England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
EXETER DISTRICT REGISTRY

		28/04/2017

Mr Justice Dingemans:

Introduction

1. This is the hearing of a claim brought by A against Cornwall Council ("the council") pursuant to the provisions of the Human Rights Act 1998 ("the 1998 Act"). The case follows Family Court proceedings involving A, his son S, and his former partner M, S's mother, in which the Family Court ordered that there should not be direct contact between A and S. The essence of A's claim is that the council prevented A's direct contact with S and did not support A's application to have S live with him, because A had expressed views about abortion and same sex marriage in blogs on the internet, and that A's rights protected by the European Convention on Human Rights ("ECHR") to which domestic effect has been given by the Human Rights Act 1998 ("the 1998 Act"), have been infringed. The council denies the claim and says: it made proper safeguarding inquiries in relation to S; rightly considered blogs produced by A in which he had referred to a child of 8 months "hardly" being a real person; did not discriminate against A because of his views; made proper recommendations to the Family Court; and that it was the Family Court which made the relevant decisions.
2. I should, as a matter of fairness to A and the council, record that it was common ground in closing submissions that it would not be lawful for the council to prevent contact between A and S because of A's views and beliefs in relation to abortion and same sex marriage. Mr Pullen, on behalf of the council, asked that this point be emphasised to avoid any misunderstanding about the state of the law. As Hedley J. pointed out in Re L [2007] 1 FLR 2050 society must tolerate very diverse standards of parenting, which will range from the excellent to the barely adequate and include the inconsistent. Society must also tolerate very diverse views among parents – it would not be a modern democratic society without such tolerance - and this requirement is part confirmed by article 2 of the First Protocol to the ECHR (Part II of Schedule I to the 1998 Act) which provides that "… the state shall respect the right of parents to ensure … education and teaching in conformity with their own religious and philosophical convictions".
3. The Family Courts will give effect to the ECHR in Family Court proceedings pursuant to the provisions of the 1998 Act, see generally Re L (A Child) v A Local Authority and MS [2003] EWHC 665 (Fam). Claims for threatened infringement of the ECHR should be raised and addressed, if possible, in those proceedings. This should avoid the need for the duplicity of proceedings. However it is apparent that on occasions there may need to be separate proceedings for remedies available either under the common law or under the 1998 Act where past actions of public authorities have caused loss to family members. Issues of procedure in relation to claims under the 1998 Act were addressed in GD and others v Wakefield Metropolitan District Council [2016] EWHC 3312 (Fam) and SW & TW (Human Rights Claim: Procedure) (No 1) [2017] EHWC 450 (Fam).

The issues

4. The Council made applications to strike out the claim which were not successful, and as a result of earlier case management orders it is now common ground that the following issues arise: (1) whether the Council acted in a way that was incompatible with any of A's rights protected by articles 8, 9, 10, 12 and 14 of the ECHR in breach of section 6(1) of the 1998 Act; (2) if so, what, if any, relief or remedy should be provided to the Claimant. I should record that in his submissions at trial A: maintained claims under article 6 of the ECHR; made claims about his treatment by various schools; and claimed that there had been an infringement of the public sector equality duty under the Equality Act 2010.
5. There is no doubt that A feels immensely resentful about the order made by the Family Court, but it is common ground that it is not my function to revisit the conclusions made in the Family Court. (I have used the term Family Court even though the Family Court only came into being in 2014 for ease of reference). I am grateful to both A and Mr Pullen for their efforts in attempting to avoid revisiting those issues. Mr Pullen did ask A why he had not issued further proceedings in the Family Court to re-establish contact given that A said that he had addressed issues relied on against him in the Family Court proceedings, for example the issue of visitors to his accommodation. A said that he considered that until he had addressed the issue of his beliefs with the Council in these proceedings nothing would change in the Family Court, but whether this is so is a matter for the Family Courts and not for me.

Reporting restrictions and the hearing in public where possible

6. The Family Court proceedings were held in private, pursuant to the provisions of Rule 27.10 of the Family Proceedings Rules ("FPR"). It is apparent from the short background that I have set out above that there is a need to protect the identity of S.
7. By an order dated 24th February 2015 it was ordered that the Claimant's name be anonymised to "A" and the claim be known as "A v Cornwall Council". It was also ordered that there should be no disclosure of information or documents arising in this case that might lead to the identification of S.
8. In an order dated 23th October 2016 it was ordered that this trial be heard in private, but it was also provided that the trial Judge would keep this issue under review during the trial so that discrete issues might be heard in public. Orders were made preventing unfettered public access to documents referred to at the trial.
9. As the trial Judge I informed the parties that I would try and hear as much of the claim in public as possible, but would require their assistance. It is essential for the maintenance of public confidence in Court proceedings that proceedings in Court are heard in public where possible, because this allows members of the public to see and assess for themselves what is occurring in the Courts. If proceedings are held in private the narrative about what is happening in the Courts is likely to be provided by the litigants, at least one of whom is likely to be disappointed by a judgment.
10. At the start of the trial there was a short part of the hearing which took place in private to discuss ways in which the proceedings could be conducted in public, and (apart from a very short part of cross examination of A which A indicated needed to be heard in private to avoid answers being given which might lead to identification of relevant persons) the trial was heard in public. In the event there was not much attendance by the public at the trial. On occasions A, Mr Pullen, witnesses and I all inadvertently used A's name, and there was one reference to S's name. In these circumstances I will make an order that no one should have access to the transcripts of the hearing without making a formal application on notice to the Claimant and Defendant.

