England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM
SENIOR DISTRICT JUDGE WALLER SITTING IN THE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/12/2004

Mr Justice Ryder:

Introduction:

1. This is an appeal from an order of the Senior District Judge concerning a young boy whose identity is known in the public arena but to whom I shall refer as 'A'. He was born on the 20^th September 2002 and is just over 2 years of age. The parties to the proceedings are Mr David Blunkett and Ms Kimberly Fortier. Throughout the application before me Ms Fortier has been referred to by her married name, Mrs Kimberly Quinn.
2. The child concerned lives with Mrs Quinn and her husband, Mr Stephen Quinn, at an address in London. Mrs Quinn is 28 weeks pregnant and it is said that her physical and mental health is at significant risk because she is suffering relatively severe complications of pregnancy.
3. Mr Blunkett is represented by Mr Peter Jackson QC and Bindman & Partners, solicitors. Mr Blunkett was present in court during the hearing yesterday afternoon. Mrs Quinn is represented by Mr Jeremy Posnansky QC and Mischcon de Reya, solicitors. Mrs Quinn was, I accept, too ill to attend court yesterday and was in hospital at the time the appeal was heard.
4. On the 11^th November 2004 Mr Blunkett issued an application for a parental responsibility order and a contact order under the Children Act 1989. Having regard to some of the more inaccurate speculation that there has been, I should emphasise that Mr Blunkett has made no other applications to the court and that, in particular, there is not and never has been an application by Mr Blunkett for a residence order or for scientific tests to determine A's paternity. In his application Mr Blunkett is described as the father of the child and Mrs Quinn is described as the mother.
5. It became clear during the hearing before the Senior District Judge that Mrs Quinn takes issue with the court's jurisdiction to determine Mr Blunkett's application on the basis that she does not accept that he is the father of A. The importance of this is that, if she is right, Mr Blunkett could not make one of his applications, namely that for contact, without the permission of the court and his application for a parental responsibility order would be fatally flawed.
6. It should be recorded that Mrs Quinn has not herself issued an application for scientific tests to determine A's paternity nor for any order of the court other than an adjournment.
7. The court listed Mr Blunkett's application for a conciliation appointment on the 30^th November 2004. A conciliation appointment at the Principal Registry of the Family Division is the first hearing and an opportunity for early dispute resolution in that court.
8. On the 19^th November 2004 Mrs Quinn issued an application to vacate the conciliation appointment and to adjourn the proceedings to the first available date after the 1^st April 2005.
9. On the 23^rd November 2004 Senior District Judge Waller heard and refused Mrs Quinn's application to adjourn until April 2005, vacated the conciliation appointment and listed the proceedings for further directions before him on a specified date later this year to consider:

i.Whether Mr Quinn should be joined as a party;

ii.Whether there should be scientific tests to determine the paternity of A; and<

iii.The further case management of the proceedings.

10. I have seen a transcript of the Senior District Judge's Judgment and a bundle of documents that includes the statements and affidavits made by the solicitors for the parties and that were filed for the court's consideration on the 23^rd November 2004. In addition, I have been provided with certain new documentation to which I shall make reference in due course.
11. This appeal has been brought on as an urgent appeal having regard to the imminence of the next hearing date ordered by the Senior District Judge and in particular because it remains Mrs Quinn's intention to avoid that next hearing and delay consideration of Mr Blunkett's application until April 2005. In consequence and in common with other urgent applications this appeal has been listed 'at risk' i.e. the parties have had to take the risk that the appeal would not have been heard and have had to wait for an opportunity to be heard in a very busy list. They have had to be interrupted by more urgent matters during the course of the day. They have not been 'fast tracked'!

The Law:

12. This is an appeal to a single judge of the High Court from a District Judge of the Principal Registry. Accordingly the appellate principles that apply are those relating to first appeals to the Court of Appeal as described in G v. G (Minors: Custody Appeal) [1985] FLR 894 and, for example, Clarke-Hunt Newcombe (1983) FLR 482 at 486 (see for example, Re S (Appeal from Principal Registry: Procedure) [1997] 2 FLR 856). The principles are well known and need only be summarised by me as follows:
13. Best practice case management of private law applications by the judiciary has recently been re-stated in guidance issued by the President of the Family Division on the 9^th November 2004 entitled the 'Private Law Programme'. In essence that guidance seeks to promote the following:

    i) The application of an overriding objective by:

    a) Dispute resolution at a first hearing
    b) Effective court control, including monitoring outcomes against aims
    c) Flexible facilitation and referrals (matching resources to families)

    ii) Effective court control is to be achieved, inter alia, by:

a)Continuous and active case management by the specialist judiciary; and
b) The avoidance of unnecessary delay.

