Author Archives: suesspiciousminds
You may recall that I have raged, raged against the dying of the night, about the imposition of Court fees for care proceedings before.
This was something that Lord Laming recommended should be scrapped, that the Plowden report recommended should be scrapped, that the Family Justice Review recommended should be scrapped, and successive governments kicked it into the long grass before finally mumbling, looking shiftily at their feet that they weren’t going to do anything to change those fees.
Still, we now know that care proceedings are going to be done in half the time, and with less court hearings. And we also know that the Government consider that as a result of the reduction in time and effort that will involve, that lawyers fees should be cut by 10%.
So, on the basis of what is sauce for the goose is sauce for the gander, I have been eagerly awaiting the Government’s announcement that fees for care proceedings will be reduced – they involve far less court time and are going to be done in half the time, after all.
The fee for issuing care proceedings changes from £2,225 now, TO £3,320.
The fee for having a final hearing in care proceedings changes from £1,900 now TO £2,155.
Hmmm, okay, I guess the Ministry of Justice have to take into account inflation, so that justifies a forty-four percent increase in the fee for issuing.
We didn’t even get our half-assed fake consultation this time around, just the fees jacked up by over a grand a time, with no explanation or rationale.
Private law isn’t excused either, the fee for contact/residence gets jacked up from £175 to £215, just at the time that parents have lost the lawyer that would have guided them through the impenetrable thicket of the fee exemption process.
Quite uncanny that the last time we got a Public Law Outline that ramped up the demands on Local Authorities before proceedings were issued, we got a huge fee increase, and the same thing is happening this time to.
But just like last time, you would be a fool and communist to think that the Government has tried to implement a double-whammy of things that might artificially depress the number of care proceedings being issued.
A fool and a communist
What do eating cabin-boys and instructing experts have in common? Well, it seems that the law frowns on both, and queries whether either was necessary.
The Court of Appeal have given judgment in the much trumpeted issue of what the word ‘necessary’ means in the context of the new requirement in the Family Procedure Rules that before an expert can be instructed in a family case, the Court must determine that their instruction is necessary.
Re H-L (A Child) 2013
In the current context and climate, the Court of Appeal were clearly keen to tackle this issue and give a steer on it as soon as possible. This is how the President opened
1. In this appeal we have to decide the point left open in Re TG (Care Proceedings: Case Management: Expert Evidence)  EWCA Civ 5,  1 FLR 1250.
2. In Re TG, in which judgment was handed down on 22 January 2013, I drew attention to the important change to rule 25.1 of the Family Procedure Rules 2010 due to be implemented with effect from 31 January 2013. Whereas previously the test for permitting expert evidence to be adduced was whether it was “reasonably required to resolve the proceedings”, the test now is whether it is “necessary to assist the court to resolve the proceedings.” I said (para ):
“It is a matter for another day to determine what exactly is meant in this context by the word ‘necessary’, but clearly the new test is intended to be significantly more stringent than the old. The text of what is ‘necessary’ sets a hurdle which is, on any view, significantly higher that the old test of what is ‘reasonably required’.”
We now have to decide what is meant by ‘necessary.’
Game on, as they say. So, what does necessary mean?
The short answer is that ‘necessary’ means necessary.
If you are thinking, crikey, was there something good on television or for lunch and the Court of Appeal just wanted to get this whole thing done, don’t worry, we develop the short answer a bit. (not much, I am trying not to give this a huge build-up)
If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, paras , . This court said it “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.
So a spectrum somewhere between indispensable and useful/desirable, but much more towards the indispensable side of the scale.
The Court allowed the geneticist and upheld the refusal for the other two experts (a paediatrician and a haemologist)
The President also used the case as a reminder that the appellant Court will strive to uphold reasonable and robust case management decisions (no doubt being mindful that a lot of the current problems that are striving to be unpicked are due in part to the Court of Appeal knocking back any Judge who actually tried to follow the principles of the current Public Law Outline)
As this is so short, permit me a digression.
