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Tape recording of an expert (a SHOCKING case)

Posted on August 23, 2016 by suesspiciousminds

Truly, absolutely shocking.

This was a set of care proceedings, transferred up to the High Court before Mr Justice Hayden. A  consultant clinical psychologist, Dr Ben Harper, was instructed by the Court to assess the mother. The mother unknown to him, tape recorded their sessions. After the report of Dr Harper arrived, containing words set out in quotation marks attributed to the mother that she says she did not say, those tape recordings were transcribed and showed that she was correct.

 

Re F (A Minor) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2149.html

 

Here are the findings that mother’s team invited the Court to make – you’ll see that they are very powerful  (perhaps even career-damaging stuff)

 

  1. Ms Taryn Lee QC and Ms Olivia Weir prepared a very extensive schedule prefaced by the following summary of the findings they invited the Court to make:
    1. 1. Dr Harper has either misread or exaggerated the mother’s presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.

2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these ‘quotations’ by the mother to form his conclusions and recommendations.

3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.

4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.

5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.

6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.

7. Dr Harper inaccurately quotes other experts’ reports in a manner that presents a negative impression of the mother.

8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.

9. It is asserted that neither Dr Harper’s handwritten notes nor his comments regarding the 6th April 2016 can be relied upon for the reasons asserted in the schedule.

  1. As these findings were particularised it became clear that the allegations extended to: ‘false reporting’; ‘inaccurate quoting’ designed to present the Mother in a ‘negative light’; ‘fabrication of conversations’ and deliberate ‘misrepresentation’. In cross examination Ms Lee accused Dr Harper of ‘lying’.

 

 

Holy wow.

 

Dr Harper was invited to intervene in the proceedings, and was represented by Fenella Morris QC.

 

The Judge did not approach the matter on the basis of the schedule of findings drawn up  (that’s rather annoying for me, as it would have helped to look at such particularised findings, but that was a judicial decision)

 

  1. Whilst I am full of admiration for the industry which underpins the extensive schedule prepared by the Mother’s team and the equal energy expended in the detailed response document, I am bound to say that the two do not provide a user friendly framework to negotiate the contested issues. Partly for this reason but primarily because I consider it to be a distraction, I do not propose to address many of the minute allegations which, as I have indicated during the course of exchanges with counsel, are of varying cogency and forensic weight. What I propose to do is to analyse, in what I consider to be a proportionate manner, those allegations which it is necessary for me to determine in order properly to resolve the issues in the care proceedings. Thereafter I must consider a further important question: are the findings made out against Dr Harper sufficiently serious so as to render his evidence in these proceedings unreliable?

 

  1. Dr Harper’s report is dated 11th April 2016, it is 70 pages in length. At its conclusion it contains the following, now standard, declarations:
  3. i) ‘I have exercised reasonable care and skill in order to be accurate and complete in preparing this report’;

ii) ‘I understand that this report will form the evidence to be given under oath or affirmation’;

iii) ‘I am likely to be the subject of public adverse criticism by the Judge if the Court concluded that I have not taken reasonable care in trying to meet the standards set out above’;

iv) ‘I confirm that I have acted in accordance with the Codes of Practice for Experts’.

  1. Finally, the ‘STATEMENT OF TRUTH’ appears at the very end of the report. Familiar though it is, it requires to be repeated here:
    1. “I confirm that the contents of this report are true to the best of my knowledge and that I make this report knowing that if it is tendered in evidence, I would be liable to prosecution if I have wilfully stated anything that I would know to be false or that I do not believe to be true”

 

Responding directly to the schedule of findings sought by mother’s team, Dr Harper said this

 

  1. Responding directly to the schedule Dr Harper makes this concession:
    1. “12. There are a number of occasions where I have referred to Mrs Mother as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate.”

 

Yes, if I read a report from an expert that said

 

Mother said she was sorry for all the trouble she had caused

I would think that there was an apology along those lines but not that this represented a verbatim account but

 

Mother said “I’m sorry for all the trouble I’ve caused”

 

I would read as being, the expert is reporting the words that she used and is stating with confidence that she used those words.

So having remarks in quotation marks that mother did not actually say is a significant deficiency.

What did the Judge say about that?

  1. I have read this paragraph a number of times. It seems to me to do Dr Harper no credit at all. It is crafted in a way that seems designed to minimise the extent of the very significant failing it represents. When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother. They convey to the reader of the report only one impression, namely that they represent the authentic voice of Mother herself. The quotations are also italicised and drafted in full sentences in the idiom of the Mother rather than in the formal argot of psychology which characterises the remainder of the report. Within the context of the evaluative exercise that the Court is involved in, during care proceedings, the accurately reported phrases and observations of the parties themselves are inevitably afforded much greater forensic weight than e.g. opinion evidence, hearsay or summary by a third party. It is very likely that a Judge reading such ‘quotations’ in the report of an experienced expert witness will at least start with the strong presumption that they have been accurately and fairly recorded. It is, to my mind inconceivable that a witness of Dr Harper’s experience, which I have taken care to set out in some detail above, would not have appreciated this. Indeed, it strikes me that it would be obvious to any lay party or member of the public. Moreover, I find the concession in the statement, where mention is made of ‘a number of sentences’ is a complete distortion of the reality of the document. The report is heavy with apparent reference to direct speech when, in truth, almost none of it is. Thus, the material supporting the ultimate conclusion appears much stronger than it actually is. Given the forensic experience of Dr Harper and his extremely impressive academic background I cannot accept that he would have failed to appreciate the profound consequences of such distorted reporting.
  3. In the course of the public law proceedings the Court authorised interviews between one of the children and Dr Harper. I very much regret to say that the purported quotations in that report i.e. presented as if they were the words of the child himself are also nothing of the kind. Dr Harper used the same approach there. They are in fact a jumble of phrases extracted from jottings and / or perceived recollection. Dr Harper voluntarily submitted his notes to scrutiny, they can properly be characterised as minimal. They prompted this submission on behalf of the children’s Guardian by Mr Cohen QC and Mr Edwards:
    1. “It is hard to know why Dr Harper has reported as he has. His methodology and minimal notes of the 3 meetings with the mother would have made it very difficult to accurately record what she had said. The court will form its own view as to his evidence. We do not suggest that he had an intent to mislead but he showed a carelessness which verged towards recklessness in making statements which he must or should have known were to be relied upon. His evidence may also have shown an overconfidence in his own professional judgment and ability that was indifferent to the correct assessment process.”

 

 

I am genuinely shocked by this. It undermines a lot of credibility of expert witnesses, if an expert attributes quotations to a parent and a child that they did not say, that were ‘impressions’ and that the note keeping was minimal.

 

As these ‘quotations’ were not present in the tape-recorded formal sessions, there was some consideration of whether they were instead conversations or discussions that took place at one meeting on 6th April, which appears to have been a contact session and two discussions on the way in and way out of the session

 

  1. Ms Lee and Ms Weir pitch the findings they seek very highly indeed, they are of the utmost gravity. It is for this reason that I required counsel to be very clear about the legal framework. Ms Lee has, in the proper presentation of her case, repeatedly impugned Dr Harper’s integrity and honesty during the course of her cross examination. It is alleged that he has fabricated the fact of the discussions between himself and the Mother and, says Ms Lee, where there is no written note of any topic of discussion it has been, in effect, invented by Dr Harper. There is no ambivalence in the way Ms Lee advances her case. In her closing written submission she asserts:
    1. “For the avoidance of doubt, it is submitted on behalf of the mother that Dr Harper’s account of the ‘discussions’ that took place on the 6 April is a lie. Likewise his handwritten note is a fabricated document (Finding 9) in which he has attempted to back-fill some of the gaps that he knew would come to light once he was alerted to the fact that the assessment sessions on the 15 and 23 March 2016 had been recorded; he of course being present at both sessions and knowing exactly what he discussed and what he did not. As such, it is submitted that his handwritten note can not be relied upon.”
  3. Given that the earlier meetings were recorded and transcribed it must follow that the purported quotations from the Mother not covered on those sessions must therefore have taken place at the meeting at the contact centre on the 6th April 2016. This inevitably therefore has been the focus of the dispute at this hearing. The first conflict of evidence is as to the length of the meeting. There were in fact two meetings, one before the children arrived for an observed contact session and a second later encounter in the car park at the conclusion of the session.
  5. The 6th April was a day on which plans went awry. The Mother had been led to believe that her meeting with Dr Harper was to provide her with advice on how best to manage the eldest child’s challenging behaviour. On Dr Harper’s account he had decided to change the agenda and look at what he has referred to as ‘the inconsistencies of the Mother’s various narrative accounts’. He had, to my mind, settled on the view, for reasons that I will come to below, that this was the key issue in this case. The undoubtedly discrepant histories of her own childhood and relationships recorded from the Mother are, as Ms Morris QC (on behalf of Dr Harper) describes them, ‘polar opposites’ and ‘at a 180 degrees to each other’. Essentially, there is both a light and benign version of these issues alongside a dark and abusive account. In any event what is clear is that the Mother finds discussion of both these areas to be highly unsettling and distressing. That she would do so was anticipated by Dr Harper but nonetheless so important was this issue to him that he forced it through in circumstances which were, in my judgement, insensitive to the Mother. Of course it follows from this comment that I have accepted his account of the 6th April, at least in part. In fairness I should record that Dr Harper offered the Mother a further appointment which she did not take up.
  7. In addition, building work was being undertaken at the contact centre and it was necessary to shorten the contact. This had not been communicated to the Mother, Dr Harper or I assume the children either. The conditions both in which to observe contact and to undertake important features of the assessment of the Mother were inimical to constructive and fair assessment. I am satisfied that the Mother was understandably upset and that Dr Harper’s account of her as agitated is an honest expression of his perception.
  9. The second meeting in the car park was cursory and ended peremptorily in the rain. The first meeting was, on either party’s view no longer than 15 minutes. It is not necessary for me to resolve the conflict as to the duration of the meeting, there is very little between the Mother’s recollection and Dr Harper’s. What is significant is that in this period Dr Harper contends that he dealt with somewhere between 13 and approximately 20 significant points of assessment.

 

 

[That does not sound terribly plausible]

 

  1. From his notes of assessment it is clear that some of the issues were discussed. The notes are silent on other issues. In his analysis Mr Cohen submits that Dr Harper ‘has produced no satisfactory explanation of the inconsistencies nor is his credit enhanced by what seems to us to be an unwillingness to recognise the effect of his wrongdoing’. This leads Mr Cohen further to submit:
    1. “We suggest that as a result of his admissions the burden should shift to him to show that he has accurately reported the gist of what the mother has said in interviews. In light of the above this is a difficult burden for him to satisfy and he has failed to do so.“
  3. Ms Morris vigorously resists this approach, she contends that the burden of proof rests on the applicant and does not shift. I agree. Certainly Dr Harper’s admissions require him to explain his admitted misconduct but they do not cast upon him some additional burden of proving the accuracy of his notes of what he contends the Mother said to him in interview.
  5. I do not propose further to burden this judgment with a list of the various topics which Dr Harper contends were discussed on the 6th April. In response to Mr Cohen Dr Harper accepted that there were 13 topics. I simply fail to see how this range of challenging and difficult material could have been covered to the extent that Dr Harper purports in such a limited time. It would have involved rapid fire question and answer on each topic. Given the circumstances and the nature of the material, such a process would have also required a degree of brutality or at least gross insensitivity. The subject matters ranged across e.g. domestic abuse, childhood experiences, sexual issues. Having listened to Dr Harper in the witness box he does not strike me for a moment as a man capable of such crassness. His work has been widely respected. I do consider that there was an enthusiastic effort by him to cover some of the material that day. I entirely accept his evidence that his notes are genuine and not fabricated, as Ms Lee contends, but I find on the balance of probabilities that some, though not necessarily all, of the material which is not corroborated by the notes was most likely drawn from other sources and incorporated into the report again as if it were direct speech from the Mother to Dr Harper.

 

 

The Judge’s overall impression and his decision about whether Dr Harper’s report could be relied upon in the care proceedings :-

 

  1. The overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any Court is entitled to expect of any expert witness. It simply cannot be reconciled with those duties which I have pointedly set out above at para 10 and 11. Moreover, it is manifestly unfair to the Mother, who it should be emphasised is battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. Ipso facto this is a case of unique gravity and importance. Common law principles of fairness and justice demand, as do Articles 6 & 8 of the ECHR, a process in which both the children and the parents can properly participate in a real sense which respects their autonomy. Dr Harper’s professional failure here compromised the fairness of the process for both Mother and children. These are fundamental principles emphasised in Re B-S [2013] EWCA Civ 1146 and Re A [2015] EWFC 11.
  3. Mr Rowley, on behalf of the Local Authority, submits that Dr Harper’s central thesis is probably correct. He summarises it succinctly thus:
    1. “Dr Harper’s concern about the mother’s inability to provide a consistent narrative about her relationship history and childhood experiences is again objectively valid. It cannot be sensibly argued that the mother has done anything other than provide wildly divergent accounts of such experiences. Whether this is, indeed, impression management or the consequences of her PTSD it robs the psychological professional of a baseline for diagnosis and thus prognosis and treatment recommendations. This makes it, as Dr Harper concludes, difficult (to say the least) for measurement and management of risk.”
  5. Mr Rowley may very well be right. He goes on to suggest that notwithstanding the significant criticisms made of Dr Harper, his report should be allowed to stand, with the Judge who hears the case entitled to give it such weight, if any, as he thinks fit. I disagree. These are such fundamental failures of methodology that I do not consider any Judge could fairly rely on the conclusions. Furthermore, there is an inevitable risk that were I not to order that a new expert be instructed the Judge might at the conclusion of the hearing find a lacuna in the evidence in consequence of his being unable to rely on Dr Harper’s opinion. That would result in further delay for the children in a case where I have been told the final hearing is now unlikely to be effective in any event. The delay in this case in already unacceptable, the harm caused to the children because of it is the responsibility of the professionals not, I emphasise, the Mother.
  7. I should say that my conclusions here are predicated substantially on my evaluation of Dr Harper’s evidence and the available written material. I have found myself unable to place a great deal of weight on the Mother’s own evidence even where my findings are essentially in her favour. I agree with Ms Morris, who advances the point sensitively and elegantly, when she says that the issue in the Mother’s evidence is ‘reliability’ not ‘credibility’. Her reliability is sadly compromised by her inconsistent accounts which may well be, as Dr Harper has postulated, a facet of her psychological distress. I have in mind Re H-C ( Children) [2016] EWCA Civ 136 and R v Lucas [1981] QB 720.
  9. Finally, there has been much discussion at the Bar as to how I should characterise Dr Harper’s professional failings. Ultimately I have come to the conclusion that the language or nomenclature is irrelevant. What matters is the substance of my findings and their impact on these children.
  11. Ms Lee is right to emphasise the observations of Butler-Sloss (P) in Re U: Re B (serious injury;standard of proof) [2004] 2 FLR 263 at para 23iv:
    1. “The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice”
  13. I do not consider that Dr Harper has developed a scientific prejudice nor that he is jealous to guard his amour-propre but I do consider that his disregard for the conventional principles of professional method and analysis displays a zealotry which he should recognise as a danger to him as a professional and, more importantly, to those who I believe he is otherwise genuinely motivated to help and whom he plainly has much to offer.

 

 

[I’m not sure why the Courts have felt that amour-propre is an expression in common use, but basically ‘reputation’ would do the trick just as well – the self-esteem that comes from the opinion of others]

 

It is a bitterly ironic twist that part of the disputed attributed quotations were Dr Harper stating that the mother had been critical of other (past) experts, calling them liars.