Relevant statutory provisions in the Children Act and Human Right Act

11. Section 7 of the Children Act 1989 ("the Children Act") provides that a Court considering any question with respect to a child may ask a local authority to arrange for an officer of the authority to report to the court on such matters relating to the welfare of the of that child as a required to be dealt with in the report.
12. Section 17 of the Children Act provides that there is a general duty on every local authority to safeguard and promote the welfare of children within their area who are in need.
13. Section 47 of the Children Act provides that where a local authority has reasonable cause to suspect that a child who lives in their area is suffering, or is likely to suffer, significant harm, the authority shall make or cause to be made such inquiries as they consider necessary to enable them to decide whether they should take action to safeguard or promote the child's welfare.
14. The 1998 Act gives domestic effect to the provisions of the ECHR. So far as is relevant in relation to the ECHR: article 6 provides a right to a fair and public hearing; article 8 provides a qualified right to respect for private and family life; article 9 provides an absolute right to freedom of thought, conscience and religion and a qualified right to manifest beliefs; article 10 provides a qualified right to freedom of expression; article 12 provides a right to marry and found a family; and article 14 provides for enjoyment of rights without discrimination.

Evidence

15. On behalf of the Claimant I heard evidence from: A, the father of S; HV, who had acted as a health visitor to M, S and A; and R, a Reverend whose Church had been attended by A and who gave some evidence about A's beliefs and the blogs. On behalf of the Defendant I heard evidence from: SM, a senior manager in the Council's social services department; and SW, a social worker in the Council's social services department who carried out relevant investigations.
16. Much of the evidence was documentary and common ground but there were some disputes of facts. The matters set out below represent my findings of fact unless otherwise stated.

Relevant events

17. A is the father of S. S was born following A's relationship with M, S's mother. Both A and M had had mental health issues in the past. There is some evidence that A had met M after offering support for her mental illness, and that the relationship had developed after such a meeting, but it is not necessary for me to make findings about the circumstances in which the relationship started.
18. S was born. HV provided support to M, A and S and there had been no continuing concerns about the abilities of A and M to cope. As a result the council's social services department had not been involved with A, M or S for a period. Although A and M maintained separate households, they were both involved in bringing up S for the first two years of his life. There is a dispute about the extent to which A and M had lived together in the first two years of S's life but it is not necessary for me to resolve that dispute given the issues in this action.
19. The relationship between M and A then broke down. After the breakdown of the relationship between M and A, there was an agreement made by M and A which provided for A to have continuing contact with S. However it is apparent that the relationship between M and A became more difficult. A said that he had heard that a false report was going to be made by M to the social services department to the effect that he had smacked A. It was in these circumstances that on 3^rd April 2013 A made a reference to the Council's social services department to the effect that it was going to be alleged by M that he had smacked S. The matter was reviewed by the social services department and it was noted that there had been an "acrimonious separation and both parents are making counter allegations". By letter dated 5^th April 2013 A was informed that there would not be a referral in relation to the matter, and part of the reasoning appears to have been that no allegation had been made against A. It was apparent from A's evidence that he was unhappy that the council did not investigate the issue of whether M had coached S into making an allegation against him. However at the time that the council did not investigate A's reference there was no evidence of a complaint made against A. Further A did not allege to the council that S was being coached by M to make an allegation against him. It is apparent that this was in part because A did not want M to lose contact with S, A having formed his own view that M would be at risk of M losing contact with S if he made such a report. I am unable to say whether there was any foundation for that view and I have not heard from M so it would not be appropriate for me to comment on A's view.
20. However on 8^th April 2013 M reported an allegation that A had smacked S leaving a red mark. The social services department decided to consider whether M's allegations had any substance and the emotional impact on S of the battle between A and M. On 9^th April 2013 it was decided to carry out a Children In Need ("CIN") assessment. This was to focus on M's allegations, parental mental health, contact and care and well-being for S. In the light of the history the decision to focus, among other matters, on parental mental health was a proper one. It part explains why, as appears below, SW wanted to find out about A's views.
21. On 10^th April 2013 there was a phone call by A to the multi-agency referral unit ("MARU") requesting that SW, who was dealing with the matter on behalf of the social services department, contact him. A was worried his contact with S had stopped but that M's contact with S was continuing. On 11^th April 2013 SW called A but there was no answer.
22. On 11^th April 2013 there was also a joint visit by SW and the police to M. SW gave clear evidence that during that visit S had reported that A had smacked him, and that SW, who has had 20 years of experience of dealing with children making complaints over a considerable number of years, believed the complaint by S. I accept that S made a statement about being smacked by A, and that SW believed what S had said, but again it is common ground that it is not my function to determine the truth of the underlying allegation made by S against A because that was determined in the Family Court proceedings. It was also apparent from SW's evidence about that visit, which I accept, that she considered that M was a very anxious lady who reported concerns about her dealings with A. M reported that there was no point of debate with A because he would go on and on until she changed her mind. M reported that A raised concerns about whether she would continue being involved with S's care. SW said that she formed the view that A's relationship with M had involved at the least emotional abuse. I accept that this was SW's view of the relationship (and it is not necessary for me to determine whether this was an accurate view of the relationship) and it explains why SW was keen to arrange support services for M. This was not evidence of bias against A but demonstrated a proper concern by SW for M.
23. The police advised that A should have no contact with S during their investigation. M handed the police a photograph purporting to show a mark on S's cheek. A contended that the photograph which was handed over on 11^th April 2013 was deliberately grainy so that it looked like a bruise on S's cheek, whereas he said that the actual photograph showed spots on S's cheek. Again it is common ground that it is not for me to revisit findings of fact made by the Family Court about whether A had smacked S, and I do not do so.
24. A complained that it was the social services department and SW who were behind the decision to stop A's contact with S. On the evidence before me, which includes the contemporaneous documents, I am satisfied and find that it was the police who told M that there should not be contact between S and A during their investigation. SW said that this was normal police practice. I have not heard from the police about the reasons for this practice. In certain circumstances such a practice might be sensible, but everything should depend on the particular circumstances. A made the perfectly proper point that we do not live in a police state, but it is apparent from the evidence below that M was keen to avoid A having further contact with S, and it was M who was taking the practical steps of preventing contact between S and A.
25. On 12^th April 2013 there was a further call between A and SW. A asked if SW knew about the earlier investigations carried out by the council's social services department and the fact that A and M were suing the council. SW confirmed that she knew this, but said it was a different matter. It is apparent that this was a reference to minutes which had been supplied in response to earlier disclosure requests made by A and M and litigation against the council arising out of that request. The evidence did disclose that A was very litigious, and had brought actions against various bodies. A made the point that bringing an action to the Courts is better than joining unlawful protests. That is obviously right, but that does not mean that every dispute can only be resolved by litigation.
26. A CIN assessment, pursuant to section 17 of the 1989 was carried out. It was completed on 15^th April 2013. That assessment noted that M and A had worked together to meet S's needs, but the couple had ended their relationship. I should record, because it is apparent that A blames the council for most of his current problems, that the disputes and difficulties between A and M commenced without any involvement of the council and SW.
27. In evidence A suggested that the council should have promoted a reconciliation between A and M. The evidence before me did not suggest that any attempted reconciliation would have worked.
28. In the assessment it was noted that M said that she had worked to enable A to have a relationship with S. It was also noted that recent changes would affect S and that he was likely to be significantly affected if his parents were not able to agree. It was concluded that a child protection assessment under section 47 of the Children Act 1989 should be carried out.
29. On 17^th April 2013 there were communications between A and M about a solicitor who had been dealing with their litigation against the council. A team leader for the social services department signed off the CIN assessment, and on 17^th April 2013 there was a strategy discussion.
30. On 18^th April 2013 there was an email from M to A. This email was about what S had said about A, and M said that she had to report matters so that she would not be accused of neglect. On 24^th April 2013 A commenced Family Court proceedings seeking an order that S reside with him, and in the alternative that there be contact between S and A.
31. On 25^th April 2013 M called SW saying, among other matters, that she did not want S to have contact with A. She was advised to get legal advice. On the same day A called SW. He was angry at the delay which he believed was harming S, because he had not seen S for 3 weeks. A informed SW of the Family Court proceedings. SW said to A that the section 47 inquiry would not be completed until the police inquiry was complete.
32. On 3^rd May 2013 there was a long discussion between A and SW, and it was noted that A's police interview was scheduled for 7^th May 2013. A complained that there was no need for SW to wait for the police interview before speaking to him on a substantive basis. A reported that he believed that M was using any tactic to prevent him from being involved with the care of S, that S was happiest with both parents, and that A was concerned about S being restricted to contact with M. As I have set out above, I accept and find that M did not want contact between A and S. It is not for me to determine whether that was a reasonable approach for M to have taken.
33. In the course of the discussion A said that he had had good memories of the past dealings with the social services department in 2009 and 2010. It was apparent from the notes of the meetings that SW considered that A was likely to attempt to make arrangements for contact with S through S's school.
34. On 7^th May 2013 there was an attempt to have A's interview with the police but it did not go ahead because of police concerns about the need to arrange for an appropriate adult for A.
35. On 9^th May 2013 SW phoned A in response to messages left by A. It was not a happy phone call. A accused SW of breaching his article 8 ECHR rights, and complained about the fact that he was being investigated but M was not being investigated for coaching S. A thought SW was biased, but SW felt that she was not being listened to by A. SW advised A how to make complaints to her manager, and in the end terminated the call. It was apparent from all the evidence that A had many qualities, but he enjoys arguing (he said in evidence that he had been schooled in the art of argument by his father) and it is apparent that once A has convinced himself of the correctness of his position, he considers that all it will take is time in argument before he is able to persuade anyone else to accept his view because it is right. It was apparent that A genuinely thought that SW was biased against him because the allegation of a smack by A on S was being investigated, but the issue of M coaching S was not being investigated. In my judgment A lacked the insight into the fact that he had not, in his first referral to the social services department, expressly referred to the fact that M was coaching S to make an allegation against him. Further SW gave evidence, which I accept, that she was no stranger to attempts by parents to use children to make false allegations, and that she heard and accepted what S had said. That is not evidence of bias on SW's part. It was in these circumstances that the call was terminated. SW said, and I accept and find, that she did not terminate many calls. This conversation does seem to have reinforced SW's negative assessment of A as a person.
36. On 11^th May 2013 M communicated with the council about the outstanding litigation about disclosure, saying that A was playing games and she wanted to settle the litigation.
37. On about 13^th May 2013 the police, who were continuing their investigation into the allegation against A, discovered the blogs which had been prepared by A. They were handed by the police to the social services department because the police considered that the social services department might consider them relevant to their investigation and assessment. A said that he was appalled that the police should consider it appropriate to have sent the blogs to the social services department, but it is apparent that the police were keeping the social services department informed about matters relevant for the consideration of the social services department arising from the police investigation. This is because, taken literally, the contents of the blogs and the comment about whether an 8 month old was a real person raised issues to be considered by the social services department. It is necessary to set out some of the details of the blogs and my findings on them.

