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Good grief, Charlie Brown. Can I make sense of adoption statistics?

Lots of news about the adoption statistics – for example


Well actually, adoption numbers are broadly rising, though they might dip a bit in 2015 (it is more that everyone expects them to drop considerably in 2016/2017 because less Placement Orders are being made – or are they?)

Adoption orders made

2011  4709

2012 5260

2013 6078

2014 6750

2015 (half year’s figures 3242, so we can guess that the full year will be about 6,500 ish)


I’m not really going to get into the political debate about whether adoption numbers going up is automatically a “good thing” or whether it represents something of a failure, or indeed whether adoption should be as politicised a topic as it has become.

What I wanted to work out was whether Placement Orders  (which is the order that a Court makes at the end of care proceedings deciding that adoption is going to be the plan for the child) have gone up or down, and whether the landmark case of Re B-S has had any impact on this.


I’ve been holding off on writing about the adoption statistics, because I was searching for a particular answer that would make sense of it.  I’m very grateful to staff in the MoJ statistics department for helping me find it (hello Wincen!)


Right, the Family Court Quarterly stats are here  but what I needed was the raw information from the Family Court tables.

You’d need the Excel spreadsheet programme to look at it, but I’ll do my best to summarise.


The questions that have been in my mind are


“Are less Placement Orders are being made since Re B-S came out? And if so, how many less?”

and if so

“Is that because the applications are being made less often? or because they are being made but turned down? Or both?”



Re B-S came out in Sept 2013, so you’d expect if it was significant to see some sort of dip in 2014, it wouldn’t really affect the 2013 figures.


So, the first question.

Placement Orders made


2011 – 5116

2012 – 6471

2013 – 6242

2014  – 4286

2015 – 2035  (but that is only the figures for Q1 and Q2 – so let’s guess at a yearly figure of twice that, 4070)


Looking at that, then, in the year after Re B-S came out, the number of Placement Orders MADE by the Court dropped by nearly two thousand (1956), or about a THIRD. And that number hasn’t recovered in 2015, it is about the same.

So it would be fair to say that Re B-S has had an impact on the number of Placement Orders being made by the Courts. A decrease of a third is more than a statistical anomaly, there’s something real happening there.


What I haven’t known to this point is whether that is because the Courts have been refusing the applications, or whether the applications were just being made less often. But now I have the raw numbers to share with you all.



Placement Order applications. 

2011 – 5821

2012 – 7085

2013 – 7182   (Re B-S came out in sept 2013, so would affect the fourth quarter only)

2014 – 4942

2015   – 2445  (but that is only the figures for Q1 and Q2 – so lets guess at a yearly figure of twice that 4,890)


So again, we can look at the figures and see that in the year after Re B-S,  the number of applications made dropped by 2,240, just over a third. And they have remained at that level since.

There seems then quite a strong correlation between the Placement order applications decreasing and the number of orders then decreasing.

Let’s imagine that you are a teenager going out Trick or Treating on Halloween. If you kept count of the number of doors you knocked on each year and how much candy you get each year, and in 2014 and 2015 you knocked on a third less doors and got a third less candy, you’d reach a pretty obvious conclusion.


"I got a rock"

“I got a rock”


But does that mean that if you just knocked on a third more doors, you’d get a third more candy?  Or had those houses you din’t knock at put up signes saying “no Trick or Treaters”, so you didn’t botherknock at a door if it was clear you’d be wasting your time?


[I’m reminded of a particular Judge who once said to me “Mr Pack, if you keep knocking at an open door, eventually you’ll fall through and break your neck”. And that certainly stopped me knocking at that particular door]

Or in our case, if the number of applications went back up, would the “problem” of declining Placement Orders, which is going to lead in turn to a “problem” decline in adoption numbers  go away?


IF there had been six thousand Placement Order applications last year, would  the Courts would have made roughly six thousand in line with previous years , or whether they would have made roughly four thousand ? (i.e were there a third less orders only because LA’s lost their nerve, or were LA’s correctly judging that the applications would be refused and presenting alternatives?)

Really hard to say. I guess what might give us some form of clue is looking at the proportion of successful applications. These aren’t exactly like for like, because of course a Placement Order application made in December 2013 might get decided in 2014’s stats, but it probably roughly balances itself out over a year.


So what proportion of Placement Order applications were turned down each year?

Gap between applications and orders

In 2011  – 705  about 12%

In 2012 – 614 about 9%

In 2013 – 940 about 13%

In 2014 – 656  about 13%

In 2015 – 820  about 17%  [the 2015 stats are least reliable, since they don’t have the full year to even out the flow and balance out that 2015’s final decisions include some 2014 applications]


It doesn’t look like the Courts are turning down a higher proportion of applications, so initially, you think that the LA’s have just lost their nerve.

But hold on.

And if  you can’t hold on.

Hold on.


[By the way, isn’t Brandon Flowers the worst person to ask for advice ? Brandon, my problem is that I can’t hold on. Okay, well you should hold on. But Brandon, I can’t hold on. Ah, well you should hold on then. Thanks Brandon]

Remember that the number of applications MADE went down by a third, but the rate of applications that were refused  stayed about the same. Now surely the one third of applications that would have been made that the LA didn’t instead issue are their weakest cases – they should have been winnowing out the weak cases that were likely to be turned down and only presenting the strongest ones.

But even having done the exercise of trying to throw out the weakest cases and only make Placement  Order applications when they felt confident or semi-confident about persuading a Court that “nothing else will do”, the Court was turning down about 13% of the applications – about the same as when the applications were a mixed bag of weak cases, middling cases and strong cases.

That suggests, but I can’t be sure because the numbers only tell you so much , that IF the LA’s had made six thousand applications in 2014 and were going to make six thousand applications in 2015, that the number of Placement Orders wouldn’t necessarily return to 2013 levels – we might well have just had more marked results in the proportion of unsuccessful applications.

