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Category Archives: case law

Only just over the threshold

 

I am tending to think that there’s a repositioning of the threshold criteria going on at the moment. It is a little hard to call, since there’s always been the unspoken background that what constitutes threshold in Liverpool doesn’t necessarily be the same things that consitute threshold in Torquay. But it feels that Re A and Re J are a subtle raising of the bar.

When a bar is raised, it can be tricky to work out exactly where that bar now is. We know that on the facts of Re A, threshold was not made out, but we don’t know if it was miles short or inches short.

Which is why when the President decides a case and says that the threshold criteria was satisfied but only just, it gives us some potentially useful information.

 

Leeds City Council v M and others 2015   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/27.html  is the follow-up to the President’s judgment on Female Genital Mutilation (you may remember, this was the case where that was alleged, and the President had to decide (a) if it had happened (no) (b) whether it could amount to threshold (yes) (c) Would it amount to risk of harm to a male child (no) and (d) if it had happened, would it by itself justify adoption (no)

 

http://suesspiciousminds.com/2015/01/14/fgm-an-important-authority/

The President’s first judgment pre-dated Re A, which is what makes me think that there’s a shift in thinking. The President here didn’t seem to be struggling with the idea that domestic violence, even if not of the most serious nature could amount to significant harm:-

 

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

The President had said in the first case that adoption, the LA’s plan, was not proportionate, and was seeking an alternative resolution. This case is that resolution.

In giving his final judgment, the President identified four key areas where the LA contended threshold was met:-

1. Mother’s mental health

2. Domestic violence

3. Neglect and physical abuse

4. Lack of cooperation / engagement

Remember, the President concluded that threshold WAS met, but only just.

I am prepared to accept, in the light of my findings, that threshold is established, though not by a very large margin.

So, looking at things in detail

 

1. Mother’s mental health

The psychiatrist, Dr T, made the diagnosis that mother had ‘schizo-affective disorder’, currently in remission, but a lifelong condition vulnerable to relapse caused by stress. Dr T said at least 12 months’ stability in M’s condition was essential if B and G were to be safe in her care and that the necessary period had not yet elapsed. If stability and compliance could not be maintained over that length of time, it would be “very risky” for them to be returned to her care

The Judge accepted Dr T’s evidence and opinion.

 

  • I accept that there has been improvement in M’s mental health. But Dr T’s evidence, which I accept, is clear, compelling and withstood all challenge. It would be irresponsible not to heed and give effect to it. In my judgment, M is not at present able to look after B and G.

[You might look at that and say that this in and of itself is sufficient to cross the threshold – there’s a factual matrix which allows the Court to establish that there is a risk of significant harm – remember that if a factual matrix is established, the risk itself does not have to be more likely than not, it is sufficient to be a risk which cannot sensibly be ignored, as decided by the House of Lords in H and R 1996. ]

 

2. Domestic violence

 

The mother had made allegations of domestic violence against the father, but later retracted them. The Court had heard evidence from mother and father.

My conclusion, having carefully considered the mass of material put to me and the helpfully detailed submissions from counsel, is that there was, as I have said, a greater degree of marital discord than either M or F was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety. It was, as Mr Ekaney submits, at the lower end of the scale. Beyond that it would not be right to go.

 

Remembering that the definition of ‘harm’ was expanded in the Children Act 1989  to include the words in bold  “harm” means ill-treatment or the impairment of health or development [including, for example, impairment suffered from seeing or hearing the ill-treatment of another];     – the words being added in the Adoption and Children Act 2002. So a child being exposed to domestic violence, or at risk of being so exposed can be considered to have suffered harm, or risk of such harm – the issue really being whether it is significant.  The President does not, in his judgment, specify whether his conclusion about domestic violence here amounted to significant harm or the risk thereof.  The best we can do is go back to this bit

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

 

 

and suggest that domestic violence was part of the factual matrix that led the President to conclude that threshold was crossed, though not by a very large margin.

 

3. Neglect and physical abuse

 

This is the section where you get to see the Re A dynamics play out. There are facts established to show what happened to the children

There were two very specific allegations of neglect, amongst more general complaints

in October 2013, G was taken to nursery with spare clothes that were damp, soiled and smelled of urine; much more significant, on 7 November 2013 M, it is said, abandoned G in an alleyway in the city centre, where she was found cold, wet and very distressed. 

[The mother accepted the abandonment. G was born in July 2011, remember]

 

There is no doubt that B and G experienced instability and inconsistency of care, brought about by M’s recurrent mental health difficulties and F’s limited ability to cope with them. There were the specific instances of neglect I have already referred to.  To the extent that there was marital discord between F and M, B and G were exposed to it. I think it is probable that on a few occasions B and G were exposed to mild chastisement – but nothing more serious.

 

But as Re A showed us, establishing a contested (or accepted fact) as being proven is only half of the story. The next stage is for the Local Authority to satisfy the Court that what happened caused the children harm.

In this case, the Guardian considered that the children did not present as having been damaged by their experiences

“Without exception these two children have been described in very positive ways; it is clear they are delightful and endearing children who make a good impression on anyone who meets them. It is also clear that the first impressions of these children did not signify children who had been exposed to neglect, or an abusive home environment. They appeared to have been protected from the worst excesses of the mother’s mental health challenges. They have experienced positive parenting.”

 

The President says

I entirely agree. The guardian’s analysis accords with everything I have read and heard.

What is important, however, is the fact that, as I have already found, none of this seems to have had any significant or prolonged impact on either B or G – so nothing they have been exposed to can have been that serious.

 

The President doesn’t say so explicitly (which is somewhat vexing for those of us who are trying to decipher the Delphic offerings), but I think that that final remark can be read to mean that he did not accept that the threshold was made out on the basis of the neglect aspects.

Frankly, I think abandoning a 2 1/2 year old child in an alleyway is significant harm, but it appears that I am wrong about that.

 

Firstly, this troubles me because that sort of thing also feeds into risk of future harm, and of course a child isn’t yet showing the ill-effects of future harm. This approach seems to ignore future harm entirely.

The other thing that concerns me about this approach is that I can forsee that we are ending up with a different threshold criteria for a resilient child, who is exposed to poor parenting but has inner qualities that allow them to cope, and a fragile child whose reaction to the same parenting is marked and plain to see.  And it also requires that the child is showing the effects of the harm that they have suffered in a very visible and measurable way – I know that the neuroscience is controversial, but there is at least some evidence to suggest that neglect has much longer repercussions than the immediate visible impact.

 

4. Lack of cooperation / engagement

 

Here the parents made concessions

 

 

  • M admits poor engagement with professionals due to her mental health problems.
  • F accepts that, prior to the children being taken into care, he failed to engage and co-operate with the local authority and that this led to him adopting what was understandably perceived as a controlling attitude towards M. This, I accept, was driven by the two factors to which Mr Ekaney drew attention. The first was F’s perplexity about the family situation, largely caused by his failure to recognise the nature and extent of and inability to understand M’s mental health difficulties. The other was F’s desire to protect his family and his fear, from his perspective well-founded fear, that B and G would be removed from their care. Since B and G were taken into care, F’s attitude has changed. There has been, as Mr Ekaney puts it, a high level of co-operation and engagement with the local authority, coupled with a high level of commitment to B and G. And, as I accept, this is not due to any compulsion; it reflects F’s growing realisation and acceptance of the underlying realities.
  • Given M’s and F’s concessions, which appropriately reflect the reality of what was going on, there is no need for me to make any further findings.