That’s rather better than I envisaged, when I mockingly suggested that we would be incorporating the Dudley and Stephens opinion of necessity into care proceedings. For those of you who didn’t study law, or did so a long time ago, Dudley and Stephens was the case of shipwrecked sailors who being both marooned and peckish, killed and ate their cabin boy. In mixed blessings for them, they were then rescued (hooray!) but then tried for murder.
The sailors pleaded that they had to kill the boy and eat him or they would all have perished and therefore it was necessary to eat him. This was an attempt to introduce a doctrine of necessity into the criminal law as a defence. The jury could not decide what to do and the case was referred up to the Court of Appeal for guidance.
This doctrine of necessity defence was rejected by the Court, in a lovely passage by Lord Coleridge
From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother’s notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that “if the men had not fed upon the body of the boy they would probably not have survived,” and that “the boy being in a much weaker condition was likely to have died before them.” They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him
It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder
This is a lovely judgment, bringing in all sorts of ideas and references, and interesting to me as a law geek particularly because the Court recognise that the case is a real-life version of a hypothetical example given in legal textbooks of the time of two sailors on a plank and would it be lawful for one to eat the other to prevent them both starving. The authors of the legal textbooks had suggested that it would be, but the Court disagreed.
The sailors were found guilty and hanged. [The whole set up reminds me of those Fortunately-Unfortunately-Fortunately-Unfortunately games/stories we used to tell at school
[I recall, as I once had to research this, that there is no offence of cannibalism per se in English law – the crime would be either bringing about the death, or if the person had died naturally, a pretty minor Common Law offence of conspiring to prevent a decent and legal burial]
So the lessons for today are – if you are applying for an expert make sure you lay on with a trowel how close to indispensable this instruction is and if you are going to eat a cabin boy, wait till he dies of natural causes. [Which further digresses me to Vic Reeves' sterling words of advice "If you DO get trapped in your flat...try NOT to get trapped in your flat"]
Following the Supreme Court decision in Re B yesterday, which we hoped would tackle the four issues on which leave to appeal was granted :-
(i) the meaning of significant harm;
(ii) the relationship between the nature and gravity of the harm which is feared and the degree of likelihood of that harm being suffered in the future;
(iii) the proportionality of a care order with a care plan for adoption in a case such as this; and
(iv) the proper approach of the Court of Appeal to a finding that the threshold has been crossed, and (although this was not expressly referred to) to the issue of proportionality.
And I shall leave it to others to debate whether or not they successfully clarified those points (save for (iv) which they undoubtedly did tackle, some might say at the expense of the 3 more important issues)
But it made me think about emotional harm post Re B, and some hypothetical examples to debate. In each of these hypothetical examples :-
(i) The child is well fed, well cared for, their basic needs are met
(ii) They are not hit, or sexually abused or neglected
(iii) The parents are not drug addicts or alcohol abusers
(iv) The parental behaviour complained of is just simply as is set out baldy and nothing else
(v) All efforts to divert them from this behaviour has been unsuccessful to date
I make those caveats so that it is clear what we are debating is ‘pure emotional harm’, not the emotional harm that accompanies neglect, or physical or sexual abuse.
Have a look at the examples, if you would and consider whether you think (a) that it is appropriate for the State to intervene in this family’s life by issuing proceedings (b) whether the section 31 threshold is crossed and (c) whether the Court might consider it proportionate to make an order, if – as in Re B, all prospect of the parent being able to address that behaviour were not successful.
The parent routinely tells the child that they are worthless, that they will never amount to anything, that the parent is ashamed of them, that they are fat and ugly and unloveable, that even their parents don’t love them, that they will be a failure in life.
The child wants more than anything to grow up to be a professional footballer, and the parent routinely tells the child that they are no good at football, that they aren’t getting any better at it, that they have no chance of becoming a footballer and that they are not going to be able to do it for a living.
The parent routinely tells the child that once you are an adult, “you shouldn’t knock it till you’ve tried it” and that they should try cocaine, heroin, amphetamines for themselves once they become an adult. The parent also makes it plain that once the child is an adult, if they want to try drugs, they do so with parental blessing and the parent will provide them with funds if they wish to do so.
