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Shoe-throwing and Interim Care Order

 

This is a tricky case.  It involves an appeal to the Court of Appeal about the Judge’s making of an Interim Care Order in relation to four children aged between 8 and 2 1/2

 

Re W-J (children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed146039

The mother in the case has what appears to be a form of personality disorder.  She accepts that there are times when she is utterly unable to control her temper and can fly into an unmanageable rage. Generally during these rages, she takes it out on inanimate objects.  She describes that the things that can set off these rages can be very trivial, giving the example of someone eating a packet of crisps loudly.

 

 

3…In short terms, from time to time she loses control of her behaviour, loses her temper, and the trigger for this is often a trivial matter which would not affect other people. On one occasion, for example, she describes losing her self control simply because she was irritated by the noise of someone eating a packet of crisps.

4. When she does lose control, she behaves in a physically violent way, normally towards inanimate objects, utensils in the kitchen, other matters of that sort. Sometimes she can detect the onset of these symptoms and make arrangements for the children, if they are at home, to go outside the house or go to be with someone else. On other occasions she is not able to have such foresight and it is plain from what the children have said that they have witnessed the distressing spectacle of their mother behaving in this way

 

Whilst that must be distressing and upsetting, what prompted the proceedings was that on two occasions, things went further than that.

 

what led to the proceedings being issued by the local authority were two instances relatively close together where the children reported on separate occasions being injured as a result of the mother’s behaviour. The first occurred on 2 February 2015, when the mother threw a shoe and it hit one of the older children. She accepted that and she indeed accepted a caution at the police station as a result of that behaviour. She accepted that she had thrown the shoe and thrown it at the child but she asserted that she was not deliberately intending to hurt him. She said she had lost control. The second occasion on 20 March 2015 was when the mother’s foot came into contact with the 7 year old girl. The judge heard some evidence about that. The mother accepted that, physically, her foot came into contact with her daughter but was not accepting that this was deliberately in order to cause injury. The child nevertheless was injured, albeit not very seriously. Following the second of those two outbursts, the local authority issued the proceedings.

 

What the Court had to do at that interim care order hearing was to determine whether the test for separation had been made out, and whether the risks could be managed in another way, applying the least interventionist principle.

 

Three of the children were found placements within the family, which were a decent compromise. That left one child, T, and a decision had to be taken about whether she could stay with mother, somewhere, or go into foster care.

There is a law geek point about whether the Court could have made an injunction under the Human Rights Act 1998 to make the LA manage the risk by keeping mother and child together.  The Court of Appeal closed this down by saying that it wasn’t sufficiently argued before the Judge to be an appeal point, so it is not resolved  (for my part, I think that the order that the Court can make in that regard is the straightforward Interim Supervision Order OR to compel them to place in residential assessment, a section 38(6) direction, and there’s no need to monkey around with esoteric HRA injunctions, but there may be a better case where the point really does arise)

 

10. In the course of the robust and constructive representation that the mother had at the hearing provided by Ms Kochnari, her counsel who represented her before the judge and before this court, Ms Kochnari drew attention to the jurisdiction that the Family Court may have in certain circumstances under the Human Rights Act 1996 to grant an injunction requiring a local authority to take a particular course of action. That jurisdiction in part is based upon, obviously, the wording of the Act itself but also decisions of this court, in particular Re: H (Children) [2011] EWCA Civ 1009 and a decision of the High Court: Re: DE (A child) [2014] EWFC 6. In short terms, Ms Kochnari’s submission was that the judge should grant an injunction requiring the local authority to keep the mother and child together, leaving it up to the local authority how that should be achieved.

11. That describes the position of the parties, mother and local authority, before the judge. The children’s guardian has plainly given this matter a great deal of anxious consideration. Both the guardian and the judge (and it is particularly important to stress that this was the judge’s perspective) saw the value for young T, particularly at the age she currently has reached, in remaining together with her mother. They have a good attachment and it would be seen as a detriment to that attachment, and a detriment to that important aspect of her best interests, for mother and child to be separated for any significant period at this juncture of her life.

12. But the question was how a maintenance of maternal care could be achieved. The guardian indicated that she would support a placement of the mother and child together in a foster home or some other form of residential accommodation if that could be achieved. The judge agreed with the guardian. The judge apparently said during the course of submissions that “heaven and earth” should be moved by the local authority to try to find a suitable placement and indeed an hour and a half or so was allowed during the course of the court day for the local authority to make enquiries. Those enquiries failed to identify any placement on the local authority’s books that could provide a mother and child placement at that stage. The local authority, however, took a more principled stand in addition to the practical difficulty of finding a particular placement. Their submission to the judge was that it was simply inappropriate to consider a mother and child foster home for this sort of case, this sort of case being one in which there is no real concern about the mother’s ability to provide day to day, hour to hour ordinary parenting, the concern being about her mental well being and the local authority indicated that it would be difficult to find a foster carer who would be prepared to accept the risk of having an adult, namely the mother, in the foster home when what is said about her behaviour is being said and is being said in the current period of time.

13. So the judge did not have an option before him for a mother and baby placement if he was to make an interim care order.

 

That left a rather stark choice

1. Grant the ICO and separate T from mother

2. Make no order / ISO and the child remains with mother at home

Or

3. Make no order, but adjourn for fuller enquiries about a placement that might have allowed a section 38(6) application for residential assessement to get off the ground.

 

The Court of Appeal set out why option 3, the adjournment, was not feasible

 

20. Dealing with the question of adjournment, the position before the judge is not altogether plain. It is clear that Ms Kochnari invited the judge in her closing submissions to afford more time for a more comprehensive search to be undertaken. She, in her submissions to us, urges us to interpret that as being really a request for the judge to consider adjourning the case for a period of a day or more to allow the sort of search that has now been undertaken to be conducted. The judge may have interpreted it simply as a matter of a further short time. For my part, given no doubt (although we have not got information about this) that that submission was made late during the course of the court day because this process will have taken up most of the court day, a request for more time almost inevitably meant more time when office hours are open and therefore another day, so in Ms Kochnari’s favour I assume that was the import of her submission to the judge.

21. But, in my judgment, the judge had to face up to the application before him and he did so without any consideration that another day or two could change the landscape and produce a firmed up and clear alternative for him to consider. He, with the reluctance that the choice of words that he used in his judgment clearly demonstrates, considered that it simply was not safe for this child to be at home with the mother for any period of time after the day on which he was giving judgment. In my view, he was entirely justified in coming to that view. I have referred to the psychiatric evidence, such as it was, that was available to him. He had evidence of the two recent episodes where the mother’s behaviour had flared up to the detriment of the children. A factor that I have not mentioned is that the older children had indicated a clear wish not to return to their mother’s care. He will have understood that for children, even if they were not physically injured by any particular deterioration in the mother’s behaviour, simply to watch their mother, the person upon whom they relied, behaving in this way, will have been totally bewildering and frightening. The judge did expressly take account of the fact that the older children had been able to be protected by the actions of the local authority because they had spoken up, they had gone to school or they had gone to other carers and said that their mother had behaved in the way that is now established she had behaved. But young T, aged two and a half would not be in a position to blow the whistle, as it were, on any such behaviour.

22. The final factor, and to my mind it is the crucial factor, is that it is impossible for an outsider to predict whether the mother will or will not flare up at any particular moment of any particular day. It is not a risk that can be predicted, contained or controlled, either by the mother or by any outside agency.

23. With all of those factors in mind, the judge was, in my view, entirely justified in saying that the risk was not one that could be taken in T’s best interests and immediate separation was required. So, even on the basis that a fully formed application for an adjournment had been made, in my view the judge’s decision not to adjourn but to make the order that day could not be said to be wrong and indeed on his analysis of the evidence it would seem hard to justify an alternative conclusion.

 

 

What could, perhaps, have been done but that wasn’t expressly considered here was for the Judge to make a short order – say a week, to allow that search for an alternative placement to take place and then revisit if there was any way to safely manage mother and child together.

 

The Court of Appeal, whilst acknowledging how difficult a situation this was and expressing hope that a longer term solution to mother’s difficulties might be found so that the other very good aspects of her parenting could prevail, were driven to conclude that the Judge’s decision to make an Interim Care Order was not only not wrong but actively right.

 

27. We are therefore left with the judge’s decision to make the interim care order in the circumstances that he did. This is a worrying case. I explained the basis of the worry at the very beginning of this short judgment. It is a case that will require very careful evaluation by the authorities and by the court over the course of the next 2 or 3 months as material is prepared for a final hearing. Crucial will be a full psychiatric assessment of the mother’s underlying mental health difficulties. At the end of the case, a judgment will have to be made as to the long term welfare of these children and as part of that judgment the many positives that can be said about this mother will come into play. But all that the judge was doing and, all that we are contemplating, is making a decision about the child’s welfare for the very short term under the interim order. In that context, important though the decision is, I regard the judge’s determination as being unremarkable. It was a decision made carefully by a judge on the correct legal test, supported by the evidence and one which amply was justified by the welfare of this young child. 

 

I’m sure that all of us would wish this mother well for the future and hope that a solution can be found that would let her parent in the way that she would wish to and be free of what must be a terrible inability to control those outbursts.

Physical chastisement – Court of Appeal

 

A Local Authority appealed the decision of a Recorder at a finding of fact hearing, that having made some serious findings about physical injuries sustained by a child and caused by a parent, he went on to find that the threshold was not made out in terms of risk to that child’s sibling.   This case also deals with some important principles as to what extent making SOME findings has on the other allegations to be dealt with.

