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Category Archives: case law

Reversing the burden of proof – injury to a child

 

There have been a few reported cases where the higher Courts have said or hinted that a fairly traditional medical formulation “that in the absence of the parent providing a benign explanation, this injury was caused deliberately” is a reversal of the burden of proof and not acceptable in law.

 

The decision of the Court of Appeal in Re M (a Child) 2012 comes out very badly and explicitly says it, and the decision is exactly on this point, and for that reason I think it is the best authority for the principle.

 

[In fact, looking at this again, I think this is the exact very same case that established the point that I had come across in summaries, and we have waited 2 years for the actual transcript of judgment. That’s pretty shocking, given the importance of it as a principle for other cases. I had momentarily forgotten that we were STILL waiting for this judgment, because the original summaries came out 2 years ago.   This might be a big deal, because if it had been reported earlier other families might have made use of the principle]

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1580.html

 

The appeal begins with Ward LJ identifying that as ever, there was not an order produced following the finding of fact which was strictly capable of being appealed

 

 

As is so typical with fact-finding matters coming from the Family Division, no order has been drawn which is strictly capable of being appealed, because nobody bothers to formulate preliminary issues which the judge can then decide and encapsulate in an order which is the proper subject of the appeal. Instead, what frequently happens, and has happened, the order simply recites:

 

 

“And upon HHJ Hammerton handing down a written judgment following a fact finding hearing, in which the court found that the child had suffered non-accidental injuries and that the parents are both possible perpetrators of those injuries

The Court Orders…”

 

And then there were a series of directions being made. But I have said that before; nobody takes any notice. The rantings of an old man are simply passing into the ether

 

 

People do always seem to forget this, and Ward LJ is right to remind practitioners. What is appealed is the ORDER, not the judgment. The thrust and focus of the appeal might well be on why the analysis of the judgment shows that the Judge was wrong to make that order (or in these post Re B-S days does not show sufficiently clearly why the Judge was RIGHT to make the order, which itself is sufficient to make the order wrong)

 

There ought to be a draft order produced to the Judge (ideally one prepared by the LA at the outset of the hearing, but probably adjusted post judgment to reflect the findings that were made) setting out each of the discrete issues on which the Court was asked to make a determination and the determination that was reached. The findings need to be on the face of an order   (or more accurately in our new standard template order regime somewhere on page 6 of the order) not just tucked away in a judgment.

 

 

Anyway, on to the real matter. This was a case involving a total of nine bruises to a child, the child being around eight weeks old at the time.

 

Ward LJ summarises the basic legal principles in the crispest way I have ever seen it done. He should patent this.

 

I have no intention of elaborating on the law, because the essential propositions are self-evident. The burden of proof lies on the local authority to prove the case against the parents. The standard of proof is the balance of probabilities, and that means the same in this kind of case as in every other, a simply balance of probability. Suspicion is not proof, and the burden must always remain on the local authority and should not be reversed. Whilst it is necessary to establish that the injuries are, as has been described in this case, non-accidental, it is not necessary to identify the perpetrator, and it is permissible for the court to say that those who are within the pool of possible perpetrators remain possible perpetrators, and the local authority must then manage the case as best it can in the light of those findings.

 

 

The Court of Appeal summarise the medical evidence given by two experts in the case

 

 

  1. The injuries to the left forearm were really divided into three. There was, firstly, the circumferential mark around nearly all of the forearm, with two small, almost parallel marks perpendicular to it. Dr Essex said of that mark in his written report that it was:

 

 

“…consistent with some restriction or pressure effect from something causing pressure on the skin of the forearm. I cannot explain the two additional marks perpendicular to the circumferential mark. The linear and angular nature of the marks on the forearm looks like the effect of something ‘mechanical’. In other words, an object having pressed on the skin.” (His emphasis)

 

In an addendum to the report, he spoke of the child coming into contact with a firm/hard inanimate object. I interpose by stating the obvious: these are not marks consistent with finger pressure or the use of the hand, save perhaps for holding the object pressed against the child’s left arm.

 

 

  1. The second category of injury to the left forearm was the red, circular bruise below the elbow. Dr Essex did not know how that was caused. The third injury was the bruise to the left wrist, which again Dr Essex could not explain, save that he observed it was a very unusual place for a baby of that age to get a bruise. The judge recorded in paragraph 34 that Dr Rouse agreed with Dr Essex about the mark on the left forearm. He, too, was unable to explain the marks. He agreed they seemed to have some mechanical cause. Dr Rouse stressed these were an imprint type of injury. He agreed it was impossible to say how the bruise below the elbow had been caused. He agreed the bruise on the inside of the left wrist was a very unusual place for a bruise given that it is a naturally protected area, and that the underlying tissues are tightly bound down with little space for a bruise to develop. The judge noted that there was agreement in respect of the linear bruises to the right arm, and Dr Rouse emphasised that, where the general impact is with a body, a round or oval-shaped bruise will develop; where there is a pronounced V-shape, it implies something with an angled edge which must be mechanical, in other words man-made. In respect of the bruise on the inside of the left thigh, both experts agreed this was an unusual case for a bruise. Dr Rouse regarded it as a different type of bruise to the ones on the arm; he described it as being a more diffuse injury. He described it as having a pronounced rhomboidal outline; the straight line suggested more of an impact which is associated with a traditional bruise.

 

 10. Various explanations were proffered for those bruises, and the judge went through each and every one of them. First, it was suggested that M’s arms may have been trapped under the straps of the baby seat; for reasons given, that was rejected. It was suggested that swaddling may have been responsible; that, too, did not find favour. Although Dr Rouse felt that possibly the bars of the cot may have been responsible, Dr Essex did not. Both dismissed the baby bath as the object which could have caused the injury; it had been suggested that the baby had been thrashing around in the bath, which was highly unlikely. There was a suggestion that perhaps the family dog had jumped on poor little M, but nothing in the injuries was compatible with that. The judge’s conclusion was that, insofar as Dr Essex and Dr Rouse held different views, she preferred the evidence of Dr Essex. The possibility of some cotton thread explaining the injury around the child’s arm was raised; Dr Essex thought it unlikely and he did not agree about the cot being a possible instrument for harm.

 

 

11 So the judge came to the conclusion, which she expressed in paragraph 51 in these terms:

 

 

“Apart from the two issues identified above [that is the cotton thread and the cot], there was a consensus between the experts. In their view the injuries were unexplained. Dr Rouse described the injuries as being unusual for non-accidental injury [but] he confirmed to counsel for the guardian that they were unusual for accidental injuries.”

 

The judge recited Dr Essex’s view when asked for his overall conclusion. She said at paragraph 56:

 

 

“He said he reached this having looked at ‘all reasonable and unreasonable possibilities and explanations. It was against the overall picture, the age of the child, the number of injuries and the site of the injuries. Putting all these together he could not find a benign explanation.’ I found that his opinion was a considered opinion. I reject the submission that his conclusion was predicated on the fact that if there was no explanation, the injury must be non accidental.

 

57. The suggestion that Dr Essex has overstepped the line which demarcates the field of responsibility of the expert from that of the court is not in my judgment made out. Dr Essex was asked in specific terms whether the marks shown in the photographs are likely to be accidental or non accidental. He provided an answer that in his professional opinion they were non accidental.

58. I did not form the impression that there was a great difference between the evidence of the experts, it seems to me there was broad consensus. I am not persuaded that the evidence of Dr Essex was in any way unreliable, to the contrary I found his evidence compelling.”

 

 

 

[The underlining here is mine for emphasis – you will note that the trial Judge specifically considered whether Dr Essex had reversed the burden of proof in his evidence and concluded that he had not. This had obviously been an argument run by parents counsel at the time, and the trap had been set ]

 

 

Having then heard the parents evidence, the Judge reached the following conclusions about the injuries (again, underlining is mine for emphasis)

 

“86. Weighing all the evidence in the balance I return to the fact that the medical evidence is clear, the distribution and number of bruises could not have been caused by the baby himself and there was no medical explanation. It was submitted that unless the doctors can provide an explanation of the precise mechanism of injury, it is impermissible to infer that the injury must have been non accidental. I find that statement to be too sweeping. The doctors are agreed that pressure has been applied to the skin which has been sufficient to cause bruising. Whilst these are described by Dr Rouse as being towards the lower end of the scale for the amount of force used, the marks are to be distinguished from the superficial marks caused by, for example, the elasticated edge of a sock. The marks were described as vivid red; they remained clearly visible for 3-4 days. Further and importantly, the marks were unusual in their number, in their distribution and position.

 

87. In the face of medical evidence where there is no substantive disagreement between the experts, this is a case where I am satisfied that the injuries sustained by M were non accidental. I am not persuaded by the evidence of the parents. The impression I gained was that I was not being told the entire truth as to the events of Friday evening and Saturday morning.

 88. In terms of identifying the perpetrator I am unable to do so. There is evidence that the mother was the principal carer for M. She did the lion’s share of the tasks of feeding and changing and clearly took the lead in decision making. The father did some of the tasks, he would make up bottles and comfort M while bottles were being made up. He was responsible for swaddling. It was clearly the mother’s decision to delay taking M to the doctor until the Monday, having said that it was she who was proactive in asking questions and significantly providing photographs which showed the bruises as being more serious than their presentation on Monday. During the material time frame when the injury must have been sustained, both parents were present in the home. Save for the period during Saturday morning when M was downstairs in his baby chair, he was in the bedroom with his parents. The father emphasised there were no carpets upstairs and accordingly it was possible to hear what was happening downstairs. This is a case where if one parent injured M the other parent would be aware. Both deny there was any incident. In the circumstances both must remain in the pool of potential perpetrators.”

 

 

This is what the Court of Appeal had to say about the Judge’s reasoning (Ms Scriven QC was representing the Local Authority)

 

 

14…The harm must be attributable to the care given to the child not being what it would be reasonable to expect a parent to him. That is the language of section 31 of the Children Act. So Ms Scriven mounts a very persuasive argument that the constellation of injury, and site of the injury, the mechanism for the injury, and the narrow timeframe of perhaps up to 18 hours or less during which these injuries were inflicted, all lead ineluctably to the conclusion that this was non-accidental injury.

