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Mother and solicitor sitting in a tree…

 

This is a case called Re K v D (Parental Conflict) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/49.html

 

It involves a separated couple, who were described by the Judge as being “100% British, but with no intention of paying tax here” and who owned a mansion worth about £5.5 million in the name of a company, in the British Virgin Islands. They were involved in acrimonious litigation about their children.

 

And indeed everything else.

The parents’ legal bills have of course been rocketing. Paid and owed, they already exceed £½ million after only a few months of hostilities. The current figures, which do not include the costs of the other participants in the financial proceedings, are these:

Mother Children Act £147,000

Financial £170,000

Previous solicitors £47,300

Father Children act £88,400

Financial £51,900

A particularly unedifying aspect is the argument about maintenance for the children

On 18 February 2015, this court made a financial order at a hearing at which not only the parents but two other entities (including the BVI company) were represented. Having heard from no less than six counsel (three Queen’s Counsel and three junior counsel) the Deputy District Judge accepted undertakings from the father to pay the bills on the family home and the children’s school fees and ordered him to pay the mother monthly maintenance pending suit of £6,500 and a monthly litigation fund of £16,000. The net effect is that for every pound of maintenance for the family a slightly larger sum is due to be paid for the maintenance of just one of the four legal teams. In fact, since the order was so recently made and the undertakings given, the father has ignored it altogether. Apart from a payment of £3,000 in May, he has paid nothing. In four months, arrears of £113,000 have accumulated. The effect on the mother, and consequently on the children, is obvious, and their school places are under threat. Yet this is a man who was as recently as June 2013 given an unsecured loan of $1 million by a billionaire friend.

Yes, you read that right, the Court had ordered the father to pay £6,500 a month in maintenance for his children, but £16,000 a month towards his wife’s legal fees. Something has gone badly wrong here.

The father isn’t so far paying any of this. That’s not attractive. Even less attractive is not paying that maintenance and then doing THIS

(10) Despite his almost total default in meeting his financial obligations in 2015, the father, who has an empty property in Kent, stayed in a five-star hotel on Park Lane for four nights in May with his girlfriend and for six nights in the week of this hearing.

https://www.youtube.com/watch?v=MgGCIZi1UjY

As you can see from the name of the case, there was a sufficient amount of parental conflict for the Judge not only to remark upon it, but name the case after it.  Given what sort of stuff Judges see on a daily basis, when one names your case “Parental Conflict” then you may be taking this whole conflict thing too far.

However, not everyone in the case was in conflict.

The Judge had to deal with some allegations as to whether mother’s solicitor had gone the extra mile for his client….

 

(7) For her part, in September 2014 the mother instructed her current solicitor (no purpose would be served by naming him and the firm’s name is redacted in the title of this published judgment). They began a relationship about six weeks later. At the outset of the retainer the mother sold her car and paid the solicitor the proceeds of £20,000 for his legal services. Since then, she has incurred some £300,000 of legal fees, all unpaid. The couple has travelled abroad, with the solicitor taking the mother for a weekend in Barcelona in December and going with the mother and children to Paris during the February half term. The solicitor spent Christmas in the family home with the mother and children and is a regular overnight visitor to the home. As the father is in flagrant default in paying maintenance, the solicitor has been offering necessary financial support to the mother to cover some bills and expenses: instead of the client paying the solicitor, in this case it is the other way round. The propriety of the mother’s solicitor acting for her in the circumstances has been referred to the Solicitors Regulation Authority by the solicitor himself and by the father’s solicitors, and I return to this below.

 

If you are thinking that it is a bad, bad feeling to have a Judge question your propriety as a solicitor during a hearing, add into the mix that he is admonishing you about your love life, that he is doing this IN FRONT of your current lover’s ex-boyfriend, in the middle of a Court case about their children at which you are representing her.  That’s almost as though someone has gone into the head of a lawyer and used what they have learned to craft them the ultimate nightmare scenario.  The only thing lacking is that bit where you have to stand up and address the Judge and realise that you have no trousers on.   (I have that particular nightmare at least once a month.  Just me? Oh, well then I was just kidding)

It gets a bit worse for the solicitor later on. If you don’t like lawyers, or you are a fan of schadenfreude, keep reading.

 

The fact that THIS next paragraph barely rates a mention is illustrative of just how bad things were getting for this solicitor.

 

(9) Although she initially denied it, the mother was compelled to accept that at various times since October, her solicitor has been employing a private detective who has, I find, been following the father and no doubt making other investigations on the mother’s behalf. The mother, her solicitor and the detective dined together on the night before the mother gave evidence. The detective’s fees amount to £4,200, unpaid

 

No, I can’t see much wrong with taking your client / lover out for dinner the night before she is due to give her critical evidence.  And inviting your secret private detective along too.

 

What could be worse than the Court dissecting the fact that you are in a relationship with your own client, are paying her legal expenses yourself (?), spent Christmas with her, put yourself in a position where an allegation of coaching your client the night before her evidence could be made against you and getting yourself reported to the Solicitors Regulation Authority?

Well, what could be worse is putting yourself in a position where you might be called as a witness to give evidence in said case..

 

And then trying to claim that any and all conversations with the mother were covered by legal professional privilege, and so you wouldn’t reveal the contents.

Now, I’ve had clients in my time that needed a LOT of legal advice.  I mean a LOT.  But I’ve never had any that needed that advice to be dispensed over Christmas dinner, or in overnight staying visits at the house.  I am pretty sure (unless the relationship was the dullest in recorded history) that quite a lot of the time that the solicitor and mother spent together was NOT in the role of solicitor and client giving privileged legal advice.

