The Honourable Mr Justice Akenhead:
Introduction and Factual Background
- Mr Hinds is the Claimant in these proceedings. He is the father of three children who I will call RH (born on 17 January 1998 and now aged 10), RQ (born on 23 June 1999, aged 8), and RM (born 13 July 2001 and aged 6). The mother of these three children is Sonia Graham from whom Mr Hinds separated some years ago. Ms Graham is also the mother of some other children born to various fathers prior to her relationship with Mr Hinds.
- Over the years, Mr Hinds' three children (by Ms Graham) have been the subject of care proceedings. In the case of RH and RQ, they have been adopted. Since about 2003, RM has been the subject matter of one or more care orders. Mr Justice Ryder in the Family Division of the High Court is seised of that matter and will be hearing what I have been told will involve a final disposal of all matters relating to RM at the end of April 2008. Nothing I say in these proceedings should be taken as involving any interference in those Family Court proceedings. Certainly none is intended.
- There have been various hearings before various judges since 1999:
(a) 13 April 1999, before HHJ Downey (now deceased) at which she addressed the question of care orders in respect of, amongst other children, RH. Apparently, RH, and the other children, had been the subject of Interim Care Orders since 25 August 1998. Mr Hinds was present and represented by Counsel. He and Ms Graham had jointly instructed a Clinical and Forensic Psychologist, Dr Bryan Tully (the Fifth Defendant in these proceedings) to give an Opinion to the Court as to the personalities of Ms Graham and Mr Hinds. Dr Tully's report of 25 March 1999 was in its conclusion not favourable to Mr Hinds. HHJ Downey reviewed the evidence before her, including Dr Tully's report (he not being called), and decided that a final care order was the proper disposal for all the children including RH. There was no appeal.
(b) November 1999, before HHJ Downey when she dealt with a care order in respect of RQ, who had apparently been under an Emergency Protection Order from shortly after she was born. Mr Hinds was again legally represented and is recorded as being present on one of the hearing days. The judge approved the local authority and made a care order in respect of RQ. There was no appeal.
(c) 6 March 2001, again before HHJ Downey when Mr Hinds and Ms Graham applied for an order to discharge the care orders which had been made in relation to RH and RQ. He was represented by Counsel. He did not attend the hearing because apparently he had a job interview; the judge turned down an application for an adjournment. Two psychological assessments are recorded in the judgment as having been before the Court, one from Dr Tully dated 12 December 2000 and the other from a psychiatrist Mr Bellamy (whose report has not been put before me). The judge records that neither consultant's report was favourable to Mr Hinds. She reviewed some allegations of violence made against Mr Hinds. She effectively rejected the applications: she formed the view that the best prospects for the future of the two children lay in their being adopted. There was no appeal.
(d) 9 December 2002, before HHJ Daley at which she addressed an application by Ms Graham to discharge the care orders in respect of RH and RQ or to allow contact and adoption proceedings. Mr Hinds is recorded as not making the applications himself but as being dealt with as if he was a respondent to the proceedings; he gave evidence and attended the hearing. By this time Ms Graham and Mr Hinds had parted finally. In a full judgment, the judge dismissed the applications by Ms Graham and Mr Hinds requesting that the proceedings be adjourned. There was no appeal.
(e) 14 January 2003, before HHJ Daley at which she made or continued a care order in respect of RM and issued an anti-molestation injunction against Mr Hinds. Mr Hinds had been represented by Counsel but had himself left the hearing in an apparently agitated state. The judgment is substantial. The judge, however, allowed RM to be placed with his mother, Ms Graham. There was no appeal.
(f) 25 September 2006, before HHJ Daley, when she had to deal with a new development in the context of an application by Ms Graham to discharge the care order in relation to RM. Ms Graham was represented but Mr Hinds was not, having not been notified apparently of the application or the hearing. Ms Graham did not attend this hearing. She had been charged with possession of Class A drugs with intent to supply. The judge dismissed Ms Graham's application.
(g) 30 November 2006, before HHJ Wilkinson, when he had to address some of the difficulties created for RM by the fact that his mother had received a prison sentence for the drugs offence. Ms Allen, of CAFCASS (the Third Defendant) was appointed the child's Guardian; RM was now in care.
I should point out that the first and third of these judgments involved the Wirral Borough Council which is not a party to these proceedings. It is likely that the second judgment, although headed as involving the Liverpool City Council (the Second Defendants in these proceedings), involved the Wirral Borough Council.
- Since then, Mr Hinds has become aware of Ms Graham's application for contact in relation to RM and is being copied in and served with relevant court papers. Those proceedings have apparently joined with proceedings in front of Mr Justice Ryder who first became involved in January 2007.
- Mr Hinds commenced these current proceedings originally in the Manchester County Court on 23 April 2007 but on 19 November 2007 they were transferred to the Queen's Bench Division of the High Court, by order of District Judge Rawkins.
These proceedings
- Mr Hinds' Claim form consists of some prose and various attachments. These have been amplified by various other documents, served by Mr Hinds as this matter has gone on. I ordered on 18 February 2008 at what was in effect a kind of Pre-Trial Review that five statements which had been served pursuant to the order of District Judge Rawkins should be treated as part of the Claimant's pleaded case solely for the purposes of the Defendants' applications to strike out and for summary judgment. I made that order to ensure that all Mr Hinds' real complaints could be addressed in the application rather than address only some. If I decide that any part of those complaints is reasonably arguable or has some realistic prospects of success, he might have to apply to amend his Claim. If I decide that he has no such prospects, the judgment will then have addressed all his complaints and that will or should be an end of the matter.
- Mr Hinds' complaints stem from a deep-seated and longstanding dissatisfaction with various authorities and individuals who he feels have let him down and breached his Human Rights with the result that he has been deprived of his three children over the last ten years or so. I do not intend to do more than summarise what Mr Hinds' complaints are against the five Defendants:
(a) First Defendant: the Liverpool County Court is the court which handled the care and adoption matters between 1999 and September 2006. The complaints are essentially that he has one or more causes of action arising out of the way in which the Liverpool County Court, judges and court staff, have behaved towards him, in that decisions have been taken (so he contends):
(i) unsupported by any or reliable evidence;
(ii) contrary to the Children's Act 1989;
(iii) contrary to Articles 3, 6, 8,13 and 14 of the European Convention of Human Rights ("ECHR");
(iv) based upon bias, prejudice, and racial and sexual discrimination;
(v) without him being served;
(vi) in breach of an inter-agency agreement;
(vii) which slander Mr Hinds; and
(viii) which are otherwise disproportionate, wrong and unlawful.
