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Fax it up, m’lord

 

I was listening to Radio Five this morning, to a debate on the NHS and at one stage an expert told the listeners that the NHS was far too behind in modern technology – by way of disparaging illustration he said “Most GP’s are still using faxes, for goodness sake”

Which reminded me of the apocryphal story of the High Court Judge sitting in a Court far away from London, reaching the end of the case and realising that he has left all of his notes and preparation for delivery of his imminent judgment back at his London home. He mentions this dilemma, and someone helpfully suggests, “Fax it up, m’lord”  – to which the Judge sadly responds, “yes, I’m afraid it rather does”

And that led me to think that anyone who began practicing law in the last ten years would probably not understand that joke.  We have a fax machine in our office, but I can’t remember the last time anyone used it in anger. All that I ever see come out of it are single page spam adverts – invariably telling us that if we have had an accident in the workplace, we could get compensation – hugely informative stuff of that type.

When I first started working in law, which was a long time ago, I was at the beck and call of the fax machine. I don’t know that I want to give precise dates, but by way of indication my Local Authority was using a junior barrister named Cherie Booth and we were dimly aware that her husband was an MP but had no idea who he was.

 

The fax machine and I were very close. Our first version had no programmable numbers, you had to dial them all manually. And it didn’t use ordinary paper, but some horrid shiny stuff akin to the toilet paper in schools at the time (and possibly prisons now).  When we received our evidence, we had to fax this out. It had to go to the Court, to three firms of solicitors (mum, dad, Guardian) and to our counsel. So each piece of final evidence, I, as the junior dogsbody, had to fax out five times. I was junior dogsbody for eight lawyers at the time, so there was a LOT of final evidence, most of it having to be sent out on a Friday afternoon.

And the fax couldn’t send and receive at the same time, so if we had one lawyer with evidence ready to go out, and another waiting to receive the faxed copy from the social worker, that would be a juggling act with the social services dogsbody and I on telephones “Can I start sending it now?”  “Just wait, ten seconds… oh damn, the one to Thimbleby Fisher has jammed again”

If you aren’t old, like me – for example, my colleague Gimson, who does not believe me that we didn’t always have stuff on television whenever you turned it on and that for about five years daytime television consisted of Pebble Mill then three hours of “Pages from Ceefax”, it probably seems ridiculous to think that I was spending close to eight hours a week doing nothing other than feeding paper into a fax machine and swearing copiously when two pages went through at once.  I had to do this, because there was no way of sending these documents from one computer to another.

The social worker would write their statement out by hand, take it to a typing pool, a typist would type it up, the social worker would give it to the social services dogsbody, they’d fax it to me, I’d take it to the lawyer who would check it. If it was okay, then I would fax it out to everyone.  And then when they got it, which would often be at about seven pm, because I’d be doing this for eight cases on a Friday, they’d have to fax it out to their counsel.

And as archaic and dreadful as that sounds – this was an improvement. This was cutting edge tech – it was instantaneous compared to the system that had been around before I started, when you’d be DX-ing or posting it out and it would arrive a day or two later – usually just after you’d left for Court on the case you needed the document on.

None of us had computers on our desks – I remember that coming in, and many of the lawyers being mortified that this was taking up space on their desk where their files and notes would have been. When we finally got email, it meant that we no longer had to have the social work statements faxed to us, and that we could make changes and amendments to documents without having to get a typist to do it.   (It also ended one of the other curiousities, which was that I was keeping an index for all of those cases, which I was doing by making handwritten annotations to the typed index as new documents came in, and then getting it typed about once a month – if the case was going wrong, I’d be squeezing more and more annotations into a tiny space).

But we still couldn’t send documents out by email, because most of the other solicitors didn’t have it straight away.

I can’t really imagine doing the job now without a computer, being able to see a document and edit it and perfect it and send it back and forth until it is just right, then simply send it out to everyone who needs to see it in a task that takes less than 30 seconds when it used to take an afternoon. I can’t really now, even after such a short time, really get straight in my mind what it was like to only be able to look at your emails if you were sitting at your desk – to not be able to read them on the way to Court or whilst waiting for Facts and Reasons. And that’s a change of only the last four years or so.

The really odd thing of course, is that without blackberries, and email, and computers, and word processing – without even photocopiers, the lawyers in the early days of the Children Act got all this done – and they actually did it in shorter timescales and with less delays than we manage now with all of our assistance. That’s rather like learning that Formula One cars in the 1930s were faster than modern ones (they weren’t)

I wonder what is coming in the next few years, and how it will make our lives easier, but how as Parkinson’s Law shows us, work expands to fill the time available to do it.

I’ve been reading a book called Future Crimes, by Marc Goodman, which is about incredible advances in technology and the opportunities that these bring, and also the threats that they may pose. It isn’t an alarmist book – every story that the writer tells, he is able to show a real-life example where this has happened (often where hackers are demonstrating weakness in things like GPS, drone missiles, pacemakers, hearing aids, central heating controls, by hacking them and taking them over as proof of concept).  It was a great read, and frankly I could devote the blog for the next month to quoting you individual stories from it – there’s something astonishing on every page. (Paypal’s privacy policy contains more words than Hamlet… how one hacked tweet knocked 20% off stock prices in America for a morning, allowing the hackers to profit by shorting stocks, Target emailing a 14 year old with discount vouchers for maternity items leading to her father writing them an angry letter only to send another one two days later  saying that unknown to him she was pregnant – Target’s shopping algorithm knew she was pregnant based on purchases of things like unscented moisturiser before the girl herself even knew)

Future Crimes: A journey to the dark side of technology - and how to survive it

Future Crimes: A journey to the dark side of technology – and how to survive it

Buy from Amazon

A heartbreaking case of staggering genius

 

It isn’t really heartbreaking – when you read about how two people are arguing about how to divide a fortune of £144 million it stirs up the expression ‘my heart bleeds’, but it is a case where Holman J tackles the word ‘genius’   – and his approach interested me.

Gray v Work 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/834.html

 

It so happens that I agree with Holman J that the word is massively overused.  Just as a quick random sampling – 458,000 hits for “wayne rooney genius” and 35 million for ‘george north genius’  – both of whom are exceptionally talented and gifted sportsmen, but they aren’t geniuses  (geni-ii?)