At this point, I am sorely tempted to do a riff about the sort of technical legal questions that might be posed by a client to their solicitor during said overnight staying visits, but that is beneath me.  [It isn’t, but I’m sure you can think of your own material here, and it will be funnier than mine]

 

 

  • The last matter concerns the position of the mother’s solicitor. I have not been asked to make any order about this and do not do so. However, it is a matter that is plainly relevant to the interests of the children and the integrity of the court proceedings as a whole.
  • The mother wishes her solicitor to continue to act and the solicitor considers that he can do so.
  • There may be no absolute bar on a personal relationship between solicitor and client but in this case I see grave difficulties for a number of reasons:

 

(1) This is a highly acrimonious dispute and the personal involvement of the mother’s solicitor exacerbates it.(2) In the course of this hearing alone, there have been several moments when the mother has been challenged about situations in which her solicitor would be a compellable witness. Two examples arose in relation to events on Sunday and Tuesday of this very week. Another example concerns the visit to Paris at half term. The father says that E was told not to tell him about this. The mother denies that. Where does that place the solicitor?

(3) Another concern arises about the solicitor also acting for a Mr C, who is providing information to the mother about the father.

(4) I refer to the solicitor’s response to the concerns raised on the father’s behalf. Four letters have been written asking for an explanation of the nature of his relationship with the mother. The only reply has been this: “The meetings between [the mother] and representatives of our firm are subject to legal professional privilege. However, without prejudice to that privilege, we can confirm that no discussions concerning the case have occurred or will occur in the presence of or in the hearing of the children.” That entirely unsatisfactory and, I am afraid to say, disingenuous response (and the fact that every subsequent request for information has been ignored) demonstrates that the solicitor is in a situation where he cannot give independent professional advice to the mother.

(5) I have serious concern about the mother’s position should her relationship with the solicitor come into difficulties at any time in the future, and about the solicitor’s position should he be challenged about his professional service.

(6) Lastly, at the end of the hearing, the parties asked me to determine an issue about distribution of monies due to be received by the father and subject to a freezing order. Those submissions revealed that in February, when the District Judge ordered the father to pay the mother £16,000 for her monthly legal bills, the solicitor’s relationship with the mother was not revealed to the father or the court. It was plainly a material and disclosable fact on such an application and I was surprised to hear a contrary submission. I shall not direct the release of litigation funds at this stage. The hearing in July will be an opportunity for the father to put his case on the issue.

 

  • I am aware that the mother would be placed in great difficulty by the withdrawal of her solicitor, but the ends cannot justify the means if it is not proper for him to be acting.
  • I direct the parties to refer these observations to the SRA and, if the solicitor continues to accept instructions, to any judge conducting future hearing

 

I am prepared to go out on a limb here, and say that if, as a lawyer, the final sixteen lines in a High Court judgment are ABOUT YOU, then things have gone badly wrong.

 

I don’t know what to advise this solicitor, who is clearly so irrestible to women that any thoughts of propriety have to go out of the window. Perhaps, and this is all I can offer, consider changing your aftershave?

 

 

Anonymity for victim of child sexual abuse/exploitation

 

The High Court considered an application to extend a Reporting Restriction Order on a 17 year old, AB, which would expire when she became 18 to be throughout her life.

 

Birmingham City Council and Riaz 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1857.html

AB was the victim in a high-profile case of child sexual exploitation – you may remember it as the one where Keehan J, in the High Court, made an order that the adult males suspected of having abused AB would be (a) subject to orders preventing them from being around children and (b) named and shamed, so that the press were able to report their names and print photographs alongside a story that they were men who had targeted and groomed children for sexual purposes.

 

Remember that in that case, there had been no criminal trial and was never likely to be, and that the men had not gone through a process of contesting the allegations and having the Judge decide whether they were true.  Just that on the civil standard of proof the evidence was such that an order preventing them from harming other children was appropriate.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html

The Local Authority, Birmingham applied to extend the Reporting Restriction Order on AB for her whole life. They argued that AB was a victim, that any story about the case could be told without her name, that she had been a child and deserved protection not press exposure and no doubt that if the result for AB of having told her story and made her allegations was that she was made notorious and everyone who met her would know for the rest of her life what happened to her, that would deter other victims.

The Press were not arguing that they wanted to name her, but were concerned about a precedent emerging.

When looking at the case, Keehan J identified that as a result of s78 of the Criminal Justice and Courts Act 2015, Criminal Courts had the power to make orders saying that the name of a victim or a witness could be subject to an order that it not be reported.  There is also an authority of the Court of Appeal JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 that permits such orders being made to preserve the anonymity of children who receive financial settlements.  Again, that makes perfect sense – if you receive compensation for something terrible in your childhood, why should everyone that you meet in your life get to know all the personal details?

 

With this sort of case, it is more tricky.

As was put to Keehan J, an order preserving the anonymity and identity of an adult [other than as the result of Court of Protection or care proceedings/adoption] has happened in three cases in English legal history.

The cases are all pretty notorious – Mary Bell, Thompson and Venables, and Maxine Carr.  It is no small thing to add a name to that list.

On the pro side of things, I’d probably argue that those were all people who did something wrong (and where a child died as a result – Maxine Carr having the lowest culpability), whereas  AB was a victim. Why on earth should a victim get less protection than a person who was responsible to some degree for the murder of a child?

On the con side, the three cases above involved a CHANGE of identity.  The press and public knew who Mary Bell and the others were, and indeed photographs were available. The press can publish those photographs even now. The public wasn’t being told that they couldn’t know that Mary Bell had killed a child, they just couldn’t know her new identity.

 

I’m struggling to be balanced here, since for me the case for AB to have anonymity for life is overwhelming, but I can see that it is establishing a precedent  (and just with the inherent jurisdiction cases, there’s a later danger that such a precedent in a deserving and solid case can be later used to advance the jurisdiction further and further away)

Mr Dodd, for the Press Association  (given a tricky brief) did pretty well with it

  1. Mr Dodd submits that the court should proceed cautiously before filling in a lacuna left by Parliament. He referred me to paragraph 20 of the opinion of Lord Steyn in the case of Re S(FC) (A Child) [2004] UKHL 47 where he said:

    “20. There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.”