 

 

15. The elements I have outlined do give establish a case to answer that the care given to this baby was not reasonable care, but outside the ordinary course of events, and that justified the inference that the threshold had been crossed unless the parents could discharge the evidential burden which would have shifted to them. It was a persuasive argument, but the difficulty I find in accepting it is that that was not the case the court was required to consider. The judge was not considering, as might have been the case, whether there was some general failure to provide proper care. She was being invited to find, and she did find, that these injuries were deliberately inflicted by one or other, or both, of the parents.

 

 

16. On the medical evidence, at least some of those marks were imprint or pressure marks made by some inanimate object coming into contact with the child’s arm. But what object, or even what sort of object, remains unexplained. Also unexplained is how that pressure was exerted. Was it a hard jab, causing the momentary infliction of pain, which might have caused the baby to cry, or was it more sustained and consistent pressure, which may not have been as painful to M? The truth, as acknowledged by the experts, is that we simply do not know. This is not a case like a child with a broken leg, or a shaken baby, or a cigarette burn, or finger pressure marks. We simply do not know what happened to M and we do not know how it happened. The conclusion that it must have been non-accidental injury was formulated by Dr Essex, and it was that which was accepted by the judge and formed the basis of her judgment. Dr Essex put his case, it seems to me, at its best under cross-examination of Miss Topping for the guardian, and this exchange seems to me to encapsulate what this case is about, at page 25 of the transcript of his evidence:

 

 

“Question: You conclude, Dr Essex, that in the absence of any plausible explanation for the injuries you see on [M] you would have to consider them to be non accidental. You say, [and this is quoting from his addendum report] ‘As no satisfactory explanation has been put forward on the balance of probabilities I must consider these injuries non-accidental’, at E28.

Answer: Yes. I am afraid, having looked at the possibilities, at the explanations, and at the reasonable possibilities, and even the unreasonable possibilities, I cannot find a satisfactory explanation, your Honour.

Question: Are you fortified in that by the fact that there were so many suddenly presenting bruises?

Answer: Well, it is always the overall picture: the age of the child, the number of injuries, the site of the injuries, and so on, and the developmental stage of the child. Putting all those pieces together, I do not find a satisfactory benign explanation.”

 

That, too, was the effect of the judge’s view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury.

 

 

Poor Miss Topping, who was present at the Court of Appeal hearing must have been mortified that what seemed at the time to be solid sound questions ended up destroying the case that she had been building up. I feel for her, there can be no worse moment for an advocate than that.

 

 

With that paragraph ringing in people’s ears, Ward LJ went on to put the nail into the coffin

17. I fear therefore that in this case, despite her careful analysis of the evidence, the judge did fall into that error. The judgment on the lack of protection by the parties is so short of reasoning and in fact, with respect to her, here so difficult to understand that the local authority do not seek to uphold it. We do not know whether the child cried, whether loudly and at length, or whether this was a sustained injury which caused discomfort not noticeable to anybody else. So that part of the finding is, as Ms Morgan submitted, flawed, but in finding as she did that this was a non-accidental injury, I fear the judge has not properly respected the burden which is on the local authority to demonstrate that these parents had deliberately gone about in some unknown way, with some unknown implement, to inflict these injuries on the baby

 

 

This is not, bear in mind, a case being resubmitted for a re-hearing, but the findings just being overturned. That would effectively be the end of the case.

 

It is for the Local Authority to prove, on the balance of probabilities, that it is more likely than not that the parent injured the child and how; and that evidential burden is not satisfied by the absence of evidence of a benign explanation.

 

 

 

The Ashya King wardship judgment

We have all been eagerly awaiting this, and it is now out.

 

This is the judgment given by Mr Justice Baker in the wardship proceedings, setting out the reasons why on Friday of last week a solution was reached that Ashya would be able to receive proton-beam therapy treatment in Prague. Ashya is no longer a ward of Court, and all decisions about him will be made by his parents.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2964.html

 

It is not one of those rambling long judgment that would be incomprehensible to non lawyers – it runs about four pages and most of it is in plain English. I don’t often suggest that normal human beings read a judgment, but in this case, I would. It is a very good piece of work by Baker J  (not surprisingly, he writes a good judgment)

 

[It doesn't answer my law geek question of whether the parents received free legal representation - I hope that they did. They were certainly represented, and the firm they used does do legal aid work. And there's no debate at the end about costs, so I hope they got legal aid. One suspects that even the Legal Aid Agency had enough common sense to not want to be seen to be saying that the family should spend their treatment fund on lawyers]

The judgment focuses rather more on treatment and the future than a forensic delve into the past and what has gone wrong (understandably, because a solution had been arrived at that would please everyone, and also because if there is to be any suing going on about what happened it is likely to focus on the issue of the European arrest warrant and the arrest and detention of the parents, which is outside of the scope of the family Court)

 

What the Judge does say about the application for wardship itself is this :-

 

32 When Mr and Mrs King took Ashya from hospital on 28th August, the medical staff were understandably very concerned that the boy would suffer significant harm by being removed from the specialist care they were providing. When the local authority was informed about what had happened, and that it was believed that the parents had left the country, the social workers understandably concluded that there were reasonable grounds for believing that Ashya was at risk of suffering significant harm by being driven across Europe without medical assistance at a time when he urgently required post-operative therapy. I therefore conclude that the local authority acted entirely correctly in applying to the High Court, and further that Judge Arthur was right, on the evidence before him, to make Ashya a ward of court. My comments are confined to the matters within the family jurisdiction. I make no comment as to whether or not it was appropriate to seek a European Arrest Warrant. I merely observe that one consequence of this course was that Ashya was separated from his parents and left alone for several days in the Spanish hospital. As I observed at the hearing on 2nd September, whatever the rights and wrongs of his parents’ actions, it was not in Ashya’s best interests to be separated from them in such circumstances.

  1. The steps taken by the local authority and Judge Arthur on 29th August were entirely justified on the evidence then available. As at that date, there were reasonable grounds for believing that Ashya was at risk of suffering significant harm. A week later, the picture had changed and the court was faced with a completely different decision.

 

 

I’m sure that there will be many who think otherwise, but this judgment is very helpful in setting out the facts of the case when there has been so much speculation.

 

I am pleased that Ashya is back with his parents and that he is receiving treatment, and whatever else we might feel about this case, I’m sure that all of us wish him and his parents all the very best for the future.

 

 

 

Court deciding of its own motion to remove a child into care

 

I’ve been writing more or less since I started this blog about my concerns regarding the power in section 37 of the Children Act 1989 for a Court to place a child in foster care of their own motion. (for non-lawyers, ‘of the Court’s own motion’ means that the Judge decides to do this himself or herself, rather than there being a formal application by the Local Authority.   There has been a lot of press attention on one young boy over the last week, but the Court of Appeal’s decision in Re K may have a considerable impact on a number of families. There’s a story here, if the Press care to tell it.

 

That power exists, that is beyond doubt. It is set out in section 37 of the Children Act 1989 that where a Court is dealing with a private law case (i.e two parents arguing about where a child should live or how much time the child should spend with either) they can direct that the Local Authority (social services) carry out an investigation and the Court can make an Interim Care Order for up to 8 weeks whilst waiting for that report.

 

Why does that matter?

 

Well, an Interim Care Order allows the child to be taken away from a parent and placed with another parent, or a relative or in care.

 

And why does it matter that the Court do it of its own motion rather than with the Local Authority applying?

 

Well, here are the protections you get if you are a parent, when the Local Authority apply for an Interim Care Order :-

 

(a) You get a period of notice – three days

(b) You get to see the Local Authority evidence – why should there be an Interim Care Order,

(c) Sometimes more importantly,what do they plan to do with it – the interim care plan

(d) You get FREE legal advice and representation

(e) The Court has to find that there are reasonable grounds to believe that the child has been harmed or would be likely to be harmed (the threshold criteria) and the reasons for this have to be set out in a 2 page document, that the parent can challenged

(f) There will be an independent Guardian, appointed to advise the Court on what is best for the child. They may challenge the social work view and have an alternative plan to put forward

(g) Finally and most importantly, the person who is asking for the application is NOT THE SAME PERSON as the one deciding whether to make the order.

 

With an Interim Care Order made under section 37 of the Children Act, these things do not necessarily happen. It might be that the parents have lawyers, but these days they probably don’t.  There might be a Guardian (but as we’re about to see, the wrong type of Guardian can be worse than not having one at all)

 

Re K (Children) 2014

 

This case, just decided in the Court of Appeal, doesn’t set out all of these concerns, but it is dealing with a case in which the making of Interim Care Orders under section 37 of the Act went badly wrong.

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

 

I will put the killer line in first, because I don’t want this point to get lost

 

33. The judge had in her mind from the beginning of the hearing the jurisdiction of the family court to make an interim care order under section 38(1) CA 1989 where a section 37 report has been directed. The procedural protections of notice and an opportunity to be heard apply to a jurisdiction that is available to the court of its own motion just as much as they do to a jurisdiction invoked on a party’s application.

