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Author Archives: suesspiciousminds

Re R – is B-S dead?

 

That’s the Court of Appeal case that we’ve been talking about all week.  It happened to come in time for my deadline for my Family Law column, so my analysis of it is over there.

 

I know not all of you read Family Law, so here is the link.

 

In very short terms, the Court of Appeal layeth the smackdown on those people who were pushing, stretching and exagerrating Re B-S to be an authority for “leave no stone unturned, climb every mountain, ford every stream – till you avoid adoption, that’s B-S’s dream”.   BUT  Re B, and Hale’s formulation stands – the President specifically says that Courts can’t make a Placement Order unless satisfied that Lady Hale’s formulation applies, and every single bit of content in Re B-S still applies.  In a nutshell, Re R says to advocates, don’t take bad points and don’t appeal on flimsy technicalities based on your notion of what a post Re B-S judgment looks like.

 

http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back#.VJLA_3vzOud

Child Sexual Exploitation (Birmingham injunction case)

 

This case, in which Keehan J made wide-ranging injunctions against a number of men who he was satisfied had been involved in grooming children for nefarious purposes, made the news. I have been waiting for the judgment for the following reasons :-

 

1. This remedy, if it stands up, is a better approach than placing victims of child sexual exploitation in secure accommodation (locking up the victim)

2. The precise methodology was not in the press reports, particularly in the use of the inherent jurisdiction not only to protect AB, the subject of the application, but all children under 18.  Is this lawful, and if so, how?

 

[On the latter point, the Inestimable Martin Downs has written persuasively over at the UK Human Rights blog

http://ukhumanrightsblog.com/2014/12/01/inherently-uncertain-is-there-authority-for-that-questions-over-birminghams-grooming-injunctions/

 

particularly on whether  there are difficulties in using the inherent jurisdiction to achieve something for which Parliament has laid down a statutory mechanism for  (albeit one with different tests)  ]

Birmingham City Council v Riaz and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html

 

Here are the injunctions that Keehan J made   (I have italicised the bits that I consider problematic)

From the time this order is served upon X until the date specified in this order X Must Not:

a. contact AB by any means, in person and or through any third person whether by way of face to face contact, telephone (mobile/landline/facetime/skype etc.), text messages, MSM, blackberry, chatrooms, or other social media whether or not such contact is invited in the first instance by AB

b. seek the company or be in the company of AB whether or not invited to do so in the first instance by AB

c. approach AB in any manner, whether in public, on the street or other public areas such as parks, in private addresses open to certain members of the public such as any food outlet, retail outlet, café, public house, bar, hotel, club, nightclub etc, on public transport, in or at any premises associated with a sporting or entertainment activity or in any private residence, whether or not invited to do so in the first instance by AB

d. follow AB in any location public or private

e. approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station.

f. pass on details for AB for example name, location, address, telephone numbers at which she can be reached or the names of other persons through whom she can be contacted save as directed by the police or order of the Court.

g. incite, encourage or facilitate the introduction of AB to any other male.

h. incite or encourage any other male to seek any form of contact with AB

i. cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

And is bound by such order until 18th August 2015.

 

There isn’t really much doubt that the High Court has power under the inherent jurisdiction to make all of those injunctions about AB, the subject of the application. The issue is, are the bits in italics stretching the inherent jurisdiction too far?

 

I appreciate that for many readers, their reaction might be the same as mine was initially – they are grown men who shouldn’t be hanging around with teenagers anyway, they should be stopped.

As a matter of morals and ethics, I probably agree. I’m no fan of what these men are said to have done.

Legally speaking though, this is very widely drawn, and is it a proper use of inherent jurisdiction?  Long-time readers might know of my disquiet when judges trot out that old saw about the powers of inherent jurisdiction being theoretically limitless.

 

It is a long and detailed judgment, but the passage that deals with whether there is power to make the order is very short.

  1. The inherent jurisdiction of the High Court “may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits” Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23.
  2. The use of the inherent jurisdiction has been substantially curtailed by the provisions of s100 Children Act 1989. A local authority may not apply for any exercise of the court’s inherent jurisdiction with respect to children without the leave of the court: s100 (3) Children Act 1989.
  3. The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:

    1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

    1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: -

    a) orders to restrain publicity;

    b) orders to prevent an undesirable association;

    c) orders relating to medical treatment;

    d) orders to protect abducted children, or children where the case has another substantial foreign element; and

    e) orders for the return of children to and from another state.

  4. In Re M and N (Minors) [1990] 1 All ER 205 at 537, Waite LJ said:

    “the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages”.

  5. I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the “self imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.

 

The Court applied the civil standard of proof here – in fact, as is plain from the judgment, the police were unable to seek prosecutions on this case and the criminal standard of proof would not have been made out.  It might surprise family lawyers, who think that the civil standard of proof was put to bed with Re B, to know that for other civil proceedings the debate rages on.

For serious allegations, and particularly where the consequences are serious, there is authority – Haggar for one, suggesting that the civil standard of proof approaches the criminal standard.

These men have been named and reported in the Press as predatory paedophiles or at least grooming with that sort of end in mind. And on the balance of probabilities rather than that higher test. Is it the right standard of proof, given the serious consequences that must have had for them?

