B (children), Re [2003] EWCA Civ 786

Case No B1/03/1117[2003] EWCA Civ 786
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MR JUSTICE SUMNER)
Venue Royal Courts of JusticeDate Wednesday, 21 May 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
MR JUSTICE BODEY
I N T H E M A T T E R O F
B (CHILDREN)
(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR A MCFARLANE QC (instructed by Messrs Bindman & Partners, London, WC1X 8QB) appeared on behalf of the Appellant
MISS T VILLAROSA (instructed by Hackney Directorate of Law & Probity, London, E8 1EA) Appeared on behalf of the Respondent
MISS A WARE observed on behalf of CAFCASS
J U D G M E N T

LORD JUSTICE THORPE:

The

[1]B family are an orthodox Hasidic Jewish family living in Stamford Hill. There are 12 children of the family, six of whom are still minors. It is with those six that this appeal is concerned. There are three girls aged respectively 16, 14 and 12, followed by three boys aged respectively 9, 6 and 4.[2]One of the older children, B, is 22 years of age. She was referred for therapy to a well-known Child and Adolescent Consultant Psychiatrist at the Tavistock Clinic, Dr Caroline Lindsey. Early in the course of her therapeutic relationship with Dr Lindsey, she related that she and some of her sisters had had some sexual involvement with their grandfather. Dr Lindsey no doubt balanced on the one hand her child protection obligations, given the presence of three younger sisters still in the family home, against her obligation to maintain the confidentiality of the therapeutic relationship. Having discussed the case with colleagues, Dr Lindsey decided that her obligation to protect outweighed her obligation to maintain confidentiality. Accordingly she informed a practising social worker who in due course alerted the relevant local authority, the London Borough of Hackney.[3]In consequence, a strategy meeting was convened on 4 February 2003. Those present included Dr Lindsey and Mr Moscowitz, a community representative on behalf of the Stamford Hill community. By way of introduction, Dr Lindsey discussed the background and related to the meeting what B had told her. She had said that her grandfather had interfered with her sexually, and that she had not had recourse to her parents because she was governed by rules of modest behaviour and did not have the language to describe what she had experienced. Dr Lindsey also reported to the meeting that at least one of B's adult sisters had had a similar experience.[4]Dr Lindsey further reported to the meeting that she regarded Mrs B as abusive. She said that she insulted her children, was derogatory towards them both physically and emotionally and had very little self-control. By way of instance Dr Lindsey reported that towards the end of 2002 Mrs B, in a rage, had thrown a hard object at B which had broken her nose and necessitated a surgical operation. Dr Lindsey also reported that there were others in the community who had received independent reports of abuse within the family.[5]Dr Lindsey described the grandfather as a chronic abuser. She said that she understood that there had been no rape of any of the girls, but that certainly one of them had been penetrated digitally. That account, and the suggestion of the availability of supporting accounts from others, led the local authority initially to intervene by seeking orders in wardship from judges of the Family Division.[6]I do not intend to record any of the steps taken in the Family Division prior to the appearance before Mr Justice Charles on 2 April. On that occasion the question arose as to how Dr Lindsey's evidence should be introduced into the legal proceedings. Mr McFarlane QC, who has at all material times represented the family, drew an order, paragraph 3 of which stated:
"The local authority is directed to file and serve a report from Dr Lindsey by 4 pm on Monday 7 April."
[7]Miss Villarosa, who has represented the local authority at all material times, amended that to read:
"The local authority will, if practical, file and serve a report from Dr Lindsey by 7 April."
That resulted in a fax of 4 April from Hackney Legal Department to Dr Lindsey in which she was informed of the order. The writer then said:
"We would be grateful if you would provide a report by that date together with your CV detailing your professional qualifications and experience. Although not part of the order of Mr Justice Charles, the legal representative for the parents have suggested the following points they would wish you to address in your report."