 

[Well, there is a slight need – again, I am assuming that this was not found to have amounted to significant harm or the risk of significant harm, but it is rather difficult to say for certain, because the judgment doesn’t outline it.  To be honest, I do not envy the Local Authority advocate who had to draw up a final settled threshold based on this judgment. I THINK that the totality of the judgment suggests that findings of fact were made across points 1-4, but only those in points 1 and 2 amounted also to findings of significant harm. But I would not race to Paddy Power with bundles* of fivers to back that conclusion. My actual bet would be that over the next year, the number of cases where threshold is agreed rather than fought out will dramatically reduce. And as we can’t have fact finding hearings any more, thresholds will be fought out at final hearings. How’s that going to work out for 26 weeks, I wonder?]

 

 

The President ruled that whilst mother could not care for the children now or within their timescales, the father could and should be given that opportunity, and the children would be placed with him under Supervision Orders.

So there we have it, on these facts, the case crossed the threshold, but not by a very large margin.

 

 

*IF I did happen to be going to the bookies with bundles of fivers, I would ensure that in accordance with Practice Direction 27 there were (a) no more than 350 of them (b) They were A4 sized  and (c) that they were printed only on one side. Which explains why Paddy Power doesn’t want me going in there any more.

 

father who insisted on his right to smack his children

This is a report from the Daily Telegraph, and as luck would have it, I have the judgment that it refers to. Nice to be able to lay them alongside each other.

 

Telegraph report

http://www.telegraph.co.uk/news/uknews/law-and-order/11500866/Father-who-insisted-he-had-a-right-to-smack-his-children-has-son-and-daughter-taken-into-care.html

 

What they report is that the father had two children taken into care

He said he smacked his kids on the bottom, legs and arms, using his hand, but that the red marks left behind ‘did not last long’.

But Rotherham Council social workers took a dim view of his disciplinarian ways and determination to have ‘total control’ over his family.

It seems a fairly balanced piece from the Telegraph, to be fair to them. When I read the ‘dim view’ bit I was all set for social work bashing, but most of it seems to be extracted from the judgment and giving a balanced account. (It does show how much easier it is to write an accurate story if you use the judgment)

The children were placed with an aunt.

And the judgment itself

Rotherham Borough Council v L and Others 2015

is here

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B29.html

 

I don’t think I’ve come across someone refusing to give the oath before, but the father did just that in this case  (having previously micro-managed the expert assessment and refused to participate in any social work assessment)

 

  1. Father gave evidence before me. Before he did he refused to affirm or take an oath. He tried to explain to me why that was. Despite being advised by Mr P that in not doing so this may carry the impression that father wanted to control matters in his own way – a theme throughout – father insisted that he would not affirm or take the oath. He assured me he would tell the truth. His words were ‘I don’t lie.’ I therefore allowed him to give evidence.
  2. I have observed him throughout the case. Mr P was right when he warned father that his conduct would reinforce the evidence that he is a man who must feel in control. It does.

 

Whilst the Telegraph headline (though not the full story) might give something of an impression of a father who just exercised his legal right to lawful chastisement of his children when they were naughty, the judgment itself conveys much more of a sense of a man who was using violence amonst other means of exercising control over his wife and his children.

Bodey and DoLs

Mr Justice Bodey, sitting in the High Court dealt with a case involving a 93 year old woman with severe dementia, and had to resolve whether the protective mechanisms that had been put in place by the Local Authority amounted to a deprivation of liberty (or DoLs).  And if so, whether the Court would authorise those.

 

W City Council v Mrs L  2015

http://www.bailii.org/ew/cases/EWCOP/2015/20.html

 

This might have wider implications, because the Court were being asked specifically about two issues :-

 

1. The deprivation was in the woman’s own home, rather than in accommodation provided by the State.

2. The woman herself was not objecting to the restrictions, or kicking against them.

Unusually here, it was the LA who were saying to the Court that their actions amounted to a deprivation of liberty, and the family were saying that it wasn’t.

Here’s what the restrictions amounted to:-

  1. As I have said, Mrs L is 93. She was widowed in 1976 and has lived since about that time, 39 years, in her current home, the upper floor flat in a 2-storey building. She has 4 adult daughters, 3 of whom live in England and one abroad. Her daughter PC is, as I have said, her litigation friend. If I may say so, the family seem to have done extraordinarily well in caring proactively for Mrs L, who was diagnosed with dementia in 2004. Since that time, her condition has deteriorated, and understandably is deteriorating. Her family have adapted her furniture and routines to take account of all her needs. She fell twice in 2013, the first time injuring her hip and requiring an operation. The second time in November 2013 she suffered no injury, but became disorientated and wandered away from her home very unsuitably clothed into the local town. She was returned home by the Police or Social Services. This event led to the involvement of the Local Authority.
  2. At that time, the garden at Mrs L’s home was not enclosed. In the light of Mrs L’s having wandered off, the family arranged for a fence and two gates to be erected, and for the garden to be generally improved. The gates are side by side: one to use on foot, and the other a double gate to admit vehicles, presumably for the benefit of the young couple who live with their children in the ground floor flat. The pedestrian gate latch is of the kind often seen on bridleway gates, having a vertical metal lever on the gate, which is pulled away from the gate post to open the gate, and which springs back to engage with a clip on the gate post in order to re-close the gate. The double gates are secured by a metal throw-over loop, which holds the two central uprights together. The front door of Mrs L’s flat which leads into this garden area is locked with a Yale lock, which Mrs L can and does operate herself. This enables her to have access to her garden as and when she wishes it. All agree that she gets great pleasure from being able to go out and enjoy the garden.
  3. The Local Authority have undertaken assessments of the safety of the above arrangements. They have concluded that whilst neither of the gate latches lock, they are quite stiff and heavy to operate. There was an occasion when Mrs L was observed to open the pedestrian gate when asked to do so. This was before a wedge was added to the gate by Mrs L’s downstairs neighbours (to stop their young children getting out) which has made the gate more difficult to open. The garden is felt by everyone to be sufficiently secure, although with an unavoidable risk that someone might leave the gate open. At night, there are door sensors which switch themselves on in the evening and off in the morning. They would be activated if Mrs L were to leave the property at night, although she has not in fact done so in the 6 months or so since they were installed. An alarm call would automatically be made to one of her daughters, who lives nearby. If that daughter were not available, the call would re-route go to the emergency services. This would enable Mrs L to be guided safely back home.
  4. Mrs L is happy and contented where she lives. A care package is provided for her by the Local Authority’s specialist dementia carers, who visit her 3 times a day. She is orientated within the property, steady on her feet, motivated to engage in simple activities, and has a clear interest in her garden. There is a documented history of her strong sense of belonging in her current home, and of her fierce sense of independence. She displays an acceptable level of mobility. Her immediate environment can be seen to give her significant pleasure and stimulation. She is able to enjoy the company of her cat. All agree it would cause her distress to be moved to residential care. All agree too that the current arrangements of family and Social Services working together are in Mrs L’s best interests and work well.
  5. The facts on which the Local Authority relies in particular for saying that the arrangements amount to a deprivation of Mrs L’s liberty are: (a) that the garden gate is kept shut, thereby preventing or deterring Mrs L from leaving the property unless escorted; (b) that the door sensors are activated at night, so that Mrs L could and would be escorted home if she left; and (c) that there might be circumstances in an emergency, say if the sensors failed to operate at night, when the front door of the flat might have to be locked on its mortice lock, which Mrs L cannot operate (as distinct from the Yale lock, which she can). She would then be confined to her flat. These arrangements are said by the Local Authority to be integral to its care plan for Mrs L, which is overseen by her social worker. The Local Authority thus asserts that it is responsible, as a public body, for a deprivation of Mrs L’s liberty.