The parent has strong Marxist beliefs/no conscience about personal property, and regularly tells the child that “all property is theft” and that once the child reaches adulthood, it is perfectly legitimate, if they so wish, to steal things if they want them or need them. They make it clear that their view is that only a fool would work and save up for something when it is so easy to just take it from someone else.
They themselves steal to supplement their lifestyle, and the home is full of luxury goods that they could not afford and they make no secret of how they obtained them. They do, however, not involve the child in any theft (either as witness or accomplice) and stress to the child that until they reach the age of 18, they should not steal anything.
The parent routinely tells the child that the Holocaust never happened. They make it plain that Jewish people have lied about it, and that any small number of Jews who did die deserved it. They communicate to the child that books and television programmes or films that claim otherwise are lies and that the creators of such material cannot be trusted.
The parents believe in reincarnation and karma, and routinely tell the child that people who die of terminal illnesses or have disabilities have these problems because they did bad things in a former life and are paying for them.
[I will stress that none of these are actual cases or even small features of actual cases, they are purely hypothetical examples of ways that a parent could behave which may lead the State to question whether the behaviour amounts to significant harm. I also stress that I am not attempting to claim that post Re B, all of these examples WOULD meet threshold or that a Local Authority would issue on them even if they did, rather to simply debate whether they are CAPABLE of meeting threshold and whether there is consensus about which that do or not, or whether there is uncertainty. ]
Do any of them, on their own, cross threshold?
The Supreme Court judgment in Re B is out, and can be read in full here:-
For the too-long didn’t read version, the parents lost. The case was hoped to clarify emotional harm, and whether it justifies State intervention, and whether the risk of future emotional harm (when it becomes somewhat tenuous and predictive) justifies the most draconian of orders, a plan for adoption.
There was an excellent preview of the case by Celtic Knot over on Pink Tape, here
and it sets out the backdrop to this case very clearly and why it was that he and I were both hoping that the parents would succeed. In all of this debate, I am mindful that (a) I haven’t had the chance to read or hear all of the evidence and (b) that the case sadly involves real people and a real child. Sadly, as it has important principles, it is something that needs to be discussed in broader terms than just the tragedy for the immediate family.
Frankly, my reading of the Re B Court of Appeal decision was that there was a lot that professionals were worried about or anxious about, but none of it actually amounted to proof that the child was at risk of significant harm. [I stress, this may very well be a fault of the Court of Appeal judgment in not properly framing how they found threshold to be crossed, rather than on professionals involved in the case]
I think the closest it came to threshold was in this passage here
It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond abnormal personality traits and in additi on to, and more significantly than, her somatisation disorder, M suffers a factitious disorder of mild to moderate intensity.
This is a related psychiatric disorder in which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories.
There is therefore a deceptive dimension to the disorder which was replicated in a mass of other evidence before the judg e, unrelated to M’s medical condition, which raised questions about her ability, and for that matter also the ability of F, to behave honestly with professionals. Dr Bass stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken only if she were to acknowledge the problems and to engage honestly with the therapist.
Undoubtedly within the case, and the Supreme Court gave multiple examples, there had been incidents where claims had been made by M which the Court found to be untrue, and they were florid claims. That much, I don’t disagree with. The decision of the Court of Appeal that this crossed the threshold seemed, to me, to fall short on the critical area of actual evidence that it HAD harmed the child or was a risk of harming the child, and not merely in nebulous “Jedi-hand-wave” terms – what was it that was said the parents might do that would harm this child, and how likely was it that they would do it?
The original trial judge said this:-
The judge concluded: “Ultimately, I find that I am persuaded… that what the evidence clearly demonstrates is that these parents do not have the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where [Amelia] would be safe… In short I cannot see that there is any sufficiently reliable way that I can fulfil my duty to [Amelia] to protect her from harm and still place her with her parents. I appreciate that in so saying I am depriving her of a relationship which, young though she is, is important to her and depriving her and her parents of that family life which this court strives to promote.”