The blogs

38. A said that he had set up his blogs, and sent out invitations to follow his blogs. He said he could see from automatic responses to the invitations that his blogs had been followed by members of the House of Lords.
39. One of the blogs was headed "Catherine Schaible's right to choose". The executive summary noted that Catherine Schaible had been convicted of involuntary manslaughter, it appears in proceedings in the United States. The blog continued "recently, another of her five children, who was only eight months old, hardly what you'd call a "person" yet, also fell ill and died" (underlining added). It continued "if you don't want to kill your baby by neglect, then don't kill your baby by neglect. Simple". Later in the article "the Supreme Court of the United States has ruled that the government has NO RIGHT to interfere in a woman's private relationship with her physician".
40. It was apparent, from the evidence before me and I find, that A has strong views that a foetus is a person and that abortion involves the wrongful killing of an unborn child, and that he does not consider that a pregnant woman has a right to choose what is to happen to her pregnancy in such situations. As A noted, one of the areas of disagreement between those who consider abortion is wrong and those who consider that a pregnant woman should have the right to terminate the pregnancy, is whether a foetus is a person. It is necessary to record this, because it is apparent that A's blog which caused the police and then SW the most concern was A's comment that an 8 month old child was hardly a person.
41. Another of the blogs was headed "The homophobic manifesto", below which was inserted a copy of the front of "The homosexual manifesto". A said that the "Homosexual manifesto" was a famous essay written by Michael Swift, with which A strongly disagreed. A's "homophobic manifesto" was said on his blog to be "a counterblast to Michael Swift's famous essay". The blog continued "This essay is an outré oasis of sanity, a triumphant, benign fantasy, an eruption of inner love, joy and peace, on how the oppressed desperately dream of a world where nobody is persecuted for "thought crimes", not even homophobic people", and it is apparent from A's evidence that he had used some of the wording in Michael Swift's "homosexual manifesto" but altered the views which were being promoted.

