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Author Archives: suesspiciousminds

Judicial baggage

 

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

 

Emerald Supplies Ltd v British Airways 2015

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

 

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

 

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

 

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

 

 

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

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

 

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

 

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

 

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

 

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

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

 

The Judge goes on

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

[hmmm]

 

 

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

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

 

 

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

 

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

 

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

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

 

 

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

 

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

 

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

 

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

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

 

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

 

 

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

 

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

“THE JUDGE: Looked at them?

MS TOCH: Your honour has….Yes.

THE JUDGE: Just glanced?

MS TOCH: No, your honour.

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

 

 

Oh boy. And again

 

 

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

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

THE JUDGE: But he recommended that contact be supervised.

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

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

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

THE JUDGE: Do you think –

MS TOCH: It is a matter for the court.

THE JUDGE: We are not going to get –

MS TOCH: I am sorry.

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

MS TOCH: Yes.

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

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

THE JUDGE: Do you think it is right –

MS TOCH: – on submissions.

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

MS TOCH: I am not saying it will.

THE JUDGE: Yes or no?

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

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

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

THE JUDGE: Look –

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

THE JUDGE: No, I know.

MS TOCH: I am not calling him.

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

MS TOCH: Yes.

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

MS TOCH: I am sorry.

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

MS TOCH: I am sorry.

THE JUDGE: You must answer my questions.

MS TOCH: I will, yes.

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

MS TOCH: No.

THE JUDGE: Thank you.

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

THE JUDGE: I am so grateful to you.

MS TOCH: Yes.

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

MS TOCH: No.

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

MS TOCH: He –

THE JUDGE: Yes or no?

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

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

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

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

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

THE JUDGE: Yes, good.

MS TOCH: Yes.

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

 

[Erm, I think perhaps you were]

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

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

 

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

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

 

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

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

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

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

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

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

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

MS TOCH: Yes.

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

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

 

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

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

 

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

 

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

 

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

 

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

 

….

 

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

 

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

 

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

 

And so the appeal on unfairness was comfortably made out.

The Court of Appeal did try to soften the blow

 

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

Sibling rivalry

 

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

 

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

 

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

 

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

 

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

 

 

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

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

 

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

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

 

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

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

 

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

 

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

 

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

 

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

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

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

 

 

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

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

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

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

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

 

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

 

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

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

 

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

 

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

 

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

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

 

Couple “too old” to look after their granddaughter

I saw this case break in the Telegraph  http://www.telegraph.co.uk/news/uknews/law-and-order/11754837/Couple-told-they-are-too-old-to-look-after-their-granddaughter.html   where the line was that grandparents who were able, willing and capable of looking after their grand-daughter were turned down on the basis of their age and the child would be adopted.

 

That immediately didn’t sound right. It had the immediate ring of “I think that you’ll find its a little bit more complicated than that”.   [If you do find yourself being outraged and appalled by a case and you haven’t actually read the judgment, that’s usually a safe answer.  Of course, there are cases where reading the judgment actually does appall you at the scandal that’s gone on, but at least you are now being appalled on an informed basis]

 

That would fall extremely short of the legal tests involved, and you can see from the Telegraph article that they do include the comment from the Social Services department involved, who said flatly that age was not the deciding factor in the case.

 

The judgment is now available and people can see it for themselves

 

Re C 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B99.html

 

You can see that the grandparents made an application to Court, to challenge the assessment done of them that did not recommend that they could care for the child. The Court heard from them, including hearing evidence from the grandfather (who sounds like a thoroughly nice man, to be honest).  The Court then applied the statutory tests and the case law guidance to whether they should have that application granted and whether the child could live with them, or whether adoption was the right way forward.

 

Additionally, you can see that whilst the Judge does mention the age of the grandparents, it is mentioned in passing rather than being the reason for the decision.

 

The reason for the decision, very simply, was that the mother had considerable mental health difficulties, including cutting herself in front of the child, that the mother had a very difficult relationship with the grandparents and that they were not going to be able to shield the child from these things.

