England and Wales High Court (Administrative Court) Decisions

Queen on the application of "S" v. THE SWINDON BOROUGH COUNCIL and WILTSHIRE COUNTY COUNCIL [2001] EWHC Admin 334 (4th May, 2001)

Case No: CO/2378/2000

Neutral Citation Number: [2001] EWHC Admin 334

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 4^th May 2001

MR JUSTICE SCOTT BAKER:

1. The Claimant is a consultant gynaecologist who was acquitted in the Crown Court in November 1999 of sexually abusing the daughter of the woman with whom he was living. He has, however, been unable to put the allegations behind him. His private and family life have been disrupted. His case is that the two Defendants still see him as a child abuser, or at any rate as a risk, to children. He seeks judicial review of decisions taken by the First Defendants set out in a letter of 26 April 2000 and of the Second Defendants in a letter of 5 May 2000. In essence his claim is that each of the Defendants has wrongly applied its statutory duties.

Factual background

2. The Claimant lives with the three children of his first marriage, two boys and a girl, now aged between 18 and 13. His first wife, their mother, died in 1990. His second marriage was a short duration and ended in 1994. His son from that marriage lives with his mother. In October 1996 the Claimant met the mother of a girl who has been referred to throughout as K. A relationship developed between the Claimant and K's Mother. K was born on 4 October 1987. On 8 January 1999 the Claimant was arrested and charged with having indecently assaulted K on seven occasions over the previous 18 months. She made the disclosure to her mother a few days before the Claimant was arrested. He was tried at Bristol Crown Court before Judge Hagen and a jury in November 1999. On four of the seven charges he was acquitted; on the other three the jury was unable to agree. The judge told the prosecution she did not think, in all the circumstances, a retrial was appropriate and the prosecution decided not to proceed with a retrial. The Claimant was then formally found not guilty of the remaining three offences.

3. In the meantime the Claimant formed a relationship with a Mrs J. She has two daughters aged 11 and 7 and is a former patient of the Claimant. She lives in the Second Defendants' area. Their desire is to set up house together and for the Claimant's three and Mrs J's two children to live with them. Thus far they have held back from doing so because of the Claimant's differences with social services.

4. On 29 November 1999 the Claimant's solicitors wrote to the First Defendants asking what social services intended to do and if there was to be a case conference could it be arranged speedily because the Claimant wanted to build a new life and put the stress and trauma behind him. On 1 December 1999 a high risk protocol meeting was held at which a number of people were present including representatives of the First Defendants. It was noted that Mr J had approached Wiltshire Social Services expressing concern at his children having contact with the Claimant and that he was seeking a residence order to prevent contact. The risk to the Claimant's own children had been assessed as low but not non-existent. It was felt he could present a higher risk to other children and that if he was known to be having significant contact with other children a local authority would have an obligation to assess what risk, if any, he presented to those children. Each situation would need to be considered individually and legal advice obtained prior to any information being shared. The First Defendants would wish to share the information they held with the Second Defendants in the light of Mr J's approach. The following action plan was agreed:

i) No child protection conference with regard to the Claimant's own children;

ii) Further support and advice to be offered to the Claimant's family on risk reduction;

iii) Information to be shared with the Second Defendants;

iv) If any other child is found to be having significant contact with the Claimant, the local authority would assess what risk if any he presented to the child;

v) No information to be shared with other agencies or family members without prior discussion with the legal department.

On 22 December 1999 the First Defendants wrote to the Claimant's solicitors saying:

"The Social Services Department's view is that the Mr S's children would be at a low level of risk in all circumstances and therefore has decided it will not hold a case conference on his children. The Department would be willing to continue working with the family if Mr S was willing to continue such work. The Department does feel that there would be a higher level of risk to a child who is not a child of Mr S if they were to live in the same household as him or have unsupervised contact with him particularly if that child, or the child's parents, were not aware of the allegations against him. The relevant Social Services Department would have to assess the level of risk in the particular circumstances and take any appropriate action."

5. On 11 January 2000 the Claimant's solicitors wrote to the First Defendants asking for a meeting because "the social services decision has very far reaching implications" for the Claimant and he "cannot allow the situation to continue as it is." There was an affirmative response on 13 January 2000 and the meeting duly took place on 4 February 2000. The Claimant was invited to put forward any issues he wished social services to take into account when assessing any risks he might pose. The meeting concluded with a number of questions left for the Defendants. These included:

i) A request to look at the evidence in its entirety;

ii) What would happen if the Claimant proceeded with his relationship with Mrs J?

iii) What was the First Defendants' view about contact between the Claimant's children and their friends?

iv) Has the Claimant's acquittal been taken into account?

v) Have the Defendants passed on any information and if so what?

6. On 17 February 2000 the First Defendants answered most of the questions, promising a final view on question (iii) when they had considered any further representations. The answer to question (i) was that they had looked at the whole of the evidence in the past and would continue to do so. As to question (iv), the acquittal had been taken into account. As to dissemination of information, the assessment reports and the reports of Doctor Roberts (an expert instructed by the First Defendants - both of his reports predated the trial) had been provided to the health authority and the police and also to Wooton Bassett social services, but no one else. Wooton Bassett is the area in which the Js reside.

7. Also on 17 February 2000 the Second Defendants responded saying they would take account of any information they either already had or received. They said they intended to make their decision having in mind the matters which had so far been raised and to take into account a transcript of K's evidence and of the judge's summing up. They asked for any further representations to be in writing in 21 days.

8. The correspondence that followed illustrated the Claimant's continuing concern that it was necessary to have a full transcript of the trial to form an informed and objective view of the situation. It was also made clear by the Claimant that Mrs J had seen all the documents and reports that he had seen and that she had full knowledge of the allegations made against him.

9. The First Defendant's decision letter is dated 26 April 2000 and it is necessary to look at it in a little detail. The letter begins by regretting the delay in reaching a decision and pointing out that this has been caused by a desire to subject K's allegations to careful scrutiny, taking into account points that emerged at the trial. A transcript of K's evidence and of the summing up had been obtained. The letter went on to pose the two outstanding questions, namely whether the Claimant's children could have friends to stay without interference and whether he could set up home with Mrs J and her children. The letter then made the following points:

* That social services felt K's allegations were highly credible and to be believed.

* There was therefore a need to consider and deal with the prospect of the Claimant interfering with other children and take any necessary steps to protect those children.

* Any steps should only be taken if they are really necessary.

