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Insert appropriate Coldplay reference here *

 
CC (Adoption application : separated applicants) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4815.html

This is a decision of the High Court, relating to two married applicants who were married and living together when

(a) They were approved by the Local Authority as adopters
(b) The child was placed with them for adoption
(c) The application for adoption was lodged with the Court

BUT by the time the Court was considering whether to make the adoption application, they had separated.

This is quite an unusual situation – this is the third such reported case where this has happened and in each of them the Court has gone on to make an adoption order to both applicants determining that this is in the child’s interests.

In the first of these, Re WM (Adoption: Non-Patrial) [1997] 1 FLR 132 Johnson J was at pains to point out that

“I am not to be thought to have lent judicial support to the making of adoption orders in favour of separated couples as a general rule.”
[But, just as we saw with Re D earlier in the week, once the Court unstoppers the bottle for one case, that genie can be summoned up in others. The only way for a Judge NOT to make a precedent when doing something brand new, is to not report the case]
In this case, the statutory fly in the ointment was said to be section 42(7) of the Adoption and Children Act 2002.
(7)An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given— .
(a)where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency, .
(b)in any other case, to the local authority within whose area the home is.
The Court recognised that the wording of the Act there is somewhat vague as to whether what is intended is that the Local Authority are able to see the child in the home AFTER the application is lodged in the preparation of their report, or whether they just need to have been able to see the child in the home of the adopters AFTER placement.

The latter was clearly met in this case, because the child had been with the adopters for a year before the application was made. The former was more tricky, since the adopters had split up fairly shortly after the application was lodged before the Court.

The Court say

There was some debate during the course of the hearing as to when the opportunities to see the child must have occurred. Must they have occurred after the adoption application has been made or can they have occurred before? There is no specific timeframe referred to in sub-section 7; it simply requires the court to be satisfied that there have been the requisite opportunities. I do not propose to deal with this issue because it is clear that, in this case, there have been ample opportunities for the local authority to see M with the applicants “together in the home environment” both before and after the application. Miss R has visited the home on many occasions. I am, accordingly, satisfied that the provisions of s. 42(7) are fulfilled.
And the Court being satisfied that there is no fly in the ointment, went on to consider the welfare checklist and give reasons why a joint adoption order is the right thing for the child.

[Incidentally, those reasons seem to give broad encouragement to anyone else in this position and would seem to support the making of a joint adoption order to anyone in a similar position in the future unless the separation was particularly acrimonious]

But were the Court looking for that fly in the right jar of ointment?

I suggest (and am grateful to Natasha Watson on this for doing all of the real brainpower and legwork) that the real legal difficulty here is in s50.

Section 50 is dealing with the circumstances in which an adoption order can be made – and then relies on a definition in s144(4).

[It was the most controversial and most debated clause of the Act – bearing in mind that this was back in 2000/2001, because it was the part of the Act that opened up the possibility of adoption by gay couples. I once had the misfortune to have to read all of the Parliamentary debates on the Adoption and Children Act and nearly 75% of the discussions were about this particular clause, so rest assured that this section had more scrutiny than any clause in modern Parliamentary history – it indisputably says what Parliament finally agreed it should say]

50 Adoption by couple.

(1)An adoption order may be made on the application of a couple where both of them have attained the age of 21 years. .
(2)An adoption order may be made on the application of a couple where— .
(a)one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and .
(b)the other has attained the age of 21 years.
If the Court are making an adoption order to two people, as here, it needs to be satisfied of two things :-

1. That they are both 21 or over (no problem in this case)
2. That they are a couple

The Act then defines “couple” for those purposes in s144(4)
(4)In this Act, a couple means— .
(a)a married couple, or .
(b)two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.
At the time that the adoption order was being made, the two adopters here were married to one another, but were not living together. So they are married – but are they a “married couple” ?

In a common sense definition, could one really describe them as a “married couple” or even “a couple” ? If they aren’t, then they can’t have a joint adoption order.

Can you be a ‘married couple’ or described as ‘a couple’ once you’ve split up? Or are you a married couple until you get the decree absolute?
Do you want a concrete illustration? You may recall the news earlier this year that Chris Martin and Gwyneth Paltrow had ‘consciously uncoupled’ and gone their separate ways. They are still married.

Are Chris Martin and Gwyneth Paltrow a married couple?

If they aren’t, neither are these two adopters. And on that basis, the Court is not able legally to make an adoption order to both of them.

[The Court HAS, and it is done, and it will be added to the law books as authority for the Court doing this, and next time it happens it will be relied upon as authority for the Court to do it again – but unless you would really describe Chris and Gwyneth as a ‘married couple’ then it would be a mistake in law]

Another issue that arises in relation to this is that if we are going to describe two married people who no longer live together or wish to as “a married couple” than we no longer have equality.

Look at the second limb of s144(4)
b)two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.
If we are going to say that two people who are married continue to be a ‘married couple’ until they divorce, then we are no longer treating married people and people in an enduring family relationship the same.

Because married people can split up and still get the adoption order, but cohabiting people can’t.

If two people in an enduring family relationship make the adoption application and then break up before the order is made, then they would not satisfy s50.

You can’t be in an ‘enduring’ relationship once there’s a separation. By definition, it hasn’t endured.

Thus, the Court is discriminating (IF we are saying that Chris and Gwyneth are still a married couple) in favour of married people in a way that they wouldn’t do in relation to two people who were cohabiting.

[See THIS article in the Daily Mail
http://www.dailymail.co.uk/news/article-2800896/marriage-no-better-cohabiting-legal-rights-abolished-adulterous-judge.html

for judicial differences of opinion as to whether married people and cohabiting people ought to have the same rights. I take no responsibility for your sense of moral well-being or compassion after reading a piece in the Daily Mail. I can save you the trouble and say that the Mail is more on the side of Coleridge (marriage is best) as opposed to Mostyn (we should stop favouring marriage over cohabitation in law) and decide that the best way to sift this debate is to indulge in personal attacks.  If Coleridge J is the sort of person to keep a scrapbook, he might have been reaching for the bottle of Gloy Gum for this one ]
I suppose that the next Court to tackle this issue can say that for the purposes of s50 and s144(4) two people who are married remain “a married couple” until such time as they divorce.

After all, just this month we have seen Judges decide that article 8 of the Human Rights Act doesn’t apply to the Court deciding private law proceedings (re Y http://www.familylawweek.co.uk/site.aspx?i=ed134192 – even when the Court of Appeal expressly said otherwise in Re A ) and that if a clause in statute says “must” that can be simply ignored – (Re X.
http://www.bailii.org/ew/cases/EWHC/Fam/2014/3135.html )

 

 

Now, I can put an image in here – the two obvious competing ones are a nice photo of Chris Martin’s new paramour, or a bottle of Gloy Gum.

 

oh joy, it's gloy!
*Re the title, the piece is obviously crying out for a lyric or song title from Coldplay, but I’m afraid that I subscribe to the Alan McGee school of thought that they are ‘indie bedwetters” and thus I don’t have a glib reference.

Nothing else will do? A head-scratcher

 
The Court of Appeal’s decision in Re W (Children) 2014

http://www.familylawweek.co.uk/site.aspx?i=ed134050

This was an appeal by the mother in relation to the Judge’s decision to make Care and Placement Orders in relation to the youngest three children of a sibling group of nine.

As we all know, the Court can’t make those orders (post Re B and Re B-S) unless satisfied that “nothing else will do”.

