Re B (Children) (Care: Interference With Family Life)
| Jurisdiction | England & Wales |
| Judgment Date | 2004 |
| Date | 2004 |
| Year | 2004 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Interim care order – Threshold criteria – Welfare exercise – Whether judge in error – Children Act 1989, s 31.
The orthodox Hasidic Jewish parents had 12 children, half of whom were still minors. During confidential communication with her psychiatrist, one of the adult children, a 22-year old woman, related that she and some of her sisters had had some sexual involvement with their grandfather. She had not told her parents because she was governed by rules of modest behaviour dictated by her religious beliefs, and had not the language to describe her experiences. The psychiatrist informed a practising social worker who alerted the local authority. The local authority sought orders in wardship and invoked intervention under the public law provisions of the Children Act 1989, although no formal application was made. The judge, who had seen the psychiatrist’s report, concluded that the threshold criteria within s 31(2) of the 1989 Act had been satisfied, and decided an interim care order should be made in respect of the six minor children, conditional on the outcome of certain interviews that were to be held with the children. The judge also provided that the local authority would give the parents 48 hours’ notice if they decided to remove the children, thereby giving the parents the opportunity to seek judicial veto. The parents appealed, contending that there had been no evidential basis upon which the judge could have found that the threshold criteria had been satisfied, as the psychiatrist’s report was so lacking, and that the judge had failed to consider the welfare exercise that had to be undertaken. They also argued that the judge was wrong to place the obligation on the parents to apply to veto removal rather than requiring the local authority to apply for permission to remove the children.
Held – (1) The judge had to exercise a broad and worldly judgment. Once the psychiatrist had made a statement that had been filed and relied upon by the authority, the obligation had been on the parents to exercise their right of cross-examination by way of challenge. They had not done so, and without such an exercise or an attempt at it, it was unsafe to draw any inferences as to what would have been the psychiatrist’s reaction. Accordingly, the judge had been justified in relying on the report and had been fully entitled, in his discretion, to conclude that the threshold criteria had been satisfied.
(2) There was a vital judicial task between finding that the threshold criteria had been satisfied and endorsing a care plan. A judge had to consider all the options open to him, and had to deliver a reasoned judgment explaining his
ultimate choice. Furthermore, where there was an application for an interim care order empowering an authority to remove children from their family, a judge could not make such an order without considering the rights of both the adult and child members of that family under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). A judge was not to sanction such an interference unless he was satisfied that it was both necessary and proportionate, and that no other form of order would achieve the essential end of promoting the welfare of the children. The judge had failed to carry out those tasks in the instant case, and that was fatal to his ultimate order. In place of the judge’s order, the Court of Appeal found it more appropriate to order that the authority’s application for an interim care order would stand adjourned, with liberty to apply at short notice, to await the outcome of the interviews with the children.
(3) In the instant case, the judge should have placed the obligation upon the local authority to apply for permission to remove rather than on the parents to apply to veto the removal.
AppealThe parents appealed, with the permission of the Court of Appeal, against the decision of Sumner J, whereby he concluded that an interim care order should be made in relation to six of their 12 children. The local authority acted as respondents to the appeal. The facts are set out in the judgment of Thorpe LJ.
Andrew McFarlane QC (instructed by Bindman & Partners) for the appellant.
Tina Villarosa (instructed by the Local Authority Solicitor) for the respondent.
THORPE LJ.[1] The B family are an orthodox Hasidic Jewish family living in Stamford Hill. There are 12 children of the family, six of whom are still minors. It is with those six that this appeal is concerned. There are three girls aged respectively 16, 14 and 12, followed by three boys aged respectively nine, six and four.
[2] One of the older children, B, is 22 years of age. She was referred for therapy to a well-known child and adolescent consultant psychiatrist at the Tavistock Clinic, Dr Caroline Lindsey. Early in the course of her therapeutic relationship with Dr Lindsey, she related that she and some of her sisters had had some sexual involvement with their grandfather. Dr Lindsey no doubt balanced on the one hand her child protection obligations, given the presence of three younger sisters still in the family home, against her obligation to maintain the confidentiality of the therapeutic relationship. Having discussed the case with colleagues, Dr Lindsey decided that her obligation to protect outweighed her obligation to maintain confidentiality. Accordingly she informed a practising social worker who in due course alerted the relevant local authority, the London Borough of Hackney.
[3] In consequence, a strategy meeting was convened on 4 February 2003. Those present included Dr Lindsey and Mr Moscowitz, a community representative on behalf of the Stamford Hill community. By way of
introduction, Dr Lindsey discussed the background and related to the meeting what B had told her. She had said that her grandfather had interfered with her sexually, and that she had not had recourse to her parents because she was governed by rules of modest behaviour and did not have the language to describe what she had experienced. Dr Lindsey also reported to the meeting that at least one of B’s adult sisters had had a similar experience.
[4] Dr Lindsey further reported to the meeting...
To continue reading
Request your trial
-
Bury Metropolitan Borough Council v D; Re D (unborn baby) (birth plan: future harm)
...harm)[2001] 1 FCR 289, Re H (a child) (interim care order)[2003] 1 FCR 350 and Re B (children) (care: interference with family life)[2004] 1 FCR 463 (2) For the purposes of the declaratory relief sought, it made no difference that the child whose future welfare was in issue had not yet been......
-
Re P (Children) (Adoption: Parental Consent)
...expert evidence), Re[1996] 3 FCR 272, [1996] 1 FLR 667, CA. B (children) (care: interference with family life), Re[2003] EWCA Civ 786, [2004] 1 FCR 463, [2003] 2 FLR 813. C (a minor) (adoption order: conditions), Re [1988] FCR 484, [1988] 1 All ER 705, [1989] AC 1, [1988] 2 WLR 474, [1988] ......
-
EH v Greenwich London Borough Council and Others; Re A (children) (non-accidental injury)
...lack of reasons), Re[2003] EWCA Civ 881, [2003] 2 FLR 1035. B (children) (care: interference with family life), Re[2003] EWCA Civ 786, [2004] 1 FCR 463, [2003] 2 FLR B (children) (sexual abuse: standard of proof), Re[2008] UKHL 35, [2008] 2 FCR 339, [2008] 4 All ER 1, [2009] AC 11, [2008] 3......
-
S v L
...adding, at para 28, that 'Proportionality, therefore, is the key'… 122 To the same effect is the judgment of Thorpe LJ in In re B (Care: Interference with Family Life) [2003] 2 FLR 813, para 34: 'where the application is for a care order empowering the local authority to remove a child or c......