(b) Second Defendant: The Liverpool City Council is the council which had responsibilities under the Children Act and associated statutes and which brought these matters to the court on a number of occasions. It is said by Mr Hinds that they acted:
(i) in breach of Articles 3, 6, 8, 13 and 14 of the ECHR for instance by failing or refusing to make an assessment of Mr Hinds as a parent for one or more of his children or failing to notify him of what was happening to his children, particularly RM or to involve him in the process of child care and control or by allowing RM to be open to persistent inhumane and degrading treatment by leaving him with his mother over a period of years.
(ii) negligently in and about their conduct of the various care and adoption proceedings in:
(a) failing to disclose various matters to the Claimant;
(b) failing to ascertain the Claimant's views from time to time;
(c) seeking or going along with the anti-molestation order made against him;
(d) leaving RM in the care of Ms Graham when it should have known of the unsuitability of Ms Graham;
(e) allowing RM to be moved with Ms Graham from Liverpool to Manchester;
(f) failing to contact him, when he was in Lewisham, or Lewisham Borough Council when making plans for what was to happen to RM;
(h) withholding information from the Courts as from 2005 onwards;
(i) allowing RM from February 2003 to suffer prolonged emotional abuse;
(j) failing to inform the Claimant that RM was taken in to residential care following the mother's imprisonment for drug dealing;
(k) routinely denying the Claimant access to RM:
(iii) slandering or otherwise defaming the Claimant possibly from 1999 to 2006.
(c) Third Defendant: CAFCASS is an acronym of the Child and Family Court Advisory and Support Services. Ms Josephine Allen of CAFCASS was appointed by the Court to conduct enquiries for the purposes of preparing reports in the various care proceedings for each of the Claimant's children by Ms Graham. Mr Hinds claims that CAFCASS acted:
(i) negligently in
(a) formulating her reports for the various courts;
(b) wilfully misleading the Courts;
(c) disregarding various pieces of information;
(d) reaching conclusions which were adverse to the Claimant;
(e) not protecting the interest and welfare of RM;
(ii) by Ms Allen, criminally in committing perjury or acting corruptly in the various sets of proceedings or perverting the course of justice;
(iii) as a public authority, in breach of Articles 3, 6, 8 and 13 of the ECHR.
(d) Fourth Defendant: as the Police Force for the area in which Ms Graham and RM lived, having entered her premises on 1 March 2006, found Class A drugs and arrested her, Mr Hinds complains that it was negligent of the Fourth Defendant to allow her to return to her dwelling and permit her to continue to live there with RM without informing the relevant authorities about the detrimental effect of the boy living in such a detrimental situation. This continued until late September 2006 when the child was removed from her care. It is also argued that it was a breach of Articles 3, 8 and 13 of the ECHR. Mr Hinds argues that he is claiming these remedies on behalf of RM.
(e)Fifth Defendant: Dr Tully was the expert Psychologist who provided reports to the Courts in 1999 and 2001 in relation to proceedings in connection with care orders for RH and RQ. Although Mr Hinds claims that Dr Tully was guilty of "gross acts of misconduct" and "victimisation", on analysis the complaint is one that he was negligent. He also complains that Dr Tully can be sued for breaches of Articles 6, 8, 13 and 14 of the ECHR. All these complaints arise out of Dr Tully's reports for the Court in 1999 and 2001 which cast doubts on Mr Hinds' competence or suitability as an active parent. There is also possibly a claim of defamation.
The Defendants' grounds for seeking to strike out
- The Defendants each deny the charges or complaints made by Mr Hinds but they each accept that, for the purposes of their applications, they must accept Mr Hinds' complaints as if they were true. Each defendant accepts that it is arguable that, if the Human Rights Act claims are arguable, Mr Hinds is arguably a "victim". I will address in detail each of the grounds in dealing with each of the Defendants' applications. Suffice it to say, there are various common themes:
(a) if criminal acts have been committed, they do not in themselves give rise to a cause of action by Mr Hinds;
(b) the giving of evidence to or for the Court is protected by immunity;
(c) Mr Hinds should not be permitted to complain about the various court proceedings as he has had the opportunity and is still exercising that opportunity to have his grievances aired and, bar the current family court proceedings, he failed and did not appeal.
(d) many of the claims are time-barred.
In so far as I rule that all or any of Mr Hinds' claims under the Human Rights legislation arguably arise and are prima facie time-barred, it is agreed by all parties that the Court will have to address any application for leave to extend time separately and at a later stage.
Decision
- Although I have some sympathy for Mr Hinds who has been deprived to date of the company and care of his three children, RH, RQ and RM, and although he argued his case well, rationally and politely, I have decided that all Mr Hinds' claims will fail and his Claim should be struck out. I do not do so on the basis argued by all defendants that Mr Hinds' pleadings are inadequately particularised because, although they are pleaded at unnecessary length and in a wholly unconventional manner, it is possible to discern what he is saying.
The First Defendant
- A number of arguments are advanced by the First Defendant with two proviso-type points. The first is that there is no such entity in law as the Liverpool County Court. Judges, circuit, county and district dealing with all types of civil work, including family law matters, sit in the building known as the Liverpool County Court but it is not an entity in itself. The Court Service of the Ministry of Justice, I presume, owns and occupies the building and, directly or indirectly, employs the judges and staff. The second proviso is that the proceedings have not been served in accordance with the requisite legal requirements on the Ministry of Justice.