  1. Paragraph 80 of Charman, excerpted in paragraph (vi) above, is one of several authorities that employ the word “genius”. It appears also in Lambert, and very recently in Cooper-Hohn, and in other authorities in which the court has debated whether the person claiming a special contribution possesses the quality of “genius.” I personally find that a difficult, and perhaps unhelpful, word in this context. To my mind, the word “genius” tends to be over-used and is properly reserved for Leonardo Da Vinci, Mozart, Einstein, and others like them. It may lead, as it did in this case, to the rather crude question to (in this case) the husband: “You don’t describe yourself as a genius, do you?” Not surprisingly, the husband, like any person with a modicum of modesty, was rather nonplussed by the question. Oscar Wilde is famously said to have declared that he had nothing to declare but his genius. More modest, even if exceptionally talented, people may be slow to make such a claim.
  2. What I understand is meant by the word “genius” in this context, and what is required for a claim to a special contribution to succeed, is some “exceptional and individual quality which deserves special treatment.” See Charman at paragraph 80. But the fact that judges have used the word “genius” in this context does tend to underline how exceptional, individual and special the quality has to be.
  3. It is clear from the above propositions and the outcome in other cases that hard work alone is not enough. Many people work extremely hard at every level of society and employment. Hard work alone lacks the necessary quality of exceptionality. Further, to attach special weight to hard work in employment risks undervaluing in a highly discriminatory way the hard work involved in running a home and rearing children.
  4. It is clear also that a successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time, or benefiting from a period of boom is not enough. It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skilful that past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.

 

[I think personally I would go with Da Vinci, Mozart, Darwin and Einstein, and I don’t tend to use genius for anyone else – I know that my definition is narrow. {I wrestled with including Orwell, but had to finally conclude that this would open the door to too many others. If Sherlock Holmes had been a real person, would he have been a genius? Just short, I think.}  It would be a definition which means that the special contribution ancillary relief test would not be met for anyone, were I deciding it, since those four men are long gone. And actually it conflicts with the second definition in the dictionary

an exceptionally intelligent person or one with exceptional skill in a particular area of activity.  So in the unlikely event that I was sitting on the Court of Appeal, I would overrule my own definition as being wrong…]
The other issue of general application relates to the ever popular (and I use ‘popular’ here to mean ‘hatefully recurring and more difficult to ignore than one would ideally like’ as in “One Direction are a very popular band”) theme of excessively large bundles
  1. The parties have spent approaching £3,000,000 on legal fees and associated expenditure. For that, you get very high quality legal teams, and each of them has been very well represented, but it does not appear to have facilitated a conciliatory outcome to this case.
  2. Further, some of the spending has been, in my view, profligate and unnecessary. Ordinary people litigating in the family courts about very serious issues, such as whether their children should be adopted or returned from care or whether life support of a child should be maintained or ended, do not have the luxury of, nor, frankly, the need for, two shorthand writers in court throughout the hearing, producing overnight transcripts to which negligible reference was later made. It is an extravagance. Whilst it was a privilege to hear from two Texan matrimonial lawyers, I do not think the cost of their travel and attendance was justifiable or necessary.
  3. The bundles were excessive and proved inconvenient for me, for witnesses who struggled with them in the witness box, and at least at one stage for Mr Howard QC. At one point we had the absurdity of going to one bundle for a letter and another bundle for the reply. There was a pre-trial hearing before a circuit judge on 3rd December 2014. He had no other involvement in the case either before or after that day. Amongst many other directions, he did formally give “permission for the trial bundle to be extended to six lever arch files…” I asked Mr Tim Bishop QC, who appeared on behalf of the wife, and who was present on 3rd December 2014, whether the circuit judge had exercised his own independent discretion in agreeing to six bundles, or whether he had been seduced by counsel. Mr Bishop immediately and frankly said that the judge had been seduced by counsel and that it was not an independent assessment by the judge. It was rubber stamped. This is not how the very important Practice Direction 27A is intended to be applied. Further, the cardinal and over arching words of the practice direction are the opening words of paragraph 4.1: “The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing …” However many bundles the court may authorise, there should be no document within them which does not fall within that rubric in paragraph 4.1. I have not kept a tally in the present case, but I am confident that the total number of documents read or referred to is less than half the total of well over two thousand pages assembled in the bundles.
  4. In his judgment in L (a child) [2015] EWFC 15, handed down last week, the President of the Family Division has given due and crystal clear warning that these excesses will no longer be tolerated. What I wish to emphasise is that although that judgment related to care proceedings, every single word of the relevant part of it applies no less, and arguably more, to financial remedy proceedings.

I did rather like the language of whether in agreeing that there should be six bundles in the case, the Judge had been ‘seduced by counsel’.

I’m not sure that seduction efforts that involve allowing a Judge to permit additional lever arch files into evidence is going to be a subject matter that would particularly tempt Hollywood into incorporating it into Rom-coms, and probably it will be a while before my huge rollercoaster of a script “Pride and Pagination” gets picked up by Hugh Grant, but a man can dream.    [My action-ancillary-adventure movie starring Matt Damon  “The Besterman Cushion” is in post-production, so there’s that]

[I would have to say that having a letter in one bundle and the reply to that letter in a different one is fairly illustrative of things having gotten completely out of hand]

It is different counsel who later on posits that in the list of assets that the wife has suggested should be transferred to her contains some ‘duffs’ as well as ‘plums’  – I don’t think I am anywhere near well-bred enough to ever get away with using it; but I still liked it.

  1. The wife and her legal team have attempted to avoid the dispute as to discounts by proposing what they call Wells v Wells sharing. They have identified about 24 assets in the asset schedule which they suggest should be transferred in whole or in part to the wife, inclusive of any inherent discount. Whilst I welcome and appreciate their desire to minimise costs and potential further litigation, I am unable to accept that proposal. The present hearing has been largely occupied with the evidence and argument as to the two issues of the agreement and of special contribution. There simply has not been time, in the time estimated and allotted for this hearing, to hear either evidence or argument as to discounts.
  2. Mr Bishop says that their proposed Wells v Wells sharing list contains “duffs” as well as “plums”. But that is mere assertion. I am simply unable to engage judicially in consideration of discounts, save on an item by item basis, upon which the court would need to hear both evidence and argument.

