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Nothing else will do – Court of Appeal clarification

We have been waiting a year for something like this, so this is quite a swift post pointing you to it and giving you the relevant quotations.

I wrote a piece for Jordans a long while ago, saying that whilst the “nothing else will do” test appears at first glance to be simple common sense English, there are a number of possibilities for what it actually really means

 

http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/nothing-else-will-do-why-the-last-resort-won-t-necessarily-be-the-last-word

For example, which of these following definitions of ‘nothing else will do’ is actually right?

(1) There is genuinely, literally, no other option that could be conceived of.
(2) The other options available are appreciably worse for the child than adoption would be.
(3) There are other options, but they require a degree of intervention by the state (ie the local authority) that they would in effect be unworkable.
(4) There are other options, but they require a degree of intervention by the state that the state says is disproportionat (at some stage, the R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1 decision is going to come into play).
(5) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 26-week PLO timetable.
(6) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 8-week extension to the 26-week PLO timetable that is permissible in ‘exceptional’ circumstances.
(7) There are other options, but in order to make use of them, the court would be extending the decision-making process to a point where the delay would be harmful for the child and the harm can not be justified [that is really where we have historically been].
(8) Any of the other options would cause harm to the child or carry with it a significant risk of harm to the child, and weighing up the options, adoption is the least harmful of all of the options available.
(9) Another one/ten that I have not thought of yet.

 

 

[I do sincerely apologise for quoting myself, and don't mean to do so in a Presidential manner, it is just that I knew I'd already written somewhere else exactly what I wanted to say here, and it seemed crackers to rewrite it from scratch]

 

So, which of those is it? Do the Court of Appeal finally help?

 

Re M-H (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1396.html

 

It involves an appeal from my own Designated Family Judge, so I’m rather relieved that her decision was upheld (otherwise it is slightly awkward to write about) but not my own Local Authority.

 

The appeal was brought largely on the claim that the Judge at first instance had applied the wrong test for the making of a Placement Order.

 

This is what the Court of Appeal say  (underlining as ever, mine for emphasis)

 

  1. The ‘correct test’ that must be applied in any case in which a court is asked to dispense with a parent’s consent to their child being placed for adoption is that statutorily provided by the sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002 interpreted in the light of the admonitions of the President in Re B-S (Children) [2013] EWCA Civ 1146 which drew upon the judgments of the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and rehearsed previous jurisprudence on the point. The “message” is clearly laid out in paragraph 22 of Re B-S and needs no repetition here.
  2. However, I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words “nothing else will do” to the exclusion of any “overriding” welfare considerations in the particular child’s case.
  3. It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of “nothing else will do” automatically bites.
  4. It couldn’t possibly. Placement orders are made more often in anticipation of finding adoptive parents than with ones in mind. Plans go awry. Some adoption plans are over ambitious. Inevitably there will be a contingency plan, often for long term fostering. The fact of a contingency plan suggests that ‘something else would do at a push’, the exact counterpoint of a literal interpretation of “nothing else will do”, and it would follow that the application would therefore fail at the outset.
  5. The “holistic” balancing exercise of the available options that must be deployed in applications concerning adoption is not so as to undertake a direct comparison of what probably would be best but in order to ascertain whether or not the particular child’s welfare demands adoption. In doing so it may well be that some features of one or other option taken in isolation would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits. But this is not to say that finding one or more benefits trumps all and means that it cannot be said that “nothing else will do”. All will depend upon the judge’s assessment of the whole picture determined by the particular characteristics and needs of the child in question no doubt often informed by the harm which s/he has suffered or been exposed to.

 

Boiling that down – it does not mean that there are literally no other credible options, nor does it mean that there are no other credible options which offer benefits. It means really that the Judge must choose the right option for the child’s needs but have in mind that if the child’s needs can be met by a less drastic order that should be preferred to adoption.

 

And that if a Judge is going to make a Placement Order, the judgment will need to set out the other options, assess their credibility and explain why they have not been followed.

 

It is really about judgments being rigorous and robust and analysing the pros and cons – I think for the last nine months we have all been swept along on replacing one set of stock judicial window-dressing phrases for another, that as long as the phrase “nothing else will do” peppers the case and the documents and the judgment that will suffice.  The real message of Re B-S for me, was that the options have to be set out with proper rigour as to what they would mean for the real child in the real case.

Faking medical evidence

 

This is a County Court case (if there is such a thing any more, I have largely decided to ignore most of the Children and Families Act 2014 and just wait for the reboot restoring all the terminology to the way it was). So it isn’t precedent, and isn’t one of those case that you HAVE to read.

 

It is unusual though, and I am grateful to one of my readers (waves at Cara) for drawing it to my attention.

 

Re E (a child) 2014

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B136.html

 

This is a private law case, albeit one with a Social Services flavour. In effect, when mum and dad separated and got themselves embroiled in an argument about contact (see, I told you that I was just going to ignore the new terminology) dad started to become enamoured with the idea that if he could show the Court that mum was abusing the children, that would improve his own case.

 

In part, this involved him making a series of allegations to his GP, Dr C, and getting Dr C to take up the battle on his behalf and trying to get Dr C to make referrals to Social Services about how mum was abusing the children. That’s not nice, but it isn’t necessarily unlawful.

 

What IS unlawful, is that when the father produced documents to the Court  provided by Dr C and signed by Dr C, they were partially faked.

 

There were a string of findings that the Judge was invited to make, but these are the pivotal ones for our discussion

 

 

    The father has perverted the course of Justice:

 a)              The father has amended and/or created a false statement purporting to be from his GP, Dr C dated 4 October 2013, and forged his signature on the statement and then filed and served the statement with the court;

 b)                 The father has amended and/or created a false second page to a letter originally written by Dr C dated 15 August 2013 and forged his signature upon the letter then filed and served the letter with the court in support of his application to call Dr C to give evidence. Both allegations are admitted by the father.

 c)               Altered the recording of E that he played to the police and to Dr C and presented it in edited form with the court to present a dishonest and/or misleading account of the original content. The father admits this allegation save that he does not accept producing a dishonest account.

