Re M (Children)
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P,Lord Justice Simon,Lady Justice Nicola Davies |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1364 |
| Docket Number | Case No: B4/2019/0931 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2019 |
[2019] EWCA Civ 1364
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
WOLVERHAMPTON
THE HONOURABLE MR JUSTICE KEEHAN
LE19C00048
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE Sir Andrew McFarlane
THE RIGHT HONOURABLE Lord Justice Simon
and
THE RIGHT HONOURABLE Lady Justice Nicola Davies DBE
Case No: B4/2019/0931
Tim Moloney QC and Chris Barnes (instructed by ITN Solicitors) for the Appellant
Dijen Basu QC (instructed by Police) for the 1 st Respondent
William Tyler QC and Catherine Jenkins (instructed by Local Authority) for the 2 nd Respondent
Deirdre Fottrell QC and Laura Briggs (instructed by Burke Niazi Solicitors) for the 3 rd Respondent
Hannah Markham QC and Ben Mansfield (instructed by Dodds Solicitors LLP) for the 4 th and 5 th Respondent
Hearing date: 25 June 2019
Approved Judgment
The focus of this appeal is an order made by Mr Justice Keehan on 8 April 2019 in the course of care proceedings, directing that the local authority must serve a copy of the parents' position statements and their statements of evidence, that had been filed in the proceedings, upon the local police force. Within the care proceedings the local authority assert that the Children Act 1989 [‘CA 1989’], s 31 threshold criteria are satisfied on the basis that the children have been, or are likely to be, exposed to significant harm as a consequence of the parents' activities in circumstances where the parents, both of whom are UK citizens, have spent the past four years or more in Syria and are believed to have aligned themselves with a radical terrorist organisation during that time.
When granting permission to appeal, Lord Justice Peter Jackson concluded that there was a compelling reason for this court to hear argument on the correct approach when deciding an application for disclosure of material to the police in a case such as this, and in relation to the President's Guidance on Radicalisation Cases in the Family Courts (8 October 2015).
Factual Context
The factual context can be shortly stated. Both parents hold British nationality. Both left the UK and travelled to Syria in or around 2014. It does not seem that they knew each other at that time and only met after they had been in Syria for some time. At that time the Foreign and Commonwealth Office's advice was not to travel to Syria which, by the time of their departure, was riven with civil war and where significant areas of the country were exposed to sustained and fierce conflict. Both of the children, who are now aged three years and two years, were born in Syria following the parents' marriage.
In November 2018 the family came to the attention of the UK authorities whilst held in immigration detention in Turkey. At that time the parents indicated an intention to return with their children to the United Kingdom.
A temporary exclusion order [‘TEO’] under the Counter-Terrorism and Security Act 2015 [‘CTSA 2015’], s 2 was imposed by the Home Secretary on the father on 26 November 2018. This was an administrative decision taken within the Home Office. The order remains in force and, on 26 November 2018, a High Court Judge apparently made an anonymity order under the 2015 Act (although no copy of that order has been provided to this court).
The family returned to the UK by arriving at Manchester Airport on 9 January 2019. On arrival at the airport the parents were arrested under s 41 of the Terrorism Act 2000. The children were taken into police protection under CA 1989, s 46 and placed in foster care. Certain electronic devices were seized from the parents and, on 10 January 2019, the parents gave “no comment” interviews to the police. They were subsequently released on police bail.
The care proceedings commenced on 11 January 2019. The local authority asserted that the interim threshold criteria under CA 1989, s 37, were satisfied on the basis that:
“The conditions in which the children were raised in Syria are not known, but Syria is currently characterised by violent conflict and the children have either been exposed to this or were at risk of exposure, and as such have suffered emotional harm or been at risk of suffering significant emotional and physical harm.”
The parents did not contest the application and an interim care order was made with respect to both children.
On 1 February 2019 the police force tasked with investigating possible criminal activity by the parents issued an application in the Family Court seeking wide ranging disclosure of material. In the event the focus of the disclosure application was refined down simply to the release of the witness statements that had been filed by each parent together with position statements submitted to the court by the parents' lawyers. The disclosure issue was determined after submissions by Keehan J on 8 April 2019 who gave a full ex tempore judgment. The judge allowed the police application and it is against that decision that both parents now appeal. The appeal is contested by the police, the local authority and those acting on the instruction of the children's guardian on behalf of the children.
The Legal Context
By the Administration of Justice Act 1960, s 12(1):
“The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say:
(a) where the proceedings:
i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.
…
(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).”
Family Procedure Rules 2010 r 12.73(1)(b) is the relevant procedural provision:
“For the purposes of the law relating to the contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated…where the court gives permission”.
In part, the issues in this appeal turn upon the ‘privilege against self-incrimination’ and an accused's ‘right to silence’ in the course of the criminal process.
In paragraph [13] of his judgment (see paragraph 34 below), the judge referred to the parents' right to silence as a factor to be weighed in the balance, and at paragraph [14] to his view that making the order would not breach their right to silence, ‘because the police would only use the information as a guide and [to] inform their investigative process’.
The expressions ‘the right to silence’ and ‘privilege against self-incrimination’ are sometimes used interchangeably. In R v. Hertfordshire County Council, Ex p. Green Industries Ltd and anor [2000] 2 AC 412 at 419A, Lord Hoffman introduced his consideration of the legal issues that arose in that case in this way:
“As Lord Mustill said in Reg. v. Director of the Serious Fraud Office, Ex parte Smith [1993] A.C. 1, 30–31, the expression ‘privilege against self-incrimination’ or ‘right to silence’ is used to refer to several loosely linked rules or principles of immunity, differing in scope and rationale. Perhaps the best-known example is the rule that a person on trial should not be compelled to undergo inquisition by the prosecution or the court. Such methods were brought into disrepute by the practices of the prerogative courts of the sixteenth and seventeenth centuries and have since been regarded as inconsistent with a fair trial.”
For the purposes of the present case it is convenient to attribute the expression ‘right to silence’ to the long-established rule that a person is not compelled to answer questions from those in authority, absent a statutory basis. The expression is now used most frequently in the context of the criminal law, where it remains a guiding principle, although adverse inferences may be drawn from the exercise of such rights, see for example, ss.34 and 35 of the Criminal Justice and Public Order Act 1994.
The parents' right to silence does not arise on the present appeal. They declined to answer questions put to them by the police in interview, as was their right.
The right with which this aspect of the appeal is concerned is the right in civil proceedings not to be put in the position of making an admission of criminal conduct: the privilege against crimination or self-incrimination.
This principle was established following the abolition of the Star Chamber and was well-developed by the time of Thomas Rosewall's case (1684) 10 Howell's St. Tr. 168–9, in which Lord Chief Justice Jeffreys and the other judges interposed to caution a witness. They stated that witnesses ought not to be asked, nor are they bound to answer, any question ‘whereby they charge themselves with any crime, or subject themselves to any penalty.’ In Sir John Friend's case (1696) 13 Howell's St. Tr. 15, the judges interrupted the defendant's question to a witness as to whether he was a Roman Catholic, the answer to which might have rendered the witness subject to penalty.
In R v. Slaney (1832) 5 C & P 213, 214 Lord Tenterden CJ stated the principle thus:
“You cannot only not compel a witness to answer that which will criminate him, but that which tends to incriminate him: and the reason is this, that the party would go from one question to another, and although no question might be asked, the answer of which would directly criminate the witness, yet they would get enough from him whereon to found a charge against him.”
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