 

Re L-K 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/830.html

 

The Recorder had made these findings about the injuries

  1. The Recorder found that two sets of bruising had been inflicted by the parents, although he was unable to say which of them was responsible. They were as follows:

    i) There were parallel lines of bruising on R’s buttocks which the Recorder found were caused by someone striking him across the buttocks with a linear object (§20 of the Recorder’s first judgment). The Recorder thought it likely that the object used was a ruler or a belt, in which case there were at least two blows, but it may have been a stick or flexible cable, in which case there were at least four blows.

    ii) There were three bruises on the inner part of R’s right thigh, immediately below his buttocks, which were described as “loop pattern or crescent shaped injuries” and a further “sigma shaped pattern bruise” to the right of the lower buttock crease (§21). The Recorder found that these marks were caused by at least two deliberate slaps (§24).

  2. The Recorder found that both the instances of inflicted injury had the character of corporal punishment (§29). The parents had denied that they were responsible for the injuries but the Recorder found that they both knew who did it and had agreed to stick together and protect each other (§33), trying to mislead the social workers and lying in court. He said that it was “difficult to blame them in the circumstances” (§35) (referring, I think, to their lies and collusion, although he may have been referring to their treatment of R) as they were in a foreign country and had a difficult child to look after.
  3. It is not entirely clear how the Recorder viewed the corporal punishment inflicted on R. At §36, he said it “may well be regarded as going well beyond reasonable chastisement”. At §37, he said that he could envisage that if the parents had admitted it, they would have argued that it was no more than reasonable chastisement and said, “I cannot judge that question”. Later in the same paragraph, however, he went on to say that it certainly seemed excessive to him to hit a five year old at all, especially with an implement. What is clear is that he was unwilling to find it established that what happened to R was “abuse”. He seems to have taken into account in reaching this conclusion the possibility that it was “an over exercise of parental authority in a disciplinary capacity”, the evidence that the parents are loving parents and that R loves them and is not afraid of them, and the fact that he could not know how much R had suffered in the process (§37 of the main judgment and §5 of the Recorder’s supplemental judgment).
  4. The parents did admit one of the local authority’s allegations, that is that they had, each independently of the other, made R stand in a corner for more than two hours when he was naughty. The Recorder described the father’s conduct in so doing as “treating R cruelly” (§31). However, he accepted the parents’ evidence that this was something that happened when the family was under great stress and was not a regular occurrence (§34).

 

 

He then went on, however, to conclude that whilst the threshold was met for R, it was not met for R’s brother even in terms of risk of harm:-

 

 

14. He was accordingly asked to deal with the threshold thereafter, and did so, after further argument and consideration, in a short ex tempore judgment. In it, he found the threshold crossed in relation to R on the basis that R would have suffered significant harm because a) hitting a child of five who suffers from psychological problems with an implement will cause significant harm b) standing such a child in a corner for two to three hours must also cause significant harm and c) there must be a significant risk of repetition as the parents had closed ranks and said nothing about it to social services and the courts (supplementary judgment §5). As to M, in that judgment the Recorder stated baldly that he did not think the threshold was crossed.

  1. He returned to the threshold in relation to M in his judgment refusing permission to appeal and in his final short judgment. He determined that M was not at risk in his parents’ care, essentially on the basis that he was a very different child and had not suffered any harm so far. In the permission judgment, he referred to the findings he had made about R, and the evidence as to how very difficult R was to look after, contrasting that with M, in relation to whom there was neither evidence of psychological difficulty nor evidence of any problem with him in foster care. He said:

    “6. The difference between these two children is such that I cannot conceive that anybody could imagine that the findings I have made in respect of the older brother should lead to a finding that the younger brother is at risk.”

 

 

Well, the Recorder couldn’t concieve that anyone could imagine this, but the Court of Appeal not only imagined it, but did it.

 

36. The local authority argued that, in the light of the findings that R had been beaten with an implement and slapped sufficiently hard to leave bruising and had been excessively punished by being made to stand in a corner for a prolonged period, it was wrong to conclude that there was no risk of significant harm to M. What those facts indicated, in their submission, was that at times of stress or challenging behaviour from one of the children, the parents may harm their child whether by way of discipline or simple loss of control. They argued that the Recorder placed too great a weight on the difference between the two boys as a protective factor for M and failed also to take account of the fact that M is more vulnerable because of his young age and may also become more challenging as he grows older.

  1. I would accept this submission. Rightly or wrongly, the Recorder did not make any findings on the issue of whether M was present during the punishments of R and whether he was emotionally harmed by what he saw and there was no evidence that M himself suffered any physical harm. The threshold in relation to M therefore depended on whether he was “likely to suffer significant harm”. “Likely to suffer” in this context means that there is “a real possibility, a possibility that cannot sensibly be ignored having regard to the gravity of the feared harm in the particular case”, see Re H and R (Minors)(Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. The threshold is therefore “comparatively low”. It was, in my view, plainly satisfied on the facts that the Recorder had found. Every case depends upon its own facts, but in this particular case it was not at the threshold stage but at the welfare stage that matters such as the parents’ circumstances at the time R was injured and the differing personalities of the children were relevant. Given the nature of the Recorder’s findings in respect of R, and the parents’ failure to acknowledge or explain what had happened and why, I do not think that the factors that the Recorder relied upon in differentiating between the two boys in fact provided any reassurance in relation to the risk to M for threshold purposes. I would therefore substitute for the Recorder’s dismissal of the proceedings in relation to M, a finding that the threshold criteria were satisfied in his case on the basis of likely harm.

 

 

The next limb of the appeal was that, having made those findings, was the Judge wrong in discounting the other injuries to R that he made no findings on?  I.e in relation to say ten physical injuries should the Judge approach each and every one in isolation, OR if the Judge had made findings in relation to four or five or them, does the fact of those findings become a relevant consideration when approaching the remainder?

 

  1. The local authority argued that the Recorder was wrong to decline to make findings in relation to the injuries to R’s face, neck/chest, and thigh, and a finding that he was “abused”. They submitted that he had gone wrong because he failed to look at the totality of the picture, instead considering the injuries only individually. It was argued that the findings that he did make, whilst not probative of the other injuries, were capable of being corroborative and supportive evidence in respect of them. Also relevant to the overall evaluation, it was submitted, was the parents’ dishonesty.
  2. I agree with these submissions. It is always necessary for a judge who is considering possible non-accidental injuries to look at the whole picture before determining causation. So, for example, what might be accepted as an accidental injury if it stood alone, might take on a wholly different aspect if it is only one of a number of injuries. Similarly, the fact that it is firmly established that one of a number of injuries has been inflicted by a parent must be taken into account when evaluating the cause of other injuries.
  3. In this case, I have no doubt that when it came to considering the possible causes of the other marks found on R, attention had to be paid to the fact that the parents had a) beaten R with an implement causing bruising, b) smacked him to the extent that bruising was caused, and c) lied in an attempt to conceal what they had done. Regard should also have been had to the excessive punishment which the parents conceded had been imposed on R in the form of having to stand in a corner for a prolonged period. As the local authority acknowledged, the fact that one injury is inflicted does not prove that others are non-accidental, but it changes the context in which the child came by the other injuries from a home which may be beyond reproach to one in which it is known that there has been, at the least, excessive physical punishment. As Mr Roche for the father observed during submissions, it was also the case that R had injuries which were accepted to be accidental. That fact was relevant too, but it did not remove the potential significance of the findings of non-accidental injury. The fact that the parents had lied about what they had done was also relevant to their credibility in relation to other matters. The Recorder’s approach did not pay proper regard to these factors as part of the overall picture he was surveying.

 

Whilst the Judge did not have to slavishly follow the medical opinions  (see dozens of Court of Appeal decisions that confirm that), the Judge does have to pay proper attention to them, and where a theory for the explanation of the injury emerges from the Judge himself, it is necessary for the Judge to explore that theory with the expert.

 

  1. In my view, the Recorder also failed to pay proper attention to the evidence of Dr Fonfé in determining what had happened. It was, of course, for him to decide, on the basis of all of the evidence, whether it was established that particular injuries were non-accidental, and not for Dr Fonfé. However, he needed to take her expert views into account in his determination. In referring to what she said about each of the injuries as her “suspicion”, he seems to me to have understated the force of her opinion. He also failed to take account of her more general advice as to causation, perhaps because he concentrated on the injuries individually. As can be seen from the passages from her reports which I have quoted above, Dr Fonfé’s approach was entirely conventional in that she looked at R’s situation overall as well as considering the various injuries individually. The Recorder was not bound to accept her general observations but he did, at least, need to show that he had considered them. Had he done so, he may have structured his judgment differently and avoided falling into error. As it was, he appears to have made his determination about each of the individual injuries before, at §26 (see above), turning to look at the picture collectively, and when he did look at the whole canvas at this point, it was not with a view to considering what the overall picture might tell him about the individual injuries, but in order to address the local authority’s allegation that R had been subjected to a prolonged single attack or a series of individual episodes of attack.
  2. In short, the Recorder was wrong to conclude that there was nothing but Dr Fonfe’s suspicions in relation to the other injuries. His own positive findings and Dr Fonfé’s expert evidence about what, in her view, the overall picture revealed were important too. It is not a foregone conclusion that they would have led to a different conclusion as to the other injuries but they needed to be put into the equation and considered with the rest of the evidence.
  3. In my judgment, this deficiency in the Recorder’s approach is sufficient to render his decision in relation to the balance of the local authority’s allegations unsafe. It would follow that, in so far as it is necessary in order to make decisions about the children’s futures for there to be findings in relation to those allegations, there would have to be a further hearing for that purpose. I need not therefore say much more about the other flaws that there may have been in the Recorder’s approach. I would, however, mention a number of matters.
  4. The first is the Recorder’s crayon explanation (see §16 of the judgment). It seems that this came entirely from him. Dr Fonfé’s view as to the feasibility of the hypothesis was not sought. If a particular explanation such as this is to carry weight in the court’s decision, it is important, in my view, for it to be offered for comment by the relevant expert and in submissions. Had that been done, the response may well have been that the crayon explanation ignored the existence of what Dr Fonfé saw as a pair of marks which looked like grip marks.
  5. I wonder also whether this passage in the Recorder’s judgment indicates that he was veering towards requiring that all other possible causes must be excluded before a finding of non-accidental injury could be made (see also §14, for example) and/or proceeding on the basis that no finding could be made without corroboration. Depending on the particular facts of the case, it may not be necessary for the evidence to go that far. What is required is simply that it should be established on the balance of probability that the injury was non-accidental.
  6. As to the Recorder’s conclusion that the findings he had made were not established to be abuse, I am not inclined to spend time on that issue for two reasons. First, there is little point in debating whether what the Recorder found to have been established should or should not be classed as “abuse” when his findings may not be the last word on what happened to R. Secondly, what actually happened is much more important than how it is classified and it may well be that evidence which is relevant to this may continue to emerge, for example from Poland, from the parents themselves in response to the findings made so far, and in the course of any further fact finding hearing in relation to the balance of the allegations.