This appeal was refused, and leaves me scratching my head about what is actually meant any more by “nothing else will do”
The nub of this appeal was really that the children’s existing foster carers would consider putting themselves forward to permanently care for the children. That might be either as adopters or as Special Guardians.

The mother had been asking for the Court to adjourn the hearing, to have an assessment of those foster carers as Special Guardians.

That application was refused and the Court had gone on to make Placement Orders.

Now, the critical thing here for Re B-S and “nothing else will do” is that here there is a valid and viable placement option – placement with the current carers as Special Guardians, which would not have been expressly considered within the social worker’s Re B-S analysis, and which is an option which would have to be explicitly ruled out by the Court in order to say that “nothing else but adoption would do”

[There was, I am sure, an argument that even if these carers were to care for the children that it should be under Adoption rather than Special Guardianship, but the Re B-S formulation suggests that the Court isn’t looking at whether adoption is BETTER than the other options or has advantages or lacks the disadvantages of the alternatives, but that each of the other realistic options is ruled out. It has never been really clear to what standard the Court is supposed to be ruling them out – but “nothing else will do” is NOT the same as “nothing else is quite as good as adoption”]

The other complication here is that the Guardian, in written evidence, was AGAINST the making of Placement Orders and in support of the current carers caring for the children permanently. It appears that the Guardian shifted their position during the final hearing (and by shifted, I mean “did a reverse ferret” )

“Following discussions with the Local Authority, an amendment to the care plan has been proposed which provides for the Local Authority to assess the foster carers as adopters. The guardian was clear that even if these foster carers are not approved as adopters and if it means that D has to be separated from G and M, he still considered, following his analysis, that adoption was the right and only option available for these children.”

24. That summary of the guardian’s position is of note because it is in apparent contrast to the guardian’s position in writing as recently as 12 January 2014, a week or so before the hearing commenced, having summarised the position of the children and the three younger children and in particular highlighted the priority that the guardian gave to the benefit achieved from their current foster home.

25. The guardian says this at paragraph 62:

“That opinion, therefore, is, at this time, not to support the placement order application of the Local Authority naming D, G and M. The current foster carers are willing to care for all three children in the long term and have been seen as very capable of meeting the children’s needs to date.”

26. Then in his recommendations, the guardian is express. He says:

“I recommend that the court does not make a placement order on naming D, G and M. However, I reserve the right to change this position until after I have heard the evidence and opinions of Dr Butler and she having read this, my final report.”
Dr Butler, the child and adolescent psychiatrist who had reported in the case, had provided a very clear written report on the issue of whether the children could be placed at home with mother, but had not got into the merits of the various other forms of ORDER.

It seems that Dr Butler had been asked about this in oral evidence.

19. The judge then concluded her summary of Dr Butler’s evidence with respect to the younger three children in the second part of paragraph 29 where the judgment says this:

“As far as D, G and M are concerned, Dr Butler thought it would be helpful if they could stay in their current placement. She would be concerned about separating them for adoption. She said that they have survived as a sibling group. They all need therapeutic work some form of play therapy. She was clear in her oral evidence that only adoption would give them the stability they need.”

20. All, save the last sentence, of that quotation is a almost direct lift word for word from the concluding paragraphs of Dr Butler’s report. The key sentence for the context of this appeal is the last one where the judge records the doctor as being clear in her oral evidence that “only adoption” would give the children the stability that they need.

21. Dr Butler’s report, whilst analysing the children’s position very clearly, does not actually descend to an opinion one way or the other on the issue of adoption or long term fostering or some other form of placement. All we have in this court in terms of the evidence of Dr Butler on this point is, firstly, this sentence in the judge’s judgment and, secondly, a copy of counsel for the Local Authority’s handwritten notes taken during the hearing which in particular obviously does not include any question and answer record of counsel’s own cross examination of the doctor.
So, going into the hearing, in their written evidence, both the Guardian and Dr Butler were saying that the best thing for the children would be to remain in their current placement. (But in oral evidence, although the details are sparse, both said adoption was the right thing for the children, although the reasoning is not very well set out and the Judge largely bases the conclusions on the position of those two witnesses)

The mother was saying that if they could not come back to her, she would want the children to remain in their current placement – she would prefer any form of order other than adoption. If there HAD to be adoption, she would want it to be with the current carers, rather than with strangers.

The Local Authority position was that there should be adoption – they would do an assessment of the current carers but only as adopters – if they were approved as adopters that would be Plan A. But if they were not approved as adopters, Plan B would be to find other adopters NOT to look at different orders that would allow the children to stay with those carers.
Now, there might be a raft of reasons why the Judge eventually preferred the evidence of the Local Authority and decided that this really was a case where “nothing else would do” other than adoption, but if that’s the case there needs to be some very heavy lifting done in the judgment.

It is a shame, therefore, that the Court of Appeal have to say this about the judgment

31. Some time ago I indicated the narrow focus of this appeal and the concern expressed by my Lord Jackson LJ in granting permission to appeal. The concern is one that, on the papers, I share. It arises from the difficulty that any reader of the judgment has in understanding two matters. First of all, what it was that Dr Butler and, in turn, the children’s guardian said in oral evidence which justified, in Dr Butler’s case, at least a clarification of her view that adoption was the only option and, in the guardian’s case, a change from his position of not supporting the placement applications to holding that in any circumstances adoption was the only order for these children. The second related difficulty that any reader of the judgment has is understanding what it was that the judge thought about these matters as leading in her view to making these final orders, particularly in the context of the outstanding, albeit recently identified, need to assess the foster carers. Rhetorically, the question is asked: why was it necessary to make the final orders on this occasion?
When you look at some of the successful appeals in relation to Placement Orders (I think particularly of the one where both parents were in prison at the time the orders were made), this case looks to have successful appeal written all over it. If you read the judgment and can’t see how the Judge reached the conclusions at the end, then post Re B-S, that’s the sort of judgment that gets overturned. Or rather, it WAS.

There was an option before the Court that was substantially less draconian than adoption by strangers, and to rule out that option would surely have needed rigorous analysis.

Instead, the Court at first instance seemed to have placed very heavy emphasis on adoption being the only form of order that would prevent the mother disrupting the placement.

[It MIGHT be that this was a mother who had been going to the foster home, being undermining and abusive, making phone calls or sending letters – that isn’t set out in the extracts of the judgment that we have been given in this report though, and surely it would be. So we can discount that as a possibility. There MIGHT be circumstances where the risk of mother disrupting a long-term foster placement or Special Guardianship Order with these carers was simply unmanageable, but it would need to be spelled out why the Court couldn’t control this with all of the legal remedies (s91(14) orders, non-molestation orders) at its disposal]
In any event, there seems very little weighing up of the proportionality issue and that the Court should be looking for the least interventionist form of order where possible. Unless the risk of disruption was so high and utterly unmanageable, that’s a feature of adoption which is beneficial or advantageous to be put into the balancing exercise, not a determinative factor, surely?
42. If the judge’s judgment were the only material available, it is a document upon which it is hard to rely in terms of gaining any detail as to what it was that Dr Butler said about adoption and why it was that the guardian changed his opinion. The court has made efforts to try and obtain transcripts, but they have come to nothing. The note of counsel takes matters so far, but does not provide in anyway a total answer. Yet the appeal has to be determined. In particular, there is now a pressing need for the appeal to be determined because of the prospect of the children being matched, if the appeal is unsuccessful, with these prospective adopters. I considered countenancing an adjournment to obtain a transcript, but to my mind, that is not necessary.