 

Readers may be interested in the judgment as it relates to publicising the men, but that’s outside the scope of my interest for today, and others are better placed to write about it.

 

The “Riaz” route is an option for Local Authorities, and the Judge praised the Local Authority for their hard work and creative thinking. Is it robust? That would probably have to wait for a judgment in a case where the challenge to (a) powers and (b) standard of proof is more vigorously raised.

(Or heaven forbid, a committal application for breach, when the validity of the original order might be tested more fiercely)

 

An appeal

 

Not the President’s judgment in Re R a child 2014  (I need a bit longer to do my piece on that, but it is here http://flba.co.uk/blog/2014/12/16/re-r-a-child-2014-ewca-civ-1625/   and Lucy has done a piece on it here http://www.pinktape.co.uk/legal-news/sorry-whats-that-you-say/  )

 

My gut feeling is that this is really just the Court of Appeal saying “If you are appealing against a Placement Order, come to us with an actual argument as to why the Judge got this wrong, not just on a technicality, but an actual argument about the facts”    (or an even shorter version “Stop making b**locks appeals”)

 

No, this is an appeal via one of my readers.  This reader, a very nice person, read my “What to do if Social Workers are Trying to Steal your Children” blog post with some practical advice.

 

This mother was helped enormously by a charity, and she in turn would like to help them. As with any charity, money and funding is scarce, so this is an appeal that if you were in a charitable frame of mind at this time of year, this looks to me to be a very good cause.

 

 

  www.familiesincare.com.   This is a very small charity which supports, advocates, and advises North East families who are faced with Child Protection Proceedings.
In order not to get this mother into any difficulties and at her request, I’ve taken out the very moving and impressive story, but I can absolutely tell you that this charity has made a massive difference to her life and other people like her, and I think they need to be helped to keep doing so.

 

  They have students – both Law and Social Work – who come in on placement, and many stay on to volunteer. There is a Parents Group for parents who have lost children to adoption, gently supporting them through their own disenfranchised grief process, and Families In Care help parents with Letter Box Contact.  

 

In short, this is a rare gem, a beacon of hope to parents faced with the most horrifying of times.     However, Families In Care are struggling. Having had their funding removed from a particular source, they are now in a position where they face imminent closure. This just cannot happen. It just can’t. So many families rely on their presence, their hands to hold, and their commitment to ensuring parents are heard and fairly treated.  

 

Families In Care have made an Urgent Christmas Appeal for help:   http://shoutout.wix.com/so/97a9fcf6-5dfa-4cc7-b4f3-25f19be6934b#/main   

 

Families In Care need £3000 before January or they will close and families will be left without support at the worst, most vulnerable time.     Please help, it really would mean an awful lot.

 

If you can help Families In Care at all, they seem like people who have the potential to really make a difference to people who need help.   Even better, if you happen to be someone in the North East who has some sway over budgets and resources, please see if you can give this charity some support.

Forthcoming Court of Appeal judgment on adoption

We know that there is one coming, because the President told The Times (sadly behind a paywall) that there would be one coming out this week in which the Court of Appeal would clarify Re B-S. The Times article is in the context of the “crisis” in the lower adoption figures – that “crisis” is itself in the context of adoption figures having gone up 26%.

The Times, you may be aware has moved from the Camilla Cavendish line of secret oppressive family Courts into pro-adoption.

 

We will have to wait and see what the President says. I suspect the direction of travel can be read from recent Court of Appeal judgments – my guess would be that all of the rigorous demands on social work evidence and a comparison of all of the various options will remain.  But that there will be clarification that Re B-S never intended to raise the bar or heighten the legal test.

 

The language in the Times piece talks about Courts being satisified that adoption is “the best option”  which is quite a distance from “last resort” never mind “nothing else will do”

 

If Re B-S was being misunderstood, it seems odd that it has taken a year and a half for the President to speak out. He sits in the Court of Appeal, he has brother and sister Judges routinely hearing appeals, he gives speeches and judgments all the time, he has his View from the President’s Office, all of which have been silent.

 

The closest we have come until now, was this Press Conference in April 2014

http://www.judiciary.gov.uk/wp-content/uploads/2014/05/munby-press-conference-290420141.pdf

Philip Hoult from Local Government Lawyer. The question I have is recent rulings on adoption from the judiciary implies that what’s said, from the steer, that adoption should be a last resort where nothing else will do. The government is saying to councils, “We want you to place more children for adoption,” and they’re threatening to remove local authority powers if they fail to do so. Do you have any advice for councils in that situation?

JM: Well, I stopped giving advice when I left the bar 14 years ago. All I would say is that it is the Supreme Court, very recently in a case called “Re: B” which used the phrases which you’ve just mentioned. Last resort and so on and so forth. Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the  judges to decide what the statute means. The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so. I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in “Re: B” in I think the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year, the tension being that whereas the Supreme Court said that adoption is the last resort, the Government, as I recall in the guidance it gave, said that local authorities should get away from the idea that adoption is the last resort. So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if the Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law. In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.

 

It does seem to me that the President is explicit there – there was a tension between what the Courts were saying in Re B and Re B-S and the pro-adoption policies of the Government. And the President was explicit – if the Government disagree with the judicial line, they must change the law.

