Surrey County Council v Al -Hilli & Ors (4) [2012] EWHC 4394 (Fam)

[2012] EWHC 4394 (Fam)Case No FD12C00524
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/12/2012
Before
THE HONOURABLE MR JUSTICE BAKER
Between
SURREY COUNTY COUNCILApplicantZAINAB AL-HILLI (1)RespondentsZEENA AL-HILLI (2)RespondentTHE MATERNAL AUNT (3)RespondentTHE MATERNAL UNCLE (4)Respondent
Miss Sarah Morgan QC and Miss Sharon Segal (instructed by Local Authority Solicitor) for ApplicantMs Melanie Carew (instructed by CAFCASS) appeared for Children’s GuardianMs Jane DeZonie (instructed by Gordon Dadds LLP) appeared for Aunt and UncleMiss Amy Clarke appeared on behalf of Surrey PoliceHearing Hearing date: 6 th December 2012
JudgmentTHE HONOURABLE MR JUSTICE BAKERThe judge hereby gives leave for this judgment to be reported on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified.The Honourable Mr. Justice Baker :
[1]This is an application by the Chief Constable for Surrey to be joined to care proceedings brought under Part 4 of the Children Act 1989. I am dealing with care proceedings brought by Surrey County Council in respect of Zainab and Zeena Al-Hilli, two girls aged seven and four whose parents and grandmother were tragically murdered whilst on holiday in the French Alps on the 5th September 2012. The circumstances of the murders have been the subject of worldwide media attention and continue to be the subject of a detailed investigation by the French police. The Surrey Constabulary, responsible for the area where the family lives in this country, are actively involved in that investigation.[2]Court proceedings were started in this country whilst the girls were still in France and a number of hearings have taken place at which I have made various orders, including a succession of reporting restriction orders, the current order being in place until the 22nd March 2013 unless varied or extended, and an interim care order placing the girls in the interim care of the Surrey County Council. At present the children are placed under that order with foster parents with a very high degree of police protection.[3]The principal issue to be determined in these care proceedings will be the future arrangements for the care of the girls. Amongst the matters the Court will have to consider will be whether the girls should remain in the care of the Local Authority or be placed with family members and, if placed with family members, the type of order that should be made to cover that placement. In making those decisions the children’s welfare will be the Court’s paramount consideration and the Court will have to consider the factors in the so-called welfare checklist in s.1(3) of the Children Act 1989. In this case a very important factor to be considered by the Court will be the likelihood of future harm to the girls.[4]The Surrey Police have already attended most of the interim hearings to date and it is plain that the Court will continue to need the help of the police at all stages in these proceedings. The issues on which their help will be required include(1) information concerning the ongoing police investigations;(2) disclosure of documents within their possession or control that are relevant to future decisions about the children’s welfare; and(3) information concerning the specific risks to the children.[5]By a notice of application dated the 30th November 2012, the Chief Constable for Surrey applies to be joined as a party to these proceedings. That application is opposed by the Local Authority and the children’s guardian. This morning I have heard legal arguments on this issue and I now set out the reasons for my decision.[6]The arguments in support of the application by the police are succinctly set out in a document attached to the Chief Constable’s application. It is said that the application is made for three reasons. First, it is foreseen that the Surrey Police will be required to provide a great deal of information to the Court in respect of the children and their safety. This information is likely to be exceptionally sensitive. It is submitted that joining the Chief Constable will ensure that the flow of information is as smooth as possible. Secondly, the children are currently being protected by the Surrey Police. The Surrey Police therefore have a direct involvement in the current arrangements for their care and have a legitimate interest in discussions in respect of that care. Thirdly, the children are likely to require ongoing police protection. The Court may find it of considerable assistance to receive submissions from the police in respect of the viability of any future order in respect of the children having regard to the need for that protection.[7]On behalf of the Local Authority, Miss Sarah Morgan QC and Miss Sharon Segal state that the Local Authority is unclear why the police regard party status as necessary as opposed to merely being present and represented at the hearings, as to which the Local Authority not only has no objection but has told the police officers it would actively encourage. They point out that the provision of information will be governed by court directions about which the police will be able to make submissions by attending the hearing without being parties to the proceedings.[8]Miss Morgan and Miss Segal rightly point out that the Family Division is well used to the receipt of sensitive information. Sometimes the degree of sensitivity is such that the police may seek to claim public interest immunity in respect to that information. Miss Morgan and Miss Segal rightly submit that the police do not need to be a party to the proceedings to put forward such an argument.[9]The Local Authority accepts that the joinder of parties is a matter entirely within the court’s discretion. The Local Authority counsel remind me that there have been rare cases where third parties have been joined to care proceedings for specific purposes - for example, the joinder of three doctors whose actions were criticised in the course of a child protection investigation: see A Local Authority v A [2011] EWHC 231 (Fam), per Theis J.[10]Miss Morgan and Miss Segal also remind me of a recent decision of this court, X v Y and Z Police Force [2012] EWHC 2838 (Fam), in which a police force was joined as second respondent to an application for the summary return of children to a foreign country under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Although that case was brought under different legislation and the circumstances were different from those arising in the present case, it is notable that the police in that case not only supplied several volumes of relevant redacted material for the proceedings and facilitated communication with a foreign law enforcement agency but also advanced a positive case on one of the issues arising in the proceedings, namely whether a defence under Article 13B of the Convention was established.[11]Miss Morgan and Miss Segal submit that the most relevant reported authority hitherto is the decision of McFarlane J, as he then was, in Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam) [2010] 1 FLR 1048. That case concerned an application by a father in prison for contact with a child who was a ward of the Court. At an early stage in the proceedings, the police informed the Court that there was credible intelligence from an anonymous source suggesting that the father had taken out a contract to have the mother murdered when she attended the hearing. The Court therefore had to investigate that claim while affording due protection to material concerning the alleged murder contract which the police asserted had to remain confidential and undisclosed to the parties and their representatives in the public interest. For over 18 months until the conclusion of the fact-finding hearing, the Family Court was engaged in dealing with this information and its procedural consequences in a mixture of closed and open hearings. Special advocates were appointed, apparently for the first time in family proceedings, to represent the interests of the father and the paternal grandparents at the closed hearings.[12]At the conclusion of the proceedings the learned judge, whilst making a number of adverse findings against the father and his parents, also found that, even coupling evidence from the open proceedings with evidence from the closed proceedings, there was insufficient evidence to establish that the father had taken out the contract to kill the mother. He duly made orders for contact following on from those findings.[13]It is notable, as explained at paragraph 44 of McFarlane J’s judgment, that the police in that case were not joined as a party to those proceedings. At the conclusion of the judgment, the learned judge gave certain guidance as to the future conduct of such cases. That guidance, approved by the then President, continues to be applicable in cases of that type and to this court’s knowledge has been followed in several other cases following Re T, although the question of the use of special advocates in care proceedings and the procedure to be adopted in cases of this type is to be considered in a judgment shortly to be handed down by the Supreme Court in which, coincidentally, Miss Morgan and Miss Segal appeared.[14]The guidance given by McFarlane J includes the following passage concerning the police, which I am informed by Miss Morgan is unlikely to be the subject of comment or review by the Supreme Court in the judgment shortly to be handed down. At paragraph 112(ix) the learned