 

The main concern however it seems to me is the fact that this family would be in my judgment completely unable to cope with the triangular relationship of C, M and the grandparents. Mr G expressed in evidence that he hoped that his daughter was going to recover her mental health, that she had had some recent treatment that over the next four years might lead to her mental health recovering. I very much hope that that is the case and it may well be right, but he was very clear that he was going to continue his relationship with his daughter and indeed he is to be commended for that. He said he saw her yesterday. I just cannot envisage how the triangular relationship can possibly work. Dr Martinez in her report expresses the concern that mother is unable to bring up C because she is likely to expose C to extreme behaviours – ‘scary situations’ is the word she uses – and she is referring to the incident in January when M in front of C self-harmed, cutting herself, and C was clearly in a scary situation witnessing her mother bleeding. That is exactly the type of situation which Dr Martinez envisages recurring and which puts C at the risk of significant harm if she were to be placed with her mother. If I were to envisage C being placed with her grandparents it seems to me that it is only a matter of time before C is put in that situation again. This is because of the conflict which the grandparents will experience in their meetings with their daughter, who they will not be able to turn away and in the conflict that is likely ultimately to create and which C is inevitably going to experience. Their personal circumstances are not ideal but ultimately it is that relationship which it seems to me makes it impossible for their application to succeed. Given the disruption to the local authority Care Plan against the likelihood of success of their application, I am afraid that I have no hesitation in saying that that application should therefore be dismissed.

 

Now, you may agree or disagree that this is a valid reason for saying no to these grandparents; but it certainly isn’t a decision that was made because of their age.

I don’t fault the grandparents at all for this – Courts can be confusing and scary places, and Judges use language and concepts that aren’t commonplace for ordinary people. Add to that, that of course this was an emotionally charged hearing and it is little surprise that the grandparents left not completely understanding all the reasons why the Judge said no to them, and that they got the wrong end of the stick.

Nor do I blame the journalist  – if the judgment had borne out what the grandparents said, that a Court had ordered that the child be adopted purely because the grandparents were too old, that would be a miscarriage of justice and a scandal worth reporting.  Of course, the journalist did have the clear rebuttal from Social Services that the case wasn’t about age, but also they had the comments from the solicitor engaged to represent these grandparents in an appeal  (which I doubt has any legs at all).  So it is not the flaw we often see in the Telegraph of the story having a single source – the journalist here did try to get multiple sources and to stand the story up.

You could make a criticism that the journalist didn’t try to get the judgment from the Court or wait for it on Bailii, but I think that’s to confuse the worlds of law and journalism.  Firstly, news stories are time sensitive. If the Telegraph waited for it to be published, they could have missed the scoop element that they had. And secondly, given that most lawyers can’t get an answer out of the Court service, what makes you think a journalist enquiring about “there’s been this case, I don’t have the case number, but can I have an anonymised copy of the judgment” is going to get any better response.

So I think it was okay for the Telegraph to run the story.  The problem, however, is that the Telegraph’s version of the story – that social workers and Courts rule people out just based on age, is the one that fluorishes and replicates and spreads, and the actual truth that the reasons for the decision were based on a Judge’s assessment of their ability to keep the child safe from mother, won’t get out there.

It is really important in care proceedings that family members who are able to help out, support the parents and ultimately offer a home if the parents can’t do it, come forward and aren’t put off. So, the story here spreads a myth that simply isn’t true.

I do appreciate that newspapers don’t exist solely as a vehicle to communicate the truth. They have to sell copies, they have to get clicks on their articles, they have to exist as a commercial venture. If they print articles that are factually accurate but that nobody wants to read, then the advertisers who want to sell their conservatories, plates with Princess Diana on them,  safes disguised as baked-bean tins, and mustard coloured polyester slacks*, won’t be placing those adverts.

I can’t actually work out a sexy way for the Telegraph and other news outlets to tell this story and correct the myth.  The best I can do is “Family Courts do still screw up from time to time, but they didn’t on this occasion. Sorry”   – and even I probably wouldn’t read that article.

[* Other products are, I’m sure, advertised in the Telegraph , and that’s just the sort of flippant generalisation and stereotyping that I would criticise them for when writing about social workers wearing corduroy trousers and knitting their own muesli.  It was just a cheap gag…   – now,  if you want to find “cheap gags” in the advertising section of a publication you are looking for something in the newsagents on an entirely different shelf to the Telegraph]

“We’d like to know a little bit about you for our files” :- How long can Social Services hold onto records ?

Warm applause to the first person who gets the reference right.

I had not been aware that this issue was even being ventilated, so I read this judgment with a degree of nervousness, particularly when I got to the passages suggesting that a Local Authority would need to go through all of their records and throw out the ones older than six years.

