in part. It focusses on the public, behaving as the public, and not on people acting in an official capacity.
ii)
The passing of s 62(1) of the 2004 Act, adding the publication phrase, was in direct response to Re B and came into force on 12 April 2005.
iii)
Section 62(7) of the 2004 Act was likewise passed in direct response to Re B and came into force on that same day of 12 April 2005. This led to the Rule Committee working very quickly to formulate the table of disclosures excluded from the reach of s. 12, which included the disclosure of judgments to a non-specialist police officer. The amendment rules were made only 6 months later on 31 October 2005.
iv)
These two measures were a package. This is borne out by the explanatory memorandum to the 2005 Rules. This stated:
“4.2 Legislative changes have already been made. On 12 April 2005, section 62 of the Children Act 2004 came into force. This means that:
It is no longer a criminal offence for a party to family proceedings involving children to disclose orders to other individuals or bodies, so long as disclosure is not made to the general public or any section of the general public, or to the media; and
It will no longer be a contempt of court to disclose information where rules of court authorise circumstances in which specified information relating to family proceedings involving children and held in private could be communicated.”
v)
It would make no sense to allow disclosure of a judgment to the police (which inevitably would be likely to identify the child), but at the same time to criminalise such a disclosure if the proceedings were ongoing.
64.
My views amount to obiter dicta and a definitive decision must await an actual prosecution under s.97(2). I shall, however, proceed in this case on the footing that the disclosure made by the defendant to the police on 11 August 2020 did not contravene s.97(2).
65.
Therefore, in this routine s.8 application, there being no order from the court permitting a wider disclosure, the defendant on 11 August 2020:
i)
could have disclosed to the police the judgments given on 9 April 2018 and 8 April 2019 without fear of contempt proceedings, but
ii)
could not, on pain of contempt of court, have handed over (for example) a copy of the Cafcass report to the police officers, unless they were specialist officers.
Requirement of permission
66.
FPR 37.3(3) provides:
“A contempt application in relation to alleged interference with the due administration of justice, otherwise than in existing High Court or family court proceedings, is made by an application to the High Court under Part 19.”
67.
FPR 37.3(5) and (6) provide, so far as is material to this case:
“(5)
Permission to make a contempt application is required where the application is made in relation to:
(a)
interference with the due administration of justice, except in relation to existing High Court or family court proceedings;
(b)
…
(6)
If permission to make the application is needed, the application for permission shall be included in the contempt application, which will proceed to a full hearing only if permission is granted.”
68.
Breaches of s12 are to be seen as acts of interference with the administration of justice. In HM Attorney General v Pelling [2005] EWHC 414 (Admin) at [50] Laws LJ stated:
“In our judgment however, with great deference, this species of contempt is in truth an instance of interference with the course of justice. As we have shown that is the rationale of Lord Haldane's reasoning in Scott v Scott, with which Scarman LJ's own earlier observations in In re F, which we have already set out, are wholly consonant. Moreover it is plainly not a condition of contempt by publication that any express order of the court directing a private hearing should have been made.”
69.
See also HM Attorney General v Dowie [2022] EWFC 25 at [31] per MacDonald J, to the same end.
70.
If the family proceedings have concluded the application for permission must be made to the High Court under Part 19. This is because family proceedings which have concluded are no longer “existing”: HM Attorney General v Hartley [2021] EWHC 1876 (Fam) per Keehan J at [10]:
“It is irrelevant for the purposes of this rule whether the alleged actions which are relied upon in support of the committal application occurred when the family proceedings were in existence (i.e. before a final order was made) or after the proceedings had concluded with a final order. It is the date of the committal application or, as the case may be, the date of the application for permission to bring a committal application which is key in determining whether the family proceedings were existing or had concluded.”
71.
In this case it is accepted by all that on 5 December 2022 (the date of the claimant’s contempt application) the s.8 proceedings in question had been concluded with a final order. Permission from the High Court was therefore required to bring the application. Therefore, by my order of 1 February 2023 I reconstituted the claimant’s original application of 5 December 2022 as an application for permission and transferred the application to the High Court.
72.
The test on an application for permission to pursue contempt proceedings for an interference with the administration of justice was stated by Gloster LJ in Tinkler & Anor v Elliott [2014] EWCA Civ 564 at [44] following a comprehensive review of all the anterior authorities, and was summarised by me in Ahmed v Khan [2022] EWHC 1748 (Fam) at [51]. In each of those cases the alleged contempt was the making of a false statement which had been endorsed with a declaration of truth. Here the alleged contempt is the making of an unauthorised disclosure contrary to s.12. The test therefore requires to be modified for such a case. In my judgment, on an application for permission the claimant must demonstrate:
i)
a strong prima facie case that the defendant knew that (or did not care whether) the disclosed documents related to s.8 proceedings (irrespective of whether those proceedings had concluded);
ii)
that the public interest requires the committal proceedings to be brought having regard to:
a)
the importance of the statutory secrecy (see below),
b)
the circumstances in which the disclosure came to be made,
c)
its significance,
d)
the defendant’s motive for making the disclosure,
e)
the use to which it was actually put,
f)
its actual impact,
g)
whether the claimant has been guilty of the same conduct,
h)
any alternative redress obtained by or available to the claimant; and
i)
whether s. 97(2) has been contravened.