Judge said:

‘In cases of particular difficulty, it may be appropriate to consider whether the police should be joined as a party to the proceedings, and not simply act as a witness as in the present case, so that they may be more directly subject to the direction of the court. This is a matter that may require careful consideration if, as here, the police are not making any application for relief.’
[15]On behalf of the guardian, Miss Melanie Carew accepts that information from the police will be essential in assisting the Court to make decisions about the future of the children. She adds, however, that it is not clear whether they need to be joined to the proceedings for that purpose. To be a party to the proceedings would suggest that they have an application to make and that the Chief Constable has a case to advance. Through Miss Carew the guardian submits that this is unlikely to be the case and therefore queries the need for the police to be a party. She accepts that their evidence would certainly be very relevant and supports the proposal that they be given permission to attend whatever proceedings they require to attend and to be represented as appropriate.[16]It is plain to me that the Court does have a discretion in appropriate cases to join a police force as a party to care proceedings. Manifestly those circumstances will be rare and exceptional. Where, however, the Court perceives that either(1) there is likely to be a very real advantage in joining the police force to facilitate the disclosure of information and/or(2) matters arising during the proceedings are likely to involve significant representations from the police and/or(3) there are issues about which the police wish to make representations to the Court in the exercise of their statutory duties for the responsibility for the safety of individuals, the court may well, as envisaged by McFarlane J in Re T, exercise its discretion by joining the police as a party.[17]In my judgment all three factors arise in this case. First, a substantial proportion of the documents relevant to these proceedings will be either generated by or distributed through the Surrey Police. It is via the Surrey Police that the English Court and the English Local Authority will obtain access to information from the French Police.[18]Secondly, it is already clear to this Court that it will be necessary to consult the Surrey Police at all steps along the way about decisions concerning the welfare of the children, including their placement, their therapy and other treatment, their education and contact to ensure the safety of the children is protected in the decisions made by the Court.[19]Thirdly, and contrary to the submissions advanced on behalf of the guardian, I do think it likely in this case that the police may have a positive case to advance on the future placement of the children as part of their responsibility as the law enforcement agency entrusted with the duty of protecting persons within their area, particularly where there may be a threat to life.[20]Following the guidance of Mr Justice McFarlane in Re T, I have given very careful consideration to this question but concluded for the reasons set out above that the Surrey Police should be joined as a party to these proceedings.[21]I authorise publication of this short judgment today. The girls’ names are already in the public domain and may be published in any report of this judgment. Reporting of further details of the circumstances of the girls, and of the arrangements for their future care, treatment and education, remains prohibited, both under the general rules in the Administration of Justice Act 1960 and the Family Procedure Rules 2010, and also under a reporting restricting order. [NOTE – Since this judgment was delivered, further judgments in this case containing further information about the children have been published with the Court’s permission – see [2013] EWHC 2190 (Fam) [2013] EWHC 2299 (Fam) and [2013] EWHC 3404 (Fam).]