R v G
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 04 May 2020 |
| Neutral Citation | [2020] EWHC 1036 (Fam) |
| Date | 04 May 2020 |
| Docket Number | Case No: FD19P00347 |
| Court | Family Division |
[2020] EWHC 1036 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice MacDonald
Case No: FD19P00347
and
and
Mr Edward Devereux QC and Ms Mehvish Chaudhry (instructed by Bindmans) for the Applicant
Mr Christopher Hames QC (instructed by Broudie Jackson Canter) for the First Respondent
Mr Michael Edwards (instructed by CAFCASS) for the Second Respondent
Mr Alan Payne QC and Mr John Goss (instructed by The Government Legal Department) for the Intervener
Hearing dates: 1 April 2020
(The hearing was conducted remotely on Skype for Business)
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 was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
INTRODUCTION
The court remains concerned with a dispute between the parties regarding the disclosure and inspection of documentation from the successful asylum claim of the mother, G, represented by Mr Christopher Hames, Queen's Counsel, into private law family proceedings between her and the father, R, represented by Mr Edward Devereux, Queen's Counsel and Ms Mehvish Chaudhry of counsel. The family proceedings concern the welfare of H, born in June 2011 and now aged 8 years old. H is a party to these proceedings and is represented through his Children's Guardian by Mr Michael Edwards of counsel.
Given the issues raised in this case, the Secretary of State for the Home Department has been given permission to intervene on this issue. The Secretary of State is represented at this hearing by Mr John Goss of counsel. The court has before it a Skeleton Argument drafted by Mr Alan Payne, Queen's Counsel and Mr Goss.
The issue of disclosure and inspection of documents now before the court arises in circumstances where the private law proceedings in respect of H under Part II the Children Act 1989 will involve a finding of fact hearing in which the disputed allegations of physical and sexual assault and child sexual abuse made by the mother against the father, and which formed the foundation of the mother's successful asylum claim, will fall to be determined by this court on the balance of probabilities as a precursor to determining the welfare issues in respect of H by reference to the principles set out in s.1 of the 1989 Act.
On 18 November 2019 I handed down a judgment following a hearing at which the court determined a dispute between the parties as to the correct legal principles to be applied and the correct procedure to be adopted where one party to private law proceedings under s. 8 of the Children Act 1989 seeks disclosure and inspection of documentation from the successful asylum claim of the other party for use in the family proceedings. That judgment was published as R v Secretary of State for the Home Department (Disclosure of Asylum Documents) [2019] EWHC 3147 (Fam). The Secretary of State sought permission to appeal from the Court of Appeal but permission was refused by King LJ on the grounds that the application was premature, this court not yet having determined whether or not to order disclosure in this particular case based on its formulation of the applicable legal principles. That is the question that now falls for determination and the question which this second judgment addresses.
In deciding whether, and if so which, documents from the asylum process should be disclosed into the private law proceedings under the Children Act 1989 I have had the benefit of being provided with a copy of that documentation and have read it prior to the commencement of this hearing. Pursuant to the procedure I articulated in R v Secretary of State for the Home Department (Disclosure of Asylum Documents) at this hearing I first heard submissions from Mr Goss on behalf of the Secretary of State and from Mr Hames on behalf of the mother with respect to the documents that are the subject of the application in the absence of Mr Devereux and Ms Chaudhry and Mr Edwards. Thereafter, I heard submissions from Mr Devereux and Ms Chaudhry and Mr Edwards in the presence of Mr Goss and Mr Hames on the wider points of principle that the Secretary of State and the mother prayed in aid in opposing disclosure of the documents in issue, notice of which arguments of principle had been given to the father and to the Children's Guardian in writing.
BACKGROUND
The background to this matter is set out in my first judgment in R v Secretary of State for the Home Department (Disclosure of Asylum Documents). It is not necessary to repeat it here save to observe that the allegations on which the mother relied to make good her claim for asylum upon her arrival in the United Kingdom with H, and which she now pursues findings in respect of in these family proceedings, are as follows:
i) The father became domestically violent to the mother during the year following the year in which they were married and would physically and sexually abuse her;
ii) The mother reported the violence to the police who stated they would make an arrest, but this did not happen;
iii) The father's family have connections with the police in [country given];
iv) The father was arrested for fraud in 2014 and served nine months in prison;
v) On the morning of 24 January 2015 the mother witnessed the father sexually abuse H;
vi) The mother feared that if she returned to [country given] the father would kill her as she had witnessed the sexual abuse and she feared further domestic violence from the father.
It is also important to note again the following further matters that are relevant to the question of disclosure that is now before the court.
First, and as noted in the previous judgment of the court, the Secretary of State accepted the mother's claims of domestic abuse and of the sexual abuse of H but did not accept the mother's allegations that the father had made threats to kill her or that he had influence with the police in [country given]. On 24 April 2017 the Secretary of State nonetheless refused the mother's application for asylum on grounds that the mother had failed to demonstrate a genuine subjective fear and that, even if the mother's fears of the father were well founded, she could relocate internally in [country given] to a place where she would not face a real risk of harm.
The mother exercised her statutory right of appeal to the First Tier Tribunal. By a determination dated 11 September 2017 Judge Agnew, holding that the sole issue before the First Tier Tribunal was the validity of the Secretary of State's conclusion on internal relocation, allowed the mother's appeal, holding as follows within the context of the relevant standard of proof, namely a reasonable degree of likelihood:
“[18] I found the [mother] to be articulate, detailed, specific, consistent and credible in her evidence. I accept her claims that she and her son would be located in [country given] on return by [the father] via his family members and computer records. She gave details of the names of the appellant's brothers and their positions within the police and prison force. This is far more information than is usual with asylum seekers claiming that they fear persons with influence in the security forces of the country from which they have fled. I accept that [the father] has filed a missing person's report and that the immigration authorities would be alerted to this fact on their return to the airport. Assuming they were returned, I find it has been established that there is a real risk both the appellant and her son would face ill treatment at the hands of [the father].
[19] The [mother] has been found to be credible in her claims which includes the claim that she cannot safely relocate with her son in [country given]. She has established that her fears of persecution on return are well-founded. The Refugee Convention is engaged and she has established that she and her son are entitled to international protection.”
Second, on 25 January 2019 Roberts J ordered the mother to file and serve in these family proceedings copies of her asylum application, all evidence in support of her asylum claim, her asylum interview and all of the decisions of the Secretary of State for the Home Department. On that date, no objection was raised by the mother to such disclosure and the documents were provided to the father's solicitors in accordance with the order of Roberts J. However, subsequently the mother did raise objection to the disclosure of documents from the asylum process. This appears to have been based on the mother's concern that the documentation contained names and pictures of people who had provided information which could compromise the safety of themselves and their families. At a hearing on 9 April...
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