 

 

For reasons that I cannot fathom at all, having produced this fake evidence from Dr C, the father was very keen indeed for Dr C to attend Court and give evidence. There’s a phrase ‘cognitive distortion’ which relates to when someone is so deep into their own lies that they start to believe them, and I can only think that this father for some reason thought that calling Dr C as a witness in the case was not (as you or I would think) a sure-fire way of exposing the documents as being fake, but in some way going to improve his case.

 

On 11 February 2013 [location redacted] Social services sent an email to Dr C informing him that Mr P had contacted them and had suggested that he, Dr C, had further concerns about E. They asked him to complete a referral form if that was the case. The doctor completed the referral form in which he stated:

 

“ The actions of the mum towards E are causing concern to E and the father R. Including withholding medicines, safety issues making her cross the road on her own, leaving her outside in the street, forcing cough syrup….” The father admits tippexing out the words which followed this entry before he filed the document with the court.

 

 

[Tippex is perhaps not the most sophisticated method of forging a document. It is rather beneath the level that one expects of a forger. Colin in The Great Escape, for example, would not have stooped to using tippex to create his German identity papers for those escaping POWs]

 

The father within the proceedings had also involved the media

 

 

During the course of these proceedings the father on two occasions threatened to tell his story to the press. On two occasions two judges, DDJ Murphy and HHJ Allweis warned him not to do so. However on [date in early 2014 redacted] 2014 an article appeared in the [name of newspaper given] in which the father’s account of his battle for residence and contact are repeated alongside a pixilated photograph of himself and E. Although the names were changed it was not too difficult for anyone in the relatively small local Jewish community to identify the parties. He gave the reporter details of her school so that the head teacher was interviewed. Her mother was also approached by the reporter.

 

In his statement the father acknowledged that what he did was wrong. The consequences for him have been stark as E has now refused to see him and the future of his contact is now uncertain.

 

 

The Judge gave judgment specifically on the consequences for father of having falsified documents lodged with the Court and relied upon

 

The father’s action in respect of the falsified documents

 

With regard to the falsifying of evidence. I find that the father falsified the letter from Dr C dated 15 August 2013 addressed to [location redacted] County Court at page C182 in the bundle by amending the second paragraph the paragraph at the bottom of page C182/3. He then forged the doctor’s signature. Thereafter he filed the document with the court as part of his evidence in the case. The letter which Dr C had signed is to be found at C 183(a).

 

I find that the father submitted a statement dated 4 October 2013 which he knew to be false in that it had not been approved or signed by Dr C purporting it to be a genuine document knowing that it would be used in litigation in the private family law proceedings being conducted in the County Court. This to be found at page C201.

 

The consequences of his actions are that there could have been a miscarriage of justice which could have affected the welfare of his daughter.

 

This is a serious and potentially criminal act. I have come to the conclusion that it warrants reporting the matter to the DPP for her to consider what if any action to take. A copy of my judgment and copies of the letters dated 15 August 2013 and the statements dated 4 October 2013 and 10 October 2013 shall be disclosed to the DPP or the police.

 

 

The Judge was also invited by those representing the mother to consider a referral to the General Medical Council in relation to Dr C, who had become embroiled in the litigation and had neglected his duties of fairness and safeguarding. Dr C had also learned that the father had submitted a fake document to Court but had left it up to father to own up rather than alerting the Court to this deception.

 

 

The role played by Dr C

 The mother supports the guardian in submitting that the doctor should be referred to the GMC.

 

The doctor’s involvement has been summarised above in that he knew that the father was involved in a dispute about the welfare of a child which was proceeding before the courts yet he did not exercise caution before writing the letters and making the referrals to social services. He sought to question the child with her father present in order to obtain evidence of abuse.

 I accept the submissions of the mother and the guardian. I make the following findings:

 i)                   Dr C was naïve and was manipulated by the father. The evidence suggests that he was targeted by the father as a means of obtaining evidence to further his case. In so doing he allowed E to have unnecessary medical appointments;

 ii)                 Dr C could and should have spoken to the mother. He did not know that the mother was a patient at the practice. A simple check before proceeding to refer to social services would have made him better informed in assessing the issues being raised by the father. He therefore failed to follow the safeguarding guidelines in that he did not provide support to the primary carer, the mother, before making the referral to outside agencies. Speaking to the mother would not have put the child at risk of harm.

 

iii)               Dr C failed to keep an open mind as to the truth of the allegations. In doing so he failed to protect her from the father’s allegations and he allowed the father to be present when the allegations were being discussed. He accepted, and I find, that his letters were too subjective.

 iv)               Dr C admitted that he was not up to date with his safeguarding training;

 v)                 Dr C’s clinical notes of appointments with E, where allegations of ill treatment were discussed, were not properly kept.

 vi)               He also admitted that he was not fully aware of the court procedures. This explains his willingness to issue the letters on Practice Headed notepaper. He did not consider what use the father could have made of these letters.

 

vii)             Dr C failed to contact the Cafcass officer or the court to alert them to the fact that the father had admitted to fabricating his statement and had forged his signature and had submitted the statement to the court as evidence in support of his case.

 

viii)           I accept the submission of the guardian that his actions albeit unwittingly, facilitated father’s emotional abuse of E.

 

I have carefully considered the submissions of the mother and the guardian. I agree that a copy of my judgment and a transcript of Dr C’s evidence should be sent to the GMC so that they can further investigate this matter and take appropriate steps if they consider that this is necessary.