 

That is a big deal – the Court of Appeal have never said that before. Within the last couple of years, the Court of Appeal take on ICOs made under s37 has included:-

 

If the Local Authority report says no need for a further order, the Court can just tell them to write another one, and another one, and keep making Interim Care Orders until the Local Authority writes a report that the Judge agrees with

http://suesspiciousminds.com/2012/11/30/it-is-lawful-to-make-icos-under-repeated-s37-i-say-it-is-lawful-to-make-icos/

 

And that it was okay for the Local Authority to turn up at Court, pop in to see the Judge on their own and suggest this route and for the Judge to make an Interim Care Order under s37 even though the mother and her lawyer were AT Court and knew nothing about it

http://suesspiciousminds.com/2013/03/14/ex-parte-removal-by-the-back-door/

 

The Court of Appeal in this case also added that the law on removal is the same under s37 as when the Local Authority apply for it (again, the Court of Appeal have been weak on this in recent years)

 

35. The tests to be applied where a removal into public care is being considered by this route are: a) whether the court ‘is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2)’ (the interim threshold as set out in section 38(2) CA 1989); b) whether the court is satisfied that the child’s safety demands immediate separation (see the authorities reviewed in Re L-A (Care: Chronic neglect) [2010] 1 FLR 80 CA); c) whether the court is satisfied that removal is in the best interests of the child (the welfare analysis required by sections 1 and 1(3) CA 1989; and d) having regard to a comparative welfare analysis of the options, whether the court is satisfied that removal is a proportionate interference with the child’s and other relevant persons’ article 8 ECHR rights

36.The interim threshold was satisfied by the determination made by the Recorder in his May judgment but that was not enough in itself to demonstrate an application of the other tests. The safety question described by Thorpe LJ in Re L-A was neither asked nor answered. It could not be because of the poor quality of the evidence before the court. In the absence of quality evidence on the point, not only was the safety issue not identified with sufficient clarity or particularity, but of necessity there could be no analysis of the evidence relating to it in order to conclude that a removal was justified.
 

37. Re L-A is the domestic legal test for the justification of removal that takes note of the Strasbourg jurisprudence i.e. the interference of the state in the article 8 rights of those involved in circumstances where there is an issue of safety. In order to identify the nature and extent of an alleged risk to the physical or emotional (psychological) safety of a child the court needs evidence relating to the prima facie facts. As has been explained by the President in Re G (Interim Care Order) [2011] 2 FLR 955, it is also necessary for the court to undertake a broad proportionality evaluation of the comparative welfare analysis of the options for each of the boys on the facts of the case to cross check whether a ‘more proportionate’ option than separation is available. That did not happen, but in fairness it could not happen, because those options were not identified and analysed in the evidence. The absence of this reasoning is fatal to the decision made in respect of A in this case.

 

So, yes, I think this is long, long overdue. If I were for a parent in private law proceedings and got a sniff of the Judge contemplating the atom-bomb answer of “If you two can’t sort it out, maybe the child should be put in care” you are going to want this authority to hand, and you are going to want to argue for three days notice.

 

Back to Re K

 

There were two children, one nearly 15 and one aged 12. The private law proceedings, as so often happens, had been emotionally fraught and acriminious. It was one of those cases where the children were saying that they didn’t want to see their father and there were doubts about whether that was a genuine belief or one instilled in them by their mother. The original Judge heard what was no doubt a very difficult case and decided to separate the children, one going to father, one going into care under an Interim Care Order made under s37 of the Act. The children had never been separated before.

 

No doubt because there was no agreement about how the removal and separation was to occur, a recovery order had to be made in accordance with section 34 of the Family Law Act 1986 and the removal happened late at night with the police in attendance. The circumstances were distressing to all involved, including at least one professional. B was so distressed that he evacuated his bladder and had to change his clothes. The removal was described by mother’s representatives as ‘violent’.

 

[This was not the first time, and sadly probably will not be the last time, that removal of children from a parent following a private law hearing has gone badly wrong]

The Court of Appeal upheld the appeal and decided that the Judge’s decision had been wrong. They were sympathetic as to how this had happened – the pressure of time to make a decision had caused everyone to rush into a decision without really taking everything into account that needed to be dealt with. It is a salutary lesson and the Court of Appeal treat it as such, that sometimes Judges need to step back from the time limits and pressures and say “This needs more time to consider”

The decision taken by the judge was an exercise by her of the ultimate protective functions that are available to the family court when it is exercising its private law children jurisdiction. Those functions have rightly been the subject of anxious and rigorous scrutiny in this court but it should not be forgotten that this decision, like others that have to be taken every day in the family court, was made in the context of asserted urgency of the most immediate nature relating to the safety of the boys concerned, poor quality evidence and little or no time to reflect upon the judgment that was to be made. Although, as I shall describe, this court allowed the appeal in part and set aside the orders made, we did so without criticism of anyone. If there is any lesson to be learned by everyone involved, it is that a judge has to give him or herself time regardless of what anyone else wants that judge to do. I would suggest that the decision that was made in this case would not have been made in the way that it was had time been taken to reflect on the history, the implications for the boys, the options available and the patent need for further and better evidence.
 

This is one of those family cases that a family court judge instinctively knows will cause harm to the children involved whatever decision is made. With that in mind, the analysis that has to be undertaken must bring to bear an acute focus on the balance of welfare factors given the facts of the case. The children are highly enmeshed in their parents’ conflict and the order that Judge Marshall came to have to re-consider was expressly made with the words in mind of Wilson J. (as he then was) in Re M (Contact: Welfare Test) [1995] 1 FLR 274:
 

“Whether the fundamental emotional need of every child to have an enduring relationship with both his parents (s 1(3)(b) of the CA 1989) is outweighed by the depth of harm, which, in the light inter alia of his wishes and feelings (s 1(3)(a)), this child would be at risk of suffering (s 1(3)(e)) by virtue of a contact order.”
An enduring solution to the problem that exists in a case like this depends upon a comprehensive welfare analysis derived out of specialist case management which identifies the problem with clarity, a well informed judicial strategy based on good practice and good quality evidence and a measure of good fortune. The building blocks for such a solution are rarely available in the context of an urgent safety enquiry i.e. in the heat of conflict and, as will appear from the circumstances of this case, it is not a dereliction of duty to stand back and take time to consider whether the building blocks exist. In this case, they did not.

 

As hinted earlier, the situation was compounded because being a private law case, the CAFCASS officer involved was very familiar with private law cases but had little or no experience in public law cases (i.e children being taken into care).  They also had an expert who proposed a strategy, but had no suggestions as to what to try when that strategy went wrong. There had been no Plan B

 

It might have been thought that the solution to the problem that had occurred would have been within the skill and expertise of the guardian and the expert who had recommended the strategy to date: sadly, it was not. As I have described, the expert had written to the court and the parties some time before the summer placement had broken down to say that the circumstances were beyond anything with which his clinical guidance could assist. That was surprising but in fairness there was also the issue of trust that had arisen because of the dual function that the expert had been expected to perform. The result was that the court lost the expert that it had previously decided was necessary. To add to that unfortunate circumstance, the guardian conceded during questions put by this court that she had no public law experience and that the good practice, research based options and/or evidential materials which should be the meat and drink of any public law Cafcass practitioner were not part of her skill and expertise.
 

The consequence has been, as she informed this court, that she has asked the family court for her functions to be transferred to another more experienced public law guardian i.e., as I understand it, an application for the termination of her appointment and her substitution by another guardian will be made before the next hearing. With the benefit of hindsight, the children’s guardian should have asked Cafcass management for assistance and that should of course have been disclosed to the court, leading to an application to the court to add another guardian (which is possible under the rules) or substitute guardians for the hearing before Judge Marshall.
 

It is not at all clear how much of this the judge knew. Some of it she could not have known because it was revealed to this court when it asked questions which had the benefit of hindsight. In any event, it would have needed a more detailed and nuanced hearing to establish that which is now known or identified as respects the problem to be solved.

 

The failure to properly plan was compounded because of course when the Judge makes their own decision to grant an Interim Care Order without an application, there is no interim care plan

 

38.It is almost an aside in this case to remark that even where the court has rightly decided to make an interim care order, it should as part of the process consider what in practice will happen to a child if the order is made i.e. the local authority’s proposals or their care plan if by then it exists. That is not the statutory obligation imposed on a family court by section 31(3A) CA 1989 because the requirements relating to a section 31A care plan do not by section 31A(5) apply to interim care orders. It is simply essential good practice to ascertain how the local authority that finds itself in this position is going to exercise its statutory responsibilities. That evidence is bound to be relevant to the welfare analysis and proportionality evaluation. I do not believe that in this case the divergence of professional view between the children’s guardian and the local authority social worker on the point was sufficiently investigated in evidence. It is perhaps sufficient to record that this court was told that if one includes respite, A has experienced three foster care placements already.
 

39. There were no formed proposals in this case because the local authority did not at the stage the order was made accept that an order should be made. This was not a case of a local authority being difficult. The only time available to the local authority to put together their proposals was the time during which the hearing was taking place where the local authority was not a party and its witness was not its decision maker. What was needed was more time for mature consideration. A plan, using that word in its non-technical sense, would of necessity have been skeletal and would probably not have extended beyond describing the means of recovery, the immediate placement into which A would go and the assessment or other planning process to decide what to do next. At the very least the court should have found time to give consideration to this question.

 

The fact that the Local Authority were present and were saying that there shouldn’t be an order ought to have given someone pause for thought. This course of action was always likely to go wrong.

 

The Court’s failure to consider the effect on the children of being separated from each other was also damning

 

I need not do more than state the obvious in a case of this nature. As young people who have experienced family courts, public care and relationship breakdown make very clear in, for example, the proceedings of the Young Peoples Board of the Family Justice Board, the separation of siblings can be one of the most traumatic elements of their experience, particularly where no provision is made for the sibling relationship to be maintained so as to safeguard their long term welfare into adulthood. Generalisations are dangerous, the intensity of sibling relationships can be very different and this court has not been taken to any of the research studies that consider this issue. However, it is sufficient to say that a sibling relationship is central to both the article 8 respect for family life which is engaged in a decision to make a public law order such as an interim care order and welfare, which by section 1 CA 1989 is the court’s paramount consideration when it ‘determines any question with respect to the upbringing of a child’. It will be a relevant factor in all or nearly all of the section 1(3) factors to which the court is required to have regard.
 

The absence of a value judgment soundly based in evidence about the effects on each of them of the separation of the boys was, in my judgment, almost as fundamental a flaw on the facts of this case as the failure to consider the safety issue and the proportionality of interference in relation to A. It went directly to the quality of the outcome of the court’s intervention for each of the boys.