 

This concept of an expert taking an impression but then attributing quotations to the mother that she did not say and that the notes could have given no indication of her having said is a truly shocking one.  As the Judge says, doing this gives the conclusions and recommendations of the report far more weight as it seems to come directly from mother, she condemning herself out of her own mouth, rather than the expert stating that he had the impression  (which of course can be cross-examined as to the forensic basis of this)

Let us be honest – if the mother simply asserted that she had not said this, and had not tape-recorded the sessions, who would have been believed? We have to be able to trust experts – they may genuinely form the wrong opinion, and may be shifted in cross-examination, but there has to be trust that if a report says  Mother said “X Y Z” that she actually said those things.  Future of children is at stake here.  We must demand higher standards from experts than we would of political journalists, surely.

 

(I’m reminded a little of the Overegging the Pudding case  https://suesspiciousminds.com/2014/11/28/over-egging-the-pudding/    though of course this goes still further, from cherry-picking only the negatives to flat out creation of quotations that the mother did not in fact say)

 

It is also an interesting comparison, given that both were Hayden J to the criticism he made of the ISW in the radicalisation case (which were about competence rather than integrity) and the fairer process here where the expert had the opportunity to be represented and respond to the criticisms – in both cases they could have a serious impact on livelihood of the experts, for whom reputation is a vital component in them obtaining future instructions.

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Video-recording (life and death)

Posted on June 29, 2015 by suesspiciousminds

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

 

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

 

St Georges NHS Healthcare Trust and P 2015

Neutral Citation Number: [2015] EWCOP 42

Click to access cop_khan_26.6.15.pdf

 

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

 

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

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

The bit of relevance for us is here:-

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

 

Breaking this down :-

 

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

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

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

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

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

 

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

 

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

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

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

 

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

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

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

 

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

 

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

 

 

 

 

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Tape recording paying off

Posted on June 3, 2015 by suesspiciousminds

Prepare to be very shocked. And then very angry.

At the Transparency Project Conference on Monday, a question was asked about whether parents should be allowed to tape record discussions and conversations. Both Lucy Reed (www.pinktape.co.uk) and myself gave the opinion that where a parent wants to do this, they should be able to.  Social work can involve an imbalance of power with a parent, and where a parent feels that they want their own record of what was said, or to be able to go back to it later to hear it again, they should be able to.  That’s my own opinion, I don’t speak (as always in this blog) for anyone other than myself. But I think that the mood and the ground has shifted on that.

It is easier and easier for a parent to record conversations, and I can absolutely see why they might want to do it. I’ve always said to social workers that they should never say or write anything that they wouldn’t be happy hearing being read out loud in Court. Good social workers have nothing to fear from a parent recording them. It is awkward, it feels uncomfortable, but if you put yourself in the parents shoes for a moment, that must be how they feel all of the time. If it levels the playing field a little, that may be a good thing.

This case, decided by Her Honour Judge Lazarus in Medway County Court is a good example of how that really paid off.  Without the recording, would the mother have been believed? Hard to know, but it certainly provided incontravertible evidence of the most appalling behaviour that she was subjected to by those who were supposed to be helping her.

The case involves a huge catalogue of errors and lessons that need to be learned, and I think I’ll tackle it in two posts rather than one.

This particular issue of recording (both written records and sound recording) is worthy of its own piece, I think

Medway Council v A and Others (Learning Disability: Foster Placement) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B66.html

 

The case involved a mother with a learning disability, and an IQ of 54, who was British but of Indian origin.  The case began very poorly with the Local Authority placing the child in care through a section 20 agreement.  It seems that the lessons about misuse of section 20 are still not being learned. She eventually went to a mother and baby foster placement. There were arguments about whether that placement was the right sort of placement for someone with the mother’s needs – it wasn’t a specialist placement or one experienced in teaching and supporting parents with learning difficulties or disabilities.

 

  1. I find, and the SW accepted, that this was not an appropriate placement. I accept that Ms McG is an experienced foster carer and has successfully cared for children including her current charges for many years. I also accept that in the first couple of weeks she described getting on very well with the parents. However, Ms McG was not a specialist foster carer with specific training and/or expertise in working in partnership with parents with learning disability, as is recommended in the DoH Guidance (at 2.2.15). This placed A and the Mother, and indeed Ms McG, at a disadvantage which it was Medway’s responsibility to avoid. Ms McG explained that she underwent two days training a year as a foster carer, and that this contained elements relevant to learning disability such as having to speak slowly and make sure that parents understood. It was absolutely clear from her oral evidence that any comprehension she had of Mother’s difficulties was extremely limited. She described her as ‘unwell’ or that ‘she wasn’t well’. And she also, at the strategy meeting described the Mother as trying to ‘turn the tables on me’. She repeated this in her oral evidence, saying that Mother was ‘devious’, and ‘building [a case] up so that she would be removed from the house’ and that her actions had been ‘calculated to provoke me’. This implies a degree of cleverness, cunning and forethought that it is clearly beyond the Mother’s abilities, and thoroughly demonstrates Ms McG’s lack of understanding of learning disability. It is clear to me that Ms Mc G’s lack of experience and understanding in this area, and the attitude to Mother’s learning disability that she betrayed in her evidence, must have meant that her interactions with Mother were unlikely to have been sympathetic to Mother’s needs and therefore unlikely to have been successful in supporting Mother.
  2. I also accept that it was not ideal to place Mother in a non-Muslim household. While Ms McG had a Muslim teenager placed with her, this is vastly different to living in a Muslim household and being in an environment geared to and familiar with the practices and expectations of a very different culture. Ms McG was asked about her accommodation of Mother’s needs as a Muslim and gave three practical examples in that she had provided a mat for prayer and had bought halal food and not cooked pork, and had provided separate eating utensils which were not used after the first occasion. These were appropriate steps and I do not criticise the foster carer for doing her best in this respect. Parents cannot always expect to be placed in culturally matched placements, and it should not necessarily have determined whether this placement should be used, but it was an additional difficulty for an already vulnerable mother to cope with in an otherwise ill-suited placement in terms of meeting her and A’s primary need for an environment skilled in supporting parents with a learning disability.
  3. The SW acknowledged that a specialist foster placement or a ‘specialist placement setting’ (as in her email of 10.9.14 to her managers) should have been provided. She asked for a specialist foster placement and was offered this placement. I appreciate that Mother and Baby placements are a scarce resource, but if it was not suitable it was not suitable and an alternative resource should have been pressed for. The success of Mother and Baby placements often relies heavily on the direct relationship forged between a mother and the foster carer. This will become all the more crucial and potentially fragile where the mother suffers from a difficulty such as a learning disability. I find that Medway fundamentally let down A, his Mother and indeed Ms McG, by placing them together in what should have been evident at the time was an unsuitable arrangement.

 

 

Additionally, there were differing accounts of a dispute between the mother and foster carer. Each said that the other had been aggressive and hostile during an incident towards the other.  I am sure that parents who read this will be imagining how that plays out – the foster carer has recordings and credibility, the parent won’t be believed.

What happened in this case was truly extraordinary.

 

Firstly, the foster carers notes:-

 

  1. The foster carer’s records and statements gave me great concern. Her initial recordings are in the form of brief and informal emails. These recordings progress in late August/early September to more formal notes using a set form. The first set of her records filed by Medway in these proceedings was missing all her notes from 8.8.14 to 3.9.14 and the note of 14.9.14 and the document entitled My Personal Statement dated 15.9.14. By day 3 of this hearing most of those missing documents had been provided, at my direction, but notes for 11, 12, 19, 26, 27, 28, 30 and 31 August, and 3 and 8 September were still missing.
  2. When the foster carer attended to give her evidence, I directed her to email and bring on the following day any of those remaining missing notes that had been emailed at the time in August and September. I stipulated that these should only be the original emails bearing the original notes to ISP, so that we could be quite clear that they had been sent at the time and what they had said at the time. I also clearly explained that they should not be newly written up, but that I was directing the provision of only the original recordings sent at the time in August and September. This was not done by Ms McG. Instead she chose to bring newly written notes of most of those dates, unconnected to any emails. She confirmed that they had not been sent at the time, but she had written them up that night before returning to court with them, and had done so from her handwritten notes that she had found for the purpose.
  3. This was concerning in a number of respects. Firstly, they had not been written up at the time and thus were not sent, but neither ISP nor the SW noticed that these dates were missing. This is indicative of poor management and supervision of this placement by ISP and Medway. Secondly, she had claimed the day before that she had shredded all the hand-written notes that she had made, but was now claiming that she had found some notes. She had also claimed that she used a ‘diary’ to record her observations. This then became a ‘notebook’, the pages of which she tore out and shredded, and so she said she was unable to bring any original notes to court. I have taken into account her submissions that this was all a misunderstanding, and that she meant that she had only shredded the notes she had written up and sent. This was not what she told me during her oral evidence, and I find that Ms McG was dishonest and actively misleading about her note-keeping practice. I find that I cannot rely on her assertion that none of her original notes could be inspected, as she clearly then found some in order to cover up her gaps in recording. I also find that she did not regularly write up her notes each evening as she claimed, or there would have been no such gaps.

 

 

[This would have been a good point to deploy the nice bit of case law which was excavated in the Mirror phone-hacking case –  Armory v Delamarie  1722 http://www.bailii.org/ew/cases/EWHC/KB/1722/J94.html  a case in which a chimney sweep boy went to a jeweller to ask him to value a jewel. The jeweller pocketed the jewel and would not return it. Because the jeweller then concealed the jewel, how could one establish how much it was worth and what the chimney sweep was owed?

“. If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent that is possible in the circumstances.”  

 

In short, if a foster carer shreds her notes, then the Court is entitled to take the dimmest view possible of what might have been contained within them.  ]

 

I have not before encountered a finding that a foster carer had been dishonest and misleading about their records. It gets worse

  1. The document My Personal Statement dated 15.9.14 (N45-46) differs from the placement recording note she completed bearing that date (N21-22). It appears to have been sent to Ms Down at ISP either late that night or the next morning as Ms Down attaches it to her email to the SW at 09:01 on 16.9.14. Ms McG claimed in her oral evidence that she thinks she wrote it several days later over the following weekend (20-21.9.14) and that is why it was not in her foster placement recording of that date. I do not believe that it was written so long afterward given Ms Down’s email. I note that My Personal Statement contains an inaccurate reference to the conversation in which Ms McG viciously shouts ‘piss off’ repeatedly at the Mother before slamming the door on her, characterising it instead in both the note recording and My Personal Statement as a rude attack by Mother to which Ms McG claims she mildly responded.
  2. We know however, having listened to the recording and read its transcript, that in fact the Mother was calmly and fairly meekly pointing out that the conversation was noisy for the baby and that Ms McG was ‘shouting so loud’ and that she did not ask who Ms McG was talking to as Ms McG claims. After a few exchanges of this nature Ms McG explodes against the Mother, shouting and using a remarkably vicious, loud and nasty tone:

    “R….. piss off out I’m getting it on the phone piss off out R….. piss off out I’m on the phone when you on the phone chatting loud in your in your Pakistani language I don’t say anything I just grin and bear it yeah I don’t (indistinct) so piss off out and leave me on the phone piss off. Piss off when (indistinct) your Pakistani language I not saying anything I leave you (indistinct) but get with I don’t say anything to you right, so get lost”

    This is then followed by the sound of steps walking away and a door loudly slammed.

    Ms McG accepted that this is her voice and this was how she behaved to Mother on this occasion. She was unrepentant during her oral evidence, but in her submissions indicates she has now reflected on this and accepts that she behaved inappropriately, for which she now apologises and will be seeking support from her fostering agency. She claims that this inappropriate behaviour was as a result of repeated provocation and the breakdown of the placement. I shall return to that assertion later.

  3. I find it is significant that My Personal Document is written after this incident and is then sent to Ms Down, and contains an allegation against the Mother that she had slapped Ms McG that is not in the recording note covering that period; and that it also contains an inaccurately anodyne account of this wholly inappropriate loss of temper and swearing at Mother. I do not understand why its content about Mother slapping her was not included in the recording note of 15.9.14, unless it simply had not happened and so had not been written up into it earlier that evening.

 

So not only had the foster carer shouted at mother and racially abused her, but she lied about it in her notes and made up an allegation that it had been the mother who behaved badly towards her.  It isn’t easy to be sympathetic to a professional who has said the things set out above – and I’m afraid that I can’t manage it.  I do, however, place it in the context that this was a wholly unsuitable match from the outset and the blame for that doesn’t lie at the foster carers door.

 

I am afraid that it continues to get worse.

 

  1. Ms McG tried to claim in cross-examination that her tirade against the Mother on 15.9.14 that I have set out above did not use swearing, and that it was not ‘abuse’. This is obviously an absurd minimisation in the face of wholly inappropriate behaviour. She was thoroughly and vehemently unrepentant, claiming she would do ‘absolutely nothing’ differently. She also tried to claim that this was the only occasion she spoke this way to the Mother, and that the Mother had deliberately provoked her by coming down and asking her to be quiet. In her submissions she further claims that the parents began a campaign to complain about her and repeatedly provoke her in order to bring about the end of the placement so that they could live together and thereby preserve the Father’s immigration status. I do not accept these assertions. A good point well made by the Children’s Guardian’s advocate was how unlikely it was that on the occasion that Mother tries to record the foster carer it happens to be the only occasion the foster carer swears loudly and viciously at her. The Mother’s case is that she was recording her as she was not being believed about being treated abusively and that this was a regular occurrence. I find that it is highly unlikely that this was the only occasion, and that the Mother was indeed trying to record her following a series of such occasions of verbal abuse and mistreatment that she had tried to complain about. I also consider that it is highly unlikely that the parents could have planned such a campaign, hoping to get such a response from the foster carer, or could have predicted what outcome would arise from highlighting the problems they were experiencing.
  2. Ms McG also submits that her allegations against the Mother that the Mother was abusing and slapping her were not properly investigated and so she could not present her explanation fully. Ms McG attended a strategy meeting on 17.9.14 at which she repeated at least some of those claims, and was assisted by Medway’s legal department to prepare her first statement filed in these proceedings. Her agency ISP has supported her in making her statements and by attending court to support her attendance. Until a point in this hearing after Ms McG had completed her evidence, Medway itself was pursuing these findings against the parents. Ms McG was the source of these allegations and has been able to set them out in statements and repeat them to me and be questioned about them, and therefore I do not follow and reject this submission.
  3. There is no contemporaneous written note by the foster carer of her allegation that she saw Mother shaking the baby. It only appears via the recordings of professionals involved at the time and in the foster carer’s first statement dated 11.3.15 which provides little clarifying detail. The foster carer’s oral evidence was inconsistent with accounts recorded by those professionals. She said it took place soon after midnight and she demonstrated two slow shakes by Mother while saying ‘shush shush’ to A. The records suggest she claimed there were three shakes to the SW and paediatrician, and she subsequently accepted she may have said three shakes to them. ISP worker Ms Hannett’s account of what Ms McG told her was noted by the duty SW in the early hours of 17.9.14 and state that Ms McG told her she saw Mother holding A under the arms but with her hands behind his head. The call from a PC French also set out in the duty SW recording at 04:51 states that ‘the actual shaking incident did not involve the baby’s head moving separately from its body’. I conclude from these recordings made very soon after these professionals had spoken with the foster carer that they are recounting a description given by her of a limited kind of shake involving some protection of the head from moving, although it is difficult to imagine someone both holding a baby under the arms and holding their hands behind his head. This contrasts with the ‘vigorous shaking’ described by the foster carer to the paediatrician and repeated in the strategy meeting notes. Finally, Ms McG’s submissions refer to seeing Mother “jolt the baby whilst trying to shush him”, and this is a slightly different version again, and certainly not one shared at the time with the child protection and medical professionals. These descriptions were not greatly assisted by Ms McG’s oral evidence where she demonstrated two limited forward and backward movements. She was unclear when pressed about the position of Mother’s hands. She said she had not seen Mother’s face as Mother’s back was to her. She described Mother as holding A out in front of her, in which case I am not convinced that she could have had the clear view of what was happening in front of Mother’s body as she claims. For these reasons, and as outlined already in conjunction with the timing of her extremely abusive reaction to Mother on the night of 15.9.14 and the timing of Mother’s complaint against her on 16.9.14 of being pushed and hurt, I do not consider that this can be seen as a reliable account by the foster carer of having witnessed Mother shaking A. I was unsurprised when Medway chose not to pursue these allegations against Mother further.
  4. The second conversation, in which her adult son can be heard speaking, I also find to have been wholly inappropriate. The foster carer claims that some disrespectful comment by the Mother precedes the start of the recording and led to her son’s reaction challenging the Mother not to disrespect his mother. I acknowledge that her son does not raise his voice and I accept that on one level they do simply point out that she is not prevented from leaving but if she were to do so they would have to inform social services, but the foster carer does not intervene to control or limit the conversation which repeatedly challenges the Mother and in which she is accused of being attention-seeking. She joins in the conversation with a number of challenges and some sarcastic laughter. However, it is all conducted with a level of inconsideration bordering on scorn for her predicament and her learning disability. Ms McG claimed that there was nothing wrong with this conversation and that the Mother was attention-seeking. She should not have permitted or conducted such a conversation with the Mother, and (until receipt of her submissions) has clearly failed or refused to see why. As I have already discussed, this conversation is likely to have taken place some time on the morning of 16.9.14 before the situation escalated further.
  5. I am asked to consider whether the foster carer was racially abusive to the parents. She denies it, claiming that as she is black she is aware of how inappropriate it would be, and countering with her own accusations that the Mother called her a ‘black bitch’. In her oral evidence she added that the Mother had called her a ‘black bastard’ and said that she had never wanted to live in a black home. Being called a ‘black bastard’ has not featured previously in any account given by the foster carer. I am aware that the parents were indeed very unhappy at not being in a Muslim household, but given the manifest difficulties with the foster carer’s evidence and that Medway do not seek such a finding, I do not consider making such a finding against the parents.
  6. In her oral evidence the foster carer made some notable remarks. She repeated several times, and with almost as much venom and resentment as in the recording I have quoted above, that she had to ‘grin and bear it’ while the Mother was talking on the telephone ‘in her Pakistani language’. Mother speaks Urdu and is British of Indian origin. She never once in her recordings or her evidence correctly used A’s name, but dismissed this due to the name having been changed. She denied using the terms ‘Indian dog’ or ‘Pakistani dog’. She described the parents as ‘reeking’ of body odour that permeated her home, and in her emailed note of 15.8.14 wrote that they ‘absolutely stink’, a phrase she repeated more than once and with emphasis in her oral evidence. While I accept that she needed to draw attention to examples of poor hygiene, I find that the manner in which she did so was vindictive and pointed, and not simply a straightforward observation. Overall I find that there was an ongoing vigorous antipathy to the very physical presence of the parents in her home, that she resented listening to Mother speaking in Urdu, and I do find that she demonstrated in court gross racial insensitivity and a visceral dislike of the parents, nastily expressed. The evidence is however insufficiently clear to make any finding of racial abuse and I do not make such a finding against the foster carer.

