O v P
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Baker |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWHC 935 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD00P00001 |
| Date | 01 April 2015 |
[2015] EWHC 935 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Baker
Case No: FD00P00001
In the Matter of the Senior Courts Act 1981
And in the Matter of the Children Act 1989
And in the Matter of So (A Minor)
Mr Stephen Lyon (instructed by Thomson Snell & Passmore) for the Applicant
The Respondent was not present nor represented
Hearing dates: 16 th February 2015
This is an application for an order in wardship proceedings, or alternatively under the court's inherent jurisdiction, which would have the effect of amending an existing injunction previously made in the wardship proceedings and extending its duration beyond the ward's 18 th birthday.
The young person who is the subject of the wardship proceedings, whom I shall call "S", was born on 18 th April 1997 and will therefore be 18 years old in April of this year. The proceedings, together with further proceedings under the Children Act 1989, initially under section 8 and subsequently schedule 1, have been continuing for most of her life, having been started as long ago as 1999. The extraordinary history is set out in detail in earlier judgments delivered by me, first on 5 th August 2011 on the issue of jurisdiction in the schedule 1 proceedings (reported as O v P [2011] EWHC 2425 Fam) and subsequently, on 4 th July 2014 at the conclusion of the schedule 1 proceedings (reported as O v P [2014] EWHC 2225 Fam) – see in particular paragraphs 2 to 50 of the latter judgment.
It is unnecessary for the purposes of this judgment to recite that narrative history again. Suffice to say that the central features of the background include the fact that S's father
(1) abducted S from the UK to Australia at the end of 1999 and retained her there unlawfully until she was recovered and returned to her mother's care following proceedings under the Hague Child Abduction Convention;
(2) was subsequently convicted in Australia on two occasions, in 2001 and 2006, of offences of incitement to solicit the murder of S's mother;
(3) is still serving his sentence in prison in Australia with an estimated release date of March 2018 (unless granted parole prior to that date);
(4) continues to deny the offences for which he was convicted and
(5) has unsuccessfully sought to challenge the validity of the convictions in the course of what appears to have been a campaign of litigation over a wide range of issues conducted from his prison cell in Australia.
Meanwhile the mother and S, in respect of whom of a series of non-molestation injunctions have been made within the wardship proceedings dating back to an order of Black J (as she then was) dated 14 th June 2000, themselves moved some years ago to Australia, living at an address which, it was assumed, was unknown to the father. S has flourished in her mother's care in Australia and has now embarked upon tertiary education, following the conclusion of the schedule 1 proceedings in the course of which I made a substantial order for her financial provision. Nonetheless, both the mother and S have continued to live under the shadow of the threats by the father to the safety of the mother and, indirectly, S.
At paragraph 127 of my judgment at the conclusion of the schedule 1 proceedings [2014] EWHC 2225 (Fam), I said
"Hanging over this whole case is the fact that the father has been convicted on two occasions of inciting the mother's murder. I accept those convictions as evidence that the father did indeed incite her murder on two occasions. I further accept the mother's evidence that he has threatened her on previous occasions, and that she has lived in constant fear of what he might do."
In the course of hearing the application under schedule 1, I received evidence from the mother about this issue, which I summarised at paragraphs 129–131 of the judgment:
129. It is the mother's case that she remains in fear of the father and that as a result her life, including her employment and earning capacity, has been very severely restricted. Having read her statement and listened to her in the witness box, I fully accept the mother's evidence on this point. I have no doubt that she is genuinely fearful of the father and that this fear has circumscribed her life, and that of her daughter, for the last fourteen years. Her anxiety was evident throughout the hearing, and in particular on two occasions – when describing to me in outline what the father had done by way of incitement to murder her on the second occasion and, secondly, when it became apparent in the course of Miss Willbourne cross examination, through the production of recent photographs obtained by or on behalf of the father, that he is, or may well be, aware of her current location.
