To: bluebird@ecologyfund.net
Subject: FW: case ref 4720/08 ECHR ref ref 56315/07 Fwd: B4/2005/1884, J (A Child), 13-July
Date: Sun, 29 May 2011 20:22:05 +0100
From: chelsea.[snip]@hotmail.co.uk
To: stacey.raven@sra.org.uk
Subject: FW: case ref 4720/08 ECHR ref ref 56315/07 Fwd: B4/2005/1884, J (A Child), 13-July
Date: Sun, 29 May 2011 20:20:56 +0100
14 days
thank you
From: chelsea.f[]t@hotmail.co.uk
To: contactcentre@sra.org.uk
Subject: FW: case ref 4720/08 ECHR ref ref 56315/07 Fwd: B4/2005/1884, J (A Child), 13-July
Date: Sun, 29 May 2011 20:19:11 +0100
FAO Stacey / head of dept- you haev not given me the 14 days to repsond with evidnce - here is some more (attched) re Munby J etc - sincerely, EC. Lucy
Date: Sun, 29 May 2011 20:13:27 +0100
Subject: Fwd: case ref 4720/08 ECHR ref ref 56315/07 Fwd: B4/2005/1884, J (A Child), 13-July
From: l[]
To: chelsea.[]
st@hotmail.co.uk; b[]d.net
---------- Forwarded message ----------
From: E.C.Lucy Robillard
Date: Fri, Jul 25, 2008 at 11:40
Subject: case ref 4720/08 ECHR ref ref 56315/07 Fwd: B4/2005/1884, J (A Child), 13-July
To: "webmaster@echr.coe.int"
Cc: Advice
ECHR, rbkc
via email
25th July 2008
Dear Madam/Sir please file below and attached - I am aware of deadline of 29th July
Yours sincerely
E.C.Lucy
snip
---------- Forwarded message ----------
From: E.C.Lucy Robillard
Date: 2007/7/13
Subject: Re: B4/2005/1884, J (A Child), 13-July
To: "Angus, Clarissa"
Cc: gcarr@14graysinnsquare.co.uk, LAvadis@aol.com, clerks@4pb.com, platt@1gc.com, anne.lehane@rbkc.gov.uk, mail@avadis.co.uk
TO THE COURT 13.24 PM 13TH DAY JULY 2007
The recent LA LAC reviews and letters from social services reveal Mr.Jones is not abiding by care-law, and all parties want a discharge of the order, depending on how they feel.
I had access to one and half days the care proceedings due to the video conferencing breaking down on day 2. Other than a brief summing up of events by my the brief Malcolm Chisolm, at 6pm at the end of each day, I had no access to the court. I think that violates article 6 of the echr. I was not ex-parte by permission.
The fact that there were mentioned and quoted in the last judgement '8 unchallenged statements' proves that I was not able to challenge these due to not being able to be there in any way physically. I believe this is a violation of article 6 and article 14. I was not able to instruct the solicitor properly, although she called me on one or two occasions to take instruction to pass to Mr.Chisholm, I can't remember for what precisely.
I have been unable to accept views that do not take facts such as 'no care plans. violation of disability laws' into account that leave me to look completely disagreeable when in effect this local authority took my child permanently broke up our family life and though contact is still meaningful, it doesn't constitute a family life as was invited by DJ Moorehouse, but ignored by the local authority.
In my opinion this is what left me naturally disagreeable.
The judge mentions 'on bare assertions stating I am write and everyone is wrong' i was depending on the fact all those professionals had hard evidence to back up that which I was saying, but I didn't realise it wasn't their job to upohold the law, I now realise it is simply about winning a case, not about the child or what is right- an example is the lack of care-plan which Ibelieve
led to the situation I found myself in June 2001 and is, among other things, neglect of duty of care by the LA as a fact, not an arguable fancy. It's all there in black and white, it is not my place to order such documents for filing etc when told to 'keep things to half a page or the judge wont read it', as told by previous solicitors.
