England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		8th March 2011

1. B applies to the court for a contact order in respect of his daughter, T. T is 8 years old. B's application is opposed by T's special guardian, MS, and by her guardian ad litem, the National Youth Advocacy Service ('NYAS'). MS has made a cross-application for an order under section 91(14) Children Act 1989 preventing B from making any further applications in respect of T without the leave of the court.

The background history

2. T's mother was D. D had two other children, J now aged 12 and K now aged 10.
3. B and D had a relationship together over a period of some four years. Their relationship was a violent relationship. On 3^rd February 2005 B stabbed D. She died from her injuries. D's mother, GS, was present at D's house at the time of the attack and was also seriously injured. In her police witness statement GS states that B was holding T at the time he carried out the attack. T was then aged 2.
4. B was charged with D's murder. On 16^th August 2005 he was convicted of manslaughter on the grounds of diminished responsibility. He was made the subject of orders under sections 37 and 41 Mental Health Act 2003.
5. Immediately following D's murder all three children were placed in local authority foster care. Care proceedings were issued. B played an active part in those proceedings.
6. For the first year after their mother's death the children remained in foster care. D's sister, MS, and her then partner put themselves forward as long-term carers for all three children. Following a positive assessment, all three children were placed in their care under interim residence orders. In due course MS and her partner sought special guardianship orders. That application was supported by the local authority and by the Children's Guardian.
7. By the time the matter was ready for final hearing MS and her partner had separated. The local authority and the Children's Guardian supported the children remaining in the sole care of MS.
8. The final hearing took place on 3^rd September 2007. All three children were made the subjects of special guardianship orders. The court granted leave to B to withdraw his application for a parental responsibility order. The order recorded an agreement that B could have indirect contact with all three children by way of cards sent three times a year. The cards were to be sent via the children's paternal aunt, A. The order provided that face to face contact between B and the children should be at the discretion of MS.
9. B has not had face to face contact with T since he was first remanded in custody. Indirect contact took place for a while. There was also direct contact between T and other members of her wider paternal family, in particular her aunt, A. All forms of contact between T, her father and other members of her paternal family ceased shortly after the making of the special guardianship orders.

The aftermath of the murder

10. B's criminal trial was not the end of the investigative process. On the evening of 1^st February 2005 D had contacted the police to report a serious incident of domestic violence at her home. The police failed to arrest B. They failed to implement their force's domestic violence policy. They failed to identify that D's children needed protection. Two days later D was murdered. The Independent Police Complaints Commission ('IPCC') undertook an independent investigation into the actions of the police leading up to the fatal stabbing. Its findings were published in August 2006. The findings led to misconduct proceedings being brought against two officers. Using powers given in the Police Reform Act 2002, the IPCC directed that the misconduct proceedings be held in public. This was the first time the IPCC had ever made such a direction.
11. The misconduct proceedings were heard in November 2007. The allegations of misconduct were found proved. Once again that was not the end of the investigative process. There next followed an inquest.
12. The inquest began in October 2009. It lasted for ten weeks. The jury found that failings not only by the police but also by mental health services and social services had all contributed to D's death. The coroner's report was published in April 2010.
13. Given that background history it is perhaps unsurprising that the investigative processes I have described attracted considerable media attention.
14. The effect of all of this on MS and the children is set out in detail in a written statement by her dated 12^th August 2010. She says that:

'5. …Even after the children were placed in my care, the legal proceedings continued because the children's Fathers continued to pursue Contact Orders. The Final Hearing was not until September 2007, more than two and a half years after their Mother's death. During these legal proceedings T and her siblings faced a high level of disruption throughout; being moved between foster carer's (sic) the involvement of social workers, letters from B, appointments with psychologists, visits from a psychiatrist, visits from their Guardian to mention a few. This was an immensely unsettling period for the children.

'6. November 2007 was overshadowed by a Police Disciplinary Hearing which was the first of its kind to be held in public…During the Hearing, Witness Statements were read out in public, detailing the final days of D's life and the terror that B inflicted upon her. Details of this were published in local, regional and national newspapers. The children, though not present at the Hearing, were undoubtedly troubled by the publicity…

'9. Added to our new anxieties [relating to the release of B], the final months of 2009 were marred by the Inquest into D's death. The Inquest began in October 2009 and lasted for 10 weeks, with the jury reaching their verdict on 18^th December 2009. In total, 10 failings were found by the jury against [the] Police, the Mental Health Services and…Social Services in their handling of the events leading to D's killing…[The] Coroner leading the Inquest, went on to publish his report earlier this year. This was an immensely stressful period of time for the entire family and one which I believe adversely affected the children even though they were not present at the Inquest. There was, again, media publicity and we believe that J, in particular was adversely affected by this, having just started at secondary school.'

Psychiatric assessment of T

15. During the course of the care proceedings all three children were assessed by Dr Martin Newman, Consultant Child and Adolescent Psychiatrist at St George's Mental Health NHS Trust in London. Dr Newman first saw T in September 2006. She was then three years old.
16. In his first report Dr Newman sets out in general terms the advantages and disadvantages of contact taking place:

'164. After the killing of a mother by a father, there are a number of possible advantages of contact between the child and the perpetrator that need to be considered. Such contact may maintain worthwhile relationships and attachments. The child sees that their father is alive. Such contact allows the child to see the father when he is calm. Seeing the father in a secure place may help the child feel safe. If the father can take responsibility for his actions, contact may help to prevent the child blaming him/herself, and allow and opportunity (or opportunities) for the father to apologise. Contact may allow the father opportunities to support the children's placement, and helps to keep his child(ren) informed about on of the families from which they originate.'