The case is well worth a read if you do ancillary relief, or enjoy watching very well paid lawyers squabble about millionaire’s money. The husband clearly had cojones that would have been setting off the security metal detector given that they began with an offer that was 2% to the wife, 98% to the husband and over the course of the hearing shifted that.

Very sensible, to shift.

But probably not from 2% to 0%.

The wife ended up with 50%  – which one might have thought was a result that one could have guessed at without spending three million on lawyers, but I suppose if you thought you could get away with 98% of the assets it was worth a punt.

 

Yet another of those big money cases that ate up precious High Court time, for a very small fee. I do wonder if the time has come for the Court to get a percentage of the assets in dispute where one is dealing with sums over twenty five million. The ancillary relief Court fee of £255 is not touching the sides of what these cases are actually costing the taxpayer.

350 pages – a historical precedent

 

It is my duty as a lawyer to disclose the existence of material which may aid the other side or may harm my own case. So even as an active opponent of Practice Direction 27’s descent into “Micromanaging whilst Rome burns”,  when I come across a historical precedent that not only aids the President but provides a terrifying punishment, I’m afraid that I have to share it.

 

This comes courtesy of Lowering the Bar

The chancellors of those days were busy administrators who would stand no academic nonsense: Lord Chancellor Ellesmere in the reign of James I ordered that the Warden of the Fleet should lay hold on an equity pleader who had drawn a replication of 120 pages where 16 would have done, “and shall bring him unto Westminister Hall … and there and then shall cut a hole in the middle of the same engrossed replication … and put the said Richard’s head through the same hole … and shall show him at the bar of every of the three courts within the Hall.”

Alan Harding, A Social History of English Law (1966)

 

Doing a quick search, the case referred to is Mylward v Weldon 1596 and is actually true, not made up.

In a reported case, Mylward v Weldon (1596) Tothill 102, 21 ER 136; [1595] EWHC Ch 1, it is stated that in 1595 the son of a litigant (the report does not say whether the miscreant was a barrister) produced a pleading (a replication, ie reply) of “six score sheets of paper” which the Lord Keeper deemed could have been “well contrived” in 16 sheets. The Lord Keeper (Egerton) ordered that the miscreant be imprisoned in the Fleet until he paid a fine of £10 (a huge sum) to Her Majesty and 20 nobles to the defendant. In addition the Lord Keeper ordered: “…that the Warden of the Fleet shall take the said Richard Mylward… and shall bring him into Westminster Hall on Saturday next, about ten of the clock in the forenoon and then and there shall cut a hole in the myddest of the same engrossed replication…and put the said Richard’s head through the same hole and so let the same replication hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting and shall shew him at the bar of every of the three Courts within the Hall and shall then take him back to the Fleet…”

 

So perhaps we will find the streets of London choked with local authority lawyers walking around with their heads through ruffs/sandwich boards of their own bundles.

In the case being dealt with by Lowering the Bar http://www.loweringthebar.net/2015/03/judge-criticizes-behemoth-pleadings-.html

Here are some words & phrases that you really don’t want a judge to apply to anything you file:

  • sprawling
  • behemoth
  • surplusage
  • larded with
  • brims with
  • masquerading as
  • voluminous
  • breathtaking
  • madness
  • chokes the docket
  • intended to overwhelm
  • labyrinthian prolixity of unrelated and vituperative charges that defy comprehension
  • sanctions

U.S. District Judge William Pauley used all of those on March 24 in this order, although that list combines objections he directed at both parties. Saying the case exemplified a “troubling trend toward prolixity in pleading,” he did rule on the motion to dismiss that was before him but made it clear he wasn’t putting up with any more of this.

 

 

[I must confess that most of these I’ve never heard of, though I got the sense of it from ‘masquerading as’ ]

Crime and care

 

This was an appeal decision, which really arose from the Court in care proceedings making findings that sexual abuse allegations against a father were proven (and then making Care Orders and Placement Orders) and the criminal trial then going down the route that the allegations were concocted and the jury unanimously acquitting the father.

The father applied for a re-hearing of the care proceedings.  As part of that re-hearing, it was vital to see exactly what the Judge in the criminal proceedings had said as part of his summing up to the jury before their acquittal. That information was very slow in coming forward and the Judge in the care proceedings refused father’s application for an adjournment to get that evidence.

 

Thus resulting in the summary of this case being :-

Appeal against refusal of an application for an adjournment of an application made by the appellant father for a re-hearing of care proceedings. Appeal dismissed.   {via Family Lore}

John Bolch at Family Lore managed to compress the nub of the appeal into a very short space, with remarkable economy.

Re U (Children) 2015  http://www.bailii.org/ew/cases/EWCA/Civ/2015/334.html

 

[I have to say that I don’t entirely agree with the Court of Appeal on this one. I’m not saying that I would necessarily have overturned the original findings, but I would have wanted to see exactly what the Judge in the criminal Court directed the jury, and probably the transcripts of evidence in the criminal case before deciding whether this was important fresh evidence]

In the care proceedings, there had been a number of allegations including of physical abuse, but the allegation in question was of a sexual nature.  The parents case was that these allegations were false and had been put into the child’s mind by a community worker named Raj.

