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Allegations of abuse against a father

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

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

 

 

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

 

 

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

 

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

 

I am reminded of the Blackadder lines

 

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

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

Reversing the burden of proof – injury to a child

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

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

The Court Orders…”

 

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

 

 

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

 

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

 

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

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

 

 

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

 

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

 

 

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

 

 

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

 

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

 

 

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

 

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

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

 

 

 

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

 

 

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

 

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

 

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

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

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

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

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

 

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

 

 

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

 

 

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

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

 

 

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

 

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

 

 

 

The Ashya King wardship judgment

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

 

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

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

 

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

 

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

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

 

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

 

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

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

 

 

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

 

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

 

 

 

Parents deciding not to go ahead with cancer treatment

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

 

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

 

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

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

 

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

Re A (children) 2000

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

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

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

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

 

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

 

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

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

 

NHS Trust v SR 2012

 

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

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

 

Epilepsy and rib fractures

 

 

This is a County Court decision on a finding of fact hearing, involving a child of two Brazilian parents who sustained a rib fracture.

Because I am childish, I like to think that the Judge specifically named the case Re O because of the Brazilian connection…

Re O (Minors) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B44.html

The case threw up a number of important issues. The parents defence had been that they had not done anything and that there had been a Vitamin D deficiency, leading to rickets, leading to weak bones. A substantial amount of expert evidence was called on this, and eventually it went nowhere.

The mother, who had been caring for the child L, during the relevant period, is someone who has epilepsy. She gave evidence about whether she had had a fit on that day
As to her epilepsy the mother said that she had five such fits during her pregnancy with F and two during her pregnancy with L. She could recall no fits between F’s birth and her pregnancy with L. Although she does not remember having such fits she usually begins to feel unwell shortly beforehand. Following a fit she feels drowsy, unwell and everything seems muddled. She did not recall any such symptoms occurring on 7th April 2013.
With that in mind, you may be surprised that the finding of His Honour Judge Bond was that the injury was caused during an epileptic seizure. I think, to be fair, that everyone else was surprised as well, and this emerged as a result of some expert evidence from a Dr Hillier
121 Attempts had been made before and during the hearing to secure the attendance of Dr. Hillier. He is a Consultant in Neurology. Unfortunately he did not give evidence until after the parents. He was the last witness to give evidence.

122. The mother’s G.P. had first referred her to Dr. Hillier in 2009. He has written a short report dated 30th September 2013 (C2199) about the mother’s possible epilepsy. He last saw the mother in November 2012. Dr Hillier found it difficult to make a clear diagnosis but thought that the mother suffered from faints which look like seizures, but perhaps has a tendency to fainting and to suffering seizures.

123. In his oral evidence Dr. Hillier went further and took everybody by surprise. He distinguished between what he described as partial epileptic fits and full epileptic fits. In his opinion it was possible that the mother could have had a partial fit, during which she injured L, but remembered nothing of it. Further he thought it possible that the mother would experience no symptoms, before or after a partial fit, that would lead her to remember that she had suffered such a fit.

124. The doctor described situations where a patient had attended his clinic and reported that he had suffered no fits since the last appointment. Not infrequently, the patient’s partner reported that he/she had observed occasions when the patient was “spaced out”, having had some form of partial fit, but which the patient could not remember.

125. It was because of this evidence that the local authority reconsidered its position and no longer sought any public law orders.
The very vivid illustration given by Dr Hillier was that he had once had a patient who had been peeling an orange, had had a partial fit, and continued peeling the orange afterwards, and that for this patient there had been no gap at all in the sequence of events, she had simply peeled an orange and nothing of any significance had occurred at all.

The suggestion therefore was that mother could have had a partial fit, injured the child completely accidentally during it and been utterly unaware of it.

The Local Authority, in the light of that evidence, threw the towel in (save for shutting the door on all of the Vitamin D debate in relation to this case)

That suggestion that a parent could injure their child during a partial fit and have NO RECOLLECTION of it at all is startling, but Dr Hillier’s evidence was clearly compelling.
The Judge had to consider whether this was capable of meeting the section 31 threshold in any event (for example was there some negligence or fault or flaw in the mother handling a child when she was prone to fits?)
In paragraph 8 of his written submissions, Mr Hand [counsel for the LA] deals with the question of whether the threshold criteria are satisfied. He referred to the case of Re D (Care Order: Evidence) [2011] 1 FLR 447 per Hughes LJ that the test under Section 31(2) of the Children Act is an objective one. As the Lord Justice said in that case:

“It is abundantly clear that a parent may unhappily fail to provide reasonable care even though he is doing his incompetent best.”