To be honest, I had always considered that this was the real thrust of Re B-S and the successful appeals that followed – that the Court of Appeal looks at the judgment and if the reason for making the orders is not robust and rigorous within the document, then the judgment is wrong.
In this case, the judgment sets out that the Judge agreed with the Guardian and expert that nothing else but adoption would do, but doesn’t set out WHY either of those witnesses reach that conclusion (particularly since the Guardian was saying something different in writing), or WHY the Judge agreed. The Court of Appeal, for reasons that aren’t plain to me, decided that was okay.

This appears to me to be the strongest appeal since Re B-S was decided, but although many rather flimsy appeals have been granted, this one has been refused.

The reasoning appears to be that although the judgment as delivered is somewhat sparse, the parties did not invite the Judge to fill in the gaps. (that’s not something that was mooted in the flimsier successful appeals)

45. So while it does seem to me that although this court lacks the precise detail of the actual words used by these two key witnesses, we are entitled to take as the baseline the judge’s summary of what was said. It is absolutely clear in the terms that I have described. So having gone into the matter in more detail than was possible on the occasion that my Lord considered the permission application, I am satisfied that the judge must have had the clear professional oral evidence in the terms that she has summarised, which, in turn, enabled her to consider the options for these three children.

46. I therefore turn to the lack of reasons given in the judgment. This court has from time to time had to consider the absence or submitted absence of full judicial reasoning in cases across the civil justice spectrum, but perhaps particularly in the context of family justice.
47. There are a number of relevant authorities, but the most convenient is that of Re: B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, the decision of this court presided over by Thorpe LJ and Bodey J in 2003. They had the benefit of a judgment given one year earlier by my Lady Arden LJ in the case of Re: T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736. In the course of that judgment, my Lady considered the applicability of the ordinary civil authority English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 to family cases. My Lady held that there was no distinction to be drawn on the question of principle as to the need for the requests to be made to judges at first instance to amplify their reasons in family cases just as in civil cases.

48. The law report is available to all. I do not intend to lengthen this judgment by repeating what my Lady said in Re: T, save to quote from paragraph 41 to this extent. My Lady said this:

“It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”

49. That approach was unsurprisingly endorsed by Thorpe LJ in the course of his judgment in the later case of Re: B. He in turn at paragraph 11 said this:

“No doubt I have hesitated as to how best to respond to these submissions. I regard a number of the criticisms of the judgment as ignoring the seniority and experience of this judge. No doubt a judge recently appointed or only recently inducted to public law would not reach the milestones and signposts to ensure that no essential stage of the process is overlooked or truncated… But there is a huge virtue in brevity in of judgment… The more experienced the judge, the more likely it is that he may display the virtue of brevity. Certainly it is not incumbent upon the judge to adopt some formula of a judgment or simply to parrot statutory provisions. For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions?”

50. The judge in this case, as I have described in the quotations from her judgment that I have set out, gives short reasons and, in effect, identifies her reasoning as being at one with that of Dr Butler and the children’s guardian.

51. They in turn conclude that the only option is adoption. If a true reasons challenge was to be mounted in relation to this judgment, the proper course to be adopted would have been to go back to the judge at the permission to appeal stage before the first instance judge, which I do not think was undertaken in this case, and to raise the reasons challenge and to invite the judge to enlarge upon the reasons that she has given. That simply was not a step that was taken here. Insofar as the mother was a litigant in person, she is not to be criticised for that, but the reality is that step was not taken. It was not taken at a later stage when, for a time, the mother had the benefit of some legal representation.

 

 

Re W makes it even more difficult than it already was (and it was already extremely difficult) to hazard a guess at how the Court of Appeal will decide any appeal on a Placement Order. Which in turn makes it even harder for the Court at first instance to know what the Court of Appeal expect to see in a bullet-proof judgment. And harder for advocates to advise their clients on the merits of an appeal and prospects of success.

I think that there MIGHT be cases where the Court could reject a plan of long-term fostering or Special Guardianship with the current carers and decide that “nothing else but adoption will do” – it will depend heavily on the circumstances of the case. But it is clearly a considerably difficult hurdle to surmount and the judgment would need to reflect the rigorous and robust analysis of why the current carers are not an option, and the judgment would need to be cogent as to the reasons for that decision.

Correction – the last sentence there is how I would have IMAGINED the law to be, but post Re W, who knows any more?

I am slightly surprised (to put it mildly) that the appeal did not dwell more on the judicial refusal of the application for an adjournment in light of Re MF – finding out whether these carers could keep these children seems to me to be a piece of information whose absence does prevent the Court from resolving the proceedings justly and that the adjournment was necessary.

The Court of Appeal simply say this (in effect – because the Judge was in favour of adoption, it wasn’t a piece of information that the Judge needed. Again, scratching my head on that one)
64. The judge in the present case was plain that the expert and professional evidence was to the effect that only adoption would do for these three children. That was also the judge’s conclusion. Therefore, in my view, as a matter of structure and of law it would not have been open to the judge to contemplate the court carrying on to oversee the assessment process of the foster carers if a placement for adoption order was to be granted at the end of the day.

65. The working out of the plan for the assessment of the foster carers and the development of an alternative plan if they were not acceptable as long term carers for the children were matters and should be matters for the Local Authority under the placement for adoption order and the care order and not for the court. So as a matter of structure, I am not persuaded by Ms Jones’ submissions.

66. In any event, we would only be able to intervene and overturn the judge’s conclusion on this point if we were satisfied that the judge was “wrong” and that she had acted in a disproportionate manner in making a placement for adoption order at this stage without proper regard to the Article 8 rights of the children, which may well include the relationship they have with the current foster carers. It simply is not open, in my view, to the mother in this case to sustain that submission.

67. The evidence before the judge was that adoption was what was required. It was necessary to take a decision at that stage partly to avoid delay, but partly to achieve clarity. On the evidence before the judge which she accepted, no other outcome other than the adoption of these children was justified unless that could not be achieved. Therefore, there was no benefit for the children in holding back from making a final order at that stage. It was the only tenable outcome of the case on the evidence and on the findings of the judge. So even within the compass of the appeal as it was on paper before my Lord when he gave permission and this court before we had the extra information from the Local Authority, I would refuse the appeal on that basis.

 

As more general practice for appeals, the Court of Appeal put down this marker about transcripts of evidence
70. I wish to add brief comments on one procedural issue. From time to time when this court grants permission to appeal, it directs that the evidence of a particular witness be obtained. If the appeal concerns the adoption of children, it is by definition an urgent matter and the hearing will be listed at an early date. Indeed, as here, the court granting permission to appeal may direct an expedited hearing.

71. In such a case, the parties must use their best endeavours to obtain any transcript of evidence which is required as soon as possible. If, as here, the transcript cannot be obtained in time, then solicitors and counsel should co operate in producing a composite note of the relevant evidence.

72. That did not happen in this case. Instead, part way through the hearing today, counsel for the Local Authority stood up and informed us that she had a note of the evidence given by Dr Butler and the guardian. In those circumstances, the hearing was adjourned for 40 minutes so that counsel’s note could be photocopied and considered by all present. I say at once that counsel’s note of the evidence is clear and extremely helpful, although it does not include her cross examination of the two witnesses. I am grateful for the copy of that note which we have received.

73. Nevertheless, in any future case where a necessary transcript of evidence is not obtained in time for the hearing, then any available notes of the relevant evidence must be circulated in advance to all parties and the court. That will avoid any risk of ambush. Also, it will avoid the need for an adjournment in the middle of the hearing of the appeal.

