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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> London Borough of Sutton v MH (No 1)  EWHC 1375 (Fam) (22 March 2016)
Cite as:  EWHC 1375 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| The London Borough of Sutton
|- and –
|- and -
|- and -
Mr. Tertha Gupta QC and Mr. Michael Bailey (instructed by William Bache & Co) for the First Respondent
The Second Respondent did not appear and was not represented
Mr. Andrew Bagchi QC and Mr. Gordon Reed (instructed by Gordon Reed & Co) for the Third Respondent
Mr. Robin Barda (instructed by CAFCASS Legal) for the Children's Guardian
Hearing dates: 15, 16 and 17 March 2016
Crown Copyright ©
Mr Justice MacDonald:
i) An application dated 9 February 2016 seeking a specific issue order stipulating various matters (including that the local authority and NH's solicitors are in contempt of court, that NH is not competent to conduct proceedings, that the interim care order should be discharged and he should be reunited with his mother for travel to Zimbabwe) or in the alternative a "contact order". In addition the mother sought directions for the filing of further evidence by the local authority.
ii) An application dated 26 February 2016 lodged by way of a C2 application form by the mother's then solicitors applying for the following orders:a) That the interim care order in respect of NH be discharged;b) That an order the mother believes the court to have made on 12 February 2016 regulating the manner in which the mother could receive certain of the documents in these proceedings be set aside (the court in fact made no such order on that date but did make such an order on 9 March 2016 for reasons set out in the extempore judgment given on that date, an approved transcript of which judgment was sent to the parties on 17 May 2016);c) That the order made by Cobb J on 27 November 2015 restricting the mother's access to medical and police records be set aside and that the mother be provided with such documents (it would not appear that Cobb J made such an order on 27 November 2015, rather he made an interim reporting restriction order);d) That the hospital treating NH disclose to him certain documents from Alberta, Canada;e) That the local authority be prohibited from giving instructions to the hospital treating NH;f) That the mother be involved in decision making regarding NH's treatment and the formulation of any treatment plan for NH;g) That the mother's solicitors receive copies of all letters sent to or received from the Canadian High Commission and the authorities in Alberta and Ontario;h) That the local authority and NH's solicitor disclose fully to "external parties" their position, input, advice or legal opinion;i) That the local authority submit a detailed education, healthcare and placement plan for NH if he were to go and live in Canada alone or remain in the United Kingdom;j) That the order of 27 November 2015 regarding custody of NH's passport be set aside.
iii) A C2 application to adjourn the final hearing dated 14 March 2016 on the grounds, as mentioned above, that the court bundle is defective (my reasons for refusing that application to adjourn are set out in the extempore judgment I gave on 15 March 2016, an approved transcript of which judgment was sent to the parties on 17 May 2016).
iv) A further application to adjourn this final hearing made by way of an email dated 17 March 2016 sent to my Clerk by the mother at 09:57. The grounds of that application were, inter alia, that the mother intended to appeal to the Court of Appeal my order of 9 March 2016 and to seek a stay of these proceedings pending appeal, that NH had clearly stated that he did not want restrictions placed on what documents his mother could see, that her legal team had not kept her fully informed, that this court does not have jurisdiction, that she needed time to submit a response to certain documents and that an adjournment was merited to allow the parties to "reconsider" their positions.
v) An undated C2 application purporting to be from NH but lodged by the mother for a specific issue order requiring the local authority to disclose to NH all police, medical and social care records concerning him, a chronology of meetings by phone or in person between NH and social services, records of all meetings in person or by phone between the mother and social services and any reports or assessments in respect of NH's placement.
"…the case be listed for urgent reconsideration of the issue of jurisdiction forthwith given NH's right to remain in the UK has expired, he has passed his sixteenth birthday, and the issue of his habitual residence was not considered at the hearing resulting in the judgment dated 30 July 2015."
i) Whether any of the information provided by the mother subsequent to the decision of Cobb J Re NH (1996) Child Protection Convention Habitual Residence)  EWHC 229 (Fam) justifies the court revisiting the conclusion on the issue of jurisdiction reached by Cobb J in July 2015?
ii) Whether this matter should be adjourned in light of NH losing capacity to litigate and the lack of clarity that has, in consequence, developed in respect of his wishes and feelings regarding his future care, upon which wishes and feelings the local authority had founded its final care plan?
iii) Whether any of the ancillary applications made by the mother should be granted at this stage of the proceedings?
