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“Friendly McKenzie, writing the words of a sermon that no one will hear”

Posted on May 16, 2013 by suesspiciousminds

{Am hoping for no more McKenzie Friend cases for a while, as am out of puns… }

 The Court of Appeal have decided another McKenzie Friend case – judgment not up on Baiili yet, so all comments qualified by the fact that I haven’t been able to read the judgment itself.

 RE F (CHILDREN) (2013)

 

In this case, the mother had been involved in care proceedings, a finding of non accidental injury was made and Care Orders had been made. The mother applied for permission to appeal and asked for M to be her McKenzie Friend. M produced a document in support of mother’s case.

 The LA objected to this McKenzie Friend being involved, and the Court heard the request for M to be mother’s McKenzie Friend without M being able to come into Court.

 The application was refused and thereafter the mother refused to participate in the proceedings on the basis that her article 6 rights had been breached. She then appealed.

 The Court of Appeal held that the Judge had been entitled to refuse M becoming a McKenzie Friend, although there was a presumption that a litigant in person should be able to have a McKenzie Friend, and also that the Judge was entitled to determine that although M had not been allowed to come into Court.

 Frankly, this case seemed to hinge on M herself, and the document submitted. (This is the extract from Lawtel’s summary, other case law websites are available)

 

The relevant Practice Guidance also assumed that the proposed McKenzie friend would be in court on the application for permission to act. However, the judge’s decision in this case could not be faulted. He had seen the statement produced by M. It was a striking document.

It made clear that M had embarked on a campaign concerning the family justice system and the conduct of the local authority, that she did not respect the confidentiality of the family justice system in other cases and in the instant case, and that she did not understand the role of a McKenzie friend, which was to assist with presentation of the case in court in a neutral manner.

It was clear that M had a personal interest in the instant case and expected to give evidence to make good her contentions. Her ability to be a McKenzie friend had been compromised by the statement. She claimed that she had the permission of those involved to disclose details of other cases, but the confidentiality of family proceedings was a matter for the court. 

Mother was entitled to a McKenzie friend, but M was not a suitable person for that role. If M had been in court on mother’s application, the judge would not have changed his view. He acted within the ambit of his discretion on the basis that M might not respect the confidentiality of the proceedings.

 The confidentiality issue is of course a good point  [although it could, it seems to me, to have been dealt with by making a reporting restriction order, or seeking undertakings]

 but is it a valid reason to refuse someone as a McKenzie Friend because they are a campaigner opposed to the current family justice system, and perhaps have strident views about it?

 They might not be the best person to coolly advise and assist the litigant in person, they might not be the best person for the role, but if they follow the Practice Direction (and if not, the Court warns them that they may have to be excluded)  shouldn’t the parent be able to choose who they want?

 A parent who has had their child removed might very well want someone assisting them who is of the view that family proceedings often get things wrong, that children are unnecessarily removed, that social work decisions need to be questioned.

 If one, for example, were choosing between John Hemming MP and Martin Narey, to be your McKenzie Friend   (and other McKenzie Friends are of course available, this is just as an illustration)  I can see perfectly well why as a parent you might want the one who is critical of the fairness of the current system.

 It appears to be that the document was so peculiar and wide of the mark that it spoke for itself.  And that if the M had held those views, but was respectful of the rules of behaviour and confidentiality, she could have acted as McKenzie Friend for mother.  I hope, and suspect, that this will be plain in the full judgment, that it is not the beliefs that M held that made her unsuitable, but the actions she took as a result of those beliefs.

The Court of Appeal do make it plain that mother is entitled to a McKenzie Friend, just not this one.

 Provided the McKenzie Friend conducts themselves properly in Court, it seems to me that a parent is entitled to seek out help from the person they choose; just as a parent who is represented is entitled to prefer to have a ‘tenacious’ barrister rather than a ‘dispassionate, forensic’ one to represent them.

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Four minute warning [or “last night the plans for a future war, was all I saw, on Channel Four” ]

Posted on May 14, 2013 by suesspiciousminds

Not law, rambling nonsense about the four minute warning.  Warning, warning, this post contains nuclear war, excessive amounts of 80s pop culture and possible references to Sting.

I realise, as one of the markers of getting old, that a cultural touchstone of my life, the “four minute warning” might well mean nothing at all to younger people, so before I start, I’ll explain what it is.

 Back in the days of the Cold War, where we were worried about Russians and nuclear war rather than Al Qaeda and suicide bombers, the Government had an early warning defence system. They would know, from monitoring at Jodrell Bank (a big telescope observatory station) if missiles had been launched, and then the Government would bring into play klaxons, sirens and alarms to let everyone know that we had four minutes before the missiles would strike.