Again, that seems to me to be a legitimate decision for the Judge who heard the evidence to take ONCE it was established that the threshold was crossed. If there WAS a risk of harm, then whether the parents could manage that harm, take advice, work with professionals and change their behaviour is massively relevant.
But did we ever cross the threshold on the facts as reported?
My fundamental issue is this – if one cannot put into a paragraph, or a page, what harm it was that the State was protecting this child from, I am not sure that the harm is actually properly made out. [Not a criticism of the LA involved – I haven’t read the papers, I don’t know the whole case, but from the twin judgments I have seen, I don’t see anything that comes close to telling the parents, or the public, what it was that this child was being protected FROM – other than very peculiar behaviour short of abuse]
One focus of the appeal was the wording of the threshold criteria (the test that the State has to cross before a Care Order can be made) which is “significant harm” and whether the law has wrongly developed to an extent where it is now hard to see the distinction, in law, between harm and significant harm.
If one were to get a family lawyer to draw up two columns, one headed Harm, and one headed Significant Harm, and then gave them a series of allegations, would all of the family lawyers put each allegation in the same column ? would there be broad consistency about which is which, perhaps with a few grey areas? Or in fact, would nearly everything go into the “significant harm” column.
Here is what the Supreme Court have to say
26. In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from the word itself. Nevertheless it might be worthwhile to note that in the White Paper which preceded the 1989 Act, namely The Law on Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:
“It is intended that “likely ha rm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does”
The Supreme Court also rejected the applicant’s submission that when a Court determines whether or not the threshold is crossed, article 8 is engaged, and determined that article 8 only arises when the Court are deciding whether or not to make an order. [I can’t say that i am happy about THAT either]
The second matter relates to Mr Feehan’s submission that the threshold set by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if, in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty,animosities and obstructionism of the parents represent deficits only of character
and that, if and insofar as they might cause harm to Amelia,whom they love, the harm is neither deliberate nor intentional
This is an interesting one, taking us into issues of free will and determinism. I would agree partly with Mr Feehan QC - I think that the threshold ought to get into quality of parenting or how the parenting impacts on the child, but I don’t go as far as saying that a parent is not responsible for elements of their personality which are beyond their control. (The latter, seems to me, to invite later ligitation on the basis of paedophilia being intrinsic to a person, rather than a conscious or deliberate choice on their part)
The Supreme Court rejected this anyway.
One interesting addition from the Supreme Court was their debate about whether, when deciding whether a lower Court had mistakenly found threshold to be crossed (or vice versa) the test for the appellant Court should be the usual one (derived from Piglowska) that the Court had been “plainly wrong” or whether in the context of the threshold, which is a binary value judgment – the evidence is there to satisfy it, or it is not, the test should simply be whether they were “wrong”
it is generally better to allow adjectives to speak for themselves without adverbial support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative.
Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong.
I think they may come to regret that formulation.
Going to the issue of threshold this passage in the judgment outlines why the majority of the Judges found that it was met and the decision was not wrong
The nature of the harm which concerned Judge Cryan was (i) “the emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation disorder and factitious illness disorder”,
(b) “concerns … about the parents’ personality traits”,
(c) “her mother’s lying”,
(d) her father’s “active, but less chronic, tendency to dishonest
y and vulnerability to the misuse of drugs”, and
(ii) “physical harm to [Amelia]” which “can not be discounted, for example, by over treatment or inappropriate treatment by doctors”.
As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s parents did not have “the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe”. He explained that the result of this was that he could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”
to Amelia “to protect her from harm and still place her with her parents”.
66. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they
are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based
on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge
as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are
evaluations which are also plainly dependant on the Judge’s overall assessment of the witnesses, and in particular on his opinion as to the character and dependability of Amelia’s mother and father, and as tothe reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong.