- I am satisfied that those two proviso points are well made out and I do not believe are seriously challenged by Mr Hinds. He does argue however that the District Registry should have told him about whether the First Defendant was the right party to sue; that can not be a good point; it is up to a litigant whom he or she sues. I made it clear in argument that, if Mr Hinds wished to amend his claim to sue the Ministry of Justice, I would entertain an application to that effect. No such application was made. I would have been reasonably sympathetic to such an application given that in reality the Claim was sent to the Ministry of Justice, if not formally served upon it; the Ministry instructed the Treasury Solicitor who instructed experienced Counsel to appear before me to argue why the case should be struck out on grounds which go substantially further than the two proviso points. I put it to Mr Holloway for the First Defendant that, if he was right on the two proviso points, and there was no application to amend the name, that would be the end of the matter and I would not have to rule on the remainder of the grounds relied upon. He accepted that I should rule upon all the other grounds and indeed I understood that Mr Hinds requested me to rule upon all grounds. I accept that and will proceed accordingly. If all grounds other than these two proviso arguments failed, as I have said, I would have been sympathetic to allowing permission to amend and leave to serve short so as to permit all the arguments to be fully aired.
- There is criticism about inadequate particularisation of the Claim form. I consider that that is not wholly fair. I bear in mind that this is a litigant in person and that he has complied with the orders of the District Judge in serving five further statements. Together, these statements and the Claim and the attachments make it reasonably clear what his case is against each defendant, albeit it is prolix and not pleaded in a conventional manner.
- The First Defendant primarily argues that the decisions of judges, here HHJs Downey and Daley, are not challengeable at least in this case under the common law or under the Human Rights legislation. I agree. At common law, a judge (or his or her employer) could not and can not be sued for acts done within his or her jurisdiction even if there was bias, malice or corruption on behalf of the judge (see e.g. Sirros v Moore [1975] 1 QB 118, 132, 136, 139-141):
"No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to the Court of Appeal…[or to apply for judicial review] or take some such step to reverse his ruling."(Lord Denning page 132)
This rule of public policy can be justified on a number of grounds including:
(i) judges in this country are chosen on the basis, amongst others, of their integrity;
(ii) judges should be permitted to act, in their capacity as judges, without fear of being sued for their judicial acts; an apprehension or fear that he or she might be sued could itself give rise to assertions of bias; the independence of the judiciary is vital in the administration of justice;
(iii) there is an appeal process which allows wrong, unfair or biased decisions to be overturned; that process is tried and tested. Whilst no court process can guarantee perfection in every case, serious injustice is almost always put right on appeal. In appropriate cases, new evidence can be put before the appellate court and indeed first instance decisions can be reviewed and set aside on the basis of new evidence;
(iv) statistically, there are exceptionally few (if any) reported cases of judges behaving with malice or in a corrupt manner. Such cases as there are of judges behaving unfairly are those where invariably the appellate courts have found this to have occurred and the unfairness is addressed on appeal.
(v) there are disciplinary procedures for judges who misbehave in one way or another, albeit that few judges have had charges established against them.
- Section 2(5) of the Crown Proceedings Act 1947 underpins the common law immunity of judges:
"No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of the judicial process."
As the expression "judicial process" has been broadly interpreted (see Quinland v Governor of Swaleside Prison [2002] EWCA Civ 174), and given the wording of Section 2(5), statute does not permit proceedings to be brought against the Crown for or in respect of even a "bad" decision of a judge acting, as in this case, within her jurisdiction or purportedly within it.
- Mr Hinds does not (on analysis or otherwise) suggest that the two judges in question acted outside their jurisdiction or behaved in a corrupt way. He believes, however, very firmly that they were wrong and came to conclusions which, he argues, no reasonable fair minded judge could or should have reached. I have no hesitation in finding that, even if he is right in such belief, that factor does not found any claim against those judges or their employer, in effect the Ministry of Justice: the judges were acting within their jurisdiction and even if wrong, unfair, careless, negligent, malicious or corrupt, they, their conduct or decisions or their employer are not liable and are not impugnable. I hasten to say that I have seen nothing which suggests that they acted in any such way.
- Mr Hinds feels that the judges jumped to conclusions which were unfair to him in deciding in effect that he was not a suitable parent at least in the 1999-2001 period. One must analyse logically what the judges did in broad terms:
Either (a) they decided the cases correctly on the evidence before them;
` or b) they decided the cases incorrectly on the evidence before them.
If (a) applies, Mr Hinds can have no complaint. If (b) applies, then Mr Hinds could have sought to appeal. In this latter case, if Mr Hinds believed, as he clearly does, that the findings suggesting that he was prone to violence were not only unfair but also wrong, he could and should have appealed. I see no reason to believe that the appellate courts would not have been interested in allowing an appeal which was obviously wrongly based upon findings of a violent nature which were simply without foundation or based upon obviously unreliable evidence or had been made maliciously or unfairly by the judges.
- I now turn to the Human Rights Act 1998. The relevant sections are:
"6 (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right…
(3) in this section 'public authority' includes-
(a) a court or tribunal, and
(b) any person certain of whose functions are of a public nature.
7 (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may bring proceedings under this Act in the appropriate court or tribunal,
…
but only if he is (or would be) a victim of the unlawful act.
9. Proceedings under section 7(1) (a) in respect of a judicial act may be brought only-
(1)(a) by exercising a right of appeal;
(b) on any application for judicial review;
(c) in such other forum as may be prescribed by the rules.
(2) That does not affect any rule of law which prevents a court from being the subject of judicial review.
(3) In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.
(4) An award of damages permitted by subsection (3) is to be made against the Crown, but no award may be made unless the appropriate person , if not a party to the proceedings, is joined.
(5) In this section-
"appropriate person" means the Minister responsible for the court concerned, or a person or government department nominated by him
"court" includes a tribunal
"judge" includes a member of a tribunal, a justice of the peace and a clerk or other officer entitled to exercise the jurisdiction of a court
and "rules" has the same meaning as in section 7(9)."