"The simple, if sad, fact of the matter, I am satisfied, is that EL is in reality in no better position today to care for J than she was in February 2002. It is, in my judgment, unthinkable, in the light of the full history of this matter, in the light of the history of events immediately preceding the commencement of the statutory process of protection in June 2001, in the light of the history set out in her judgment and indeed in the light of events since then, that J can be returned either now or within the foreseeable future to the care of his mother."
Yet as revealed please refer again tot eh LSC document attached (3)
25. Article 6 is engaged, but, with the possible exception of the order under CA 1989, section 91(14) not infringed. EL had a lengthy hearing before the District Judge, in which she was represented by experienced leading counsel. The District Judge listened to all the evidence. Before Munby J, EL was not represented, but self-evidently had an abundant opportunity to state her case. The fact that she could not physically attend the hearing does not mean that Article 6 was breached. As in the hearing before me, she was able to participate throughout by telephone link.; However that was NOT the case at the original hearing. The video conferencing broke down on the second day, which was why counsel and brief Malcolm Chisholm rang me at the end of each day to tell me what had been going on in the court. but was not attempted to be fixed, the reception was broken and cound gone the machines were left in my home however until after the hearing
1. Unfair to expect me to 'change' to the point of preventing what occured on June 10th 2001 - when my son was removed *at my request* in an emergency situation - I remain that I put my son into care voluntarily in an emergency- it was I who responsibly called for help in an emergency- it was social services whom didn't attend-leaving the police child protection untit as a last resort for me to call due to a non-response by the emergency social services. I also noted Munby staes 'Jamie was removed with parrallel planning' precisely what planning and how it was brought about has remained a mystery - I beleve that parrallell planning is tantamount to vilations of HR's especially article 6 and 8 - therefore there was a conspirancy here - this due to there being no care-plan for myself as a carer and disabled of for my son as a disabled child which was then illegal and neglect of duty of care on the part of the council. Despite having requested a care-plan and having been assessed by Lettie Blytje and Anne Marie- Wilson whom knew I was in considerable back pain and unable to do housework in the April prior to my sons' removal in June (subsequently this led to OT assessments and physiotherapy etc,and a diagnosis of lymphedema and cushings disease. These are physical illnesses WHICH THE LOCAL AUTHORITY WERE AWARE BUT NO CARE PLANS.
2. I assert it is Unfair of Munby to say I hadn't even begun to appeal and I had a second appeal (?) as far as I understood it, and I am not acedemic by any stretch, I left school at 13- I understood I had appealed DJ Moorehouse *on March 16th 2002* where she was to hear a contact hearing but I had written to her within 14 days of the final hearing and she read the letter out in open court to all the parties that I wished to appeal her judgement, therefore she could not hear the contact hearing as was planned. This is reflected in the LSC document attached where she had invited me to substantial overnight contact despite the care order being made. I have put this before to the courts and believe it is unfair that only partila evidence and statements I have made appear to have been noted as I believe I have made vital points such as no care-pan at the time of my sons' removal, where I would trust the court would take this breach of law very seriously as it's my belief had we the correct help and support my son would not had been kept away[1]
3.The LA are unilaterally altering the law by allowing Jamies father not to abide by the law please see care plan attached [2]
4. I have attempted to engage in therapy but been refused by the LHA (please see letter to local psychologist) the reasons 'to change' from what into what are not clear and I
believe are a breach of my freedom of thought and may violate article - having said that, the social worker claims my home was a bit messy at her last visit ([4] but no danger to my son now he is older.
Sadly I do continue to disagree with the social worker, but fail to see this as a reason for keeping my son from overnght contact with me or from what I elieve is a violation of aticle 8 for both my son and I. As Judge Moorehouse stated 'LSC doc reasons why) I won part of a tribunal over a year ago, to get Jamei a augmentive commnication device
- the LEA abnd social services still have only just, after my writing requesting a reassessment of Jamie, managed to get a quoet - as the social worker Ms Endlein said 'it was a very expensive article' as a reason for not having acquired the machine, for my mute, nappy-waering almost 15 year old.
Regarding my changing and 'moving forward' I am now a non smoker, I do not drink, I am student of nutrition and have studied social sciences.
