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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2001] EWCA Civ 87

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Neutral Citation Number: [2001] EWCA Civ 87

(Mr Justice Scott Baker)

Royal Courts of Justice
London WC2

Tuesday, 16th January 2001

B e f o r e :


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(Computer Aided Transcript of the Stenograph Notes
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THE APPLICANT appeared in Person.


Crown Copyright ©

  1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against an order of Munby J given on 25th May 2000 when he refused the applicant's renewed application for permission to seek judicial review of the respondent council's conduct of a Child Protection Conference ("the CPC") on 14th January 1999 and of certain decisions made at that conference.
  2. The facts may be outlined shortly in this way. The applicant and his wife have two children, a girl, S, who was born in 1983, and a boy, R, who was born in 1986. The applicant began working abroad for long periods in about 1991. Apparently his marriage broke down in 1995 and at that time he went to live in France with another lady, Nadette Carion. R was referred to Mental Health Services, I think in early 1995. The local authority placed him with foster parents on 30th June 1995. In August of that year S claimed that he, R, had physically and sexually abused her. The applicant's wife issued wardship and divorce proceedings in this jurisdiction in October 1995 and the respondent council was invited to become a party to the proceedings. A care order was made in respect of R in July 1996. S remained a ward of court. An order for assessment was made. On the basis of that assessment the council decided not to apply for a care order in respect of S. She has remained with her mother.
  3. A major feature of this litigation and the applicant's attitude in relation to it is his deep concerns, as he would express them, as to the condition and behaviour of his daughter S. He made an application for contact with the children. Certain orders were made by Holman J on 29th October 1997. The applicant also made various other applications to the court, mainly relating to contact and relating to complaints that he wished to make against the professionals who had been involved. There were other applications by the mother, the council and also the Official Solicitor. At length Hale J (as she then was) dealt with all these matters together and gave a most compendious and detailed judgment on 14th June 1999, which I have read and re-read. She made orders as follows. First, she granted an injunction against the applicant forbidding him from disclosing to the children any court document in connection with these proceedings or to disclose the details of disputes between them. Then he was prohibited under section 91(14) from making any application to the court without the court's permission. Further, there was an order that his present partner, the French lady, should not be permitted to act as his McKenzie friend in the proceedings. There were orders that his contact with his son, R, should be limited to one occasion during each of the school holidays, to be of no less than three hours in duration and to be supervised by the London Borough of Harrow. There was to be other indirect contact with him. His contact with S was stopped and an earlier order of 20th March discharged. He was refused permission to see any further report from Mrs Fishman and the application that he made about that was dismissed.
  4. On 7th January 1999, thus before Hale J's order, the council had written to the applicant informing him that a Child Protection Conference had been called to discuss concerns that S might be suffering from emotional harm. The applicant desired his partner to attend but the council informed him that it took the view that her attendance would not be appropriate. The CPC took place on 14th January 1999. The attendance or non-attendance of the applicant's partner at the CPC was one of the matters which Hale J later had to consider. Her decisions were sought to be appealed to the Court of Appeal but Beldam and Ward LJJ dismissed the application for permission in December 1999.
  5. Going back to the CPC its conclusions may be summarised in this way: (1) S was to be placed on the child protection register in the emotional abuse category because of the applicant's behaviour in conducting legal proceedings and the disclosure of documents to S in breach of an undertaking. (2) The CPC concurred with the results of investigations which had been made into alleged sexual abuse of S. They were to the effect that it was not possible to conclude that there had been sexual abuse. The decision was made that there should be no further investigation into that matter.
  6. In due course the applicant lodged his application for permission to seek judicial review of the CPC. He did so on 6th April 1999. That was of course some two months before the date of Hale J's judgment. His grounds for judicial review were expressed in general terms:
  7. "On January 14th 1999, Harrow Social Services perpetrated several ambiguous 'errors' and irregularities before, during and after the child protection conference of my daughter S (15). [That is a reference to her then age.]This turned the conference into a very unfair trial, in which S and her brother R, as well as myself became victims.

    We are thereby entitled to call upon the Article of the Human Rights Convention in our defence. The conference violated Articles 6.1, 6.2, 6.3b, 6.3c, 6.3d and 14."

