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Monthly Archives: September 2012

Hair we go again – or blip versus tip

 

What the heck do we do with hair strand tests following Bristol City Council v AA and Others 2012 ?

 

I’ve written before about my doubts and reservations that hair-strand testing, particularly for alcohol, is as reliable as those touting it would lead us to believe. (I’m sure that they genuinely believe it to be as accurate as it is claimed, I’m not suggesting any bad faith)

 

You can find the decision here:-   http://www.familylawweek.co.uk/site.aspx?i=ed101124

 

and this one focusses on the accuracy of drug tests. Let me quickly explain in a Sybil Fawlty (specialist subject the bleedin’ obvious) way, why this is important. If you have a parent in care proceedings (or maybe in private law proceedings arguing about residence and contact) who is suspected of using drugs, or has admitted it in the past and now says they are clean, the Court will be interested in whether these problems are largely behind them, or still to be surmounted. A drug test is done, by taking a sample of hair, and chemically analysed. Just as every person in prison is wrongly convicted of a crime they didn’t commit, so most (but not all) people who get a drug test showing they have used drugs says that the lab have made a mistake. But there are people wrongly in prison, and there are people whose lives have been ruined because a drug test got it wrong.

 

So anything that helps the Courts determine how much reliance can be put on those tests is a good thing.  (As a sidebar, if you’re interested in research at all, and how the headlines don’t tell you everything, Ben Goldacre’s two books Bad Science and Bad Pharma are very very helpful and useful)

 

There were two companies involved in this, Concateno, and Trimega. These are obviously competitors. And as so often happens, when a person disputes the results that company A provided, we don’t go back to company A to get them to do a fresh test but run off to company B, who test in slightly different ways, and then end up scratching our heads over what to do when the two tests reach different conclusions.

 

This one is particularly interesting, since the two companies ended up being Intervenors, and Trimega having concluded that there was a human error with their sampling on this occasion found themselves in a corporate bout of fisticuffs with its main competitor, taking place in a Court room.  Concateno’s case effectively being that Trimega’s error here needed to be ascribed to them and them alone and not to be considered a fault of the hair strand testing process generally if done properly and well (for example, by Concateno)

 

One can see (particularly if you go back to the sums I did in http://suesspiciousminds.com/2012/06/18/help-its-the-care-hair-bunch/    which my guesstimate was that about  three and three quarter million pounds was being spent on these tests per year (very back of envelope, I don’t claim them to be super-accurate)  )  that the reputation of hair strand testing as being accurate is commercially sensitive, and Concateno did not want to be ‘tarred with the same brush’ as Trimega  – in that particular case.

 

[Given that these two companies duked it out in Court over their reputations, I'm not about to start taking sides or making assertions - the questions raised are interesting and I still hope that some proper independent research and systematic analysis will tell the Court and professionals just how reliable hair strand testing is. Anything here is drawn from the case, or is my personal opinion]

 

Now for the purposes of the care case, once the Court had determined that in that particular instance Trimega had accepted a human error and the Concateno tests were to be preferred, that really concluded matters. But the Court had been worried about human error, and had asked Trimega to do a root and branch review of the process and whether such errors had occurred or could occur in other cases. This was the issue that the High Court were grappling with – whether the family Court was the correct forum for the argument that the two companies legimately wished to have.

 

They did agree, the two of them, this :-

(1) The science is now well-established and not controversial.
(2) A positive identification of a drug at a quantity above the cut-off level is reliable as evidence that the donor has been exposed to the drug in question.
(3) Sequential testing of sections is a good guide to the pattern of use revealed.
(4) The quantity of drug in any given section is not proof of the quantity actually used in that period but is a good guide to the relative level of use (low, medium, high) over time.

 

Concateno argued that proper scrutiny of Trimega’s processes and the root and branch review was necessary, in order for the Court to determine the state of hair strand testing. Trimega argued that Concateno’s interest in this root and branch review was in order to achieve commercial gain over a competitor and to effectively seek a judgment critical of Trimega which could be used to the benefit of Concateno.

 

Mr Justice Baker declined to embark on the separate hearing about the issue, thus

21. I accept Mr. Pressdee’s submission that the starting point is the overriding objective in para 1.2 of PD12A. The three specific questions which arise are whether the proposed hearing would (1) deal with the case justly, having regard to the welfare issues involved; (2) deal with the case in a way that is proportionate to the nature, importance and complexity of the issues and (3) allot to the case an appropriate share of the court’s resources.

22. As Mr Pressdee surmises, the reason for including the third issue on the agenda for consideration by the President, and for giving the two companies permission to intervene in the proceedings, was the possibility that the discrepancy between the test results provided by Trimega and Concateno was attributable to flaws in the science and therefore called into question the validity of hair testing for drugs. In the event, the reason for the discrepancy is now accepted as being human error on the part of one of the companies, Trimega. The integrity of the science, and the validity of hair strand testing for drugs, is unaffected by this case. There is, therefore, no proven need for a general inquiry into the matter, or for detailed guidance as to how such tests should be carried out or used in court proceedings.

23. Furthermore, I agree with Mr. Pressdee’s submission that this court is not the appropriate forum for any such inquiry. The jurisdiction of the family courts is to determine specific disputes about specific families. It is not to conduct general inquiries into general issues. Occasionally, a specific case may demonstrate the need for general guidance, but the court must be circumspect about giving it, confining itself to instances where it is satisfied that the circumstances genuinely warrant the need for such guidance and, importantly, that is fully briefed and equipped to provide it.

24. The arguments advanced in this case have been littered with references to commercial factors.  I have already referred to Mr. Pressdee’s frank assertion that Trimega had withheld an apology to the mother because it feared that its rival would exploit such an apology for commercial advantage. In this respect, Trimega’s attitude does no credit to an organisation entrusted with the responsibility of providing independent expert advice to the court on matters that will affect the lives of children and families. In his final document, Mr. Tolson on behalf of Concateno frankly acknowledged that “ultimately … both companies have commercial interests in this case which are entirely legitimate”. In circumstances where both interveners admit to commercial motivation, the court cannot be confident that would have all the information at its disposal to provide clear, detailed and objective guidance. Any process designed to provide such detailed guidance would have to allow other interested parties to make representations.

25. There is agreement amongst the interveners as to the four uncontroversial propositions advanced by Mr. Tolson. The court endorses those propositions which, for ease of reference, I repeat here:

(1) The science involved in hair strand testing for drug use is now well-established and not controversial.
(2) A positive identification of a drug at a quantity above the cut-off level is reliable as evidence that the donor has been exposed to the drug in question.
(3) Sequential testing of sections is a good guide to the pattern of use revealed.
(4) The quantity of drug in any given section is not proof of the quantity actually used in that period but is a good guide to the relative level of use (low, medium, high) over time.

26. For the reasons set out above, however, I decline to sanction any extension of this court process to lead to the promulgation of any more detailed guidance. Such a course would be unnecessary and disproportionate.

27. I am equally unpersuaded that it would be appropriate or proportionate to allow any further share of the court’s limited resources to continue the inquiry into the nature of Trimega’s error. Mr. Tolson describes the report prepared following the hearing before the President as a “whitewash” and accuses Trimega of falsely asserting that the error lay in the collection process to conceal more fundamental flaws in their systems. He sets out the justification for that assertion in considerable detail. Mr. Pressdee denies this allegation and goes into even more extensive detail as to the investigation carried out by Trimega into the cause of the human error in this case. In order to investigate those matters, fully and fairly, the court would in my judgment have to conduct a hearing lasting several days, summoning several witnesses from Trimega for oral evidence, and in all probability commissioning further independent expert evidence. At the conclusion of such a hearing, the court might give a judgment setting out its findings, but no order would follow.

28. I do not regard this court in these proceedings as the appropriate forum for the investigation of these matters. I accept Mr. Pressdee’s submission that the court must be guided by the overriding objective as set out in para 1.2 of PD12A. In my judgment a hearing for the purposes of giving guidance, or investigating the nature of Trimega’s error in this case, would be disproportionate and an inappropriate use of the court’s resources, given the enormous demands on the time of judges of the Family Division.

29. Each intervener makes representations that the other should meet a proportion of its costs in connection with the hearings since November 2011. Trimega were ordered by consent to pay Concateno’s costs up to and including that hearing. In my judgment, no further order for costs is appropriate. It was the court that, for reasons explained above, raised the question whether guidance should be given. The court has now concluded that no such guidance is needed beyond the agreed points set above. It was the court that directed Trimega to investigate and report on its error. Having read that report, the court has concluded that any further inquiry by this court would be disproportionate and inappropriate. Neither of these decisions warrants any further costs penalty.

30. Lest it be thought that this case diminishes the importance of expert evidence in family cases, I conclude by emphasising again that in appropriate circumstances the family justice system requires, and will continue to require, expert evidence to ensure that it makes the right decisions about the future of children. I repeat what I said in Re JS [2012] EWHC 1370 (Fam) at para 47:

“Whilst the courts always have to be vigilant to guard against the proliferation of experts in family proceedings, the court must, in my judgment, always have available to it the necessary expertise to make the right findings in these important and difficult cases.”

As Ryder J has recently observed in “Judicial Proposals for the Modernisation of Family Justice” (July 2012) (at para 41):

“In every case, the judge should be able to say: is your expert necessary i.e. to what issue does the evidence go, is it relevant to the ultimate decision, is it proportionate, is the expertise out with the skill and expertise of the court and those already involved as witnesses by reference to the published and accepted research upon which they can rely and of which the court has knowledge.”