 

So will the President hold firm, or is there a change coming?  (I know where my money is going. I suspect we are about to learn that we have always been at war with Eurasia)

 

I can’t cut and paste in the entireity of the Times piece, due to copyright issues, but if this bit is accurate, it really troubles me

 

Officials in the Department for Education made a series of pleading phone calls to heads of local authority children’s services departments telling them that the judge’s intervention had been misinterpreted.

Perhaps that isn’t right. But if it is, is that the way for judgments to be interpreted? Is that the way for Government to approach judgments that they don’t like? *

 

 

*( well, given that the Lord Chancellor just lost the book ban judicial review, but isn’t reversing the policy until after Christmas to stop prisoners getting books as presents for Christmas, maybe it is)

 

The tussels from Brussels

 

{Warning, this post contains some Brussels II stuff, but it also has something potentially important – I’ll try to keep it short}

 

A v D and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3851.html

 

It involves a 3 year old girl, mother is Polish, father English. They lived together in England but then separated. Father became worried that mother would remove the child to Poland, and applied to the English Courts for an order preventing that.

In April 2012, the father, concerned that the mother might remove E to Poland, issued proceedings in the Bournemouth County Court seeking a prohibited steps order preventing her from removing the child from the jurisdiction, together with a parental responsibility order. After two preliminary hearings, the matter came before District Judge Dancey on 3rd May 2012. A transcript if that hearing is now available. The mother, who was represented, gave evidence on oath stating that, if she were permitted to take the child to Poland for a visit between 14th May 2012 and 16th July 2012, she would return E to this jurisdiction at the end of that period. The father, who was acting in person, indicated that he would not oppose the mother taking E to Poland for a holiday, although he expressed some unhappiness at the length of the proposed visit. On the basis of the mother’s undertaking, the District Judge made an order permitting the mother to remove E to Poland for the purposes of a holiday between 14th May and 16th July 2012.

 

It will not surprise any of you cynical hard-bitten readers to learn that she never came back from that holiday.

 

  1. Shortly after arriving in Poland, the mother applied to a court in that country for a custody order and subsequently wrote to the Bournemouth County Court stating that she did not intend to return. On 24th July 2012, the father filed an application with the Central Authority for England and Wales under the Hague Child Abduction Convention 1980 and Council Regulation (EC) 2201/2003, (hereafter referred to as Brussels II Revised), seeking the summary return of E to this jurisdiction. On 10th August, the father’s application in the county court was adjourned generally with liberty to restore. The father’s application under the Hague Convention was pursued via the Central Authorities but on 17th December 2012, it was dismissed by the district court in Ruda Slaska in Poland. The father’s appeal against that decision was subsequently dismissed on 24th October 2013.
  2. On 30th April 2014, the father made an application in the existing English proceedings seeking an order committing the mother for contempt of court, an order for parental responsibility and a contact order. The application was transferred to the High Court and listed before me in July 2014 to consider as a preliminary issue whether or not the court had jurisdiction to entertain the application. In the reserved judgment delivered 31st July, I held that this court had jurisdiction to entertain the father’s application for orders concerning matters of parental responsibility. In the course of legal argument at the hearing, however, I indicated to Mr Edward Devereux, counsel for the father, that I proposed to consider whether the court should exercise its power under Article 15 of Brussels II Revised to transfer the case to Poland. Mr Devereux thereupon submitted that the court had no power to transfer proceedings under Article 15 because no party to the proceedings accepted the transfer, but seeing that this argument did not initially find favour with the court, he asked for further time to consider the issue, having regard to the fact that it had only arisen in the course of argument.

 

I’ll dash through it quickly, because everyone hates Brussels II. A Court can, and now must, consider whether the proceedings ought to be transferred to another EU Country to deal with, if they are better placed to deal with them AND the child has a connection to that country.

 

For these purposes, the connection is either:-

That the mother, who has PR, is now habitually resident in Poland

OR

that the child has acquired habitual residence in Poland AFTER the English Court started to deal with the case

 

The father’s case (and I have a huge amount of sympathy for him here) is that the mother and child are only in Poland because mum abducted him and breached Court orders, yet she is now being rewarded by having the Court case on home turf – to transfer would be to reward her for her wrong-doings.

 

  1. First, Mr Devereux informed me that this case presents a factual situation which, so far as counsel have been able to discover, has not been considered before in any reported case, that is to say a proposal, arising in private law proceedings following the unlawful retention of a child, to transfer the proceedings under Article 15 to the country in which the child has been unlawfully retained. Mr Devereux stressed the fact that E is only in Poland as a result of a wrongful act perpetrated by her mother. On any view this is a blatant case of child abduction and it is not right for a court to reward a party who has acted unlawfully. Furthermore, the mother appears to have committed perjury before the English court. A transcript of the proceedings before District Judge Dancey has now been obtained and demonstrates clearly that the mother gave a promise on oath that she would return E to the jurisdiction of this court in July 2012 at the conclusion of the holiday. The father has launched committal proceedings for contempt of court arising out of the mother’s breach of her undertaking and it is asserted on behalf of the father that he will continue to press this application. In those circumstances, proceedings will in any event be continued in this jurisdiction. Mr. Devereux submitted that it would therefore be undesirable for proceedings to be continuing in both countries.
  2. Mr Devereux further contrasted the respective abilities of the parties to participate in proceedings in the two countries. The mother was able actively and properly to engage in proceedings in this country. She has a good understanding of the English language, as is plain from her oral evidence before District Judge Dancey. She was able to give a promise on oath which the judge felt able to accept. In contrast, the father asserts that he has no knowledge of the Polish language and no understanding of the procedures of the Polish courts. He does not have the means to travel to Poland and stay there to participate in proceedings. Poland has a system of legal aid but, as demonstrated in he expert report from Dr Kasinska-Wiercinska, there are in practice a number of difficulties facing a litigant in the father’s position who wishes to apply for such assistance.
  3. Mr Devereux further submitted that, all things being equal, E’s best interests would be served by having a relationship with her father and her father being involved in her upbringing. This court can ensure that this happens speedily by making a child arrangements order for contact and issuing an Annex III certificate which could be automatically enforceable in Poland. In contrast, if the case is transferred to Poland there is, submitted Mr Devereux, no guarantee that any application made by the father would be heard expeditiously nor, if and when it was heard, that he would be granted contact with his daughter.