 

 

The appeal was therefore successful

 

 

For the reasons I have already given, I would allow this appeal. In relation to the threshold in respect of to M, I would substitute a finding that it is satisfied on the basis of likelihood of harm. As far as the Recorder’s findings of fact are concerned, I would not interfere with the facts which he found proved but I would set aside his determination in relation to the balance of the local authority’s allegations and remit the case to the Family Court for an urgent directions hearing at which the future conduct of it will be decided.

Syria, children and electronic tagging

 

In what has been a challenging month, I have to confess that my heart sank right into my boots when I saw  Sir James Munby, President of the Family Division, had published a judgment about Emergency Protection Orders.  I’m still recovering from Re X, his last major contribution to this legal domain, and that was nine years ago.

 

But Re X (children) and Y (children) (Emergency Protection Orders) 2015   http://www.bailii.org/ew/cases/EWHC/Fam/2015/2265.html

[Weird, the link doesn’t seem to be working. Try again

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2265.html      ]

 

is not actually about expanding the fourteen point guidance into a two-hundred and nine point guidance, so you can read on without fear or dread.

 

Note, I am lying. This is a judgment from the President. Have you ever seen a judgment from the President that made a Local Authority lawyer happy?  If I wrote the Top Ten list of case-law that had made my job harder, the President’s fingerprints would be on seven of them – going right back to seven days a week contact.  This does not buck that particular trend.

 

It is one of the cases where a family are accused/suspected/found  (delete as relevant to the particular case) of trying to take their children out to Syria to join up with ISIS (or whatever David Cameron thinks that we should call them this week), and what the State can do about it.

 

At the moment, this responsibility rests on the shoulders of Social Services and the Children Act 1989, and Parliament is more than welcome to produce some proper legislation that takes that off us and gives it to someone else, any time now.

 

A lot of this case is very factual about the circumstances, and I daresay that it will be very helpful to all the LA’s who are making applications to Court about such families.

 

[I have always wondered where the families go after that EPO. If a Court has ruled that you intended to take your child into a warzone and join up with terrorists and removes the child, what sort of assessment gets you the child BACK at the end of the final hearing? Aren’t the EPOs basically determinative of final outcome?  Well, that was the thrust of this case, whether there was some sort of arrangement that would allow the children to be back in the parents care with some form of cast-iron guarantee that they would not leave the jurisdiction. The important thing to remember here is that the Court had not conducted a finding of fact hearing about the parents intentions and plans and thus what risk the children were at – they had just determined that there were REASONABLE grounds to believe that the children were at risk of significant harm requiring interim protections]

 

However, the President would not be the President if he didn’t try to stretch the law a bit, and so that’s the point of interest.    [Occasionally, the President’s approach to the law reminds me of the year at school where all of us were given a brand new white plastic ruler to replace the wooden ones – the rulers were each labelled “Helix – Shatterproof” , an ill-thought out boast, which led to all of us industriously breaking them that very morning to demonstrate that they were not in fact Shatterproof.   I say ill-thought out, but of course, the school had to get on to Helix and order another 250 that same day, so for Helix it was a profitable claim]

 

Thinking about the cases over the intervening weekend, it occurred to me to think about the possibility of electronic tagging. Accordingly, on 5 July 2015 I sent the following email:

“I am sending this email to the advocates in both … cases. Please make sure that it is communicated as soon as possible to all concerned.

It has occurred to me to wonder whether in these cases it may be appropriate to consider the making of electronic tagging orders: see Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, and Re A (Family Proceedings: Electronic Tagging) [2009] EWHC 710 (Fam), [2009] 2 FLR 891 (setting out a form of order).

Could counsel please consider this possibility.”

This time there are precedents (though fairly obscure ones, which I had to go and read). They relate of course to the powers under the Child Custody and Abduction Act 1985.  Those powers aren’t exactly delineated to require someone to submit to electronic tagging, but in the modern era of law as they don’t say that they DON’T give that power, it could be interpreted thus

5 Interim powers.

Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

 

Of course here, though, there is not an application before the Court under the Convention. These are EPO applications, governed by the Children Act 1989.   It is beyond my working knowledge to consider whether an attempt by the persons who hold PR (when there are no Children Act 1989 orders) could find themselves foul of the Child Custody and Abduction Act 1985   (if everyone with PR agrees that the children will go to Syria, who are the children being abducted FROM?).   It would be different if the Court had made Children Act 1989 orders, or were seised with such an application, since there’s authority to say that the Court can go on to make orders compelling the children’s return to the jurisdiction.

 

Anyway, let’s see what the President does with the idea of electronic tagging.

 

It is worth noting that the parents were keen on the idea – because it was obviously their best shot of having the children returned to their care  – this being a case where the Court had not found any evidence that the children had been exposed to radicalisation.   So the Court did not have to consider whether there was power to impose it on the family.   (Mr Rowley and Miss Woodward were counsel representing the parents)

 

  1. Mr Rowley and Miss Woodward take as their starting point the fact that, the precipitating events apart, the parents are, in other respects, good parents who are bringing up their children lovingly and well. Although it would seem that all the children are doing as well as might be expected in foster care, there is no doubt that they are missing their parents very much and that they are, in consequence, suffering harm. In these circumstances Mr Rowley and Miss Woodward question both the necessity and the proportionality of the children remaining in foster care. Their safety, both physical and emotional, can, it is submitted, properly be met while the children remain at home; their safety, whether physical or emotional, does not necessitate their remaining in foster care.
  2. In the final analysis, say counsel, my task is to evaluate the risk of harm deriving from the possibility of flight and balance that against the undoubted harm the children are suffering because of continued separation from their parents. Given the adequate safeguards against the risk of fight which they assert can be put in place, the balance, they submit, comes down in favour of returning the children to their parents.
  3. Both local authorities are clear that they feel unable to exercise the parental responsibility vested in them by the interim care orders unless the children remain in foster care. That being so, Mr Rowley and Miss Woodward say that the appropriate order is, in each case, an order discharging the interim care orders, making the children wards of court, and placing them in the care and control of their parents, subject, however, to a raft of stringent protective orders.
  4. What Mr Rowley and Miss Woodward propose is in each case an order containing: passport orders in the usual wide-ranging form and an all-ports alert; injunctions restraining the parents removing the children from the jurisdiction and requiring them to live with the children at a specified address; and provisions for the monitoring of the parents and the children by a combination of unannounced visits by the local authority, regular reporting to a specified police station or local authority office and, in the case of the parents, electronic tagging. It is proposed that the order should include a provision requiring the parents to swear on the Quran that they will abide by each and every provision of the order and that the order should spell out the consequences (including but not limited to committal for contempt of court) in the event of any non-compliance.
  5. There is no need for me to consider whether I would have power to impose such orders on unwilling or recalcitrant parents, for all the parents here are willing to submit to whatever restrictions, including electronic tagging, I think it necessary to impose for the safety of the children. That said, I am inclined to agree with the views expressed by Singer J in the passage from his judgment in Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, para 46, which I refer to below.
  6. Mr Rowley and Miss Woodward realistically accept that, however stringent the protective measures which might be put in place, there will always be some risk that the parents will be able to flee with the children. But they counsel me against being too concerned by remote or fanciful possibilities. An order the court makes is not, they submit, to be measured by the standard of certainty or infallibility but by reference to what Mr Rowley called real-world possibilities. Judged by that standard, he says, the risk is slight indeed, in reality reduced to an effective nullity if the parents are, as they propose, subjected to GPS electronic tagging (as to which see below).
  7. To get the children to Syria, he says, the parents would: have to cut the tag (thereby triggering an immediate alarm), having made arrangements to travel immediately to a point of exit from the United Kingdom; have to evade detection while in transit there; have to evade detection at the point of exit despite their being in a family group, the all-ports alert, and publicity about them being on the run; have to be able to pass through the immigration controls of a second country without detection; and have to be able to cross from that country (or some third country) into Syria. Whilst he accepts the possibility that the parents have the connections and means to achieve all this, Mr Rowley disputes that there is any evidence upon which I could reasonably infer it.
  8. More tellingly, perhaps, Mr Rowley makes the point that if the parents do indeed have the means to achieve this, the children are not safe in their foster placements. For if they have the resourcefulness and determination postulated by the local authorities and the guardians, the parents would by the same measure be able to track the children down and abduct them. The reality, he suggests, is that nothing short of actual incarceration of the children would ensure the complete eradication of all risk of their being removed to Syria. In truth, he says, the local authorities and the guardians are prepared to countenance a level of risk in the present placements while requiring from the proposed placements with the parents the certainty that all risk has been eradicated.