 

  1. The final category of allegation made by ZU alone, was that she had been sexually abused by her father. The judge made findings set out in the schedule in relation to 4 occasions of attempted rape or sexual abuse. In addition to evidence of ZU and the parents, the court also heard evidence in relation to the sexual abuse allegations from a Miss Y and also from a community worker known as Raj.
  2. Raj was a community worker who became involved with the family around the 25 May 2013. It was a short lived connection as Raj and the parents fell out and he was no longer welcome in the family home by the 7 June 2013. It was to Raj that ZU made her first allegation on the 11 June 2013 and it was Raj who supported ZU when she reported the matter to the Social Services and thereafter to the police on the 21 June 2013. This was the extent of his involvement, he gave no evidence in relation to the events surrounding the physical abuse, nor could he.
  3. The focus in both the care proceedings (in relation to ZU’s allegations of sexual abuse) and the subsequent criminal proceedings, was as to whether Raj was a malign and dishonest influence, who encouraged a vulnerable girl to make false allegations against her father in revenge for his having been slighted by them. The reason it was said that ZU would have been susceptible to such influence, was her own desire to see her parents separate and to punish her father for being too strict and not allowing her enough freedom.
  4. In the care proceedings the judge concluded that Raj was an honest and hardworking member of the Tamil community. He regarded Raj’s evidence as much more reliable than that of the parents in relation to the circumstances in which their relationship broke down. In this, he said, he was supported by the evidence of the social worker in relation to issues of timing and ZU in relation to the influence that he exerted over her. The judge found as a fact that Raj did not use his position, such as it was, to persuade ZU to tell lies because the family had slighted him.
  1. Evidence was given by Miss Y on behalf of the parents; Miss Y alleged that Raj had shown photos of young girls of a sexual nature, and that she had heard that Raj had acted towards the mother in a sexual way. The judge regarded Miss Y as “utterly unconvincing witness” clearly “partial and biased”. He did not accept her evidence and believed it likely that she had been “put up to it by the father or someone on the father’s behalf”.
  2. Accordingly the judge, having analysed various inconsistencies that he had identified in the girls’ evidence and considered reasons why ZU might have made up the allegations, concluded that they were true and accordingly made the findings.

The Judge in the care proceedings thus went on to make findings of fact that ZU had been sexually abused by the father.

There were, as I said earlier, other issues that went to threshold, including a finding that the children had been hit

 

The judge heard extensive oral evidence including (via video-link), evidence from ZU and AU. At the conclusion of the trial the judge made findings of physical and emotional abuse, and domestic violence. The findings of physical abuse made by the judge are summarised in a schedule presented to the court for the purposes of this hearing and include ZU and BU being assaulted by their father, he having beaten them with a wooden implement on 23 April 2013. This beating left ZU with, amongst other injuries, an area of severe bruising of 17 cm x 8 cm on her left forearm. Overall the judge concluded:

“Prior to the incident on the 23 April 2013, all members of the household (including all of the children, the mother and the paternal grandmother) had frequently been subjected to physical abuse by the father. The abuse against ZU, AU, the mother and the paternal grandmother was sometimes very serious. The abuse against ZU, AU and the grandmother included the use of implements at times. The physical abuse against BU was less serious and not very often, the abuse against the twins including them being smacked on their bottoms and on a few occasions they were hit when the father was hitting the mother or other members of the family who were then holding the children.”

The judge also found that the mother would on occasion, physically chastise the children, sometimes on the father’s instruction. The judge made the inevitable finding that the mother had failed to protect the children.

 

But, staying with ZU’s allegations of sexual abuse, the Judge in the care proceedings had concluded that the parents explanation that Raj had concocted these allegations and put them in ZU’s mind was not correct.

 

By the time the criminal proceedings took place, two months later, the mother, father, ZU and Raj all gave evidence and the father was acquitted of the sexual abuse allegations.

He then made an application for a re-hearing of the care proceedings, on the basis of what had happened during the criminal proceedings.

“5. It is understood that at the criminal trial of the father before HHJ Saggerson sitting with the jury ZU admitted under cross examination that she had only made allegations of sexual abuse against her father after she had met Raj and commenced a relationship with him. It is understood that she accepted her motivation had been to take revenge on her father as she desired that her parents separate. HHJ Saggerson directed the jury on the basis that there were many inconsistencies in the evidence given by ZU and that further the evidence of Raj could not be relied upon. The jury returned a unanimous verdict of “not guilty” and the father was acquitted.”

Remember that the criminal court is applying a higher standard of proof   [What most people still think of as ‘beyond reasonable doubt’ but is actually now to convict the juror must be persuaded ‘so that they are sure’ in percentage terms probably high 80s, if not 90s]  rather than the civil standard of proof in care proceedings [more likely than not – i.e 50.01% or more]

 

But this seemed to be more than a Judge just indicating that it was impossible to be sure, and verging towards an indication that the evidence of Raj and ZU was such that it would be unsafe to rely on it due to the flaws in it.

When considering the father’s application for re-hearing then, the substance of what the criminal Judge had said was vital.

  1. The local authority did not accept the accuracy of this summary in the absence of a transcript of the evidence or summing up. Accordingly when the matter came back before HHJ Wilding on the 27 October 2014, the application was adjourned by consent until 12 December 2014 to allow a transcript to be obtained. The order made by the judge on the 27 October 2014 contained a number of recitals including:

    And the court expresses the view that a transcript of the summing up by HHJ Saggerson in the trial of R v KU would assist the court in determining the issues.

  2. The matter came on before the judge on 12 December 2014, when unhappily, but perhaps predictably, the transcript remained unavailable notwithstanding that the requisite application form had been sent to the Crown Court by the proposed appellant’s solicitors some weeks previously.

 

On 12th December then, the father asked for an adjourment to get this evidence. The Court refused the adjournment and went on to consider the father’s application for a re-hearing in the absence of that evidence.

  1. The inevitable application for a further adjournment was made on behalf of the appellant in order for the transcript to be obtained. The application was opposed by both the local authority and the guardian, although supported by the mother. The judge refused the application for a further adjournment and set out his reasons in an extempore judgment. He then went on to hear the substantive application for a rehearing, which he refused for reasons to be given at a later date.

    The Refusal of the Adjournment

  2. The judge, as he identified in his extempore judgement, was faced with balancing two rival issues saying:

    “[8] Clearly there are a number of competing issues here. There is the need to ensure justice to the father and the mother and the children. There is a need to have finality in respect of the proceedings generally, but in relation to children particularly and to avoid delay. It is not I confess, an easy decision to make weighing up each of those factors.”

  3. The judge then weighed up, on the one hand the detriment to the welfare of the children in the event of further delay and on the other, the prejudice to the father if his ability to make an effective application for a rehearing was undermined by the denial of a further adjournment.

 

Of course, in a practical sense, the delay for the children still occurred, since the decision was appealed, and the appeal Court didn’t hear the case until mid March. It might have been a far less disruptive delay to have waited until mid January to actually get the transcript of the Judge’s summing up…

 

The Court of Appeal accepted that any decision made by the Judge hearing that application would be imperfect.