iii)
that the proposed committal proceedings are proportionate having regard to:
a)
the strength of the case against the defendant,
b)
the sanction that is sought by the claimant against the defendant,
c)
such amends and apologies that the defendant has given or proposed, and
d)
and the likely costs that will be incurred by each side in pursuing the contempt proceedings; and
iv)
that the proposed committal proceedings are in accordance with the overriding objective having regard, inter alia to
a)
the amount of court time likely to be involved in case managing and then hearing the application, and
b)
the fairness of the process generally.
73.
Mr Cohen submits that there is a substantial public interest in not imposing punitive sanctions on complainants who seek assistance from the authorities. Specifically, he argues that the restriction contained in s. 12 should not be construed to prevent a complainant from speaking to the police and seeking their help. This could, he submits, have the effect of lessening the willingness of another similar person to seek help from the authorities. It would be inimical, he argues, to the public interest to deter such persons from being able to seek help from the police and being discouraged from speaking out.
74.
However, to pursue an alleged breach of s. 12 requires a grant of permission and any action on an alleged breach of s 97(2) requires an independent decision to prosecute. These filters therefore are of great importance.
75.
There is a qualitative difference between a misguided unlawful disclosure to the police in furtherance of seeking personal and child protection measures and sending all the papers to a journalist or putting them up on Facebook or Instagram or other social media platforms in order to harm the other party or to denigrate the legal system. That difference is properly to be reflected in the permission decision where that is to be made.
Anonymity
76.
In the defamation proceedings the claimant and the child N have been granted anonymity by an order made by Master Eastman on 6 June 20223. The order suffers from the familiar defects which I identified in R (MNL) v Westminster Magistrates' Court [2023] EWHC 587 (Admin) namely that it has no end-date or territorial limitation.
77.
The grounds relied on by the claimant to obtain this order were twofold. First, he relied on the privacy afforded to the child N in the then ongoing s.8 proceedings and suggested that discussion of the issues in dispute in the defamation proceedings at an open hearing or in an open judgment would be liable to link the child, the claimant and the defendant to the Family Court proceedings and to undermine the confidentiality ordered by the Family Court in respect of those proceedings. Second, he relied on his past and intended future service as a Royal Marine in the armed forces, to which a high degree of confidentiality attaches. Personally, I consider the first reason, namely that the claimant is a civil litigant and at the same time a party to a s.8 proceeding, to be a very doubtful basis for derogating from open justice in a civil suit to be heard publicly. By contrast, the second reason does have validity, and the claimant will be granted anonymity for himself for that reason.
78.
Accordingly, the claimant having issued his contempt application sought an order anonymising himself and the defendant. My order of 1 February 2023 contains a recital which states that an issue to be determined is:
“whether the court can lawfully anonymise the respondent if the court finds that there has been contempt of court (which is what the claimant is seeking) considering whether the absolute bar on anonymising a respondent found to be in contempt as provided for in the Practice Direction of 26/3/15: Committal for Contempt of Court has endured after 1 October 2020 (the Court indicating that this is an important point of law that needs to be resolved)”
79.
My answer to that question is in the negative for the following reasons.
80.
Back in the day, RSC O52.r 6(2) provided (from 1 October 1966):
“If the Court hearing an application in private by virtue of paragraph (1) decides to make an order of committal against the person sought to be committed, it shall in open court state:
(a)
the name of that person,
(b)
in general terms the nature of the contempt of court in respect of which the order of committal is being made, and
(c)
if he is being committed for a fixed period, the length of that period.”
81.
Accordingly, a committal application could be heard in private but an actual order of committal could never be made secretly.
82.
This provision continued in existence notwithstanding the introduction of the CPR in 1998 until CPR Part 81 was introduced by the Civil Procedure (Amendment No.2) Rules 2012 with effect from 1 October 2012. CPR 81.28 provided:
“(5)
If the court hearing an application in private decides to make a committal order against the respondent, it will in public state:
(a)
the name of the respondent;
(b)
in general terms, the nature of the contempt of court in respect of which the committal order is being made; and
(c)
the length of the period of the committal order.
(Rule 39.2 contains provisions about hearings in private.)”
Accordingly, the invariable rule of naming a guilty contemnor was continued.
83.
It was reinforced by the Practice Guidance (Sen Cts: Committal Proceedings: Open Court) [2013] 1 WLR 1316, which provided:
“1.
It is a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court.
2.
This principle applies as much to committal applications in the Court of Protection (rule 188(2) of the Court of Protection Rules 2007 (SI 2007/1744)) and in the Family Division (FPR r 33.5(1)) as to committal applications in any other Division of the High Court.