145. Mr Hand submits, and I agree, that on the facts of this case, if the court finds L’s injuries were caused by the mother during a partial fit, the threshold criteria are not met by reason of the fractures that L suffered. Mr Hand said that, had the Local Authority been aware, at the outset, of Dr Hillier’s evidence, they would not have instituted proceedings under Section 31.
[i.e so far as the LA were concerned, although it was theoretically possible for the Court to find that the s31 threshold was crossed by the child being injured whilst being held by mother who had a partial fit that she had no recollection of, they were not going to invite the Court to do so]
The next interesting point to arise is that clearly once the LA accepted the partial fit theory, and the mother and father accepted it, was it a done deal? In this case, those representing the Guardian felt uncomfortable about that.

168. Mr Tolson QC [counsel for the Guardian] submits, and I agree, that the medical evidence did not alter during the course of the hearing. The three jointly instructed experts agreed substantially, as did Dr Allgrove. The thrust of the evidence was that non-accidental injury is the only explanation, save in wholly exceptional medical circumstances which it is submitted do not exist in this case. It is submitted that the parents’ evidence was not credible and in this case the matter goes further than simply being unable to offer an explanation. It is submitted on behalf of the guardian that the omission of any recall prior to the observation of the lump is particularly striking given the obvious thoroughness with which the parent’s statements have been prepared in other respects. Further submits Mr Tolson QC it is clear that the parents were tired and under some stress on Sunday 7th April 2013.

169. In his oral submissions Mr Tolson QC accepted that he was now the only advocate who contended for a finding of non-accidental injury. Following Dr Hillier’s evidence, Mr Tolson QC had been able to take brief instructions about the Local Authority’s change of position. The guardian maintained her position, as I have just described.

170. Mr Tolson QC dealt with the point raised by Charles J in Lancashire CC v D & E, in respect of the guardian’s position in a case such as this. In the particular circumstances of this case, and particularly since the Local Authority’s change of position, the guardian felt it important that the court should have before it, on behalf of the children, arguments which supported a finding of inflicted non-accidental injury.

171. It is the case that the role of the guardian’s advocate in a fact-finding exercise is to be fully involved in testing, in particular the expert evidence. Generally I would expect the guardian to help the court by making submissions which alert the court to the important matters, but to remain neutral as to the court’s findings. In the unusual circumstances of this case, it was helpful for the guardian to maintain the position that she did, although I regard it as an exceptional course.
The Court therefore permitted the Guardian’s advocate to ‘test the evidence’ and to make submissions that the partial fit explanation might not be the correct answer in this case. (It would perhaps have been interesting to see if the Court would have taken a different view had the key piece of evidence, Dr Hillier, not been the very last witness in the case)

Here is what the Guardian (through leading counsel) had to say about the partial fit theory
172. As to the question of the burden of proof, and given that the Local Authority no longer pursued a finding of inflicted non-accidental injury, Mr Tolson QC pointed out that the court must still, in the circumstances of this case, consider whether such a case has been proved on the balance of probabilities.

173. As to the question of the mother’s epilepsy, Mr Tolson QC pointed out that there was no evidence that the mother had had a fit on the day in question. Further, there was no evidence that the mother had ever had a partial fit of a kind which Dr Hillier thought might have been possible. Mr Tolson QC did not accept that Dr Hillier’s evidence necessarily meant that during a partial fit the mother would drop L and not remember such an event. He submitted that a partial fit would not fill the gap to explain the vagaries of the mother’s evidence, in respect of what happened between about 13.00 and 18.00 on 7th April 2013. It is accepted, on behalf of the guardian, that if the mother had had a full epileptic seizure she might not recall dropping L.

174. Mr Tolson QC submitted that an epileptic fit does not explain L’s rib injuries. For example if L had been dropped that would not involve a squeezing mechanism, which is generally thought to be the cause of a type of rib fracture that L had suffered. Further, said Mr Tolson QC, one such fit would not explain the presence of the bruises.

The Judge said that before having heard from Dr Hillier, he had reached the tentative conclusion that he was satisfied that the injuries had occurred but was not satisfied that they had been deliberately caused by either of the parent, their overall presentation and absence of any other troubling issues weighing significantly in these deliberations.
The applications for Care Orders were dismissed and the children returned home.  [It is worth noting that the Judge indicated that even before Dr Hillier’s evidence, he had been of the view that he should not make a finding of fact that either of the parents had deliberately harmed the child]

 

The Judge had this to say about epilepsy

184. The question of epilepsy and its possible implications in cases such as this has been explored. There is clearly much to learn.

 

Getting an expert report in private law proceedings

 

The Court of Appeal (almost a year after the High Court ruled otherwise) have decided in JG v the Lord Chancellor and Others 2014, that a Court can lawfully decide that the costs of an expert report be bourne by one party (the one who is receiving public funding) rather than split between everyone.

 

I wrote about the original decision here http://suesspiciousminds.com/2013/04/11/not-with-a-bang-but-a-whimper/  with quite a bit of disappointment in my heart, so I am pleased that the Court of Appeal have taken a different view.