Plainly hair strand testing for drugs satisfies all of these criteria. But as this case illustrates, a high degree of responsibility is entrusted to expert witnesses in family cases. Erroneous expert evidence may lead to the gravest miscarriage of justice imaginable – the wrongful removal of children from their families.

 

 

One can quite see why the Court did not want to embark, under the auspices of a family Court hearing, on an analysis of scientific method and rigour and involving two commercial entities, each of whom had fiduciary stake in the outcome of such analysis and interest in not having their major competitor having access to innermost details of process and working.

 

It does rather leave family practitioners, however, in doubt as to whether this was a ‘blip’ in a particular case, as Trimega claim, or whether it is the ‘tip’ of an iceberg about mistakes in Trimega’s process as is hinted at by Concateno.  We do not know.  We won’t know until this next becomes an issue in the case and the Court genuinely does have to determine it.  You can be fairly sure that in any case where both are involved, one of them will be claiming to be more accurate than the other.

 

And it will leave a family Court in difficulties in how to determine whether a parent who claims that the lab have got their case wrong is genuine or not.

 

As said earlier, some proper independent rigorous analysis of how accurate the process is – and particularly what the genuine stats for false positives and false negatives are, is vital, if the Court are going to rely on this evidence to make critical decisions about where a child lives.  It would not amaze me to see, over the next few weeks some negative advertising alluding to this case.

 

 

an englishwoman’s home is her castle (unless she is 82) ?

A race through KK v STCC 2012 – on deprivation of liberty, capacity and Court of Protection.

 

The judgment is on Baiili, here:-  http://www.bailii.org/ew/cases/EWHC/COP/2012/2136.html

 

It is a High Court decision, dealing with an 82 year old woman, KK, who had found herself in a nursing home STCC. It was, by all accounts a good nursing home, and meeting her needs. But KK wanted to go back to her home. The case obviously therefore grapples with interesting issues of capacity and where the State can or should assume responsibility for making decisions about a person’s life.

 

KK developed Parkinson’s disease and also had an admission to hospital following a fall. This left her disoriented and muddled and a psychiatrist who assessed her decided that she lacked capacity to make decisions. A best interests meeting (and I can already hear many of you saying “best interests? whose best interests?”) decided that she could not return home and should move to a nursing home. She made some improvements there and went back to her bungalow.  There was an out of hours emergency support line, and the LA report KK having used it over a thousand times in a six month period, leading them to review whether she could remain at home.

 

(This has interesting echoes of the Supreme Court case involving the woman who was incontinent at night and wanted workers to help get her out of bed, but was instead given effectively adult nappies – leading to the debate about whether provision of social care services ought to involve a duty of dignity, as opposed to just meeting the needs in the most cost-effective way.

R (on the application of ELAINE MCDONALD) v KENSINGTON & CHELSEA ROYAL LONDON BOROUGH COUNCIL (2011)[2011] UKSC 33  – it was one where the Court were split, and fervently so, but finally ruled that this method of meeting her needs did not violate her human rights.  Frankly, although the budgetary implications of the decision going the other way, and there being a right to be treated in a dignified way were enshrined in law would be a massive change, I wish personally that the decision had gone the other way. I don’t feel comfortable with the idea that this is not a breach of human rights – and this is something that the mainstream press completely overlooked in all their human rights bashing – denying people in their old age proper humane treatment is far worse than all the ‘not deported because he had a cat’ nonsense)

 

The STCC made a DOLS decision that KK was being deprived of her liberty, and followed the correct legal process. The case found itself in Court and to be challenged.

 

There is a nice summary of the law on capacity, which I’ll quote in full, as it is a good starting point for grappling with these issues

 

Capacity – the law

    1. A person may be deprived of their liberty under the DOLS if the six qualifying requirements under Schedule A1 of the 2005 Act are satisfied. In those circumstances, the supervisory body, (in this case CC), may, on the application of the managing authority (in this case STCC), issue a standard authorisation for the deprivation of liberty, and, prior to the determination of an application for a standard authorisation, the managing authority may issue an urgent authorisation. The six qualifying requirements include, under paragraph 12(1)(c) of the schedule, the “mental capacity requirement”. Paragraph 15 of the schedule provides that: “the relevant person meets the mental capacity requirement if he lacks capacity in relation to the question of whether or not he should be accommodated in the relevant… care home for the purpose of being given the relevant care or treatment”.

 

    1. When a standard authorisation has been made by a supervisory body, s. 21A(2) empowers the Court of Protection to determine any questions relating to, inter alia, whether P meets one or more of the qualifying requirements. In particular, once the court determines the question, it may make an order varying or terminating the standard authorisation: s. 21A(3)(a). But once an application is made to the Court under s. 21A, the Court’s powers are not confined simply to determining that question. Once its jurisdiction is invoked, the court has a discretionary power under s. 15 to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Where P lacks capacity, the court has wide powers under s. 16 to make decisions on P’s behalf in relation to matters concerning his personal welfare or property or affairs.

 

    1. When addressing questions of capacity, the Court must apply the following principles.

 

    1. First, a person must be assumed to have capacity unless it is established that she lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on CC to prove that KK lacks capacity. The standard of proof is the balance of probabilities: s. 2(4).

 

    1. Secondly, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for capacity involves two stages. The first stage, sometimes called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, sometimes known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means. Important guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in section 4 of the Mental Capacity Act 2005 Code of Practice.

 

    1. Third, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question whether the person lacks capacity in question, in this case to make decisions as to her residence and care.

 

    1. Fourthly, a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s. 1(3). The Code of Practice stresses that “it is important not to assess someone’s understanding before they have been given relevant information about a decision” (para 4.16). “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.

 

    1. Fifth, I bear in mind and adopt the important observations of Macur J in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), that “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” At paragraph 58 of the judgment, Macur J identified the question as being whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made”. A further point – to my mind of particular importance in the present case – was also made by Macur J at paragraph 24 in that judgment: “…it is recognised that different individuals may give different weight to different factors.”

 

    1. Sixth, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice states: “It is important to acknowledge the difference between

 

  • unwise decisions … and
  • decisions based on a lack of understanding of risks or inability to weigh up the information about a decision.

Information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment – particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else.”

    1. Finally, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other clinicians and professionals who have experience of treating and working with P, the subject of the proceedings. Often there will be evidence from family and friends of P. Occasionally, as in this case, there will be direct evidence from P herself. In A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, Charles J observed “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. That case concerned an application for a care order under Part IV of the Children Act 1989, but the principles plainly apply to proceedings under the Mental Capacity Act in general and the assessment of the functional test under s. 2 in particular. In other words, when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion. When taking evidence from P herself, the court must plainly be careful about assessing the capacity to understand, retain and use and weigh up information, but, whilst acknowledging the important role for expert evidence, the assessment is ultimately a matter for the court.

 

  1. There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam). In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW [2007] EWHC136 (Fam) [2007] 2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the “child protection imperative”, meaning “the need to protect a vulnerable child” that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.

 

 

Very nicely put, in my humble opinion, and it identifies one of the main pitfalls in this area – that of the State taking a very paternalistic approach of ‘we know best’.

 

KK gave evidence herself in Court, and the summary again is set out in full – there’s one particularly telling line at the end, when she was asked what would happen if at home in her bungalow, she were to fall and be unable to get up. She said, that if she fell on the floor and died on the floor, she would rather die in her own home than live somewhere else.

 

KK’s evidence

    1. Unusually, although not uniquely, this court received evidence from KK herself to assist in determining the question of capacity, not only in a written statement but also orally in court.

 

    1. In her oral evidence KK repeated that she wanted to live in her bungalow. She said: “Everything I’ve got is in that bungalow. My whole life. Everything there is familiar to me. I’ve got my hobbies. I’ve got all sorts of things. I am doing a model village. It is in my bedroom in the bungalow.” I asked KK how she got to her bungalow from the court. In reply, she correctly said that you have to go over a bridge, but gave the wrong name for the bridge. When I asked how long it would take to get there, she immediately replied “it depends on the traffic – a good half hour”. She told me that she could see everything in the village from her bungalow window – the church and the tower, the whole village. She collects porcelain dolls. She goes to the bungalow every day and spends several hours there before returning to STCC for the afternoon where she tends to sit in her room. Taxis take her to and from the bungalow. She has a special taxi, able to take the wheelchair. She now goes home three hours everyday.

 

    1. Turning to nutrition and hydration, KK gave the following evidence in her statement:

 

“When left at my bungalow with food I have struggled in being able to reach the food that is left on my table as my table has been filled with lots of different things and often the food gets pushed nearer the back. I have also struggled to drink some of the drinks left out as it has been difficult lifting the drink and moving the straw as my right hand has a tremor. If I was to return to my bungalow I would look forward to planning my meals and writing a shopping list with carers. The cooks at STCC try hard to make meals which I will enjoy, whilst I appreciate their efforts I generally do not like what they cook. I drink “Ensure” nutrition drinks to supplement my diet. I like the taste of these drinks and have asked to be put back on to them. … I get frustrated that STCC’s staff mash my food up and give me a spoon to eat it with. I do not need my food mashed up or a spoon to eat with. I do not think that my diet would be any worse if I returned to the bungalow as I would have meals of choice prepared for me and carers present to assist me with eating.”

    1. I asked her about her food intake during her oral evidence. She said that she could have what she liked for breakfast but usually just had a glass of milk. She repeated in oral evidence that the food was not very good at STCC – “like baby food”. She said that her favourite food was salad. She said that she could make a cup of tea for herself but she does not do so because her legs “are not too good”.