 

 

Bear in mind that not only was the mother having to live in a home with this foster carer, but that this foster carer was (a) going to be a large part of the assessment of how mother was doing and whether she could parent AND (b) was supposed to be providing her with support and guidance, and one can see just how catastrophic a failure this placement was.  It must have been utterly unbearable.

 

The Council were rightly criticised for their failure to investigate the complaints made by mother about the placement and to take action

  1. It will be evident from what I have set out so far, that Medway did not adequately investigate these complaints by the parents. It is unclear whether Ms Down of ISP was requested to look into the earliest set of complaints, which included verbal abuse by the foster carer, or whether she was simply informed of these complaints and looked into them automatically as part of her role as supervising SW at ISP. It can immediately be seen that the SW of the agency being paid by Medway to provide this foster carer is in a compromised position with an obvious conflict of interest in doing so. The brief discussion of the complaints at the pre-proceedings meeting and LAC review meeting on 3 and 4.9.14 were not adequate: full details were never sought from the parents, nor their complaints properly noted in the social work records; the only forum for exploring the issues was at formal child protection meetings primarily concerned with other matters; no complaints process was offered or explained to the parents; and even the ‘agreement’ referred to at the end of the LAC review minutes was never pursued. This forms part of my concern that the parents’ complaints were never properly attended to or taken seriously by the professionals, but were dismissed as insignificant or unworthy of proper attention. This was a serious corporate failing by all concerned.
  2. It beggars belief that after the events of 16.9.14, when the foster carer was claiming that she had been slapped by Mother and Mother was claiming she had been pushed and hurt by the foster carer, that the SW encouraged Mother to return to the placement and her management sanctioned its continuation. Notwithstanding where the truth of those allegations lay, this was clearly not an appropriate environment for A, nor his vulnerable Mother. As I have already mentioned in considering the Children’s Guardian’s evidence, I find that this environment would undoubtedly have had an extremely negative effect on Mother, depriving her of the support of the Father, exposing her to unskilled and unsympathetic foster care, and in a hostile environment about which she complained but where her complaints were dismissed. It is unsurprising that she became anxious, upset and distressed and that the placement broke down.

 

 

This is the most dramatic of the failings of the case, but there were many many others, which I’ll deal with in part 2.  This case is a perfect illustration of the benefits of the President’s drive for transparency.  Her Honour Judge Lazarus is not (yet) in a position to make binding case law [though she does earn herself a Tag in ther blog], and so a case of this kind three years ago would not have been reported, I would never have seen it and the dreadful catalogue of poor practice and decisions would have been brushed under the carpet.  Never has the President’s motto of “sunlight is the best disenfectant” been truer.  We need to drag cases like this into the light, and hold them up to public exposure.

What happened here was dreadful and the only hope of stopping it happening again is to make sure that everyone sees just how bad it was.

If you want to know the outcome – the Local Authority were seeking a Placement Order – to place the child with adopters, and the Judge instead granted the application that mother and father should be placed with their child in a specialist assessment centre who could report fairly and accurately on whether they would be able to care for their child with the right support.

 

 

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Control of mobile phone

Posted on January 31, 2023 by suesspiciousminds

The High Court in this case was being asked to determine whether a situation where a child is in care and the Local Authority want to restrict their access to their mobile phone falls within a DEPRIVATION OF LIBERTY or an exercise of parental responsibilty.

I.e is it an action that requires the Court to sanction that restriction, or can a Local Authority do it under section 33 of the Children Act 1989?

Manchester City Council v P (Refusal of restrictions on mobile phone) 2023

https://www.bailii.org/ew/cases/EWHC/Fam/2023/133.html

On the facts of this case, P is 16 and vulnerable. She functions at the age of a 7 year old. She had a lot of periods of going missing and during those periods became the victim of Child Sexual Exploitation and sadly had a history of self-harming.

The Local Authority were asking the Court for permission for an arrangement that allowed them to withhold P’s mobile phone from her from 10pm at night to 8am, and for staff to be able to confiscate her mobile phone if her behaviour was escalating.

The legal debate in the case was as to whether those sort of restrictions on the use of a mobile phone were a deprivation of liberty, which have to be sanctioned by a Court, or whether the Local Authority were exercising Parental Responsibility.

Both the Local Authority and the Guardian in this case were saying that the confiscation of the phone was a restriction of liberty and thus needed Court sanction.

Here is what MacDonald J said about the submissions:-

On behalf of the local authority, Ms Whelan submits that such steps are an integral element of the continuous supervision and control and lack of freedom to leave that marks P out as being deprived of her liberty, having regard to the test articulated in Cheshire West and Chester Council v P [2014] AC 896 in the context of the prior decisions of the ECtHR, including Storck v Germany 43 EHRR 96. Ms Whelan submits that the restrictions on P’s mobile phone (and the associated restrictions concerning her tablet, laptop and access to social media) amount to a deprivation of liberty for the purposes of Art 5(1) when viewed in their proper context, namely as an essential element of the restrictive regime that deprives P of her liberty, without which the regime restricting P’s liberty could not be effective (Ms Whelan conceded that the authority for the proposition that, cumulatively and in combination, the elements comprising the implementation of a measure can amount to a deprivation of liberty, namely Guzzardi v Italy (1980) 3 EHRR 333, was decided on very different facts).


In the circumstances, Ms Whelan submits that the act of removing or restricting use of her mobile phone, tablet and laptop and restricting her access to social media, constitutes a deprivation of P’s liberty and thus can be authorised by the court under its inherent jurisdiction where such a course is in P’s best interests. In that latter regard, Ms Whelan points to the evidence that, prior to the restrictions concerning her devices being in place, P was speaking to peers who encouraged P to show behaviours such as, shouting at staff, being verbally aggressive and demanding, was sharing her address with her friends, befriending individuals online who she may not know and, on 24 August 2022, speaking to a female who told P tactics for restricting holds designed to prevent her harming herself so she could escape from such holds.


On behalf of P, Miss Swinscoe submits that the argument advanced by the local authority is brought into even sharper relief in circumstances where for P, in common with most children of her generation, a mobile phone is an integral aspect of what she considers to be her liberty. Echoing Ms Whelan’s submission that, for P, her mobile phone is very much an avenue to the outside world, particularly whilst locked behind closed doors, Miss Swinscoe points to the fact that the restrictions about which P is particularly concerned in this case are those placed on her mobile phone and social media access. Within this context, and in circumstances where the ECHR is said to be a ‘living instrument’, Miss Swinscoe submits that the meaning of liberty for a young person today is very different to the meaning of liberty when Sir David Maxwell-Fyfe, First Earl of Kilmur, was overseeing the formulation of the ECHR at the end of the Second World War, as Chair of the Council of Europe’s Legal and Administrative Division. In this context, Miss Swinscoe submits that a restriction on the use of P’s mobile phone, tablet and laptop, and the concomitant restriction of her access to social media, fits within Lord Kerr’s formulation of the meaning of liberty in Cheshire West at [76] (emphasis added):
“While there is a subjective element in the exercise of ascertaining whether one’s liberty has been restricted, this is to be determined primarily on an objective basis. Restriction or deprivation of liberty is not solely dependent on the reaction or acquiescence of the person whose liberty has been curtailed. Her or his contentment with the conditions in which she finds herself does not determine whether she is restricted in her liberty. Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity.”

In the alternative, both the local authority and the Children’s Guardian contend that if the removal of, or the restriction of the use of, P’s mobile phone, tablet and laptop, and restriction of her access to social media, do not constitute a deprivation of liberty for the purposes of Art 5(1), in circumstance where s.8 is not available in respect of a child who is the subject of a care order, the court can in any event, where necessary, authorise such a course under its inherent jurisdiction in the best interests of P.


Ms Whelan did not seek to dispute the proposition that, in principle, it would be open to the local authority to regulate P’s use of her mobile phone by exercising its parental responsibility under the care order pursuant to s.33 of the Children Act 1989, albeit that Ms Whelan expressed some concern, where P is now 16 years old, with respect to resorting to s.33 of the 1989 Act without guidance from the court that this constitutes a legitimate course (in circumstances where the courts have in other cases demarcated the ambit of s.33 of the Act, for example in Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664).


Ms Whelan submits, however, that where P refuses to co-operate with restrictions on her mobile phone, usually in times of emotional dysregulation where there is a risk that P will become violent, and where the use of her mobile phone is threatening her safety, for example by exposing her to contact with unknown individuals who may pose a risk of child sexual exploitation, it must remain open to the court to make an order under the inherent jurisdiction to remove or restrict the use of P’s devices in her best interests. Ms Whelan drew analogies with other cases in which the court utilises its inherent jurisdiction to impose steps upon a child designed to prevent the child suffering harm, for example were treatment is imposed on children suffering from anorexia nervosa (see Re C (Detention for Medical Treatment) [1997] 2 FLR 180). Ms Whelan submits that an order giving effect to the restrictions sought with respect to P’s mobile phone, tablet, laptop and access to social media would, in circumstances where their use presented a risk of significant harm to P, constitute a necessary and proportionate interference with P’s Art 8 rights having regard to the terms of Art 8(2).

On behalf of P, Miss Swinscoe submits that s.33 of the Children Act 1989 would operate to allow the local authority to regulate P’s use of her mobile phone in situations where P is co-operating. Miss Swinscoe points to the fact that whilst P wants to keep her mobile phone, she has been capable of agreeing that it is sensible to hand it to staff. Miss Swinscoe submits, however, that on the evidence before the court, the difficulty is when P becomes dysregulated and the local authority needs to restrict the use of her telephone against her refusal to co-operate in order to protect her safety, where there is clear evidence, Miss Swinscoe submits, that the use of the phone, and her other devices, by P can expose her to a risk of significant harm.

The Court was taken to a decision of the ECHR

In Guzzardi v Italy, a case concerning the conditions of remand on the Italian island of Asinara of a suspected Mafioso, one of the elements of implementation that appears, in combination with others, to have grounded a finding that a deprivation of liberty for the purposes of Art 5(1) had occurred was the requirement on the applicant to “inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call” (the other conditions being, in summary, to reside in a prescribed locality on the island; not to leave that area without notifying the authorities; to report to authorities twice a day when requested to do so; to be law abiding and not give cause for suspicion; not to associate with convicted persons; to obey a curfew; not to carry arms and not to frequent bars or nightclubs or attend public meetings). It is further of note that the restriction regarding telephone use was to prevent contact with other alleged criminals during a period of remand and that the applicant was liable to punishment by arrest if he failed to comply with that obligation. As conceded by the local authority during oral submissions, Guzzardi v Italy thus involved very different facts to those that are before this court.

The Court looked at the relevant statute and case law on deprivation of liberty, section 33 and inherent jurisdiction.

The decision paragraphs are set out at paragraphs 44-69, and are worth reading, but are probably too in-depth for the purposes of this blog.

What we are interested in chiefly is the decision, and it is this:-

In the circumstances, and for the reasons I have given, I refuse to sanction the removal of, or the restriction of the use of P’s mobile phone, tablet and laptop and her access to social media by way of an order authorising the deprivation of her liberty for the purposes of Art 5(1) of the ECHR. I shall instead, make a declaration that it is lawful for the local authority to impose such restrictions in this regard as are recorded in the order in the exercise of the power conferred on it by s.33(3)(b) of the Children Act 1989. Whilst I am satisfied that, were the evidence to justify it, it would be open to the court to grant an order under its inherent jurisdiction authorising the use of restraint or other force in order remove P’s mobile phone, tablet and laptop from her if she refused to surrender them to confiscation, the evidence currently before the court does not justify such an order being made. Finally, I am satisfied that the other restrictions sought by the local authority do constitute a deprivation of liberty for the purposes of Art 5(1) and that it is in P’s best interests to authorise that deprivation of liberty. I shall make an order in the terms of the order appended to this judgment.
Dicey considered the right to liberty to be one of the general principles of the Constitution (see Dicey, A V An Introduction to the Study of the Law of the Constitution (1885) 9th edn, MacMillan 1945, p 19). In R v Secretary of State for the Home Department ex p Cheblak [1991] 1 WLR 890, Lord Donaldson observed that “We have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms.” Within this context, it essential that the State adhere to the rule of law when acting to deprive a child of his or her liberty. This will extend to ensuring that an order lawfully depriving a child of his or her liberty does not act also to deprive that child of other cardinal rights without there being in place proper justification for such interference by reference to the specific content of those other rights.
Each case will fall to be determined on its own facts. However, I venture to suggest that it will not ordinarily be appropriate to authorise restrictions on phones and other electronic devices within a DOLS order authorising the deprivation of the child’s liberty. Further, it is to be anticipated that, in very many cases, any restrictions on the use of phones and other devices that are required to safeguard and promote the child’s welfare will fall properly to be dealt with by the local authority under the power conferred on it by s.33(3)(b) of the Children Act 1989. Only in a small number of cases should it be necessary to have recourse to an order under the inherent jurisdiction, separate from the order authorising the deprivation of liberty, authorising more draconian steps to restrict the child’s use of a mobile phone or other device and only then where there is cogent evidence that the child is likely to suffer significant harm if an order under the inherent jurisdiction in that regard were not to be made.
That is my judgment.

