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Author Archives: suesspiciousminds

Children and parties

 

 

Not children’s parties, as in the woman who sent some parents an invoice for failure to attend at her child’s party at a dry ski slope resort.

http://www.loweringthebar.net/2015/01/expert-invitation-to-childs-party-not-enforceable.html

 

This is the Court of Appeal setting out whether children who are the subjects of an order can appeal that order, or be made a party to the appeal.

RE M (Republic of Ireland) (Child’s objections) (Joinder of children as parties to appeal) 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/26.html

 

(The Republic of Ireland bit only refers to the country where the children were being ordered to return to – this is a classic Article 13 Hague Convention piece of litigation, and the principles apply across the board)

 

The Court of Appeal indicate a degree of growing tired of appeals about article 13 and indeed Brussels II, and I have to say that I feel their pain.

  1. In cases under the1980 Hague Convention, speed is of the essence. The object of the Convention is to return abducted children as soon as possible to their home country, restoring the status quo and enabling the courts there to determine whatever disputes there are about their future upbringing. The longer the time that elapses following a wrongful removal or retention, the more difficult it becomes to return the child. In recognition of this, judgment is expected to be given no later than 6 weeks after the commencement of the proceedings (see Article 11(3) of Brussels IIa (Council Regulation (EC) No 2201/2003 of 27 November 2003, hereafter simply “Brussels IIa”) and Article 11 of the 1980 Convention. The procedure adopted is summary.
  2. It may be thought paradoxical that a summary procedure such as this should have generated the quantity of jurisprudence that the 1980 Convention has. Over the years there have been many technical and sophisticated legal arguments about how its terms should be interpreted and a significant number of appeals.
  3. Technicality of this sort gets in the way of the objectives of the Convention. In Re P-J (Children) [2009] EWCA Civ 588[2010] 1 WLR 1237, Wilson LJ (as he then was) observed, “Nowadays not all law can be simple law; but the best law remains simple law.” In recent times, it has become increasingly apparent that the law relating to child’s objections under Article 13 of the Convention, as it is presently perceived to be, is far from simple law. To judge by the number of applications to the Court of Appeal for permission to appeal on this point, it is not at all easy to put into practice. Does this have to be the case?

There were two major rows in this appeal. The first was whether a previously decided case, Re T  (which indicated that if a child did object to a move, that would probably be determinative of the application) was now wrong, in the light of the principles arising from the Supreme Court that children as young as 6 could voice an objection   – and the Court of Appeal decided that Re T doesn’t really stand up any more on that point – the child’s objection is one of the range of factors to be considered but is not determinative of the application.

The second was whether the children, who manifestly were objecting but the original trial judge had held were not, could be parties to the appeal or even bring an appeal.

 

The Court of Appeal decided that children CAN appeal or be joined and also give some practical guidance.

  1. There was no dispute that there was binding Court of Appeal authority establishing that the children could in principle be permitted to bring their own appeal, even though they had not been parties in the court below, see for example George Wimpey Ltd v Tewkesbury Borough Council [2008] 1 WLR 1649, referred to in Re LC by Lord Wilson at §11. Neither was there any dispute that they could be joined as parties for the first time at the appeal stage of proceedings. However, the procedural framework for their participation is possibly somewhat deficient.
  2. The FPR 2010 deal comprehensively with the participation of children in proceedings but it was agreed between the parties that when the question of the participation of a child arises for the first time at the Court of Appeal stage, it is not the FPR 2010 which apply but the CPR 1998, which do not cover the ground as thoroughly.
  3. I have already referred to Rule 16.2 FPR which provides that the court may only make a child a party if it considers that it is in the child’s best interests to do so. There is no equivalent provision in the CPR. Rule 19.1 and 19.2 CPR provide:

    “19.1 Any number of claimants or defendants may be joined as parties to a claim.

    19.2 (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period).

    (2) The court may order a person to be added as a new party if –

    (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

    (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

    (3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.

    (4) The court may order a new party to be substituted for an existing one if –

    (a) the existing party’s interest or liability has passed to the new party; and

    (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.”

  4. Rule 52.1 definesappellant” and “respondent” for the purposes of part 52 as follows:

    “(d) ‘appellant’ means a person who brings or seeks to bring an appeal;

    (e) ‘respondent’ means –

    (i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and

    (ii) a person who is permitted by the appeal court to be a party to the appeal;”

    It includes no guidance at all as to when a person should be permitted by the appeal court to be a party to the appeal, let alone any guidance tailored to the situation of a child who wishes to participate. This does not mean, in my view, that welfare considerations are irrelevant to the decision whether to join the child; they are, as I observed in Re LC, “by no means out of place”. But they are not necessarily determinative and there is no best interests threshold such as there is in the FPR. Although not strictly applicable, I see no reason why regard should not be had to the guidance provided in Practice Direction 16A of the FPR to the extent that it may prove useful in the rather different circumstances of the Court of Appeal and the specialist sphere of Hague Convention proceedings. Lord Wilson referred to it at §§50 et seq of Re LC and I will not rehearse it further here.