 

 

So, just as the President has shown us in Re X that “must” in a statute means “ah, just ignore that bit”,  the Court of Appeal have now shown us that when they said in Re B-S that “nothing” else will do, they didn’t mean that a possible placement with existing carers under an SGO or long-term fostering could be SOMETHING else that might do. They meant an entirely different kind of nothing.

 

This wouldn’t be  teh interwebs if I didn’t use that as an excuse for the Inigo Montoya meme.

 

No, I am NOT the Red Viper of Dorne

No, I am NOT the Red Viper of Dorne

Turning the pole vault into a limbo contest – watch Hayden J reset the bar

 
In which I applaud Hayden J for sticking both his neck out, and his finger in the dyke.
Re DM 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3119.html

Re DM was one of those cases where a Local Authority go to Court BEFORE a child is born, to say that they intend to issue care proceedings with a plan of separation at birth and that they want the Court’s permission not to tell the parent of this plan.

This peculiar application, well-described by Hayden J as “anticipated declaratory relief” emerged from the decision of our President in Re D (also Bury MBC and D) 2009 http://www.bailii.org/ew/cases/EWHC/Fam/2009/446.html

That case turned on utterly extraordinary facts.

The mother was serving a custodial sentence in relation to an incident that took place at a supervised contact session with her daughter, in which she had pounced on the child, blindfolded her, gagged her, pinned her to the floor and threatened her with a knife. A Care Order and a Placement Order facilitating adoption had subsequently been made in respect of that child.

In the period that followed that incident, the mother continued to demonstrate a high level of extreme distress and highly challenging behaviour. This included, for example, an attempt to take her own life in highly alarming circumstances, in her cell. Such was the level of harm that she presented to herself that, whilst in prison, she was placed on a regime of 15 minute watch.

The local authority had considered the circumstances with very great care and fretted over what the best way forward might be. A report, one of many that the local authority commissioned, recorded that the mother had expressed the view that all her children would be better off dead than in the care of the Local Authority. ‘Reunification after death’ was something that the mother made frequent reference to; she saw that as the only solution to her dreadful problems.
The Local Authority in that case (Bury) were in a spot. They knew that they intended to issue care proceedings and seek removal of the child once born, and they also knew or considered that telling the mother of that in advance would jeopardise the life of the baby. They therefore took an unusual step of making an application in the High Court under the inherent jurisdiction for a declaration that NOT telling the mother of the plan would not breach their duties to her or her human rights.

The difficulty, of course, is that the mother is not told of the application and has no chance to put her own position before the Court AND of course, when the application for an EPO is made, no doubt that Court is told that in effect the High Court has already nodded approval of the plan.

In Re D it was conceded by counsel on behalf of the Applicant that the power that the court was being asked to deploy were “at the very extremities of convention rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950″. The apparatus of the declaratory relief was put into place, recognising that those moments immediately after the birth of the baby rendered him almost uniquely vulnerable, in circumstances which were likely to be very rare indeed. They were circumstances so extreme, so fraught with potential danger to the physical wellbeing of the child, as to justify that extraordinary level of intervention. It was, and I emphasise, a wholly exceptional case. Such intervention, because it is such a powerful restriction of a woman’s autonomy, must always be regarded as draconian. The Courts and Local Authority must be vigilant to ensure that the wholly exceptional nature of this relief is never lost sight of.

When Bury/Re D was reported, most professionals thought that those circumstances would never arise again. But as I have blogged, these applications have become more common.

And I have been worried that the exceptional and dramatic circumstances of Re D have been translated into similar declarations in much less dramatic circumstances – and that they often involve cases where the mother either lacks capacity or has profound mental health problems (i.e where her vulnerabilities require even more protection from the power of the State)

I am pleased to see that Hayden J agrees with that, and says so.

This is the first reported Re D type application that has been refused, and hopefully that will staunch the flow of these.

My attention has been drawn to a number of recent decisions, which it is contended appear in some way to lower the bar for this radical intervention. These decisions include North Somerset Council v LW, TC & EW [2014] EWHC 1670; NHS Trust 1 & NHS Trust 2 v FG [2014] EWCOP 30 and X County Council v M, F & C [2014] EWHC 2262 (Fam).

In NHS Trust 1 & NHS Trust 2 v FG, Keehan J was persuaded by the Official Solicitor to give guidance generally in relation to the making of urgent applications in respect of women who lack capacity or who appear to lack capacity in the final stages of pregnancy. Those circumstances are very different to the kind of application contemplated here. I do not believe that Keehan J in any way intended to weaken the test set out by Munby J in Re D, which I have been at pains to reinforce. That said nothing I say should infer that respect for and active promotion of the personal autonomy of an incapacitated adult is any less vital. On the contrary it is every bit as exigent.

Applications, such as that contemplated here, will arise only rarely. The facts will always be case sensitive. However, to invoke the declaratory relief initially canvassed, the facts will, as I have said, require a level of ‘exceptionality’ and will be characterised by the ‘imperative demands’ and in the ‘interest of safety’ of the newborn baby in the period immediately following its birth. Beyond this, it is, I believe, unhelpful to try to be more prescriptive.
On the particular case in question
I have no doubt that the professional instincts here were sincere. However, equally, I have no doubt that they were, ultimately, misconceived. This woman will, I am satisfied, have contemplated the real difficulties that are likely to arise upon the birth of this child. I am also satisfied that she will, perhaps to a large extent, have anticipated the local authority’s plans. She is a capacitous woman and she will feel more acutely than any other the sad history of her past. It is idle to pretend otherwise.

Moreover, it is quite possible to keep the mother and baby together in a manner that respects the mutual need each for the other in the period immediately following the birth, which is the spotlight of concern. That can be achieved in a manner which respects both the emotional needs and the safety of the baby, even if that requires a high level of intervention in a plan that might inhibit the kind of interaction that most mothers and babies would enjoy following the birth. This has the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court can hear the inevitable applications.

Though I have described the Local Authority’s application as misconceived I think it is important, nonetheless, to observe that professionals involved in these difficult decisions provide a huge service both to the women and babies they deal with and also to society more widely. This case illustrates the challenges they face and the debt that we all owe to them.

Committal for harassment

 

In the matter of an application by Gloucestershire County Council for the committal to prison of Matthew John Newman

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3136.html

 

This is a judgment given by the President. There are, I think, three interesting aspects to this judgment. Aside from him quoting the very famous remark about freedom of speech not extending to the freedom to shout “fire!” in a crowded theatre.   (which is my favourite joke in Rozencrantz and Guilderstern Are Dead)

 

 

  1. The penal notice should be on the face of the order

 

 

So far as material for present purposes, rule 37.9(1) of the Family Procedure Rules provides that:

 

“a judgment or order to do or not do an act may not be enforced … unless there is prominently displayed, on the front of the copy of the judgment or order … , a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”

 

Neither the order of 16 May 2014 nor the order of 16 July 2014 complied with this requirement. In the order of 16 May 2014 the penal notice appeared at the end of the order on the second page. Although the order of 16 July 2014 contained, prominently displayed, the statement on the front of the order that “A Penal Notice shall be attached to paragraphs 1 and 2 of the injunctive consent order”, the penal notice itself was set out, just before the text of the injunctions, on the third page of the order.

 

Paragraph 13.2 of PD37A provides that “The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.” I was satisfied that no injustice would be caused to Mr Newman by waiving these defects. In the one case, the penal notice was prominently displayed at the end of a short, two page, order which also contained a recital that Mr and Mrs Newman had “previously received legal advice as to the implications of breaching the terms of this Order.” In the other case, the father was present and consented to the grant of the injunctions. He cannot by that stage in the proceedings have been in any doubt as to the consequences of breach.

