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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Royal Borough of Windsor and Maidenhead v The Mother & Ors [2025] EWFC 82 (B) (27 February 2025) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2025/82.html Cite as: [2025] EWFC 82 (B) |
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IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Neutral Citation Number: [2025] EWFC 82 (B)
Case No: RG24C50135
IN THE FAMILY COURT AT SLOUGH
Date: 27 February 2025
Before:
HIS HONOUR JUDGE RICHARD CASE
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Between:
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ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD |
Applicant |
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(1) THE MOTHER (2) THE FATHER (3-5) THE CHILDREN (Through their Children's Guardian) |
Respondents |
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Digital Transcription by Marten Walsh Cherer Ltd.,
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MS ISABELLE WATSON of Counsel appeared for the Applicant
MS COX of Counsel appeared for the First Respondent
MR PAVLOU of Counsel appeared for the Second Respondent
MR PERRY of Counsel appeared for the Guardian
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JUDGMENT
HIS HONOUR JUDGE RICHARD CASE:
1. This is an application that the mother makes to restrict disclosure of certain information to the father. The local authority are represented by Ms Watson of counsel, the mother by Ms Cox of counsel, the father by Mr Pavlou of counsel and the guardian, Ms Arnold, by Mr Perry of counsel. I am going to refuse the application for reasons that I will give but will consider making a non-molestation order against the father not to have contact with the mother or the maternal family. I have agreed with counsel for the local authority, the mother and the guardian that I will order that the father is not to be informed of the substance of this judgment for a period of time. Originally I had considered for a period of seven days, on reflection I will say until the next hearing on 12 March but that he shall be informed of the outcome, namely that the application has been refused.
2. The reason for doing that is to allow time for the mother to consider her position in relation to an appeal. There are two difficulties with that: (1) that she is currently undergoing medical treatment; and (2) she is out of the jurisdiction in country X. If she does, in fact, wish to appeal against my decision and if I had given the judgment in the presence of the father or his representative, then it would render any appeal entirely worthless. Because in due course, unless an appeal is successful, the father will be entitled to know what I have decided, I am also going to direct that the local authority obtain an expedited, by which I mean within 24 hours, transcript of this judgment.
3. A further advantage of ordering that the substance of the judgment is not to be disclosed to the father until 12 March is because on 12 March I have listed a case management hearing and at that hearing I can give the father the opportunity to address me on whether I should make a non-molestation order and various other orders which I will set out in the course of this judgment. It will also allow time for the transcript to be obtained so that it can be provided to him on that occasion and notwithstanding I am ordering an expedited transcript, I am under no illusion that the likelihood of it being on my desk within 24 hours is slim.
4. Turning to the background, I gave a lengthy judgment in this case on 14 February 2025. The neutral citation is [2025] EWFC 29 (B). I rely upon what I said in that judgment by way of general background. Specific to the background to this application is the following which I draw from the local authority skeleton argument for this hearing. At paragraph 2 it reads as follows:
"On 14 February 2025 extensive findings were made against the father at the conclusion of the hearing where both parents gave oral evidence to the court. The findings made against the father were of physical, sexual and verbal abuse by him against the mother, the court concluding that the abuse amounted to a pattern of coercive and controlling behaviour. The findings included serious physical violence and non-consensual sexual abuse and the repeated use of denigrating language towards her in the presence of the children. On the same date the mother issued a C2 application to withhold information from the father as to: (1) the nature of her illness and the proposed treatment; (2) the proposed location of her treatment; and (3) her application for the children to be placed with her in country X and the outcome of that application, including the children's care arrangements. The mother's application first came before the court on 19 February 2025. At the hearing the father was notified of the application but not of the subject matter. The matter was transferred to the High Court and directions were given listing the mother's application for hearing on 27 February 2025 at 2pm [that is to say this hearing]."
