Re B (Interference with Family Life)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,MR JUSTICE BODEY |
| Judgment Date | 21 May 2003 |
| Neutral Citation | [2003] EWCA Civ 786 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/03/1117 |
| Date | 21 May 2003 |
[2003] EWCA Civ 786
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MR JUSTICE SUMNER)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Mr Justice Bodey
B1/03/1117
Mr A Mcfarlane Qc (instructed By Messrs Bindman & Partners, London, Wc1x 8qb) Appeared On Behalf Of The Appellant
Miss T Villarosa (instructed By Hackney Directorate Of Law & Probity, London, E8 1ea) Appeared On Behalf Of The Respondent
Miss A Ware observed On Behalf Of Cafcass
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 9, 6 and 4.
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.
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.
Dr Lindsey further reported to the meeting that she regarded Mrs B as abusive. She said that she insulted her children, was derogatory towards them both physically and emotionally and had very little self-control. By way of instance Dr Lindsey reported that towards the end of 2002 Mrs B, in a rage, had thrown a hard object at B which had broken her nose and necessitated a surgical operation. Dr Lindsey also reported that there were others in the community who had received independent reports of abuse within the family.
Dr Lindsey described the grandfather as a chronic abuser. She said that she understood that there had been no rape of any of the girls, but that certainly one of them had been penetrated digitally. That account, and the suggestion of the availability of supporting accounts from others, led the local authority initially to intervene by seeking orders in wardship from judges of the Family Division.
I do not intend to record any of the steps taken in the Family Division prior to the appearance before Mr Justice Charles on 2 April. On that occasion the question arose as to how Dr Lindsey's evidence should be introduced into the legal proceedings. Mr McFarlane QC, who has at all material times represented the family, drew an order, paragraph 3 of which stated:
"The local authority is directed to file and serve a report from Dr Lindsey by 4 pm on Monday 7 April."
Miss Villarosa, who has represented the local authority at all material times, amended that to read:
"The local authority will, if practical, file and serve a report from Dr Lindsey by 7 April."
That resulted in a fax of 4 April from Hackney Legal Department to Dr Lindsey in which she was informed of the order. The writer then said:
"We would be grateful if you would provide a report by that date together with your CV detailing your professional qualifications and experience.
Although not part of the order of Mr Justice Charles, the legal representative for the parents have suggested the following points they would wish you to address in your report."
There then followed under headings (a) to (f) inclusive, detailed issues that Dr Lindsey was invited to address. Dr Lindsey complied with the request with commendable speed. On 6 April she provided what is headed "Statement for the High Court in relation to the [B] Family." Paragraph 1 reads:
"I am Caroline Rachel Lindsey, Consultant Child and Adolescent Psychiatrist of the Child and Family Department of the Tavistock Clinic.
I enclose a copy of a brief Curriculum Vitae for the attention of the court."
The next paragraph explains that, as well as the fax from Hackney to which I have referred, she had had a conversation with Miss Villarosa. That paragraph ends with this sentence.
"Ms Villarosa explained on the telephone, that [Mr Justice Charles] had stressed that the report was to be produced only if practicable and also with due regard to issues of confidentiality."
She continued thus:
"Within the limits of confidentiality of my therapeutic relationship with [B], I am reporting on the allegations of sexual abuse by the maternal grandfather as disclosed to me.
When I saw [B], following referral in November 2002, she described her experiences of sexual abuse by her maternal grandfather in detail, at the first and subsequent sessions."
The attached curriculum vitae readily illustrates Dr Lindsey's distinction. For instance, between 1997 and 2001 she was Chair of the Child and Adolescent Faculty at the Royal College of Psychiatrists. Furthermore, she is currently Chair of the External Working Group for the Child and Adolescent Mental Health and Psychological Well Being Module of the Children's National Service Framework for the Department of Health. It is also relevant to note that she has, since 1977, been a Group Analyst, qualified by the Institute of Group Analysis.
Dr Lindsey's statement to the court contains little of the detail of sexual abuse within the family that she had reported to the strategy meeting. It also contains none of her report of abuse by Mrs B. I would also observe that, although she had been invited to submit a report, in fact she furnished what has all the appearance of a witness statement. She did not deal with any of the issues that had been sought by the family's legal representatives.
Mr Justice Charles had, quite rightly in my judgment, emphasised on 2 April that any approach to Dr Lindsey should have due regard to issues of patient confidentiality. It may well be that that signal to Dr Lindsey of the court's awareness of the importance of patient confidentiality influenced the content of her statement and the absence of particularity.
The tight deadline given to Dr Lindsey by the order of 2 April no doubt reflected an imminent hearing which took place on 10 April before Mrs Justice Bracewell. By that stage the local authority had taken the strategic decision to move from the court's inherent jurisdiction in wardship to invoke intervention under the public law provisions of the Children Act 1989. Accordingly, the first paragraph of the order of 10 April adjourned the local authority's application for an interim care order to 1 May. No application had been made on that day because the proceedings in wardship were before a High Court judge. Rules governing the issue of Children Act proceedings require all applications to be initiated in the Family Proceedings Court. It was therefore incumbent upon the local authority to issue an application for an interim care order in an appropriate Family Proceedings Court and to seek its upward transfer in readiness for the hearing on 1 May. Seemingly, no steps were taken by the local authority to that end.
On 1 May, which was a Thursday, Mr Justice Sumner heard evidence both in support of and in opposition to the applications for an interim care order. He resumed on the following day and at about 2 pm announced his conclusion that there should be an interim care order in respect of each of the minors to the London Borough of Hackney until 4 June 2003. He took the course of announcing the result before judgment in order to enable the parents to regain their home on the Sabbath. He then adjourned for approximatey an hour to prepare the ex tempore judgment which he then delivered. At its conclusion Mr McFarlane sought permission to appeal which was refused.
An application was received in the Court of Appeal office on Friday 16 May. Given the urgency of the case and the apparent substance in Mr Mcfarlane's written opinion in support of the application, an oral hearing with appeal to follow was fixed for today, 21 May 2003. At the outset we granted permission and we have immediately heard the appeal.
The order made by Mr Justice Sumner has this recital:
"Upon it being recorded that the Local Authority have agreed:
(i) That the Local Authority will issue an application for an Interim Care Order forthwith."
Then follows the order of the court.
It would, given the importance of laying the procedural foundation, have been my expectation that Hackney would have issued in an appropriate Family Proceedings Court on the following day at the latest. They apparently did nothing until 16 May when they issued an application for an...
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