 

Quick bit of context first – up until LASPO  (Legal Aid, Sentencing and Prosecution of Offenders Act) came into force, most private law proceedings (i.e mum and dad arguing about where a child should live, or how much time the child should spend with each parent) had at least one of the parents, sometimes both, receiving legal aid (free legal advice). That legal aid could be used to pay for expert reports  – for example, if there was a dispute over paternity, a DNA test, if one person alleged the other had an alcohol or drug problem, testing, if the child was displaying unusual behaviour an expert to help understand that.

After LASPO, people now only get legal aid in exceptional circumstances  – it doesn’t matter if they are on benefits, or have learning difficulties, they won’t get legal aid unless they fit some very narrow prescribed criteria.

Next bit of context – in particularly tricky cases, the Court appoint a Guardian (which we call a Rule 16.4 Guardian, after the bit in the Family Procedure Rules that governs it) to assist the Court in reaching decisions. The Rule 16.4 Guardian GETS legal aid.

That led to a situation in which if an expert report was needed and the parents could not afford it, the Court would order that the costs be met entirely by the Rule 16.4 Guardian (and hence legal aid).  The Legal Aid Agency cottoned on to that, and started refusing to pay (even after the expert had done the report and the Guardian’s lawyers had written the expert the cheque, leaving the lawyers out of pocket and thus reluctant to take on such cases in the future).   One such refusal was judicially reviewed, and Ryder J (as he then was, he is now Ryder LJ) refused the judicial review and said that the Legal Aid Agency was entitled to take a position that any expert costs should be divided equally between all of the parties and that the costs should not all be loaded on to the Guardian’s public funding.   [It is a little like three people going out to dinner, and putting the bill on the person who has an Expense Account, if that makes sense, and then the firm paying the Expense Account saying  “Hey, we don’t mind paying for YOUR dinner, but not for the other two”]

Ryder J did say that in an exceptional case where the parent could not possibly pay anything towards the cost of the report, and the Court considered it was vital, things might have to be looked at differently.

So, the Court of Appeal disagreed with Ryder J’s decision – but not in a way that gives carte blanche for all reports to be loaded on to the Guardian’s public funding certificate (actually the Child’s) and the parents to pay nothing. It is a bit more nuanced than that.

http://www.familylaw.co.uk/articles/jg-v-the-lord-chancellor-and-others-2014-ewca-civ-656

 

There were basically two sides to this (because it had now become an issue about principle, rather than the parents own case) – the Law Society, arguing that the Court should have the power to decide how costs should be apportioned and particularly where failure to have the report would breach article 6 (right to fair trial) or article 8 (right to family life),  and the Lord Chancellor – arguing that this should only be in a situation where the Legal Aid Agency deemed itself that it was appropriate. It’s a fundamental question of who is in charge, the Court or the Legal Aid Agency.

 

Law Society to throw first

a) The appellant’s and the Law Society’s case on the general question
67. The appellant adopted the Law Society’s submissions on the general question. The Law Society submitted that where expert evidence was necessary in the circumstances set out in the question, the court should direct the child, through her guardian, to obtain the evidence and give the child permission to adduce it, although in instructing the expert, the guardian should normally seek to agree with the other parties, if possible, which expert is to be instructed and the instructions to be given to him. The court’s direction should be subject to any prior authorisation or increase in costs limitation that may be required for the purpose. The Law Society submitted that those responsible for administering legal aid could not refuse to give such approval as refusal would be incompatible with articles 6 and 8 of the ECHR and would deprive the court of the assistance it needs to enable it to determine what the welfare of the child requires, thus being “incompatible with the object and purpose of the legislation for the protection of children involved in private law family proceedings”. There is no point, submitted the Law Society, in funding the representation necessary to protect a child’s interests in the private law proceedings yet denying the funding required to enable the evidence to be provided that is necessary to establish what the child’s welfare requires.
68. It was submitted that a requirement, such as that favoured by Ryder J (see §§75 et seq of the judgment), for a “robust scrutiny of … means” with reference to a party’s financial eligibility for legal aid prior to the instruction of the expert would present the courts with a task for which, unlike the Legal Aid Agency, they are not equipped and which would import harmful delay whilst investigations were carried out. The Law Society’s proposal was therefore said to be a better alternative because the expert could be instructed without delay on the basis that the cost of the report could be met as a disbursement on the child’s certificate, leaving the parties’ respective liability for the fees to be dealt with by means of a costs order, if appropriate.