iv) Whether the order made by the court on 9 March 2016 regulating the manner in which the mother can access certain items of documentary evidence filed in this case should be continued, varied or discharged?
v) If the hearing is adjourned, what further directions are required to ensure a timely determination of the adjourned final hearing?
i) Given the manner in which his latest statement was obtained from him, it is now unclear whether NH has genuinely changed his mind about moving to Canada or whether he has been coerced into signing a statement to this effect and in fact maintains his wish to return to Canada;
ii) It would appear that NH no longer has capacity to conduct proceedings and, accordingly, it is necessary to take steps to involve the Official Solicitor before steps are taken by a legal team establish NH's wishes and feelings; and
iii) In any event, his treating psychiatrist assesses that it would not be appropriate at this time to tax NH further with questions concerning his wishes and feelings as to the future in order to clarify what is position in fact is, which wishes and feelings form the very foundation of the local authority's final care plan.
(ii) The mother's Ancillary Applications
i) With respect to the mother's application to discharge an order made by Cobb J on 27 November 2015 restricting the mother's access to medical and police records, it would not appear that Cobb J made such an order (although he did on that date make an interim reporting restriction order).
ii) I am satisfied that, having regard to his fragile emotional state, it would not be appropriate at this time to order the hospital treating NH disclose to him certain documents from Alberta.
iii) I am further satisfied that it would not be in NH's best interests for the local authority be prohibited from giving instructions to the hospital treating NH under the auspices of the interim care order or for the court to prescribe to the local authority the extent to which that the mother should be involved in decision making regarding NH's treatment and the formulation of any treatment plan for NH.
iv) With respect to her request that her solicitors receive copies of all letters sent to or received from the Canadian High Commission and the authorities in Alberta and Ontario, as far as I can ascertain the mother has received copies of this correspondence.
v) I am not satisfied that it would be appropriate for the local authority and those representing NH's to disclose fully to "external parties" their position, input, advice or legal opinion.
vi) With regard to the mother's application for an order that the local authority submit a detailed education, healthcare and placement plan for NH if he were to go and live in Canada alone or remain in the United Kingdom, the local authority will be filing and serving a further final care plan.
vii) Finally, I am not satisfied that it is in NH's best interests to set aside the order of 27 November 2015 regarding custody of NH's passport.
(iv) Access to Documents
i) The right to a fair hearing embodies the principle of 'equality of arms', which principle requires that anybody who is a party to proceedings must have a reasonable opportunity of presenting his or her case to the court under conditions which do not place that party at a substantial disadvantage vis a vis their opponent;
ii) Where there is a dispute which engages this principle the resolution of that dispute involves striking a fair balance between the rights of each of parties;
iii) The principle imposes on local authorities an obligation to disclose any material in their possession or to which they can gain access which may assist a party in exonerating himself or in obtaining a particular position in a given case. The principle extends to material which might undermine the credibility of the case of the local authority;
iv) The right, to the disclosure of documents is not an absolute one. In some cases it may be necessary to withhold certain evidence so as to preserve the rights of another person;
v) Any departure from the principles of open and adversarial justice must be strictly necessary and any detriment to a party must be counterbalanced by appropriate procedural safeguards;
vi) The principle of equality of arms as it impacts on disclosure also applies in civil proceedings between two parties as individuals or between an individual and the State, including in the context of care proceedings (see Buchberger v Austria (2003) 37 EHRR 356 at );
vii) Within the foregoing context, there may be a violation of a right to a fair hearing if a respondent State, without good cause, prevents an applicant from gaining access to documents in its possession which are of assistance to the other party's case (see McMichael v United Kingdom (1995) 20 EHRR 205).
i) The report compiled pursuant to s 3 of the Mental Health Act 1983 in respect of NH;
ii) The psychological report in respect of NH from his treating psychiatrist dated 9 March 2016;
iii) The report and Certificate of Capacity from NH's treating psychiatrist to be filed by 4pm on 18 March 2016;
i) The parties shall not serve the following documents upon MH personally, whether by post, email or otherwise:a) The section 3 report under the Mental Health Act 1983 in respect of NH;b) The psychological report in respect of NH from his treating psychiatrist dated 9 March 2016;c) The report and Certificate of Capacity from NH's treating psychiatrist to be filed by 4pm on 18 March 2016;
ii) Whilst the mother is not legally represented, the parties shall confirm to the mother by email that the said documents in the list set out above have been filed and served in the proceedings;
iii) Upon receipt of such notification the mother shall be entitled to view the said documents by attending by prior appointment the legal offices of the local authority;
iv) The mother may only view the said documents at the legal offices of the local authority and may not take copies of the documents (whether paper, electronic or photographic). In the event that the mother takes, or attempts to take a copy of the documents the court will be notified by the local authority will terminate the session, notify the court and the mother shall be precluded from viewing documents pending further consideration of the issue by the court;
v) In the event that the mother re-instructs lawyers, for as long as those lawyers remain on record the said documents in the list set out above shall be sent to the solicitors representing the mother. Upon service of the documents on her solicitors the mother shall be entitled to view the documents by attending by offices of her solicitors;
vi) Any solicitor or barrister acting for the mother is prohibited from providing to the mother with copies of the said documents specified in this order.