 

Although in this case I was prepared to waive these procedural defects, I cannot emphasise too strongly the need for meticulous compliance with all the requirements of Part 37 and PD37A. I might add, for the benefit of the doubters, that this surely serves only to demonstrate the need for the family justice system to adopt, as I have been proposing, the use of standard forms of order available to all in readily accessible and user-friendly templates.

 

I would have two brief points in relation to this – the first is that the President is making use of the term ‘user-friendly’ in relation to the standardised court orders which bears no relation to any accepted definition of the phrase that I have ever seen used. If ten people in the country (outside the MOJ or designers of the form) can be found who say that these forms are a pleasure to use, then I will cheerfully withdraw my remark. I don’t expect to be taken up on that.

 

The second is that the reason the penal notice doesn’t appear on page one of the order is PRECISELY because the template form doesn’t put it there.

 

Be warned people – if you are drafting an order with a penal notice, screw where the stupid form wants you to put the penal notice and put it on the front page. Everything else can be moved down.

 

  1. Harassment of social workers (although the Judge says that harassment of members of the family was worse)

I turn to ground (ii), the allegation that Mr Newman has been guilty of “harassing” employees of the local authority. The allegation is based on the contents of fourteen emails sent to various of the local authority’s employees (who I will refer to respectively as R, J, K, L and V) between 17 July 2014 and 18 August 2014 inclusive and a message sent on 18 August via facebook to the mother of another of these employees. I set out in the Table annexed to this judgment the dates and recipients of each of these email messages and, in full, the text of each message exactly as sent. The facebook message was sent on 9 August 2014 to the mother of another social worker, Kimberley H. The message read “This is what Kimberley does.” Attached to the message were newspaper articles about social workers who boast about removing children.

 

Mr Newman admits the authorship of each of these messages, and does not dispute that each of the emails was sent to one or more of the class of persons referred to in paragraph 5 of the order of 16 May 2014. The only question is whether Mr Newman’s conduct amounted to “harassing” within the meaning of paragraph 5. Mr Jenkins submits that it did. Mr Newman says that what he did was neither intended to be nor did it in fact amount to harassing.

 

What the word “harassing” means in paragraph 5 of the order of 16 May 2014 is a matter of construction, and therefore a matter of law. Whether, in the light of that meaning, what Mr Newman did amounted to harassing is a matter of fact and degree. I adopt the same approach as commended itself to the Court of Appeal in Vaughan v Vaughan [1973] 1 WLR 1159 when considering, also in the context of committal, the meaning of the word “molesting” when used in an injunction. All three judges had recourse to the dictionary.

 

“Harassing”, like “molesting”, is an ordinary English word and there is nothing in the order of 16 May 2014 to suggest that it was being used in any special sense, let alone as a term of art. It is to the dictionary that I accordingly turn. The Oxford English Dictionary provides, in addition to a number of more antique meanings, an apt definition of harass which, in my judgment, reflects what the word harassing means when used in this order:

 

“To subject (an individual or group) to unwarranted (and now esp. unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.”

Whether emails constitute harassment will, of course, depend upon the circumstances, in particular the number and frequency of the emails, their content and tone, the persons to whom and more generally the context in which they are sent. Here we have fourteen emails sent in a little over four weeks. On one day (9 August 2014) there were three. Initially, R seems to be singled out; then the emails are sent to a wider group of people. There is a pervading tone of menace: the personalised attacks (“How do you sleep at night?”, “If you have kids ask yourself what would you do to keep them”); the threats (“I have everything ready to completely ruin everyone who stands against us”, “people’s names … spread all over the world along with their pictures”, “set things right before they go terribly wrong”, “Soon your tyranny will end”, “Soon all your names will be appearing on a newspaper”, “someone, someday will be held accountable”, “unless you wish to put your career on the line”, “Hope you are looking forward to an early retirement”, “The revolution is coming are you ready”); the threatening count down; and the repeated unwarranted demands that X is returned.

 

In my judgment this was quite plainly harassment, not just pestering but psychological intimidation. It was deliberate. It was intended to achieve, by the making of unwarranted demands accompanied by menaces, the return of X to his parents notwithstanding the orders of the court. It is a bad case.

 

The facebook message sent to Kimberley H’s mother is, from one point of view, even worse. What aggravates the contempt is not so much the actual message, which in comparison with some of the others is comparatively innocuous; it is the fact that it was sent to Kimberley H’s mother. For someone in Mr Newman’s position to extend his campaign to a member of his primary victim’s family, whether partner, child or, as here, parent, is despicable. It is deliberately putting pressure on his victim by attacking their nearest and dearest.

 

 

Accordingly, I am in no doubt at all, I find as a fact, and to the criminal standard of proof, that Mr Newman is in breach of paragraph 5 of the order of 16 May 2014 as alleged by the local authority.

 

 

  1. The President goes back to Re J, and reminds us that whilst he was permissive, even welcoming of people publishing their stories (if not identifying the child) and even been critical of Local Authorities and professionals, there was still a line that people should not cross

 

 

In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523, a case that attracted much attention at the time, I articulated, not for the first time, two points which in my judgment are and must remain of fundamental, indeed constitutional, importance.

 

The first (para 36), was the recognition of “the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system.” I added that the same goes, of course, for criticism of local authorities and others.

 

The second (para 38), was the acknowledgement that the “fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar.” I added that a much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism, for “Society is more tolerant today of strong or even offensive language.” I summarised the point (para 80): “an injunction which cannot otherwise be justified is not to be granted because of the manner or style in which the material is being presented … nor to spare the blushes of those being attacked, however abusive and unjustified those attacks may be.”

 

I stand by every word of that. But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.

 

The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.

 

There is freedom of speech, a right to speak. But this does not mean that the use of words is always protected, whatever the context and whatever the purpose. As Holmes J famously observed in Schenck v United States (1919) 249 US 47, 52:

 

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

 

Freedom of speech no more embraces the right to use words to harass, intimidate or threaten, than it does to permit the uttering of words of menace by a blackmailer or extortionist. Harassment by words is harassment and is no more entitled to protection than harassment by actions, gestures or other non-verbal means. On the contrary, it is the victim of harassment, whether the harassment is by words, actions or gestures, who is entitled to demand, and to whom this court will whenever necessary extend, the protection of the law.

 

I do not wish there to be any room for doubts or misunderstanding. The family courts – the Family Court and the Family Division – will always protect freedom of speech, for all the reasons I explained in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523. But the family courts cannot and will not tolerate harassment, intimidation, threats or menaces, whether targeted at parties to the proceedings before the court, at witnesses or at professionals – judges, lawyers, social workers or others – involved in the proceedings. For such behaviour, whatever else it may constitute, is, at root, an attack on the rule of law.

 

I emphasise, therefore, that Judge Wildblood was perfectly justified in granting the injunction in paragraph 5 of the order of 16 May 2014. Such orders can, should, and no doubt will, be made in future by the family courts when the circumstances warrant. I should add, moreover, that the protection of the law is not confined to the grant in appropriate circumstances of such injunctions. Harassment is both a criminal offence and an actionable civil wrong under the Protection from Harassment Act 1997. And, quite apart from any order of the court, it is a very serious contempt of court to take reprisals after the event against someone who has given evidence in court.

 

I do not want anyone to be left in any doubt as to the very serious view that the court takes of such behaviour. In appropriate cases immediate custodial sentences may be appropriate. And deterrent sentences may be justified. The court must do what it can to protect the proper administration of justice and to ensure that those taking part in the court process can do so without fear.