 

C, R (on the application of) v Northumberland County Council 2015

http://www.bailii.org/ew/cases/EWHC/Admin/2015/2134.html

 

This was a judicial review of Northumberland’s policy on how long it would keep social work records. The claimant had been arguing that he and his family had been mistreated by Social Services and wanted his records to be destroyed.   (Northumberland agreed to this, but the judicial review continued on the basis of public policy rather than harm to the particular individual).

It occurs to me that in destruction of the records, one of course also destroys those bits of the records that say that the claimant was exonerated, and that might not be ideal.

 

The policy is specifically to retain the records for 35 years after the case is closed, unless the child is or becomes looked after (in which case the retention policy is 75 years from the date of birth) or adopted (in which case the retention period is 100 years from the date of the Adoption Order).

 

The Claimant (and also the Information Commissioner) were arguing that this policy was Wednesbury unreasonable and hence unlawful.

They instead proposed that the files be kept until the child became 24  (i.e reaches the age of 18 and then allow for six years to pass, which is the period of time in which any civil claim can be brought for say negligence or vicarious liability).

 

[It is always nice to see someone who is in the role of bossing others about get some criticism, no offence to the good people of the Information Commissioner’s office, but the ‘counsel of perfection’ stuff does get irksome]

 

  1. The Information Commissioner’s view about the Retention Policy has changed. In a letter dated 2 July 2012, he wrote to the Claimant expressing the view that it was likely that the Defendant’s 35 years policy was compliant with the DPA and was lawful. In his submissions to the Court (dated 5 January 2015) he indicated a revised position, which is that the 35 year Retention Policy was unlawful and that it would only be lawful under the DPA for the information to be retained by the Defendant’s legal department, and then for only 6 years after the child in question turned 18 and for the purposes of defending itself against litigation, unless on the facts of any particular case, a shorter or longer period should apply.
  2. Although I accept that it is open to anyone to change their mind, or even change sides, and that sometimes the change may show that a party has thought with particular care about the issue and has concluded that it was wrong in its initial view, the change in position is striking.

 

 

I believe that the expression is 'reverse ferret'

I believe that the expression is ‘reverse ferret’

 

 

 

I do know that some LA’s have a policy like the one mooted by the Information Commissioner, others go with the 75 years for which adoption files must be kept by law, still others strike a compromise like Northumberland.  The stakes in this case were high then, since if the Information Commissioner and Claimant persuaded the Court that the files should be destroyed once the child was 24, then there would be a LOT of work to be done in going through old files and destroying them.

It also occurs to me, since I have worked many years ago on cases where foster carers were prosecuted for criminal mistreatment of children that happened in the 1970s, and of course, the revelations about sexual abuse including in residential children’s homes decades ago, that we might potentially be destroying very valuable and useful evidence.

 

The Judge sets all of this out, very carefully

  1. The third purpose of maintaining records relates to matters which may become the subject of investigations or inquiries in which retained information may become important. This was a matter addressed in the Policy Report at §§4.3 and 4.11. There are several types of proceedings which might call for this type of evidence.
  2. First, there are public inquiries. The most important is the current Independent Inquiry into Child Sexual Abuse, headed by Justice Lowell Goddard (‘the Goddard Inquiry’), whose wide-ranging task is to investigate the failures of various institutions to protect children from abuse over the past several decades.
  3. The Goddard Inquiry follows several other high-profile inquiries in recent years into the abuse or exploitation of children. These include one in Rotherham, whose remit was for the years 1997-2013, and Oxford, which investigated abuse as far back as 1999. A review by Peter Wanless and Richard Wittham QC into the extent of the Home Office’s knowledge of organised child abuse covered the years 1979-1999. One of the issues which has given rise to particular public concern is the existence and sufficiency of records; and, where records are no longer available, why this may be so.
  4. The Defendant argued that these inquiries are of fundamental public importance, and would be severely hampered if records were deleted in accordance with the Claimant’s or Information Commissioner’s proposed policy. This was a matter taken into account by Horner J in the JR60 case at [20] where, accepting this element of public interest, he referred to an Inquiry into Historical Institutionalised Child Abuse in Northern Ireland for the period from 1922 to the present day.
  5. The second type of enquiries are police investigations. Revelations about historic child abuse and exploitation give rise to criminal investigations, most infamously in the case of Operation Yewtree, led by the Metropolitan Police. This operation investigated allegations that well-known media personalities and others had engaged in criminal sexual activity, in some cases with underage and vulnerable people. Some of the crimes took place as long ago as 1967. Records of the neglect and abuse of children may be of significant interest to criminal investigators and prosecutors many years after the events themselves; and it is plainly in the public interest that critical evidence be preserved to enable justice to be done, whether this is by corroborating a victim’s allegation or exonerating someone who is wrongly accused.
  6. The third area of potential relevance is internal reviews. Local Authorities may have concerns about the provision of care and wish to review its procedures in order to make improvements. This is in keeping with their general duties to safeguard children’s welfare, as supplemented by the mandatory recommendations in Chapter 2 of the March 2015 Inter-agency Guide, referred to above. Old records may also be relevant to performance reviews or disciplinary proceedings relating to one or more employees, advancing not only the protection of children, but also public confidence in social services.