'165. There are, however, also a number of disadvantages and difficulties of contact that need to be considered. When those who care for the children feel threatened or angry about proposed contact visits, these feelings will be sensed by the children and may be detrimental to them. The father may, in some cases, use contact as a way of trying to blame the mother for her own death. Contact will be problematic when the father continues to deny responsibility, or if it is used to disturb or interfere with the relationship between the children and those caring for them. Difficulties are likely to arise if the child decides that he/she does not want to have regular, if any, contact with the father. Telephone contact may also be problematic. Such calls may be intrusive and are difficult to supervise.'

17. Dr Newman concluded that direct contact between T and her father 'may well be confusing for T at present'. He did, though, consider that 'occasional letters and birthday and Christmas cards etc. may be appropriate'. At the very least, he considered that it would be appropriate for B to be kept informed of how T is doing and, where appropriate, for his views to be sought.
18. At the time of Dr Newman's first report some indirect contact was taking place between T and B. T was also having some direct contact with other members of her paternal family. Dr Newman said that 'Direct contact with other members of her biological father's family is likely to be of benefit to T, if it does not undermine her placement with her carers, and is not used inappropriately'. That contact was subsequently stopped by MS because she felt that it was not being used appropriately and that it was undermining the placement.
19. Dr Newman prepared a second report in July 2007. For the purpose of that report he saw T again in June 2007. T was then just over 4½ years old. Dr Newman says that

'T seemed happy and interested in playing. I asked her where mum was and she said, "Heaven". I asked her, Where is dad? She said "He's in hospital. He killed mummy". She did not become distressed when she said this. I asked her, Do you think about mummy or daddy? She said "Mum".

20. In this report Dr Newman advised against both direct and indirect contact between T and B. There had been some suggestion that there might be a one-off, 'therapeutic meeting' between the children and B. Dr Newman advised against this saying that he was 'concerned that the stress and confusion that it will engender in them and their present carers will be detrimental to them'. He said he believed that

'the first priority is for the children to be settled and secure in a placement, and for their carers to be "strong enough" (physically and emotionally) to provide for the children's physical and emotional needs.'

21. Dr Newman expressed concern that at that point in time even indirect contact 'would further destabilise what is already a very stressful situation'. However, in an addendum report dated 1^st August 2007 he laid down a marker for the future. He said

'27. Whilst I do not feel able to recommend direct contact AT PRESENT, as I suspect that those caring for the children would find it difficult or impossible to provide the level of emotional preparedness and support that the children would need, I would still hope that, in due course, once the children's care arrangements are stable, and there has been a reduction in the level of stress that the S family are experiencing, it will be possible to plan for the children to meet with…B, as it may be helpful for the children to know that [B] supports MS in her care of the children, that [B] apologises for [his] actions in the past, that [he] loves the children, and that [he] remains interested in the children's progress. This is clearly a very difficult and delicate situation, which will require careful and thoughtful planning. It is also important that any direct meeting should not necessarily be seen as a precursor to more frequent contact…'

B's mental health.

22. For the purpose of the criminal proceedings B was assessed by two psychiatrists from the Raeside Clinic in Birmingham, Dr Renarta Rowe, a Specialist Registrar in Forensic Psychiatry and Dr Dinesh Maganty, Consultant in Forensic Psychiatry. Both agreed that B was suffering from paranoid schizophrenia characterised by auditory hallucinations and persecutory delusions. B told Dr Rowe that at the time he had felt that the hallucinations were due to him smoking cannabis. The voices became louder when he was intoxicated with cannabis.
23. Following his conviction B remained as a patient at the Raeside Clinic. In April 2008 he was transferred to a hospital in a different part of the country, the X Hospital. The most recent psychiatric report available to the court is a discharge summary prepared by Dr B in April 2009. Dr B notes that B had been free of psychosis since his transfer to the X Hospital. In the context of the evidence I have heard from B, one passage in Dr B's report is of particular note. Under the heading 'Drug and Alcohol History' Dr B records that

'B describes himself as being an occasional alcohol drinker up until 2003 when he stopped drinking completely. There is no evidence of problematic alcohol misuse. He has smoked cannabis regularly since 1999, mostly at weekends. He was using cannabis as his mental illness insidiously developed…'

First-Tier Tribunal (Mental Health)

24. B is a 'restricted patient' (see s.79(1) Mental Health Act 1983). As such, he is entitled to apply to a Tribunal at periodic intervals for the Tribunal to consider whether it is appropriate for him to be discharged from hospital (s.70). In this case the Tribunal hearings that have taken place have been an additional source of stress and distress to the S family, and none more so than the Tribunal held on 31^st March and 20^th April 2009 which determined that B should be conditionally discharged.
25. Discharge from hospital is, in practical terms, a process and not an event. As the patient begins to recover from his mental illness it is likely that he will be granted community leave from the hospital. Initially this is likely to be escorted leave, progressing, if all goes well, to unescorted leave. In the case of restricted patients permission is required from the Secretary of State before the patient can have either escorted or unescorted leave (s.41(3)(c)(i)). In time, if community leave goes well, the patient may be discharged into the community. In the first instance discharge is normally subject to conditions (s.73(2)).
26. In February 2006 B was granted escorted community leave. This was translated into unescorted community leave in October 2006, just eighteen months after D's murder. D's mother, GS, petitioned the Ministry of Justice. The decision to allow unescorted community leave was reassessed and withdrawn. Following B's transfer to the X Hospital, in August 2008 the Secretary of State again granted permission for unescorted community leave. Again the S family made representations. Again the decision to allow unescorted community leave was quickly rescinded. Unescorted community leave was reinstated a few weeks later.
27. That is the background that faced the Tribunal on 31^st March 2009. The evidence before the Tribunal was that during unescorted community leave B's behaviour and use of his time had been exemplary. He was described by nursing staff as a 'model patient'. On 20^th April 2009 the Tribunal conditionally discharged him. In their reasons, the members of the Tribunal noted that

