SK (Father) v RO (Mother)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven DBE |
| Judgment Date | 14 November 2023 |
| Neutral Citation | [2023] EWHC 2896 (Fam) |
| Court | Family Division |
| Docket Number | Case No: WV22P00622 |
[2023] EWHC 2896 (Fam)
Mrs Justice Lieven
Case No: WV22P00622
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Louise MacLynn KC (instructed by Sabz Solicitors) for the Applicant
Ms Sharan Bhachu and Mr Baldip Singh (instructed by Duncan Lewis Solicitors) for the Respondent
Mr Aaron Moss (instructed by West Midlands Police)
Hearing date: 24 October 2023
APPROVED JUDGMENT
This is an interlocutory decision in a private law family case concerning a 6 year-old boy XX. The Applicant, SK, is the Father, and the Respondent, RO, the Mother. The issue before the Court is whether a Special Advocate (“SA”) should be appointed and, closely associated with that decision, who should pay for the SA.
Louise MacLynn KC represented the Father, Sharan Bhachu represented the Mother, and Aaron Moss represented West Midlands Police (“WMP”). The Special Advocates Support Office (“SASO”) attended through Mr Sussman.
The background for these purposes can and needs to be stated shortly and in general terms. The parents are both of Indian heritage. They were married in 2010 and moved to England in 2015. XX was born in 2017.
The parents separated in February 2018 when the Mother says she was forced to flee the family home to protect herself and XX. After a period the Father located the Mother, he says because he needed to know his son was safe, and the Mother says she was so frightened that she had to relocate on more than one occasion.
The Mother applied for an order that XX live with her. At a final hearing in March 2022, an order was made that XX live with the Mother and a Prohibited Steps Order was made preventing the Father from removing XX from her care. In those proceedings the Mother made serious allegations of domestic abuse against the Father, and a Non-molestation Order was made. However, no findings of fact were made by the Court.
The Father issued the present application for a Child Arrangements Order on 18 May 2022, seeking direct contact with XX. The District Judge ordered that a Scott Schedule be prepared by the Mother and responded to by the Father.
The Mother's Schedule lists a series of very serious allegations against the Father. These include that he fractured her finger in July 2016 during an argument when he became enraged and she tried to lock herself in the bathroom to protect herself. A physical assault in 2017 when she was pregnant. The police were called and took no further action. After she left the family home, that the Father has threatened the Mother that he will pay someone to find her and then that he will come after her. In March 2021 the Father had come to her house late at night and the neighbours called the police.
On 5 July 2022 Cafcass produced a safeguarding letter in which they record that the Mother alleged that domestic abuse was a feature of the relationship (including physical, emotional and controlling behaviour). She also alleged she had been assaulted by the paternal grandparents who removed XX from her. Cafcass recommended a fact finding hearing and that there should be no interim contact given the seriousness of the allegations and the lack of any existing relationship between XX and the Father.
Police disclosure was received on 12 December 2022 and a letter from Cafcass. In the light of this material the Mother's representatives applied for the matter to be transferred to a High Court (or section 9) judge. The Mother has made allegations which she does not wish to be shared with the Father. These allegations include, but are not limited to, a risk of honour based violence. The application was adjourned and HHJ Picken transferred the matter to the High Court.
The Father denies all allegations of domestic abuse and says that any injuries were caused in the course of arguments when he was trying to calm the Mother down. He says that he had tried to contact the Mother after they separated, but his solicitor's letters received no reply. He went to her property because he was concerned about XX given the lack of information that he had received.
The case first came before me on 16 February 2023. At that hearing I heard the Mother and the Police in a CLOSED hearing, and then invited the Father and his legal team to join for an OPEN hearing. I ordered WMP to be joined and to attend the next hearing.
On 26 April I had a further hearing at which the issue of how the Court should handle the non-disclosure of material, both from the WMP and from the Mother, should be handled. I ordered that the Mother and Father's legal teams apply for exceptional funding from the Legal Aid Agency (“LAA”) to cover the cost of a SA and to make enquiries of SASO. At the hearing the WMP agreed to pay a proportion of the costs of a SA in light of the fact that some of the material which the Court had ruled could not be shown to the Father emanated from the Police.
The LAA have now rejected the application for exceptional funding. At a further hearing in June 2023 I indicated that in my view the case was sufficiently complex as to justify exceptional funding. The parties appealed the LAA's decision, but the appeal has also been rejected. So the only further step possible in relation to Legal Aid is to judicially review the LAA.
SASO have written to the Court on 3 October 2023 indicating that they are not minded to appoint a SA. Firstly, the Attorney General is not prepared to appoint a SA until the question of funding has been resolved. Secondly, this is not a case concerning classified information or where vetting would be required. SASO suggested that a confidentiality ring approach might be appropriate whereby the Father's lawyers are given the information but not the Father. SASO estimated that the costs of a SA might be £20–30,000; the WMP offer is to pay 50%, i.e. £15,000.
I held a further hearing on 24 October 2023, at which the WMP and SASO were represented.
This case raises a clear tension between ensuring the Father's Article 6 and fair trial rights, and ensuring the protection of the Mother and XX, pursuant to the Court and the State's positive obligations under Articles 2 and 3 of the European Convention on Human Rights (“ECHR”). I also have to have regard to all parties' Article 8 rights.
I have had close regard to the decision of Cobb J in Re R (Closed Material Procedure: Special Advocates: Funding) [2017] EWHC 1793, where he had to grapple with similar issues.
It is important to be clear that there is no perfect solution in a case such as this, and some compromises will have to be made. Fairness requires that a party knows the case against him or her and has the opportunity to respond to it, see Al Rawi v Security Service [2012] 1 AC 351 per Lord Dyson at [12]. However, that basic principle is subject to a number of caveats, including where limited disclosure is necessary following a proper balancing of the competing ECHR rights involved, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017. Disclosure will also be subject to public interest immunity where it would be harmful to the public interest, R (Chief Constable of West Midlands Police) ex p Wiley [1995] 1 AC 274.
In Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048, McFarlane J (as he then was) proposed adopting the following approach when determining applications for non-disclosure by the Police in family proceedings, at [112]:
a. Full disclosure to the court of all material relevant to the allegation and its investigation at the earliest possible stage (para 112(i));
b. Disclosure, again at the earliest stage, to the open parties of as much of the police material as is not rendered confidential by PII (para 112(ii));
c. Thereafter, establish a process, again at the earliest stage, to evaluate the PII claim and, if appropriate, arrange for the disclosure of further material to the open parties either in a full, gisted or redacted form (para 112(iii));
d. In parallel, full disclosure to the police of as much of the family proceedings evidence as is not rendered confidential by PII (para 112(iv));
e. Thereafter a co-operative process between the police and the family court whereby reasonable requests for further police investigation are considered...
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