 

 

The Claimant and Information Commissioner then argued that whilst it might be necessary to hold SOME documents for many years, this should be the exception rather than the norm.

 

  1. The Claimant and the Information Commissioner accepted that there might be exceptional cases where the case files would need to be retained; but submitted that this could be done by forming a prospective view of their future utility at the end of the 6 year period which they advocated. In my view this approach would involve a cumbersome and time-consuming predictive exercise, which would necessarily err on the side of retention; and the argument overlooks the importance of one of the purposes for which the information is retained: its later use in order to analyse what may be a pattern or risk which can only be identified with hindsight, see Lord Sumption at [31] and Baroness Hale at [54] in Catt (above). The possibility of considering different retention periods for different files was considered and rejected for good reason in §§4.4 and 4.18 of the Policy Report.
  2. One of the unusual aspects of this case is that the Claimant is not advancing a case that his own circumstances highlight a particular deficiency in the Defendant’s Retention Policy. The challenge is made at a relatively high level of abstraction when compared, for example, with the challenge in JR60 case (above). Furthermore it relates to the storage of specific personal material in relation to a confined number of people, and for a particular and identified purpose. It is a very different to the Digital Rights Ireland case (above), where the Grand Chamber of the ECJ considered the impact of Council Directive 2006/24/EC which covered the retention of all traffic data relating to all electronic communication. Its conclusion that the Directive was inconsistent with Articles 7, 8 and 52(1) of the European Charter, was hardly surprising in the light of the Court’s view at [56] that it entailed ‘an interference with the fundamental right view of practically the entire European Population.’
  3. The suggestion that the files should be reviewed every 7 years seems to me to involve a disproportionate use of labour and unproductive use of resources which are better devoted to protecting children. As Ms Brown noted[3], such reviews could not be carried out by anyone other than an experienced social worker, looking at the entire file and having to assess potential risks.

 

 

The Court was not of the view that the Council’s policy was unreasonable or unlawful

 

  1. As Ms Brown put it in §58 and 59 of her witness statement:

    58. [The Defendant] deal[s] with a large number of cases and at any point will have approximately 3,000 children as open cases to Children’s Services …

    59. The current retention policy provides for retention for a period long enough to ensure that it is improbable that information from a closed record will be of central importance in any future work to protect children. In some cases, it might in principle be possible to dispose of records after a shorter period – particularly in situations where an investigation found where an investigation has found no evidence that abuse or neglect [has] taken place – but it would be necessary to assess the risk in every case.

  2. I accept that evidence. As noted above, the Defendant’s investigation into the Claimant and his family found no evidence of abuse or neglect, and the records have been dealt with consistently with the Defendant’s Retention Policy by deletion.
  3. In the light of the above I accept the Defendant’s submissions that there is a need to keep the records for a substantial period, and certainly substantially longer than the period argued for by the Claimant and the Information Commissioner. It might be argued that the period of 35 years is not the only possible period of retention, but in my judgment it falls within the bracket of legitimate periods of retention.
  4. I have therefore concluded that the Defendant’s Retention Policy of 35 years is in accordance with the law, has been carefully considered, adapted to the purposes for which it is required, and is applied proportionately and flexibly.
  5. It follows that the claim fails.