 

 

With the profoundest respect

 

Firstly, apologies. I know that to lawyers, using that title is the equivalent of me going into a Wetherspoons pub, finding the drunkest person there, giving them a lot of amphetamines and telling them that (a) you were the person who stole their wife back in 1984 and (b) that they should go around your house and shout what they think of you through your letterbox.

 

Non-lawyers may not be aware of the lawyer code which is “with respect” = You absolute moron, you’re wrong.  “with great respect”  = ffs do you have anything between your ears, you are utterly wrong , “with the greatest possible respect”  –  I am going to have to get Malcolm Tucker to concoct a sentence which truly construes how annoyed I am with you and how wrong you are.  I honestly didn’t even know it went up as high as “with the profoundest respect”

 

So why am I dropping the P-R bomb on y’all?  Well, because that phrase appears in a judgment, and it is used by a High Court Judge, and he is using it about the Court of Appeal.

 

The Judge is Mostyn J (who has had a busy autumn), and the case is Re D 2014  http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.html

 

I wrote about Mostyn’s initial decision here http://suesspiciousminds.com/2014/01/08/brussels-sprouts-ii-this-time-its-jurisdictional/

I’ve written about the particular Court of Appeal decision here (and you can see that I may have been somewhat bored by it, because a lot of it ends up being co-written by Snoop Doggy Dogg – apposite given post 500)

http://suesspiciousminds.com/2014/02/21/and-i-aint-talking-bout-chicken-and-gravy/

 

The gist of it, very quickly.

The father in the case was found to present a massive risk to children. I don’t think anyone (even Ian from Forced Adoption) could dispute that he would be a bad person to be around children. The real meat of the case was whether mother could separate from him and stay away from him.

The background this case is to be found in my fact finding judgment of 30 November 2012 to be found in section A at page 53. I do not repeat it here. Suffice to say that I found the father, Stefan D, to be guilty of truly bestial conduct. I recorded his conviction in the year 2000 in the Czech Republic of offences of the utmost seriousness involving the gross abuse and exploitation of women and girls. I found how, after his arrival in the UK, he meted out appalling domestic violence to his wife, Daniella D. I found how he engaged in serious criminal activity, largely centred around illegal drugs. I described how I was satisfied that he had seduced his 16 year old stepdaughter by plying her with drugs; how he had had unprotected sex with her; and how she became pregnant by September 2011 when she was only 17 years of age. I recorded how this sexual congress took place in the family home to the knowledge of the other minor children there, B and K. I recorded how he was even having sexual intercourse in the same time-frame with his wife as he was with his stepdaughter. I found that the statutory threshold in section 31 of the Children Act had been comprehensively crossed, both in respect of past harm and the risk of future harm.

Care proceedings, mum and dad were both Czech, and had gone back to live in the Czech Republic. The baby was in care in England and the care plan of the Local Authority, shared by the Guardian was for adoption.  Mostyn J had to decide a Brussels II application, and in doing so, he raised an important philosophical question – if the outcome of the case would be radically different in another country (because England has non-consensual / forced adoption and the Czech Republic does not) should that be taken into account? Mostyn J did take it into account and decided that the case (and future of the child) ought to be transferred to the Czech Republic.

 

That was appealed, and the Court of Appeal in Re M (A child) 2014  http://www.bailii.org/ew/cases/EWCA/Civ/2014/152.html decided that Mostyn J was wrong, that you decide Brussels II on the facts of the case and you give no regard at all to how another jurisdiction might decide the case.

Here are the 3 questions to be answered

” … as Art 15(1) makes clear there are three questions to be considered by the court – here The Hague court – in deciding whether to exercise its powers under Art 15(1):

i) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child’s nationality (see Art 15(3) (c))?

ii) Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

 

I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, “what outcome to these proceedings will be in the best interests of the child?”

 

 

So they told Mostyn J that the English Court would decide the case, overturned his decision and sent it back to him for determination.

 

I have never had the experience of going back into a case where the Court of Appeal have told the Judge he was wrong and then gave him the case back – it must be a somewhat trying situation. We now see from Re D, just how exasperating a Judge might find that experience.

 

[In the interests of fairness, I'll throw my hat in the ring - I think Mostyn J first time got the right decision for the wrong reasons, and I think that the Court of Appeal had the right reasoning but reached the wrong decision, so I can see why there's some rancour there.  ]

 

What follows is all genuinely from Re D (at least all the stuff in bold – a Judge thought of this, wrote it down and published it. For real – underlining is by me, for emphasis)

 

 

  • The reason I am conducting this hearing today in September 2014 is because I have been ordered to do so by the Court of Appeal. My decision of 18 December 2013 was that a Czech court would be better placed to hear this case and in consequence of that decision I issued a formal request under Article 15 of Brussels II Revised Council Regulation No 2201/2003. That formal request sought the agreement of the Czech court to hear this case to its conclusion. My decision of 18 December 2013 was overturned by the Court of Appeal on 21 February 2014 and that is to be found in section A, page 167.
  • It is necessary for me to make reference to aspects of the judgments of the Court of Appeal, if only to clarify matters. The Court of Appeal decided that my decision was flawed as I had allowed the consideration of ED’s Czech nationality to dominate my thinking to the exclusion of any proper consideration of the second and third questions formulated in AB v JLB [2009] 1 FLR 517 (see paragraph 45 of Lord Justice Ryder’s judgment). It was said by him at paragraph 31 of his judgment that the practical considerations which I had identified at paragraph 40 of my judgment of 18 December 2013 were equally matched by the merit of judicial continuity. Notwithstanding that equal balance which I had ultimately decided in favour of a transfer request, Lord Justice Ryder held at paragraph 46 that the issue should have been decided in favour of a continuance of the case here. In his judgment Lord Justice Lewison suggested that in making my decision I had given expression to some kind of secret agenda or inherent hostility to the making of a care order with an adoption plan.
  • In my defence I would say this:

 

(1) If in fact I gave too much weight to the matter of nationality as a connecting factor under the first question it cannot be disputed that it certainly had to be given some weight. However, the Court of Appeal decision affords this factor no weight at all. Instead it merely balances the factor of judicial continuity with the practical considerations and, notwithstanding that they were found to be evenly balanced, my decision to seek a transfer was overturned. This is very hard to follow.

