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Author Archives: suesspiciousminds

Payment of a contact supervisor – private law

This may crop up again in private law cases, and is important therefore for Judges, lawyers, parents and very importantly Independent Social Workers and contact supervisors to know about.

In Re D (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/89.html

There was a decision at an interim stage that father’s contact needed to be supervised. An order was made for six sessions of supervised contact and that the father should pay for an ISW to supervise this contact. When the bill arrived, father considered it excessive and only paid some of it, leaving an amount outstanding.

As part of the appeal on other issues, the Court of Appeal had to consider the Judge’s final order in the private law proceedings which was that father must pay the ISW’s bill in full.  The father argued that the family Court had no jurisdiction on that issue, that this was a contractual dispute between him and the ISW and would have to dealt with as a contractual dispute, not within the family Court.

The legal argument was whether s11 (7) of the Children Act 1989 which allows a Court to set conditions about contact is sufficiently broad to allow a Court to rule that not only must contact be supervised, but who is to pay for the supervision, and how much.

 

 

  • Finally, I turn to the issue of the outstanding invoice submitted by Ms Barrett, the ISW, for services in connection with the supervision of contact pursuant to the order of 10th January 2014.
  • By that order, in which she directed the initial six sessions of supervised contact, the recorder ordered that the costs of the instruction of the ISW should be borne by the father, adding (“for the avoidance of doubt”) that the relevant costs would cover time spent in reading the relevant documents (identified by her as all the judgments save that as to costs, and the reports of all the professionals and experts in the court bundle); the cost of supervision; the cost of preparing sessional contact reports; and the costs of attending the subsequent review hearing if required by any party. Following that order, Ms Barrett was instructed and a letter of instruction sent by NYAS. As already described, contact duly took place, although the arrangements subsequently broke down. On 7th August 2014, Ms Singleton of NYAS forwarded the ISW’s invoice to the father. He replied the following day raising objections to a number of items on the invoice, and proposing that the sum payable should be reduced by £355. At the hearing on 14th November 2014, the recorder directed that the issue in respect of the outstanding invoice be adjourned to and dealt with at the final hearing. In respect of the two further contact sessions then ordered, the recorder directed that the father was to be responsible for meeting the ISW’s costs “which, in relation to these 2 contact sessions only, are to be limited to the supervision of 4 hours of contact (8 hours in total), the ISW’s travel time, and 1 hour of contact report writing in respect of each session (total 2 hours)”. The recorder further directed that NYAS was to be responsible for invoicing the father in respect of these further costs by 1st December; that the father was to pay the further invoice by 5th December (i.e. in advance of the contact); that upon receipt of the cleared funds NYAS was to inform both parties at once so that contact could take place as directed; and that, if the father failed to comply with the directions as to payment, the mother was to be released from her obligation to make the children available for contact. Following these tightly-drafted directions, a further invoice was duly submitted and paid in advance, and as already described the further contact sessions took place as directed.
  • At the hearing in February 2015, the recorder heard evidence and submissions from the parties (though not from the ISW, who did not give oral evidence at the hearing) on the disputed invoice. She dealt with this issue in the following brief passage towards the end of her judgment at paragraphs 105-6:

 

“105. The father has paid some but not all of the costs. In my judgment, he should pay all of Ms Barrett’s outstanding fees. Having been invoiced, [the father] took on the role of taxing master (a judge who decides on which costs in a case have been reasonably incurred), he told me he didn’t think that Ms Barrett was ‘cooking the books’ but that in relation to some items she had for example claimed an excessive amount of travel time, or for time spent writing her report. The invoice was rendered in August 2014 in the sum of £812.80, [the father] has paid £197.80. The balance to be paid within 28 days.

106. I have been told that Ms Barrett made no charge for all the work she undertook in trying to set up the contact on the 28th July 2014. I don’t mention that because it affects my decision in the slightest, but I think this reflects on the sort of person Ms Barrett is and why it is especially sad that she has withdrawn from being the supervisor.”

 