Sadly, to me, it seems that the Supreme Court have tackled this case in that very narrow way, rather than comparing the threshold said to be met in this case with the doctrines of Lord Templeman and Justice Hedley, about the difference between abusive parenting which harms a child or is likely to harm a child, and eccentric odd or even poor parenting which falls short of that mark. I slightly have to wonder why they agreed to hear the appeal at all if they were not going to roll up their sleeves and tackle the issue of emotional harm. They just really said that it was a matter for the trial judge which side of the line the case fell on, unless it was apparent that he had got that wrong.
Lady Hale in her judgment, which in my mind actually tackled the issues and concluded in the dissenting judgment that the original judge was wrong to have made a Care Order, sets out what practitioners felt was the key issue in the case in her opening paragraphs
143. This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention.
How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents?
144.Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?
Sadly all of this next bit is by the by, since it is from the dissenting judgment, but I think it is all correct, and I wish it were an accurate reflection of what the law was, post Re B
The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nichollsdid not contemplate that a relatively small degree of likelihood would be sufficient in all cases.
The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.
Of course, another reason for adopting a test of “real possibility”, rather than “more likely than not”, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child’s immediate future.
190 However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child’s resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the “real possibility” solidify
191. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be “attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him”(s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.
For my part, I am unsure why the other Judges did not share those views, they seem to me eminently sensible and fair. In reality, it is merely a sieve to remove the sort of cases that Lord Templeman and Hedley LJ were referring to as being short of the level of parenting that requires State intervention.
I also feel somewhat for Lady Hale, who has given excellent judgments in many of the Supreme Court cases but seems to be being characterised as the dissenter who does not sway the majority.
An interesting report from Family Law Week, confirming that the Re B case will be determined by the Supreme Court on 12th June, and I will write about it as soon as I get the judgment
The Court of Appeal decision is one that I blogged about here :-
The reason that the case is important is that the threshold in the case was based entirely on emotional harm. I disagree with some of my readers about how prevalent that is (my own experience of many, many Local Authorities over many, many years is that whilst emotional harm is a facet of lots of cases, I have NEVER picked up a case where the threshold contained nothing other than emotional harm. Ian Josephs says fairly that the people who come to him are invariably emotional harm cases).
At the very least, it is plain that emotional harm is a controversial basis for separation of families, and it is probably the greyest area that we currently have, so it is good to see it being tackled.
On the facts reported in Re B, I thought that the Court of Appeal were wrong in finding that the threshold was made out, and wrong further in moving to the conclusion that this meant that permanent separation was justified. My heart is with the parents on this one, I have to say.
There were certainly issues with the parents and there was certainly a suggestion that there would have been unusual features of the way the child would be brought up, but I did not see in the judgment I read evidence that the child was being harmed or likely to be harmed by it.
A classic bit of Hedley J, as far as I was concerned
Re L (Care threshold criteria) 2006 ”Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”
As some people remarked to me at the time, there must have been more to it than came out in the Court of Appeal judgment. That might be the case, but in which case, I consider there to be a fault in the judgment – if a parent is to be separated from their child by the State, the least we can offer them is a fair judgment that sets out plainly why that has to be the case.
I think it is important that if the State is removing children for emotional harm, which is such a slippery concept to pin down (as opposed to fractures, sexual abuse or even neglect), it is important to have some parameters as to what that might mean, and where the bright line is between unusual and eccentric parenting and harmful parenting.
I will be interested to see what the Supreme Court makes of this, and as an incidental, I think Lord Clarke of Stone-cum-Ebony has a great, great title. I have vowed, and will hold to it, that in the vanishingly unlikely event that the Government go bananas and make me a peer of the realm, I shall go by the name of Lord Vader, but that title does tempt me. Perhaps I could be Lord Ebony-cum-Ivory…
The revised Public Law Outline was published last week, and I hadn’t yet blogged about it.
You can find it here
Lucy Reed over at Pink Tape has also blogged about it, and you can read her bit here:-
There’s some jaunty young fellow-me-lad writing about it for Family Law Week, which you can find here, though without as much ‘snark’ as suesspiciousminds would apply to it.
