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Human rights claim – £12,000

 

This is the decision of Bellamy J, sitting as a Deputy High Court Judge.

 

Re H (A child) 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/38.html

 

In this case, the LA accepted that their actions had breached the parents article 8 and article 6 rights, and the only issue was whether there should be a financial penalty, and the scale of it.

 

I’ve rather given the whole plot away (in the style of a cinema trailer that shows you everything that happens in the film) in the title – the parents were awarded £6,000 each.

 

What was the nature of the breach? Well, in effect it was that the LA had obtained written consents from the parents for their child to be in voluntary care, but had not followed the principles of fairness in ensuring that the parents actually understood what they were signing up to and their right to say no.  (You will recall that the High Court gave a powerful precedent on this issue in Re C – particularly where a parent might be lacking capacity)

 

In this case, to be fair, the social worker picked up straight away that these parents might have some cognitive or learning difficulties.

  1. The local authority conducted an investigation pursuant to s.47 of the Children Act 1989. The assessment was completed on 29th May. The local authority considered that the parents had concealed the pregnancy. The local authority concluded that H was at risk of significant harm from her parents due to the concealed pregnancy, the parents’ learning needs and their limited support networks and that it would therefore be unsafe to discharge H into her parents’ care at that time.
  2. During the course of the assessment the local authority social worker noted that the parents’ learning difficulties were evident during discussions and that the parents appeared to have difficulty in understanding and processing information. She discussed her concerns with her manager. She did not take any steps to explore this issue further

 

Thus missing the boat. That would have been the time to get a cognitive assessment done, to establish what the parents issues were and find out the best way to work with them.  It didn’t happen, and arrangements were made for the child without any real consideration of whether the parents properly understood what they were agreeing to.

There is no record of the parents having been provided with an explanation of all of the available options or of the consequences if they did not consent to H being cared for by Mr and Mrs B or of there having been any discussion about how long this ‘informal’ placement might last. They were advised to seek legal advice if they were unhappy with this plan and were provided with a complaints leaflet. The parents did not seek legal advice.

 

 

The case moved to another social worker, who again picked up on the learning difficulty issue immediately.

 

The case was transferred to the local authority’s long-term childcare team in August 2013. The social worker later raised concerns with her manager about the lack of progress in completing an assessment of the parents. She suspected that this may be linked to what she believed to be the parents’ learning disability. The social worker was also concerned that the parents appeared not to have fully understood what they were agreeing to when H was placed with Mr and Mrs B. The parents were anxious to know when H would be returned to their care

 

Did that resolve it? Well, not quite.

  1. In October 2013 the Team manager sought advice from senior management. This led to a legal planning meeting being convened. The meeting took place on 12th November 2013. The meeting recognised that the placement of H with Mr and Mrs B was not a private fostering arrangement and yet was clearly a ‘placement’ as it was initiated by the local authority. The meeting decided,

    (1) that the parents should be asked to give their retrospective consent to the placement of H in the voluntary care of the local authority pursuant to s.20 of the Children Act 1989 with effect from the date she had been with Mr and Mrs B (7th June 2013);

    (2) that there should be an urgent cognitive functioning assessment of both parents in order to inform the local authority assessment and how best to work with the parents.

    (3) that if the parents refused to consent to H being accommodated under s.20 and placed with Mr and Mrs B and/or to co-operate with arrangements for a cognitive functioning assessment, then the local authority would commence care proceedings.

  2. It was also agreed that the social worker would meet with the parents to discuss the decisions made by the legal planning meeting. It was accepted that H, her parents and Mr and Mrs B had been subjected to unacceptable delay and uncertainty and that the need for conversation with the parents was now urgent.

 

 

Absolutely right that there should be a cognitive assessment. But to try to get the parents to sign a s20 agreement when there was a doubt as to their capacity can’t be right. This is of course after the Re CA decision, so obviously some people haven’t read it. Let me set out those principles again

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

IF YOU DOUBT that a parent has capacity, you really shouldn’t be getting them to sign ANYTHING, particularly not a section 20 agreement.

 

Back to the case – the cognitive assessment didn’t arrive until 1st April 2014 – yes, eleven months after the issue was first spotted, and six months after it was spotted the second time around and a Legal Planning Meeting recommended it.

 

Perhaps my experience is unusual, but having worked at seven local authorities, I’ve never had a difficulty in obtaining a cognitive assessment – they aren’t reports that take a long time to produce – you can normally get them within 2-3 weeks of asking the doctor to provide them.

 

Oh wait, I’m wrong. That was the date of the APPOINTMENT. The report itself didn’t turn up for another 8 weeks, at the end of May. So yes, a year had passed between thinking the parents had learning difficulties and getting a cognitive.

 

To paraphrase Edmund Blackadder, we may have been at home for Mr and Mrs Cock-up here.

 

Here’s what the cognitive assessment said

  1. It is appropriate to set out Dr James’ conclusions at this stage in the narrative though she did not, in fact, report until 27th May 2014.
  2. With respect to the mother, Dr James says that all of her scores fell within the borderline range, indicating consistently limited functioning across all areas. With respect to the father, Dr James says that:

    ‘While [the mother's] scores give a consistent picture of Borderline abilities, the distribution of [the father's] scores, ranging as they do from Learning Disability, through Borderline to Average, is unusual, and presents a complex picture. As a result of this intellectual profile, [the father's] ability to understand, process and use verbally mediated information and concepts is significantly below what might be expected, given his ability in other areas. This is likely to present a very real limitation for him in everyday life. The most likely explanation for this very specific impairment is that it is related to his epilepsy.’

  3. Dr James gave advice on how the parents should be approached. With respect to the mother, Dr James said that:

    ‘As far as information and advice presented verbally are concerned, [the mother] has a reasonable ability to understand this, and I would expect her to be able to cope well with the kind of discussion likely to take place during a parenting assessment. She will seem at times to be a little slow to respond to what is said, but if you wait for an answer she will give it in a way which shows that she has understood the question.’

    With respect to the father, Dr James advised that:

    ‘Allowance will need to be made for [the father's] specific difficulties with verbal comprehension…Of particular importance in the course of the assessment will be not expecting him to portray verbally what he is capable of, since he can evidence this more effectively through practical means. In other words, his behaviour rather than his descriptions will be the best guide to what he can achieve.’

  • In a subsequent letter, Dr James gave the following further guidance so far as the father is concerned. She said that, 

    ‘The following guidance is intended to help his Solicitor to support him to have full capacity in the Proceedings. At the beginning of an appointment, [the father] can present with rushed speech, and a jumbled account of recent events. He needs a little time to settle down, after which he will become more coherent, and can be systematically led through the information he wants to convey. He responds well to direct questioning. Advice given to him should be expressed carefully to avoid ambiguity. Ideally, each sentence should contain one idea only, with a pause at the end of the sentence for this to be absorbed, before offering the next piece of advice or information. It can also be helpful to specifically remind him to listen carefully to important points.’

 

But you know, maybe these parents were unknown quantities and that explained some of the problem. Nope.

 

  1. Given that the father was in the care of this local authority during his own childhood, much of this information about his presentation and functioning should have been contained in the local authority’s earlier case file and should, therefore, have been available to the local authority when it became involved with the father again following the birth of H.
  2. The local authority finally issued these care proceedings on 29th April, 2014. H was born on 16th May, 2013. She was, therefore, fast approaching her first birthday when these proceedings were issued. It took this local authority almost a year to issue these proceedings. That delay was unjustified and inexcusable.

 

Where the Local Authority did recover some mild credit was in ‘fessing up once these mistakes came to light, rather than trying to defend the indefensible.