 

The Judge met with the boys (in the proper way) but unfortunately her impression and observation of the boys leaked into her judgment  (Non-lawyers note, it is acceptable for a Judge to meet children for the purposes of explaining  who she is and what the Judge’s role is, and possibly for very very general chat, but not for the purpose of gaining evidence. We wait to see whether the Ministry of Justices proposal that children should routinely be able to meet Judges will change this, but that’s the current law)

 

The boys saw the judge but were told this was not an opportunity to discuss any issues in the case including their wishes and feelings. It is plain from the transcript of the discussion that they could not believe what they were hearing and the judge observed that ‘they were very concerned and very disappointed’. The judge in seeking to avoid a discussion about the evidence clearly felt unable to listen to them. She entered into a discussion about the inadvisability of the boys’ written communications that it is difficult to characterise as being other than an admonition. They boys left the process distressed and apparently even more convinced in their view that no-one was prepared to listen to them.
 

This case has not been about judges seeing young people. I shall return briefly to the wealth of material on that topic. The question which arose out of the discussion with the boys was whether, despite her best intentions, the judge inappropriately relied upon her impressions of the boys and what they said to her to come to conclusions in the case. Sadly, perhaps as an inevitable consequence of the charged emotions in this case, the judge made that error. There are a number of passages in her judgment where the problem is highlighted. I shall choose three:
 

“[26] The findings that I make on this evidence need to be considered in the context of the opportunity I had to meet with the boys this morning. The parties are aware that I felt that they are at the moment presenting as being rather out of control, not subject to parental influence or indeed able to set appropriate boundaries for themselves. I also formed the view that they had perhaps rather lost touch with reality in relation to what was going on and I do have a concern that they are rather immature and may somehow view this as some sort of fantasy adventure.
[…]
[24] […] My own experience this morning is that these children could exhibit considerable distress and yet were able to calm themselves very quickly and the word ‘histrionic’ was exactly the one which I would have used in relation to their behaviour that I observed.
[…]
[47] I was particularly struck by something that the Guardian said, which is that “it is almost like the children expect someone to put their arms around them and to say ‘do not do this anymore'”. Again that exactly resonated with my own assessment after seeing the children this morning. They are out of control. “
I need go no further than the recent judgment of this court in Re KP (A Child) [2014] EWCA Civ 554 for a comprehensive statement of the law that takes account of the Family Justice Council’s [FJC] April 2010 ‘Guidelines for Judges Meeting Children who are Subject to Family Proceedings’ [2010] 2 FLR 1872, the FJC’s Working Party December 2011 ‘Guidelines on Children Giving Evidence in Family Proceedings’ [2012] Fam Law 79 and the recent decision of the Supreme Court in the Matter of LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] 2 WLR 124. It remains an essential principle of the guidance and the relevant authorities that a meeting with a child is not for the purpose of gathering evidence. There is likewise an emphasis on the court hearing the voice of a child and of the court reminding itself that a child’s wishes and feelings may not be capable of being represented to the court by the adult parties. The court should ensure that the child’s access to justice is effective, whether that be through formal separate legal representation or the offices of a guardian, a family court advisor or a parent. Even where formal representation is appropriate there is a wide discretion in the court to determine the extent of a child’s participation.
 

I have regrettably come to the clear conclusion that the judge’s discussions with the boys strayed beyond reassurance, explanation and listening. It was certainly not the latter and to the extent that the boys needed it to be, the judge could and should have adopted the practice of listening, disclosing what was said and not placing reliance on it in her judgment. It is entirely possible to listen without gathering evidence. Where a process is intended to or as here inadvertently leads to evidence being gathered, including by very firm impressions and judicial assessments about the boys’ needs, wishes, feelings, behaviours and the risks which their own needs might occasion, then consideration should be given to whether that evidence should be gathered or considered by a suitable neutral person (an expert or a guardian who is not conflicted). In a case where the conflict that had arisen in this case does not exist, the children’s guardian could have been asked to sit in with the judge or read the transcript of the discussion to assess the material in context. A process needed to be agreed that permitted the evidence to be challenged without harming the boys themselves.
 

The judge’s reliance on her own assessments of the boys derived from her discussion with them was procedurally unfair and to the extent that her primary concern was that they were ‘out of control’ it dominated her thinking. That was a value judgment derived from evidence gathered by the judge in a discussion that was not intended for that purpose and which could not be effectively challenged by others.

 

 

Sadly, with a string of appeal points  being upheld, there was never any doubt that this appeal would succeed. I think the Court of Appeal were right to recognise that there are cases in which Judges are urged and feel that a decision has to be taken  (the politician’s syllogism – “Something must be done”  – “This is something” – “Therefore we must do this”   and that hard as it is to tell people that the decision needs more evidence, more analysis and more thought, with an unsatisfactory status quo remaining in the interim, sometimes that is the right thing for a Judge to do.   The Court of Appeal also remind the parents that the extent of their adult quarrel has been very damaging to their two children.

 

55.The judge in this case was not well served by the evidence or the problems created in part by the history of the case and the supposed urgency of the situation. The circumstances that dominated the hearing were not those which were the most important in the case and she was left to make a decision with poor quality material. Although articulate and intelligent, the father was a litigant in person who would have been simply unable without legal assistance to pursue the legal issues that have been pursued before this court. I question whether in the absence of legal representation he is able properly to put forward a sustainable position to the court.
56. The absence of a determination on the question of separate representation and the severe conflict that has arisen between the boys and their guardian and solicitor mean that I am persuaded that they have not been afforded access to justice. A separate representation application must be properly considered with evidence as soon as possible. I say to the boys who should be asked whether they wish to read this judgment, that the degree to which they may be harmed by being even further enmeshed in their parents’ conflict and inappropriately being involved in the decisions that have to be made by adults, will have to be balanced by the harm that is being done by their perception that no-one is listening to them. The conclusion of an application is by no means clear but whatever the conclusion is, it must provide for them to be listened to and to participate to an appropriate extent.
 

57.I return in conclusion to the boys’ parents. Mother should not and must not continue to believe that she can override the repeated conclusions of the court. It is, as the court has repeatedly said, desirable that the boys should have a close parental relationship with their father. The mother’s approach has contributed to the damage that has been caused to the boys’ emotional welfare. This cannot continue. The father must understand that the court cannot achieve the impossible. He has been responsible for at least some of the conflict that exists and the boys have suffered because of that.
 

58. The problem in this case is the maintenance of a meaningful relationship between the boys and their father. As is too frequently the case, the problem was caused by the parents of the children who are locked into a damaging, deteriorating spiral of conflict which desperately needs to be resolved. Without that resolution, whatever the court orders and no matter what steps are taken to enforce the court’s orders, harm will continue to be caused to the children. Cases of this kind are unhelpfully and generically referred to as ‘implacable hostility’ cases because of the parental conflict that exists. The label provides no insight into or assistance with the myriad of circumstances and features that such cases present.
 

59. Mothers, fathers or both are just as likely to be responsible for the precipitating circumstances in such a case which may be far removed from and are sometimes if not often, irrelevant to the conflict which endures. Such research as there is into available and workable solutions suggests either a) that there should be a careful analysis of the reasons for the conflict by fact finding to identify and assess risk to the children and sometimes to one or other of the adults and/or b) that if the reasons for the conflict do not present identifiable risks to the children or their carer and sometimes even if they do, a resolutions approach to the conflict can be adopted to try and resolve it by professional intervention such as individual or family therapy, external support from local authority children’s services or education and assistance from the various parenting programmes and activity directions that are now available under the CA 1989 or otherwise. Sometimes it is necessary to fundamentally alter a child’s arrangements by removing that child from the adverse influence and control of one parent by placing the child with the other parent and making a child arrangements order that has the effect of limiting the relationship with the harmful parent. In an extreme case (and I emphasise they are and should be rare) where the child is suffering significant harm or is likely to suffer significant harm, the court can intervene and exercise its ultimate protective function by removing the child from its parents and by placing the child into public care so that the local authority shares parental responsibility with the parents.
 

60. The removal of a child from the care of a parent whether by a transfer of living arrangements from one parent to another or by placing the child into public care is not and must never be a coercive or punitive measure. It is a protective step grounded in the best interest of the child concerned. In so far as there was a perception in this case that either the transfer of the conditional residence of the boys to their father by the Recorder or their subsequent removal from their mother was a punishment of the boys for their behaviour and for being unwilling to accept contact with their father, then that was inappropriate.
 

61, For a family to be facing the possibility of a wholesale change of living arrangements between parents because of the harm that one or both of the parents is causing is bad enough, for a family to face the removal of children into public care when they are both capable of caring for their children is, frankly, sad beyond measure. This is such a family. I say that without attributing any causative blame to one parent or the other in the sense of saying that one or other parent is responsible for the problem that now arises. That may or may not need to be determined by a fact finding exercise. This court does not yet know. Where the parents are to blame is that neither of them has facilitated a joint approach to the resolution of their conflict for the benefit of their children. It is time for this court to start saying that which is obvious. The family court is empowered to make decisions for parents who cannot make them for themselves but it cannot parent the children who are involved. When parents delegate their parental responsibility to the court to make a decision, that decision will be in the form of an order. The court cannot countenance its orders being ignored or flouted unless an appropriate and lawful agreement can otherwise be reached. That is not simply to preserve the authority of the court, it is to prevent continuing and worsening harm to the children concerned. Parents who come to court must do that which the court decides unless they agree they can do better and there is no court order that prevents that agreement.
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.
One can only sympathise with any family court judge who is faced with such a case. There are no right answers but inevitably there are many wrong answers. To make it worse, in this case, the proceedings had to be re-allocated because of judicial indisposition so that the new judge came to the case without the detailed knowledge of the previous ten years of litigation. The hearing was said to be urgent so that, no doubt, all other judicial work stopped and the case took priority. It was said to be a case that needed an immediate order. Hindsight is a wonderful thing and the nearest a first instance family judge can get to it is to take time for reflection.

 

 

 

What is wardship?