 

 

 

The Court have not sentenced Mr Newman yet, and it is worth noting that one of the alleged breaches – that he put a mobile phone in his son’s bag was dismissed.

 

I deal first with ground (i), the alleged breach of paragraph 1 of the order of 16 May 2014. This, it will be recalled, forbad Mr Newman from “taking any steps to ascertain the whereabouts of [X] and/or foster placement, including using [his] mobile phone or laptop GPS positioning systems.”

 

The evidence in support of the allegation of breach was two-fold. First, there was evidence from one of the social workers who had supervised contact between Mr Newman and his son on 5 August 2014 that, following this contact, a mobile phone of unknown ownership was found in the bottom of X’s changing bag. Second, there was evidence that, when a key on the phone was touched, it began intermittently sounding what was described as a siren alarm tone and the front screen of the phone displayed the following text:

 

“! Help ! I lost my device! Can you please help me get it back? You can reach me at 000000 newman1985@hotmail.co.uk Blow me fucker, give me my son back”.

 

That is the extent of the factual evidence, though in his affidavit the local authority’s team manager says that “This action could be considered as an attempt to locate X or to intimidate his prospective adopters, carers or involved Children’s Services staff.” Be that as it may, the relevant allegation in relation to this incident is not of intimidation, only of breach of paragraph 1 of the order of 16 May 2014.

 

There was a clear prima face case that Mr Newman had deliberately placed the mobile phone in X’s changing bag, but despite hearing what Mr Jenkins had to say, I remained unpersuaded that there was even a prima facie case against Mr Newman that his actions had, within the meaning of paragraph 1 of the order of 16 May 2014, involved him “taking steps to ascertain the whereabouts of” either X or the foster placement. It was hardly to be imagined that the only people likely to pick up the phone – either a social worker or foster carer – would be so obliging as to contact Mr Newman and volunteer the information. And if the concern, as indeed the order itself would suggest, was that Mr Newman was using the phone itself in such a way (eg as a tracking device) as to reveal the relevant location, then that is not something, in my judgment, that could properly be inferred in the absence of evidence – and there was none – demonstrating how the phone could be used in that way. Absent such evidence there was, in my judgment, not even a prima facie case against Mr Newman.

 

if legal aid is being refused to people such as this mother I am satisfied that injustices will occur

This is a report of a short judgment from Her Honour Judge Hallam sitting in Middlesbrough, building on a decision from District Judge Reed in the same Court. Huge credit to both of them for calling out the Legal Aid Agency on this dreadful state of affairs   (the LAA in turn are just doing what they are told to do by our Lord  Chancellor)

 

Re H 2014

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B127.html

 

 

This was a private law case, between a mother and a father. The father had legal aid, because the child was known to social services and they were supporting him. The mother did not.   [One could make far more sense of it if it were the other way around - the father had a lesser need of representation because his case was being supported]

 

At a hearing in May 2014, the Court picked up that this mother was not someone who was going to be able to represent herself – there was an assessment of her cognitive abilities that assisted with that

 

She is not sufficiently disadvantaged to say that she does not have capacity to litigate. She has capacity to litigate but in my judgment that is only with the assistance of a solicitor. She has difficulties in hearing, in speech and intellectual difficulties. She is unable to read or write. They are not fanciful difficulties. In previous public law proceedings there has been a report from Dr Cooper, who is a psychologist, informing the court of the mother’s cognitive difficulties and learning difficulties. Having seen the mother in court, I am satisfied that she would not have been able to represent herself in a case as complex as this and therefore, in my judgment, she was, to all intents and purposes, prevented from having access to this court

 

 

At that hearing, D J Reed gave these directions

 

The matter came before District Judge Reed in May of this year, on 19th May. As I say, it was apparent at that stage that the mother opposed the father’s application. Furthermore, it was apparent that the local authority supported the father in his application. There was a recommendation about contact. When the matter came before District Judge Reed, the local authority, Middlesbrough Council, were made a party to the proceedings. At that stage the mother was self-representing and the judge was clearly concerned about that and there is a lengthy preamble to the order that he made in May. That preamble recorded that the attendance of GHu in court to support the mother was not appropriate, given the issue in the case. He recorded that:

 

 

 

‘In the absence of legal aid to secure representation of the mother, it is inevitable that her article 6 and her article 8 ECHR rights will be at risk of being violated, given her evident speech, hearing and learning difficulties, if the case proceeds without further representation.’

 

 

That could not have been a clearer indication of the judge’s opinion and consideration of this matter and therefore he also said that:

 

 

 

‘On its facts and having regard to the surrounding circumstances and, in particular, the recent party status of Middlesbrough local authority, the criteria for assessing an exceptional grant of legal aid are likely to be made out.’

 

 

He went further and said that the local authority involvement in the current proceedings is based largely on public law and child protection issues relating to the respondent mother’s fifth child, subject to public law proceedings which concluded in 2014, resulting in both care and placement orders. He said there is considerable similarity and overlap in the issues which present in both sets of proceedings. That part of the preamble continues with:

 

 

 

‘Furthermore, in the circumstances of this particular case and those of the respondent mother, it would be unrealistic and potentially unjust to expect the respondent mother to be a self-representing person.’

 

 

Therefore he adjourned what was to be a final hearing on that occasion in order for a further application to be made to the legal aid authorities.

 

 

You might think that you could not have a clearer indication (particularly in light of Q v Q) that the State would be breaching mother’s article 6 and article 8 human rights by not allowing her to have free legal representation.

 

You will, however, not be surprised to know that the Legal Aid Agency did not grant her exceptional funding under s10 LASPO. Of course they didn’t. As part of that decision, they considered that there was no risk of article 6 or article 8 breach. Of course they are in a far better position to assess that than the Judge who is seized of all the facts and knows the stakes. Of course they are.

 

The second matter that I am told that Mr Keegan relied upon was that there would be no breach of Convention rights. I find that statement astounding. A district judge had already found, having seen the mother, that undoubtedly her article 6 and article 8 rights would be breached. When I pause to consider the article 6 first of all, which is to ensure that people have fair trials in the courts of this country, and in order to do that should have equality of arms, I cannot see how anyone can come to the conclusion that this mother’s article 6 rights were not in jeopardy. I repeat again the father has the support of a legal representative. The local authority, who are advancing a case contrary to that of the mother’s, has legal representation. Without legal aid, therefore, the mother, on her own, would be facing two advocates pursuing a case against her. On any basis that cannot be equality of arms. She is the party with the least ability, the greatest vulnerability and she should have had the benefit of legal representation. She is faced with the father, who has the greater ability and the support of social services; as I say, both being legally represented. In effect, this vulnerable mother is faced with two advocates running a case against her and she does not even have one. I cannot think of a clearer breach of article 6. Article 8 – this matter is clearly about family life and the mother’s right to family life, whether the children should be in her care or not and what contact she should have. Again, I cannot see any conclusion other than that her article 8 rights were engaged, as the district judge said, in my view, properly, in the court below.

 

 

Fortunately for this woman, someone stepped in to represent her pro bono, but that doesn’t get away from the fact that we simply don’t have a system where s10 LASPO is the safety net that the MOJ claimed that it was when they were getting this awful legislation through Parliament.

 

If a Judge says that a person’s article 6 rights will be breached without representation, that’s a really really really good indicator that they would be. Judges don’t say these things for fun.