* An attempt should be made at all times to limit any interference in the Claimant's life to what is reasonably necessary.

* The previous decision that no action was planned in relation to the Claimant's own children remained in place.

10. On the question of the children having friends to stay, the First Defendants' position was that whether any action was necessary depended on the circumstances. If a child was having a substantial level of unsupervised contact in the household, the department would consider what action, if any, to take under its normal child protection procedures and would also decide what information to reveal to the child or its parents on the basis of whether there was a pressing need to do so.

11. The letter went on to point out that the First Defendants had no jurisdiction over any decision of the Claimant to set up house with another woman, but that the question of any action in relation to her children would have to be decided at the time and in light of the circumstances. In other words their position was broadly similar to their approach to friends of the children coming to stay. The letter then looked at the question of K's credibility and why the First Defendants felt obliged to accept her as a true reporter of what had happened.

12. The Second Defendants' decision letter is dated 5 June 2000. It, of course, was concerned particularly with Mrs J's children. It noted that the Second Defendants had responsibilities to ensure the promotion of the children's welfare and protection of them against risk and that any steps they proposed to take involved a balance between protection of the children and safeguarding individual rights to private life. The letter went on to set out the information that had been taken into account, before concluding that on balance of probabilities K's allegations that the Claimant had abused her were true. The letter continued that the Second Defendants took the view that the Claimant was likely to present a medium to high risk of some form of sexual abuse to children who are not related to him and that the most risk would be in relation to children who lived in the same house. It was proposed to ask Mrs J to meet social services so that they could discuss, assess and assist her ability to protect her daughters. Mr J was to receive a "carefully and independently vetted account of the conclusions to be drawn from the risk analysis." It was essential that Mr J be informed of the Second Defendants' view of K's allegations, of the analysis carried out, of the risk that the Claimant was considered to pose, of the steps that could be taken to limit that risk and of the approach which could usefully be taken to respond to any concerns expressed by the children in the future. The pressing need in the case was to ensure that Mrs J's children were safe. The letter concluded by pointing out that the criminal court operated on a different standard of proof and that its decision was based on much more limited information than that available to the council.

13. The next event of significance was a letter before action to both authorities on 5 June 2000. The thrust was that the process leading to the conclusion that K had given a truthful account was not reasonable. It did not have regard to all the evidence. On 12 June 2000 Mrs J met with representatives of the Second Defendants and there was a discussion between them. A note of the meeting appears in the Second Defendants' letter of 12 July 2000.

14. Permission to apply for judicial review was refused by Tucker J. on paper on 28 July 2000, but granted by Jackson J. following an oral hearing on 5 September 2000 after an amendment of the notice of application to allege breaches of the European Convention on Human Rights.

15. Mr J has made an application for an order under Section 8 of the Children Act 1989 with regard to his children. Those proceedings await the outcome of this judicial review application. In those proceeding, both Defendants were obliged to respond to the court welfare officer's requests for information. The Claimant has applied to intervene and a directions hearing is to take place after this judicial review application has concluded.

16. Both Defendants have stated that they are prepared, after the Children Act proceedings, to reconsider their positions taking into account what that court decides. If the finding is that no abuse has occurred and that the Claimant does not present a risk this will permit a different approach. If the conclusion is that abuse has occurred they are likely to confirm their present stances.

17. Mr McCarthy Q.C, on behalf of both Defendants, submits that they have formed their opinions in the light of all the available information that the Claimant probably abused K. Against this background they have considered what, if any, risk he may pose to any children in the future. In this regard they have been informed by reports from Dr. Roberts. Dr. Roberts is a consultant forensic psychiatric and has produced two reports dated 28 May 1999 and 22 October 1999. He was asked by the First Defendants to provide an independent assessment of the risk, if any, posed by the Claimant to his daughter Katherine and other young women who might visit or stay with the family, and also to comment and advise on anything that might rise from the assessment and need to be addressed with regard to the Claimant's profession. His first report's conclusions were that should the Claimant be found guilty of a criminal offence he would have grave concerns about his risk towards his daughter and other young females. Then he considered the risk should the Claimant be found not guilty in the criminal court but nevertheless be found to have committed the acts on balance of probabilities. His view was that the risks remained relevant and of concern. Thirdly he dealt with the position if there was no decision of a court whether the Claimant had abused K. Here he said his opinion would depend on social services view of the likelihood of abuse having occurred. He said that in the event of a conviction he would expect the police to make a report to the General Medical Council but that in the event of a finding on balance of probability then it would be up to the social services to take any initiative.

18. Dr. Roberts's second report was produced shortly before the criminal trial. He was asked for further comments on the family situation on the basis that social services believed the allegations to be true. He said that he accepted the social services' view that with external barriers in place the Claimant's risk to his own daughter was probably low. The risk to unrelated children was to medium to high "until or unless more is known about his paedophilic interests and activities." The highest risks would be to any other children who came to live in his house. He also thought the Claimant presented a potential risk to young female patients and that further consideration of this area might be warranted by the G.M.C.

19. The First Defendants' present position is as follows. No further action is proposed in relation to the Claimant's own children. As to other children having a substantial level of unsupervised contact, they would maintain a flexible approach about the disclosure of information and deal with the situation according to the circumstances. They would, if possible, avoid taking proceedings. They would only disclose their assessment of the situation if there was a pressing need to do so for the protection of a child or children. The Claimant would be notified in advance of any proposal to disclose, unless it was not reasonably practical to do so.

20. The Second Defendants' position is that because of the position of the J children they have already discussed the issues with Mr and Mrs J. They were already aware of the matters emerging at the criminal trial. The purpose of the discussion and advice was to ensure that the J children are safe in circumstances in which allegations could arise. Both parents were provided with full information to minimise any need for the Second Defendants to take proceedings. They themselves could take appropriate steps for the safety of their own children. Any future disclosure would be preceded by prior notification to the Claimant save in exceptional circumstances where this was not reasonably practicable. Disclosure would only be made if there was a pressing social need to do so.

The Law

21. The central complaint of the Claimant is that the Defendants have not applied their statutory duties correctly. They have made decisions based on evidence that does not satisfy the tests imposed by the Children Act 1989 and they have unreasonably limited the scope of the material on which they have based their decisions. Put shortly, it is said that the threshold for local authority intervention is proof to the civil standard that abuse has occurred. In the absence of sufficient evidence to satisfy the civil burden of proof that should be the end of the matter. The local authority is not permitted to follow what Ms Booth Q.C, for the Claimant, called a third way in leaving the Claimant in a state of suspended limbo.

