B1/2004/0559 
Neutral Citation Number: [2004] EWCA Civ 821
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE DUNCAN)
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 25 May 2004
 
B E F O R E:

LORD JUSTICE SCOTT BAKER 
 
LORD JUSTICE WALL 
 
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G (A CHILD) 

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MS HEATHER SWINDELLS QC AND MS SARA MANN (instructed by Canter Levin & Berg, Liverpool L2 5RU) appeared on behalf of the Appellant
DR REMY ZENTAR (instructed by Liverpool City Council, Liverpool L69 2DH) appeared on behalf of the Guardian
MR ANDREW LOVERIDGE (instructed by Liverpool City Council, Liverpool L69 2DH) appeared on behalf of the Council.

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J U D G M E N T
Tuesday, 25 May 2004 
1.	LORD JUSTICE SCOTT BAKER:   Lord Justice Wall will give the first judgment.
2.	LORD JUSTICE WALL:  For reasons which will be rapidly apparent it is vital that this case retains complete anonymity.  It concerns a male child, whom I will identify only by the initial "X".  X is four years old.  Sadly, he is extremely ill and may be terminally ill, although a recent medical report we have seen on him gives some signs of hope.  X lives with his mother and his stepfather pursuant to a residence order made in the county court on 12 February 2004.  That order was accompanied by a supervision order in favour of a local authority.  X's parents were not married and his father does not have parental responsibility for him.  X has no contact with his father and, as the history will show, the very small part that his father has played in X's life has been almost exclusively negative.  
3.	X's father does not know that X is terminally ill.  The question is whether he should be told and, if so, what and by whom.  The question arises because on making the residence order relating to X in favour of his mother and her husband, a circuit judge also directed that "the specific issue as to whether [X's father] is to be told of his son's medical condition" be adjourned to another judge in front of whom it came on 1 March 2004.  The judge who took the case on 1 March (whom I will call "Judge D") made the following orders:  
"2.  The Local Authority, through themselves or any authorised agent, do convey to the father, as soon as is reasonable practicable (but not before 15 March 2004) the fact that they hold important information concerning his son's current medical condition which, if he wishes to receive, the Local Authority will share with him.  
3.  Should the father respond to the approach by the Local Authority in (2) above, the Local Authority do inform the father of the nature of his son's illness and of the fact that he will be notified of any significant improvement or deterioration.  
4.  Should the father seek additional information to that directed by this order he is to apply to the Court on 72 hours written notice to all parties and the Guardian... such application to be listed before His Honour Judge [D]."  
In the same order the judge appointed a guardian for X under Rule 9.5 of the 1991 Family Proceedings Rules, and the guardian was to remain involved working in cooperation with the Local Authority concerning the information provided to the father until the father has been informed and his response indicated, or 28 days later, whichever was the sooner.  Importantly the judge confirmed, for the avoidance of doubt, that the mother's solicitor was to have permission not to serve the father with notice of the mother's application for a residence order in relation to X.
4.	The mother appeals against the order addressed to the local authority in relation to the passage of information and she appeals, one might say, not just with Judge D's permission, but with his enthusiastic encouragement.  It is plain from his judgment that Judge D found this a difficult and finely balanced decision and welcomed the prospect that it would be reconsidered in this court.  
5.	I have come to the very clear conclusion that this is an order which the judge should not have made.  In saying that, I intend no criticism of him or those who argued the case before him.  His motivation was a mixture of the humanitarian and the pragmatic.  The humanitarian element was his view that the father was entitled to know that his son was dying.  The pragmatic was a choice between two evils, both based on the father's criminality and the history of his extreme violence to the mother.  In short, would the father be more likely to be violent and disruptive if he was alerted to his son's illness before his son died, or if he found out about it afterwards?  The judge thought the latter.  
6.	The reason I have reached the conclusion I have is that in my judgment this is not a properly justiciable issue.  In my view, it is a decision which those with parental responsibility for X should take.  There are no ongoing proceedings between X's parents.  There is no issue relating to the welfare of X between them which falls to be decided.  X is not in care.  The local authority does not share parental responsibility for him and, in my judgment, the court has no role in the decision about what the father is told.  
7.	In order to understand how I have reached this position, and indeed how it comes about that a local authority and a guardian are involved, I need to look briefly at the history of the matter.  I do so by reference to an extremely helpful chronology attached to the mother's skeleton argument.  