  1. Sonia Grant, Service Manager in the local authority’s Children In Need Service, filed a written statement. Most of the narrative set out above is based on Ms Grant’s evidence. Ms Grant concedes that in this case the performance of this local authority has fallen below acceptable standards. She says,

    ‘4.1 The local authority’s review of the events surrounding both situations has identified serious practice issues relating to the identification of [the mother's] capacity to give consent, particularly in respect of the placement with Mr and Mrs B in June 2013.

    4.2 The parents’ capacity to consent was not fully considered or explored at all the key stages of the assessment and decision-making process…

    4.5 The placement with Mr and Mrs B was clearly a ‘Section 20 placement’ made by the local authority, who would have had to place H in foster care and possibly initiate care proceedings if Mr and Mrs B could not care for her. The Legal Planning Meeting held on 12th November attempted to bring the matter back on track to avoid further delay, but there was a significant delay in arranging the cognitive functioning assessment which only added to the delays within the case.

    4.6 The local authority accepts that the social work judgments and decision-making within this case fell below what was required at key points, and failed to fully take account of the combined complexities of the parents and H’s competing needs in a timely and child-centred way.

    4.7 The issues about parental capacity to give consent that occurred within this case have highlighted the urgent need to ensure social workers are aware of their responsibilities in this area. Therefore, the local authority intends to urgently address this training issue to avoid this happening again.’

  2. It is against that background that the local authority accepts that it has breached the parents’ rights under Article 6 and Article 8 and that it is appropriate for the court to make declarations. With respect to the declarations sought by the mother, the local authority concedes that it has acted in breach of the mother’s Article 6 and Article 8 rights in that it:

    1. failed to issue proceedings in a timely manner;

    2. failed to involve the parents in the decision making process;

    3. failed to take steps to explore concerns regarding the mother’s lack of understanding [though making the point that at the meeting on 18th November 2013 the social worker was satisfied that the parents were able to provide informed consent to s.20 accommodation at that stage];

    4. should not have sought the parents’ consent on 31st May 2013 or taken their proposals of alternative carers as consent to the placement with Mr and Mrs B;

    5. placed insufficient weight on the parents’ clearly expressed wish to care for H themselves;

    6. failed to explain all available options, timescales and the consequences if they did not consent to H being cared for by Mr and Mrs B;

    7. should not have asked the mother to sign an agreement on 3rd June 2013 consenting to placement away from the parents;

    8. permitted H to be cared for away from her parents against their expressly stated wishes;

    9. failed to acknowledge that they had placed H with Mr and Mrs B or to undertake a written viability assessment of Mr and Mrs B [though noting that it did undertake routine checks, interviews and a review of the accommodation in the process of making a decision that it was a safe arrangement for H]; and

    10. significantly delayed in assessing the parents’ capacity to parent H.

  3. With respect to the declarations sought by the father, the local authority concedes that it acted in breach of the father’s Article 6 and Article 8 rights in that it:

    1. failed to provide him with appropriate information as to the consequences of not consenting to s.20 accommodation;

    2. failed to consider or explore his capacity to consent to s.20 accommodation before removing H from his care;

    3. permitted unacceptable delay and uncertainty in the assessment process; and

    4. by its flawed procedures, deprived the father of living with H for the first year of her life [though being of the view that both parents have complex histories and difficulties and that H's removal pending assessment of the parents was necessary to ensure her safety].

 

Having established those breaches, the Court then turned to the issue of damages. It is too law geek for the general public, but the judgment does set out an helpful analysis of the law and judicial approach towards making punitive awards in family law cases. It would be a decent starting point for skeletons for and against the principle.

 

  1. In the case with which I am now concerned H is these parents’ first child. Whilst it may be the case that had the local authority issued care proceedings soon after H was born an interim care order would have been made, the fact is that proceedings were not commenced promptly. They were not issued until shortly before H’s first birthday. It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.
  2. I am in no doubt that, bearing in mind the guidance given in the authorities to which I have referred, this is a case in which merely to make the declarations set out earlier in this judgment would not provide just satisfaction for all that these parents have had to live through as a result of the conduct of this local authority. I am satisfied that an award of damages is ‘necessary to afford just satisfaction’ to these parents.
  3. Quantum
  4. The final issue is to determine the appropriate quantum of damages. There is little guidance in the authorities on the approach to be taken when quantifying an award of damages under s.8(2). If one looks at the authorities for appropriate comparators, again there is relatively little assistance.

 

It is worth noting the underlined passages – these parents were successfully reunited with their child, and had lost the first year of that child’s life due to these mistakes.

 

The Court looked at such historical precedents as there were for human rights act breaches and financial recompense and agreed with the parents that their claim for £6,000 each was fair.   (I think that’s probably a bit light, having read the case, but can you really be compensated for something as priceless as time with your child?)

 

To finish up, there was a film which had a very memorable strap-line, used in the trailers and on the posters. It was so memorable that everyone knows it, though hardly any of you will be able to tell me which film it was from. Let me know if you know it, or think you do.  Googling or such is cheating – you either know it, or you don’t. I know that you can type.

 

The strapline, apposite here was

 

BE  AFRAID

 

 

BE VERY AFRAID

Nothing else will do – Court of Appeal clarification

We have been waiting a year for something like this, so this is quite a swift post pointing you to it and giving you the relevant quotations.

I wrote a piece for Jordans a long while ago, saying that whilst the “nothing else will do” test appears at first glance to be simple common sense English, there are a number of possibilities for what it actually really means

 

http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/nothing-else-will-do-why-the-last-resort-won-t-necessarily-be-the-last-word

For example, which of these following definitions of ‘nothing else will do’ is actually right?

(1) There is genuinely, literally, no other option that could be conceived of.
(2) The other options available are appreciably worse for the child than adoption would be.
(3) There are other options, but they require a degree of intervention by the state (ie the local authority) that they would in effect be unworkable.
(4) There are other options, but they require a degree of intervention by the state that the state says is disproportionat (at some stage, the R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1 decision is going to come into play).
(5) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 26-week PLO timetable.
(6) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 8-week extension to the 26-week PLO timetable that is permissible in ‘exceptional’ circumstances.
(7) There are other options, but in order to make use of them, the court would be extending the decision-making process to a point where the delay would be harmful for the child and the harm can not be justified [that is really where we have historically been].
(8) Any of the other options would cause harm to the child or carry with it a significant risk of harm to the child, and weighing up the options, adoption is the least harmful of all of the options available.
(9) Another one/ten that I have not thought of yet.

 

 

[I do sincerely apologise for quoting myself, and don't mean to do so in a Presidential manner, it is just that I knew I'd already written somewhere else exactly what I wanted to say here, and it seemed crackers to rewrite it from scratch]

 

So, which of those is it? Do the Court of Appeal finally help?

 

Re M-H (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1396.html

 

It involves an appeal from my own Designated Family Judge, so I’m rather relieved that her decision was upheld (otherwise it is slightly awkward to write about) but not my own Local Authority.

 

The appeal was brought largely on the claim that the Judge at first instance had applied the wrong test for the making of a Placement Order.

 

This is what the Court of Appeal say  (underlining as ever, mine for emphasis)

 

  1. The ‘correct test’ that must be applied in any case in which a court is asked to dispense with a parent’s consent to their child being placed for adoption is that statutorily provided by the sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002 interpreted in the light of the admonitions of the President in Re B-S (Children) [2013] EWCA Civ 1146 which drew upon the judgments of the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and rehearsed previous jurisprudence on the point. The “message” is clearly laid out in paragraph 22 of Re B-S and needs no repetition here.
  2. However, I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words “nothing else will do” to the exclusion of any “overriding” welfare considerations in the particular child’s case.
  3. It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of “nothing else will do” automatically bites.
  4. It couldn’t possibly. Placement orders are made more often in anticipation of finding adoptive parents than with ones in mind. Plans go awry. Some adoption plans are over ambitious. Inevitably there will be a contingency plan, often for long term fostering. The fact of a contingency plan suggests that ‘something else would do at a push’, the exact counterpoint of a literal interpretation of “nothing else will do”, and it would follow that the application would therefore fail at the outset.
  5. The “holistic” balancing exercise of the available options that must be deployed in applications concerning adoption is not so as to undertake a direct comparison of what probably would be best but in order to ascertain whether or not the particular child’s welfare demands adoption. In doing so it may well be that some features of one or other option taken in isolation would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits. But this is not to say that finding one or more benefits trumps all and means that it cannot be said that “nothing else will do”. All will depend upon the judge’s assessment of the whole picture determined by the particular characteristics and needs of the child in question no doubt often informed by the harm which s/he has suffered or been exposed to.