We can only really find out if the number of applications go up and we see whether we return to 2013 levels of Placement Orders, or whether the rate of unsuccessful applications go up.  (I seem to have argued myself into supporting Sir Martin Narey’s original suggestion that LA’s should just hold their nerve and go back to making the same level of applications  – which I so fervently disagreed with at the time. I still think that what would happen is that the rate of refused applications would go up, but I really can’t be sure either way)


Or maybe I’m just a blockhead.






Adoption and immigration

I was very surprised to see that Mostyn J’s decision not to award an adoption order to an 18 year old when he felt that the only tangible benefit was British citizenship was appealed. I wrote about his decision here


and I had felt that he had got that absolutely spot on.

Nonetheless, the prospective adopter in that case did appeal, and the Court of Appeal judgment is here


FAS v Secretary of State for the Home Department and Bradford MBC 2015


I was even more suprised that the Court of Appeal decided that Mostyn J had been wrong in law.  You will see from the initial blog and judgment that Mostyn J had decided that the only benefit of making the adoption order for this person was to confer British citizenship on them, and that this was barred as a result of the House of Lords decision in Re B (a minor : Adoption Order :nationality) 1999


“The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental responsibility but merely wish to assist the child to acquire a right of abode. This is what Cross J. in In re A. (An infant) [1963] 1 WLR 231, 236 called an “accommodation” adoption. The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the “first consideration.” The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”


The appeal here was on the basis that as the 1999 decision of the House of Lords predated the 2002 Adoption and Children Act, AND that the Act moved the test from ‘the welfare of the child’ to ‘the welfare of the child throughout the child’s life’ that in effect Parliament HAD given the power to the Court to take impact of British citizenship into account.

The Secretary of State was an interested party to the proceedings, because obviously if the law is going to move to say that immigration status is a relevant consideration in making an adoption order that opens some doors that the Secretary of State might prefer remained closed.


Nonetheless, the Court of Appeal held that Mostyn J was wrong in law and that those doors ARE open


  1. I should explain why I consider that the judge has erred in his interpretation of section 1(2) of the 2002 Act. In my view, the natural meaning of the language used in section 1(2) requires regard to be had to the welfare interests of the child in question as they may be affected “throughout his life” – that is to say, not merely as they may be affected during his childhood, as was the test under section 6 of the 1976 Act. As a matter of language, there is no limitation as regards the nature of the child’s welfare interests which should be brought into account in this way, and none can be spelled out of the context. Given that it is readily possible to envisage things that might be done in relation to a child which may profoundly affect him for good or ill in the part of his life once he ceases to be a child (e.g. whether and how he is educated), it would be arbitrary to try to read down section 1(2) to limit its effect to purely emotional matters in the way that the judge sought to do. The wide ambit of the matters which may be relevant to assessing what promotes the child’s welfare contemplated by section 1(4), as indicated by its opening words (“… among others …”), also supports an interpretation which gives the words in section 1(2) their natural meaning.
  2. I do not think that section 1(4)(c) supports the judge’s narrow interpretation of the phrase “throughout his life” in section 1(2). If anything, it seems to me to point in the other direction. The phrase obviously bears its natural linguistic meaning in section 1(4)(c), meaning that the factor identified has to be brought into account by reference to the effects over the entirety of the child’s life. It would be very odd to give the same phrase a different, more restricted meaning when it is used in section 1(2). There is nothing in section 1(2) to suggest that the phrase only applies in relation to some (or only one), rather than all of the factors which might be found to be relevant to the welfare of a child.
  3. In my view, the reasoning of Lord Hoffmann in his speech in Re B (with which the other members of the appellate committee agreed) supports an interpretation of section 1(2) of the 2002 Act in accordance with the natural meaning of the words used in that provision. The case concerned an application by grandparents under section 6 of the 1976 Act to adopt their grandchild, T, who had only two years of minority remaining, to allow her to acquire British citizenship and avoid deportation, so that she could continue living with them in the UK and continue to attend school here: see p. 140B-D. The judge at first instance made an adoption order, even though the Home Office argued that this would be contrary to immigration policy, on the basis that he could not ignore these welfare benefits to T merely because they were dependent on the acquisition of a right of abode as a citizen: p. 140F-H. The order was set aside by the Court of Appeal on the grounds that in applying section 6 the court should ignore benefits which would result solely from a change in immigration status: pp. 140H-141C. The House of Lords held that this was contrary to the express terms of section 6 and restored the order made at first instance.
  4. Lord Hoffmann held that on the language used in section 6 the court could not ignore the considerable benefits which would have accrued to T during the remainder of her childhood:

    “Section 6 requires the judge to have regard to ‘all the circumstances’ and to treat the welfare of the child ‘throughout his childhood’ as the first consideration. I do not see how, consistently with this language, the court could simply have ignored the considerable benefits which would have accrued to T during the remainder of her childhood. That the order would enable her to enjoy these benefits was a fact which the court had to take into account. No doubt the views of the Home Office on immigration policy were also a circumstance which the court was entitled to take into account, although it is not easy to see what weight they could be given. Parliament has not provided, as I suppose it might have done, that the adoption of a non–British child should require the consent of the Home Secretary. On the contrary, it has provided that the making of an adoption order automatically takes the child out of the reach of the Home Secretary’s powers of immigration control. The decision whether to make such an order is entirely one for the judge in accordance with the provisions of s 6 . In cases in which it appears to the judge that adoption would confer real benefits upon the child during its childhood, it is very unlikely that general considerations of ‘maintaining an effective and consistent immigration policy’ could justify the refusal of an order. The two kinds of consideration are hardly commensurable so as to be capable of being weighed in the balance against each other” (p. 141C-F)

  5. The effect of this reasoning is that, in respect of the period in which the child’s interests were to be treated as a first consideration (i.e. “throughout his childhood”, according to the terms of section 6), the interests of the child (including material welfare benefits he would derive as a result of being granted British citizenship) would almost invariably have to be given priority as against the state’s interest in maintaining effective immigration controls. Lord Hoffmann contrasted the position in relation to benefits which would accrue after childhood (i.e. after the period in respect of which the child’s interests were to be treated as a first consideration according to section 6) at p. 142D-F, as follows:

    “I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of s. 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary’s discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow Ms B to remain in this country for the 2 years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given Ms B any benefits during her childhood which she would not have been able to enjoy anyway.”