(2) I certainly, in my paragraph 29, was not operating any kind of secret agenda but was merely emphasising the draconian and momentous nature of care and placement orders and faithfully recording and following the views of the senior judiciary in Re B [2004] 2 FLR 142 at paragraph 101, per Mr Justice Munby (as he then was); Re B [2013] 1 WLR 1911, a decision of the Supreme Court; and Re B-S (Children) [2013] EWCA Civ 1146, a decision of the Court of Appeal.

(3) The conduct of this trial has shown how the Court of Appeal’s perception of an equal balance of judicial continuity and practical considerations was, with the profoundest of respect to them, wrong. No material from the fact finding hearing has featured in this case other than my judgment. My judgment has been treated as the alpha to omega of the past proceedings. Unquestionably another judge could have conducted this hearing in exactly the same way that I did. I did not reach for any unwritten nuances or impressions as referred to by Lord Justice Ryder at paragraph 27. In my previous judgment I stated that the advantage of me conducting the hearing would be marginal. With the benefit of actual experience I would say that I have had no such advantage. By contrast, even though Lord Justice Ryder thought in his final sentence of paragraph 31 that, “In a world where the use of information technology is a commonplace the physical location of a professional witness is rarely likely to be decisive” the experience of this case showed that this too was a misplaced view.

 

 

The technology all broke down (I have sad real-life experience of how awful it can be to be involved in video-link evidence overseas, and it is like the course of true love in that it never runs smoothly)

 

The video link to the Czech Republic frequently froze visually leaving me only with sound. I lost the chance in this case in respect of the three crucial witnesses from the Czech Republic to assess their demeanour. All the vital evidence from the Czech Republic had to be professionally translated. The translator gave a heroic performance but the exercise was completely unsatisfactory leaving me again unable, because of translation, to judge these important witnesses’ demeanour. The father also gave his evidence by video link or for much of the time only by audio link, again translated. It was very difficult for me to judge him in the way that I am required to do so.

 

 

  • In my judgment of 18 December 2013 I said at paragraph 40 (this is page A165, the final two sentences):

 

“But beyond these lofty expressions of principle are the simple practical facts that the parents are in the Czech Republic. Baby LD is in the Czech Republic and any proceedings in the Czech Republic will be conducted in the first language of the parents.”

Those practical facts loomed very large in the hearing before me. Those practical facts, or rather my inability to give expression to those practical facts, impeded the trial significantly. Notwithstanding that I had been found by the Court of Appeal to have erred, I am convinced that this case was at all times better tried in the Czech Republic. And had it been tried in the Czech Republic then no placement order, as contended for by the Local Authority and supported by the guardian, could have been made, as that order, in common with almost all other countries in the EU, with the exception of Ireland and Croatia, is beyond the powers of the court in the absence of parental consent.

 

 

The Judge discusses the expert witnesses from the Czech Republic who gave evidence via this flawed video-link. When you see that one of them said in writing that the mother could ‘definitely’ protect the child, you might have your antennae for “you’re going to collapse in cross-exam” twitching, and you’d be right

 

 

  • The next three witnesses were taken over the often malfunctioning video from the Czech Republic and they were the psychotherapist, Leona Hozova, the father and the social worker, Pavla Polakova. I will take the two professional witnesses first. Their written material was laconic indeed but it is not for me to criticise what may well be the usual practice for making professional reports in the Czech Republic. If it is the usual practice then as one who has to read these reports I can see a lot to commend it. Leona Hozova, a psychotherapist employed by the Domino Organisation, a well-known organisation in the Czech Republic, has provided three short statements at section C159, 193 and 195. I quote from the most recent dated 29 May 2014. It is so short that I can read it in full:

 

“From a position of a psychotherapist working with the family, I can respond within my competence as follows:

Ms M, dob 23.04.1994, is capable of recognising a danger and she is definitely able to protect her children, in this case her son ED, dob 27.06.2012. Ms M is an exemplary and loving mother. She is able to bring children up and to create them a relationship in harmony. From an attachment point of view, she is able to create safe and strong bond between her and her children. In a case of any possible danger she would be the first one to protect and defend her children.

At this time Ms M exhausted from the whole situation, psychologically very tired. This whole situation is very difficult for her and her family. Despite this she is still able to function as a mother without any problems and to carry out her child’s needs. During our consultations with Ms M we do not only talk about her psychological state, but we work together on developing her parental competency and smooth care of her child.

As a family psychotherapist I do not find any reasons to take Ms M’s child away, she is a caring and loving mother.

In terms of the psychological help which I am providing to the parents, so far I did not find any pathological elements in the behaviour of the father of Stefan D, dob 25.10.1972. Mr D is able to look after the daughter LD, dob 13.09.2013, without any problems and with love even at times when Ms M is away in England. Mr D is psychologically very broken from the whole situation, delaying of the whole matter has broken him psychologically. As a psychotherapist I can not express my opinion regarding his personal life and his actions at the time before our psychotherapeutic sessions.

Recommendation:

I recommend ED to be returned to his parents.

If it was not possible due to some particular reasons, then I recommend to place ED to foster care in the Czech Republic into a foster family who is experienced with foster care and who would live near to the parents, the reason is the most effective complying with ED’s needs and to enable ED’s contact with his biological parents.