  2. Of particular note is the caveat entered by Lord Steyn to the courts creating further exceptions to the general principle of open justice “except in the most compelling of circumstances”. 

 

 

Keehan J considers matters in a very thorough manner and it is an exemplary judgment  (whilst I think that some of the analysis in the initial Riaz case is not as rigorous as I would have hoped, given the serious nature of what was being done there and the likelihood that the approach would be used in other later cases, I can’t fault this judgment)

 

  1. Discussion
  2. I entirely accept the high importance accorded to the general principle of open justice. It was because of the considerable public interest in the issue of CSE that I directed the matter to be heard in open court in October 2014 and thereafter.
  3. The mere fact that there are only three reported cases of lifelong anonymity being granted in civil/family proceedings, should not deter me from undertaking my primary task which is to undertake a rigorous analysis of the competing Article 8 rights of AB and the Article 10 rights of the press and broadcast media.
  4. It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.
  5. What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.
  6. AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.
  7. I accept the Press Association and the Times do not wish to identify AB, but their approach does not bind and may not reflect the approach of other members of the press or broadcast media or those who use social media sites.
  8. I take account and accord considerable weight to the serious adverse consequences for AB if she were to be identified as a victim of CSE in the press, broadcast media or on social media sites. I accept the opinions and conclusions of the social worker and the psychologist. AB remains a very vulnerable young woman. In my judgment adverse publicity about her as a victim of CSE is likely to have a serious deleterious effect on her emotional and psychological well being.
  9. I have earnestly reflected on this difficult issue of whether I should grant a RRO to afford AB lifelong anonymity. I have taken account of the high priority accorded by Parliament and the courts to the protection of victims and especially to young people.
  10. I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB’s history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.
    1. I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.

 

 

 

 

So, what IS the explanation for the huge drop in adoption decisions?

Following on from earlier blog post about the adoption stats

http://suesspiciousminds.com/2015/06/29/the-adoption-statistics/

 

 

[I coined the word ‘Jelfie’ today, to refer to the act of a Judge quoting themselves in a judgment.  To be even-handed, the fact that I am writing a post in which I link to my own post must be classed as a “Quelfie”  – or quoting/selfie. For shame, Suesspicious…]

 

So, you look at the graph and you see numbers of ADM decisions for adoption, and then you see those figures on the graph plummet, at exactly the same time that the Court of Appeal decided Re B-S and granted appeal after appeal after appeal. And those figures keep going down, but the astronomical drop is EXACTLY at the point that Re B-S came out.

That made me wonder. Just what DID cause that drop in the stats?

Is it that everyone in Local Authorities just got tired of adoption?

 

Is it Sarge?

Is it Sarge?

 

NO

 

Is it that as a result of the improvement in the economy that there were no longer any socio-economic problems that led to care proceedings?

 

 

Rosemary the telephone operator?  No way man

Rosemary the telephone operator? No way man

 

Is it anything at all to do with the Court of Appeal ?

 

 

Phenry, the mild-mannered janitor?

Phenry, the mild-mannered janitor?

 

 

COULD BE !

 

 

[Yes, I did do a blog post, just because I thought of a Hong Kong Phooey gag. That’s how I roll…]

Video-recording (life and death)

We’ve been having a lively debate about whether or not parents should be able to record their interactions with professionals, and there’s a piece over at the Guardian about it  http://www.theguardian.com/society/2015/jun/17/social-workers-under-scrutiny-parents-camera

 

I’ve today come across a Court of Protection case, decided by Newton J.

 

St Georges NHS Healthcare Trust and P 2015

Neutral Citation Number: [2015] EWCOP 42

https://www.judiciary.gov.uk/wp-content/uploads/2015/06/cop_khan_26.6.15.pdf

 

[There is also a Reporting Restriction Order in place, meaning that the family or patient should not be named. I had been nervous about the link above having a surname in it, but on making enquiries I’m reassured that it refers to one of the doctors involved, not the family surname]

 

This case involved a very ill man who had had a heart attack and due to a long period of time before being revived suffered hypoxic brain damage. There was agreement that if he had another cardiac arrest he should not be resuscitated.

The hospital had applied to Court for a declaration that they be allowed to withdraw treatment (renal replacement therapy) which would have the impact of causing the man to die. The family were opposed to this and were arguing that the man was showing signs of consciousness.  They were saying that he was in a Minimally Conscious State (MCS) and thus he could, though on a very low level, show some responses. The hospital opinion was otherwise and that the man had no responsiveness and thus no quality of life.

The bit of relevance for us is here:-

The family have always properly and steadfastly maintained and argued their position. But for their politely and cogently articulated stance, it may well have been that renal replacement therapy would have been stopped, and P would already no longer be alive. They endeavoured to support their efforts by the taking of video recordings of occasions when they said that P had responded to verbal communication. That position was strongly opposed by the Health Trust who contended concern about the privacy and dignity of other patients and offered the services of the Trust’s medical photographer. Surprisingly the Court was required to make a decision that they were (a) able to do so and (b) could rely in Court on those recordings. In fact those video recordings provided a watershed insight to the proper conclusion in this case. As I say, but for their persistence, and the consequent anxiety of the Official Solicitor I could have so easily concluded on inadequate evidence, as it transpired, a conclusion that would have led to P’s demise.

 

Breaking this down :-

 

A) The family said that they could see signs of response from the man, and the hospital disagreed

B) The family wanted to film the man, so they could prove that he was showing these signs of response

C) The Hospital opposed this, and the Court had to hear argument about it, and decided that the family could film him

D) The film proved what the family were saying, and were vital in the case

E) The man is still alive, because of that filming process

 

You can’t really get a stronger illustration than that.