So it is something that the Local Authority can do under section 33 – it will be important as with any decision that the Local Authority make under s33 that they are properly consulting the child and parents, and properly recording their decision and the reasons for it.

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Unconditional consent

Posted on January 18, 2023 by suesspiciousminds

This is an Appeal about a decision to make a Parental Order in a surrogacy case.

Re C (Surrogacy : Consent) 2023

https://www.bailii.org/ew/cases/EWCA/Civ/2023/16.html

In the original hearing, the woman who gave birth to the child had become more attached to the child than she had envisaged when she originally agreed to the surrogacy, and she was concerned that she would be shut out of the child’s life if a Parental Order was made. She was not legally represented at the hearing and it took place remotely.

The mother at the hearing had said that she would agree to the making of a Parental Order IF and only IF there was a Child Arrangements Order to specify that she would be able to spend time with the child.

Parental Orders are governed by the Human Fertilisation and Embryology Act 2008 and one of the requirements in making them is :-

Section 54(6), with which the present case is concerned, provides that:
“(6) The court must be satisfied that both —
(a) the woman who carried the child, and
(b) any other person who is a parent of the child but is not one of the applicants […],
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.”

(There’s a s54(7) which allows the Court to waive parental consent only if the biological parent cannot be found, but that isn’t relevant for this case. )

Unlike say a Placement Order which the Court can make even if the parent objects if the appropriate legal test is met, there is no discretion for the Court on a Parental Order – if the criteria in s54(6) is not met, the Court cannot make the Parental Order.

The Court did make a Parental Order and a Child Arrangements Order that the biological mother should be able to spend time with the child. The mother later appealed. There is also ongoing private law litigation about contact.

The issue as to whether the consent has been given freely, with full understanding of what is involved and unconditionally is a matter for the Court, and it is understandable that the Court of Appeal wanted to look very carefully at the transcript of the hearing.

The hearing took place between 10.08 am and 10.30 am. We have been provided with a transcript and have also listened to the recording. It is necessary to set out some parts of the transcript to fairly understand the course of the hearing, with editing to maintain anonymity.
The effective part of the hearing started with an introduction from the Respondents’ counsel. She explained that the parties had agreed the terms of a child arrangements order, and although the court could not make such an order on its own initiative in the parental order proceedings, it could grant permission for an application to be made under the Children Act, and then make an order. However, she noted the requirements of section 54(6) and informed the judge that Ms A would be saying that her consent to a parental order was conditional on the making of a child arrangements order. Counsel nonetheless invited the court to consider making a parental order on the basis of Ms A giving her consent, with a child arrangements order being made “as a separate matter”.
After some consideration of the Children Act provisions and the proposed contact arrangements, the judge then addressed the Appellant:
“THE JUDGE: Ms A, Ms Maxwell has outlined the position to me and, as I think you probably know, there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightly reminded me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a child arrangements’ order, then that would obviously not be freely and unconditionally given consent.
The other matters in the statute are all dealt with amongst the papers in particular and also in Mrs Chapman’s report, so I do not think any of those cause me a difficulty in making the order. The only one that does is the consent because, although I understand there is an agreement that there will be contact, and I will be asked to make a child arrangements order, I cannot do that as a condition of making the parental order. I can only make the parental order if you freely consent and without conditions, so, first of all, does that make sense to you, what I have just said? I know sometimes for a non-lawyer it gets a bit convoluted. You are nodding so that is helpful, thank you.
Then, I suppose, first of all, is there anything you want to ask me and then is there anything you want to say in response, as it were?
The Appellant then replied in these terms:
MS A: Thank you, your Honour, there is nothing I want to ask you but in terms of the condition, the unconditional consent, I think I would be lying if I said that I unconditionally consent to it because it is a– I would like to see C and so I am making the parental– the consent on that I see C. If I– I don’t unconditionally give it because I am fearful that I won’t have time to spend time with C and so that’s why I can’t quite unconditionally consent.
However, I do believe it is in all of our interests to move on with our lives and to kind of start rebuilding our relationship again and I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn’t lie and say that I do give my consent unconditionally. If that helps, your Honour.”
The judge responded at some length, starting in this way:
“THE JUDGE: Well, it is very clear and I fully understand what you are saying. It does not help me– and this is not a criticism of you, it does not help me get over the legal obstacle. Let me look at it in a different way and, please, let me be very clear, I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody consents… I cannot make a child arrangements order in this particular proceedings probably for very good reason, because if it was part of the issues, then it probably would not be freely consented to…
She then explained that she would be content to hear an oral application for a child arrangements order, saying:
“So in terms of trying to reassure you, I am told that application would not be opposed. You could make it orally once I have concluded the making of a parental order but I cannot make the parental order unless you do consent to it… — and if you do not consent, and again I am not saying this in any way to put pressure on you– sometimes it may sound a bit like that but of course if you do not consent, you will all be in this limbo moving forward until somebody attempts to make a different application which obviously the applicants may do but I cannot adjudicate on that in advance.
So we are in a slightly difficult position… I think you consent to the concept that the applicants are, as it were, C’s parents and that is recognised in law. I think the issue is one of concern about the way forward for contact, so– but unless I have you unconditionally consenting I think we cannot move on from this limbo, so I am not– try to think about what I have just said for a minute and while you are thinking about that, I am going to go to Mrs Chapman to see if she would like to add or say anything because I think apart from this difficulty she feels that the criteria are met but I just want to check with her.
The judge then turned to Mrs Chapman, who confirmed that the Appellant was happy with the parenting C was receiving but that she did not want to consent because she wanted a legal right to spend time with C and was scared of having no contact.
The judge then returned to the Appellant for these important exchanges:
THE JUDGE: … so, Ms A, we are in the position that as a matter of law and also considering C’s welfare, I think all of us agree that a parental order is the right thing for him. Everybody agrees that it is right for him to see you and to know you but it is just coming back to the original question, so having heard what has been said, what is your thinking now?
MS A: Then the only way forward is for me to give my unconditional consent, your Honour.
THE JUDGE: I am sorry?
MS A: I will provide my unconditional consent.
THE JUDGE: And you are quite sure about that?
MS A: I don’t see that there is any other way for us to move forward without it.
THE JUDGE: Well, I think that was the right decision and I think that is extremely helpful for everybody, for all of you and perhaps most importantly of course for C. I am very grateful to you and I expect the applicants are as well. So what I will do is I will make the parental order… Then in terms of a child arrangements’ order, now that the parental order has been made, everybody agrees that it is… right for Ms A to have contact and under the Children Act you can make an application or I can treat an oral application as having been made and given the amount of information I have about all of you, I do not need you to go through the normal process of getting enquiries from Cafcass because obviously I already have that information from Mrs Chapman, so I would be content to make a child arrangements’ order and Ms Maxwell has said that the agreed way forward is the every six weeks– I appreciate there will be a little bit more detail to this but every six weeks for a day, holidays and Christmas and– so that is her position. So from your side, Ms A, is that agreed by you as the way forward?
MS A: It is, yes.
THE JUDGE: In that case, I had better go back to Mrs Chapman in case from a welfare point of view she has any concerns. Mrs Chapman, from a welfare point of view for C would you be happy to endorse that order?
MRS CHAPMAN: Yes, I am happy to endorse that order.
THE JUDGE: So in that case that order will then follow, so we have a parental order and there will then be a child arrangements’ order. I think then I hope very much that all of you can relax a little after what has been quite a difficult time and move forward. C is going to be one soon and I think it would be very nice to move forward knowing all the decisions have been made, so if I go back to Ms Maxwell; Ms Maxwell, is there anything else you want to add?
MS MAXWELL: Your Honour, no, thank you very much.
THE JUDGE: Okay. Ms A, is there anything else you want to add?
MS A: No, thank you.
THE JUDGE: Well, thank you very much, and, Mrs Chapman, is there anything else you want to add?
MRS CHAPMAN: No, I have got nothing more to add, thank you.
THE JUDGE: Well, thank you very much for your help and my thanks to everybody for their help because I know it can be quite stressful in a situation like this, so I am very grateful to everybody for having achieved the right way forward for C…
Okay, thank you all very much for attending. I know it has been difficult for everybody and I can see for Ms A in particular, so I will thank you all for attending and I will let you all go now. Thank you very much everybody.
MS A: Thank you, bye.
THE JUDGE: Bye.”

My feeling when reading this exchange is that the mother had not freely and unconditionally consented at the outset, and that by the end of hearing she was saying that she did unconditionally consent although it is hard to see that she genuinely meant it.

The biological mother argued at appeal that she had not unconditionally consented, and that the division that the Court made of making the Parental Order with ‘unconditional consent’ on the basis that moments later an uncontested Child Arrangements Order would be made did not vitiate that lack of consent.

The carers were arguing that the Court was entitled to separate out the two orders and have them run sequentially in “sealed deliberations” and that therefore the biological mother’s consent was unconditional. They further argued that if the Court of Appeal was not with them on that, that s54(6) should be read as though the words “Such consent not to be unreasonably withheld” were added.

(This is apparently something which is currently being actively considered by the Law Commission who are looking at surrogacy)

The Court of Appeal set out their decision:-

There are three questions to be answered in this case. The first is whether, on a straight reading of s.54(6), the Appellant gave free and unconditional consent to the making of the parental order. The second is whether, if that is not the case, the Convention requires the court to assume and exercise a power to dispense with consent, and thereby to preserve the parental order. The last question is what order this court should make in respect of the underlying application for a parental order if the answer to each of the above questions is ‘No’.
The requirement that a person has “freely, and with full understanding of what is involved, agreed unconditionally to the making of the order” means exactly what it says. Although it may be forensically convenient to separate out the individual elements, what is required is a consent that is free, informed and unconditional. If that is achieved, it is immaterial whether the consent is given gladly or reluctantly.
Where there is any doubt about consent, it will be a matter for the court to judge, giving consideration to all the circumstances. One relevant factor is likely to be the means by which consent has been expressed. Because of the profound consequences of the underlying choice, it is normal for there to be a degree of formality. This is reflected in the preference in FPR 13(11) for consent to be in writing, using Form 101A and with the parental order reporter as witness. Even then, consent can be withdrawn at any stage before the order is made. This degree of formality is not mandatory but its absence should put the court on its guard to ensure that the proffered consent is valid. In the present case, the disputed consent was given orally in the face of the court and via CVP. In that unusual situation, a sharp eye had to be kept on the possibility that the court process might of itself be exerting pressure to the extent that any stated consent was devalued.

Further, although the hearing was conducted with complete courtesy, there were a number of other objective features to put the judge on her guard. In the first place this was a remote hearing in a sensitive case, with the Appellant being alone and unrepresented. The inevitable stress on any litigant was then inadvertently exacerbated by the way in which the Appellant found herself out on a limb, with her position on consent being represented as the only obstacle to an overall solution: “if you do not consent, you will all be in this limbo”. Also, an unrepresented litigant who is addressed by a judge at some length may be influenced by feelings of deference. Again, I recall that the judge was motivated by her assessment of what was in the best interests of C, the Respondents and indeed the Applicant herself. That welfare assessment was very probably sound but it had nothing to do with the question of consent. Had the resulting arrangements been satisfactory to all concerned, the problems with consent would no doubt have faded from memory, but the fact that the outcome has been so disappointing so far tends to show that the order was not built on solid foundations.
I would accept as a matter of principle that it is possible to conceive of a parental order and a child arrangements order coexisting. None of the reported cases has had that outcome, but they may not be representative of all problematic surrogacies. Some unproblematic surrogacies do not lead to parental orders at all, and contact with a surrogate will sometimes take place without any thought of a child arrangements order, even where a parental order has been made. However, in cases where there is less trust, there must still be a narrow path available to parties who genuinely agree that dual orders are the solution. While the statute does not envisage such orders, it does not expressly exclude them and to that extent I would accept Mr Vine’s submission that it might be possible for this outcome to be achieved. What the statute does, however, unequivocally exclude, in order to protect the surrogate, is twin orders in circumstances where one order is the price for the other. That is what occurred in this case.
For these reasons, the answer to the first question is that the Appellant’s consent was not merely reluctant but neither free nor unconditional. It was given in reliance on the promise of a child arrangements order and the Appellant’s statement that she gave it unconditionally did not reflect the reality. Furthermore, the eventual expression of consent was given under unwitting but palpable pressure. The parental order should not have been made.
Coming to the second question, I unhesitatingly reject the submission that section 54(6) can be read in such a way as to confer a dispensing power upon the court. The right of a surrogate not to provide consent is a pillar of the legislation and the assumption by the court of such a power would go far beyond permissible judicial interpretation of the kind found in A v P and in Re X. It is beyond doubt that the proposed setting aside of the parental order would clearly fall within the scope of the private and family life aspects of Article 8: Mennesson at paras. 87 and 96. However, the rights of the Respondents and of C are not violated by the setting aside of the order for want of consent on the part of the Appellant. The Strasbourg court has recognised a considerable margin of appreciation in this area and the potential availability of adoption to secure C’s legal relationships is also relevant, even if that route would be sub-optimal: Valdis Fjölnisdóttir v Iceland, Application no.71552/17, 18 August 2021. I would take this view even if this court were to make its own Article 8 assessment at the present date. I therefore conclude that the Convention does not require the parental order, made without valid consent, to be left in place.
The final question is what order should be made in respect of the underlying parental order application. The choice is between dismissing it or remitting it. I would look favourably on remitting if a parental order could possibly result from the parties being given another opportunity to take stock. I have noted that the judge might have adjourned the hearing for that purpose, and Ms Bazley has accepted that this option was open to her. But that was in the middle of 2021 and we are now in early 2023. In the meantime, relationships between the parties have deteriorated further, as the ongoing Children Act proceedings show. Even with the benefit of their current representation, the parties have been unable to devise a solution of their own. The Appellant’s position is that she will not consent to a parental order.
In these circumstances, I am driven to conclude that to remit the parental order application would perpetuate the process that led to the making of the original order. I would therefore allow the appeal and dismiss the application for a parental order. That C should be brought up by the Respondents and have contact with the Appellant was intended by all. It remains agreed by all that C will continue to be brought up by the Respondents, but the appropriate legal mechanism for that, and the question of contact with the Appellant are matters that are beyond the scope of this appeal.

I’m very glad that the Court of Appeal did not decide to read words into the statute which are not there – we’ve seen in recent years dilution of the statutory principle about only reasonable expenses being paid in surrogacy and about the time limits for making the application. If the Law Commission makes recommendations for changes that are approved by Parliament then so be it, but I personally don’t care for the Court amending statute to solve hard cases.

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More heat than light – appeal on recusal

Posted on July 11, 2022 by suesspiciousminds

This is an appeal from a decision of Keehan J not to recuse himself for future hearings following what was on any description a very challenging interaction between Judge and counsel.

When I first thought about writing this post my intention was to try to be studiously neutral – I obviously wasn’t in Court, I didn’t hear the evidence, I haven’t read the full transcripts or heard them, and these matters were clearly highly contentious. Also, because both Judge and counsel are named, I did not want to be disrespectful to either of them on what was clearly a situation that was heated and became even more heated as things went on.