  1. When the judge heard the application for an adjournment on 12 December 2014, it was already 19 months since proceedings had been issued and over 5 months since the placement orders had been made. Had the judge allowed the adjournment, it was anticipated that it would be something in the region of 5 months from the date of the making of the application, until the next case management hearing, (just a little under the statutory time limit for the whole of a care case from beginning to end). It was accepted by Counsel that if he were to succeed in his ultimate goal to set aside the findings of sexual abuse, there would thereafter be further substantial delay for these children; the summing up when obtained would not be evidence in itself but would provide a pointer as to which, if any, transcripts of evidence from the criminal proceedings should be obtained for consideration by the court in determining the father’s application.
  2. In the event that the judge, having examined the transcripts of evidence ultimately allowed the case to be reopened, further delay would ensue as many months would inevitably pass before a retrial of the sexual abuse allegations could be accommodated. The judge was only too well aware that the two younger children, settled in their adoptive placement, were developing the attachments vital to their future well being, and that their prospective adoptive parents would be living with the near intolerable strain brought about by the protracted uncertainty as to the children’s future; strain which would necessarily impact on the family environment to the detriment of the children.
  3. The older children too were, and would be, further affected by delay. They were in foster care, still connected to their family and living with the uncertainty of whether the case had come to an end or whether, in AU’s case, she might have to give evidence again.
  4. If delay sat heavily on one side of the scales, on the other side was the prejudice to the father if he were unable to draw upon what he asserted to be the evidence in the criminal proceedings; evidence which it was submitted on his behalf, had led to an acquittal and which notwithstanding the differing standard of proof applicable in the two jurisdictions, significantly undermined the findings made in the care proceedings. The care judge recognised that there was little the father could do to further his application without more than the assertions he was putting forward as to the content of the summing up.
  5. The judge frankly recognised the difficulties inherent in whichever decision he reached, but a decision had to be made. This was a classic example of a case where any decision made by the judge would be “imperfect”.

 

With that in mind, the Court of Appeal considered that there had been a proper balancing exercise about the pros and cons of the father’s application for an adjournment and the Judge was right to refuse it

  1. In my judgment the judge was entitled to conclude that the balance lay in favour of refusing the application for a further adjournment. He properly identified the competing arguments and weighed each one up briefly but with care. He clearly had at the forefront of his mind the importance of the application and the potential prejudice to the father’s case which would result from a refusal. The judge had had the advantage of conducting a lengthy trial and of making his own assessment of the parties prior to making the findings of fact to the civil standard of proof. He appropriately considered the father’s case at its highest and properly bore in mind the other extensive findings, which were unaffected by the criminal trial and which were in themselves serious, before concluding that the further substantial delay which would be occasioned by a further adjournment could not be countenanced in the interests of the children.
  2. In my judgment the judge conducted the appropriate balancing exercise and reached a conclusion which cannot be categorised as wrong and accordingly I would dismiss Grounds 1–3 of the Grounds of Appeal which relate to the refusal to adjourn.

 

[It is really hard for me to put out of my mind that the reason father’s case was prejudiced here was not due to any inaction on his part or those acting for him, but on the delays in the Court process of obtaining a transcript that was so vitally important. The Court of Appeal have remarked many times on how slow the transcription of judgments for appeals has been and how the system gets bogged down. Here, that transcript was not just an informative document but a piece of evidence that the father was deprived of making use of, because the system is so unfit for purpose. That leaves a very bad taste in my mouth]

 

Having lost the argument that the application for an adjournment should have been granted rather than refused, the father was inevitably going to lose the second part of his appeal that the re-hearing should have been ordered.

  1. Application for a rehearing
  2. By Ground 5 the father seeks to appeal the judge’s dismissal of the substantive application for a rehearing pursuant to s31F(6) Matrimonial and Family Proceedings Act 1984.
  3. In considering this application the judge made his decision by reference to the test found in Re ZZ, (Children)(Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95, an approach which was not resisted by any of the parties. Re ZZ adopts a three part test first propounded by Charles J in Birmingham City Council v H and Others and adopted by the President in Re ZZ at [12] as:

    …Firstly the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding…If it does the second and third stages relate to its approach to the exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant tests to the circumstances then found to exist

  4. In considering the first stage the President said [33]

    ……one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher.

  5. The judge explained that there was no evidence to support the father’s submission other than his own assertions about what had happened at the trial The judge’s decision to refuse to permit a reconsideration of the findings of sexual abuse did not rely exclusively on the absence of the availability of the summary of evidence that the father had hoped would be found within the summing up. The judge concluded there were no grounds, let alone solid grounds, for revisiting his findings. The judge pointed to the fact that he had seen and heard all the witnesses and that he was alert to the father’s case that ZU had ulterior motives for making the allegations. In relation to the criminal trial, the judge observed that even had the judge conducting the criminal trial said that which the father alleged he had in the summing up, care proceedings are conducted to a different standard of proof. The judge alluded also to the likelihood there was significantly more surrounding evidence available to the him as the judge in the care proceedings than that put before the jury in the criminal proceedings; an observation accepted on behalf of the father.
  6. Not only did the judge unequivocally conclude that the first limb of the test was not satisfied, but he referred to the other serious findings of physical and emotional abuse and domestic violence saying There is no suggestion… that those findings would not stand against the father, and indeed the mother. Finally the judge concluded that even had the father passed the first test in Re ZZ, there would be no reason for further investigation as there was more than adequate material which is unchallenged, to found the making of the orders that have been made in respect of each of the children.
  7. I agree with the analysis of the judge, who was well aware that his decision meant that the father would be unable to challenge the findings of sexual abuse. Given the totality of the unimpeachable findings and the need for finality in the interest of these four damaged children, I cannot see upon what basis the court could conclude that the earlier findings need revisiting in order for a court to reach the right decision in the interests of the children.
  8. I would accordingly dismiss the father’s appeal in relation to the substantive application for a rehearing of the finding of fact hearing.

 

I personally think that if the father had been able to obtain a transcript from the criminal trial showing that an experienced Judge had seen ZU and Raj crumble under forensic examination and shown themselves to be unreliable witnesses who had concocted this story and more importantly that ZU had accepted in her evidence that she HAD fabricated the allegations, that would have been enough to meet the test.