 

This is a good illustration of how unsatisfactory things are at present with DoLs.  On those facts, my gut feeling would be that it ISN’T an article 5 deprivation of libery. BUT, given that if you get this wrong, compensation is payable to the person being deprived of their liberty (and at least one Judge has ordered that that is on a daily rate), would I be sure? Or even fairly sure? I can absolutely see why this LA wanted to make the application and have a Judge decide.

 

Mr Justice Bodey sets out the law very well (this would be a good “go-to” judgment for these issues)

 

On the two key issues in the case, Bodey J said that both were relevant factors in weighing up whether the restrictions amounted to a deprivation of liberty, but neither of them were determinative (i.e a person CAN be deprived of liberty in their own home and a person CAN be deprived of their liberty even if they seem perfectly happy about it, but whether or not they ARE being deprived of their liberty depends on the facts of the case)

 

23. ..it is overwhelmingly clear that Mrs L is where she always wanted to be when she was capacitous: and where not only has she not shown or expressed any dissatisfaction with the arrangements, but has demonstrated positively a continuing satisfaction with being in her own home. Further, her home is clearly not a ‘placement’ in the sense of a person being taken or taking herself to some institution or hospital.

  1. The fact of Mrs L referring to, and demonstrating by her demeanour, this continuing contentment in her home is not in issue. It is right that she is of course not capacitated. Otherwise, this case would not be happening. But I do find that she is capable of expressing her wishes and feelings, as is referred to in the documents and shown in such things as for example her choice of clothes, the choice of what she does around the property, and in her going in and out of the garden at will. Although I accept the general need for the caution which Miss Hirst urges me to exercise, this consideration must be relevant in the evaluation of whether Mrs L is being ‘deprived’ of her ‘liberty’ within Article 5.
  2. This case is thus different from one involving institutional accommodation with arrangements designed to confine the person for his or her safety, and where that person, or someone on his or her behalf, is challenging the need for such confinement. At paragraph 38 of Cheshire West Lady Hale spoke about ‘the presence or absence of coercion’ being a relevant consideration. As I have said, the range of criteria to be taken into account includes the type, duration, effects and manner of implementation of the arrangements put in place. The fact that those criteria are prefaced by the words ‘such as’ demonstrates that they are not intended to be exhaustive. It is a question of an overall review of all the particular circumstances of the case.
  3. I observe too that Article 5 refers to everyone having a right to ‘liberty and security of person’ [emphasis added]. Mrs L’s ‘security’ is being achieved by the arrangements put into place as being in her best interests, even though involving restrictions. Such restrictions are not continuous or complete. Mrs L has ample time to spend as she wishes, and the carer’s visits are the minimum necessary for her safety and wellbeing, being largely concerned to ensure that she is eating, taking liquids and coping generally in other respects.
  4. This is a finely balanced case; but on the totality of everything that I have read in the files, I have come to the conclusion and find that whilst the arrangements (clearly) constitute restrictions on Mrs L’s liberty, they do not quite cross the line to being a deprivation of it. If I were wrong about that, and if there is a deprivation of Mrs L’s liberty, is it to be imputed to the State? On the facts, I find not. This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists.
  5. In these circumstances, my decision is simply that there is no deprivation of Mrs L’s liberty. This is not per se because Mrs L is in her own home; nor because she wishes to be there. Those features alone would not necessarily stop particular arrangements amounting to a deprivation of liberty. Rather it is a finely balanced decision taken on all the facts of the particular case. The question of the court’s authorising the arrangements concerned does not in the circumstances arise, although I would have authorised them if it did. The question of Mrs L’s up to date best interests is better considered back in Birmingham by the District Judge, and I anticipate that it should be capable of being dealt with by consent.

 

 

Even Professionals can find it difficult to know if a person is being deprived of their liberty…

Even Professionals can find Deprivation of Liberty confusing

Adoption – here we go again?

The Court of Appeal have found the reverse gear to their reverse gear (from the original reverse gear of Re B-S).  Sort of.

I actually think this is just the Court of Appeal reminding Judges that in cases where Placement Orders are being made, it is actually a requirement that the judgment explains why.

 

There have been a few cases where the judgments have been flawed and the Court of Appeal rolled up their sleeves, got under the bonnet of the case and got oil on their forearms in order to set out what the Judge must have meant, but omitted to say. This wasn’t one of those.

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html

 

It is pretty bad that the Court of Appeal remark of the judgment that it barely contains any information that emerged during a three day final hearing or any analysis of the evidence that the Court heard.

The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment

The judge’s approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he “rejects” or “accepts” one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge’s quotations with regard to the parents’ capacity are all drawn from the written report alone.

This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.

10…the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:

 

“I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application.”

  1. Insofar as it goes, the judge’s description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:

    “Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child’s right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?”

  2. Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.

 

It is of note that the Court of Appeal formally acknowledge and approve the President’s judgment in Re A about thresholds, giving them even more weight if any were needed.

 

In fact, as Lord Justice Aikens not only approved the points in Re A, but provided a distillation of them, this authority bolsters those points considerably. You won’t get far re-arguing those points with the Court of Appeal.   [Although I note with heavy heart that ‘nothing else will do’ is making a comeback, after I thought we’d reverted to Baroness Hales full paragraph]

 

  1. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that “nothing else will do”.
  2. The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.

    ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.

    iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.

    iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)

    v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.

    vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.

    vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

    viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 RLR 625.

I think that is an excellent distillation, and much more user-friendly than the original.

Ms Daisy Hughes drew out a particularly good point, and one which I expect to see appear again  (I applaud her work here)

On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father’s evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child) [2015] EWFC 11 in which, at paragraph 6, Sir James Munby P states:

“I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?”

In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father’s evidence to make good her submission that this judgment falls well short of what is required.