 

Ithas been fortunate that she has had the assistance of someone today because this matter has reached agreement. However, it is not right that legal professionals should have to attend a hearing, as complex as this one, without remuneration. The mother still has concerns about the father’s care for the children and many of those concerns are shared by the local authority, so she has not been running a fanciful case. The matter has resolved; it has resolved with an order and a very detailed working agreement. Again, I cannot see how this mother could have entered into that working agreement which has resolved this case without the assistance of Mr Nixon here to help her understand it, consider whether it was right and ultimately agree to it. Therefore, I have given this judgment because I am satisfied that this mother should have had legal aid and should have been represented. Mothers in her situation should have proper and full access to the court with the assistance of legal advice. As I have said, I am going to order a transcript of this judgment, both for the Legal Aid Board and also because I feel that it should be shown to the President of the Family Division to show what is happening in these courts. I am told that since April 2013 there have been only eight or nine cases where exceptional legal aid has been granted. I do not know if that is correct, but if legal aid is being refused to people such as this mother I am satisfied that injustices will occur. Had this matter proceeded without the assistance of Mr Nixon to a fully contested hearing, this court would have been put in an impossible situation. Having said that, I approve the order. I am grateful to everybody for the time they have spent and I am also, as I keep saying, very grateful to Mr Nixon for having attended today.

 

No point being the richest woman in the graveyard

Re JI (revocation of lasting power of attorney) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/36.html

 

This was a Court of Protection decision by Senior Judge Lush, who I’ve reported on a lot and who is a Judge that always does a good judgment.

 

It was a case of alleged financial abuse of a vulnerable person by a member of their family appointed to look after their money for them. I know that the Court of Protection has its critics – myself included sometimes, but without them, this woman would have been bled dry by this relative, her own daughter.

 

JL was born in 1938 and lives in her own home in Essex. JL has Alzheimer’s disease.

 On 8 October 2013 she executed a digital LPA for property and financial affairs and, as far as I am aware, this is the first occasion on which the court has considered a digital LPA in the context of an application to revoke the appointment of an attorney.

 

 The LPA was drawn up by JL’s daughter AS online and, perhaps not surprisingly, JL appointed AS to be her sole attorney. She did not receive any independent advice about the creation of the LPA, though AS claims that she fully explained the document to her mother before she signed it.

 

 A friend of the family witnessed JL’s signature and acted as the certificate provider. The function of the certificate provider is to certify that:

 

(a) the donor understands the purpose of the LPA and the scope of the authority conferred under it;

 

(b) no fraud or undue pressure is being used to induce the donor to create the LPA; and

 

(c) there is nothing else which would prevent the LPA from being created by the completion of the prescribed form.

 

Over a period of time, it became apparent that JL was living in squalor and not having her financial needs met – although she had capital funds to provide for her, she was not being given the money she needed.

 

(a) Essex County Council reported its concerns to the OPG on 24 April 2014.

 

(b) Copies of JL’s bank statements revealed that there had been a number of excessive and uncharacteristic withdrawals from her funds.

 

(c) From 18 January to 9 April 2014 there had been twenty-five cheque withdrawals ‘paid to cash’ totalling £4,290. These payments averaged £171 and were withdrawn every few days.

 

(d) Over the same period JL’s only capital asset other than her home had halved in value to £10,669 and, at the current level of expenditure, her funds would be entirely depleted within nine months.

 

(e) The investigator at the OPG spoke over the phone to JL’s social worker, Sharon Morris, who stated that a man, who had recently been released from prison, had offered JL £100 to perform a sexual act for him.

 

(f) JL had told Sharon Morris that her attorney kept her so short of money that she considered prostitution as the only way of resolving the problem.

 

(g) In particular, JL said she needed the money so that she could pay the train fare from Sheffield for her son to visit her (£100) and to compensate him for the overtime he would otherwise have earned but for the visit (£80).

 

(h) AS, on the other hand, claimed she gave her mother £600 a month spending money.

 

(i) JL was paying £32 a month for her daughter’s T-Mobile phone contract, but many other bills were left unpaid and she owed £946 to Npower.

 

 

The daughter objected to being removed as an Attorney and for Essex to be appointed in her stead. The Court heard evidence and had to apply the tests of the Mental Capacity Act.

 

 

I am, indeed, satisfied that AS has behaved in a way that contravenes her authority and is not in JL’s best interests.

 

(a) She admits that she failed to keep proper accounts and financial records.

 

(b) Her explanation for the dramatic increase in JL’s expenditure was “there is no point in her being the wealthiest woman in the graveyard.”

 

(c) She profited from her position by using her mother’s money to pay her own mobile phone bill.

 

(d) There is evidence that she placed JL under pressure regarding this matter.

 

As this had been a Lasting Power of Attorney set up online, with no independent person explaining things to JL (who had capacity at that time – or at least, one hopes so – part of the danger of doing it online is that she doesn’t necessarily meet with anyone independent to confirm that), it becomes even more important that the Attorney who signs the document saying that it has all been explained to JL actually does this proper job of explanation. Otherwise it looks like a snow job.

 

I shall consider these reasons in a little more detail. First, AS admits that she failed to keep proper records and accounts. At the hearing she said she did not know she had to keep accounts and that she had not read the declaration in Part C of the prescribed form of LPA, which she had signed. It says:

 

 

“I understand my role and responsibilities under this lasting power of attorney, in particular:

I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.”

 

This admission is damning enough, but it gives rise to additional concern about the circumstances in which the LPA was created. If AS failed to read Part C, it makes it hard to believe her assertion that she had carefully read and explained to her mother the contents of Part A of the LPA – the part that the donor is required to complete.

 

 

AS’s retort that there was no point in her mother being the wealthiest woman in the graveyard is trite and misses the point. JL is far from being a wealthy woman and what funds she has should be applied for her benefit and in her best interests. She lives in squalor. When Social Services initially visited her on 1 July 2013 they observed animal faeces on the carpets from her dog and three cats. Her food had a layer of mould on it, but she was nevertheless reheating and eating it, and she had neither washed nor changed her clothes for six months.

 

[But hey, as long as the daughter's mobile phone bill is getting paid, everything is fine, right?]

 

Finally, as regards AS exerting pressure on JL, in her witness statement dated 26 September 2014 JL’s social worker, Sharon Morris, said:

 

 

“JL has discussed concerns regarding her relationship with her daughter AS with me on several occasions. JL can get very anxious when at times she cannot contact her for days. She does not answer her calls or the door when she visits. On the occasions she does meet with her daughter she reports that she shouts at her and pressurises her for money.”

 

I have to say that from my own observation of AS’s demeanour at the hearing that she came over as forceful and persistent and I imagine it would be difficult for a lonely, vulnerable woman with a cognitive impairment to resist complying with her wishes and demands.

 

 

The Court, quite rightly, removed AS as an Attorney. It is always a shame when this sort of thing happens, because the best people to look after a vulnerable person and manage their finances are relatives, where possible. But it is vital that those relatives realise that their responsibility is to spend JL’s money on her, and meeting her needs, and not using their vulnerable mother as a personal piggy bank.

 

I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL’s best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her.

 

 

With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL’s best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds.

 

Allegations of abuse against a father

Reported cases in private law where serious allegations of sexual harm are made against a father against a backdrop of separation and acrimony and disputes over the children are becoming more common. They are always extremely difficult. And these days, more and more, they may begin as private law cases but end up as public law cases.

 

The Court is generally left with four choices when faced with allegations of this kind

 

  1. The allegations against father are true, with all the consequences that that will mean for his relationship with the children
  2. The allegations are not true, but they were an honest mistake (with the hope that once the Court has given that judgment, everyone can move on)
  3. The allegations are not true, and they were made with the honest belief of the mother that they were true (again, with the same hope as above)
  4. The allegations have been fabricated by the mother with the intention of hurting father and frustrating his contact.