  6. As Lord Hoffmann said at p. 141H-142A, the approach to be adopted under section 6 where the benefits from conferral of citizenship would accrue after the childhood of the adopted person has ended was as follows:

    “… the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the ‘first consideration’. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

  7. Thus, in relation to benefits for the child which would only accrue in the period after that in which the child’s interests were to be treated as a first consideration, as a matter of interpretation of section 6 there was far greater scope for the state’s interest in maintaining effective immigration controls to be treated as outweighing those matters, and it would ordinarily do so.
  8. Lord Hoffmann’s reasoning in relation to both periods (i.e. benefits accruing during childhood, on the one hand, and benefits accruing after childhood, on the other) was tied to the language and structure of section 6, which gave paramountcy to the child’s interests in the first period but not in relation to the second. In relation to both periods, on the proper construction of section 6 in accordance with the ordinary meaning of the language used in it, Lord Hoffmann treated the practical benefits which would accrue from becoming a British citizen by operation of the 1981 Act as relevant matters to be brought into account in deciding whether to make an adoption order.
  9. On the present appeal Mr Greatorex, for the Secretary of State, submits that the change between section 6 of the 1976 Act and section 1(2) of the 2002 Act cannot be taken to indicate an intention on the part of Parliament to change the presumption in favour of giving greater weight to the state’s interest in maintaining immigration controls with respect to benefits accruing after childhood which had been identified in Re B in relation to section 6. I cannot accept this submission.
  10. Parliament has made a deliberate change in section 1(2) in specifying the period in relation to which the impacts (both positive and negative) of adoption for a child should be brought into account for the purpose of determining what is for the welfare of the child as being “throughout his life”, by contrast with the more limited period specified in section 6 of the 1976 Act (“throughout his childhood”). Apart from this change, the basic structure of section 1(2) remains the same as for section 6, namely that in relation to assessment by reference to the relevant period the child’s interests are treated as paramount or a first consideration and that all practical benefits and disbenefits for the child (including those which would accrue as a result of any automatic conferral of citizenship under section 1(5) of the 1981 Act) are treated as relevant matters. Like section 6 of the 1976 Act, section 1(2) of the 2002 Act cannot be construed as containing any artificial limitation on what types of benefit are capable of counting as a relevant matter when considering whether an adoption order should be made. Therefore, in my view, the points made by Lord Hoffmann in Re B by reference to the then relevant period under section 6 for bringing benefits into account (during childhood) at p. 141C-F, set out above, apply with similar effect in relation to the new relevant period under section 1(2) (throughout the child’s life).
  11. The result of this is that if, after taking account of the practical benefits of adoption for a child throughout his life, it can be seen that it best promotes the child’s welfare that he be adopted by a British citizen so as automatically to acquire British citizenship under section 1(5) of the 1981 Act, the court should ordinarily make the adoption order which is sought. Just as for the first of the periods considered by Lord Hoffmann in the context of applying section 6 of the 1976 Act in Re B, the state’s interest in maintaining effective immigration controls will have very little significance. It will not be appropriate for a court to refuse to make the order as some sort of indirect means of reinforcing immigration controls.
  12. I can readily see that the Secretary of State for the Home Department might be concerned at this result. But if she wishes the courts to have the ability to give greater weight to considerations of immigration policy in the context of deciding whether an adoption order should be made, she will need to persuade Parliament to change section 1 of the 2002 Act to allow that to happen.



So, having decided that the legal basis for Mostyn J to refuse to make the adoption order was wrong in law, the Court of Appeal surely then make the adoption order?  Well, no, because it turns out that as an 18 year old, simply making the adoption order would NOT confer British citizenship on the young man. And as that was the only tangible benefit identified by Mostyn J, there would be no benefit in making the order, and one can’t make such an order without being satisfied that it is better than making no order.

29…the judge erred in making the assumption he did that if he made an adoption order the effect of section 1(5) of the 1981 Act would be that MW would automatically acquire British citizenship. When the matter was before the judge, MW was already aged 18 and hence was no longer a “minor” as defined for the purposes of the 1981 Act. Therefore, if an adoption order had been made it would not have had the effect of automatically conferring British citizenship on MW. Once this is appreciated, the only benefit in terms of the welfare of MW associated with adoption identified by the judge drops out of the picture. There is no good reason to warrant the making of an adoption order in this case, and it is on this basis – different from the reasoning of the judge – that the appeal must be dismissed.

  1. Mr Rudd, for FAS, sought to argue that even though MW would not automatically become a British citizen if an adoption order were made, nonetheless it would greatly assist him in making an application for leave to remain in reliance on his rights to respect for his private and family life under Article 8 of the European Convention on Human Rights and the Human Rights Act 1998 if the court had recognised his family connection with FAS by making the adoption order, and that this should be treated as a factor indicating that the making of such an order would promote his welfare. If MW obtained discretionary leave to remain, and such leave were sustained over some years, he might become a British citizen by that route.
  2. In my judgment this argument is unsustainable. Such family and private life as MW has established in the UK by living with FAS was formed at a time when it was known that he had only a very limited right to remain in the UK as a visitor for a few weeks, and hence was precarious. Any adoption order would be made after MW became an unlawful over-stayer and was known to be such. On the ordinary principles applicable under Article 8, in a case affected by precariousness of this kind it is only in exceptional circumstances that a right to remain could be established on the basis of private or family life (see e.g. R (Agyarko) v Secretary of State for the Home Department [2015] EWCA Civ 440 at [28]), and there are none here. MW has no prospect of being granted leave to remain on the basis of Article 8 in exercise of the Secretary of State’s discretionary immigration powers, so this factor cannot justify the making of an adoption order in relation to MW.