  • In his skeleton argument for this hearing, Mr. Rowbotham submitted that the recorder’s order that the father should pay the ISW’s costs was wrong and outwith her jurisdiction. Unless the ISW fell within the category of expert (which he submitted she did not), the obligation to pay her was purely contractual and therefore only enforceable in the county court. He submitted that the powers conferred by statute on the family court do not include the power to make orders for payment for services by a party to a non-party. In the alternative, he submitted that, even if the family court had such powers, the recorder was wrong to dismiss the father’s objections summarily. The concerns raised by the father were legitimate, and in declining to deal with them, the recorder failed to act in a way that was just or proportionate.
  • In reply, Mr. Wilkinson for the mother submitted that the order was no more than enforcement of previous orders; that the court’s powers under s.11(7) of the Children Act 1989 to attach conditions to a s.8 order are broad enough to encompass a requirement to pay the costs of contact supervision, and that, as the order was made at a hearing at which the father was present and where he did not object to such payment, he could not now be heard to say that he should not pay a sum which has been assessed as reasonable by the court. On behalf of the guardian, Mr. Fitzpatrick acknowledged that the recorder did not address the issue of jurisdiction to make the order, but submitted that a prospective appellant should first seek elaboration from the judge as to the jurisdictional basis for the decision. He further submitted that, in all the circumstances, including the fact that she was required by the order of 10th January 2014 to write a report as to each contact session, that the ISW was acting as an expert so that her remuneration fell within the court’s jurisdiction under Part 25 of the Family Procedure Rules. He further suggested that the court might think it a “grossly inequitable outcome” if the ISW were out of pocket as a result of the father’s non-payment or if NYAS, as a registered charity, felt obliged to reimburse the ISW from its income.
  • I have much sympathy with the recorder having to deal with this comparatively minor issue at the conclusion of another difficult hearing in these long-running proceedings which she has handled adroitly and sensitively. On this occasion, however, I consider that she fell into error. It seems that she was not addressed on the question of jurisdiction and it is not clear from her judgment exactly what jurisdiction she thought she was exercising. Her disapproving reference to the father taking on the role of a taxing master suggests that she proceeded on the basis that he was obliged to pay the invoice without demur. Given the father’s conduct throughout the proceedings, her approach was perhaps understandable but in my view mistaken. As the basis on which the ISW was to be remunerated was not precisely specified by the terms of her instruction, the father was entitled to challenge her invoice if he considered it excessive and, unless the dispute can be resolved by some other means, he is entitled to have his challenge judicially determined by a court with jurisdiction rather than summarily dismissed.
  • I reject the submission that the ISW was acting as a court-appointed expert. Although an ISW is capable of acting in that capacity, Ms Barrett was not doing so in this case. Accordingly, any power the family court may have under Part 25 to determine issues as to the payment of experts is irrelevant. S.11(7) of the Children Act provides inter alia that a section 8 order may contain directions about how it is to be carried into effect, impose conditions which must be complied with by any person in whose favour the order is made, or who is a parent of the child concerned, and make such incidental, supplemental or consequential provisions as the court thinks fit. The broad terms of this subsection enable a court to lay down precise and comprehensive terms concerning the payment of costs of supervising contact. That is indeed what the recorder did in her subsequent order of 14th November in which she not only fixed the number of hours for which the ISW could charge but also provided for payment in advance to avoid any further issue arising after the event. The earlier order of 10th January, however, whilst containing a number of details, did not specify precisely the hours to be taken on each item, and therefore left open the possibility of a dispute if the party responsible for paying the costs objected to the number of hours taken by the ISW. Although s.11(7) enables the court, when making an order for contact, to specify conditions as to payment of the costs of supervision, it does not in my judgment invest the court with jurisdiction to resolve a subsequent dispute about those costs, at least when the dispute is with a non-party.
  • I accept Mr. Rowbotham’s submission that the obligation to pay the ISW was contractual, but although this court was shown the letter of instruction, the information contained therein was insufficient to identify with confidence the terms of, or parties to, the contract. I also accept Mr. Rowbotham’s submission that the family court’s jurisdiction, as defined in s.31A of the Matrimonial and Family Proceedings Act 1984, and schedules 10 and 11 of the Crime and Courts Act 2013, is confined to family proceedings and does not include jurisdiction to resolve any contractual dispute involving a third party. If the contract was between the ISW and the father, such a dispute must be determined under the small claims procedure in the county court, unless resolved by agreement or alternative dispute resolution. In such circumstances, the family court would have no role to play. If, however, the contract was between the ISW and NYAS, then NYAS would be entitled to seek reimbursement from the father within the family court proceedings of sums paid in respect of the invoice by seeking to enforce the terms of the order of 10th January, at which point it would be open to the father to ask the court to reduce the sum payable by him to NYAS on the grounds that it was unreasonably high.
  • Accordingly, on this issue, I would grant permission to appeal and allow the appeal. Pursuant to CPR 52.10(2)(b), I would refer the matter back to the recorder for determination of the following issues: (1) the identity of the parties to, and terms of, the contract for the services of the ISW as contact supervisor pursuant to the order of 10th January 2014; (2) if the contract was between the ISW and NYAS, what order, if any, should be made by way of enforcement of the order, having regard to the father’s challenges to the invoice; (3) alternatively, whether the application for enforcement of the order should be stayed pending resolution of any contractual dispute. Given the small sum involved, it would be preferable, if possible, for any contractual claim and any application for enforcement of the order in the family court to be resolved by the same judge. On any view, however, it plainly makes sense for the parties and the ISW to attempt to resolve this issue by some means that avoids any further legal costs.

 

Whilst a Court order could stipulate payment to an ISW for supervision of contact under s11(7), if it is going to do so, it is going to need to stipulate in detail the exact sums to be paid and for what. If there ends up being a dispute about payment, the family Court don’t have jurisdiction to resolve that dispute. [Though it could be reserved to the same Judge, sitting with a different hat on, with a different application to resolve]

That could still end up being costly and protracted, so, if you are doing ISW contact supervision work, get paid up front.

 

Can you compel a child to give evidence?

 

The Court of Appeal in Re S (children) 2016 consider this point of law, and whilst they say that they are explicitly not ruling on it, they do give the answer

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/83.html

During the appeal hearing, the question arose as to whether the judge could have compelled K to give evidence if she remained unwilling to do so. I am grateful to counsel for efficiently providing an agreed note of the legal position immediately following the hearing. As that note recognised, the question of whether a court can/should use its powers to issue a witness summons in relation to a reluctant child in family proceedings has not been considered by the Court of Appeal or the Supreme Court since the Supreme Court’s decision in Re W (supra). The present case was not one in which we needed to hear oral argument on the subject and I would not wish to be thought to be expressing any view about it. However, it may be helpful to record that counsel agreed that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31G of the Matrimonial and Family Proceedings Act 1984 if appropriate. Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000.

 

So

  1. If the child is competent  (rule of thumb here is going to be functioning at about the level of an average 13 year old, but there may be other factors which make an older child not competent or a younger one competent), then they are a compellable witness.
  2. A compellable witness can be made to attend Court to give evidence under a witness summons
  3. The protection against self-incrimination in s98 Children Act 1989  doesn’t apply to a child – so they would have to be warned about the risk of possible criminal proceedings arising from their evidence.
  4. However, the punishment for a person not obeying a witness summons (i.e what you do if they don’t turn up) are imprisonment or a fine.
  5. You can’t imprison a witness under 18 for not obeying a witness summons.
  6. That leaves you with a fine.  Unless the child witness is Richie Rich or Mustafa Millions, that doesn’t really help.
  7. So you CAN compel them, but you can’t actually do anything if they call your bluff.

 

That’s the legal interest in the case. Other than that, it is always worthy of note when the Court of Appeal split. The main issue here was that a 15 year old K, made allegations of sexual abuse and reported them to the police. There was then something of a backtracking when the police wanted to press charges. K did not want to press charges, she had wanted the abuse to stop. She said to the police that she was not retracting the allegations, but didn’t want charges to be pressed.  However, one police note of a conversation with K recorded that K said she had made the allegations up.  K then wrote two letters saying that she had made the allegations up and that things had got out of hand.

Those representing the alleged perpetrator in the family Court proceedings about K and her siblings understandably wanted K to be produced as a witness. A judicial decision was taken not to compel her attendance, and the Judge went on to make findings (including one which was supported by a medical but was explicitly not an allegation that K had ever made herself).  The findings and the case management decision were appealed.

All three of the Court of Appeal Judges said that the finding which was suggested by medical examination but had never been a claim that K had made had to be overturned. Two of the Judges held that the other findings were safe and should not be overturned. The third took the opposite view.

 

I will set out the minority view, which was not the decision of the Court of Appeal, because I think it contains some powerful arguments (even though they were not successful). For my part, I think it is very difficult to make findings of such a serious nature as sexual abuse when there are changes of position by the complainant, and letters of retraction, without hearing some direct evidence from the complainant. I think that the Judge worked very hard to make it as fair and balanced a judgment as possible, but I would have been with Lady Justice Gloster on this, I just don’t think that the findings can be considered safe in this context. The burden of proof is on the LA to prove that the abuse happened, not on the accused person to prove their innocence.  [Sometimes you do end up with cases where there are very strong suspicions but also doubts, and what tips the balance either way is the credibility of the complainant. If the accused person cannot properly test the complainant’s evidence, the right to fair trial is questionable, for me.]