  5. Neither is there any equivalent in the CPR to the provisions of the FPR which require or permit a guardian to be appointed for a child. It may be that the provision in CPR Rule 52.10(1) whereby, in relation to an appeal, the Court of Appeal has all the powers of the lower court, would provide a basis for the appointment of a guardian. But that does not arise for decision in this case. Adequate protection for the child’s interests on an appeal can generally be achieved in any event by means of a litigation friend appointed in accordance with Part 21 CPR.
  6. Part 21 CPR deals with children and protected parties. A ‘child’ means a person under 18 years of age (Rule 21.1(2)(b)). Rule 21.2(2) provides that a child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under Rule 21.2(3) permitting the child to conduct the proceedings without. Rule 21.2(4) provides that an application for an order under Rule 21.2(3) can be made by the child. If the child already has a litigation friend, it must be made on notice to the litigation friend but may otherwise be made without notice. The court may appoint a litigation friend by order (Rule 21.6). Alternatively, Rules 21.4 and 21.5 deal with becoming a litigation friend without an order.
  7. The functions of a guardian are well understood by family practitioners and are set out in the FPR. CAFCASS guardians (often with a social work background) are the most familiar guardians but they are not the only type. Lord Wilson observed in Re LC that, had Cobb J made T a party to the first instance proceedings in that case, she would have been required to act by a guardian but that such a status might have been conferred on her solicitor. He also observed (§55) that the grant of party status to a child leaves the court with a wide discretion to determine the extent of the role which he or she should play in the proceedings. He explained the sort of involvement he would have contemplated had T been a party and said that it would have been for her guardian to decide which of the documents filed in the proceedings should be shown to T.
  8. The functions of a litigation friend are no doubt fully understood in the usual civil context in which the system operates although the researches of counsel did not produce any authorities to enlighten us further about how they actually carry out their functions or as to the principles that the court should apply when deciding whether to order that a litigation friend is not necessary. How a litigation friend is to function in the very different environment of an appeal in a Hague Convention case is rather more opaque. No guidance is to be found about that.
  9. Fortunately, this area of work is well served by very experienced solicitors who are familiar with these sorts of proceedings and extremely capable of looking after the interests of the children affected by them. In this case, the solicitor for J and D was appointed as their litigation friend and appears to have been able to discharge that role efficiently and without encountering any difficulties in practice. This sort of arrangement may often commend itself where the question of joining children at the appeal stage arises.
  10. Children need to know that their views are being listened to and that their particular concerns are not being lost in the argument between their parents but it must be recognised that direct participation in proceedings can be harmful for children. As Lord Wilson said in §48 of Re LC, “[t]he intrusion of the children into the forensic arena….can prove very damaging to family relationships even in the long term and definitely affects their interests”. I therefore contemplate that it may be necessary for a litigation friend to guide and regulate the child’s own participation in the proceedings, just as a guardian would. He or she will no doubt determine which documents filed in the proceedings should be shown to the child and take decisions, in consultation with the child, about whether the child should attend the court hearing. In the very unlikely event that an intractable issue arises between the litigation friend and the child, there may be no alternative but to ask the court to give directions, but I would expect such a situation to be extremely rare. What I do not think a litigation friend can do is provide a welfare assessment for the court in relation to the child as a guardian would do. However, where the litigation friend is the child’s solicitor, as I anticipate will be so in the vast majority of cases, he or she will no doubt assess the case and guide and support the child in their approach to the litigation, as any solicitor would do for an adult client.

 

Just in case you were thinking that a door has been opened here, the Court of Appeal try to close it, just like you might if you open your door on a Sunday just as Sky Super Sunday is about to begin only to find two well-dressed people wanting to talk to you about Jesus. The door might still be technically open, but there’s no way that anyone is feeling like there is a welcome invitation to come in and break Jammy Dodgers with you.

I end this section of my judgment with a cautionary note. It should not be expected that an application for children to be involved in proceedings, either as appellants or as respondents, for the first time in the Court of Appeal will be received sympathetically. By the time the matter reaches the Court of Appeal, it is usually far too late in the day to address this sort of issue. I have said several times already, and make no apology for saying again, that this needs to be thought of at the very outset of the proceedings. As to how an application made at that stage may fare, nothing that I have said in this judgment is intended to affect the existing jurisprudence on the subject.

 

 

 

Adoption seminar (featuring Rihanna)

[Seminar itself not featuring Rihanna. She will not be attending, or singing, or play any role in it whatsoever. She won’t even be an image on a slide.  But she will be there in spirit.   She will not actually be there in spirit]

I am told by teh interweb that Seminar originally meant ‘breeding ground’ or ‘plant nursery’ and so I am becoming the Monty Don of Adoption this Thursday when I deliver an adoption seminar.

 

It is available as a webinar, and you can claim CPD points for it, if you want to watch what I have to say about adoption, or you are incredibly desperate for CPD points, or if you just want to see what happens when your laptop screen cracks from the inside once my fizzog appears on it, then NOW is your chance.

 

NOTHING ELSE WILL DO – WHERE ARE WE NOW WITH Re B AND Re BS?

 

SEMINAR/WEBINAR

 

5.00pm – 6.30pm

 

on Thursday, 29 January 2015

 

 to be held at Crown Office Row Chambers, 119 Church Street

Brighton, BN1 1UD

followed by a Drinks Reception

 

 

Andrew Pack (Guest Speaker) who is the award-winning Legal Commentator of the year 2014 and author of “suesspiciousminds blog will look at the rapidly developing jurisprudence relating to placement orders and adoption.

 

“Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course is possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails” – Munby LJ in Re BS

 

There have been 5 Court of Appeal decisions in the last 5 weeks on this principle – is it now dead and buried?