 

 

[For clarity, this judgment does not require that a Local Authority whose policy is NOT to hold the files for 35 years would be acting unlawfully and thus need to change it, it is rather that the policy about holding documents is something which has to have rational underpinning and is capable of being defended if challenged. Northumberland’s policy is annexed to the judgment, and is a very well thought out document which is now bulletproof should others choose to make use of it.  ]

 

Every time I type Northumberland I think it sounds like an area in Skyrim, infested with bearded dwarven blacksmiths who need me to go and find four frogs that have escaped, so that they can extract the poison and make me a really good sword.

 

Private law, infinite appeals and IT naughtiness

The case of Re N (Children) 2015, http://www.bailii.org/ew/cases/EWFC/OJ/2015/B98.html involves a private law case with 3 children, aged 11, 9 and 6.   Her Honour Judge Atkinson had to deal with a novel and delicate point of law on an appeal.

The children all live with their mother, and the dispute has been about the time that they spend (or do not spend) with their father.

In this case, the mother made a series of very serious allegations against the father, of physical abuse. The father faced criminal trial for these and was acquitted.  the mother then sought findings against him in the family court proceedings.  That was complicated by the last minute addition of a rape allegation.

In any event, the District Judge who heard the case dismissed all but one of the allegations, which he found was proved in part. The finding that was made would not have been a barrier to contact, and really contact should have resumed.

However, mother then appealed that decision, and the appeal was unsuccessful.

She then made a subsequent appeal, and it is that subsquent appeal that gives the case its novelty.  I am not naming the DJ here – it is in the linked judgment if people want to see it, but I took a call that the interest in the case is in the legal issue rather than any naming and shaming of the DJ himself.

 

  1. On 17th March 2015 District Judge B was removed from judicial office following an investigation into an allegation that he had viewed pornographic material on judicial IT equipment in his office. The material did not include images of children or any other illegal content. However, this was considered to be an inexcusable misuse of his judicial IT account and “wholly unacceptable conduct for a judicial office holder”.
  2. On 18th March, together with an enquiry as to the progress of their application for an oral hearing, solicitors acting for the mother wrote to the court lodging a fresh ground of appeal based on the fact of DJ B’s dismissal and its apparent association with sexual matters. Ground 10 argued his lack of judgment, as demonstrated by his dismissal, and argued that the pornography added a sexual element to that lack of judgment directly relevant to the issues that he had tried in this case.

 

The case got still more complicated, because at the appeal, mother sought to withdraw the appeal – not because she accepted DJ B’s findings but because she had realised that there was a finite pot of money for her legal representation and if she went ahead with the appeal there would be little or none left for the remainder of the proceedings.   (Grounds 1-9 here were the ones that had previously been rejected in the previous appeal, ground 10 was the “as the Judge has been sacked for viewing pornography, his judgment is questionable and he was not someone who ought to have been dealing with sexual allegations” angle)

 

  1. So it was that on 11th June 2015, 6 months on from the decision made by DJ B that there was no evidential basis for the assertion that this father has been the perpetrator of violence or sexual abuse against the mother or violence against the children, the mother’s appeal was listed before me to hear. On the day before the hearing the mother’s representatives contacted the court and the father’s representatives stating that she intended to withdraw her application for permission. They asked for the case to be vacated and directions made to enable the matter to proceed as directed by DJ B. The father’s team, shocked by the sudden turn of events refused to agree the vacation of the hearing and the parties nevertheless appeared before me.
  2. I note that the mother does not retract these allegations. Nor does she state that she is accepting of the findings made. Her main motivation in withdrawing from the appeal is cost – not that she will be saddled with a bill of costs but rather, she risks not having enough left in her publicly funded pot to continue to be represented after the appeal has been concluded. A secondary consideration was, it would seem, the “welfare of the children” and the impact upon them of this continuing litigation. Unsurprisingly, the father expressed his concern that if given simple permission to withdraw her appeal then these allegations would almost certainly surface to be litigated again in some form or other.
  3. Accordingly, although I have decided to give permission for the mother to withdraw her application for an oral hearing in relation to Grounds 1-9, I have decided to do so only after I have made a decision on Ground 10 effectively as I would have done on the papers. By this means there will have been a merits based decision recorded on each of the Grounds.