 

As the Judge was Baker J, the law is flawlessly applied and set out, and the approach was really to answer the three questions posed by Munby J (as he then was)

In AB v JLB Brussels II Revised Article 15 [2009] 1 FLR 517 at paragraph 35 Munby J (as he then was) identified the three questions to be considered by a court when deciding whether to make a request under Article 15:

“First, it must determine whether the child has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State. . . . .Given the various matters set out in Article 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 Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c))?

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.

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.”

Baker J found that the answer to all three questions was yes, and that the Polish authorities should be asked to take over the case.

Part of his thinking here was that with a mother who was living in Poland and adamant that she would not return to England and play no part in any Court proceedings in England, there was no likelihood of any actual contact for father getting underway.  [My reading of the case is that father was seeking to spend time with the child, rather than have the child live with him full-time. That might have made a difference, it is hard to say]

 

25. ..without the mother’s cooperation and participation in the proceedings, it is highly unlikely that any court will make any order for contact in this case. All the evidence suggests that the mother does not intend to take part in these English proceedings, and without her co-operation the father’s application for contact cannot be resolved by the English court. The fact that the father is intending to pursue his application in this jurisdiction to commit the mother for contempt makes her participation in any English proceedings concerning parental responsibility and contact even less likely. She may also be reluctant to take part in proceedings in Poland, but crucially the Polish court would have the power, should it choose to exercise it, to oblige her to participate. Although the father would be at a considerable disadvantage were he required to participate in proceedings in Poland, it is reasonable to expect him to do so to the best of his ability. It may be possible, however, for ways to be found to assist his participation in Polish proceedings.

  1. When one turns from the fact-finding hearing to the welfare stage of the proceedings, it is plain that the balance of the evidence on welfare matters lies in Poland. I agree with Miss Green’s observation that the Polish courts have a very real advantage by reason of the child’s presence within their jurisdiction. This makes it possible for all necessary enquiries and investigations as to her welfare to be carried out there. E is living in Poland. Her life centres round her mother and friends and family in that country. Any contact will inevitably have to start in Poland. There would of course have to be some investigation of the father’s circumstances, which would involve consideration of his home and life in this country. But the preponderance of evidence as to welfare matters will arise in Poland.

 

I don’t doubt that this is the right decision in law – I’m a fully paid-up member of the Baker J fan-club  (I have the badge, and I know the secret handshake), but God, this seems utterly unfair to this father. He did the right thing – he got an order from a Court to stop mum taking the child to Poland, only to find that in the teeth of someone who was prepared to breach it, Article 15 of Brussels II rewards her and punishes him.

And this happened without mum even ASKING for Brussels II to apply.

Seeking costs against the Public Guardian in a financial safeguarding case

 

The Public Guardian and CT and EY 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/51.html

 

As District Judge Lush observed, this is the first reported case where a costs order has been sought against the Public Guardian.

 

By way of quick background, CT is 85 and had a stroke a year ago, which later led to a diagnosis of dementia. There has been a considerable family schism, and CT is close to his daughter EY but not close to much of the rest of his family.

 

A month after his stroke, he entered into a Lasting Power of Attorney arrangement, appointing EY as his sole attorney.

 

In July 2014, the Public Guardian, having received a referral that EY was misusing the Lasting Power of Attorney, conducted an investigation and made an application to the Court of Protection under s48 of the Mental Capacity Act 2005 for declarations about whether CT had capacity and if not what directions / declarations should be made about his affairs.

 

  1. The application was accompanied by a witness statement made by David Richards, an investigations officer with the OPG, who said that:

 

 

(a) in September 2013 CT’s son and daughter-in-law had raised concerns with the OPG.

 

(b) on 13 June 2013 CT had severed the joint tenancy of the matrimonial home and the adjoining property, which he and his wife also own.

 

(c) CT had ceased paying the utility bills on the matrimonial home; had stopped transferring housekeeping money to his wife, and had closed their joint bank account.

 

(d) in September 2013 CT applied to the Land Registry to register the matrimonial home in his sole name.

 

(e) on 30 September 2013 a Court of Protection General Visitor, Emma Farrar, saw him at Grays Court Community Hospital. She thought that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so.

 

(f) Havering Social Services had raised a safeguarding alert.