 

Lord Chancellor, you require forty  (sorry, to go next)

b) The Lord Chancellor’s case
69. The Lord Chancellor accepted that “if there were a case in which a report was genuinely sought by the publicly funded party alone, for reasons affecting that party, and the other parties did not agree with or seek to make use of the report, then the court might direct that the cost[s] were borne by that party alone and it would be legitimate for the legally aided party to bear the full costs of that report” (§61 of the Lord Chancellor’s skeleton argument). In those circumstances, he said, the legally aided party would have to formulate the instructions without the involvement of the other parties. That set of circumstances was not what he was addressing in his main submissions.
70. In cases where expert evidence was necessary but the report was not genuinely sought by the publicly funded party alone, the Lord Chancellor submitted that the judge’s solution, which had of course largely been put forward by him, was correct. Only in “very exceptional cases” could the court depart from the norm of a single joint expert whose fees would be apportioned equally between the parties, it was submitted. Two conditions had to be satisfied:
i) “a party’s means, assessed following a robust process, are such that he or she cannot afford to pay for his or her share of the report”
and
ii) “an order for equal apportionment would involve a breach of a party’s Convention rights in the family proceedings because it would prevent an expert report which the court considered necessary to the proper resolution of the case from being adduced”.
If the two conditions were satisfied, the Lord Chancellor’s case was that the court should still order a single joint expert but could visit a greater share of the costs on the legally aided party than normal, although whether the legally aided party would have to pay all the costs would depend on the circumstances.

 

The Court of Appeal then distil the arguments down to common ground and areas of difference

c) Points in common and points of difference
71. It can be seen that all parties agreed that there may be situations in which an order can be made which does not apportion the cost of an expert equally between the parties in a case. It was common ground that where this was a departure from the apportionment that would normally have been ordered, the justification for this would be that otherwise there would be a breach of a party’s Convention rights. It was also common ground that in these circumstances, section 22(4) would not present an obstacle to the order being made. The absolutist position which I think was adopted by the LSC in front of Ryder J, namely that there were no circumstances in which the LSC could be ordered to pay experts’ fees “beyond a proportion that represents the proportion of legally aided parties” (see §79 of Ryder J’s judgment), was not advanced before us.
72. Underlying matters of detail were not agreed. There was debate as to whether it was necessary to impose a requirement of exceptionality, as to when and how a party’s inability to pay should be established and, an allied question, as to whether the proper way in which to regulate the parties’ share of the fees was by regulating their contractual liability to the expert or by means of conventional costs orders. Another major difference between the parties was that the Lord Chancellor was wedded to the idea of a single joint expert (and utilised that as a significant part of the foundation for his arguments) whereas the other parties contemplated that the expert could be instructed by the child/guardian alone, albeit with input from the other parties to the instructions.

 

 

A major part of the argument was whether the report being commissioned was really one being commissioned solely on behalf of the Child, or whether it was really one for the benefit of all parties and just pretending to be a sole instruction to get the free funding   (To go back to the dinner analogy – was this really a business meeting that the Expense account could pay for legitimately, or were two people getting a free lunch?)

The Court of Appeal consider some hypothetical situations but eventually come down to this

 

84. Doing the best I can to forecast the sort of situations that may arise, it seems to me that it may not be all that infrequent that an application by a child/guardian for permission to instruct an expert will genuinely be for an expert on behalf of the child, as opposed to a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court and into the format of the expert’s instruction. Section 22(4) will then present no obstacle to the cost of the expert being met by the child’s public funding.

 

But going on to say that even if it is really a joint report, and the parents can’t pay, the Court still have to consider what is right and fair

 

When the expert is not solely the child’s expert
85. If the expert is not in fact the child’s expert but is a single joint expert, and the other parties are unable to contribute to the cost of the expert, it is necessary to consider in what circumstances public funds can be required to meet the whole cost. Once again, I will confine myself in this discussion to the current provisions of the 2010 Rules.

 

The Court then looked, in a lot of detail, about whether there was a presumption in law that any report would have the costs split equally –  there is a provision in the Family Procedure Rules that says that this is what will happen in the absence of the Court saying otherwise.  Does that mean that the Court have to have reasons for deviating from an equal split, or does it just mean that if the Court is silent, that’s what happens?

92. This provision received quite a lot of attention in argument in front of us. It is perhaps rather an odd provision to find in procedural rules, appearing to concern itself with the contractual relationship between the parties and the expert. It needs to be read with Rule 25.12(4)(a) which provides that the court may give directions about the expert’s fees and expenses. It is quite clear from that, and from its own terms, that Rule 25.12(6) is not intended to be prescriptive and merely establishes a default position as to liability to the expert in the event that the court does not direct otherwise. I do not see it as setting up a “normal rule” that the cost is to be apportioned equally, any more than the Calderdale case did.
93. None of the authorities which I have just cited turned on the impecuniosity of the parties. Although they differ from the present case in that they were care cases, they are capable of providing assistance as to “the principles on which the discretion of [the] court is normally exercised” in relation to the cost of expert evidence. As I have explained, to my mind, they do not reveal the existence of a normal rule that costs be apportioned equally any more than Rule 25.12(6) does. Accordingly, in so far as the Lord Chancellor’s submissions proceed upon the basis that equal apportionment is the norm, I would question the premise. In order to decide whether a court order has fallen foul of section 22(4), a more sophisticated exercise is required. It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the cost of the expert. In such circumstances, section 22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.

