England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT

		6 July 2017

His Honour Judge Moradifar:

Introduction

1. On 1 June 2017 I handed down my judgment (Re E and N [2017] EWFC B26) in a case which concerns two young children. I have identified the children as E and N. In that judgment I set out the background of this matter and will not do so again.
2. In the course of the hearing before me the applicant local authority sought to rely on surveillance evidence which covered the period of 28 and 29 April 2017. The evidence showed that the father had stayed at the mother's address in circumstances where the parents had maintained that they have been separated since November 2016. The local authority accepted that the evidence did not show that the mother was present during the aforementioned period. The local authority relied on this evidence as part of a wider canvas to prove an allegation that the parents have remained in a relationship despite their maintained assertion that they have separated.
3. Both parents agreed that due to the father's difficult personal circumstances at that time, with the mother's permission, he stayed at the mother's address. The mother was staying at her own mother's property and she was not present when the father stayed at her address.
4. At the conclusion of the hearing the parties made detailed submissions. This included submissions about the surveillance evidence and the local authority's asserted overzealous approach to the parents in attempting to prove its case. The parents invited me to make a number of findings in this regard. I decided to give a separate judgment on these issues so as not to jeopardise an expeditious resolution to the last hearing before me.
5. The local authority in its written submissions dated 7 June 2017 and refined in its written replies to the parents' submissions dated the same, invites me to;

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

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

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

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

e. Confine my judgment to the issues arising out of the hearing.

6. The mother having taken the lead on these submissions and supported by the father, invites me to find that;

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

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

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

d. The mother has been unlawfully subjected to surveillance;

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

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

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

Issues

7. In light of the parties' respective positions as set out above, the issues before me may be summarised as follows;

a. Should I transfer any consideration of the above to a different tier of judiciary?

b. Should I endorse the local authority's actions as reasonable?

c. Can I embark on making any findings in relation to the alleged conduct on the part of the local authority including the alleged breaches of the parents' Article 8 rights? If so, to what extent can I properly do so?

d. Should I make no observations on the issues identified in paragraphs 6 b. and c.?

Analysis and conclusion

8. In civil proceedings any party who seeks a finding must prove it on a balance of probabilities. The court's findings must be based on evidence and not conjecture or speculation. I have detailed the authorities in this respect in my first judgment. I repeat this by reference to the observations of the President of the Family Division in Re A (A Child) [2015] EWFC 11 who expressed this fundamental principle in the following terms;

"i) Fact-finding and proof. It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. Findings of fact must be based on evidence and not on suspicion or speculation (Re A (A Child) (No 2) [2011] EWCA Civ 12.  If the local authority's case is challenged on some factual point it must adduce proper evidence to establish what it seeks to prove. Whilst reliance is often placed upon material to be found in local authority case records or social work chronologies which is hearsay (often second- or third-hand hearsay) a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it."

"The local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President's Chambers, [2013] Fam Law 680: "Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority's files." It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority's concern about something. If the 'thing' is put in issue, the local authority must both prove the 'thing' and establish that it has the significance attributed to it by the local authority."

The above observations apply equally to any party seeking findings or to establish facts that are in dispute. Findings can only be made on the basis of reliable and credible evidence. Where such evidence is in dispute, it must be the subject of scrutiny to assess its reliability.

9. Turning to the surveillance evidence, the statutory framework that regulates the investigatory powers of public bodies are in the main found in The Regulation of Investigatory Powers Act (2000) (the "Act"). Part II of the Act provides that;

" Introductory

26 Conduct to which Part II applies

(1)This Part applies to the following conduct—

(a)directed surveillance;

(b)intrusive surveillance; and

(c)the conduct and use of covert human intelligence sources.

(2)Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—

(a)for the purposes of a specific investigation or a specific operation;

(b)in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and

(c)otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.

(3)Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that—

(a)is carried out in relation to anything taking place on any residential premises or in any private vehicle; and

(b)involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device…

(10)In this section "private information", in relation to a person, includes any information relating to his private or family life…

27 Lawful surveillance etc.

(1)Conduct to which this Part applies shall be lawful for all purposes if—

(a)an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and

(b)his conduct is in accordance with the authorisation.

(2)A person shall not be subject to any civil liability in respect of any conduct of his which—

(a)is incidental to any conduct that is lawful by virtue of subsection (1); and

(b)is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

(3)The conduct that may be authorised under this Part includes conduct outside the United Kingdom…

28 Authorisation of directed surveillance.

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

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

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

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

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

(a)in the interests of national security;

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

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

(d)in the interests of public safety;

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

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

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

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

30 Persons entitled to grant authorisations under ss. 28 and 29.

(1)Subject to subsection (3), the persons designated for the purposes of sections 28 and 29 are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order under this section.

