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A Local Authority v D & Ors [2024] EWFC 61

The substantial facts of this case are not really known within the judgment of this case and, are not really relevant. These were proceedings that concerned 4 children, aged between 4 and 15. The Mother ‘has a history of drug misuse and mental health instability, and has been diagnosed with borderline personality disorder. She is presently living in a homeless person unit’ [3].

The Local Authority’s care plan was one of a Care Order with a possible plan for adoption for the younger children. This is opposed by Mother and the matter was listed for an IRH and subsequently, a 3-day final hearing.

However, this judgment focuses on the Mother’s application for how she was to attend those upcoming hearings ‘in circumstances where she is currently barred from doing so as a result of a risk assessment carried out pursuant to the HMCTS Protocol for Managing Potentially Violent People (“PVP Protocol”).’ [2]

In January 2024, Mother attended the Court building. This was not on a day when a hearing was listed within these proceedings. It is reported that ‘she passed through security and made her way to the first floor. Once there she went to the first-floor toilets. When she came out, she went back down to the security reception on the ground floor and handed in a knife, wrapped in plastic and bound in tape, before exiting the building. The knife was impounded. It had a blade approximately 3 inches in length, and a handle approximately 4 inches long. It is not clear how she was able to secrete the knife through security.’ [4].

As a result of the above, a risk assessment was carried out by the local court service. No party had sight of that risk assessment and no party asked for it. Mr Justice Peel considered that ‘it is hard to see how it could ever be appropriate for a judge to order that such a document be provided to the potentially violent person and/or the parties in general. These are internal risk assessments carried out by, or on behalf of, HMCTS. They are not for public consumption’ [15]. He did note however, that ‘a person affected by the assessment is entitled to have some sort of understanding of the basis of the assessment’ [16].

As a result of the risk assessment, Mother was then barred from entering the building for a hearing which took place on 1 February 2024. Following that hearing, Mother made an application setting out reasons why her access to the Court building should be reinstated. Mother accepted bringing a knife into the building, stating that this was to ‘draw attention to knife crime and the, as she puts it, lax security measures at the court.’ [7]

What then complicated matters slightly was that the Court had given her permission to attend hearings remotely. However, Mother’s lawyers, after undertaking their own risk assessment, refused to offer a facility for Mother to conduct the hearing at their offices. Similarly, the Local Authority also carried out a risk assessment which led to them not permitting Mother to use their offices or facilitate Mother accessing a link from any other location. Due to Mother’s own circumstances, her accommodation was also unsuitable for remote access.

The Court therefore had little doubt that if Mother was not able to attend in person, she would have great difficulty in participating at all which would lead to her not having access to justice in proceedings relating to her and her children [9]. What therefore needed to be considered is what steps could be put in place in order to ensure safety.

Mr Justice Peel made comment about the PVP protocol and said; ‘The PVP Protocol, which applies nationwide, has been in place for some time but it is probably fair to say that its existence has not been universally known, and it has been only patchily implemented. All that changed after a horrific, life-threatening assault on a sitting circuit judge (at a different court) in November 2023 by a litigant in person. The PVP protocol was updated, and all courts were required to review and implement their processes. The dangers to court users (judiciary, staff, parties, witnesses, legal representatives and visitors) from potentially violent persons attending at court are self-evident’ [11].

What he also recognised, however, was everybody’s safety had to be balanced against the needs of access to justice and Article 6 rights [12]. Mr Justice Peel then undertook a balancing exercise specific to this case, looking at the risk Mother posed and her Article 6 and 8 rights. As part of that balancing exercise, Mr Justice Peel considered that Mother’s explanation for bringing the knife into Court seemed implausible. He considered that there was a continuing risk from Mother [14].

When looking at the facts of this case, the security measures that were implemented for the Mother were as follows [17]:

  • ‘M shall attend the building and be met by her legal representative at security, who should have passed through security before meeting M.
  • M is not to be accompanied by anybody (for example a friend or associate) in the court building except her legal representatives and security. 
  • M is to go through full security checks, including passing through the arch, being wanded and being patted down. 
  • M’s mobile phone will be removed for the duration of her time in the court building, and returned to her when she leaves.
  • M shall, when not in court for the hearing(s), ordinarily stay in a separate consultation room which will be made available for her and her lawyers. The security staff will stay immediately outside the room.
  • M is not permitted to take liquids into court. 
  • No fewer than 2 security guards will accompany her at all times save when she attends the toilet. Upon exiting the toilet, she will be thoroughly searched by security, and the toilets thereafter will be checked.
  • 2 security guards will sit on either side of her in court. She will sit at the back of the court save when she gives her evidence. 
  • When the court hearing or court day finishes, there shall be a staggered exit so that M leaves the court building before anyone else involved in the case. 
  • If M refuses to undertake any part of this process, entry may be barred or, if she has already entered, she may be excluded from the building.’

Mr Justice Peel was satisfied that the above measures ‘represent a fair balance of the competing rights, particularly under Articles 6 and 8, and a proportionate response to the potential threat’ [19]. Of note, the measures were agreed by the local Court Service. Mr Justice Peel noted that ‘(i) the Court Service has a duty to ensure the safety of all court users, (ii) it is the Court Service whose responsibility it is to follow the PVP Protocol and make the risk assessment and (iii) it is the Court Service which has to provide the resources to manage and mitigate the risk. It is not for a judge to make orders against the Court Service. The order I make will record the operative measures as recitals rather than incorporate them as orders. There would be no purpose in making an order which the Court Service is unable to fulfil, and to do so could create confusion, generate delay and perpetuate the risks. There needs to be consultation and cooperation between the Court Service, judiciary and the parties to ensure that access to justice can be provided in as practicable a way as possible’ [18].

Lastly, Mr Justice Peel expressed that the way forward in this particular case was not intended to be general guidance and he declined to give general guidance on how a balancing exercise is to be carried out. He concluded his judgment by stating that ‘the response to each PVP Protocol incident obviously depends on the circumstances, taking into account local demands, resources and practices’ [20].

This judgment highlights a particularly important point which arguably often does not get spoken about; the safety of those who use our courts. Whilst Article 6 and 8 rights are fundamental, those have to be balanced against the safety of all of those who use our Courts. This judgment serves as a reminder of that importance balance which should be undertaken.

The link to the judgment can be found here

https://caselaw.nationalarchives.gov.uk/ewfc/2024/61