In this particular case, the parents were disputing the threshold and the order sought was the most serious that the Court could make. So it was imperative that the Court gave a judgment that resolved the factual issues and set out what harm the Court considered the child was suffering from or at risk of suffering, as the ‘baseline’ for considering what orders might be necessary.

 

The trial Judge had failed to do this. The Court of Appeal expressed some doubt as to whether, as pleaded, threshold was capable of having been met.

 

  1. The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents’ stance was not without merit.
  2. In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:

    “It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father’s] substance misuse. It is my professional opinion that many of the local authority’s concerns relate to the lack of maturity of the couple.”

    In that paragraph ‘Domestic Violence’ must, even on the judge’s findings, be confined to the assault a year prior to J’s birth, clothes being thrown out of a window in March 2014 and the mother’s reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father’s admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.

  3. To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam):

    “I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

  4. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.

 

The Placement Order was over-turned and the case sent back for re-hearing before a different Judge.

The ‘were babies murdered’ case

 

I know that this has been attracting a lot of attention of my commenters, and that it has been quite divisive. As I said at the time, I didn’t know the full facts and from what little I had it sounded like an incredible story that would require compelling evidence to be true.  I don’t think that any of the cases alleging Satanic abuse have ever amounted to be anything more than fantasies or concoctions.

The High Court, having examined the evidence reaches the conclusion that none of the lurid allegations are true. And also that the people who had been shouting the loudest about the allegations had abused the children to get them to say these things, had been giving them cannabis and had caused them injuries.

 

P and Q (Children : Care Proceedings: Fact finding) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/26.html

 

I am going to be clear from the off here – whilst I am happy for people to comment and debate on this story, I will take down any post that asserts or insinuates that the people named in this judgment as being wholly innocent of these dreadful accusations has done any of those things. There are probably dozens of places on the internet where you can do that if you want to, but this won’t be one of them. Nor will I allow any comments which name the children. [If you want to say “I believe the mum and Mr Christie” then I think you are utterly wrong about that, but I won’t stop you saying that]

 

 

I know that there will be people who remain convinced otherwise, who have seen the films for themselves, made up their own minds and will view this as being a cover-up. Nothing I say is likely to change your mind about that.

 

For those of you who don’t know, what is this case all about?

  1. The subject children have been named repeatedly on the internet. Their photographs and film clips in which they feature have been published and re-published widely. Filmed police interviews of the children have been uploaded on to publicly accessible websites; so, too, intensely personal information relating to both children. As at 10 March 2015, more than 4 million people worldwide had viewed online material relating to this case.
  2. It is inevitable that a large proportion of those have a sexual interest in children. Any rational adult who uploads film clips to Youtube featuring children speaking about sexual activity must be assumed to realise that fact.
  3. I considered but ultimately rejected the suggestion that the children’s names should appear within the judgment. My priority is to protect them from further harm of whatever kind. Those who have posted material identifying the children have done so with flagrant disregard for their welfare interests. I see no good reason for adding to the damage already done. Only those with prurient or unhealthy curiosity will take steps to identify the children. My faith in humanity indicates that the overwhelming majority of individuals will do nothing because they, like me, have no interest in inflicting further harm.
  4. In the period before 13 January 2015, there had been some relatively limited online publication of court and other relevant material. It had been my hope that after discussion with the mother and her McKenzie Friend on 13 January, there would have been withdrawal of material from the internet. Since about 26 January the volume posted in a variety of formats on different sites has increased markedly; and the claims made against the father, the children’s former head teacher, other teachers, professionals and a very large number of parents at the children’s former school have proliferated.
  5. Many of those individuals are now living in fear because they have been identified on the internet as abusers of children and their contact details including telephone numbers, home and email addresses have been published. Lives have been disrupted. Several of those implicated have received malicious, intimidating ‘phone calls and emails at all hours of the day and night from all over the world. For example, “Hey cock. We’re coming for you. You scum paedo.
  6. It has been necessary for the police to protect worried parents and children at the gates of the school in Hampstead at the centre of the allegations. Prospective parents have wondered whether to withdraw their children from allocated places. Existing parents have been uniformly supportive of the school and every member of the teaching staff.

 

The Court had been asked as part of care proceedings, to consider all of the evidence and reach conclusions as to whether these allegations were true.

 

They all arose from two children, P and Q, and specifically from films that were taken of them making very strong allegations, principally about their father but then involving many other people.  These films had been taken by their mother and her partner. The films had then found their way onto the internet and had been viewed by millions of people (many of whom took them at face value)

 

  1. This necessarily lengthy judgment has one essential purpose. It is to provide definitive conclusions upon a quantity of evidence at the end of a thorough-going hearing. I have surveyed the relevant history as well as all of the significant developments in a wide-ranging police and social services investigation. Everything of importance on all sides of the dispute has been considered so as to enable me to arrive at authoritative findings.
  2. These are care proceedings brought by the London Borough of Barnet relating to two children, P and Q who are 9 and 8 years old respectively. Their parents are Ella Draper and Ricky Dearman.
  3. In September 2014, lurid allegations of the most serious kind were drawn to the attention of the Metropolitan Police. In a variety of ways, it was suggested that P and Q were part of a large group of children from north London who had been sexually abused, made to abuse one another and that they had belonged to a satanic cult in which there was significant paedophile activity.
  4. Specifically, it was said that babies were supplied from all over the world. They were bought, injected with drugs and then sent by TNT or DHL to London. The assertions were that babies had been abused, tortured and then sacrificed. Their throats were slit, blood was drunk and cult members would then dance wearing babies’ skulls (sometimes with blood and hair still attached) on their bodies. All the cult members wore shoes made of baby skin produced by the owner of a specified shoe repair shop.
  5. Children, it was alleged, would be anally abused by adult members of the cult using plastic penises or “willies.”
  6. Christchurch Primary School in Hampstead was said to be where the “main action” occurred but at least seven other local schools were named. East Finchley swimming pool was identified as one of the other meeting venues for the paedophile ring. Rituals were performed, so it was claimed, in an upstairs room at the McDonald’s restaurant where the “boss” allowed child sacrifice because he was a member of the cult. Human babies were prepared, cooked in the ovens within a secret kitchen and then eaten by cult members.
  7. It was alleged that the children’s father, Ricky Dearman, was the leader of the cult and that others included the children’s headteacher, Ms Forsdyke, another teacher, Mr Hollings, the priest at the adjacent church, a large number of named parents of other children, social workers, CAFCASS officers and police officers. It was said that, in all, more than a hundred people were involved in ‘doing sex‘ to the children.
  8. I am able to state with complete conviction that none of the allegations are true. I am entirely certain that everything Ms Draper, her partner Abraham Christie and the children said about those matters was fabricated. The claims are baseless. Those who have sought to perpetuate them are evil and / or foolish.

 

But, some people will be saying, the children said these things – they must be true, or why would they say them?