'5. Dr W [the responsible clinician] expressed the opinion that it is no longer necessary to treat the patient in hospital. He was supported in this view by the entire treating team. The patient has developed a good understanding of his disorder. He has done a lot of reading about mental illness and is very knowledgeable about it. He currently displays no hint of psychotic symptoms. Dr W said that it is unusual in the case of schizophrenia for there to be such dramatic index offences followed by such a rapid recovery, but that it is possible. He did not agree that the patient's mental state at the time of the index offence could have been caused solely by a drug induced psychosis.'

28. In the context of the application now before me, the Tribunal's observations in respect of B's drug abuse are of particular interest:

'6. There can be no doubt, however, that drugs played a significant role in the index offences. The patient had been a substantial user of cannabis since 1999, but he has not smoked it since his admission to hospital. If he were to go back to it, he would be at risk of suffering a relapse of his mental illness. He knows this and understands the link between cannabis and mental illness. He has completed two courses on drugs awareness and others on relapse recognition and anger management…

'19. The Tribunal also accepts that there must be a risk that the patient will revert to drugs – perhaps with disastrous consequences – but the patient has been drug-free for a long time now. The Tribunal is inclined to accept his evidence that he intends to remain that way. He has had ample opportunity to take drugs while on [unescorted community leave], but has not done so. Moreover he will be carefully monitored in the community and will be subject to random testing.'

The Tribunal's judgment is silent on issues relating to past, present or future risk of alcohol abuse and on the implications of alcohol abuse for a relapse in his mental illness.

29. The Tribunal received written representations from D's mother, GS, opposing B's discharge. In response, the Tribunal said:

'10. Having seen her daughter stabbed to death by the patient and having suffered a brutal attack herself, the Tribunal can well understand the fears and concerns expressed by GS on behalf of herself and her family. Indeed in its ruling of 9^th January 2009 the Tribunal accepted that GS's fears were genuinely held by her. It seems that they can be summarized under 3 headings:

(1) The patient might relapse and use further violence upon her or other members of the family:

(2) The patient is likely to revert to the use of illegal drugs if discharged thereby precipitating a relapse;

(3) In view of the failings of psychiatric services and other agencies prior to the index offences, there can be no guarantee that there will not be similar failures in the futures.

'11. GS's concerns about the patient's family and about alleged past failures of psychiatric and social services are of themselves irrelevant to the Tribunal's task. The Tribunal is primarily concerned with the patient's mental state today and with the risk which he may pose to others if discharged.

'12. The Tribunal accepts that there is always some risk in discharging a patient with a relapsing illness, but has to be guided (a) by the evidence of the professionals who have been responsible for his care in hospital and (b) by the patient's conduct in hospital and on [unescorted community leave]. Dr W categorized the patient as a very low risk when he is well…'

30. The other notable point arising from the Tribunal's reasons relates to B's contact with the S family in general and T in particular:

'18. The patient impressed the Tribunal with his evidence concerning the S family. He said he felt really sorry for the victims. It causes him pain that his mind could cause such a bad thing to happen. He said that he thought it was good that MS has the care of T. She is a good role mother (sic). If he wanted to renew contact with T, he would instruct a solicitor, but not for another 3-5 years. When asked about how he felt towards GS, he said that he found her campaign against him frustrating, but that if he was in her shoes, he would probably feel like she does and that he could see where she is coming from.'

31. The conditions imposed by the Tribunal were in some respects the standard type of conditions one would expect to find a Tribunal imposing when discharging such a patient – a condition as to residence; a condition requiring him to attend upon and comply with the directions of his responsible clinician as to medication and treatment; a condition requiring him to co-operate with and comply with the directions of his social supervisor and other members of the care team; a condition requiring him to abstain from illicit drugs and to submit to random testing. Two other conditions imposed were not 'standard' but specific to the circumstances of this patient. They are:

'5. The patient shall be excluded from the area shown on the plan annexed hereto, namely, the area within a 25 mile radius of [MS's home] save that, with the prior authorisation of his social supervisor, he may travel by train or bus to [Z town] to visit his brother's home provided he does not travel through [Y town] in order to do so…

'7. The patient shall not attempt to contact or communicate with any member of the S family including his daughter T, GS, MS, J and K.'

The current proceedings

32. On 1^st May 2010 B issued an application for contact with T. The application was issued by solicitors acting on his behalf. He then had the benefit of public funding. His public funding certificate was subsequently discharged. I deal with that issue later in this judgment.
33. So far as is material, the basis of his application was that:

'During the course of the [care] proceedings the Court ordered that the Applicant should have indirect contact with the child. This indirect contact has not been facilitated by the Maternal Aunt. At the final hearing the court ordered that B's contact with the child should not be ruled out indefinitely. B would like his indirect contact to be reinstated and the Court to consider whether it is appropriate for him to have a supervisor at contact with his daughter.'

