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“All at sea”

 

An imaginary judgment, written in the fevered mind of Suesspicious Minds during a force 8 gale off the coast of Denmark.  (As ever, this is not legal advice, and I have no idea how such a case might develop in reality)

Before Mr Justice Snowater

Before I embark upon my judgment in this unusual and vexing case, I will take a brief detour  - by way of even a preliminary detour I will let you know that “tangent” is my middle name and I say this not by way of boast or hyperbolae but that it is literally true, and I pause for a moment to show the usher my driving licence, and you may take his nod as assurance, for he is a more honest man than even I.

 

Long ago, many scholars and intellectuals were fascinated by the notion that there was a pure language, beyond that of English, French or Flemish, which was the language of God and the Angels, called Enochian. They pondered as to whether a child, unburdened by our own clumsy imitations of this beautiful and radiant language, might naturally speak the language of Angels.

 

This thought experiment was carried out by King James IV of Scotland, who placed two twin babies on the Scottish island of Inchkieth, with a mute housekeeper to tend to their needs, to be visited years later to see what language they spoke. It is reported (perhaps not reliably) that they spoke pure Hebrew.

 

It is alleged by the applicant in this case, the maternal grandmother of the child, a Mrs Wasteland, that the child’s parents have embarked upon an experiment with their own child, not to deprive the child of language but to deprive the child of dry land and that the State should intervene to prevent it.

 

Mr and Mrs Pugwash were residents of England, until such time as they won a considerable sum on the lottery. At that stage, they began banking in Monaco, for reasons which would not be considered inexplicable. They also purchased themselves a luxury yacht and began sailing around the world. They developed a firm feeling amongst themselves that in effect a sailor’s life was for them, hoping perhaps that the mermaids who sang each to each might one day sing to them. They  therefore determined to try to live as much as humanly possible at sea. 

 

Having both considerable means, and staff who could come ashore and shop for them, they found that this was an achievable, rather than a merely fanciful ambition.

 

Bathed as they were both in happiness and the sunsets of the Azores, it is only natural that they became increasingly close, and a baby was conceived in the usual manner.

 

Midwives were brought on board the yacht, and the couple were delivered of a son, J Alfred.

 

That son J is now four years old and has never set foot upon dry land, having spent his entire life on board the yacht, or swimming just nearby.

Mrs Wasteland, his maternal grandmother, has sought to have contact with J, but the parents have declined to come ashore to allow this. She says that they are thwarting her relationship with J and subjecting him to emotional harm by not allowing him to live on land, or even to have a temporary visit on land. They in turn say that Mrs Wasteland is welcome to come aboard the yacht (for short periods) to visit J. She has declined, being a lady who suffers profoundly from sea-sickness.

 

Representing the grandmother, Mr Raymond Luxury QC, set out admirably the concerns that she holds about the unusual lifestyle for a boy being raised entirely at sea, and invites the Court to make a section 37 direction, compelling the responsible local authority to prepare a report setting out whether J is being harmed in any way and whether public law proceedings should be issued. He invites the Court to make some preliminary findings in relation to significant harm.

 

Mr Luxury says, inter alia

 

(i)            There will be consequences in socialisation, education and physical fitness

 

(ii)          The unknown health implications of spending ones entire childhood at sea , impact on sleep patterns, balance, inner ear development and what he describes loosely as ‘seafarers fatigue’  http://occmed.oxfordjournals.org/content/58/3/198.full      He accepts that the risk of scurvy is fairly low, given the parents wealth and resources

 

(iii)         The unknown psychological effects, such as lack of space, monotony, living in close proximity to others http://pvs.kcc.hawaii.edu/ike/canoe_living/effects.html

 

(iv)         The risk of mal de debarquement    (which candidly, I suspect Mr Luxury QC snuck into his submissions purely to pique my interest, but is a form of long-term illness with the effects that one encounters in the days following leaving a cruise, long airflight or other sustained motion event, but that do not subside)

 

(v)          The inevitable adjustment that J would have to make to a life ashore in adulthood, which may impair his opportunities in life.

 

In broad terms on threshold, Mr Mangrove for the parents, says, with some merit, that if growing up on your millionaire parents luxury yacht is deprivation and neglect, our court rooms are going to be very busy indeed.

 

For the parents part however, the substantial case is one of jurisdiction.

 

Mr Mangrove, representing them, says that before any issues of significant harm can properly be dissected, there are issues of jurisdiction to consider.