 

 

Mr Rowley (and no doubt Miss Woodward) go high up on my list of people who have been able to develop a compelling argument from unpromising beginnings.  They manage to make the parents position sound completely reasonable and the Local Authority’s anxieties utterly unreasonable.  In an atmosphere where the pulbic concern about terrorisim and children going to Syria could not be higher. That takes some skill.   One has to remember, of course, that the Court had not conducted any finding of fact hearing about the circumstances and intentions of the parents in making those trips or plans for the trips.

 

To Local Authority lawyers, I’m sorry that I wrongly suggested that you could read this judgment without dread. Of course you know what is about to happen now.

 

  1. The law, even the criminal law in the days of capital punishment, has never adopted a standard of absolute certainty or infallibility. So the mere fact that there is, as Mr Rowley and Miss Woodward accept, some risk that the parents will, if so minded, be able to flee with the children, the fact that it is no doubt possible to construct hypothetical scenarios of how they might achieve this, is not determinative of the question I have to decide. That question, in the final analysis comes down, in my judgment, to two linked inquiries: how great is the risk that the parents will, if so minded, be able to flee with the children, and is that a degree of risk which the court is, in all the circumstances, prepared to accept as tolerable?
  2. Given the potential consequences if the parents, being minded to flee with the children, were able to achieve their objective, it seems to me that what the court needs is a very high degree of assurance, albeit falling some way short of absolute certainty, that the protective measures put in place will be effective to thwart any attempted flight. This is ultimately a matter for judgement and evaluation, in relation to matters, in particular those dealt with DS Y, DS Z and Mr Fearnly, which I am in as good a position to assess as any of the social workers or guardians, none of whom can bring to this particular exercise in evaluation either professional training or (as they all accepted) any previous experience of any remotely comparable case. Accordingly, I have to come to my own conclusion, though obviously feeding into my overall evaluation the expert views of the social workers and the guardians as to the impact on the children of their continuing separation from their parents.
  3. At the end of the day, and having given the matter the most anxious thought both during and since the two hearings, I have concluded that the comprehensive and far-reaching package of protective measures proposed by Mr Rowley and Miss Woodward does provide the necessary very high degree of assurance that the court needs, that I need, if the children are now to be returned to parental care. Taking into account all the points pressed upon me by those opposing such an order, I am at the end of the day persuaded by Mr Rowley and Miss Woodward that I should make the orders they seek, and essentially for the reasons they have articulated.
  4. I accept that there is some degree of risk of successful flight. I cannot go quite as far as Mr Rowley when he asserts that it is reduced to an effective nullity by the protective measures he proposes, but taking a realistic view, though not forgetting that we are here in the realm of unknown unknowns, my considered assessment is that the degree of that risk is very small, indeed, so small that it is counter-balanced by the children’s welfare needs to be returned to parental care. I should add, to make plain, that in relation to their welfare (leaving flight risk on one side), the benefits all of these children will derive from being returned to their parents clearly, in my judgment, outweigh any and all of such contrary welfare arguments as have deployed by the local authorities or the guardians. Conclusion
  5. I shall therefore make orders essentially in the terms proposed by Mr Rowley and Miss Woodward. The orders will contain the additional provisions proposed by Mr Crabtree and Mrs Crowley. The orders will spell out that nothing is intended to prevent the police exercising any powers which would otherwise be available to them, including, in particular, their powers under section 46 of the Children Act 1989. I invite counsel to consider two further matters: whether the proposed oaths on the Quran should be sworn before a notary or an imam, and what, if any, provisions should be included in the orders to enable the relevant local authority to remove the children in an emergency if there has been some breach of the order and there is no time to apply even by telephone tothe duty judge. I am inclined to think that the local authorities should have that power, but strictly confined to circumstances of emergency and subject to an unqualified obligation to make an application to the court immediately

 

 

The judgment then goes on to set out the protocol for such matters. It will, I’m sure, calm the nerves of every social worker who is now going to be driven to leave children like this at home under the protection of their parents wearing electronic tags that the tagging system is provided by Capita, whose record is flawless.

 

I am perhaps missing what actually stops these children’s uncles or cousins taking them to Syria if it is the parents who are tagged?  Yes, the parewnts would be stuck her to face the music, but how great a feature is ‘fear of the consequences’ a major inhibitor to terrorism? I have always rather missed how one is to stop these things happening if the parents book a package holiday to Turkey and then just travel onwards once they are out there. Are we going to stop all families going to Turkey on holiday? Or only those who are on some sort of Watch list?  And if only those on the Watch list, given that social workers don’t have access to that, how are they supposed to intervene?

 

Whilst of course, it can’t be imposed on a parent, I’m sure they will be queuing up to agree to it.

The judgment of course does not set out who will be paying for the tagging and monitoring, but we all know that it will be the Local Authority  (or under what power the Court is apparently imposing this expense on the LA – it will be the theoretically limitless powers of the inherent jurisdiction, if anyone ever challenges it)

I wonder how any parent facing an ICO hearing for neglect, or consumption of alcohol will feel, knowing that they too are meeting the same “Reasonable grounds to believe” test as parents of this type, but that parents suspected of taking their children to join a warzone will keep them at home with electronic tags, whereas they may be separated from their own children.

Where exactly is the bar for removal under Interim Care Order, if a case like this isn’t over it?

 

And if tagging works in the interim, what stops these children being tagged for the remainder of their childhood at final hearing, even if the allegations are proven to be true?

 

 

Judicial baggage

 

This one isn’t a family case, so you don’t have to read it at all.  Which, reading between the lines, means that I’m writing about it because it is funny.

 

Emerald Supplies Ltd v British Airways 2015

http://www.bailii.org/ew/cases/EWHC/Ch/2015/2201.html

 

This is some commercial litigation, which was being dealt with by Smith J in the High Court.  The facts of the case seem to be that there are 300 claimants (as a class action) who are suing British Airways.

 

One might get the sense from the opening remarks that the Judge lacked some enthusiasm for trying this case.

 

  1. I have been the nominated judge in this case since November last year. I have been involved in the case since March of last year. When this case first came in front of me in March of last year, I suggested to the parties very early on that it was appropriate to have a nominated judge to deal with the hugely complicated interlocutory applications which arise. When I said so, I said I was not bidding for the case, because no judge really would look upon this case with enthusiasm because he or she would be in a no-win situation, as this case has demonstrated.
  2. Since then I have heard numerous application, made numerous rulings. There are currently two outstanding, I think, appeals against some of my decisions. There is a CMC listed for three days next week. There is a separate hearing listed in October for a strikeout of the Bau Xiang, of other litigation and various other matters. There have been huge interlocutory orders, circulating mostly around the attempts to come up with some form of redacted decision that the European Commission made as long ago as five years now, but which is still not published, and my last recollection is that it was not promised before 2020. A point which I probably met with indifference, and probably half the Bar before me as well.

 

 

It is what happened next that catapulted the case into the realms of legal curiosity.

When you initially read the next twenty paragraphs of the judgment, you think to yourself – what a curious decision, for the Judge to set out the details of the Claimants case in the first person.  It is all  “I did this” and “this happened to me” and “The effect on my that”.  A peculiar stylistic choice, you think.

 

It is little like  the jarring effect of Jay McInerney’s decision to write “Bright Lights Big City” in the unorthodox second person, so that one keeps reading sentences like  “You sneak into a fashion show in an attempt to find Amanda”  and saying to yourself, “no I didn’t.”

 

And then after a short time, it dawned on me that the Judge is not actually here setting out the claimant’s case, he is instead setting out in judicial fashion the history of his own ongoing dispute with British Airways who have lost his luggage.   At length.

 

  1. On 30 April, I booked a return ticket to Florence with the first defendant. On 6 July, I flew to Florence, together with my wife, due to return on 10 July. On 10 July, as I have set out in my emails, the flight was delayed for two hours without any explanation. Six people were then summoned to the departure desk and were told that they were bumped off the flight. It turns out that they were the lucky ones, because they got their luggage back then, unlike anybody else in the flight.
  2. The rest of us were then rushed to the aeroplane. Somewhat intriguingly, as I have said in my email, we were sitting right next to the plane while it was refuelling for 20 minutes. It might be a standard practice in Florence, I don’t know. It might be a standard practice for the accompanying fire tender to arrive after the refuelling is completed. Anyway, we were then put on the plane and the pilot said that they had been moved to another runway and the load had had to be adjusted because of the crosswinds, and that was it.
  3. We arrived at Gatwick, hung around in the baggage claim, as people do at Gatwick, for 45 minutes and then we were told to go to Global Recoveries, where we were told for the first time that the entire flight’s luggage had been left behind. No explanation, no representative, nothing. Nothing from BA. Nothing from Vueling who provided the flight.
  4. I saw the distress that lots of people suffered as a result of that; and I contacted BA customer relations, who simply said: it was a Vueling flight, you will have to take it up with Vueling. That is all they said.
  5. Vueling were no better. In fact, they were worse, for the reasons I have said in argument. Vueling refused to acknowledge my communicating with them until a computerised individual number went onto their system. As I said earlier, it never did. The luggage arrived spontaneously and without warning on Wednesday last week.
  6. I signed my emails as my judicial capacity to alert the Chairman to the fact that this was not merely an issue of a disgruntled consumer. For reasons which I set out below was essential that his office knew about the proceedings and those conducting the proceedings knew about the complaint. I also advised him to contact the lawyers conducting this litigation on BA’s behalf.

 

The Judge did not get an answer to his grievance, despite having played the “do you know who I am?” card.