- I do not see that these provisions add anything to the common law, at least of any significance in the context of this case. The immunity granted by the common law to judges is preserved in effect, at the very least with regard to acts done within jurisdiction. There is support for this view in FM v Sir Jan Peter Singer and others [2004] EWHC 793. The problem with care cases must often be that one of the, or sometimes both, parents will be dissatisfied with the Court's decision. The Court will make decisions which are, or purport to be, made on the facts as found or perceived by the judge who broadly regards the interests and wellbeing of the child in question as paramount. As the primary tribunal addressing the facts, the Court acting within its jurisdiction and effecting a fair trial cannot in effect itself be sued even if for any reason it has done its job badly or wrongly. This immunity does not offend the ECHR itself or give rise to a claim under the Human Rights Act 1998. I would doubt for instance if any claim could be made against judges of the European Court of Human Rights at least to the extent that they act within their jurisdiction.
- There can be no doubt here that the two judges in question were acting within their jurisdiction and purporting to do so. The fact that a judge "gets it wrong" or relies upon evidence that he or she should not have done does not in itself give rise to any claim under the Human Rights Act.
- One needs to examine the individual Articles of the ECHR to ascertain whether there is a breach. I will do that now:
(a) Article 3: I do not begin to see how it can be said that Mr Hinds or even his children have been subjected to "torture or inhuman or degrading treatment or punishment".
(b) Article 6: I do not see how it can properly be argued that there were unfair trials in 1999-2003. In each case, it was clear what was to be addressed by the Court. Mr Hinds was present and indeed represented. He was not denied the opportunity of challenging any of the evidence or argument or indeed of submitting any evidence. He had the right to seek to appeal (although he did not avail himself of that right). The rules of natural justice seem to have been followed.
(c) Article 8: this states:
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic country in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
I can see and accept that it is part of this right that a parent should be entitled in principle to the company and the care and control of his or her children. However, the children also have the Article 8 right and an abusive parent may find his or her right restricted (not that there is any suggestion that Mr Hinds was abusive towards any of his children). Children, who after due process are shown to be at risk being under the care and control of a parent, are entitled to the Article 8(1) right to be protected from that risk. One must read both parts of this Article together. On analysis in this case:
(i)Although it could be said that the family courts "interfered" in a broad sense with Mr Hinds' Article 8(1) right, that "interference" was in accordance with the law of England and Wales in that care and later adoption proceedings were duly initiated and a fair trial effected.
(ii) Assuming that the word "and" before the words "is necessary" is to be treated as conjunctive, it can be apprehended that in effect the Family Courts have acted as they considered necessary for the protection of the rights and freedoms of the children.
(iii) There must be an element of proportionality in how many courts have to consider whether the family courts "got it right". In that sense, if there have been fair trials in the earlier care and adoption proceedings and Mr Hinds chose not to appeal those earlier judgments, it must be a rare case that there can still properly be argued the proposition that there have been breaches of Article 8 of the type which Mr Hinds seeks to argue there were.
(iv) I do not accept that this is such a rare case. There was in every case a full hearing with all parties being heard and being given the opportunity of presenting and challenge evidence and arguments. Mr Hinds had the right to seek to appeal decisions which he now says contravened his human rights but chose not to do so.
(d) Article 13: I do not consider that Mr Hinds has had a Convention right violated. Even if he has had, he has had an effective remedy for all the decisions reached which was by way of appeal which is a remedy which he has chosen not to pursue.
(e) Article 14: Mr Hinds does seek to argue that his Article 14 rights not to be discriminated against on the grounds of colour and of sex were breached because (he says) the judges discriminated against him on the grounds that he was black and male. Search though I have done, I can see nothing in the evidence put before me that there was any such discrimination. Whilst it is true that there are references in the judgments to the fact that the children are black (see for example the 14th page of HHJ Downey's judgment of 13 April 1999), that was in the context of meeting the cultural needs of the children; for instance, HHJ Downey thought that "one black foster parent would be the ideal". It seems to me that this, whether the right view or not, is not discriminatory either against the children or the parents: it is directed, obviously, towards finding the most suitable solution for particular children being put into care. Similarly, Mr Hinds believes that, because HHJ Daley expressed some sympathy for Ms Graham at her sense of loss (of her children) (see page 19 of her judgement of 9 December 2002), she discriminated against him because he was male; I simply do not see how the failure to express sympathy for Mr Hinds can be said to be discriminatory against him; it is hardly surprising that she did not express sympathy for him as, although he was represented and gave evidence at the hearing, he made no application.
- Much of Mr Hinds' complaints relates to the various courts being misled by for instance the CAFCASS Guardian or Dr Tully. The First Defendant, if it is true they were so misled, can not therefore be criticised. This is particularly so given that Mr Hinds was represented and could and did challenge the evidence and assertions made by such individuals.
- I conclude that there is no demonstrable breach of the ECHR. Thus, even if the First Defendant or the Ministry did not have immunity, there is on analysis no case for violation of the ECHR.
- The First Defendant also seeks to argue that this claim is an abuse of process to the extent that it relates to RM because it overlaps with the parallel Family proceedings. I do not have to decide this issue because it should be obvious from my judgment above that these proceedings can not be permitted to continue against the First Defendant (or the Ministry of Justice). Procedural irregularities in the proceedings now before Mr Justice Ryder or breaches of the ECHR germane to those proceedings, if any, can be considered in those proceedings and put right as necessary. Assertions that, in 2007, Mr Hinds was not served promptly with court papers or is still having papers "wilfully" withheld can be considered as necessary by Mr Justice Ryder. I am not sure that Mr Hinds is seeking in practice to argue against the First Defendant in this case matters which are the subject matter of the current Family Court proceedings.
- Although, as I have said before, I have some sympathy for Mr Hinds (as I would for any parent of either sex) in the loss of his first two children to care and then to adoption and the taking into care of RM, I have no doubt that these proceedings are bound to fail for the reasons given above and should be struck out. In essence, Mr Hinds seeks now to challenge legal decisions in proceedings, in which he has participated over the years, as being wrong and unsound to the extent that there were findings which prevented him from securing access to and custody of his children: he thinks that those decisions were unfair. However, he never sought to appeal those decisions, even if they were wrong. Those decisions were made by judges clearly acting within their jurisdiction and they and their employer are immune from proceedings. There are no properly pleaded grounds for establishing breaches of the ECHR.