(2)For the purposes of the grant of an authorisation that combines—

(a)an authorisation under section 28 or 29, and …

(3)An order under this section may impose restrictions—

(a)on the authorisations under sections 28 and 29 that may be granted by any individual holding an office, rank or position with a specified public authority; and

(b)on the circumstances in which, or the purposes for which, such authorisations may be granted by any such individual.

(4)A public authority is a relevant public authority for the purposes of this section—

(a)in relation to section 28 if it is specified in Part I or II of Schedule 1; and

(b)in relation to section 29 if it is specified in Part I of that Schedule…"

The mother, supported by the father assert that the conduct of the local authority offends against these provisions of the Act and constitute a breach of the parents' respective Article 8 rights. The mother has referred me to the provisions of the secondary legislation that provides further guidance in respect of the above provisions. The issues that the parents have raised are significant and go far beyond the issues of fact within the hearing before me where the evidence was focused and limited to the father's identity.

10. To raise allegations of misconduct on the part of the local authority and alleged breaches of Human Rights is not unique to this case. Indeed it has been the subject of judicial guidance. Recently Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) very helpfully set out the guidance in the following terms;

"3. In order to set a context for what follows, I consider that it may be helpful if I identify at the outset of this judgment some essential procedural points about claims of this kind. This is a case which in some respects has veered 'off the rails'; in material respects it was never 'on the rails' in the first place. In doing so, I build on what I had said in CZ v Kirklees Council ("CZ v Kirklees") [2017] EWFC 11 at [9]:

i) It is of course appropriate for HRA 1998 claims which arise in, and on the same facts as, CA 1989 proceedings to be considered by the court within the CA 1989 proceedings. Section 7(1) (b) enables every tier of the Family Court, including the magistrates, to give effect to the parties' Convention rights (see Re L (A Child) v A Local Authority and MS [2003] EWHC 665 (Fam) at [31]); (I made this point expressly in CZ v Kirklees at [9] (i), but repeat it as it sets the context for the sub-paragraphs which follow);

ii) However, HRA 1998 claims – whether they are made under section 7(1) (a) or section 7(1) (b) – are governed by the Civil Procedure Rules 1998 (CPR 1998) and not the Family Procedure Rules 2010 (FPR 2010);

iii) Applications for substantive relief (declarations and/or damages) under the HRA 1998 should be issued as civil proceedings by way of a Part 8 CPR 1998 claim, and should not be issued on a Form C2 (even if within existing CA 1989 proceedings). While rule 29.5(2) FPR 2010 requires the party who seeks to rely on a convention right under the HRA 1998 to notify the court of this intention by way of "application or otherwise in writing", it is, in my judgment, important that claims for substantive relief such as declarations and/or damages should be issued formally, even if made within existing proceedings; if the party is seeking to "rely on the Convention right or rights" (section 7(1)(b)) within the CA 1989 proceedings to influence the manner in which the family court exercises its powers, a lesser degree of formality contemplated by rule 29.5 may well be appropriate. In my judgment, an application for substantive and significant relief should not be 'made' by a party's advocate merely introducing such a case (albeit "in writing") in a Skeleton Argument for court, as happened here;

iv) A child claimant in HRA 1998 proceedings requires a litigation friend appointed under Part 21 of the CPR 2010; the appointment of a guardian or litigation friend for this type of claim is not effected under rule 16 FPR 2010. While Cafcass accepts that Children's Guardians appointed in 'specified proceedings' may give advice about the appropriateness of a child making a HRA 1998 claim, Cafcass cannot authorise its officers to act as litigation friends to children claimants, having regard to its functions, which are set out inter alia in section 12 of the Criminal Justice and Court Services Act 2000 (CJCSA 2000) moreover, Cafcass does not, as a matter of policy, support Children's Guardians acting as litigation friends in HRA 1998 proceedings;

v) It is therefore not appropriate for a Children's Guardian who has been appointed in specified CA 1989 proceedings to act as an informal litigation friend, or 'front' the claim as if he/she is a litigation friend, in a related HRA 1998 claim. The status of litigation friend can only be bestowed following one of two recognised formal processes – either the filing of a certificate of suitability under Part 21.4(3)/Part 21.5(3) or pursuant to court order (Part 21.6);

vi) Given that the CPR 1998 applies to these claims, the regime of Part 36 CPR 1998 ('Offers to Settle') applies to them;

vii) The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that 'costs follow the event' in HRA 1998 claims (CPR, Part 44.2(2) (a): "(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party"; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));