 

As a result of the Judge seeing the video recordings, he ordered further assessment, that assessment concluded that the man was indeed in a Minimally Conscious State not a persistent vegetative state. Somewhat oddly, that conclusion led to the hospital asking for other treatments to be withdrawn.  (I can’t quite understand this myself, but the case had clearly got quite polarising)

The hearing has lasted five days over a considerably adjourned period, judgment being delivered on the 6th

 It is a very unsatisfactory way of conducting such a hearing. Having seen the very powerful and affecting video recordings of P myself on day 3 it became abundantly clear that further and proper assessment and enquiry was absolutely necessary and essential. As a result Helen Gill-Thwaites, a specialist occupational therapist, continued and carried out the further assessment using the internationally respected assessment process known as SMART. Additionally Mr Derar Badwan, a leading expert in neuro rehabilitation directed the optimum circumstances for that and his own subsequent opinion to be investigated and formulated. Their united opinion and evidence was that at this stage of assessment it was clear, as the family had always contended, that P was in a minimally conscious state. I confess I am very troubled that in apparent response to that expert opinion the Trust’s reaction (without issuing a further application) was to apply to withdraw a whole raft of other treatments. That inexplicable development seemed to me at best to illustrate the widening the gulf between the family and those who were treating P, at best a hardening of mind. That view was fortified further when it subsequently emerged during the course of evidence (when Dr Dewhurst resumed evidence) that Dr Khan, the consultant neurologist responsible for P’s treatment, had recently changed his mind and now considered that P was in a minimally conscious state and had emailed that view to the Trust’s solicitor. All counsel seemed unaware of that development; certainly the Court was, and it is disappointing that this important information should in fact surface in this way. I do not think this represents bad faith but a reflection of the litigation as a whole. As I have already made clear I do not doubt the very great sincerity of the consultants involved in the care of P, but having regard to the Court’s strong presumption in preserving the sanctity of life and of the overarching principle that should be borne in every case with this background it was a surprising development. The law regards the preservation of life as a strong fundamental principle.

 

The Judge describes what nearly happened here (and the absence of the testing process which is recommended in the guidance) as a ‘cataclysmic injustice’.   It is somewhat rare to see the word ‘cataclysmic’ used and to not immediately conclude that the author is  wildly over-stating things.  This is one of those rare occasions when it was in my opinion merited.  [Bracing myself now for my commentator Andrew informing me that it should be confined to natural disasters or large scale tragedies]

This nugget is astonishing – in these cases, the rate of mis-diagnosis (i.e hospitals deciding that a person is NOT in a Minimally Conscious State and getting that wrong ) is 40%. Forty per cent… Of something as vitally important as that.

I have been told in this and in other cases that misdiagnosis (of people who are said to be in a vegetative state but are in truth in a minimally conscious state) occurs in a remarkably high number of cases, the rate of misdiagnosis is said to be some 40%.

 

It is something of a wake-up call – if medical evidence can be wrong about something so vitally important as whether a man would have any awareness if treatment was withdrawn, then we need to be cautious about it when it is something which is less concrete and more speculative  (such as a person’s ability to change, or whether they might or might not sustain a separation from another person or abstain from substances)

 

It is a very interesting and moving case, and once I am sure that the link does not accidentally give away something that it should not, I will share it with you.

 

 

 

 

The Adoption statistics

The Government have published their statistics (there’s a time delay, so these are the stats up to Autumn 2014)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436613/ALB_Business_Intelligence_Quarter_3_2014_to_2015.pdf

 

I suspect that the headline one  (which prompted all of those press releases in late April) is going to be this:-

 

 

Quarterly data suggests that the number of new decisions has continued to fall from 1,830 in quarter 2 2013-14 to 910 in quarter 3 2014-15, a decrease of 50%. The number of new placement orders have also continued to fall from 1,550 in quarter 2 2013-14 to 740 in quarter 3 2014-15, a decrease of 52%.

 

 

What they don’t have, is a measure of how many cases LA’s put before an Agency Decision Maker, so we can’t tell whether

 

  • Social workers were asking ADM’s for adoption approval less often, so less cases were approved
  • ADM’s were refusing a higher proportion of requests than previously, so less cases were approved
  • A combination of those factors  (which if so, would lead to even more of a drop – if social workers were only giving their ‘best’ cases for adoption to the ADM, but they were being knocked back, then you’d expect less and less cases to go to the ADM)

 

[And of course, what underpins all of that is whether social workers / ADMs were being overly cautious about the case law and not asking for adoption in cases where the Court would actually have made Placement Orders, or whether they were being realistic and knowing that if they asked for adoption they wouldn’t be capable of satisfying their Court that the tests were met]

 

 

What really fits is the increase stats on Special Guardianship Orders  – I haven’t seen the raw data, but the BBC claim this has tripled since 2012 (BS cough cough)

http://www.bbc.co.uk/news/uk-32840224

 

When you look at the graph showing Agency Decision Maker decisions that adoption should be the plan for the child over time, you can see the numbers drop off a cliff at the time of the Supreme Court decision in Re B (nothing else will do).

 

You can argue (and it is a legitimate argument, where Re B and Re B-S were a new test, or a nudge in the ribs to apply the existing tests with proper rigour, and whether that’s a good thing or a bad thing) but you can’t really argue as the current official narrative has it, that this isn’t even a thing. The graphs make it really obvious.

The quarter BEFORE Re B-S, 1830 decisions by ADMs that adoption was the right plan for the child. Re B-S hit in September 2013, so it would be the third quarter of 2013 when ADM’s would have known about it. Those numbers, 1290.  It is the sharpest drop of the entire graph.  It has continued to slope downwards since then, but the bit in the graph that looks like abseiling down the Eiger is Re B-S. You absolutely can’t dispute it.