I recommend to continue in regular psychotherapeutic consultations with the parents (both individual and in pair) and in strengthening their parental competence, further on in company of a family advisor who mainly focus in children in the family and in their care.

This opinion has been given on request of the High Court in London, England.”

 

  • In her oral evidence she confirmed that the mother and father had punctiliously attended all psychotherapeutic appointments. However, under cross-examination and significantly she accepted that she was not convinced, notwithstanding the mother’s assertions, that she would in fact ever leave the father, notwithstanding that in her assessment the mother was full of love and was a very careful mother to baby LD. She was satisfied that the mother authentically loved the father but she was of the view that that love was a search by the mother for a substitute father figure, a substitute for the father who abandoned her when she was a young child. She confirmed that she had spoken to both parents about the findings made by me in my fact finding judgment of 30 November 2012 but the father had told her unambiguously that they were not true. He told her that he rejects my findings of domestic violence meted out to his wife, Daniella D, although, in contrast to what he told me at the fact finding hearing, he accepted that he was actually and properly guilty of the criminal offences in respect of which he was sentenced in the Czech Republic in the year 2000. Similarly, but not nearly to the same extent, the mother told her, the psychotherapist, that she did not accept my detailed findings in which the relationship was begun and conducted.
  • Miss Hozova told me that in the Czech Republic there would be available foster parents who could look after ED and that such foster parents had full experience of caring for Roma children. Under cross-examination she accepted that she had tried hard to open up the topic of the father’s past conduct as found by me but that he simply would not co-operate. In a very significant statement for my purposes she stated whilst being cross-examined:

 

“For as long as he does not accept the findings there are considerable risks in placing ED with him and the mother.”

 

 

The Judge weighed up the evidence very carefully and rejected the proposals made by both sides (the mother seeking return of the child, the LA and Guardian seeking adoption)

 

 

  • These are my conclusions. First, I reject the proposal by the mother that these proceedings be dismissed and ED be returned to her and the father in the Czech Republic. That is manifestly not in his interests. Such a placement back with his parents would be replete with far too many risks in circumstances where the father categorically rejects the majority of the previous findings made in this case. He plainly cannot confront his demons until he has identified his demons. The same is true to a lesser extent in relation to the mother. If these parents were living here it is inconceivable that ED would be returned to them. That they are in the Czech Republic surely makes no difference. If a corollary of this finding by me is that I must conclude that baby LD should not be with her parents while deep professional work is done the first base of which is a full acceptance of the wrongdoing the father has done both to Daniella and to the mother, then I do not shrink from expressing that corollary.
  • I now turn to the choice urged on me by the Local Authority and supported by the guardian. In Re B-S at paragraph 19 the President, Sir James Munby, stated:

 

“It is to be remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trust and Another v H and Another [2006] UKHL 36 at paragraph 34 that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.”

 

  • In this case Janet Kavanagh in her second statement dated 14 June 2013 has adduced certain research extolling the merits of adoption. At paragraph 22 she said this:

 

“The benefits of successful adoptions are well-evidenced: the overview of evidence research by Coram and Barnados (Exhibit 2) shows adopted children have good psychological outcomes and more stable placements than children brought up in care. “Adoption by contrast (with long-term fostering) is associated with lower disruption rates and placement stability confers a reduction of problems over time and growth of attachment” (Social Care Institute for Excellence in their scoping review of research of looked after children, Exhibit 3). Moreover the Adoption Research Institute (Exhibit 1) goes so far as to state that said that, ‘Adoption should be considered for every child who can not return home’.”

 

  • The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment.
  • Therefore I turn to the two intermediate choices and ask myself if either of them will “do.” Only if neither will “do” will it be appropriate to make the order sought by the Local Authority. In my judgment a special guardianship order in favour of the current foster parents would be the preferred solution. I will not spring such an order on them or on any of the parties here pursuant to the Children Act 1989 section 14A(6)(b) and I cannot in fact envisage such an order being made of the court’s own motion other than by consent. Only if the foster parents apply for a special guardianship order will such an order be made. I invite them to decide within 14 days of today if they will apply for a special guardianship order. If they do I urge them to apply promptly so that a report under section 14A(8) can be prepared.

 

[You may remember the Court of Appeal case I recently discussed where the foster carers WERE putting themselves forward and the Court of Appeal said the Judge was not wrong to reject them - here they weren't, but the Judge was trying to persuade them to do so]

 

I think that this is an important case – not for setting precedent – this won’t be relied upon in other cases and if it was attempted to be, I am confident that the Court of Appeal would have little hestitation in correcting Mostyn’s views here. But it frames an important philosophical debate – do the Court of Appeal really mean ‘nothing else will do”  – or do they mean “the other options must be considered and if adoption is the decision the Court must explain why they have been rejected”  – and Mostyn J raises the other major issue – are WE right in allowing forced adoption (together with two other countries in the EU, or are the other 25 countries right to have rejected it?

How long will it be before this is litigated, at length in the ECHR?  Y v UK set down the marker that Re B  and then Re B-S followed  [some observers, myself included think that 'nothing else will do' was an attempt to get English adoption law back in line with the ECHR view of it], but has there actually been a sea-change in the sort of cases that warrant adoption or have we all just swapped one set of ‘judicial window-dressing’  (draconian order) for a fresher one ‘nothing else will do’ ?

 

I have to say that it feels sometimes on the ground that we have just swapped our incantations for a newer form of words, rather than the radical re-think on adoption that Re B-S looked like a year ago.

 

What was Mostyn J’s plan if the current carers did not offer themselves up as Special Guardians? Well, here’s where it gets interesting. And remember, the Court of Appeal had said no to transferring this case to the Czech Republic under Brussels II.