 

Lady Justice Gloster:

 

  • It is with considerable diffidence that I disagree with views expressed by such experienced family judges as Lady Justice Black and HHJ Moir. This court is rightly very cautious about interfering with case management decisions and second-guessing findings of fact made at first instance by careful family judges. However this case has left me with a deep sense of unease, both in relation to the initial decision of HHJ Moir dated 16 September 2014 that K was not to give oral evidence in the finding of fact hearing and the judge’s subsequent fact-finding judgment dated 15 October 2014 (the order in relation to which is inappropriately described as a “case management order”) in which she held that the Appellant had indeed sexually abused his sister, K. That concern is aggravated by the fact that, as my Lady, Lady Justice Black, has held (and as I agree) there was no basis for HHJ Moir’s finding that the Appellant had anally abused K.
  • The critical features of this case may, in my judgment, be summarised as follows:

 

i) The single issue was whether the Appellant had abused K.ii) The case against the Appellant depended entirely on the veracity of K’s allegations.

iii) The burden of proof at all times was on the Local Authority to establish on the balance of probabilities that the abuse had occurred.

iv) There was no medical evidence of vaginal penetration, despite K’s repeated allegations that she had had full penetrative sex and that she was “no longer a virgin”. In this context the judge appears to have relied on what I regard as the somewhat ambivalent evidence of Dr Jones that “penetration through the hymen can occur without leaving any physical signs”; see paragraph 30 of the judgment.

v) The ABE video interviews of K, upon which the judge heavily relied in reaching her conclusions, had taken place in March and April 2013, at a time well before K had started to attempt to halt the criminal process (July 2013) or had begun, albeit somewhat equivocally, to retract her allegations in their entirety on the grounds that she had made them up (16 September 2013); see paragraphs 9 –13 above for the chronology. So those interviews contained no evidence about the reasons for her retractions.

vi) K frequently changed her mind as to whether she was prepared to give evidence. She informed her guardian that her allegations were untrue and that she wished to give evidence. Subsequently it appears that she changed her view and that she did not want to give evidence. Her guardian assessed her as a “mature young person who had the capacity and competence to give instructions.” The social worker who assessed described her as a “determined and strong willed individual who speaks her mind”, and also observed K as being “quite fragile in her presentation and lacking in self-esteem.”

vii) In deciding whether K should give evidence, the judge relied upon the opinion of K’s guardian and the social worker to the effect that:

“I do not feel that [K] is able to recognise any links to her self-reported frustration and anger with the coping strategies she may have adopted to deal with how she was feeling with her experiences of the current situation. I feel that she seeks to display a certain persona in order to ease her emotions while having built up a barrier up to others to cover how she is feeling.

….

I would not be in support of [K] giving direct evidence at the fact-finding hearing due to the concerns outlined above. I do not feel that she is emotionally able to deal with the impact that this could have on her. I feel [K] would struggle to manage in-depth questioning on the basis that giving direct evidence is to have her say and [inaudible]”.

viii) On any basis, the evidence of K’s guardian and the social worker as to K’s wish or ability to give evidence at trial was highly unsatisfactory and vague opinion evidence. It could not replace an assessment of K’s evidence by the judge.

ix) As a result of the judge’s ruling that K would not be required to give evidence, or otherwise be subjected to any questioning as to why she had changed her mind, because of her so-called “vulnerability, a fragile presentation and her lack of self-esteem”, the reality was that the Appellant was deprived of any effective opportunity to challenge the veracity of K’s case.

x) The case was one of huge importance for the future life of the Appellant and his relationship with his two infant sons and his partner, their mother. It clearly raised serious issues, so far as he was concerned, in relation to his rights under Article 6 of the European Convention of Human Rights (“the ECHR”) to a fair trial, and, so far as he, and his children were concerned, in relation to his rights under Article 8 to a family life.

 

  • In my judgment HHJ Moir’s case management decision dated 15 October 2014, in which she decided that K should not be called as a witness, failed in any adequate way to weigh up the two relevant considerations set out in Re W (Children) [2010] UKSC 12 namely: the advantages that a child giving evidence will bring to the determination of the truth; and the damage which it might do to the welfare of the child witness. In my judgment, there was no adequate medical, or indeed other, evidence, apart from the vague and dubious views of K’s guardian and the social worker, to support the conclusion that it would be so harmful for K to give evidence that she should not be asked to do so. Nor was there any adequate analysis by the judge as to why those concerns trumped the entitlement of the Appellant to question why she had retracted, or, at the least, to some extent resiled from, her previous allegations.
  • As to the first consideration, K was at the time of the fact-finding hearing 13 years and 10 months old and had no cognitive impairment. There was no reason on age and maturity grounds why she should not have been called as a witness. She had displayed as a person who was at least to some extent prepared to exert pressure on the authorities to force the outcome of the criminal proceedings. She clearly had differing attitudes at different times as to whether she wanted, or was prepared, to give evidence. She was a mature young person who had been described as a “determined and strong willed individual who speaks her mind”; see above. Her allegations were extremely serious. There was, in my judgment, no adequate consideration by the judge as to whether K should be required – and indeed whether it would be in K’s interests for her to be required – to give evidence, which either stood by her previous allegations, or which explained the circumstances in which she had resiled from them. Whilst, whether her allegations were true or false, it might well have been distressing or demanding for her to have given evidence, there was no psychiatric or psychological evidence to support the idea that it would have been mentally damaging for her to have given evidence. There was no consideration by the judge as to the advantages to K personally of facing up to the consequences of the allegations which she had made, whether they were true or false, or as to the disadvantages to her of being allowed to avoid responsibility for the consequences of her allegations by not being required to attend trial.
  • Moreover, it was extremely unclear whether K was an unwilling witness or not. She changed her mind frequently about wishing to give evidence in the months leading up to the judge’s ruling and had not been asked in the weeks prior to the ruling whether she would, in fact be prepared to give evidence (whether with or without special measures). Indeed it is significant that the final order dated 8 December 2014 recites the fact that K “would like to meet with the judge”, although the judge ruled that this could not take place until the proceedings were over.
  • In my view the judge was also wrong not to explore other ways in which K could have given evidence, apart from being subjected to cross-examination in open court in front of the Appellant and others. The fact that counsel for the Appellant did not raise the possibility of the judge questioning K in the presence of counsel, but in the absence of the parties, by reference to questions agreed in advance, does not seem to me to be a reason why the judge should not have given consideration to such an option or other alternative options. This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K’s evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing.
  • As to the second consideration, in my judgment there was no adequate consideration by the judge of the impact on the Appellant’s case of the inability of his counsel to cross-examine K as to the allegations and her retraction of, or unwillingness to proceed with, them. The consequences for the Appellant, and his infant children, leaving aside his relationship with his partner, were monumentally serious if K’s allegations against him were accepted. On any basis, in my judgment, he could not have had a fair trial in circumstances where the judge was able, in effect, to rely so heavily, if not exclusively, on the ABE interviews conducted before K sought to retract, or sought not to proceed with, her allegations.
  • For the above reasons, I would have allowed the appeal against the judge’s case management decision dated 16 September 2014. In my judgment the judge failed to appreciate that the critical issue was whether or not the Appellant could have had a fair trial without the ability of challenging K’s evidence in any realistic way. In my judgment the judge failed properly to apply the guidelines set down in Re W, which reflect the paramount consideration that a party should have a fair trial.
  • I should say that, so far as the evidence of the K’s two friends are concerned, such evidence was clearly hearsay and should have been afforded very little evidential weight, since, in all the circumstances, it could have provided very little corroborative support for K’s own evidence.
  • Likewise, for the above reasons, it seems to me that the judge’s conclusions in her fact-finding judgment dated 15 October 2014 are clearly open to serious doubt. I do not see how, in the absence of up-to-date evidence directly from K herself, as to the retraction and/or reluctance to proceed with her allegations, the judge was able to conclude that she could rely so heavily on the ABE interviews, or come to the conclusion, as set out in paragraphs 38-39 of the judgment, that K’s allegations were true and that her retraction had arisen partly because of pressure from her family, but largely because of her own feeling of responsibility for breaking up her family and her own strong desire to see her nephews. The inferences which the judge drew from the documentary evidence in my judgment cannot be supported in the absence of up-to-date direct evidence from K herself.
  • I also regard the judge’s analysis of the evidence of the Appellant as inadequate. There is no, or no adequate, explanation by the judge as to why she felt able to reject his evidence that the alleged abuse never took place.
  • In my judgment the judge failed to give proper consideration to the fact that the burden of proof lay on the Local Authority. She had no basis for concluding on the balance of probabilities that K’s serious allegations against the Appellant had been proved. In the absence of any opportunity afforded to the Appellant to challenge K’s evidence that was not a conclusion which I consider she was entitled to reach. In my judgment, the Appellant did not have a fair trial in accordance with his rights under Article 6 of the ECHR and, as a result, his Article 8 rights and those of his infant sons, have been seriously infringed.
  • I would allow the appeal and set aside the findings of HHJ Moir. I would rule that no findings adverse to the Appellant in relation to the allegations of sexual abuse could properly be made on the evidence available to the judge. But since Black and Vos LJJ consider that the appeal should be dismissed, that will be the order of this court.