The Myth-Buster document was published in December 2014, so we can’t see from the stats and graph whether that has led to a reversal of the pattern in the graph. We’ll see that in about six months, I suppose. Similarly, whether the Court of Appeal’s softening of position on “nothing else will do” translates into an increase in ADM decisions that adoption is the plan.

 

[Cynically, I doubt it. I’m well aware that I am not a normal human being in my interest in case law, and I haven’t always had it. For about my first five years in child protection law, you could get by on three cases  Re G (interim care is a deep freeze affording no tactical advantage), H and R  (the nature of the allegation doesn’t increase the standard of proof) and whatever at the time was the law on residential assessments.  Re B and Re B-S, with their hard-hitting message and backed by a soundbite ‘nothing else will do’ resonate with people much more than the inching back, case specific, deeply nuanced and incremental Court of Appeal cases since that time.  Even the Re R case http://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  that was intended to slay the Re B-S myths is so nuanced that it takes nine or ten reads to have a grasp of what it is actually saying, and almost the day after you’ve done that, you couldn’t actually put it into a meaningful summary sentence]

 

 

[I argued before HERE  http://suesspiciousminds.com/2015/05/15/adoption-rates-in-freefall/  that the Press narrative that the case law will mean ‘children suffering in unsuitable and unsafe homes’ is an emotive over-simplification. I’d stand by that. At the moment, the case law on adoption has been going through its most radical changes in a generation, and it is certainly less predictable than it has ever been to decide what sort of case will result in a Placement Order and what won’t.  We are in a period of re-balancing. I don’t know yet whether these figures show that we have found the right level of those cases where adoption IS the right plan to put before the Court, whether there are even more drops to come, or whether there’s an over-reaction to it.   I have a suspicion, given that the entire history of child protection and family justice is about lurches from child rescue to family preservation and vice versa, and an eventual settling down at one particular side of the scale but hopefully not at the absolute far end of the scale…]

 

Given the huge push to recruit adopters – all the Government policies about making it easier, less time-consuming, less intrusive, more appealing , this statistic may get less attention but must be concerning

 

Registrations to become an adopter have decreased by 24% from 1,340 in quarter 2 2014-15 to 1,020 in quarter 3 2014-15. The number of adopter families approved for adoption has decreased by 3% from 1,240 in quarter 2 2014-15 to 1,200 in quarter 3 2014-15.

 

 

We will wait to see how the Court decisions that moved children from prospective adopters to the birth family (which is a completely new phenomenon, having not occurred at all prior to December 2014) has on adoption recruitment and retention.

 

 

The backlog (which had stood at 1 approved adopter for every 3 children approved for adoption) has been nearly cleared.

 

Our most recent estimate for the “adopter gap” suggests that the gap has closed, and we now have more adopters than children waiting. However, there are still 2,600 children with a placement order not yet matched and the relevance of this measure assumes that matching is working effectively.

 

 

The number of adoption ORDERS made is, they claim the highest since recording began

 

3,740 children adopted in quarters 1 to 3 2014-15

2013-14 saw the highest number of adoptions from care since the current data collection began in 1992, with 5,050 children adopted from care.

 

 

When I have looked at Court stats on adoption http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-316163   5050 looks like a pretty average year, with there having been figures nearly 50 per cent higher in the earlier 1990s.   (Now, it may be that the measure that is being used here is “Adoption of children who are in care” and that the Office of National Statistics figure bundles that in with ‘step-parent adoptions’,  so it is not a like-for-like comparison)

 

 

 

Finally, this statistic initially looks positive (how long does it take between a child coming into care and a child being placed for adoption  – you’d WANT that number to go down, since whether you want more or less children being adopted, most of us could agree that we wouldn’t want children to wait so long for a family to be found)

 

In 2013-14, the average number of days between entering care and placement was 594 days, an improvement from 656 days in 2012-13. Latest quarterly data suggests there has been a further improvement to 533 days. At 216 days, the average number of days between placement order and match in 2013-14 was a slight improvement on 2012-13. However, the latest quarterly data suggests that this has increased to 241 during quarter 3 2014-15.

 

 

The closer inspection is this :-

 

That since the 2012 figures, there has been legislation and huge resources expended on bringing care proceedings down from what was an average of 55 weeks to a target of 26 weeks.  That OUGHT to have had far more of an impact than 60 days being shaved off the time between entering care and a family being found.  It should be something more like a saving of 200 days. As the time from Placement Order to placement had gone slightly down (but was now going back up), that SUGGESTS that IF there is a saving of 30 weeks from start of care proceedings to Placement Order, but it results in only a time saving of 8 ½ weeks,  that there’s about 20 weeks unaccounted for.

 

Does that mean that :-

 

  • Whilst average time of care proceedings has gone down, it hasn’t gone down as MUCH for cases where adoption is the plan?  (That makes sense, as those are the ones that are most contentious and where all avenues tend to be exhausted?)
  • There’s been an increase in the time that children who go on to be adopted are spending in care PRIOR to care proceedings?  That “front-loading” element.

 

 

I don’t know how or if statistics on those issues are being kept.  It must be problematic that if we are compressing the time that care proceedings take, with all that involves, but barely reducing the time that a child waits between coming into care and a new family being found, have we really improved anything for the child?   (Note particularly that with the latest quarterly data, HALF the time that has been cut appears to have been lost by an increase in the family finding process.  216 days of family finding and matching post Placement Order equates to 30 weeks)

 

 

The notional 200 day saving from faster care proceedings isn’t turning into a real saving, and that feels counter-intuitive. What we’ve been told for years is that if decisions about children are made by the Courts quicker, the children will be easier to place  – they will be younger and have less issues (and thus, you’d assume, faster to place).

Discharge of care order (IRO takes a kicking)

 

One of my commentators asked me this week whether there were many authorities on discharge of Care Orders. I can’t claim any credit for the fact that a case has now turned up.