  8. It is well known that Article 6 of the Convention refers to a party's rights to a proper trial before an impartial and independent tribunal in relation to the determination of his or her civil rights, and Article 14 is the Article that prohibits discrimination in the administration of the Convention rights.
  9. Munby J refused judicial review permission on 25th May 2000. He did so in court after argument, the applicant having acted in person and the local authority having appeared by counsel. Munby J's judgment is full and careful, running to something over 90 paragraphs. In the course of that judgment he referred to an earlier hearing before Scott Baker J on 22nd October 1999 who had adjourned the applicant's application for judicial review permission. I should read paragraphs 51 to 56 of Munby J's judgment:
  10. "51. What emerged from the hearing before Scott Baker J was that Dr H's real complaint was not the fact that S had been registered as a result of the Child Protection Conference, but something quite different; that is to say, that both S and R had been, as Dr H would have it, denied the therapy and treatment that, as he saw it, they needed. This is brought out clearly and repeatedly in passages from the transcript of the hearing before Scott Baker J, which it is convenient that I should read: 'DR H: But unfortunately this is actually not so, if I might say, in that the case conference is denying my children the therapy and treatment that they need. MR JUSTICE SCOTT BAKER:So it is your children you are really concerned about?DR H: Yes. MR JUSTICE SCOTT BAKER: That you deal with through the Family Division and through applications to the Family Division judge. DR H: There is also the fact that I have been summarily judged as being the guilty one of the emotional abuse, whereas in fact the material in the case conference, in the social services own written record, is that Mrs JH was also guilty of emotional abuse. MR JUSTICE SCOTT BAKER: That is something you resolve procedure against the local authority [I interpolate that the text is corrupt there], if you have got a complaint with regard to the case conference, or you can raise it with the family judge in the course of family proceedings..'

    52. A little later on, the transcript records Dr H saying:

    'And, further, the results of this has been that my children haven't been helped in any way for their sexual abuse, and the local authority, the child protection conference, had manifestly not considered the material.'

    53. A little later:

    'MR JUSTICE SCOTT BAKER: Your children's names, are they on a child abuse register, are they?DR H: My daughter is, yes. MR JUSTICE SCOTT BAKER:But that is not what you are complaining about here, is it? DR H:No. It's primarily the fact that the sexual abuse of both children, which has been very systematically covered up now for five years - more, six - nothing has actually been done about this. And the local authority, despite their statutory obligation to consider all the material, have done nothing of the sort. And further it was not considered in the CPC... This is an extremely serious matter for my children.'

    54. Finally, very shortly before Scott Baker J gave judgment.

    55. Dr H, in the course of submissions to him said:

    'How do I get these people to actually help my children with their sexual abuse. Everyone has known about this for five years, and they hide it up, and Mr B just says 'throw it in the complaints'. This is destroying the life of my children.'

    56. To that I should add this, as Hale J said in her judgment on 14th June 1999:

    'The father wanted her [I interpolate S] put on the Child Protection Register at the Case Conference in January of this year, when she saw that as a threat and definitely did not want it to happen. They had a row in the car park and in a restaurant in Pinner as a result.'"

  11. The applicant lodged his application to appeal to this court supported by a lengthy skeleton argument and supporting material which I have considered. On 27th November 2000 I refused his application for permission to appeal to this court on the papers. I said:
  12. "This application is entirely hopeless. I would endorse all of the reasoning in the judgment of Munby J, in particular paragraphs 58 onwards where he sets out the reasons for refusing the renewed application to seek judicial review. Quite apart from anything else, the proposed assault on the Child Protection Conference of 14/1/99 would be water under the bridge for the reasons explained by the judge at para 81. I would also emphasise what is said at para 82."

  13. I do not propose to read all of the passages in Munby J's judgment to which I there made short reference. I will take paragraphs 60, 61, 75, 81 and 82:
  14. "60. Dr H has persisted in making what, in my judgment, are manifestly groundless and, indeed, absurd allegations against the London Borough of Harrow, and indeed as we have seen against numerous other people, of fraud, forgery and perjury. There is, in my judgment, simply no basis, no even arguable basis for any of those allegations.

    61. Secondly and as Johnson J, if I may respectfully say so, correctly observed in dismissing this application on paper, Article 6 of the European Convention of Human Rights has no application in the circumstances of the present case. That I emphasise is not because the Human Rights Act 1998 has not yet come into force, it is because a Child Protection Conference is simply not a 'tribunal' within the meaning of and for the purposes of Article 6, and because a Child Protection Conference is not concerned with the 'determination of civil rights' which alone brings into operation Article 6 of the Convention.

    74. The London Borough of Harrow accepts that the Complaints Procedure under section 26(3) of the Children Act 1989 is not available, insofar as the complaints made by Dr H are directed against the Child Protection Conference as a multi-agency body.

    75. However, the Harrow Area Child Protection Committee which has overall responsibility for Child Protection Conferences convened by the London Borough of Harrow has a complaints procedure entitled the 'ACPC Complaints Procedure' which is dated 12th January 1995. That is a complaints procedure of the sort that local authorities are recommended to have by paragraph 5.72 of the Department of Health's document, 'Working Together to Safeguard Children'.