 

If the foster parents do not signify that they will seek a special guardianship order I then will turn to consider the choice of a placement with Czech foster parents. If I were to do this it could not be under a care order. It is trite law confirmed by a decision of the House of Lords that once a care order is made all subsequent decisions concerning placement of the child are delegated to the Local Authority without interference from the court. The only role the court has thereafter is in relation to contact. Therefore if I were to go down this route it would have to be outside the care proceedings; those proceedings would have to come to an end and wardship proceedings would have to be commenced. The order placing ED with Czech foster parents would be a judgment made in wardship proceedings and such a judgment would be enforceable under Articles 21 and 23 of Brussels II Revised and under Article 23 of the 1996 Hague Convention. However, the judgment could only be enforced in the Czech Republic provided that Article 56 had been complied with (see Article 23(g) of Brussels II Revised).

 

I.e, I’ll make a wardship order and place the children in foster care in the Czech Republic.

 

The LA and Guardian expressed some doubts on that, given that the agencies of the Czech Republic had been leaning more towards rehab to mother’s care.

 

 

  • If therefore there is no signification by the foster parents to seek a special guardianship order within 14 days I direct that the central authority, OILPC, be notified that this court is contemplating a placement of ED with Czech foster parents and ask them to set in train the identification of such foster parents in accordance with the terms of the letter which I have just read out. If foster parents have been identified by the Czech central authority pursuant to the procedure set out by 1st November 2014 the matter must be restored to me to consider the suitability of those foster parents. If they are suitable then I will make the order in wardship that ED be placed with those foster parents and such an order and judgment will explicitly provide that the question of contact or indeed discharge from foster care will be made by the Czech court.
  • In principle I consider that foster care in the Czech Republic is a preferable solution to the irrevocability of a care order and placement order although, in my judgment, it is not as preferable as a special guardianship order. My reason is that in this case the ethnicity factor and parental link I regard of critical importance and which must have the capacity of being preserved and should not be irrevocably severed on the facts of this case. I reject the argument made for the Local Authority by Mrs Rowley, and by Mr Veitch for the guardian, that this solution is replete with risks because the Czech court might return ED to his parents. If I might respectfully say so it is a highly chauvinistic, almost neo-colonial sentiment. If the Czech court does return ED to his parents it will be after a full hearing with the child represented by a guardian. Plainly there can be no serious suggestion made that the Czech court would not, in any hearing, properly promote the interests of ED. Only if both of these intermediate choices prove to be impossible will I be satisfied that nothing else will do and in those circumstances I would make on the evidence the care order and placement order.
  • I accept entirely that the solution I have proposed and which I order will involve further delay in achieving finality for ED. I accept that the avoidance of delay is an almost canonical prescription in this kind of proceedings. However, bearing in mind that I am making arrangements which will affect the whole of ED’s life I do not believe that the most profound consequences of that decision should be sacrificed on the altar of the avoidance of delay.

 

So, to suggest that the Czech authorities might return the child to mother’s care is highly chauvinistic and almost neo-colonial…

 

Let’s see what the Czech authorities had to say (AFTER the judgment was handed down. Again underlining mine for emphasis)

 

 

  • On 29 September 2014 this court received a letter dated 23 September 2014 from Mr Zdeněk Kapitán, the Direct of OILPC. This was written and received well after I had orally given judgment. The letter reads as follows:

 

“The Office for International Legal Protection of Children, as the Central Authority of the Czech Republic under the Council Regulation (EC) No 2201 /2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 hereby states its position regarding the case of the child mentioned above.According to the information available to the Office, the child is currently removed from the care of his parents and is placed in the foster care.

As our Office is highly concerned about the best interest of the minor who is the Czech national we respectfully ask the Court to consider, while deciding in the Care Order proceedings the following rights of the Child arising from the international conventions named below that are binding for the United Kingdom of Great Britain and Northern Ireland.

Firstly, the Office would like to point out at the Article 8 of European Convention of Human Rights that regulates the right to respect for private and family life, the Office hereby highlights the case law of the European Court of Human Rights (hereinafter “ECHR’) in respect of the Article 8 of the Convention. In particular the ECHR constantly rules that “the fact that a child could be placed In a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents, there must exist other circumstances pointing to the effective ‘necessity’ for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with the child” (T v FINLAND, § 173)

Furthermore, the ECHR declared that “although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may jn addition be positive obligations inherent in an effective ‘respect’ for family life. Thus. where the existence of a family tie has been established, the State must in principle act in the manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited” (KUTZNER v. GERMANY. § 61).

Secondly, the Office draws the attention of the Court to the Article 8 and Article 9 of the United Nations Convention on the Rights of the Child under which the States Parties undertake to respect the right of the child to preserve his or her family relations and shall ensure that a child shall not be separated from his or her parents against their will unless the certain conditions are met.

Finally, the Office understands that the habitual residence of the above child is in the territory of the United Kingdom and that the Court shall have the jurisdiction in the matter. Nevertheless if the Court considers that it is in the best interest of the child to proceed under the Article 15 and/ or the Article 56 of the Regulation, the Office supports such proceedings and is very open to offer the Court its further assistance in proceedings under the Article 15 and / or the Article 56 of the Regulation.

In conclusion, the Office appeals to the Court to take into consideration the aforesaid and not to interfere with the right to respect for family life unless it is necessary and justifiable.

This statement is to emphasize the importance and priority of the work with the biological family over the very extreme measure of separating the child from his parents and placing him into foster care. Accordingly, we are of the opinion that in case the parents are not able to take care of the child, the members of wider family should be always considered as potential carers.”

 

I might be highly chauvinistic and almost neo-colonial, but I read that as the Czech authorities dropping a pretty big hint that if the child is in their control, they view foster care as the last resort and a very extreme measure.