 

The new Special Guardianship Regulations

As trailed at the start of the year.

The Special Guardianship ( Amendment ) Regulations 2016

http://www.legislation.gov.uk/uksi/2016/111/contents/made

 

These have been introduced by the Government, in response to their consultation about Special Guardianship Orders and the feeling arising from that consultation that some additional factors needed to be included within Special Guardianship reports.  The new additions come into effect for any report that was commissioned (either by request by prospective Special Guardians or ordered by a Court) AFTER 29th February 2016.

That does raise the possibility that someone who asks for an SGO assessment on 28th Feb ends up with a slightly different one to a person who asks for it the next day.

The original Special Guardianship Order Regulations 2005 set out all of the matters that need to be included in a Special Guardianship report, and they add up to sixty eight items in all.

 

The new Regs add

In the section about the child

 

any harm which the child has suffered;

any risk of future harm to the child posed by the child’s parents, relatives or any other person the local authority consider relevant;

And adds to the part about assessing the child’s needs – current or in the likely future

In the section about the prospective Special Guardians

 

an assessment of the nature of the prospective special guardian’s current and past relationship with the child

[Meaning that the report will look at what the special guardian means to the child and vice versa, over and above the pure genetic relationship – one would assume that a prospective special guardian who had spent time babysitting or caring for the child or having regular visits would thus compare favourably to one who was genetically related to the child but had never met them. ]

And on the assessment of parenting capacity of the Special Guardian

an assessment of the prospective special guardian’s parenting capacity, including:

(i)their understanding of, and ability to meet the child’s current and likely future needs, particularly, any needs the child may have arising from harm that the child has suffered;

(ii)their understanding of, and ability to protect the child from any current or future risk of harm posed by the child’s parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;

(iii)their ability and suitability to bring up the child until the child reaches the age of eighteen;

 

[This is incorporating a concept of reparative parenting into the assessment.  As I’ve said before, one person’s reparative parenting is another person’s social engineering, so we probably won’t know how this is going to work until the Court of Appeal tell us]

The changes are pretty sensible to me. They are additional factors to an existing pool of sixty eight factors. As Special Guardianship is intended to be a permanent solution for children, it must be right that the likelihod of the placement enduring permanently is considered.

The Regulations say nothing about how much weight any of these new factors have to be given within the assessment, just that they are mandatory factors to be identified and considered.

The real crux is in drawing together the factors and making a conclusion. I’m sure that some will argue that there can be no hard and fast rules about what is to be given what weight, and some will argue that as Parliament (or rather Government, as this is by way of Regulation not Act) has spoken and felt it necessary to include these additional factors that they should be assumed to carry some weight and force within assessments, for good or ill.

 

As these are Regulations, they do not impose on the Court a duty to particularly take these matters into account, although they will be delineated specifically within a report now rather than inferred or pieced together through other matters. It would be a somewhat churlish Court that ignored them completely. As I’ve said, it is the weight to be given, and particularly how far the reparative care element is taken that is likely to be the subject of litigation and debate.

 

[We are, I think, a month after the Minister ‘unveiled’ the major changes to adoption law, without seeing a glimpse of what lies under the veil. Maybe tomorrow.]

Abuse of power

 

I came across this Court of Appeal case this evening.

 

Director of Legal Aid Casework v the Queen on the application of Sunita Sisangia 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/24.html

It all hinges on whether wrongful arrest is an ‘abuse of power’ and thus covered by the provisions of LASPO as something you can get legal aid to sue for. It is all a bit dry and technical, but where it ends up is the Court of Appeal having a legal geek out about words and phrases that can’t really be tied down to a definition, but you know them when you see them.

I had not realised that things as simple as ‘building’, ‘income’ ‘trade’ ‘invention’ and ‘gaming’ come into that category. And so, we learn today, does ‘abuse of power’

 

[The fact that our tax law can’t define income might explain why Google and Facebook have such meagre taxbills… thank you, I’m here all week. Try the chicken.]