 

I suspect that there will be a few people, including some journalists, who want to understand what Wardship is today.  (If it is okay, I’m going to try not to say too much about Aysha King specifically today, because the case is now before the Court and hasn’t been decided – the case is now in the High Court, a wardship order has been applied for and the Judge Mr Justice Baker has adjourned the case until Monday, to give the parents time to get lawyers and put their own position before the Court. But I will touch on what these things might mean for the King family at various points)

 

What is wardship?

 

If you aren’t a family lawyer, the only time you’ll have come across someone being a Ward is Dick Grayson being Bruce Wayne’s ward. (which seemed to involve very little in the form of care and nurture and much more in the form of dressing up garishly and fighting armed goons)

Wardship is quite an old phenomenon whereby a High Court Judge makes decisions about what is best for a child and no significant steps can be taken in relation to that child without the Court approving it. They were very common pre Children Act 1989 and were at that stage a creation of common law (i.e the law about Wardship was invented and adapted by Judges, rather than having been a law invented by Parliament and set down in an Act)

 

In fact, pre Children Act 1989 they were often a route for children being taken away from parents and placed into the care of a Local Authority.  (there was a power in the Family Reform Act 1969 to let them do just that, so the power kicked around for twenty years)

 

{Edit – am grateful to David Burrows for advising me that the child becomes a ward of Court on issue of the application, though the Court can of course decide whether that continues once they hear the case}

 

What are the powers of Wardship?

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

 

The Practice Direction 12 D is quite helpful in explaining Wardship

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12d

1.1
It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –

(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

 

[You can see that (c) and (e) are pretty relevant to Aysha's case]

Let’s look at it this way – the Children Act is like Batman – there are all sorts of powers and tools and gadgets in there, but they are all prescribed and laid out. You know if you bump into Batman that he has fighting prowess and Batarangs and Shark Repellent. But he can’t suddenly fly or shoot laser beams from his eyes or lift up a train. There are limits to Batman’s capabilities and we know what they are.  The Inherent Jurisdiction is more like Superman –  he can do pretty much anything you can think of (including, if you rely on the movies, flying around the world backwards to turn back time…  LET IT GO, Suesspicious Minds, get over it)

 

And just like Superman, Inherent Jurisdiction has huge power, but it also has Kryptonite

 

What can’t be done under wardship?

 

When the Children Act 1989 was being devised, there were people who wanted to get rid of wardship altogether, but they were finally persuaded to keep it, but to put into the Children Act 1989 a limit to its power.

 

s100 Children Act 1989 Restrictions on use of wardship jurisdiction.

(1)Section 7 of the M1Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2)No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a)so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)so as to require a child to be accommodated by or on behalf of a local authority;

(c)so as to make a child who is the subject of a care order a ward of court; or

(d)for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3)No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4)The court may only grant leave if it is satisfied that—

(a)the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5)This subsection applies to any order—

(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).

 

 

English please?

 

(i) The Court can’t use wardship to put a child in the care of the Local Authority.  That is important because otherwise it would let Judges put children into care even where the threshold criteria for making Care Orders wasn’t met.    [For Aysha's case, that means that even if the Court make a wardship order, that does not amount to the child coming into care]

(ii) The Court can’t make a wardship order and then say “Local Authority, you make the decisions, I’ll leave it to your discretion”  – if there’s a wardship order, the High Court have to make the individual decisions

(iii) The Court can’t use wardship to do something that could be achieved by any other power in the Children Act   (i.e if you can get the job with Batman, Superman won’t be able to show up and help even if you prefer Superman)

 

Also, although this is not spoken of very often, all of the Human Rights Act provisions apply to wardship cases – so there is the article 6 right to fair trial and the article 8 right to private and family life which means that wardship can only be made if it is PROPORTIONATE and NECESSARY.    [There's an intriguing section of the Supreme Court judgment in Re B, where Lord Neuberger is talking about article 8's "necessary" test and says that for those purposes he adopts Lady Hale's formulation of "nothing else will do"   - that doesn't seem to have been picked up on generally yet to the extent that it was picked up on for Adoption cases]

 

Who can apply for wardship?

 

As you can see from the Kryptonite section, the Local Authority can apply, but ONLY if they can satisfy the Court that there is reasonable cause to believe that failure to apply would be likely to cause significant harm to the child. That is not an easy hurdle to cross – particularly since if that test applies they would have remedies under the Children Act 1989  (Emergency Protection Order, Interim Care Order, Recovery Order)

They can also be issued by a connected person, generally a parent  – and that’s usually where there’s a fear of abduction of the child to another country or an attempt to get the child returned.

Wardship applications can, and have, been issued by hospital Trusts seeking a declaration from the Court about medical treatment for a child, and that’s probably what has happened in Aysha’s case.

It is theoretically possible that the police could apply, but I’ve never come across such a case.  They might be reluctant to do so, since making the child a ward of Court means that the child can’t be interviewed without approval of the Court.

 

When does wardship run out?

 

It runs for as long as the Court want it to last, but the longest it can last is until the child is no longer a child. There aren’t any formal applications to discharge or revoke a Wardship order, but in practice, a person would seek a hearing before the High Court to persuade the High Court that wardship was no longer needed.

 

What about getting free legal advice?

 

This is a tricky question. If there’s an application for care proceedings, then the parent automatically gets what is called “non means, non merit” public funding  – what does that mean? Well, it means that a parent gets free legal advice and representation to fight the case even if they are a millionaire  (non means) or even if someone looking at the case would think that their argument is poor (non merits)

The next tier of public funding is those matters set out in Schedule 1 of LASPO http://www.legislation.gov.uk/ukpga/2012/10/schedule/1/enacted  which can get public funding if they meet a means and merit assessment. Wardship is NOT in there.

Eep. What now?

Well, the final tier is Exceptional funding under s10* of LASPO.  If you are a lawyer, you are already wincing. This allows the Legal Aid Agency to grant free legal advice to exceptional cases where not having free legal advice would breach a person’s human rights.  Hardly ANY of these have been granted.

http://www.familylaw.co.uk/news_and_comment/four-family-law-applications-for-exceptional-case-funding-have-been-granted-between-april-and-june-2014#.VAXrAGOgktV

In the last year, of 821 applications, 8 were granted. And only 4 for family cases.

 

Even if you could get public funding on exceptional circumstances – well the bad news is that that is still means tested.  What does that mean? Well, it means that if you have capital over £8000, you can’t get free legal representation.

(If you are wondering, yes, the Legal Aid Agency would treat all of the King family’s savings, and any donations for the treatment fund as capital.  It is not money that they would disregard or ignore. At the moment, this case is a police/nhs scandal, but it is about to become a legal aid scandal too)

 

What are your options if you CAN’T get free legal advice?

 

You could represent yourself. Not ideal in the High Court, dealing with life-changing and complicated things.

You could arrange a McKenzie Friend. There are some good and helpful ones, but a stand-alone wardship case is really very difficult.

You could contact the bar pro bono unit  (there are lawyers who will represent you for free.  http://www.barprobono.org.uk/

Or you could instruct lawyers paying privately and hope to win the case and get a costs order against the applicant. Cost orders aren’t easy, since if the applicant made the application in good faith and has not behaved dreadfully, it isn’t as simple as just “If there’s no wardship order the other side will have to pay costs”   – having said that, in a case like this, where the parents would be spending money that they want to spend on treatment, there might well be a sympathetic consideration of any costs application.

 

 

 

*{corrected, from s11 LASPO, my mistake. Thanks to David Burrows for spotting it}

Machetes, body armour and social work bashing

 

Oh, that’s a clickbait title if ever there was one. The case in question does contain all of that stuff though.
Re IMA (care proceedings :no threshold) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B110.html

This is a set of care proceedings heard in Manchester County Court, but it raises some important issues of wider importance.

It was a case in which the Local Authority obtained an Emergency Protection Order removing IMA in August 2013, and after that Interim Care Orders sanctioning IMA remaining in foster care, up until the final hearing, which took place in August 2014 a year after the initial removal.

The Local Authority had been seeking a plan of adoption, supported by the Guardian, but this had changed to permanent placement with a relative. It is of note that the plan of adoption had been supported by the Agency Decision Makers (whose job it is to assess separately to social workers whether the circumstances of an individual case mean that adoption is the right plan)

The Judge at final hearing found that the threshold criteria were not made out, and thus the child would be going home and no statutory orders would be made.

The threshold criteria was based on the risk of the child being exposed to domestic violence (which is, on the revised wording of the Children Act 1989 a matter which on its own is capable of meeting threshold). That had two aspects really (i) Was father a risk of violence or violent behaviour and (ii) was the child in mother’s care going to be exposed to the father.

The fact that the Judge found that threshold was not met therefore was significant. This wasn’t a case with a suspicious injury which on full investigation was found to be an accident or a peculiar medical condition, but rather that the child ought never really to have been removed. The Judge was not saying that the threshold HAD been met but due to changes the risks had dissipated or become manageable, but that the situation of this family had NEVER crossed the section 31 threshold.

And the Judge had advised the Local Authority in a number of hearings that he was concerned that the section 31 threshold was not made out on the evidence that they had presented and was giving them the opportunity to flesh out their evidence if they had more information which was not before the Court. He told them that on 17th February 2014, 14th April 2014 and 23rd June, before making it official at the final hearing by ruling that threshold was not met.
The Judge starts off scathing and continues in that vein

These proceedings concern a new born baby who has never suffered any harm in his parents’ care. If he has suffered any harm to date, it is the loss of the relationship with his mother during the first year of his life due to the fact that he was removed from her care when he was a week old.
The Court did say that the LA were not wrong to have brought the case, but hints strongly that they were wrong not to have taken stock after any of those hearings where the Court indicated that they considered satisfying s31 threshold to be an issue.