 

Now, one could of course argue – this is a Czech mother, a Czech father, a Czech baby – let the Czech Republic get on with it and make their own decisions, it is really their baby to make decisions about.  Except… that’s exactly what Mostyn J decided first time out and the Court of Appeal rejected that.

 

We don’t know yet what has actually happened. Here is my guess – either the LA and the Guardian began drawing up an appeal claim straight away OR a lot of pressure was put on the current foster carers to take up the offer of Special Guardianship to avoid further ligitation.

 

I’m not a huge fan of how Mostyn J has necessarily gone about this, but it is a real practical issue on the ground – we are having more and more babies in England and Wales whose parents are from other parts of the EU, those countries being ones who don’t have non-consensual adoption – should we be spending huge amounts of taxpayers money litigating these cases in England, or should the decisions about the children be taken in the parents country of origin?   (It gets ludicrously tricky if mum and dad are from different countries within the EU, of course)

 

The ECHR’s already tough line on non-consensual adoption was in a case where the UK was making decisions about the children of its own citizens – might they take an even tougher line when the first case of a foreign national’s children goes before the ECHR?  The Italian C-section case drew a lot of overseas attention – and if we have 3 countries within the EU who support non-consensual adoption and 25 who don’t, the UK government may not be preaching to the converted if a case of that kind comes up before the ECHR.

 

 

Permission : Impossible

 

(I asked the Court of Appeal to give me a permission judgment, so I could use this title, and they delivered the same day I asked.)

Re G (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1365.html

This was an application for permission by the mother to appeal out of time in relation to the making of a Care Order and Placement Order.

Those orders had been made as a result of overwhelming and unanimous medical evidence that the child had suffered a brain injury deliberately inflicted (it’s a classic ‘shaking injury’ case)

The orders had been made in September 2013, and the appeal itself was heard in September 2014, so clearly out of time.

The interesting wrinkle was that the mother was seeking to rely on ‘fresh evidence’ – her case was that she had learned after the final hearing that an infection that she had had was steptoccocal in nature, and thus might have been passed on to the baby in the birth canal – and thus that the ‘injuries’ to the child might have been as a result of organic causes rather than injury.

The mother obtained a report from Dr Wayney Squier dated 28th April 2014.

(The Court of Appeal descend into quite a bit of detail on her credentials and whether Dr Squier ought to have disclosed within her report that she was up before a Fitness to Practice Panel in relation to allegations about her doing expert reports that she wasn’t qualified to do. I’m not going to go into any of that, because I obviously don’t know the outcome of the Panel – Dr Squier might very well have been utterly exonerated / be utterly exonerated. And the Fitness to Practice Panel might drag on for months/years, so is she to lose her livelihood in the meantime?  Slightly different of course if the GMC suspend someone.  Let’s just say that the Court of Appeal tend to think that it was a material fact which OUGHT to have been communicated by the expert, rather than as here, everyone learning this when they heard it on the radio)

I have tried to track through the judgment, how that report came about. It clearly wasn’t ordered within the care proceedings. And it had not been ordered by the appeal courts. It emerges that an application had been made to the Judge who had decided the fact finding hearing and been granted. I’m not sure what the locus for that would be, given that there were no proceedings at that time. The purpose of the report was to see if there was a basis for appealing on fresh evidence – it was obtaining that fresh evidence.
The Court of Appeal were therefore looking at a number of issues

1. Could mother apply for an appeal out of time based on fresh evidence, asking the Court to re-open factual issues?
2. Did the Circuit Judge have jurisdiction to authorise the instruction of Dr Squier (or anyone) ?
3. If the appeal was to go ahead, would it be successful?

 

 

As indicated in paragraph 11 above, the single judge identified two procedural issues “for the consideration of the full court” namely (i) whether it was possible for the mother to apply to the first instance court to re-open factual issues; and (ii) what jurisdiction a county court judge had to grant permission to obtain and file a fresh expert report on the concluded factual issues in the context of an adjourned application for permission to oppose adoption.
Miss Bazley, Mr MacDonald and Miss Hurworth have provided full written submissions supported by numerous authorities and statutory provisions in relation to each. However, we have resisted the opportunity to hear oral submissions, the outcome of any deliberation on these points being superfluous to the merits of the mother’s applications. Nevertheless, Miss Bazley invites the court to give its views on the questions posed, albeit obiter, for future reference if necessary.
Clearly more detailed examination of these issues may be called for in the future when any alleged procedural irregularity potentially taints the ‘fresh evidence’ that may otherwise be admitted. In those circumstances the arguments can be more readily appraised when specifically addressed to the point in context. This court recognised the existence of Dr Squier’s report without condoning the procedure adopted by HHJ Roberts in relation to it. The mother’s position was not thereby prejudiced; quite the contrary.
However, I am content to provide my provisional view in relation to cases in which a sealed order follows on from findings of fact which subsequently become subject to challenge such as here in the light of the judgment in Re L and B (Children) [2013] UKSC 8. Lady Hale’s judgment makes clear that challenge after sealed order must be in the appellate court arena. See paragraphs 16 and 19, and particularly her response to a submission that the order should not be an automatic cut off to re-visitation of the facts in paragraph 42.
In the light of this high authority my answer to the first question posed by the single judge would therefore be: if a final order has been sealed, no.
I would regard the answer to the second point to be informed by that to the first in so far as it relates to a report containing contrary medical opinion. It follows that if there is no jurisdiction to re-open the findings of fact once an order is sealed then the court has no jurisdiction to permit expert evidence on the point since FPR 25.4(3) provides that the Court may only give permission to adduce expert evidence if “the court is of the opinion that the expert evidence is necessary to assist the court to resolve proceedings.” This provision must surely refer to extant proceedings within the court’s own jurisdiction and not prospective applications to appeal. The existence of a contrary expert opinion cannot establish a “change of circumstances”, absent re determination of the issue, and therefore cannot inform the necessary welfare assessment of the child in an application for leave pursuant to section 47(5) of the 2002 Act.
My answer to the second question posed by the single judge would therefore be: none.

