Convicted father precluded from having contact with his children
By:2 commentsMarch 20, 2017
I don’t think I’ve commented here before on what is essentially a criminal case, but I think the Court of Appeal’s recent decision in ZX, R (on the application of) v The Secretary of State for Justice is of interest to the family law fraternity.
The case concerned a married man with three children, two boys born in 2003 and 2005 and a girl born in 2011. The family has always lived in the London area. The man has convictions for offences related to terrorism and in June 2014 he was sentenced for five of those offences to three years imprisonment.
In December 2014 the man was released from prison on licence. There were a number of conditions attached to his licence, including a requirement that he lived away from the family home in approved premises in Camden.
Because of the man’s convictions, and concerns arising in consequence, there had been various visits by local social services to the family home in Tower Hamlets. The view of social workers at the time was that there did not appear to be a risk to the children through their parents’ beliefs.
In July 2015 there was a Probation Management Review. By this time, the man was spending up to 12 hours a day at the family home, although not living there. Concerns were raised that he still held extremist views, and it was decided that pending further assessment he should be suspended from visiting the family home or having contact with his children, save as directed by the National Probation Service (NPS) and local Children’s Services.
The man complained about this decision, and in November 2015 he applied for permission to apply for judicial review (judicial review is a form of court proceedings in which a judge reviews the lawfulness of a decision or action made by a public body; all applications for judicial; review must first go through a permission stage, which allows the court to filter out meritless cases). His application for permission was refused, and he appealed against that decision, to the Court of Appeal.
The Court of Appeal dismissed the appeal, holding that the decision to impose the licence conditions was a lawful and proportionate decision, and was objectively justified, given the facts and circumstances of this case. As to the argument put forward on behalf of the man that there was no sufficient evidence of a risk of the children being radicalised by him, Lord Justice Davis said: “it suffices to say that that simply comes down to a disagreement with the rational evaluation of the NPS.”
The point that I think is of particular interest to those involved in family law relates to another argument that had been put forward on behalf of the man, albeit ultimately not pursued by his counsel.
Lord Justice Davis explained the argument as follows:
“…that Parliament had, by the Children Act 1989, provided a statutory scheme whereby children may be lawfully separated from a parent on protection grounds. It was submitted that court approval was needed for such a result: and the provision by Parliament for scrutiny by the Family Court of such a decision … “must not be circumvented by use of criminal justice powers”. Accordingly, it was said, where the NPS or other relevant body contemplated making a decision – as here – which would result in a child being separated from its parent for an unspecified period, an application to court – by the relevant local authority Children’s Social Care department, if not the NPS – was needed.”
The argument received short shrift from Lord Justice Davis. He said:
“…the Children Act 1989 (and related Practice Directions) have, in terms of direct application, nothing to do with this case. Here the liberty of the appellant was taken away from him, in accordance with law, by the three year custodial sentence imposed on him by the Crown Court on 6 June 2014, thereby separating him from his family. His early release from prison was then subject to conditions, which the NPS was empowered to impose under the provisions of the Criminal Justice 2003 and the 2015 Order. Such conditions are legislatively authorised to extend to restrictions on (for example) contact with a person. That decision making is entrusted to the NPS – not to a local authority Children’s Care Service department or to a Family Court or to anyone else. Thus to say that the criminal justice system cannot be used to circumvent the provisions of the Children Act 1989 with regard to the removal of children from their parents puts the matter the wrong way round in a case such as this. A local authority’s functions and powers in care proceedings with regard to children under the Children Act 1989 cannot be used to defeat the functions and powers available to the NPS under the Criminal Justice Act 2003 and 2015 Order with regard to the imposition of licence conditions.”
In other words, the functions, and therefore the aims, of the NPS were quite different from the functions and aims of a local authority under the Children Act 1989. The two ‘systems’ were therefore quite separate. Yes, it might be the case that the local authority had no concerns about the children, but that did not mean that the NPS was not entitled to impose whatever conditions it considered appropriate upon the licence on order to (amongst other things) protect the public. A court order under the Children Act is not the only means by which a parent can be lawfully separated from his children.
Lord Justice Davis was at pains, however, to emphasise that this does not mean that considerations of the impact on the family life of the man and the children, and considerations of safeguarding and promoting the welfare and interests of the children, have no part to play in the imposition by the NPS of licence conditions such as these. On the contrary, he said, they most certainly and decidedly do.
In this case, he said:
“It is plain beyond argument that … due regard was had by the NPS to the need to safeguard and promote the welfare of the children. Indeed it can be seen that, on the facts here, it was that consideration which ran in parallel with the need to protect the public and to prevent re-offending. It could properly be assessed that it was in the interests of the children themselves for them not to be exposed to the risk of their being radicalised by their father just as it was in the interests of public protection that they not be thus exposed.”
Lord Justice Lindblom and ‘our own’ Sir James Munby gave concurring judgments.
The full report of ZX, R (on the application of) v The Secretary of State for Justice can be read here.
Photo by Keith Allison via Flickr under a Creative Commons licence.
March 20, 2017
Categories: Family Law