The Second Defendant
- Much of the complaint against the Second Defendant relates to acts or omissions of Wirral Borough Council ("Wirral") and on that basis and to that extent the Second Defendant can not be liable for the events leading to the first and third and probably the second judgments. It would not be possible for this Court to make any findings for or against Wirral, which is not a party to these proceedings.
- It is certainly the case (and it is admitted) that the Second Defendant is a public authority for the purposes of Sections 6-9 of the Human Rights Act 1998. In the "Freestanding Ss7 and Ss8 Proceedings" document attached to his Claim, Mr Hinds concentrates on two complaints against the Second Defendant, neither of which is remotely justified on the facts as presented by Mr Hinds:
(a) He says that the Second Defendant acted without factually tested evidence. However, the evidence was all tested in sets of proceedings from 1999 to 2003, during which he or his counsel sought to test the evidence
.
(b) He argues that he was never sufficiently involved in the decision making process with respect to any of his three children. There is nothing in this document in this respect which identifies criticisms with any particularity about the Second Defendant's failures: he criticises two employees of Wirral, Ms Smallwood and Mr Ball. He says in effect that the Second Defendant unjustifiably relied upon the evidence of Dr Tully which was "manipulated". There is no particularisation of this manipulation and no assertion of conspiracy on the part of the Second Defendant. It can properly be said that the Second Defendant would have acted wrongfully if it had ignored the reports of Dr Tully. In any event, the Second Defendant brought the cases before the Courts from time to time at which stage the evidence was and could be tested.
- In his statement against the Second Defendant, criticism is made of it for never allowing him access to his first two children. It seems to have taken over from Wirral responsibility for Mr Hinds' first two children in early 2001. It was represented at the hearing before HHJ Downey on 6 March 2001 albeit that Wirral was the Applicant authority in those proceedings. The Second Defendant was bound by the Court's orders.
- It is difficult to discern from his statement precisely what he is alleging against the Second Defendant. Criticisms are made that it did not involve him in the decision making process about his children and that it placed too much reliance upon the evidence for and findings in the earlier proceedings. The Second Defendant was bound by the decisions of the Court. However, at material stages, matters were brought back before the courts by or with the support of the Second Defendant for care or adoption orders. Mr Hinds was often present and always represented at those proceedings. It was the Courts which made the interim and final decisions about the first two children and the interim decisions about the third and Mr Hinds was a party to all those proceedings, except, initially, the final set of proceedings which are now proceeding to a final hearing before Mr Justice Ryder, with Mr Hinds now very much "on board".
- Mr Hinds says that, whilst Ms Graham was further assessed at the instigation of the Second Defendant in 2002, he was not. However, he was represented at the next hearing in December 2002 and January 2003. At the first of these, as the judgment records (at Paragraph 7(a)) he applied for an adjournment so that the court could consider the parenting assessment which he and his partner were undertaking. That application was turned down on apparently or arguably good grounds that the needs of the two older children were such that decisions had to be made promptly; the judge thought that, even if the impending assessment was positive, uprooting the children from their present placement would expose the children "to the risk of serious and long term damage". She decided that these children "needed and have needed for some time permanence, stability, and a forever placement not open to further litigation, not liable to be undermined in any way" (Paragraph 13(a)). That decision in logic may have been right or wrong but it was made by the Court and was binding on the Second Defendant. Similarly he argues that the Second Defendant in some way procured or went along with an anti molestation order against him. Again, it was the Court within its jurisdiction, whether rightly or wrongly, which made the order and the Second Defendant had to be aware of it. It is difficult to see how a party can be liable, as such, in any way for seeking openly an order of the court, to the party against whom that order is sought when that party is present or represented in that same court. It was always open to Mr Hinds to seek to vary or discharge that order but he chose not to do so.
- Mr Hinds also argues that information about the unsuitability of Ms Graham to look after RM was withheld in 2002 from the Claimant by amongst others the Second Defendant. That seems inherently unlikely because Mr Hinds accepts that it was disclosed to HHJ Daley during the hearing which culminated in the judgment in December 2002.
- There is then a list of complaints that the Second Defendant did not react to reports about what I will call poor behaviour on the part of Ms Graham when she was looking after RM from 2003 to 2006 and that it did not involve him in the process of reviewing RM's future. This period is complicated by the fact that, although Mr Hinds was granted by the Second Defendant contact with RM on 6 August 2002 and he saw his son, apparently, on six occasions up to mid-November 2002, thereafter, he decided not to have contact until about August or September 2003. Between March and October 2004, Mr Hinds accepts that the Second Defendant did not know of his whereabouts as he was abroad.
- The complaint that the Second Defendant did not report to Mr Hinds the poor behaviour of Ms Graham does not obviously give rise to a justifiable complaint by Mr Hinds. The judges unanimously and consistently had in effect ruled that the three children should be taken into care because of what I will loosely call doubts about Mr Hinds' and Ms Graham's suitability as parents. Mr Hinds had decided not to maintain any contact with RM for a significant period and the Second Defendant was, even on Mr Hinds' evidence, keeping a close eye on Ms Graham. If there is a complaint, it would be by RM to the effect that he should have been taken away from his mother; such a complaint would be surprising albeit possible.
- There is a little more substance to Mr Hinds' complaint that the Second Defendant did not take sufficient efforts to contact him in effect between about October 2004 and late 2006 to involve him in decisions or proposals about RQ. I make no factual findings about what did or did not happen in this period. There are requirements in the Children Act 1989 which required the Second Defendant to ascertain the views of the parents before making relevant decisions about a "looked after" child such as RQ. However, Mr Hinds did not himself inform the Second Defendant contrary to Schedule II of the Children Act 1989 Part 1 Paragraph 15(2)(b) of his address. It appears that, by sometime in 2004 or possibly before, Mr Hinds and his partner started to live in the London Borough of Lewisham; it seems that they began to be assessed for parenting purposes by that Council and contact was apparently made, on possibly two occasions, between it and a Mr "Bore" of the Second Defendant as to whether there was any relevant information about the two of them.