Unwise people, who are hasty and unfair might consider that if BA’s customer service department can’t resolve the lost luggage of a Judge who  (a) tells them that he is the Judge and (b) that he is the Judge currently dealing with some really big litigation against BA, what hope is there for anyone else?   Those unwise, hasty and unfair people might wonder how the hell a Customer Service department doesn’t immediately move heaven and earth to get that luggage found.   Why, you cynical bunch. The answer is that BA Customer Service department provides exactly the same stellar service to all customers on a completely egalitarian philosophy, without grace or favour.

 

The Judge goes on

This is not an issue over luggage, however. It never has been

[hmmm]

 

 

12. I was concerned about as Mr Turner QC rightly says, BA’s conduct in dealing with that flight — or Vueling’s conduct, which as far as I can see BA take responsibility. They are in the same group of companies, my contract was with BA, BA charged me and I got a BA flight number — if it was not explained, it might be something that is strikingly similar to some of the allegations in this case.

  1. The reason I was concerned really ought to have been blindingly obvious, although some of the submissions by Mr Turner QC today would suggest otherwise. The situation is that I do not know how a plane departs with all of the passengers’ luggage left behind, unless that is a deliberate decision. It is an easy enough question to pose and it ought to be an easy enough question to answer. We are now 12 days from the flight and I have no explanation, and Mr Turner QC and the team who instruct him have deliberately refused to enquire, to provide me with an answer, praying in aid a desire to separate what they call a private dispute from this judicial dispute. This is not possible but could have been easily resolved had BA and its advisors wished it. This if correct was similar to some of the allegations in this case. If correct I would have had to recuse myself as I made clear in argument. BA’S FAILURE TO ANSWER
  2. BA must know what the position is. I am promised some form of answer, by Mr Turner QC, in the normal course of events with expedition. Well, I am 12 days down the line and if those simple questions cannot be answered in 12 days with expedition, I really feel for other people who have the misfortune to fly with BA. It is unexplained.
  3. Equally, I do not see how the pilot can take off and not know the luggage isn’t there. Equally, I do not see that the ground staff can conduct themselves in the way they did with us and not know that the luggage was not going.
  4. In my email to the chief executive, which was the only way forward, having been rebuffed by customer relations, I said that I didn’t see how there was any logical explanation for those.
  5. I remain of that view. Of course, I do not operate airlines. There might be a logical explanation. I am surprised, if there is a logical explanation, that it hasn’t been forthcoming in the last 12 days. I do not believe there is a logical explanation. I believe that the passengers’ luggage was deliberately bumped off for a more profitable cargo.
  6. I hope BA can write back, if they were to write back and tell me that that is not so, because if that is so, my investigation will carry on in a private capacity — where that ends up, I don’t know yet, but it will — which I will pursue with the vigour for which I am known, because I am no longer involved in this case.

 

 

At this point, I am saying that if a TV company want to commission a show about a (highly fictionalised and not in any way real)  vengeful High Court Judge who simply will not rest until he gets to the truth of what happened to his luggage, I think it has legs. I’d cast Jack Nicholson.   Let’s call it  “Case Closed” .  I want to watch Smith J battle and find his baggage.

 

[* When I was about ten, I’m sure that I saw a TV show that featured one of those clever dogs, like Littlest Hobo, or Boomer. But this dog was about an Army German Shepherd and the opening dialogue said that this dog was “wrongly accused of a crime he didn’t commit, now he travels the country searching for the evidence that will clear his name”, which even at ten years old, I thought was a ludicrous premise for a TV show.  “Cracking the case”  /  “Baggage Control”  “Unexpected item in the baggage area”is far better. 

 

I’ll do the voiceover crawl.  “In thirty years as a lawyer, Justice Coltrane never lost a case. But now BA have lost his, and they’re going to find out what happens when you stand in the way of Justice”    oh, how about  “His bags got checked in, and now something doesn’t check out. ”   or  “They put a tag on his suitcase and then they lost it. But now he’s lost it,  he’s gonna put a tag on their toes. ]

Again, unwise, hasty and unfair people might be saying “Jeez, if that’s the way that BA treat a Judge when he wants an answer to what happened to his luggage and has people in Court in front of him who can’t give a straight answer, I’m sitting with my valuables in my lap for the whole flight”.  Tsk, tsk, you hasty and unfair people.

 

An application was made for the Judge to recuse himself.   It is somewhat hard to see how a Judge who has said that in his personal dispute with BA,  ” I believe that the passengers’ luggage was deliberately bumped off for a more profitable cargo. ”    could continue.

 

But I underestimated the determination of Smith J.  He argues it out at length, pointing out again that this is not actually about his suitcase, it is about a resolution of how his suitcase came to be lost.  [I suppose the 300 claimants may have been thinking that it was actually about their claim, rather than a judicial trip abroad which didn’t work out, but Claimants, Schlaimants…]

 

  1. REASONABLE OBSERVER
  2. I do not believe for one minute that the reasonably minded observer, which is the test, as Mr Turner has reminded me of, would think that merely because I have raised issues over the non-delivery of my luggage of itself should lead to the possibility of bias.
  3. I believe a reasonably minded observer would see a Judge with a problem trying to resolve that issue and finding the parting question being obstructive and unwilling to address the issue and find a solution. A simple dispute as to the luggage cannot possible be grounds for recusal. However BA and its solicitors have simply escalated the problem almost immediately.
  4. As I have said in argument, it has been open to BA in this case simply to damp the fires of this dispute immediately, by coming up with an explanation of an operational nature as to why the luggage was not sent. They have not done it despite me giving them the earliest opportunity to do so.
  5. REACTION BY BA AND ITS SOLICITORS
  6. The solicitors and the person apparently instructing them have adopted a three wise monkeys approach which I found, frankly, astonishing. The reason I conclude they do that is because they don’t want to know the answers, because it might affect them. And the reason why BA have not replied, I conclude, is because there has been some kind of operation designed to maximise profits at the expense of their regular customers. Further I am satisfied they want to exploit this situation to pressure me into coming off the case.
  7. Judges spend all the time drawing conclusions from people’s actions; and the like; the taking off with no luggage and the knowledge of the pilot, I find it impossible to believe that if those instructing Mr Turner QC wanted to, they could not have found out what the answer was to this in good time. And having seen me on Monday, it would have been perfectly easy for them to write and say, “Thank you for drawing it to our attention. We have spoken to the operations and the luggage had to be left behind, we regret, for this, this and this”, and that would have been the end of the matter. I had of course brought it to their attention as soon as practicable on the Monday.
  8. But they didn’t do that. Almost within a matter of hours of the meeting, they decided that I should recuse myself.
  9. Now, I do not accept that the correspondence justifies that application. And I am afraid to say that it is, in my view, an opportunistic application, made by a party that has wanted to get me off this case before.
  10. I would remind the parties that even before the case was allocated to me, Mr Turner expressed a view in open court spontaneously that his clients did not think I was capable of dealing with the CMC in this case because it represented difficult issues of competition law, of which It was alleged I had no experience. His client’s major difficulty was that I had been an allocated judge for four years in the Competition Appeals Tribunal, although I had not actually sat on any cases. But presumably if the Lord Chancellor thinks I am competent to sit there, that really ought to be enough, even for Slaughter and May, but apparently it isn’t.
  11. And when the parties finally followed up the suggestion that they apply to nominate a judge, they actually wrote [the Chancellor] should not appoint Mr Justice Peter Smith. That was an unfortunate letter for them to have written because it held a gun to the Chancellor’s head, but as the Chancellor rightly observed, there are no competition issues of significance left in this case now. There is either a common law claim for conspiracy, and in that regard I am probably the most experienced judge in the division dealing with those cases, and there are issues as to damages that might flow from an already admitted breach of competition law.

 

 

If you thought the application to recuse was so-so before those remarks  (and really? Did you? )  then I’m fairly sure that at the point where the Judge says that the application for recusal is a conspiracy theory because BA are running some sort of behind the scenes arrangement where they routinely ditch passengers luggage so that they can carry commercial freight for profit, is the point where the reasonable observer would think “nope, you need to step aside now”

 

  1. So the question then is: what should I do? Well, Slaughter and May wrote to me on Monday, requiring me to confirm immediately that I would recuse myself, failing which they would make an urgent application to the Court of Appeal. This litigation is complex enough, without those distractions. It is of no interest to the other parties, who have all had to come here today, to have a proper application made and a decision made. And that has a cost consequence which will probably be irrecoverable, and it is a matter of great regret to my mind that the parties have been inconvenienced for no apparently good or acceptable reason. It would not be appropriate for a recusal application to be acceded to as a result of an exchange of private correspondence.
  2. This would lead to a waste of a lot of judicial resource time in addition to the parties it will also slow progress of the case which I have been attempting to progress. I am afraid BA are not in my view really interested in progressing the matter expeditiously for obvious reasons.
  3. I however cannot allow my presence in the case and its difficulties to distract the parties from this case. And therefore, regretfully, I feel that I have no choice, whatever my feelings about it, but to recuse myself from the case, and that is what my decision is; not for the reasons put forward by BA, but for the reasons that I have said.
  4. So I will recuse myself. I will vacate the hearing next week; and I shall not direct it to be fixed before the most convenient date as suggested. I shall direct that the parties shall attend on 2 October for directions from the newly appointed judge as to the further conduct of this case. I shall also require the parties to make an immediate application to the Chancellor to appoint a substitute judge; and to tell the Chancellor that I have directed that the first hearing of the case by that newly appointed judge should take place on 2 October.
  5. I will, if necessary, adjourn the application that BA issued, I think, yesterday for a strikeout in the Bau Xiang litigation as well, to be considered as part of the other matters which the judge will be required to do. And I will make no order as to costs.
  6. This is a regrettable but necessary decision caused in my view entirely by BA’s attitude and determination to achieve a result which is nothing to do with the problem. It is a regrettable feature that some litigants now regard a recusal application as one of the tools they can deploy in aid of their case. BA has finally achieved its aim. Neither of their attacks was in my view justified but ultimately they were successful for the reasons given.