 

  • In my judgment the fact that a definition of “abuse of position or power” of universal application cannot be extracted from the authorities does not mean that the term defined can be ignored. It is equally possible, indeed probable, that Parliament’s intention was that it should be left to the courts to develop what the phrase means. In other areas of the law this is clearly so. For example in the field of taxation Parliament has never attempted to define “income” or “trade”. In the intellectual property world neither Parliament nor the drafters of the European Patent Convention have ever tried to define the word “invention”. As Pumfrey J said in Shoppalotto.com Ltd v Comptroller General of Patents, Designs and Trade Marks [2005] EWHC 2416 (Pat) 396, [2006] RPC 293 at [6]:

 

“A moment’s thought will show that it is not possible to provide an exhaustive definition of “invention”. The Convention does not attempt to interpret the word but provides a list of things which are excluded, whether or not they would be regarded as inventions.”

 

  • Likewise in the case of a “building”. As Byles J said in Stevens v Gourley (1859) 7 CBNS 99:

 

“The imperfection of human language renders it not only difficult, but absolutely impossible, to define the word “building” with any approach to accuracy. One may say of this or that structure, this or that is not a building; but no general definition can be given; and our lexicographers do not attempt it.”

 

  • The natural meaning of the term defined may be its meaning in ordinary discourse, or it may be its meaning as a legal concept. This is illustrated by McCollom v Wrightson [1968] AC 522 where the meaning of “gaming” as a defined term in section 55 of the Betting, Gaming and Lotteries Act 1963 was coloured by the meaning given to the word “gaming” by the common law.
  • The fact that “abuse of position or power” cannot be given a hard-edged definition does not mean that the concept itself is meaningless. A number of judges have, in different contexts, explained what they perceived to be the ingredients of an abuse of power. In R (Puhlhofer) v Hillingdon LBC [1986] AC 484, 518 Lord Brightman (with whom the other Law Lords agreed) said obiter:

 

“The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity.”

 

Given that it is the twentieth anniversary of the film “Trainspotting”, it tickled me that one of the lead authorities on abuse of power happens to be called Begbie

 

 

 

“[76] Abuse of power has become, or is fact becoming the root concept which governs and conditions our general principles of public law. It may be said to be the rationale of the doctrines enshrined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, of illegality as a ground of challenge, or the requirement of proportionality, and of the court’s insistence on procedural fairness. It informs all three categories of legitimate expectation cases as they have been expounded by this court in R v North and East Devon Health Authority, ex parte Coughlan [2002] 2 WLR 622.

[77] The difficulty, and at once therefore the challenge, in translating this root concept or first principle into hard clear law is to be found in this question, to which the court addressed itself in the Coughlan case: where a breach of a legitimate expectation is established, how may the breach be justified to this court? In the first three categories given in Ex parte Coughlan, the test is limited to the Wednesbury principle. But in the third (where there is a legitimate expectation of a substantive benefit) the court must decide ‘whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.'”

You wee radge...

You wee radge…

 

The Court of Appeal conclude that you can’t tie down abuse of power to a definition.

 

As I have said it is a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is.

 

I might offer this, as an example of abuse of power that is pretty unmistakeable…

 

http://www.communitycare.co.uk/2016/02/03/recommend-youll-never-see-children-social-worker-struck-abuse-power/

 

A social worker who threatened foster carers with the loss of children in their care if they did not describe him as ‘supportive’ has been struck off the register.

A Health and Care Professions Council (HCPC) panel heard the Peterborough social worker believed the foster carers, who cared for the younger two of three siblings, had made a complaint about him.

He also told the birth mother of all three children, cared for by two sets of foster carers, to contact his manager and make a complaint about the foster carers looking after her first child.

Threats

He told her to tell his manager he was a “brilliant social worker”, adding that if she reported him to the police, she would “never see her children again”.

He called the mother on her mobile phone two or three times a week without any professional reason to do so, called her overweight and told her if she lost weight she would “stop having epileptic fits”, the HCPC panel reported

 

Yes, that’s what abuse of power looks like.

 

begbie 2

One last chance

RE C (A child: Refusal to make Interim Care Order) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/6.html

The High Court had to consider an application for an Interim Care Order. At the time Holman J was considering it, the child was in foster care, having been removed by the police under Police Protection.

The mother had long-standing drug addiction problems and was accepting that she wasn’t able to care for her child. She was trying to get herself into a clinic for rehab. Her brother, who had similar problems, had entered into the family home, in breach of a restraining order, and attempted to strangle the mother whilst she was holding her son (who was 4 years old)

The issues before the Court were whether the child should go into foster care, or whether the child should be with grandmother – with mother and the maternal uncle staying away from the home. Doubts were raised about whether she could be trusted.

 

  1. The essential question today is whether or not the grandmother can be relied upon to keep her own daughter, the mother, completely away from the home, and completely out of any contact of any kind with C, apart from supervised contact arranged by the local authority. The local authority and the guardian (who has not yet had an opportunity actually to meet anyone in this case, apart from observing part of the hearing today) both say that the grandmother cannot be trusted. They rely in particular on the episode last Thursday when they say that the brother was seen upstairs in the house and the grandmother denied that he was there, although they say she must have known that he was there. There are a number of other respects in which she is said to have been devious with the local authority, or at the very least not upfront with them. Further, it is said that she was either naïve, or is now being dishonest, when she says she did not appreciate the full extent of her daughter’s drug taking.
  2. I have to form a judgment about that. I did hear from the grandmother at some length this afternoon. I myself am not persuaded that she cannot be trusted. I will require her formally to give to me from the witness box the undertakings that have been drafted and discussed. I wish to make absolutely clear to her and to the mother, and for all to hear and understand, that if there is the slightest breach, the slightest breach, of any of these terms and conditions, C is likely to be removed at once and made the subject of a further interim care order, and that will almost certainly be the last time that he lives within his family. Therefore, the grandmother needs to understand that this is now very serious indeed and she is absolutely on her mettle and on trust.
  3. There is a further point that was made by Mrs Brown on behalf of the local authority, which I fully understand and which indeed has concerned me. That is the risk of C becoming what might be called a “yoyo” child. The fact is that he was removed under a police protection order last Thursday. He has now been fostered for about five days. Under my proposed order, he will in any event remain fostered for another week in order to give to the mother a sufficient opportunity to make and implement arrangements as to where she goes. Therefore, already he has been removed from home. If he were now to return home, the point made by the local authority is that there is a high risk that he will have to be removed again. I do appreciate that; but it does not seem to me that, if it is otherwise right that in the interim he should be entrusted to his grandmother, that should be prevented simply because of the delays in this interim decision being made due to court availability.
  4. I completely understand the concerns of the local authority and of the guardian. I wish to stress that I am not in any way starry-eyed. I appreciate that there is a definite risk here that these arrangements will break down and that C will have to be removed again. But I do not feel that the requirements of the authorities that the stage has been reached when he must be removed, and kept removed, from his established home have yet been met. For those reasons, I shall make an order in the terms already discussed.