The evidence about A's beliefs

42. R gave evidence that at his church, attended by A, it is believed, among other matters: that abortion is wrong because it involves the wrongful killing of an unborn child; and that same sex sexual activity is wrong.
43. A gave evidence about his beliefs. It was apparent that he shared the belief that abortion was wrong because he said abortion involves the wrongful killing of an unborn child. I accept and find (and by the end of the case it was effectively common ground) that A was using the phrase about an 8 month old child "hardly" being a person in his blog in an attempt to parody the argument that a foetus is not a person. However it was also apparent from the evidence, and I find, that SW took the comment literally, and having taken it literally was understandably concerned about it.
44. The evidence about A's beliefs about same sex sexual activity was less clear. This was because although A said that he followed the teaching at his church by R on same sex sexual activity, he also said his views were homophobic. As Mr Pullen pointed out homophobia is defined as dislike or prejudice against homosexual people (paragraph 46 of the Defendant's Skeleton Argument) whereas the religious belief about which R gave evidence relates to the same sex sexual activity and not the person. In relation to the issue of homophobia A said that because he believes that same sex sexual relations are wrong he has been labelled homophobic, and he referred to newspaper articles. A then said that if that was the label that was used about him and his views, he would use it, and it was apparent that A referred to his views as homophobic to others. It was apparent from the evidence before me and I find that A considers same sex sexual activity to be wrong, and that he considers that same sex marriage should not have been legalised and that the campaigns for same sex rights should not have succeeded. A gave some evidence, which was not clear and about which it is not necessary to make findings, about his own sexual experiences as he was growing up. It is difficult to determine whether A was homophobic (as defined by the Defendant), or simply repeating the label he said he had been given to him. It is not necessary to make a specific finding about this because, as appears below, in the specific circumstances of this case nothing turns on this finding.

Events in later May 2013

45. On 17^th May 2013 there was a police interview with A. A gave evidence of an alibi at the time when it is alleged that he had smacked S, supported by a bus ticket. At the end of the interview A was told that no further action would be taken against him. The police also called SW and said that they did not have sufficient evidence to proceed. It was apparent that after the interview with A the police had concerns about A because they agreed that it was likely that S had been hit by A and advised that SW should not meet A alone because A might twist what was said. The police said that they were happy that SW could now meet A.
46. On 17^th May 2013 there was a meeting with the team leader. It was reported that the police and social care believed what S had said. It was also noted "there is significant concern around the emotional impact upon child of [A]'s behaviours and beliefs which is evidenced on line, treatment of mother and general responses to anyone involved". The Case Management Decision was recorded. This showed SW as the "worker" and SM as the "manager". It reported that S's allegation that he had been hit in his face. The decision continued recording "The most significant concern relates to [A]'s attitude and behaviour and beliefs that he has shared via the internet. Particularly that an "8 month old child can hardly be called a real person". We do have evidence from previous interventions that [A] is known to have had mental health problems. There is significant evidence to suggest that [A] was very controlling and emotionally abusive towards [M] during their relationship, she now understands this …" (underlining added). It was also noted that there were Family Court proceedings, and that it was likely that the Court would require a section 7 report.
47. On 17^th May 2013 SW sent M an email. This is another contemporaneous record of SW's views at that time. SW reported that "I will be telling [A] that I believed that he did hit [S] and also that I have concerns re the impact his views and behaviour will have on [S]'s emotional development. I will be saying that we do not support contact at this time … I will be informing him that we should not support him having shared residence of [S] and will be advising the court that if they deem contact to be appropriate it should be supervised and the frequency of contact should be restricted. I will be advising that these recommendations should remain in place even as [S] gets older. Obviously the court will make final decisions but they do generally take full account of our recommendations" (underlining added).
48. On 20^th May 2013 SW invited A to a meeting on 23^rd May 2013. There were some email discussions about a "not" which had been mistyped into SW's email, and A reported that he needed to take some decisions before the meeting, and he asked SW to phone him. A said he had some questions about the procedure. SW did not call. On 22^nd May 2013 SW emailed M, recording that SW would be meeting A tomorrow and saying that SW would inform A that M did not support contact, which would have the advantage of removing A from S when he was being told that. This last comment was designed to meet M's concern about how A would react to S if he was told that direct contact was not going to be recommended.