 

Boiling that down – it does not mean that there are literally no other credible options, nor does it mean that there are no other credible options which offer benefits. It means really that the Judge must choose the right option for the child’s needs but have in mind that if the child’s needs can be met by a less drastic order that should be preferred to adoption.

 

And that if a Judge is going to make a Placement Order, the judgment will need to set out the other options, assess their credibility and explain why they have not been followed.

 

It is really about judgments being rigorous and robust and analysing the pros and cons – I think for the last nine months we have all been swept along on replacing one set of stock judicial window-dressing phrases for another, that as long as the phrase “nothing else will do” peppers the case and the documents and the judgment that will suffice.  The real message of Re B-S for me, was that the options have to be set out with proper rigour as to what they would mean for the real child in the real case.

Faking medical evidence

 

This is a County Court case (if there is such a thing any more, I have largely decided to ignore most of the Children and Families Act 2014 and just wait for the reboot restoring all the terminology to the way it was). So it isn’t precedent, and isn’t one of those case that you HAVE to read.

 

It is unusual though, and I am grateful to one of my readers (waves at Cara) for drawing it to my attention.

 

Re E (a child) 2014

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B136.html

 

This is a private law case, albeit one with a Social Services flavour. In effect, when mum and dad separated and got themselves embroiled in an argument about contact (see, I told you that I was just going to ignore the new terminology) dad started to become enamoured with the idea that if he could show the Court that mum was abusing the children, that would improve his own case.

 

In part, this involved him making a series of allegations to his GP, Dr C, and getting Dr C to take up the battle on his behalf and trying to get Dr C to make referrals to Social Services about how mum was abusing the children. That’s not nice, but it isn’t necessarily unlawful.

 

What IS unlawful, is that when the father produced documents to the Court  provided by Dr C and signed by Dr C, they were partially faked.

 

There were a string of findings that the Judge was invited to make, but these are the pivotal ones for our discussion

 

 

    The father has perverted the course of Justice:

 a)              The father has amended and/or created a false statement purporting to be from his GP, Dr C dated 4 October 2013, and forged his signature on the statement and then filed and served the statement with the court;

 b)                 The father has amended and/or created a false second page to a letter originally written by Dr C dated 15 August 2013 and forged his signature upon the letter then filed and served the letter with the court in support of his application to call Dr C to give evidence. Both allegations are admitted by the father.

 c)               Altered the recording of E that he played to the police and to Dr C and presented it in edited form with the court to present a dishonest and/or misleading account of the original content. The father admits this allegation save that he does not accept producing a dishonest account.

 

 

For reasons that I cannot fathom at all, having produced this fake evidence from Dr C, the father was very keen indeed for Dr C to attend Court and give evidence. There’s a phrase ‘cognitive distortion’ which relates to when someone is so deep into their own lies that they start to believe them, and I can only think that this father for some reason thought that calling Dr C as a witness in the case was not (as you or I would think) a sure-fire way of exposing the documents as being fake, but in some way going to improve his case.

 

On 11 February 2013 [location redacted] Social services sent an email to Dr C informing him that Mr P had contacted them and had suggested that he, Dr C, had further concerns about E. They asked him to complete a referral form if that was the case. The doctor completed the referral form in which he stated:

 

“ The actions of the mum towards E are causing concern to E and the father R. Including withholding medicines, safety issues making her cross the road on her own, leaving her outside in the street, forcing cough syrup….” The father admits tippexing out the words which followed this entry before he filed the document with the court.

 

 

[Tippex is perhaps not the most sophisticated method of forging a document. It is rather beneath the level that one expects of a forger. Colin in The Great Escape, for example, would not have stooped to using tippex to create his German identity papers for those escaping POWs]

 

The father within the proceedings had also involved the media

 

 

During the course of these proceedings the father on two occasions threatened to tell his story to the press. On two occasions two judges, DDJ Murphy and HHJ Allweis warned him not to do so. However on [date in early 2014 redacted] 2014 an article appeared in the [name of newspaper given] in which the father’s account of his battle for residence and contact are repeated alongside a pixilated photograph of himself and E. Although the names were changed it was not too difficult for anyone in the relatively small local Jewish community to identify the parties. He gave the reporter details of her school so that the head teacher was interviewed. Her mother was also approached by the reporter.

 

In his statement the father acknowledged that what he did was wrong. The consequences for him have been stark as E has now refused to see him and the future of his contact is now uncertain.

 

 

The Judge gave judgment specifically on the consequences for father of having falsified documents lodged with the Court and relied upon

 

The father’s action in respect of the falsified documents

 

With regard to the falsifying of evidence. I find that the father falsified the letter from Dr C dated 15 August 2013 addressed to [location redacted] County Court at page C182 in the bundle by amending the second paragraph the paragraph at the bottom of page C182/3. He then forged the doctor’s signature. Thereafter he filed the document with the court as part of his evidence in the case. The letter which Dr C had signed is to be found at C 183(a).

 

I find that the father submitted a statement dated 4 October 2013 which he knew to be false in that it had not been approved or signed by Dr C purporting it to be a genuine document knowing that it would be used in litigation in the private family law proceedings being conducted in the County Court. This to be found at page C201.

 

The consequences of his actions are that there could have been a miscarriage of justice which could have affected the welfare of his daughter.

 

This is a serious and potentially criminal act. I have come to the conclusion that it warrants reporting the matter to the DPP for her to consider what if any action to take. A copy of my judgment and copies of the letters dated 15 August 2013 and the statements dated 4 October 2013 and 10 October 2013 shall be disclosed to the DPP or the police.

 

 

The Judge was also invited by those representing the mother to consider a referral to the General Medical Council in relation to Dr C, who had become embroiled in the litigation and had neglected his duties of fairness and safeguarding. Dr C had also learned that the father had submitted a fake document to Court but had left it up to father to own up rather than alerting the Court to this deception.

 

 

The role played by Dr C

 The mother supports the guardian in submitting that the doctor should be referred to the GMC.

 

The doctor’s involvement has been summarised above in that he knew that the father was involved in a dispute about the welfare of a child which was proceeding before the courts yet he did not exercise caution before writing the letters and making the referrals to social services. He sought to question the child with her father present in order to obtain evidence of abuse.

 I accept the submissions of the mother and the guardian. I make the following findings:

 i)                   Dr C was naïve and was manipulated by the father. The evidence suggests that he was targeted by the father as a means of obtaining evidence to further his case. In so doing he allowed E to have unnecessary medical appointments;

 ii)                 Dr C could and should have spoken to the mother. He did not know that the mother was a patient at the practice. A simple check before proceeding to refer to social services would have made him better informed in assessing the issues being raised by the father. He therefore failed to follow the safeguarding guidelines in that he did not provide support to the primary carer, the mother, before making the referral to outside agencies. Speaking to the mother would not have put the child at risk of harm.

 

iii)               Dr C failed to keep an open mind as to the truth of the allegations. In doing so he failed to protect her from the father’s allegations and he allowed the father to be present when the allegations were being discussed. He accepted, and I find, that his letters were too subjective.

 iv)               Dr C admitted that he was not up to date with his safeguarding training;

 v)                 Dr C’s clinical notes of appointments with E, where allegations of ill treatment were discussed, were not properly kept.

 vi)               He also admitted that he was not fully aware of the court procedures. This explains his willingness to issue the letters on Practice Headed notepaper. He did not consider what use the father could have made of these letters.