Also, sadly the local authority are complaining (at the respite care home)
that my son is 'clutching at his guts'
the school also mention this. My son was diagnosed with inflammatory bowl diseae in 2000. My son is in obvious discomfort but Jamies father and local authority refuse to allow Jamie his annual medicals as required by law, Jamie has not seen a doctor or his gastroenterology department for almost three years. Last year Jamie was seen by a nurse employed by the social services, but not by a GP or his gastroenerology dept (letter from gastro) .
Jamie was visited at his fathers' home by Mr.Avadis, I do not have faith in Mr.Avadis' judgement, having requested Mr.Avadis be removed from my case due to his bullying of me outside of court, on a form c2 that I filed with the court a long time ago along with letters from Mr.Avadis that were not professional due to rudeness and demands. I didn't proceed with a complaint as I am of the belief there's been little factual justice in our case and this leaves me with the belief justice cannot be acheived, this due to my ignorance of the law and this ultimately,has led to my child has being neglected by the local authority and we have lost out on family the despite DJ Moorehouse clear wishes (lsc form) and I resent that deeply, it is that resentment and what I perceive is lack of common sense and fair legal proceedings that makes me disagreeable. Please see letter to local psychologist.
I also noted that it i has always been 'normal' for me to receive bundles from other parties at 6PM the night before hearings. As I act as LIP I find this extremely unfair, and despite having requested their bundles weeks ago due to me being a LIP I haven't received their evidence as I write. I believe this is and has been a violation of article 6 of the ECHR. I wish to apply to the House of Lords and ask for assistnace in how to do this or have a written judgement explaining why this will not succeed before I put the case to the ECHR.
. Whilst there is power to make an indefinite order the order unlike section 91(14) orders which are described as draconian – the indefinite section 91(14) order is described as only being made where
a. The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order and more importantly
b. orders made without limit of time, and orders expressed to last until a child is 16 should be the exception rather than the rule, and where they are made, the reasons for making them should be fully and carefully set out.
c. the imposition of conditions may in fact bring about the absolute prohibition on further applications which the sub-section itself does not permit. Thus, if a condition were to be imposed which is incapable of being fulfilled, the litigant would, effectively, barred from making an application for permission to apply .
I am sure that the definitions of being the exception rather than the rule and with the reasons fully and carefully set out can be attacked as well as the use of discretion used in making such order and also the proportionate alternative measures that could have been taken but were not.
I have given some quotes below that are of relevance to the manner of and use of discretion in Family Proceedings and various quotes from ECtHR cases regarding the positive obligations under article 8 HRA 1998.
I sincerely believe that an unlimited bar is wrong since it will only feed alienation from the absent parent and set-up an impossible status quo to overturn, since for a child one day is a long time, a week interminable and longer is not in children's mindsets depending on their stage of development. Certainly not until 14 or so do children have a proper grasp of time.
, S (Children) & E (A Child) [2006] EWCA Civ 1190
73. For the reasons given by Mr. Hepher set out in paragraphs 63 to 65 of this judgment, we are of the clear view that it is not permissible to attach conditions to a section 91(14) order beyond stating how long it is to last, and identifying the type of relief to which it applies . This conclusion seems to us to flow from the wording of section 91(14) itself, and from the fact that the power to impose conditions expressly given by section 11(7) of the Act is restricted to section 8 orders.
85. In our judgement, however, orders made without limit of time, and orders expressed to last until a child is 16 should be the exception rather than the rule, and where they are made, the reasons for making them should be fully and carefully set out.
2. The use of discretion in making such order should be a proper use of the discretion.
3 LJ Wall stated in paragraph 13 of his judgement in case number ////// on April 3 rd 2007 that 'Once again my function here is not to decide whether or not those allegations are true. My function is to decide whether there was material upon which the judge could properly make those findings and I have to say that there plainly was.''