Growing up in the 80s, particularly in a city that was within a five mile radius of several RAF bases, and with left leaning teachers who were all signed up to “Save the Whale” and “CND”,  I spent most of my formative years having these three facts drilled into me :-

(a)   You will need a degree to get a job, even a job stacking shelves, when you leave school, and there won’t be any jobs, thanks to “Mrs Thatch”

(b)   If you have sex with anyone ever, you will almost certainly catch Aids and die

(c)   You won’t know when nuclear war will come, and any day could bring that four minute warning, but it WILL come   [oh, and living where we do, you WILL be vapourised, no mutants and rebuilding society from the ashes for you, you will BE the ashes]

The school further emphasised point (c) by showing us the film “Threads” in which we saw a shopping centre not all that far from us get devastated by a fictitious nuclear war.  That certainly made going shopping at the weekend a much more haunting and terrifying experience. If there’s one thing worse than knowing you could be vapourised any moment, it is that you could spend your last moments alive trying on far too tight shoes in Clarks or looking in bad mirrors in Concept Man trying to work out if burgandy and mustard go together.

What a cheery adolescence that was, alleviated only by “Axel F”,  Gauntlet, Star Wars figures, Nike trainers, New Order,  the Um Bongo advert, Wilma Deering’s lipgloss on “Buck Rogers”  and Frank McAvennie’s blonde perm [these things not necessarily in order of preference]. 

So, it suddenly struck me the other day, that having lived under the shadow of nuclear war, and the four minute warning, an existential horror so incomprehensibly unfathomable in modern society that the only way I can explain it is to suggest that it made certain sections of the British public think that Sting of all people, was very wise, provocative and deep in his song “I hope the Russians love their children too”

that I hadn’t thought about the four minute warning for years. Does it still exist?

 Would we get more time now, as with satellites and better computers we might know earlier that the nukes were being warmed up?  Or would we get less, because technology in rockets has advanced and they would fly quicker?

This, by the way, is the message that would have been read out on all radios and on the BBC.  It is, you will agree, a great comfort.

http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/03_10_08nuclearattack.pdf

 Here is the cheeky opening which comes right out with the important bad news, just in case you were watching “Telly Addicts” and cursing that it had been interrupted by a party political broadcast. Don’t touch the “hoofer doofer” pops, this is it!

This is the Wartime Broadcasting Service. This country has been attacked with nuclear weapons. Communications have been severely disrupted, and the number of casualties and the extent of the damage are not yet known. We shall bring you further information as soon as possible. Meanwhile, stay tuned to this wavelength, stay calm and stay in your own homes.

 

Remember there is nothing to be gained by trying to get away. By leaving your homes you could be exposing yourselves to greater danger.

 

If you leave, you may find yourself without food, without water, without accommodation and without protection. Radioactive fall-out, which follows a nuclear explosion, is many times more dangerous if you are directly exposed to it in the open.

That’s pretty bleak stuff.

I have to say, I personally find the idea of this warning being more comforting if I imagine it being read out by Hugh Grant’s character from “Four Weddings and a Funeral”   – done with much more beating around the bush and nervous embarrassment at having to say it at all.

“Not quite sure how to say this, and I’m sure it comes as a bit of a shock to you all, it did to me, certainly, and I don’t really know why Mr Cameron asked me of all people to tell you, but the fact of the matter is… gosh, this is awkward. Hard to really know how to start. Is it best, all things being equal to break it gently, or just dive right on in there.

Imagine for me, if you will, the really absolutely worst thing I could be about to tell you. Imagine a bit harder. Are you thinking about mushroom clouds? If not, you’re not quite imagining the right thing… try again. In the words, perhaps of Michael Stipe, while he was still with REM in fact, it’s the end of the world as we know it. Erm, sorry.”

So, the news is, we no longer get a four minute warning. All of the klaxons and sirens have been dismantled (apart from, oddly, the one at Broadmoor). A combination of cost, difficulty of organisation, the realisation that the Electromagnetic Pulse that will accompany the nuclear missiles falling on nearer targets will probably wipe out electronic communication anyway, and oddly, the prevalence of double-glazing meaning that most people wouldn’t now hear the sirens, led to it being put to bed in the mid 1990s.

[Only in England could Safestyle UK  “I say you buy one, you get one free” be the driving force behind ending the public’s right to know that nuclear annihilation was imminent]

Judging from the conversations that we always had in the 80s about what we would do if the four minute warning came, cancelling it did not so much stop people carefully stockpiling water and salt and tinned fruit, as prevent a wave of pimply teenaged boys trying to cop off with any female in sight and “driving a yellow Lamborghini Countach at 160 miles an hour”

 I suspect that the reality of the situation would be that if we did get a four minute warning, there would just be utter panic, looting, a complete collapse of the internet and mobile signals as everyone tried to ring their loved ones/tweet something jaded and pithy about the war, and gridlock on the roads as everyone tried to either get home or get the hell out of the city.  [Or even more depressingly, people spending their last minutes watching that last episode of Broadchurch that they Skyplussed, on 16 x speed so they can die knowing who did it]

Just forty truck drivers blocking our supply of petrol for five days achieved much the same thing, so it doesn’t seem unfathomable that we’d get similar if not worse meltdown from a genuine actual crisis.