The guardian's evidence

34. Ideally it would have been helpful to reappoint the Children's Guardian allocated by Cafcass in the care proceedings as guardian ad litem in these proceedings. As she is now retired that was not possible. I therefore invited NYAS to act as guardian ad litem. NYAS appointed Mr Alan Jones as caseworker.
35. At the time of Mr Jones' visit to see her, T had been unaware of her father's application for contact. Mr Jones had been apprehensive about her response to the news. He found that T did not seem in any way distressed when told of her father's application. However, she was very clear indeed in her response to the application. Mr Jones says that T

'was quite clear that she did not want to see her father. She shook her head quite emphatically as she told me. I also asked her about seeing her Aunt A and again she said that she did not want to see her.'

36. Mr Jones notes that T had had some help from CAMHS around the issue of bereavement. That work was concluded more than three years ago. No further psychological intervention has been considered necessary. T enjoys the stability that she has in the care of MS. Mr Jones expresses concern that that stability could be put at risk by the impact of this present application on MS. He notes that 'emotions remain very raw within the maternal family'. Mr Jones noted the stress that B's application has caused MS. He also notes the financial pressure created by the need to incur legal fees to oppose the application.
37. In his written report Mr Jones arrives at the following conclusion:

'Whilst I do not doubt the sincerity of B's wish to resume his relationship with his daughter it is difficult to see how direct contact between him and his daughter could be achieved at this stage. T's expressed wishes and feelings are one factor and even if she had expressed an interest in seeing her father the difficulties this would create for her carers would bring other problems. In general, any contact regime will rarely succeed if the child does not have emotional support from his primary carer. In view of the maternal family's opposition to the application it is highly unlikely that such support would be available.

38. In Mr Jones' opinion, B's application is premature. He says that

'Whilst T is an intelligent child and does have some understanding of the past I do not think that she is capable of dealing with the complex issues that contact with her father would bring. These issues would include a potential conflict of loyalties as well as implications for her relationship with her half brother and sister.'

39. As for the possibility of indirect contact, Mr Jones said that he 'would not object' to B sending letters and cards though it was clear that he did not necessarily envisage these being passed on to T. Whether such material is passed on should be left to the discretion of MS. The writing of such letters at this stage would be more for B's benefit than T's, though that could change in time.
40. Mr Jones supports the making of an order under s.91(14). In his opinion it should extend to T's thirteenth birthday. He did not support such an order being in force until T's sixteenth birthday. Mr Jones speculated that in another four years 'things may well have calmed down'.

B's evidence

41. B has filed two written statements in support of his application, the most recent dated 3^rd February 2011. He says that his mental health has improved 'enormously' and that his condition is stable. He is compliant with his medication. He sees his consultant psychiatrist every four weeks and his CPN and social supervisor every week. He is living in supported accommodation and undertaking voluntary work in the community where he lives. He is taking positive steps to rebuild his life. He is deeply remorseful for the index offence but was very unwell at the time it was committed. He very much wants T to understand that he was unwell at the time of the offence and that he is 'not the person portrayed in the media and by her mother's family'.
42. In essence, B's case is that he now has some stability in his life and would like to rekindle his relationship with T. He believes that it would be in T's best interests for her to have a relationship with him and with members of his family. In his most recent statement he says:

'5. Please note from my previous statement that I would like to see and know my daughter…Furthermore, I am her father and am the only parent alive. It would be a shame if she…never knew me until she's of age. Moreover, please note that I don't want to cause any problems with the upbringing of T.

'6. I believe it would be in T's best interests for her to have some kind of relationship with her father and members of my family.

'7. My sister's contact had previously taken place at her address. I very much believe that it would be in T's best interest for this to start again.'

43. The consequence of the LSC's decision to discharge B's public funding certificate has meant that he has had to conduct this litigation as a litigant in person. Because he is prohibited from coming to this court by the exclusion zone condition imposed by the Tribunal, he has had to participate in this hearing by video link from his local County Court. His CPN was present with him to support him during the hearing.
44. I found some of B's oral evidence concerning. He said that he complies with the Tribunal's requirement that he should submit to random drugs tests. A test in December 2010 had been positive. He accepted that he had been smoking cannabis. He assured me this had only happened on one occasion and that he had only smoked three-quarters of one cigarette. The cannabis had been given to him by a friend. He had told both his social supervisor and his CPN about this incident the next day.
45. Prior to his conditional discharge from hospital B had been permitted to consume no more than one pint of alcohol per week whilst on unescorted community leave. Since his discharge he has been advised by his responsible clinician that he should not drink alcohol every day and that he should not have more than four units of alcohol per day. He now drinks regularly, though not every day. He estimates that he sometimes drinks six units a day. He has friends round to his home and drinks with them. They drink cognac mixed with orange juice. A bottle of cognac will last them around three or four hours.
46. B told me that life for him is very stressful at the moment. His care team know that he is stressed. He now accepts that he should not have direct contact with T until she reaches adolescence. Until then he would like to be able to send letters and cards. He understands the purpose of an order under s.91(14). He agrees to such an order being made until T's thirteenth birthday.

The special guardian's evidence

47. MS has filed one written statement. Neither B nor counsel for the guardian wished to cross-examine her. I therefore accept the evidence set out in that statement. MS sets out her position very clearly:

'2. I confirm that I am opposed to any form of contact taking place between B or members of his family and T. I take this stance as I am concerned about the trauma and disruption that J, K and T have experienced since the death of the Mother in February 2005. To establish contact would, in my view, cause serious distress not just to T but to all three children, and would not be in either her or their best interests.