Of course, it might be that the transcript would, if obtained, fall substantially short of that. Perhaps father was over-stating it. Perhaps he was completely right. We will never know. It doesn’t seem that it even materialised for the Court of Appeal hearing.

Have the Courts here really upheld the father’s article 6 right to fair trial? Given that father was deprived of the key piece of evidence not because he was dilatory or hapless, but because the Court system for getting a vital transcript was so hopeless.

Well, they have upheld his Article 6 rights , because the Court of Appeal say so. But I haven’t read many Court of Appeal decisions that made me feel so squirmy and uncomfortable  (Cheshire West in Court of Appeal  was the last one I felt like this about)

section 20 and Brussels II

 

If section 20 voluntary accommodation has been the Wild West for most of the 25 year duration of the Children Act 1989, then in the last few years the Courts have been polishing up the sheriff badges and bringing law and order to the Wild West.  As a result, the territory that remains wild and lawless is shrinking, and may in a few years be limited to a bare patch of land with tumbleweed and old-timers chewing tobacco and relaying curious yarns of how things used to be, way back when.

[If you want to sing that every cowboy has a sad sad song, just as every rose has its thorns, now would be the time]

 

We have had:-

 

Re CA (A baby) 2012  http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

  1. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.
  2. Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8 of the European Convention on Human Rights.
  3. Having made those observations, it is necessary specifically to consider how that may operate in respect of the separation of mother and child at the time of birth. The balance of this judgment is essentially limited to that situation, the one that arose in this case, though some observations will have a more general application.
  4. It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers

Re C (a child) 2014  – dealing with parents who were deaf and had cognitive issues  http://www.familylawweek.co.uk/site.aspx?i=ed128597

there was no provision for interpretation when the father made the important step of agreeing to his baby daughter being accommodated under section 20 of the Children Act. To rely upon the mother who, even if she did not have the unfortunate cognitive disability she has, to interpret complicated matters such as section 20 of the Children Act and the authority being given to the local authority to the father was to put an undue burden on her. Once one understands that she does have these disabilities, it seems to have been wholly inadequate for her to act as an interpreter for him at that crucial meeting

Re P (A child: Use of section 20) 2014 http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html

It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.

Northamptonshire and DS 2014 http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html   :- The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

 

We can add to that now, this important passage from Hayden J in  RE SR (A child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/742.html

I must emphasise that where there is, as here, obvious potential for a jurisdictional issue, protracted periods under section 20 voluntary arrangements are highly undesirable. For my part, I simply cannot see how it was ever thought that such an arrangement was appropriate in this case. It has led to avoidable delay and has proved to be inimical to SR’s welfare. Moreover, the objective within care proceedings must always be to consider any conflict of jurisdiction at the earliest stages and, if the matter needs to be tried, it should be so expeditiously.

 

In this case, there had been a very difficult argument about whether the child was habitually resident in England or Morocco. As you can see, the view of Hayden J was that section 20 was inappropriate in a case where there was a real issue about whether the English legal system had jurisdiction.

If you do Brussels II work, there is some very helpful advice about the Moroccan legal system as it relates to children, that would save hours of painful research.

I was persuaded, on the 12th January 2015, to permit instruction of an expert in Islamic and Middle Eastern Law to address key legal and cultural features of the Moroccan care system. Mr Andrew Allen was instructed, an expert in Islamic and Middle Eastern law, a practising barrister, formerly a Deputy Director of the Centre of Islamic and Middle Eastern Law at the University of |London. The child’s solicitor took the lead in Mr Allen’s instruction. Nine questions were identified which were answered succinctly in summary following, a more detailed exegesis of the law. They were ultimately non contentious. To complete my summary of the competing jurisdictional frameworks I set them out in full:

1. What are the principles that determine an application under Moroccan law for the following orders in relation to a child:

(i) Parental responsibility or rights;

(ii) Custody; and

(iii) Access.

Both parents have parental responsibility. No application is required.

The basic principle applied in custody and access applications is the interests of the child.

2. Does Moroccan law provide as a matter of right or custom for custody changing from one parent to another or to another person during the course of a child’s childhood?

There is no shift from mother to father at a certain age, as is the case in some Muslim countries (unless the mother re-marries)Article 171 of the Mudawana provides that priority in terms of child custody goes first to the mother, then the father, then the maternal grandmother, unless a judge determines otherwise “in view of what would serve the interests of the child”. Applications can be made during a child’s minority and custody can shift. Article 170 states that “The right of custody shall be restored to the person entitled to it when the grounds for its withdrawal no longer exist. The court may reconsider custody when it is in the interests of the child.” Once a child is 15, the child may chose which parent to live with under Article 166.

3. Is there any form of public funding or legal aid available for making any application for orders identified in (1) above?

Public funding is theoretically available. I would tentatively suggest that the practicalities of finding a sufficiently informed lawyer to take on a case for a foreigner, under the Moroccan legal aid system are probably insurmountable.

4. Do the Moroccan courts have experience of recognising and enforcing orders between the UK and Morocco under the 1996 Hague Convention?

The Mudawana is drafted with express reference to Morocco’s international treaty obligations. I am unaware of any Moroccan case applying the 1996 Hague Convention in relation to the UK but the convention does apply as between Morocco and the UK. The existence of the Convention is not known by all Moroccan family judges. Its application is not uniform.

5. How long would it take for a Moroccan court to recognise and enforce an order made in England and Wales?

A Moroccan court would not simply ‘recognise and enforce’ a UK court order. It would give it due weight (in particular if the order is provided in Arabic translation). If Morocco became the habitual residence of SR, then the Moroccan Courts would have jurisdiction and will apply Moroccan law, taking into account UK law (or a UK court order) if appropriate. I do not have knowledge of how long any Moroccan family court process would typically take.

6. Can proceedings be initiated, and if they can which body would initiate them, in respect of a child who is suffering or may suffer significant harm in Morocco?