  1. All the indications are that over a period of some weeks last summer, P and Q were forced by Mr Christie and Ms Draper, working in partnership, to provide concocted accounts of horrific events. The stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is a strong word but it is the most accurate way to describe what was done to the children by Mr Christie in collaboration with Ms Draper.
  2. The children were made to take part in filmed mobile ‘phone recordings in which they relayed a series of fabricated satanic practices. Subsequently, at the instigation of Abraham Christie and Ella Draper, the children repeated their false stories to Jean-Clement Yaohirou, Mr Christie’s brother in law, in a late night discussion. It lasted for about three hours; Mr Christie and Ms Draper did most of the talking.
  3. P and Q were ABE (Achieving Best Evidence) interviewed on 5, 11 and 17 September 2014. On the first two occasions, they supplied information about events they claimed had occurred, similar in their overall content to the mobile ‘phone video clips and audio recording. On 17 September, in ABE interview, both children withdrew their allegations. Each stated they had been made to say things by Abraham Christie, the mother’s partner, which were not true; and they gave very full details of the way in which he had secured their compliance.
  4. Ms Draper and Mr Christie have not participated by being present in court. I am as sure as I can be that their absence has been deliberate. They have chosen to remain away; but the internet campaign has continued. Countless online articles have been posted in which the truth of the satanic abuse claims is asserted repeatedly. Notwithstanding injunctions restraining Ms Draper and Sabine McNeill, one of her supporters, from publishing information from the proceedings on the internet or elsewhere, such material continues to be uploaded. Efforts to persuade internet servers to remove material have been of only limited value. As soon as information is removed by one provider, it emerges elsewhere.

 

You may pick up as you read the document, that the mother was not present in Court for most of the hearing, and no doubt a Telegraph journalist is already preparing a piece about how she was refused a voice. Just to clear that particular topic up – she was entitled to free legal representation, she had that representation and sacked them, she had a McKenzie Friend and refused to come to Court.

  1. The mother’s and Mr Christie’s participation
  2. In the initial stages of the proceedings, Ms Draper had the advantage of representation by experienced Solicitors and Counsel. On 10 December 2014, at court, she dispensed with her legal team. My first involvement with the case was on 13 January 2015. Dates were secured for this hearing as follows: 17 – 20 February, 3 – 6 and 10 – 12 March. On 13 January, the indications from Ms Draper were that once again she would avail herself of legal representation.
  3. Until 26 January 2015, the mother appeared as a litigant in person assisted by McKenzie friends. On 9 February my clerk notified the parties, by email, that there would be a hearing the following day. Ms Draper failed to attend court on 10 February when mandatory and prohibitory injunctions were made against her. Ms Draper has not filed further evidence nor any schedule of the detailed findings sought as directed by my order of 20 January. Arrangements had been made for her to attend at the offices of the local authority to collect the final bundle and Practice Direction documents. Ms Draper did not attend although her email communication had suggested she would.
  4. The oral evidence began on 17 February. At 08.51 that day, my clerk received an email from Ms Draper in which she asked permission for her McKenzie friend, Belinda McKenzie to represent her and her parents’ interests in court. Ms Draper stated that she had been “prevented from being present in the court” and that Ms McKenzie had her “formal instruction to convey (her) position.” Ms McKenzie reiterated that request at the beginning of the hearing. But, as I explained to Ms McKenzie, in circumstances where the mother herself was absent, the Practice Guidance relating to McKenzie Friends expressly prohibits such an individual from acting as the litigant’s agent or from conducting the litigation on her behalf. In Ms Draper’s absence, it seemed to me that there was no proper role for Ms McKenzie.
  5. In response to my inquiry, it was established that Ms McKenzie remained in contact with Ms Draper. She assured me she would pass on a message urging the mother to participate by coming to court and informing her that the hearing would continue in her absence. Outside court on 17 February, Ms McKenzie apparently indicated to the local authority’s legal team that Ms Draper was in the process of instructing a lawyer. However, at no stage, has there been any contact with anyone purporting to act on behalf of Ms Draper.
  6. The mother has remained absent from the court. Her partner, Abraham Christie was outside the front entrance of the building on 17 February as part of the group campaigning for the “return of the ‘Whistleblower Kids’ to their Russian family.” A witness summons was issued requiring his attendance to answer questions on Friday 20 February. Attempts to serve that summons were unsuccessful.
  7. Earlier attempts at securing Mr Christie’s participation in the proceedings because of the likelihood that the local authority would seek findings against him were wholly unsuccessful. A series of communications from the local authority’s Solicitor went unanswered.

There is no substance in the assertion that the mother has been prevented from participating at this hearing. If she had been arrested on 12 February in connection with harassment allegations, the overwhelmingly likelihood is that she would have been released on bail enabling her to come to court on 17 February. If she had been remanded in custody, I would have been in contact with the police and prison authorities so as to make appropriate arrangements for Ms Draper’s attendance at court.

 

The mother instead chose to fight the case on the internet rather than in Court.

 

  1. Within her position statement for 26 January hearing, written for her by Ms Sabine McNeill as she later revealed, the mother made a thinly veiled threat as to what would happen if the children “were not returned to their mother and grandparents with immediate effect.” Ms Draper stated that the consequence would be “high level embarrassment.” An open letter to Theresa May, the Home Secretary, posted on the internet, explicitly states that the Position Statement was “our offer NOT to expose this scandal in exchange for returning the children.”
  2. The clear message from recent events is that whilst Ms Draper is prepared to campaign using the internet she is not willing to take part in this inquiry.

 

The Judge goes through the detail of the films that were taken of the children in which the mother and Mr Christie draw these allegations out of the children. They make for very depressing reading. I haven’t the stomach or heart to put them all in. Please though, if you are immediately wanting to line up with the parents against the evil State and the corrupt and wicked Courts, read the judgment first and see if these are people that you really want to give your support to.

I’ll just give you the final bit

Towards the end of the recording there is a passage when the children and Mr Christie are all shouting, excitedly, “Kill, kill, kill.” Mr Christie urges the children to “Say it… Say it how they say it.” A. “Kill, kill, kill.” …. Mr Christie, “What’s the word that you say?” A. “Kill.” Mr Christie, “Say it more for me. I want to hear it…. I like the sound of it. Can you say it together, say it, let’s all say it together.” There is then repeated chanting of the word “Kill” and a little later of the phrase, “Kill the baby.” Once more Mr Christie urges the children on saying, “Let’s say it together. Let’s say it together. Kill the baby.” And they do.

 

The Judge, who had read everything, watched everything, and seen the witnesses give evidence, had this to say about the children’s presentation in the ABE interviews they originally gave to the police after the mother and Mr Christie made their complaint and provided them with films.

 

  1. Again and again, as I watched the interviews of 5 and 11 September my sense was that the children, for the most part, were in the realms of fantasy. There was an urgency and an excitement about what they were saying as the detail became ever more elaborate. It was as if they had been transported away from reality and into dream land. There were obvious parallels in what P was saying with some aspects of the story line in C.S. Lewis’ ‘The Lion the Witch and the Wardrobe.’
  2. There was no change in the presentation of either child when they described apparently horrific acts as experienced by them and others. There did not appear to be any emotional connection with what they were saying except that they seemed energised.
  3. The other significant deduction is that material supplied by P relating to the physical abuse of both children by Mr Christie in order to get them to talk should alert any sensible observer to the potential for false reporting.