 

In this case, Hampshire County Council v Mother and Others 2014, there are two linked judgments.

 

The first http://www.bailii.org/ew/cases/EWCC/Fam/2013/B19.html was in December 2013 and was the finding of fact judgment.

 

That concluded that the allegations against father were not true, and that mother had played a part in bringing them about

 

My finding is that while Mother has indeed been the victim of her psychological problems, she has also consciously created some of the allegations here. I have been told that the Guardian is also of the view that there is a combined explanation for the allegations. The timing between contact re-starting and the next allegation being made is too much of a co-incidence for there not to have been some volition on her part. There are also examples of Mother embellishing stories as – the addition of the alleged threat of self harm she over-heard Child make to a nurse or doctor on the 31st August when she was questioned about it by MG is a good example.

 

 

It must be understood by Mother that her allegations that Father has sexually abused Child have been found to be totally unfounded, created by her both unconsciously and consciously. She must also understand that what she has done has been hugely emotionally damaging to Child, who will take a long time to recover her own psychological equilibrium, even with her Father’s help. She must never allow herself to make such allegations again, or she will risk never seeing her daughter.

 

 

An interim care order had been made in October 2013, placing the girl in foster care.

 

 

The second judgment http://www.bailii.org/ew/cases/EWFC/OJ/2014/B126.html

 

relates to the final decisions in the case, mother having been given six months of time to reflect on the findings and move forward.

 

Sadly, she had not been able to do so. That led to the child being placed with the father, that mother would have seven contacts per year and that there was a s91(14) order meaning that mother would be unable to make any further applications to Court without leave.

 

(The Court note in that analysis that it is not lawful to attach conditions to a s91(14) order but did agree that it would help to tell mother the sort of changes that she would need to be making for such leave to be granted)

 

One of the difficult features in this case was that mother’s position if anything had hardened in that intervening period, probably not helped by the fact that her therapist was supportive of her belief that father had abused the child, and so were her family.

 

(MG was an expert in the case, who had made some recommendations as to the best way of moving mother forward after the finding of fact judgment)

 

 

MG has been cross examined as to her findings and conclusions in this hearing. She said that since the last hearing it is a great pity that her recommendations as to treatment for Mother have not been taken up. She had recommended that Mother be seen by an independent psychiatrist to formulate a treatment plan to reduce her anxieties and her medication. She said that therapy should be found for Mother in conjunction with the psychiatrist. Instead Mother has been discharged by her treating psychiatrist in the NHS mental health service with a diagnosis of “no serious mental illness,” which MG said is regular practice these days by treating mental health professionals. And instead of seeing an independent psychiatrist, she has found a psychotherapist who she consults by webcam, and who has accepted without question everything that Mother has told her about her allegations of sexual abuse against Father. MG said that it is a great pity that this treatment is not evidence based and does not challenge her at all, so the net effect is that Mother is no further forward with any form of treatment, but appears to be reinforcing her views by getting professionals on-side.

 

Mother’s actions since the December hearing, it should be recorded, have been to try and shore up her position that the allegations against Father were true. She has repeated them fully to her psychotherapist, who wrote a lengthy letter to the court on her behalf. A mental health professional contacted Children’s Services on her behalf in connection with the allegations. Her vicar has become involved in the case, getting up a petition with over 100 signatures from churchgoers for the return of Child to Mother’s care, and attending contact uninvited. And finally Mother has re-asserted the truth of the allegations in a document written by her for a contact planning meeting in January 2014 after a difficult contact session.

 

 

[The Court doesn’t seem to have picked up on the point that it is unlawful for mother or others to identify that her child is the subject of ongoing Court proceedings, which someone must have done in order to sign the petition]

 

 

These cases are all really hard. For a father, to be accused of sexually harming your child when you have not done it must be one of the worst things imaginable and if the Court decide having tested the evidence that you are innocent you think that this will be an end of the nightmare, but it isn’t. And looking at it from the mother’s perspective, either the allegations are true and the Judge has got it wrong (which is not right legally, but is a human reaction) or by that point your relationship with the father is so corrosive and damaged that you have convinced yourself that he IS a risk and yet nobody will listen to you.

 

 

Looking at it from a purely forensic and legal perspective, the only thing for a mother to do in this situation is to say that the allegations were made in good faith and to protect the child, but that she now accepts the judgment.

 

But human beings don’t make decisions based on pure forensic legal considerations but on emotions and feelings.

 

I am reminded of the Blackadder lines

 

It is so often the way, sir, too late one thinks of what one should have said.

Sir Thomas More, for instance, burned alive for refusing to recant his Catholicism, must have been kicking himself, as the flames licked higher, that it never occurred to him to say, “I recant my Catholicism”

 

 

In a case like Hampshire, where mother is given the chance to recant her allegations and not only doesn’t do so, but proclaims them anew, it is not a very difficult decision for a Court to make.

 

On the ground, for a family and a child, they are some of the hardest things of all.

 

The mother and her side of the family are never going to accept that the child should be with father, they are always going to feel that mother has been punished for speaking out and saying the truth and that the child is in the most dangerous placement possible. What does that do to their relationship with the child? What are those contact sessions like? How will difficult questions raised by the child be answered?

 

I’ve got very little sympathy for mothers who perniciously fabricate such allegations about fathers (the option 4 in my original list), but what about those mothers where the allegations were made in good faith and they can’t move on from “it is my child, I KNOW in my heart that this really happened”?  (options 2 and 3)

 

Legally and forensically it is easy – recant your Catholicism and accept the judgment. I can’t help but have some sympathy for mothers in that position though. What, they might say, if the Judge has got this wrong? People make mistakes – Courts get things wrong.

 

If you are in that position, how easy is it to just say “I give up, okay, it never happened”, when every fibre of your being says that it did?

 

What, they might say, if the Judge thinks that on the balance of probabilities, it is 55% likely that the allegations aren’t true. For the law, that proves it. But for me as a mother, what about that 45% chance? How could I, as a mother, be happy that there was a 45% chance that my child has been abused?

 

[None of that counts in legal and forensic terms – once the Judge has made a decision, you either accept it, or you successfully appeal it. The Court’s decision means that all of that doubt and uncertainty is removed and that what the Court say happened IS what happened]

 

We are hearing more and more from the Courts that it is not the job of the Court to fix people, to make them better, to solve their problems.

 

(for example T v S http://www.bailii.org/ew/cases/EWHC/Fam/2013/2521.html

 

The court simply cannot micro-manage this very difficult relationship. If it sought to do so it would simply disempower the parents and add to the stresses on the child. Despite the force and intensity of the father’s complaints, he has said nothing in my judgment which, whether looked at individually or collectively, justifies the drastic step, so shortly after Mr. Justice Hedley refused, entirely appropriately as it seems to me, to vary the arrangements, to throw all that back into the melting pot and to embark upon the kind of investigation preparatory to the kind of fundamental change in the arrangements which it is the father’s ambition to achieve.

 

And Re K http://www.bailii.org/ew/cases/EWCA/Civ/2014/1195.html

 

“In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot – its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be ‘allocated’ to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court’s decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies.”     )

 

 

And to an extent, that is right. The Court don’t have a magic wand to make things better, they don’t have resources to fix people.

 

Indupitably, however, there are people who come out of Court proceedings substantially more broken than when they went in. I don’t have an answer, and I suspect we’re less likely to get one that we were pre Austerity.

 

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