3.
The Court of Protection and, when the application arises out of proceedings relating to a child, the Family Division, is vested with a discretionary power to hear a committal application in private. This discretion should be exercised only in exceptional cases where it is necessary in the interests of justice. The fact that the committal application is being made in the Court of Protection or in the Family Division in proceedings relating to a child does not of itself justify the application being heard in private. Moreover the fact that the hearing of the committal application may involve the disclosure of material which ought not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order.
4.
If, in an exceptional case, a committal application is heard in private and the court finds that a person has committed a contempt of court it must state in public (rule 188(3) of the Court of Protection Rules 2007; CPR Sch 1, RSC Ord 52, r 6(2)): (a) the name of that person; (b) in general terms the nature of the contempt of court in respect of which the committal order (committal order for this purpose includes a suspended committal order) is being made; and (c) the punishment being imposed. This is mandatory; there are no exceptions. There are never any circumstances in which anyone may be committed to custody without these matters being publicly stated.
5.
Committal applications in the Court of Protection or the Family Division should at the outset be listed and heard in public. Whenever the court decides to exercise its discretion to sit in private the judge should, before continuing the hearing in private, give a judgment in public setting out the reasons for doing so. At the conclusion of any hearing in private the judge should sit in public to comply with the requirements set out in para 4.”
(Emphasis added)
84.
The mandatory character of this provision was highlighted by Males J in EWQ v GED [2013] EWHC 3231 (QB) at [14]:
“14.
The [2013] guidance goes on to say that if in an exceptional case a committal application is heard in private and the court finds that a person has committed a contempt of court, it must state in public the name of that person, in general terms the nature of the contempt of court in respect of which the committal order is being made, and the punishment being imposed. That is a mandatory rule with no exceptions. So even if I order that the hearing of the application will take place in private, if the application is successful and the defendant is committed, at least her name and in general terms the nature of the contempt of court and the punishment imposed, will have to be stated publicly. That provision is now also to be found in CPR 81.28(5) .”
(Emphasis added)
85.
A similar course was followed with the FPR. FPR Part 37 was introduced by the Family Procedure (Amendment No. 2) Rules 2014 with effect from 22 April 2014. FPR 37.27(6) was in identical terms to CPR 81.28(5).
86.
The next development was the promulgation of the all-important Practice Direction (Sen Cts: Committal for Contempt of Court: Open Court) [2015] 1 WLR 2195. This states:
“Preamble
1.
This practice direction applies to all proceedings for committal for contempt of court, including contempt in the face of the court, whether arising under any statutory or inherent jurisdiction and, particularly, supplements the provisions relating to contempt of court in the Civil Procedure Rules, the Family Procedure Rules, the Court of Protection Rules 2007 (SI 2007/1744), and the Criminal Procedure Rules and any related practice directions supplementing those various provisions. It applies in all courts in England and Wales, including the Court of Protection, …
…
13.
(1) In all cases, irrespective of whether the court has conducted the hearing in public or in private, and the court finds that a person has committed a contempt of court, the court shall at the conclusion of that hearing sit in public and state: (i) the name of that person; (ii) in general terms the nature of the contempt of court in respect of which the committal order, which for this purpose includes a suspended committal order, is being made; (iii) the punishment being imposed; and (iv) provide the details required by (i) to (iii) to the national media, via the CopyDirect service, and to the Judicial Office, at judicialwebupdates@judiciary.gsi.gov.uk, for publication on the website of the Judiciary of England and Wales.
(2)
There are no exceptions to these requirements. There are never any circumstances in which any one may be committed to custody or made subject to a suspended committal order without these matters being stated by the court sitting in public.”
(Emphasis added)
87.
On 1 October 2020 a new CPR Part 81 and a new FPR Part 37 were substituted for the existing versions. On 1 January 2023 a new CoPR Part 21 was substituted for the existing version.
88.
The new CPR 81.8(6), FPR 37.8(11) and CoPR 21.8(11) are identical. They state:
“At the conclusion of the hearing, whether or not held in private, the court shall sit in public to give a reasoned public judgment stating its findings and any punishment.”
89.
These rules do not insist on the naming of a guilty defendant. Whether this was intended is debatable. If it was, then it represented a major departure from an ancient principle.
90.
Support for the view that this change was intended is given by the CPR Practice Direction Amendments which took effect on 1 October 2020 by virtue of the CPR 122nd Update. The amendments were made by the Master of the Rolls under the powers delegated to him by the Lord Chief Justice under Schedule 2, Part 1, paragraph 2(2) of the Constitutional Reform Act 2005, and were approved by the Lord Chancellor. The all-important 2015 Practice Direction was very deliberately amended to exclude from its operation committal proceedings governed by CPR Part 81, but not otherwise. The update stated:
“(1)
In the preamble –
a) for “This” substitute “Except in relation to proceedings for contempt of court to which Part 81 of the Civil Procedure Rules 1998 apply, this”;
b) omit “the Civil Procedure Rules 1998,”; and
c) for “It applies” substitute “Except to the extent that Part 81 of the Civil Procedure Rules 1998 applies, this Practice Direction applies”.