 

    1. As to her future care needs, KK observed as follows in her statement:

 

“I have considered what level of care that I would need whilst at home. I acknowledge that I need assistance in washing including myself, toileting, preparation of food and day-today chores. I anticipate that this could be adequately provided for with four, one hour care visits a day. It may be considered that I need an increased package. I am willing to discuss a suitable package with care professionals. I get on well with my social worker JL and respect his view and opinions. I do not believe that I would need care overnight. Usually I go to bed at 1900hrs and wake at 6 o’clock. Prior to my transfer to STCC I was put to bed by carers at approximately 1900hrs and was visited again at approximately 6 o’clock at which time they would wash and dress me and put me in my recliner chair. This worked well. This routine is similar to that which is in place at STCC.”

In her oral evidence, KK repeated that she would need four visits a day from two carers.

    1. In cross-examination Mr. Dooley asked KK about the cases when she had declined to go on the home visits. She said that on a couple of occasions she had not fancied going back because of the weather. There is a long path up to the bungalow. She was concerned that it might be slippery and that she might be blown over in her wheelchair.

 

  1. In her statement, KK acknowledged that whilst at the bungalow she used the lifeline alarm excessively. She adds: “I understand why this was inappropriate and consider my behaviour in using it so much to have been silly.” In oral evidence, she reiterated that she accepted that she had been using the lifeline in a wrong way. She said “I was nervous”. She added, however, “but I have learnt my lesson.” She was asked what would happen if she fell over. She replied: “If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.”

 

The opinion of all of the professionals was that KK did not have capacity to make decisions – however, the Court rightly identified that it is a factual matter that falls to be determined by the Court and those opinions (even if significant weight must attach) are not determinative.

 

The Court (and I find myself cheering a little as I type this) determined that KK did have capacity, and that therefore the State did not have the power to make her stay in the nursing home if she did not wish to do so.

    1. When considering KK’s capacity to weigh up the options for her future residence, I adopt the approach of Macur J in LBJ v RYJ (supra), namely that it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. In this case, KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is “superficial”. She understands that she needs carers four times a day and that is dependent on them for supporting all activities in daily living. She understands that she needs to eat and drink, although she has views about what she likes and dislikes, and sometimes needs to be prompted. She understands that she may be lonely at home and that it would not be appropriate to use the lifeline merely to have a chat with someone. She understands that if she is on her own at night there may be a greater risk to her physical safety.

 

    1. In weighing up the options, she is taking account of her needs and her vulnerabilities. On the other side of the scales, however, there is the immeasurable benefit of being in her own home. There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated. When KK speaks disparagingly of the food in the nursing home, she is expressing a reasonable preference for the personalised care that she receives at home. When she talks of being disturbed by the noise from a distressed resident in an adjoining room, she is reasonably contrasting it with the peace and quiet of her own home.

 

    1. The local authority has attached considerable importance to KK’s excessive use of the lifeline in the first half of 2011. I infer that this was an important factor in the decision to move her back to STCC. It remains a significant factor in the professionals’ assessment of her capacity. To my mind, however, the local authority has not demonstrated that it has fully considered ways in which this issue could be addressed, for example by written notes or reminders, or even by employing night sitters in the initial stage of a return home. I also note that during KK’s daily home visits it has not been reported that she has used the telephone in ways similar to her previous use of the lifeline, although in the latter stages of her period at home prior to admission to care in July 2011 she was apparently using the lifeline excessively during the day as well as at night. Ultimately, however, I am not persuaded that calling an emergency service because one feels the need to speak to someone in the middle of the night, without fully understanding that one has that need or the full implications of making the call, is indicative of a lack of capacity to decide where one lives.

 

    1. Another factor which features strongly in the local authority’s thinking is KK’s failure to eat and drink. Here again, however, I conclude that more could be done to address this issue by written notes and reminders, and by paying greater attention to KK’s likes and dislikes. KK is not the only older person who is fussy about what she eats and drinks.

 

    1. I do not consider the fact that KK needs to be helped about overusing the lifeline, or reminded to eat and drink regularly, carry much weight in the assessment of her capacity. Overall, I found in her oral testimony clear evidence that she has a degree of discernment and that she is not simply saying that she wants to go home without thinking about the consequences. I note in particular that for a period earlier this year she elected not to go on her daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence that she has the capacity to understand and weigh up information and make a decision. Likewise, I consider her frank observation that “if I fall over and die on the floor, then I die on the floor” demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. I venture to think that many and probably most people in her position would take a similar view. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.

 

The Court did, however, and this is illustrative of the problem I have blogged about before, of what the heck a deprivation of liberty really is, determine that KK’s liberty had not been deprived. So even though she did not want to stay at STCC and had had to do so, her liberty was not being deprived.  I echo what’s previously been said by the Courts on the DOLS issue, that it is extremely unfortunate that a law intended to help the most vulnerable in society has now become so impenetrable that no lay person (or indeed many lawyers) can really look at a set of circumstances and call correctly whether there has been a deprivation of liberty or not.

    1. This case illustrates the importance of the fundamental principle enshrined in s. 1(2) of the 2005 Act – that a person must be assumed to have capacity unless it is demonstrated that she lacks it. The burden lies on the local authority to prove that KK lacks capacity to make decisions as to where she lives. A disabled person, and a person with a degenerative condition, is as entitled as anyone else to the protection of this presumption of capacity. The assessment is issue-specific and time specific. In due course, her capacity may deteriorate. Indeed that is likely to happen given her diagnosis. At this hearing, however, the local authority has failed to prove that KK lacks capacity to make decisions as to where she should live.

 

  1. It will now be for the local authority and KK to discuss what happens next. It is not a matter for me to determine or even advise. One course may be for the local authority to put together a proposal for a series of trial overnight visits, with all necessary support, to enable KK to experience being back in the bungalow at night so that she can reach a decision whether she in fact wishes to move back. During that process, the local authority would doubtless be monitoring her capacity, and may of course return to this Court if it concludes that she no longer meets the functional test. But before doing so, it must be careful to ensure that it complies fully with the statute and Code of Practice, taking all practicable steps to enable KK to make decisions for herself.

 

 

An Emperor and an Empress

(Nonsense, unrelated to law)

 I did declare, when I started this blog, that the subjects would be “law, nonsense and the nonsense of the law”,   and I’ve got stuck into the first and third, but have entirely neglected the second. 

 Luckily, my head is full of nonsense, which I am more than happy to share.

So, this is a little essay of nonsense, about an Emperor who wasn’t, and an Empress who was (but who didn’t do it well).

Honestly, no law in this at all, so don’t feel cheated to get to the end and find no legal information, nor any skilfully drawn parable pertaining to law. I tell these stories because I like them, and for no other reason.

Emperor Norton I of America

Joshua Norton was an inhabitant of San Francisco. He had been a successful businessman, having by the end of 1843 amassed a fortune of nearly a quarter of a million dollars.   (and that’s an incredible amount of money for those days).   He sadly lost it all in an attempt to corner the rice market, buying up every bit of rice that came in, with a view to then being able to sell it later at a profit, but two completely unexpected loads came in, and went on sale at a regular price, leaving him with far too much rice to be able to sell.

(As the late Mitch Hedberg once said “I love rice – any time you’ve got to eat a thousand of something, I’d go for rice”)

In 1859, Joshua Norton decided that he was in fact, the Emperor of the United States of America, and made this proclamation

At the peremptory request and desire of a large majority of the citizens of these United States, I, Joshua Norton, formerly of Algoa Bay, Cape of Good Hope, and now for the last 9 years and 10 months past of S. F., Cal., declare and proclaim myself Emperor of these U. S.; and in virtue of the authority thereby in me vested, do hereby order and direct the representatives of the different States of the Union to assemble in Musical Hall, of this city, on the 1st day of Feb. next, then and there to make such alterations in the existing laws of the Union as may ameliorate the evils under which the country is laboring, and thereby cause confidence to exist, both at home and abroad, in our stability and integrity

NORTON I,
Emperor of the United States.

17th September, 1859.

 

He later became the Protector of Mexico too. 

What I most like about the Emperor of America story is that rather than being ignored, or sectioned, or mocked, the people of San Francisco embraced Norton’s belief and allowed him to continue as though he were indeed the Emperor. 

He wanted for very little, was much beloved and had the freedom of every restaurant in the city. The inhabitants provided him with regal garments, including a fetching beaver-skin hat, and he lived at the Eureka Lodging House, in not terribly palatial surroundings.

 

He gave proclamations, collected taxes, attended sessions of government, and when in need of money obtained it by selling his own currency.

He only once found himself challenged about his authority, when a newly appointed and over-zealous deputy arrested him and took him before the Commissioner of Lunacy.   (commissioner as in ‘in charge of it’ rather than the modern local government meaning of ‘in charge of going out and procuring it’  – that would be a whole different story)

The Evening Bulletin wrote: “In what can only be described as the most dastardly of errors, Joshua A. Norton was arrested today. He is being held on the ludicrous charge of ‘Lunacy.’ Known and loved by all true San Franciscan’s as Emperor Norton, this kindly Monarch of Montgomery Street is less a lunatic than those who have engineered these trumped up charges. As they will learn, His Majesty’s loyal subjects are fully apprised of this outrage. Perhaps a return to the methods of the Vigilance Committees is in order.

“This newspaper urges all right-thinking citizens to be in attendance tomorrow at the public hearing to be held before the Commissioner of Lunacy, Wingate Jones. The blot on the record of San Francisco must be removed.”