133. There is no suggestion that the local authority has not acted in good faith in seeking to bring the proceedings relating to IMA before the court. The court accepts that the local authority was bound to consider and act on the information provided by the police. The question, however, arises as to whether a more experienced social worker would have acted with greater circumspection and sought to clarify the factual basis for the “intelligence” he was given and its accuracy. This should have been apparent when the father was released from custody and bailed for further enquiry on the 19th August and should have resulted in the social worker re-evaluating the Children’s Services position. None of the information provided by the police as disclosed to this court and the parties appeared to establish that he was a direct risk to a child or children and, it seems to me, on my analysis of the evidence available open to question as to what the “emergency” was that justified the application for the Emergency Protection Order.

A major part of the Local Authority’s case was that the father’s convictions established that first part of their threshold – that he presented a risk. [In large part, that was because there was no evidence of any domestic violence in the relationship between mother and father – no injuries, no police call outs, no referrals from neighbours, no allegations from either of them] They were relying on two things – firstly the father’s convictions and secondly the history of domestic violence in his previous relationship
The Judge took a very different view as to whether the criminal convictions in themselves established that father was a risk. A major part of that was that offences which looked on paper very serious received such light sentences that the Judge (who sits as a criminal Judge) brought his experience to bear in saying that one had to treat the offences on paper in the light of the very light sentences – they cannot have been at the high end of the spectrum of those offences.
51. In reviewing the evidence, it is I think pertinent to remind myself that both the mother and the father have criminal records. The records for the mother appear at F6-12 and F131-137 in the bundle and for the father at F13-19 and F124-130. The mother has convictions for robbery and racially threatening and abusive behaviour in December 2007 in respect of which she received a custodial sentence of a 12 month Detention and Training Order. She was then aged 15. She is now 22. Her subsequent convictions are for what might be property described as minor offences and failing to comply with the requirements of community orders imposed as sentences. It is self-evident from the nature of the convictions, that she is not likely to respond well when attempts are made by those in authority to impose on her. It is unclear to me whether the social worker ever appreciated that.

52. The father has 3 convictions between 2000 and 2006 for offences involving possession of offensive weapons for which he has received sentences of a fine and community orders. None of those could properly be described by anyone who has a knowledge and understanding of criminal justice as serious offences. He has other convictions for disorderly behaviour and driving offences which demonstrate that he is something of a social nuisance. In 2010 he was sentenced to two separate terms of suspended imprisonment for dangerous driving and benefit fraud. In May 2011 he was sentenced to 12 months imprisonment for offences of possession of class B controlled drugs – cannabis – with intent to supply. Finally, there is a conviction for an offence of harassment on the 10th December 2013 in respect of which he was made the subject of a community order with an unpaid work requirement and a restraining order. This conviction relates to his former partner, RK. I will say more about this later. These convictions are of course a matter of record and are not disputed by either the mother or the father. The issue, as will become apparent, is how they have been interpreted and relied on by the local authority to substantiate the ‘threshold criteria’ it contends for.
By the time of the final hearing, the Local Authority’s threshold document was as follows (I commend the Judge for including it in full, it is extremely helpful when this is done, as one can then see the basis on which the case is put)

MAA is the father, JG the mother.
142 “The nature of the likelihood of harm alleged is expressed as “(i) Impairment to the child’s physical, intellectual, emotional, social and behavioural development; (ii) Impairment to the child’s physical and mental health; and (ii) Impairment suffered from seeing or hearing the ill-treatment of another.
(1) The father, MAA, has an extensive criminal history. This includes:-

(a) Possession of a machete in 2001;
(b) Arrested 8 February 2006 in possession of a knuckle duster, wearing body armour and in a car with 4 other men similarly equipped; drugs found at his home
(c) Drugs offences including possession, intent to supply and cultivation of cannabis for which he served a 13 month prison sentence in 2011
(2) On 19 August 2013, the day of IMA’s birth, MAA was arrested at the hospital in relation to an offence which took place on 29 November 2012 when he and two other males were alleged to have attacked an acquaintance and driven off in his car with the victim’s legs hanging out of the open door; a considerable quantity of cannabis was found in the boot. The case was not proceeded with by the CPS

(3) In 2013, MAA pursued a campaign of harassment against his ex-wife, involving regularly attending at her home threatening her, threatening violence to any new boyfriend, and stating he would persuade Children’s Services to remove her children from her
(4) She was so frightened that she moved into a women’s refuge with her children for 4 weeks in August 2013. (On a further 10 occasions recorded between 2 September and 8 October 2013 he visited her home and made similar threats)
(5) MAA was arrested on 13 October 2013 and charged with harassment. MAA’s ex-wife gave a police statement in which she stated that he had been violent towards her during their relationship as well as extremely controlling and she had been “terrified” by him.
(6) Following a strategy meeting on 13 August 2013, when JG was identified as a vulnerable person who may be at risk from MAA, a joint police and social work visit caused further concern when MAA would not provide his name, and refused to accept any concerns or co-operate with any form of assessment. JG took the same position. It was therefore not possible to obtain a clear assessment of any risk posed by MAA due to the failure of the parents to engage with Children’s Services either during the first visit or thereafter. This attitude of complete non-co-operation continued.
(7) JG failed to allow social workers into her home to discuss the issues, minimised the seriousness of previous domestic violence incidents and criminal drugs history involving MAA and refused to sign a working agreement.
(8) Although she agreed to reside at her parents’ home following her discharge from hospital with IMA in August 2013, neither JG nor IMA were at home when agencies visited on 3 consecutive days between 9am and 10am.
(9) JG’s refusal to engage in assessment or to accept any possibility of risk, despite information provided to her, demonstrated that she was unable and/or unwilling to prioritise IMA’s safety and protect him.
(10) Following the making of an emergency protection order on 23 August 2013, JG and MAA evaded the attention of police and Children’s Services until 25 August 2013 when they were eventually found at a property in Prestwich. Both their families colluded in the family hiding from agencies.

(11) There is evidence that the parents were involved in drug dealing activity at least up until IMA’s birth, as also found at the property in Prestwich were a further quantity of cannabis, drug paraphernalia and paperwork implicating the couple in fraud and money laundering offences. Although the CPS have not proceeded against MAA, JG faces criminal charges in relation to intent to supply cannabis, 165g having been found at the property.
Whilst that looks, on the face of it like a pretty decent threshold to establish that MAA (the father) posed a risk of harm -there’s a recent offence, offences including weapons, violent and controlling behaviour towards a former partner and that being recent, we already know that threshold was not found. So we need to see why.

The Judge deals with those matters in the following way (that is, in short, to reject all of them as being made out)

143. In respect of this amended threshold document I make the following observations and findings based on my assessment of all the evidence which has been put before the court –
(1) The father’s convictions are a matter of record which, absent specific offences involving harm to children or violence to women with whom he is or was in a relationship, have no relevance for the purpose of threshold and relate only to the character and personality of the father and not to parental care. This paragraph should be struck out.
(2) Given that the police took no further action against the father in respect of these allegations and did not prosecute him, none of what is alleged in this paragraph can be established as a fact. This paragraph should be struck out.
(3) So far as paragraphs (3), (4) and (5) are concerned, the issues cited post date the local authority intervention in respect of IMA. The issues raised relate to the father’s character and personality and not directly to any aspect of parental care relevant to IMA. These paragraphs should be struck out.
(4) A refusal to co-operate with Children’s Services (or the police) as identified at paragraphs (6), (7), (8) (9) and (10) does not go to threshold as there is no legal duty to co-operate unless the threshold is crossed. See Lady Hale at paragraph 207 of In the matter of B (A Child). These five paragraphs should be struck out.

(5) In respect of paragraph (11), any evidence of alleged drug dealing cannot go to threshold unless there is clearly established factual link to demonstrate that there is likelihood that a child will suffer harm resulting from a failing in parental care arising from such activity. There is no such evidence against either parent it being noted that, in any event, the father has not been charged with any offences arising from the circumstances related. This paragraph should be struck out.
If you are keeping count, the Judge struck out every paragraph of the Local Authority’s final threshold document. The whole lot, gone.

(The Local Authority did not appeal this decision. I think that they COULD have done on points 3, 4 and 5 – these are surely ‘risks that cannot sensibly be ignored’ and they go to the heart of ‘is the father a risk of domestic violence’)

I have reviewed the evidence in this case and have borne in mind all the guidance for the Supreme Court set out above in arriving at my conclusion which is that I do not find the ‘threshold criteria’ established for the purposes of section 31.
I am acutely aware of the consequences of any finding that the ‘threshold criteria’ is not made out and especially in proceedings which have been ongoing for as long as these because of the impact and implications such a finding has for the child and parents. On any view, a finding that the ‘threshold criteria’ is not made out self evidently means that not only has a considerable disservice been suffered by the parents and the child but also an injustice given the way in which these proceedings have been conducted and the length of time the proceedings have been ongoing. That, however, is no basis to shrink from doing what I consider to be right for the child, IMA, on the basis of the evidence before me which I can properly accept.
The Judge did identify that there were issues and concerns, but that these fell short of satisfying the threshold

47. Both the local authority and the children’s guardian rightly have criticisms in relation to the parents’ failure to co-operate and their lack of openness and honesty in their dealings with professionals. In fairness to the mother it has to be said that she did engage with the proceedings and the assessment undertaken by the psychologist and co-operated with the children’s guardian in his enquiries. She engaged with the local authority assessment and attended al the sessions as required despite her apparently limited understanding of what the assessment was for. She has made a very strong commitment to contact with IMA albeit there have sometimes been issues around her timeliness. She has been available at contact if the social worker has ever wanted to contact her and I have some difficulties now reflecting on the evidence as to why the social worker did not on occasions make more effort to go to see her at the contact venue if he needed to discuss issues with her. It is, I think, very clear that the mother has had issues around her relationship with the social worker and communication. However, these are not issues which go to threshold and, as Ms Kilvington observed in her submissions the mother’s lack of honesty on occasions or the lies she admits to having told do not denote harm.