 

vii)             Dr C failed to contact the Cafcass officer or the court to alert them to the fact that the father had admitted to fabricating his statement and had forged his signature and had submitted the statement to the court as evidence in support of his case.

 

viii)           I accept the submission of the guardian that his actions albeit unwittingly, facilitated father’s emotional abuse of E.

 

I have carefully considered the submissions of the mother and the guardian. I agree that a copy of my judgment and a transcript of Dr C’s evidence should be sent to the GMC so that they can further investigate this matter and take appropriate steps if they consider that this is necessary.

 

 

With the profoundest respect

 

Firstly, apologies. I know that to lawyers, using that title is the equivalent of me going into a Wetherspoons pub, finding the drunkest person there, giving them a lot of amphetamines and telling them that (a) you were the person who stole their wife back in 1984 and (b) that they should go around your house and shout what they think of you through your letterbox.

 

Non-lawyers may not be aware of the lawyer code which is “with respect” = You absolute moron, you’re wrong.  “with great respect”  = ffs do you have anything between your ears, you are utterly wrong , “with the greatest possible respect”  –  I am going to have to get Malcolm Tucker to concoct a sentence which truly construes how annoyed I am with you and how wrong you are.  I honestly didn’t even know it went up as high as “with the profoundest respect”

 

So why am I dropping the P-R bomb on y’all?  Well, because that phrase appears in a judgment, and it is used by a High Court Judge, and he is using it about the Court of Appeal.

 

The Judge is Mostyn J (who has had a busy autumn), and the case is Re D 2014  http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.html

 

I wrote about Mostyn’s initial decision here http://suesspiciousminds.com/2014/01/08/brussels-sprouts-ii-this-time-its-jurisdictional/

I’ve written about the particular Court of Appeal decision here (and you can see that I may have been somewhat bored by it, because a lot of it ends up being co-written by Snoop Doggy Dogg – apposite given post 500)

http://suesspiciousminds.com/2014/02/21/and-i-aint-talking-bout-chicken-and-gravy/

 

The gist of it, very quickly.

The father in the case was found to present a massive risk to children. I don’t think anyone (even Ian from Forced Adoption) could dispute that he would be a bad person to be around children. The real meat of the case was whether mother could separate from him and stay away from him.

The background this case is to be found in my fact finding judgment of 30 November 2012 to be found in section A at page 53. I do not repeat it here. Suffice to say that I found the father, Stefan D, to be guilty of truly bestial conduct. I recorded his conviction in the year 2000 in the Czech Republic of offences of the utmost seriousness involving the gross abuse and exploitation of women and girls. I found how, after his arrival in the UK, he meted out appalling domestic violence to his wife, Daniella D. I found how he engaged in serious criminal activity, largely centred around illegal drugs. I described how I was satisfied that he had seduced his 16 year old stepdaughter by plying her with drugs; how he had had unprotected sex with her; and how she became pregnant by September 2011 when she was only 17 years of age. I recorded how this sexual congress took place in the family home to the knowledge of the other minor children there, B and K. I recorded how he was even having sexual intercourse in the same time-frame with his wife as he was with his stepdaughter. I found that the statutory threshold in section 31 of the Children Act had been comprehensively crossed, both in respect of past harm and the risk of future harm.

Care proceedings, mum and dad were both Czech, and had gone back to live in the Czech Republic. The baby was in care in England and the care plan of the Local Authority, shared by the Guardian was for adoption.  Mostyn J had to decide a Brussels II application, and in doing so, he raised an important philosophical question – if the outcome of the case would be radically different in another country (because England has non-consensual / forced adoption and the Czech Republic does not) should that be taken into account? Mostyn J did take it into account and decided that the case (and future of the child) ought to be transferred to the Czech Republic.

 

That was appealed, and the Court of Appeal in Re M (A child) 2014  http://www.bailii.org/ew/cases/EWCA/Civ/2014/152.html decided that Mostyn J was wrong, that you decide Brussels II on the facts of the case and you give no regard at all to how another jurisdiction might decide the case.

Here are the 3 questions to be answered

” … as Art 15(1) makes clear there are three questions to be considered by the court – here The Hague court – in deciding whether to exercise its powers under Art 15(1):

i) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child’s nationality (see Art 15(3) (c))?

ii) Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

 

I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, “what outcome to these proceedings will be in the best interests of the child?”

 

 

So they told Mostyn J that the English Court would decide the case, overturned his decision and sent it back to him for determination.

 

I have never had the experience of going back into a case where the Court of Appeal have told the Judge he was wrong and then gave him the case back – it must be a somewhat trying situation. We now see from Re D, just how exasperating a Judge might find that experience.

 

[In the interests of fairness, I'll throw my hat in the ring - I think Mostyn J first time got the right decision for the wrong reasons, and I think that the Court of Appeal had the right reasoning but reached the wrong decision, so I can see why there's some rancour there.  ]

 

What follows is all genuinely from Re D (at least all the stuff in bold – a Judge thought of this, wrote it down and published it. For real – underlining is by me, for emphasis)

 

 

  • The reason I am conducting this hearing today in September 2014 is because I have been ordered to do so by the Court of Appeal. My decision of 18 December 2013 was that a Czech court would be better placed to hear this case and in consequence of that decision I issued a formal request under Article 15 of Brussels II Revised Council Regulation No 2201/2003. That formal request sought the agreement of the Czech court to hear this case to its conclusion. My decision of 18 December 2013 was overturned by the Court of Appeal on 21 February 2014 and that is to be found in section A, page 167.
  • It is necessary for me to make reference to aspects of the judgments of the Court of Appeal, if only to clarify matters. The Court of Appeal decided that my decision was flawed as I had allowed the consideration of ED’s Czech nationality to dominate my thinking to the exclusion of any proper consideration of the second and third questions formulated in AB v JLB [2009] 1 FLR 517 (see paragraph 45 of Lord Justice Ryder’s judgment). It was said by him at paragraph 31 of his judgment that the practical considerations which I had identified at paragraph 40 of my judgment of 18 December 2013 were equally matched by the merit of judicial continuity. Notwithstanding that equal balance which I had ultimately decided in favour of a transfer request, Lord Justice Ryder held at paragraph 46 that the issue should have been decided in favour of a continuance of the case here. In his judgment Lord Justice Lewison suggested that in making my decision I had given expression to some kind of secret agenda or inherent hostility to the making of a care order with an adoption plan.
  • In my defence I would say this:

 

(1) If in fact I gave too much weight to the matter of nationality as a connecting factor under the first question it cannot be disputed that it certainly had to be given some weight. However, the Court of Appeal decision affords this factor no weight at all. Instead it merely balances the factor of judicial continuity with the practical considerations and, notwithstanding that they were found to be evenly balanced, my decision to seek a transfer was overturned. This is very hard to follow.

(2) I certainly, in my paragraph 29, was not operating any kind of secret agenda but was merely emphasising the draconian and momentous nature of care and placement orders and faithfully recording and following the views of the senior judiciary in Re B [2004] 2 FLR 142 at paragraph 101, per Mr Justice Munby (as he then was); Re B [2013] 1 WLR 1911, a decision of the Supreme Court; and Re B-S (Children) [2013] EWCA Civ 1146, a decision of the Court of Appeal.