Lord Justice Wall stated in Paragraph five of his judgement that ' A further point I need to make before going into the facts is again perhaps not always understood by litigants who come to this court, however intelligent they are and however well they argue their case (and indeed this case has been very well argued by Miss W). All this court can do is to look at what the judge did and to decide whether, in so doing, the judge made any error of law or whether or not the discretion which the judge exercised n the particular circumstances of the case was appropriately exercised. I prefer to put that in these terms: was there material upon which the judge could properly make the findings that she made and exercise the discretion that she exercised? If the answer to that question is yes, then that is the end of the matter because whether or not this court -- had it been sitting on its own -- would have formed a different view is neither here nor there. This court is not a judge of fact; it is for the judge in the court below to make assessments of credibility, to make findings of fact on the evidence and to examine the case carefully and to reach a conclusion. It is only if the exercise of discretion by the judge in the court below is so flawed that this court can say it is plainly wrong that this court is entitled to interfere, otherwise it simply is not.
That is always a difficulty for applicants in this court because inevitably where a case has gone over a series of days, as this case indeed did, where the judge has had the opportunity to read the evidence and to hear the parties and to assess them in the witness box, it is inevitable that a judge makes findings of fact and assessments of credibility, and as I say whether or not I would have done the same is for this purpose neither here nor there.
Re A (Application for Leave) [1998] 1 FLR 1 (Re A) at 4D-E, namely; "does the application demonstrate that there is any need for renewed judicial investigation?"
S (Children) & E (A Child) [2006] EWCA Civ 1190
52. Mr Hepher began by reminding us that in Re N (Section 91(14) Order) [1996] 1 FLR 356 (Re N) Hale J (as she then was) had stressed the need for any application for permission to apply to be made on notice to the person affected by it. He identified in particular the passage at [1996] 1 FLR 356 at 359, in which she had described the purpose of the order and the permission stage in these terms:
One of the difficulties with making such an order, however, is that unless the situation as to the precise contact arrangements is spelled out, there may indeed be a necessity to come back to the court. But the object of making such an order is to prevent unnecessary and disruptive applications to the court. It is, therefore, most undesirable in those circumstances that applications for leave pursuant to such a provision, particularly in a case such as this, are made ex parte. It would be much more satisfactory if the applications for leave had to be heard inter partes so that it could be ascertained whether there was a genuine need to invoke the court's assistance in the problem that had arisen".
53. Mr Hepher next referred us to Re A, in which this court was concerned with the test to be applied when the court is considering an application for permission to apply for a section 8 application subsequent to the imposition of a section 91(14) bar. Thorpe LJ identified the test at [1998] 1 FLR 1 at 4:
''It seems to me undesirable to over-complicate the judicial task where a bar has been imposed and where the person restrained seeks leave to move. In that instance, I would favour the simplest of tests. Does this application demonstrate that there is any need for renewed judicial investigation? If yes, then leave should be granted. All that the courts commits itself to thereby is to survey the material presented in the form of statements supporting the form C1 application and probably the contents of a report from the court welfare office. The discretion that a court holds under the Children Act in relation to the conduct of any application relating to a child is so wide as to be almost unfettered. In appropriate cases the application may be determined at a directions appointment if the content of the statements and the court welfare officer's report indicate that the application should go no further. In other words, the grant of leave to apply is not the grant of a right to a full trial."
54. Mr. Hepher also reminded us to the guidelines set out by Butler-Sloss LJ (as she then was) in the leading case of Re P (A Minor) (Residence Order: Child's Welfare) [2000] Fam 15 (Re P). Of the familiar eleven points there identified by way of guidelines, we identify the ninth and the tenth as being of particular relevance to the issues raised in these applications, namely:
(9) A restriction may be imposed with or without limitation of time.
(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.
73. For the reasons given by Mr. Hepher set out in paragraphs 63 to 65 of this judgment, we are of the clear view that it is not permissible to attach conditions to a section 91(14) order beyond stating how long it is to last, and identifying the type of relief to which it applies. This conclusion seems to us to flow from the wording of section 91(14) itself, and from the fact that the power to impose conditions expressly given by section 11(7) of the Act is restricted to section 8 orders.