There is a child protection system in Morocco and the government of Morocco operates a child protection policy. However most child custody issues are sorted out within the family. There have been criticisms of the Moroccan child protection system as it has been applied to returned asylum seekers from mainland Europe (specifically Spain).[1] Under Article 177, the Office of the Public Prosecutor (which despite its name is a part of the judiciary and deals with civil, family and criminal matters) would initiate any court action necessary. Article 172 of the Mudawana states that “The court may resort to the assistance of a social worker to prepare a report on the custodian’s home and the extent to which it meets the material and moral needs of the child.”

7. In what circumstances would the proceedings contemplated in (6) be initiated?

In any of the situations covered by Article 54 of the Mudawana (as set out above).

8. Prior to the mother’s removal of SR from the jurisdiction of Morocco what rights did the father have under Moroccan law in relation to SR?

The father had obligations towards SR as a parent rather than rights. Custody would have gone to the mother under Article 171 of the Mudawana. The father would have had the right to contact under Article 180 and the right referred to in the question below.

9. Did the father have any right, without applying to court, to object to the removal of SR from Morocco by the mother?

Article 179 of the Mudawana gives the court the ability to impose restrictions. In the absence of a court order, the commentary that I have read appears consistently to state that a father must approve a child’s departure from Morocco. I have been unable to locate a specific statute or other piece of legislation confirming this point.

Your laws do not apply to me

I have written before about the Freeman of the Land phenomenon, last time using a Tom Jones lyric, this time it is Billy Bragg.

http://suesspiciousminds.com/2013/12/18/now-you-found-the-secret-code-i-use/

It doesn’t tend to work, when you try to use legal gibberish to persuade a Court that they have no power to deal with your case or make decisions.

Her Honour Judge Lynch dealt with this sort of thing very well in Re A Child 2015   (none of this is binding precedent but it is illuminating nonetheless)

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B34.html

 

The backdrop to this was that very serious findings of sexual assault against the children were made against the step-father, and mother was found to have failed to protect. Criminal charges for these matters are pending against the step-father.

The mother and step-father in this case refused to participate in a social work assessment. An independent social work asssessment was arranged and they refused to participate in that too. They also made various applications in the High Court about the Judge.

Sadly, given how things turned out as a result of this, the mother had started off the proceedings in a much better way:-

At the very beginning of these proceedings the mother filed a statement acknowledging she could not put her head in the sand and needed to engage with the court process. She said that she realised she could not remain in a relationship with her husband due to the findings made against him and she said she was prepared to separate from him and put her daughter’s needs above her own. She said her husband accepted that and indeed he confirmed that in his own first statement.

That would have made her prospects of success at final hearing much better if she could have seen that through.

 

However, by final hearing, they were refusing to accept that the Court had any jurisdiction over them and the child and – this is a new one on me – they put their Child in Trust. They also refused to name the child. (presumably on the basis that if the child had no name then she did not exist as a legal entity. Wrong)

 

  1. Turning to the parents case, I should say at the outset it is very clear to me from the documentation they have filed that they do not accept the authority of this court to make decisions regarding their daughter. The father’s first statement from last July, prepared when he was represented by solicitors, exhibit a document setting out his principles and beliefs, relying on for example ‘Canons from the Canonum de Ius Positivum’. In the final documentation filed by the parents on 23 February they have provided a number of documents written in a quasi-legal fashion and which are not always easy to follow. It is maybe simplest to give a sense of this by quoting from the front page these words : “This skeleton argument is valid assertion of divine, inalienable and natural rights, and all right here asserted and reserved are subject to accepted law through justice as preserved by the Holy Bible, Universal Declaration of Human Rights, European Convention on Human Rights, Human Rights Act 1988, Bill of Rights, Lex Mercatoria, Treaty of International Law, Apostolic Letters issued motu proprio by the Pontiff Francis II”. I confess I have found it hard to make sense of their view of authority, their philosophical stance.
  2. The parents have also, as I understand their documentation, placed their child within family trust – as they put it, “we have settled her entire Legal Estate into a Private Trust”. As I understand it they take the view that disclosing information pertaining to the existence of the child would be a breach of that private trust, which to them includes the registration of their child’s birth.
  3. I am not going to address these issues in any detail but I am clear that this court operates within the legal structure of this country, is a lawful body, and has power to make decisions regarding this child. I do not accept that purporting to place her within a family trust precludes this court from making orders in respect of her.

 

The mother concludes in her final document : “Failure of the judge to consider that the Applicant has proven NO valid cause of action against 1st Respondent and the Applicant holds NO LEGAL TITLE and that 1st Respondent gives NO CONSENT to adoption will result in a clear breach of COMMON LAW, CONVENTION RIGHTS, FRAUD ACT, COURT RULES and all necessary laws that prohibit forced adoption and the judge will unfortunately be held personally liable for abuse of public office and the said breaches of any court order authorizing the abduction of 1st Respondent progeny.” [E183] She therefore requires that the child should be immediately returned to the care of both parents or alternatively the case should be transferred to a High Court judge to determine the case.

The Canons stuff is very peculiar if you look it up. http://one-heaven.org/canons/positive_law/    This is not some cobbled together “Property is theft and down with The Man” nonsense – this is something that somebody has put a LOT of effort into.  It might very well represent a different and better version of law than that used by sovereign states – I haven’t time to do the analysis.

But it is no more binding law than it would be binding for me to write down on a piece of paper  “George Osborne must pay Suesspicious Minds ten million pounds and Suesspicious Minds must be allowed to be in the next series of Game of Thrones and he must be allowed to be tougher than Bronn,  Ned Stark, the Hound and Oberyn Martell put together” and expect a Court to enforce it.

 

The parents declined to give evidence during the hearing. The local authority wished to cross-examine them and invited me to compel the parents to give evidence. I did so direct, warning them of the consequences, but each of the parents refused to give evidence. I have therefore had to look at their written evidence in the light of that refusal.

 

The judgment is very thoughtful, very careful and very fair. Sadly for this mother, her belief that this mumbo-jumbo would save her prevented her from the reality of her situation, that what she had said at the outset would probably have resulted in the child being with her, if she had stuck to it.

This mumbo-jumbo is dangerous.

You can rail against the law, argue that the law is unfair, campaign to change the law, try to change the law via appeals or lobbying your MP, but you can’t just put your fingers in your ears and say “This law doesn’t apply to me, la la la”

Children travelling to join ISIS

The Tower Hamlets case attracted quite a bit of media attention, and the judgment is now out. It contains quite a bit of practical guidance for all agencies where there is a concern that a child is going to be sent or going under their own volition to a country such as Syria with an intention that they join a terrorist organisation such as ISIS.

