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15 JUL 2009

CARE PROCEEDINGS: A Local Authority v A [2009] EWHC 1574 (Fam)

(Family Division; Hedley J; 3 July 2009)

The local authority began care proceedings in respect of the child, whose family originated from Pakistan and were practising Muslims. The head of the household was the maternal grandfather, who was also ? because the mother had married a first cousin ? the paternal great-uncle. When the mother returned from a holiday in Turkey spent with female relatives and the child, the mother told the authority social worker that, while away, she had had sex with three different men, on one occasion while the child was in the room, and on the other two in the presence of the mother's sister and aunt, both of whom had encouraged her. The mother's sister subsequently confirmed much of the mother's story. The mother also made a number of comments, both to the social worker and to the foster carer, suggesting gender or sexual ambivalence. The authority considered that the information was, in part, relevant to the mother's capacity to parent, but the women of the family were adamant that the male members of the family should not be told anything about the conversation, as the truth would bring 'dishonour' on the family; they expressed the fear that their safety, even their lives, would be at risk if the information were revealed. The authority applied for permission not to disclose the information to the father. The father consented on a temporary basis to disclosure of the information to his legal team without disclosure to him and an expert was instructed to do a risk assessment on the papers. However, in oral evidence the expert indicated that she could not complete the risk assessment without speaking to the father and the maternal grandfather, although she would not, of course, disclose the relevant information to them when she did so. The father's legal team argued that there was no proper basis for withholding disclosure. The local authority, supported by the mother and the guardian, sought a further adjournment to enable the expert to report. A key question for the court was whether there existed any proper evidential basis from which a risk that required assessment could be identified. Some allegations of domestic violence had been made in the case. On the other hand, notes concerning contact were critical of the father for his habitual deference to the wishes and views of the wife. The maternal grandfather had divorced the maternal grandmother for adultery. A male member of the wider family was serving a custodial sentence for domestic violence.

The issue of risk apart, this information was discloseable, being relevant to mother's capacity to parent the child and her ability to provide stability and consistency, and relevant to the father's case. There was no basis for saying that the father or the maternal grandfather would, or might reasonably be expected to, behave in the way feared. The allegations of domestic violence were untested; there was certainly no appearance of systematic violence, or any recourse to serious violence that would tend to put the court on guard and there was no wider history of domestic violence in the family that should alert the court to a propensity for serious violence. No one had suggested that the father or the maternal grandfather had colluded in or approved of the behaviour of the male family member who was currently serving a sentence for domestic violence. The head of the household, the maternal grandfather, had responded to his wife's adultery by divorcing her, not with violence. The issue, therefore, was whether the mores of the Pakistani Muslim community, and the pressure that the community might apply to the family, would, or might reasonably be expected to, give rise to a risk to the women. In the absence of evidence for a propensity for violence within the family, the fact of belonging to this particular community did not mean that a risk of the feared behaviour should be further investigated by the court, or that material, otherwise discloseable, should be further withheld; this applied not only to the adultery, but also to the issues of gender or sexual ambivalence. While disclosure might have consequences for the female family members concerned, they were not of the nature or degree that would justify non-disclosure.

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