 

So there you have it. BA succeeded in removing a Judge from the case whom they perceived to be biased. But it was a Pyrrhic victory, since the Judge was able to use that recusal application to publish a judgment setting out just what he thought of them, and as you can’t sue for defamation for anything that happens in Court or reporting what happened in Court, any national newspaper can report everything that the Judge said about his views about BA (as long as they don’t go further and say that they agree with them)

 

Seriously,  Jack Nicholson’s agent should really talk to me. I think we have a hit here.   [I’m not ruling out Liam Neeson for the role, I think he’d be great for this – but Liam’s agent, you need to know that Jack is interested, so you’d better make a commitment, or the part will be gone]

 

 

 

“Just glanced?” Court of Appeal find Judge to have been unfair

 

Re G (child) 2015  http://www.bailii.org/ew/cases/EWCA/Civ/2015/834.html was an appeal from a finding of fact hearing in private law proceedings conducted   (perhaps that ought to be in inverted commas) by Her Honour Judge Pearl.

 

The appeal was on the basis of judicial bias/ unfairness, which as I’ve set out before has a relatively low bar in law  (that a reasonable observer would have concluded that the Judge was biased) but in practice is hard to pursuade an Appeal Court of, since most people who leave Court without the order they wanted tend to think that a Judge was biased.

 

Here the case was made out, in spades.   [Though not necessarily in terms of the Judge being in favour of one party and against the other, but rather that her treatment of mother’s case was sufficiently unfair to prejudice a fair hearing]

Things began badly when Ms Toch, the mother’s counsel, arrived late at Court on the first day. The context of this was that exceptional weather conditions had disrupted all transport on that day. Ms Toch apologised, but the Judge seemed to take it as a personal slight and had not been able to move on.

 

  1. The first specific complaint was that the judge impolitely told counsel off for her late arrival at court on the first day of the fact finding hearing, 28 October 2013. It was submitted that Ms Toch had been subjected to unwarranted and unfair criticism about this and that this was of concern to the mother as it was obvious to her that the judge was annoyed with her counsel. Other specific instances were identified where it was said that the judge’s attitude towards Ms Toch was disparaging and bore the mark of hostility or unfairness. One example was in relation to the way in which the judge dealt with Ms Toch over the CAFCASS officer but attention was invited to the way in which the judge dealt with Ms Toch over other matters as well.
  2. It is essential to consider the exchanges that preceded the commencement of the evidence in the case as a whole. The hearing got off to a difficult start on the morning of Monday, 28 October. There had been a powerful storm the previous night with damaging winds. Transport services were severely disrupted and Ms Toch had problems in getting into central London for the hearing. Ms Toch’s account in her statement is that, on the witness template, the morning had been scheduled for the judge to read. It has not been possible to find out whether that was anyone else’s understanding. Ms Toch’s account is that she was told by her clerks on the Monday morning that the judge wished to sit at 11.45 a.m.. Because of her travel difficulties, Ms Toch did not arrive until 12.20 p.m. which made her late for this and meant that she had not been able to discuss matters directly with counsel for the father before the case started. The transcript of the proceedings opens at C3 with Ms Toch apologising to the judge for delaying the court. She explained about the limitations on transport from her home area that morning and the steps she had had to take to get to court.
  3. Matters moved on but it can be seen from the transcript that Ms Toch’s lateness continued to trouble the judge for some time and that she returned to it later. I will deal with this at its appropriate place in my consideration of this stage of the hearing.

 

 

The Court of Appeal are not kidding.  To get a flavour of it, see this exchange

 

It is not difficult to accept that the mother’s confidence in her counsel’s ability to put forward her case to the judge would have been undermined by the judge’s approach to Ms Toch as set out above. It is also, perhaps, of note (although it cannot affect the fairness of the fact finding hearing) that matters were not easy at the hearing on 7 January 2014 either. By way of example, Ms Toch said to the judge, in relation to the mother’s evidence about the dowry question, “Your honour subsequently looked at these matters and made a finding.”. The judge responded:

“THE JUDGE: Looked at them?

MS TOCH: Your honour has….Yes.

THE JUDGE: Just glanced?

MS TOCH: No, your honour.

THE JUDGE: I have analysed them. I have spent hours on this case…..I have gone through every line of the evidence. I have not just looked at it, Ms Toch. I take that as a straight insult.”

 

 

Oh boy. And again

 

 

“THE JUDGE: Do you think it is fair that a CAFCASS officer should stop contact completely without even speaking to the father about a matter of fact? Do you think that is the way to proceed?

MS TOCH: Well, of course, he did not. He raised this. He referred the matter to Social Services to investigate and the matter was referred to the court and the court stopped contact. It was not the CAFCASS officer.

THE JUDGE: But he recommended that contact be supervised.

MS TOCH: He wrote a letter to the court to say that contact should be suspended pending the outcome.

THE JUDGE: Do you think that is a fair way to proceed?

MS TOCH: Well, it was referred to the court, so it is a matter for the court.

THE JUDGE: Do you think –

MS TOCH: It is a matter for the court.

THE JUDGE: We are not going to get –

MS TOCH: I am sorry.

THE JUDGE: This is the second time we have had a conversation like this.

MS TOCH: Yes.

THE JUDGE: If I ask a question, try and answer it please.

MS TOCH: The CAFCASS officer did not suspend contact and contact was ordered to be supervised by HHJ Everall –

THE JUDGE: Do you think it is right –

MS TOCH: – on submissions.

THE JUDGE: Do you think this man’s evidence on a finding of fact is going to assist me?

MS TOCH: I am not saying it will.

THE JUDGE: Yes or no?

MS TOCH: I am not asking for him. I am saying he is available. I understood the father wished to have him.

THE JUDGE: Well, you have just asked the question [of the father’s counsel]. He said he does not want him to be cross-examined.

MS TOCH: And I have heard that, so unless the court wishes him, I do not.

THE JUDGE: Look –

MS TOCH: I am not calling him. Am I clear?

THE JUDGE: No, I know.

MS TOCH: I am not calling him.

THE JUDGE: Let us try and have an exchange, shall we?

MS TOCH: Yes.

THE JUDGE: All right. You have made me angry.

MS TOCH: I am sorry.

THE JUDGE: The second time. This morning I was asking questions. You simply were not answering the questions.

MS TOCH: I am sorry.

THE JUDGE: You must answer my questions.

MS TOCH: I will, yes.

THE JUDGE: Are you going to ask me to rely on this CAFCASS officer’s finding or understanding of the truth as part of the evidence I rely upon to substantiate your client’s allegation of the stabbing? Yes or no?

MS TOCH: No.

THE JUDGE: Thank you.

MS TOCH: I am terribly sorry. I did not mean to be –

THE JUDGE: I am so grateful to you.

MS TOCH: Yes.

THE JUDGE: No, you do mean to be because this is the second time you have done it and it does not work with me. You are not relying on his assessment of this child’s veracity. You are only relying on the fact that it was said. The father does not deny it was said and you are not going to come towards me at the end of the hearing and say, ‘Because the CAFCASS believed it, your honour, you must believe it.’

MS TOCH: No.

THE JUDGE: All right. Do you think it was bad judgment for him to recommend that contact be suspended?

MS TOCH: He –

THE JUDGE: Yes or no?

MS TOCH: It was correct judgment to have the matter investigated as it was.

THE JUDGE: This is going to be a difficult hearing.

MS TOCH: I am sorry. I do not think my opinion is important, with respect. He made the recommendation. It came before the court.

THE JUDGE: Look, I do not want to stop a witness coming to court and then meet submissions from you –

MS TOCH: I am not going to make those submissions, if I make that plain.

THE JUDGE: Yes, good.

MS TOCH: Yes.

THE JUDGE: So that has taken ten minutes. No counsel this morning at all and ten minutes and I am not being unreasonable about this.”

 

[Erm, I think perhaps you were]

I feel Ms Toch’s pain there. I’ve had, some considerable years ago, that sort of experience, though only about a quarter as bad as that. If I say to practitioners “Humpty Dumpty” some may have a shudder of recognition and repressed memories flood back. There is very little worse than being in front of a Judge and feeling that every single word you say is just making the Judge more cross.

If you are remembering the Liverpool Judge and the Court of Appeal ruling that a judicial appointment was not a licence to be rude, you are on the right lines here.

 

As the Court of Appeal say, one does not pick up tone of voice from a transcript of judgment.

What is not apparent from the transcript is the judge’s tone of voice. I need only say that listening to the recording did nothing to improve the impression gained from the written word.

 

There are many, many, more examples of this from the trial. Immediately after this, the Judge castigates Ms Toch for being late again.

The pressure on Ms Toch continued immediately after the passage that I have set out above with the judge returning to the subject of Ms Toch’s lateness as follows (C25):

“THE JUDGE: Everybody knew – let me be clear about this – there were going to be no trains this morning. It was very, very clear on the national media. Everybody knew. It was absolutely clear and I changed my travel plans accordingly, as did everybody else. Everybody knew and if I had been living in [counsel’s home town in Kent], I would have made plans to avoid this disaster this morning. Be utterly clear about that.

MS TOCH: Yes. I can only apologise to the court. I did try. I really did try.

THE JUDGE: Well, I hope you have apologised to your client.

MS TOCH: I apologise to everybody in this court that has been inconvenienced.

THE JUDGE: Everybody knew that there were going to be no trains this morning.

MS TOCH: Yes.

THE JUDGE: So why you sat in [counsel’s home town] last night waiting for there to be no trains, I do not know. It is ten to three and we have not even started –

MS TOCH: I am so sorry but sometimes people cannot leave the night before and I could not. ….”