8.	X's mother is now 22 and his father 24.  They enjoyed - if that is the right word - only a fragmentary relationship.  I do not propose to go into the father's history.  It is sufficient to say that between 1991 and 1998 he appears to have had some 16 convictions for aggravated burglary, violent assault, robbery, affray and threats to kill.  He also has a history of drug abuse involving both cocaine and heroin.  X's mother also had an unfortunate, chaotic history and lifestyle which likewise involved drug abuse and numerous shoplifting offences.  
9.	Following X's birth she and X were placed in a mother and baby unit.  X's father was in prison at the time.  His release from prison effectively led to the breakup of any prospect that the mother and X would be in a position to live together due to his interference and his intimidating behaviour towards both her and the staff at the unit.  At that stage X's mother, unfortunately, was unable to break away from him.  On at least one occasion the father removed X by force from the mother, as well as seriously assaulting and threatening her.  When she told him the relationship was over, he threatened to paraffin her grandmother's home.
10.	Unsurprisingly, care proceedings were instituted by the local authority, and despite an initial prospect that X's mother might be able to care for him, his father's interference effectively wrecked any prospect of her being able to do so.  The result inevitably was a care order made on 15 November 2000.  By that stage the father had been in serious breach of injunctions made against him and indeed had been committed to prison for seven months for contempt of court.
11.	The care plan was that X should live with his maternal grandmother, and an order was made under section 34(4) of the Children Act giving the local authority power to terminate contact between X and his father.  Various non-molestation and other exclusion orders were continued, as was a power of arrest.  
12.	On 20 September 2001 the father left a message, I think for the guardian, that he did not want to know his son any more and that he, the father, was to be forgotten about.  Unfortunately X's placement with his maternal grandmother broke down and X was initially placed with a maternal great-aunt.  
13.	However, in 2002 the mother's fortunes changed.  She was able to kick her drug habit.  She married, and the consequence was that the care order was in due course discharged.  Initially X lived under a residence order with his maternal aunt, but in due course, as I have already related, a residence order was made in favour of the mother and her husband.  
14.	By that stage, unfortunately, X's condition had been diagnosed.  The mother and her husband moved to a different part of the country where they continue to live.  X is currently in hospital undergoing intensive treatment and his mother is living in the hospital with him.  It was in those circumstances that the residence order was made; and we understand that it was the consequence of a discussion in court at the time the residence order was made that led the judge of her own motion to direct that, what she described as the "specific issue order" - the question of whether or not X's father should be told of his condition - should be adjourned to Judge D.  
15.	It is plain, looking at the Children Act, that the judge had jurisdiction to make that order under section 10(1)(b) of the Children Act 1989 which reads: 
"In any family proceedings in which a question arises with respect to the welfare of a child the court may make a section 8 order with respect to the child if the court considers that the order should be made even though no such application has been made." 
It was against that background and with that section in mind that the judge made the order for the specific issue to be resolved.  
16.	That chronology explains the involvement of the local authority and the child's guardian.  But of course with the discharge of the care order the local authority ceased to have parental responsibility for X and with the making of the supervision order the guardian was automatically discharged from the proceedings.  The responsibility of the local authority under the supervision order derives from section 35(1)(a) of the Children Act and is "to advise, assist and befriend the supervised child."
17.	Judge D, as I have already set out, agreed that the mother should not serve the father with a copy of her application for a residence order which she and her husband now have.  So to my mind the question immediately arises:  what existing proceedings are there between the mother and the father in which the court is called upon to make orders?  
18.	The Children Act 1989 is a non-interventionist Statute.  Section 1(5) makes it clear that the court should not make any order unless it is better for the child for an order to be made than no order.  So what is there for the court to do?  What lis, in the old-fashion Latin term, what issue is there for the court to determine?  In my judgment there is none.  The orders made by Judge D fully protect the anonymity of X and his mother and in my judgment the court now has no further function.