130. In oral evidence, the mother gave a vivid account of her current circumstances:-
"There is nothing normal about my life. One comes to accept it as normal but it is not normal. I have for as long as possible tried to avoid being found by [the father]. I need to be around to raise my child. Nothing is normal. I may not be the same person as I was then. Work becomes incredibly difficult. In terms of living arrangements you have to change as many things as you can. You are not open with people when you make friends. On a day to day basis you live in fear. When a car stops outside that you don't expect, the instant reaction is – "is it a bad person?" "do I need to run?" you learn to live with that, but it is always there. I don't feel any less frightened than I did fourteen years ago."
131. The situation has plainly had an impact on S which the mother also described in oral evidence in answer to questions from me:
"Judge: What has been the impact on her of knowing he has these convictions?
Mother: There is a big fear; and big, big fear factor. She gets worried that something may happen to mum, and to her mum is everybody.
Judge: Presumably you can't keep secret the fact that there are measures to guard against the risk.
Mother: That's right. I have had to start including her as to the knowledge of those things. She is a bright young girl and understands they need to be there."
In the light of my findings, Mr Lyon on behalf of the mother now seeks an extension of the injunction ordered previously granted in the wardship proceedings, dating back to the order of 14 th June 2000. Mr Lyon invites the court to make orders that will extend indefinitely beyond the conclusion of the wardship proceedings when S attains her 18 th birthday on 18 th April 2015.
As before, the court process has been impeded by the fact that the father is incarcerated in prison in Australia. Efforts at exploring the possibility of establishing a video or telephone link have been unsuccessful. These difficulties arose in the earlier proceedings when under schedule 1 and, as a result, I took steps to ensure that counsel then instructed on Mr P's behalf had an opportunity to take instructions on the evidence given (as described in paragraph 51 of the judgment.) In this case, a further complication arose because the father was no longer represented. I record, therefore, that to ensure that he had had a fair opportunity to put his case, I gave directions for the service of a bundle prepared for the hearing on the father, and subsequently adjourned the hearing of this application, originally listed on 16 th December 2014, to ensure that he had a fair and proper opportunity to prepare a skeleton argument setting out his response. The father has subsequently filed a full skeleton argument, and supporting documentation, and from those documents, and the various emails to the court sent by him (via his former solicitor) I conclude that he has indeed seen the full bundle and furthermore that he has had a fair opportunity to put his case.
The issues identified by Mr Lyon in his skeleton argument for determination at this hearing are as follows:
(1) Can any modified orders made before the expiration of the wardship be extended beyond S's 18 th birthday?
(2) If not, can orders thereafter be made in any event pursuant to the inherent jurisdiction or at common law?
(3) Is the fact that S and her mother are habitually resident in Australia fatal to the exercise of the court's jurisdiction?
(4) What order should the court make in all the circumstances?
It is Mr Lyon's primary submission that the orders made during the currency of the wardship proceedings made before the ward's 18 th birthday can be extended beyond that date. He submits that such a step can be taken "in order to preserve the integrity of the proceedings." He cites in support of that proposition the earlier decisions of Sir John Arnold P in Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421 and of Scott Baker J in Re E (A Minor) (Child Abuse: Evidence) [1991] 1 FLR 420. In Re P, the issue concerned the preservation of the identity of twins born to a surrogate mother who then refused to give them up. The twins were warded and orders made preserving confidentiality, and the President continued those orders notwithstanding the termination of the wardship. In Re E, orders were made in wardship preserving the anonymity of a number of those involved during a fact-finding into allegations of sexual abuse of very young children. Those orders were continued following the discharge of the wardship. It was submitted before Scott Baker J that it would be a surprising void in the law were the court to have no power to grant an injunction whose effect continued after the discharge of the wardship proceedings and that such a void would be inconsistent with the court's established inherent jurisdiction to protect minors. Scott Baker J concluded at page 455 F to G:
"In the absence of any provision to the contrary, any injunction would...
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