 

 

The conclusions are stark

  1. Overall conclusions in relation to Ms Draper’s allegations
  2. In addition to my findings already made both within the opening paragraphs of the judgment and subsequently it is necessary to consider how and the extent to which the children have been harmed.
  3. Both P and Q have suffered significantly. Their innocence was invaded. Their minds were scrambled. Their grip on reality was imperilled. They were introduced to sexual practices of which they had no real understanding at a time when they should have been shielded from such things.
  4. Perhaps most significantly of all, the children were made to absorb and repeat on film and in interview grotesque claims against so many blameless people including the father whom they love.
  5. I have no doubt but that the physical injuries described by the children as having been inflicted by Abraham Christie were, indeed, caused by him. I reject as baseless Ms Draper’s suggestion that instead Mr Dearman was responsible. A straightforward conclusion given that neither child had seen him for about three months at the time of Dr Hodes’ examination and subsequent police photography. Those photographs clearly show recent rather than healed injuries.
  6. There is good evidence to find, as I do, that in the three months leading to their reception into care both children ingested cannabis. Scientific analysis revealed that both children had metabolites of the drug (THC) in their hair – a finding which could not be explained by ingestion of ‘hemp based products’ because none would contain sufficient levels of cannabis to produce the metabolite. It is impossible for the analysts to say whether the children had ingested the drug whether by passive smoking or oral ingestion. However, the children were clear in interview when describing the way hemp was made into soup using the juicer.
  7. The amounts found in the children’s hair samples suggested their ingestion had not been, as Ms Cave of Lextox described, a “one-off” but regular over the period. It is hard to imagine how any parent could deliberately expose a child to an illegal drug. But it may have been part of Mr Christie’s and Ms Draper’s plan so as to gain the children’s compliance. I need hardly say now profoundly damaging it was to administer illegal drugs to a child.
  8. The posting of film clips featuring the children speaking about sexual matters has exposed P and Q to the potential for very serious embarrassment and humiliation in the years ahead maybe, even, throughout the whole of the rest of their lives. Doubtless they will grow and develop so that their visual appearances will alter. But it may be difficult to shield them from unwelcome interest and reputational damage unless radical steps to divert attention are taken.Final thoughts about the investigation
  9. If there is one key message at the end of this inquiry it is that it is not and never will be sufficient to consider just one or two evidential features in isolation. It is always necessary to take account of all the material not just a selection. Those who arrived at their own early conclusions on the basis of partial material were woefully misguided.
  10. The individuals who have watched online film clips, read online articles and believed in the allegations would do well to reflect that ‘things may not be what they seem’ and that it is all too easy to be duped on the basis of partial information. There are many campaigning people, sadly, who derive satisfaction from spreading their own poisonous version of history irrespective of whether it is true or not.
  11. Proper consideration should always be given to the context within which allegations are made. In this instance, years of court conflict over the issue of contact and Ms Draper’s antipathy for Mr Dearman provided fertile territory for the creation of false allegations and their reiteration by the children.
  12. The history of the key protagonists may also play a part in untangling the intrigue so as to get at the truth. Mr Christie has a background of criminality for drugs offences, violence and dishonesty. More recently, he received a police caution for assaulting his adolescent son.
  13. Finally, that it is never possible to predict how a court inquiry of this kind will unfold. Against the preconceptions of many including my own, when the maternal grandparents gave evidence on 4 March 2015 they made their views about the allegations plain. They consider them to be “total nonsense and fantasies.”
  14. This is a summary of my salient findings – • Neither child has been sexually abused by any of the following – Ricky Dearman, teachers at Christchurch Primary School Hampstead, the parents of students at that school, the priest at the adjacent church, teachers at any of the Hampstead or Highgate schools, members of the Metropolitan Police, social workers employed by the London Borough of Camden, officers of Cafcass or anyone else mentioned by Ms Draper or Mr Christie.

    • The children’s half brother, his father and stepmother – Will and Sarah Draper – are likewise exonerated of any illicit or abusive acts involving the children.

    • There was no satanic or other cult at which babies were murdered and children were sexually abused.

    • All of the material promulgated by Ms Draper now published on the internet is nothing other than utter nonsense.

    • The children’s false stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is the most accurate way to describe what was done by Mr Christie in collaboration with Ms Draper.

    • Both children were assaulted by Mr Christie by being hit with a metal spoon on multiple occasions over their head and legs, by being pushed into walls, punched, pinched and kicked. Water was poured over them as they knelt semi-clothed.

    • The long term emotional and psychological harm of what was done to the children is incalculable. The impact of the internet campaign is likely to have the most devastating consequences for P and Q.

 

Having had a discussion with Ian from Forced Adoption this week, I said that I had very mixed feelings when a Court imprisons a parent for speaking out about their case – I’m not at all sure that it is the right solution for a difficult problem and I would rather it didn’t happen.  I would not have those mixed feelings in this particular case.

 

Reporting restriction orders and anonymisation

 

This Court of Protection case raised, and answered, an important question that was causing people doubts, in relation to Reporting Restriction Orders. It has broader implications than just Court of Protection cases.

A Healthcare NHS Trust and P 2015

http://www.bailii.org/ew/cases/EWCOP/2015/15.html

 

A Reporting Restriction Order is just as you might guess, an Order of the Court saying that the Press can’t report some details on a particular case.  When the Court decides whether to make one, it is balancing up the article 8 right to privacy of the people involved (particularly if they are vulnerable people who can’t consent for themselves) AGAINST the article 10 right to freedom of expression (the concept that the Press ought to be free to report stories of public interest, or that are just interesting to the public)

What you might not know, if you haven’t made an application of this type, is that when faced with a story that you don’t want the Press to run, the procedure to obtain an RRO is to contact the Press and tell them all that there’s a really juicy story that you don’t want them to run.

 

That is so that the argument about article 8 v article 10 can be run with the Press being present and represented.  It does mean that you need to think carefully about whether stamping out a small fire (a newspaper wanting to run a story) by applying for an RRO might mean you accidentally starting a forest fire (by shouting “Fire, fire” to the rest of the media)

 

It is also worth noting that the transparency guidelines are that any application for an RRO, whether granted or not, should have an anonymised judgment published  – so RROs in practice are really going to be about ensuring that the NAMES of the people involved do not become published.

So, when the Press are told about the application for an RRO, should the real NAMES of the people involved be used, or should they be anonymised?