5. The local authority skeleton argument continues in this way at paragraph 6:
"The children are the subject of interim care orders. The local authority is committed to keeping the sibling group together and in their current schools while the mother undergoes her medical treatment so as to minimise the disruption for them. Enquiries are also being made as to whether they can, in fact, remain in the family home at this time with the local authority carers rather than moving to foster care. The local authority need to assess fully the possible care arrangements for the children in country X, including the extended family as potential carers. It is understood that ICACU have terminated their assessment of the maternal grandmother because of the size of her accommodation. The local authority is currently liaising with ICACU and country X authorities in order to try and recommence, progress the relevant assessments."
6. By way of update, the current position as set out by Ms Cox on behalf of the mother is that she has now, in fact, travelled to country X and is due to undergo imminent treatment. The children remain in the accommodation, the location of which has been kept confidential from the father, and they are being cared for by local authority carers under the interim care orders that I have previously made. The local authority intend to keep that under review whilst the mother undergoes treatment, recovery from surgery and chemotherapy in country X.
7. The skeleton argument of the guardian neatly summarises the position in this way. The mother seeks to withhold information in two categories: (a) the first category is in relation to mother's personal health and the nature and location of her treatment, all of which is highly personal information and so to be afforded the greatest weight; (b) the second category of information is her application to relocate internationally with the children to country X which is where the greatest tension is to be found between the father's Article 6 rights and the mother and children's Article 8 rights.
8. From the mother's skeleton argument, the application in its slightly revised form is identified as follows. The mother applies to withhold the following information from the father: (a) the nature of her illness and the proposed treatment; (b) the proposed location of her treatment and the fact of her leaving the jurisdiction; (c) the fact of her application for the children to be placed with her in country X, both interim and final, pending the receipt of further information from the local authority. In the event that mother pursues the application for the children to move to country X, she will ask the court to hear her application to withhold this information from the father. However, she does not consider that he needs to have this information whilst her application is inchoate.
9. The application was supported by letters from [redacted] and [redacted]. The letter from [redacted] is dated 11 February 2025 and is addressed "to whom it may concern" and in part reads as follows:
"Mother was seen in clinic at [redacted] yesterday by a member of the neuro-oncology surgical team who explained to her that the MRI scans of her brain show that she has progression of her known glioblastoma tumour. The proposed management of this tumour progression is to have another craniotomy to remove the tumour so that the recurrence can be removed and also the tissue can be analysed to confirm that the diagnosis is still in keeping with the glioblastoma. This diagnosis is a very serious one and she will require further chemotherapy to stop the tumour cells from re-growing for as long as possible. Unfortunately it is not possible to cure this type of brain tumour but the chemotherapy aims to control it. At some point the cells will become active again. Mother is currently experiencing headaches and memory difficulty as a result of this tumour and has been started on some steroid medication (Dexamethasone) to try to alleviate these symptoms. Dexamethasone is not a medication that should be used for long periods of time so it is imperative that she receives the operation that she needs as soon as possible. If she cannot receive the operation as soon as possible, this tumour will continue to grow putting her brain under more and more pressure. There are also concerns that if she does not have an operation soon, the tumour may grow too large to be able to have an operation and the surgery window will have been missed. Undergoing a redo craniotomy will have more of an impact on mother compared to the first surgery that she had. She is likely to be kept in hospital for longer and take longer to feel that she is able to care for herself."
10. So far as the parties' position are concerned, it is the mother who makes the application. The focus of her application in oral submissions was to this effect: If the father knows about her treatment now as opposed to perhaps closer to the issues resolution hearing, it will have an emotional effect on her and therefore her availability to the children. That effect may be both short term and potentially long term. It may be that the father needs to know that information closer to the IRH because it may be relevant to a final placement welfare analysis but by that time mother may be more emotionally able to deal with it.
11. The local authority supports the application. The guardian also supports the application and helpfully Mr Perry, and I paraphrase, said this: In relation to the disclosure of treatment, whilst it might be relevant in the future that may depend on the time that the surgery and the chemotherapy buys the mother, by which it is meant if she is likely to survive beyond the minority of the children, or the youngest child, it may not be relevant or as relevant to the welfare analysis. We do not yet have that information. I should say that the children range in age between early teens and the youngest pre-school or early school years.