14. The overriding objective is:

"…to enable the court to deal with every children case:

a) justly, expeditiously, fairly and with the minimum of delay;

b) in ws which ensure, so far as is practicable, that

i)the parties are on an equal footing;
ii) the welfare of the children involved is safeguarded; and
iii) distress to all parties is minimised;

c) so far as is practicable, in ways which are proportionate

i) to the gravity and complexity of the issues; and

ii) to the nature and extent of the intervention proposed in the private and family life of the children and adults involved"

15. I emphasise that none of this is new to the Principal Registry and that the Senior District Judge has recently renewed the scheme in operation at that court (see: District Judge's Direction (Children: Conciliation) [2004] 1 FLR 974 and before that Practice Direction (Conciliation: Children) [1992] 1 FLR 228).
16. In accordance with rule 8.1 (5) of the Family Proceedings Rules 1991 an appeal of this kind is heard in private unless the court otherwise directs. Neither party asked me to open the court during their discussions as to the welfare of A or their own private and family life and on this occasion I have not considered it appropriate to do so. I am, however, invited to give my Judgment in open court so that the record in respect of some factual issues may be set straight and so that the public might have confidence that the system of family justice is fair and is not wrongly cloaked in unnecessary or inappropriate secrecy.
17. This latter invitation is opposed by Mr Posnansky on behalf of Mrs Quinn and I have determined the question shortly and from first principles as follows. Family appeals and indeed most family proceedings are heard in private as statutory exceptions to the principle of open and accountable justice. It is not necessary to describe those exceptions in this urgent and necessarily short Judgment.
18. The exceptions exist alongside competing rights that may on the facts of any one case lead to a decision to hear that case in public or perhaps more usually give a Judgment in public. The rights that are engaged are most commonly Articles 6, 8 and 10 of the European Convention of Human Rights 1950, namely the right to a fair trial, the right to respect for private and family life and the right to freedom of expression.
19. In the circumstance where an individual's Convention rights are engaged, there is a duty on a court not to act incompatibly with those rights and a positive duty to secure the individual's rights against interference by others. It should also be noted that by section 12(4) of the Human Rights Act 1998 when a court considers whether to grant relief which, if granted, might affect the convention right to freedom of expression, the court must have particular regard to the importance of the right.
20. As recently as the 28^th October 2004 the House of Lords considered the manner in which competing rights should be applied by courts in Re S (a child) (identification: restriction on publication) [2004] UKHL 47. While, arguably, permissible restrictions on publicity (i.e. the open reporting of proceedings) rest on different legal and public policy considerations than those applicable to the public scrutiny of family justice (whether those proceedings in some circumstances should be open), the underlying rights that are engaged are the same. In essence the rights are parallel rights, no right has precedence over the other and where the rights are in conflict, each must be separately analysed to determine its relative importance. The justifications for interference must be taken into account and the ultimate balancing test is achieved by applying the concept of proportionality to each right.
21. On the facts of any one case or in the context of any one area of family law the Article 6 and 8 rights of a mother, father (or putative father) and child may all be in play as may Article 10. Even where there is no reason to justify an interference with an Article 8 right under Article 8(2) and no such qualification exists for an interference with an Article 6 right, Article 10 (even where a justification under Article 10(2) arises) may still be in play and may be the more important right having regard to the legal policy, public policy or factual considerations that are relevant to the legislation and the case.
22. In considering the competing rights, I have come to the clear conclusion that having regard to the quantity of material that is in the public domain some of it even in the most responsible commentaries wholly inaccurate, it is right to give this Judgment in public. The ability to correct false impressions and mis conceived facts will go further to help secure the Article 6 and 8 rights of all involved than would the court's silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself. I have guarded against arbitrary interference in the private and family lives of all concerned by hearing the appeal in private and by excluding from this Judgment unnecessary personal material such as that concerning the detail of the health of Mrs Quinn. To give this Judgment in public is I believe the most proportionate of the options available to me. For the record, although it will not be a matter for me, I expressly refute the proposition that this means that all future hearings in these or any related proceedings must either be in the public domain or give rise to a public judgment. That does not follow.

The Notice of Appeal and Grounds:

23. The elements of the appeal set out in the Notice, as particularised in the Grounds and as pursued before me can be put quite simply as follows:

i. Mrs Quinn is entitled to a fair trial which she cannot obtain because:

ii. She is unable to participate in the proceedings to the extent that she is unable to consider the evidence or issues nor is she able to give instructions

iii. She is at serious risk to her physical and mental health

iv. Any risk of harm to Mrs Quinn will prejudice A (and logically would prejudice the interests of her unborn child, but the interests of that child are not as yet before the court)

v. There is no prejudice in an adjournment for a finite and temporary period, in particular there is no benefit to A in an earlier resolution and no detriment in a later resolution.

vi. Alternatively, if there is prejudice it is manifestly outweighed by putting his mother's health at risk and hence his own welfare at risk in these proceedings.

