A v Cornwall Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 28 April 2017 |
| Neutral Citation | [2017] EWHC 842 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: A88YJ875 |
| Date | 28 April 2017 |
[2017] EWHC 842 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
EXETER DISTRICT REGISTRY
Mr Justice Dingemans
Case No: A88YJ875
The Claimant in person
Tim Pullen (instructed by Cornwall Council Legal Services) for the Defendant
Hearing dates: 6 th, 7 th and 8 th March 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is the hearing of a claim brought by A against Cornwall Council ("the council") pursuant to the provisions of the Human Rights Act 1998 ("the 1998 Act"). The case follows Family Court proceedings involving A, his son S, and his former partner M, S's mother, in which the Family Court ordered that there should not be direct contact between A and S. The essence of A's claim is that the council prevented A's direct contact with S and did not support A's application to have S live with him, because A had expressed views about abortion and same sex marriage in blogs on the internet, and that A's rights protected by the European Convention on Human Rights ("ECHR") to which domestic effect has been given by the Human Rights Act 1998 ("the 1998 Act"), have been infringed. The council denies the claim and says: it made proper safeguarding inquiries in relation to S; rightly considered blogs produced by A in which he had referred to a child of 8 months "hardly" being a real person; did not discriminate against A because of his views; made proper recommendations to the Family Court; and that it was the Family Court which made the relevant decisions.
I should, as a matter of fairness to A and the council, record that it was common ground in closing submissions that it would not be lawful for the council to prevent contact between A and S because of A's views and beliefs in relation to abortion and same sex marriage. Mr Pullen, on behalf of the council, asked that this point be emphasised to avoid any misunderstanding about the state of the law. As Hedley J. pointed out in Re L [2007] 1 FLR 2050 society must tolerate very diverse standards of parenting, which will range from the excellent to the barely adequate and include the inconsistent. Society must also tolerate very diverse views among parents – it would not be a modern democratic society without such tolerance — and this requirement is part confirmed by article 2 of the First Protocol to the ECHR (Part II of Schedule I to the 1998 Act) which provides that "… the state shall respect the right of parents to ensure … education and teaching in conformity with their own religious and philosophical convictions".
The Family Courts will give effect to the ECHR in Family Court proceedings pursuant to the provisions of the 1998 Act, see generally Re L (A Child) v A Local Authority and MS [2003] EWHC 665 (Fam). Claims for threatened infringement of the ECHR should be raised and addressed, if possible, in those proceedings. This should avoid the need for the duplicity of proceedings. However it is apparent that on occasions there may need to be separate proceedings for remedies available either under the common law or under the 1998 Act where past actions of public authorities have caused loss to family members. Issues of procedure in relation to claims under the 1998 Act were addressed in GD and others v Wakefield Metropolitan District Council [2016] EWHC 3312 (Fam) and SW & TW (Human Rights Claim: Procedure) (No 1) [2017] EHWC 450 (Fam).
The issues
The Council made applications to strike out the claim which were not successful, and as a result of earlier case management orders it is now common ground that the following issues arise: (1) whether the Council acted in a way that was incompatible with any of A's rights protected by articles 8, 9, 10, 12 and 14 of the ECHR in breach of section 6(1) of the 1998 Act; (2) if so, what, if any, relief or remedy should be provided to the Claimant. I should record that in his submissions at trial A: maintained claims under article 6 of the ECHR; made claims about his treatment by various schools; and claimed that there had been an infringement of the public sector equality duty under the Equality Act 2010.
There is no doubt that A feels immensely resentful about the order made by the Family Court, but it is common ground that it is not my function to revisit the conclusions made in the Family Court. (I have used the term Family Court even though the Family Court only came into being in 2014 for ease of reference). I am grateful to both A and Mr Pullen for their efforts in attempting to avoid revisiting those issues. Mr Pullen did ask A why he had not issued further proceedings in the Family Court to re-establish contact given that A said that he had addressed issues relied on against him in the Family Court proceedings, for example the issue of visitors to his accommodation. A said that he considered that until he had addressed the issue of his beliefs with the Council in these proceedings nothing would change in the Family Court, but whether this is so is a matter for the Family Courts and not for me.
Reporting restrictions and the hearing in public where possible
The Family Court proceedings were held in private, pursuant to the provisions of Rule 27.10 of the Family Proceedings Rules ("FPR"). It is apparent from the short background that I have set out above that there is a need to protect the identity of S.
By an order dated 24th February 2015 it was ordered that the Claimant's name be anonymised to "A" and the claim be known as " A v Cornwall Council". It was also ordered that there should be no disclosure of information or documents arising in this case that might lead to the identification of S.
In an order dated 23th October 2016 it was ordered that this trial be heard in private, but it was also provided that the trial Judge would keep this issue under review during the trial so that discrete issues might be heard in public. Orders were made preventing unfettered public access to documents referred to at the trial.
As the trial Judge I informed the parties that I would try and hear as much of the claim in public as possible, but would require their assistance. It is essential for the maintenance of public confidence in Court proceedings that proceedings in Court are heard in public where possible, because this allows members of the public to see and assess for themselves what is occurring in the Courts. If proceedings are held in private the narrative about what is happening in the Courts is likely to be provided by the litigants, at least one of whom is likely to be disappointed by a judgment.
At the start of the trial there was a short part of the hearing which took place in private to discuss ways in which the proceedings could be conducted in public, and (apart from a very short part of cross examination of A which A indicated needed to be heard in private to avoid answers being given which might lead to identification of relevant persons) the trial was heard in public. In the event there was not much attendance by the public at the trial. On occasions A, Mr Pullen, witnesses and I all inadvertently used A's name, and there was one reference to S's name. In these circumstances I will make an order that no one should have access to the transcripts of the hearing without making a formal application on notice to the Claimant and Defendant.
Relevant statutory provisions in the Children Act and Human Right Act
Section 7 of the Children Act 1989 ("the Children Act") provides that a Court considering any question with respect to a child may ask a local authority to arrange for an officer of the authority to report to the court on such matters relating to the welfare of the of that child as a required to be dealt with in the report.
Section 17 of the Children Act provides that there is a general duty on every local authority to safeguard and promote the welfare of children within their area who are in need.
Section 47 of the Children Act provides that where a local authority has reasonable cause to suspect that a child who lives in their area is suffering, or is likely to suffer, significant harm, the authority shall make or cause to be made such inquiries as they consider necessary to enable them to decide whether they should take action to safeguard or promote the child's welfare.
The 1998 Act gives domestic effect to the provisions of the ECHR. So far as is relevant in relation to the ECHR: article 6 provides a right to a fair and public hearing; article 8 provides a qualified right to respect for private and family life; article 9 provides an absolute right to freedom of thought, conscience and religion and a qualified right to manifest beliefs; article 10 provides a qualified right to freedom of expression; article 12 provides a right to marry and found a family; and article 14 provides for enjoyment of rights without discrimination.
Evidence
On behalf of the Claimant I heard evidence from: A, the father of S; HV, who had acted as a health visitor to M, S and A; and R, a Reverend whose Church had been attended by A and who gave some evidence about A's beliefs and the blogs. On behalf of the Defendant I heard evidence from: SM, a senior manager in the Council's social services department; and SW, a social worker in the Council's social services department who carried out relevant investigations.
Much of the evidence was documentary and common ground but there were some disputes of facts. The matters set out below represent my findings of fact unless otherwise stated.
Relevant events
A is the father of S. S was born following A's relationship with M, S's mother. Both A and M had...
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