 

 

Adam Smith will look at the British tradition of adoption orders, how Re B impacted on the UK system, and how other European States provide long term care for their children:

“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.“ – Mostyn J in Re D.

 

This Seminar/Webinar has been registered for 1.5 CPD and will cost £15 per person.

Please make cheques payable to “One Crown Office Row”

Joining instructions and materials for the webinar will be emailed on the day

Please register with the clerks on 01273 625625 or email: clerks@1cor.com

 

If it is popular, I might end up doing some more of these webinar things, which I don’t know whether you will take as a promise or a threat.

I had better stress to you again that Rihanna and the Wombles do not specifically* endorse this seminar, but I know for a fact that neither of them are going to any OTHER adoption seminars this year, so read into that what you will.

 

Oh also, you don’t get the drinks reception bit if you attend by Webinar only – we haven’t invented some sort of alcoholic Willy Wonka thing where you can reach out to your ipad and get a glass of white wine come through the screen. If we’d invented that, we’d be out of the law game and be busy being millionaires. If you are utterly committed to having a Drinks Reception alongside your webinar, you will have to supply and serve your own drinks. Sorry.

I could maybe invent you some sort of Adoption Seminar drinking game, where you have to take a gulp every time I say “the President”  and down your glass in one every time I say “proportionality”, if that helps.  [Please don’t actually do this, particularly if you are attending the live event – I fear it might  kill most mortals]

 

*or indeed at all. They are at best oblivious of it. Though if they have one of those PR agencies who do scrapbook clippings of every piece of information that mentions their client, they will be utterly baffled by this whole thing.

Rihanna you’re a Womble !

 

 

This is not child protection at all, and a solid 80% of what follows is nonsense, but it is all based on a commercial law case called Fenty and Others v Arcadia Group 2015 just decided in the Court of Appeal.   (the case is really Rihanna v Topshop, but that’s the formal name – Fenty is Rihanna’s surname, and Arcadia own Topshop)

 

 

This is the original judgment

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2013/2310.html&query=fenty&method=boolean

 

 

and this is the appeal

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/3.html

 

 

Quickly, because this might confuse older readers, younger readers and No-Telly Neville.   Rihanna is a current pop star, with a substantial batch of hit songs and is also a fashion icon for young people – she is cool. The Wombles are a group of fictional furry creatures who live on Wimbledon common and who make good use of the things that they find, things that the everyday folks leave behind. They pick up rubbish.

 

 

Major recording artist with a string of catchy hits

Major recording artist with a string of catchy hits

Picks up rubbish  (yes, I went there with the Chris Brown gag)

Picks up rubbish (yes, I went there with the Chris Brown gag)

 

[Note that use of any image of the Wombles or Rihanna does not imply that either of them endorse the Suesspicious Minds website   – but let’s be honest, we all know that if they want to find out information about family law in the UK, they don’t go anywhere ELSE to find it]

 

You are probably asking yourself at this point, how the Wombles and Rihanna come together in the English Courts – and possibly also whether there is a musical collaboration in the offing. I will relate to you, how their histories enweave.

 

The case was about Topshop selling a T-shirt with a photographic image of Rihanna, and Rihanna suing them.

 

The Court of Appeal point out quickly that in England, unlike America, there is no such thing as “image rights” – Rihanna, as a celebrity, does not own the copyright in her image or photograph or appearance. The copyright lies with the creator of the photograph, who had consented to its use.

 

The case was, instead, dealt with under the umbrella-ella-ella of “passing off”

 

the law of passing off is not designed to protect a person against fair competition. Nor does it protect a person against the sale by others of the same goods or even copied goods. What it protects is goodwill and it prevents one person passing off his goods or services as those of another. As Lord Oliver of Aylmerton explained in Reckitt & Colman Products Ltd v Borden Inc & Ors [1990] RPC 341 at page 406, a claimant must establish three elements in order to succeed in such a claim. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the particular name or get up under which the goods or services are offered to the public, such that the name or get up is recognised by the public as distinctive of the claimant’s goods or services. Second, he must demonstrate a misrepresentation by the defendant to the public leading or likely to lead the public to believe that the goods or services offered by him are the goods or services of the claimant. Third, he must demonstrate that he suffers or, in a quia timet action that he is likely to suffer, damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the claimant.

 

 

For this case, Rihanna would have to show that :-

 

  • She has a degree of goodwill in her name and reputation, particularly in fashion
  • That Topshop had led the public to believe that the T-shirt was a Rihanna product in some way
  • That she suffers loss or potential loss as a result of people believing that this was an official or endorsed product.

 

 

Would she win, or would Topshop be able to say that Rihanna had found love, and a hopeless case?

 

The judgment is worth reading – the original trial Judge had been very switched on and in touch in relation to Rihanna, celebrity culture, young people, viral marketing and fashion, including that the item Rihanna was wearing on the unauthorised T-shirt being a “bralet”  – and resisted, where I would have not, of saying it was a bralet for a starlet.

