M and B and A and S (by the Official Solicitor as her Litigation Friend)
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE SUMNER,Mr Justice Sumner |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] EWHC 1681 (Fam) |
| Docket Number | Case No: NE04P01093 |
| Court | Family Division |
| Date | 28 July 2005 |
[2005] EWHC 1681 (Fam)
The Hon Mr Justice Sumner
Case No: NE04P01093
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr J O'Brien represented the Local Authority
Mr G Ford represented the parents
Miss A Ball QC represented the Official Solicitor
Hearing dates: 6, 7 & 8 April 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 28 July 2005. It consists of 22 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mr Justice Sumner
Introduction
I am concerned for S who was born on 17 June 1981 and is therefore now 23 years of age. She came to the UK when she was one. She is the second of 7 children. Her parents are A now 62 years of age, the father, and G now 39 years of age, the mother. I direct that no reporting of this case shall give any information which might lead to the identification of the parties.
The matter came before me on 6 and 7 April 2005 as a result of proceedings started by M the local authority, by way of an originating application under the courts inherent jurisdiction of 13 November 2003. The local authority at that time sought the following relief —
"1. No steps be taken in respect of any marriage to S without leave of this court.
2. S not be removed from the jurisdiction of England and Wales without leave of this court.
3. All passports and travel documents relating to S be lodged with the High Court.
4. Such other declaratory or other relief as the court may deem appropriate."
On 1 July 2004 as a result of an order of Bracewell J. of 8 June 2004, the local authority issued a Part 8 claim under the Civil Procedure Rules ("CPR"). That claim was in these terms—
"1. The council now seeks declarations that:—
a. S lacks capacity to make a decision about whether or not she should marry.
b. it is not in the existing circumstances in the best interests of S that she should marry, or that she should leave the jurisdiction of the court in view of the risk that her parents may arrange for her to be married in Pakistan.
2. The council also seeks the continuation of the existing injunctions:—
a. forbidding A and G, or either of them, taking any steps in respect of any marriage of S, without the leave of the court.
b. forbidding A and G, or either of them by themselves or any one on their behalf, from removing or taking any steps to remove S from the jurisdiction of the court, without the leave of the court.
3. The council also seeks such other declaratory or other relief as the court considers appropriate in this case."
The injunctions referred to had been granted by Kirkwood J. on 13 November 2003. Those applications cover the issues which I am asked to decide.
Representation
Mr O'Brien appeared on behalf of the local authority. Mr Ford represented the parents, and Miss Ball QC appeared for the Official Solicitor.
Form of proceedings
At the start of the hearing Mr O'Brien adopted proposals put forward by Miss Ball that further injunctive relief should be sought. This was that the court should continue to hold all S's passport and travel documents. Also the parents should be prohibited from obtaining any further passport or travel documents for S without the permission the court.
At the conclusion of the hearing there was a short discussion about whether it was better that I should hear this matter under the originating summons as amended, under Part 8, or under a combination of them. Counsel agreed to consider these matters in the light of the evidence and submissions. Mr O'Brien produced further written submissions. Subsequently Miss Ball produced more detailed written submissions for which I am grateful.
The issues
The first question is whether S has the capacity to marry. Neither the parents nor the Official Solicitor on behalf of S oppose the grant of a declaration stating that she lacks such capacity.
The second question relates to the parents' wish to take S to Pakistan for the purpose of a holiday. It is for S to meet her wider family. The local authority, supported by the Official Solicitor oppose that move. Despite the parents' clearly expressed views that they have no intention of arranging a marriage for S, the local authority argues that such an event is a real possibility. If that is proved, then the risks to S of her entering into a marriage whether formal or informal are such that the court should continue the injunctive relief in the full form now sought by the local authority.
Mr Ford accepts that, if the necessary findings are made and the court concludes that there is a real possibility set out above, then the court has jurisdiction to make the injunctive orders sought. However he argues that there is no sufficient basis upon which such findings could properly be made. Alternatively the court should not exercise its discretion to grant such relief.
Accordingly the questions which I have to determine are as follows:
i) Has the local authority established that S lacks the capacity to marry?
ii) If a lack of capacity to marry is proved, has the local authority also established that there is a real possibility that, should S be taken by her parents for a holiday in Pakistan, they would organise an arranged marriage?
iii) If there is such a possibility established, is it in S's best interests for her to be protected from such a risk such that, in the exercise of the court's discretion, injunctive relief should be granted?
iv) A further point arose after the hearing. I was asked to consider giving guidance on procedure. In particular in cases such as this where it is sought to involve the court's inherent jurisdiction, is the appropriate procedure to issue an originating summons under CPR Pt 8?
The form of the Judgment
I propose to set out the main arguments put forward on behalf of the local authority, the parents and the Official Solicitor. This is in relation to both capacity to marry and the injunctive relief sought. I shall then shortly set out the conclusions that I have reached so that the parents do not have to wait to the conclusion of the judgment. It requires to be translated in full for the mother and in part for the father.
Once I have set out my decision and the essential grounds upon which I rely, I will review the evidence. I shall authorise a transcript at public expense so that the parents have a copy available to be read to them.
Oral evidence
With the agreement of the parties the oral evidence was limited. I heard from Miss Bartlett, a social worker. She produced, again with consent, a detailed but unsigned statement from an earlier social worker Miss Anita Puri who is sadly seriously ill and away from work. I also heard from Dr Kon a consultant psychiatrist mainly about a conversation in June 2003 between her and the father. I then heard from the father and mother.
Arguments for the local authority
Capacity to marry
On this issue there is no dispute. The basis is clear. It is to be found in early reports and in particular that of a psychologist Dr Stokoe in July 2003 followed by 2 reports from Dr McEvedy, a consultant psychiatrist in March and November 2004.
The position in law is to be found in the decision of Munby J. in Sheffield City Council v E, [2005] 2 WLR 953. The court is invited to follow the test he accepted in that case.
Mr Ford for the parents accepts that that is the proper approach to this question. He also accepts that though the conclusions of Dr McEvedy are not in the precise wording approved by Munby J., they are in terms which allow for no other alternative. Furthermore it has been the parents' own conclusion for some years that S does not have the necessary capacity to marry. The medical evidence of 2003 and 2004 is therefore not challenged.
Injunctive relief
The local authority has been involved with the parents and their 7 children since 1985. The history is relevant because of the parents' attitude. There were concerns about the care and control of the children, neglect, physical and sexual abuse, poor standards of hygiene, a failure of proper diet for S and her sister who have a kidney complaint, and a lack of proper administration of medication. Four of the sisters were registered on the Child Protection Register in 1992 under the category of neglect though the registration was removed in 1993.
In 1999 staff at S's Special School raised concerns over her personal hygiene which had deteriorated. She frequently smelt and looked unkempt. Her academic progress had ceased. She was admitted to a paediatric ward in February 2000. She was away from home for 18 months.
Dr Alcorn, a child and adolescent psychiatrist, was concerned at the time that the father and mother had not recognised how seriously ill S was. They might not recognise symptoms of a relapse and they did not clearly understand the importance of administering her medication regularly.
The father did not accept there was any good reason for S to be kept away from home. He secured her return in July 2001 by threatening to...
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