- What seems extraordinary factually (but I make no moral comment about it) is that Mr Hinds did not himself get in touch with the Second Defendant about RM or apparently at all between about November 2002 and some four years later. I base this only on what Mr Hinds says in his statement. I find it impossible to see that Mr Hinds' rights under Article 8 were violated by the Second Defendant in these circumstances. I do not consider that the part of the Children Act referred to above offends against the ECHR. If a parent remains interested in parenting his children in some way, but does not provide his contact details to the relevant local authority caring for his child, there is no failure on the part of the local authority under Article 8 at least in a case such as this.
- There is no cause of action against the Second Defendant in negligence available to Mr Hinds as, even if there is a duty of care, he has, as he frankly told me, suffered no injury of any sort himself. He can not and does not as such sue on behalf of RM at least at this stage; if RM has been so carelessly supervised by the Second Defendant that he has suffered or will suffer recognisable injury, he, on majority or a representative on his behalf before then, can seek to sue. I make no finding that there is or will be a cause of action then.
The Third Defendant
- The Third Defendant is a non-departmental government body. Its Counsel accepted that it was at least arguable that it was a public body for the purposes of this application. It essentially argues that it has the protection of witness immunity and that allegations made by Ms Allen in the course of those proceedings do not give rise to any duty of care or to any other cause of action.
- It has long been established in English law that broadly witnesses are immune from civil suit for evidence given in court. Kelly CB stated in Dawkins v Lord Rokeby (1872-3) LR 8 QB 255:
"no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or proper cause, in the ordinary course of proceedings in a court of justice" (page 264)
This approach can be justified on public policy grounds upon a number of bases. First, witnesses should be free of fear of being sued when giving evidence. Secondly, there is a public interest in ensuring that proceedings are not duplicated and that a second set of proceedings does not undermine the earlier proceedings. Thirdly, there are legal or procedural sanctions or solutions such as criminal charges for witnesses who lie or appeals in the first set of proceedings. There must be finality in proceedings. The rule of witness immunity was said by 1905 to be "too well established now to be shaken" (see Lord Halsbury LC in Watson v McEwan [1905] AC 480). This has been reiterated in numerous other cases of which Roy v Prior 1971 AC 470, Darker v Chief Constable of the West Midlands [2001] 1 AC 453 and Paimano v Raiss [2001] 1 Lloyd's Rep PN 341 are examples. The rule extends necessarily to experts and the immunity will extend to anything said in court and to the contents of their reports (per Chadwick LJ in Stanton v Callaghan [2000] QB 75). Lord Hope in the Darker case put the matter succinctly albeit in the context of a police officer at page 445H:
"…when a police officer comes to court to give evidence he has the benefit of absolute immunity. This immunity, which is regarded as necessary in the interests of justice and is granted to him as a matter of public policy, is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceeding in a court of justice. The same immunity is given to the parties, their advocates, jurors and judge…The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the ground of negligence."
- It is necessary to consider here, as in the Darker case, where the immunity stops and starts. By analogy with that case, a distinction needs to be made between the part of the process necessary for the giving of evidence such as the preparation of a witness statement for provision to the court (where immunity arises) and other aspects of the witness's involvement which are unrelated to that exercise (where immunity does not arise). So far as I can ascertain from Mr Hinds' written and oral representations, he only alleges against her allegations based upon what she said or reported to the Court.
- Even if there was provable perjury in the first set of proceedings, no cause of action arises in civil proceedings (see e.g. Hargreaves v Bretherton [1958] 1 QB 45). The sanction is a criminal one, which it is not open generally for an individual to bring about.
- I therefore conclude that, as it is clear that CAFCASS was called in and in effect appointed by the Court to report to it as to what was the appropriate course for the two older children, it is immune from suit even if what its representative said to or for use by the Court was wrong, negligent, defamatory, perjured or involved a breach of the ECHR (about which I need make no finding). I do not consider that this immunity from suit in some way offends against the ECHR itself or the Human Rights legislation. It can not be offensive for a person on behalf of herself (Ms Allen in this case) or the organisation for whom she works to feel that they can give their evidence to the Court in the certainty that they will not be sued for the content of that evidence. Doing the best that I can upon the written information from Mr Hinds, his complaints against CAFCASS in general and Ms Allen in particular relate to what she said or did not say to the Court. Thus, immunity applies to protect CAFCASS from being sued in respect of that involvement.
- I do not consider that Ms Allen or her employer CAFCASS owed a duty of care to Mr Hinds or that any damage for the purposes of the tort of negligence has been established. By analogy with child abuse cases, for instance JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373, I consider that CAFCASS employees who carry out their duties in good faith but carelessly should not owe or have to owe a duty of care to people in Mr Hinds' position. The rationale in that case is directly applicable here: an organisation such as CAFCASS should be able to perform its duties, primarily owed to the Court, without fear of action. It should not have to owe to the parents of the child a duty of care. Its job will often be a difficult one, involving commenting upon the suitability of one or both parents and its primary duty will be to the Court and the child; if it was threatened with a suit every time that it recommended that a child should live temporarily or permanently apart from one or other or both parents, it would not be able to do its job properly. A duty of care is further not owed by the giver of evidence in court; the public policy reason is witness immunity.
- Another good reason why there should be no duty of care owed by CAFCASS in this case is that Mr Hinds was a party to and represented in those proceedings at which Ms Allen's reports and evidence was received. Her views were challengeable in those proceedings and indeed to a significant extent seem to have been challenged. That was the right forum in which to challenge that evidence. It must be contrary to public policy for a duty of care to arise in circumstances where the potential wrong is capable of being challenged and avoided by way of the court proceedings to which the relevant evidence relates. It is certainly not fair or reasonable for a duty of care to arise in those circumstances.
- Mr Hinds confirmed openly to the Court that he was not claiming that he had suffered any physical or psychological injury. In that case, even if there was a duty of care owed in tort by CAFCASS to him, there is no concluded negligence as there is no relevant damage for the purposes of the tort.