 

That’s quite dense, but basically, what the Court of Appeal say there is that there may be circumstances (even if there is no issue over the parties ABILITY to pay) where the costs of the report might be met by one party exclusively or where one party may make a larger share, and the Court has the legitimate power to do that.

[That, to make it explicit, is the Lord Chancellor losing an argument]

 

Next – what about a situation where the Court thinks that it is FAIR to split the costs equally, but one or more parties has resource issues (impecuniosity – or in layman’s terms, they are skint)

95. In the light of what I have said in the preceding section, I would reformulate the Lord Chancellor’s submission so that, rather than focussing upon whether the court can depart from equal apportionment of the expert’s fees, it focusses upon whether the court can depart from the order that it would have made but for the resources problem (to which I will refer in shorthand as “the normal order”). The Lord Chancellor sought to impose what, for the purposes of the discussion that follows, I will treat as three conditions for such a departure from the normal order although I accept that he may well not have intended the third one to be a condition as such. The three “conditions” are that it must be established that the other party could not pay his share of the cost; the normal order would involve a breach of a party’s Convention rights; and the case must be a “very exceptional” one.

 

Condition 1  (remember these are the conditions proposed by the Lord Chancellor) – an equal split would involve a breach of the party’s convention rights  – there’s a lot of this, so I have skipped to the conclusion

108. The Lord Chancellor’s argument seems to me to risk prejudicing the child in order to prevent a parent who is not otherwise entitled to legal aid deriving a benefit from a report which has been paid for by public funding. I have already emphasised that FPR 2010 acknowledge that a party may benefit from a report produced by another party’s expert without that expert becoming a joint expert. Anyone who has ever conducted or watched a successful cross-examination of an expert knows this perfectly well. The fact that a party who is not publicly funded will or may benefit from the expert’s input is likely to be a material factor in the court’s discretion as to the cost of the expert but it is not a reason to conclude, as I think is the conclusion to which the Lord Chancellor’s submissions would logically lead, that even though the child’s Convention rights would be violated by the inability to obtain the expert advice that the court had concluded was necessary to assist it, the expert could not be paid for on the child’s public funding certificate because that would benefit one or both of the parents as well.
109. It is as well to remember that cases in which the child is joined as a party are far from commonplace, as can be seen from the various provisions which I outlined earlier in this judgment starting at §39. They will be cases in which there are particular challenges in determining what is in the best interests of the child or in actually achieving the right solution in practice. The role of the child’s guardian is directed very firmly at achieving a resolution that is in the best interests of the child. His or her duties are defined and circumscribed as I have described earlier. His or her decisions must be made for the benefit of the child and he or she must make such investigations as are necessary to carry out his or her duties including obtaining such professional assistance as he or she thinks appropriate. By the time the guardian has endorsed the instruction of an expert as appropriate and the court itself has approved it as necessary, there will be the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights will be violated if the court cannot be provided with that expert assistance. Whether the argument will ultimately succeed will depend, of course, upon the precise nature of the decision to be taken in relation to the child.

 

It will be necessary for the parties to persuade the Court that an equal split (if that means the report can’t be obtained) would result in an article 6 or article 8 breach, but that’s not as much of an uphill struggle as the Lord Chancellor would have hoped – the parties start partway up that hill.

I reckon the Lord Chancellor   (apologies for not continually putting that title in quotation marks, since he isn’t a Lord Chancellor in the way that any lawyer or historian would recognise the role) lost that one as well

 

b) A very exceptional case
110. It is understandable that the Lord Chancellor should seek to confine the cases in which the cost of the expert would be apportioned unequally to avoid a breach of Convention rights by stressing that this could apply only in “very exceptional cases”. This approach ties in with the language of section 10 of LASPO 2012. However, whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights. I see no more justification for introducing a specific exceptionality requirement in the context we are considering here than the draftsman appears to have seen in relation to section 10 and it seems to me that it would distract attention from the central question. Granted, we are concerned with a departure from the way in which the court would otherwise have catered for the costs of the expert, so to that extent the order would be exceptional. That is a description, however, not a test or an additional hurdle.

 

That’s an indisputable loss for the Lord Chancellor.

 

c) Impecuniosity
111. It was common ground that the court would not be considering departing from the normal order unless the parties who would normally have to share the cost of the expert were unable to do so. There was debate, however, as to when and how impecuniosity would be determined.

 

There’s a risk of course, that the Court spends so long gathering information about whether or not someone is genuinely impecunious (as opposed to not keen on paying £2000 for a share of a report, which would apply to pretty much everyone) that the child’s welfare is prejudiced by delay.  There’s a difficult balance to be struck here.