viii) Insofar as not clear from CZ v Kirklees, from P v A Local Authority [2016] EWHC 2779 (Fam) (Keehan J), or from H v Northamptonshire County Council & the Legal Aid Agency [2017] EWHC 282 (Fam) (Keehan J) ("H v Northamptonshire"), the publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated (or 'connected': section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012)) proceedings, is vulnerable to a claim for recoupment of the costs of both sets of proceedings by way of statutory charge from any award of HRA 1998 damages;

ix) In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages, as it did in this case, for the father; if this is so, this may have implications for (a) entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award, (b) the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or (c) the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate;

x) This case illustrates once again that the cost of pursuing relief under the HRA 1998 can very swiftly dwarf, or indeed obliterate, the financial benefits sought. Many such cases are surely suitable for non-court dispute resolution (NCDR), and I enthusiastically recommend that parties divert away from the court to mediate their claims; I am led to understand that many Court of Protection disputes with similar characteristics are resolved away from the court room. This is a case which could/should have been self-referred for NCDR. Parties in cases of this kind would do well to remind themselves of the comments of the Court of Appeal in Anufrijeva v LB Southwark & others [2003] EWCA Civ 1406 [2004] 1 FLR 8 at paras 79-80:

"… we were concerned that, even if the proceedings were conducted as economically as possible, the cost of the proceedings would be totally out of proportion to the damages likely to be awarded. This has proved to be the position… The costs at first instance of each party were totally disproportionate to the amount involved. When the total costs of both sides are looked at including the appeal, the figures are truly horrendous, and the situation is made even more worrying by the fact that all the parties are funded out of public funds.

[80]   The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all."

4. In relation to these claims, I have further seen the guidance offered by Keehan J in H v Northamptonshire at [117] and respectfully agree with it."

11. In the course of the hearing before me I heard the evidence of four witnesses that included the parents and two witnesses on behalf of the local authority. The local authority witnesses had no involvement in the decision making process, the instructions of a private investigator and the material that was produced following those investigations. In addition to the surveillance report, the only direct evidence in this connection is a document entitled "REQUEST FOR AUTHORISATION TO COMMISSION A PRIVATE INVESTIGATOR". This documents was signed on 26 April 2017 by the "Director of Children and Learning Skills". It is far from clear if the signature is that of the person making the application or the person authorising the request. On the face of it, the form does not appear to be a form authorising surveillance. This illustrates the evidential difficulties in the relief that the parents are seeking. These are exacerbated by further fundamental difficulties which include the lack of any formal application and the consequential lack of any formal reply. Therefore, having regard to the guidance that I have detailed above and the evidential difficulties that I have identified, in my judgment it would be entirely inappropriate for me to make any findings in respect of the local authority's conduct, decision making processes and any alleged breaches of the parents' Article 8 rights. Similarly, in my judgment it would also be entirely inappropriate for me to endorse the local authority's actions. If there is to be such an enquiry into these issues, it must be undertaken in accordance with the guidance that I have set out above and by way of a formal application following which the court will give the necessary directions. Inevitably this will include the filing and service of appropriate evidence.
12. In the course of the hearing the parties made a number of submissions about the admissibility of the surveillance evidence and the local authority's conduct in gathering and service of the evidence it relies on. The local authority was directed to file and serve its final evidence by 13 April 2017. The local authority sought authorisation or gained authority to instruct a private investigator on or around 26 April 2017. Those instructions were given to a private investigator on 28 April 2017. The surveillance report was served on the parties in the afternoon of 3 May 2017 with the hearing commencing on 8 May 2017. The mother filed her final evidence in reply to the local authority's evidence on 5 May 2017. In her statement dated the same she was able to reply to the surveillance evidence.
13. It is worth stating the glaringly obvious point that court directions must be complied with fully and within the time frame in which they are directed. The parties share a duty to urgently bring to the court's attention any failure or anticipated failure to comply with the court's directions. Failure to do so can in some circumstances lead to serious prejudice to one or more parties to the proceedings. Sadly this often includes prejudice to the welfare of the subject children, particularly as this can often contribute to or be the cause of delay in the final resolution of a case. This point has be stated and repeated in many authorities. It was stated in strong terms by the President of the Family Division in Re W (Children) [2014] EWFC 22. This is essential reading for every family practitioner.
14. In the present case the mother accepted that the father was residing at her address in circumstances that I have described above. The issue of whether the parents would have been forthcoming with this information in the absence of the surveillance evidence is a matter of speculation and I have made no findings in this regard.
15. However it is clear that the surveillance evidence is relevant to the issues in the case. Goddard LJ in the Court of Appeal decision in Hollington v. F. Hewthorn and Company Limited, and Another [1943] KB 587, at 593 and 594 explained the test in the following terms;

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

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

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

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

"Your Lordships have been concerned with four concept in the law of evidence: (i) relevance; (ii) admissibility; (iii) corroboration; (iv) weight. The first two terms are frequently, and in many circumstances legitimately, used interchangeably; but I think it makes for clarity if they are kept separate, since some relevant evidence is inadmissible and some admissible evidence is irrelevant in the sense that I shall shortly submit). Evidence is relevant if it is logically probative or disprobative of some matter which requires proof."