12. I heard legal submissions only from Mr Pavlou on behalf of the father. That was in accordance with guidance given by the President of the Family Division in London Borough of Barking & Dagenham v RM [2023] EWHC 1879 (Fam). It is important by way of further background to identify that the father holds parental responsibility for CA, the eldest child and CC, the youngest of the children, but he has been in all three children's lives, that is CA, CB and CC, for extended periods of time except for a period of approximately 18 months when the mother, CA and then CB were in country X without him between 2013 and 2014.
13. So far as the law is concerned, I am very grateful to all four counsel for the thorough but succinct way in which they have set out the law in their various skeleton arguments. I mean no discourtesy to the other advocates but having read the local authority's skeleton argument first, I will read from that. Ms Watson refers me to Re B (Disclosure to other Parties) [2001] 2 FLR 1017 and in particular paragraph 67 which reads as follows:
"(1) R is entitled under Article 6 to a fair trial. So also, of course, are the mother and the children, W and G. The parties' rights to a fair trial are absolute. Their rights to a fair trial cannot be qualified by the mother's or the children's or anyone else's rights under Article 8.
(2) R's right to a fair trial means that he (like all the other parties) is entitled to be involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests. He must be able to participate in such a way as will enable him not only to influence the outcome of the proceedings but also to assess his prospects of thereafter making an appeal to any relevant appellate court. He must have a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponents. He must have a reasonable opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other parties.
(3) Prima facie this means that R is entitled to disclosure of all materials which may be taken into account by the court when reaching a decision adverse to him. If he is a party to the proceedings he is prima facie entitled to see all the documents that are available to the other parties.
(4) Nevertheless the decision-making process, although it must be fair to R (and to all the other parties) must also, so far as is compatible with that overriding requirement, be such as to afford due respect to the interests of the children, the other parties and the witnesses safeguarded by Article 8.
(5) So a limited qualification of R's right to see the documents may be acceptable if it is reasonably directed towards a clear and proper objective - in other words, if directed to the pursuit of the legitimate aim of respecting some other person's rights under Article 8 - and if it represents no greater a qualification of R's rights than the situation calls for. There may accordingly be circumstances in which, balancing a party's prima facie Article 6 right to see all the relevant documents and the Article 8 rights of others, the balance can compatibly with the Convention be struck in such a way as to permit the withholding from a party of some at least of the documents. The balance is to be struck in a way which is fair and which achieves a reasonable relationship of proportionality between the means employed and the aim sought to be achieved, having regard to the nature and seriousness of the interests at stake and the gravity of the interference with the various rights involved.
(6) Bearing in mind the importance of the rights guaranteed by Article 6 and the fact that, as Sedley LJ pointed in Douglas, Zeta-Jones, Northern and Shell Plc v Hello! Ltd [2001] 1 FLR 982, paragraph 141, Article 8 guarantees only 'respect' for and not inviolability of private and family life, any restriction of a party's right to see the documents in the case must, as it seems to me, be limited to what the situation imperatively demands. Non-disclosure can be justified only when the case for doing so is, to use Lord Mustill's word, 'compelling' or where it is, to use the court's words in Campbell and Fell v United Kingdom 7 EHHR 165, 'strictly necessary'.
(7) Moreover, to adopt Lord Mustill's word, the court must be 'rigorous' in its examination of the risk and gravity of the feared harm to the child or other person whose Article 8 rights are said to be engaged.
(8) Finally, any difficulties caused to a litigant by a limitation on his right to see all the documents must be sufficiently counterbalanced by procedures designed to ensure, in accordance with the principles in (2) above that he receives a fair trial.
(9) At the end of the day the court must be satisfied that whatever procedures are adopted, and whatever limitations on a litigant's access to documents may be imposed, everyone involved in the proceedings receives a fair trial."
14. Ms Watson says, and this is adopted by the other advocates before me, that the principles have been concisely analysed and summarised by Peter Jackson LJ in Re T (Children: Non-Disclosure) [2024] EWCA Civ 241, a case with which I was not familiar and am very grateful that it has been brought to my attention. They rely upon paragraph 22 which reads as follows:
"A court that is asked to authorise non-disclosure in the interests of a child should therefore ask itself these questions:
(1) Is the material relevant to the issues, or can it be excluded as being irrelevant or insufficiently relevant to them?