22. Section 17 of the Children Act imposes a general duty on every local authority to safeguard and promote the welfare of children in need within their area and, so far is consistent with that duty, to promote the upbringing of such children by their families. By Section 17 (10) a child is to be treated as being in need if, inter alia, his health or development is like to be significantly impaired or further impaired without the provision of such services.

23. In order to facilitate the discharge of its general duty, the local authority has the specific duties and powers set out in Part I of Schedule 2. These include:

* The obligation to identify children who may be in need (paragraph 1)

* The obligation to take reasonable steps through the provision of Part III services to prevent children in their area suffering ill- treatment or neglect (paragraph 4 (1)).

* The obligation to pass on information to another authority in relation to a child who may be moving who is believed to be likely to suffer harm (paragraph 4 (2)).

* The obligation to act so as to reduce the need for proceedings (paragraph 7)

* The obligation to provide advice, guidance and counselling with respect to children living with their families (paragraph 8 (a)).

24. Section 38(2) prohibits a court from making an interim care or interim supervision order unless it is satisfied there are reasonable grounds for believing the circumstances are as mentioned in Section 31(2). Those circumstances are that the child is suffering or is likely to suffer significant harm. So the test is the same as that for making a full care or supervision order. Section 38 A provides for an exclusion requirement in an interim care order where there is reasonable cause to believe that if an individual is excluded from the child's house the child will cease to suffer or be less likely to suffer significant harm.

25. Section 43 gives the court power to make a child assessment order if it is satisfied that the applicant for such an order (usually a local authority) has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm. The court also has to be satisfied other criteria are met to make an assessment order appropriate. A child assessment order permits a child to be removed from home. Section 43, like the sections that follow, is in Part V of the Children Act, which is headed "protection of children". Section 47, which is the core section with which this case is concerned, is likewise in Part V. A court is not permitted to make a child assessment order if it is satisfied there are grounds for making an emergency protection order and that it ought to make such an order.

26. Section 44 deals with emergency protection orders. The triggering factor is again reasonable cause to believe that the child is likely to suffer significant harm. This section permits children to be removed for up to 8 days, confers parental responsibility on the applicant and provides criminal sanctions for non compliance. The conditions for making an exclusion order, within an emergency protection order under Section 44 A, include reasonable cause for belief that if the person in question is excluded from a dwelling house the child will not be likely to suffer significant harm.

27. Thus it will be seen that the full panoply of orders available short of the full care order are triggered by reasonable grounds for belief rather than proof on balance of probability. Only when one comes to the full care order under section 31 does one find that allegations of maltreatment have to be proved on balance of probability.

28. The section that is directly in play in the present case is Section 47. This Section is headed "local authority's duty to investigate." It provides, in so far as is material:

"(1) Where a local authority -

(a).............................

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.

(7) If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall -

(a) consider whether it would be appropriate to review the case at a later date; and

(b) if they decide that it would be, determine the date on which that review is to begin.

(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take that action (so far as it is both within their power and reasonable practicable for them to do so)."

29. Subsection (9) imposes a duty on other authorities to assist a local authority conducting enquiries under section 47 and subsection (12) requires a local authority conducting enquiries to consult any other authority in whose area the child in question appears to be living.

30. Ms Booth submits that there is nothing in subsection (8) to say what degree of certainty is required in the mind of the local authority. It would be odd, she says if no firmer basis was required at the end of the exercise than at the beginning. The answer, she submits, is that the test is the same as in section 31 - the local authority in this instance rather than the court must be satisfied of the likelihood of significant harm. Absent such satisfaction that is the end of the matter. To use her words the local authority must "put up" or "shut up". They cannot leave the Claimant for ever in a state of uncertainty. A final decision cannot be postponed indefinitely, although one option would be to decide to take no action but to review the case at a later date under subsection (7). Mr McCarthy refers to the number of options open to a local authority after the Section 47 (8) stage. It can do many things it can go back to Section 17 or go to Schedule 2, which imposes various duties on local authorities including the duty to make provision for children within families, (Paragraph 8) and the duty to take steps to avoid, if possible, court proceedings (Paragraph 7).

31. It is a cornerstone of the Claimant's case that in assessing the future risk the Defendants are not permitted to take into account past events that are not established on balance of probabilities. Ms Booth relies on Re: H and others (minors): (Sexual Abuse: Standard of proof) [1996] A.C.563. That was a case in which a man was charged with, and acquitted of, the rape of his stepdaughter. The local authority applied for care orders in respect of the other three girls in the household, basing its case on the abuse of the stepdaughter and relying on the lower standard of proof applicable in civil cases. The House of Lords held that sexual abuse not having been proved, there were no facts on which the judge could properly conclude there was a likelihood of harm to the three younger girls. "Likely," in the context of Section 31(2)(a), was used in the sense of a real possibility, a possibility that could not sensibly be ignored, having regard to the nature and gravity of the feared harm in a particular case. The standard of proof in cases involving care of children was the ordinary civil standard. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence would be established. The rejection of a disputed allegation as not proved on the balance of probability left scope for the possibility that the non-proven allegation might be true after all, but unproved allegations of maltreatment could not form the basis for a finding by the court that either limb of Section 31(2)(a) was established.

32. Lord Lloyd pointed at 582D-E how sections 43, 38 and 31(2) represent progressive stages on the road to making a care order from "cause to suspect" through "ground for belief" to the substantive findings. Little evidence is required at the early stages. Much more evidence is required at the later stages.

33. Lord Nicholls also pointed to the difference in statutory language when dealing with earlier stages in the procedures which may culminate in a care order. He said at 590G:

"In marked contrast is the wording of section 31(2). The earlier stages are concerned with preliminary or interim steps or orders. Reasonable cause to believe or suspect provides the test. At those stages, as in my example of an application for an interlocutory injunction, there will usually not have been a full court hearing. But when the stage is reached of making a care order, with the far reaching consequences this may have for the child and the parents, Parliament prescribed a different and higher test: "a court may only make a care or supervision order if it is satisfied......that......the child.....is suffering, or is likely to suffer, significant harm....."

"This is the language of proof, not suspicion. At this stage more is required than suspicion, however reasonably based."