vii) The mother may not take copies of the said documents (whether paper, electronic or photographic) held by her solicitors. In the event that the mother takes, or attempts to take a copy of the documents the court will be notified by those acting for the mother and the mother shall be precluded from viewing documents pending further consideration of the issue by the court;
viii) Any party may apply (on short notice if necessary) for variation or discharge of this order. Any application to extend the terms of this order to cover the updating report from NH's treating psychiatrist due to be filed by 4pm on 21 June 2016, the final evidence and amended care plan of the local authority due to be filed and served by 4pm on 23 June 2016, the statements of the Official Solicitor and/or Munsashe due to be filed and served on 30 June 2016 and the final analysis and recommendations of the Children's Guardian due to be filed and served by 4pm on 5 July 2016 or other documentary evidence shall be made on notice to me.
i) The local authority shall file and serve a report and Certificate of Capacity from NH's treating psychiatrist by 4pm on 18 March 2016;
ii) He having agreed to the appointment, the Official Solicitor shall be appointed as litigation friend for NH subject to funding being confirmed;
iii) In the event that NH regains capacity to conduct proceedings, the local authority shall immediately notify the court and the parties and shall file a report and an updated Certificate of Capacity from NH's treating psychiatrist;
iv) The local authority shall in any event file and serve an updating report from NH's treating psychiatrist by 4pm on 21 June 2016, the costs of that report to be shared equally between the parties (except the mother if she is not legally represented) the costs being in the opinion of the court a necessary and reasonable disbursement on the public funding certificates of the publically funded parties;
v) The local authority shall file and serve its final evidence and an updated care plan by 4pm on 23 June 2016;
vi) The mother, the Official Solicitor (if still appointed) or NH (if he has regained capacity to conduct proceedings) shall file and serve their respective final statements of evidence by 4pm on 30 June 2016;
vii) The Children's Guardian shall file and serve her final analysis and recommendations report by 4pm on 5 July 2016;
viii) The local authority shall file and serve an agree reading list and authorities bundle by 4pm on 7 July 2016;
ix) The local authority shall file and serve an agreed Witness Template by 12noon on 8 July 2016. The following witnesses will give evidence at the final hearing: Marcus Sixta (expert in Canadian law), Jabu Sabeko (social worker), the mother and the Children's Guardian;
x) Permission is given for Mr Sixta to give evidence by way of a video link, to be arranged by the solicitor for the child in co-operation with the Clerk of the Rules. The cost of the video link and the cost of Mr Sixta attending to give evidence shall be shared equally between the parties (except the mother if she is not legally represented), the costs being in the opinion of the court a necessary and reasonable disbursement on the public funding certificates of the publically funded parties;
xi) This matter shall be listed before me for an adjourned final hearing with a time estimate of 5 days commencing on 11 July 2016, the morning of the first day of the hearing to be allocated as judicial reading time;
xii) The mother's application to discharge the interim care order in respect of NH is adjourned to the final hearing on 112 July 2016;
xiii) The remaining applications set out in the mother's C2 applications dated 9 February 2016 and 26 February 2016 are dismissed;
xiv) The local authority shall convene an advocates meeting on 16 June 2016 at 5pm by telephone;
xv) In the event that any party seeks to vary the reporting restriction order made by Cobb J on 17 December 2015 they shall apply on notice to the press given via the Copy Direct service;
xvi) For the avoidance of doubt, and notwithstanding the order made regulating the mother's access to certain documents in this case, a copy of this judgment (and its associated order) and the judgments and orders of the court given on 9 March 2016 and 15 March 2016 shall be provided to the mother. The judgments of the court given on 9 March 2016 and 15 March 2016 shall be transcribed at public expense.
Request for Permission to Appeal