 I suspect, that given that all that seems to be gained from a warning is panic and misery, that the Government wouldn’t actually get Hugh Grant on the television to tell you to stay indoors (using the protective power of your double glazing) and to save your tinned peaches for later.

 Which means the only survivors of a nuclear attack on Britain would be pensioners (who are inside anyway, and have loads of tinned fruit), politicians (who get the secret warning and grabbed their expenses forms and headed to their bunker and drew up the Duck drawbridge), the inmates of Broadmoor, and people who were at home watching “Loose Women”.   What a glorious future we will have, when things are rebuilt.  Britain will be great again.

That was all a bit depressing. Who would have thought that nuclear war could be a bit of a downer, all in all? 

Here’s a picture of a yellow Lamborghini Countach, to cheer you up.

Brrrrrrrrmmmm

Brrrrrrrrmmmm

And if you are still feeling a bit blue, here’s Wilma Deering out of Buck Rogers.  If that doesn’t cheer you up, I’m out of suggestions. Perhaps find a clip of loveable TV scamp (and falsely rumoured “he’s an adult with a kidney disorder” ) Gary Coleman asking Willis what he is talking about.

Not quite enough frosted lipgloss in this one

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“As a drunkard uses a lamppost…”

Posted on May 14, 2013 by suesspiciousminds

 

 A discussion of the new CAFCASS figures on care proceedings issued by Local Authority area. Warning, contains maths, guesswork and ranting.

http://www.cafcass.gov.uk/media/147399/care_demand_per_child_population_by_la_under_embargo_until_9th_may_2013.pdf

 

“He uses statistics as a drunkard uses a lamppost – not for illumination, but for support”   – Winston Churchill

 

 They are interesting though, as the very least, they show up the real differences from area to area of the country. Some of that isn’t terribly surprising, one would not be shocked, for example that inner cities have higher rates of care proceedings than say Saffron Walden.  But there does seem to be quite a lot of variance even taking into account that different authorities have different social problems

 One might be surprised, for example, to see that Hackney have a lower number of care proceedings per 10,000 children than those notorious hot-beds of poverty, erm Kensington and Westminster.  Or indeed that Hackney’s figures on care proceedings per 10,000 children are now twice as high as they were in the 2008 post Baby P spike. Am scratching my head about that one.

 What is also, of course interesting, is looking at an authority and comparing it to its neighbours.  And also, as a long standing local authority locum lawyer, I can also use the chart as a handy guide to where I haven’t worked yet, and which authorities I’d probably be bored stiff in   (I won’t be taking a job in the Isles of Scilly any time soon, based on this chart)

 It isn’t terribly surprising that overall, one can see a big spike post Baby P  (that’s due in part to the increased referrals, in part to the greater willingness of local authorities to take action, in part due to a reluctance to manage risks at home that might previously have been managed, and in part due to the numbers having been artificially depressed by the double whammy of the PLO and the jacking up of court fees)

 Although 13 of the 94 authorities didn’t get this spike, they actually issued on a SMALLER proportion in the year post Baby P – including Hackney.

 You can also see that whilst a number of authorities have seen that spike settle down and decrease (though not back to pre Baby P levels) the overall trend is still increasing, from an average of 6 proceedings  per 10,000 children pre Baby P, to 8 the year after, to 9.7 in 2012/13.   And quite a few authorities are issuing MORE proceedings per 10,000 children than they were in the year post Baby P.

 [One should also bear in mind that most proceedings involve more than one child, so the actual number of CHILDREN subject to care proceedings per 10,000 children is higher than 9.7, how much higher is hard to say. I’d guess that the AVERAGE number of children per care proceedings is about 1.5 – you get a lot of babies, but also a lot of large sibling groups]

 

As the other CAFCASS stats show

 http://www.cafcass.gov.uk/news/2013/april_2013_care_application_statistics.aspx

 April 2013’s figures were 20% higher than April 2012’s  (which were themselves already a high base)

 And February 2013 hit 999 applications, the highest for any month ever.  (and bear in mind that February is a short month, and it is not historically one of the spike months – which are normally coinciding with imminent long school holidays, so June/July and Christmas period)

 On my guess, those 999 applications represent 1,500 children.