He concluded at 592G:

"As I read the Act, Parliament decided that the threshold for a care order should be that the child is suffering significant harm, or there is a real possibility that he will do so. In the latter regard the threshold is comparatively low. Therein lies the protection for children. But, as I read the Act, Parliament also decided that proof of the relevant facts is needed if this threshold is to be surmounted. Before the section 1 welfare test and the welfare "checklist" can be applied, the threshold has to be crossed. Therein lies the protection for parents. They are not to be at risk at having their child taken from them and removed into the care of the local authority on the basis of suspicion, whether of the judge or of the local authority or anyone else. A conclusion that the child is suffering or is likely to suffer harm must be based on facts, not just suspicion."

34. In my judgment the need to establish facts on the balance of probability has no place in the exercise by a local authority of its various protective responsibilities under the Children Act. Re H and others was concerned with the court's power to make care or supervision orders under Section 31 of the Children Act. It is at this point in the child protection process that evidence has to be weighed and evaluated and decisions made as to what is proved and what is not. Decisions made earlier in the process have to be made in accordance with the power conferred by the section under which the authority is acting, and in the present case the critical question is whether the authority have reasonable cause to suspect a child is likely to suffer significant harm.

35. It should be noted that if Re H and others governed the approach in cases such as the present the result would be to prevent local authorities from carrying out effective and timely risk assessments. They would be forced to take care proceedings to identify whether grounds for intervention were present. This would be completely contrary to the principle of non intervention in children cases. I do not accept that a local authority has to be satisfied on balance of probability that a person is an abuser before intervention is justified.

36. What triggers the local authority's duty under Section 47 is having reasonable cause to suspect, not reasonable cause to believe, which is the test in a number of other sections. Accordingly the threshold is quite low. This is hardly surprising as their obligation is to investigate i.e. make enquiries with a view to deciding whether to take any action to safeguard or promote the child's welfare. If the enquiries lead the local authority to the conclusion that action is necessary it is required by subsection (8) to take it. Mr McCarthy points out that the whole structure of the Act is quite alien to the notion of the establishing facts on the balance of probability before action can be taken in cases such as the present. He refers, for example, to Section 17 (10) where the definition of child in need does not require any previous finding that a child has been caused significant harm, but merely that it is likely the child will not achieve the appropriate standard of health and development without provision of the necessary services.

37. I have a good deal of sympathy for someone in the shoes of the Claimant. He has, after all, been acquitted of all the charges against him. The judge told him he left the court without a stain on his character. A person who has been found not guilty is innocent in the eyes of the criminal law. But that does not mean in absolute terms he has not committed the acts alleged against him. Acquittal in criminal sexual abuse proceedings does not mean that a local authority is thereby absolved from further responsibility to protect the child who made the allegations or any other children who may in some way be at risk. Far from it, the various statutory duties under the Children Act must, if they are in play, be discharged. A local authority will no doubt look carefully at the result of a criminal trial and any matters of significance that emerged in the course of it. But the fact of an acquittal and observations in the summing up do not prevent a local authority from forming a view which is adverse to the acquitted person. See R v Hertfordshire County Council ex parte A (unreported) 10 November 2000 C0/464/2000 where Maurice Kay J pointed out at P.51 that different considerations apply; a local authority is not for example constrained by the rules of evidence that obtain at a criminal trial. R v Hertfordshire County Council is a case that has some similarities with the present case. R was head teacher of a secondary school for boys excluded from mainstream education because of emotional and behavioural problems. The local authority became concerned about the circumstances in which he took boys from the school on his barge. He was prosecuted for indecent assault, but acquitted. However a multi-disciplinary strategy meeting concluded he still posed a risk to children. Before Maurice Kay J he challenged both the recommendations of a disciplinary panel of the school governors recommending his dismissal and the strategy meeting's decision that he posed a risk of significant harm to children in his care. His claim for judicial review failed and the only issue on which permission to appeal was given, was whether there was power to communicate to others that he posed a risk. Despite the narrow ground on which leave to appeal had been given, R's counsel argued that an authority making enquiries in performance of its duty under Section 47(1) was not entitled to form a view that a particular individual forms a risk to children in its area. Keene L.J with whom the other members of the court agreed, said the point was entirely without merit but said about Section 47 at paragraph 16 of his judgment (unreported) 22 March 2001:

"It is implicit in Section 47 that the local authority must seek to form a view as a result of its enquiries to whether a child or a group of children in its area is suffering or is likely to suffer significant harm. That is a necessary part of the process of deciding whether to seek one of the statutory orders, such as a care order, or to take any other action. Frequently, the conclusion reached on that matter will embrace a view that the harm is coming or is likely to come from a particular individual. In many situations, that individual may be the partner of the child's mother or it may be the child's stepfather. The courts are familiar with such situations. There is nothing unlawful or ultra vires about the local authority reaching, as a result of its Section 47 enquiries, such a view about the risk to certain children that that individual poses. It may be a necessary step in their process of making decisions about what action to take and may indeed may be a particularly important step if there are other children potentially at risk from that individual, beyond the child whose welfare gave rise to the enquires in the first place. I conclude that the local authority has a power by necessary implication to form such a view."

38. There was no suggestion by Keene L.J that the balance of probabilities standard played any part in the Section 47 exercise and my view that the Re H and others criteria are irrelevant to the exercise being conducted by the local authorities in the present case finds support from Maurice Kay J. at Paragraph 53 of his judgment. He said Re H and others was concerned with what has to be proved in order to satisfy a court that, for example, a child is suffering or is likely to suffer, significant harm (Section 31(2) (a)) and that it does not illuminate Section 47. " There is a world of difference between satisfying a court that something is so (Section 31) and having reasonable cause to suspect that it is so (Section 47)." He went on to say that Section 47 is not simply a precursor of an application to a court. If reasonable suspicion is properly present the section still does not render an application to the court obligatory.

39. Ms Booth reminds me of Keene L.J's observations at paragraph 24 that if the decision that a particular individual constitutes a risk to children is a perverse one, or reflects irrelevant matters, it can be quashed as it can if there is some breach of natural justice and that likewise the extent if any communication of the decision can be controlled by the courts.

40. Ordinarily the courts will only interfere with an administrator's assessment of fact if it is perverse or there is no basis for it. As Lord Brightman put it in Puhlhofer v Hillingdon London Borough Council [1986] A.C.484 at 518D-E:

"Where the existence or non existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously are acting perversely."