I have reconsidered slightly, and I think that I will just give my quick view that I think things got badly out of hand and that there were faults on both sides but with the benefit of being removed from the case in time, stakes and no connection to it I think the Judge reacted badly to some provocative remarks both orally and in writing BUT that as one of the episodes of counsel/Judge conflict did lead to the evidence given by a witness being potentially affected, I think the Court of Appeal COULD have allowed the appeal, but weren’t wrong to refuse it.

Deep breath.

Re AZ (A Child: Recusal) 2022

https://www.bailii.org/ew/cases/EWCA/Civ/2022/911.html

The background of this case is complex and difficult. Effectively, the mother and father entered into a surrogacy arrangement and a child, A resulted from that. The clinic had kept some of father’s gametes, and it was later found that by way of deception on the mother’s part, those gametes had been released to her in order to enter a second surrogacy arrangement unknown to the father, which produced twins.

There had been quite a lot of litigation, and serious findings had been made against the mother in relation to the conception of the twins and her honesty whilst giving evidence in those proceedings. The mother made allegations of domestic abuse against the father which the Judge found not to be true and that she had been dishonest in her evidence about these matters.

The parents had separated and a decision was made by the Court that A was to live with his father. The mother then made an application for Child Arrangement Orders for the twins, not mentioning in her application the adverse findings made by Keehan J in A’s proceedings.

The mother made complaints to the police about the domestic abuse (subsequent to the findings that they were not proven, and not mentioning those findings) and similarly about the father who was a doctor to the General Medical Council.

A five day hearing took place in August 2021. The mother sought at the outset an adjournment of the hearing on medical grounds. It was finally agreed that she would give evidence remotely.

Counsel instructed for the mother, Mr Uddin, had prepared a position statement in support of her application to withdraw.

In the course of summarising the circumstances in which his client’s medical condition had come to the court’s attention, counsel included the following observations:
“The application for an adjournment is made by the respondent mother with some trepidation. The mother feels that this court will use against her any application for an adjournment.”
“It is apparent that the court due to issues at previous hearings has a distrust of the mother and to put it bluntly prima facie disregard for the mother’s position.”
“It is one thing for the court to deny the mother to vary an interim contact order but another to disregard her application for an adjournment.”
” …she had ignored her own health conditions to avoid a delay in these proceedings and her weariness of this court due to her previous experience before this court.”
“The subsequent treatment of the mother by the court after her cancer disclosure has solidified mother’s weariness of this court.”
“It is true the mother has raised questions about the conduct of the court at previous hearings, but it would be unfair and unjust for the court to use this against the mother which the mother feels the court is doing.”

In the early stages of the hearing, the Judge made some remarks in relation to this document.

The transcript of the hearing shows that almost immediately after the start of the hearing, the following exchange took place:
“Judge: Yes, Mr Uddin?
Counsel: May it please you Lordship, my Lord —
Judge: It does not please me, actually, because I consider your position statement to have been impertinent and impudent and I should tell you now that if you ever dare file a position statement like that before me again, I will consider reporting you to the Bar Standards Board. Do you understand?
Counsel: Thank you, my Lord. My Lord, the position statement was done on instructions from my client
Judge: Yes, I am sure it was.”

The second most serious matter occurred during the Guardian’s evidence.

This instance is described as “bullying and threatening the Appellant’s counsel with the Bar Standards Board on the 27th August 2021”. As all parties recognised, this was the most troubling incident during this difficult hearing. In argument before us, Ms Ancliffe placed particular weight on it in support of the appeal.
The background to this incident is a passage in the evidence given by the children’s guardian at the end of the previous day’s hearing. During questions from Mr Wilson on behalf of the father in which he was challenging the need for a family assistance order, the guardian had described the relationship between the mother and A as “so special and so close” and continued:
“I think we’re looking hopefully at a new chapter in this little boy’s life, one where he can resume a positive relationship with his mother and learn about his siblings. All of these things are really important for A, for his sense of identity. He must have suffered trauma and loss losing his mother out of his life and all of his extended family, to whom he was very close and, again, I’ve observed that personally on more than one occasion. So, to have that back in his life would just be so good for him and I think the CAFCASS officer could assist with that.”
On the following morning, shortly after Mr Uddin started his examination of the guardian, the following exchange took place:
“Counsel: Now, yesterday in evidence you said, and please correct me if you find me to (inaudible) in any way, that A did suffer trauma when he was moved away from [the mother] to the care of [the father] leaving behind—-
Judge: If [the guardian] said that, I did not hear it.
Counsel: Well, I did– I prefaced it, my Lord, with the “If I have misquoted you, please correct me.”
Judge: Yes. All I am saying is I do not recall her saying that.
Counsel: Well, my Lord, she (inaudible). My Lord, I am asking a question but I did preface it and said, “If I misquote you.” What would you like my Lord to do, not– for me not to even ask the question because your Lordship has not heard it?
Judge: Well, she did not say it.
Counsel: Well, let us hear what she says then, my Lord.
Judge: Do not talk to me like that.
Counsel: My Lord –
Judge: You carry on and do what you want.
Counsel: Well, my Lord, how could I do anything I want? I am in your Lordship’s court.
Judge: Yes. It would be helpful if you could remind yourself of that. Now ask the question.
Counsel: Well, no, my Lord. I—-
Judge: Ask the question.
Counsel: Well, I want– I think we need a five-minute break because I do not like being spoken to like this. I am an officer of this court. I deserve respect. Your Lordship comes into this court and we all stand up because we show respect and I am an officer of the court. I will not—-
Judge: No you are not —
Counsel: (inaudible)
Judge: –an officer of the court. You are not a solicitor. You are a member of the Bar.
Counsel: Well, my Lord, I—
Judge: I am not wasting any more time. Get on with your cross-examination.
Counsel: My Lord, I will make one further point. This is my workplace. This is my workplace, just like your clerks and—-
Judge: Will you please just get on with asking your question?
Counsel: I will but can I have it affirmed from you that you will not talk to me in that way?
Judge: If you speak to me respectfully, I will speak to you respectfully.
Counsel: My Lord, I apologise if I have come across in any way disrespectful but this is my place of employment and I will not be spoken to in that way by anybody. When I have employees, I never speak to them in that way.
Judge: You are getting yourself close to being reported to the Bar Standards Board. Now please just get on with your cross-examination.
Counsel: May I ask that same question again or not?
Judge: Certainly.
Counsel: Yesterday – please correct me if I misquote you in any way – my understanding was that A suffered trauma when he was moved away from [the mother], away from the extended family and her. Am I quoting you right or am I misquoting you?
Witness: I think you’re probably misquoting me. I don’t remember using the word “trauma”. I’m not saying A wouldn’t have suffered trauma but I don’t recall saying that in evidence yesterday.
Counsel: Okay. Well, I did say– I said in fact– I had a note of “trauma” and I will– I stand to be corrected. Did you use the word “traumatic” then or– can you recollect?
Witness: I can’t recollect, I’m sorry.
Counsel: All right then. Well, then, in that case, in relation to the upheaval, how do you think that has affected A?
Witness: I think A because of his age would have been confused about the changes that took place moving from one residence to another residence. He already had formed a good relationship with his father so it wasn’t as though he was going some– with someone he didn’t know. The environment would have been slightly different but, yes, I think it– because he’s preverbal and explanations couldn’t really be given to him as to what was happening in his little life, you know, I think he would have been confused.”
The guardian’s evidence continued. A little later in the morning, following a short adjournment for unconnected reasons, Mr Uddin addressed the judge in these terms:
“My Lord, if I may be permitted to make this personal statement which is recorded here, in these proceedings today was the second time your Lordship has threatened me with the Bar Standards Board and I am concerned whether my client is losing confidence in me and whether I can continue. However, having spoken to my client, she has not lost confidence in me. I will continue with this case but, my Lord, I totally appreciate these kind of cases are not easy for anyone concerned, even your Lordship. These are dealing with the souls of people and, my Lord, I am also a human being with blood and salt running through my veins and if there is another threat, my Lord, I am going to have to consider– I totally accept, if I am in any way inappropriate, then your Lordship should admonish me so, on that basis of that understanding, my Lord, I am going to continue. I feel my client has not lost confidence in me and I can carry on. I just wanted to put this marker down, my Lord. May I continue?”
The judge did not respond to this statement. Counsel resumed his examination of the guardian. There were no further episodes of conflict between him and the judge.

It was submitted on behalf of the mother that this incident would lead a fair-minded and informed observer to consider that there was a real possibility of bias for several reasons. First, the judge’s initial intervention was wrong and unfair. Counsel’s recollection of the guardian’s evidence the previous evening was correct: she had referred to trauma. Secondly, the judge lost his temper with counsel and addressed him in a way that amounted to bullying. Thirdly, counsel was clearly unsettled by the way in which the judge addressed him and asked for an adjournment, which the judge refused. Fourthly, the judge’s renewed threat to report him to the BSB was unjustified and wrong. Finally, the effect of the intervention was that the guardian wrongly said that counsel had misquoted her. The judge’s intervention therefore materially undermined the evidence.
In response, Mr Wilson acknowledged that the judge’s comments during this exchange may be the most troubling. He pointed out that counsel’s summary of the guardian’s evidence the previous day was not precisely accurate. He did not seek to defend the judge’s reference to the BSB. He added, however, that, following this exchange, Mr Uddin had continued to cross-examine the guardian for an extended period recorded over a further 21 pages of transcript, during which there were further respectful and productive exchanges between judge and counsel. This was one incident over a five-day hearing and, in evaluating the question of apparent bias, a fair-minded and informed observer would have regard not just to this moment but to the whole hearing in the context of the overall proceedings.
In his written submissions to this Court, Mr Bowe informed us that, having carefully considered the transcript, the guardian could see that counsel’s question did not strictly reflect the evidence that she had given the day before in that she had not said that A had suffered trauma “when he was moved away” from the mother to the father but rather that A must have suffered trauma having lost the mother and his extended family. He added, however, that the guardian’s perception was that the judge unexpectedly shouted at counsel when telling him not to talk like that, causing counsel to request a five-minute break and that the style of the intervention, taken in combination with the previous admonition and reference to the BSB on 25 March, resulted in what Mr Bowe called a somewhat freezing effect on counsel. He also noted that the effect of the intervention was to cause the guardian to doubt her previous evidence and potentially deprive counsel of the opportunity to explore the issue of “trauma” more fully on the mother’s behalf. For those reasons, it was his submission that a fair-minded observer would consider that instances (3) and (8) together do amount to apparent bias.

The Court of Appeal had to consider whether the judicial tests for recusal (i.e that this Judge would not hear this case again) were met and whether the Judge had been wrong to refuse the application to recuse himself.

Obviously, any application for recusal is very difficult. You are, on instructions, having to apply to the Court to say to them that your client does not consider that they have been fair and that they cannot decide the case fairly in the future. Nobody really wants to say that to a Judge, and probably no Judge really wants to hear it. There is a balance to be struck between the duties to fearlessly represent your client but also to have respect towards the Court, and it can be a very difficult tightrope to walk.

The Court of Appeal said this

In this part of the case we are concerned with alleged bullying of counsel by a judge. Where it occurs, judicial bullying is wholly unacceptable. It brings the litigation process into disrepute and affects public confidence in the administration of justice. However, it inevitably remains the case that situations of conflict between bar and bench will sometimes arise. In that connection we make the following points.
First, counsel are sometimes obliged to object to, or be critical of, something said or done by the judge in the course of a hearing. Judges should, and almost always do, appreciate that this is a fundamental part of the advocate’s role and should entertain the objection with respect, even if they regard it as ill-founded. However, respect goes both ways. It is important that any such objection or criticism is expressed, however firmly, in a professional way. Most judges nowadays conduct hearings in a less formal manner than may have been usual in earlier generations, but that is not a licence to disregard the particular position of authority which they necessarily enjoy.
Second, trials are a very intense environment. Even the best counsel may in the pressure of the moment express themselves in ways which they did not really intend or say things which they would not have said if they had had time for reflection – whether in the context of an exchange with the judge of the kind discussed above or more generally. Judges should, and almost always do, recognise this. Many such lapses can simply be overlooked or corrected with a light touch.
Third, there will nevertheless be occasions when counsel’s conduct requires explicit correction or admonishment. In such a case the judge should try to ensure that any rebuke is proportionate and delivered in measured terms, without showing personal resentment or anger. Even a merited rebuke may be unsettling for counsel; and it may also, even if unjustifiably, have an impact on the confidence of their client in the fairness of the hearing. That said, some such impact may be unavoidable, in which case it has to be accepted as a consequence of counsel’s behaviour.
Fourth, a statement by the judge that they are considering referring counsel to the BSB is a particularly strong form of admonition and is accordingly particularly liable to have an adverse impact of the kind referred to above. For that reason, we believe that it will rarely be appropriate for a judge to raise the possibility of referring counsel to the BSB in the middle of a hearing. In the great majority of cases, the better course will be to wait until the end of the hearing, which will avoid raising the temperature more than is necessary and will also mean that the judge can evaluate counsel’s conduct in the overall context of the hearing. In the rare case where an allegation of professional misconduct does have to be raised in the course of a hearing, the situation will require sensitive handling and the judge will be well advised to take time to consider carefully when and how to raise the matter.
Finally, since judges are human, and (as Black LJ observed in Re G, supra) hearings can be challenging for them as well as for counsel, they will sometimes lapse from these high standards, and incidents will occur which the judge should have handled better. But such lapses do not necessarily amount to bullying; still less does it necessarily follow that in such a case the hearing will have been unfair or that the judge should recuse themselves from any further involvement. On the contrary, it is fundamental to the culture and training of a professional judge that they will decide each case according to its objective merits. If judge and counsel rub each other up the wrong way, whether or not it is the fault of either or both, that can be, and almost always is, put to one side in the decision-making process. Likewise, the professional training and experience of counsel should enable them to deal with criticism from the bench, even if they may believe it to be unjustified.
We should add that although the mother’s reference to bullying requires us to consider the judge’s conduct, the dispositive question on this application is not whether he was guilty of misconduct in relation to either instance but whether his conduct would give rise to a reasonable apprehension that he was biased against the mother, because of her counsel’s behaviour.

They went on

In his third judgment handed down on 15 November 2021 the judge said that parts of the position statement filed for the hearing on 25 March 2021 were “rude and impertinent”: the phrase he used at the hearing itself was “impudent and impertinent”. We might not have used those precise terms, but we agree that the passages that we have quoted from the position statement are objectionable. Although, as we have acknowledged above, there are occasions where it is counsel’s duty to accuse a judge of unfairness, in the context of the adjournment application the accusation was not only unfounded but gratuitous. It did not advance the substance of the application to say that the mother feared that it would be unfairly “disregarded” because of the judge’s previous findings, still less that she feared that he would use it against her. Those assertions did no more than vent the mother’s personal feelings about the judge’s findings (which findings were unappealed). We recognise that this may not have been an easy position statement for Mr Uddin to draft but if his response to the judge that it was drafted “on [the mother’s] instructions” meant that he thought he was obliged to make offensive imputations of this kind merely because his client wanted him to do so, that was a serious misunderstanding of his duty.
It was in our view appropriate for the judge to admonish counsel about the tone of the position statement. He also acted appropriately by doing so succinctly, and in a way that drew a line before he moved on to the substance of the application. We have to say, however, that we do not think that his rebuke was well expressed. Although it is never easy to assess how things are said from a written transcript, the words used by the judge convey the impression that he felt personally affronted: that was not appropriate. As for his mention of the BSB, it is fair to say that the judge did not say that Mr Uddin’s conduct merited a report (and we do not believe that it did) but only that he would report him if he did the same again. But it was, for the reasons set out above, inadvisable for him to mention a possible reference to the BSB in the course of the hearing.
Although we believe that the incident could have been handled better, we consider it to have been a limited incident, best characterised as an over-reaction to what was in our view a gratuitously offensive position statement.

and in relation to the cross-examination of the Guardian

As we have seen, the parties before us were agreed that instance (8) was the most serious of the instances on which the mother relied. It is important to start by analysing exactly what went wrong.
The starting point is the judge’s querying of whether in his question to the guardian Mr Uddin had accurately summarised an earlier answer she had given. The question began:
“Now, yesterday in evidence you said, and please correct me if you find me to (inaudible) in any way, that A did suffer trauma when he was moved away from [the mother] to the care of [the father] leaving behind …”
It was at that point that the judge intervened to say that he had not heard the guardian say that, though a little way into the exchange he said in terms that she had not done so.