 

(g) the OPG asked EY for an account of her dealings.

 

(h) EY replied her father still had capacity and that the OPG’s enquiries were an invasion of his privacy.

 

(i) in January 2014 the OPG commissioned a visit from a Court of Protection Special Visitor (Dr T.G. Tennent, DM, FRCPsych) but EY and her partner, who is employed by Moss & Coleman Solicitors, refused to let him visit CT.

 

(j) Dr Tennent was, nevertheless able to examine CT’s medical records, and in his report, dated 31 March 2103, he came to the conclusion that CT had capacity (a) to make the LPA and (b) to sever the joint tenancies, but that it was “impossible to offer any opinion as to Mr Todd’s current capacity in relation to the queries (c) to (j).”

 

 

There then follows a somewhat complex history, but the substance of it was that the expert who examined CT, Professor Jacoby, was of the view that CT’s capacity fluctuated, but that there were times and had been times when he had had capacity to make his own financial decisions (and thus the LPA wasn’t being used at all at those times)

 

  1. Professor Jacoby prefaced his assessment of CT’s capacity with the following preliminary remarks:

 

 

 

“I shall deal with the separate capacities as set out in my instructions which were taken from the directions order of 20 August 2014. Before doing so I wish to stress that I am relying on CT’s mental state as I observed it on 2 October 2014. However, I believe his mental state fluctuates both as regards his dementia and his episodes of delirium. I should make the following preliminary remarks:

 

 

(a) When he is delirious, in my opinion, he does not have any of the capacities listed below.

 

(b) When he is not delirious, but his dementia is more prominent, his capacities are weaker than when he is at his best.

 

(c) When he is at his best he does retain some capacities as described below.

 

(d) When he is at his best he is able to communicate his decisions, and I shall not comment further on this fourth limb of section 3(1) of the Mental Capacity Act 2005.

 

(e) When at his best I believe that his capacities can be enhanced by assistance in line with the judgment of Gibson LJ in Hoff et al v Atherton [2003] EWCA Civ 1554, in which he stated “it is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as may have been given [my italics]) to understand the nature and effect of the particular act (see, for example, Re K (Enduring Powers of Attorney) [1988] Ch 310 at p. 313 per Hoffmann J.).” As I understand it, although I may be corrected by the court, giving assistance to persons with marginal capacities in order to enhance them is within the spirit of the Mental Capacity Act 2005.”

 

 

  1. Professor Jacoby concluded his report as follows:

 

 

 

“In my opinion, when CT is at his current best and not in an episode of delirium, he retains the capacity to manage his affairs and to revoke or make an LPA, but that his capacities would be enhanced by disinterested advice. His capacity to litigate is not totally lacking but is, in my opinion, below a sufficient threshold, and he would, therefore, require a litigation friend.”

 

If CT had capacity at the time when he made decisions to sever the tenancy, stop paying money to his estranged wife and so on, then this was not a matter for the Court of Protection. As we know, if a person has capacity, then they can make decisions for themselves that another person might consider foolish or ill-conceived.

 

EY sought that the application be dismissed and sought that the Office of the Public Guardian should pay the costs.

 

  1. On 14 August 2014 EY filed an acknowledgment of service, accompanied by a witness statement, in which she objected to the application and said that:

 

 

 

“The evidence in the attached witness statement shows unequivocally that CT had the capacity to make complex decisions in relation to his finances and property in September 2013. He underwent a further capacity assessment in November 2013 prior to discharge from hospital after nearly six months treatment and he was again assessed as having the capacity to make the very difficult and important decision as to his destination and future place of residence following his discharge. There has been no stroke activity since the incident in May 2013, nor any other event which might cause or signal a material change in his capacity since the last test was carried out some nine months ago. There is therefore no valid reason why he should not be presumed to have capacity at this time.”

 

 

  1. EY proposed that “the application be dismissed and the OPG be ordered to pay the respondents’ costs (including the costs of taking legal advice).”

 

 

In most financial disputes, the person who loses the case is at risk of being ordered to pay the other side’s legal costs. It is a little different in Court of Protection cases.

 

Firstly, the Court of Protection have a general discretion (subject to other Rules) Section 55(1) MCA 2005 provides that “Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are at its discretion.”

 

In terms of those Rules, they are set out in the Court of Protection Rules 2007 – they can be simplified like this:-

 

  • Normally if the proceedings relate to property of a vulnerable person, the costs of the proceedings are paid by that person or his estate
  • That starting point can be departed from if the Court thinks it is justified, and can take into account the conduct of the parties.
  • Conduct can include a wide variety of things, including before proceedings began.

 

 

Property and affairs – the general rule

 

 

  1. Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.

 

 

Departing from the general rule

 

 

  1. – (1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including:

 

(a) the conduct of the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) the role of any public body involved in the proceedings.

 

(2) The conduct of the parties includes:

 

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;

(c) the manner in which a party has made or responded to an application or a particular issue; and

(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

 

(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

 

 

 

In this situation, EY argued that the Office of the Public Guardian had really jumped the gun – they had brought a case based on EY misusing the Lasting Power of Attorney, when closer investigation would have shown that the decisions complained of had been made by CT himself. If the Public Guardian had conducted the investigation properly, there would have been no application and thus CT and EY would not have incurred any legal costs.