(3) The conduct of this trial has shown how the Court of Appeal’s perception of an equal balance of judicial continuity and practical considerations was, with the profoundest of respect to them, wrong. No material from the fact finding hearing has featured in this case other than my judgment. My judgment has been treated as the alpha to omega of the past proceedings. Unquestionably another judge could have conducted this hearing in exactly the same way that I did. I did not reach for any unwritten nuances or impressions as referred to by Lord Justice Ryder at paragraph 27. In my previous judgment I stated that the advantage of me conducting the hearing would be marginal. With the benefit of actual experience I would say that I have had no such advantage. By contrast, even though Lord Justice Ryder thought in his final sentence of paragraph 31 that, “In a world where the use of information technology is a commonplace the physical location of a professional witness is rarely likely to be decisive” the experience of this case showed that this too was a misplaced view.

 

 

The technology all broke down (I have sad real-life experience of how awful it can be to be involved in video-link evidence overseas, and it is like the course of true love in that it never runs smoothly)

 

The video link to the Czech Republic frequently froze visually leaving me only with sound. I lost the chance in this case in respect of the three crucial witnesses from the Czech Republic to assess their demeanour. All the vital evidence from the Czech Republic had to be professionally translated. The translator gave a heroic performance but the exercise was completely unsatisfactory leaving me again unable, because of translation, to judge these important witnesses’ demeanour. The father also gave his evidence by video link or for much of the time only by audio link, again translated. It was very difficult for me to judge him in the way that I am required to do so.

 

 

  • In my judgment of 18 December 2013 I said at paragraph 40 (this is page A165, the final two sentences):

 

“But beyond these lofty expressions of principle are the simple practical facts that the parents are in the Czech Republic. Baby LD is in the Czech Republic and any proceedings in the Czech Republic will be conducted in the first language of the parents.”

Those practical facts loomed very large in the hearing before me. Those practical facts, or rather my inability to give expression to those practical facts, impeded the trial significantly. Notwithstanding that I had been found by the Court of Appeal to have erred, I am convinced that this case was at all times better tried in the Czech Republic. And had it been tried in the Czech Republic then no placement order, as contended for by the Local Authority and supported by the guardian, could have been made, as that order, in common with almost all other countries in the EU, with the exception of Ireland and Croatia, is beyond the powers of the court in the absence of parental consent.

 

 

The Judge discusses the expert witnesses from the Czech Republic who gave evidence via this flawed video-link. When you see that one of them said in writing that the mother could ‘definitely’ protect the child, you might have your antennae for “you’re going to collapse in cross-exam” twitching, and you’d be right

 

 

  • The next three witnesses were taken over the often malfunctioning video from the Czech Republic and they were the psychotherapist, Leona Hozova, the father and the social worker, Pavla Polakova. I will take the two professional witnesses first. Their written material was laconic indeed but it is not for me to criticise what may well be the usual practice for making professional reports in the Czech Republic. If it is the usual practice then as one who has to read these reports I can see a lot to commend it. Leona Hozova, a psychotherapist employed by the Domino Organisation, a well-known organisation in the Czech Republic, has provided three short statements at section C159, 193 and 195. I quote from the most recent dated 29 May 2014. It is so short that I can read it in full:

 

“From a position of a psychotherapist working with the family, I can respond within my competence as follows:

Ms M, dob 23.04.1994, is capable of recognising a danger and she is definitely able to protect her children, in this case her son ED, dob 27.06.2012. Ms M is an exemplary and loving mother. She is able to bring children up and to create them a relationship in harmony. From an attachment point of view, she is able to create safe and strong bond between her and her children. In a case of any possible danger she would be the first one to protect and defend her children.

At this time Ms M exhausted from the whole situation, psychologically very tired. This whole situation is very difficult for her and her family. Despite this she is still able to function as a mother without any problems and to carry out her child’s needs. During our consultations with Ms M we do not only talk about her psychological state, but we work together on developing her parental competency and smooth care of her child.

As a family psychotherapist I do not find any reasons to take Ms M’s child away, she is a caring and loving mother.

In terms of the psychological help which I am providing to the parents, so far I did not find any pathological elements in the behaviour of the father of Stefan D, dob 25.10.1972. Mr D is able to look after the daughter LD, dob 13.09.2013, without any problems and with love even at times when Ms M is away in England. Mr D is psychologically very broken from the whole situation, delaying of the whole matter has broken him psychologically. As a psychotherapist I can not express my opinion regarding his personal life and his actions at the time before our psychotherapeutic sessions.

Recommendation:

I recommend ED to be returned to his parents.

If it was not possible due to some particular reasons, then I recommend to place ED to foster care in the Czech Republic into a foster family who is experienced with foster care and who would live near to the parents, the reason is the most effective complying with ED’s needs and to enable ED’s contact with his biological parents.

I recommend to continue in regular psychotherapeutic consultations with the parents (both individual and in pair) and in strengthening their parental competence, further on in company of a family advisor who mainly focus in children in the family and in their care.

This opinion has been given on request of the High Court in London, England.”

 

  • In her oral evidence she confirmed that the mother and father had punctiliously attended all psychotherapeutic appointments. However, under cross-examination and significantly she accepted that she was not convinced, notwithstanding the mother’s assertions, that she would in fact ever leave the father, notwithstanding that in her assessment the mother was full of love and was a very careful mother to baby LD. She was satisfied that the mother authentically loved the father but she was of the view that that love was a search by the mother for a substitute father figure, a substitute for the father who abandoned her when she was a young child. She confirmed that she had spoken to both parents about the findings made by me in my fact finding judgment of 30 November 2012 but the father had told her unambiguously that they were not true. He told her that he rejects my findings of domestic violence meted out to his wife, Daniella D, although, in contrast to what he told me at the fact finding hearing, he accepted that he was actually and properly guilty of the criminal offences in respect of which he was sentenced in the Czech Republic in the year 2000. Similarly, but not nearly to the same extent, the mother told her, the psychotherapist, that she did not accept my detailed findings in which the relationship was begun and conducted.
  • Miss Hozova told me that in the Czech Republic there would be available foster parents who could look after ED and that such foster parents had full experience of caring for Roma children. Under cross-examination she accepted that she had tried hard to open up the topic of the father’s past conduct as found by me but that he simply would not co-operate. In a very significant statement for my purposes she stated whilst being cross-examined:

 

“For as long as he does not accept the findings there are considerable risks in placing ED with him and the mother.”

 

 

The Judge weighed up the evidence very carefully and rejected the proposals made by both sides (the mother seeking return of the child, the LA and Guardian seeking adoption)

 

 

  • These are my conclusions. First, I reject the proposal by the mother that these proceedings be dismissed and ED be returned to her and the father in the Czech Republic. That is manifestly not in his interests. Such a placement back with his parents would be replete with far too many risks in circumstances where the father categorically rejects the majority of the previous findings made in this case. He plainly cannot confront his demons until he has identified his demons. The same is true to a lesser extent in relation to the mother. If these parents were living here it is inconceivable that ED would be returned to them. That they are in the Czech Republic surely makes no difference. If a corollary of this finding by me is that I must conclude that baby LD should not be with her parents while deep professional work is done the first base of which is a full acceptance of the wrongdoing the father has done both to Daniella and to the mother, then I do not shrink from expressing that corollary.
  • I now turn to the choice urged on me by the Local Authority and supported by the guardian. In Re B-S at paragraph 19 the President, Sir James Munby, stated:

 

“It is to be remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trust and Another v H and Another [2006] UKHL 36 at paragraph 34 that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.”

 

  • In this case Janet Kavanagh in her second statement dated 14 June 2013 has adduced certain research extolling the merits of adoption. At paragraph 22 she said this:

 

“The benefits of successful adoptions are well-evidenced: the overview of evidence research by Coram and Barnados (Exhibit 2) shows adopted children have good psychological outcomes and more stable placements than children brought up in care. “Adoption by contrast (with long-term fostering) is associated with lower disruption rates and placement stability confers a reduction of problems over time and growth of attachment” (Social Care Institute for Excellence in their scoping review of research of looked after children, Exhibit 3). Moreover the Adoption Research Institute (Exhibit 1) goes so far as to state that said that, ‘Adoption should be considered for every child who can not return home’.”