He was immediately released, with perhaps the most beautiful judgment I’ve ever seen  (okay, there is some mild law geekery here)

‘that he had shed no blood; robbed no one; and despoiled no country; which is more than can be said of his fellows in that line.”

In the 1870 census, Joshua Norton is logged as a resident of San Francisco, and the handwritten entry shows his occupation as “Emperor”

Ten thousand people attended his funeral, and there’s a lovely plaque in his honour on the Golden Gate bridge.

(For more on Emperor Norton, I recommend heartily Neil Gaiman’s short story “Three Septembers and a January”   in Fables and Reflections.  He tells it, obviously, far better than I have, and if you don’t have a tear in your eye at the end, then you’re made of stern stuff.  Also, Mark Twain wrote about him in newspaper columns, so in merely attempting to retell his story, I’ve gone up against two proper titans of literature)

The Empress Dowager Cixi

Unlike Norton,  Cixi, really was an Empress, an Empress of China, who ruled for about 50 years, dying in 1908.  She died the day after her bitter enemy, who would have become the Emperor died of terrible stomach pains (which we now know to have been massive arsenic poisoning. She remains a hot suspect for that).  She was the last Empress of China, and was suceeded by the Last Emperor.

Her dying words were “never again allow a woman to hold the supreme power in the State”  

(I suspect Dowager Cixi is not a feminist icon, as a result of that not-too-sisterly final sentence. As last words go, it is not quite up there with Oscar Wilde’s  “My wallpaper and I are fighting a duel to the death, one or other of us has got to go”   but it was clearly heartfelt, and not self-aggrandising)

One of the more interesting decisions that Dowager Cixi made, and the reason I’ve heard of her at all, was that when weighing up how to spend the naval budget, given that China was at the time in a running conflict with Japan and had lost almost its entire navy in the 1894 first Sino-Japanese war, instead of opting for spending the money on boats or sailors, decided to spend it all on refurbishing a summer palace.

Let’s imagine that meeting.

“Here’s the naval budget. Our navy has been largely wiped out by a superior force. We need a new navy. The money has all been spent on a summer house.  Well, that will really help when Japan’s navy comes back for round two.  I think that may, perhaps, have been a bad decision…”

 “Who’s Empress?”  

“Ah, you are, your worshipfulness majesty. I love the summer palace. A masterstroke, if I may humbly suggest so”

To be fair, she did make the palace LOOK like a boat.   (and the Chinese navy put a sign on the Marble Palace saying that it was a Chinese naval training academy)

 not actually a boat, incapable of participating in a naval battle

 You will note that, this, the only vaguely naval thing that the Empress spent the entire naval budget on, is a boat made out of marble. Marble has many fine qualities – seaworthiness, is not amongst them.

This was an unpopular move at the time, and became even more so a few years later, when Japan’s navy kicked the living heck out of China’s beleaguered navy.

To be fair, many historians now believe that if Dowager Cixi had spent the money on battleships, they would have all just been sunk by the Japanese Navy anyway, countless more lives would have been lost, and there wouldn’t now be the fantastic marble palace boat to look at, so maybe she was not the worst military planner in history, but simply ahead of the curve.

The cost of running her Court was $6.5 million per year  (which is reported as being an ‘astronomical amount at the time’ )  and each of her birthdays was celebrated with the release of 10,000 caged birds. She is reputed to have once eaten a 150 course meal at a banquet. 

This made me feel rather sorry for her – after her death, her tomb was raided  (probably that Lara Croft) and the pearl that had been placed in her mouth to prevent evil spirits from getting in was stolen.

But gosh, the Empress wasn’t the last person to try to build ships out of manifestly unsuitable material. 

The US navy decided during World War I, to build 12 battleships out of concrete. Yes, concrete, that notably buoyant substance.  How did that experiment go?

The SS Atlantus is pictured below.  Apparently, the experimental material “proved impractical due to weight”    [astonishingly, this happened after 'several transatlantic voyages']

Undaunted by this, the US Navy had another crack at it in WWII.  Rather than build 12, they went for 24.  Well, why not, as they worked so well first time.

[Sad geeky fact - you can build a boat out of concrete, provided it is the right shape - it just has to displace more weight of water than the weight of the ship. Steel isn't exactly light, but steel battleships can float]

Is there truly such a thing as an ‘anonymous’ referral?

 

 A discussion of Re J (A Child:Disclosure) 2012

The case can be found here :-

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1204.html

 

 

This was an appeal arising from private law proceedings, but the principles are likely to apply (if not be even more apposite) to public law proceedings.

 

Effectively, within the time that private law proceedings were going on, an allegation of sexual misconduct was raised against the father.  The allegations were made to the Local Authority, who then alerted the mother that allegations of a serious kind, that they had some confidence in, had been made.

 

The referrer had requested anonymity.

 

(We go back here to D v NSPCC 1978 AC 171  which established that a principle called  Public Interest Immunity applied to information provided to a child protection agency – like NSPCC or Social Services,  and that there was a broad public interest in individuals being able to know that they could make those referrals in confidence.    In particular that they wouldn’t face threats, violence or harassment as a result of having made that referral.

 

There’s a larger public debate here, which can easily be understood if you switch the word ‘referral’ with ‘allegation’   – it’s appropriate for someone to be able to make a referral in confidence, but if you put yourself in the place of a parent who is the subject of an anonymous allegation, you would feel entirely differently)

 

 

As the father, understandably, was disputing that he had behaved in a sexually inappropriate way, and the issue was going to the heart of whether he was a risky person to have contact with his children, or a safe person, the Court had to have a finding of fact hearing to determine the allegations.

 

Given that the referrer, who wished to remain anonymous, had become known to the mother, the issue then became twofold :-

 

  1. Should her identity be formally revealed and the detail of the referral be made known by disclosing the documents
  2. At the finding of fact hearing, should the referrer attend Court and be available to be cross-examined?

 

 

The Judge at first instance, who was Mr Justice Peter Jackson  analysed the issue in this way :-

 

  1. a. The father denied sexually abusing anybody. He had not been informed of X’s identity and knew nothing of the substance of her allegations. He asserted that the mother had colluded with X to generate these allegations for the purpose of obstructing contact with his daughter. He argued that for the court not to insist on testing the allegations would be fundamentally unjust and the situation would effectively encourage mothers to make outrageous allegations as a means of alienating fathers and children from each other. The interests of A must come first and there must be a trial attended by X.

b. The mother described herself being torn between the need to protect A and the reluctance to add to the pressure on X. She supported disclosure if it is the only means by which A can be protected, but is concerned about the consequences for X if disclosure takes place.

c. X strongly resisted disclosure of her identity and of the substance of her allegations. She would oppose any attempt to summons her as a witness and would not be able to speak about her allegations if she were brought to court. She was acutely distressed by the effect of the proceedings on her already fragile state of health.

d. A’s guardian asserted that she was unable to represent A’s interests in the proceedings without knowing the detail of the allegations and forming an assessment of them. She submitted that the issue of disclosure was a discrete issue and should be determined separately from any question of X being compelled to attend court to give evidence.

e. The local authority took a neutral stance, but assisted the court by presenting arguments for and against disclosure.

  1. In analysing the competing factors, the judge referred to the following articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘ECHR’) as being relevant:

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  1. Having considered the decision of this court in A Local Authority v A [2009] EWCA Civ 1057; [2010] 2 FLR 1757, the judge concluded that the fundamental objective of the balancing exercise is to strike a fair balance between the various rights and interests within the context of achieving a fair trial. In this context he held (at paragraph 29) the following ECHR articles were engaged so far as the court and the local authority as public bodies are concerned:
    • Article 6, entitling A and her parents to a fair hearing of X’s allegations;
    • Article 8, guaranteeing respect for the family life of A and her parents;
    • Article 8, guaranteeing respect for the private life of X; and
    • Article 3, prohibiting inhuman or degrading treatment of A and of X.
  1. Peter Jackson J concluded (paragraph 34) that X’s wish not to speak further about her alleged experience of sexual abuse and the risks to her mental and physical health were each aspects of her ‘private life’ within Article 8.
  1. Within the Article 3 considerations fell not only the protection of vulnerable individuals such as A and X, in particular from sexual abuse, but also the protection of X from inhuman treatment by forcing her to give evidence about these matters in the context of her precarious state of health.

 

The Judge at first instance decided that balancing those competing interests meant that it was right, in the circumstances of this particular case, not to compel X to give evidence, or to disclose the information  (he approached it in that order, which becomes relevant later)

 

48. I have nevertheless concluded that in this highly unusual situation it is not possible for information about X’s identity and allegations to be disclosed to the parties. My reasons are these:

1) I accept the medical evidence about the potentially serious effect of disclosure on X’s health.

2) The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.

3) X’s identity and her allegations are inextricably intertwined.

4) For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.

5) The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.

 

49. I realise that the existence of this unresolved allegation creates real difficulties in relation to future contact between A and her father. Once the parties have considered this judgment, there will be a short hearing to identify the issues that now arise. For the present, I will only repeat the observation that I made during the Guardian’s submissions, namely that this outcome will not automatically lead to the court making an order for unsupervised contact. That question must be resolved taking account of all factors bearing on A’s welfare

The father’s case, again understandably was, that without having the opportunity to properly test the very grave allegations that had been made against him  (and not even knowing who it was he was alleged to have abused)  would make it impossible to conduct a finding of fact hearing, and even if the allegations were effectively set to one side with a decision that they couldn’t be proved, they would hang over him and inevitably colour any later decision about his contact.  

