In a rather unusual case, Dingemans J has had to consider whether the moral attitudes – as revealed by his blog posts – of a father who was estranged from the mother of his son supported the Family Court’s decision not to allow him parental access.
In A v Cornwall Council  EWHC 842 (QB), A believed that abortion and same-sex relationships were both wrong. A’s relationship with M had broken down and he was refused contact with their son, S. A claimed that the Council had prevented him having direct contact and had not supported his application to have S live with him because of the views he had blogged about abortion and same-sex marriage – and that the Council had violated his Convention rights. The Council denied the claim and said that it had conducted proper safeguarding inquiries about S and had made proper recommendations to the Family Court that had taken the relevant decisions .
It was common ground that it would be unlawful for the Council to prevent contact between A and S because of A’s views and beliefs in relation to abortion and same-sex marriage; and Dingemans J noted that society had to tolerate very diverse views among parents – as confirmed in part by the provision in Article 2 of the First Protocol to the ECHR that “the state shall respect the right of parents to ensure … education and teaching in conformity with their own religious and philosophical convictions“ . The issues before the Court were whether the Council had acted in a way that was incompatible with any of A’s rights as protected by Articles 8, 9, 10, 12 and 14 ECHR and, if so, what relief or remedy – if any – should be given to A .
Under s 7 Children Act 1989, a court considering any question with respect to a child may ask a local authority to arrange for an officer of the authority to report to the court on matters relating to the welfare of that child ; s 17 places a general duty on every local authority to safeguard and promote the welfare of children in its area who are in need ; and s 47 provides that where a local authority has reasonable cause to suspect that a child who lives in its area is suffering, or likely to suffer, significant harm, it shall “make or cause to be made such inquiries as it considers necessary to enable it to decide whether it should take action to safeguard or promote the child’s welfare” .
The situation between A, M and S had become a police matter, during which the police discovered A’s blog posts in which he had raised the issue – satirically, in relation to his opposition to abortion – of whether an 8-month-old “was a real person”. The police alerted the social services department because they thought social services might think the posts relevant to their investigation and assessment. A said that he was appalled by this;
“but it is apparent that the police were keeping the social services department informed about matters relevant for the consideration of the social services department arising from the police investigation. This is because, taken literally, the contents of the blogs and the comment about whether an 8-month-old was a real person raised issues to be considered by the social services department” .
A had strong views that a foetus was a person, that abortion involved the wrongful killing of an unborn child and that a pregnant woman did not have the right to choose to terminate her pregnancy . Another post was entitled a “homophobic manifesto” .
The pastor of A’s church, R, gave evidence that his church believed that abortion and same-sex relationships were wrong . On the homophobia point, the Court concluded that it was not clear whether A was homophobic (as defined by the defendant) “or simply repeating the label he said he had been given to him” – but it was not necessary to make a specific finding on that point because nothing turned on it .
A believed that subsequent discussions would be influenced by the judgment in R(Johns) v Derby County Council  EWHC 375 (Admin), which he understood as a refusal to allow persons who shared his beliefs about same-sex relationships to be foster carers – though Dingemans J observed that, on a careful reading of the judgment, “the local authority in that case did not have any policy to the effect that foster carers would have to compromise their beliefs about sexual ethics to be approved” .
But A still believed that he would be discriminated against because of his religious beliefs [53 & 55] and he had what was clearly a confrontational meeting with the Council’s social worker, SW – on which Dingemans J found as follows:
“A has absolute freedom of thought and belief, and A has a qualified right to communicate his thoughts and beliefs, and it is common ground that the publication of the blogs was lawful. However given that he had expressed himself in a way that was open to misinterpretation if read literally, for example in relation to an 8-month-old child being ‘hardly’ a person, A should have been prepared to explain what he was intending to communicate to SW. That is not a ‘chilling’ of freedom of expression … because A was at liberty to continue publishing the blog in that form, but it would have meant that SW’s proper concerns formed because she had read the blogs literally were properly addressed. If A had taken the time to explain that the blogs were not to be taken literally, there is no doubt that the meeting of 23 May 2013 would have been much easier for both A and SW  …
Having seen the notes of the meeting and having heard both A and SW I am satisfied that SW’s recommendation that A should not have contact with S was not made because A believed that abortion and same-sex marriage was wrong. I am also satisfied and find that SW took A’s blogs literally and was concerned that A had considered that an 8-month-old child was not a real person (with all the obvious implications that such a view might have for his dealings with S). I also find that having read and taken the blogs literally, SW found support for her concerns from the reports by M to SW that A was intolerant of any different views from his own” .
The Family Court had requested a welfare report from the Council under s 7 Children Act 1989, which concluded, inter alia, that there were historical concerns about A’s mental health which he had been unwilling to discuss and that, because of A’s strong views, the child S would be unlikely to question him or form his own opinions – which would impact on his development and lead to conflict as an adult . The Family Court had also made a finding of fact that A had hit his son on 2 April 2013. It had dismissed A’s applications for shared residence and direct contact and only permitted cards, presents, letters and photos to be sent to the child via a third party on three occasions during the year. Permission to appeal was refused .
The Court concluded that there had been no infringement of A’s Convention rights. The social worker, SW, had been entitled to consider A’s blogs and views when making her assessments and reports to the Family Court because, when read literally (which was not the way A had intended them to be read) they suggested that A did not consider an 8-month-old child as a “real person”. SW was also entitled to consider the strength of A’s views and question whether he would tolerate any dissent.
Dingemans J was satisfied that SW had not acted to stop A having contact with S because A believed that abortion and same-sex marriage were wrong – and “it was common ground that if SW had taken any such approach it would not have been lawful” . However, SW had accepted “with the benefit of hindsight” that she had not handled the situation as well as she might:
“This is because it led A to become disengaged with the process, in part because of his misunderstanding about the legal effect of R(Johns) v Derby County Council. This meant that SW was not able to communicate that it was her concern about whether A would permit S to develop his own views because of the strength of A’s views rather than an attack on A’s views, that was in issue” .
Nevertheless, her approach had not infringed A’s Convention rights. The interference with his private life under Article 8 was justifiable because the boy’s mother, M, did not want contact between him and S and because the Family Court had not ordered contact. As to the alleged interference with his right to hold or manifest his religious beliefs under Article 9 or to express his views under Article 10:
“A can still hold those beliefs and publish his blogs, and there was proper questioning about the literal content of the blogs and A’s views for the reasons set out above. There was no impermissible interference with A’s freedom of expression, because he can still communicate his views and the questioning about his views was permissible and proper given the literal content of the blogs and A’s past history” .
As to Article 12, there was nothing to stop him marrying in the future: “A had the right to marry under article 12 of the ECHR but it was the decision of A and M not to marry” .
Claim dismissed .