'3. Since the death of their Mother the children have continued to be affected by the fallout from the events that took place some five and a half years ago. In fact, there has not been a single year that has passed since their Mother's death when there hasn't been some occasion which has forced them to relive the tragic events of February 2005…'

48. I noted earlier the impact upon the maternal family of the police disciplinary proceedings and the inquest two years later. It is clear from MS's statement that the Tribunal process has been another source of anxiety. She says:

'7. The annual tribunals continued to be a source of stress and in April 2009, the decision we had most feared was made: B was discharged after having spent 4 years subject to a Hospital Order. The decision to discharge B was one that my family strongly opposed given that so little time had elapsed since D's death. We never felt that there was any element of punishment for what he did. Throughout his Hospital order, we felt that B was, and continues to be, treated like a patient, not a criminal. Consequently, we, the family of D, have found ourselves struggling to come to terms with the knowledge that the man who took her life has been afforded so much freedom to get on with living his.

'8. In the wake of his discharge, all out hopes now rest upon the conditions of B's licence being adhered to, principally that he should not make contact with any member of the S family, including his daughter T. This condition is the only thing that can give us hope of finding peace: that might let us get on with our lives and not have to relive the horrors of D's death again and again. As far as I understood, B had agreed to adhere to these conditions on his release, so you can perhaps understand my distress when just a year after he was discharged, he is already seeking contact even though such contact is in direct contravention with his conditions.'

49. MS outlines some of the difficulties which have existed between her family and B's family and which led, ultimately, to her decision to stop all contact between T and her paternal family. In her opinion, by their conduct they have shown a lack of respect for her family. She says that the paternal family have 'insulted and undermined us and attempted to disrupt the children's placement with me'. She is concerned that a resumption of contact between T and members of her paternal family will undermine both her own stability and that of her family.
50. As for the likely impact of reinstatement of any form of contact upon her and other members of her family, including T, J and K, MS is again very clear. She says

'20. In summary, I do not believe that contact between T and either her Father or members of his family would be in her best interests. I believe that any such contact would be a source of anxiety and confusion for both T and her siblings J and K. Given the level of disruption that the children have already endured as a result of their Mother's death, I do not think any potential benefit from T knowing her father could ever outweigh the damage such contact would do to the children.

'21. It is perhaps also relevant that I would be deeply affected were such contact to take place. As the children's primary care giver I would not wish my emotional availability to the children to be compromised by the inevitable stress that the contact would cause. In addition the feelings of the wider members of the Maternal family should be taken into account given their important role in caring for the children and supporting me in this role. In particular D's Mother was seriously injured by B in the attack which killed D, and this has had an understandably lasting effect on both her and myself and the children.'

The Ministry of Justice

51. An issue arises concerning the relationship between any order made by this court and the conditions imposed by the First-Tier Tribunal (Mental Health) when discharging B into the community. An approach was made to the Ministry of Justice to ascertain the Secretary of State's position. On 22^nd September 2010 Mr John Buckle, Head of Casework Team Three in the National Offender Management Service, wrote to the MS's solicitors saying:

'Our understanding of the matter is that B is seeking leave in the Civil Court to challenge the condition prohibiting access to his daughter…It will be for the Court to determine, on the basis of the evidence, whether the prohibition made by the Tribunal, as a condition of B's discharge into the community, should remain in place. No doubt the Court will also form a view on whether B attempted to mislead the Tribunal when he said he would not instruct a solicitor in this matter within 3 years of the Tribunal hearing.'

The law

52. Notwithstanding the gravity of the background history I have set out, the approach of the court remains the same as in any other application by a parent for contact with his child. Section 1(1) Children Act 1989 requires that T's welfare must be the court's paramount consideration. In determining what is in the best interests of T's welfare I must have regard to each of the factors set out in the welfare checklist in s.1(3). I must also have regard to the Art 8 rights of B, MS and T and must seek to achieve an outcome that is both proportionate and in T's best interests.

Contact

53. Re L; Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334 remains the leading authority on the approach the court should take when considering an application for contact by a parent who has been violent towards the other parent. The starting point, as articulated by Dame Elizabeth Butler-Sloss P, is that

'There is not…nor should there be, any presumption that, on proof of domestic violence, the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.'

54. None of the four conjoined appeals dealt with by the Court of Appeal involved a case in which one parent had murdered the other. I have not been referred to, and am not aware of, any reported case in which the court has considered that issue. I have considered the recent decision of Hogg J in In the Matter of A and B [2010] EWHC B25 (Fam). Although that case provides guidance on the management of cases in which one parent has killed the other it does not provide guidance on the approach to be adopted by the court when determining such an application.

Future applications

55. MS seeks an order under s.91(14). Although that application is not opposed, there is an issue concerning the length of time for which that order should remain in force. The leading authority is Re P (Section 91(14) Guidelines)(Residence and Religious Heritage) [1999] 2 FLR 573. Having reviewed the relevant authorities the Court of Appeal extracted eleven principles of which the following are relevant to the decision I have to make:

(1) Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.

(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.

(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.

(4) The power is therefore to be used with great care and sparingly, the exception and not the rule…

(9) A restriction may be imposed with or without limitation of time.

(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.