 

How is the mother supposed to feel about whether she is getting a fair trial at this point? The Judge is outright quarrelling / bullying her representative at this stage.

  1. It was unnecessary, in my view, for the judge to have returned to this question at this stage in the proceedings and, as I see it, the exchange compounded the pressure that had been put on Ms Toch by what had just occurred in relation to the CAFCASS officer. My experience is that counsel tend to manage to be on time for court against even formidable odds but sometimes it simply is not possible. The weather conditions on this weekend in October were extraordinary and disruptive of transport. As Ms Toch observed to the judge, sometimes it is not possible for counsel to set off the night before. There are various reasons for this, ranging from domestic commitments to an inability to obtain accommodation overnight or to pay for it from a brief fee which was not designed for that eventuality. Ms Toch told the judge of the steps that she had taken to get round the problems on the morning of the hearing, she got herself to court as soon as she could, and she apologised. It is understandable that the judge felt frustrated by the loss of time that could otherwise have been devoted to discussions between counsel or other arrangements outside court or to getting the hearing underway. It is clear that it was going to be a challenge to conclude the evidence and submissions within the allotted court time, even without delays of the kind that had occurred and that always poses difficulties for a judge. However, I accept the submission of Mr Phillips that she laboured the issue of Ms Toch’s lateness to the point of unwarranted, unfair criticism.
  2. Taking the whole of the exchange about the CAFCASS officer and the lateness together, I also accept the submission that the mother would have felt that the judge was annoyed with her counsel and that this annoyance influenced the judge’s approach to her case and impeded the presentation of it by counsel on her behalf.

 

The Court of Appeal did determine that the Judge’s management of mother’s cross-examination did not cross the line and that a Judge is entitled to have their own approach to such matters providing that the line is not crossed

 

  1. It was shortly after the CAFCASS/lateness exchange that the mother began to give evidence. Complaint was made of the judge’s approach to her during her cross-examination which it was argued was hostile and distressing to the mother. Managing a trial can be a challenging, even for an experienced judge, and it is sometimes necessary to react without much time for refined consideration. Generous allowance always has to be made for this and also for the fact that, even with counsel’s help, it is very difficult to tell from a transcript, or even from listening to a recording, precisely what was going on at all stages during the hearing. Furthermore, different judges have different styles and counsel and litigants can usually be expected to cope with the talkative, the uncommunicative, the robust, and even the irritated judge, provided the judge’s behaviour does not stray outside acceptable limits.
  2. In this case, I see the judge’s handling of the mother’s cross-examination as being within normal tolerances. True it is that the judge asked the mother on occasions to stop interrupting her, but that was not unjustified as the mother did tend to interrupt questions put to her and talk over people. Nor, in my view, would it be right to criticise the judge for speaking to the witness about being on oath or for requiring her to stand up, which was likely to have been done in an effort to control the process and possibly also in order to hear better. I note also that when the mother was upset following some questioning by Mr Cameron (C104/5), the judge asked if she had hankies and offered her a short break.

 

However, the judicial approach to Ms Toch’s cross-examination of father did cross that line on occasions.

 

Mr Phillips’ summary in his Schedule of the position with regard to the second day of Ms Toch’s cross-examination was that between C221 and C279 (which was essentially the end of it), it was difficult to find a single page where there had not been interventions by the judge. The fairness of a hearing cannot be assessed scientifically or mathematically but, seeking for some way in which to look at matters as a whole and to pin down impressions, I counted the entries against the names of the judge, Ms Toch and the witness in the first thirty or so pages of transcript of the resumed cross-examination, starting at the foot of C216 which was the nominal start of it. By the middle of C247, the judge had spoken 250 times, Ms Toch had spoken 227 times and the witness had spoken 140 times, only 64 of them in response to a question from Ms Toch. Between C251 and C258, there was quite a concentrated period of cross-examination, during which the judge spoke only 18 times. However, it was then a further nineteen pages before Ms Toch was able to cross-examine continuously again, although during those nineteen pages there was considerable questioning of the father by the judge, for example for three full pages between C259 and C261. Ms Toch resumed continuous questioning at the foot of C277 but at the foot of C279 Mr Cameron intervened to remind the court that a witness was waiting outside court and that was effectively the end of the cross-examination.

 

….

 

  1. By C194, Ms Toch’s cross-examination had turned to the issue of who was the primary carer for G and, shortly thereafter, also incorporated questioning going to the father’s allegations about the mother drinking, about which he was seeking a finding of fact. The judge’s second prolonged intervention came in the course of this at C197 when she said to Ms Toch, “Are you going to ask him about these serious allegations that are being made?” and slightly later, “I am just wondering when we are going to start on the case that your client is making.” The judge then explored with counsel for some time, in the presence of the witness, what the underlying material was to support the mother’s case about gambling and domestic violence, wondering aloud to counsel “whether we are using the time efficiently” (C201). This passage ended with the father putting up his hand to contribute to the discussion and doing so at the foot of C201.
  2. When Ms Toch resumed her cross-examination of the father the following day (C216), it is apparent that she was intending to deal with the question of domestic violence. I have already referred to the number of contributions made by the judge, Ms Toch and the father respectively during this period but I now return to look more closely at the nature of some of these, albeit that I will not go through every matter of complaint. It is perhaps relevant that the day began with the judge criticising both counsel over Mr Cameron having spoken to his client whilst he was in the course of giving his evidence. The criticism was first directed to Mr Cameron, whom the judge said she felt like reporting, but then widened to include Ms Toch as well because she was thought to have agreed to what Mr Cameron had done. The judge said that she would decide in due course what action she was going to take about this (C215).

 

By this point, the Judge was giving it both barrels to both counsel.  Could it be argued that if a Judge is hostile to both parties, that any judicial bias evens itself out? Nice try…

 

  1. As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.
  2. It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance

 

And so the appeal on unfairness was comfortably made out.

The Court of Appeal did try to soften the blow

 

  1. Before I come to what I would see as the consequences of my conclusions, there are a number of things that need to be said. The first is that I am very much aware of the pressures that there are on the family justice system and upon the hard-pressed and very hard-working judges in the Family Court who must ensure that the court’s limited time is used to the best possible effect. This inevitably means that family judges have to manage hearings before them robustly and this requires intervention at times. The hand of fate, in this case in the form of the disruption caused by the storm, can sometimes make the judge’s task almost impossible. The second is that I am deeply conscious of the fact that the one person from whom this court has not heard is the judge, who would no doubt have had much that she could valuably have contributed to the evaluation of the process. I have done my best to make allowances for this and I have thought long and hard about which side of the line of fairness the hearing in this case fell. The third is that the case is not about Ms Toch and whether she was treated fairly, although she has been mentioned frequently in this judgment. It is about whether the mother was given a fair chance to put her case and Ms Toch was simply one means by which she sought to do so, hence the need to look at the exchanges between the judge and Ms Toch.
  2. In my view, it would be a necessary result of my conclusions that the findings of fact made by the judge would have to be set aside. I would return the matter to the Family Court for there to be a directions hearing, in front of a judge other than Judge Pearl, to examine whether it is now necessary for new findings of fact to be made. It may not be, because the situation for this family has moved on considerably since the events with which we have been concerned. For this same reason, it is not necessary for me to go into the points taken against the orders made by Judge Pearl other than her findings of fact. They have all been overtaken by later orders or other developments.
  3. I would therefore allow the appeal to the extent that Judge Pearl’s findings of fact are set aside and the matter is remitted to the Family Court for further directions.

Sibling rivalry

 

In Re P (A child) 2015, His Honour Judge Wood had to deal with an application for a Care Order for a girl who was sixteen years and four months old. That in itself is unusual. Even more unusual, the central allegation was that of physical abuse (which was disputed by the family). More unusual still, the allegation was that the girl had been physically assaulted by her older brother.

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B101.html

 

Now, if you have a sibling, you might be thinking along similar lines to my initial reactions.  My sister and I fought, not like cat and dog, but like two fighting roosters whose feed had been laced with PCP. We fought about absolutely everything. No topic was too trivial , no imagined slight too minor.  That did occasionally spill into physical conflict. I’m sure that my sister has many dreadful stories about me – many of which would be true, and I will simply indicate that there was a day at Pwllhlei Butlins putting green where she hit me with some degree of force on the nut with a golf club  (from behind) and when it knocked me out, ran off and spent the rest of the afternoon in the arcades playing Burger Time.  She also once hit me full in the face with a tennis racket swung with genuine purpose and intent (but as I recall, that was warranted, though painful).

 

This story, however, goes rather further even than those (admittedly shameful) incidents.

 

At 18.11 hours on Monday, 20th June 2014 P, a girl born on 28th October 1998 and now aged 16 years 4 months, was admitted by ambulance to the emergency department of Hospital A. She was found to have six distinct areas of injury: the first were three red linear marks on the right upper thigh, 1cm by 6cm long; second were two linear marks on the outer aspect of the left forearm, 4cm by 1cm wide; the third was an oblique red mark across the left upper outer thigh, 10cm by 1cm; the fourth was a bruised area, circular in shape, 3cm in diameter with a contusion over the left shoulder tip; the fifth was a linear bruise to the left upper outer arm approximately 4cm by 1cm and the final were a number of red marks across the lower thoracic area, that is to say the back, approximately 3cm by 1cm to the left and right of the midline.

 

 

The fact that the girl had been injured was not therefore in dispute, what was disputed was how these injuries had occurred.

The girl said that she had been at home, watching television and that she and her brother had had an argument (he wanting to turn the channel over to watch football and she wanting to finish watching what she had started), whereupon he started hitting her, escalating to hitting her with an iron bar.

