ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE HEDLEY)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE STANLEY BURNTON
|IN THE MATTER OF M (CHILDREN)|
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Mr Tim Parker and Ms R Rahal (instructed by Hodge Jones and Allen LLP) appeared on behalf of the Respondent.
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Lord Justice Thorpe:
"It must be inferred, from the fact that the Magistrates accepted jurisdiction, that these were in the great scale of things comparatively minor indecent assaults. That is to be inferred not so much from the sentence but from the fact that the Magistrates accepted jurisdiction "
"The reasonable inference from that, in the circumstances of this case, was because satisfactory progress had been made under it."
"This case raises the question as to whether the court and the relevant Local Authority can or should compel reluctant parents to permit disclosure to their children of the fact that the father had been convicted of sexual assault on his daughters by a previous marriage when they were still children. In other words, is this an issue in which the state has a legitimate interest, or is it one of those issues arising within family life which should be determined, as almost all family issues are by the parents "
"We are dealing here with parents who outside the matters considered in this judgment have ensured that the needs of the children are met. They are educated and responsible citizens and the natural inclination of the court should be that what they think is best for their children should be respected."
"I accept that that leads to a diminution of risk. Both parents give intellectual assent to the continued existence of that risk, but my strong impression is that they are not convinced that it is actually a real issue. But the reality is, in truth, otherwise, as Dr Freedman explains. Whilst I accept that there has been a real diminution in risk, that which remains is serious enough to be treated as something meriting the state's active concern."
"36. In the end, I am quite clear in my mind that now is the time which these children should be told. It is, in my judgment, wholly contrary to their welfare that they should continue to be involved, albeit unknowingly, in what can only really be termed a deceit, and it is wholly contrary to their welfare that they should be at risk of an unplanned disclosure, or worse still, one compelled by the incidence of circumstances.
37. In my judgment, their welfare requires that they know why what is happening to them is in fact happening, why keep safe work is required, why contact with the father is so restrictive and artificial. I specifically acknowledge that it will come at no small cost to them personally, especially, as may well be the case, that they have no inkling presently that something is afoot. In my view, that cost will not diminish significantly between now and when they are actually going to find out one way or the other, and that is a time which I think is likely to be sooner rather than later, and it is a cost that will be more easily and more effectively borne in a structured and supported plan of disclosure."
"Whatever the reasons may have been, no one sought to oppose in principle the entitlement of the Local Authority to make an application under Part IV of the Children Act 1989. But, of course, the consequence of making such an application is that the Local Authority must, for a final order, establish the threshold criteria under Section 31(2) of the Act, and for the purposes of an interim order must establish it to the extent required under Section 38 (2) of the Act."
"It seems to me that the threshold criteria are made out against the father. There is a likelihood of serious harm attributable to the risk that by reason of his conviction, and the expert evidence, he may sexually abuse these children. That in my judgment is sufficient of itself to found jurisdiction under section 31(2), a fortiori under section 38(2). I am not acknowledge the protective regime that has been put in place, but, in reality, in a case like this such a regime is always vulnerable to breach. In my view, the substantial arguments against disclosure that were advanced by Mr Anthony Hayden QC on behalf of the mother are more properly considered at the second stage of considering whether to make any order in this case. I do not make, because I do not need to make, any specific finding against the mother under Section 31(2), but I am satisfied, on the history, and of the knowledge that she had, and has always had, about these matters that section 38(2) of the criteria are fulfilled, although, as I say, the fulfilment of the criteria against one parent is quite sufficient to open the welfare jurisdiction of the court. "
Lord Justice Longmore:
Lord Justice Stanley Burnton:
"I have given this case my closest and most anxious consideration and am fully aware of the significance of the issues at stake and the deeply held views of the parents."
Order: Appeal dismissed