112. Ryder J held, accepting the Lord Chancellor’s submissions, that “a robust scrutiny” was required of the party’s means, and said that what was a robust scrutiny would depend on the circumstances of the case but “an important consideration …. should be the party’s eligibility for legal aid where that still exists” (§76). He considered that if the party would not qualify for legal aid on the basis of their means, that was a factor that should point very strongly in favour of that party having to pay their full share of the cost of an expert’s report whereas, in contrast, if the party would qualify for legal aid, it may suggest that they should pay less than a full share, although paying nothing at all should be exceptional, bearing in mind that legally aided parties often have to pay a contribution (§77).
113. A particular concern of the Law Society was that the assessment of impecuniosity should not delay the proceedings. They were right to be concerned about that. Section 1(2) CA 1989 (see above) requires the court to have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the child’s welfare. Furthermore, delay in resolving matters is capable, itself, of giving rise to breaches of Convention rights. What has happened in this case amply demonstrates that wrangles over the extent to which an expert’s costs should be met from public funds can introduce huge delay. The proceedings relating to this child were commenced in 2006, the guardian first sought a report in 2008 and the question of the payment of the expert remained unresolved in 2012 when we can see that the debate was impeding a final hearing of the case. It is quite possible that there were other problems as well as the expert’s fees but this is quite an indictment of the system. It leads me to the view that whatever system is operated must be one which is practical and not over technical and which avoids delay wherever possible.
114. The Law Society’s proposal that the child should be directed to obtain the expert evidence in the first instance with the ultimate liability for the expert’s fees being distributed between the parties by means of a costs order later in the proceedings therefore has considerable appeal.
115. The Lord Chancellor challenged it on a number of bases. Some of the arguments raised against the proposal amalgamated the issues of a breach of Convention rights and impecuniosity whereas I have dealt with these separately. Some covered the ground which I have examined when considering whether or not an expert is properly the child’s sole expert. I only reach the question of impecuniosity on the basis that the Lord Chancellor’s condition that the normal order would involve a breach of a party’s Convention rights is satisfied and, as I have explained, in my view there is no third condition of “exceptionality”
116. I sensed that an understandable concern of the Lord Chancellor was that joining the child as a party and using the child’s public funding to pay for an expert would become a widely used device – a back door to public funding for parents who would not otherwise have it – and I think he saw the Law Society’s proposed scheme as a way in which to have all the benefits of a single joint expert without the non-legally aided parties having to bear the cost. He did not, however, go so far as to suggest that only those who would in fact satisfy the financial criteria for legal aid should be treated as impecunious for the present purposes but submitted that eligibility might be a useful starting point and yardstick.
117. Ryder J also saw financial eligibility for legal aid as a relevant factor and I do not disagree. In my view, the Lord Chancellor was right not to argue that satisfying the financial eligibility criteria is a necessary qualification, not least because it may well place the family courts in considerable difficulty if they had to carry out the sort of detailed and technical assessment that the LSC would use to determine financial eligibility. The challenges facing the courts in private law cases in the new post-legal aid regime are evident and they are also working hard to process care cases with expedition. It is difficult to envisage them having the resources to assess a party’s eligibility for legal aid as the LSC would do, without seriously holding up the individual case or prejudicing the rest of their work or both. But in so far as financial eligibility can be ascertained, it must be relevant. If the party in question would not qualify for legal aid, that may count heavily against an argument that they could not pay their full share of the cost of the report whereas, conversely, if they would qualify, then that may suggest that they cannot pay a full share. As Ryder J rightly pointed out, it is not all or nothing. It may be that a party could not pay a full share but could pay something towards the expert’s costs, just as they could be required to pay a contribution towards their legal aid.
118. It is difficult to forecast what financial information will be available to the court and at what stage in the proceedings. There may be cases in which a party has already been assessed for financial eligibility for legal aid and no doubt it would be appropriate to have regard to the outcome of such an assessment in those cases. In some cases, as in the present case, financial information is available because there are or have been ancillary relief proceedings. In other cases, directions will have to be given to secure the necessary information from the parties.
119. The stage at which the court can reach a final determination as to whether a departure from the normal order is required for Convention reasons is likely therefore to vary, depending on the facts. There may be cases in which the decision can be taken before the expert is even instructed, with the parties’ shares of the cost being settled from the outset. There may be others in which that would or may import harmful delay into the proceedings and in which there is no option but to adopt the Law Society’s solution of requiring the guardian to instruct the expert in the first instance, but with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order. The court would, not, of course, embark on that route without some cogent evidence that the other parties would not be able to pay their way in the instruction.