The Court of Appeal thus achieving the unusual outcome of sending every single person in the Court room away being deeply unhappy about what was decided. Absolutely nobody would have been happy or even content with this.

NRA and Others 2015 (the Charles J DoLS case)

The NRA is often in the news, generally after some terrible incident in an American school and usually positing the opinion that if only everyone on the scene had had a firearm rather than just the sociopathic person shooting everyone nothing bad would have happened.  This is a different NRA. So if you have come here looking for the National Rifle Association (hi Piers, bye Piers) then you’re in the wrong place.


This is Charles J’s decision in a group of linked cases designed to test whether in a case where a vulnerable person’s liberty is being deprived as a result of their care package, that person HAS to be represented. The President, said no, we could distinguish between cases where the deprivation is contentious (when they should be represented) and where it is not contentious (where a streamlined fast-track system could be in place where there might not even be a hearing)


This came before Charles J as a result of the District Judge who had first got the linked cases realising that this was a real can open, worms everywhere scenario   , described by me here


This is chief is a pragmatic engineering solution to the huge mountain of such Deprivation of Liberty cases that are going to come before the Courts as a result of the Supreme Court in Cheshire West broadening out the criteria of what consituted a deprivation of the person’s liberty.

Thus, if you don’t do Court of Protection work, you need read no further, and that may be a relief to you, because the thing that most lawyers know about Charles J is this gem from the Court of Appeal in Jones v Jones 2011 :-


The appeal judge quoted from an article in the magazine Family Law by Ashley Murray, a Liverpool barrister. This began:

“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.”

Lord Justice Wilson commented: “Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite.”


Of course, I have no views on this whatsoever, and merely report the judicial decision of the Court of Appeal in that regard.  I may, however, have prepared a small packed lunch, put on a warm coat and ironed my Welsh flag before I sat down to tackle the judgment in NRA and Others 2015.


Charlton Heston of the NRA is asked by Dr Zaius to re-read a Charles J judgment

Charlton Heston of the NRA is asked by Dr Zaius to re-read a Charles J judgment



My mission-statement (sorry I just shuddered) when I began this blog is “I read it, so you don’t have to”.  I have been putting off this particular task for quite some time.

As I outlined, the President had arrived at a two track process – where P (the vulnerable person) would only be represented in a deprivation of liberty case where the deprivation or the plan was contentious.  However, when the Official Solicitor in the case appealed that decision, the Court of Appeal had two things to say – firstly that it hadn’t even been a decision so there was nothing to appeal, but secondly that P should ALWAYS be represented.


These cases were then the first raft of non-contentious cases that were run as test cases to work out what the hell was going on. It had become really apparent that the Official Solicitors office, who normally represent P would be utterly overwhelmed by demand and that the practical implications of following the Court of Appeal’s guidance (since it is obiter and not ratio) would be to grind the whole system to a halt, and more importantly make it impossible for P to be represented in a contentious case.

So there were a few questions

Should P always be represented?  Could P be represented by a litigation friend instead of the Official Solicitor? Would that litigation friend be able to speak in Court if they didn’t have rights of audience?

Re NRA and Others 2015

If I tell you that the judgment contains 269 paragraphs, and that a full 16 of them come under the sub-heading of “Flaws and gaps in the reasoning of the Court of Appeal”  you get much of the flavour of the whole thing without having to read it all.  A state of affairs for which I envy you.


It is a curious thing, and a dreadful position for the Judge to be placed in. To make this decision right in law, and respect the well-established principle of Winterwerp v Netherlands  1980 is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty” …    and the Court of Appeal’s steer which though NOT binding could honestly not have been clearer, the Judge would have to break the Court of Protection system. Barely any case would be heard and injustice done to thousands of cases. The alternative was to take the pragmatic engineering solution of  “This can’t work if we insist on P always being represented, so we’re not going to do that”.   However, it has to be legally dressed up so that it at least looks as though it can withstand an appeal.


Charles J makes the following conclusions, which he thankfully summarises at the end


A brief summary of my conclusions is that:

(1) P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.

(2) In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative. As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.

(3) I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.

(4) In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.

(5) I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.

(6) In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.

(7) That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either

i. the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or

ii. joining P as a party.

(8) So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.


He also ruled definitively that a litigation friend can, if appointed by the Court, be given the power to conduct litigation


Gregory v Turner [2003] 1 WLR 1149, at paragraphs 50 to 58, it is common ground that if and when the court appoints such a litigation friend:

i) it can also give him or her a right of audience and the right to conduct litigation in relation to those proceedings (see Paragraphs 1(2)(b) and 2(1)(b) of Schedule 3 to the 2007 Act),ii) it can remove those rights, and further and alternatively

iii) it can end the appointment of the litigation friend (see COP Rules 144 and 140).


[He described the arguments to the contrary made by some of the parties as ‘arid’.  I can’t think of anything to say about that which isn’t churlish, so let’s move on. ]

And that conducting litigation can include anything that P could do themselves as a litigant in person if only they had capacity – so definitively, if a Court appoints a litigation friend and grants them the right to conduct litigation, they can do everything – they can deal with correspondence, draft a statement and address the Court. They can be given rights of audience, even though they would not be someone who has them.