The meeting of 23^rd May 2013

49. On 23^rd May SW met with A. HV also attended the meeting. SW gave evidence that she kept a manuscript note of the meeting which she typed up after the meeting into the file note which is in the trial bundle. HV also produced a copy of the note that she had made of the meeting.
50. Having heard both SW and A, and also HV, and having had the opportunity to read the note made by SW and the note made by HV, I accept and find that both notes provide a reasonable picture of what occurred at the meeting. It was common ground that not every word had been recorded, and it is plain from the notes that SW's note was more comprehensive than the note produced by HV. I also accept that SW's note reflected the general order in which the discussion had taken place.
51. As appears from SW's note the meeting started off with a discussion about the completion of the police inquiry, and the fact that A would not be prosecuted. SW stated to A that she had heard S report that A had smacked him and believed him. I accept A's evidence that he responded with words to the effect of "audi alterem partem", and it is apparent from SW's evidence on this issue, which I also accept, that she did not immediately understand what A was saying. It was apparent that A considered it to be very unfair that he had not had the opportunity to answer the allegation made by S before SW had made up her mind that the allegation was probably true. This is because A said he was not even present at the flat when he was alleged to have hit S, and he relied on the bus ticket which he had produced to the police.
52. It is apparent that, notwithstanding what A said, SW believed S's disclosure to her about being smacked, because of the way S had reported it to SW. However it is also right to record that the fact that SW said that she believed S before hearing from A was unfortunate. This is because it meant that A lost confidence in the process. Even if A was not (in the final event) to have direct contact with S, it was important to ensure that the process was fair so as to command confidence. Although this was a difficult start to the meeting SW did say that the issue of whether A had smacked S would not be an unsurmountable obstacle to contact between A and S. SW did say that she did have other concerns "about his views and behaviours" that SW wanted to discuss with A.
53. A said, and I accept, that when SW said that she wanted to discuss his "views" his hopes sunk. A had read about a case which he understood to have involved the refusal to allow persons who shared his beliefs about same sex sexual behaviour to be foster carers, which was R(Johns) v Derby County Council [2011] EWHC 375 (Admin); [2011] HRLR 20. It is apparent from a careful reading of the judgment (which was the hearing of a renewed application for permission to apply for judicial review) that the local authority in that case did not have any policy to the effect that foster carers would have to compromise their beliefs about sexual ethics to be approved, see paragraph 15. However it is apparent that once A heard that his "views" were being considered, he said that he had a spiritual experience because A considered that he would be discriminated against because of his religious beliefs. Indeed it is apparent from the way that A has put his case that he considers that this has happened in his case. I also find that A began to disengage from the process because he considered that he would never be supported in having contact with S.
54. A did ask SW what she meant, and SW replied that it was said that A had strong beliefs and that he never admitted that he was wrong. A replied that he did not understand, and that he was now 60 years old and was entitled to have opinions. SW then asked A about the blog and the reference to a child of 8 months not being a real person. A replied that SW was "not very clever" that it had been read out of context and that SW did not understand satire and black humour. A did say it was his way of using the pro abortion arguments to an older child, saying it was his way of explaining that the argument was not valid, and that SW was stupid if she had taken it as his view.
55. By this stage I find on the evidence that A was now convinced that he was going to be discriminated against because of his religious beliefs. He had stopped listening to SW. I also find that SW continued to take A's comment in his blog about an 8 month old child "hardly" being a person literally, and that she was concerned about it given the history of A's mental illness. The fact that SW continued to take the comment literally was in part because A did not bother to explain in clear terms to SW that he was attempting to parody arguments of those in favour of abortion, and that he had not intended the comment to be taken literally. Instead A had decided that SW was "stupid" and did not bother to explain what he meant to her. I also find that by this stage SW had become reinforced in her views that A was rude and incapable of compromise.
56. SW did continue saying that she was trying to understand A's views and whether he was able to negotiate and compromise, and allow children to develop their own views. A said he did not understand and SW then asked how he would feel if S came back and said that he was gay. A responded that S was only 2 years old. There is a dispute between SW and A about whether SW introduced this question by asking how A would react "if S came back and said I'm gay and I've got a boyfriend and you were violently opposed to this". A said this was how SW had put the question, and said that the question suggested her answer namely "you were violently opposed to this". SW did not remember framing the question in those terms. It is common ground that SW did ask A how he would feel if one of his adult daughters told him that they had had an abortion, and A replied that he would be devastated. SW asked how that would affect their relationship. SW said then records that A went off at a tangent, but A said that he was trying to explain his views.
57. It was apparent from SW's evidence, and I find, that she was not aware of Michael Swift's essay "the homosexual manifesto" or that A was writing his response to Michael Swift's essay. It was also apparent from the evidence, and I find, that A considered that it was obvious that this is what he was doing. Indeed A expressed surprise that Mr Pullen, on behalf of the council, should have asked questions about A's use of "homophobic" when questioning R. In this respect although A appeared to have taken offence at his views being characterised as homophobic (and it was common ground that there was a principled difference between religious beliefs about same sex sexual behaviour and homophobia) A did not seem to have insight into the fact that heading his own essay "the homophobic manifesto" might give rise to concern about whether A would let S develop his own views and beliefs.
58. It is not necessary to determine the minor disputes of fact between SW and A about what was said at the meeting. This is because I do not accept that either SW or A had a clear and reliable memory of exactly what was said at the meeting (which is not surprising given the passage of time) and because it is apparent that, whatever was exactly said, both A and SW stopped communicating with each other at the meeting. The evidence from both A and SW shows, and I find, that A had started saying that certain matters were none of SW's business, and this included issues about his mental health and his relationship with S. I should record that both were proper matters to be raised by SW with A. The meeting went on to discuss A's views about M's parenting abilities. The meeting concluded with A sharing his view about SW's bias, and that she was looking to get A out of S's life.
59. A has absolute freedom of thought and belief, and A has a qualified right to communicate his thoughts and beliefs, and it is common ground that the publication of the blogs was lawful. However given that he had expressed himself in a way that was open to misinterpretation if read literally, for example in relation to an 8 month old child being "hardly" a person, A should have been prepared to explain what he was intending to communicate to SW. That is not a "chilling" of freedom of expression, as A suggested in closing submissions, because A was at liberty to continue publishing the blog in that form, but it would have meant that SW's proper concerns formed because she had read the blogs literally were properly addressed. If A had taken the time to explain that the blogs were not to be taken literally, there is no doubt that the meeting of 23^rd May 2013 would have been much easier for both A and SW.
60. I should also record that, having listened carefully to SW and her evidence that she was prepared at the meeting to reconsider her view, that I accept that SW was prepared to recommend contact between S and A, if she had considered as a result of the meeting that contact between S and A would have been in S's best interests. This is notwithstanding the terms of the email to M and the case management decision recording that the council had decided not to support A's contact with S. However I should record that the evidence showed that SW had formed clear views that: S's disclosure was genuine; A was intolerant of other views and difficult (partly from her telephone calls with A); and A's view was that an 8 month old was not a real person. This meant that she was very unlikely to change her view without an explanation from A about his blog.
61. Having seen the notes of the meeting and having heard both A and SW I am satisfied that SW's recommendation that A should not have contact with S was not made because A believed that abortion and same sex marriage was wrong. I am also satisfied and find that SW took A's blogs literally and was concerned that A had considered that an 8 month old child was not a real person (with all the obvious implications that such a view might have for his dealings with S). I also find that having read and taken the blogs literally, SW found support for her concerns from the reports by M to SW that A was intolerant of any different views from his own.
62. I should record that in questioning at the trial SW did accept that it might have been better to have tested A's abilities to parent without saying that she had concerns about his views and asking about how he would deal with S having a same sex sexual relationship when underage and his adult daughter having an abortion. The failure to ask the questions in a different way did not amount to any relevant breach of duty.