74. There are, however, other considerations which both lend strong support to the same conclusion, and also impinge on the other questions which we have posed. The first, of course, is that whilst section 91(14) does not impose an absolute prohibition on applications to the court, it is, nonetheless a fetter imposed by Parliament on parties' rights of access to the court in relation to their children. It plainly creates a judicial discretion as to the circumstances in which in falls to be used, but in our judgment must otherwise be applied as enacted, and without the accretion of any judicial interpretative gloss. Had Parliament intended section 91(14) to create the power to impose conditions when making an order under it, Parliament, we think, would have said so.
75. As importantly, perhaps, the imposition of conditions may in fact bring about the absolute prohibition on further applications which the sub-section itself does not permit. Thus, if a condition were to be imposed which is incapable of being fulfilled, the litigant would, effectively, barred from making an application for permission to apply .
84. It is clear from Re P that an section 91(14) order can properly be made without limit of time or for the period over which the court, absent exceptional circumstances, has jurisdiction to make orders in relation to children under section 8 of the Act. This is normally the age of 16 – see section 9(6) although there is special provision for residence order made in favour or third parties: see section 12(5) of the Act, neither of which we need to set out.
85. In our judgement, however, orders made without limit of time, and orders expressed to last until a child is 16 should be the exception rather than the rule, and where they are made, the reasons for making them should be fully and carefully set out.
86. We take this view for a number of reasons. We do not seek in any way to say that there are not cases in which such orders are necessary to further the welfare of the children concerned. This court has as much experience as any of obsessional parents who continue to damage their children by relentless litigation in circumstances where the children's welfare is wholly subordinate to the continuing power battle between them, or where one parent behaves in a manner which makes future contact between him or her and the children impossible to contemplate as being in the children's interests. Such cases are, however, the tiny minority, and in the majority the function of the court, in our judgment, is not to give up, or to give the appearance that it is permanently shutting the door of the court in the litigant's face. This is, of course, particularly the case where contact should be taking place, but is being frustrated by the behaviour of the resident parent, as, for example, in Re B.
In the case of Margareta and Roger Andersson v. Sweden 20 January 1992,
72. The mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life, and the
natural family relationship is not terminated by reason of the fact
that the child is taken into public care.
75. A law which confers a discretion is not in itself
inconsistent with this requirement, provided that the scope of the
discretion and the manner of its exercise are indicated with
sufficient clarity, having regard to the legitimate aim in question,
to give the individual adequate protection against arbitrary
interference .
GÖRGÜLÜ v. GERMANY JUDGMENT ECtHR 2004
43. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development (Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169, ECHR 2000-VIII, P., C. and S. v. the United Kingdom, no. 56547/00, § 117, ECHR 2002-VI).
45 . The Court recalls its case-law, which postulates that where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed (see Keegan cited above p. 19, § 50, and Kroon and Others v. the Netherlands, judgment of 20 September 1994, Series A no. 297-C, p. 56, § 32). Article 8 of the Convention thus imposes on every State the obligation to aim at reuniting a natural parent with his or her child (see K. and T. v. Finland [GC], no. 25702/94, § 178, ECHR 2001- VII, Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, p. 1008, § 78, and Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, p. 36, § 81). In this context, the Court also notes that effective respect for family life requires that future relations between parent and child not be determined by the mere passage of time (see, mutatis mutandis, Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003, and W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, p. 29, § 65).
46. The Court recalls in this respect that the possibilities of reunification will be progressively diminished and eventually destroyed if the biological father and the child are not allowed to meet each other at all, or only so rarely that no natural bonding between them is likely to occur ( K. and T. v. Finland, cited above, § 179).
47 . In the light of the above, the Court finds that there was a violation of Article 8 of the Convention.
ii. Access
48 . ….. The Court of Appeal's decision rendered any form of family reunion and the establishment of any kind of further family life impossible. In this context, the Court recalls that it is in a child's interest for its family ties to be maintained, as severing such ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX, Johansen, cited above, pp. 1008-1009, § 78, and P.,C. and S. v. United Kingdom, cited above, § 118).
