Case No: B4/2011/0658
Neutral Citation Number: [2011] EWCA Civ 1035
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE HEDLEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Friday 1st July 2011
Before:
LORD JUSTICE THORPE
LORD JUSTICE LONGMORE
and
LORD JUSTICE STANLEY BURNTON
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IN THE MATTER OF M (CHILDREN)

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( DAR Transcript of
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Mr Anthony Hayden QC and Mary Hughes (instructed by Eskinazi and Co) appeared on behalf of the Appellant.
Mr Tim Parker and Ms R Rahal (instructed by Hodge Jones and Allen LLP) appeared on behalf of the Respondent.
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Judgment

Lord Justice Thorpe:

1. Permission to appeal in this case was given by Munby LJ, who quite rightly saw the issue as an unusual one that merited the consideration of the full court.  The application that he considered on paper was for permission to appeal the order of Hedley J of 11 February 2011 granting the local authority's application for an interim care order of a highly unusual character.  It was sought only to vest the local authority with power to carry out the sensitive transmission of information to the three children of the family of history in their father's first marriage from which they had been guarded by the combined decision of their parents.

2. Now what is the history? Well the parents are respectively: mid fifties the father, mid-forties the mother. The father had a prior marriage in which he had two girls and, as Hedley J records in paragraph 2 of his judgment, in July 1988 at the magistrates' court in Kent the father pleaded guilty to two offences of indecent assault, one against the older child aged nine the other against the younger child aged five.  For that he was given probation for three years with a condition of psychiatric treatment for 12 months. The probation order was discharged in February 1991.  Hedley J, with his considerable experience of criminal proceedings, put this in perspective for us. He said in relation to the probation order :
"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 "
3. Then in relation to the discharge he said: 
"The reasonable inference from that, in the circumstances of this case, was because satisfactory progress had been made under it."
4. The meeting and marriage of the parties to this appeal was some time in the 1990s and resulted in marriage and the birth of three children, a girl who is now 14, a boy of 11 and a boy of 9.  The marriage fell into difficulties and the parties sought couple counselling, during the course of which the father revealed to the counsellor that his perverted sexual relationship with the children of his first marriage was much, much more serious than had been discovered contemporaneously and indeed the disclosure, not only to the counsellor but subsequently to Dr Freedman at the Portman, shows that he was charged and sentenced in 1988 on a completely false basis. It is of course much to his credit that the reality emerged from his own lips during a process in which he was seeking to save the relationship, the marriage and the family life.  However, his disclosure to the counsellor led to a child protection conference convened by the relevant local authority and, when the referral to Dr Freedman of the Portman resulted in even graver revelations, the children were made subject to a child protection plan in the London borough to which the family had moved.  

5. There were processes both administrative and child protective in the course of which a division emerged between the mother and the local authority in particular.  The division of opinion was not as to whether the three children of this family should know of their father's abuse on the children of his first marriage, but rather when they should be so informed, and accordingly legal proceedings were initiated.  The local authority initially applied in the county court for a specific issue order under section 8 of the Children Act 1989.  The District Judge in that court ordered a section 37 report and when that was made available care proceedings were lodged and they were transferred to the family division of the High Court.  

6. As Mr Anthony Hayden QC has submitted, this was a highly unusual public law application in that it was a single issue case.  There was only one point in the case, namely when should the children be told, and the local authority sought to be empowered with parental responsibility only in order to have control of the time of disclosure and the manner of disclosure.  So Mr Hayden draws attention to the judge's neat definition of the issue in his first paragraph thus :
"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 "
7. Mr Hayden also emphasises paragraph 35 in which the judge said:
"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."
8. Mr Hayden has submitted, in my view correctly, that the issue identified by the judge was to be determined by child welfare considerations and not by the application of any sort of principle of right to know vested in the children.  

9. The judge defined the approach that he should adopt in the same paragraph, 35, when he says that in order to impose his view on reluctant parents there was a need for "the court to be satisfied both that the welfare of these children requires disclosure now and that non-disclosure now is demonstrably contrary to their welfare."

10. I am quite clear from that citation and indeed from the judgment as a whole that that was the approach that the judge adopted and his reference to the children's right to know was essentially contained within his recording of the submissions of the children's guardian.  

11. Mr Hayden has emphasised that in at least two passages of the judgment paragraphs 25 and 29 the judge candidly disclosed his personal views on the issue that was to be decided.  Mr Hayden has suggested that the consequence was a distortion of the balancing exercise that the judge ultimately conducted or a deflection from the essential issue that he had to decide.  I say at once that I see nothing in the paragraphs to which Mr Hayden has drawn attention that supports the suggestion of that consequence.  Judges inevitably bring to any welfare decision their own predispositions, their own convictions, their own prejudices, all of which or most of which will be drawn from their life experience both as a lawyer and as a human being.  Hedley J has the widest experience as a family lawyer and indeed as a criminal lawyer and he was inevitably bringing to the resolution of this difficult case all his accumulated experience.  