 

  • The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment.
  • Therefore I turn to the two intermediate choices and ask myself if either of them will “do.” Only if neither will “do” will it be appropriate to make the order sought by the Local Authority. In my judgment a special guardianship order in favour of the current foster parents would be the preferred solution. I will not spring such an order on them or on any of the parties here pursuant to the Children Act 1989 section 14A(6)(b) and I cannot in fact envisage such an order being made of the court’s own motion other than by consent. Only if the foster parents apply for a special guardianship order will such an order be made. I invite them to decide within 14 days of today if they will apply for a special guardianship order. If they do I urge them to apply promptly so that a report under section 14A(8) can be prepared.

 

[You may remember the Court of Appeal case I recently discussed where the foster carers WERE putting themselves forward and the Court of Appeal said the Judge was not wrong to reject them - here they weren't, but the Judge was trying to persuade them to do so]

 

I think that this is an important case – not for setting precedent – this won’t be relied upon in other cases and if it was attempted to be, I am confident that the Court of Appeal would have little hestitation in correcting Mostyn’s views here. But it frames an important philosophical debate – do the Court of Appeal really mean ‘nothing else will do”  – or do they mean “the other options must be considered and if adoption is the decision the Court must explain why they have been rejected”  – and Mostyn J raises the other major issue – are WE right in allowing forced adoption (together with two other countries in the EU, or are the other 25 countries right to have rejected it?

How long will it be before this is litigated, at length in the ECHR?  Y v UK set down the marker that Re B  and then Re B-S followed  [some observers, myself included think that 'nothing else will do' was an attempt to get English adoption law back in line with the ECHR view of it], but has there actually been a sea-change in the sort of cases that warrant adoption or have we all just swapped one set of ‘judicial window-dressing’  (draconian order) for a fresher one ‘nothing else will do’ ?

 

I have to say that it feels sometimes on the ground that we have just swapped our incantations for a newer form of words, rather than the radical re-think on adoption that Re B-S looked like a year ago.

 

What was Mostyn J’s plan if the current carers did not offer themselves up as Special Guardians? Well, here’s where it gets interesting. And remember, the Court of Appeal had said no to transferring this case to the Czech Republic under Brussels II.

 

If the foster parents do not signify that they will seek a special guardianship order I then will turn to consider the choice of a placement with Czech foster parents. If I were to do this it could not be under a care order. It is trite law confirmed by a decision of the House of Lords that once a care order is made all subsequent decisions concerning placement of the child are delegated to the Local Authority without interference from the court. The only role the court has thereafter is in relation to contact. Therefore if I were to go down this route it would have to be outside the care proceedings; those proceedings would have to come to an end and wardship proceedings would have to be commenced. The order placing ED with Czech foster parents would be a judgment made in wardship proceedings and such a judgment would be enforceable under Articles 21 and 23 of Brussels II Revised and under Article 23 of the 1996 Hague Convention. However, the judgment could only be enforced in the Czech Republic provided that Article 56 had been complied with (see Article 23(g) of Brussels II Revised).

 

I.e, I’ll make a wardship order and place the children in foster care in the Czech Republic.

 

The LA and Guardian expressed some doubts on that, given that the agencies of the Czech Republic had been leaning more towards rehab to mother’s care.

 

 

  • If therefore there is no signification by the foster parents to seek a special guardianship order within 14 days I direct that the central authority, OILPC, be notified that this court is contemplating a placement of ED with Czech foster parents and ask them to set in train the identification of such foster parents in accordance with the terms of the letter which I have just read out. If foster parents have been identified by the Czech central authority pursuant to the procedure set out by 1st November 2014 the matter must be restored to me to consider the suitability of those foster parents. If they are suitable then I will make the order in wardship that ED be placed with those foster parents and such an order and judgment will explicitly provide that the question of contact or indeed discharge from foster care will be made by the Czech court.
  • In principle I consider that foster care in the Czech Republic is a preferable solution to the irrevocability of a care order and placement order although, in my judgment, it is not as preferable as a special guardianship order. My reason is that in this case the ethnicity factor and parental link I regard of critical importance and which must have the capacity of being preserved and should not be irrevocably severed on the facts of this case. I reject the argument made for the Local Authority by Mrs Rowley, and by Mr Veitch for the guardian, that this solution is replete with risks because the Czech court might return ED to his parents. If I might respectfully say so it is a highly chauvinistic, almost neo-colonial sentiment. If the Czech court does return ED to his parents it will be after a full hearing with the child represented by a guardian. Plainly there can be no serious suggestion made that the Czech court would not, in any hearing, properly promote the interests of ED. Only if both of these intermediate choices prove to be impossible will I be satisfied that nothing else will do and in those circumstances I would make on the evidence the care order and placement order.
  • I accept entirely that the solution I have proposed and which I order will involve further delay in achieving finality for ED. I accept that the avoidance of delay is an almost canonical prescription in this kind of proceedings. However, bearing in mind that I am making arrangements which will affect the whole of ED’s life I do not believe that the most profound consequences of that decision should be sacrificed on the altar of the avoidance of delay.

 

So, to suggest that the Czech authorities might return the child to mother’s care is highly chauvinistic and almost neo-colonial…

 

Let’s see what the Czech authorities had to say (AFTER the judgment was handed down. Again underlining mine for emphasis)

 

 

  • On 29 September 2014 this court received a letter dated 23 September 2014 from Mr Zdeněk Kapitán, the Direct of OILPC. This was written and received well after I had orally given judgment. The letter reads as follows:

 

“The Office for International Legal Protection of Children, as the Central Authority of the Czech Republic under the Council Regulation (EC) No 2201 /2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 hereby states its position regarding the case of the child mentioned above.According to the information available to the Office, the child is currently removed from the care of his parents and is placed in the foster care.

As our Office is highly concerned about the best interest of the minor who is the Czech national we respectfully ask the Court to consider, while deciding in the Care Order proceedings the following rights of the Child arising from the international conventions named below that are binding for the United Kingdom of Great Britain and Northern Ireland.

Firstly, the Office would like to point out at the Article 8 of European Convention of Human Rights that regulates the right to respect for private and family life, the Office hereby highlights the case law of the European Court of Human Rights (hereinafter “ECHR’) in respect of the Article 8 of the Convention. In particular the ECHR constantly rules that “the fact that a child could be placed In a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents, there must exist other circumstances pointing to the effective ‘necessity’ for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with the child” (T v FINLAND, § 173)

Furthermore, the ECHR declared that “although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may jn addition be positive obligations inherent in an effective ‘respect’ for family life. Thus. where the existence of a family tie has been established, the State must in principle act in the manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited” (KUTZNER v. GERMANY. § 61).

Secondly, the Office draws the attention of the Court to the Article 8 and Article 9 of the United Nations Convention on the Rights of the Child under which the States Parties undertake to respect the right of the child to preserve his or her family relations and shall ensure that a child shall not be separated from his or her parents against their will unless the certain conditions are met.

Finally, the Office understands that the habitual residence of the above child is in the territory of the United Kingdom and that the Court shall have the jurisdiction in the matter. Nevertheless if the Court considers that it is in the best interest of the child to proceed under the Article 15 and/ or the Article 56 of the Regulation, the Office supports such proceedings and is very open to offer the Court its further assistance in proceedings under the Article 15 and / or the Article 56 of the Regulation.

In conclusion, the Office appeals to the Court to take into consideration the aforesaid and not to interfere with the right to respect for family life unless it is necessary and justifiable.

This statement is to emphasize the importance and priority of the work with the biological family over the very extreme measure of separating the child from his parents and placing him into foster care. Accordingly, we are of the opinion that in case the parents are not able to take care of the child, the members of wider family should be always considered as potential carers.”