41. Social services have many different duties under the Children Act. These include the obligation to provide information about a fostering agency to placing authorities if requested to do so. In R v Somerset County Council ex parte Prospects Care Services [2000] 1FLR 636 the applicant, a fostering agency complained about statements made about it. Dyson J said at 645E:

"In my view the council was entitled to take the view that it was not required to constitute itself into a tribunal to make findings a fact and that it was sufficient for it to tell placing authorities who make inquiries what it knew about an agency in relation to which an inquiry is made. It was then for the placing authority to carry out such investigations as it thought necessary to decide whether it wanted to enter into a contract with the agency"

42. This is in my judgment an illustration that it is always necessary to look at the particular provision under which the authority is acting in order to determine whether or to what extent it has any fact finding obligations. The question in the present case comes back to this. Were the Defendants justified in concluding they had reasonable cause to suspect a child in their area was likely to suffer significant harm? Were the decisions unreasonable in the Wednesbury sense?

43. In my judgment there was little if any room for either Defendants concluding other than that there was reasonable cause to suspect the likelihood of harm. The situation can be considered at two points, first before and second after the criminal trial. No criticism can be made of the First Defendants prior to the trial and indeed none is made by the Claimant who puts their case the basis that having formed a view on the truthfulness of the K's evidence the First Defendants failed to give any or any due weight to later events and evidence. The Second Defendants did not come on the scene until a few days after the trial when Mr J contacted them to express concern about contact between the Claimant and his children.

44. After the trial it was obviously appropriate for stock to be taken of the situation and it plainly was. The Claimant's main contention is that K was shown to have been untruthful or at least there were inconsistencies in her evidence that showed she was completely unreliable. Soon after K had made the allegations to her mother that the Claimant had interfered with her she was interviewed on video tape. This was done in accordance with the relevant guidelines. At the trial she gave oral evidence in chief. The prosecution chose this course rather than have her video played to the jury. Significantly she was not cross-examined on the basis that her evidence was materially inconsistent with what she had said on the video. Nor was it submitted there was no case to go to the jury. It was suggested she had made up the allegation because she wanted her mother to leave the Claimant and return to her father, but she denied this suggestion. There were certain particular aspects of K's evidence that the Claimant argues raised doubts about her reliability. First, when asked directly by her mother in Portugal "did anything happen?," she said no. At the trial she admitted that was not true because something did happen. The second was an inconsistency about why she wore pyjamas. Thirdly there was her evidence that she told her mother about one incident in the car on the way to the vet, whereas the crown made an admission there was no visit to the vet at the material time. Then there was evidence from K that she had tied her pyjamas in a particular way. This lead to a question from the jury in these terms:

"Red pyjama bottoms have no cord, with no provision for such. Is white tape a hanging loop? In which case they could not have been tied as stated in court."

The judge's answer appears to indicate that the evidence on the point was inconclusive.

45. The Claimant also seeks to rely on the acquittal and the way in which the judge handled various matters including the question of a retrial of the counts on which the jury had disagreed. In my judgment little can be made of the fact of acquittal other than that the jury was not satisfied to the criminal standard of proof. Nor should too much can be read into the way the judge handled the criminal trial or her perceived views. The bottom line, it seems to me, is whether the basic account by K of a series of indecent assaults may be true. Nothing in my judgment happened in the criminal trial that ought to have lead the Defendants to the conclusion that what K said was so unlikely to be true that they no longer had reasonable cause to suspect the likelihood of significant harm.

46. It is clear that the Defendants have done their best to analyse the question of risk in this case with very great care over a quite a lengthy period of time. It will often not be practicable to analyse the criminal process in such great detail. A local authority had to take a broad, and I hope detached, view at the end of a criminal trial whether it remains satisfied that the alleged victim has given a broadly truthful and accurate account. I cannot accept Ms Booth's submission that taking stock of the situation after the criminal trial a reasonable authority must have concluded that K was not credible. Nor do I accept her submission that at that juncture a decision had to be made either to proceed with an application under Section 31 or, in effect, to close the file.

47. There was, in my judgment, evidence that K's account was believable. Her account descended to considerable detail; she described the pattern of the Claimant's behaviour; there was no evidence that she had tried to engineer trouble for him and she had complained on two occasions. There was no evidence she was disturbed (although this was suggested) nor was there significant evidence that she was an unreliable source of information. Furthermore there were only very limited inconsistencies in her evidence. Whether she was in fact telling the truth is of course an entirely different matter. But it seems to me there was plainly material on which local authorities could decide there was a sufficient risk to justify the action outlined in the decision letters. These decision letters were written after account had been taken of the views of a number of people with professional expertise in the area of childcare. The point is made in the Second Defendants evidence at P.336 that an investigation by a council is, of its very nature, an intrusion into the private lives of the individuals concerned even though it is necessary for the protection of children. The action which may be taken by a local authority is not limited to going to court but may include the provision of services short of such proceedings. Action taken can have serious consequences for those involved and investigations need to be carried out carefully and sensitively. Any decisions as to what needs to be done should take account of the implications for all the individuals affected and where possible should avoid intrusive action. All reasonable attempts should be made to work in partnership with the adults who provide care for the children concerned and to allow them to take active steps to ensure the protection of those children. With all that I agree but there is nothing to suggest those principles were not followed in the present case.

The Human Rights Act

48. Having accepted the Defendants' submission that the balance of probabilities test has no place in the exercise conducted by the Defendants, the basis of challenge can only be whether there is sufficient material to justify a finding of reasonable cause to suspect a likelihood of significant harm. Does the Human Rights Act 1998 add anything to the conventional Wednesbury test?

49. There are obligations under Article 8 of the ECHR to respect the Claimant's private and family life, his home and his correspondence. A public authority will not interfere with this right except in accordance with the law and as is necessary in a democratic society in the interests of national security, public safety, the economic well being of the country, the prevention of disorder or crime, the protection of health or morals or for the protection of the rights and freedoms of others. Mr McCarthy mentions also other positive obligations under Article 8 to protect the right to respect for children's lives by preventing invasions of bodily integrity, and under Article 3 to ensure that children are not subject to degrading treatment such as sexual abuse. Also there are Articles 19 and 37 of the United Nations Convention on the Rights of the Child which has been in force in the United Kingdom since 1952. In my judgment these positive obligations mirror the positive obligations under the Children Act. A local authority is obliged to take active steps in relation to children and to base its actions on perceived risks. It should be noted that statutory guidance issued under Section 7 of the Local Authority Social Services Act 1970 - The Children Act Guidance and Regulations - has this to say:

* Proceedings should be avoided wherever possible (Paragraph 3.2 Volume 1).