 

(The Judge seemed to be saying that X’s allegations wouldn’t be the subject of a finding of fact hearing, but that on its own did not mean that father’s contact would automatically revert to pre-allegation position. And a strand that emerged was that without the allegations being determined one way or another, was it reasonable for mother – who believed them – to be opposed to direct contact?)

 

The Court of Appeal considered the issue of the trial judge having seen the source material which was not disclosed to the parties , with the long and the short of it being that a Judge who saw such pertinent evidence and decided it was not to be disclosed was really in a position where he had to recuse himself from determining the matter, no matter how hard he would strive to put it out of his mind, ‘justice must not only be done, it must be seen to be done’ :-

 

 

  1. Having now had the benefit of looking at these potentially ambiguous passages with the assistance of counsel’s submissions, I am fully satisfied that the judge has no intention of relying directly upon the undisclosed material to support some form of finding on the issue of sexual abuse. His latter comment about the outcome not automatically leading to unsupervised contact would seem simply to be a sensible and proper judicial indication that all substantive welfare options remain open and that all he has dealt with thus far is the application for disclosure.
  1. Despite accepting that the judge’s indication is, within its own context, unremarkable, there is a need to step back to consider how a fair final hearing can be seen to take place if it is conducted by a judge who has read the detail of X’s undisclosed allegations. This is not a topic that is addressed expressly in the judgment, yet to my mind it justifies careful consideration. From the perspective of an insider within the family justice system, I have no difficulty in accepting that any judge of the High Court Family Division would have the necessary intellectual and professional rigour to conduct the final hearing by putting the undisclosed material out of his or her contemplation when considering A’s welfare. That, however, is not the test, or, at least, not the complete test. Justice not only has to be done, but it must be manifestly and undoubtedly seen to be done. How is the final hearing to be viewed by the father if his contact to A is reduced from its pre-2010 level or terminated, when he knows that the judge who has determined the case has read details of serious, but untried and untested allegations against him? The father has already referred to ‘a kangaroo court’ and such a characterisation could only gain prominence in his mind were the case to proceed in the manner contemplated by the current orders.
  1. Often when Public Interest Immunity (‘PII’) is raised the matter to which the PII relates may not be directly relevant to the primary issue in the case and there can be a fair trial of the central issue notwithstanding the fact that material known to the judge remains undisclosed to some or all of the parties. Here the undisclosed information is at the core of the case and represents the entirety of the material relating to the only issue that has generated the mother’s application to vary the contact regime. The father, or an impartial bystander, is entitled to question how there could be a fair trial of the contact issue when the judge is privy to this core material yet the father and those representing A are not. I stress again that I readily accept that if Peter Jackson J were the trial judge he would have approached the matters before him with intellectual and judicial rigour; my concern relates to how matters are, or may be, perceived by the parties and others.
  1. Drawing these observations together, in my view an outcome on the facts of this case whereby the key material has been read in full by the judge but is not to be disclosed to the parties, yet the same judge is going on to preside over the welfare determination is an untenable one in terms of justice being seen to be done. In failing both to consider this aspect of the case and in arriving at that outcome the judge was plainly wrong

 

 

There is, as always with Lord Justice MacFarlane’s judgments, a helpful drawing together of the history of decisions on both Public Interest Immunity and balancing of competing Human Rights, and it would be a good starting point for any research on these issues.

 

 

The Court of Appeal then determined whether the Court at first instance had gone awry in balancing those matters, and specifically whether in determining that X was not going to give evidence and thus disclosure was of no purpose, that decision had been made the wrong way around (i.e that disclosure was a separate issue to X giving live evidence)

 

  1. Moving from legal principle to the circumstances of this case, whilst the judge’s characterisation of the probative value of X’s allegations as being unlikely to lead to a resolution of the issue that they raise may be correct on our present state of knowledge, that state of knowledge is based entirely on what X is reported to have said. Because of X’s stipulation that no person is to be told of her allegations, the local authority has not undertaken any investigation of them whatsoever. In so far as X may give a factual context which places X and the father together and within which the alleged abusive behaviour took place, it has not been possible to ask any of the adults who were then responsible for X’s care whether or not that factual context has validity. A’s mother knows only of the label attached to the alleged behaviour, she too may readily be able to validate or challenge what is said about the factual context and the father’s opportunity to interact abusively with X as X alleges. Plainly the father too will be able to give his own account of matters if disclosure takes place. I do not therefore accept Peter Jackson J’s assertion that ‘the nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources’; the position is that, unless or until the relevant adults are told of the allegations, it is simply too early to come to a conclusion on that issue. There is merit in the disclosure of this core material, so that it may properly be evaluated by A’s mother, A’s father and A’s professional representatives, that merit is freestanding and has value irrespective of whether or not in due course X could be called to give oral evidence.
  1. For the reasons I have given, I conclude that the judge was in error in conflating the issues of disclosure and X being required to give oral evidence in due course. In turning to the latter issue first, and concluding that compelling X to give evidence would be oppressive and wrong, the judge unfortunately allowed that conclusion to dominate his consideration of the disclosure question in a manner which is unsupported by authority. The judge was further in error in failing to identify the freestanding value of disclosure which would enable the key adults to understand and give their own factual account of the circumstances within which X alleges that the abusive behaviour took place

And then moved on to make the decision about disclosure :-

 

  1. In answer to the questions posed within structure established by Lord Mustill in Re D:

a) there is a real possibility that disclosure will cause significant harm to X’s mental and physical health;

b) the interests of X would benefit from non-disclosure, but the interests of A favour disclosure. It is in A’s interests that the material is known to her parents and is properly tested. There is a balance to be struck between the adverse impact on X’s interest and the benefit to be gained by A;

c) If that balance favoured non-disclosure, I would in any event evaluate the importance of the undisclosed material as being central to the whole issue of contact and the life-long structure of the relationships within A’s family. In fact, X’s allegations represent the entirety of the ‘issue’ in the family proceedings. There is therefore a high priority to be put upon both parents having the opportunity to see and respond to this material.

  1. For the reasons that I have given, and approaching the matter in way that I have described, I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A’s children’s guardian.

 

 

The Court of Appeal did make it plain during the judgment, that they were considering this on the basis of the individual case and the individual judgment, rather than attempting to pull out some general principles for all cases, and say so explicitly here:-

 

40         I repeat and stress that this conclusion is specific to the facts of this case where the PII material relates entirely to the core issue in the case. It is not my intention to lay down a blanket approach to all cases, which will fall to be determined by the application of general principles to the individual facts that are in play.

 

And of course, the key issue in this case is that the referrer X, was not someone who was saying  “I have seen father do such and such to a child” or “I believe father has done such and such to a child”  but that “when I was a child, this man did such and such to me”     (i.e that the referrer was not claiming to have witnessed abuse, but to have been a victim of it)

 

But the principle remains – in the light of this authority, and the ones cited within the judgment  (notably Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593)  )   http://www.bailii.org/uk/cases/UKHL/1995/17.html  

 

Can someone who makes a referral or allegation to a Local Authority, who wishes to remain anonymous, have confidence that they would remain so?

 

The reality is, that if the referral or allegation is relied upon – i.e that a party to the case seeks to convert that allegation into proven fact (as opposed to ‘it is true that an anonymous referrer said this, but the Court is not asked to determine that what was alleged is true’)   then it is hard to see a Court being persuaded that the parents article 6 rights to see the allegation and challenge it are outweighed by the interests of confidentiality to the anonymous referrer.

 

The deck was stacked pretty heavily in favour of the referrer here  -  she had been a ‘child victim’, there was psychological evidence about the consequences of disclosure being very detrimental to her, and still the material was disclosed.

 

There’s the possibility, perhaps long-distant, of a referrer who was told by the Local Authority when they rang up and asked if they could remain anonymous that they could, bringing a claim against the LA when their details were disclosed. 

 

It might well be the case that the only true way to make an anonymous referral is the obvious one – don’t give your name to anyone.  If you tell the person on the other end of the phone your real name, they might well have to cough it up at some point in the future.

 

[If it hasn’t been clear in the discussion above, I am very sympathetic to both sides of the debate – I think it is important that people are able to genuinely alert the right authorities to suspected child abuse without having to have fear of reprisals, but I can also see that where there is suspicion and doubt that such referrals are genuine and might instead be false malicious allegations, there’s a serious interest in the victim of such allegations being able to properly contest them.  

 

It is one of those difficult areas where the overarching public interest in cases generally might well be anonymity, but in any particular case the right thing is more likely to be transparency]

 

 

Psychometric, qu’est-ce que c’est

 

(or “Raw Shark? Why would I be interested in Raw Shark?”)

A discussion about psychometric tests, and their clandestine nature.

 

I happened to stumble upon something which piqued my interest the other day. 

 

Psychometric tests are standardised tests sometimes administered by psychologists and sometimes used within reports used for Court proceedings. The tests themselves are confidential, and I learned that the questions posed within those are not to be disclosed by anyone, including if asked for by a lawyer.

 

This, from the British Psychological Society guidance :-

 

 

Confidentiality and security of tests

 

Psychologists should be mindful at all times of the confidential nature of test materials. Many tests are invalidated by prior knowledge of the specific content of tests and their objectives. Psychologists who use tests are required to respect the confidentiality of test materials and to avoid release of test materials into the public domain (unless this is explicitly allowed in the nature of the test and by the test publisher). A court, though, can legally request test materials and such disclosure is allowed within the Data Protection Act. Psychologists, however, should take reasonable steps to prevent misuse of test data and materials by others. Misuse includes release of such data and materials to unqualified individuals (although see later with regard to legal release), which may result in harm to the client and/or release of data and materials without an adequate explanation with regard to how they are to be interpreted or used.