I have mixed feelings about this decision – it was an impossible position for the Judge to be in. To make a fair decision would have broken the Court of Protection and caused far more harm to all of the vulnerable people who require its services. On the other hand, I just agree with Winterwerp and feel that if someone is being locked up even if it is ‘for their own good’ they should have someone speaking on their behalf and making such points as ought to be made.

The only thing I would say is that by setting out a huge section entitled “Flaws and gaps in the Court of Appeal’s reasoning”,  we now have a pretty solid indicator that if a decision is made relying on this judgment and someone intends to appeal it, the Court of Appeal are going to be rather interested in getting to grips with it. That really just places even more uncertainty into an area of the law which has been nothing but uncertainty ever since the President first encountered the words “Cheshire West”

The Law Commission reforms of deprivation of liberty can’t come soon enough.



Should Mr Heston be represented here? Does the net satisfy the Cheshire West 'acid test'?

Should Mr Heston be represented here? Does the net satisfy the Cheshire West ‘acid test’?

An unmusical Mozart – a patient’s right to say no to surgery


The Court of Protection dealt with a challenging case in Wye Valley NHS Trust v B 2015. The case was decided by Mr Justice Peter Jackson, and as ever he brings analysis, kindness and humanity to bear on a very difficult issue in the Court of Protection.


Here a man who clearly lacked capacity to make a fully informed decision, had expressed extreme hostility towards having an operation to amputate his foot. The medical professionals were clear that if he did not have his foot amputated, that the infection in it would spread and eventually kill him.


The Court had to decide whether it was in the man’s best interests to have the operation against his will or whether it was in his interests to respect his autonomy and wishes even though it would have adverse consequences.

A person who has capacity to understand the medical advice and risks and consequences would be able to say no to surgery in any event. What the Judge had to do here was consider what weight to give to the man’s wishes and the context of those wishes being expressed by a person who did not have the capacity to fully weigh up the pros and cons.


  1. Where a patient lacks capacity it is accordingly of great importance to give proper weight to his wishes and feelings and to his beliefs and values. On behalf of the Trust in this case, Mr Sachdeva QC submitted that the views expressed by a person lacking capacity were in principle entitled to less weight than those of a person with capacity. This is in my view true only to the limited extent that the views of a capacitous person are by definition decisive in relation to any treatment that is being offered to him so that the question of best interests does not arise. However, once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.
  2. This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an “off-switch” for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view.
  3. In this case, the Trust and the Official Solicitor consider that a person with full capacity could quite reasonably decide not to undergo the amputation that is being recommended to Mr B, having understood and given full thought to the risks and benefits involved. However, the effect of their submissions is that because Mr B himself cannot balance up these matters in a rational way, his wishes and feelings are outweighed by the presumption in favour of life. It is, I think, important to ensure that people with a disability are not – by the very fact of their disability – deprived of the range of reasonable outcomes that are available to others. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront that it would be to others who are more fortunate.
  4. In some cases, of which this is an example, the wishes and feelings, beliefs and values of a person with a mental illness can be of such long standing that they are an inextricable part of the person that he is. In this situation, I do not find it helpful to see the person as if he were a person in good health who has been afflicted by illness. It is more real and more respectful to recognise him for who he is: a person with his own intrinsic beliefs and values. It is no more meaningful to think of Mr B without his illnesses and idiosyncratic beliefs than it is to speak of an unmusical Mozart.
  5. Further, people with Mr B’s mental illness not uncommonly have what are described by others as “religious delusions”. As appears below, he describes hearing angelic voices that tell him whether or not to take his medication. Delusions arising from mental illness may rightly lead to a person’s wishes and feelings being given less weight where that is appropriate. However, this cannot be the automatic consequence of the wishes and feelings having a religious component. Mr B’s religious sentiments are extremely important to him, even though he does not follow an established religion. Although the point does not arise for determination in this case, I approach matters on the basis that his Article 9 right to freedom of thought and religion is no less engaged than it would be for any other devout person.
  6. This is another manifestation of the principle that the beliefs and values of a person lacking capacity should not be routinely undervalued. Religious belief has been described as a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science: R (Hodkin and another) v Registrar General of Births, Deaths and Marriages [2014] AC 610 at [57]. Religious beliefs are based on faith, not reason, and some can strongly influence the believer’s attitude to health and medical treatment without in any way suggesting a lack of mental capacity. Examples include belief in miraculous healing or objections to blood transfusions. There may be a clear conceptual difference between a capable 20-year-old who refuses a blood transfusion and an incapable elderly man with schizophrenia who opposes an amputation, but while the religiously-based wishes and feelings of the former must always prevail, it cannot be right that the religiously-based wishes and feelings of the latter must always be overruled. That would not be a proper application of the best interests principle.
  7. Having commented on the process of evaluating wishes and feelings, I refer to the Law Commission’s current consultation paper No. 222: Mental Capacity and Deprivation of Liberty. It proposes [Proposal 12.2] that s.4 of the Act might be amended so that an incapacitated person’s wishes and feelings should be assumed to be determinative of his best interests unless there is good reason do depart from the assumption. It is said [12.42] that there is insufficient certainty about the weight to be given to a person’s wishes and feelings and that prioritising them would reflect to some degree the approach of the United Nations Convention on the Rights of Persons with Disabilities.
  8. In the above discussion, I have identified some of the circumstances in which the wishes and feelings of incapacitated individuals might be unjustifiably undervalued. However, my respectful view is that the Law Commission proposal would not lead to greater certainty, but to a debate about whether there was or was not “good reason” for a departure from the assumption. To elevate one important factor at the expense of others would certainly not have helped the parties, nor the court, in the present case. All that is needed to protect the rights of the individual is to properly apply the Act as it stands.


