SUTTON LONDON BOROUGH COUNCIL v (1) MH (2) RH (3) NH (2016)

The local authority applied for a care order under the Children Act 1989 Pt IV in respect of the third respondent 16-year-old boy.

The boy was born in South Africa and later moved to Canada. In 2012 he moved to Switzerland with his mother. He was sent to boarding school in Zimbabwe and later attended school in Switzerland. He suffered from mental health problems and a difficult relationship with his mother. He travelled to England and was placed in foster care under an interim care order. At the time of the hearing he was detained in a hospital under the Mental Health Act 1983. The mother wished the boy to return to South Africa or Zimbabwe and he had expressed a wish to return to Canada. The mother had been seen visiting him at the hospital and apparently encouraging him to sign papers which said he wished to stay with his family. He was assessed as not having capacity to conduct proceedings. At a previous hearing the mother’s access to the boy’s medical and police records had been restricted due to the risk that she would publicise them more widely. An interim order was made providing for the mother to see, but not have physical custody of, documents. The court determined that it had jurisdiction in respect of the boy based on necessity as he was not habitually resident anywhere.

The mother made applications to discharge the interim care order and the order regulating her access to documents. She also applied for the disclosure of certain documents and to be involved in decisions relating to the boy’s treatment.

HELD: The mother had bombarded the court with documents and had disseminated information to persons not involved in the proceedings, which had justified the making of the interim reporting restriction order. The evidence provided by the mother since the earlier hearing did not justify the court revisiting the conclusion that it was an exceptional case where the boy was not habitually resident in any jurisdiction and that the court had jurisdiction based on necessity. However, it was not possible to proceed fairly with the final hearing where it was unclear whether the boy had genuinely changed his mind about moving to Canada or had been coerced by his mother, and he no longer had capacity. The boy’s wishes were the foundation stone of the local authority’s final care plan and it was not possible to evaluate his opinion. The matter was adjourned to allow the necessary steps consequent on the boy losing capacity to conduct proceedings. The mother’s application to discharge the interim care order was adjourned. The rest of the mother’s applications were dismissed. The mother would be able to see necessary documents while supervised but was not allowed to make copies or disseminate the information. The need to protect the boy from the emotional harm of knowing that personal information was at risk of being publicised in the manner in which the mother had publicised other documents in the case was even greater where his emotional equilibrium was now even more fragile. The modest restriction on the mother’s rights under the ECHR art.6 was a proportionate approach balancing the competing rights (see paras 13-14, 45, 53-58, 62-63, 68-70, 75-78, 85-88 of judgment).

Judgment accordingly

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