 And between March 2012 and April 2013, CAFCASS received 11,064 applications   (or on my guess, 16,000-17,000 children were made the subject of care proceedings in that year)

 This all makes me a little nervous  – because when you look at the national figures for adoption recruitment, the English authorities approved 2655 adopters in the whole of last year.

 http://media.education.gov.uk/assets/files/xls/u/20130326%20underlying%20data%20for%20maps.xls#’Map C’!A1

 

Now of course, not all of the children who came into proceedings need to be adopted – one hopes that MOST of them stay with mum and dad, some more are placed with family members, some of them will be too old to be adopted even if they can’t be placed with family members. So the 16,000 children is a MUCH MUCH higher figure than the children who need adoptive placements as a result of coming into care proceedings – I don’t have any hard data to extrapolate that. *

 *[Other than the same Government adoption stats that showed 2655 adopters approved in 2012, showed 5750 children waiting for adoptive placements, which I’ve written about previously. But that doesn’t tell me how many of those children had been identified as needing a placement THAT year  ]

 That might be one of those pieces of management information that Norgrove identified as being lacking in the family justice system – what are the outcomes for children who come into the public law Court arena?   Would be much better to have some proper hard and fast statistical analysis, rather than my hamfisted bungling. 

 [By the same token, it seems to me utterly ludicrous that we have figures on the number of CASES, when what we want to know, what we actually care about, surely is the number of CHILDREN?  ]

 But it does seem to me, that there’s serious potential for more children to be coming into the State system than the State has resources to deal with. There are, of course, three ways of tackling that problem (if indeed it is a problem). Reduce the number of children who come IN to care proceedings, reduce the number who come OUT needing placements outside of families, and increase the number of adopters who can meet the need where the Court have made that serious decision. 

 I am in some doubt as to whether the Family Justice Review changes are going to reduce the numbers of children coming IN, or the numbers coming OUT. 

 Of course, I could quite easily be wrong, and just be a pessimist clutching at lampposts in the absence of straws.

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“I’m on the edge, the edge, the edge, the edge…”

Posted on May 13, 2013 by suesspiciousminds

The Judith Masson (et al) research on families on the edge of care proceedings is now available 

http://www.bris.ac.uk/law/research/researchpublications/2013/partnershipbylaw.pdf

 It is a long and dense piece of research, but no less interesting for that. As ever with Judith Masson’s research, the paper itself is a lively read and if you wanted to get a real sense of context of the whole system of family justice, it would be a very good starting point.

 It really tackles the “pre-proceedings” element of intervention and working with families, which is going to become more and more important as the new changes come into force.

 Masson highlights how wide-ranging the participation in pre-proceedings work varies across authorities and indeed how wide-ranging the underpinning philosophies and aims of it are, from being a chance to bring about change, to an opportunity for parents to turn away from a course of action or get the help they need, to a recognition that it is fair and ‘right’ for parents to be warned of consequences, right through to it being ‘a mandatory’ step which has to be gotten through.

 

The research also shows how we ended up with this disparity and range of views, given that what happened was a top down imposition of requirements to have a meeting and a letter and to file a record of the meeting, but without there being any guidance or philosophy as to what was to be achieved.

 

The real headline from it is one which most professionals will recognise, that the Courts did not recognise or value pre-proceedings work,

 

 They [Judges}  preferred cases to come direct to court so that they could control what was done, and felt that the pre-proceedings process would only serve to delay cases which would inevitably need to come to court.

These judges were aware that local authorities were discouraged from undertaking assessments in advance of proceedings by court decisions to order further assessments and, particularly, to expect the local authority to contribute, financially, towards these. However, they felt constrained to allow parents to obtain further assessments, so the local authority’s assessment could be tested in a fair hearing; because they felt that local authority social workers’ assessments were not of the required quality and often merely reflected what their managers wanted; and to prevent their decisions being overturned by the Court of Appeal:

 

‘[The process] would work much better if there was a mechanism in court for us to say more robustly than we have in the past: you don’t need another assessment.’ Judge 6

 

‘[I]t’s so much easier to, say, spend £5,000 doing another assessment and the appeal won’t occur.’ Judge 7

 

These judges were not unique in mentioning the spectre of the Court of Appeal (Pearce et al. 2011). Indeed, the former President of the Family Division sent a letter to judges on case management in response to concerns hehad heard about the need to order further reports to avoid criticism of their decisions (Wall 2010).

 

and that as a result of Judges routinely commencing fresh assessments rather than actively considering the existing assessments, there was no real discernible difference in the time it took to conclude care proceedings in cases where there had been active and detailed pre-proceedings work from the ones that were issued with no pre-proceedings work.

 

And when Masson adds the work done pre-proceedings (after a formal meeting with parents and their solicitors) to Court proceedings, then it turns out to take nearly 70 weeks to get a decision for children if you do pre proceedings work, and around 45 if you don’t bother doing any.

 

She highlights this as being a core issue, going to the heart of care proceedings.  Is the purpose of proceedings “to explore solutions to the problems of parenting through ‘investigation, assessment and management of change’” (Hunt 1998)  OR is it “to determine matters by assessing the application, in the light of the evidence presented and the parents’ response”

 

I think either course is a valid approach for the State to take, and I would suggest that at the moment, we have currently the former, and may be about to move to the latter.  Personally, I think that there would have been a place for a proper debate about those issues, and it would have been nice for these to be transparent and up front, rather than a fresh approach being sidled in.