 

 

Once the order has been sealed, any challenge to it must be by way of appeal not to the Judge who made it. And thus, any directions or decisions in relation to the preparation and presentation of that appeal have to be made by the appellate Court, and NOT the Court that decided the original case.
The Court of Appeal also give some helpful guidance in relation to ‘fresh evidence’ appeals generally (these are cases where the appellant is saying not that the judgment as it was made at the time was wrong, but that in the light of new information we can now see that it was wrong)
They correct any misunderstanding that people may have had following Webster that in cases involving children there’s a greater leeway to admit fresh evidence.

The jurisprudence concerning the reception of “fresh evidence” by an appellate court is well versed. The discretion to admit fresh evidence is provided by CPR 52.11 to be exercised in accordance with the overriding objective of CPR 1.1. Nevertheless, LADD v MARSHALL [1954] 1 WLR 1489 remains powerful persuasive authority; the criteria identified therein effectively covering all relevant considerations to which the court must have regard.
Mr MacDonald directed his written and oral submissions in support of his application to admit fresh evidence to addressing the principles in Ladd v Marshall but reminded the court of Wall LJ’s judgment in WEBSTER V NORFOLK COUNTY COUNCIL [2009] EWCA Civ 59, with which Moore-Bick and Wilson LJJ agreed, to the effect that it “was generally accepted that in cases relating to children, the rules it lays down are less strictly applied.”
For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in ‘children’s cases’. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.
Clicking on the Ladd v Marshall link http://www.bailii.org/ew/cases/EWCA/Civ/1954/1.html

I see that it is a case where Lord Justice Denning gave one of the judgments, so it is going to be worth a read.

Ladd v Marshall involves an alleged sale of land, where the money was allegedly paid in cash. The seller of the land (Marshall) pulled out of the deal, and denied ever having received the money. At the civil trial, the seller’s wife gave some very limited evidence, basically keeping schtum.

However, in her later divorce proceedings, she included in her petition that her husband had made her not tell the truth in the civil trial.

Ladd got wind of this and wanted to appeal the original court’s decision that there had not been a sale of the land, because Marshall’s wife was indicating that if she had been able to give honest evidence she would have said that she witnessed Ladd giving Marshall the money.

With me?

In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible
The Court of Appeal in that case felt that those three facts were problematic in this case – Mrs Marshall was claiming that she had lied in Court proceedings, so her credibility was at least questionable.
Putting the test into a nutshell – it has to be evidence that could not have been reasonably obtained at the time, the fresh evidence has to be evidence that would be presumed to be true (i.e not controversial) and also evidence that if it had been known would have been conclusive.
Going back to our case of Re G – Dr Squier’s report didn’t fit any of those categories – it fails all three tests. It at best, cast some doubt upon the other medical evidence but was an opinion that would have been open to challenge rather than being presumed to be true, and also that would not have been conclusive. It barely touches the ‘new’ aspect, and the Court of Appeal doubted that the infection issue was “new” rather than just had been overlooked at the time.

the further evidence of Dr Squier fell to be considered in two parts: that relating to the possible consequences of the mother’s streptococcal infection, and that relating to the “wider” consideration of possible causes of H’s condition on arrival at the hospital. As to the first part, Dr Squier professes no relevant expertise and offers only the most banal observation. Even if one were to accept (which I do not) that this evidence could not with reasonable diligence have been obtained for the fact finding hearing, it is not realistic to suggest that it could have had an influence on its outcome.
As to the second part of Dr Squier’s report, it is notable that all the references cited in support of her views pre-dated the fact finding hearing. Mr MacDonald accepted that Dr Squier’s opinions, which she bases on these references, were “out there” at the date of the hearing. In a case concerning the welfare of a child this might not in all cases be a sufficient basis to reject an application to admit further evidence. But as Macur LJ has explained, this is not a case where it can be said that the alternative explanation was overlooked. Moreover, as Ms Bazley demonstrated to my satisfaction, there are, to put it at its lowest, serious grounds for supposing that the alternative explanation proffered by Dr Squier, is founded on an insecure scientific basis. For those combined reasons it is therefore not possible to say that, if admitted, the further evidence would be likely to have an influence on the outcome.
and Lord Justice Briggs puts this in even more pithy terms
The first part was of no weight, while the second part amounted to no more than a different view from that of the jointly instructed experts who were unchallenged at trial, not based on any material which post-dated it. It cannot be a proper basis for the admission of fresh evidence that a party has, since the trial, merely found an expert with a different view. That was not of course the basis upon which Dr Squier was instructed, but the supposedly new possibility of infection turned out to be a matter upon which she could offer no useful opinion.
That bit rather reminded me of the apocryphal Samuel Johnson review

“sir, your manuscript is both good and original. Sadly, the parts that are good are not original, and the parts that are original are not good”

Insert appropriate Coldplay reference here *

 
CC (Adoption application : separated applicants) 2014

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

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

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

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

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

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

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

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

The Court say

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

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

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

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

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

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

50 Adoption by couple.

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

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

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

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

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

Are Chris Martin and Gwyneth Paltrow a married couple?

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

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

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

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

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

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

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

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

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

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

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

 

 

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

 

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

Nothing else will do? A head-scratcher

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

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

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

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

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

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

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

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

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

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

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

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

25. The guardian says this at paragraph 62:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

 

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

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

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

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

 

 

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

 

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

 

No, I am NOT the Red Viper of Dorne

No, I am NOT the Red Viper of Dorne

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

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

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

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

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

That case turned on utterly extraordinary facts.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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