 

 

This was his original conclusion

 

There followed an overall evaluation by the judge of the various findings which he had made up to this point. He considered that the fact that the t-shirt was a fashion garment and the further fact that it was on sale in a high street retailer did not assist one side or the other. However, the nature of the image itself was a fairly strong indication that the t-shirt might be authorised and approved by Rihanna herself. So also, the public links between Topshop and famous stars in general and, more importantly, Rihanna in particular, would enhance the risk of consumers believing the garment had been authorised by her. He recognised that the fact that neither the swing tag nor the neck label carried the Rihanna name or the R slash logo pointed against authorisation but, in his view, this was not sufficient to negate the contrary impression. He summarised the position this way:

 

“72. … Although I accept that a good number of purchasers will buy the t-shirt without giving the question of authorisation any thought at all, in my judgment a substantial portion of those considering the product will be induced to think it is a garment authorised by the artist. The persons who do this will be the Rihanna fans. They will recognise or think they recognise the particular image of Rihanna, not simply as a picture of the artist, but as a particular picture of her associated with a particular context, the recent Talk That Talk album. For those persons the idea that it is authorised will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsement as important. She is their style icon. Many will buy a product because they think she has approved of it. Others will wish to buy it because of the value of the perceived authorisation itself. In both cases they will have been deceived.”

Finally, the judge dealt with damage. He considered that if, as he believed to be the case, a substantial number of consumers were likely to be deceived into buying the t-shirt because of a false belief that it had been authorised by Rihanna then that would obviously damage her goodwill. It would result in a loss of sales to her merchandising business and also represent a loss of control over her reputation in the fashion sphere. It was, he thought, for her to choose which garments she endorsed. In all the circumstances, Topshop’s sale of the t-shirt without her approval amounted to passing off.

 

 

I enjoyed the detail that Topshop had commissioned some market research prior to the trial, getting people to look at the T-shirt and comment as to whether they thought it was an official piece of Rihanna merchandise. They called the author of that research.

 

Sadly, as she was a trainee solicitor working at the firm representing Topshop, one might think that she wasn’t the most impartial witness ever to take the stand. I think the Judge was very kind about that

 

 

 

Mrs Armstrong is a trainee solicitor in the defendants’ solicitors currently seconded to the legal team at Arcadia, the parent group of the defendants. She gave evidence of efforts she had undertaken to find out if Topshop staff were aware of any feedback from customers concerning the t-shirt. She was a good witness but I am not satisfied the exercise Mrs Armstrong described was sufficiently rigorous to establish the proposition advanced, that there had been no comments or relevant feedback relating to the product.

 

 

But where, Suesspicious Minds are the Wombles? Do not worry, I am about to go with the Orinoco Flow

 

 

In the original judgment, there are a number of legal authorities referred to. Two stood out for me

 

In the 1970s there were a number of cases in which merchandising rights were not found to exist before the English courts. These included Tavener Rutledge v Trexapalm (Kojak Lollipops, the “unauthorised” local lollipop retailer succeeded against the makers of the television program) [1977] RPC 275

 

 

[I remember those Kojak lollipops! Also this story reminded me that when I was eight and a barber asked me how I wanted my hair cut (the only acceptable answers at the time being “short back and sides” or “just a little bit shorter all over”) I instead said “Well, I like the police, and I like lollipops, but I don’t want to look like Kojak”   – this being the first time I wrote my own material rather than relying on the Big Daddy bumper joke book. Note for Neville, Kojak was a TV detective in the 70s who had two gimmicks – he was bald, and he sucked lollipops. He also had a catchphrase, see next gag]

 

For God’s sake, Suesspicious Minds, I hear you cry. I did not start reading an article called “Rihanna, who loves you baby?”  – where the chuff are the Wombles?

 

The next merchandising authority where a celebrity was used to endorse a product without that celeb’s permission was this:-

 

Wombles v Womble Skip Hire (skips for collecting rubbish branded Womble, injunction refused) [1975] FSR 488

 

 

 

[It is beyond the scope of this article, but the case that altered the Wombles precedent involved Teenaged Mutant Ninja Turtles. I am SERIOUSLY thinking about becoming a lawyer specialising in “passing off” cases if I would get to bring Kojak, Wombles and Ninja Turtles to Court in my bundle of authorities]

 

 

I can’t really think about Wombles v Womble Skip Hire without envisaging the actual real wombles becoming outraged and sitting in a solicitors waiting room and bringing the case. Orinco sat behind counsel with his nose in a bowl of porridge, Tobermory with a pencil behind his ear rebuilding the witness box and Madame Cholet checking out the RCJ cafeteria.  Or a procession of them walking purposefully down the hallways  (possibly with a Womble cover version of “Little Green Bag” playing in the background)

 

But even better, in my mind, is that at some point, Rihanna’s legal team had to tell her that there was a case that would help in her litigation and that it is about Wombles. And them having to explain to Rihanna what a womble is. For some reason in my imagination, Rihanna’s lawyer sounds like a New York wise-guy (which he or she absolutely is not, in real life, in any way, and this should not be construed as any suggestion that they are anything other than amazing human beings)

 

“So, they’re like sort of bears, see, but they wear clothes and hats. And they have snouts, and they have bright black shiny noses and one of them eats porridge and falls asleep – like all the time. That one is Orinoco, see?  And the main man, he’s Great Uncle Bulgaria, and he sends his crew out every day to find a copy of the Times for him. They all live in a burrow, and the burrow is wallpapered with old newspapers. And they have a French chef, and she’s a womble too – they call her Madame Cholet. You know the Smurfs, right? Like smurfs, only not. Both have an old man leader, and only one girl. But wombles, they ain’t blue “

 

“Are you billing me for this?”

Rihanna wins the Court of Appeal case, just as the Wombles won their own case about protecting other people using their image to sell unauthorised products. So Rihanna, you’re a womble.