The Judge made a careful assessment of the grandmother, and decided that she should have the opportunity to care for the child. He then did something unusual (but both clever and kind) and put both mother and grandmother in the witness box and asked them a series of questions.

Well worth a read

The mother – SwornBy THE COURTQ. So, you are [name], the mother of [name].

A. I am.

Q. All right. Do you undertake to me, that is, promise me, the court – this is not the local authority now, it is promising the court – first, that not later than noon next Tuesday, 2nd February, you will totally vacate the premises at [address stated].

A. Yes, I will.

Q. Secondly, that once you have vacated, you will not until further order of the court return to [address stated] or enter at all the road which is known as [road name stated].

A. I will.

Q. You promise me that?

A. I promise I will.

Q. Third, do you promise me that until further order of this court you will not in any way contact, communicate with or come into the presence of [the child, named], save for the purpose of supervised contact under arrangements made by the Birmingham City Council?

A. I promise.

Q. Now, do you understand that if you break those promises, in the first place, you will be in contempt of court and could be punished, but secondly and more importantly, you really will have absolutely lost for all time any prospect of [the child] either living within his family or living with you? Do you realise that?

A. Yes, I do.

Q. This is,—

A. Serious.

Q. —to put it bluntly, your last chance. Do you understand that?

A. Yes, I do.

Q. So, if you break this and you are caught, the consequences will be very grave. Do you understand that?

A. Yes, I do.

Q. You give me those promises?

A. I promise.

Q. All right, thank you very much. Will you come up, [the grandmother] please.

MR PEARCE: My lord, I hesitate to rise, but the prescription needs to be collected and the chemist, I am told, will be closing at 7:00 and I am mindful of the traffic.

THE JUDGE: Yes, well, we will be gone within a few minutes.

MR PEARCE: I am grateful.

The grandmother – SwornBy THE COURTQ. Are you [name]

A. Yes.

Q. Of [address stated]?

A. Yes.

Q. Do you undertake to me, that is, promise me, the court – this is not the local authority, it is the court – first, that after noon next Tuesday, 2nd February, you will not until further order of the court in any circumstances permit [the mother, named] or [the brother, named] to enter the premises at [address stated] or its garden?

A. Yes.

Q. All right. They are just not allowed into the road at all, let alone into your house. [The mother] has got a week to make arrangements. Second, you will not until further order in any circumstances permit [the child, named] to have any contact or communication with or come into the presence of [the mother, named] or [the brother, named]. Third, you will, once he is returned to your care, care totally for [the child] and ensure that he is kept clean, well fed and appropriately clothed.

A. Yes.

Q. Fourth, you will not permit him to sleep or reside at any other address than [address stated], except with the prior written agreement of the [local authority, named].

A. Yes.

Q. If a situation arises where he wants to go and stay with a friend or something like that, I am not ruling it out, but they have got to agree in writing first, all right. Five, unless he is ill, you will punctually deliver [the child] to and collect him from the nursery – you know where the nursery is, it will be written in—

A. Yes.

Q. —at all sessions which he is due to attend, all right—

A. Yes.

Q. —day in, day out, whenever he is supposed to go. This is a very important safeguard because it means he will be seen all or most weekdays by the nursery, of course—

A. Yes.

Q. —and they will be asked by the [local authority, named] to keep a very close eye on him, of course, so he has got to go, all right.

A. Yes, yes.

Q. Six, you will permit social workers of the [local authority, named] to enter the premises at [address stated] at any time, whether announced or unannounced, and inspect any part of the premises. I anticipate they will make unannounced visits.

A. Yes.

Q. As far as I am concerned, if they have got the manpower or the womanpower, they can do it late at night, very early in the morning, weekends, whenever they like in order to check, all right, and you have got to let them in. Seven, you will not leave [the child] unattended in the house with your husband. That is not intended to be unkind to him, but because he is not entirely well. Eight, you will not permit any person to sleep at the premises at [address stated], except yourself, your husband and [the child] without the prior written agreement of the [local authority, named].

A. Yes.

Q. If you want to have a little friend of his round or something like that, or a relative of yours wants to come and stay, you can ask [the local authority] and I hope they will agree, but you are not to otherwise allow anyone to sleep there. Nine, you will not without the prior written agreement of the [local authority] permit any person to enter the premises at [address stated] who is not either a relative or an established personal friend of yourself or your husband or a person who needs to enter in the course of his profession or trade. So, you can permit your own relatives or an established personal friend of yourself and your husband or a professional person, such as a doctor, or a person who needs to enter in the course of his business or duties, such as a tradesman or meter reader or if you need to get a plumber or anything like that. Do you give me all those promises?

A. Yes.

Q. I want you to understand that I have made a judgment about you. I am reposing trust in you. I think in fact you are lucky, because I think a lot of other judges would not have done, but I have been doing this for a long time and I am broad shouldered and I am prepared to take responsibility for this decision, which they think is too risky, but I am prepared to take responsibility for it. They will be watching you like a hawk. This will be reviewed in four to six weeks anyway to see how things are going, not by me because I will not be here. If in the meantime they discover that there has been any breach of any of that, they will be round here like a shot, that is obvious, and I am afraid you will not be given another chance. So, this is the last chance for you as well as for [the mother]. Do you understand that?

A. Yes.

Q. Well, do not let me down. Thank you very much. You can go back

 

The Costa dignity…. Financial abuse case

These cases always stir up my blood, and I ranted at my colleague sitting next to me about this one.

 

Re AH 2016

http://www.bailii.org/ew/cases/EWCOP/2016/9.html

 

In this one, a 95 year old woman, living in a care home and lacking capacity, had appointed her niece’s husband  Colin (is that a nephew-in-law?) to manage her affairs under a Lasting Power of Attorney in 2011.

[One might doubt, from the facts given that she had capacity to enter into that LPA in 2011, when she’d have been 90 years old. Not terribly reassured that The person who certified that Alma had capacity to create the LPA owns a hotel in the New Forest. He said that “Alma has been a personal friend of mine over the past 25 years and has always popped in to see me on her visits to the New Forest.”  ]

Since running her affairs for her, Colin has run up a debt of £100,000 on her nursing fees. He has withdrawn nearly £30,000 from her account. He has purchased a house and put it into her name  (hardly for her benefit, since she’s never going to live in it)

During that time, he has given her the princely sum of £260 of personal allowance. That equates to less than £10 per month – or about £2 per week. Generously, he has sent her about 1% of the money that he took out of her account.

