England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/12/2009

The Hon. Mr. Justice Hedley :

INTRODUCTION

1. This case concerns two young children who live with their mother at an address known to the relevant local authority, the police and the court, but not to the father or to any member of his family. The local authority have brought care proceedings but even their existence, much less any content of them is unknown to the father notwithstanding that as a married man he holds parental responsibility in respect of both children as of right.
2. The application in this case made by the mother and supported by the guardian is that not only should this ignorance be continued but that the father should be discharged as a party so that the proceedings continue without any involvement on his part. The local authority do not support this application mainly because they wish to obtain information from the father and his family and could not do so without revealing the existence of the care proceedings. In fact the real purpose of the care proceedings is to assess and test the mother's ability to remain separate from the father and effectively permanently to hide from him.
3. The father has apparently not seen the children since January 2008. He is currently serving a sentence of imprisonment for public protection with a specified minimum term of 30 months of which only 12 have passed. The index offence was unrelated to this case. The concern in this case arises from the successful tracing of the mother by the paternal family, a history of domestic violence and threats together with a stream of correspondence from prison to which I must return.
4. Of course the father has neither knowledge nor notice of this application. However, by order of Hogg J. (who is the allocated judge but was not available to hear this application within a reasonable time) the assistance of the Attorney-General was sought to provide an advocate to the court. This she has done and the court has had the benefit of written and oral submissions from Ms Shaheed Fatima. The court is most grateful both to counsel and to the Attorney-General for this assistance. The result is that the court has heard submissions in support of the application from counsel for the mother and from the guardian, against the application from counsel for the local authority as well as the submissions from Ms Shaheed Fatima.

THE FACTS OF THE CASE

5. The case relates to young children of young parents. The father has a significant criminal record and comes from a family with a considerable association with violent crime. The mother comes from a family alleged to be associated with dealing in illegal drugs. Some of the violence referred to in the case may well be drug related.
6. The allegations of violence made within the family by the mother against the father and his family include attempted violence with knives, strangulation, assaults with a screwdriver, boiling water and petrol, false imprisonment, threats to kill the mother and child and kidnap of a child. It is said that the children have been witnesses to some of these matters.
7. Notwithstanding this, the mother did not leave the home until the father was already in prison and in that and in her failure to take action to prevent the children being witnesses to some of these matters, it is said that she failed to protect them. Since her departure there have been at least three further moves as her address became known to the paternal family who have continued to threaten the life and safety of the mother and the children. The police have made it clear that they consider the threats to be wholly credible and they believe that the paternal family can and will continue to try to trace, threaten and harm the mother and children.
8. The local authority presently regard the mother as providing good enough care for the children. Their assessment is directed to the issue of whether the mother is willing and able to maintain her separation from the paternal family, avoid detection by them and to keep the children safe. Insofar as she is able to do so, they are resolved to support her in her care of the children.

THE PRESENT LEVEL OF THREAT

9. Although of course there has been no trial of any issue as to domestic violence, the overall evidence clearly suggests that serious violence has occurred and that mother and children have indeed fled and now live in fear of detection, threat and violence. It is in that context that the court considers the present level of threat.
10. There are two aspects to that consideration. The first is the inference to be drawn from what has happened in the past notwithstanding that the father himself is still in custody. The success of the paternal family in repeatedly tracing the mother and repeating threats to her safety coupled with the police assessment of their capacity to do just that suggest that the current level of risk is high both as to the likelihood of detection and threat and as to the grave consequences of any such detection.
11. The second aspect relates to the father's conduct in prison in particular to the threatening letters which emanate from him. That is relevant not only in relation to their content but to the fact that he knows that the authorities will be aware of the content of the letters and will react to them. Indeed he knows this well for it is something that he has done before. The obvious inference from that (apart from his indifference to the consequences of his actions) is that he believes his threats will gain wider currency and therefore impact even more heavily on the mother as coming from one who is determined to damage her whatever the cost.
12. As to the letters themselves, they make chilling reading. The letters themselves are in the bundle at J280-314. Extracts from them appear at paragraph 7 of the Guardian's position statement dated 12^th October 2009. Those extracts, far from 'cherry picking', are not untypical of the contents of the letters. No useful purpose is served by reproducing extracts in this judgment. It is sufficient to say that they portray a man who rejoices in evil, is indifferent to consequence and is determined to visit his proclivity for evil upon the mother (and therefore necessarily the children) and through his family and contacts believes that he has the present means to do so. As I have indicated this threat is regarded as real and credible by the police.
13. On the basis of these matters I find (acknowledging as I do that no evidence has yet been tested in court) that the court should proceed at this interim stage on the basis that the father represents an immediate and grave threat to the safety of this mother and these children. That threat is grave not only in terms of the likelihood of his discovering their whereabouts but of the potential consequences to them off his actually so doing. It is no overstatement in this case to say that the mother is at risk of life and limb and that the children are at risk of incidental physical damage and direct emotional harm as a result of this.