After the meeting

63. A sent SW an email referring to the meeting and SW's finding against him, and asking SW to contact his adult children who would be able to talk about M's behaviour and who would undermine the credibility of the complaints against A.
64. It is noted SW did not contact A's adult children, but A's adult children sent in emails to the effect that A had been a good parent who would not smack. SW noted that parenting and people can change over time.

No telephone call about a "duty to destroy" the relationship

65. A gave evidence that after the meeting SW telephoned him and said words to the effect that if she encountered a 2 year old with a homophobic father "and had the opportunity to destroy that two year old's relationship with his father, it was her duty to do so, lest that child was "gay", and the father would express displeasure at this". A said that this was so shocking to him, that there is simply no scope for his having misremembered this chilling conversation, noting that he was already aware of the case of Mr and Mrs John having been turned down as candidate foster carers after it had been discovered that they attended a church like the one that A had begun to attend.
66. SW denied that she had ever said any such thing to A, nor that she had ever thought that would be a proper approach to take.
67. A said that this telephone call took place after the meeting, and he said that he remembered that particularly because he wondered whether SW would have got back to Truro by the time of the call. A was surprised that there did not appear to have been any telephone call recorded after the meeting. He then suggested that the telephone call might have occurred the following day. A was shown a record of a phone call on 29^th May 2013, which he said was not the phone call described. In that phone call there was further discussion about SW's belief in S's report of being smacked by A, A's views on M, and A's belief that he should have contact over the holidays with S. The telephone note did not provide any support for A's case about a conversation in the terms alleged by him.
68. On 31^st May 2013 A send a long email to SW, updating SW on the Court proceedings, recording what had happened at the meeting of 23^rd May 2013 from his perspective, and complaining at his continuing lack of contact with S, although it might be noted that the evidence shows that this was because of M's approach to contact between A and S. Towards the end of the email A referred to the fact that the alleged smacking was not an insurmountable obstacle to contact and A continued: "your only "insurmountable" remaining "concerns" are clearly based upon nothing more weighty than your personal dislike of the pro-life and hetero-normative beliefs that I publish on my blog, or other of my beliefs. You have admitted this". This email is consistent with A's evidence about his perception of the meeting of 23^rd May 2013, but the email does not refer to any telephone conversation in which SW said that it was her "duty" to destroy A's relationship with S because of A's beliefs about same sex sexual relations. If any such telephone call had occurred, I consider that it is very likely that A would have included reference to it in his email dated 29^th May 2013.
69. On 2^nd June 2013 A emailed SW again. He said "I appreciate that you have told me so frankly that you disapprove of my beliefs, and the parenting style which you imagine beliefs like mine lead to …". Later in the email he referred to the fact that he had not been able to respond about parenting style at the meeting having been questioned in the abstract, given that he had been labelled a child abuser and because SW had expressed concerns about A's beliefs. A referred SW to an article about parenting style. A talked in that email about his beliefs, and said that he was seeking legal advice because of interference with his right to parent. A referred to the fact that he was seeking legal advice concerning SW's speculation about A's parenting style "based as you have admitted that speculation to have been, upon prejudice against my beliefs". Again the email did not refer to a conversation in the terms in which A reported it in his evidence.
70. I accept that the absence of references in the emails or in the note of a telephone call is not conclusive evidence that a phone call did not take place in the terms described, but in circumstances where A did record much of what had happened from his perspective, the failure to record the telephone conversation in those terms is important. SW was clear that such a conversation did not take place, and it did not seem to me that SW was likely to say anything to the effect that it was her duty to destroy a relationship between S and A. On the other hand A had convinced himself that this was the practical effect of what SW was doing (namely destroying his relationship with S because of his beliefs) and it was therefore a short leap for him to convince himself that SW had said such a thing. In these circumstances, I do not find that there was any such phone call between A and SW in which SW recorded that it was her duty to destroy A's relationship with S because of A's views. This is because there is no record of any such call at the time when A believes it was made, and because there is no reference to such a call in a near contemporaneous email sent by A in which he was making complaints about the council. I have no doubt that A has convinced himself that such a call was made, but that is because he has convinced himself that SW was acting against him because of his beliefs on abortion and same sex sexual relations, rather than because of what he had actually written on his blogs about an 8 month old being "hardly" a person and because of concerns about his mental health.