The Fourth Defendant
- Certain facts are admitted by the Fourth Defendant:
(a) on 1 March 2006, a search warrant issued on 11 February 2006 was executed at 17, Barry Lawson Close, Cheetham Hill, Manchester;
(b) this warrant had been applied for as a result of observations carried out by the Fourth Defendant's officers in "Operation Quarterback";
(c) it was known when the warrant was applied for that Ms Graham and RM would be on the premises;
(d) the search revealed £700 and a considerable quantity of Class A drugs (later found to be heroin and crack cocaine);
(e) Ms Graham was arrested and at the time of her arrest she was permitted to arrange for RM to be looked after by a friend;
(f) the police carried out no further action at the time in relation to the child.
It also appears that, if they had thought about it at the time, when Ms Graham was bailed on about 2 March 2006 she was foreseeably likely to return home and resume living with RM.
- So far as any cause of action in negligence is concerned, Mr Hinds wholly honestly confirmed to the Court that he has suffered no injury, psychological or otherwise. Even if there is a duty of care owed by the Fourth Defendant, there is no concluded negligence as injury is a constituent element of the tort of negligence. The claim must fail at least on that basis.
- Next, Mr Hinds claims in effect on behalf of his son, RM. The claim is not pleaded as such on that basis by Mr Hinds and it is not issued on behalf of RM. Mr Hinds accepts that he does not and never has had the care, guardianship, control or custody of RM. As such, he can not now sue on behalf of RM. Theoretically, if he does secure in the future in some way the care, guardianship, control and custody of RM, and if RM had suffered or will suffer something which can properly be described as an injury as the result of some actionable breach of duty by anyone owed to him, an action can be brought at any time up to his majority on his behalf or by him even thereafter. Any claim by Mr Hinds purportedly on behalf of RM must fail at least at this stage
- In so far as Mr Hinds argues that the Fourth Defendant breached Sections 26 to 30 of the Children Act 1989, these Sections only apply to a local authority: the Fourth Defendant is not a local authority and no cause of action lies against it on that basis.
- I do not consider that any duty of care towards Mr Hinds arises in this case. In effect, the duty is said to be owed to Mr Hinds in the context of the police allowing Ms Graham out on bail, foreseeing that she would or might continue to look after RM when they might have anticipated that, by reason of the drugs arrest, Ms Graham might be an unsuitable mother and carer of RM and without informing the relevant authority (the Second Defendant).
- Having regard to authorities such as Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 and Brookes v Commissioner of Police for the Metropolis [2005] 1 WLR 1495, a duty of care does not fall to be imposed upon the police in respect of their operational duties, except in limited circumstances. The police's principal duty is law enforcement. It is not suggested that the Fourth Defendant was doing anything other than law enforcement when it entered Ms Graham's premises and arrested her. It can not be, and indeed is not, criticised for allowing Ms Graham out on bail: the Bail Act requires bail to be granted unless relatively stringent conditions are met. There is no suggestion that Ms Graham was abusing RM as such or otherwise committing criminal offences against the boy, even if, in Mr Hinds' view, she was a less than perfect parent of RM. There is no suggestion that the police knew that she was a bad parent to RM. The fact that she had, the police believed, committed a serious crime does not mean automatically that she was a bad parent or that the police should have assumed that she was.
- In considering whether a duty of care was owed, one needs, conventionally, to have regard to the three factors of proximity, foreseeability of harm and public policy (see Caparo Industries v Dickman [1990] 2 AC 605). Given that Mr Hinds did not have the care, guardianship, control or custody of RM in 2006, I do not see how there can be said to be sufficient proximity between the Fourth Defendant and Mr Hinds; there was no physical or circumstantial proximity and there was no assumed proximity. The fact that the Fourth Defendant can be taken to have known that RM had a father does not mean that Mr Hinds was sufficiently proximate in any material sense. There was no assumed reliance by Mr Hinds on the Fourth Defendant in 2006 as he did not know until late 2006 about what had happened to Ms Graham and RM. Mr Hinds' case is very far from cases such as Swinney v Chief Constable of Northumbria [1996] 3 WLR 968, Reeves v Commissioner of Police for the Metropolis [1999] 3 WLR 363, Sutcliffe v Chief Constable of West Yorkshire [1996] RTR 86 and Costello v Chief Constable of Northumbria [1999] 1All ER 550.
- I doubt whether there could be said to be any foreseeable harm to Mr Hinds. I can see that there could be hurt feelings and upset that the police did not inform the local authority.
- I can not see any real basis on the grounds of public policy why the Fourth Defendant should owe a duty to Mr Hinds. I can see good reasons why there might be a duty on the Fourth Defendant owed to RM to be careful when physically entering Ms Graham's premises so as not physically to injure a young child whom they knew to be on the premises; I can see that a duty of care might be owed to RM by the Fourth Defendant whereby the latter should not leave a young child on his own when it has just arrested the mother and taken her into custody. There can not be said to have been a breach of such duties in this case as there was no physical injury and RM was left with an apparently reliable friend or neighbour whilst his mother went to the police station to be questioned.
- The police are not charged statutorily with child care. Whilst they will liaise with the local authorities when they know that a child needs to be cared for and the parent is, or parents are, not or are not around, that does not give rise to a need on public policy grounds for there to be a duty of care owed to the parents by the police to be pro-active with regard to childcare. It would arguably be different if they were actually aware that a parent was criminally abusing a child and did nothing. There is no such suggestion here. The fact that a parent commits a crime does not automatically mean that that parent is unsuitable to look after a child. It cannot be in the public interest that the police have to carry out some kind of risk assessment in relation to children in respect of any parent of under-age children who is arrested or that they have to inform the relevant local authority each time such a parent is arrested or suspected of having committed a crime other than abusing a child.
- I can not see in this specific case that a duty of care needs to be imposed. The Family Court was addressing the question of Ms Graham's involvement with RM even before her arrest; it had made various orders about this; the Court was supervising the interest of RM. The involvement of the Fourth Defendant was simply coincidental as it came on the scene because it believed (correctly as it turned out) that Ms Graham was dealing drugs.