 

 

 

 

Fifty-fifty – equal parenting time

 

 

 

As far as I know, Re M (A Child) 2014 is the first time the Court of Appeal have dealt with a case involving equal parenting time since the Children and Families Act with its controversial clause came into being.

 

http://familylawhub.co.uk/default.aspx?i=ce4491

 

This case has some other remarkable features, but just focussing on what the Court of Appeal say about equal parenting time – that being the order that the trial Judge made.

 

 

There is no longer any need, because of the change in the legislation, to impose a “shared” order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent.

 

If you are one of the campaign groups representing fathers, the Court of Appeal saying that a 50-50 split will be a “rare order” “only to be contemplated where there is confidence it will not work to the disadvantage of the child” is not something you wanted to hear.   So all parents are equal, but some are more equal than others.

 

Anyway, the meat of this appeal was more on the issue of whether a Court can impose a condition on WHERE a parent will live when making an order that says that the child will live with them (residence order, in old money)

 

 

In this case, the boy is 5 ½ .

 

The circumstances as they were before the judge was that for some time the mother had set up home with W in Newcastle whereas the father lived in London with his two older children, half siblings of W, and it was impracticable to consider the father moving from London, given his commitments there and, in particular, his longstanding employment.

 

 

There were a series of findings about the father’s conduct that had led the mother to move out of the family home in London and move to Newcastle, the atmosphere in the family home having become ‘toxic’

 

So far as allegations that the mother made against the father, the judge made a greater number of findings. They all, in one aspect or another, relate to the degree of control that the father sought to assert over the family as a whole, but in particular over the mother.

 

One aspect that understandably had prominence was the unfortunate fact that the father was confirmed, as time went on, to be HIV positive. The question arose as to when he knew or must have known that that was the case and whether he told the mother promptly about that and, if not, why not. In short terms, the judge found that there did come a time when the father will have known that it was highly likely that he was HIV positive, but it was not for some year or more after that time that he told the mother about this, despite some active continuing sexual contact between them. The judge describes her finding in this regard as: “Appalling behaviour on behalf of the father. The mother was understandably terrified with this news.” The judge, in short, found the mother’s allegation proved.

 

The mother’s case was that the boy should live with her in Newcastle and spend some time with his father.

 

Father was saying that the boy should live with him in London and spend some time with his mother.

 

 

 

The Judge made an order which seemed utterly bizarre on the face of it, particularly given the findings made, which was that the boy would live with father in London and IF mother moved to London, there would then be a 50-50 split of time.

 

The judge, in the event, made an order that provided for W to be returned from Newcastle to live with his father in London and provided in the interim for arrangements for the mother to have contact. The order further provided that if the mother moved back to the London area herself, she would have substantial contact with her son. Indeed, we have seen a draft order, which counsel have explained to us is more than simply a suggestion of an order as a result of negotiation between counsel, but arose as a result of direct invention from the judge at two or three hearings up to and including 8 July 2014. The basis of the order is that if the mother moves to London, W: “shall live with his father and mother with the principle of equal shared time to include half of all school holidays.” In the meantime, or if the mother does not move to London, the provision was for holidays to be split into equal shares. For each alternate fortnight, so that is once every four weeks, W would travel with the father up to Newcastle to spend most of Saturday and half of Sunday with the mother, and, on another fortnight on each four week cycle, the mother would travel to London to have a similar amount of time with him

 

The mother appealed, on the basis that (a) given the findings and facts a decision to split the time equally was perverse (b) the evidence was that mother did not want to move back to London and would have considerable difficulty in doing so and (c) this stipulation amounted to attaching a condition to residence – something which is only to be done in exceptional circumstances which this was not.

 

 

Let us be fair to the Judge – this ‘third way’ compromise had been suggested by the CAFCASS officer.

 

“42.The recommendation of Mr Power is that W should be returned to the father and it is the hope from Mr Power that the mother will feel able to relocate back to London and therefore there can be come shared care arrangement. The mother says that it is quite impractical; she does not have a job, she does not have income, she does not know where she could afford to live and it is of note that neither party have initiated court proceedings so there are no financial provision proceedings in being. So at the moment the position is that the mother has no known resources such that she can obtain from her family or from by finding a job. She says that if she has to come back to London she does not know that she can find accommodation. She looked into the possibility of finding accommodation and a refuge is one possibility but the problem about that is that at the time she requested alternative accommodation she was told the only then available refuge was in Manchester. 43. Mr Power was of the view that, biding her time while she remains in Newcastle, that a London refuge would eventually be available to a suitable place and that in his experience people are satisfactorily re‑housed, usually within a period of six months, and that whereas living in a refuge is not something one would necessarily wish to do it was perfectly adequate if W were to live with the mother in the refuge. It is fair to say that, looking at the large amount of documentation produced for this hearing, that the mother in the past has been able to potentially find herself accommodation; at one stage she has through her brother I think paid for four months worth of rent in a flat if the father would co‑operate to allow for some further finance of that in the future but the father refused so she has looked into the possibility and obtained money from her brother. Her brother, also I think, is in medicine or science and lives on the continent and he has helped her financially in the past.”

 

 

 

The Court of Appeal give me a lovely new phrase to use – referring to key passages of the judgment, they say that these are the “engine room” of the judgment. Stealing that!