Because of the way things developed, the judge did not specify exactly what it was in Mr Uddin’s formulation that he believed was wrong. When Mr Uddin eventually put the question again the guardian said that she did not believe that she had used the word “trauma”. As the transcript shows, she was wrong about that, and to that extent Mr Uddin’s question accurately reflected her evidence. But it is not clear to us that that was the judge’s point. Mr Uddin’s formulation was in fact inaccurate in a different way, because it suggested that the guardian had attributed the trauma to A being moved “to the care of [the father]” whereas she had referred only to it being caused by the loss of his mother and extended family. The difference is only slight, and it is fair to say that Mr Uddin had not finished his question when the judge intervened and he may well have been going on to refer to that aspect too (as he did when he eventually put the question again); but even if so his introduction of a reference to the father arguably carried the implication that the guardian had said there was something about the father’s care that caused trauma. It may well have been this perceived inaccuracy that the judge was objecting to. In any event, at this stage there was no more than a possible misunderstanding of a kind which sometimes occurs in the course of cross-examination, and no-one is to be criticised.
Mr Uddin responded to the judge’s intervention by saying:
“What would you like my Lord to do, not– for me not to even ask the question because your Lordship has not heard it?”
That was in our view disrespectful and impertinent. The correct response from an advocate when his recollection of the evidence is questioned by the judge is to seek to clarify the position, most obviously by establishing exactly what the issue is and asking that the judge’s note be compared with those of counsel and solicitors. His further response “Well, let us hear what she says then, my Lord” also has a confrontational ring, at least as it appears in the transcript.

Thus far the criticism is entirely of Mr Uddin. But it is clear that his disrespectful response (or responses) caused the judge momentarily to lose his temper. Even without the tape, it is plain that his response (“Do not talk to me like that”) was angry – and that is confirmed by the guardian’s recollection recorded at paragraph 121 – and his replies in the course of the following exchange, culminating in the observation that Mr Uddin was coming close to being reported to the BSB, show that he did not immediately recover his poise. That exchange in its turn clearly unsettled Mr Uddin and caused him too to become heated – “I deserve respect”, “can I have it affirmed that you will not talk to me in that way?”, “I will not be spoken to in that way by anybody”. Although the judge tried to close the incident down and return to the evidence, Mr Uddin would not at first do as the judge asked. He requested a break, which the judge refused. Although Mr Uddin resumed his questions to the witness, he obviously remained troubled, hence his “personal statement” a few minutes later.
This was clearly a regrettable incident. It was started by Mr Uddin’s disrespectful response or responses, for which the judge was fully entitled to admonish him. However, the way that the judge did so raised the temperature and clearly unsettled Mr Uddin. With the benefit of hindsight, we believe that he should have taken up the suggestion of a short break for “cooling-off”. Instead, he warned Mr Uddin that he was getting close to being reported to the BSB. We have already observed that it is generally inadvisable to warn of the possibility of a reference to the BSB in the course of the hearing, and that was particularly so here when feelings were running high.
Miss Ancliffe submitted that the judge’s intervention had led the guardian to wrongly disavow her earlier reference to A having suffered trauma by having been moved from her mother’s care. That may be the case, even though the judge himself did not focus on that word, but it is in truth impossible now to know. Ultimately, it does not matter. We are not concerned as such with the effect of the judge’s intervention but whether the incident to which it led gives rise to a reasonable suspicion of bias on his part. However, we should say that we do not consider that the guardian’s revisiting of the issue had a material impact on the outcome. She was a professional witness well able to express her considered opinion and her subsequent answer, set out at the end of paragraph 117 above, described in more precise terms how A had been affected by the move from the mother.
CONCLUSION ON INSTANCES (3) & (8)

It will be seen that we have some criticisms of the judge’s response in relation to both these instances, and in particular instance (8). However, the question on this appeal is whether what he said on those occasions would lead a fair-minded and informed observer to consider that there was a real possibility that he was biased against the mother. We do not believe that it would. In neither case was his conduct gratuitous: on the contrary, he was reacting, albeit inappropriately, to disrespectful conduct on the part of Mr Uddin. These were two short-lived and isolated episodes in separate hearings, the second of which lasted several days. They are just the kind of incident which may arise in the course of highly-charged proceedings but which, as we have said above, a professional judge will put to one side when assessing the merits of the case. As noted at paragraph 47 above, in his eventual judgment the judge said that the exchanges between him and Mr Uddin had had no effect on his decision-making. Of course that statement itself cannot be conclusive, but it is consistent with what the fair-minded and informed observer would expect of a professionally trained judge and there is nothing to suggest that it was not the case here. There is no complaint of any other inappropriate interchange between the judge and Mr Uddin. We refer also to paragraph 95 above. The mother and her legal representative were given a fair opportunity to put her case, and the mother was allowed to adduce extra evidence. At the conclusion of the hearing, the judge handed down a judgment in which he rejected a number of the proposals put forward by the father. All the evidence is that the judge reached his conclusions following the August 2021 hearing in a fair and balanced way, and there is no reason to suppose that he would not do so in the remaining stages of the case.
Having been critical of some of Mr Uddin’s comments, we should record our impression that, despite the evident professional difficulties he was facing, he represented his client tenaciously and effectively.
OVERALL CONCLUSION

In relation to both groups of instances, we have concluded that they would not lead the fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother. For the avoidance of doubt, that remains our view if all seven instances are considered cumulatively. It is for those reasons that we concluded that there was no basis on which the judge should have recused himself and that this appeal should be dismissed.

(As a sidebar to the case, one of the grounds of appeal which did not particularly cause the Court of Appeal trouble was the claim that the Judge’s remarks during mother’s evidence of “I am writing that down” were indicative of bias, and the Court of Appeal said this:-

There is no substance in the complaint about the judge’s taking of notes or his references to his notebook during the hearing. It is entirely a matter for a judge to decide what notes to take of the evidence. Neither counsel nor anyone else in court is in any position to assess what a judge is writing down. It is not unknown for a judge to indicate to counsel that his line of questioning is not helpful by putting down his pen. This is an example of the disclosure of judicial thinking which, as Sir Thomas Bingham MR observed, is sanctioned in the English tradition. Criticising a witness’s answer, and recording the criticism in his notebook, is a legitimate expression of scepticism which, to use Sir Thomas’s words, “is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be”. In this case, the judge’s references to the notebook during the mother’s evidence were made in the course of appropriate challenges about her reasons for reporting allegations to the police which he had found to be fabricated.

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Duration of final hearing

Posted on October 21, 2021 by suesspiciousminds

I don’t think that this reported judgment does anything earth-shattering or makes any vital new legal points, but I felt it was interesting to see what’s a known direction of travel regarding pressure on Court time play out in a real case, and one where I think the outcome would have been very different not long ago.

The case involves Lincolnshire County Council, who were the very wise / very foolish Local Authority who took a chance on a wet behind the ears young lad in 1994 and rescued him from being an office finance manager and turned him into a child protection lawyer… So I will always have fond thoughts of Lincolnshire.

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2813.html

Lincolnshire County Council v CB & Ors [2021] EWHC 2813 (Fam) (21 October 2021)

The case involves the death of an 11 year old, and what is to happen with his three siblings, aged 10 1/2, 5 1/2 and 3 . At this stage of the proceedings, those three siblings were living with the grandparents.

The central issue, although there are others, is whether the death of the 11 year old XE was a tragic accident, or caused by a parent. The stakes could not be higher in a case of this kind.

There are four possibilities of truth and outcome (obviously everyone involved works very hard to help the Court be in the best possible position of getting to the truth and that the finding made by the Court about XE is what really happened. But the process is not perfect. So here are the four possibilities

a) This was a genuine accident and the Court find that it was – which reunites the family and is safe

b) This was a genuine accident, but the Court find that it was intentional, which keeps the family apart and is also wrong

c) That this was intentional and the Court find that it was – which probably keeps the family apart and keeps the children safe

d) That this was intentional, but the Court find that it was an accident – which probably reunites the family and puts the children in danger

Each of those are really important for everyone involved, particularly the children. The stakes are high.

The LA and Guardian in this case argued that the case should be listed for a 5 day final hearing, dealing with findings on XE and welfare decisions for the other children at the same hearing, the parents argued for a separate finding of fact hearing and that the time estimate for this was 20 days.

I’m not going to attempt here to analyse who I think was right or wrong – I don’t have enough material or knowledge to do that from just the judgment, but historically, I’d say that a case where the allegation was effectively murder of a child would generally take closer to the parents estimate than the LA estimate. It of course depends on what the evidence and disputed evidence is.

In very broad terms, we are nationally short of Judge time. That was the case pre Covid, and is even more pronounced now. There was a period of time in which it was very hard to conclude proceedings and have final hearings whilst all of the technical issues were happening, so delay in those cases had domino effects on the time other cases took. The Government and statute expects cases to conclude within 26 weeks. Pre Covid we were sort of around that figure, with some more complex cases taking longer. In December 2019, the average length of a case was 33 weeks. March 2021 was an average of 43 weeks.

So a 20 day case has two significant issues – One is that it takes a lot longer to find 20 days of Court time than 5 – for the obvious reason that you need to find a Judge who had nothing to do for a month, and there’s not a lot of that going around. The longer you wait for the hearing, the longer the children have to wait for a decision. The second is that if you allocate 20 days to one case, that’s probably 3 other cases that could possibly have used 5 of those days to conclude their own case, and that makes those 3 cases all need to wait longer. The other side of that coin, as I’ve already indicated is that the four possible outcomes in this case are all really serious for the children and rushing it might make some of the worst options (that the truth and the finding are not the same thing and the children are either kept away unnecessarily or returned to danger with optimism that they are safe) more likely.

So I don’t know which, in this case was the right call. I’d probably have gone for the classic compromise of 10 days.

I’ll instead set out the judicial conclusions, and let the readers come to their own views, particularly in the light of this sort of benchmark how difficult it may be to seek a final hearing time estimate of more than 5 days generally.

Conclusions

The Court’s consideration starts with the welfare of the children, but this is not paramount, see DP at [24]. The inevitable consequence of ordering a lengthy fact finding hearing is that there will be considerable delay in the case and that will be severely to the detriment of the children. I accept Ms Hunt’s submission that in very many public law family cases there will be an adverse impact on the children from delay, and that factor alone cannot lead to refusing a fact finding hearing. However, the importance of achieving an appropriately speedy outcome for the children remains an important consideration and that factor here is particularly weighty.
It is not merely that delay will mean longer without a permanent and stable placement, but also that the children, and especially A and B, will have to wait longer for the counselling to deal with the extreme trauma they have been through. This counselling cannot meaningfully commence until they are in a long term placement, whether with the Mother or elsewhere. I therefore consider that the delay to the children is a very weighty factor in this case.
It is apparent from Re H-D-H that the impact on court resources and on other cases is a relevant consideration when making a case management decision such as this, see [22]. The true question is whether the fact finding is truly “necessary” for the ultimate welfare decision that the Court has to make. If it is not necessary for that decision, then a fact finding hearing should not be undertaken. As the President of the Family Division set out in The Road Ahead (both 2020 and Addendum in 2021), in current circumstances the Family Courts do not have the resources to undertake hearings which do not meet the test of strict necessity. It is therefore essential that this test is properly applied, with appropriate scrutiny by the Court, even if the parties themselves do not argue against a fact finding hearing. The Court must be careful to ensure that there is a proportionate and effective use of court time. It is well known that the family justice system has come under very severe pressure during the Covid pandemic. Delays in the hearing of cases have become very much more lengthy and only through more rigorous case management will the delays be materially reduced.
The outcome in the present case is in my view clear cut. The factual dispute between the parents in relation to XE’s death is a very narrow one, namely what DE said in the kitchen to the Mother and who left the taps on. Only the parents were witnesses to these two events, save possibly for A, and none of the other witnesses who the parents seek to call can give direct evidence on the matters in dispute. There is body worn camera footage and recordings of the 999 calls so the Judge will have the direct, and thus best, evidence of the Mother and DE’s immediate responses at the time of the incident.
In any event, the demeanour of the parents, including what they said immediately after XE’s death, as seen by the other witnesses, carries relatively little forensic weight. It is well known that people react in very different ways to tragic events, and whether the Mother seemed extremely distressed or relatively unconcerned will be of little assistance to a judge seeking either to determine precisely what happened to XE or the quality of the Mother’s wider parenting of the children.
The evidence of the 20 or so other witnesses, whether police, ambulance service staff, or clinicians is therefore not necessary for the determination of facts by the Judge.
In respect to whether the Court orders a separate fact finding, such hearings will relatively rarely be necessary or proportionate. They necessarily build in a great deal of delay in the system and lead to a significant degree of frequently wasted resources. In a case such as this where the threshold findings sought go well beyond the area of factual dispute between the parents over what happened on the night of XE’s death, I consider it unnecessary to have a separate fact finding hearing. The LA will have to consider alternative scenarios and prepare its evidence on that basis. That may involve a more complicated situation than if there was a separate fact finding hearing, but it will save a large amount of delay and duplication of effort.
I also do not consider that the case warrants a listing of more than 5 days. Again, I refer to the President’s Guidance in The Road Ahead. It is essential that the Family Court uses the time available more effectively, and individual hearings take less time. In practice this means more focused cross examination, less repetition and careful scrutiny of witness templates in advance of hearings. This will put more pressure on advocates, and the Court, but that is the only way to achieve the President’s intention of individual cases taking less time. If that is done in the present case, I see no reason why the hearing cannot be completed in 5 days.

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You can ring my be-ee-ll, ring my bell

Posted on October 14, 2021 by suesspiciousminds

There’s been debate in the legal community and in the social work community for a long time about the desire of some parents to make recordings of their interactions with social workers.

There’s a feeling among some professionals that it feels like it should be illegal, but when you drill down into it, it’s hard to find an actual law that prohibits it. (The Human Rights Act, which would protect interference with private and family life works for individuals who are owed duties by the State, and not vice versa)

There’s very good guidance from the Transparency Project here

https://www.transparencyproject.org.uk/guidance-on-parents-recording-meetings-with-social-workers-2/

The grey area has been whether there might be arguments about whether the making and keeping of audio or video recordings might constitute data processing for the purposes of data protection legislation – and if it does, then all sorts of duties arise, including very strict restrictions on the purpose and transparency on the person processing that data. But data protection legislation makes an exemption where the information is being handled for ‘household use’ (understandably , if you are keeping a diary, your friends / neighbours don’t have the right to see any entries you’ve made about them in the same way they would if say an Electricity Company was keeping records about them)

s21 (3) Data Protection Act 2018 This Chapter does not apply to the processing of personal data by an individual in the course of a purely personal or household activity.

So, what’s household use and what’s not?

This case throws up some interesting new questions – and it t like the national press are quite interested in it, so I’ll share my early thoughts.

The national press for example, the Daily Mail doing their usual Betteridge’s Law headline

https://www.dailymail.co.uk/news/article-10087671/EVERY-Ring-doorbell-customer-face-100-000-fine-landmark-ruling.html

NO.

Spoiler – this case does not provide a definitive answer to our issue.