 

These are the broad facts :-

 

  1. The parents reside entirely on their yacht, as does J.
  2. The parents have a firm intention to continue to do so.
  3. They have no intention to reside in any town, village or hamlet of the British Isles.
  4. The yacht moves around frequently, it is around Britain for just under three months of the year. The Captain’s log makes that clear.
  5. On the occasions when the yacht is moored in England, it does so in different ports or harbours and has not, during the entireity of J’s life, been moored in the same Local Authority area for longer than one consecutive night.

 

Mr Mangrove therefore pleads :-

 

1. Using the guidance in Shah   [Barnet LBC v Shah 1983 2 AC 309]  ordinary residence refers to a person’s “abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration”.

 

2. The ordinary residence of a child is that of his parents In Re: J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, 579:

“… where a child of J.’s age [about 3 years old] is in the sole lawful custody of her mother, his situation with regard to habitual residence will necessarily be the same as hers.”

3.    These parents have no settled intention to live in England, and do not do so. Even the dreaded taxman has accepted that the parents do not live in England.

4.    It is accepted by Mr Mangrove that were the parents to be living in their yacht, moored more or less permanently in one location, they would be rightly said to be ordinarily resident there pace John Reeves v Randy Northrop [2013] EWCA Civ 362  [which, going off at yet another tangent, is a beautiful judgment ending very poetically  http://www.bailii.org/ew/cases/EWCA/Civ/2013/362.html  ]

5.    Mr Mangrove thus says, with considerable force, that if J does not live in England or Wales, and I must be driven to that conclusion on the evidence, then the Children Act 1989 has as much application to him as it does a child living in Swaziland, and thus the application for a section 8 contact order, and the request for a section 37 direction, and the proceedings themselves, should be dismissed.

 

I sought further clarification on this point.

It arises from section 2 of the Family Law Act 1986

The English Court has jurisdiction under the Children Act 1989 in respect of a child IF 

 

(a)  Brussels II applies

(b)  If on the ‘relevant date’  (when the application was made) the child was habitually resident in England and Wales OR has no habitual residence in England or Wales BUT was present in England or Wales

 

From the ships log, I ascertain that on the date when Mrs Wasteland made her application, the yacht was in Helsinki, which unless Mr Raymond Luxury QC has the benefit of some very old (but still standing) treaties following wars which makes Helsinki a territory of the UK, is not in England or Wales.

Although Mr Pugwash has reluctantly come ashore to deal with these matters, the yacht itself and J, are not in English waters at present.

Brussels II makes it plain that the presence of the child must not be in any way temporary or intermittent  {Re A (Area of Freedom Security and Justice 2009 2 FLR 1}   and if I had been in any doubt, that would have settled the matter.

Given that Brussels II deals with habitual residence in the member state or presence in the member state, and I find that on the facts of this case, J Alfred Pugwash was neither, it must therefore be the case that I have no jurisdiction to make a section 8 order, or a section 37 direction, or to continue hearing this case, as delightful as it would be to maintain a hold on it.

 

By way of consolation, with this judgment, I am handing to Mr Raymond Luxury QC two items to be passed to his client. The first is a sachet of Dramamine, which I understood is very good for sea-sickness. The second is a copy of Italo Calvino’s novella, The Baron in the Trees, a particular favourite of mine, involving a tenacious young lad, Cosimo, who vows to live his entire life in trees and to never set foot upon the ground again. As I recall, it worked out rather pleasantly for all concerned.

 

To the parents, and to young J, I bid them good luck on their voyages, and that they continue to dare to disturb the universe.

 

Scissorhands versus Scissorhands

An imaginary judgment   [it has been a while, and I always like doing these].  This is like a Kramer versus Kramer for whimsical emo kids…

The Court is dealing today with an application by a father, Mr Edward Scissorhands, for contact with his son, Vincent. Vincent is just 3 months old, and lives with his mother, Kim Scissorhands. The parents have been estranged since the latter stages of the mother’s pregnancy with Vincent, and live apart.

 The unusual feature of this case is a stark one. Mr Scissorhands suffers from a unique physical disability, in that he does not possess hands with opposable thumbs and fingers, but rather a series of blades, five on each hand, the longest of which is approximately eighteen inches long.  Mr Scissorhands has learned, throughout his life, to use these ‘blade fingers’ with precision and accuracy, and the Court has been shown photographs of ice sculptures made by the father, which show both a high degree of artistic skill and control over these fingers.

 It is common ground in this case that Mr Scissorhands is a warm and kind man, who loves and adores his child and that he would be a positive influence and a good role model – his forebearance, inner strength, his kind heart and the way he has overcome what for many people would appear insurmountable obstacles, all do him enormous credit and would be a fine example for his son.