 

In paragraph 46, the judge, looking at W’s best interests, said this: “46.It is vital for him that he should have the continued love and care from his mother in the future as he has had in the past. 47. So looking at those two options, those are really the only two options. Either W stays in Newcastle with the mother under the regime she puts forward or some other workable contact arrangement, what these days are child arrangement and sharing of care, or she comes down to London and she with the father, together, care for W. Mr Power, when asked about what he had in mind with a shared care arrangement, said that he would hope that the mother would have at least half the care of W and possibly more than half the care of W depending upon her commitments, but he could not be more definite about the arrangements because at the moment the plans are inchoate.

 

  1. The father’s proposal if W was returned to London would be that W would see his mother very little indeed. Having heard the evidence he said that he would support what Mr Power recommended. Therefore if the mother can remove herself back to London then she should be able to have a substantial part of the care of W depending upon where in London she is able to live. Of course the court cannot force the mother to move back to London; it will have to be a decision for to make but looking at all the options. The court must make the decision which is the least destructive of family life, must make no order unless an order is necessary and must make a proportionate order. It is a difficult balancing exercise but the balancing exercise must be carried out in what is in this little boy’s best interest. I have no doubt it would be in the mother’s best interest that she should remain in Newcastle. She is happy there and she has a very nice home and there are suitable arrangements for W but this case sadly cannot be decided upon what is in the mother’s best interests; it has to be decided on what is in W’s best interest. I am well aware that she in a difficult predicament because of at the moment she has no income, she has no job and her immigration status is questionable but she is, I find, a resourceful woman and she has been able to achieve that which she wanted, within reason, in her circumstances whilst she was living with the father. Although I have found father was controlling, nevertheless she did go out, she went to courses, she had a job, she left when she chose to to take W to see family or friends. She says she has no friends now but she obtained friends over Facebook and in the past she went to stay with one friend, S, and at one stage she was able to be friendly with her brother’s fiancée but that too has come to an end. So she is a woman who is capable of making friends, who is capable of arranging life as best she may even when in that toxic atmosphere. Therefore I am satisfied that if she decides she wants to move back to London then she will be able to find one way or another that will enable her to do so. As I say, at the moment, there are no financial proceedings so I know not how they may work out if such applications were made; that is not for this court and it is certainly not for this court today.

 

  1. Therefore, carrying out that balancing exercise and looking at what is in the best interests of W, I have come to the conclusion that it is in the best interest of W that he now should be returned to the father’s home and that he should live there under a shared care arrangement; a child arrangement where, in principle, the mother should have a substantial part of the care of W but that of course cannot be put in place until and unless the mother is willing and able to move back to London. If she is not, and in the meantime whilst she remains in Newcastle, sensible arrangements will need to be made so that she can see W and I will leave the parties to see if they can, by agreement, work out a sensible regime. There needs to be a date when W is moved back here; clearly he needs to be back in time for the start of school in September and consideration needs to be given to what happens in the meantime and no doubt arrangements will have to be made but in my judgment, for this little boy, the familiarity of school and the church that he has been going to is, I agree with Mr Power, what is the most stable part of W’s life in the light of the fact that his parents are separated. Therefore, in my judgment, W should return to live with the father. The order should reflect the fact that, in principle, the mother should have part of the care of W when and if she is able to come and live in the proximity to the father and to W’s school and until such time as that happens, what used to be described as contact arrangements will have to be worked out.”

 

Those paragraphs are the engine room of the judge’s judgment and have been the focus of the appeal before us

 

 

So, the Court of Appeal had to consider whether what the Judge had done did amount to attaching a condition on residence and whether that was justified.

 

The law on that really emerges from Re E (Residence : Imposition of Conditions) 1997 2 FLR 638 – “where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to chose where he/she will live within the United Kingdom or with whom. There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way of conditions which include a condition of residence”

 

The Court do have the legal power to make conditions under s11(7), but unless there are exceptional circumstances, they ought to have decided which of the two competing plans (with mum in Newcastle or with dad in London) was the right plan, rather than imposing an order which effectively compelled mother to move to London against her wishes.

 

 

In my view, the judge should have made a clear choice, hard though it would have been, between W remaining living in the care of the mother in Newcastle or living in the care of the father in London and she should not have endorsed the halfway house arrangement that she did, which, for the reasons I have given, was, first of all, in my view, impermissible as a back door condition, but secondly, and perhaps more importantly, was simply not justified on the evidence and hard to understand as a concept that would be compatible with the child’s welfare. For those reasons, I would allow the appeal and set aside the judge’s order.

Committal hearing

There’s a story today in the Mail about a woman being committed to prison and the paper not being allowed to give her name

 

http://www.dailymail.co.uk/news/article-2920899/Judge-defines-rules-jailing-woman-contempt-court-secret-naming-lead-daughter-identified.html

It means the courts have returned to the practice of secret imprisonment that is thought to have ended in 2013 after the Mail revealed the case of Wanda Maddocks. Miss Maddocks was jailed for trying to remove her father from a care home where she thought his life was in danger, against a judge’s orders. The public were forbidden to know her name or any details of her case.

Lib Dem MP John Hemming said of the single mother ruling: ‘This is a coup against justice. Civilised countries do not bang people up in secret.’ As the row over her imprisonment grew, High Court officials announced that a new hearing in the case will be held today ‘where the judge will bring the attention of counsel to the mandatory aspect of the 2013 guidance’.