 

The brother said that the girl had come home from school, complained of being hot and fainted from the heat.

It had of course been June when this happened, so perhaps it was hot. However, the girl had grown up in Nigeria and only been in England for a year.   And the family were living in Sunderland. Perhaps the weather in Sunderland that particular day was so hot that a girl who had spent 13 of her 14 years in Nigeria was unaccustomed to such heat and it caused her to faint.

 

The weather in Sunderland on 20th June 2014 was pretty hot for Sunderland. 20 degrees Celsius.  Looking at the weather in Nigeria in the year before, when the girl had been living there, 20 degrees C would represent a brisk chilly day in Nigeria, with a hot day being about 33-36 degrees.

https://weatherspark.com/history/28568/2013/Ikeja-Lagos-Nigeria

 

I have to say that the ‘fainting from heat’ explanation is in need of some work.  I suspect that “Girl Faints from Heat in Sunderland” would be headline news in the North East were it ever to happen.

 

[Actually out of curiosity, I just Googled ‘Sunderland heat wave’ ready to tell you that there were no results, but there were 168,000. Perhaps many of them were along the lines of  “Ed Milliband making a comeback as Labour leader in 2020? That’s about as likely as a Sunderland Heat Wave”]

 

The brother’s evidence became less credible when, for example, he denied that the iron bar was something that he had ever seen before and then retracted this when it was suggested to him that his DNA would be on it.

 

The mother, who had been present, and her father (who had been in Nigeria) both supported the brother’s version of events.

The cultural issue of course raised its head, and the Judge dealt with that

  1. Before considering which evidence I prefer, I want to say a word about cultural issues. This family come from a remote part of Nigeria. English is not their first language, albeit they have a good command of it. They are, as I have said, born again Christians and they seek to live their lives by a strong religious code. Their cultural background is in many ways very different to that which exists in the north east of England. They do things in Nigeria which are acceptable there but not here.
  2. Specifically, physical chastisement of children is normal. The father’s evidence was very clear that for what he called an accountable child, probably from the age of 10 onwards, whipping a child on the legs with African broom or with a cane as part of a process of punishment and learning is normal. It is not so long ago, certainly within the lives of some of the lawyers here, that such was acceptable in this country and so the court has no difficulty at all in accepting that but, given the way that this case has proceeded, its relevance is limited because it is not said either by the mother or R that this is what happened to P. Rather, they say she was not struck at all but I do accept that P and R are likely to have a more benign view of physical chastisement on a child than most British people would have in 2015. All that said, I agree with Mr Donnelly that this is not a case about chastisement in a different culture but a case about significant harm in the care of a mother.
  3. I accept that, further, there is a strict hierarchical structure within families whereby the father of the house, whether he is there or not, has to be consulted on important decisions. That has had significant practical consequences given parental separation here and I accept that it may have played some part in the refusal to consent to P being accommodated, as well as the initial engagement with the Local Authority and possibly even going to court in the early stages which I have no doubt is both a frightening and possibly shameful thing for the mother, in particular, to have experienced. So I have all of these factors very much in mind in making the decisions that I have to and I will return to this in due course.

 

 

The Court had to consider the evidence given by all parties, and of course the legal framwork, which is all very carefully set out. It is a very well constructed judgment.

  1. So which evidence do I prefer? Unhesitatingly, that of P. There is no more explanation for her lying now than there was in June last year. The lengths to which she went in feigning a faint point to the seriousness of the assault that she suffered. The instincts of the ambulance man first on the scene were, in my judgment, entirely correct. The injuries are entirely consistent with her account. They are all about the same age and fresh. They have the characteristics of being hit with an object such as a table leg in their linear appearance. They affect the outer aspects of both thighs, the outer aspects of the left arm and the back. They are not consistent with a simple collapse to the floor. They are, as Dr Mellon said but the mother, father and R denied, characteristic of defensive injuries. It appeared to be beyond the father and R’s comprehension that P would not fight back. She is described elsewhere as an underweight, 15-year-old girl of slight build pitched against a 19-year-old male who appeared to be over six feet high and who was armed and one might have thought that that was a sufficient reason to adopt a defensive position rather than try and fight back.
  2. There is simply no other explanation for these injuries, just as there is no reason put before the court as to why, as R said, P would want to put herself in care and be separated from her family. I reject her father’s submission that because P has told him that she has been refused permission to go to church and to foster care, to the foster carer has said that she does not want to go, that she is demonstrably untruthful or unreliable. There could be many reasons for two different accounts at different times and there has been no opportunity to investigate the circumstances in which those accounts were given in any event. I also reject R’s submission that because she identified her shoulder to the ambulance man, she was thereby not complaining of being beaten by her brother. The medical evidence, in my judgment, is clear. There is no alternative, credible explanation.
  3. The evidence of the mother and R, far from causing me to question her veracity, confirms that they were neither credible nor reliable. I found R to be evasive, argumentative and unwilling to confront the truth staring us all in the face. I could say more about it but I am satisfied, as it happens, that in her letter P has described her brother to a tee:

    “My brother is not a type of person that says sorry so easily. He is a type of person that is so proud and full of himself.”

    It seemed to me that that was a very accurate description of a rather arrogant and self-centred young man. I am quite satisfied that he is an intelligent and articulate man. Having seen him give his evidence and be cross-examined, I am quite sure that he was generally intent on ensuring that he gave answers which supported and/or did not undermine his case rather than trying to tell the truth, the whole truth and nothing but the truth at all times. Accordingly, I did not find him credible and reliable.

  4. I am satisfied that R lost his temper with his sister over an argument about the television. He wanted to watch the five o’clock football match and would not let her finish the programme that she had been watching for some time since she came in from school and, not for the first time, he responded with violence. I am satisfied he beat her with a table leg and caused the injuries that I have noted and, furthermore, I am satisfied that P’s mother knew that this is what had happened for the very reason that she saw it. I pay due regard to what her husband has said about his belief in her veracity but I do not believe that she intervened but, in seeking to deflect attention at the outset, suggested that very thing to the police only to back away from it, as she did, when the seriousness of the incident became known.
  5. P’s shock and distress at her mother not intervening was marked and entirely understood. Although the mother told me that both R and P are her children and that she loves them equally, by her conduct she has demonstrated that, in fact, she has put R’s interests before her daughter. She has protected him when she knows the truth of what he has done. She has almost inexplicably abandoned – and it is not too strong a word – her daughter by denying her contact, putting up as obstacles the Local Authority’s perfectly reasonable conditions. Most parents would walk over hot coals to see their children, however objectionable the terms, because to do so would be to prioritise the child and to meet the child’s needs to see her family. Furthermore, she is not ignorant of the role of social workers. Her professional training and experience over a period of almost ten years contradicts her claim. She may very well be ashamed at the misfortune that has befallen her and her family but she simply has persistently refused to engage in this process as I will explain.
  6. So looking at the threshold document prepared by the Local Authority in the bundle at A16, I am satisfied it is made out as pleaded. That refers in paragraph 4(a) to the injuries themselves, in paragraph (b) to R being the cause of the injuries, being struck by an iron rod and that it was causing her pain, in subparagraph (e) that the mother has been complicit in that physical abuse perpetrated by her son in that she knew or ought to have known it was happening and had failed to tell anyone so as to protect her own interests. She misled professionals and, indeed, now the court about her son having assaulted her daughter and instead alleged that P is lying about the abuse she has suffered and following P’s admission to hospital and subsequently care has, as I have said, abandoned her daughter preferring to protect her son.

 

The family in this case had adopted a strategy of not engaging with the assessment or coming to contact, which is the all or nothing approach that only really ever works if the Court find that the threshold is not met. In a case like this, where the Judge found that the brother had caused very serious significant harm to the girl by hitting her with an iron bar, and that the mother had been in the home at the time, had not intervened and had lied about it, that is not really giving the mother much chance of a happy outcome.  They absolutely would not countenance the brother moving out of the home so that the girl could come home.

 

Even then, though, the Judge was holding out a hand and inviting the parents to take it

I want to say this at this stage: it is still not too late for this family, mother and R in particular, to accept the findings of this court, to make a suitable admission and to work with the Local Authority to reduce the risk both to P and any other children with whom they may be concerned – a very particular concern of P as she said in her letter to me

 

The Court had to make the Care Order, there was no other option

 

This is a very, very sad case. It began as a one issue case, the assault. It could, as Mr Rowlands has said, have had a very different outcome. That it has not is entirely due to the family and not their daughter. It has ended up as more than that because of the astonishing and persistent denial in the face of all of the evidence and the near complete rejection of P by her family. The harm to her from the latter is likely to outweigh the harm from the former in the longer term but, I repeat, even now it is not too late to reverse that process. These parents have an attractive, appealing and loving daughter who has shown the Christian virtues of forgiveness and love that they taught her. She really deserves a very much better outcome than this but I am afraid the solution lies entirely in their hands.

 

One particularly worrying feature of this case was the removal of the child by Police Protection. The mother having refused section 20 and the girl at that time not being sixteen so she was not able to accommodate herself using section 20 (11).   However,

I want to register my extreme concern at the level of force which was used when the police recovered P from her home when she ran away from foster care in September. She was handcuffed, under what power is not clear, and the incident is said to have been recorded because of its nature. This incident needs to be noted and taken up by the Local Authority in conjunction with the police. It is ambiguous from the statement as to whether a social worker was actually present when it happened. It has not formed part of the material evidence before me but it was an extremely unfortunate incident, it was harmful to P that her guardian was rightly horrified about. I do not know what the Local Authority response to it was at the time, what its response has been since and I do seek separately an explanation from the Local Authority and the police as to the circumstances that were pertaining and as to what measures have been devised and agreed upon to avoid a repetition of such an event in the future.

 

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