Two important things to note

  1. This is a decision by a Circuit Judge so it is not an authority that would bind any other Courts – they might be referred to it as a matter of interest in how another Judge decided the issue but they are not obliged to follow it.
  2. The behaviour complained of here is pretty exceptional, and it may be hard to draw parallels with cases that aren’t so extreme.

That being said, let’s dive into it.

Fairhurst -v- Woodard

In this case, Dr Fairhurst sued a neighbour, Mr Woodward, for harassment nuisance and breach of data protection legislation about security cameras that Mr Woodward had installed. One of which was one of those high-tech doorbell security cameras , the particular model being “Ring” (which is the angle that the National Press are super interested in, and hence the title of this post)

In tests done for the purposes of the litigation, the Ring doorbell camera would routinely trigger when a person passed within 17 feet of the front door, and begin recording. It would record video footage and also make audio recordings of anyone having conversations within that distance, which is longer than the boundaries of the property and covers the street outside. (I think from later entries, the audio recording operates at a higher distance – i.e you wouldn’t get video footage of someone standing 17 feet away but you would get audio recording)

131.The Claimant’s pleaded case is that: images and audio files of the Claimant
are personal data within the meaning of Article 4(1) of the General Data
Protection Regulation 2016/679 (“the Regulations”); that the Cameras
collected such personal data, that the transmission to the Defendant’s phone
or computer or other device, the retention of any such images or sound on
such a device and their onward transmission to others (whether neighbours,
the police, or the cloud for storage) are processing of personal data within
the meaning of Article 4(2) of the Regulations; that the Defendant as the
person determining the purpose and means of that personal data is, and was
at all material times a data controller within the meaning of Article 4(3) of
the Regulations, and accordingly must comply with the principles set out in
Article 5(1) of the Regulations.

  1. I don’t think any of that analysis is disputed, and I so find. The question is
    whether the Defendant has processed such personal data lawfully and in
    accordance with the principles
  1. I note that the Information Commissioner has provided Guidance on the
    meaning of ‘transparently’ in which she says that “Transparent processing
    is about being clear, open and honest with people from the start about who
    you are, and how and why you use their personal data”. Given the extensive
    findings that I have made relating to the manner in which the Defendant
    sought to actively mislead the Claimant about how and whether the
    Cameras operated and what they captured I am satisfied that the Defendant
    has breached: the first principle as he cannot be said to have processed data
    fairly or in a transparent manner

That would seem, subject to the caveats I started with, to be quite significant in terms of covert recording. The action of making and keeping the recordings was considered by the Court to be data processing, and doing so covertly would be in breach of the duty under the General Data Protection Regulations that the processing must be transparent.

What about the ‘household use’ element?

Annoyingly for my purposes, the judgment doesn’t really get stuck into s21 (3) and if it applies – although given that the Court found that there were breaches under the DPA 2018, it must be implicit that the Court did not consider that it did (although i always prefer it to be explicit)

Here’s as close as we get, which is more an argument about whether the processing was legitimate rather than s21(3). (Growls to himself – I really would have liked the s21(3) issue to be properly ventilated and ruled on, even though this isn’t a binding authority. I’ve looked carefully and done a couple of searches and I can’t find s21 (3) mentioned – it isn’t in the summary of the relevant DPA law or as a defence. Could it really have been overlooked by everyone???)

134…..I consider that the balance
between the legitimate interests of the Defendant and the right of the
Claimant to privacy and a home life are met in relation to the processing of
video personal data from the Ring Doorbell, and I am so satisfied. That is
because any video personal data of the Claimant is likely to be collected
only incidentally as she walks past, unless the Claimant stands on the
Defendant’s door and rings his doorbell, and I consider that his legitimate
interest in protecting his home whether he is there or not are not overridden
by her right to avoid such incidental collection on a public street, albeit in
the vicinity of her home. However I consider the processing of audio
personal data from the Ring Doorbell to be problematic and I will return to
that

So the video data from the doorbell was okay, because unless the Claimant was actively on his property ringing his doorbell or walking past his home, you wouldn’t get video footage, and the Defendant’s interest in protecting his home outweighs that of the Claimant’s wish not to be filmed.

The driveway camera footage to protect his car from damage or theft was not.


I135. I consider that such interests are overridden by the Claimant’s right to
privacy in her own home, to leave from and return to her house and
entertain visitors without her video personal data being captured. Again, the
audio personal data collected and processed by means of this Driveway
Camera is even more problematic and detrimental than video data in my
opinion. For those reasons I am satisfied that the Defendant’s processing of
the Claimant’s personal data by means of the Driveway Camera is not
lawful

On the Ring doorbell audio footage

138…I am satisfied that the processing of such audio
data by the Defendant as data controller is not lawful. The extent of the
range means that personal data may be captured from people who are not
even aware that the device is there, or that it records and processes audio
personal data, or that it can do so from such a distance away, in breach of
the first principle. The Claimant has fallen into each of these categories
during the relevant time. The living individuals whose conversation it
captures may well be identifiable from the data itself or from other
information which can be obtained from the data controller particularly in a
case such as this where the Defendant knows and is familiar with his
neighbours and can probably identify many of them by voice alone, and
certainly identify them with both the audio and video data that these
devices capture.

The Court made orders for the removal of the cameras and ring doorbell, though asked for enquiries to be made as to whether the Ring doorbell could be installed in such a way to prevent audio recording. Damages are yet to be determined.

So no definitive answer I’m afraid, but I am aware that more specialist GDPR lawyers are looking at this case and talking about it and if I learn more, I’ll let you know.

There are some other gems in this judgment

26.

I found the Defendant Mr Woodard to be a very poor witness. He admitted
that some of his evidence was incorrect. Different accounts given at
different times contradicted each other. Some of it he changed in oral
evidence as he went along, as difficulties with his evidence were revealed
by Mr Phipps’ questioning. Much of his evidence was exaggerated. Some
of it is contradicted by contemporaneous documentation or correspondence.
Some of it was simply unbelievable. In several ways, I found him to be
untruthful. I can believe almost nothing that he tells the Court unless it is
supported by other evidence which is both credible and reliable, or the
inherent probabilities. Where his evidence is in direct conflict with that of
the Claimant and Dr Franich, I prefer their evidence

and a beautiful typo

34…He eventually accepted in cross-examination that the Driveway
Camera was in wife range, which makes the story he told about draping a
wire from one house to the other for the purposes only of set up, in my
judgment, entirely concocted to attempt to support his position that it was
never a functioning camera

VERY GRATEFUL TO JOHN GOSS on Twitter, who explained to me very nicely that s21(3) has been repealed and the appropriate law on household usage is now Article 2(2) GDPR (UK)

2.
This Regulation does not apply to—
(a)
the processing of personal data by an individual in the course of a purely personal or household activity;

So the substance is the same, the reference I gave was wrong.

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Something rotten in the state of hair strand testing?

Posted on June 21, 2021 by suesspiciousminds

There’s a decision reported on Bailii which was decided by the President of the Family Division.

Greater Manchester Police v Zuniga & Ors [2021] EWHC 1572 (Fam) (10 June 2021) (bailii.org)

It sounds very technical and dull – it was about what happens to evidence gathered in the family Courts if it is capable of being DNA tested (such as hair samples) when it goes to the police – who have various duties and responsibilities about this.

But far more importantly, it is about a lab based in Manchester who are under police investigation for falsifying the results of tests for alcohol and drugs – and that some 27,000 tests are under suspicion. A lot of this relates to criminal law cases. The suspicion is that in order to get commercial advantage and gain contracts with the police for their drug and alcohol testing, the lab cut corners – falsifying results and cutting and pasting results from one case into others.

The criminal investigation is ongoing, so we must be careful not to make conclusions that these allegations are proven, but one of the defendants has made admissions of a cover-up during two cases involving family Court where concerns arose and the Court was trying to get to the bottom of anomalous cases.

  1. The background to the case is an investigation begun in 2017 and led by GMP into data manipulation by the seven Respondents, who are the suspects in the case, at a forensic laboratory which, via two different companies consecutively operating at the laboratory, provided services to police forces for the purposes of identifying drug use. The forensics analysed hair, blood, and urine for quantities of illegal substances, and the results provided, some of which were falsified, were used in in criminal, family, coronial or employment cases.
  2. The investigation has uncovered 27,000 reports which appear to have been affected, and therefore the potential injustices which have occurred as a result of the data manipulation are many and serious. It is worth recording that an investigation of this scale, complexity, and irregularity is difficult and skilled work, which necessarily takes time.
  3. The alleged activity occurred between 2011 and 2017 at the same Manchester testing centre, the Hexagon Tower. Two companies were primarily involved, and the Defendants span both: Trimega Laboratories (“TL”) operated at the Hexagon Tower from 2009, and continued under that name (after the Ingemino Group bought TL in 2012) until they ceased trading in April 2014 and the company was liquidated by KPMG; Randox Testing Services (“RTS”), bought the equipment and methodology from TL upon its liquidation and operated at the Hexagon Tower from 2014 onwards.
  4. The Respondents are said to have engaged in data manipulation practices for the purposes of ensuring rapid accreditation by the regulator, UKAS, by which the company could provide its forensics services to the police forces, thereby gaining commercial advantage over competitors. The object was therefore the raise the value of the company by gaining a larger market share.
  5. This data manipulation dates back almost a decade and takes a variety of forms, including copying results and quality assurance data from one sample and pasting it into another, as well as manipulating quality controls and suitability tests, and falsifying identification of drugs and validation data.
  6. Against this background, the seven suspects have been served as Respondents in the case on the basis that they are affected by the order, following the Criminal Procedure Rules Part 47. None has chosen to appear to oppose the application.
  7. The alleged data manipulation first came to light in January 2017, when RTS contacted GMP following their discovery of data manipulation at Hexagon Tower. Both RTS and GMP began concurrent investigations, and RTS cooperated with GMP throughout. RTS discovered the erroneous results in the forensic data during a trial of a person accused of driving under the influence of drugs, in which the prosecution’s expert evidence was challenged and, upon the defence instructing an expert, the two experts were unable to agree due to data anomalies which undermined the reliability of the report from RTS. RTS investigated this and found that the anomalies were data duplication that could only have been carried out by a laboratory assistant with extensive knowledge of the system. Their investigation uncovered that the data manipulation had been ongoing since before they purchased the laboratory and equipment in 2014.
  8. GMP’s investigation also involves the cover up of data anomalies relating in particular to two family court cases. These cases are “the Welch case” and Bristol City Council v A & A and Others (2012): in Welch a woman contested the results from TL of hair testing for drugs, and the another forensic provider was employed to test her hair; in Bristol City Council, TL’s drugs testing was challenged by a woman whose children had been removed from her care on the basis of drugs use. In both cases TL’s tests were contradicted by newly instructed forensics providers, and TL acted defensively, possibly for the purposes of competition with the alternative forensic providers used in those cases. Bayliss admitted in police interview to involvement in a cover-up during these two cases. The anomalies in these cases were discovered at the same time as the sale of TL to Ingemino. If disclosed, the fact of the anomalies would have dramatically reduced the value of the sale. There is also investigation into what the senior management of TL knew of these cases at the time.

I wrote about the Bristol case at the time.

Hair we go again – or blip versus tip | suesspiciousminds

I’ve written before also about how unsatisfactory it is, given the huge amount of public money spent on drug and alcohol testing and the huge decisions that can be made as a result of the results, that we simply can’t get a straight answer on how reliable these tests are.

Help, it’s the care-hair bunch! | suesspiciousminds

(goddamn it, that piece was nine years ago – I’ve been yeeting on about this for nine years)

The decision of the President in this case is twofold – firstly all of the material held about the testing in the family cases under suspicion is going to go to the police and secondly, the family members involved are entitled to ask for that from the police and also get evidence from the police about what the concerns are that led to their tests being considered suspicious.

It isn’t clear to me whether the police will be contacting the alleged victims of these suspicious tests or whether it is for the victims themselves to chase this up. But if you did have drug tests conducted by Trimega using the Manchester labs between 2007 and 2017 you may want to contact your solicitors and see if anything can be done.

I’d really welcome this whole topic being properly cleaned up – we can’t have rival labs hiding behind commercial advantage and competition as a rationale for not being properly transparent about how accurate these tests are.

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A judicial T-shirt cannon loaded with “whoop-ass” t-shirts

Posted on April 19, 2021 by suesspiciousminds

I occasionally make reference to judgments where the Judge opens a can of whoop-ass on one party, usually the Local Authority. This one goes so far beyond a can, and even beyond a supermarket trolley filled with cans of whoop-ass that only the title I’ve selected will suffice to show just how much whoop-ass was being thrown about. And rightly so.

IF you are from Herefordshire CC, you may want to skip this particular post. Or at least get a very strong coffee before reading.

I’ll open with the conclusion:-

  1. My strongest criticism must be directed at this local authority. In the whole of my professional life I have rarely encountered such egregious and long-standing failures by a local authority. The worst of it is, I cannot after the closest possible enquiry, understand why or what motivated the local authority to fail these children, this mother and the interveners as appallingly and for as extended a period of time. The whole history of the role of this local authority in the lives of these children is highly inexplicable. The only matter which is clear to me is that it did not have the welfare best interests of the children at the heart of its decision-making, such as it was.
  2. This must call into question whether this local authority’s children’s services department is fit for purpose. That is a question which is not for me to answer. I can say that they had failed these children in an extraordinary manner over a prolonged period of time.
  1. The local authority’s actions, omissions and failures in this case have been spread over a period in excess of eight years. Mr Baird readily accepted and described the conduct of the children’s services department in the lives of these children as appalling. He was plainly right to do so. He offered to write a personal letter of apology to Child A, Child B, Child D, the mother and the interveners and will ensure this course has been taken.
  2. Prior to receiving final closing submissions, I received a letter of apology to the court in respect of the local authority’s conduct in the light of these children from Herefordshire Council. The letter was signed by the Chief Executive of the council and by two of the deputy Chief Executives.
  3. I was told by Ms Meyer QC that the council had agreed to undertake an internal review of the council’s children services department and would commission an independent external review of the same.
  4. I gave permission for a copy of this judgement, once handed down, to be sent to named officers in Herefordshire Council in order to inform the reviews. Further, I was told that once an anonymised published version of this judgment was available, the Council proposed to call a full Council meeting at which the contents of this judgment would be discussed, and the way forward would be considered.
  5. I have directed that a copy of this judgment should be sent by the local authority to the following:

(i) The Secretary of State for Education

(ii) the Chief Social Worker

(iii) the Children’s Commmisioner; and

(iv) the Chief Inspector of Ofsted

There’s obviously a huge amount in this judgment and my summary of it is in no way a substitute for reading it. I’ll give a brief overview and then pick out some of the most serious complaints against the Local Authority

YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam) (26 March 2021) (bailii.org)

(You know it is going to be worth a read when the case name has that description)

Four children were made the subject of Care Orders to Herefordshire in 2014 and placed in foster care. At the final hearing, allegations were made that the children had been the victims of sexual abuse – the Court found threshold proved but in terms of sexual abuse the findings were exposure to sexual knowledge rather than direct abuse.

The case came back to Court in 2019 for three things- mother’s application for contact, an application to change the children’s surname and an application by the LA to discharge the care orders with an invitation to make Special Guardianship Orders in favour of the foster carers.

During the enquiries about these applications, it emerged that the children had continued to make allegations of sexual harm and abuse and that the foster carers had not been properly appraised of the decision of the Court at the fact finding.

Tragically, in the interim period, one of the children became extremely unwell and subsequently died.

This is the first of the big complaints. When the child became ill and was on life-support, the medical advice was to have the life-support turned off. The parents were not consulted. The Local Authority, on legal advice, decided that they could use their powers under section 33 of the Children Act 1989 to consent to the life-support being turned off.


