Index of Cases

1. Re Q, R & S (RRO Application) [2021] EWHC 1492 – The High Court considered an application for a Reporting Restriction Order concerning three children whose mother was murdered by their father –

https://www.bailii.org/ew/cases/EWHC/Fam/2021/1492.html

2. Re P (Circumcision: Child in Care) [2021] EWHC 1616 (Fam) – Mr Justice Cobb considered the issue of male circumcision in public law proceedings – https://www.bailii.org/ew/cases/EWHC/Fam/2021/1616.html
3. Re A, B & C [2021] EWCA Civ 451 – The Court of Appeal considered the correct application of the Lucas Direction in family proceedings – https://www.bailii.org/ew/cases/EWCA/Civ/2021/451.html

 

1. Re Q, R & S (RRO Application) [2021] EWHC 1492

Judgment of His Honour Judge Vavrecka.

The High Court considered an application for a Reporting Restriction Order concerning three children whose mother was murdered by their father. 

Background: A Reporting Restriction Order (RRO) was made, restricting the publication of the names and photographs of the subject children and details of the schools which they attended. A restriction was also placed on any enquiries seeking information relating to the children or their parents from a carer, the children, the father, the staff at their schools or any relatives of the children. These restrictions were unopposed and were made until the youngest child reached the age of 18 years.

The LA also sought a reporting restriction that prohibited the publication of information that:

1. the children were present in the family home when their mother was killed,
2. the two youngest children may have witnessed her killing, and

iii. all three were left alone with her body for some time,

The LA’s position was that this information, if made public, would only heighten the trauma experienced by the children and their mental health. It was well known that the father had murdered the mother and pleaded guilty to her killing. All three of the children were severely traumatized by events, presenting with challenging behaviours. It was considered that press intrusion would only hinder any progress they might make. The LA’s position was supported by the Children’s Guardian.

The reporting restrictions at (i)-(iii) were opposed by the BBC (3 Counties Radio) and a freelance journalist on grounds of public interest. They argued that the age of the children meant that they would not be impacted by the reporting, and everyone in the vicinity of where they lived were aware of the information in any event. Reporting of the details was supported by the maternal grandmother.

HHJ Vavrecka ruled that the welfare of the children and their Article 8 rights were highly significant. The Judge stated that it was a balancing exercise between those rights and the rights as set down in Article 10. On balancing those respective rights in this instance, the Judge concluded that (i)-(iii) was a disproportionate restriction.

The judge conclude that the local community would already be aware of the circumstances to the extent that the mother was killed at the hands of the father. Further, that the presence of the children at the time would be a key feature in the opening of the Crown’s case in the criminal case.

The Judge stated that the additional restrictions in (i)-(iii) were disproportionate and there was public interest in the press properly reporting the sentencing and scrutinizing the actions of the associated public bodies, including the local authority.

https://www.bailii.org/ew/cases/EWHC/Fam/2021/1492.html

2. Re P (Circumcision: Child in Care) [2021] EWHC 1616 (Fam)

Judgment of The Honorable Mr Justice Cobb.

The High Court considered the issue of male circumcision in public law proceedings. The application was brought by the parents in respect of their 21 month-old son.

Background: A 21 month old boy had been the subject of an interim care order and placed in the care of his maternal aunt at birth. Both parents had accepted that they were not in a position to care for him and it was likely that he would, ultimately, be made the subject of a Special Guardianship Order in favour of the maternal aunt and uncle. During the course of the child’s life, the parents had been offered direct contact three times per week with their son, but neither had taken up the opportunity of contact since later 2020.

The mother and father were both Muslim and had sought for the child, P, to be circumcised. The application was opposed by the local authority and the child’s Guardian. Although the maternal aunt and uncle were not party to the proceedings, they felt that P should not be subject to such a procedure at his young age. They had, however, been unquestionably committed to promoting P’s Muslim faith and adhering to a broadly halal diet.

The matter came before Mr Justice Cobb as there did not appear to be any High Court or Court of Appeal law regarding male circumcision during the life of public law proceedings. The Judge noted the existing private law authorities and distilled a number of guiding principles:

General

1. While it can never be reasonable parenting to inflict any form of FGM on a child, the position is different with male circumcision; “Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms”

Welfare

1. The welfare of the child, both in the immediate and long-term, is the paramount consideration in reaching a decision about circumcision for a male child (the law in its current form is in section 1(1) Children Act 1989); this is uncontroversial in the instant case, and has been the starting point of all previous decisions;
2. The welfare checklist (section 1(3) CA 1989) is engaged;
3. Religious upbringing of a child in care may be a matter of great importance; the significance of the issue will vary from case to case depending on the strength of the religious beliefs and observance of the child’s parents; on any account, this factor will need to be incorporated within (and not in place of) the wider welfare review;

Local Authority duty

1. A local authority is under a duty to ensure that a child in their care is not brought up in any different religious persuasion from that followed by his parents prior to the care order. If the local authority breaches that duty, it will be exceeding the limitation imposed on its exercise of parental responsibility by section 33(6)(a) CA 1989;

Medical issues

1. That the circumcision procedure is irreversible is a matter of significance when looking at the short and longer term implications for the child;
2. The court must review the medical risks and benefits of such a procedure, particularly where it is proposed for a non-therapeutic purpose;