Matters leading up to the Family Court proceedings

71. SW commenced the section 47 assessment on 18^th April 2013 and it was completed on 11^th June 2013. That set out much of the information recorded by SW above. The report noted that S was being cared for by M and that there was no contact with A, meaning that the "s47 can close down".
72. In the interim A sent various emails to the council in which he made clear his dissatisfaction with his treatment by the council. On 21^st June 2013 A emailed SW complaining, among other matters, about her failure to follow up inquiries with his adult children. A recorded concerns about what he said was misinformation in the section 47 report. A asked SW to visit him, so that what he said errors in the report would not be repeated. A complained by email saying that he wanted a meeting with SW.
73. During the hearing A said that the email amounted to a complaint, and that the council had treated him unfairly in not treating it as a complaint under their written procedures. The council noted that when they had emailed the link about complaints to A by email dated 26^th March 2014 he had not made any formal complaint. I accept that the email may have fallen within the definition of a complaint under the council's policy, but it was apparent that the council were concerned about A suing them and A did not complete a complaint form. This aspect of A's case was, as A accepted in evidence, a product of him studying the wording of the complaints process and working out that his email amounted to a complaint. It was not any evidence of wrongful treatment of A by the council, let alone any justiciable infringement of rights guaranteed by the 1998 Act.
74. The Family Court had requested a welfare report from the council pursuant to section 7 of the Children Act 1989. This was completed on 24^th June 2013. It did not support shared residence or contact by the Claimant with his son. As part of the process of producing the report there was a Social Care Assessment Form dated 11^th June 2013. This contained a very detailed entry in the box headed "Parent(s) … capacity to respond appropriately to the child". It was apparent that SW was aware of A's concerns about M and her ability to cope, and that some of M's complaints about A (for example the absence of spare clothes when S had been paddling in the sea) were noted to be "the type of issues that many parents debate when they have different parenting styles". The entry recorded M's apparent realisation that A had used M's emotional health against her, by threatening that the authorities would remove S from M. (I should record that this accorded with evidence given by A, namely that he thought that the authorities might remove S from M, but I should record that it was apparent from the evidence and I find that A genuinely believed that might happen). It was also noted that A had a forceful personality and considered that his views were generally more valid that anyone around him and that this approach "would have a significant emotional impact on [S's] developing sense of self". The entry also recorded that "it has been difficult to gain a full understanding in respect of [A]'s views and ideas as he does not fully co operate with what is asked of him but maintains his own agenda" and that A had been very challenging and used "methods of intimidation towards staff and professionals". It was noted that A believed that he had been stopped from seeing S because of SW's belief that he was pro abortion and homophobic, but that was not the case.
75. The section 7 report recorded, among other matters, that there were historical concerns in respect of A's mental health, but that he had been unwilling to discuss these. SW recorded that she did have concerns about the contents of the blogs which suggest that A did have some very fixed views. SW recorded "I was particularly concerned about his comment that an eight month old was described by him as "hardly what you'd call a person yet". I have given [A]'s explanation for this in the attached assessment, but remain unconvinced that he has appropriate views and expectations in respect of children. I would be concerned if [S] were to be exposed to these views whilst he is developing social awareness and moral opinions". The report recommended that S should reside with M. The report also concluded that S would benefit from a lessening of M's anxiety and continued "from observation and information to date this will be an outcome of her not having contact with [A] and her being able to relax about her fears for [S]'s safety when he is with his father". The report noted A's strong views and that S would be unlikely to question or form his own opinions, which would impact on his development and lead to conflict as an adult.
76. A contact session between the Claimant and his son was held, for the purposes of the Court proceedings, on 12^th December 2013. It was attended by SW and SM. A and SW had different views about the success of the contact session, but the stress of such an event on a parent hoping to get support for continuing contact is obvious. On 6^th January 2014 A was asked for feedback on this session.
77. The Family Court also ordered that a registered clinical psychologist prepare a report on the mental health and ability to parent of A and M. On 7^th January 2014 the psychologist had a discussion with SW in which the psychologist expressed concerns about A's ability to parent and did not support shared residence because A would disrupt M's parenting. The psychologist advised that contact should be limited to three times a year supervised by two persons. The practical difficulties of dealing with that were considered, and it was noted that A was likely to overwhelm any staff at a contact centre.
78. On 15^th January 2014 the psychologist telephoned SW and, having reconsidered her conclusions, advised that, in her opinion, there should be no contact between A and S. It was felt that A's involvement would undermine support for M and S.
79. The psychologist produced a report dated 17^th January 2014. It was based on some 16 ½ hours of interviews, although A thought the meetings had been slightly shorter than that. The report concluded that A was an "emotionally vulnerable and psychologically damaged individual". It was noted that A and M could not work collaboratively to meet S's needs. In these circumstances the psychologist did not recommend direct contact, and recommended only indirect contact. It might be noted that much of the time with the psychologist appeared to be spent dealing with A's complaints of being misunderstood and mistreated by the council. The psychologist noted that this meant that it was difficult for A to be focussed on the assessment process. The psychologist noted that A referred to his pro-life and homophobic views. The psychologist noted that A talked over her, continued to talk when asked to stop, and then returned to topics already covered. The psychologist noted that A presented differing personalities, being vulnerable and then domineering. A was recorded as saying that he had successfully sued many professionals, and A referred to past sexual experiences and his dislike of the notion of same sex couples. There were in the report, for example paragraph 28, reports of A's comments which the psychologist considered was evidence of psychological damage, and which it is not necessary for me to set out. In paragraph 32 it is recorded that A has been twice sectioned under the Mental Health Act, and that A has found it difficult to engage with mental health services with complex delusional belief system.
80. It might be noted that in paragraph 67 of the report the psychologist reported that SW said that although it was worrying that S disclosed that A slapped him, "she is more concerned about [A]'s presentation, his mental health difficulties and his very strong pro-life and homophobic views. She noted that certain elements of [A]'s blog are also of concern. [SW] said that she observed contact between [S] and A and that [S] did not appear to be scared of his father … She also noted [A] made inappropriate comments to [S} and was not child focused in his parenting of him". The psychologist went on to note her own concerns that [A] was unable to put aside his own issues and to remain child focused.
81. In paragraph 71 of the report the psychologist noted the allegation of the slap, the fact that would not necessarily be grounds for no contact but went on "I am far more concerned about [A]'s presentation, his state of mind and his mental health difficulties, and how these negatively impact upon [S]". The psychologist recommended no direct contact.
82. SW produced an addendum section 7 report dated 17^th January 2014 which reported on the contact session. Her recommendations had not changed.
83. A's applications were determined in the Family Proceedings Court on 27^th February 2014 following a two-day hearing. A gave evidence that he was unhappy with his representation at the hearing. R gave evidence that he had gone along to provide support for A but had not been in the hearing. R had been shocked at the outcome and it is apparent that A wants contact with S.
84. The Court made a finding of fact that A did hit S on 2^nd April 2013. It dismissed both the applications for shared residence and direct contact. In so far as indirect contact is concerned, it only permitted cards, presents, letters and photos to be sent to the child via a third party on three occasions during the year. Permission to appeal was refused.