(2) Would disclosure of the material involve a real possibility of significant harm to the child and, if so, of what nature and degree of probability?
(3) Can the feared harm be addressed by measures to reduce its probability or likely impact?
(4) Taking account of the importance of the material to the issues in the case, what are the overall welfare advantages and disadvantages to the child from disclosure or non-disclosure?
(5) Where the child's interests point towards non-disclosure, do those interests so compellingly outweigh the rights of the party deprived of disclosure that any non-disclosure is strictly necessary, giving proper weight to the consequences for that party in the particular circumstances?
(6) Finally, if non-disclosure is appropriate, can it be limited in scope or duration so that the interference with the rights of others and the effect on the administration of justice is not disproportionate to the feared harm?"
15. I turn to consider those six questions in turn.
16. First of all, is the material relevant to the issues or can it be excluded as being irrelevant or insufficiently relevant? There are two aspects to consider: first of all, an inchoate application for interim and/or final placement in country X with the mother. In her skeleton argument originally filed, as I understand it, with the mother's application, Ms Cox drew my attention to paragraph 19 of schedule 2 of the Children Act 1989 which provides that consent for placement out of the jurisdiction is required from each person who holds parental responsibility for the children unless the court determines that it has been unreasonably withheld.
17. If the application for placement or for the child to live outside the jurisdiction is not known to the father in relation to children for whom he holds parental responsibility, he plainly cannot give informed consent or, it seems to me, be considered to have unreasonably withheld that but, in any event, if that concern could be avoided on the basis that he falls within one of the other exclusions, namely he is incapable of giving consent because he is unaware of the nature of the application, placement in country X is hugely consequential. It is consequential for all three children, whether that is on an interim or final basis. That is plainly an issue which the court will have, at some point, to grapple with. It may, in fact, be one of a limited number of options, perhaps only two, before the court at a final hearing.
18. The withholding of the fact of the mother's application from the father will plainly interfere with his right to a fair trial because he would be incapable of making any meaningful submissions on the application. I am urged to approach it, that is the placement part of the application, on the basis that it is not a current live issue in the sense that the mother invites me to adjourn the application to withhold the fact that she is making an application for interim or final placement in country X until further information is available via the local authority as to the feasibility of that. In a sense, therefore, it is not a current issue but it will become an issue almost inevitably the closer that we get to the IRH which is listed on 2 July. That is because I checked with Ms Cox that the mother is not withdrawing the application, she still seeks to pursue it.
19. So far as the mother's medical condition is concerned, it would appear to be from the medical evidence that I have, that it is a life-limiting condition and that is likely to be of some relevance to final placement, although I agree with Mr Perry that that might actually depend on the mother's life expectancy. If as a result of the craniotomy and chemotherapy in country X her life expectancy is 20 years or more, that would be a quite different situation from if it was 10 years or less given the age of CC. However, the fact of the condition, its treatment and the location of that treatment is also relevant to interim placement.
20. The local authority have changed the care plan from one where the children are being cared for under an interim care order by their mother to one where the mother having gone to country X, they are being cared for by local authority carers at a confidential address. There is no evidence of how long that might be for because there is no medical evidence as to the likely length of treatment in country X, nor the immediate recovery time from surgery. Given that part of the treatment involves chemotherapy, I think I can take judicial notice of the fact that it will be a number of weeks or months rather than a matter of days. My conclusion, therefore, is that the material is relevant to issues that are before the court now.
21. The next question is whether the disclosure would involve a real possibility of significant harm to the children. So far as the application for placement in country X is concerned, I say this. I made very serious findings in my judgment of 14 February. They included a finding of non-fatal strangulation in 2013. There were other more recent findings of equal severity but the importance of that finding is that following that non-fatal strangulation the mother went to country X and the father later joined her there.