  1. It is submitted by the Press Association that pre-notification anonymisation appears to becoming a practice amongst claimant lawyers, who appear to be under the erroneous misapprehension that not only would they be committing a contempt but that by identifying the parties to a claim to the media means that the media will or may publish the material before the Court has had the opportunity to consider and possibly prohibit publication. It also suggests that the assumption is being made that the applicant’s right to privacy under Article 8 of the ECHR outweighs the media and public’s rights under Article 10. That approach by lawyers representing applicants seeking reporting restrictions or injunctions in refusing to identify the parties involved in a case involves restricting the media’s rights even before the Court has had an opportunity to consider the matter. That, it is said, leaves the media unable to take advice or make sensible and informed decisions as to what approach, if any, to take in a particular case.
  2. When the Press Association raised the question of identification of the parties with the applicant’s solicitors in this case, the response apparently was that the solicitors would be committing a contempt of court by disclosing the information; the argument put forward today by Mr Sachdeva QC is altogether different.
  3. The short issue of course is whether there is an obligation subject to paragraph 15-17 of the Practice Direction 13A to disclose information.

 

If there is an obligation to provide the real names of those involved as part of the application process, then there’s no issue of contempt of Court in complying with that obligation. And this is the issue that the Court had to decide.

On the one hand, the argument is that giving out the real names might be a contempt of Court and might breach privacy and might pose a risk of the names accidentally leaking out. On the other, if you tell the Press that they aren’t allowed to write about person X, but you don’t tell them who person X is, how can they really know whether they might have already been approached by X about the story, or even whether they would want to run the story.

  1. The questions therefore seem to be as follows. On the one hand the arguments in favour of revealing the parties’ identity to the Press before such an order is made include Practice Direction 13A requiring that the application notice (COP 9) be served with the media notification. The COP 9 has the parties’ names on it as of course does the witness statement (COP24). It is in accordance with open justice to allow the media fully to consider whether to object. It is pragmatic, otherwise the media would have to attend every case to learn the parties’ identity. Arguably no harm is done by notification because the media cannot report the parties’ identity despite no RRO being yet in place without being in contempt and the media will learn the parties’ names once the RRO is made in any event.
  2. Against the proposition is the assertion that the Practice Direction (which is a practice direction, not a Rule of Court) does not require the draft order to be served on the media (as noted by Baker J in Re M). However, he was considering the issue in relation to the identities of a considerable number of people who would be covered by the anonymity order. More directly than that it is simply unnecessary for the media to know the identity of P before forming an opinion on the terms of the RRO being sought, the issues being the centre of interest. Relevance is also placed on the absence of prohibitive order prior to hearing, a breach of which it is said is not clearly a breach of confidence or contempt of court.

Mr Justice Newton marshals the law and principles very well here, and it would be a good source for any RRO research in future cases.

To skip to the conclusion – the Judge was satisfied that the Press having the real names on the application form would not result in those names being published before the Court considered the RRO and that there were a number of safeguards to ensure that would be the case, even if there were to be one maverick or rogue player:-

  1. I am therefore completely satisfied that a number of factors come together preventing the media from revealing the parties’ names, because

    1. It would be a statutory contempt.

    2. It would be a contempt of common law.

    3. It would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect).

    4. It would be a breach of confidence.

  2. In the interests of transparency, the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names. I therefore order the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if they wish to do so.

 

 

The statutory contempt of court bit is interesting, particularly in relation to publication of information whilst the proceedings have not been concluded.

  1. Section 1 of the Contempt of Court Act 1981 provides:

    “In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”

    Section 2 of the Act sets out the scope of strict liability. The following must be established to the criminal standard:

    a) publication addressed to the public at large, as any sections of the public;

    b) publication which creates a substantial risk that the course of justice in the proceedings in question will be severely impeded or prejudiced;

    c) publication occurs at a time when the proceedings are active.

    So there is a double test, there has to be a risk that the proceedings in question will be affected at all and if affected, the effect will be serious.

  2. Anything that has a deleterious impact on the conduct or outcome of proceedings is prejudicial to the course of justice (I have had regard to the definitions in Arlidge, Eady and Smith on Contempt (citing Re Lonhro 1990 2 AC 154 and AG v Times Newspapers Times 12/2/83).

 

What about common law contempt?

  1. In the unlikely event that statutory contempt is not established common law contempt (under section 6(c) of the Act) could clearly be established. The actus reus and mens rea both have to be established. Lord Bingham in A-G v Newspapers Publishing plc [1997] 1 WLR 926 at 936B-D set out the actus reus to be established:

    “We do not accept that any conduct by a third party inconsistent with an order of the court is enough to constitute the actus reus of contempt. Where it is sought to impose indirect liability on a third party, the justification for doing so lies in that party’s interference with the administration of justice. It is not our view necessary to show that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice. Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way should expose a party to conviction for contempt.”

  2. At 936H-937A, Lord Bingham set out what had to be established in respect of the necessary mens rea:

    “To show contempt, the [A-G] must establish, to the criminal standard of proof, that: ‘the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire …’

  3. The publication of material contained in an application for reporting restrictions prior to the hearing to determine those restrictions is likely to amount to a contempt of court at common law. It is likely to have a significant and adverse effect on the administration of justice by thwarting the very purpose of the application, thereby making the application for reporting restrictions redundant. Intent to impede or prejudice the administration of justice is likely to be inferred from the context that the publisher will be aware of the context of how the information was received, the purpose for which it was received and the likely restrictions sought in the application.

 

 

Adoption of an adult

 

It is a peculiar wrinkle of the Adoption and Children Act 2002 that an adoption order can be made on a 19 year old PROVIDED that the application was lodged before that person’s 18th birthday.  It does not happen very often, but it comes about once in a while.

 

Mostyn J was asked to consider such an application in FAS v Bradford MDC 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/622.html

 

and it takes us into interesting directions.

This was an application by a woman living in Britain to adopt her cousin once removed MW, who is now legally an adult, being aged between 18 and 19. The application was made before his 18th birthday. The major difference between the adoption order being made or not being made would be that MW would be legally able to enter Britain and remain here.

The Court had to consider , when dealing with this application the welfare paramountcy principle.

Section 1(2):

The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

 

This is an important issue, because the ‘throughout his life’ is only in the Adoption and Children Act 2002, and is different to the wording of the Children Act 1989 where it is ‘throughout his childhood’ and also it is a change from the ‘throughout his childhood’ wording in the 1976 Adoption Act.

Obviously, if the Court is dealing with a person who is now 18, then the welfare throughout his childhood is no longer an issue, since he is no longer a child. But welfare throughout his life IS an issue.

Mostyn J was interested in why this change of wording had come about, and investigated it doggedly. He does not really get to the bottom of it, and if he was unable to, I suggest that nobody else will.