No infringement of A's rights under the ECHR

85. As appears from the evidence and findings set out above I do not find that SW or the council caused A's lack of contact with S following the making of the allegation that A had hit S. On the evidence it was the police who had advised M that A should not have contact with S pending investigation of the allegation of smacking, and it was M who did not want A to have contact with S.
86. As appears from the evidence and my findings set out above I accept that SW was entitled to consider A's blogs and views when making her assessments and reports to the Family Court. This is because, when read literally (which was not the way A intended the blogs to be read) the blogs suggested that A did not consider that an 8 month old child was a real person. SW was also entitled to consider the strength of A's views and question whether A would tolerate any dissent, given M's reports about the strength with which A expressed his views and A's history. I am satisfied that SW did not act to stop A having contact with S because A believed that abortion and same sex marriage was wrong, and I have already confirmed that it was common ground that if SW had taken any such approach it would not have been lawful.
87. As appears from the evidence and my findings set out above I do not accept that there was a telephone call in which SW recorded that it was her duty to destroy A's relationship with S because of A's views. This is because there is no record of any such call at the time when A believes it was made, and because there is no reference to such a call in a near contemporaneous email sent by A in which he was making complaints about the council.
88. I accept that social workers deal with some of the most vulnerable members of society, and work in very difficult circumstances. However I should record that it is apparent that the way in which SW reported her concerns about A's views to A in the meeting of 23^rd May 2013 was not, as SW fairly accepted with the benefit of hindsight, the best way of approaching the matter. This is because it led A to become disengaged with the process, in part because of his misunderstanding about the legal effect of R(Johns) v Derby County Council. This meant that SW was not able to communicate that it was her concern about whether A would permit S to develop his own views because of the strength of A's views rather than an attack on A's views, that was in issue.
89. SW's approach did not involve any infringement of A's rights. I did not find any infringement of any of A's rights protected by articles 8, 9, 10, 12 and 14 of the ECHR. The interference with A's private life protected by article 8 of the ECHR occurred because M did not want contact between A and S and because the Family Court did not order contact. Any interference with A's private life was justifiable. There was no impermissible interference with A's rights to hold or manifest religious beliefs protected by article 9 of the ECHR, because A can still hold those beliefs and publish his blogs, and there was proper questioning about the literal content of the blogs and A's views for the reasons set out above. There was no impermissible interference with A's freedom of expression, because he can still communicate his views and the questioning about his views was permissible and proper given the literal content of the blogs and A's past history. A had the right to marry under article 12 of the ECHR but it was the decision of A and M not to marry. There was no discrimination under article 14 of the ECHR.
90. I should also record that I was concerned that SW did express her view that she would not support contact between A and S before having met A, as evidenced by the email dated 17^th May 2013. My concern was because although, as the email dated 17^th May 2013 made clear, the final decision on contact between A and S would be for the Family Courts, the Family Courts will generally take full account of the council's recommendations. In these circumstances it is important to respect principles of fairness when undertaking the process of producing the reports which are likely to influence the Courts. This is because if the process is fair the reports will, among other matters: (1) be more likely to be right. For example to decide whether a blog is to be taken literally or as a parody of someone else's views, needs the input of the person whose blog is being considered; (2) be more likely to command the respect of the parties. If a party does not consider that they have had an opportunity to be fairly heard they will often see only the unfairness of the process, and will be unable to look beyond that to the merits of the decision. The report from the psychologist shows that A spent a great deal of time explaining how he had been misunderstood and mistreated by the council rather than engaging with the process to be undertaken by the psychologist; and (3) be more likely to command the respect of others and society in general. It is obvious that not every recommendation in a report will be right. However reasonable persons will respect views with which they disagree more readily if the process employed to make those decisions is fair.
91. Having said that what fairness requires in a particular case will depend on the individual circumstances of each case, and I should record that, having listened carefully to SW, and having considered the reports produced by SW and the council, I am satisfied that if SW had been persuaded after meeting A that contact between A and S was in the best interests of S, SW would have made a recommendation that there should be direct contact between A and S. It is also apparent that before the section 47 inquiry was completed and the section 7 report concluded SW did meet and hear directly from A, and there was nothing which caused SW to change her views about contact. As Mr Pullen pointed out, the decision on contact was for the Family Court, and A had rights of appeal in respect of that decision which were not pursued. In these circumstances I am satisfied that the process of producing the reports for the Family Court was fair and there was no infringement of article 6 of the ECHR. If A had points about the way in which the relevant reports had been compiled by SW and the council which meant that the reports should be ignored or given little weight, those points were to be raised and determined in the Family Court proceedings.
92. I should record that I did not consider that any of A's complaints about his inability to attend school plays, or the council's actions in taking forward S's registration for a school when there were competing requests for schools from A and M, disclosed any infringement of A's rights by the council. As to the inability to attend plays, this was because the evidence shows that the schools made the decisions about ticket requirements and attendance at the plays. It appears that there was a dispute raised by A about the proper interpretation of the order made by the Family Court, but A has always been able to apply to the Family Court for further or other orders or, if necessary, for an order that a proposed course of action would be lawful. As to the application for a school place, the council was right to decide that the least worst option was to put in one request for S's schools in circumstances where M and A had not agreed and S would lose out if one request was not actioned.
93. Although SW recommended that S should reside with M and have no direct contact with A, that recommendation was not made because of impermissible gender bias, but because SW believed that M, with whom S was living, was best able to support S's needs. There was no pleaded issue about the public sector equality duty, and I could not discern any breach of the duty in the materials before me.

Conclusion

94. For the detailed reasons set out above in my judgment there was no infringement of A's rights protected by the ECHR by the council. I did not find any other relevant breach of duty on the part of the council. I therefore dismiss A's claims against the council.