THE FATHER'S ROLE IN THESE PROCEEDINGS.

14. The local authority have instituted proceedings under Part IV of the Children Act 1989. In consequence this father, who holds parental responsibility as of right, would be entitled to be served as a Respondnent, to participate in the proceedings and be represented on a non-means and non-merits tested basis. It follows that the mother's case, supported by the guardian, that not only should he not be served but should actually be discharged from the proceeding, represents a very grave incursion into his rights. It is not disputed that the court has power to act as the mother asks; what is in dispute in whether it is right so to act.
15. The mother's case is self evident. The interests of these children, the court's paramount consideration after all, require not only that they be safe but their mother be likewise and available to care for them full time. To allow this father to be involved in the case, whatever care is taken and whatever redactions to documents are made, is to offer him the opportunity to visit his evil intentions on the mother through the discovery of her whereabouts. Just one slip or one error of judgment could be enough, it is argued. Moreover, it is said, this father has shown no interest in these children over a long period nor is there any prospect of his caring for them in the foreseeable future.
16. The local authority's case is threefold. First, it is acknowledged that as the father he is entitled to play a role in these proceedings. Secondly, it is said that he and his family will have information relevant to the authority's assessment of the mother's capability and the children's needs which they will not be able to access if they are prevented from disclosing the existence of these proceedings. Thirdly, they say that allowing him into the proceedings and consciously subjecting him to the jurisdiction of the court may allow the court better to control his activities and give him less incentive to threaten the mother than may his wholesale exclusion.
17. The approach of the advocate to the court is to offer a rights based analysis of the issues confronting the court by a consideration of the impact of E.C.H.R. Articles 6 and 8 and their inter-relationship with one another in the context of the particular facts of this case. The consequence of that analysis is to make available to the court routes to more than one solution but its value is that it offers to the court a proper legal framework within which to consider this particular question in the light of the specific facts of this case.

THE JURISDICTION OF THE COURT

18. As I have indicated, it is common ground that the court has the jurisdiction to make the order sought. It is to be found in FPR 1991 Rule 4.7(5)(b). It is unsurprisingly a power that has been rarely exercised in relation to a parent whose whereabouts is known. Even where it has been exercised, the father concerned did not have parental responsibility but was nevertheless heard on the application. The case of RE AB (CARE PROCEEDINGS:SERVICE ON HUSBAND IGNORANT OF CHILD'S EXISTENCE) [2004] 1FLR 527 appears to be the only occasion on which this provision has been considered by the Court of Appeal and did involve a party with parental responsibility. That case, although requiring disclosure, does acknowledge the jurisdiction of the court. It is said that if the order were made here it would represent a new step in two respects: first, discharging a party with parental responsibility; and secondly, doing so without hearing counsel on his behalf.
19. I think the second aspect is probably inevitable in this case. Counsel so instructed would have to act without any reference to the father himself or else the whole exercise would be self-defeating. In any event the advocate to the court has clearly set out the issues that require to be addressed. The second issue does not therefore trouble me as otherwise it might have done. It seems to me that the first should initially be considered within the MV s Fatima's framework.

ADVOCATE TO THE COURT'S FRAMEWORK

20. This starts as it should, with a consideration of Article 6 and the essential context of fairness. Any proceedings under Part IV of the 1989 Act are grave matters for any family. To deprive a parent with parental responsibility of any involvement in those proceedings is self-evidently a grave step. Indeed even to restrict their involvement by a partial with-holding of disclosure is a grave step. At the same time the right of access to the court is not an absolute one and not every limitation or even exclusion is unlawful. As the European Court said in ASHINGDANE -v- UNITED KINGDOM (1985) 7 EHRR 528 at paragraph 57 -

"……the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired [and] a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

That statement of principle is of course of the utmost value and has been often applied since. It finds expression in English law in the judgment of Dame Elizabeth Butler-Sloss P in the case of RE H; RE G (ADOPTION: CONSULTATION OF UNMARRIED FATHERS) [2001] 1FLR 646 where at paragraph 43 she says this –

This raises the difficult question of the impact of the rights of other parties under Article 8, and the welfare principles, on the right to a fair trial. There must, however, in principle, be some qualification of the right of a party to be heard in proceedings. This would be likely to arise under two separate categories, namely, a policy decision of the court, in the exercise of its right to run its own proceedings within the requirements that there should be a fair trial, and, secondly, the practicalities of service on a potential litigant or his attendance at the hearing. There will be cases where notice to a father would create a significant physical risk to the mother, to children in the family, or to other people concerned in the case (see for instance Re X (Care: Notice of Proceedings) [1996] 1FLR 186). That might result in the court balancing the fairness to the father of notice, against the real risks of the consequences of such notice.