 

I wouldn’t call that an outright victory for either side – it seems that before a Court decides that a party is impecunious (and thus couldn’t pay an equal share, and thus the report wouldn’t be obtained) it has to decide what information about finances is reasonable to inspect – if they can be obtained swiftly then it would be considered before the expert report is comissioned, if not, then the Court may make an order that the report be paid out of the Child’s public funding, and then remedy that with a later order once the financial information is available.

 

In the individual case, the Court of Appeal decided that it was right that the costs should have been met through the Child’s public funding /legal aid, and that they differed from Ryder J’s decision.

 

For broader cases, the Court of Appeal say this

 

132. I would simply add that when judges are called upon to deal with the sort of difficult issues that have arisen here, it would be prudent for them to explain their reasons for each decision that they take in a short judgment and for their orders to be precisely spelled out.

 

[All of this boils down to a Britney Spears type exhortation –  You want an expert? You want a 16.4 guardian? You want the costs of the expert to be paid by the child’s legal aid? You want the court to say you’re impecunious?   You better work bitch]

 

 

 

 

 

Obtaining a fresh assessment late in proceedings

Re Z (A Child : Independent Social Work Assessment) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/729.html

My compliments to the Judge for giving this a meaningful case name that allows people to find it in the future.

This one was a judgment given in March 2014, for care proceedings arising out of injuries to a child that occurred in September and October 2012. The proceedings were into week 72.  The father applied for a fresh independent social work assessment, and also sought a fresh assessment of the paternal grandmother, challenging the negative viability.

If you are at the moment, thinking, meh, I know how this one ends up – I’ll give you a spoiler.  He gets the assessments.

Ah, now you want to know more…

    1. In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority’s decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.

 

    1. Was RD’s assessment of the father fair, robust and thorough? In my judgment it was not. In arriving at that conclusion I bear the following factors in mind. They are not ranked in any particular order:

 

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.

(2) To the extent that RD’s observation of contact and reading the contact supervisor’s notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z’s care needs (unlike the foster carer for whom training has been provided).

(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.

(4) The father is criticised for lack of understanding and insight yet his knowledge of Z’s injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports – or more likely some parts of those reports – read to him in Punjabi. To this must be added the local authority’s failure to give the father opportunity to meet with any of the health care professionals responsible for Z’s care.

(5) The local authority’s social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.

(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

  1. I am satisfied that the local authority’s assessment of this father falls short of the standard required.

 

Fair, robust and thorough seems like a good test in appraising the evidence – I expect to see others make use of this test   (whether this authority is binding or not is tricky – but it is a High Court case, so it is at least persuasive)

 

One major part of father’s case was this :-

 

108. As a result of the negative outcome of the social work assessment, on 31st January 2014 the father issued an application for permission to instruct an independent social worker to undertake a parenting assessment. The father complains that the social worker ‘failed to approach the assessment with an open mind’ for which submission he relies on the fact that the social worker informed the LAC review on 12th December 2013 that the outcome of her assessment was negative even though the assessment was still ongoing.

 

If father was able to establish that, which one would hope would be confirmed or refuted by the LAC review minutes, that is fatal to the LA’s opposition to an independent assessment. This is not announcing the outcome when all that is left is to finish dotting the i’s and crossing the t’s in the written report , this was a final view of the outcome of the assessment given whilst it still had six weeks to run.

 

Unhelpfully

    1. The minutes of the LAC review held on 12th December note that,

 

‘Social Worker RD is carrying out 6 assessment sessions with [the father] 5 have been completed. The assessment is negative. He denies any knowledge of the injuries or reasons she was harmed, he has very limited understanding of her health and overall prognosis. He does not understand the impact of the brain damage. He has no clear plan – originally he said his mother would help out in India, then his sister. It is assessed he is not considering Z’s best interests. All professionals shared these concerns. Becky will inform [the father] of the outcome of the assessment and will file the statement by 8.1.14.’

    1. Although the father attended the LAC review he was not permitted to be present throughout the whole of the discussions. He was not present when RD told the meeting that her assessment of him was negative. He was not present when the decision was taken that the local authority’s plan for Z should be one of adoption.

 

    1. The minutes of the LAC review have little to say about contact: ‘Supervised contact takes place twice a week during the assessment period. Z has been fine before and after contact’. If that is an accurate reflection of the information given to the members of the LAC review then it is woefully lacking. The social worker said that she ‘was not asked’ to provide the Review with evidence relating to contact. Given that contact was extremely positive for Z one would have expected the LAC review to have been informed of this and that it would have considered how contact might develop. This is a requirement of the Care Planning Placement and Case Review (England) Regulations 2010 [‘the Regulations’]. Schedule 7 sets out the considerations to which the responsible authority must have regard when reviewing a child’s case. Schedule 7 paragraph 4 requires the LAC review to consider

 

‘The arrangements for contact and whether there is any need for changes to the arrangements in order to promote contact between [the child and her parents].’