This is a case decided by a Circuit Judge, so it is not binding authority, but it throws up some interesting issues.  Particularly for, and about, Independent Reviewing Officers.  The judgment is critical of the Local Authority (but more about the systems than the individual worker concerned, though she is named)

 

Re X (Discharge of Care Order) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B217.html

 

This was the mother’s application to discharge the care order on her son X, who is now 14. That order was made in 2001. Very peculiarly, X was at home with his mother under a Care Order until 2010 (and the removal appeared to have happened following mother’s application to discharge the Care Order then).  X then came into foster care and has been there since then.

 

The mother had care proceedings on two younger siblings of X, concluding with no order in 2012. So those children live with her, there are no statutory orders and they are not open cases to social workers.

In the period since the court made its orders of June and December 2012, D’s two youngest daughters have remained in her care. There has been no statutory involvement from Social Services; it is therefore reasonable for the court to assume that the Local Authority has no concerns about the care provided to them. D, very sadly, has been involved on the periphery of proceedings relating to a number of her grandchildren, at least two of whom have been permanently removed. Her losses have continued, therefore, to be many and great.

 

X has autism, so has significant needs of his own.

 

I’ll do the law Geek bit first.

 

Geek point 1 – scrutiny of care plan

When the Children and Families Act 2014 was a twinkle in the drafter’s eye, there was much talk about changing the Court’s relationship with care plans, reducing the scrutiny of them down to the essential matters – no doubt with the hope that the time spent in Court proceedings micro-managing every aspect of the care plan and litigating about every tiny aspect could be cut out and that would speed things up. The Act duly did include a clause to the effect that the Court was only REQUIRED to look at

section 31 (3B) Children Act 1989

…such of the plans provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following

(a)the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family;

(b)adoption;

(c)long-term care not within paragraph (a) or (b).

 

i.e just a flat-out ‘where is the child going to live under this plan’.

 

I haven’t seen that really happen, and also I haven’t seen it appear in any law reports. Until this one

 

Section 31(3)(A) further makes clear that the court must limit its consideration of the prescribed elements of the care plan as to placement, and as the commentary in the Red Book suggests that must necessarily be limited to the form of placement, not the detail of it. I am, however, nonetheless satisfied that, in this case, the court can and must look at the implementation of the plan and its effect on the child in order to complete the welfare evaluation.

 

Which is a really elegant way of saying “The Act says that I’m not REQUIRED to look at the detail of the plan, but to decide the case fairly, I still need to”

 

Geek point 2 – Court keeping hold of the case to hold the LA to account

 

The Guardian in this case told the Court that she did not support the mother’s application to discharge the Care Order, but wanted the Court to adjourn the application, because the LA had made such a mess of things there was little confidence that if left to their own devices without Court scrutiny they would fix things.

It is submitted on the guardian’s behalf that the Local Authority has so failed in its duty as corporate parent to implement the final care plan approved by the court that it should be held to account and its future planning overseen by the court. The guardian urges the court to require the Local Authority to produce an updated plan that is coherent, choate and capable of implementation. The guardian supports the discharge of the Section 34(4) contact order. She does not support the making of a defined contact order in substitution, but invites the court to direct the Local Authority to confirm its commitment to contact at the level of six times a year in its revised plan

 

The Local Authority argued that the Court had no jurisdiction to do that. And if they didn’t use the words ‘smacks of starred care plan’ in their argument, I’d be highly surprised.

The Court accepted that there was no jurisdiction to adjourn the proceedings just to monitor the LA. But did decide that there were some material bits of evidence that were needed before mother’s application could be properly determined.  (so a half-way house). The Judge also ordered, that that evidence should be obtained through an independent social work assessment.

 

Geek point 3 – the legal approach to a discharge of care order

 

The Judge points out that the burden is on the applicant (i.e mother) to show that the order should be discharged

It is for Mother to satisfy the court that there has been a material change of circumstances and X’s welfare requires discharge of the care order.

But then goes on to say that in considering article 8, the Court would have to consider whether it was necessary for the Care Order to remain and to only continue the order if it was proportionate.

 

The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority’s continued intervention is proportionate

 

Those two things involve some degree of conflict – it seems that the burden is on mother to show that the Care Order should be discharged and simultaneously on the LA to show that it is proportionate for it to continue.

I’ve never seen that argument advanced. It seems in keeping with the spirit of Re B-S (where even if the Court has approved the plan of adoption by making a Placement Order, when the Court is considering making an adoption order, it still has consider whether the plan already approved is necessary and proportionate). But it jibes with a fundamental principle of English law that the burden falls upon the applicant.

I don’t want to say that the Judge is wrong here, and I’m not even sure that she is. I think it is a natural consequence of the need to apply article 8 to any decision made by the Court in family proceedings that the Court need to be satisfied that the interference (even continued interference) by the State in private and family life is proportionate.  I think that she has spotted something clever that I had overlooked.  It made my temples throb a bit to think about it.  I wonder if we will see this revisited.

 

Judicial criticism – LAC reviews

There were major issues in this case. One was that despite the child having been in care since 2010/2011 with a plan of long-term fostering, he was still waiting for a placement. Another was that the therapy and work that he obviously needed still hadn’t materialised.  (And if you are thinking “I bet they made a referral to CAMHS and that was the end of it”, then you are both a hard-bitten cynic and right. )

There was also the issue of contact, particularly contact with his siblings.  And the issue that the LA had basically stopped working with the mother altogether.

She is described as being ‘challenging and forthright’  (which is a bit like those obituaries you see of famous people that say ‘fun loving and gregarious’ when they mean ‘an alcoholic who was exhausting to be around’ or ‘was not one to suffer fools gladly’ to mean ‘was obnoxious and vile to everyone who worked with him’. )

 

 

But let’s quickly look at how little involvement the LA were having with this mother (who lets not forget was SHARING PR for this 14 year old)

It is unusual to come across a case where a mother who continues to share parental responsibility is excluded from the LAC reviews, is not provided with the name of the social worker working directly with the child, is not provided with information about the child’s school, receives no updates of his medical condition and no updates of his work with the therapeutic services. As far as I understand it, she was not even provided with redacted copies of the school reports.