22. The mother says this through Ms Cox in her skeleton argument:
"It has been established that the non-fatal strangulation of the mother on 19 July 2013 prompted her to leave the relationship and ultimately the country. It was further established that the father eventually travelled to country X in November 2014 and the parties resumed their relationship. It is submitted that if the father knows of the mother's and the children's whereabouts there is a real risk that he will attempt to track them down and continue his abusive behaviour as he has previously done. This will be a heightened period of vulnerability for the mother as she undergoes treatment and therefore requires more protection."
Of course, implicit in what she says is the fact that I had found subsequent to the reunification in country X that the father perpetrated more and equally serious abuse against the mother.
23. It is important to recognise that it does not appear that the father has been able to track the mother down thus far. The mother and the children have been living at a confidential address within the jurisdiction. There is no evidence that he has tried to identify where that is, either directly or through family members. Nor, apart from two emails he sent on the day after his arrest in July 2024, has he attempted to contact her, although it is important to note that those two emails were sent in breach of his bail conditions.
24. It is also important to recognise that I have made findings of coercive behaviour against the father and significant dishonesty. Accordingly, there is some risk if the father knows that the mother is in country X, he may try to reunite with her or to engage in coercive behaviour to achieve that end or for some other purpose. Since the abuse continued after the reunification in country X, there is a real possibility of significant harm as there was after November 2014.
25. So far as the medical condition is concerned, the local authority in their skeleton argument say that it makes the mother vulnerable and it may be used as "a stick to beat her with". To some extent it is difficult to see how that might be used as a stick to beat her with because it is me who is going to have to determine any interim or final placement of the children, whether that is in country X or elsewhere. I am, of course, well aware of the father's coercive behaviour and the findings of dishonesty I have made against him. It might, however, be information that is used in an effort to coerce her in the way that I have already identified, either by way of seeking to reunite with her or perhaps seeking her agreement that he should care for the children if he were to track her down in country X.
26. As I have already identified, mother's position is that it would cause her emotional harm to know that the father knew she was suffering this medical condition, having the treatment described and having it in country X but I find that is, and I say this with respect to Ms Cox who of course is acting on instructions, a very nebulous submission. There is no medical evidence or indeed any evidence directly from the mother that she fears emotional harm if the father were to know of the location of her treatment or the fact of her condition and it is not actually referenced in the application that is before the court. Accordingly, there is a real possibility of some harm in relation to knowledge of the medical condition and a real possibility of significant harm in relation to knowledge of the placement applications.
27. Next, can the feared harm be addressed by measures to reduce its probability or likely impact? The local authority say that country X authorities would not have the full background to the case or a detailed understanding of the need to act protectively and swiftly. But, of course, they would have that knowledge if they were informed of it by the local authority and I can direct the local authority to make that information available to them, perhaps by way of giving them permission to serve a translated version of my 14 February 2025 judgment on them together with information that the mother is in country X receiving treatment.
28. Are there other mechanisms that could be put in place to address the risks and to reduce their probability or likely impact? I can make a non-molestation order against the father preventing him from having contact with the mother or the maternal family. I query whether if that contact was made out of the jurisdiction it would be enforceable as a criminal offence in this country but at least it would provide protection against attempts at remote contact by email, text message, phone, or via third parties instructed to do so.
29. I could also direct that the father's passport or passports are handed over and make a prohibited steps order that he should not apply for travel documents. The mother says that that would not outlast the proceedings. That is correct, certainly so far as the surrender of the passport is concerned but there would be sufficient time within the proceedings to consider whether mirror orders protecting the mother in country X could be put in place and the risk of the father travelling to country X will, of course, form part of the risk analysis when considering the placement options.
30. I also note that the father is subject, certainly as I understand it, to ongoing bail conditions set out at I52 of the bundle which include not to contact the mother. There is not any information before me on their enforceability outside the jurisdiction but again it represents a mitigation of the risk. Whilst none of those completely avoid the risk, they may well reduce the probability of, and in relation to liaison with authorities in country X, the likely impact of the feared harm.
31. Next, taking account of the importance of the material to the issues, what are the overall welfare advantages and disadvantages to the children from disclosure or non-disclosure? The advantages of non-disclosure are that the risks of contact with the mother and through the mother the effect on the children would be fully avoided. The disadvantages of non-disclosure are these.