Read more: http://www.dailymail.co.uk/news/article-2920899/Judge-defines-rules-jailing-woman-contempt-court-secret-naming-lead-daughter-identified.html#ixzz3PZPGFWxx
Follow us: @MailOnline on Twitter | DailyMail on Facebook

and the MOJ have just published this judgment, which does actually name her.

http://www.bailii.org/ew/cases/EWHC/Ch/2015/104.html

 

I think that Pink Tape is going to do a detailed post about it. I can’t see anything in the judgment about the Judge considering making any order for anonymity or changing her mind on that, though that doesn’t mean that the Mail story is wrong.

There were journalists at that hearing, so one would hope that if they say that the Judge told them that they couldn’t print the woman’s name that they are reporting that accurately, in which case we could do with a judgment that reflects that there was a change of that decision and setting out why.

 

It is definitely the same case, as the reported facts are the same, save that there’s nothing in the judgment about reasons why one might consider not naming her.

What is unusual in this particular committal application (other than that) is that the care proceedings are not yet over and that the child seems to me to still be living with the mother – there were concerns that mother felt she might lose the final hearing and was planning to run away with her daughter to another country, so there was an order that she surrender up her passport, and it is the failure to comply with that order that led to the application.

This bit here, is what leads me to think that the child was still with mother

 It is the Local Authority’s case that whether or not I decide to remand the mother in custody for breach of this order, they will be making an immediate application for an interim care order

Although the mother has received a 7 day sentence, it is fairly clear that she would be released if she takes steps to provide the passports.

Christmas mass

I think that I’ve found the Court of Appeal case from THIS Daily Telegraph story

http://www.telegraph.co.uk/news/religion/11355745/Judge-orders-father-to-take-his-children-to-church.html

 

Or rather, Rich Greenhill found it. My mistake in searching was to be looking for a case about Catholic Mass, Christmas, Catholicism or even religion. That turned up nothing, so it is more of a brute force approach.

All we really know, to find the case, is that it was an appeal from HH Judge Orrell, the report says “children” so there’s more than one child, and the original case was heard in 2009.  Oh, and the Daily Telegraph father says that his oldest son is now ten, so we know that the case is about a boy born in 2004.

So, I found one Court of Appeal decision in 2009 from HH J Orrell, but it relates to one child, and doesn’t mention Christmas mass, catholicism or religion.  I don’t think it is therefore Re B (a child) 2009.

And Rich Greenhill sent me Re F (Children) 2013, which is a refusal of permission to appeal from a judgment by HH J Orrell and it is about two children, and it does mention  that the father would be spending some of the Christmas holidays with the children – there were a huge number of complaints by father, but attendance at Christmas Mass isn’t one of them.  And the order being appealed was from 2011.

Initially, I discounted it.

But but but, the Re F judgment does describe the father as Dr F, and we DO know from the Telegraph story that the father in their case was a “51 year old psychologist”

The children were two boys, the oldest being born in January 2004, so I think that’s another tick in the box.

And the appeal hearing here is about final orders, and says that the proceedings began in 2009 so it is possible that we are talking about the same case, just at a later stage.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/49.html&query=Orrell&method=boolean

 

I’d be reluctant to put too much store by the Daily Telegraph father and Dr F being the same person – it might instead be that they are two unrelated cases and that the Court of Appeal case with Daily Telegraph dad has not been reported.

Those are the only two  reported cases in the relevant timeframe where the Court of Appeal considered a private law case appeal against an order of HH Judge Orrell. And Re B doesn’t seem at all right because it was dealing with a 14 year old girl (who presumably would just decide for herself what she wanted to do on Christmas Eve) and not two children.

Re F  – is an appeal from HH J Orrell, relates to two boys, the oldest is the same age as the Daily Telegraph story, and is private law. And the father in both cases has a professional qualification which might entitle him to be addressed as Dr.

Even if Re F is the same one, it doesn’t help that much, but it doesn’t actually report the substantial feature of the Telegraph’s story, which is a complaint that the Judge :-

(a) Made an order that wasn’t asked for

(b) Made an order that was unfair

(c) That order was requiring a father to take his children to Christmas Mass, despite him not being Catholic.

(d) Had done so as a result of the Judge’s own religious beliefs rather than on any argument.

And the appeal as reported doesn’t tackle any of that.

 

 

Pannick attack

I know some of my readers are not in the Chris Grayling fan club  (which is a shame, because you get a lovely badge and a code book that allows you to translate what he’s saying into something that resembles common sense   – hint, you just say the opposite of what he’s saying)

 

so you might enjoy Lord Pannick tearing him a new one, and giving everyone a route map to crush the new judicial review legislation into oblivion in the future

 

Lord Pannick (CB): My Lords, I am very pleased that the Government have given way on the issue of principle in Motion B and have indicated that the identity of those contributing up to £1,500 funding for a judicial review will not need to be disclosed. The Minister said that our earlier debates on these issues had been highly intelligent. Without, I hope, debasing the currency, I want to make some observations.

The issue of principle is that the courts will now retain a power to hear a judicial review even if it is said that the alleged defect would not have made a difference in the individual’s case. I would have preferred the concession to be drafted in more generous language than an exceptional public interest, but concession it is. As the Lord Chancellor said in the House of Commons on 13 January at col. 811, and as the Minister confirmed this afternoon, it will be for the judges to decide how and when that test should apply. Indeed it will.

In applying the criterion, I am sure that the courts will have very much in mind Mr Grayling’s explanation of the purpose of the clause. He said that it is designed to prevent judicial reviews being heard when they are,

“based on relatively minor procedural defects in a process of consultation … That is what these proposals are all about”.—[

Official Report

, Commons, 13/1/15; col. 812.]