 

Yes, you read that correctly. The LA weren’t even telling the mother the name of the social worker.

The bigger issue, however, with all of these things was, where was the Independent Reviewing Officer in all of this?

I mentioned ‘starred care plans’ earlier – if you are not one of my more breathtakingly beautiful and vivacious readers [translation :- older]  you may not know about starred care plans.  They were a short-lived invention of the Court of Appeal, to deal with the concern that where the Court approves a care plan and makes a Care Order, the LA then go off and run their Care Order and there’s no mechanism to get the case back before the Court to say “hey, they aren’t doing what they promised”.  The House of Lords squashed that mechanism but did say that there ought to be some form of mechanism created by Parliament to address the issue. As a result, Independent Reviewing Officers were created by Parliament – to scrutinise performance of a care plan and also giving them the ability to refer any breach to CAFCASS who could in turn apply to Court.   (Last time I checked, nationally there had been 8 referrrals and 0 court applications, so that’s working well)

 

29. The LAC reviews, whilst being required to consider the plan for permanence, appear to play lip service to the need to achieve this. There is no record of reasoned debate and discussion about the child’s need for permanence or how the plan for permanence might be reviewed and achieved. It is fortuitous that X has been able to remain where he is to date. It may be that he will remain there until he achieves independence. Nonetheless it is regrettable that the Local Authority failed to rigorously pursue suitable alternative long term placements for X or demonstrate a determination and clarity of thought in the allocation of their resources. The LAC review minutes do not demonstrate clear and strategic planning in the search for a family even during the period when the Local Authority knew of the equivocation of the current carers.

  1. It is generally acknowledged that the earlier a child achieves permanence the better. It is all the more important for a child like X, whose needs are necessarily heightened by his family history and his autism. I am advised by the IRO that there are significant resource issues for family finding, and finding long-term foster homes for boys is more difficult than for girls. I note the evidence of the independent reviewing officer, Mr Moore, who indicated that 75% of the children he was responsible for with a plan for long-term fostering were still waiting for a permanent placement more than two years after final order.

 

 

 

and later

  1. At this point, it seems to me appropriate to consider the role of the independent reviewing officer in X’s case. Mr Moore has been the independent reviewing officer for X since July 2012. Graham Moore provided a statement and gave evidence to this court. He is an experienced IRO, having been engaged in that role for the last five years. Before that worked as a Cafcass guardian. The IRO accepted that his role meant that he had responsibility for

    i) providing independent oversight of the Local Authority’s care planii) ensuring that the child’s interests were protected through the care planning process;

    iii) establishing the child’s wishes and feelings.

    The IRO accepted the statutory requirements of the LAC review process and that as IRO he was responsible for setting a remedial timescales where necessary.

  2. Whilst parents do not always attend LAC reviews, a system is generally devised to enable meaningful sharing of information following LAC reviews. Mr Moore told me that he had endeavoured to meet D in order to achieve this, but they had not been able to meet. Regrettably, no other practical system was implemented to enable the sharing of the outcome of the LAC reviews.
  3. The IRO accepted that the statutory guidance is clear; that where a matter is outside the control of a Local Authority, but is impacting on the ability of that Authority to meet the child’s needs the IRO should escalate the issue to ensure the child’s welfare needs are met. In this case the Access to Resources Team (family finding) failed to find a permanent placement for X in circumstances where his carers were clearly equivocal about whether they could offer him permanence. Yet the IRO did not escalate the issue. The IRO’s monitoring of the Local Authority search for a permanent placement principally rested on information provided by the social worker. The Access to resources team did not provide regular updates on the outcome of its searches.
  4. The IRO confirmed in evidence that he could not recall another case where a parent had been totally excluded from the LAC process for two and a half years. He accepted that Mother should have been receiving information from the school and had not received it.
  5. Criticism is made of the IRO for failing to robustly manage the Local Authority’s implementation of the care plan or pursue the requirement for permanence. I have no doubt that Mr Moore is an extremely hardworking and dedicated member of the Independent Review Team and I am saddened to reach the conclusion that, in this case, he failed to bring independent, robust and effective overview of the Local Authority management of the X’s plan.
  6. The independent reviewing officer is intended to be a robust mechanism designed to hold a Local Authority to account in the management of a child’s plan. In this case, the opportunities to impose remedial timescales and to escalate inaction and delay were not taken.

 

 

The ISW

As the LA had not been engaging with mother since X came into care, the Judge had no real evidence about a key facet of the case.  The Judge could see that mother was managing her two children at home with no concerns, she could see that X was still a challenging child with many difficulties, but there was nothing to show whether mother would be able to work with professionals in such a way that X could be cared for at home.

 

Most unusually in this case, however, I have no information at all as to Mother’s engagement with the Authority in consequence of the way in which the Local Authority have managed the plan, and no means of determining Mother’s insight and understanding of X’s changing needs.

 

  1. The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority’s continued intervention is proportionate. I am concerned that in the context of this application there is a lack of relevant information as to the nature, significance and degree of change made by Mother, and that it will be difficult to conduct the courts assessment fairly and appropriately unless that gap is filled.
  2. In my view, it will be necessary for the court, therefore, to receive some further evidence as to Mother’s ability to engage and work constructively with and to understand and demonstrate insight of the needs of X. Furthermore, the court requires an update from the Local Authority as to:

    i) the implementation of their care plan as to placement, therapy and contact and

    ii) the detail of the services the Local Authority would provide or could provide to support X if he were to return to the mother’s care.

    It is noteworthy that the court directed the Local Authority to provide details of the support services it would put in place if X were to return home by its directions of 4 November 2014. To date the Local Authority has failed to provide the details of those services.