Enforcing the Tribunal's conditions

56. Section 73(2) Mental Health Act 1983 gives the Tribunal power to conditionally discharge a restricted patient. Section 73(4) provides that the patient 'shall comply with such conditions (if any) as may be imposed at the time of discharge by the Tribunal'. Section 74(5) gives the Secretary of State power to vary any condition imposed by the Tribunal. The Tribunal does not have power to attach any sanction for failure to comply with a condition. However, s.42(3) empowers the Secretary of State to recall a conditionally discharged patient to hospital. In reality, therefore, the sanction for non-compliance is recall to hospital.
57. The Secretary of State is not obliged to recall a patient to hospital in response to breach of a condition. Recall is discretionary and will depend upon the circumstances. It follows, therefore, that in the instant case breach of the conditions not to go within 25 miles of MS's home and not to contact T or members of the maternal family would not necessarily give rise to a decision to recall to hospital.
58. In February 2009 the Ministry of Justice published The recall of conditionally discharged restricted patients. This guidance states that

'The key case law on the use of recall powers establishes that:

In order for the Justice Secretary to recall there must be evidence of mental disorder of a nature or degree warranting detention…

In order to justify recall and before recalling the Justice Secretary must have up to date medical evidence showing that these legal criteria for detention are met…

There is no need for the patient's mental health to have necessarily deteriorated in order to justify recall. If a patient has a mental disorder and is presenting an elevated risk linked to that disorder that warrants detention in hospital then the patient can be recalled.'

Under the heading Mental Health Unit's policy on recalls the guidance states that

'Mental Health Unit's policy is that patients will be recalled where it is necessary to protect the public from the actual or potential risk posed by that patient and that risk is linked to the patient's mental disorder…'

59. I have noted the evidence relating to B's drug abuse (both historic and recent) and to his current use of alcohol. In his Review of Homicides by Patients with Severe Mental Illness, published in March 2006, Professor Tony Maden, Professor of Forensic Psychiatry at Imperial College, London, recommended that (p.63)

'In patients subject to a restriction order there should always be consideration of setting conditions relating to abstinence from drugs or alcohol and the standard procedure should be immediate recall if that condition is breached.'

On this issue the Ministry of Justice's guidance states that

'Substance (or alcohol) misuse cannot, of itself, lead to recall, even if it is in breach of the patient's conditions of discharge. Substance (and alcohol) misuse will lead to consideration of recall if there is evidence that these are risk behaviours and/or such misuse is known to have had a detrimental effect on the patient's mental state. It is not necessary to wait for the patient's mental state to deteriorate, if there is evidence of a pattern of behaviour likely to lead to such a deterioration. What constitutes such a pattern will, of course, depend upon the circumstances of the case.'

Discussion

Contact

60. Whatever may be the twenty-first century equivalent to the proverbial man on the Clapham omnibus, he or she would likely be very surprised to learn that a parent who has murdered the other parent should nonetheless be entitled to make an application for contact with his child and even more surprised to be told that the court will not dismiss that application out of hand. However, I am satisfied that that is the position in law. Although the conduct of the violent parent in each of the four cases reported as Re L; Re V; Re M; Re H (Contact: Domestic Violence) bears no comparison with the violence inflicted by B, the general principle which I set out earlier applies equally in such a case. There is no presumption that when one parent murders the other the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, murder of itself cannot constitute a bar to contact. It is one factor – albeit a profoundly significant factor – in the difficult and delicate balancing exercise of discretion. That exercise must begin with a welfare checklist analysis.
61. Section 1(3)(a) requires the court to have regard to T's ascertainable wishes and feelings, considered in the light of her age and understanding. T has expressed her feelings very clearly both to MS and to the NYAS caseworker, Mr Jones. Although she was only two years old at the time of her mother's murder, T is now aged eight. She has lived in a household where, as a result of the various investigations that have taken place and the high-profile media coverage of those investigations, discussions about the circumstances of her mother's death and her father's mental illness are likely to have been frequent and intense. She is now at an age where she is capable of having some real understanding of the issues and is capable of expressing her own wishes and feelings. Those wishes and feelings are very clear. At the moment she does not wish to have any contact with her father, direct of indirect.
62. Section 1(3)(b) requires the court to have regard to T's physical, emotional and educational needs. T's physical and educational needs are the same as those of any other child of her age. That cannot be said of her emotional needs. Few children have to cope with the emotional trauma that inevitably follows when one parent kills the other parent. Few children have to cope with the frequent and intrusive media interest in their family with which T has had to cope. Emotionally, she needs the security and stability of her present placement and to be protected from further intrusive media interest in the life of her family.
63. Section 1(3)(c) requires the court to have regard to the likely effect on T of any change in her circumstances. It is impossible to predict with certainty what the impact would be upon T were there to be a resumption of contact, whether direct or indirect. However, given the history I have described and T's own expressed wishes and feelings, in my judgment it is likely that such contact would have a negative effect.
64. Section 1(3)(d) requires the court to have regard to T's age, sex, background and any characteristics of hers which the court considers relevant. The most important issue here is T's background as the child of a mother who was killed by her mentally ill father.
65. Section 1(3)(e) requires the court to have regard to any harm which T has suffered or is at risk of suffering. There can be no doubt that T has suffered significant emotional harm as a result of the events surrounding the death of her mother. To reintroduce contact with her father, direct or indirect, would in my judgment give rise to the risk of further emotional harm.
66. Section 1(3)(f) requires the court to consider how capable B and MS are of meeting T's needs. There is no question about the quality of care being provided by MS. She took over the care of her sister's children in the most distressing of circumstances. Since she became their carer, with the support of her family and in particular her mother, GS, her care of the children has been excellent. She has succeeded in bringing much-needed security and stability into the lives of these children.
67. As for B, he no longer seeks direct contact. However, even indirect contact requires some capacity on the part of a non-resident parent to be able to meet his child's needs.
68. It is clear that B was suffering from a serious mental illness at the time he killed D. Although the medical evidence suggests that he has made a good recovery from his illness and that he has developed a good understanding of and insight into his illness, it is nonetheless the case that he is still suffering from a mental illness. The decision of the Tribunal is that his illness is no longer of a degree that requires in-patient hospital treatment.
69. It has been suggested that B misled the Tribunal when he indicated that he had no intention of making any attempt to re-establish contact with T for three to five years. The evidence does not justify a finding to that effect. However, the fact that he has made this application so soon does, in my judgment, raise questions about the level of his insight into the impact of his actions. Having heard B give evidence, I am not satisfied that he has real insight into the impact on the children of the circumstances surrounding the death of their mother or into T's present emotional needs. Furthermore, notwithstanding the progress he has made, the level of B's consumption of alcohol and his recent use of cannabis raise concerns about the level of his insight into his mental health. On the evidence before me I am not persuaded that B is at present capable of meeting T's needs through indirect contact.
70. In this case the outcome of the welfare checklist analysis leaves me in no doubt that there should be no contact of any kind between B and T. An order for no contact would, in my judgment, be both proportionate and in the best interests of T's welfare.