32. First, it is unlikely that the father will be considered as a possible carer for the children in light of the findings that I have made against him and having regard to Practice Direction 12J and recent Court of Appeal authorities. It might even be said it is unlikely there is a possibility that he will have direct contact with them but he may have a view on the placement of the children with the mother as a final order in country X in circumstances where, in particular, there may be a significant welfare effect on CA. The reason for that is that CA is currently the claimant in proceedings against an NHS Trust arising from birth injuries that he suffered in their care. The court has before it an application by the solicitors in those civil proceedings acting on his behalf. The implication of what is said in that application (it is an application for disclosure of certain information into the civil proceedings) is that those proceedings may either settle for a lesser amount or alternatively damages will be assessed for a lesser amount if there is a possibility or a certainty of CA growing up in country X. The consequence of that for CA is that he may be practically prohibited from returning to the UK because it might not be affordable if the settlement or the assessment of damages is less than that which would allow him to be appropriately cared for in the UK.
33. Second, the father would not be able to address to any material degree the effect which such placement, either in country X or with the mother in the UK or in country X, would have on the children's wider welfare given the restriction on the ability to progress contact beyond indirect contact, or on the ability of the mother to offer them appropriate care in light of her medical condition. Whilst those might not be live issues now, they plainly will be live issues in short order given that the IRH is listed on 2 July.
34. Third, the non-disclosure of placement in country X would, in fact, be very difficult to maintain if in due course the contact between the children and the father became two-way. Given their ages, it is hard to imagine how the fact of their placement in country X could be concealed. If it were perhaps by redaction of their communication to him, that communication might lose all real meaning. Again, I acknowledge that is not a current issue because at the moment contact, if it is to take place at all and it has not been, is one-way from the father to the children but that will become an issue.
35. Fourth, where the children's interests point towards non-disclosure, do they so compellingly outweigh the rights of the father that such non-disclosure is strictly necessary? It follows from the analysis that I have set out above that I am not satisfied that their welfare interests point towards non-disclosure to such an extent that it is necessary.
36. Fifth, if disclosure is appropriate, as I have indicated it is, can it be limited in scope or duration? The father could be told simply that the mother is suffering a medical condition requiring treatment which means that she cannot be with the children. That would completely overcome the objection of the mother because it is said on her behalf she will suffer some emotional harm knowing that the father knows but, in any event, it would then beg the question what level of contact the children are having with the mother in whose care they are not currently residing and the reality is that there is no direct contact because of the mother's location in country X and it is very hard to explain that without explaining also she is out of the jurisdiction. Saying that she is out of the jurisdiction will quite simply give the game away to the father who will very readily be able to conclude she is in country X. That is where she last went for treatment.
37. In terms of the application to withhold disclosure of the application for interim or final placement in country X, that could be delayed but, as I have indicated in the course of this judgment, there has to come a point where the information must be disclosed and it begs the question if not now, when? As I have already considered in this judgment, the evidence of the effect of disclosure now on the mother is very vague and certainly not such that I consider that it should be delayed.
38. In all those circumstances, I have determined that the application should be dismissed but save for communicating its dismissal the father should not be informed of the reasons why until the hearing on 12 March. That concludes my judgment.
[correction in relation to parental responsibility discussed and incorporated above]
JUDGE CASE: Thank you. In terms of the order, I think it should record - sorry, Ms Watson.
MS WATSON: Sorry, my Lord. Just an observation. I was trying to check but I have not succeeded. I am not sure the father can still be subject to police bail conditions because I believe there can be - they are initially for three months and then there can be a further extension of three months but I do not believe—
JUDGE CASE: It is from October.
MS WATSON: Yes, well he was arrested July, 31 July.
JUDGE CASE: Sorry, no, from July, yes, to October.
MS WATSON: So my sense would be that unless—
JUDGE CASE: They have probably just expired, have they not?
MS WATSON: Yes.
JUDGE CASE: Yes, well the point that I made in the judgment is that I do not know.
MS WATSON: Quite.
JUDGE CASE: And I do not think it undermines that but thank you for raising it.