There is no evidence of such exceptional circumstances in the present case.
iii. Decision-making process
52. The Court recalls also that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64; Buscemi v. Italy, no. 29569/95, § 58, ECHR 1999-VI, and Elsholz, cited above, § 52).
The guidelines on section 91(14 ordere come from Re P (A Minor) (Residence Order: Child's Welfare)[2000] Fam 15, sub nom Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 set out extensive guidelines for determining section 91(14) orders. These have not been objectively set out. The guidelines are outlined as follows:
In that case although no real criticism could be made of the parents' conduct of proceedings, the order was required and the court offered guidance (pp 592-3/310-1);
1. Section 91(14) should be read as subject to Section 1.
2. The power under Section 91(14) is an exercise of discretion.
3. It is a significant intrusion on legal rights.
4. The order should therefore be the exception and not the rule.
5. It is a useful weapon of last resort in cases of repeated and unreasonable applications.
6. If the child's welfare demands it, however, it is not confined to such cases.
It may be used if two conditions are satisfied: first, the case goes beyond the usual problems of setting-in time and hostility; and secondly in the absence of an order
1. if the child or primary carers will be subject to 'unacceptable strain'.
2. The court may act of its own motion provided parties have been given the opportunity to be heard.
3. The order may be with or without restriction of time.
4. The court should specify the type of application which is to be restrained as well as the duration of the order.
5. Only most exceptionally should the order be made ex parte.
In Re C (Prohibition on Further Applications) [2002] EWCA Civ 292 ; [2002] 1 FLR 1136, the President, Dame Elizabeth Butler-Sloss, made the point (at her para [15]) that it was wrong in principle, except in exceptional cases, to place a litigant in person in the position, at short notice, of confronting an order that bars him from dealing with any aspect of the case relating to his children, particularly relating to contact.
In Re G (Contempt: Committal) [2003] EWCA Civ 489 [2003] 2 FLR 58 the President in starker terms provided, at para 36, such an order should never be imposed without giving all parties a proper opportunity to make submissions. She described the imposition of a section 91(14) order in respect of contact for a 5 year term for a child under 3 as being tantamount permanently to closing the door on direct contact. At para [36] of her judgment she provided: "It is a discretionary power to be used in the best interest of the child concerned. It is a draconian order to be used with great care and sparingly. Its use must be proportionate to the harm it is intended to avoid."
Yet in this case not only was Applicant not advised of the Application but no Application or cogent supporting evidence was supplied and Applicant was denied the right to argument on paper or in oral hearing.
In Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18; [2004] 1 FLR 1279 the then President set aside a one year section 91(14) order on the basis that whilst recognizing that the trial judge had simply intended for all to have a breathing space, the order was of a draconian nature which should be used with great care and sparingly, and in such circumstances where a breathing space is needed, as per guideline 7 in Re P (A Minor) (Residence Order: Child's Welfare) supra:
"….. the court will need to be satisfied first, that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly, that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain."
The Court of Appeal considered the leave application stage following grant of a section 91(14) order in the case of Re M (A Child) [2005] EWCA Civ 408 (LTL 25/2/2005 EXTEMPORE (unreported elsewhere). In giving judgment LJ Scott Baker summarised the purpose of section 91(14) in terms at para 4. of the judgment "to provide a gateway which must be passed through before the ordinary procedures of the court are put into effect. This is in order to save the child, in particular, from unnecessary applications being made in respect of him or her, application which may well not be in his interests". He went on to allow the appeal formulating the general rule at para 17 of his judgment that "obligations for leave under sections 91(14) should be made on proper notice to the other side with due opportunity for the other side to be heard".
Decisions in the European Court of Human Rights give protection to the rights of the family, parents and children for the material to be properly tested and any restriction on the right of access to Court must be on cogent and proper evidence.
Applicant refers the Court to the case of Nideröst-Huber v. Switzerland (1),27 January 1997,
24.However, the concept of fair trial also implies in principle
the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see the Lobo Machado v. Portugal and Vermeulen v. Belgium judgments of 20 February 1996, Reports 1996-I, p. 206, para. 31, and p. 234, para. 33, respectively).
