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Home > Judgments > 2008 archive

S (A Child) [2008] EWCA Civ 951

Application by Commissioner for Police for permission to appeal, with appeal to follow, decision to allow disclosure of phone numbers in wardship proceedings and related possible criminal proceedings. Application and appeal allowed.

The child had been made the subject of wardship proceedings after the father had abducted him to India following breakdown of the marriage. He had returned and been sentenced to one year imprisonment for child abduction which had now been served. However there were concerns about a possible plot to abduct and murder the wife and so she and the child had been put in protective custody though the police had not yet charged the husband. The wife had also revealed that she received several silent phone calls on her mobile. It was the disclosure of these numbers that were the subject of this appeal.

In the original hearing McFarlane J had allowed the disclosure of the names and addresses attached to the phone numbers to the other parties. In the course of this appeal counsel for the Police invited a closed session at which the concerns were aired that disclosure would reveal the wife's whereabouts. In allowing the appeal, Ward LJ reasoned that this information had not been considered in the original hearing and so the matter was remitted back for the judge to hear afresh.

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Case No: B4/2008/1564
Neutral Citation Number: [2008] EWCA Civ 951
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE MCFARLANE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 8th July 2008
Before:

LORD JUSTICE WARD
and
LORD JUSTICE WALL

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IN THE MATTER OF S (A Child)

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(DAR Transcript of
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Mr J Hardy QC and Miss P Gibbons (instructed by the Metropolitan Police) appeared on behalf of the Appellant.
Miss J Farbey (instructed by the Special Advocates Support Office) appeared as a Special Advocate for the first respondent.
Miss L Theis QC (instructed by JR Jones) appeared on behalf of the first respondent.
Miss L Theis QC and Miss J Youll (instructed by IBB) appeared on behalf of the second and third respondents.
Mr T Gupta (instructed by Dawson Cornwell) appeared on behalf of the fourth respondent.
Miss Freeborn (instructed by CAFCASS) appeared on behalf of the fifth respondent (a child by his Children's Guardian).

Judgment
As Approved by the Court
Crown copyright©

Lord Justice Ward: 
1. This is an application for permission to appeal, with the appeal to follow if permission is granted, which was remitted to this court by my Lord, Lord Justice Wall.  It relates to the judgment given by McFarlane J on 1 July (last week or so, that is), when the judge ordered, in a long-running wardship matter part-heard before him, that the father's application, which was supported by the plaintiff and the first, second and third respondents (that is to say, by the mother and the paternal grandparents) for the disclosure of the telephone numbers and names and addresses linked to the telephone numbers relating to calls made to the mother's mobile telephone in or around October 2006, as described at page G652 in the trial bundle, be disclosed to the other parties in the case.  That was granted.

2. The history is complex, but I think can be distilled in this way.  The wardship proceedings relate to a young boy who is some four or five years old.  His parents are married.  The marriage broke down, and the father then abducted the boy, taking him to India.  That is when the wardship proceedings began, with orders for his return and so forth.  In due time father did return and was promptly or soon afterwards arrested for the offence of child abduction and in due time stood his trial in the Crown Court and was sentenced to a year's imprisonment, which he has now served.

3. Whilst he was in prison in Wormwood Scrubs awaiting his trial, information came to the police on a confidential and anonymous basis from the organisation known as Crimestoppers that father in prison had arranged a contract for the abduction and murder of the mother.  As a result of that, the mother and child have been placed in protective custody and so they live at an address which is unknown, certainly to the father and the paternal grandparents.

4. The anonymous nature of the information has caused huge difficulties in the management of the trial.  Sumner J had perforce to appoint Special Advocates to represent the interests of the mother and the father in the closed sessions that from time to time took place when the police revealed to the judge and to the Special Advocates the nature of the case against the father.  I should say at once that that case has not proved strong enough to lead to any charges being made against him, still less any prosecution.  But it seems the enquiry is at least ongoing, whatever that might mean. 

5. The question then arose as to the disclosure of these telephone numbers.  They come into play because the mother revealed, in the course of her helping the police investigate this plot, that she had in October 2006 received telephone calls on about six occasions where there was silence on her answering telephone.  Police enquiries have revealed at least the identity of four of those six callers, but the police have not undertaken the further enquiries for which they would need the permission under the RIPA Regulations to ascertain the billing of the makers of the telephone calls, to check on the date of the call and the duration and so forth.