  1. 116. At 10:40am Mr Baird sent a draft response to Dr Zafurallah to the local authority’s legal department for approval. At 10:43am Tim Marks one of the then local authority solicitors replied to Mr Baird as follows:

“discussed this with Liz and we agreed birth parents need to be informed about the medical advice. We need to consult with them but my legal advice is our duty as corporate parents is to accept the medical advice and avoid unnecessary suffering. If this is contrary to the parents wishes it is unfortunate but we need to take that course”

As I shall set out shortly this legal advice, as Mr Baird now accepts, was wrong.

It is hard to imagine a decision that the Local Authority can ever take when dealing with a child that is more serious than consenting to a course of action that ends the child’s life. It is astonishing to me that anyone at a Local Authority could contemplate doing so under s33 rather than placing the case before a Court. It is unclear whether they even considered the article 2 implications.

133. In Child C’s case, therefore, the profound life and death decision to consent to the withdrawal of life support ought to have been the subject of an application to the High Court either by BCH or by the local authority. It was wrong and an inappropriate use of its powers under s.33 of the 1989 Act for the local authority to have exercised its powers to consent to the withdrawal of Child C’s life support.

Both the mother and the father told Ms Leader on the morning of 6th June 2019 that they agreed with the decisions of the treating clinicians. The local authority has now accepted that given:

i) neither parent had had any contact with any of the children, including Child C, since late 2012;

ii) neither had been involved in any meeting or discussion with treating clinicians at BCH; and

iii) the circumstances in which they were told of the parlous state of their daughter on early morning of 6th June;

I could not accept or find that either parent had given informed consent to the withdrawal of Child C’s life support.

Next topic for me is disclosure – this was a case where there were a wealth of documents and material to be considered and for the Local Authority to consider very rigorously whether they should disclose into the proceedings – the Local Authority has duties to disclose material which not only supports its case but may weaken or undermine its case or potentially strengthen the case of any other party.

The Court notes that due to the delays in providing proper disclosure and it coming in piecemeal and thus one set of documents disclosed revealing the existence of others that then had to be asked for, the oral evidence in this 20 day hearing could not begin until day 9.

It seems that the important task of handling discovery was left to social workers rather than being undertaken by lawyers.

The circumstances of the case reached a point in December 2016 where the Designated Family Judge who had been hearing the case felt compelled to include a recital in extremely strong terms

185. In his order of 2nd December 2016 HHJ Plunkett, understandably and wholly reasonably given the history of this case, included the following recital in his order:
“[the court] is concerned about the surprising degree of resistance to accept the clear judgment from the fact finding hearing by the Foster Carers and raises the option to move the children to Foster Carers who understand and support the reality as letting the children grow up not knowing the truth is likely to cause them emotional harm”
What did the local authority do in response to this very serious expression of concern by a judge that the children were suffering emotional harm in their foster placement and that consideration should be given to moving them to an alternative foster placement? Very shockingly the answer is nothing.
Ms Cox confirmed this in her evidence.
Worse still, on day 14 of this fact-finding hearing a note was disclosed of a meeting held on 13th December 2016 between Ms Cox and Mr Scott, a then assistant director of children’s services. At point 12 of 12, I repeat point 12 of 12, the following is recorded:
“YY case. In court. Challenge from Judge P re contact for relatives, ‘brainwashing’ by social workers/foster carers. Cafcass to visit children soon. Children plan in overview which we support. GC to discuss with AC on her return.”
HHJ Plunkett is not just a senior and hugely experienced family judge, he is the Designated Family Judge for Hereford and Worcester. The lack of any response to, or action taken in respect of, the concerns expressed is truly woeful. The utterly contemptuous response of an assistant director of children’s services of this local authority is absolutely appalling and shocking. It is completely inexcusable. However, this demonstrates the skewed and wholly inappropriate response of this local authority to the desperate needs of the children and reveals a mindset which has ultimately caused them considerable possibly irreparable emotional and psychological harm. I sincerely hope it has not.

The case had had the involvement with an expert, Dr Asen. The LA mounted an attack on him in a position statement. Keehan J was not, it would be fair to say, taken with this:-

182. Dr Asen had from time to time, between 2013 and 2016, been instructed to advise on the way forward in this case. He is one of the most experienced and highly regarded child psychiatrists in the field of high conflict children’s cases in the country. In 2014 a social work professional had recorded on the social work files that Dr Asen had expressed a view that the judgment and order of HHJ Rundell in the fact-finding hearing of 2013 was wrong and it should have been appealed. If this had been Dr Asen’s view he would have expressed it in one of his reports. He did not. I do not understand the motive for this false recording, but it indicates that the same professional in the local authority was not supportive of Dr Asen’s involvement in this case or of the positive change he was seeking to achieve.
For the purposes of the hearing before HHJ Plunkett on 2nd December 2016 when he was hearing the maternal grandmother’s application for contact, the local authority filed and served a position statement which contained the following:
“The local authority’s position at the last hearing was that contact should not progress to direct contact at this stage and challenged Dr Asen’s assessment. Then local authority believes that there is significant use of emotive language in Dr Asen’s report, which unhelpful and can be taken out of context; this raises concerned over the impartiality of the report and the conclusions he has come to. The local authority believed that there should be some work undertaken to progress matters, but that this must be done at the children’s pace and taking into consideration their very strong wishes and feelings.”
“The local authority believes that it can progress contact via the LAC review process. The local authority has significant concerns around the impact of direct and indirect contact and the children at this time, which are set out in detail within the local authority evidence. The parents are against any contact taking place between the children and their extended family; this is supported by the local authority, who share parental responsibility at this time.”
“The local authority wishes to progress life story work, at a pace right for the children, and in line with their emotional needs. The local authority is committed to undertaking this work and sees this as a part of the social workers role, and not of a child psychiatrist. The local authority is committed to promoting contact between the children and the extended family, but this must be in line with their emotional needs.”

Two important points arise:
i) it is disgraceful that this local authority chose to impugn the professional integrity of a highly respected child psychiatrist on the flimsiest of evidence. There was no evidential basis upon which any reasonable person could or should have questioned Dr Asen’s impartiality; and

ii) life story work may well be within the ambit of the social worker rather than a child psychiatrist, but after a few months in early 2017 the local authority did no life story work with the children.

The Court, understandably, spent a lot of time dealing with the assessment of the foster carers which the Local Authority filed as a Special Guardianship assessment. The assessment was written by Kathryn Straughan. Her manager was Alison Foreshaw. Miss Cox is the Head of Service. Mr Baird is the Director of Children’s Services.

The body of the report had as was clear to any reader, an overall negative view of the foster carers becoming Special Guardians, yet the recommendation was that they should be Special Guardians.

Had pressure been applied?

145. Kathryn Straughan had been the interveners’ social worker but was reassigned in June 2019. After Child C’s death she was asked to update her May 2019 special guardianship assessment report by her team manager, Alison Forshaw. She had instructed her to undertake the update as a paper-based exercise and that she was not to visit the interveners.
Ms Straughan believed there were some positives about the children’s placement with the interveners: the children were settled and felt part of the family, the children, however, struggled with their sense of identity, with their views about their parents and wider family and with the issue of contact. These concerns and the concerns about the attitude and approach of the interveners towards the birth family escalated after Child C’s death. Ms Straughan did not consider that the interveners genuinely believed that contact with the parents and their wider family was in the best interests of the children.
She told me that she had real reservations about SGOs being made in favour of the interveners. She did not consider this order to be in the best interests of the children.
As foreshadowed in a supervision meeting with Ms Forshaw on 3rd October 2019, on 10th October Ms Straughan sent her updated assessment report to Ms Forshaw by email. The body of the report was largely negative about the interveners. She concluded with a recommendation that the children should remain the subject of care orders, not SGOs. She asked Ms Forshaw whether she could leave the alternative to the court of making SGOs on the basis of a comprehensive and detailed special guardianship support plan.
On 11th October 2019, Ms Forshaw emailed Ms Straughan in response and said she had to ‘make a recommendation’. Ms Straughan then resigned. Consequently, Ms Straughan, without materially changing the body of her first updating report, changed the recommendation of the report to one of supporting the making of SGOs. This was sent to Ms Forshaw on 28th October 2019.
She told me she had the clear impression that Ms Forshaw and Ms Cox supported the making of SGOs in favour of the interveners. She felt she had been directed to recommend SGOs to be the right solution and she had changed her recommendation so that it was aligned with the ‘local authority’s view’.
I note that when Ms Forshaw emailed the updated report on 23rd October to Ms Cox, she had replied that she was pleased that Ms Straughan had made a recommendation.
I further note that Ms Straughan told me that this was the first and only time she had been asked to prepare a paper-based special guardianship assessment report or an updated report.

(I note in passing that this was pre-Covid, so there were no public health reasons for not doing the assessment face to face)

153. Ms Forshaw stated that concerns about the children’s placement with the interveners were magnified after June 2019. In response to the question that these concerns were incompatible with an SGO she replied, ‘…it feels like that now!’ I do not understand why ‘it did not feel like that’ in October 2019.
She said she could not recall instructing Ms Straughan to confine her updating assessment report to a paper-based exercise. She continued that she had no view on what the ultimate recommendation should be and that she had not put pressure on Ms Straughan to make a recommendation in favour of SGOs. When pressed on this issue by Mr Goodwin QC, leading counsel for the mother, Ms Forshaw accepted that in her first updating report Ms Straughan had made a clear recommendation, namely that the children should remain the subject of care orders. So, Mr Goodwin QC asked why in her email of 11th October 2019 she had asked Ms Straughan to make a recommendation? The best Ms Forshaw could do was to say that now her request did not make sense, but she added she had not led Ms Straughan to make a recommendation in favour of the making of SGOs.
Ms Forshaw told me that she felt the first version of the updating report had been unfair to the children and the interveners. I struggled with understanding this answer because the only substantive change between the two versions was that the later supported the making of SGOs. When asked if she considered the second version fairer only because it supported the making of SGOs, Ms Forshaw could not give a satisfactory answer.
When it was suggested that save for the first updating report having been emailed to Ms Cox, Ms Forshaw had sought to suppress the first version, Ms Forshaw said she thought both the first and the second updated reports had been sent to the legal department. Only the second version was filed at court and served on the parties. I have not seen any evidence of the first version having been sent to the legal department. Indeed, the first the court and the other parties knew of the first version is when Ms Straughan’s statement of February 2021 was filed and served by the local authority.
When Ms Forshaw was asked if she had asked Ms Straughan how her visits to the interveners were progressing, she said she did not know if she had done so. When asked if she had raised with Ms Straughan why there was not a single reference to any visits to the interveners in either of the first or second versions of the report, she claimed she had. Unfortunately, she had not recorded a single one of these discussions.
Ms Forshaw agreed that on one view the first version was a really poor assessment report. When asked why then had she signed off the second version when it was not materially different to the first one save for its recommendation, she simply said she had been under pressure to file the report with the court.
Ms Forshaw was recalled to give evidence after Mr Baird had given evidence. She was asked again whether she had asked Ms Straughan about her visits to the interveners; she said she could not remember. When asked if she had asked about the interveners’ reactions to her visits, she first replied no and then said she could not remember.
She said she did not think that Ms Straughan had changed her recommendation to appease her or Ms Cox. She was asked why she had signed off the second version when the body of the report did not support the recommendation. Once again, the best Ms Forshaw could do was to reply that the report just had to go to the court.
Towards the end of her evidence Ms Forshaw was pressed again about whether she has spoken with Ms Straughan about her visits to the interveners. This time she said that maybe she just did not ask her.
Miss Cox could not recollect (an answer frequently used by this witness) whether she had seen the first version of the updating assessment report. She could not recollect whether Ms Forshaw had told her that this first updated report did not support the making of SGOs. She said she had not read the second version of report save for reading the recommendation. Having now read this report in full she did not invite the court to rely upon this report in support of making SGOs in favour of the interveners.
Ms Cox confirmed that prior to early 2017 no life story work had been undertaken in the preceding five years with any of the children. She said that after a few months the work of Janet Watkins, who undertook the work with the children, was paused to give the children a break. It never restarted.
No therapy was ever undertaken with the children. Ms Cox was asked what oversight she had given to this case. She replied that the case had fallen off her radar because of the breadth of her workload, although she conceded this was no excuse. I do not understand how this high profile and complex case which had caused serial concerns for many professionals working with the children and with the interveners could ‘fall off the radar’ of the Head of Service.
She conceded that the children, the mother and the interveners had been badly served by this local authority. She agreed that accordingly the children had suffered for which she had real regret.
Like Ms Forshaw, Ms Cox was recalled after Mr Baird had given evidence. She continued to assert that as the Head of Service, she had not needed to read either the first or second versions of the updated assessment reports because they had been signed off by the team manager. When Mr Baird’s dismay at this state of affairs was put to Ms Cox, she asserted that the director of children’s services did not know the usual practice adopted in Herefordshire.
When asked whether she should have read the entirety of both versions of the updated report she said that she wished she had. Ms Cox accepted that the ‘safety net’ oversight (i.e. the quality assurance check), which Ms Forshaw and herself should have provided, failed in this case.
In light of the observations of HHJ Plunkett recorded in the order of 2nd December 2016, Ms Cox was asked what consideration had been given to moving the children to an alternative foster placement. She gave the startling and deeply concerning one-word answer, ‘none’.

This is already painful reading, but it gets worse

177.If Ms Forshaw had not instructed Ms Straughan to undertake a paper-based updated assessment report, I cannot begin to understand why she did not ask Ms Straughan about how her sessions with the interveners were progressing. I cannot accept that Ms Forshaw had simply forgotten any of these alleged conversations.

Ms Forshaw’s evidence about why she had sent an email to Ms Straughan on 11th October 2019 asking her to make a recommendation when, as she accepted, Ms Straughan had made a very clear and strong recommendation in her first version of the updated report, was most unsatisfactory. Her evidence leads me to only one conclusion, namely that she was directing Ms Straughan to produce a report recommending the making of SGOs.

I am fortified in coming to that conclusion by the fact that despite knowing the substance of the body of the second version of the updating report which did not support the recommendation made, she submitted the report to the legal department for filing at the court. She did not raise this disjoint with Ms Straughan because she had the recommendation she wanted.

Likewise, the only credible reason for Ms Cox limiting her reading of the second version of the updating report to the recommendation is because she had got the answer she wanted, namely a recommendation in favour of the making of a SGO. Hence her subsequent email to Ms Forshaw that she was ‘pleased’ that Ms Straughan had been able to make a clear recommendation.

207. My findings of fact in relation to this issue are set out in paragraphs 177-180 above. In summary I found that:
i) Ms Straughan was instructed by Ms Forshaw to undertake a paper only exercise in order to update the special guardianship assessment report of May 2019;

ii) she was instructed by Ms Forshaw not to visit or contact the interveners and/or the children for the purposes of completing her updated report;

iii) Ms Straughan came under pressure from Ms Forshaw and Ms Cox to produce an update which recommended the making of a SGO in respect of the children in favour of the interveners;

iv) I do not find she was instructed to make such a recommendation, but she knew both of them supported the making of a SGO in favour of the interveners; and

v) Ms Forshaw signed off the 22nd October 2019 report and arranged for it to be filed at court and served on the parties when she knew that the observations, opinions and conclusions set out in section C of the report did not support or provide a rational basis for the recommendation in favour of the making of a SGO. Indeed, those matters of substance set out in section C only supported the dramatically opposite recommendation that a SGO should not be made.

The findings about the failure of the Local Authority to support the children and their foster placement and to properly and accurately reflect on the findings that were made and not made in the fact finding hearing (allowing the view to propagate that the children had been sexually abused when the Court had found that they had not) are set out in a detailed schedule of findings as an appendix to the judgment.

The children remained subject to Care Orders, with plans for therapy and reestablishing contact with the mother and very clear oversight by the Court of the next stages of the process.

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