91.
These amendments appear to reflect a positive intention to remove the mandatory naming of a guilty defendant in committal proceedings under the CPR. The White Book is not so sure. It states at 81.8.3:
“Unlike the Committals PD, r.81.8 is silent on the question of anonymisation of the defendant to a committal application. Paragraph 13(1)(i) of the Committals PD required at the conclusion of committal proceedings, where the defendant was subject to a committal order or suspended committal order, to identify them at a public hearing. It is suggested that the approach to be taken to defendant anonymisation under r.81.8 read together with r.39.2(4) ought to be consistent with the intention underpinning the Committals PD, i.e. that no defendant should be committed to custody for contempt without the reasoned public judgment (r.81.8(6) and (8)) identifying them such that no one is imprisoned anonymously.”
92.
The preamble to the 2015 Practice Direction therefore now reads (showing the amendments):
“Preamble
1 This Except in relation to proceedings for contempt of court to which Part 81 of the Civil Procedure Rules 1998 apply, this practice direction applies to all proceedings for committal for contempt of court, including contempt in the face of the court, whether arising under any statutory or inherent jurisdiction and, particularly, supplements the provisions relating to contempt of court in the Civil Procedure Rules, the Family Procedure Rules, the Court of Protection Rules 2007 (SI 2007/1744), and the Criminal Procedure Rules and any related practice directions supplementing those various provisions. It applies Except to the extent that Part 81 of the Civil Procedure Rules 1998 applies, this Practice Direction applies in all courts in England and Wales, including the Court of Protection, …”
93.
This makes two things absolutely clear. First, for committal proceedings proceeding under CPR Part 81 the mandatory naming in public of a guilty defendant is no more, whatever the White Book might say. Concomitantly the rule continues in force for committals in all other courts. If there were any doubt about this, it is dispelled by the Notice dated 20 August 2020 on the Judiciary Website4 entitled “Updated: Practice Direction on Committal for Contempt of Court in Open Court”. It states:
“Except in relation to proceedings for contempt of court to which part 81 of the Civil Procedure Rules 1998 apply, this Practice Direction applies to all proceedings for committal for contempt of court, including contempt in the face of the court, whether arising under any statutory or inherent jurisdiction and, particularly, supplements the provisions relating to contempt of court, the Family Procedure Rules 2010, the Court of Protection Rules 2007, and the Criminal Procedure Rules 2015 and any related Practice Directions supplementing those various provisions.”
Except to the extent that Part 81 of the Civil Procedure Rules applies, this Practice Direction applies in all courts in England and Wales, including the Court of Protection …”
94.
On 1 October 2022 the Family Procedure Rule Committee issued an updated PD 37A when the new FPR Part 37 was promulgated alongside its CPR twin. But no equivalent amendment was made to the 2015 Practice Direction by that update.5
95.
Similarly, the CoPR Practice Direction update of 1 January 2023 made no equivalent amendment to the 26 March 2015 Practice Direction when promulgating the new CoPR PD 21A.6
96.
Therefore, unlike committal proceedings under CPR Part 81, the 2015 Practice Direction remains fully in force for committal proceedings issued under FPR Part 37 or CoPR Part 21.
97.
This is not well known. In the committal case of Sunderland City Council v Macpherson [2023] EWCOP 3 Poole J considered CoPR 21.8(5) (which is in identical terms to CPR 39.2(4) and FPR 37.8(5)). This provides:
“The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”
98.
He assumed that this provision could certainly apply to protect the interests of the defendant, but doubted whether it could apply to protect the interests of the protected person: see [38].
99.
At [40] he held:
“Balancing all the circumstances in this case, the respective Art 8 and Art 10 rights, and bearing in mind s. 12(4) of the HRA 1998, and the new COPR Part 21, I have decided that I should allow the Defendant’s name to be reported as the defendant to these committal proceedings and I shall amend the Transparency Order accordingly. All parties, including FP through her litigation friend, agree that that is the appropriate course. I shall therefore permit reporting of the defendant’s identity in these committal proceedings. However, reporting of the identity of FP and the place where she is living and being cared for, currently Placement 3, is not permitted, whether that reporting is in relation to the substantive Court of Protection proceedings or the committal proceedings against the Defendant.”
100.
I agree that this is an appropriate and correct approach to adopt for all the stages of the litigation up to a finding that the defendant was guilty of contempt. It must be possible for the court to keep the defendant’s name under wraps while the committal hearing proceeds and to leave it under wraps if she is acquitted of contempt. However, it is vital to keep in mind that all such discretionary power comes to an abrupt halt once the defendant is found guilty.
101.