 

Masson also touches on the fierce debate about whether the removal of children is “too few, too late”  or “too many, too fast”  – she seems to me to come down more on the former, whilst recognising that much more intervention and support could be provided and properly targeted.

 Regardless of where you stand on those issues – I know many of my readers are on the “too many, too fast” side of things, it is interesting to see someone actually identifying that this is a genuine debate, with value on both sides and that the State really needs to decide what it wants from a child protection system.

 There are some really sound conclusions to the research, I hope some of them get followed   (better funding for parents solicitors so that they can devote the pre proceedings work the time it needs is particularly important)

 I was taken, particularly, with Masson’s comments about how large changes in the family justice system occur. Of course, she approaches this from the viewpoint of an academic and researcher, but it is a perspective I’ve not heard or considered before, and so I wanted to share it with you [underlining is my own, for emphasis]

 Many of the changes to care proceedings practice since the implementation of the Children Act 1989 have been made not as a result of research evidence or interagency consultation but through litigation. The removal of children under interim care orders, the requirements for without notice EPOs and the contact regime where new babies are not in their parents’ care have all been the subject of ‘guidance judgments’. These have imposed standards or procedures which have had major implications for local authorities, the police, carers and children.

The close consideration a judge gives to an individual case gives him or her the detailed knowledge of the factual scenario necessary to make a decision. It is neither designed nor intended to provide a wide understanding of the range of circumstances where similar issues arise. Moreover, in our adversarial system, the information the judge receives is not simply an objective account but is intended to influence the decision. For these reasons, it would be better if judgments which were intended to shape the operation of family justice were subject to review and discussion before they were published.

 

Research has a contribution to make to law reform. Understandings from theoretical work and experience in other jurisdictions can provide some indication about what might work, the problems and limitations etc. Empirical study of the operation of laws and legal procedures can provide knowledge about practice from a range of perspectives including from litigants themselves, countering beliefs based on anecdote, information derived from the unusual cases that feature in law reports, and from the most vocal in the system. It can supplement the limited information available from case management systems and reach parts of the process that such recording cannot reach. Without research evidence it will not be possible for the Family Justice Board to secure major improvements to the family justice system, or know whether many forms of improvement have actually been achieved.

 

 Now, if you’ve been following this blog at all, you’ll have picked up what a caselaw geek I am, but I think this makes a really important point.

 If you take as an example the contact case Masson raises, the decision that our now President made in judicial review case effectively (at least for a period of some years) overnight transformed the amount of contact that babies placed in foster care should have with their parents, and did so dramatically.  And that case, which had massive implications for family after family, child after child, local authority after local authority, was decided without hearing any evidence about what was best for a child, it was just what the Judge at the time, considering that case, felt was best.

 (Now, as we know, the current research on quantum of contact for babies is pretty fraught, and it is a hot potato; but people on both sides of that debate have at least attempted to research and establish whether contact twice a week is better or worse for infants than contact five times a week, rather than determining it on the basis of listening to four adversarial submissions and concluding which is better.  It is quite possible that overall  the lives of children were made much better by the President’s decision, it is quite possible that overall they were made worse, it is possible perhaps even likely that for some children having more contact was good and for some it wasn’t so good, but we had no way of knowing at the time, the whole system had to embark on a sea change in contact regimes as a result of one judicial opinion in one case)

 That gave me some food for thought.

 

 

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Fear of Commitment

Posted on May 10, 2013 by suesspiciousminds

Following the recent media outrage (or mock outrage, or manufactured outrage,  or slow news day outrage or perfectly appropriate outrage, depending on your standpoint) , there is now a practice direction on Commital for Contempt of Court, which, it makes plain, applies to Court of Protection cases too.

 The starting point is to try to do the committal hearing in public if at all possible, if there are sensitive matters, to deal with those by making a proper order about what can and cannot be reported, but if a case ABSOLUTELY has to be heard in private, there should be nonetheless a public notice  and a declaration in a public Court, stating the name of the person, broadly why they have been committed, and what the punishment is, and a suitably anonymised judgment published, put on Baiili, and available at reasonable expense to any interested party who asks for it.

 

All perfectly reasonable and sensible proposals. 

 

 

COMMITTAL FOR CONTEMPT OF COURT

 

PRACTICE GUIDANCE

 

issued on 3 May 2013 by

 

LORD JUDGE, LORD CHIEF JUSTICE OF ENGLAND AND WALES

and

SIR JAMES MUNBY, PRESIDENT OF THE FAMILY DIVISION and

PRESIDENT OF THE COURT OF PROTECTION

  1. It is a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court.
  1. This principle applies as much to committal applications in the Court of Protection (rule 188(2) of the Court of Protection Rules 2007) and in the Family Division (rule 33.5(1) of the Family Procedure Rules 2010) as to committal applications in any other Division of the High Court.
  1. The Court of Protection and, when the application arises out of proceedings relating to a child, the Family Division, is vested with a discretionary power to hear a committal application in private. This discretion should be exercised only in exceptional cases where it is necessary in the interests of justice. The fact that the committal application is being made in the Court of Protection or in the Family Division in proceedings relating to a child does not of itself justify the application being heard in private. Moreover the fact that the hearing of the committal application may involve the disclosure of material which ought not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order.
  1. If, in an exceptional case, a committal application is heard in private and the court finds that a person has committed a contempt of court it must state in public (rule 188(3) of the Court of Protection Rules 2007; Order 52 rule 6(2) of the Rules of the Supreme Court 1965):

(a) the name of that person;

(b) in general terms the nature of the contempt of court in respect of which the committal order [committal order for this purpose includes a suspended committal order] is being made; and

(c) the punishment being imposed.