For my part, I think that the proposal by the Law Commission would be a beneficial addition for dealing with these cases, putting a rebuttable presumption that a person’s expressed wishes should be followed unless there are strong reasons for the contrary. Whilst many Court of Protection Judges (including this one) have a very healthy respect for autonomy and the wishes of the patient, some still tend to veer towards the wrapping P in cotton wool and the patrician approach.


Lastly, I refer to the principle at s. 4(4) that so far as is reasonably practicable, the person must be permitted and encouraged to participate as fully as possible in any decision affecting him. In this case, given the momentous consequences of the decision either way, I did not feel able to reach a conclusion without meeting Mr B myself. There were two excellent recent reports of discussions with him, but there is no substitute for a face-to-face meeting where the patient would like it to happen. The advantages can be considerable, and proved so in this case. In the first place, I obtained a deeper understanding of Mr B’s personality and view of the world, supplementing and illuminating the earlier reports. Secondly, Mr B seemed glad to have the opportunity to get his point of view across. To whatever small degree, the meeting may have helped him to understand something of the process and to make sense of whatever decision was then made. Thirdly, the nurses were pleased that Mr B was going to have the fullest opportunity to get his point across. A case like this is difficult for the nursing staff in particular and I hope that the fact that Mr B has been as fully involved as possible will make it easier for them to care for him at what will undoubtedly be a difficult time.


[that noise you can hear is me applauding]


The Judge sets out the pros and cons of the best interests decision very well – the judgment is short, and well worth a read for those sections.

  1. Conclusion
  2. Having considered all of the evidence and the parties’ submissions, I have reached the clear conclusion that an enforced amputation would not be in Mr B’s best interests.
  3. Mr B has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century. He is a sociable man who has experienced repeated losses so that he has become isolated. He has no next of kin. No one has ever visited him in hospital and no one ever will. Yet he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his “fierce independence”, and it is this that is now, as he sees it, under attack.
  4. Mr B is on any view in the later stages of his life. His fortitude in the face of death, however he has come by it, would be the envy of many people in better mental health. He has gained the respect of those who are currently nursing him.
  5. I am quite sure that it would not be in Mr B’s best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone’s behalf and just fighting them. Enforcing treatment in this case would surely be the latter.
  6. The application, which was rightly brought, is accordingly dismissed.
  7. I conclude by thanking the parties and witnesses for the quality of their contributions and by paying tribute to the high standard of care and treatment that Mr B is now receiving.


No winners here only losers


The Court of Appeal dealt with an intractable contact case in Re Q  a child 2015


In this case, which involved a boy aged 8, and private law contact proceedings that have now been going on since May 2008, some seven years and almost his entire life. The boy lives with his mother and the father had not been able to have meaningful contact since the parents separated in February 2008.

The trial judge, His Honour Judge Brasse, reached the following conclusions

In his judgment, Judge Brasse set out that:

      1. “the conclusion that the court has come to on the basis of having heard and read a huge amount of evidence over those years is this:
  • the father is well disposed towards his son and has never done him any deliberate harm;
  • the allegations against the father are manifestly false;
  • the recent allegations made by the child against the father are so incoherent that it is difficult to formulate any single consistent charge against him;
  • the evidence in my judgment is overwhelmingly in support of the view that this child has been influenced by the mother’s hostility towards the father. She has demonstrated by the presentation of her case over and over again that she is only willing to hear from this child what supports her view, and ignores those parts of his presentation which does not.”


We don’t know what those allegations are, but can probably guess at their approximate nature. The important thing is that after seven years of litigation the wealth of evidence before the Court was such that it was clear that false allegations had been made against dad in order to thwart his contact and that father would be perfectly safe to have contact.


Sadly, as a result of this behaviour by the mother, the Judge was also of the view that ordering contact to take place now would also harm the child. He set out, rather mournfully, the possible options before the Court


  1. He set out events since his previous judgment on 9 January 2014. He identified the four options before him:

    i) To order the mother again to allow contact: He rejected this, accepting KD’s advice that it would, for reasons he identified, be harmful to Q.ii) To order a section 37 report and engage the help of the local authority: He agreed with KD’s view that, for reasons he set out, this would be highly likely to cause Q harm. Moreover, as he commented, to go down this route would be both undesirable and unnecessary; undesirable because it would prolong the proceedings and unnecessary because he could make an order today – a specific issue order – which would achieve exactly the same thing.

    iii) To bring the proceedings to an end without further order: He described this as the counsel of despair.

    iv) To enlist the assistance of the Violet Melchett Centre.

  2. In relation to option (iii), Judge Brasse said this:

    “The third possibility is the counsel of despair – that is that notwithstanding the harm which I have found as a fact to have been caused to this child by the mother’s influence, and the harm that he would suffer from not being able to develop a relationship with his father, which I have also found, the course of least harm would be to bring these proceedings to an end without further order. That would leave Q living with his mother, who provides well for him materially and educationally and, apart from supporting the relationship with his father, provides a loving atmosphere for the child too.

    [Counsel] submits on behalf of the father that that would leave Q with an entirely false view of his father as some kind of monster; that would do huge harm to Q in the long term, because Q as he grew older would reflect that part of his biological inheritance comes from a person who is that horrible. He would have no sound or realistic understanding of his identity because he would be cut off from his father and his father’s family. With all that I agree. But, once again, at this juncture to force a child against his wishes into contact sessions would cause just an aggravation of the harm which was manifest in the reports the court received.”

  3. In relation to option (iv), Judge Brasse said:

    “The fourth possibility which was foreshadowed in the guardian’s position statement but developed in the course of argument was that as the child has been seriously emotionally harmed (I would attach the expression, “significantly emotionally harmed”), as a result of the care he has received – that not being what it would be reasonable to expect a parent to give him – some affirmative action should be taken to address the harm and, if possible, reverse it. As, in the guardian’s view, removal of the child from the mother’s care is not a reasonable option, if this child’s welfare is to be protected and safeguarded, then at the very least the court should ensure he receives psychological intervention.