Tower Hamlets v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/869.html

The case was heard, alongside another one mentioned in paragraph 6, by Mr Justice Hayden.

The Judge recognised that the seizure of the children’s passports did not require any evolution or extension of the law, but could be done under existing provisions, but did set out some practical recommendations to be followed.

 

  1. This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself. For example, the jurisdiction was recognised in Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.
  2. Both cases came before me last week on ex parte application. I was satisfied, on the evidence presented to me, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent. I remain convinced of both.
  3. The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.

 

The Judge went on to explain that by candour, he did not just mean honesty and that this was a given, but that the evidence presented to the Court for such an application must be the fullest possible, and that even evidence that would seem to be harmful or hinder the application must be shared with the Court.

  1. Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.
  2. This duty, in such an application, extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.
  3. Moreover, the lawyers involved must take great care to emphasise and reinforce this obligation to their lay and professional clients in clear and unambiguous terms. This very high degree of candour must also be accompanied by careful consideration as to whether the facts present a real degree of urgency, which of themselves necessitate an application being made on an ex parte basis.

There were a couple of points in the Tower Hamlets case that prompted that – the first being that the orders made necessarily required the police to take a number of actions – the Court had understood that the police were aware and supportive, only to learn at a later stage that the police were unhappy about some of the things they had been asked to do.

This was very serious. Counsel for the Local Authority had specifically addressed the Court on this, and his instructions had been plain that the police supported the Local Authority applications and said so unequivocally to the Court twice. [I will make it really plain that the Judge was satisfied that Counsel had been sold a pup, rather than was intentionally misleading the Court]

 

  1. I had been told by Mr Barnes, counsel who appears on behalf of Tower Hamlets, at the first hearing, on 20 March, when the Local Authority appeared alone, that the police supported the Local Authority’s actions. In fact, I twice asked whether that was the case, and twice Mr Barnes reassured me, unequivocally, that it was. I have no doubt at all that those were his instructions.

Hoerver, after the orders were made, it had become obvious that the police had not been as involved in the process as the Court had been led to understand. To the point that the police had been liaising with the High Court tipstaff about wanting to see if the passports could be handed over voluntarily by the families, and the Judge suspended his orders.

 

  1. However, on Saturday afternoon, I received a telephone call from the High Court Tipstaff to inform me that the police considered that they had not had proper chance to evaluate the risk identified in the Local Authority’s application. And insofar as they had, they considered that enforcement of the orders might not be required.
  2. In essence, I was told, they wished to see if it might be possible to secure the surrender of the passports, as contemplated by the orders, by cooperation with the families.
  3. In view of the fact that this information, given to the High Court Tipstaff, came from a team specialist in counter terrorism, and I have been told authorised at very senior level, I ordered the immediate suspension of my earlier order.

 

That is obviously extremely serious, and the Judge rightly explored it further on the return date.

  1. However, during the course of that hearing, Mr Barnes confirmed that a misleading impression had indeed been given by the Local Authority to the court on 20 March.
  2. Whilst it is correct to say that the police had been informed of the applications, as I was told, investigation of how and when they were told, undertaken at my insistence, revealed that they had only been notified of the application at around 2 o’clock on 20 March by email and had, therefore, no real chance to consider their response.
  3. I pause to say that by 3.30 that afternoon the Local Authority were already before me.
  4. I regret to say that I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.

Very serious indeed.

 

The second was that there had been an issue over whether one of the children’s passports was (a) missing and (b) whether it was expired in any event. This was obviously a very critical point, given that what was being sought was orders to prevent the children leaving the country. The Court had been given information about this, in good faith, that later turned out not to be accurate. (It is all set out at the end of the judgment if you want to know more)

 

I should like to take this opportunity to distil a number of core principles.

(i) The lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it. This should be undertaken before coming to court. That will not only expedite the subsequent service of the orders on those concerned, it is also a crucial forensic discipline, compelling the lawyers to think in a properly focused manner about the specific orders they seek;

(ii) Thought should be given, from the very outset, as to how quickly the case can be restored on notice. This is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights;

(iii) Even though these cases will, of necessity, be brought before the court in circumstances of urgency, they nonetheless require the instruction of senior and experienced lawyers. The issues have profound consequences, not limited to the individuals concerned, and will frequently require a delicate balancing of competing and potentially conflicting rights and interests;

(iv) All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail;

(v) It will never be satisfactory, in applications of this kind, merely to offer verbal assurance, through counsel or any other individual, that the police, security forces or those involved in counter terrorism, are aware of and support the application. There must in future always be ‘hard’ evidence, i.e evidence which is cogent and coherent, placed before the court and capable of being subject to appropriate scrutiny. The format of the evidence may vary from case to case. It may require a police presence in court. There may be the need for police/counter terrorism officers to be represented, written and sworn statements may sometimes suffice. On occasion evidence may be received by secure telephone or video link;

(vi) Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process. In both cases this week, the press attended. It was only necessary for them to withdraw on one occasion, at the request of a very senior police officer present in court, supported by the local authority. The request was made because sensitive issues of policy and national security arose. Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system;

(vii) Recognising that there will be an urgency to these applications, careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity. In this exercise, it should be remembered that some of the families involved may already have excited a degree of press coverage. Indeed, they may, on occasion, have sought it out. There is a risk that identification of the children might be revealed by piecing together information already in the public domain, i.e. the ‘jigsaw effect’. As, in paragraph 1 above, and for similar reasons, the restrictions contended for should be drafted before coming to court;

(viii) Though it may appear trite to say so, an evaluation of the reporting restrictions, as I have been reminded by the press this morning, should always have at the forefront of the exercise the reality that publicity is not confined to the conventional or recognised media outlets, but extends, with inevitably greater challenges, to the wide range of social media likely to be the primary sources of information for these children, their peers and those with whom they interact more generally;

(ix) The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved, simply cannot be overstated. An ongoing dialogue in which each party respects, and I make no apology for repeating the word respect, the contribution of the other, is most likely to achieve good and informed decision making.

 

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