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Family Law

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10 MAY 2013

CONTACT: R v AR [2013] EWCA Crim 591

(Court of Appeal (Crim Div), McCombe LJ, Saunders J, His Honour Judge Collier QC, the Recorder of Leeds, sitting as a judge of the Court of Appeal, 1 May 2013)

The father, who had a history of paranoid schizophrenia, suffered a deterioration of his mental health and claimed to hear voices, experience hallucinations and believed that he had won the lottery. While staying with his partner at her mother's home he began to act irrationally, talking of demons and angels and going to a better place. He stabbed the 7-month-old child four times in the chest and also injured himself. The police were able to restrain him with the use of CS gas and the child received emergency surgery for life-threatening injuries.

The father was charged with attempted murder, wounding with intent and unlawful wounding but was found not guilty by reason of insanity. Extensive medical reports were obtained but formed no consensus of opinion as to the father's exact diagnosis and as to further treatment. Due to the severity of the attack it was likely that the judge would have preferred to make a hospital order but due to the evidence he was limited to a supervision order. The father was sentenced to a supervision order for 2 years under s 5 of the Criminal Procedure (Insanity) Act 1964 and made subject to a restraining order under s 5A of the Protection From Harassment Act 1997 for a period of 5 years.

The father appealed in relation to the restraining order claiming that the judge had no statutory power to impose such an order, even if the power existed the facts did not justify making the order and that the Art 8 rights of the father, as well as the persons named in the order, under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 had been infringed.

For the purposes of s 5A of the 1997 Act the special verdict found in this case equated to an acquittal. It was also clear that for an order to be made under s 5A the offence in respect of which the accused was acquitted did not need to be an offence under the 1997 Act itself.

In order to satisfy s 1 of the 1997 Act the court had to be clear that the defendant was likely to pursue a course of conduct amounting to harassment. The events in this case did not satisfy the test of s 7 which was ‘in the case of conduct in relation to a single person...conduct on at least two occasions in relation to that person; or (b) in the case of conduct in relation to two or more persons...conduct on at least one occasion in relation to each of those persons'. It followed that the appeal would be allowed and the restraining order quashed.

While not underestimating the severity of the father's actions, they were committed while the father was suffering from extreme ill-health and it could not be said that the relationship between the father and child should be cut off indefinitely without regard to the possibilities of supervised or indirect contact. The 5-year duration of the order, given the child's age, could preclude any sensible resumption of the relationship. The family court would now determine matters of welfare pursuant to the Children Act 1989 in the absence of any agreement between the mother and local authority.




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