This is mandatory; there are no exceptions. There are never any circumstances in which any one may be committed to custody without these matters being publicly stated.

  1. Committal applications in the Court of Protection or the Family Division should at the outset be listed and heard in public. Whenever the court decides to exercise its discretion to sit in private the judge should, before continuing the hearing in private, give a judgment in public setting out the reasons for doing so. At the conclusion of any hearing in private the judge should sit in public to comply with the requirements set out in paragraph 4.
  1. In every case in which a committal order or a suspended committal order is made the judge should take appropriate steps to ensure that any judgment or statement complies with paragraphs 4 and 5 and that as soon as reasonably practicable:

(a) a transcript is prepared at public expense of the judgment (which includes for this purpose any judgment given in accordance with paragraph 5 and any statement given in accordance with paragraphs 4 and 5);

(b) every judgment as referred to in (a) is published on the BAILII website; and

(c) upon payment of any appropriate charge that may be required a copy of any such judgment is made available to any person who requests a copy.

 

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“Fridges and unseemly turf wars”

Posted on May 10, 2013 by suesspiciousminds

 

 The Supreme Court has handed down its judgment in the adult care case, SL v Westminster 2013 which related to whether a Local Authority owed a duty under section 21 of the National Assistance Act 1948 to provide a man who was a failed asylum seeker with accommodation.

 http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0229_Judgment.pdf

 

As the Supreme Court themselves observed, up until the mid to late 90s, there was no suggestion that providing accommodation to failed asylum seekers was going to be the job of Local Authority social services departments, or that it would fall under section 21 of the National Assistance Act 1948 which is really intended to protect people who have health or other vulnerabilities, but that as the Government squeezed immigrants and asylum seekers in other pieces of legislation, those representing them began to turn their attention elsewhere, and section 21 came to be seen as a refuge of last resort to get accommodation for people for whom all other avenues had been cut off.

 

There followed what one commentator called an “unseemly turf war” (Slough, para 28) over responsibility for homeless asylum-seekers as between, on the one hand, local authorities under section 21(1)(a) of the 1948 Act and, on the other, central government under the new national scheme.

 

Parliament tried to engineer a resolution of this turf war by changing legislation, so that section 21 was amended

 

Section 21 of the 1948 Act (as amended in particular by the Immigration and Asylum Act 1999) provides:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing:

(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

 (aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely -

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute…

 

(Sub-section (1B) provides that “destitute” for these purposes is defined in accordance with section 95 of the 1999 Act.)

 

 

And thus, in order to trigger the Local Authority duty to provide accommodation under section 21 of the National Assistance Act 1948, the person must show that they have needs for accommodation that arise OVER and ABOVE just not having accommodation and being destitute, or that their health will deteriorate as a result of not having accommodation and being destitute.

 

[One could of course argue, that failed asylum seeker or not, the State should either provide the person with accommodation or take steps to remove the person from the country, rather than effectively stepping over the destitute person in the street, much like Phil Collins in the Another Day in Paradise video….]

 

The Council in this case were informed of SL’s circumstances – he had fled from Iran fearing persecution over his sexuality in 2006 and his asylum claim was refused in 2007. He attempted suicide in December 2009 and was diagnosed as suffering from depression and post traumatic stress disorder.

 The Council assessed him and considered that  SL needed support and services and that they could provide him with support and services but that he did not require the provision of accommodation as a result of his needs. 

The idea then, would be that it would be central government, rather than local government who needed to provide SL with accommodation. In reality, as know, that doesn’t happen.

 There is a considerable body of cases in which the person had some additional form of physical ailment or disability (for example having only one leg or in the NASS case, spinal cancer) and whether that triggered the s21 duty.