I go back to one of my earliest ever blog posts, quoting the German military strategist Helmut Von Molke
“No battle plan ever survives contact with the enemy”
and we will have a much better idea in the autumn (or more accurately, by the end of next spring, when all these 26 week cases OUGHT to be concluding) how it operates when moved from the field of theory into practice.
[And just to save me having to do a whole separate blog post, because I wanted to tell everyone how much I love THIS picture, which shows Mick Jagger at the very height of his rock-God powers, enjoying the cricket AND carrying a pint of bitter (in a dimpled glass no less) . I don't think I have seen a picture that quite makes me feel so utterly English as this one]
An interesting case, on a topic I don’t think has been previously adjudicated on. The case was dealt with by the Romford County Court, and I think handled with a great deal of sensitivity by the Judge, and who did something at the end of the judgment that I thought was quite quite excellent.
Re C (A Child)  EW Misc 15 (CC)
The child, C, was 10 ½ years old. Her parents were separated. Both had been of the Jewish faith, although the father underwent a religious experience and converted to Christianity. All four grandparents were Jewish. The parents following the separation had arrived at a shared parenting arrangement, alternating care on a weekly basis.
During some time with her father, C went to a Christian festival and on her return told him that she too had had a religious experience and wanted to be baptised as a Christian.
There was a dispute in the evidence about this as to whether father was pushing the child into it and making secret arrangements (mother’s case) or whether he was cautious and careful and wanted C to spend some real time thinking about it and discussed it with the mother (father’s case)
In any event, the mother made an application for a Prohibited Steps Order.
A CAFCASS officer reported, and ascertained that C had thought about things very carefully and had very firm and clear wishes about wanting to be baptised. The report was something of a curate’s egg, recommending both that C’s wishes be listened to and that the decision be postponed for two years.
The Court rejected all of the assertions that mother made that the father had been ‘brainwashing’ the child or taken secret steps to arrange a baptism class behind mother’s back.
One of the issues the mother cited was this text message from father, which she claimed was proof that the baptism issue was being driven firmly by father
23. “Can I suggest that you speak to C thoroughly before you write your statement to the court and consider how you (and your parents) actions will sit with her before you continue with this. I re-spoke with her a few times and she is absolutely adamant that she wants to be baptised. If she wasn’t I would not have continued, but she is absolutely dead set. Don’t damage your relationship with her any further by being the mother who didn’t talk and listen to her.
I’m asking you to consider this for C’s sake and also for your sake (by which I mean for the sake of your relationship with her). I have made a promise to C that I will fight for the right for her to practise and grow in her faith, and so can’t back down. …”
I have to say that mother’s reading of that text was not mine, and it was not the Judge’s either
I do not accept that the text message from the father which the mother has exhibited to her statement shows that it is the father who is driving this application and that it is his idea that C should be baptised. Of course as a committed Christian he wishes to do all he can to support her wish in this regard. That is only natural, but I accept his evidence that faith is a free gift from God to his daughter and not something which he would ever try to force upon her. His cautious, patient and sensitive approach to dealing with C’s request over the past nine months strongly supports his case on this point.
The Judge was critical of mother making the application for Prohibited Steps as an ex parte application – she had claimed that there was about to be a secret baptism and thus she had to rush to Court. (There is a nice exchange of letters between the Rabbi and the Minister about this, set out within the judgment)
I do not accept the validity of the reasons put forward by the mother for making her without notice application. It was wholly wrong for her not to have checked either with the father or with his Minister to discover the truth before applying to the court. There simply was no immediate danger. This has had serious consequences. She obtained her order on an assertion of fact that both children has secretly been enrolled in baptism classes without her knowledge or consent which was simply untrue.
On the issue of whether a decision should wait for two years, the Judge decided this
- I have made it clear to the parties that I have no power to order C to be baptised. That is as decision for the Minister of her church to take in the light of his evaluation of her understanding and commitment, so far as he judges those criteria to be relevant. My powers are limited to considering whether the father should be prohibited from taking any positive steps towards his daughter’s baptism and in terms of any specific issues order directing that such steps may be taken without the consent of the mother.