 

I might be highly chauvinistic and almost neo-colonial, but I read that as the Czech authorities dropping a pretty big hint that if the child is in their control, they view foster care as the last resort and a very extreme measure.

 

Now, one could of course argue – this is a Czech mother, a Czech father, a Czech baby – let the Czech Republic get on with it and make their own decisions, it is really their baby to make decisions about.  Except… that’s exactly what Mostyn J decided first time out and the Court of Appeal rejected that.

 

We don’t know yet what has actually happened. Here is my guess – either the LA and the Guardian began drawing up an appeal claim straight away OR a lot of pressure was put on the current foster carers to take up the offer of Special Guardianship to avoid further ligitation.

 

I’m not a huge fan of how Mostyn J has necessarily gone about this, but it is a real practical issue on the ground – we are having more and more babies in England and Wales whose parents are from other parts of the EU, those countries being ones who don’t have non-consensual adoption – should we be spending huge amounts of taxpayers money litigating these cases in England, or should the decisions about the children be taken in the parents country of origin?   (It gets ludicrously tricky if mum and dad are from different countries within the EU, of course)

 

The ECHR’s already tough line on non-consensual adoption was in a case where the UK was making decisions about the children of its own citizens – might they take an even tougher line when the first case of a foreign national’s children goes before the ECHR?  The Italian C-section case drew a lot of overseas attention – and if we have 3 countries within the EU who support non-consensual adoption and 25 who don’t, the UK government may not be preaching to the converted if a case of that kind comes up before the ECHR.

 

 

Hounds of Justice – 500th post!

Obviously, I meant to do something weighty and serious for the 500th post. But as luck would have it, the marvellous Last Week Tonight gave me a much better post.

 

If you’re not familiar with Last Week Tonight, it’s a show on HBO (and Sky Atlantic) which is a satirical news show. It happens to be both the funniest and most thought-provoking show on tv, and tackles really hard hitting stuff in amongst the light nonsense.  It’s also presented by a geeky man in spectacles, so it is close to my heart in a number of ways.

 

On this week’s show, after presenting a hard-hitting piece on how mindless and stupid bureacracy has prevented translators in Iraq and Afghanistan who risked their lives to help US forces from taking up the US citizenships that they were promised, the show tackled the difficult issue of how the law can decide really very important things BUT it is really boring and dull to watch.

 

So, they took what was already a pretty funny case (is it Unconsitutional to ban prisoners from growing beards because they might hide tiny revolvers in them) and showed how you can present that in a gripping and televisual way.  By the way, if you are drinking coffee when watching this, I am not liable if it comes out of your nose.

 

 

 

They also kindly provided raw footage and material on line, so that people could take the actual audio tapes of any Supreme Court hearing and turn it into this style of presentation, and people are already putting major decisions up on You Tube.  NOW THAT’S WHAT I CALL TRANSPARENCY.

 

I CANNOT WAIT for the next UK Supreme Court decision….

Permission : Impossible

 

(I asked the Court of Appeal to give me a permission judgment, so I could use this title, and they delivered the same day I asked.)

Re G (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1365.html

This was an application for permission by the mother to appeal out of time in relation to the making of a Care Order and Placement Order.

Those orders had been made as a result of overwhelming and unanimous medical evidence that the child had suffered a brain injury deliberately inflicted (it’s a classic ‘shaking injury’ case)

The orders had been made in September 2013, and the appeal itself was heard in September 2014, so clearly out of time.

The interesting wrinkle was that the mother was seeking to rely on ‘fresh evidence’ – her case was that she had learned after the final hearing that an infection that she had had was steptoccocal in nature, and thus might have been passed on to the baby in the birth canal – and thus that the ‘injuries’ to the child might have been as a result of organic causes rather than injury.

The mother obtained a report from Dr Wayney Squier dated 28th April 2014.

(The Court of Appeal descend into quite a bit of detail on her credentials and whether Dr Squier ought to have disclosed within her report that she was up before a Fitness to Practice Panel in relation to allegations about her doing expert reports that she wasn’t qualified to do. I’m not going to go into any of that, because I obviously don’t know the outcome of the Panel – Dr Squier might very well have been utterly exonerated / be utterly exonerated. And the Fitness to Practice Panel might drag on for months/years, so is she to lose her livelihood in the meantime?  Slightly different of course if the GMC suspend someone.  Let’s just say that the Court of Appeal tend to think that it was a material fact which OUGHT to have been communicated by the expert, rather than as here, everyone learning this when they heard it on the radio)

I have tried to track through the judgment, how that report came about. It clearly wasn’t ordered within the care proceedings. And it had not been ordered by the appeal courts. It emerges that an application had been made to the Judge who had decided the fact finding hearing and been granted. I’m not sure what the locus for that would be, given that there were no proceedings at that time. The purpose of the report was to see if there was a basis for appealing on fresh evidence – it was obtaining that fresh evidence.
The Court of Appeal were therefore looking at a number of issues

1. Could mother apply for an appeal out of time based on fresh evidence, asking the Court to re-open factual issues?
2. Did the Circuit Judge have jurisdiction to authorise the instruction of Dr Squier (or anyone) ?
3. If the appeal was to go ahead, would it be successful?

 

 

As indicated in paragraph 11 above, the single judge identified two procedural issues “for the consideration of the full court” namely (i) whether it was possible for the mother to apply to the first instance court to re-open factual issues; and (ii) what jurisdiction a county court judge had to grant permission to obtain and file a fresh expert report on the concluded factual issues in the context of an adjourned application for permission to oppose adoption.
Miss Bazley, Mr MacDonald and Miss Hurworth have provided full written submissions supported by numerous authorities and statutory provisions in relation to each. However, we have resisted the opportunity to hear oral submissions, the outcome of any deliberation on these points being superfluous to the merits of the mother’s applications. Nevertheless, Miss Bazley invites the court to give its views on the questions posed, albeit obiter, for future reference if necessary.
Clearly more detailed examination of these issues may be called for in the future when any alleged procedural irregularity potentially taints the ‘fresh evidence’ that may otherwise be admitted. In those circumstances the arguments can be more readily appraised when specifically addressed to the point in context. This court recognised the existence of Dr Squier’s report without condoning the procedure adopted by HHJ Roberts in relation to it. The mother’s position was not thereby prejudiced; quite the contrary.
However, I am content to provide my provisional view in relation to cases in which a sealed order follows on from findings of fact which subsequently become subject to challenge such as here in the light of the judgment in Re L and B (Children) [2013] UKSC 8. Lady Hale’s judgment makes clear that challenge after sealed order must be in the appellate court arena. See paragraphs 16 and 19, and particularly her response to a submission that the order should not be an automatic cut off to re-visitation of the facts in paragraph 42.
In the light of this high authority my answer to the first question posed by the single judge would therefore be: if a final order has been sealed, no.
I would regard the answer to the second point to be informed by that to the first in so far as it relates to a report containing contrary medical opinion. It follows that if there is no jurisdiction to re-open the findings of fact once an order is sealed then the court has no jurisdiction to permit expert evidence on the point since FPR 25.4(3) provides that the Court may only give permission to adduce expert evidence if “the court is of the opinion that the expert evidence is necessary to assist the court to resolve proceedings.” This provision must surely refer to extant proceedings within the court’s own jurisdiction and not prospective applications to appeal. The existence of a contrary expert opinion cannot establish a “change of circumstances”, absent re determination of the issue, and therefore cannot inform the necessary welfare assessment of the child in an application for leave pursuant to section 47(5) of the 2002 Act.
My answer to the second question posed by the single judge would therefore be: none.

