X (Children) and Another
| Jurisdiction | England & Wales |
| Judge | James Munby |
| Judgment Date | 04 August 2015 |
| Neutral Citation | [2015] EWHC 2358 (Fam) |
| Court | Family Division |
| Date | 04 August 2015 |
| Docket Number | Case numbers omitted |
[2015] EWHC 2358 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
SIR James Munby PRESIDENT OF THE FAMILY DIVISION
Case numbers omitted
Mr Simon J G Crabtree (instructed by the local authority) for local authority A
Mr Karl Rowley QC (instructed by Stephensons Solicitors LLP) for MX (mother of X1, X2. X3, X4)
Miss Ayeisha Khandia (of Fountain Solicitors) for FX (father of X1, X2, X3, X4)
Miss Linda Sweeney (instructed by AFG Law) for GX (the children's guardian of X1, X2, X3, X4)
Mrs Jane Crowley QC and Miss Rhian Livesley (instructed by the local authority) for local authority B
Mr Karl Rowley QC (instructed by Stephensons Solicitors LLP) for MY1 (the mother of Y1, Y2 and grandmother of Y3, Y4)
Mr Karl Rowley QC (instructed by Linder Myers Solicitors LLP) for MY2 (mother of Y3, Y4) FY2 (father of Y3 and Y4) appeared in person
Miss Julia Cheetham QC and Miss Elizabeth Morton (instructed by Temperley Taylor) for GY (the children's guardian of Y1, Y2, Y3, Y4)
Mr Alex Ustych (instructed by the Government Legal Department) for the Ministry of Justice (MoJ)
Hearing date: 3 August 2015
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
This is a short footnote to the judgment I handed down in these proceedings on 30 July 2015: Re X (Children); Re Y (Children) [2015] EWHC 2265 (Fam). I shall take the judgment as read.
In accordance with the directions referred to in paragraphs 94 and 96 of that judgment, MoJ filed its submissions on 31 July 2015. So far as material for the purposes of this judgment, the following basic points were made by MoJ:
i) In drafting the protocol in place between HMCTS and NOMS to provide radio-frequency (RF) tagging in family proceedings, officials did not foresee that tagging in family cases would be extended to GPS tracking. Indeed, so far as MoJ is aware, the GPS tagging proposed in the present case is unprecedented. The current contract does not envisage use of GPS tagging in family cases. Any such expansion of the scheme would require contractual changes.
ii) MoJ does not consider that it is within the court's powers to order MoJ or NOMS to bear the cost of providing GPS tagging.
iii) "The consensus of those responsible for managing electronic monitoring arrangements within MoJ (and consulted as part of preparing these submissions) is that the perceived advantages of GPS tagging over RF tagging do not necessarily align with the actual level of additional protection offered. The Court will no doubt carefully consider whether the additional logistical demands, cost and intrusiveness of GPS tagging is justified by any advantages over RF tagging."
iv) Based on the cost of the current service, GPS tagging costs significantly more – over 6 times more per subject per annum – than RF tagging. However MoJ does not suggest that the costs implications alone should stand in the way of measures the court considers necessary to safeguard children's welfare in this case.
That said, MoJ's submissions went on to make clear that:
i) MoJ is committed to assisting the court in protecting the children's welfare/best interests.
ii) MoJ is prepared to facilitate GPS tagging arrangements in this particular case if considered appropriate by the court.
iii) However, if GPS tagging was to be ordered in this case, this, being a new requirement, would raise a number of operational considerations and the necessary arrangements would take time to put in place. The court should take that into account when setting time frames.
MoJ went on to spell out that the stance taken by it in this case, and the submissions made, are limited to this case only; and that its agreement to facilitate GPS tagging in this particular case (if considered appropriate by the court) is without prejudice to its position in any other cases and is not intended to suggest that the power to order it to do so exists.
However, MoJ's willingness to facilitate the use of GPS tagging in this case did not extend to its being prepared to underwrite the costs. Its submissions on the point were as follows:
"If the main purpose of the GPS tag is to allow the children to return to the family home and this is done by consent of the parties, MoJ would invite consideration by the parties to these proceedings of the cost being shared between them on an agreed basis. Alternatively the Court may wish to consider what if any powers it has to require the cost to be paid by one of the parties to the proceedings."
By the time the matter came on for hearing before me on 3 August 2015, Mr Alex Ustych, on behalf of MoJ, was able to tell me on instructions that it would take approximately a fortnight to put all the arrangements in place for GPS tagging. He was also able to say that, having considered its position further since filing its submissions, MoJ was willing, if I took the view that there should be GPS tagging, to meet the cost in this case without having recourse to any of the parties for any payment.
That, as he made clear, was entirely without prejudice to MoJ's position as I have summarised it in paragraph 2 above, and is not to be treated as a precedent in any future case. In particular, the fact that MoJ is willing in this case to agree to meet the cost does not mark any departure from its fundamental position that the court has no power to order MoJ or NOMS (or, I assume, EMS) to bear the cost of providing GPS tagging.
Mrs Crowley, on behalf of local authority B, and Mr Crabtree, on behalf of local authority A, submit that for good reason, as explained in my previous judgment, I concluded that GPS tagging should be part of the package of protective measures; that, despite what is said by MoJ, the evidence summarised in that judgment demonstrates that GPS tagging provides additional security and protection as compared with RF tagging; and that the children in both cases should therefore remain in foster care until GPS tagging can be put in place. The additional delay, if very regrettable, is nonetheless required if the children's safety is to be adequately protected.
Miss Cheetham, on behalf of GY, and Miss Sweeney, on behalf of GX, agree that there should be GPS tagging once that can be arranged. But they voice the concerns of both guardians about the adverse consequences for the children of their continuing separation from their parents, made worse in recent days by the uncertainty as to whether, and if so when, they may, as at least the older children had been led to believe, be going home. They submit that on balance the best course is for...
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