    81. Fifthly, in my judgment, there is no useful purpose in 'declaring the CPC invalid' which is the relief Dr H seeks. The fact is, it is water under the bridge and it has in large measure been overtaken, firstly by the outcome of the hearing before Hale J on 16th June 1999 and, secondly, by the fact that S is now over the age of 16 being, as I have said, 16 years 8 months old. [I interpolate that Dr Haley this morning tells me that S is now over 17.] Such relief would not in fact address Dr H's real complaint or do anything to achieve his real objectives, being objectives identified by him to Scott Baker J and to which I have already made reference.

    82. Sixthly, in large measure this is, in my judgment, an attempt to reopen matters that were canvassed before Hale J and in the Court of Appeal. Dr H had a full opportunity to comment on the Child Protection Conference to Hale J and to the Court of Appeal. Whether or not he availed himself of that opportunity, it is not right now to go behind Hale J's findings on 14th June 1999, upheld as they were by the Court of Appeal, as to the inutility of any further judicial exploration of Dr H's allegations in relation to sexual abuse."

  15. Since I refused permission on 27th November 2000 the applicant has put in voluminous further material. It includes a witness statement of 3rd December 2000 which of course I have read. There he contends, as he has contended before, that the Harrow Area Child Protection Committee is not a proper or adequate alternative remedy available to him and reasons are given. He has addressed me in person this morning with great courtesy. A principal point upon which he seeks to insist is the inadequacy, he would say bluntly the illegality of the Harrow Area Child Protection Committee. That argument is put on the basis that it is not an independent and impartial tribunal for the purposes of Article 6 of the European Convention. He has shown me a report in The Times of a decision of Scott Baker J, R v Cornwall County Council, ex parte L, judgment published November 25th 1999, in which the judge, sitting in the Crown Office List, held to be unlawful a policy entertained by the local authority in that case to impose a blanket ban on the presence of solicitors at child protection conferences. That is not authority for the very different proposition that a CPC is a body by law amenable to the disciplines of Article 6.
  16. Dr Haley has also put before me certain other fresh material today. That includes a manuscript note made by him of a recent telephone conversation with his daughter S. It includes also a typed note which he has prepared for today's hearing, running to some 3 pages and 6 paragraphs, to some extent reiterating arguments which he has adduced before but emphasizing the grave condition relating to the use of drugs, indulgence in sex and so forth, into which his daughter is said to have fallen. I have also read a letter written by the Lord Chancellor's Department responding to certain complaints that he made about an ex-member of the Bar, now a circuit judge. I do not think that takes the matter further. There is also a letter he wrote to the Official Solicitor about S dated 1st January 2001. One of the features of his typed note prepared for this hearing is its reference to a report prepared by a PC Ruddock, which he says was available to the local authority at the time of the case conference. That report tends to verify the dysfunctional state into which S has fallen. He says that it was the duty of the council to make that document available to the CPC.
  17. I should make it clear at once that even if I had any substantial doubts as to the propriety or suitability of the Area Child Protection Committee and its role, that would not make any difference to the outcome of this application. The first question is whether it is shown that the conduct of the CPC is arguably flawed by any legal error. Munby J, who went through the matter with considerable care, held that it was not. I have to say that I have seen nothing to persuade me to take a different view. As regards the condition of S, if it is as grave as Dr. Haley indicates, then one is concerned and sympathetic. But it is not for me to arrive at conclusions about the facts in relation to that. What Dr. Haley would have to show is that the CPC failed to do its duty, or the London Borough of Harrow failed to do its duty in relation to the CPC, by refusing or declining or failing properly to investigate the matter that it was asked to investigate. Dr Haley feels very bitterly that that is exactly what happened here, but on all the material that I have seen there is not a valid judicial review complaint in relation to that.
  18. There are passages in Hale J's lengthy judgment in which he describes the applicant's obsessive personality. I do not find it necessary to read them out. I have read them and had regard to them. Judicial review is not the way forward for Dr Haley and his concerns over his children. I will refuse this application.
  19. There is one thing, however, that I should add. I was supplied with a skeleton argument from the London Borough of Harrow which I read, it being placed in my papers. Dr. Haley, the applicant, told me this morning that that had not been supplied to him. If that is right that seems to me to be entirely lamentable. I have directed that the court should communicate with the London Borough of Harrow seeking an explanation of the matter. I make it plain that, in reaching the decision that I have today, I have disregarded everything in that document.
  20. Order: Application refused.

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