It follows that if a defendant in proceedings governed by FPR Part 37 or CoPR Part 21 is found to have committed a contempt then that defendant must be named in open court and in general terms the court must state what is the nature of the contempt of court and what punishment, if any, has been imposed. Whether the continued existence of the 2015 Practice Direction for such proceedings is the result of happenstance or was deliberately intended I cannot tell, but I am personally satisfied that it is well-justified and that there should never be the possibility of a defendant in any circumstances being found guilty and of, and sentenced for, contempt anonymously.
102.
The upshot is that the defendant before me faces these proceedings knowing that she will be named in open court if she is found guilty of contempt. She also knows that there are good reasons to anonymise the claimant having regard to his role in the armed forces, and that he will be anonymised. The asymmetric position of the parties will need to be weighed in the permission exercise balance.
The permission factors
103.
I consider the following matters to be relevant when applying the permission test.
Strength of the case
104.
No-one has suggested that the defendant’s disclosures were to specialist officers. Had they been then she would not have been in contempt.
105.
The defendant has admitted that she breached s.12 and she has apologised to the claimant and to the court.
106.
The strength of the case against the defendant is therefore maximal.
Public interest
107.
The public importance in maintaining the secrecy of key documentation in s.8 proceedings is high. All unauthorised disclosures compromise that importance.
108.
However, that importance is less compromised where the disclosure is made to the police in furtherance of personal and child protection measures (see above).
109.
It is true that the defendant could have made sufficient lawful disclosure to the police by showing them the two judgments referred to above and that therefore the disclosure that she did make was gratuitous. This could be seen as an aggravating factor.
110.
However, that she should be in contempt because she made the disclosure to the wrong type of police officers does point up the arbitrary and technical quality of her misconduct.
111.
The disclosure having been made to the police, s. 97(2) was not breached.
112.
The motivation of the defendant in making the disclosures on 11 August 2020 was to seek protection measures for herself and the child. It is possible, although I cannot make a finding to this effect, that this motive was reinforced by an ancillary intention to cause the claimant embarrassment, inconvenience or even worse.
113.
The unlawful disclosure comprised the DAPP suitability appraisal of 27 September 2018 which contained a good deal of highly critical, and thus prejudicial, material in it about the claimant.
114.
On the other hand it also comprised a copy of the claimant’s position statement for the FHDRA for 18 March 2020 which by definition was highly partial in his favour.
115.
It is unlikely that the police would have been able to write the defamatory email on 25 August 2020 without a copy of the DAPP document.
116.
The result of the sending of that letter has been a preliminary issues judgment in the defamation proceedings favourable to the claimant from Johnson J on 25 July 2022 with a consequential acceptance of liability by the police. This will no doubt lead to substantial damages being awarded in the claimant’s favour.
117.
The claimant has therefore already received, and will receive, substantial redress for the misuse of this document against him.
118.
The claimant has himself been found to have breached s. 12 by supplying documents derived from the s. 8 proceedings to his own mother.
Proportionality
119.
Duplication of issues across different jurisdictions should be avoided. The claimant will vindicate his position and reputation in the defamation proceedings.
120.
The claimant does not seek a committal, a suspended committal or a fine to be imposed on the defendant by way of sanction. He seeks that she be admonished and that a judgment be issued that deters any such conduct in the future.
121.
The cost of a full contempt hearing will be high. The two represented parties (the defendant and the police) will be spending public funds on their representation.
Overriding objective
122.
If permission were given there will be is a stark asymmetry whereby the claimant will be fully anonymised but the defendant will face full public opprobrium when she is found guilty (as is inevitable were the case allowed to go forward).
123.
The time spent on a full contempt hearing would be at the expense of other crucial work needed to be done by judges of the Family Division.
Decision
124.
I have carefully weighed the above factors. I refuse permission for the following main reasons:
i)
the defendant’s breach of s. 12 has technical and arbitrary aspects to it. She would not have been in breach had she made the disclosure to specialist police officers;
ii)
although the defendant has admitted the contempt, the claimant does not seek any sanction against her beyond an admonishment which I can deal with in this judgment;
iii)
although the impact on the claimant of the breach of s.12 was serious, he will receive substantial redress by way of compensation, and vindication to his reputation, in the defamation proceedings;
iv)
it is disproportionate for the same issues to be litigated simultaneously in two separate jurisdictions;
v)
the disclosure was made by the defendant when seeking the assistance of the police for herself and the child. The ability of people in the position of the defendant to seek the assistance of the police should not be unduly inhibited by the spectre of facing contempt proceedings;
vi)
the time to be spent on contempt proceedings and their costs (falling entirely on public funds) cannot be justified in the circumstances;
vii)
it is not proportionate to allow the claimant to pursue the defendant for breach of s.12 where he himself has been guilty of doing the same thing (pots and kettles come to mind); and
viii)
it would not be fair and just for contempt proceedings to go ahead on the footing that, whatever the result, the claimant would not be identified, but that the defendant would, on a formal finding of contempt being made against her, be named in open court. While this asymmetry might be justified in some cases, it is not justifiable in this one.
125.
