Re BM (Care Orders)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Lawrence Collins,Lord Justice Laws |
| Judgment Date | 16 March 2009 |
| Neutral Citation | [2009] EWCA Civ 205 |
| Docket Number | Case No: B4/2008/2681 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2009 |
[2009] EWCA Civ 205
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM His Honour Judge Walsh sitting as a judge of the Family Division of the High Court in the
Leeds District Registry on 23 October 2008.
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Wall and
Lord Justice Lawrence Collins
Case No: B4/2008/2681
Janet Bazley QC and Aelred Hookway (instructed by Petherbridge Bassra —Solicitors) for the Appellant
Anthony Hayden QC (instructed by The Local Authority) for the 1 stRespondent
Clare Garnham (instructed by Lumb and McGill —Solicitors) for the 2 nd Respondent
Hearing date: 20th February 2009
Introduction
In this case, a father of three children seeks permission to appeal against care and other orders made by His Honour Judge Walsh sitting as a judge of the Family Division of the High Court in the Leeds District Registry on 23 October 2008. We heard oral argument on 20 February 2009 from leading counsel instructed on behalf of the father and on behalf of the local authority, together with submissions from junior counsel instructed on behalf of the children's guardian. We then took the highly unusual step of reserving judgment.
Before going into the detail of the case, I would like to make a number of preliminary points. The first is that, in my judgment, this application raises issues of considerable public importance. I would, therefore, speaking for myself, propose that although judgments on permission applications are not normally reported, we should give permission for our judgments in this application to be reported by the law reporters should they wish to do so. The judgments will, of course, in any event be in the public domain, and available to the media in print and on the internet in the normal way.
Secondly, we have imposed reporting restrictions. The judge decided this case on the basis that any identification of the children concerned ran the risk of them suffering serious physical harm. In my judgment, that includes abduction and even death. The case thus demonstrates graphically the tension between the need for informed public debate about the issues raised by the case and the need for strict anonymity to protect both the father of the children and the children themselves.
This judgment will thus be written anonymously. The father will from this point on be referred to either as “the applicant” or “the father” throughout. The other participants will be identified by their roles —for example, the children's mother will be called “the mother”, and other members of her family will be designated by reference to the relationship they bear to her. Likewise, I propose to refer to the children as, respectively, A, B and C. These are not their true initials. The experts will be identified according to the area of their expertise.
The only persons and places to be identified by name in the judgment will be the judge, the court in which he was sitting, and counsel. However, it is important to an understanding of the case to note that the parents are both Muslims and that both the paternal and the maternal families originate from Pakistan and are members of the Pathan community.
I should add, for completeness, that the mother neither attended nor was represented on the application. The reasons for this will become apparent. There was, however, a position statement from her lawyers, in which she supported the father's application.
The facts in outline
I propose to take these largely from the helpful skeleton argument prepared by leading and junior counsel for the local authority, Mr Anthony Hayden QC and Ms Paula Tyler.
The applicant was born in December 1967 and is now 41. The mother was born in April 1977 and is now rising 32. Child A is a girl born in December 1997. She is now 11. Child B is a boy born in November 1999, He is now 9 and Child C, also a boy, was born in January 2004. He is now 5. Their parents are first cousins.
The children's maternal grandmother is dead. The head of the family is the children's maternal grandfather (from now on “the grandfather”). The mother is the eldest daughter of seven children, who include at least two brothers whom I shall call brother 1 and brother 2. The mother and her siblings were all brought up in the United Kingdom. The judge described the mother's family in his first judgment as “close knit” and living “within easy reach of each other”. The mother, as the oldest daughter, occupies a position of some importance in the family, particularly as her own mother is dead.
Brother 1 contracted a second marriage. I shall describe his wife as “the intervener”, since she intervened in the proceedings and is so described by the judge. The intervener was brought up in a small village in Pakistan, has never been to school, and could neither read nor write. She came to England in January 2003 following her marriage to brother 1 in Pakistan in November 2000. By then she was already pregnant with their first child. She does not, however, have leave to remain in the United Kingdom and her immigration status is, to say the least, doubtful.
Brother 1 and the intervener had a daughter, who was born in August 2001. On 13 November 2003, that daughter, then aged 27 months, was admitted to hospital. She was unconscious and had sustained multiple injuries. She died on 15 November 2003.
Brother 1 and the intervener were both arrested, charged and remained in custody until their trial. The intervener was pregnant with her second child at the time of her arrest. On 18 May, 2004, brother 1 was convicted of the murder of his daughter. The intervener had been charged with neglect, but was acquitted. On her release from custody she returned to live with the mother's family.
In late 2004 the intervener gave birth to a son. His name had been placed on the child protection register pre-birth. The local authority undertook an assessment of the situation of the intervener and the child which was completed in August 2004. During the course of that assessment the social worker encountered significant difficulty in meeting with the intervener alone.
Between August 2004 and May 2005 social workers continued to visit the intervener and her son, but were generally unable to see her without members of the family being present. The grandfather (who is also, of course, the maternal grandfather of children A. B and C) would not allow the intervener to attend the local family centre. Brother 1's son's name remained on the child protection register. During this time members of the mother's family were obstructive in relation to the pursuit of the intervener's immigration application.
On 14 May 2005, the intervener fled the family home with assistance from the police and social services. She made allegations of ill treatment by the family and was helped, by the police, to find safe accommodation for herself and her son outside the area.
The following day two men were seen outside the place of safety to which the intervener and her son had been re-located. They were asking for the intervener. On 17 May 2005, a second brother of the mother (hereinafter brother 2) telephoned social services asking about contact with the intervener. Brother 2 subsequently telephoned the social worker on her direct line. This number is not one which is given to members of the public. How he obtained the number is not known.
As a result of concerns for her safety, the intervener was moved to another secret location. An anonymous letter was received by the local authority on 20 May 2005. The letter raised concerns as to the intervener's knowledge of how their daughter was injured. The social worker visited the intervener several days later in order to discuss the letter. The intervener was concerned that the family would take her son from her; that they would tell lies about her and that they would track her down and kill her. They would not allow her to “disgrace” the family and get away with it.
Further letters were received by the local authority and the family between June and September 2005. It was alleged by the family that the intervener was responsible for some of them, even though she was, of course, illiterate. Some of the letters contained threats to other family members, including threats that their 'kids will not be with (them) long'. Brother 1 received a letter purporting to be from the intervener in which the writer admitted to harassment and threats to the family. The intervener's family in Pakistan received strange phone calls, including one in which it was said that the family was aware of the intervener's location.
On 7 July 2005 the mother alleged that the intervener had set fire to clothing on the mother 's washing line. On 11 July 2005, the mother alleged that the intervener had tried to entice her children from her home. On 6 August 2005 the mother alleged that the intervener had left chocolate coated paracetamol tablets in the mother's garden for her children. It is right to say that the police were sceptical about this allegation at the time, as CCTV footage appeared to eliminate the intervener.
On 31 August 2005 the intervener was moved to yet another 'safe' location. On a number of occasions the mother asked the police for details of the intervener's whereabouts. On 9 September 2005 the intervener was moved yet again as she was concerned that she may have been recognised by a cousin whilst in the street.
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