* Sharing information and participating in decision making is essential (Paragraph 3.10 Volume 1).

* Protection from abuse must be balanced against unwarranted intervention in families' lives (Paragraph 1.12 Volume 2).

* Where possible provision of services by partnership is better than compulsory intervention (Paragraph 2.29 Volume 2).

50. It was also drawn to my attention that the government issued guidance: Working Together to Safeguard Children refers at Paragraph 7.27 et seq to the importance of sharing information with between professionals and others where it will help to protect children.

51. There are also negative obligations both under the Children Act and under Article 8 for the state only to intervene when it is necessary.

52. The decisions in this case were of course taken before the Human Rights Act 1998 came into force, but nothing turns on that because both the decision -makers and this court are public authorities within the meaning of Section 6.

53. It is clear that a local authority is required to act in a proactive manner both because of the statutory framework of the Children Act and because of the E.C.H.R. The social workers have to conduct a balancing exercise both in domestic law and under E.C.H.R. There are competing interests in the scales, broadly, the protection of children on the one hand and those of the Claimant and his family on the other. The general principle of the Convention is to achieve a balance between the interests of community and the rights of the individual. The measures taken must be proportionate to the aims to be achieved.

54. Prior to the Human Rights Act the domestic courts have repeatedly recognised that the local authority's role involves a balance between intervening too much and too little in child protection matters see e.g. X (Minors) v Bedfordshire County Council [1995] 2AC 633, 750. The courts have properly safeguarded an authority's freedom to make judgments in this area in the public law field. The courts have repeatedly recognised that the interests of persons in a similar position to the Claimant may have to come second to the interests of protection of children. Domestic law has long been applying the concepts inherent in Article 8 (2) in all but name.

55. It should I think be kept in mind that in the present case no compulsory measures have been taken and nor are the Claimant's own children the subject of any limitation. All has been achieved by co-operation with the parents of the children and in compliance with the positive obligations under the Convention. The local authorities' assessments and actions are, it seems to me, of a nature where a wide margin of appreciation has to be given to the interpretation of Article 8 (2). See R v DPP ex parte Kebiline [2000] 2AC 326, 381. It should also be borne in mind that the European Court has held that in a conflict between the rights of a child and one of its parents the rights of the child should prevail. Hendricks v Netherlands (ECHR) 1983 5EHRR 223. In the present case the conflict is not between parent and child but between the Claimant and the J children and any other children with whom he may come into contact.

56. Reliance was placed on Re: V and L (Sexual Abuse: Disclosure) [1999] 1FLR 267 and on R v Local Authority and Police Authority in the Midlands ex parte LM [2000] 1FLR 612. The issue in Re V was whether local authorities should be granted leave to disclose to third parties findings of sexual impropriety made in family proceedings. Butler´Sloss L.J. having referred to Section 47 of the Children Act said at P.271H:

"There will be occasions when one local authority will have the duty to pass on information about abuse and abusers to other local authorities. An example would be when children from one area who are at risk move to another local authority area. The local authority may also need to respond to inquiries from another authority who are conducting inquiries about a possible abuser. Nothing in this judgment is intended to inhibit the necessary exchange of relevant information between agencies. Further, in the case of those convicted of specified criminal offences or who have been cautioned there are now in place stringent requirements. Local authorities are however creatures of statute and neither sections 17 nor 47 places upon a local authority the general duty to inform other areas of the movement of those found guilty of sexual abuse in care or other family proceedings. Neither Sections 17 nor 47 in my judgment supports the case for disclosure on the facts of either of these appeals."

57. A little later she referred to R v The Chief Constable of the North Wales Police ex parte Thorpe and another [1999] QB 396 and said:

".......the caution urged by the Master of the Rolls that "disclosure should only be made when there is a pressing need" is of general obligation and supports my conclusion as to non disclosure."

58. As Mr McCarthy pointed out, Re V and L was a case where the interests of specific children were not at stake. In my judgment the decision is of little relevance to the present case. A similar view was taken by Keene L.J in R v Hertfordshire County Council (paragraph 28).

59. LM owned a bus company which had a contract with a local education department to transport school children. The contract was terminated after the local authority ran a police check. Information disclosed by the police and social services raised concerns about LM having contact with children. Seven years previously there had been insufficient evidence to prosecute him for indecent assualt on his daughter. 10 years previously while employed by social services an allegation of abuse had been made against him, but no action was taken after investigation. When his company entered a similar contract with another local authority LM sought assurances that the allegations would not again be disclosed. These were refused but the decisions were quashed by Dyson J on an application for judicial review. He held that both police and social services have the power to disclose to a third party allegations of sexual abuse of children if they genuinely and reasonably believe it is desirably to do so to protect children. The principles are those set out in the North Wales case. Disclosure should only be made if there is a "pressing need" and should be the exception rather than the rule. There was no real and cogent evidence of a pressing need for disclosure. He said at 622B:

"A blanket approach was impermissible. Having regard to the sensitivity of the issues raised by the allegations of sexual impropriety made against LM, Disclosure should only be made if there is a "pressing need" disclosure should be the exception, and not the rule. That is because the consequences of disclosure of such information for the subject of the allegation can be very damaging indeed."

He then continued at 622F:

"What was required of the police and the social services department in this case was that they examine the facts, and carry out the exercise of balancing the public interest in the need to protect children against the need to safeguard the right of an individual to a private life. How should the balancing of the exercise be carried out? All relevant factors must be considered. It is not possible or desirable to attempt to provide an exhaustive list. It seems to me, however, that the following factors will usually have to be considered by the police and local authority that is contemplating disclosure of allegations of child sex abuse to a third party. "

He then listed the following:

i) The Discloser's own belief in the truth of the allegation.

ii) The interests of the third party in obtaining the information.

iii) The degree of risk posed by the person in the event of non disclosure.

He recorded at 632H that what the chief constable was in effect saying was that all allegations of child sex abuse should be disclosed whenever the subject of allegations is likely to come into contact with children, because all allegations of child sex abuse are a cause for concern and the welfare of children is paramount. He rejected this "blanket" approach. The approach of Dyson J was implicitly approved by the court of appeal in R V Hertfordshire County Council. However, each case has to be judged on its own facts. LM is distinguishable from the present case. In the present case there were no blanket policies. In LM the issues were never balanced. Here they have been.