The defendant must understand that however harried she may have felt on 11 August 2020, it was absolutely forbidden for her to show the (non-specialist) police officers any documents from those proceedings, other than judgments or orders, or indeed to tell the officers in conversation anything more than the gist allowed by the Re PP taxonomy, which was not in those judgments or orders. If she wanted to do that then she needed to obtain an order from the court allowing it. That is what the law says, and that is the law that must be obeyed until and unless it is changed.
126.
I therefore admonish the defendant for her breach of s.12.
127.
I have already decided that the claimant is entitled to anonymity on this application for the reasons set out above. This is a permission application and not a substantive committal application and therefore the mandatory naming of the defendant under the 2015 Practice Direction does not apply. Therefore, in order to give the claimant the full benefit of anonymity, and in order to protect the interests of the child, I further order pursuant to FPR 37.8(5) that the identities of the defendant and the child shall also be anonymised. The anonymity orders shall be subject to the usual Babanaft territorial proviso and shall last for two years from the date of this judgment (but an application, supported by clear and cogent evidence, may be made prior to the end-date for their extension).
128.
Counsel shall agree the terms of the order refusing permission and of the anonymity order.
Final points
129.
I respectfully suggest that the Rule Committee needs to take a serious look at these Byzantine rules covering what parties can lawfully disclose to the police. Parties to s.8 proceedings seem to be forced to walk across a minefield of potential contempts and crimes if they seek the assistance of the police while the proceedings are ongoing. It has taken me many hours to get to the bottom of the exact scope of the rules. It is unacceptable that something so important should be so obscure, impenetrable, arbitrary and illogical.
130.
The position whereby the 2015 Practice Direction continues in existence in Family Division, Family Court and CoP committal proceedings but not in KBD or County Court committal proceedings is equally obscure and bizarre, and likewise needs to be looked at urgently.
131.
Although this judgment does no more than formally to record a refusal of permission it does not fall within Para 6.1 of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, and therefore may be cited as a case-law authority.
132.
I received a request from the claimant for amplification of the judgment distributed in draft pursuant to FPR PD 30A para 4.6. I can confirm that paras 11, 14 and 16 reflect the claimant’s request.
__________________________
1 https://www.judiciary.uk/judgments/tjm-v-chief-constable-of-west-yorkshire-police-anonymity-order/
2 The Family Proceedings Courts (Miscellaneous Amendments) Rules 2005 (SI 2005/1977) amended the Family Proceedings Courts (Children Act 1989) Rules 1991 for s.8 proceedings heard by Magistrates to the same end.
3 See Footnote1
4 https://www.judiciary.uk/guidance-and-resources/practice-direction-on-committal-for-contempt-of-court-open-court/
5 https://www.justice.gov.uk/courts/procedure-rules/family/PD-update-october-2020.pdf
6 https://www.judiciary.uk/wp-content/uploads/2023/01/PRACTICE-DIRECTION-21Audated-Jan23.pdf
Council wins appeal over order giving mother leave to oppose adoption
April 21, 2023
The Court of Appeal has allowed a council’s appeal and discharged an order granting permission for a mother to oppose her child’s adoption.
In M (A Child: Leave To Oppose Adoption) [2023] EWCA Civ 404 Lord Justice Peter Jackson concluded it was in “nobody's interests” for the mother to become involved in further proceedings which “could only have one outcome”.
Outlining the relevant legal framework, the Court of Appeal judge said that Section 47(5) of the Adoption and Children Act 2002 ('the Act') provides that where a child has been placed with prospective adopters under a placement order a parent or guardian may not oppose the making of an adoption order without the court's leave.
He added that Section 47(7) states that the court cannot give leave unless it is “satisfied that there has been a change in circumstances since the placement order was made”.
Lord Justice Peter Jackson said the court’s power to grant leave to a parent to oppose the making of an adoption order existed so that cases were not missed where during the passage of time between the placement order and the adoption hearing the situation had changed in such a way that adoption was no longer the appropriate outcome.
The Court of Appeal judge said he would state the essential questions for the court when it decides an application for leave to oppose the making of an adoption order in this way:
Has there been a change in circumstances since the placement order was made?
If so, taking account of all the circumstances and giving paramount consideration to this child's lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?
Lord Justice Peter Jackson sets out the correct approach to be taken to these questions in paragraphs 8 to 25 of the judgment. Amongst other things, the Court of Appeal judge specifically rejected the approach taken by Mostyn J in Re SA that the change of circumstances must be unexpected or unforeseen.
Lord Justice Peter Jackson also suggested that the essential question for the court at the second stage was this: “Taking account of all the circumstances and giving paramount consideration to this child's lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order? By asking this question, the court ensures that it focuses firmly on the individual child's welfare in the short, medium and long term with reference to every relevant factor, including the nature and degree of the change that it has found, the parent's prospects of success, and the impact on the child of contested proceedings.”