Section 91(14)

71. That leaves open the question of when, if at all, B should be permitted to make a further application for a s.8 order without the leave of the court. He himself concedes that it is appropriate for there to be an order under s.91(14). He contends that it should last until T's thirteenth birthday. He is supported by the NYAS caseworker. MS contends that it should last until T's 16^th birthday. Once T reaches the age of 16 the court would only have the power to make an order for contact if 'it is satisfied that the circumstances of the case are exceptional' (s.9(7)).
72. Having reflected upon the evidence and having considered the guidance given in Re P (to which I referred earlier) I have come to the conclusion that in the exceptional circumstances of this case the longer period is more appropriate. In arriving at that conclusion I bear in mind, in particular

(i) The ongoing trauma suffered by this family ever since D's death as a result of a succession of investigations, some held in public, the substantial media interest in their story and their need for relief from being in the spotlight.

(ii) The fact that such a further application would catapult the family into yet another prolonged period of involvement in court proceedings which would likely include meetings with MS's legal team, with T's guardian ad litem, perhaps a further meeting with Dr Newman in addition to attendance at court hearings.

(iii) The fact that MS is not financially eligible for public funding and that, even if she were, the Government's intention to exclude some family proceedings from scope for public funding may mean that public funding would simply not be available to her. The expense of legal representation is an additional pressure on her family. That said, I commend the local authority for making a contribution to her legal costs in these proceedings.

(iv) The unchallenged evidence of MS that she would be deeply affected if contact were permitted (see paragraph 50 above).

73. In arriving at my decision to make the order last until T's sixteenth birthday I bear in mind that this order does not deprive B of access to the court but simply imposes a filter which would require the court to consider the factors set out in s.10(9) in deciding whether to grant leave for any future application to proceed.

Interface between these proceedings and those before the First-Tier Tribunal (Mental Health)

74. This case raises issues concerning the interface between family proceedings and proceedings before the First-Tier Tribunal (Mental Health). The letter from the Ministry of Justice to which I referred earlier implies that the family court has power to vary or discharge the conditions imposed by the Tribunal. I am satisfied that the court has no such power. Those conditions may only be varied by the Tribunal or by the Secretary of State. However, I am equally satisfied that the court is not constrained by the conditions imposed by the Tribunal. If the court considered that it was in T's best interests for there to be some form of contact between T and her father it would be the court's duty to make an appropriate order.
75. There are, though, two issues that need to be addressed. The first is the possibility that an order made in the family court, if complied with, would put a conditionally discharged restricted patient in breach of the conditions of his discharge and therefore at risk of recall to hospital. The second is that since the only sanction for breach of those conditions is recall to hospital (which as I noted earlier is discretionary and dependent upon further medical evidence) the conditions imposed by the Tribunal provide little if any protection for MS and the children.
76. As for the first of these issues, I have come to the firm conclusion that the welfare checklist analysis points very clearly to the inappropriateness of any form of contact between B and T at this point in time. I am satisfied that even indirect contact would not be in the best interests of T's welfare. I am satisfied that in the exceptional circumstances of this case an order that there should be no contact is both proportionate and in T's best interests. The problem of conflict between an order of this court and conditions imposed by the Tribunal does not arise. The question of the approach to be taken where there may be such a conflict is, therefore, academic. That said, it seems to me that in any case in which the court is seriously considering making an order which, if complied with, would cause a patient to be in breach of conditions imposed by a Tribunal, the appropriate course would be for the court to invite the Secretary of State to set out his position to the court and, in particular, to indicate whether and if so to what extent he is prepared to vary the conditions imposed by the Tribunal in order to enable the court's order to take effect without risk of the patient being in breach of the conditions.
77. As for the second issue, the need to give reassurance to MS and the children that the conditions imposed by the Tribunal really are intended for their continuing protection is, in my judgment, clear. For the reasons outlined earlier, I am satisfied that in their present form the protection provided by the conditions is, in truth, illusory. What is needed is an order of the court. This would give MS the reassurance that she would have the right to bring the matter back before the court in the event of breach.
78. With respect to the condition that B 'shall not attempt to contact or communicate with any member of the S family including his daughter T, GS, MS, J and K', that condition can be made the subject of a non-molestation order pursuant to s.42 Family Law Act 1996. The court has the power to make such an order even though there has been no formal application (s.42(2)(b)).
79. The making of an order preventing B from coming within a 25 mile radius of MS's home is not so straightforward. The combined effect of s.39(1) Family Law Act 1996 and ss.33(3)(g), 35(4)(d), 36(4)(d), 37(3)(d) 38(3)(d) is that an order excluding a party from a defined area in which a dwelling-house is included is an occupation order. In this case S does not meet any of the qualification criteria entitling her to apply for an occupation order. However, the fact that an occupation order may exclude a party from a defined area does not necessarily mean that an exclusion zone order may not also be a non-molestation order.
80. The word 'molestation' is not defined in the Act but has been given a broad interpretation by the courts. In C v C [1998] 1 FLR 554, for example, Sir Simon Brown P said that the word molestation 'implies some deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court'. Depending upon the context, to describe as 'molestation' the act of going within a defined radius of a particular location does not seem to me to exceed the ambit of the meaning of that word. Section 42(5) provides that

'In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being.'