 

District Judge Lush felt that things were more complicated than that – the assessment of capacity had shown that CT’s capacity fluctuated and thus there had been times when EY was (or ought to have been) exercising the Lasting Power of Attorney.

 

The Judge also felt that EY had been obstructive in the investigation, causing some of these problems as a result of her own actions.

 

  1. EY makes the point that she was not using the LPA because CT still had capacity, but even this is disingenuous. Professor Jacoby states in his report that “He is subject to recurrent episodes of delirium. … When he is delirious, in my opinion, he does not have any of the capacities listed below.” She should have been using the LPA during the recurrent episodes when CT lacked capacity.

 

 

  1. The point is made that CT’s capacity should have been presumed. The precise wording of section 1(2) of the Mental Capacity Act is that “a person is assumed to have capacity unless it is established that he lacks capacity.” The Court of Protection General Visitor believed that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so. The reason why the OPG asked a Special Visitor to see CT was so that a specialist could look for objective evidence that would be sufficient, on the balance of probabilities, to establish whether CT had capacity or not and, accordingly, whether the Court of Protection had jurisdiction or not.

 

 

  1. EY would not allow the Court of Protection Special Visitor to examine CT because she mistrusted anything to do with the OPG. The Special Visitor’s report would have been provided to CT free of charge, from public funds, but EY insisted on instructing an independent expert, instead. This resulted in the proceedings being more expensive and protracted than they need have been.

 

 

  1. I have no real concerns about the OPG’s conduct. Any investigation will seem heavy-handed to the person under the spotlight, but the OPG’s conduct was by no means disproportionate and does not even approach the threshold identified by Mr Justice Jonathan Baker in G v E (Costs). The OPG certainly did not act in blatant disregard of the Mental Capacity Act processes or in breach of CT’s rights under the European Convention on Human Rights. Having regard to all the circumstances, it would be unjust to penalise the OPG by way of a costs order.

 

 

 

Bearing in mind the usual rule, the legal costs of all of the proceedings would be met by CT. The Judge, having been invited to look at costs, had to consider whether that approach would be fair and just, given the actions of EY.

 

(This must have caused a bitter taste – having asked for the Public Guardian to pay the costs, EY found herself at risk of having to pay a portion of the costs herself)

 

  1. There is no doubt about it. EY and her partner refused, without reasonable cause, to let the Special Visitor visit CT or even speak to him over the phone. Dr Tennent’s report of 31 March 2014 stated:

 

 

 

“Over the course of these conversations EY referred everything to her partner. Quite politely they told me that CT did not want to see me but would not permit me to speak directly with him. They would not provide me with the name or address of CT’s current general practitioner. As I understood it, they were of the view that although CT had made an LPA he was still capable of managing his own affairs and they were not using the LPA and therefore the OPG should not be involved with his affairs. They told me that they were in correspondence with the Office of the Public Guardian about the matter and that until this had been resolved they did not want me to visit their home.”

 

 

  1. EY’s insinuation that a Court of Protection Special Visitor is neither independent nor impartial is both unwarranted and offensive.

 

 

  1. For me, the most striking feature of Professor Jacoby’s report was the repetition of a theme, which, like Ravel’s Boléro, rises in a continuous crescendo.

 

 

  1. In response to question (2) he said:

 

 

 

“Again, I consider that he would benefit from disinterested advice before making this decision.”

 

 

  1. He deliberately highlighted the word ‘disinterested’ by italicising it.

 

 

  1. In response to question (4), he said:

 

 

 

“Where more complex decisions are required he would, in my opinion, benefit from disinterested advice.”

 

 

  1. In his reply to question (5), Professor Jacoby said:

 

 

 

“I consider that at his best CT does retain the capacity to give instructions to his attorney in relation to his property and affairs, and that he would benefit from disinterested advice for more complex decisions.”

 

 

  1. In his conclusion, which I have set out in paragraph 23, he said:

 

 

 

“… his capacities would be enhanced by disinterested advice.”

 

 

  1. And in response to question (4) again, the professor actually ventured to say that:

 

 

 

“I am not making any comment here about the quality of the advice he now gets from EY because this is beyond my remit and I have no information on it anyway. However, because he is now dependent on her for his day to day care he might be more likely to accept her advice without more careful consideration.”

 

 

  1. I have never before read a report on someone’s capacity that has contained so many references to the need for ‘disinterested advice’. The only interpretation of this can be that Professor Jacoby believed that, although CT still has capacity in certain areas, he is being influenced by his daughter, and her advice is anything but disinterested.

 

 

[

 

The Judge decided that it would be wrong for CT to be ordered to pay EY’s legal costs, and EY would be responsible for her own costs

 

 

Decision

 

 

  1. If I were to apply the general rule for costs in a property and affairs case (rule 156), I would be required to order CT to pay the costs of these proceedings.

 

 

  1. The Public Guardian was seeking no order as to his own costs, whereas EY was seeking an order that her costs should be paid by the Public Guardian.

 

 

  1. For the reasons given above, and having regard to all the circumstances, I consider that a departure from the general rule is justified and I shall order EY to pay her own costs because her conduct, before and during the proceedings, has been aggressive and disingenuous and has resulted in both sides’ costs being far greater than they would otherwise have been.