[8]There then followed under headings (a) to (f) inclusive, detailed issues that Dr Lindsey was invited to address. Dr Lindsey complied with the request with commendable speed. On 6 April she provided what is headed "Statement for the High Court in relation to the [B] Family." Paragraph 1 reads:
"I am Caroline Rachel Lindsey, Consultant Child and Adolescent Psychiatrist of the Child and Family Department of the Tavistock Clinic. I enclose a copy of a brief Curriculum Vitae for the attention of the court."
The next paragraph explains that, as well as the fax from Hackney to which I have referred, she had had a conversation with Miss Villarosa. That paragraph ends with this sentence. "Ms Villarosa explained on the telephone, that [Mr Justice Charles] had stressed that the report was to be produced only if practicable and also with due regard to issues of confidentiality." She continued thus:
"Within the limits of confidentiality of my therapeutic relationship with [B], I am reporting on the allegations of sexual abuse by the maternal grandfather as disclosed to me. When I saw [B], following referral in November 2002, she described her experiences of sexual abuse by her maternal grandfather in detail, at the first and subsequent sessions."
The attached curriculum vitae readily illustrates Dr Lindsey's distinction. For instance, between 1997 and 2001 she was Chair of the Child and Adolescent Faculty at the Royal College of Psychiatrists. Furthermore, she is currently Chair of the External Working Group for the Child and Adolescent Mental Health and Psychological Well Being Module of the Children's National Service Framework for the Department of Health. It is also relevant to note that she has, since 1977, been a Group Analyst, qualified by the Institute of Group Analysis.[9]Dr Lindsey's statement to the court contains little of the detail of sexual abuse within the family that she had reported to the strategy meeting. It also contains none of her report of abuse by Mrs B. I would also observe that, although she had been invited to submit a report, in fact she furnished what has all the appearance of a witness statement. She did not deal with any of the issues that had been sought by the family's legal representatives.[10]Mr Justice Charles had, quite rightly in my judgment, emphasised on 2 April that any approach to Dr Lindsey should have due regard to issues of patient confidentiality. It may well be that that signal to Dr Lindsey of the court's awareness of the importance of patient confidentiality influenced the content of her statement and the absence of particularity.[11]The tight deadline given to Dr Lindsey by the order of 2 April no doubt reflected an imminent hearing which took place on 10 April before Mrs Justice Bracewell. By that stage the local authority had taken the strategic decision to move from the court's inherent jurisdiction in wardship to invoke intervention under the public law provisions of the Children Act 1989. Accordingly, the first paragraph of the order of 10 April adjourned the local authority's application for an interim care order to 1 May. No application had been made on that day because the proceedings in wardship were before a High Court judge. Rules governing the issue of Children Act proceedings require all applications to be initiated in the Family Proceedings Court. It was therefore incumbent upon the local authority to issue an application for an interim care order in an appropriate Family Proceedings Court and to seek its upward transfer in readiness for the hearing on 1 May. Seemingly, no steps were taken by the local authority to that end.[12]On 1 May, which was a Thursday, Mr Justice Sumner heard evidence both in support of and in opposition to the applications for an interim care order. He resumed on the following day and at about 2 pm announced his conclusion that there should be an interim care order in respect of each of the minors to the London Borough of Hackney until 4 June 2003. He took the course of announcing the result before judgment in order to enable the parents to regain their home on the Sabbath. He then adjourned for approximatey an hour to prepare the ex tempore judgment which he then delivered. At its conclusion Mr McFarlane sought permission to appeal which was refused.[13]An application was received in the Court of Appeal office on Friday 16 May. Given the urgency of the case and the apparent substance in Mr Mcfarlane's written opinion in support of the application, an oral hearing with appeal to follow was fixed for today, 21 May 2003. At the outset we granted permission and we have immediately heard the appeal.[14]The order made by Mr

Justice Sumner has this recital:

"Upon it being recorded that the Local Authority have agreed: (i) That the Local Authority will issue an application for an Interim Care Order forthwith."
Then follows the order of the court.[15]It would, given the importance of laying the procedural foundation, have been my expectation that Hackney would have issued in an appropriate Family Proceedings Court on the following day at the latest. They apparently did nothing until 16 May when they issued an application for an interim care order in the Principal Registry of the Family Division. By no stretch of licence could that be said to be in compliance with the recital. Furthermore, as Mr McFarlane has pointed out, the rules appear to indicate that it was not open to the local authority to issue other than in a Family Proceedings Court. Perhaps these technicalities matter little, but the practical consequence of the local authority's failure to take a perfectly simple, everyday procedural step is that these children have been denied the advantage of representation in these proceedings. No guardian at litem has been appointed, no solicitor has been appointed to act for the children.[16]When Mr McFarlane drew attention to this state of affairs before us, the court requested Mrs Di Mambro, Deputy Master, to approach CAFCASS London to inquire as to the position. They were quite unaware of the issue of the application out of the Principal Registry on Friday last, but it is hardly an exaggeration to say that heroically, they arranged for a well-qualified Jewish guardian to attend this court within the hour. We are most grateful to her for attending and immediately immersing herself in the case on behalf of the children.[17]Other recitals to Mr Justice Sumner's order provide that the local authority would carry out an interview with the minor children without removing them from the home and that, if the Local Authority considered it necessary to remove the children, they would only place them within the Hasidic community at Stamford Hill with a carer of the Hasidic faith. It was further provided that if they decided to remove the children they would give the parents 48 hours' notice prior to removal explaining the reasons why removal is considered necessary, together with details of the plan for the children's care and contact with the family. Finally, the recitals provided that the period during which the children might be removed would not exceed two weeks. Subject to those protective recitals, the interim care order followed. Paragraph 4 of the order had indeed provided for the appointment of a children's guardian as a matter of urgency. But until the local authority took the step of issuing the application for a care order, that was an empty provision.[18]To complete the chronology, there was a meeting between the local authority and Mrs B yesterday which settled all the details of the arrangements for the interview of the children. The meeting was entirely satisfactory and the interviews with the children have been conducted, or are being conducted, today.[19]By the notice of application and by his skeleton argument, Mr McFarlane mounts three attacks on the judgment below. His first submission is that there was simply no evidential basis upon which the judge could find that the section 31 threshold had been crossed. His second submission is that, in any event, the judge signally failed to consider the welfare exercise, which necessarily follows in any case in which the section 31 threshold has been found to be crossed. His third submission is that the judge made an order that was plainly wrong, given that during the course of the hearing the local authority had conceded that it was not necessary to remove the children from their home in order to interview them. Given that concession, Mr Mcfarlane's submission is that the children would have been sufficiently protected by an order adjourning the application for an interim care order with liberty to renew at short notice. Mr McFarlane submits that it is plainly preferable to impose the obligation on the local authority to seek further judicial permission for intervention rather than to permit a conditional intervention subject to the parents opportunity to seek a judicial veto.[20]I turn to consider Mr Mcfarlane's detailed submissions in support of his first ground. In his skeleton argument he submitted, amongst other things, at paragraph 8:
"Dr Lindsey (in a statement) refused to disclose anything said to her during the therapy sessions and did not give evidence before the judge."
[21]In paragraph 11 he said:
"Neither the therapist nor the source of the allegations was prepared to give any detailed evidence to the court (or produce notes of what is said to have been said during the sessions) to substantiate the allegations."
However, during the course of oral submissions, it emerged that those assertions rested only on inferences drawn from Dr Lindsey's statement of 6 April. There were no communications between the local authority and Dr Lindsey after 6 April. They made no inquiries of her as to what extent, if any, she was prepared to go in further assisting the court. Mr McFarlane and his team equally have made no inquiry of Dr Lindsey.[22]It seems to me, as a matter of general principle, that once Dr Lindsey had made a statement, filed and relied on by the local authority, the obligation was on the parents to exercise their right to challenge the statement. Without any such exercise, or attempted exercise, it would be quite unsafe to draw any inferences as to what would have been Dr Lindsey's reaction. A therapist is put into a dilemma if, during the course of confidential communication with a patient, material emerges which suggests abuse, or possible abuse, of children. Here, Dr Lindsey took the decision to override professional privilege and to report her concerns to the relevant child protection services. Thereafter, she had a choice as to whether or not to participate in the related but separate legal proceedings. It may well be that she did not understand the distinction a lawyer would draw between a report and a statement of evidence. Once she had taken the step of providing a statement in which she confirmed the essential revelation, she thereby exposed herself to an extended role in the family proceedings and the possibility, even probability, of cross-examination on her statement.[23]Accordingly, it seems to me that those in similar circumstances need to note the distinctions between making a report to Child Protection Services and furnishing a report or alternatively a witness statement within the legal proceedings. It may be said that these distinctions are not decisive since, had Dr Lindsey declined to furnish any statement or report in response to the request contained in Mr Justice Charles' order, she might still have been subpoenaed by either party. In that event, she would have had to decide for herself where the balance lay between the importance of preserving patient confidentiality and the importance of participating in public law Children Act proceedings brought in order to protect children. Of course however she herself had decided, ultimately, that balance has to be struck by the trial judge. The importance of patient confidentiality is well illustrated in this case by an interview which the social worker had with B on 16 April. During the course of the interview B stated that:
"She went to Dr Lindsey in full confidence and had now lost trust in her."
[24]Accordingly, in my judgment, Mr McFarlane's submission that the parents have been denied the opportunity of challenging or testing the evidence of Dr Lindsey is without any foundation. Mr McFarlane in his skeleton further states:
"Because of the stance taken by Dr Lindsey, and because the local authority accepted that stance and did not seek to rely at the hearing upon any detail of allegations directly from Dr Lindsey, the parents had no opportunity to investigate, challenge or examine this key evidence. The resultant process caused the parents to be at a substantial disadvantage vis-a-vis the local authority, who were able to rely upon the unauthenticated minute of Dr Lindsey's summary of [B's] allegations and, in turn, rely upon Dr Lindsey's assertion of professional confidentiality within the court proceedings."
[25]I reject those assertions emphatically simply because they are not made good on an investigation of Dr Lindsey's role in this case or on an investigation of the communications between her and the local authority and the absence of communication between her and the parents's legal representatives.[26]In those circumstances, I conclude that Mr