This is as close as he gets:-

what welfare considerations Parliament was addressing when it added the words “throughout his life” to the traditional welfare prescription? Section 1 of the Children Act 1989 provides that “the child’s welfare shall be the court’s paramount consideration.” Implicitly this captures only welfare matters arising during childhood. Had it meant to capture benefits arising in adulthood it would no doubt have said so, or have been amended to say so, when ACA was passed. The Consultation Paper “Adoption: a new approach” (December 2000: Cm 5017) does not shed any light on the issue. It merely states at para 4.14 that:

    1. “In 2001, the Government will legislate to overhaul and modernise the legal framework for adoption, and in particular … [to] align the Adoption Act 1976 with the Children Act 1989, to make the needs of children paramount in making decisions about their future.
    2. 34. This is, in fact, what did not happen, as the new adoption welfare test is not aligned with that in the Children Act 1989. I have not received any submissions from counsel about statements in Parliament during the passage of the legislation deriving from Hansard, and I have not undertaken any independent research in this regard.
  1. A significant clue is however found in section 1(4)(c) of ACA. This provides that the court must have regard to the likely effect on the child (throughout his life) of having ceased to be a member of the original family and having become an adopted person. This suggests that the court must look ahead and consider carefully the disbenefits that might arise later in life as a result of being adopted. No doubt Parliament had in mind the extraordinary and tragic case of Re B (Adoption Order: Jurisdiction to Set Aside) [1995] EWCA Civ 48, [1995] Fam 239. The problem there was described succinctly by Simon Brown LJ:

    “It is difficult to imagine a more ill-starred adoption placement than that of a Kuwaiti Muslim’s son with an Orthodox Jewish couple. This appellant was brought up believing himself a Jew, against a background of deep prejudice and hostility between Jews and Arabs, discovering only in adult life that ethnically he belongs to the opposing group.”

    The application by the adopted child, made when he was 36, to set aside the adoption order was refused. It could only be set aside in wholly exceptional circumstances and the facts there, though extreme, were not in that class.

 

Why does this matter?  Well, because there’s existing authority from the House of Lords in 1999  (dealing with the ‘throughout his childhood’ test that existed then) saying that matters that are consequential to the adoption such as inheritance rights or rights of abode are not things that can properly be considered as part of the ‘paramountcy’ principle, and that if the benefit is purely to allow a right of residence as a matter of public policy that is better left to the Secretary of State.

 

  1. I draw attention to the terms of section 1(2) which refers to the child’s welfare “throughout his life”. This is to be distinguished from section 6 of the Adoption Act 1976 (and its predecessors) which referred to the need to promote and safeguard the welfare of the child “throughout his childhood”.
  2. Section 6 of the 1976 Act was the key provision in play in the decision of the House of Lords of In re B (A Minor) (Adoption Order: Nationality) [1999] 2 AC 136. In that case in 1995 a child, T, then aged 14, and her mother, both Jamaican citizens, visited the mother’s parents in the United Kingdom and were given leave to enter for six months. During that period the child went to school in England. When the mother returned to Jamaica the child remained with her grandparents in order to continue attending school. The Home Secretary refused to extend the child’s leave to remain in the United Kingdom. The grandparents, who were British citizens, applied with the mother’s consent for an adoption order in respect of the child. The Home Secretary intervened to oppose the application on the ground that adoption was being used as a means of acquiring right of abode in the United Kingdom.
  3. Lord Hoffmann gave the sole speech of substance allowing the grandparents’ appeal from the decision of the Court of Appeal refusing an adoption order. At 141G to 142A he set out two propositions as follows:

    “The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental responsibility but merely wish to assist the child to acquire a right of abode. This is what Cross J. in In re A. (An infant) [1963] 1 WLR 231, 236 called an “accommodation” adoption. The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the “first consideration.” The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

    And at 141E-G he concluded:

    “I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of section 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary’s discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow T. to remain in this country for the two years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given T. any benefits during her childhood which she would not have been able to enjoy anyway.”

Does Lord Hoffman’s second proposition from Re B – that the Court will rarely make an adoption order that confers no benefits on a child during their childhood but has benefits which bear fruit in later life, stand, given that the paramountcy principle is now ‘throughout their life’ rather than ‘throughout their childhood’?

It is a damn good point.

Mostyn J felt that Lord Hoffman’s proposition was important – the Secretary of State for the Home Office had powers about immigration and who could enter the country and remain here – a family Court should be reluctant to take that power for themselves and there must be a concern that adoption could be used as a loophole to circumvent this, if the only tangible benefit for the person being adopted would be their right to live in the UK.

 

  1. In his recent lecture to the Denning Society on 13 November 2014 entitled “Adoption: Complexities Beyond the Law” Lord Wilson of Culworth with his customary penetration and lucidity identified a number of other searing problems encountered in adulthood which derive from an adoption. I would detract from the integrity of the piece were I to quote snippets from it. Lord Wilson ended with these telling words:

    “I am a passionate believer in the value of adoption in appropriate circumstances. Nevertheless I fear that, in making those orders, I never gave much attention to the emotional repercussions of them. In particular I fear that I failed fully to appreciate that an adoption order is not just a necessary arrangement for a child’s upbringing. Sir James Munby, the President of the Division, said only weeks ago that adoption has the most profound personal, emotional, psychological, social and perhaps also cultural and religious consequences. I totally agree. The order is an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives. As a result of the society’s invitation to me to speak to it this evening, I have belatedly been led to reflect on these complexities beyond the law.”

  2. I am firmly of the view that when Parliament enacted the enhanced welfare test in section 1(2) ACA it was thinking about the long-term emotional repercussions of an adoption order. I am equally firmly of the view that it could not possibly have intended to have abrogated Lord Hoffmann’s second proposition. It would have been extraordinary had it intended to do so. The control of immigration has been a driving force of all governments, of whichever political stripe, for decades. If Lord Hoffmann’s second proposition has gone, and the benefit of citizenship solely or mainly taking effect in adulthood is, of itself, a welfare reason to make an adoption order then one can see that a large loophole will have been opened up in an area which is extremely tightly regulated.

 

Mostyn J looked at the three reported authorities dealing with a similar issue where Lord Hoffman’s speech had been dealt with post the 2002 Adoption and Children Act, but did not find that they resolved the point.  In all three of the reported cases, the Court went on to make the adoption order, but none specifically addressed whether Lord Hoffman’s second principle applied (focussing rather on his first principle that the Court should not allow an adoption where the application is made in bad faith)

 

  1. I have concluded, for the reasons I have given, that Lord Hoffmann’s second proposition remains fully operative notwithstanding the advent of the enhanced welfare test in sections 1(2) and 1(4) ACA. I would re-express that proposition, in the light of ACA, as follows:

    “The court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. This is not inconsistent with section 1(2) of ACA. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

  2. In this case I can see no benefits at all for MW deriving from an adoption order other than citizenship. If he were entitled to stay here I am sure that this application would not have been made. He would live with FAS and his second cousins. His life would be identical whether or not he was bestowed, as an adult, with the formal status of adoption.

 

Mostyn J says explicitly that he has done so on the basis of his interpretation that Lord Hoffman’s second proposition still applies, and that if it did not, he would have made the adoption order.

Finally, I should state that if I am wrong in my opinion that Lord Hoffmann’s second proposition remains operative, and that it is in fact a dead letter, then I would have concluded that the inestimable life-long benefit of citizenship to MW would have driven me to make an adoption order. If that is the law then I expect that the government would want to look urgently at making an amendment to ACA to restore that proposition to life.

 

 

 

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