In the case of CASE OF BOTTA v. ITALY
Para 32. Private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 33, § 29).
33. In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23, and the Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B, p. 61, § 38).
Re B Children's Act Proceedings issue estoppel [1997] 1 FLR 285 beginning Letter D page 295. Hale J said It seems to me that the weight of Court of Appeal Authority is against the existence of any strict rule of issue estoppel, which is binding upon any of the parties in Children's cases. At the same time the Court undoubtedly has a discretion as to how the enquiry before it is to be conducted. This means that it may on occasions decline to allow a full hearing of the evidence on certain matters, even if the strict rules of issue estoppel would not cover them.
Although some might consider this approach to be a typical example of the lack of rigour which some critics discern in the family jurisdiction, it seem to me to encompass both he flexibility, which is essential in children's cases, and the increased control exercised by the Court, rather than the parties, which is already a feature of the Court's more inquisitorial role in Children's cases and beginning to gain ground in other litigation, as shown in the Woolf report on access to justice.
Hence, if the applicant in one set of proceedings wishes to rely on findings made in pervious proceedings in order to prove a case, the Court will have to consider how this should be done. Frequently, although such fndings are not necessarily accepted by the party concerned, taht party will accept a challenge to them in later proceedings will be futile. The Court may then simplky rely upon the findings made earlier. Sometimes the party concerned or some other party will wish to challenge them. In such an event, it seems to me, the Court may wish to be made aware, not only of the findings themselves , but also the evidence upon which they were based. It is then for the Court to decide whether or not to allow any issue of fact to be tried afresh.
There are no doubt many factors to be borne in mind, among them the following:
The Court will wish to balance the underlying considerations of public policy:
that there is a public interest in an end to litigation. The resources of the courts and everyone involved in these proceedings are already severely stretched, and should not be employed in deciding the same matter twice, unless there is good reason to do so.
That any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child: but
that the welfare of any child is unlikely to be served by relying upon determination of fact, which turn out to be erroneous; and
the court's discretion, like the rules of issue estoppel...must be applied, as to work justice and not injustice.
The Court may well wish to consider the importance of the previous findings in the context of the current proceedings. If they are so important that they are bound to affect the outcome one way or the other, the Court may be willing to consider a re-hearing than if they are of lesser or peripheral significance.
Above all the Court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By that I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be re-litigiated on that basis alone. the Court will want to know:
(a) whether the previous findings were the result of a full hearing, in which the person concerned took part and the evidence was tested in the usual way;
(b) If so, whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time and why there is no appeal at the time; and
(c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings.
SIGNED e.c.Lucy via email to all parties despite being denied the legal right to file today
DATE 13/07/07
On 13/07/07, Angus, Clarissa < clarissa.angus@hmcourts-service.gsi.gov.uk> wrote:
Good morning all.
Further to Ms Lucy's request for an adjournment, and receiving all of the comments from the Respondents in the above matter, I am writing to inform you that Lord Justice Wilson has directed as follows:
"Please tell all parties ASAP that I hereby refuse Ms Lucy's application for an adjournment of the hearing on 17 th July 2007. I hereby prohibit the filing and service of any further skeleton arguments by any party after this direction has come to their attention. I gratefully accept the Local Authority's offer to update the bundle lodged with the court for the November hearing and, importantly, to provide copies thereof to all parties including Ms Lucy if possible by 530pm on 13 th July but otherwise on 16th July. The Court of Appeal must invite Ms Lucy to confirm orally whether she proposes to conduct the hearing by telephone and if so, make all necessary arrangements. The Local Authority must make one further attempt to deliver the bundle to Ms Lucy this afternoon."
At the time of sending this email I am yet to establish with Ms Lucy if she indeed wishes to use telephone link for the hearing next week. I will keep all parties updated as to any further developments.
If you have any further queries please do not hesitate to contact this office again.
Yours faithfully,
Miss Clarissa Angus
Civil Appeals Listings Office
0207 947 6195
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