He added: “In framing the essential question in this way, I do not overlook the fact the parent is seeking leave to oppose the making of this specific adoption order. However, in the great majority of cases, the basis of the proposed opposition is that the child should not be adopted at all. Much less frequently, the opposition may involve an objection to the specific identified adopters, and in those cases, the factors to be taken into account when answering the question will need to be adapted accordingly.”
The case concerned an appeal brought by a county council against a decision to grant leave for a mother to oppose an adoption order. The Children's Guardian supported the appeal, while the mother opposed it.
The child concerned, W, will soon be three years old. At the time of her birth, her mother was 17 and her father was 15.
Both parents had experienced difficult childhoods. The mother was sexually abused by her stepbrother, and had suffered from “long-standing mental ill-health”, with diagnoses of anxiety, depression, panic attacks and post-traumatic stress disorder, said the Court of Appeal judge.
The mother had self-harmed and attempted suicide. The father, who was himself adopted at a young age, had also self-harmed and attempted suicide.
The local authority issued proceedings on the day W was born. On discharge from hospital she was placed in a mother and baby foster placement with her mother. Whilst in the placement, “concerns were raised in respect of a lack of stimulation and communication from the mother towards W and a lack of insight in respect of her basic needs”, said Lord Justice Peter Jackson.
He added that in early October 2020, the mother “chose to leave the mother and baby foster placement in order to concentrate on her own mental health” and returned to live with her mother. W remained in foster care.
Assessments carried out by a forensic psychologist and an independent social worker during care proceedings both recommended therapy and counselling for the mother.
On 24 February and 12 March 2021, a two-day final hearing took place before Her Honour Judge George, in which she made care and placement orders.
HHJ George approved a threshold document that described the mother's mental health difficulties, which prevented her from giving safe care to W when under stress.
Lord Justice Peter Jackson noted it also described the conditions in the home of the grandmother as “not being a safe environment for a baby due to aggressive outbursts from the mother's brother”.
Further, that the relationship between W’s parents was “volatile”. In the father's case, he had “cognitive difficulties, a history of cannabis use that would prevent safe care of a baby, and he had associated with risky persons”.
After the placement order was made, the parents each had a final meeting with W in July 2021. W was matched with prospective adopters, with whom she was placed in September 2021, aged 16 months. In April 2022, the adoption application was issued.
Lord Justice Peter Jackson said that having been served with the adoption application, the mother wrote a letter to the court, “which it treated as an application for leave to oppose”. At a hearing in August 2022, the father made an oral application for leave to oppose.
The hearing took place in November 2022 before Recorder Pemberton.
The mother had prepared a hand-written statement, which, as outlined by Lord Justice Peter Jackson, said that “she loves and could safely care for W, she is no longer associated with the father, and happy in a new relationship. Separation from W had caused her mental health to decline so that she required hospital treatment, but she was now stable and had not self-harmed in nearly a year.”
She wrote that “she had turned up, well-prepared, to nearly every contact with W. Her mother's house was not an unsafe environment, and her brother was not a danger to anyone. She was in regular touch with her CPN [community psychiatric nurse], she had done a 12-week life skills course at the Prince's Trust and was now able to get out of the house a lot more often than before”, Lord Justice Peter Jackson said.
However, the social worker's statement drew attention to the fluctuating history of the mother's mental health” and noted that the identity of the mother's new partner, with whom she hoped to live, was unknown and any risks were unassessed.
Lord Justice Peter Jackson said that as for W, the social worker expressed the opinion that she would be likely to experience regression, confusion and stress as a result of a further move. The social worker said that W was “happy and settled” in the care of her prospective adopters, who were “committed to and attuned to meeting her needs”.
The Court of Appeal judge commended the Recorder for a “notably well-organised ex tempore judgment”, in which the Recorder “rehearsed the procedural history and summarised the positions of the parties. She then addressed the question of change of circumstances”.
In her judgment (para 44), Recorder Pemberton said:
“I weigh in favour of finding a sufficient change in circumstances, the fact that:
the Mother has gone almost 12 months without any self-harm. In my view, this level of improvement should not be underestimated;
she is about to be discharged from the community mental health team;
she has improved on her anxiety to such an extent that she feels more able to leave the house;
she has started to live, or shortly will be living, independently; and
she undertakes voluntary work and is trusted with vulnerable people.
She said: “Putting everything into the balance, as a fact I conclude that Mother has demonstrated a sufficient change so as to satisfy Stage 1.
“I do not ignore that the experts' recommendations have not been followed, but I have evidence that the Mother has not self-harmed for almost 12 months and that her mental health is sufficiently to enable her to be discharged from the community mental health team. In my judgement, this is a factor which tips the balance in the Mother's favour."
Turning to consider the welfare of W, Recorder Pemberton said: “At Stage 2, the Court's paramount concern is W's welfare in the long term. It is the extended Welfare Checklist at section 1(4) of the 2002 Act, which I apply to my decision.