19.	There are, of course, many cases in the books about when it is appropriate not to serve another party to proceedings with notice of an application to be made in those proceedings.  However, all those cases concern steps to be taken in the proceedings or in the context of orders to be made by the court.  The classic case is whether or not a man who does not even know he is the father of a child should be given notice of the fact that the court has been asked to make a care order or an adoption order in relation to the child.  Here, we are not concerned with anything of that kind.  This case is quite different.  The mother has already been given permission not to serve the father with notice of the application for a residence order and the residence order has been made.  Unless and until one of the parties seek to invoke the court's jurisdiction to decide an issue between the parents the court, in my judgment, has no function.
20.	The court can of course of its own motion make orders under section 8 such as a residence order or a specific issue order.  But in my judgment it should think very hard before it does so.  Here, it is the mother and her husband who have parental responsibility for X.  It is their decision that they do not want to tell X's father that he is terminally ill.  That is in no sense an irrational decision.  They have every reason to fear that if the father is told he will search them out and disrupt what may prove to be the last days and weeks of X's life with his violent and unpredictable behaviour.  They have plainly thought through the pros and cons.  They appreciate the risk that if he finds out subsequently he may react as badly, if not more so; but that is their decision.  If they are proved right, the court will of course be ready to protect them.  But in my view the decision is theirs and the court should respect it.  Particularly in the delicate situation in which they now find themselves where the mother is living effectively in hospital with X the last thing they want is any form of distraction in the weeks and months to come.  
21.	As I have already indicated the Act is a non-interventionist statute.  Were this a family who had not come within the court's ambit, were the facts as stated, it would be a matter for the mother with parental responsibility to decide whether the father without parental responsibility should be told if their child was terminally ill.  In most cases, particularly where the father has parental responsibility, one would expect the father to be informed.  But it would still be a decision for the child's mother.  Here, where the facts are extreme and the risk from the father intense, the underlying proposition remains the same, in my judgment.  This is a decision to be made by those with parental responsibility for the child.  So in my judgment, for the best of possible motives, Judge D reached the wrong conclusion.  Paragraphs 3-5 inclusive of his order should be discharged.  
22.	During the course of argument this afternoon counsel on behalf of the guardian very properly thought it right to draw our attention to Article 8 of the European Convention on Human Rights, and the question as to whether or not the action of the court in declining to inform the father breached the father's Article 8 rights.  I propose to deal with this point quite shortly because it seems to me, as a matter of fact, that there is no family life as far as the father and X are concerned.  But if I am wrong about that, family life has plainly been destroyed by the father's behaviour, by his decision to have nothing to do with the child, by his express statement that he wished to have nothing to do with the child and by his violence to the child's mother.  But even if I was wrong about that and Article 8 was engaged on the facts of this case I am quite satisfied that Article 8(2) would apply and the rights of the mother and the child to respect for their family life in these particular circumstances prevail and that any interference with the father's rights would be proportionate.  
23.	The supervision order will of course remain in place and I very much hope the local authority will continue to advise, befriend and support X and his family in the very difficult weeks and months ahead.  As I have made clear, it seems to me that this case does not fall within the ambit of the authorities which have been placed before us and I do not, therefore, propose to analyse them.  
24.	Although we have dealt with this appeal shortly, I recognise that it raises a sensitive issue and I wish to make it as clear as I can that I am in no way critical of those who advised the judge and considered the question as to whether or not the father should be informed.  It is a difficult humanitarian decision and, as I have already indicated, the judge was acting for the best of motives when he made the order he did.  But I am equally satisfied that he should not have made those orders and that they should be discharged.  This is a matter for the mother and her husband to deal with and it must be left to them.  
25.	I would therefore allow the appeal.  
26.	LORD JUSTICE SCOTT BAKER:  I agree.  The judge's order will be discharged, therefore, insofar as it relates to the subject matter of the appeal, and we iterate the observation about nothing being published that could identify the child.  
 (Appeal allowed; the parties' publicly funded costs to be the subject of a detailed assessment).