24. It is also said in support that if it is contended that if Mr Blunkett is the father of Mrs Quinn's unborn child then in the absence of any agreement between the parties, separate proceedings will inevitably have to be commenced after the birth of that child.
25. On behalf of Mr Blunkett it is said in reply:

i. Delay on the facts of this case will be deeply damaging to the relationship between Mr Blunkett and A which was severed on any basis in August (over 110 days ago): the contention that there will be little or no prejudice is strongly refuted

ii. The highest Mrs Quinn can put her case is that she is very angry and distressed and that she is not in a position because of her health to give well considered instructions or to participate fully

iii. To go further would be to say that Mrs Quinn is by reason of her health incapacitated in law and neither her medical nor legal advisers go that far i.e. she does not need a litigation friend to conduct these proceedings

iv. On the papers filed on her behalf it is clear that Mrs Quinn was able to give very firm instructions and also to take an active part in the out of court debate from the 24^th September 2004 until the 25^th November 2004

v. Mrs Quinn in particular is very firm that as paternity is in issue, it must be established in a proper court sanctioned test (said on her behalf as recently as on the 19^th November by her solicitor in an affidavit to the court)

vi. There should be active and continuous case management by the court.

vii. As to the issues the Senior District Judge said in his reasoned Judgment:

viii. That he accepted the medical evidence

ix. There was no necessary link between that medical evidence and the continuation of these proceedings

x. There can be no reassurance that the position will be any different in April 2005

xi. The stress is as likely linked to the issues out of these proceedings

xii. The child's interest is to have his parentage determined at the earliest opportunity

xiii. To adjourn to April and then begin the conduct of the case runs the risk of determining the (contact) application by default, simply by lapse of time.

xiv. The learned Judge correctly identified A's paternity as the first issue and identified a mechanism to allow the parties to come back to court quickly with their evidence. He equally decided that it would be in the interests of the child and each of the parties if neither party had to make application for scientific tests and that the court of its own motion considered directions for the same.

Conclusions:

xv. Having regard to the papers that were before the court and the submissions of both Leading Counsel I have come to the following conclusions:

xvi. The only issue that can possibly be the subject of complaint in accordance with the appellate principles I have identified was whether the Senior District Judge failed to have sufficient regard to Mrs Quinn's Article 6 rights and in particular whether she could have a fair trial in light of her serious medical condition.

xvii. Having regard to all of the evidence that was before him, Mrs Quinn was not incapacitated from giving instructions and was able to take a good part in these proceedings until days if not hours before the hearing.

xviii. In particular, she gave firm instructions in relation to paternity.

xix. Delay would be damaging to the relationship between Mr Blunkett and A.

xx. It is a proper consideration of the parties Article 6 rights and their competing Article 8 rights to continue these proceedings by active case management dealing with paternity as the first issue.

xxi. I accept the submissions made on Mr Blunkett's behalf.

xxii. Accordingly, the Senior District Judge's decision as to the adjournment was not plainly wrong.

xxiii. I am asked to consider more detailed medical reports that were made available after the hearing before the Senior District Judge. I have done so without making a decision as to whether to admit them as additional evidence. I note that the reports are un-contradicted and that Mr Blunkett has not asked the court to obtain independent medical opinions, i.e. opinions from a forensic rather than a clinical source. Neither Mr Blunkett nor this court has taken a point on the form of those reports and I have considered them as if they were evidence before me.

xxiv. I have already commented that I will not read the contents of those reports, which are confidential, into this Judgment but I have very carefully considered them. The author of the most recent document uses the well turned phrase that Mrs Quinn is not able to give well considered instructions. Were I to admit them as additional evidence the new reports would be insufficient to have caused me to come to a different conclusion.

xxv. This appeal must in consequence be dismissed and the hearing presently listed before the Senior District Judge anned.

xxvi. I wish to take the opportunity to emphasise that I have not decided that Mrs Quinn must attend the hearings that there may be from time to time. That is a matter she must decide with her medical and legal advisers. This court is neither inviting nor obliging her to risk her own health or that of A or her unborn child. Mrs Quinn may have very valid reasons not to appear or to ask for a particular hearing to be conducted in her absence or to ask for a hearing or case management step to be delayed: although this should not be seen to be an encouragement for her to do so as I do not believe that will be necessary.

xxvii. There is a world of difference between a) ensuring from hearing to hearing that Mrs Quinn's right to a fair trial is secured by considering her health as against the instructions she has given and the measures that can be taken to make her right of access to the court effective and b) the abrogation by the court of its responsibilities to secure the rights of the child and Mr Blunkett for a period of at least 4 months.

xxviii. Finally, this case concerns a child. Neither party asks this court for protection from public comment but A is entitled to enjoy his private and family life. I very much hope that media attention can now avoid A's circumstances. Even public figures are entitled to the civilised courtesies of being ordinary citizens in the conduct of their private and family lives.

Judgment ends.