48. The social worker and the children’s guardian were both clearly very troubled by having no clear understanding of how the mother and the father might conduct their relationship in the future. Let me say that I entirely agree that the father as demonstrated by him in his evidence is a very unprepossessing, and unappealing character based on what he said about the conduct of his relationships with women and the children he has. Having said that there is no reliable evidence before this court to indicate that he has ever harmed any child or posed any risk of significant harm to a child. I accept the submission made by Ms Kilvington that it is a matter for the mother and the father how they might conduct their relationship and whether they should be part of the same household or not. It is not for this court or others to judge or interfere with parental relationships unless it can be properly established that there is an identifiable risk of harm for the child or children.

 

The Judge was very critical of the written and oral evidence of both the social worker and the Guardian

 

61. [The social worker] gave evidence over nearly one and half days. He was subjected to lengthy and challenging cross-examination around many issues including his assessment of the mother. He was also questioned about his understanding of the police intelligence and information upon which he had acted and formed his views about the parents and the risk he considered they posed to IMA. He was uncertain about some specific dates and unable to demonstrate from the written records available some of what he was saying. His lack of experience as a social worker was evident.

69. He became very defensive in reply to Ms Kilvington asserting in very strong terms that it was a “very thorough assessment” when she sought to explore some of the issues in respect of it. That was a worrying response which smacked of the over confidence of someone who did not have the knowledge and experience to demonstrate a degree of circumspection and humility since it was clear, to me at any rate, that the thoroughness of the assessment was not evidenced in what has been produced to the court. [The social worker’s] response on the issues raised in connection with the conduct of the assessment and the confirmation of the unreliability of his evidence in respect of the assessment process was profoundly worrying.

155. I have real concerns about how the local authority responded to the initial referral and subsequent information given by the police. I do not understand why the PLO pre-proceedings procedures were apparently never initiated when dealing with a young, first time mother who should have been encouraged to seek early legal advice which might, and I cannot put it any higher, have resulted in a different direction being taken in respect of the removal of IMA from her care under the Emergency Protection Order when he was a week old. The social worker was not able to give an adequate explanation for not implementing the relevant procedures.

156. I was also troubled by the Child and Family Assessment record and the process of the assessment undertaken by the social worker. I have commented above on the timing of the relevant sessions with the mother which demonstrates what I would consider a real training issue which needs to be addressed with the social worker. However, I was also troubled by the electronic record of the assessment which appears to make no provision to actually describe what questions were actually asked of or explored with the mother in circumstances where this social worker failed to keep any contemporaneous notes which he was able to produce when being challenged about it. This is a practice issue which the local authority and its managers need to consider and address since it is likely to arise as an issue in many cases which are brought before the courts.

157. There are I think real issues about this social worker and his role in these proceedings which largely emanate from his lack of experience. The view I formed of him was that he was an inexperienced but highly intelligent and articulate young man who was committed to trying to promote and safeguard the welfare of IMA in circumstances which he found to be extremely challenging. He unfortunately appeared to me to have a lack of understanding and awareness of how to communicate with the mother in particular at a level which was basic enough to enable her to engage effectively. There were times in his evidence where he became very confused and resorted to saying things he was unable to properly substantiate. That was regrettable since it undermined his reliability so far as this court was concerned.
The social worker’s manager also takes some flak

158. I should also add that I am troubled by the role of the social worker’s manager in relation to steps taken within the proceedings. It was clear from the social worker’s evidence that many of the decisions made had not been his but those of his manager. The clearest example being in relation to the decision not to continue with any rehabilitation proposal or plan in or around the 7th May 2014. I found it surprising that the local authority did not consider it either appropriate or necessary to ask her to provide a statement or indeed to invite her to attend at court to provide an explanation.
And in relation to the Guardian

106. The guardian also premised his conclusions in respect of the mother on the basis of an acceptance of the risks that the father may pose to the child as if that had an established factual basis which is not evident in the evidence before the court at that time. This is evident at E37 where he asserts that
“the father in my view presents serious risk to IMA”.
107. However, he later goes on to say at E39

“In view of the father’s lack of engagement in the local authority’s assessment, the risks that the father presents to IMA remain unassessed. His criminal history and his relationship history raise understandable concerns. He appears to play a peripheral role in the lives of his other children. It is unclear what role he would play in IMAs life if he was placed in his mother’s care……. I share the local authority’s view that the potential risks presented by the father to IMA remain as relevant as at the outset of these proceedings”.

108. His report proliferates with references to the risk the father presents to IMA as being “unassessed”.

113. At paragraphs 106 to 114 of his report the guardian purports to address the ‘threshold criteria’ and refers to having considered the judgment in Re B. His approach has been to ask three questions – (i) what is the risk of harm? (ii) is it significant?; and (iii) how likely is it to happen? The answers he purports to give are both unsatisfactory and confusing, in my judgement. The suggestion that the risk of harm is that IMA will be a member of a household in which his emotional and social development is impaired is not evidence based on any factual foundation before the court. The suggestion that the father’s circumstances provide a “potential for disagreement and tension” with the mother that does not provide “a sound basis for a stable and harmonious household” does not appear to be factually founded. It is speculative and ignores the fact that there is no evidence of any domestic violence between the mother and the father

114. At paragraph 110 he says he “finds it difficult to assess whether the risk of harm is significant or not” and that “it may be significant or it may not.” He then asserts that he is satisfied that the “risk may be significant” but he then goes on to consider that the parents’ ability to work openly and honestly is relevant to the assessment of whether the risk, as opposed to the harm, is significant which misses the point. His conclusion at paragraph 113 that

“there is a real possibility of IMA suffering significant harm. There is a real possibility of him living in a household characterised by instability, disharmony and the use of intimidating or threatening behaviour. There is a risk of his emotional and social development being impaired if he is living in such an environment”

appears to lack any factual basis evidenced in the information available to the court to satisfy the ‘threshold criteria’ at the time the local authority implemented it protective measures for the child.
[The scattering of the  ‘unassessed risk’ phrase is quite reminiscent of the case that Ryder LJ recently granted permission to appeal on - Ryder LJ's remark there was "We are ALL unassessed risks". Is there an issue with professionals confusing absence of an assessment due to non-engagement with evidence of risk?]
The Judge was also very critical of the ‘chinese whispers’ and assertions being repeated and reported as fact, particularly around the police intelligence
150. There are real issues in this case about the Children’s Services reliance on police “intelligence” as a basis for the actions taken by the social worker and others. The “intelligence” referred to has never been produced to this court or the parties and it is unclear as to exactly what information has been given by the police to the social worker or others within Children’s Services. There are two written documents before the court from the police which I found to be worrying within the context of these proceedings. There is an e-mail which appears at C1 in the bundle dated the 28th August 2013 which follows some meeting with the police on the previous day after the recovery of IMA and the arrest of his parents on the 25th August. I can understand how a social worker as inexperienced as Mr Baker reacted the way he did to this. However, I question the validity of the police risk assessment in relation to contact made by this police officer which, as I understand it, was put before the court when it was considering the extension to the Emergency Protection Order and the court was invited by the local authority to refuse contact between the mother and IMA until after a risk assessment had been undertaken. Fortunately, the court refused the local authority application.

151. Perhaps more worrying though is a statement from a CD Acton at F208 dated the 24th March 2014 which was written in response to a request for clarification as to why it was thought that the father was a risk to women and children. She describes that the case was deemed as high risk according to a DASH assessment. DASH assessments are based on a victim’s self report in answer to set questions. They are not objectively evidence based. That is an issue in this case given that the father has never been prosecuted for any offences of actual violence against his former wife, RK. This statement is I think very much open to question in respect of much of its content but for the present purposes I simply make the final observation that the assertion that the father “has been arrested in regards to sexual offences against females as well as violent offences against this victim” is not evidenced on the basis of any information before this court and appears demonstrably unreliable. It calls into question the reliability of any of the “intelligence” given to this social worker and how he responded to it.

 

Parents deciding not to go ahead with cancer treatment

The parents of Ayesha King have been in the news this weekend (see here, for example  http://www.theguardian.com/society/2014/aug/31/ashya-king-found-spain-parents-arrested   ) and the parents removed their child from hospital against medical advice and took their child out of the country.   The Kings were wanting a form of therapy for their son’s cancer that is not available on the NHS, and found themselves in a quarrel with the medical professionals in England, leading them to take their son out of the country.  That led to a European arrest warrant being issued and the King’s being found and arrested.

 

I don’t want to write too much about the individual case, because it is all very real and raw and painful for this family, and we don’t have the facts that would allow us to make a proper decision about what they were doing was right or wrong.

 

This piece is more about the general principle of whether a parent has the right to decide what is best for their child, or whether the doctors have the final say?   For an adult, they can listen to medical advice and if they are capable of understanding it are entitled to decline to follow it. The State can’t enforce medical treatment on anyone who is able to understand the consequences and who says “no thanks”.  For a child, the same thing doesn’t seem to apply. A parent who understands the advice but disagrees with it, can still find themselves in Court and with an order being made authorising the doctors to carry out the treatment.

That’s a body of jurisprudence which began with the thorny issue of children of Jehovah’s Witnesses who needed blood transfusions. Their religion forbids blood transfusions, and the parents in these cases were refusing the treatment. Without the treatment, the child would die, and that led to a number of applications to the High Court, finally arriving at the accommodation that there would be no adverse religious consequences for the parent IF the transfusion happened because the Court ordered it, and that’s the way those are dealt with now. Of course, when balancing a child’s life against parental wishes, there’s likely to only be one winner.

 

Things got more difficult in the case of conjoined twins. The medical conclusion was that together, both would die, but if they were separated one would live and one would die. The parents for moral and religious reasons were not prepared to sanction the treatment.  The case went up to the Supreme Court and is probably one of the most difficult decisions ever made. The Court were particularly in difficulty with article 2, the right to life. The Court is bound by article 2 and has to uphold it, but a determination that the operation would go ahead would kill one of the twins where a refusal of the operation would probably kill both.