(e) Mixing of funds. Alma and Colin have a joint bank account with Virgin Money. The table within the bundle highlights fifteen ‘concerning’ outgoings which remain unexplained and which were clearly not purchase made on Alma’s behalf including debits to the Odeon cinema, the Wilton Arms Hotel, Toby Carvery and Costa Coffee. Upon his appointment as Alma’s attorney, by continuing to have a ‘mixed account’, Colin breached his duty to keep Alma’s money separate from his contrary to paragraph 7.68 of the Code and has behaved in a way that is not in Alma’s best interests in breach of section 4 of the Act. Attorneys must, in most circumstances, keep finances separate to avoid the possibility of mistakes or confusion and this is not a situation of a husband acting as his wife’s attorney (for example) which might render the presumption to be rebutted.”

 

It doesn’t seem likely that this 95 year old woman, living in a nursing home in Oldham was out visiting the Odeon cinema and drinking coffee in Costa in the New Forest…

 

  1. Decision
  2. The Court of Protection General Visitor, who saw Alma on 19 January 2015, observed that she “has no verbal communication and her dementia is so advanced that she is unable to demonstrate any understanding of her needs or her environment.”
  3. I have no reason to doubt what the Visitor says and, on the balance of probabilities, I am satisfied that Alma lacks capacity to revoke the LPA.
  4. Colin’s management of her property and financial affairs has been a litany of failings.
  5. He failed to pay the nursing home fees and thereby put her placement in jeopardy.
  6. The nursing home had difficulty contacting him. He failed to reply to their letters and failed to return their calls.
  7. He failed to provide Alma with an adequate personal allowance. The stingy sum he did deign to pay her (£290 over 2½ years) amounted to less than £10 a month.
  8. Her clothes are old and worn and mostly hand-me-downs from former residents who have died or moved elsewhere.
  9. The Court of Protection Visitor concluded her report by saying that: “Alma would benefit from a full wardrobe of new clothing. In addition, she is reported to have loved to dance when she was mobile. The nursing home has provided a CD player but Alma would benefit from having her own music player and a range of CDs.”
  10. Colin failed to provide her with even these modest luxuries that could have enhanced her quality of life.
  11. He failed to account to the OPG. In fact, he failed to keep any accounts at all.
  12. He failed to produce bank statements.
  13. He failed to explain how he had managed to spend £29,489 of her money.
  14. He failed to act with honesty and integrity.
  15. He failed to keep Alma’s money separate from his own.
  16. And he failed to treat her with any semblance of dignity, empathy or respect.
  17. Having regard to all the circumstances, therefore, I satisfied that Colin has behaved in a way that contravenes his authority and is not in Alma’s best interests, and I shall revoke the LPA without further ado.

 

In the event that the police ever start prosecuting people like this for fraud or obtaining money by deception, I am more than willing to serve on a jury. Failing that, I hope the Devil has a Costa Coffee franchise in Hell, and that the Odeon there shows nothing other than “Failure to Launch” on rolling repeat.

Striking ineptitude from an organisation.

 

This is a HFEA case, along the same lines as the one decided by the President discussed here:-

 

IVF and declarations of paternity – major cock-ups in IVF clinics

 

I.e that because a clinic involved in artificial insemination (IVF) failed to use proper consent forms and keep proper records, the parents ended up in Court to resolve who had parental responsibility.  You may recall from that case, that the Human Fertilisation and Embryology Authority had carried out an audit and found that about HALF of the clinics who do this work were using the wrong forms and losing records.  There was always going to be more litigation about this cock-up.

This individual case, however, did not (as the President’s 8 cases did) involve parents who were all on the same page about their intentions and who should have parental responsibility but parents who were already litigating issues about the children. So this was an added complication to already difficult proceedings.

 

In this particular case, Pauffley J was rightly very critical of the clinic involved, Herts and Essex Fertility Centre.

 

  • In the course of my separate Children Act judgment delivered on 30 November, I said I would be able to find unequivocally that F is entitled to the declaration he seeks. He is the father of C. This judgment explains my reasons for that preliminary indication. It also comments upon the actions and omissions of the Herts and Essex Fertility Centre (HEFC) for identical reasons to those described by the President in his judgment. It is both alarming and shocking that, once more, a court is confronted with an instance of such striking ineptitude from an organisation which is subject to statutory regulation and monitored by a statutory regulator namely the Human Fertilisation and Embryology Authority (HFEA).

We’ll come onto it in detail later, but because the Clinic refused to comply with Court orders, the Court had to make the orders again, but with a penal notice attached. It is pretty unusual for a Court to need to do that against an organisation (as opposed to say a lay person)

 

 

F v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3601.html

 

When the parties contacted the clinic to ask for the records, and even when Court orders were sent, the Clinic was unresponsive – my reading is that the requests were processed by someone who went into “someone is trying to sue us for something, give them nothing” mode.  (which is not even the way it actually works with a personal injury or negligence claim, where disclosure is part of a pre-action protocol). As it turned out, the Clinic’s resistance to assist and comply with Court orders not only made the litigation more protracted and costly, but they ended up having to offer to pay the costs anyway.

Also, seeing the lawyers involved in the case in the headnote, boy did this clinic mess with the wrong people…

 

 