Justice Sumner was entirely justified in saying as he did in paragraphs 36 and 37 of his judgment:

"37. On the other side is that Dr Lindsey is, as Mr McFarlane accepts, an experienced child psychiatrist. She is therefore used to hearing children (mainly), but no doubt adults as well, explaining matters in relation to abuse that they say they have suffered. The courts are used to them giving evidence from time to time about whether accounts given, in particular by children of course, are or are not ones upon which they would place weight. The court of course is not bound by that, but the court is entitled, unusually in this area, to place weight upon a professional's view, nearly always of a young person giving evidence of abuse. 38. I mention those matters because in my judgment it adds weight to the allegations made by [B]. It means that unless Dr Lindsey had been satisfied that she ought to break confidence she would not have done so, and that the matters which would have influenced her would have been the creditworthiness of the account she heard, and her assessment of the potential risk once she knew that there were other young girls within the household. When it comes to the question of whether I can or cannot give credence to that evidence, I place weight upon those factors."
That seems to me an entirely legitimate assessment of the value of Dr Lindsey's reports.[27]Mr McFarlane further submits is that, whatever may have been the position in late 2002 or in February 2003, there was clear evidence on 1 and 2 May, not only from Mrs B but also from Rabbi Rothenberg, that the grandfather is now in a very weak physical state. As

the judge recorded it:

"He is unable to walk without assistance, he had two heart attacks within the course of a week, and he is plainly physically disabled."
[28]The Rabbi in his evidence had said:
"The maternal grandfather is now 81 years old . . . He has just been in hospital over the last two weeks going through an angiogram and he is very weak and very frail."
[29]In the circumstances as they were at the beginning of May, Mr McFarlane accordingly submits that the grandfather can pose no risk whatsoever to the remaining daughters in the family home. Miss Villarosa's response to that is only to the effect that, nonetheless, he would be, to them, a threatening and frightening presence and would be the source of risk of emotional harm.[30]It does not rest there. There are the allegations against Mrs B. They come from B to Dr Lindsey and are reported in the record of the strategy meeting, if not included in her statement of 6 April. Furthermore, there are also reports, admittedly through an extended chain, from G, an older daughter of the Bs, to the neighbour, Mrs K, and then reported by Mr Moscowitz at the strategy meeting. Mr McFarlane responds that in the interim approaches by the local authority to all potential witnesses have failed to adduce a single person who is prepared to come to court to pursue any allegations against either of the parents.[31]Miss Villarosa's reply to that is that there has clearly been an orchestrated campaign to close ranks and to deny the local authority the evidence which was plainly available prior to the hearing of 1 and 2 May. She draws attention to the bizarre circumstances of the interview of two of the older children when they were accompanied by a private detective engaged by Mr and Mrs B. He is reported to have conducted himself during the interview in an interrogatory and accusative fashion. Miss Villarosa says that the judge was fully entitled to attach significance to these subsequent possibly manipulative manoeuvres which he recorded in paragraphs 42 and 43 of his judgment.[32]My conclusion on the section 31 threshold submission is that Mr McFarlane fails. The judge had to exercise a broad and worldly judgment. There were considerations going each way. He was fully entitled, in my opinion, to reach the conclusion that there was, within the totality of the evidence, sufficient to cross the threshold. I would say that he was plainly right so to conclude.[33]However, it does not follow from that that the orders that he went on to make were well-founded in law. His reasoning is explicit. In paragraph 48 he says:
"I am satisfied at the end of the day that the local authority have satisfied me that there are reasonable grounds for believing that the six children have suffered, or are likely to suffer, significant harm."
So far so good, but he then continued:
"In the ordinary way I would not then venture at all into the way in which the local authority would be likely to exercise the powers that that gives them on the basis of my finding, but I am satisfied that in this case, if that is necessary, that is relevant because although they have gone a long way overnight, recognising in the same way as I have the unusual sensitivities in these matters, care has still to be taken."
He then recites what the local authority proposed to do with evident approval.[34]It seems to me that the judge has momentarily fallen into error and confused the point at which discretion and management passes from the judge to the local authority. Once the judge has determined to make a care order, the management of the care plan thereafter is for the local authority to determine. But there is still a vital judicial task between finding the section 31 threshold crossed and endorsing the care order. The judge must first consider all the options that are open. He must weigh the relevant factors balancing one factor against an other. He must deliver a reasoned judgment explaining his ultimate choice. Furthermore, where the application is for a care order empowering the local authority to remove a child or children from the family, the judge in modern times may not make such an order without considering the Article 8 rights of the adult members of the family and of the children of the family. Accordingly he must not sanction such an interference with family life unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children.[35]The judge's failure to carry out that essential exercise connecting the section 31 threshold finding to the ultimate order is fatal. Indeed, it is accepted by Miss Villarosa that this is a necessary two-stage exercise and that the judge's failure to conduct the second stage of the exercise cannot be supported.[36]That brings me to the related final submission that the judge should have put the obligation upon the local authority to apply for permission to remove rather than the obligation on the parents to apply to veto removal. I think that submission is equally well-founded. On all that I know of this case, I would reach the unhesitating conclusion that the proper order is that the local authority's application for an interim care order should stand adjourned with liberty to apply on short notice.[37]The case is already fixed to return before Mr Justice Sumner on 4 June. There is no possible reason to disturb that arrangement. Accordingly, at the moment I need propose no more than to allow the appeal and substitute for the interim care order made by Mr Justice Sumner the alternative order adjourning the application for an interim care order with liberty to apply in advance of 4 June on short notice to the parents.[38]MR JUSTICE BODEY: I agree that the threshold for an interim care order was plainly met, but that the more proportionate response was to adopt the course just outlined by my Lord. I, too, would allow this appeal.

Order

Appeal allowed. Mrs Ware appointed by CAFCASS as guardian. Case to be heard by Mr Justice Sumner in the High Court on 4 June 2003.

Cited in 35 later judgments

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