    It seems to me that, absent this evidence, the court will be unable to complete the welfare evaluation. Counsel will need to address me as to the form of the additional evidence. I would be minded to direct the instruction of an independent social worker to complete a piece of work with D within four to six weeks. I am conscious that delay is inimical to X’s welfare and that this court needs to make a determination of the application for discharge as soon as is practicable.

  3. I consider that such an assessment will be necessary to enable the court to complete the welfare evaluation. I am conscious that no Part 25 application was issued, but it is clear to me, having heard the evidence of the mother, of the Local Authority, of the IRO, and of the guardian, that a gap remains.

 

Last minute evidence

 

Just as the parties were about to go into Court on this one, bearing in mind that a major issue was whether X could be found a permanent foster home (and his current carers having been saying that they wanted to foster three children, but if they offered a permanent home for X they could only look after him alone, because of his needs), news came that X’s current carers were willing to offer him a permanent home.

  1. In evidence on Monday, Ms Allen said she had just received confirmation from the team charged with family finding for X, that the carers had now made a firm decision to offer a permanent home to X. I was further told that the Local Authority have made a firm commitment to put resources in place to enable X to remain with his carers permanently as the sole child in their care.
  2. This change in the Local Authority’s case caused some consternation in the mother’s legal team. There had been insufficient time to share this change with the mother or with the children’s guardian before coming into court. I quite appreciate how difficult it is to share updating information in the scramble to get it into court, particularly where you have a judge who requires everyone to be in promptly, but it is most unfortunate that the team charged with family finding left matters so late as to create this difficulty. The mother and the children’s guardian are now perhaps understandably cynical about this new information. For the mother, it appears too little too late, and for the children’s guardian it raises questions about the carer’s motivation.
  3. Ms Little for the Local Authority reassures the court and the parties that the issue is not one of finance for the carers but rather their genuine desire to offer a home for three children rather than limiting themselves to one. The question of their motivation and the basis on which they are now able to offer themselves as permanent carer will no doubt be under review in the days following this hearing.
  4. It is nonetheless clear that, since at least December 2012, the Local Authority have been aware that the current carers were at best equivocal about X remaining with them on a long-term basis. What is not clear is what efforts the Local Authority’s Access to Resources Team made to find a permanent placement for X I am told that two referrals were made to the team, the first being the principal referral and the second an updating referral. Moreover I am told that Ms Allen spoke to the team from time to time and was satisfied that they were alive to his need for placement and knew of X’s placement needs. The searches appear to have been limited to two geographical areas in line with the wishes of X and the location of his current placement and school
  5. I am advised that no financial restraints were imposed on family finding. I am further told that it is, and was, reasonable for the Social Work Team to rely on the Access to Resources Team to progress the search for a long term placement on the basis of the two referrals and that no further prompting or enquiry from the Social Work Team was required.

 

 

There are two other Circuit Judge judmgnets published today in which the LA sought Care Orders with a plan of adoption and the Court instead made orders that the children were returned to the birth families. Not of any great legal significance because they turn on their facts, but I know that many of my readers may be interested in such cases and they may also be a useful mental exercise of whether these cases would have had these outcomes in 2011.

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B218.html

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B78.html

 

Financial abuse, Court of Protection

I have talked before about how I think Senior Judge Lush has probably the best case load in English justice, and this is another one that doesn’t disappoint.

 

It is probably the most blatant bit of financial abuse I’ve come across, and I hope that those involved will get what is coming to them.

 

Re OL 2015

http://www.bailii.org/ew/cases/EWCOP/2015/41.html

 

OL is 77 and has clearly worked hard all of her life and built up savings. She had a stroke and signed a Lasting Power of Attorney to allow her son YS and her daughter DA to manage her financial affairs on her behalf. There was a third son, who as far as I can see is blameless.  Neither DA nor YS were young people, and they had proper jobs – they were not young and impulsive, nor should they have been in financial dire straits.

 

Despite this, they took the money that they were managing on their mother’s behalf and spent it on themselves.

Let’s put it really starkly

In the six months that DA and YS were ‘looking after’ their mother’s finances, she went from having £730,000 to £7,000.

DA and YS on the other hand, had paid off their mortgage, had a loft conversion, bought a new house (entirely with their mother’s money) in which their mother (who paid all of the money) had a 20% stake and DA (who paid not a penny) had a 40% stake and YS (who also paid not a penny) had a 40% stake.

£730,000 to £7,000 in six months, equates to OL’s financial resources dwindling at a rate of £2,800 per day. OR that at the rate of spending, she had about another three days money left.

Or to put it yet another way (going back to Mostyn J * and the Pizza Express case http://suesspiciousminds.com/2015/06/18/taking-forty-thousand-pounds-in-cash-to-pizza-express/)  if OL had instead of appointing deputies, had gone into Pizza Express and bought meals for fifty people a day, for every day over the last six months, she’d probably be slightly better off now.  Or she could have met with the wife in that case and handed over that forty grand in cash EIGHTEEN TIMES and still been better off)

*second best case-load. And to misquote Bill Hicks “you know, after those first two best caseloads, there’s a real big f***ing drop-off”

 

Senior Judge Lush spells out all of the guidance and law on being a person’s deputy under the Lasting Power of Attorney. If you want to see it, you can find it all in the judgment. A key bit is here

 

Paragraph 7.60 of the Code says:

Fiduciary duty

“A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They must also not allow any other influences to affect the way in which they act as an attorney. Decisions should always benefit the donor, and not the attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the Act allows it, whether or not it is at the donor’s expense.”

I think I can condense all of the guidance and law into this simple sentence of my own, however   (apologies for Anglo-Saxon language)

 

“If you are appointed as a deputy to manage someone’s financial affairs, it is NOT YOUR FUCKING MONEY”

 

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