    And there, it was submitted, appeared a glimmer of hope. The Violet Melchett Centre is a well-established NHS resource staffed by very experienced people who have, over the decades, helped children who have been harmed as a result of parental conflict. This child, I have found as a fact, has been significantly harmed as a result of parental conflict. The Centre can offer help of an effective kind if the parents themselves are willing to participate. Here, [the mother] is. She has said so in terms to this court. Further, she has agreed that she would not place any impediment in the way of [the father] to participate in that therapeutic process if he wished; and, thirdly, it would be possible to ensure that the therapists were provided only with, as I put it, “neutral” information …

    The object of the sessions at the Violet Melchett Centre would be, as I have said, to repair the emotional harm; possibly if the therapist thought this was helpful, to promote communication between the parents of a helpful kind; and possibly to revive the seriously damaged relationship between the child and his father.

    Violet Melchett have informed the guardian they would not start work until these proceedings have come to an end, because the continuation of the proceedings cause an additional stress for the child which is out of their control.”

  4. The judge’s overall conclusion was summarised in these two paragraphs:

    “I find the child, as I have explained, has suffered significant emotional harm which continues to go unaddressed while he is living in an atmosphere which is so hostile to his father, and I find that there is clearly a case that this child needs therapeutic intervention as he is unlikely to recover from the emotional harm unless such steps are taken. I am persuaded that he needs a cessation of these proceedings for that therapeutic intervention to be effective.

    … So my conclusion is that I shall make a specific issue order, and I shall order that both parents co-operate in the referral of this child to the Violet Melchett Centre for an assessment of his emotional and psychological wellbeing, and for such treatment as the staff at the Violet Melchett Centre recommend.”



Somewhat surprisingly, the mother had expressed a willingness to participate. The difficulty that the Judge found himself in, having dealt with options three and four in the way he had, was to be told that the staff at the Violet Melchett Centre had a clear view that in order to meaningfully work with the family, the court proceedings had to come to an end.  That of course meant that the proceedings, which had lasted seven years and where mum had tried to thwart dad having contact or a contact order would end with no order about future contact.

Understandably, dad appealed this decision, feeling that it flew in the face of fairness and the principles that the Court ought to not give up on contact without properly exhausting all of the options.


  1. Inevitably in these circumstances the debate before us, putting it in legal terms, has focused on the intersection between two sets of principles.
  2. The first are the principles which I sought to distil in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, para 47, as follows:

    “• Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

    • Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.

    There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

    • The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

    • The key question, which requires ‘stricter scrutiny’, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

    • All that said, at the end of the day the welfare of the child is paramount; ‘the child’s interest must have precedence over any other consideration.'”

  3. The most recent in-depth analysis of the case-law is to be found in the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999, [2013] 1 FLR 494, to which we were referred. He drew attention to the decision of the Strasbourg court in Gluhakovic v Croatia (Application number 21188/09) [2011] 2 FLR 294, para 57, to the effect that obligation upon authorities, including the court, is not absolute and, whilst authorities must do their utmost to facilitate the cooperation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms, of all concerned must be taken into account, and more particularly so must the best interests of the child.
  4. The other principles relate to case management. We were taken to my judgment in Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, paras 14-15:

    “14 … These … are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

    15 The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.”

  5. We were also taken to the observations of Wall LJ in Re H (Contact: Domestic Violence) [2005] EWCA Civ 1404, [2006] 1 FLR 943, para 106:

    “Of course, an experienced judge can cut corners and make substantive orders on short appointments. But if a judge is to take that course, he must be very sure of his ground, and demonstrate clearly that he has taken all relevant considerations into account.”

  6. The father’s case, as formulated by counsel then acting for him in the skeleton argument to which I have referred, can be summarised as follows:

    i) There was procedural irregularity: The essential argument is that Judge Brasse was wrong summarily to determine the application and to bring the proceedings to an end at a one-hour review hearing without hearing oral evidence from the parties, allowing cross-examination of the guardian and allowing the father to cross-examine the mother as to her alleged commitment to therapy. What he should have done, it is said, was list the matter for a further contested hearing on oral evidence. It is submitted that Judge Brasse went outside the permissible as contemplated in Re C (Family Proceedings: Case Management) and fell into the trap identified in Re H (Contact: Domestic Violence). Amongst a number of supporting arguments, it is pointed out that there had been no evidence from the parties, written or oral, since 2012. Stress is laid on the assertion that the potential consequence for Q of not making a child arrangements order is the loss of his relationship with his father.ii) Judge Brasse was wrong in bringing the proceedings to an end without making a child arrangements order: Given his own findings, he should have directed a section 37 report. He should have pursued the strategy he had set out as recently as January 2014 and again approved in June 2014. He failed to explain why he was departing so radically from a strategy so recently approved. In support of the argument that his decision was simply wrong, stress is understandably laid on the judge’s own findings, on the one hand damning of the mother, on the other hand, acknowledging the facts that contact presents no risk to Q, has almost always been positive for him and would be damaging for Q if terminated.

    iii) In the circumstances, and having regard to all these matters, the process has not been compatible with the father’s Article 6 and Article 8 rights.

  7. The father supplemented these legal arguments with his own powerful submissions that Q was growing up, as Judge Brasse recognised, in a household where he was being fed a completely distorted view of his father; that he (the father) had, unlike the mother, done everything asked of him; that Q was being denied a relationship not merely with his father but with his wider paternal family, and was thereby being denied that part of his heritage; and that the mother was selfishly motivated to monopolise her son. He said that he had never asked for Q to be removed from his mothers care. He submitted that the judge ought to have treated the mother as a vexatious litigant. The time had now come when the judge should have been prepared to consider a change of residence, at least until such time as the mother was prepared to facilitate contact. He asked us to remit the matter for a final hearing, with evidence


The Court of Appeal, however, felt that His Honour Judge Brasse had done the right thing in this case.