  1. The social worker was asked whether the minutes of the LAC review provided an accurate summary of what was discussed. She confirmed that they do, though she went on to describe them as ‘brief’. The minutes have been signed by the Independent Reviewing Officer. There is space for them to be counter-signed by the social worker. In this case the social worker confirmed that the minutes had been sent to her for approval and signing. She had not responded. She has not signed them. She said that she does not routinely sign minutes of LAC meetings.

The Judge’s comments on LAC reviews, that arise from those failings, are also ones that I expect to see crop up in other cases

    1. LAC meetings are very important meetings. That that is so is made very clear by the Regulations. The records of such meetings are also important. Regulation 38 provides that,

 

“The responsible authority must ensure that a written record of the review is prepared, and that the information obtained in the course of the review, details of proceedings at the review meeting, and any decision made in the course of, or as a result, of the review are included in C’s case records.”

  1. It should be apparent from the minutes of a LAC meeting that the meeting has considered each of the matters which the Regulations require the meeting to consider. The minutes should be balanced. So far as the parents’ relationship with the child is concerned, they should identify any positive points as well as any negative points. Although there is no requirement in the regulations for minutes to be signed, as a matter of good practice it is clearly appropriate that they should be signed. They should be signed by the Independent Reviewing Officer and by the allocated social worker, if present at the meeting, and if not present then by the most senior social worker present at the meeting. Their signatures provide the assurance that the minutes give an accurate and balanced account of the matters discussed at the meeting.

 

Assessment of paternal grandmother next

    1. That leads me back, finally, to what the local authority describes as a viability assessment of PGM. For the reasons set out earlier in this judgment I regard that assessment as inadequate. The notion that a Punjabi speaking grandmother living in India, expressing a clear interest in being assessed as a long-term carer for her granddaughter, not having been provided with any of the background papers translated into Punjabi, can be ruled out on the basis of two telephone conversations one of which was conducted by a Hindi speaking English social worker, is in my judgment wholly unsupportable.

 

    1. Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 concerned an application for a viability assessment. The judge at first instance had described the local authority’s viability assessment of the father of the subject child’s half-brother as “wholly inadequate” and “flawed”. The judge nonetheless declined to order a full independent assessment. In the Court of Appeal, giving the leading judgment, Wall LJ (as he then was) said that,

 

‘the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject….Accordingly, in my judgment, to do proper justice to [the child’s] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.’

  1. Z’s care needs require support from a multi-disciplinary team of health care professionals. Is there any possibility that a similar package of support could be available in India? If the answer to that question is ‘no’ then it seems to me that notwithstanding PGM’s offer to care for Z and the duty on the local authority pursuant to s.17 Children Act 1989 to promote the upbringing of Z by her family, it would be difficult to argue that a move to India would be in Z’s best welfare interests. However, making that point simply serves to highlight the fact that the court does not, at present, have sufficient evidence to enable it to make that judgment. There needs to be a proper assessment of PGM. Any such assessment also needs to identify and consider the services that would be available to meet Z’s care needs in India. These are now issues for further case management.

 

And the Judge wasn’t finished – given that the Local Authority care plan was for the current foster carers to adopt, he felt that their Re B-S analysis was badly flawed – it had not properly taken into account that such a placement could be under a Care Order (fostering) or a Special Guardianship Order and why those options should be discounted in favour of adoption. He made it plain that even if the independent assessments of father and grandmother weren’t positive, this case was a considerable distance from being “then adoption is the right plan”

136 My decision to allow the father’s application for leave to instruct an Independent Social Worker means that it is unnecessary and inappropriate, at this stage, to go on to consider the local authority’s final care plan. However, it is appropriate that I should make the point that it should not be assumed that if the assessment of the father is negative then that, without more, will lead to endorsement of the present final care plan. Even leaving to one side the local authority’s flawed assessment of the father, it is plain that the current final care plan is deficient. For example, it does not consider and analyse realistic alternatives to adoption (long term foster care, special guardianship); it does not consider whether it is appropriate for Z to remain in a placement in which there is a changing population of children in short term foster care; it assumes that post-adoption letter-box contact is appropriate without making any attempt to consider whether ongoing direct contact would better meet Z’s needs; it proposes by way of contingency plan that if the placement with FC breaks down it will search for an alternative adoptive placement even though it acknowledges that it is highly unlikely that an alternative adoptive placement could be found. These are all issues which must be addressed. The local authority has more work to do before this case can fairly be concluded.

 

I can’t quite find from the judgment what the timescales for the further assessment are, and obviously those assessments will need to be considered, final evidence filed from all parties and a final hearing take place. It probably amounts to a final hearing taking place at around week 90, or week 100.

 

But that is palpably and manifestly the right thing to do, to get the RIGHT answer.

I do worry that now that the Children and Families Act 2014 will lock Judges into 26 weeks, or an extension of 8 weeks, whether cases like this will get their proper determination.

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