I am confident that the courts will have careful regard to those explanations by the Lord Chancellor and that if the judicial review is not concerned with minor procedural defects but with allegations of systematic or deliberate wrongdoing, or errors of law in the interpretation of statutes which have a general effect, the discretion will be exercised so that the case is heard in the traditional way, as it should be.

21 Jan 2015 : Column 1345

In applying the clause, I would also expect the courts to pay close regard to what the noble and learned Lord, Lord Woolf, then Lord Chief Justice, who I am delighted to see in his place today, said in R v Offen, 2001, 1 Weekly Law Reports 253. In the Court of Appeal, the noble and learned Lord was considering Section 2 of the Crime (Sentences) Act 1997, which requires courts to impose an automatic life sentence on a person convicted of a second serious crime,

“unless the court is of the opinion that there are exceptional circumstances”.

At paragraph 79 of his judgment, Lord Woolf said that the meaning of “exceptional” depended on the statutory purpose, and where the statutory mischief did not exist, the case was indeed exceptional.

Applying that approach, as I am sure that the courts will do in the present context, the judges will be able to say—and I hope that they will—that the statutory purpose here is the very limited one identified by Mr Grayling of striking out judicial reviews which raised what he describes as “relatively minor procedural defects”.

Other cases, particularly those raising allegations of substantial errors of law or of systematic wrongdoing are outside the legislative aim and are therefore, on the approach of the noble and learned Lord, Lord Woolf, exceptional. They can be heard in the normal way. For those reasons, I am confident that we have arrived at a tolerable result at the end of this saga.

We have arrived at a sensible solution because, and only because, this House was prepared twice to disagree with the House of Commons. It should be noted that the concern about Mr Grayling’s proposals was expressed across this House. My amendments were supported by a very large majority of Cross Benchers who voted; they were signed by the noble and learned Lord, Lord Woolf. The amendments were supported by the Labour Benches, led on this occasion by the noble Lord, Lord Beecham, with his customary wit and fire; he signed the original amendments. There was a very substantial rebellion in support of retaining judicial discretion from the Liberal Democrat Benches; the noble Lord, Lord Carlile of Berriew, also signed the original amendments. Also of importance on the Floor of the House and behind the scenes, there was substantial support from noble Lords on the Conservative Benches who are wise and experienced, and respectful of the value of the rule of law, with some forceful speeches in support of retaining judicial discretion, in particular from the noble Lord, Lord Deben. I am very grateful for all that support.

I express particular thanks to the Minister, the noble Lord, Lord Faulks, who has assisted the House by the force and clarity—indeed, the good humour—of his advocacy as the acceptable face of the Lord Chancellor’s department at all stages of the Bill. I know that he has worked tirelessly and successfully behind the scenes to arrive at a compromise which can be agreed by the Lord Chancellor and by noble Lords concerned about this clause. That is a remarkable achievement.

21 Jan 2015 : Column 1346

I should add one further observation and I do so with regret, but it needs to be said. I regret that on 13 January, when the House of Commons considered this matter for the final time, a Lord Chancellor again expressed comments that display an astonishing lack of understanding about the role of judicial review—one of the cornerstones of the rule of law. Judicial review does not, as Mr Grayling complained at col. 819, involve public bodies being “blackmailed”. He also suggested,

“severe doubts about whether secondary legislation should be subject to judicial review”.

These doubts appear to have no basis whatever other than the fact that the courts have, on a number of occasions in the last year, held that regulations made by the Lord Chancellor were outside the scope of his statutory powers.

Furthermore, judicial review is not, as the Lord Chancellor again suggested,

“now overtly used by campaign groups and third parties to seek to disrupt the process of government”.—[

Official Report

, Commons, 13/1/15; cols. 819-20.]

Such comments make no sensible contribution to the debate. They demean the office of Lord Chancellor because they disrespect and undermine the vital role of judicial review in ensuring that the business of government is conducted lawfully.

However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament. The discipline of the law plays a vital role in promoting the high standards of administration in this country that we are in danger of taking for granted. It helps to concentrate—and rightly so—the mind of a Minister or civil servant taking a decision whose legality he or she will be answerable for in public before an independent judge.

4.45 pm

Your Lordships’ Constitution Committee said recently, in its excellent report on the office of Lord Chancellor, that the Lord Chancellor should have,

“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.

Every time this Lord Chancellor addresses judicial review, he contradicts that essential guidance. I am very pleased that this House has performed its role in requiring the House of Commons and the Lord Chancellor to think again, and in securing acceptable compromises that will enable judicial review to continue to perform its valuable and essential functions.

 

If you want to see the Hansard debate (the rest of it is not quite so amazing as this, which actually made me want to stand on my desk and say “captain, my captain”) it is here

 

http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/150121-0001.htm#15012189000542

 

Judicial review is a thorn in my side, as it is for anyone who works for a public body – there is little that ruins your month more than getting a judicial review claim letter, it is a miserable and painful experience. But that pain is part of the price you pay for having a State that can be properly held to account for behaving unreasonable, irrationally or unfairly in its dealings with people.  Many people like me learn to tolerate and even love the thorn, and its a shame that our Lord Chancellor can’t see it that way.

But then, if you can’t grasp that your actual role is to be a Check and Balance, you might not understand the importance of Checks and Balances.

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