 

Legal scrutiny of tests

 

Some court proceedings are open to the general public and most are ultimately a matter of public record. In those cases where the practitioner has used standard test materials such as psychometric tests, he or she will need to be careful to ensure that all parties are aware of the possible dangers of discussing the content of standard test materials in open court. It may give rise to a leaking of confidential information and may put information into the public arena, which would damage the integrity of subsequent testing using those standard materials. Most courts, which are open to the public, will be sympathetic to a request that the details of such tests remain confidential or are restricted to a small group of participants in the case, allowing the practitioner to make reference to the tests in a general way, which will not affect their usefulness after the proceedings. Psychologists should not engage in detailed presentation and discussion of the content of test materials in open court.

This restriction may be less important in cases not routinely open to the public; nevertheless, it is still wise for the practitioner to guard the integrity of the materials in this way.

 

The practitioner should raise this matter with the solicitor who instructs him or her, or with the lead solicitor in the case of joint instructions to provide reports.

However, although these materials will be protected where appropriate by the court, practitioners can be expected to be examined, sometimes in detail, about the results of the tests and about all aspects of the report filed, including the interviews undertaken and any background to the conclusions reached. In answering questions of this nature it is likely that the court will require answers to be full and accurate and will be less concerned to guard what would otherwise be confidential material.

 

http://www.bps.org.uk/sites/default/files/documents/statement-_psychometric_evidence.pdf 

I know that this is also how psychiatrists treat the Rorschach inkblot tests. You will have seen facsimiles of Rorschach tests in magazines or in films or TV, but you should  never have  seen an actual Rorschach inkblot unless you’re a psychiatrist or undertaking the test.  The actual inkblot cards that they use are intended to be kept secret and can’t be reproduced.  

 

     (this is not a real one)

 

That makes sense, to be honest, because if you could look at the inkblot and see what various interpretations meant, you would avoid saying “that looks like a crab”  if you knew in advance that crab = serial killer.

 

[Of course, the internet being the internet, you can see them with pretty minimal effort – the most obvious place you would go to find out about a subject has all of the card images and the broad interpretations.  Don’t take a long time answering if the card has any red ink on it, is a top tip, if you find yourself in a Hollywood movie.]

 

And the same principle applies to psychometric testing.  If you could say to your client in advance of the psychological session, “by the way, if they ask you which you would rather be, a crab or a clown, don’t say crab” it would invalidate the tests.  

 

 

But here’s my interest.  One of the psychometric tests that I see (and frankly, the only one that I’m interested in) deals with the validity of the other answers.

 

What they do, is amongst all of the other questions, is put some questions that anybody who was being honest would answer in a particular way.

 

For example  (not a real one)  : “Do you ever lose patience with other people sometimes?” 

 

Now, of course, everyone in the real world says yes to that, of course we do. I lose patience at least nine times a day (more if I go shopping).  So, that’s a control question to see if the person doing the test is being truthful, or trying to create a favourable impression.  If the person says “no, I never lose patience” to that question, then they might well be trying to make the test come out in a favourable way, rather than answering all of the questions truthful.  It’s something called ‘faking good’.

 

And it isn’t done on one question, but multiple ones, and they are probably not as transparent as that.  (because that one alone, you might just be the Dalai Lama, although he doesn’t crop up that often in care proceedings)

 

Now, if you get a psychological report with a psychometric test which shows that the person being assessed was ‘faking good’  it undermines the rest of the test because the person is deliberately trying to appear better than they really are.  And it is an alarm bell for not just the test, but makes you question what the assessment as a whole says, because if you know or believe that someone ‘faked good’ in the test, you start to disbelieve what they say in the narrative parts of the assessment, where they are having a conversation with the expert and giving answers. Were they ‘faking good’ in those bits too?

 

 

So, the consequence of your client having been identified as someone who was ‘faking good’ in a psychometric test is possibly serious. Even if the expert is careful not to say that the psychometric test can be relied on to show that the client is a liar, is that not still an impression that is left?

 

And when did the expert do the interviews? After the tests were known, and they thought there was a considerable chance that the client was ‘faking good’? did that colour the interview.

 

It does feel a little peculiar to me that if you wanted to challenge a psychologist on whether that ‘faking good’ indicator was robust, you wouldn’t be able to get under the bonnet at all, and see the questions or the answers.

 

For example, there is a debate about whether ‘faking good’ responses are a conscious or unconscious process, and therefore, seeing the specific questions and answers that led to the validity of the test being questioned might turn out to be very important.  There might be something particular about that question for that client that meant that the answer was actually genuine, rather than an attempt at ‘impression management’

 

 

 

This is the final piece of guidance from the BPS, about what to do if the expert finds themselves in the position of a lawyer wanting to get under the bonnet, and not taking no for an answer

 

What action should be taken if a court or other legal entity requires the psychologist to release detailed test data?

Very rarely, a psychologist may be required by a court to disclose information regarding test materials or test data so that it comes into the public domain. If the psychologist believes that such disclosure may invalidate or damage the integrity of the test, then he or she should inform the court of the consequences of compliance. The psychologist should make the court and any relevant lawyer aware of the British Psychological Society’s policy concerning the security of test materials and the psychologist’s obligations under this and other ethical and professional codes, including the Society’s Code of Good Practice for Psychological Testing. In many cases, those concerned will be able to negotiate an accommodation which minimises the degree to which the psychologist’s professional standards are compromised by his/her overriding obligation to the court. An example of such an accommodation may be to allow a scoring sheet to be observed in court by the advocates but not for this to leave the court or for any copies to be made. Judges will generally be open to such compromises and will not seek to deliberately invalidate tests by allowing unguarded or full public disclosure.

When conflicts in reaching negotiated accommodation do arise, psychologists should identify the relevant issues, make known their commitment to relevant standards, and attempt to resolve them in a way that conforms both to professional practice and the law. In rare cases where, following such negotiations, a psychologist finds that the court’s demands have nevertheless compromised his/her position in relation to these issues, he or she should notify the Society’s Ethics Committee and the Steering Committee on Test Standards.

 

 

[I have to say that I have never actually seen a psychologist refuse to answer a question in order to preserve the sanctity of the tests, but that is what their professional body advises them to do.  In fact, the only time I've ever seen anyone try to unpick the questions, I do recall one of the questions that was revealed (not a faking good one)  being  - well, in the light of this article, I can't say, but save to say that there was intense debate outside Court amongst the advocates as to what the 'right'  or 'good'  answer to the question should have been. And not on partisan grounds, just on the basis that it felt a bit like a 'and when did you stop beating your wife?' question]

 

The first time I was exposed to the ‘and when did you stop beating your wife’ question was in a Bugs Bunny cartoon, and it made an impression on me as being simultaneously very clever and very unfair, so I guess I was always going to end up being a family lawyer.

 

 

Liberace, losing and Lou Gehrig

Some thoughts arising from the Evidence in Child Abuse Cases  #ECAC course I attended today.

 

Firstly, it was an excellent course, and had a lot of fresh and useful material.  It was a genuine pleasure to hear Jo Delahunty QC  (who is like the most charming intelligent surgical scalpel you will ever meet) speak on the Al Alas Wray case  (which I’ve blogged about before – here : -   http://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/                as she was leading counsel for one of the parents, and so had a wealth of useful insights and tactics to put forward.

 

Secondly, there was a paediatric neuroradiologist sitting in front of me who is DEFINITELY going to get instructed next time I need one. Likewise the paediatric neurosurgeon. And no, I’m not sharing names, because I want them to be available when I call them.

 

One slightly awkward moment when an entirely different barrister responded, during the Panel session, to a barbed question from a doctor about whether Court is the best place to resolve complex medical issues with the R-bomb  (With the greatest possible respect).  Kudos to the questioner, for not responding, as I might have with “you know what, I’ll see your ‘crusader for justice’ and raise you ‘I save children’s lives for a living’ , so keep your Respect to yourself”  and instead just said “with all due respect”  which was even better)

 

Anyway, Liberace.  You may not know, if you are younger, who Liberace is. So he was a flamboyant singer, who looked like this :-

 

 

In 1956, the Daily Mirror printed a story saying that he was gay.  It was the Fifties, perhaps people needed to be told the bleeding obvious back then, and perhaps for some reason it was any of a newspaper’s business what a celebrities sex life was like  (thank goodness times have changed)

 

Liberace sued them for libel. (he couldn’t, presumably, sue them for being homophobic jerks, because this was the Fifties).

 

He won his case,won about £15,000  (which in those days was at least several houses) and coined his expression “I cried all the way to the bank”.

Now, as you probably know, truth is a defence to libel. So, someone, representing the Mirror, went to Court, and tried to persuade the Court that it was true that Liberace was gay. And failed.

 

Feel free to look back at the photograph, which would have been my exhibit one.

 

I suspect whoever had that brief for the Mirror put on a tie with a smile on his face, and walked to Court with a spring in his step that day. They didn’t know much about basketball in those days, so the phrase “slam dunk” was meaningless to them, but if there was ever a slam dunk, that was it.

 

So I occasionally like to ponder the mixed feelings of the two counsel on that case – one with a mountain to climb who did so, and one with what looked like a molehill to step over, who fell over it.