 

 

That, I think, was a good call. It would otherwise have always been hanging over the case.  In case anybody else is envisaging an appeal on similar grounds to Ground 10, this might pour some cold water on it

 

 

  1. Ground 10
  2. I turn now to the additional Ground which reads as follows: “the decision of the DJ in this matter related to various matters of a sexual nature…

    it demonstrates the poor exercise of Judgment in relation to matters of a sexual nature…it demonstrates poor exercise of judgment more generally…justice has to be seen to be done and the public would have no confidence in this DJ dealing with a matter of a sexual nature”

  3. The skeleton argument develops two arguments between paragraphs 88 and 93:

    a. The removal of the District Judge from office demonstrates that he had conducted himself in a manner inconsistent with the high standards of judicial office expected of the judiciary and shows a lack of judgment which is undermining of his decision making generally;

    b. The sexual nature of the behaviour leading to dismissal demonstrates that his judgment in “matters of a sexual nature has been found to be impaired” and the public cannot be expected to have confidence in his decision making as a result.

  4. I give permission to appeal only if I consider that there is a real prospect of success or there is another compelling reason why the appeal should be heard. To succeed on the substantive appeal the mother will need to show that the DJ was wrong or that the decision is unjust by reason of some other serious procedural or other irregularity in the proceedings.
  5. I have now read all of the papers lodged in what was to be an oral application for permission. I have not heard oral argument and so the decision which follows is effectively made on the papers but on a considerable body of paper. I am quite satisfied that the appeal on Ground 10 has no reasonable prospect of success and indeed I consider it to be without merit. I will explain why.
  6. The lack of judgment arguably demonstrated by the District Judge through misconduct in his office does not necessarily infect all areas in which he has to exercise Judgment. District Judge B was dismissed because of inappropriate use of judicial IT. It does not follow that he has thereby demonstrated himself incapable of making a proper judicial decision. If it did it would mean all of his decisions would be null and void following his dismissal. That simply is not right.
  7. The argument does not become different or stronger simply because his misuse of judicial IT involved the watching of pornography. In the first place it is important to note that he was not dismissed for viewing pornography. In any event, the viewing of pornography does not of itself suggest that he would have disbelieved an allegation of rape. It does not suggest that his approach to the sexual element in this case would be in any way skewed or biased. Had he been viewing such material in the privacy of his own home that would not have rendered him unable to make a determination in the case.
  8. The best way to determine whether District Judge B carried out a proper judicial exercise of discretion is by examining the detail of his Judgment. I have done just that and the transcript reveals a Judgment that is in my assessment beyond complaint. It contains all necessary directions on the law. It gives full and detailed reasons as to why he found the evidence of the mother lacking and why she failed to establish her case to the appropriate standard. As I have already rehearsed, the mother has been unable on the papers (in spite of the numerous and voluminous skeleton arguments in support of her appeal) to establish any basis for criticism.
  9. Accordingly, I find there is no basis for the granting of permission in relation to Ground 10.

 

 

Where you might, I suppose, have stronger grounds for appeal is for example if the decision-maker in an Employment case where the allegation against the employee was illicit use of IT for this purpose and the decision-maker had found in favour of the employee  (where you’d be wondering whether the decision was a ‘kindred spirit’ / ‘there but for the grace of God’ scenario)

 

[It does occur to me that if you are a Judge doing nothing but private law conflicts, where you are just hearing people say “no” all the time, one can perhaps see why DJ B wanted to just listen to people saying “yes yes yes oh yes” once in a while]

 

There’s a rather sad postscript to the judgment

  1. Finally, the mother at this hearing indicated her desire to move on from these matters and look forward. She expressed a willingness to be guided by professionals. I was encouraged by that until it became clear that the professionals that she has put her trust in are currently limited to Norfolk County Council, specifically the author of the s.37 report, who has advised against face to face contact between the children and their father with no clear plan as to how this situation can be improved.
  2. It was made clear at the hearing that the Guardian may not be of the same view. Disappointingly, it was far from clear that if that be the case this mother will be accepting of the Guardian’s advice. I felt it necessary to record this position as a post script to this Judgment.
  3. The court has determined that there is no evidential basis for the allegations made against the father by the mother. He has been through two Crown Court trials and one trial of the facts in the family court. Six months have been wasted on an unmeritorious appeal. Meanwhile these children have not seen their father now since November 2011. If the mother’s concern is for the welfare of her children as she has insisted then going forward she will have as her aim how she can best assist these children in re-establishing their relationship with their father

 

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