“The fact that W is already placed with prospective adopters is not, of itself, enough of a reason to refuse leave. I have to take the long-term view and must not be deterred by the prospect of short-term disruption, but I have to be satisfied that the Mother's ultimate prospects of success have solidarity i.e., they are more than fanciful.”
She later continued: “As to the impact that the granting of leave would have of W, I take into account that W has been with her prospective adoptive parents for 14 months. While this is not, of itself, sufficient to refuse leave, it is a very real factor to take into account.
“Further, granting leave will likely introduce further delay. It will be to introduce instability and, invariably, upset to her prospective adoptive parents, which in turn will likely, or could likely, have an impact on W. While W is too young to have an awareness of these proceedings, so far as she is concerned, the people with whom she lives are the only carers she has known and are her parents.”
Recorder Pemberton granted leave to the mother and refused leave to the father.
Lord Justice Peter Jackson outlined the Recorder’s concluding statements as follows:
“[…] I am not satisfied that W's welfare demands the refusal of leave. In light of W's age, the delay which will be caused by holding a contested hearing will not unduly prejudice or risk the security of that placement.
“In respect of Mother's application therefore, I do grant her leave to oppose the Adoption Order. What happens after that point may be something very different to that which Mother hopes for, but that is a matter for another day."
Outlining the local authority’s appeal against the decision, Lord Justice Peter Jackson said that Ms Sarah Beasley, on behalf of the county council, challenged both stages of the Recorder's decision.
“As to change of circumstances, she does not contest the five factors listed by the Recorder at para. 44 but argues that insufficient weight was given to the fact that the mother had not undertaken the therapy and courses recommended by the experts in the previous proceedings”, Lord Justice Peter Jackson said.
After considering submissions from both parties, Lord Justice Peter Jackson said: “No one learning about the mother's childhood experiences and her acute difficulties as a young person could fail to admire the distance that she has travelled in the past year. However, the court's decision in respect of her application depended on a clear-eyed assessment of W's welfare.”
He went on to say he considered the decision to grant leave was wrong for three reasons:
1. The Recorder “erred in the way in which she carried forward her conclusion about change of circumstances in her welfare assessment. At para. 59 she said that it followed from her finding of a sufficient change of circumstances at the first stage that the prospects of success were more than merely fanciful. In fact, it did not follow. This was a case where the reasons for the placement order were overwhelming.”
2. The Recorder “did not confront the wall of evidence that established that rehabilitation was plainly not likely to be in W's interests. For example:
- She listed a number of matters about the mother's circumstances, but did not then go on to give them the weight that they evidently deserved.
- The Recorder noted that the mother's ability to cope in independent living was untested, but gave no apparent weight to that factor.
- She treated the new relationship and the lack of domestic abuse work, a parenting course or a cookery course in the same way.
- She recognised that W’s present carers were the only carers W had known and were now her parents. “But once again, this received no analysis, and the decision swiftly followed.”
3. The Recorder “noted the professional evidence of the social worker and the Guardian, set out above, but she did not heed it or explain why she was departing from it. Their opinion was that it was (in the Recorder's words) "plainly and unequivocally" not in W's interests to disturb her position with her new family.”
Concluding the judgment, Lord Justice Peter Jackson said: “Finally, I cannot accept Ms Foulkes' [counsel for the mother’s] argument based on the opinion of the CPN [community psychiatric nurse] that no concerns have been identified regarding the mother's ability to care for a child. That was not a matter on which the CPN was equipped to advise the court and the Recorder rightly did not rely upon it.”
He added: “Nor would I accept the argument that it might be right to allow the mother to oppose, even with poor chances, so that W can know in future that her mother tried everything. As these proceedings show, the mother has tried everything, and it is in nobody's interests for her to become involved in further proceedings which could only have one outcome.”
Lord Justice Peter Jackson allowed the appeal and discharged the order granting permission for the mother to oppose W's adoption.
Lord Justice Holroyde and Lady Justice Macur agreed.
Lord Justice Peter Jackson also addressed a point of practice around transcripts of judgments in placement order proceedings.
He said a decision to approve adoption as a child's care plan was “of huge importance” to the child, to the birth family and to the adoptive family.
“The reasons for the decision will appear in a judgment or in justices' reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary,” he said.
The Court of Appeal judge added that a further reason for creating a record of the reasons for a placement order was that the order may not be the end of the litigation about the child. “The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.”
Accordingly in his view, Lord Justice Peter Jackson said that when giving reasons for making a placement order, “the court should always order the local authority to obtain a transcript of its judgment unless it has handed down a written version or made arrangements for there to be an agreed and approved note”. The same applied in cases where a final care order was made, though that was not the focus of this appeal, he added.
https://www.localgovernmentlawyer.co.uk/child-protection/392-children-protection-news/53636-council-wins-appeal-over-order-giving-mother-leave-to-oppose-adoption?fbclid=IwAR0X_ahL9xBEIXCu74vlWrlfcU-chX2hx6tpqhoo4R1uU6vF6Vd29JFQWL4