 

The Al Alas Wray case is of course, not in that same league. For one thing (and I am sorry if this crushes any illusions) , Liberace really was gay, so shouldn’t have won; and the odds weren’t quite so slanted, but still, one is expected to think as counsel seeking the findings with the great and the good of Britain’s medicine lined up behind you, that you will see off these fancy American experts with their crazy theories, but it was not to be.

 

But the reason it was not to be, and this really came home today, listening to Jo Delahunty QC, is that people involved put in huge amounts of work. Medical reports weren’t just obtained and copied, or read through, they were digested and tough questions formulated arising out of them. The truth came out, but it wasn’t like finding a doorkey under a doormat – just a quick bit of lifting and there it is – this was truth obtained by painstaking forensic analysis.

 

And what was clear to everyone in the course was that Al Alas Wray might well represent the high watermark of when English family justice meant just that, that a person wrongly accused has the weight and resources of the law behind them and has the chance at a fair trial.  A similar case in two years time, is not going to get the experts that are needed, the time that each expert needs to read the source material, the ability to call and test that evidence  (it seems pretty clear that cross-examining experts will be a rarity even when you do get to instruct one) and certainly isn’t going to have the period of time it takes to do a case like that properly.

 

There was some interesting discussion about head injuries, and the medical research on lucidity.  A key piece of research, which offsets the previous position of Chadwick 1997 that “If a history purports a lucid interval that history is likely false and the injury is likely inflicted”   was Denton and Mileusnic 2003 where the child suffered a witnessed fall backwards 3 feet onto vinyl floor, was fine and tragically died 3 days later.

 

It’s a telling example of how even though any particular case might have to make medical history for the explanation given to be correct, medical history can be made by a single case.   (And the one of those that leapt to my mind was Lou Gehrig, the baseball player, who died of Lou Gehrig’s disease. Plus, it started with an L, so it fitted.  And was referenced by Bill-Hicks-rip-off-merchant Dennis Leary  with the tasteless aside  “How’d he not see that coming?”.    )

 

Frankly, Phineas Gage is a better example particularly as we’re talking head injuries, and his story is fascinating if you haven’t already read it.  He was a railway worker, who suffered a serious head injury, destroying his left frontal lobe  which changed his entire personality, and is pretty much the beginnings of neuroscience, and moved us from reading bumps on people’s heads to finding out which bits of the brain do what.

http://en.wikipedia.org/wiki/Phineas_Gage

 

Family preservation versus child rescue

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

 

I blogged about those consultations here :-

 

http://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/ 

 

 

Anyway, here is Dr Dale’s response.

 

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

 

 

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things.  This document did that, and for that reason, I commend it to you.

 

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working. 

 

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

 

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

 

 

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

 

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

 

I think that most people in the UK would agree that children should not be sexually abused  (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers),  but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse  (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

 

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm?  Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’  against ‘this child can’t stay at home

 

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

 

I would like to hope that if you pulled out a random judgment from any care case decided by any  Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst  “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”  

 

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300.  We have no way of knowing.  I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe.  But either of us could be wrong. We might both be (and probably are)

 

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in  a family justice system that results in Care Orders being made.

 

Anyway, enough about me, on with Dr Dale.

 

He opens with this :-

 

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

 

 

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

 

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland.   I’m sure it has never been as overt as that]

 

 

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

 

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

 

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation(http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

 

It is always worth a reality check, and this whole section is one.  Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

 

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now.  I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

 

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system?  How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

 

 

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

 

 

Some more on compulsory adoption here :-

 

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

 

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

 

 

 

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at.   I can see an argument that can’t be dismissed out of hand  that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

 

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of  “Is the system actually getting the right answers now?”

 

 

As Billy the Kid once said  “Speed’s fine, partner, but accuracy’s final”  

 

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

 

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

 

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

 

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

 

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)].  Which I have blogged about here    

 

 

http://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’    and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point.  Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

 

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

 

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

 

 

 

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’   – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

 

 

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

Mis-practice direction – how not to write a letter of instruction

It has been plain to me for a number of years that alongside the official Practice Direction on Instructing Experts http://www.familylaw.co.uk/system/uploads/attachments/0001/8873/FPR_PD25A.pdf

there must also be a secret set of rules to follow when constructing a letter of instruction that goes to at least half of the parties, in order to produce the monstrosities that we end up with,  but which is not otherwise available.

[Just like the secret special snooker words to Lady in Red...  "a cut as thin as a thong"]

After exhaustive digging and research, and aided by Indiana Jones, Batman the world’s greatest detective,  the Famous Five, Nicholas Cage’s character in that National Treasure film, and Chunk out of the Goonies, I have found it, and here it is.  Unselfishly, I am prepared to share it, so that we all understand how those masterful LOIs really come into being.

Now we all know…

Constructing a Letter of Instruction in Family Proceedings –

a Mis-Practice Direction

1. Make it long. If you’ve asked less than twelve questions, you are doing it wrong. If less than fifteen, you’re still a bit of a lightweight, frankly. Heck, I could do seven questions in a Letter of Instruction just asking for a DNA test, what’s wrong with you? Are you even trying?

2. Ensure that you have at least two nested questions, ideally with six or seven sub-clauses in each. Then you can confidently say that ‘well, we only added two questions’ and get fourteen different things asked

3. If there is a bush, make sure to beat around it.

4. On no account ask a straight question. If you ask a straight question (like, for example “can the parent provide this child with good enough care, now or in the next six months?” ) the expert might give a straight answer, and then where would we all be? Think of the poor mug who has to cross-examine the expert if there’s a straight question and a straight answer. The purpose of the Letter of Instruction is to obfuscate, not illuminate, and to ensure that you get a report which has something for everyone, rather than one clear conclusion.  Your role model here should be Sir Humphrey Appleby.

5. Don’t be afraid to ask the same question again, by subtly changing the words and having it two or three questions further down. If the expert answers them both the same, then you shrug and say “oh well”, but if there are two different items, well, then you have inconsistency, and have topics for cross-examination.

6. If you do encounter a bush, it is essential that you beat around it.

7. Make sure you put at least one question in that is outside the expert’s area. For example, when dealing with a psychiatrist ask them about the mother’s parenting ability or the quality of contact. If an independent social worker, ask them about post traumatic stress disorder. If they give you an answer you like, hooray – if they don’t, you can cross-examine about how they’ve strayed outside their expertise.     [A particular favourite was a draft LOI to a psychologist which contained only questions for a psychiatrist and none on topic. I actually did see this draft]

8. Ensure that the cost section is written at such length and in such impenetrable detail that even a forensic accountant married to a director of the LSC would only have a vague grasp on what is intended. On no account tell the expert the truth, that you don’t know how much they will get paid, or when, and that no amount of chasing or complaining will make the LSC stump up any cash. The cash will simply fall from a branch on the LSC money tree when it is ripe and ready to fall, and not before. You cannot shake that tree.

9. Always try to fundamentally misunderstand attachment theory – a particularly good way is to ask whether the child’s primary attachment is to an adult they don’t live with and haven’t done for over a year, or whether the parent is attached to the child.  In fact, just assume that attachment is in any way relevant to the decision the Court has to take, and you’re half way there.

10. If you have a question for the expert which is really just a rambling theory that you might potentially stick in submissions, but you can put a question mark on the end of it, put it in anyway.  Anything with a ? at the end of it must be a question, by definition. We don’t put ? at the end of long rambling assertions, do we?

11. Feel free to set out in mindbendingly tedious detail, everything that the expert is inevitably going to cover in their assessment, but spell it out for them as if they had never done an assessment before. This couples ideally with the requirement for a nested question.

12. Feel free to ignore the standard of proof that we work towards, and pepper the questions with “is it possible?” “can it be excluded that” or “can we be certain that?” .    In particular, don’t worry that something like Ehler Danloss syndrome affects only one in a hundred thousand people, if it potentially explains the injuries, then the child is bound to have it, and you must insist on the expert testing for it or ruling it out as a possibility. No matter how expensive, time-consuming or intrusive the testing, it has to be done, so that the remote possibility can be excluded.

13. Always end with “and any other matters you consider relevant and important”  because the expert would never, ever, ever tell you something earth-shatteringly important if it didn’t absolutely fall within your already sprawling list of questions.

[If anyone can lay their hands on the fake practice direction, I’m sure written by a judge, which sets out the unwritten laws that people must be following in order to produce  the court bundles that he was seeing - with stuff like “ensure that any individual document is stapled to another document unrelated to it, with a staple that will pierce the fingers of anyone who tries to remove it" , I’d be very grateful and I’ll stick a link to it here, as that was what inspired this]

Thank you to Chunk for his detective work. [Yes, that is just a gratuitous attempt to crowbar in a Goonies picture. You guys! Hey, you guys!]

Was this the toughest day in court ever?

 

For an advocate at least.    This is not a family case, but a judicial review relating to the prosecution of a speeding offence.   It is by way of an entertainment, rather than any important legal principles.