- The issue of delay is an important factor in this case. Since C herself first raised the issue ten months has passed and just over five months since the issue came to a head in November 2011. That is a long time in a child’s life. The court has received all the relevant information to make an informed decision but is now being asked by the Cafcass officer to delay that decision for a further two years with no guarantee then of a decision being appropriate to be made. The court is also being asked by the mother to delay making that decision for a further five and a half years when C will be sixteen.
- The only possible justification for that delay would be that the court is not satisfied that C has sufficient maturity and understanding to take such an important step in her life. I could see some justification for taking that course if the court could be sure that at age twelve and a half C will be sufficiently more mature to make a decision which her parents would have to respect. But that is not the mother’s primary position. She in effect reserves her position to continue to argue that even at that age C will still be too immature to decide. If the court is against her now on waiting to age sixteen she reluctantly accepts the Cafcass recommendation.
- The advantage of any delay has in any event to be weighed against the risk of further emotional harm being suffered by C waiting for the decision to be made.
- I am satisfied that a decision must be made now for two reasons. The first is that in my judgment a decision to delay carries a significant risk of emotional harm to the child. The second is that upon consideration of all the evidence there is no proper purpose in any delay. I am satisfied that C has already reached a sufficient degree of maturity and understanding to make a properly informed decision. In this respect I disagree with the Cafcass recommendation so I must explain why.
- The first reason is that the author of the report does not herself make any recommendation. Since the report was specifically directed towards ascertaining the wishes and feelings of the child I make no criticism of the author on that account. The suggestion for delay comes from her line Manager who has never herself met or spoken to the child. The second reason is that the report gives no reason why the decision should be delayed.
- The third reason is that the report writer gives no indication of any concern on her part about the lack of maturity of the child. On the contrary she notes, as confirmed by the parents, that C is a bright articulate child who was able clearly to express her views and give reasons for them. The final reason is that C has maintained a consistent wish to be baptised for over ten months in the face of opposition from her mother and has been able to give age appropriate reasons for her decision, a factor which the line Manager does not appear to have taken into account
The Court also took into account that the baptism would not have any irrevocable impact on C’s ability to follow her Jewish faith in later life (it would have been interesting had the roles here been reversed)
And thus the Court declined to make the Prohibited Steps order and indicated that there was no reason why C could not be baptised if that was what she wished and that the Minister who would be undertaking the ceremony was content (he ordered that the judgment could be disclosed)
The very last part of the judgment was, I think, a very nice touch, and something worth considering for other cases with children of this age and understanding - the Judge wrote an open letter to the child
80. Dear C,
It must seem rather strange for me to write to you when we have never met but I have heard a lot about you from your parents and it has been my job to make an important decision about your future.
Sometimes parents simply cannot agree on what is best for their child but they can’t both be right. Your father thinks it is right for you to be baptised as a Christian now. Your mother wants you to wait until you are older so they have asked me to decide for them. That is my job.
I have listened to everything your mother and father have wanted to say to me about this and also to what you wanted to tell me. You have done that by speaking to the Cafcass lady and she has passed on to me what you said to her. That has made my job much easier and I want to thank you for telling me so clearly why you want to be baptised now. It is important for me to know how you feel.
My job is to decide simply what is best for you and I have decided that the best thing for you is that you are allowed to start your baptism classes as soon as they can be arranged and that you are baptised as a Christian as soon as your Minister feels you are ready.
Being baptised does not mean that you give up your Jewish heritage. That will always be part of you and I hope that you will continue to learn more about that heritage and about you mother’s faith. Even after you are baptised you are still free to change your mind about your faith later when you are older. Finally, and this is the most important thing, both your mother and father will carry on loving you just as much whatever happens about your baptism.
I understand that the past few months have been a difficult time for you but that is over now and the decision is made. I send you my very best wishes for the future.
Judge John Platt