 

 

18. Lord Hoffmann summarised the effect of section 21(1A):

“The use [in section 21(1A) of the 1948 Act] of the word ‘solely’ makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.” (NASS, para 32)

 

The counter argument here, is that suddenly, failed asylum seekers were able to obtain s21 National Assistance Act accommodation if they were able to evidence some health problem or disability, even though that health problem or disability (were they NOT a failed asylum seeker) would NOT have triggered s 21 National Assistance Act accommodation

 

“Mr Pleming said that this case (Mani) demonstrated the absurd consequences of the decision of the Court of Appeal. If Mr Mani had been an ordinary resident, his disability would never have entitled him to accommodation under a statute intended to provide institutions for the old and retreats for the mentally handicapped. His entitlement as found by Wilson J arises simply from the fact that he is an asylum seeker. Such a conclusion is inconsistent with the policy of having a national support system specifically for asylum seekers. Furthermore, the decision undermines the policy of dispersal followed by NASS, which is intended to prevent asylum seekers from gravitating to London boroughs or other local authority areas of their choice. An asylum seeker who can produce a disability, physical or mental, which makes his need for care and attention ‘to any extent more acute’ than that which arises merely from his destitution, can play the system and secure accommodation from the local authority of his choice.” (para 48)

 

 

In the Slough case, the need for “care and attention” arose because the claimant was HIV positive and needed both various prescribed medications and a refridgerator to keep them in.

 

Lady Hale determined that this did not trigger a s21 need for accommodation

 

“I remain of the view which I expressed in R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545, para 22, that the natural and ordinary meaning of the words ‘care and attention’ in this context is ‘looking after’. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded…” (para 33)

 

When the Court of Appeal considered SL’s case, they determined that the assistance and support that the Council were providing did amount to “care and attention” and that thus the s21 criteria were triggered.

The Supreme Court very neatly summarised the submissions of the various parties on the difficulties and merits or otherwise of SL being a section 21 case

 

Confined to their essentials, the respective submissions can I hope be fairly summarised as follows. Mr Howell submitted that:

i) Monitoring (or assessing) an individual’s condition at a weekly meeting is not itself “care and attention” for this purpose. It is rather a means of ascertaining what “care and attention” or other services (if any) the individual may need in the future.

ii) Care and attention means more than monitoring, or doing something for a person which he cannot do for himself. As Dunn LJ said in the comparable statutory context of attendance allowance (R v National Insurance Commissioner ex p Secretary of State for Social Services

[1981] 1 WLR 1017 at 1023F) the word “attention” itself indicates –

“something involving care, consideration and vigilance for the person being attended… a service of a close and intimate nature.”

iii) On the second issue, the services provided by the council, other than accommodation, could be provided under other statutory provisions; they were therefore “otherwise available”, and thus excluded from consideration by section 21(8) of the 1948 Act.

iv) Alternatively, in line with the reservations expressed by Laws LJ (para 41), and contrary to the decision of the Court of Appeal in Mani, the court should hold that the section applies, not to all those who need care and attention, but only to those who have an “accommodation-related need”, that is those who need care and attention “of a kind which is only available to them through the provision of residential accommodation” (Mani, para 16).

v) In any event, as the judge found, there was no link between any need for accommodation and the services needed by SL, which were being

provided wholly independently of the place where SL was or might be living.

37. Mr Knafler submitted in summary that:

i) “Care and attention” or “looking after” included not only intimate personal care, but any other forms of personal care or practical assistance. It is enough, in Lady Hale’s words, that the council is “doing something” for the person being cared for “which he cannot or should not be expected to do for himself”. Monitoring SL’s mental state was indeed “doing something” for him, and was no different in principle from “watching over” as described by Mr Howell’s concession in Slough.

ii) “Care and attention” is not an “accommodation-related need”. Care and attention can be provided to persons in residential accommodation under section 21(1)(a), and also to persons in their own homes under section 29 or other enactments. Longstanding local authority practice is to provide care and attention in residential accommodation when it can no longer be provided reasonably practicably and efficaciously in a person’s home, or elsewhere, having regard to all the circumstances, including cost.

iii) “Not otherwise available” means, as Laws LJ held, not otherwise available in a reasonably practicable and efficacious way. In this case, SL needed care and attention because he needed accommodation, basic subsistence, personal care and practical assistance. That “package” was not available at all, otherwise than by the provision of residential accommodation. Alternatively, looking simply at the care he needed for his mental illness, and given that he was homeless and destitute, the necessary care was not available to him in any reasonably practicable and efficacious way, otherwise than by providing him with accommodation as a stable base.

 

The Supreme Court concluded this

 

 

44   . What is involved in providing “care and attention” must take some colour from its association with the duty to provide residential accommodation. Clearly, in light of the authorities already discussed, it cannot be confined to that species of care and attention that can only be delivered in residential accommodation of a specialised kind but the fact that accommodation must be provided for those who are deemed to need care and attention strongly indicates that something well beyond mere monitoring of an individual’s condition is required.

 

 

45. Turning to the second issue, and assuming for this purpose that Mr Wyman was meeting a need for “care and attention”, was it “available otherwise than by the provision of accommodation under section 21”? Although it is unnecessary for us to decide the point, or to consider the arguments in detail, it seems to me that the simple answer must be yes, as the judge held. The services provided by the council were in no sense accommodation-related. They were entirely independent of his actual accommodation, however provided, or his need for it. They could have been provided in the same place and in the same way, whether or not he had accommodation of any particular type, or at all.