  • The second noteworthy matter surrounds HEFC’s litigation conduct which has been wholly extraordinary. Notwithstanding both parents’ written authorisations and ready agreement to the disclosure of material from HEFC, the process has been fraught and, at best, piecemeal. There would seem to have been a fundamental misunderstanding of the purpose for which disclosure of records was sought.
  • In early May, only 20 or so pages of medical records were made available. Had there been full and proper disclosure at that stage, the eventual shape of the litigation could have been very different. Again and again, letters were written by M’s and F’s Solicitors. In late May, HEFC was strongly recommended to attend the first court hearing. In response, the Clinic’s finance manager stated that it was not accepted that “HFEC had failed to comply with the necessary procedures;” and the suggestion of attending the hearing was declined.
  • On 29 May an order was made joining HEFC as a party and directing it to file any evidence upon which it intended to rely. Two months later, on 28 July, in the absence of any engagement by the Clinic, F’s Solicitors wrote a lengthy and informative letter, drawing attention to the 7 cases being heard by the President, seeking agreement to fund the father’s legal costs, reiterating the disclosure requests and giving information about the next court hearing.
  • On 10 August, the Clinic’s finance manager emailed F’s Solicitors saying, “to confirm, we will not intervene nor will we be attending the hearing.”
  • On 14 August, I made an order directing HEFC to disclose all and any medical notes relating to M and F’s treatment as well as all correspondence (including emails and other communications) with M and F. I also directed the Clinic to file and serve detailed statements from the Person Responsible and the Medical Director. The HEFC was directed to attend the next hearing on 22 October.
  • On 4 September two statements were provided, one from the Person Responsible, the other from the Medical Director. The covering email from the finance manager indicated that the Clinic would not be in attendance at the next hearing as “this is a Family Law matter.”
  • I cannot begin to understand how such a misapprehension arose as to the proper role for the Clinic in these proceedings particularly given the unambiguous correspondence from the parties’ Solicitors supported as it was by the text of several court orders.
  • On 20 October (about a month after F’s Solicitors had drawn the Clinic’s attention to the President’s HFEA 2008 judgment), an email was sent to the Clinic’s finance manager reminding her that HEFC was required to attend the hearing on 22 October. The response was that the Clinic would not be attending.
  • It was therefore necessary, on 22 October, to make an order with a penal notice attached so as to ensure the Clinic’s compliance with directions. I also listed a hearing to determine the Clinic’s liability for the parties’ reasonable costs. Once again, an order was made that the Clinic should attend the next hearing.
  • On 4 November, Russell-Cooke LLP was instructed by the Clinic. Seemingly that was the point at which the Clinic appreciated the need for assistance from lawyers. As Mr Powell explained during his final submissions, the Clinic’s first point of contact (when faced with requests for information) had been the insurers. Apparently, though this is difficult to understand given the explicit nature of incoming correspondence, the Clinic had not appreciated the gravity of the situation.
  • There was then inter-solicitor correspondence resulting in further disclosure on 10 November. For the first time, critically important laboratory records were revealed showing affirmative ticks by the WP and PP boxes on forms. Two further and important tranches of documents were disclosed on 19 and 20 November just a very few days before the final hearing listed on 24 November.
  • The detail of the Clinic’s litigation conduct is both important and profoundly disappointing set against the framework of the dispute between these parents. The levels of conflict have remained at the highest level throughout. M and F are bitter, resentful and mistrustful of each other. M’s position, in all probability, became ever more entrenched as the result of the Clinic’s lack of engagement and failure to disclose early.
  • The Clinic’s bewildering behaviour has undoubtedly added to a situation of enormous tension in circumstances which were already intensely fraught. It would have assisted greatly if the Clinic had responded to requests for information in a timely and cooperative fashion. Seldom is it necessary to make orders backed with a penal notice against organisations whose aims include a desire to serve the public and to a high standard. It was altogether necessary here.
  • It should also be observed that even by the very end of the hearing, there had been no attempt on the part of the Clinic to engage directly with either M or F. Beyond what had been said formally within the proceedings there has been no correspondence and no apology on the part of anyone at HEFC. That is quite obviously a profoundly shocking state of affairs. Neither parent has had any offer of help, support or explanation for the situation in which they have been entangled. They have been left completely on their own with no ability to understand the reasons for what went so badly wrong.
  • On behalf of the Clinic, Mr Powell accepts that no words would do justice to the emotional distress caused to M, F and their family members. He did not seek to defend the Clinic’s actions; and accepts the criticisms levelled. The Medical Director’s unreserved apology, said Mr Powell, although late is nonetheless candid. The Medical Director accepts that the Clinic’s litigation conduct was wholly unsatisfactory and has prolonged the parents’ distress. He intends to write directly to them apologising on behalf of HEFC and would welcome the opportunity to meet each parent to provide an apology in person and answer their questions.
  • Mr Powell indicates that lessons have been learned and contrition on behalf of the Clinic is genuine. It is a good indication of the HEFC’s remorse that it has undertaken to pay the parties’ costs as they relate to the declaration of parentage proceedings.

 

 

On the fundamental issue, whether the proper consents had been recorded about the treatment and who was to be considered as legal parents for any child produced by the treatment, the Judge had this to say:-

 

 

  • Without descending into more of the detail, I am entirely satisfied of the following – (1) that M and F did sign WP and PP forms prior to the commencement of treatment; (2) that the forms as well as the internal consent forms were signed at the treatment information appointment (as the checklist confirms); (3) that the WP and PP forms have subsequently been mislaid or lost; (4) that M and F received appropriate counselling prior to treatment in relation to the consequences of using donor sperm; (5) that notwithstanding the lost forms the clinic acted within the terms of its licence; and accordingly (6) F is C’s father.
  • Turning from the specifics relating to parentage, there are a number of associated matters which require comment. The first is as to the bemusing and seemingly unsatisfactory response of HEFC to the Legal Parenthood Audit initiated at the request of the HFEA on 10 February 2014 following the judgment of Cobb J AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam).
  • On 1 September 2014, the HFEA wrote to all clinics to inform them of the outcome of the Audit – namely that “nearly half of all clinics that have responded reported anomalies with their legal parenthood consent.” The letter expressly informed clinics – “if you have any doubt about the validity of legal parenthood you should seek your own legal advice. You should also inform the affected patients and their partners.”
  • The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern. In this instance, M and F were left completely on their own without assistance of any kind from HEFC.
  • The medical files for these parents should have been (but were not) included in the Legal Parenthood Audit which was to be completed over a period of three months. The omission has been reported to the HFEA. It is perplexing to say the least that this couple’s files were missed when account is taken of the chronology of the mother’s telephone calls (from late March / early April 2015) seeking information about the consent forms as well as initial ‘phone calls followed then by a formal letter from M’s then Solicitors requiring information.
  • At the instigation of the Chief Inspector of the HFEA an investigation is about to begin to discover the reasons for the error. There will be a ‘Root Cause Analysis’ undertaken by an independent consultancy for UK regulated organisations so as to identify what went wrong. The investigation will also seek to discover whether the HEFC complied with the HFEA’s request to sample or review files. Importantly, it will examine how the WP and PP forms were mislaid or lost. It is said on behalf of HEFC that the investigation will be thorough and comprehensive.
  • The findings of the independent consultancy will be reported to the HFEA so that decisions may be made about what action should be taken. The medical director of HEFC assures the court that he is committed to “getting to the bottom of what happened, to taking all remedial action and to working with the HFEA to ensure that the circumstances which gave rise to this case can never happen again.”
  • The HEFC has taken other steps including the installation of ‘Meditex,’ a new Fertility Database which will require the scanning in of Forms WP and PP enabling immediate retention and availability for inspection. The database is comprehensive, internationally recognised and used by other leading clinics across Europe.

 

It really does seem likely that there will be many more of these cases. I’d suggest that hospitals stop putting Court orders from family Courts in the “Go Screw Yourselves”* section of the in-trays.

 

(*That wasn’t actually intended to be an artificial insemination joke when I first wrote it, but hey, I’m not one to snub serendipity when it comes a’knocking)

 

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