60. Although these cases illustrate the fact that the courts will take into account competing interests when considering the protection of children in my judgment the ECHR adds nothing in the circumstances of this case to the balancing exercise that was previously carried out in domestic law. Having complied with the provisions of the Children Act, as I interpret them, and having followed the appropriate guidance thereunder I am satisfied that the Defendants complied with all the relevant provisions of ECHR. Suffice it to say that whether through the eyes of the Children Act or through the eyes of ECHR in each instance a balancing exercise is involved on the lines I have referred to. I am satisfied that each of the Defendants conducted it accordingly. The obligations imposed on local authorities are the same whether pre or post the implementation of the Human Rights Act, because the expectations in relation to the protection of children are the same. The Children Act 1989 anticipated the introduction into English law of the ECHR. The non intervention principle is clear as is the obligation on a local authority to take a proactive step to protect children.

The Role of the Court

61. Ms Booth submits that if there is to be any realistic supervision by the courts of administrative decisions where Human Rights issues are at stake the conventional Wednesbury test is inadequate; something more is required if an individual's rights, for example under Article 8, are not to be rendered nugatory. In R v The Secretary of State for the Home Department ex parte Mahmood, [2001] 1FLR 756 paras 37-40 Lord Phillips M.R said that in cases where the court reviews an executive decision which is required to comply with the Convention as a matter of law, the role of the court was still supervisory and the court would only intervene where the decision fell outside the range of responses of a reasonable decision maker. In conducting a review of a decision affecting human rights, the court would subject the decision to a most anxious scrutiny. Where a decision is reviewed that was required pursuant to the 1998 Act to comply with the Convention, the court could no longer uphold a decision on the general ground that there was "substantial justification" for interference with human rights. Interference with human rights can only be justified to the extent permitted by the Convention itself. Some Articles of the Convention brook no interference with the rights enshrined within them. Other Articles qualified the rights, or permit interference with them. Thus Articles 8,9,10 and 11 contained second paragraphs which permit interference with the rights in accordance with the law and in so far as necessary in a democratic society in the interests of specific legitimate aims. When anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention. Mahmood was followed by the Court of Appeal in R v Secretary of State for the Home Department ex parte Isiko The Times 20 February 2001. Schiemann L J giving the judgment of the court said at Paragraph 37 that, even in cases where Article 8 is in play, the function of the court is to see whether the decision taker has exceeded the discretion given to him.

62. Both Mahmood and Isiko were concerned with review of deportation decisions. A different type of decision is under review in the present case. Here the court is concerned with competing Convention rights, including what Mr McCarthy has called both positive and negative rights. In my judgment the decision makers in the present case, having reached the conclusion that the relevant risk threshold had been passed, did not exceed the discretion given to them. In my judgement there was no material difference in exercising that discretion between on the one hand complying with the provisions of the Children Act and on the other balancing the competing obligations under the ECHR. Indeed I accept the submission of Mr McCarthy that both Defendants adopted a careful and conservative approach. Applying the most anxious scrutiny, the decisions were entirely justified.

Passing on information

63. Given my conclusion that the decision on risk was justified and bearing in mind the obligations both in domestic law and under the ECHR, there was in my judgment a need to make disclosure and to and enter into discussions with those responsible for children who could potentially come under the Claimant's control. I accept the Defendants' submission that they were scrupulous in their approach to the issues and to the decisions that had to be taken.

64. Prior to the Claimant's acquittal the First Defendants' actions were the subject of agreement with the Claimant. After his acquittal the First Defendants held a meeting on 1 December 1999 in accordance with their ordinary practice in cases where they had concerns of a risk of harm. The meeting was set up in accordance with the Department of Health guidance "Working Together to Protect Children." The First Defendants had then learned of the Claimants recently formed relationship with Mrs J and that she had two young children. They also had the benefit of Dr. Roberts' second report. In my judgment the information that was passed on was clearly justified by the "pressing need" test. I have been unable to detect any information that was passed on either then or subsequently that was not justified by this test; nor was there any breach of the guidance outlined by Dyson J. in LM. The children with whom the Defendants were concerned were the Claimant's own children, the J children and any other children with whom he might have unsupervised contact.

Conclusion

65. Each of the Defendants acted lawfully in the assessment of risk in this case. They were not required to make a finding on balance of probabilities as to past conduct before assessing risk and taking any necessary protective steps. Neither of the Defendants has acted unlawfully in forming the conclusions set out in the decision letters of 26 April 2000 and 5 May 2000. The Defendants' risk conclusions were not perverse and all their actions fall within a range of responses open to a reasonable decision maker.

66. This is in one sense an unusual judicial review. This court is not the appropriate forum for deciding what, if anything, untoward happened to K and that is the underlying issue with which the case is concerned. There is a residence dispute with regard to the J children under Section 8 of the Children Act. That case, as I have already mentioned, has been adjourned pending the outcome of these judicial review proceedings. The Claimant has, I am told, applied to intervene in those proceeding and it may be that the issue of what if anything happened to K will fall to be decided in those proceedings. In which event the standard of proof will be the balance of probabilities as outlined by Lord Nicholls in Re H and others I express no view on the likely outcome of that issue. In the light of my findings that neither of the Defendants has acted unlawfully this application for judicial review fails.

MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this claim for judicial review fails.

MR McCARTHY: My Lord, will you order the claimant to pay the defendant's costs?

MR JUSTICE SCOTT BAKER: Yes. What is the position about that, Miss MacDonald?

MISS MACDONALD: My Lord, the claimant cannot dispute the costs application.

MR JUSTICE SCOTT BAKER: You can have your costs.

MR McCARTHY: Thank you very much.

My Lord, may I just mention one other matter. At the permission stage two orders were made, one barring publication of the applicant's identity, that being under the Contempt of Court Act; and a second one relating to the children, so a section 39 Children and Young Persons Act order.

MR JUSTICE SCOTT BAKER: Yes.

MR McCARTHY: I am afraid I did not think about this before today. The order under section 39, the Children and Young Persons Act, should, I think, probably be continued.