  1. In my judgment, Judge Brasse, faced with an almost impossible situation, took a course which was not merely open to him but which was, in reality, probably the only course that stood the slightest chance of achieving what was so pressingly needed – the resumption of Q’s relationship with his father.
  2. The judge was acutely conscious of the desperate position in which Q and his parents now find themselves. He was, rightly, unsparing in his criticism of the mother and unflinching in his analysis of the harm she was causing Q. But he was faced with what he realised was the reality, that the strategy he had hitherto adopted had not worked, in circumstances where, moreover, there was no reason to think that this strategy would work in future. He was realistic in his appraisal, securely founded in the materials before him, that any further attempt to enforce contact by force of law was almost bound to fail and, at the same time, be harmful to Q. He was, in my judgment, entirely justified in concluding that a further hearing, with or without a section 37 report, was most unlikely either to tell him anything he did not already know or to bring about any change in parental attitudes. He was sensible in thinking that therapy might achieve what all previous interventions had failed to achieve and justified in deciding that this was the best way forward. It was, after all, something that had been recommended in the past by Dr CL. He was plainly entitled to accept the advice of the Violet Mechett Clinic, as commended to him by the guardian, and repeated by Dr JP more recently, that therapy required a cessation of the proceedings.
  3. In my judgment, it is quite impossible for us to interfere with Judge Brasse’s decision. He was entitled to decide as he did and for the reasons he gave. Indeed, I would go further: I suspect that if I had been where he was I would have come to precisely the same conclusion.
  4. In my judgment, in deciding to proceed as he did, Judge Brasse was acting well within the latitude afforded him by the principles explained in Re C (Family Proceedings: Case Management) and he did not offend the principles set out in Re C (A Child) (Suspension of Contact). His decision to proceed as he did was not premature. He was not abdicating his responsibility to do everything in his power to attempt to promote contact. He was not abandoning the ongoing judicial duty to reconstitute the relationship between Q and his father. He was engaging with an, albeit non-judicial, method which he hoped might prove effective where merely judicial methods had failed. The very terms of his order, as I have set it out, show that he contemplated a future role for the court. I reject the complaint that there has been a breach of either Article 6 or Article 8.
  5. It was for these reasons that I agreed with my Lords that the appeal had to be dismissed.



In short that all legal solutions to the case which had a chance of working had been tried and had not worked, and the Judge was right to have looked outside of the legal system for a solution.

The Court of Appeal then delivered a very powerful message to the mother – let us hope that it did not fall upon deaf ears


I would not want the mother to think she has won. She has not. There are no winners here, only losers. Q is far and away the greatest loser – and that, in overwhelming measure, is because of his mother’s behaviour. I urge her again, as I urged her during the hearing, to reflect on Judge Brasse’s findings. They are an indictment of her parental failings hitherto. She, and Q, now stand at the cross-roads. It is vital, absolutely vital, that she participates, with Q and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. Sooner or later, and probably sooner than she would hope, Q will discover the truth – the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.



Funding of intermediaries

[See last blog]


An email came to me suggesting that it could be argued that rather than the Legal Aid Agency paying for the intermediary, it could come from HMCTS. I.e the Court pays.

Thinking of it in that way, it occurred to me that the President had floated in Q v Q the idea that HMCTS paying for a lawyer for an unrepresented person was analogous to HMCTS paying for interpreters or intermediaries. But I knew that the final conclusion in Q v Q was appealed when HH J Bellamy made such an order in Re K and H. So, does perhaps the Court of Appeal decision in Re K and H 2015 give us an answer on this?

I think that it does.


  1. As we have seen, in reaching his conclusion, the judge was influenced by the fact that HMCTS meets the cost of interpreters, intermediaries and the preparation of court bundles under the Financial Resources Regulations. He said that these are “aspects” of “representation” within the meaning of section 42 of LASPO. Section 42 defines “representation” as meaning “representation for the purposes of proceedings” and includes “the advice and assistance which is usually given by a representative in the steps preliminary or incidental to proceedings”. He considered that by analogy, HMCTS has the power to meet the cost of legal representation.


  1. I do not accept that interpreters or intermediaries are “representatives” within the meaning of section 42, still less that they provide the services of a legal representative. In In the Matter of D (a child) (No 2) [2015] EWFC 2, Sir James Munby said at para 17:


“The cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of ‘representation’ but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37 and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, paras 26-27.”


  1. I agree with this. Nor do I see how the fact that HMCTS funds the preparation of court bundles from time to time sheds any light on whether the court has power to require HMCTS to fund the cost of legal representation.



For me, that seems to settle it. The LAA should not be asked to fund an intermediary, but instead it should fall on HMCTS. Re D is binding on most Courts as a High Court authority, and given that the Court of Appeal looked at it in Re K and H and agreed, it binds just about everyone.    The Court of Appeal specifically AGREED that the cost of funding an intermediary in Court properly falls on HMCTS.


So having identified a problem, I’ve accidentally solved it.

What I don’t yet know is whether the Court has a duty to provide the intermediary once a recommendation is made or whether the Court could press on without one. (remembering that whilst an expert recommends something, it is ultimately a matter for the Judge whether to accept that recommendation).

I don’t think that a Judge could say “I agree with Dr Nolan that an intermediary is required, but I am not going to order one because of X”  but that a Judge COULD say “Dr Nolan says that an intermediary is required – I have decided that it is not required because of X”.     It always makes me a bit uncomfortable the notion that a Judge (who is ultimately employed by HMCTS and to some extent accountable to them) has to decide whether HMCTS should incur expenditure.




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