- Whilst it is wholly arguable that the Fourth Defendant is a public authority, I do not accept that it is arguable that it interfered with Mr Hinds' right to a family life under Article 8 of the ECHR. At its highest, the harm arguably caused could be said to lie in the delay between about February and September 2006 in the renewed involvement of the Second Defendant. In reality, if the police had informed Mr Hinds or the Second Defendant before September 2006, the most which would have happened is that RM would have been deprived of his mother's company for longer. If Mr Hinds secures care or access rights from the Family Court proceedings in April 2008, he could argue that he has been kept out of those rights for an additional 7 months approximately (at the outside) by reason of the Fourth Defendant's alleged failure to inform the Second Defendant in or after February 2006 about the conditions in which RM was or might be living. On analysis, what Mr Hinds is saying is that the Fourth Defendant failed to bring about a situation in which he might have been able to argue somewhat earlier than will turn out to be the case that the Court should reconsider earlier decisions which it had made about his relative suitability to look after RM. The failure is not a breach of the Article 8 right but an alleged failure on the part of the Fourth Defendant to take positive action to support that right. I do not consider that any such positive duty was owed by the Fourth Defendant in circumstances where, as here, firstly, it can not be demonstrated that it had any knowledge that Mr Hinds' Article 8 rights were being or might be infringed unless it took action, secondly, child care is not as such the responsibility of the police and, thirdly, there is no actionable culpability on its part.
- I therefore conclude that the case against the Fourth Defendant is simply not arguable or sustainable and will fail.
The Fifth Defendant
Dr Tully was a witness in two of the care cases. As in the case of CAFCASS, witness immunity prevents him being sued (in civil proceedings) for negligence, defamation or perjury by Mr Hinds or anyone else. The existence of witness immunity was yet further emphasised in the case Meadow v GMC [2007] QB 462 (at Paragraphs 11 to 16 of the Master of the Rolls' judgment).
- There can be no cause of action under the Human Rights legislation against Dr Tully because he is not a public body or public authority. He was simply a witness in court proceedings. Certainly in the first set of proceedings, as Mr Hinds accepted, he was an expert actually employed by him (and possibly also Ms Graham). Thus, his involvement was the antithesis of a public appointment; it was a private and contractual one. Even if, in the second set of proceedings, he was involved at the request of CAFCASS, he was still employed in a private and non-public capacity. Mr Hinds argues that Dr Tully should be considered as a "Functional Public Authority" by which I understand him to mean a deemed public authority under the legislation. I do not accept this enterprising argument. On any count, an individual person does not become a public authority of any sort because he or she is retained to or does give evidence in a public forum like a court or is retained by a public authority or gives evidence on a matter of public interest, namely childcare. He did not perform, as such, "functions of a public nature" within the meaning of Section 6(3) of the Human Rights Act in giving evidence.
- Any case in defamation relating, as it can only do, back to 1999 and 2001 is barred by limitation. Section 4A of the Limitation Act imposes a one year limitation period on defamation actions, subject to a possible extension. Since Mr Hinds' current proceedings against Dr Tully are thus 7 and 5 years too late respectively in respect of his two reports for the defamation complaints which will be defeated by a limitation defence. There is no obvious arguable ground for extension because Mr Hinds had those reports back in 1999 and 2001, and if defamatory at all, he must have been aware of the respects in which he considers them false.
- Any cause of action in negligence would additionally fail as there is no injury to Mr Hinds. Even if there was, it would almost definitely be barred by limitation. In contract, any cause of action runs from the breaches of contract by Dr Tully (if any) which were at best respectively eight years and just over six years before the current claim was issued in April 2007. A six year limitation period applies in such cases. In the tort for negligence, a three year period generally applies for personal injuries. In that case, the limitation periods have expired even if there was injury.
- I conclude that there is no, and no realistic, prospect of Mr Hinds' claims succeeding against Dr Tully.
Limitation
- As indicated above at various places in this judgment, any cause of action in negligence by Mr Hinds is doomed to failure because there is no actual, let alone pleaded, injury advanced by him at all or relating to any of the matters complained of by him. If there was injury at the time (and if Mr Hinds was aware of it), and one is going back to 1999 (in the case of RH), 2001 (in the case of RH and RQ) and initially 2003 (for RM), any action for that is time barred generally. I can see no arguably good reason for extending such time if there was injury.
- So far as any action for defamation is concerned, Section 4A of the Limitation Act 1980 provides that a one year limitation period applies from the date when the cause of action accrues; this is subject to a possible extension. I do not consider that there has been any actionable defamation in this case but, as any alleged defamation was published or uttered some time before 12 months before the issue of proceedings in this case, that represents an added ground for striking out those allegations as being bound to fail. I can not see that there are any grounds for any extension with regard to this limitation given that Mr Hinds must have known about all or virtually all the alleged defamations for some years before April 2006.
- In so far as the ECHR complaints by Mr Hinds under Sections 6-7 of the 1998 Act relate to the period before 27 April 2006 (one year before his Claim was issued), Section 7(5) of that Act provides for a one year limitation period to apply beginning with the act complained of. Thus, the vast majority of Mr Hinds' complaints of breaches of the ECHR, if arguable at all, would be, prima facie, time barred in any event.
- I use the expression "prima facie" because Section 7 (5) (b) provides for a longer period to apply "as the court…considers suitable having regard to all the circumstances". The parties all agreed that any question of an extension of the one year limitation period under the 1998 Act should be deferred for further argument if I decided that in principle there was a properly arguable case under Section 6 of the 1998 Act.
- As I have decided that the cases against all defendants are not, or not sufficiently, arguable, I do not have to consider whether I would have granted to Mr Hinds an extension under Section 7(5)(b)
Conclusion
- Mr Hinds' case against all five defendants is struck out and dismissed. I can understand Mr Hinds' predicament at having lost contact permanently with RH and RQ and contact with RM and can sympathise. However, this Court can not permit what is in substance an attempt to re-litigate what in many respects are long past court applications which were ruled upon and not appealed by Mr Hinds. Many of the complaints seek to impugn the actions of judges and witnesses who are immune from proceedings against them for their part in adjudicating upon or giving evidence in those proceedings. Other complaints are based upon alleged breaches of the ECHR which are simply on analysis not arguable. Yet further ones are based upon negligence where duties of care do not exist or, even if in theory they do, there is concluded negligence given