 

 

Once the order has been sealed, any challenge to it must be by way of appeal not to the Judge who made it. And thus, any directions or decisions in relation to the preparation and presentation of that appeal have to be made by the appellate Court, and NOT the Court that decided the original case.
The Court of Appeal also give some helpful guidance in relation to ‘fresh evidence’ appeals generally (these are cases where the appellant is saying not that the judgment as it was made at the time was wrong, but that in the light of new information we can now see that it was wrong)
They correct any misunderstanding that people may have had following Webster that in cases involving children there’s a greater leeway to admit fresh evidence.

The jurisprudence concerning the reception of “fresh evidence” by an appellate court is well versed. The discretion to admit fresh evidence is provided by CPR 52.11 to be exercised in accordance with the overriding objective of CPR 1.1. Nevertheless, LADD v MARSHALL [1954] 1 WLR 1489 remains powerful persuasive authority; the criteria identified therein effectively covering all relevant considerations to which the court must have regard.
Mr MacDonald directed his written and oral submissions in support of his application to admit fresh evidence to addressing the principles in Ladd v Marshall but reminded the court of Wall LJ’s judgment in WEBSTER V NORFOLK COUNTY COUNCIL [2009] EWCA Civ 59, with which Moore-Bick and Wilson LJJ agreed, to the effect that it “was generally accepted that in cases relating to children, the rules it lays down are less strictly applied.”
For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in ‘children’s cases’. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.
Clicking on the Ladd v Marshall link http://www.bailii.org/ew/cases/EWCA/Civ/1954/1.html

I see that it is a case where Lord Justice Denning gave one of the judgments, so it is going to be worth a read.

Ladd v Marshall involves an alleged sale of land, where the money was allegedly paid in cash. The seller of the land (Marshall) pulled out of the deal, and denied ever having received the money. At the civil trial, the seller’s wife gave some very limited evidence, basically keeping schtum.

However, in her later divorce proceedings, she included in her petition that her husband had made her not tell the truth in the civil trial.

Ladd got wind of this and wanted to appeal the original court’s decision that there had not been a sale of the land, because Marshall’s wife was indicating that if she had been able to give honest evidence she would have said that she witnessed Ladd giving Marshall the money.

With me?

In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible
The Court of Appeal in that case felt that those three facts were problematic in this case – Mrs Marshall was claiming that she had lied in Court proceedings, so her credibility was at least questionable.
Putting the test into a nutshell – it has to be evidence that could not have been reasonably obtained at the time, the fresh evidence has to be evidence that would be presumed to be true (i.e not controversial) and also evidence that if it had been known would have been conclusive.
Going back to our case of Re G – Dr Squier’s report didn’t fit any of those categories – it fails all three tests. It at best, cast some doubt upon the other medical evidence but was an opinion that would have been open to challenge rather than being presumed to be true, and also that would not have been conclusive. It barely touches the ‘new’ aspect, and the Court of Appeal doubted that the infection issue was “new” rather than just had been overlooked at the time.

the further evidence of Dr Squier fell to be considered in two parts: that relating to the possible consequences of the mother’s streptococcal infection, and that relating to the “wider” consideration of possible causes of H’s condition on arrival at the hospital. As to the first part, Dr Squier professes no relevant expertise and offers only the most banal observation. Even if one were to accept (which I do not) that this evidence could not with reasonable diligence have been obtained for the fact finding hearing, it is not realistic to suggest that it could have had an influence on its outcome.
As to the second part of Dr Squier’s report, it is notable that all the references cited in support of her views pre-dated the fact finding hearing. Mr MacDonald accepted that Dr Squier’s opinions, which she bases on these references, were “out there” at the date of the hearing. In a case concerning the welfare of a child this might not in all cases be a sufficient basis to reject an application to admit further evidence. But as Macur LJ has explained, this is not a case where it can be said that the alternative explanation was overlooked. Moreover, as Ms Bazley demonstrated to my satisfaction, there are, to put it at its lowest, serious grounds for supposing that the alternative explanation proffered by Dr Squier, is founded on an insecure scientific basis. For those combined reasons it is therefore not possible to say that, if admitted, the further evidence would be likely to have an influence on the outcome.
and Lord Justice Briggs puts this in even more pithy terms
The first part was of no weight, while the second part amounted to no more than a different view from that of the jointly instructed experts who were unchallenged at trial, not based on any material which post-dated it. It cannot be a proper basis for the admission of fresh evidence that a party has, since the trial, merely found an expert with a different view. That was not of course the basis upon which Dr Squier was instructed, but the supposedly new possibility of infection turned out to be a matter upon which she could offer no useful opinion.
That bit rather reminded me of the apocryphal Samuel Johnson review

“sir, your manuscript is both good and original. Sadly, the parts that are good are not original, and the parts that are original are not good”

Ministry of Justice press release – fixxored

 

 
The MOJ sent me this press release today
A new law taking effect today will reinforce the importance of children having relationships with each parent following family breakdown. Parental involvement is the last part of the Children and Families Act 2014 to be implemented and marks the end of a significant phase of reforms to the Family Justice system.

The change will encourage parents to be more focused on children’s needs following separation and the role they each play in the child’s life. It will require family courts to presume that each parent’s involvement in the child’s life will further their welfare – where it is safe. However the needs of the child will always remain the paramount priority of the courts.

In 2011 the Family Justice Review landmark report found that the family justice system was ‘no system at all’ and that children’s needs were not being met. Since then the Government has made bold reforms so that the needs of children are firmly at the heart of the family justice system from now on.

The reforms include:
• The introduction of the new Family Court in England and Wales with a simpler single system and a network of single application points making it much easier for the public.
• The introduction of a 26 week time limit for care proceedings to reduce further the excessive delays in these cases and give greater certainty to the children involved.
• New child arrangements orders which will encourage parents to focus on the child’s needs rather than what they see as their own ‘rights’.
• Compulsory family mediation information meetings so separating couples must consider alternatives to the harmful and stressful court battles when resolving financial matters and arrangements for children.
• The Government continues to monitor closely the family justice system, and has recently announced a single mediation session for both parties if one of them is already legally aided.

 

I thought it was in need of a bit of modification, so I have fixed it for them. Here is the new version

 

The Government held an independent review into Family Justice, which concluded that there was no need for a statutory declaration about ‘equal parental involvement’ – but we ignored that and announced that we’d introduce it, then we got scared off by all the objections, but then we were too scared to admit we were wrong, so we cobbled together some meaningless form of words that achieves nothing and satisfies no one and changes nothing. That new meaningless form of words comes into effect today. You’re welcome!

In 2011 the Family Justice Review landmark report found that the family justice system was ‘no system at all’ and that children’s needs were not being met. Since then the Government has made bold reforms so that the needs of children are firmly at the heart of the family justice system from now on.

The reforms include:

 
Making it so that if there’s an allegation of rape the alleged rapist probably has to cross-examine the alleged victim themselves

Removing legal aid from private law proceedings and hiding behind a “it will happen for cases that deserve it” clause that we secretly brief is never to be used

Having the Children’s Commissioner report that our reforms have had bad consequences for children

Locking the doors to public counters so that nobody can talk to our staff

Using the word “Hub” at every possible opportunity, without ever outlining how these Hubs will be funded or staffed.

Making user-friendly new forms that are utterly unintelligible and take an eternity to fill in

Giving ‘residence’ and ‘contact’ a new name in the mistaken belief that that will make everyone behave reasonably at all times
The introduction of a 26 week time limit for care proceedings to reduce further the excessive delays in these cases and give greater certainty to the children involved (although the Court of Appeal have told everyone that as long as they tick the right box on the new user-friendly form, they can go over the 26 weeks).
Compulsory family mediation information meetings that have a far lower take-up rate than when they were purely voluntary

Introducing Regulations that were beyond the scope and the power of the Lord Chancllor to do so, which were xenophobic in intent and a sop for the right-wing Press / our MPs who were thinking of defecting to UKIP

Did we mention the Hubs?

 

 

Yes, I think that’s rather more accurate

 

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