In this case there can be no doubt of the need to secure the health, safety and well-being of MS, GS, T, J and K. That is precisely the purpose of the proposed exclusion zone order.

81. However, if my construction of the Family Law Act 1996 is too wide then I am satisfied that I have the power to make the same order under the High Court's inherent jurisdiction for the protection of children and/or under s.37 Senior Courts Act 1981. In arriving at that conclusion I rely upon some of the propositions set out in the judgment of Wall J (as he then was) in C v K (Inherent Powers: Exclusion Order) [1996] 2 FLR 506. That case was specifically concerned with the question of the court's power to exclude a person from his home in circumstances where he had a proprietary interest in the property. The case was decided prior to the coming into force of Part IV Family Law Act 1996. The increase in the scope of the protection afforded under the 1996 Act may have provided the solution to the problem in C v K. However, it seems to me that the propositions identified in that case remain applicable to fill any gaps arising in the protection afforded by Part IV Family Law Act 1996 and in particular cover the making of an exclusion zone order as well as an occupation/ouster order. Of the eight propositions identified in C v K, the following are of particular relevance to exclusion zone orders:

(2) Leaving on one side the parens patriae jurisdiction of the High Court over children who are specifically its wards, there exists an inherent jurisdiction in both the High Court and the county court to protect children from harm which is exercisable irrespective of the proceedings in which the issue of the need to protect the children arises.

(3) There is a co-existing jurisdiction given in the High Court by s 37 of the [Senior Courts Act] and in the county court by s 38 of the County Courts Act to grant injunctive relief in support of legal and equitable rights.

(4) The powers exercisable under ss 37 and 38 of the respective statutes may be invoked in support of the rights and duties conferred on a person by a residence order [or special guardianship order]. Thus, in cases where neither the Matrimonial Homes Act 1983 nor [Part IV Family Law Act 1996] applies, a non-residential parent may be restrained from interfering with the residential parent's exercise of parental responsibility. The powers of the court in this context extend to orders against molestation and to ouster injunctions.

82. In light of the recent decision of the President in CW & Ors v. TW & Ors [2011] EWHC 76 (Fam), handed down on 18^th January 2011, I am reinforced in my conclusion that the court has the power to make such an order. In his judgment, the President records that at an earlier hearing, in November 2010, he had 'made an order banning TW from the County of Wiltshire save for specified purposes' and that at the January hearing he 'retained the order banning TW from Wiltshire'.
83. In this case, whether made under the Family Law Act 1996, under the High Court's inherent jurisdiction or under s.37 Senior Courts Act 1981, there remains the question of whether an injunction mirroring the condition imposed by the Tribunal would be too wide. In my judgment, in the exceptional circumstances of this case it would not. Again, I draw comfort from the decision of the President in CW & Ors v. TW & Ors. Although there is no suggestion that B has breached either the exclusion zone condition or the communication condition, he has breached the condition requiring abstinence from drug misuse. He is also consuming higher quantities of alcohol than recommended by his responsible clinician. He continues to suffer from a mental illness albeit that at the time of his discharge from hospital he was symptom-free. In the event of relapse there is a risk that he could again be violent. The Tribunal acknowledged the risk that a relapse induced by drug abuse could have 'disastrous consequences'. I am in no doubt that in the event of relapse MS and the children are likely to be at risk of very serious harm. That this is a concern to MS is made very clear in her evidence to the court.
84. In the exceptional circumstances of this case I consider the terms of the proposed exclusion zone order to be both proportionate and reasonable.

The withdrawal of public funding

85. Finally, I wish to comment on the decision by the Legal Services Commission ('LSC') to discharge B's public funding certificate. I understand fully why MS and her legal advisers considered it appropriate to challenge the LSC about its decision to grant public funding to B in these proceedings. However, the LSC was not then obliged to respond by discharging B's certificate. Having granted public funding to B the LSC should have been very cautions indeed about withdrawing funding mid-proceedings. In particular I would have expected the LSC to have taken the following matters into consideration: (a) that although presently symptom-free, B suffers from a serious mental illness; (b) that the exclusion zone condition imposed by the Tribunal prevented B from attending any hearing held in this court; (c) that if B wished to challenge MS's evidence then, without the benefit of legal representation, he would have to cross-examine her himself – something which he would have found difficult and which she would have found very distressing; and (d) that the highly unusual circumstances of this case raise some difficult issues for the court to consider. Had the LSC considered issues such as these it is difficult to see how it could properly have come to the conclusion that it was appropriate to discharge B's public funding certificate. In my judgment, against the background I have described it was clearly in the interests of all parties and not just B that he should have had the benefit of legal representation in these proceedings.

Conclusion

86. The orders I propose to make are these: that B's application for contact with T will be dismissed; that there shall be no contact between B and T; that pursuant to s.91(14) Children Act 1989 B shall not, without the leave of the court, make any further application to the court for an order under s.8 Children Act in respect of T before 21^st November 2018; that there shall be an injunction mirroring conditions 5 and 7 imposed by the Tribunal (see paragraph 31 above), that injunction to remain in force until further order.