16. Keeping the concepts of "relevance" and "admissibility" separate, I will first deal with the issue of relevance before turning to consider the issue of admissibility. The factual matters that the local authority sought to prove included an allegation that the parents remain in a relationship. Therefore on a cursory analysis of the facts that remained in issue and required the court's determination, it is clear that the surveillance evidence was relevant to this allegation. Indeed no party has sought to submit that it was not.
17. As to the question of admissibility, I have made it clear earlier in this judgment I am not making any findings in respect of the local authority's conduct or whether the surveillance is compliant with the provisions of the Act. However the questions of compliance and legality have a close connection to the question of admissibility. There is no automatic bar to admissibility of evidence that has been improperly or illegally obtained. In the context of family law, this was considered and illustrated in the Court of Appeal decision in Imerman v Tchenguiz and others [2011] 1 All ER 555where at paragraph 177 Lord Neuberger MR concluded that;

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

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

Furthermore, Re DH (A MINOR) (CHILD ABUSE) [1994] 1 FLR 679 whilst predating the Act and concerning an individual, Wall J admitted the covert recording of a child by the child's father.

18. In these circumstances I have assessed the surveillance evidence to be relevant and admissible. Accordingly I have admitted the same as evidence in the case. I made the relevant findings in my first judgment after considering the surveillance evidence together with a number of other pieces of evidence and have considered it in the context of the totality of the evidence that was before me. However the issue of admissibility of evidence is entirely separate to the requirements of public authorities and public bodies to comply with statutory provisions that regulate their conduct and their duties to the public. In circumstances where a public authority or public body has acted in breach of statutory provisions and where any evidence that is adduced as a consequences of those actions is admitted by the court, this will not absolve the public authority or body from its duties under any relevant enactment.
19. Finally the local authority has invited me to transfer any decision on the above issues to a different tier of the judiciary. I decline this invitation. As Cobb J observed in SW v TW above

"It is of course appropriate for HRA 1998 claims which arise in, and on the same facts as, CA 1989 proceedings to be considered by the court within the CA 1989 proceedings. Section 7(1) (b) enables every tier of the Family Court, including the magistrates, to give effect to the parties' Convention rights (see Re L (A Child) v A Local Authority and MS [2003] EWHC 665 (Fam) at [31])"

Furthermore, a different tier of the judiciary will be greatly hampered in dealing with these issues in circumstances where I have heard the evidence and given judgment on the same. This may be remedied by hearing further evidence, but in my judgment this would be a manifest failure on my part to deal with the case fairly and expeditiously.

20. In summary,

a. Issues concerning alleged breaches of individual's Human Rights and applications in this regard are capable of being dealt with by different tiers of the judiciary and the Family Court.

b. When an application arises in the context of proceedings issued pursuant to the provisions of the Children Act (1989), it is usually dealt with by the court dealing with those proceedings and may be heard within those proceedings, especially when such an application is made on the basis of the same or common facts. Separate proceedings attract additional costs and such costs can be disproportionate.

c. The court's determination of such an application or a relevant complaint within the proceedings before it, must be by reference to specific findings that are made on reliable evidence. Save in circumstances where the factual premise in making such a complaint or application are agreed and liability is admitted, the court will carefully consider the relevant evidence before making a determination on the facts in dispute. This task will be undertaken in accordance with the usual rules of evidence. Accordingly I make no findings in respect of the competing submissions by the local authority and the parents in respect of the alleged local authority conduct.

d. Subject to the aforementioned, any application for relief arising out of alleged breaches of individual's Human Rights must be issued as a separate application and cause of action (not on a C2 application form).

e. Such an application must follow the guidance of Cobb J in SW & TW (Children: Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) as detailed above.

f. Relevance and admissibility of evidence are separate concepts.

g. Only relevant evidence is admitted.

h. Illegally obtained evidence is not automatically barred from being admitted. If the court gives permission for illegally obtained evidence to be adduced, it will not absolve a public authority or body from its responsibility for any lack of compliance with the relevant statutory provisions and any sanctions that may follow.

i. Court's directions must be complied with in full and within the time frame that they are directed. Every party to the proceedings has a duty to alert the court of any failure or anticipated failure to comply with the court's directions.