 

 

  1. The overall effect is that I shall make no order for costs, though, having agreed to commission a report from a single joint expert, the Public Guardian and EY are jointly liable to pay a half of Professor Jacoby’s fee of £2,200 (£1,850 + VAT) for reading the documents, travelling from Oxfordshire to Essex, examining CT, and writing his report.

 

 

 

There is scope for a costs order to be made against the Office of the Public Guardian, if they behaved unreasonably in the course of the litigation, but this was not the case for it.

 

As my old law tutor used to say about Equity – “he who comes to Court must come with clean hands”

 

Drinking during pregnancy

 

There was quite a lot of media attention about the Court of Appeal’s decision in

 

RE CP and Criminal Injuries Compensation Authority 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1554.html

 

and quite a bit of that media attention missed the point really.  [Which is fair enough, because the point was obscure and technical, and a far better story for selling newspapers is whether we are going to send mothers to prison for having a glass of wine during pregnancy]

 

The case was not about whether mothers should be prosecuted for drinking whilst pregnant, but whether technically they COULD be, which would allow for children who suffered damage (Foetal Alcohol Syndrome) to receive compensation from the Criminal Injuries Compensation Authority.

 

The Criminal Injuries Compensation Authority was set up by Government to make payments to people who are the innocent victims of crime.

 

“from people who have been physically or mentally injured because they were the innocent victim of a violent crime…”.

 

A person does not have to show that the perpetrator of that crime was later convicted of the offence, it is sufficient to show that (a)there was a violent crime and (b) they were physically or mentally injured.

 

The case was also not about whether or not it is a bad thing for mothers to drink during pregnancy. The Court did not hear arguments about whether consumption of alcohol causes harm to foetuses and whether that harm continues after the baby is born; that was a point that was accepted by all of the parties.

 

 

 

For a while, the Criminal Injuries Compensation Authority (CICA) were paying some claims on behalf of children who had Foetal Alcohol Syndrome due to their mother drinking during pregnancy, but then stopped.

 

CB’s case was brought as a test case for around 80 similar cases where children were possibly going to receive compensation if the Court of Appeal found that the consumption of alcohol in pregnancy was capable of being a crime.

 

If it isn’t capable of being a crime, no CICA compensation.

 

So, firstly, what crime are we talking about?

 

s23 of the Offences Against the Persons Act 1861. This provides:

 

“Maliciously administering poison, etc so as to endanger life or inflict grievous bodily harm.

Whosoever shall unlawfully administer to… any other person, any poison or destructive or noxious thing, so as thereby…to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted there of shall be liable…to be kept in penal servitude for any term not exceeding ten years”

 

 

As with any criminal offence, there are a lot of ingredients – unlawful administration, of something, to any other person that something being noxious, and the administration causing grievous bodily harm to that person

 

We could make this very complicated, but I’ll try instead to make it very simple.

 

If a mother takes her six year old child, and makes him drink a bottle of gin and he suffers as a result, liver damage or kidney failure, or even if he is just hospitalised, the offence under s23 is made out. The alcohol is a noxious thing, the administering is unlawful and grievous bodily harm was suffered.

 

But with a child in the womb, it was uncertain whether the offence under s23 was capable of being committed.

 

And that is a result of this bit in the statute “any other person”   - at the time the noxious thing was administered, was the victim a person?

 

 

That gets us into huge theological and pro-choice v pro-life debate; some people will feel very strongly that a foetus is a person, some will feel very strongly that until birth the foetus is not a person, some might feel that it depends on the age of the foetus, still others will feel that it depends if the foetus has reached a stage where it would be capable of being born alive.

 

But we can cut through all of that (fascinating and controversial as it is), because the Courts have given decisions on the legal position before.

 

And as the decision was from the House of Lords, it is powerful authority

 

  1. In Attorney General’s Reference (No 3 of 1994) [1998] A.C. 245, the House of Lords considered the case of a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, which survived for only 121 days. The stabbing set in train events which caused the premature birth, which itself led to the child’s death, its chances of survival being very significantly reduced by the fact of the premature birth. Thus, a chain of causation between the stabbing and the death of the child was established. The issue was whether in those circumstances the crimes of murder or manslaughter could be committed.

 

  1. Their Lordships held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother. It was held that whilst there could not be a conviction for murder, there was sufficient for a conviction for manslaughter. The defendant in stabbing, had intended to commit an act which was unlawful and which any reasonable person would recognise as creating a risk of harm to some other person. Although a foetus was not a living person, the possibility of a dangerous act directed at a pregnant woman causing harm to a child to whom she subsequently gave birth, made it permissible to regard that child as within the scope of the defendant’s mens rea for the purposes of manslaughter when committing the unlawful act. Accordingly the crime of manslaughter could be committed even though the child was neither the intended victim nor could it have been foreseen as likely to suffer harm after being born alive. Thus the trial Judge should not have held that there was no case to answer on manslaughter on the basis that at the material time there was no victim capable of dying as a direct and immediate result of what was done.

 

  1. At paragraph 15 of its decision, the Upper Tribunal referred to the fact that Lord Mustill had identified a number of established rules relating to criminal liability. It continued;

 

 

“One of these was that in the absence of a specific statutory provision, an embryo or foetus in utero does not have a human personality and cannot be the victim of a crime of violence.