12. Mr Hayden, in a skilful and well constructed oral argument, has raised a number of fundamental criticisms.  He says that the risk that the judge has measured is an exaggeration of the reality following the separation of the parents some four years ago and the adoption of a regime within which the father never has contact with the children unless there is another adult on the scene.  That there were these sensible arrangements was fully recognised by the judge, but in the evaluation of risk he was quite right to make findings, largely dependent on the opinion of Dr Freedman, who was the only expert to assess that central question.  It is not necessary for me to read the summary of her opinion, it is set out in paragraph 10 of the judgment below by way of citation, but having identified a number of factors that point to risk Dr Freedman concluded "I cannot rule out that he might pose a risk in future"

13. The judge in paragraph 12 accepted the factors of diminution relied upon by Mr Hayden and he said: 
"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."
14. That last citation is central to Mr Hayden's argument that fundamentally this was an issue of timing and one essentially for the exercise of parental decision making and responsibility.  He says that this was a delicate question and it was one that should be solely entrusted to the parents.  The state should be absent from the scene.  How could it be said to be necessary for the state to intervene for the protection of the children? Well the answer to that submission lies essentially in the evidence of Dr Freedman and the very point that emerges from the citation in paragraph 12 of the judgment. There is a real risk, it is a continuing risk and it is one that would be partially diminished by granting the local authority's application and allowing them to undertake the disclosure.  

15. In the end this is a classic case of a careful balanced explanation from an experienced family division judge of why, out of the two alternatives presented, one by the local authority (now), the other by the mother (at some uncertain future date), he chose the proposal of the local authority over that of the mother.  It is manifest that he correctly directed himself as to the law.  It is manifest that he correctly directed himself as to his task.  It is manifest that he correctly directed himself as to the essential choice.  So, the only remaining argument for the appellant is that he has somehow failed to carry out the balancing exercise correctly, either by ignoring some relevant factor or by giving undue weight to another.

16. Now here the judge is very plain in explaining his process of reasoning to conclusion.  In paragraph 30 he carefully identifies the factors which favour the grant of the local authority's application, namely the application to tell the children now. In paragraphs 31 and 32 he then marshals the considerations that support Mr Hayden's submission that the consequence of telling the children now would be to expose them to a wide range of risks which would be far better avoided by leaving the disclosure to the judgment of the mother and the timing of that disclosure to her too. 

17. So, having so categorised the factors that he took into account he then explained in paragraphs 33 to 37 inclusive, why he chose the local authority's proposal in preference to that of the mother.  His essential conclusion is expressed in paragraphs 36 to 37 when he said: 
"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."
18. So it seems to me that this is an admirably balanced judicial decision on an admittedly unusual and difficult issue.  The judge has directed himself correctly and he has explained his discretionary conclusion with admirable economy and lucidity.

19. It only remains for me to deal briefly with a second submission advanced by Mr Hayden, which had it force, would surely have been advanced as his primary submission, for at the end of his skeleton criticising the judgment he adds, almost as a footnote, that the jurisdictional path chosen by the parties in the court was in fact unsustainable.  Mr Hayden rightly submits that the local authority applying for an interim care order have to satisfy the provisions of section 31 and section 38 and that the relevant date for the judicial inquiry must be the date of issue.  So, says Mr Hayden, at the date of issue there was absolutely no basis upon which the local authority could cross the section 31 threshold.  The parents were separated; the children were doing very well at school; this was exemplary parenting; simply nothing that could possibly satisfy the section 31 test.   I find that an unpersuasive submission because the judge in paragraphs 7 and 16 of his judgment carefully recorded the process by which the proceedings had developed from a section 8 application to a Part IV application and in paragraph 16 he said:
"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."
20. So conscientiously the judge then read into his judgment these two subsections and went on to consider whether the local authority had satisfied the test. He expressed himself shortly and clearly on that in paragraph 21, when he said:
"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. "
21. That seems to me impeccable explanation for the foundation of care jurisdiction given the evidence in the case and particularly the risk evaluation of Dr Freedman.

22. So for all those reasons I would dismiss this appeal.

Lord Justice Longmore: 

23. Mr Hayden relies on the fact that there are two competing risks in this case, first that the children are at risk of sexual insecurity from their father, 2) that there will be inevitable emotional harm if the children are told of their father's convictions for sexual abuse.  He submitted that the second risk is inevitably greater than the first and that the judge failed to balance those risks correctly. However, on any reading of the judgment, the judge did balance those risks.  The weight to be attached to the competing risks was in my view for him if there was no error of law and it is, in the absence of any error of law, impossible for this court to interfere.  Secondly, he asks rhetorically, even if the risks are nicely balanced and the decision is a delicate and difficult one, why should the state rather than the relevant parent or parents decide when the children are to be told? The answer in my judgment is that, granted there is jurisdiction for the state to interfere under the provisions of the Children Act, which for the reasons given by my Lord I am satisfied there is, the necessary consequential decisions have to be made on the basis of expert advice tendered to the court and sanctioned if appropriate by the judge.  This judge was acutely alive to the sensitive decision he had to make and I cannot see that he was in any way wrong in law in the decision which he reached. I therefore agree with my Lord's disposition of this appeal.

Lord Justice Stanley Burnton: 

24. I agree that the appeal should be dismissed for the reasons given by my Lords. I would only add this.  In paragraph 36 of his judgment, immediately before coming to his conclusion, the judge said this:
"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."
25. His careful, sensitive and sympathetic judgment fully bears out what he said in that sentence.  The judgment contains no error of law or error of omission of fact.  For the reasons given by my Lords, as I have said, therefore, the appeal must be dismissed. 

Order: Appeal dismissed