Re A (children) 2000

http://www.bailii.org/ew/cases/EWCA/Civ/2000/254.html

The Court sanctioned the operation and overrode the parents objections, although they were intelligent, rational people who understood the risks and consequences but were of the view that every day of life for their children was precious and they did not want to shorten that, even if it might save one of the twins.  There are some commentators (myself included) who consider that the Court here got into tricky waters – if a parent is the person who are capable of exercising decisions for their child and they are choosing between two dreadful outcomes  (as opposed to blood transfusion or die) then shouldn’t the State respect their decision?

Difficult cases make bad law, so they say. But these two cases were clearly about where failure to act would result in death, and perhaps the Court is entitled to intervene. The problem for me is that once you start down a road of the State being in charge in situation X, along comes situation Y, not as bad but still one where the State wants to intervene, and a slippery slope begins.

If there’s a life-saving treatment and the parents are refusing it, then Re A (children) 2000 is probably authority for the State taking over the decision. But what about where the treatment is not going to save life or cure the illness, but instead prolong life, perhaps with reduced quality of life?

 

In 2012 there were a couple of cases where parents did not want their child to undergo chemo-therapy and sought alternative treatments.  This is not an easy thing to contemplate, and people’s views on it tend to be very polarised – between the parents are parents and they can do what they think is right, to any parent would follow medical advice and get their child the help they need.

 

There were a spate of these cases in 2012, and I wrote about one where the High Court dealt with this issue extensively (the mother wanted to pursue alternative treatment and the father originally agreed but by the time of the Court hearing had come round to supporting the medical professionals)

http://suesspiciousminds.com/2013/01/15/the-role-of-the-court-in-assessing-alternative-medical-treatment/

 

NHS Trust v SR 2012

 

It is worth noting in that case that the Court was effectively resolving a dispute between mother and father as to type of treatment, which is a pure Children Act 1989 decision – specific issue order, the Court’s jurisdiction and authority to make a decision is because there are two parents asking the Court to settle a dispute.  With the King’s, that might become more complex, as both parents are in unity. If they don’t want Ayesha treated in England, it might well be that the Court is invited to borrow from Re A and NHS Trust v SR to set up that in these matters the State can intervene even though the parents understand the medical advice and choose not to follow it.

I hope that all of this gets sorted out without the need for the Court to get involved.  Whatever treatment this sick boy has, he will benefit from having his parents around and their blessing.

 

Go directly to the Ninth Circle of Hell, do not pass Go

 

Dante, in his travel guide to hell, sets out the various circles of hell and those within them. Within the ninth and final circle reside for all eternity four sorry individuals, exemplars of the worst that the world has ever had to offer (Dante’s work was written prior to certain unpleasant world leaders of the 20th century, and our current Lord Chancellor, so it may be in need of an update)

Those individuals are Cain, Athenor of Troy [betrayed his city to the Greeks], Ptolemy son of Antabus [invited people to a banquet and killed them] and finally Judas Iscariot.

We can now add to that circle of hell, a further group of terrible sinners, and one will not be surprised to learn that they are going to be local authority lawyers.

This arises from the President’s decision sitting in the High Court, in Re W (Children) 2014 [2014 EWFC 22]

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/22.html

 

The President has not yet found a power within the Family Procedure Rules to banish local authority representatives to the deepest circle of hell, but it is only a matter of time and generous interpretation. After all Rule 4.4 of the FPR 2010 sets out that the Court has powers to o)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective and that pretty much seems to cover it.

And if that unbridled power is not enough, surely the inherent jurisdiction is the answer. If only I had known during my law exams that “The Court could use the Inherent Jurisdiction” is a valid answer to 90% of questions, I could have skipped all that revision.

I will come onto the offence that has provoked such ire in a moment, but the case is yet another of the ones where the Local Authority are late filing their evidence (the social worker was off sick – how dare a human being suffer from an illness that affects the Almighty Timetable) and allows the President to use his favourite word contumelious.

(I have my own suspicion that the President once put that word down in Scrabble and was robustly challenged, and since that time has been working to revive its popularity so that this will never happen again)

Of course on a 26 week window, there is not time for slippage, and of course if the Local Authority is late, that causes a knock-on for the other parties and will mean the case not being ready for IRH at week 20. And yes, over a period of time Court orders about filing have unpleasantly become vague aspirations rather than hard deadlines. I am in agreement with the President that this is a bad thing. I also agree that something must be done.

I’m not against restoring the principle that if an order says 4th March, it means on 4th March the parties have that document in their hands, not that the author of it starts thinking about writing the document on 4th March. Court deadlines need to go back to being deadlines (and not in the Douglas Adams sense “I love deadlines, I like the whooshing sound they make as they fly by”)

And of course, if there is slippage in the timetable, the Court must be told and be able to call the case back in. I think that the President’s idea that a Court order authorising the delay must be obtained for a 15 minute delay does not work in the real world.

A real world that has some Courts in England answering correspondence in June that was sent to them in February, that has Court staff so beleaguered and overworked that the remedy is to lock the doors of the Public Counters and not let the public in. Where sending an email to the Court service is akin to dropping a message in a bottle into the ocean – one hopes it will reach its destination but it would be unwise to put money on it. A real world where if every time a person was going to be 15 minutes late filing a document a Judge would have to consider an application and grant it and get an order typed and posted out to all of the parties. A real world where, you know, human beings get sick, and they aren’t always able to tell you the day on which they will no longer be sick and can produce their document.

In principle, one can agree that delay in filing on time is bad and the mindset needs to change. And that if there is delay, the Court must be alerted to that and given the opportunity to adjust the timetable. The President points out in Re W that there is not only no power for the parties to agree a revised timetable amongst themselves they are expressly forbidden to do so.

Indeed, such agreements are forbidden by FPR 4.5(3):

“Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time; and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties

In accordance with and deriving from the court’s powers under FPR 12.24, the standard form of case management order, use of which is mandatory, spells out (as did Judge Rutherford’s order in this case) the consequence of failure to comply, namely the obligation on every party to “immediately inform the Court if any party or person fails to comply with any part of this order.”

Practitioners may have found, as a result of Re W and guidance being given to CAFCASS, that there is now a semi-official policy that the parties should inform on anyone who has the temerity to be late filing a document. The reader will of course recall that one of the major planks of the Family Justice Review was that none of the professionals or agencies working in family justice trusted each other, and what could be more conducive to rebuilding that trust than encouraging the parties to inform on each other for wrong-doing?

Deep breath.

Now, the egregious offence. The “Go to Hell” offence

Compounding its earlier defaults, Bristol City Council also failed to comply with paragraph 7.4 of PD27A:

“Unless the court has given some other direction or paragraph 7.5 applies” – this relates to hearings listed before a bench of magistrates – “only one copy of the bundle shall be lodged with the court but the party who is responsible for lodging the bundle shall bring to court at each hearing at which oral evidence may be called a copy of the bundle for use by the witnesses.”

Bristol City Council had lodged a duplicate bundle, marked ‘Witness Bundle’, and moreover in relation to a hearing where there was no suggestion that oral evidence might be called.
Yes, the President was actually annoyed that the Local Authority DX-ed a witness bundle to Court rather than the advocate carrying it to Court. That is strictly verboten and the Local Authority outraged the Court by defying the Practice Direction. And the witness bundle didn’t end up being necessary, which is a double-fault.

I am perplexed that at a time when the profession is in melt-down, when public funding has been withdrawn from the most deserving, when solicitors are being laid off due to cuts, when the public are being locked out of Public Counters, when the family justice system is under siege by the Press, that anyone could find the time to be annoyed that a superfluous witness bundle had arrived at a Court.

If you have a witness bundle that you don’t need, you can just send it back, you know? It doesn’t require a bomb-disposal unit to remove it from the premises. It is just a lever arch file.

But this is now law, and the President has said in Re W that Local Authorities who breach the law can be ‘named and shamed’ in public judgments, be ordered to pay for the costs of that naming and shaming. If you DX a witness bundle to Court rather than carrying it there, then you are technically liable for those sanctions. And if you avoid them from the trial judge, you might still get hit with them if the case is appealed (one hopes that the witness bundle irregularities in and of themselves don’t amount to an appeal, but frankly, who knows any longer?)

This is symptomatic of the problem – professionals have been drowned with rules, practice directions, guidance, case law, consultations, Views. One could spend so long establishing the exact precise procedure for doing anything that the task itself takes five times as long.

If you reach the point where you are regulating everything to microscopic level, then the sensible useful rules get lost within the morass of rules and guidance for things that never needed to be regulated. Who honestly CARES how a witness bundle gets to the Court building as long as there’s a witness bundle in the Court room if one is needed?

This seems to be a climate where if one says “red tape” the response is not “well, we need to cut that down” but rather “What, precisely, is the shade of red being used?” and “What, precisely is the width of the tape? Does it comply with Practice Direction 19B Dimensions of commonly used objects?”

By way of illustration – if you are playing Monopoly, there are a few problems with the game. It takes too long, for one thing. And for another, the last part of the game is only fun for the winner and miserable for everyone else. So, let’s appoint the President to tweak the rules to fix those problems.

Well, now we have a game of Monopoly where :-

if you’re buying Bond Street you need to submit a full-blown mortgage application with supporting documents

if you’re putting a house on Mayfair you need to seek planning permission, consult the local community and submit detailed architectural plans (making sure that you are familiar with the building regulations)

if you want to buy the Waterworks there should be a privatisation fully compliant with EU procurement rules and the opportunity for shares in the Waterworks to be offered at a preferential rate to certain key stakeholders first.

There is a prescribed period of time for shaking the dice, rules about what portion of the dice has to land on the board for it to be considered a null throw and whether it is permissible to whisper “Don’t be a six” to the dice in the pre-throw procedure.

And heaven help anyone who wins second prize at a beauty contest.
Has all of that fixed either of the problems we set out to resolve? Or has it made the game even slower and even more miserable for everyone involved?

Sadly, although we have a choice with “Monopoly President’s Edition” simply not to get it out of the cupboard and play it, we don’t have the same choice with care proceedings.

 

 

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