 

 

 

48   . The need has to be for care and attention which is not available otherwise than through the provision of such accommodation. As any guidance given on this point in this judgment is strictly obiter, it would be unwise to elaborate, but the care and attention obviously has to be accommodation-related. This means that it has at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home. So the actual result in Mani may well have been correct. The analysis may not be straightforward in every case. The matter is best left to the good judgement and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the court.

 

 

 

I love the continued optimism of the higher courts (as underlined) , here as in cases of designated authority, ordinary residence, section 117 after care funding, mental capacity, whether a young person presenting as homeless is section 20 Children Act, whether the burden of proof increases with seriousness of the allegations, that now that they have given a judgment, that will be the end of all that nonsense, and nobody will ever quibble about the facts of a case and try to put something in one box or another – it will be plain and agreed in all cases exactly which side of the clear bright line the case falls. Nobody need ever argue about it again.

 

It is, in my mind, rather akin, to that unbridled optimism with which the UK Foreign office decided that the best solution to disputed territorial claims was partitioning, which worked so well in Cyprus, Palestine, Berlin, Northern Ireland, (Korea, though the Americans were to blame on that one), Kashmir….        [That list seems to cover most of the world's trouble-spots and a cynical fool might suspect that there was some correlation there between a sticking-plaster solution and festering wounds later coming to life]

 

 

 

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“On the twelfth day of proceedings, my true love sent to me…”

Posted on May 7, 2013 by suesspiciousminds

 A purposeful and robust CMC

Or that is the plan in the imminent revised Public Law Outline anyway.

Let’s have a look, day by day, at what that might mean for the beleaguered parents solicitor.

On the first day of proceedings, my true love sent to me….

A notice from the Local Authority (don’t worry, they aren’t all going to rhyme)

I shall  assume that the notice is served on a Monday, marking day one of the proceedings, and the client promptly reacts to that by wanting an appointment with a solicitor, and they are able to get one that same day. Luckily, the solicitors diary has been freed up by the helpful LASPO changes, hurrah.

Day twelve is therefore a week on Friday.

That will, as we now know, be the CMC. Under the revised Family Procedure Rules 2010 and assorted Practice Directions, if a party seeks an expert assessment, they have to lodge a draft order and the raft of information with the Court not less than 2 working days prior to the CMC.

If you haven’t done that by the time of the CMC, it is very very unlikely that you’ll be getting an expert assessment.

So, by day 10 (the Wednesday of the second week), the parent’s solicitor needs to have drafted that order, got all of the information, and lodged that with the Court. Let us assume that the solicitor has no time out of the office and is able to draft all of that documentation ON THE VERY SAME DAY THEY GET THE INFO FROM THE EXPERTS

{This may not actually be realistic, I am looking at a counsel of perfection here, as if that needs saying}

Thus, the expert needs to have responded to all of the requests for information by Day 10. How long do we think we should give them to do that? Well, we’ve got a weekend at days 6 and 7, so it probably means the solicitor needs to send the expert the request by day 5. That gives the expert the grand total of three working days to complete all that information.

Our fantastically dedicated and efficient solicitor (and their fast-typing assistant)  sends the request for information out on the very same day that they draft the request, and they will do it all by email, because post would make this utterly impossible – that therefore means that the solicitor needs to have everything in place to know what expert they want, what questions are to be asked, by day 5 (which is probably the day after the first hearing).

So no prospect of getting any disclosure in, and you will know where the child is placed in the interim, and what the Guardian’s view of the case is for a whole day before making those strategic long-term decisions about expert assessments.

Day 1 Monday papers received – client comes in with all of them promptly

Day 2 Tuesday

Day 3 Wednesday Day

4 Thursday The first hearing, probably

Day 5 Friday The solicitor needs to identify what expert assessment might be required, formulate some questions, find some suitable experts and send off the request for information as required by the Practice Direction

Day 6 Saturday

Day 7 Sunday

Day 8 Monday

Day 9 Tuesday

Day 10 Wednesday Expert responds to the request for information, solicitor completes and lodges draft LOI, draft order and all the requirements under the Practice Direction

Day 11 Thursday

Day 12 Friday CMC

Oh, and you probably have to write your client’s statement too in that period. Luckily, as you can see, there are a full 5 working days where you are doing nothing whatsoever but twiddling your thumbs. [Apart from, you know, reading the papers, taking instructions, giving advice, contesting an ICO, preparing arguments as to why there should be an assessment, and looking after any other client you happen to have]

We are lucky on this plan that the care proceedings are issued on a Monday, as we only lose two days to weekends. If the proceedings are issued on a Friday, we lose four days to weekends. Heaven help any issued just before a bank holiday weekend.

I think if I were an expert, I wouldn’t be putting down any deposit on a new conservatory or a holiday cottage in the South of France, I suspect with that sort of timetable, instructions might well be drying up a bit.

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