MR JUSTICE SCOTT BAKER: Yes. I did change the format on the front of the judgment to delete the name of the claimant and put in "S" instead, and he is referred to anyway as "the claimant" throughout. It just occurs to me that the J family is mentioned, of course, in the --

MR McCARTHY: My Lord, yes. I will, with Miss McDonald, if your Lordship will approve this, just go through the judgment again, just to make sure that no reference -- I am sorry not to mention it before today, my Lord. I am afraid it just did not occur to me.

MR JUSTICE SCOTT BAKER: No, because this case of course may go out on to the website, might it not?

MR McCARTHY: Absolutely.

MR JUSTICE SCOTT BAKER: Yes. Otherwise, all the corrections that you mentioned I think have been made, including the one substantive one.

MR McCARTHY: My Lord, thank you very much.

MR JUSTICE SCOTT BAKER: I am very grateful to counsel for their help in this matter.

MR McCARTHY: My Lord, thank you.

MISS MACDONALD: My Lord, I would ask for leave to appeal in this matter for three reasons. Firstly, simply the serious effect that the decision will obviously have on the claimant and his family and his reputation, and possibly on his livelihood. Secondly, although the argument did not persuade your Lordship, we submit that there is still an arguable point about the correct construction of section 47 of the Children Act and the standard of proof necessary before the local authority can act. We say it would be helpful to have that resolved at the Court of Appeal level. Thirdly, we say there is also a wider question of whether, and to what extent, the Wednesbury test has been changed by Article 8. Your Lordship does discuss the European authorities and cases such as Mahmood and Isiko, and we simply say that it may be that there are different considerations in play in the family context than in the deportation context, and that this may be a suitable question for the Court of Appeal to consider.

MR JUSTICE SCOTT BAKER: Thank you very much. Mr McCarthy, what do you say about leave to appeal?

MR McCARTHY: My Lord, the first thing is, it does not have serious effects on the claimant's life, given the fact that neither defendant has proposed to take any present action, and there are pending residence proceedings, which will resolve outstanding factual issues.

Secondly, the issue on construction of section 47 is not tenable. It is not one that commended itself to the judge originally dealing with the paper application. It is unsupported by any authority. In reality, it amounts to a grafting under section 47 of that which is not there. My Lord, in practical terms, your Lordship followed your own reasoning and made a decision which is on all fours with the Court of Appeal decision in the Hertfordshire case.

Point number three, the Wednesbury case, this is effectively dealt with in the Isiko and Mahmood cases, to which your Lordship made reference. Your Lordship's judgment, in my respectful submission, clearly reflects the Court of Appeal view on that topic. There is, therefore, no new point of law arising.

MR JUSTICE SCOTT BAKER: I am going to refuse permission to appeal. It seems to me that the main issue in the case, namely the true construction of section 47, is clear. This is a case which, if there is to be an appeal, I think it should be one that is authorised by the Court of Appeal, rather than by the trial judge. Thank you.

MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this claim for judicial review fails.

MR McCARTHY: My Lord, will you order the claimant to pay the defendant's costs?

MR JUSTICE SCOTT BAKER: Yes. What is the position about that, Miss MacDonald?

MISS MACDONALD: My Lord, the claimant cannot dispute the costs application.

MR JUSTICE SCOTT BAKER: You can have your costs.

MR McCARTHY: Thank you very much.

My Lord, may I just mention one other matter. At the permission stage two orders were made, one barring publication of the applicant's identity, that being under the Contempt of Court Act; and a second one relating to the children, so a section 39 Children and Young Persons Act order.

MR JUSTICE SCOTT BAKER: Yes.

MR McCARTHY: I am afraid I did not think about this before today. The order under section 39, the Children and Young Persons Act, should, I think, probably be continued.

MR JUSTICE SCOTT BAKER: Yes. I did change the format on the front of the judgment to delete the name of the claimant and put in "S" instead, and he is referred to anyway as "the claimant" throughout. It just occurs to me that the J family is mentioned, of course, in the --

MR McCARTHY: My Lord, yes. I will, with Miss McDonald, if your Lordship will approve this, just go through the judgment again, just to make sure that no reference - I am sorry not to mention it before today, my Lord. I am afraid it just did not occur to me.

MR JUSTICE SCOTT BAKER: No, because this case of course may go out on to the website, might it not?

MR McCARTHY: Absolutely.

MR JUSTICE SCOTT BAKER: Yes. Otherwise, all the corrections that you mentioned I think have been made, including the one substantive one.

MR McCARTHY: My Lord, thank you very much.

MR JUSTICE SCOTT BAKER: I am very grateful to counsel for their help in this matter.

MR McCARTHY: My Lord, thank you.

MISS MACDONALD: My Lord, I would ask for leave to appeal in this matter for three reasons. Firstly, simply the serious effect that the decision will obviously have on the claimant and his family and his reputation, and possibly on his livelihood. Secondly, although the argument did not persuade your Lordship, we submit that there is still an arguable point about the correct construction of section 47 of the Children Act and the standard of proof necessary before the local authority can act. We say it would be helpful to have that resolved at the Court of Appeal level. Thirdly, we say there is also a wider question of whether, and to what extent, the Wednesbury test has been changed by Article 8. Your Lordship does discuss the European authorities and cases such as Mahmood and Isiko, and we simply say that it may be that there are different considerations in play in the family context than in the deportation context, and that this may be a suitable question for the Court of Appeal to consider.

MR JUSTICE SCOTT BAKER: Thank you very much. Mr McCarthy, what do you say about leave to appeal?

MR McCARTHY: My Lord, the first thing is, it does not have serious effects on the claimant's life, given the fact that neither defendant has proposed to take any present action, and there are pending residence proceedings, which will resolve outstanding factual issues.

Secondly, the issue on construction of section 47 is not tenable. It is not one that commended itself to the judge originally dealing with the paper application. It is unsupported by any authority. In reality, it amounts to a grafting under section 47 of that which is not there. My Lord, in practical terms, your Lordship followed your own reasoning and made a decision which is on all fours with the Court of Appeal decision in the Hertfordshire case.

Point number three, the Wednesbury case, this is effectively dealt with in the Isiko and Mahmood cases, to which your Lordship made reference. Your Lordship's judgment, in my respectful submission, clearly reflects the Court of Appeal view on that topic. There is, therefore, no new point of law arising.

MR JUSTICE SCOTT BAKER: I am going to refuse permission to appeal. It seems to me that the main issue in the case, namely the true construction of section 47, is clear. This is a case which, if there is to be an appeal, I think it should be one that is authorised by the Court of Appeal, rather than by the trial judge. Thank you.