6. The judge, therefore, had in essence to hold a delicate balance between allowing all relevant information which would affect the welfare of his ward, which quite obviously would extend as far and as wide as was thought to touch upon the boy's well-being.  But counterbalanced against that would be the interests of the telephone subscribers, who are entitled by virtue of Article 8 to their privacy and, by reason of the ordinary common law requirements, that confidential information should be respected and those considerations militate against these third parties being implicated in a Family Division case with overtones of conspiracy to kill.  The judge ruled that the information should be disclosed.  The Commissioner of Police, who is a witness in the case but one who is represented and who has played an important part in the hearing before the judge, seeks permission to appeal against that order. 

7. During the course of his helpful submissions to us, Mr John Hardy QC, who appears with Ms Gibbons for the Metropolitan Police, invited the court to go into a closed session in order that he could put further information to us.  Miss Farbey is the Special Advocate for the father, it having been sensibly agreed that the mother's Special Advocate need not attend and so there would be some saving of costs.  Miss Farbey was present in that closed hearing, but the other parties' representatives, by Miss Theis, who today appears for both, the paternal grandparents and the father, again with a view to saving expense; and the mother's counsel, Mr Gupta, and Miss Freeborn, for the guardian, were excluded from that hearing.

8. The result of the information given to us in that hearing, as it has been refined thanks to the help we have had from Miss Farbey, is that the Metropolitan Police have a real fear that the disclosure of that information may possibly lead to the revelation of the whereabouts of the mother.  If that possibility was to ensue then the consequences are obvious, and it is therefore, in my judgment, an important matter, vitally bearing upon a crucial element in the fact-finding task the judge has undertaken, which includes having to decide whether or not there is in fact a contract on the life of the wife and, if so, who are the contracting parties to it.

9. The procedural difficulties speak for themselves.  An analysis of the application now being made by Mr Hardy is tantamount to an invitation to expand the Grounds of Appeal and to allow this appeal on the basis of fresh evidence.  The obvious objections to that course are usually within the three considerations of Ladd v Marshall, one of which, namely whether or not this information could have been obtained with reasonable diligence, is clearly an important factor.  But accepting, as I do, that the police had notice of this application only the day before it was made, so about ten days ago, one can be more lenient in forgiving the lateness of this point being taken.  As to its credibility, it is of course put in terms no more than that the Commissioner has a reasonable fear of this adverse consequence arising as one of the possibilities in the case.  And as to the significance of the information, that, it seems to me, speaks for itself and almost governs the decision.  If the judge had been told of this fear, I apprehend he would have been bound to have taken it into account, judged it, weighed it, and made a decision bearing that factor very much in mind.  What decision he would take is of course entirely a matter for him, and, since he is so steeped in the minutiae of this case, it is, in my judgment, totally appropriate for him to take the decision and most inappropriate for us to take it or even to express the slightest view of its strength or lack of strength.

10. We have heard some argument on the merits of the appeal against the judgment as given by the judge as to whether or not it betrays an error in principle or, if not, whether it is an exercise of discretion by the judge which meets the high hurdle of being plainly wrong; that is to say, outside the generous ambit within which there is reasonable room for disagreement.

11. For my part I would prefer to express no view whatsoever on the merits of that appeal and to give no indication at all as to the correctness or otherwise of the judge's judgment, because it is crucially important that the judge go back to this matter with a completely fresh mind and with an ability to look at the matter in the round, afresh, untrammelled by any observations that have fallen from this court as to the correctness or otherwise of his decision now before us.  In my judgment, this fresh evidence is of an importance in the case as makes it essential for the judge to consider it and to consider it afresh.

12. The right answer in those circumstances is not to undertake the alternatives that were canvassed before us, such as dismissing the appeal and leaving the judge to consider a wholly fresh application, which it seems to me could tie his hands, because that would leave him constrained by findings that he has already made when they may or may not be appropriate upon reflection of the new evidence.  To adjourn this appeal and send it back has a similar difficulty.  The right course, in my judgment, is to start again. 

13. For that reason, I would grant permission to appeal, and allow the appeal on the basis of this fresh information demanding a complete rehearing.

Lord Justice Wall: 
14. I entirely agree and do not wish to add anything.
 
Order:  Application granted; appeal allowed