High Court judge issues ruling on access to hearing for mother seen as potential security risk

March 27, 2024

A High Court judge has ruled that a mother, who had been assessed as a “potential risk” to court security, should be permitted to enter the court building for upcoming hearings provided that a number of arrangements are put in place and adhered to.

In A Local Authority v D & Ors [2024] EWFC 61, Mr Justice Peel found: “As things stand, unless she is able to attend the court building, M will not be able to participate effectively or at all. That is an unusual state of affairs (in many, perhaps most cases, remote access is workable) but one which requires particular attention to ensure that a manageable solution can be found.”

The public law proceedings concerned four children. An issues resolution hearing is due to take place in March and a final hearing in April.

The local authority plan is for the children to be removed permanently from the parents under a care order, with a possible plan for adoption of the two younger children.

This is “strongly resisted” by their mother, “M”, Mr Justice Peel noted.

He said: “The issue today is an application by M for consideration of how she is to attend court at the 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”).”

M has a history of drug misuse and mental health instability, and has been diagnosed with borderline personality disorder. At the time of the hearing, she was living in a homeless person unit.

Mr Justice Peel said: “[M] attended at the court building [in January 2024]. This was not the day of a listed hearing in these proceedings, and she had no reason to attend court. 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.”

An order was made by a judge later that month which barred M from entering the court building for a case management hearing in early February.

Although she could not attend, she was represented and the hearing was effective.

Following this, M was ordered to file a C2 application and statement in support setting out reasons why she should have access to the court building reinstated.

Mr Justice Peel said: “Pursuant to that order, M has filed the appropriate application and a witness statement in which she admits to the facts outlined above. She says that she acted in this way to draw attention to knife crime and the, as she puts it, lax security measures at the court.”

Permission was given by the court for her to attend future court hearings remotely. However, the judge noted that M's lawyers had carried out their own risk assessment as a result of which they would not offer the facility of M attending remotely from their offices, or permit a member of their staff to attend upon her at another facility or location where remote access could be provided.

M’s accommodation at the homeless unit was meanwhile deemed “unsuitable for remote access”.

Mr Justice Peel added: “The LA, which likewise has carried out a risk assessment, will not permit M to attend their offices, nor facilitate M in accessing by video link from any other location. She might in theory be able to join a link by telephone but that seems to me to be highly unsatisfactory for a final hearing lasting a number of days.”

The judge said there was little doubt in his judgment that if M were not able to attend in person, she would have great difficulty in being able to participate in the proceedings at all. “The consequence would be an inability to hear the evidence and submissions, give oral evidence, and communicate meaningfully about the case with her lawyers. She would therefore not have access to justice in proceedings affecting her and the children profoundly.”

He revealed that, broadly, all parties acknowledged the potential risk posed by M, appreciated the need for M to be able to participate, and put themselves in the hands of the court as to the way forward. “All acknowledge the need for a fair hearing. None opposes, in principle, M attending at court in person provided that appropriate security arrangements can be put in place.”

Discussing the mother’s application, Mr Justice Peel 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.

“Equally, that must be balanced within the needs of access to justice which is a fundamental right both under common law and pursuant to Article 6 of the European Convention on Human Rights.”

Mr Justice Peel did not propose to set out general guidance on how this balancing exercise was to be carried out.

“I am dealing with this case, in this set of circumstances. Other facts will require other solutions. Each local court will have its own resources, demands and practices,” he said.

The judge identified a number of features to weigh in the balance:

M was clearly a potential risk. There was a present and continuing risk of similar behaviour, including potential acts of threats or violence
Should M attend court, protection must be afforded to the judiciary, staff, witnesses, legal representatives and anyone else involved in the case. This included those present in the court building with nothing to do with the case
Due regard must be had to the rights under Article 6 and Article 8 of other parties in the proceedings, including the children whose future rests on the outcome. “The stakes for the family are undeniably high. Such litigation requires a particularly anxious appreciation of the entitlement to the parent to put their case and have a fair trial"
As things stand, unless M was able to attend the court building, she would not be able to participate effectively or at all.

Mr Justice Peel said no party had asked for the disclosure of the risk assessment carried out by the Court Service. Although he did not hear argument on this, he said it was “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”.

Internal risk assessments were not for public consumption, he added.

The judge did suggest, however, that the person affected by the assessment was entitled to have some sort of understanding of the basis of the assessment. The rationale for the risk assessment in this case was “not difficult to discern” given the basic facts.

In some cases the reasoning would be less obvious, he noted. “It seems to me that it would usually be appropriate for the gist of the reasoning to be given to the affected potentially violent person, whilst taking care to ensure that none of the information provided prejudices or puts in danger a particular source of information."

It would then be for the potentially violent person, if dissatisfied with the arrangements resulting from the risk assessment, to apply to the court for further consideration of the steps required to enable access to justice.

"Although in this instance a court hearing was listed to consider the way forward, I would expect that in most cases it can be dealt with swiftly on paper," the judge said.

After concluding that remote attendance for M was not possible, Mr Justice Peel ruled that M “must be permitted” to enter the court building for hearings, provided that the following arrangements are put in place:

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.

These measures were agreed with the parties and the local Court Service. “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.”

Mr Justice Peel noted: “At the risk of repetition, these measures which I have outlined will not be necessary or appropriate in each case. The facts of this case are unusual. The response to each PVP Protocol incident obviously depends on the circumstances, taking into account local demands, resources and practices.”