Views of parents and others

1. The religious views and wishes of both parents carry significant weight (they may of course as between themselves have different views/wishes); the court should pay these views ‘serious heed’. The court will be slow to conclude that a parent faithfully striving to follow the teachings of their religion is acting unreasonably; 
2. The court is not bound to give effect to the wishes of the parents about religious upbringing “when satisfied that the child’s welfare requires otherwise, and in giving effect to them the court has power to do so in such a manner as it may consider to be best in the child’s interests”;
3. The views of the primary carers of the child (if not the parents) also carry significant weight; it is a strong thing to impose a medically unnecessary surgical intervention on a residential carer/parent who is opposed to it;
4. The particular environment in which the child is going to be raised is an important factor; if the environment is one in which circumcision is not a part of family life, or in which it is not in conformity with the religion practised by his primary carer, this would be a relevant factor;
5. That where a disputed issue of non-therapeutic circumcision arises again in relation to a child in care, it is appropriate for the matter to be referred promptly to the court for resolution. In this instance, the mother has done so; it may be more appropriate for the Local Authority to take the initiative in such circumstances.

The Court reiterated the fine balance of the decision, and that no party holds the ‘trump card’. On balance, the Court felt that the decision should be deferred until such time as P is ab le to make his own choice, once he has the maturity and insight to appreciate the long-term effects of his decision.

https://www.bailii.org/ew/cases/EWHC/Fam/2021/1616.html

3. Re A, B & C [2021] EWCA Civ 451

Judgment of Lady Justice Macur.

The Court of Appeal considered the correct approach to the application of the Lucas Direction in family proceedings.

Background: The Court of Appeal heard an appeal arising from the decision of the Family Court in East London, raising two points for consideration. Firstly, that D, a juvenile intervenor in a fact-finding hearing criticizes the process by which serious findings of fact were made against him which he argues are consequentially flawed. Secondly, an appeal by H, the step-father of A and the father if B and C, who disputes the Judge’s conclusions regarding whether s31 threshold against him is made out.

The case concerned 3 female children – A (born 2012), B (born 2016) and C (born 2017). Mother is G, who was living with H. D is H’s nephew.

The proceedings followed allegations by A that she had been sexually assaulted by D at the beginning of 2019. A raised these allegations with her mother, G, between October 2019 and December 2019. On 12 December 2019, G took A to see her biological father, where A repeated the allegations. On 17 December 2019, A’s father reported the allegations to the police. That evening, H told D that A had made an allegation that he had raped her. D denied the allegations.

A was interviewed at school on 18 December 2019 by a social worker, teacher and police officer. Details emerged that good practice was certainly not observed. No complete notes were made and it appears that A made a further allegation that resulted in all 3 children being taken into police protection.

A was medically examined on 18 December 2019 and nothing abnormal was noted. In her ABE interview on 19 December 2019, A made further allegations that D had put his penis into her mouth and ejaculated on occasions when he visited her home. D was interviewed the same day and denied the allegations.

The LA issued proceedings on 11 February 2020 and the children made subject of ICOs.

The LA sought 3 findings of fact against D and a finding against H that he failed to take protective action once he became aware of the allegations. The Recorder found that:

1. a) D had anally raped A on multiple occasions during January and February 2019 at his home and once in April 2019 in the garden of A’s home when he had also orally raped her and ejaculated into her mouth.
2. b) H did not know or suspect that D was sexually abusing A at the time, but once he became aware of A’s allegations he did not take any protective action. His response to the allegations, as indicated above, had been inappropriate.
3. c) If A knew that H had been living with D since April 2020, this message would be‘potentially emotionally harmful’.

As to threshold:

1. a) The relevant date was 18 December 2019, when the children were taken into police protection.
2. b) A had suffered significant physical, emotional, and sexual harm at the hands of D.
3. c) H was likely to fail to protect A, B and C from future sexual abuse by a person or persons unknown and was likely to cause them significant emotional harm.

The Appeals:

Inter alia, the Court were asked to consider the 5 identified lies and the Recorder’s 4 considerations which led her to conclude that the only explanation for the lies was guilt.

The trial Judge found that there were 5 instances of dishonesty which were said to be significant [28]. The Judge found that guilt could be the only explanation because:

1. D’s demeanour showed no glimmer of anger, outrage or indignation,
2. D declined to watch the ABE interview,
3. D likes to sleep in but was at A’s address at 8am in order to abuse her, and
4. D insisted that A sit on his lap to prevent A reporting an instance of abuse to her mother.

Of course, in R v Lucas [1981] QB 720 the proposition that a lie is only capable of supporting the other evidence in support of an allegation where a) it is a deliberate untruth, b) that relates to a significant issue and c) was not told for the reason advanced (shame, humiliation etc).

Macur LJ found the trial Judge’s reliance on demeanour “highly concerning [even] if he were the most seasoned adult witness, rather than a juvenile being interviewed and giving evidence for the first time.” It was not established on the facts that D had in fact declined to watch the ABE interview and if he had it would not be indicative of consciousness of guilt. Being at A’s address early to abuse her was “nothing more than speculation”. The sitting on the lap episode was not specifically found to be a lie and did not “fix the other ‘inventions’ as indicative of guilt.”

The Court of Appeal was of the view that these findings were unjustified and remitted the matter for re-hearing. Macur LJ in obiter emphasised that “findings of fact in the Family Court are to be made on the balance of probabilities but should be subject to a similar forensic rigour as deployed in the criminal courts.”

https://www.bailii.org/ew/cases/EWCA/Civ/2021/451.html