21. Thus it is submitted (correctly in my view) that the requirements of Article 6 will be highly fact specific and vary from case to case. On the other hand it is essential never to lose sight of the fact that any incursion into what would normally be regarded as an Article 6 right is a serious matter and the more so where the nature of the proceedings is in itself very serious.
22. As is apparent no judgment can be reached without a proper analysis of the impact of Article 8. It is equally apparent in the context of this case that the Article 8 rights of both parents and also their children are fully engaged. Moreover, respect for Article 8 rights may also of itself have procedural implications, as the European Court pointed out in W -v- UNITED KINGDOM (1988) 10 EHRR 29. It follows that the court must be aware of the implications for the parties of both sets of rights.

THE RIGHTS OF THE PARTIES IN THIS CASE

23. Article 8(1) of course provides a qualified right, that qualification appearing in Article 8(2). The consideration of these matters involves the court in having in mind the whole breadth of the evidence available. The children have a right to family life. That involves a relationship with both parents. It also involves a right not to be pawns in a battle of violent intensity (or indeed intense violence) between those two parents but to an upbringing in reasonable calm and safety within, if possible, a parental home. The mother has a right both to have a relationship with her children and to bring them up and a right to do so without threat of violence or other harm from the other parent. The father has a right to a relationship with his children though his right to bring them up is rendered nugatory by his current indeterminate sentence of imprisonment.
24. All parties have Article 6 rights too. The father's have been set out. The mother has the right to participate without the proceedings in themselves being the means of endangering life and limb. The children too have a right to have their future determined in proceedings to which both parents have contributed but through which they themselves (or a potential carer) are not thereby endangered.
25. The vital question is whether all these rights can be accommodated. If they cannot the court must determine which rights are to predominate and how that is to be accomplished. By the same token the court must consider how, if some rights are to be compromised or even superseded, that is to be affected by the least interference in any such rights.

THE BALANCE TO BE STRUCK IN THIS CASE

26. The starting points are two fold: first, that the father should be entitled to participate in this case; and secondly that the children and mother should not be put at risk of serious harm by the conduct of the proceedings. In considering the first the court should start with full participation then consider partial participation effected in this case by disclosure of redacted documents and then, only as a device of last resort, his exclusion from the proceedings. In considering the second the court must be alert both to risk and to the magnitude of consequences should the risk eventuate and must also consider whether and to what extent that risk can be managed by the courts' control of its own processes.
27. As to the question of risk and consequences, I have already set out my view. In my judgment the father, although incarcerated, represents a real and substantial risk to the children and their mother. I am also satisfied that through his contacts outside prison he will pursue the mother and, if he finds her, seek vengeance upon her; nor will he scruple to ensure that the children are not affected. I have concluded that only his exclusion from the proceedings will realistically achieve that end; although extensive redaction of documents is possible, there are so many documents which would have to pass through so many hands that the risk of accidental disclosure of a crucial piece of information would be very high.
28. On the other hand to do that would be to take the unprecedented step of excluding a father with parental responsibility, whose whereabouts are not unknown, from any knowledge of, let alone participation in, care proceedings involving his children. Clearly the countervailing features must be overwhelming to justify such a course.

CONCLUSION

29. There are two further factors that influence my decision in this case. First, the father has shown no interest in making any contact with his children. He has always had and retains the right to apply for contact under Part II of the 1989 Act. So far as he is concerned his children are presently living with their mother without any contact to him and that is indeed exactly what the position in fact is. Moreover as things stand, the local authority would not have it otherwise. Secondly, the order to discharge him must be kept under review; were he actually to seek contact or were the local authority to seek to remove the children from the care of the mother, the matter would have to be reconsidered and the balance re-addressed. I should add that I am wholly unpersuaded at present that discharging the father and directing that the fact of the proceedings are not disclosed to him will significantly inhibit the local authority in the assessment they are actually undertaking.
30. In all the circumstances of this case I have concluded that I should discharge the father as a party to these proceedings. When the actual unfairness of that to him in this case is weighed against the risk of disclosure leading the father to the whereabouts of the mother and children and the consequence of any such discovery, I have no doubt as to where the balance lies at the moment. It follows that this decision will have to be kept under review and it should be the responsibility principally of the solicitor to the children to restore this matter should circumstances change, particularly in the ways suggested in the preceding paragraphs. I wish to record my gratitude to counsel for all their assistance in this case.