Although the foetus is a unique organism it does not have the attributes that make it a person. As Lord Mustill said (at 262D, my emphasis): “The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person… “.”

 

 

The “rules” set down by the House of Lords included these:-

 

“3. Except under statute an embryo or foetus in utero can not be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not a murder.

….

  1. The existence of an interval of time between the doing of an act by a defendant with the necessary wrongful intent and its impact on the victim in a manner which leads to death does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death. …
  2. Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility even if the harm would not have been criminal (apart from statute) if it had been suffered in utero.”

 

 

 

So, the CICA were arguing broadly that as the foetus was not a person at the time the mother was administering the noxious substance (alcohol), there was no s23 offence.

 

And those representing CB were arguing broadly that IF there was consumption of alcohol in the womb, but the consequences of the harm were suffered after the baby was born, the s23 offence is capable of being made out.

 

 

[The CICA placing weight on rule 3 above, and CB placing weight on rules 4 and 5 above]

 

 

  1. If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime. This, no doubt, is why Mr Foy albeit with some hesitation, sought to rely on the first limb of his argument as it would avoid this difficulty which arises under the second limb. He sought to meet the objection to the second limb by arguing that where FASD occurs, the foetus is damaged before birth, but that after birth there is continuing damage by reason of retardation. To the observation that what occurred after birth was simply the consequences of damage caused before birth, he submitted that these are continuing and that the court should be slow to distinguish between damage done and subsequent consequences or symptoms.

 

  1. I cannot accept this analysis. The reality is that the harm has been done to the child whilst it is in utero. The fact that if the child is born alive it will suffer the consequences of the insult to it whilst in the womb does not mean that after birth it has sustained damage by reason of the administration of the noxious substance. One only has to cast one’s mind back to the Thalidomide tragedy. The injury was done to the affected children by the administration of the drug whilst they were still in the womb. Those children who were born affected were born with missing or ill-developed limbs. Whilst they suffered the consequences on a lifetime basis after birth, they did not sustain any additional damage after birth by virtue of administration of the drug.

 

  1. Reference to the expert evidence of Dr Kathryn Ward, an experienced consultant paediatrician, whose very detailed report was before the First Tier Tribunal, (and which was not disputed), shows that the harm which is done by ingestion of excessive alcohol in pregnancy is done whilst the child is in the womb. The child would then, when born, show damage demonstrated by growth deficiency, physical anomalies and dysfunction of the central nervous system. Very often, as in this case, the full extent of retardation and damage will not become evident until the child reaches milestones in its development, at which point matters can be assessed. The fact that such deficits cannot be identified until that stage does not constitute fresh damage. It merely means that the damage was already done but has only then become apparent.

 

  1. It seems to me that this is fatal to the appellant’s contention. The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was whilst CP was in the womb. At that stage the child did not have legal personality so as to constitute “any other person” within the meaning of s23. The basis upon which the actus reus is extended in a manslaughter case cannot apply here since nothing equivalent to death occurred to CP after her birth.

 

 

 

What the Court of Appeal say in effect is that in the absence of Parliament specifically saying that an offence can be committed against a foetus in the womb, the Courts should be reluctant to take that upon themselves. Parliament has passed some legislation about offences that a mother can perpetrate on a foetus (using poison to attempt to procure a miscarriage, for example) and if Parliament had wanted to make excessive consumption of alcohol during pregnancy a criminal offence, it could have done so.

 

 

  1. If section 23 had expressly included a foetus as well as “any other person”, EQ would have committed the actus reus of the offence during her pregnancy. But that is not what Parliament has provided. Accordingly, it is because a foetus does not come within the ambit of section 23 that Mr Foy’s argument breaks down.

 

  1. I am fortified in the conclusion that I have reached by a number of other considerations. First, the approach to section 23 that I have adopted is consistent with the established structure of the criminal law as it relates to the foetus. Parliament has identified certain circumstances where criminal liability arises if a mother causes injury to her foetus. Thus the offence of a pregnant woman using poison, with intent to procure her own miscarriage (section 58 of the Offences Against the Person Act 1861) specifically provides for circumstances in which a woman administers poison or a noxious thing to herself. This offence does not apply to the circumstances of the present case because it requires intent. Section 1 of the Infant Life (Preservation) Act 1929 provides that it is an offence to destroy the life of a child capable of being born alive before it is born. Parliament could have legislated to criminalise the excessive drinking of a pregnant woman, but it has not done so outside these offences. Since the relationship between a pregnant woman and her foetus is an area in which Parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.

 

 

CB’s appeal was unsuccessful and it is therefore NOT a criminal offence to excessively consume alcohol during pregnancy. (As said at the outset, it is not a green light to mothers to do that)

 

I think that most lawyers felt that CB’s case was not going to succeed, and that a foetus would not (at present) be classed as ‘any other person’ in a legal sense to make out the s23 offence.

 

Does that mean that it was a waste of time? Well, not really. Firstly, it has drawn publicity and attention to the risks of drinking during pregnancy. Secondly, it has drawn attention to the fact that children like CB aren’t receiving compensation and won’t unless Parliament either change the law (or probably more sensibly change the terms of reference for the CICA to allow them to pay compensation for victims of violent offences AND victims of Foetal Alcohol Syndrome)

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