 

Poor Mr D George of counsel  was appearing on behalf of the Applicant, and gets one of the most systematic dismantlings I’ve ever seen.  At various points, it is clear that he is no longer trying to win his case (which is a lost cause) but to try to limit damage as the Court seem hell-bent on finding that his instructing solicitor is guilty of  “sharp practice”    (I am only quoting the Court here, not reflective of any opinions I may or may not hold)  

 

(Of course, I make no comment whatsoever on this, and am just putting up the link to the transcript. There’s an interesting and lively exchange between counsel and bench as to the extent to which a defence solicitor is entitled to make use of the system to achieve a result for his client, even where this is stretching ‘fair play’ a little, and it is worth reading)

 

If you’ve had a rough day in Court as an advocate, or fear you are about to, this transcript will offer you a deal of comfort and solace that it won’t be half as bad as this.

http://http://crimeline.info/case/r-zafar-ali-v-mid-sussex-magistrates-court?CMP=EMCLAWEML1646 

 

This is the first substantive exchange, and one can see that poor Mr George is going to have a tough time of it

8. SIR JOHN THOMAS: He admitted he was travelling at 117 miles an hour in his Porsche, didn’t he?

9. MR GEORGE: At one stage, yes. The difficulty is that the plea that was entered was entered to a summons which appears to have been based upon incorrect ‑‑

10. SIR JOHN THOMAS: Surely he knew whether he was travelling at 117 miles an hour or not?

11. MR GEORGE: That’s only one ‑‑

12. SIR JOHN THOMAS: What injustice is there? At the moment, I wholly fail to understand what conceivable injustice there is in this case.

 

And the midway point

 

52. SIR JOHN THOMAS: All right. So he’s prosecuted on the basis of the ‑‑ let us look at the reality of the evidence, all right. Now, what is the difference between these two statements, apart from East Sussex and West Sussex which, quite frankly, is the most absurd point I have heard in a long time?

53. MR GEORGE: There are about 20 differences.

54. SIR JOHN THOMAS: Okay. Well, let us hope they are slightly better than that one.

 

apparently not

 

 

62. MR JUSTICE GLOBE: 2109 and 2110. That’s 1 minute.

63. MR GEORGE: That’s a 1 minute difference.

. SIR JOHN THOMAS: Now, you are not relying on that, are you?

65. MR GEORGE: No. It’s the totality of the statement.

66. SIR JOHN THOMAS: Well, let us have a look at them. A totality of points which are completely stupid, the result is a completely stupid one.

 

And then things really go awry

167. SIR JOHN THOMAS: It has not been abandoned. It’s nonsense, I suggest. Look, the reality of this case, in anything other than someone’s imagination, is that the officer made a simple mistake on his word processor. It’s perfectly clear that both statements say that the machine registered 117.9 miles per hour and your client pleaded guilty.

168. MR GEORGE: Yes.

169. SIR JOHN THOMAS: He had no defence to this. If there was something, for example, if the second statement said he was only travelling at 40 miles an hour, of course you would have a case, but this is absurd.

170. MR GEORGE: There is additional evidence in the first statement of course because it is suggested that the driver acknowledges the speeding in reply to the caution.

171. SIR JOHN THOMAS: If Mr Ali really believed he wasn’t travelling at this speed he could have pleaded not guilty. What you are doing is something that I find repugnant ‑‑ and not you personally ‑‑ but Mr Freeman’s conduct I find repugnant and improper conduct of the proceedings in that someone who has made a genuine error comes along, your client has pleaded guilty, knew all along what he was doing, and these nonsensical arguments are being used to waste the courts’ time. I am sorry to put it so brutally, but the single judge said this was a nonsense and it is a nonsense, this application.

172. MR GEORGE: I can only go on the basis of the evidence I have before me.

 

And if poor Mr George didn’t take a much deserved drink of water at that point and feel that the ground was swaying a little beneath his feet then he deserves a letter about being made a Silk at the next tranche of appointments, because he’s made of stern stuff.

 

It gets worse still

 

203. SIR JOHN THOMAS: Why was this not drawn to the attention of the court? Are you seriously disputing that there was a ‑‑ the CPS say there was a DVD of the incident.

204. MR GEORGE: Yes, there must have been.

205. SIR JOHN THOMAS: We know, in these courts, that actually DVDs are extremely reliable. If there was a DVD of this incident and it showed your client driving, maybe we should call for it and call for why this case is before the court. Because if it is the same person, this court has been misled ‑‑

206. MR GEORGE: I don’t know ‑‑

207. SIR JOHN THOMAS: ‑‑ in a most serious manner. I think what we should do is call for that to be produced.

208. MR GEORGE: Can I just ‑‑

209. SIR JOHN THOMAS: No. Shouldn’t we do that?

210. MR GEORGE: No, my Lord.

211. SIR JOHN THOMAS: Because if that is the same DVD, these whole proceedings have been an abuse of the process of this court.

212. MR GEORGE: May I ‑‑

213. SIR JOHN THOMAS: Do you want to take some instructions while we deal with the next case?

214. MR GEORGE: I can, of course.

215. SIR JOHN THOMAS: You see the gravity of what I am saying?

216. MR GEORGE: I do appreciate that, my Lord. Can I just ‑‑

217. SIR JOHN THOMAS: Because we are not here ‑‑ we are here dealing with a judicial review of a decision. I have no idea whether the DVD is the same, but if it is, and Mr Freeman must have known this, this application is an abuse of the process of this court and it might contend further sanctions. We simply cannot have this happening.

218. MR GEORGE: It would appear that the issue as to ‑‑ I don’t know whether ‑‑

219. SIR JOHN THOMAS: Because if the DVD is the same, there was a DVD of this incident and it showed your client speeding, this case is an abuse of the process of this court.

220. MR GEORGE: I don’t invite your Lordship to call for the DVD.

 

 

If his attendance note began “Thank you for your instructions in this matter”  I would be profoundly surprised.

 

 

has a point been spectacularly missed? (warning, contains some maths)

 

Or math, if you’re American, in which case “hello, and you really don’t need to read this”

 

The LSC have decided that from 1st October 2012, any application for Prior Authority on experts will be refused (unless it is a request which goes above the codified hourly rates).  They point out, unsurprisingly, that 70-90% of applications for psychologists are within the codified hourly rates and that it is a time-consuming and intensive process to deal with all of these requests.

 

So, we’re left with – if your expert is on or below the codified rate you are okay to instruct them, and can’t seek Prior Authority to make sure your costs will be paid. And if they’re above, well then you can ask if that’s okay (but they’re going to say no, so save your breath for blowing up balloons)

 

I know that even Stephen Hawkins was told before his book “The Brief History of Time” was completed, that every equation in it would cut sales figures in half, so he only included one, and that’s the one that everyone already knows, though they don’t understand it.  But we need a little bit of maths to show why this new procedure might be even worse than the last one.

 

Pre October example   – the parties want to instruct Dr Walter Bishop to undertake a psychological assessment. They get the quote, which is £150 an hour, for 40 hours.  There are four parties (which makes the maths easier, hooray!). The parties apply for prior authority, as each of them as liable for £1,500.  The LSC say “We agree the hourly rate, but want to halve the time, so you can all have £750″.   The parties then have to decide whether to (a) beat Dr Bishop down to 20 hours (b) get him to take less total money (c) pay the difference of £750 out of their own pockets (ha!) or (d) look for another expert.  All very time-consuming and far from child-centred, but what we avoid is Dr Bishop spending money that he won’t get paid for, or putting solicitors on the hook.

 

Post October example – the parties want to instruct Professor Farnsworth, and he says “good news everyone, I’m available.”  He gives a quote of £150 per hour for 40 hours. So each party is responsible for £1500.  But, the publicly funded parties can’t ask the LSC if they are happy with the 40 hours, and any application for prior authority will be refused (so the assessment couldn’t happen at all).  Now, somebody has to take a risk. If the expert produces a final bill of £6,000, the LA can stump up their share of £1,500, but who knows how much money the three publicly funded parties will get. If the LSC run true to form and arbitrarily slash the hours and here’s the nub – after those hours have been incurrred ,  there’s a risk that the expert will be £2,250 out of pocket, or three solicitors will be £750 out of pocket.

 

Without telling solicitors up front, how many hours are acceptable for an assessment  (even if it was  a generic figure for which exceptions could be sought),  there is now a risk that either the expert or the solicitors will be out of pocket.  The risk on the expert is obviously three-fold, since Professor Farnsworth stands to lose three times as much as any individual solicitor.

 

Professor Farnsworth’s horrified reaction to not getting his fee paid.

And there’s no way, any more of knowing up front, whether the LSC will pay for the hours the expert has spent on the case, because you can’t ask for Prior Authority.

A lovely little incidental from this is that for ISWs, who have been badly hosed by the whole codified rate thing, there is now far less risk for the solicitors  (because the hourly rate is so much less, the risk per hour spent that the LSC cut costs less) and instructing a psychologist with the hourly rate around the £150 plus mark becomes terribly risky.  [using the hours above, the ISW would be £30 x 40 hours -£300 each, and if the hours got cut in half, each solicitor would be short of £150, rather than £750]
But if I were an expert wanting to do public law family work, I’d want to know up front, if the LSC aren’t guaranteeing to pay my hours, who bears the risk in the event of shortfall? Because if you think it is me, I’m not going to do work for you, certainly not more than once.  And the solicitors can’t take a £750 hit on profit costs on fixed fee work, because it makes taking the case worse than not having been involved at all.

 

Easy fix, and maybe they intend to do this, or have done so, but tucked it away somewhere and not told us.   (See the Beware of the Leopard post about how public bodies tend to hide the important stuff away)

 

Type of assessment   – hours allowed     – additional hours allowed for each party being assessed

 

Or, but they’ll never do this – the LSC declare that they will honour all expert fees where the Court has approved the hours in the estimate  (the Court obviously being seized of the case and having a proper understanding of the issues, the papers, the complexity and how long it takes to do a proper assessment)

 

Fix please, because otherwise, your solution to the Prior Authority problem has unintentionally paralysed experts and solicitors by fear of capricious hour-slashing and the financial risk of who loses out.

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