 Nor is there any ill-will or animosity between the parents, save for their disagreement as to whether contact can safely take place.

 The issue is whether, despite Mr Scissorhands knowledge of childcare and desire to put that knowledge into practice, he would be physically capable of doing so safely.

 It is factually correct, and Mr Scissorhands accepts this, that he could not hold his son, nor safely touch him, and that as a result, things that many parents take for granted, such as cuddling, tickling, hugging, changing a nappy, holding the child’s hand when crossing a road, are not possible for him.

 He was asked, by counsel representing the mother, for example, to demonstrate whilst in the witness box, how he would play a game of “peekaboo” and this resulted in several minor, but nonetheless real, cuts to his forehead, which would of course be not desirable for either the father or the child in what is ordinarily a happy and joyful interaction.

 The father’s face, I should add, does bear healing scars in a multitude of places, caused by inadvertent brushes of the scissor blades on his own face. 

One cannot easily ignore, despite understanding that the father would exercise all possible caution and care and would have no intention to cause any harm to Vincent, that if such accidental cuts have happened to the father, causing facial scarring, that it is a risk that cannot sensibly be ignored that a cut might happen, completely accidentally, to Vincent.

 I am invited by the mother to find that the father, not as a result of any culpability on his part but as a result of his unique personal characteristics, would pose a risk to Vincent in unsupervised contact, both in terms of an inability meet his needs  (he would be unable to hold or comfort Vincent if he were distressed and would be unable to change him, feeding him would potentially be manageable though difficult) and the risk of an accidental injury occurring.

 I have to confess that I found this aspect difficult. To make a finding of risk against a father where there is no culpability on his part, appeared at first blush to be harsh, and I had to take care in approaching this.

 However, I have to turn my mind to the test that the House of Lords set for assessing the risk of harm  (although this applies to public law proceedings, it is still pertinent in this private law case, considering as it does how the Court is to tackle the issue of future risk)

 Lord Nicholls in Re H [1996] AC 563 at 585F set out a likelihood of harm as: “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”

 It is not necessary, in determining whether there is a risk of harm to the child (as I must, this being not only a live issue for the Court to determine, but one of the relevant factors in the Welfare Checklist which I must have regard to), that is the basis on which I should approach it  – on the balance of probabilities, with the burden of proof being on the person who asserts risk (in this case mother) is there evidence of a risk that cannot sensibly be ignored.

 I have to answer that question in the affirmative. There is a risk that unsupervised contact would cause harm to Vincent, notwithstanding that father has no wish or desire to cause such harm and that he has nothing but love and warmth for Vincent.  When considering the harm element of the welfare checklist, I am not obliged to consider any mens rea or intent on the part of the parent.

 My conclusion is that Vincent would be at risk of harm in unsupervised contact and that the risk of harm could not be safely managed, despite any assurances that father could give. The harm would be in effect, outside of his ability to control, no matter how careful he would be, a momentary slip would cut this fragile baby.  A baby of 3 months needs to be changed, and comforted, needs to be cleaned, needs to be fed and held. The father, despite his clear desire to do so, is simply not in a position to do that safely.

 I am therefore driven to conclude that unsupervised contact for this father is not possible.

 I turn then to supervised contact. The mother is not willing to supervise the contact (and of course, directing an estranged parent to supervise the contact of their ex partner would be wholly unusual and indeed undesirable).  Nor are any members of her family willing to do so.

 The father has no family members who could undertake this task.

 Neither parent is in a financial position to fund the supervision of contact themselves.

 I have obviously then had to grapple with the fundamental principle that contact with both parents is vital for a child and that contact should not be ceased unless there are compelling reasons for this, only in exceptional circumstances, where there was no alternative. There is a raft of case law to that effect, the most recent being

 IN THE MATTER OF C (A CHILD) sub nom AL v (1) JH (2) C (A CHILD BY HER GUARDIAN) (2011) [2011] 2 FLR 912

 And therefore, a deal of thought has been given to whether some legal underpinning which ensures that there will be a supervisor for father’s contact, to allow him to have supervised contact until such time as Vincent is old enough to (a) not require such ‘hands on’ care and (b) to be in a position to recognise the need to be careful around his father and have the ability to keep himself safe.

 Having established that no family members can supervise the contact, that leaves only professionals.  A supported contact centre would not offer the degree of supervision that is required here – it must be more than merely ‘pop in’ or observed contact, there is a risk management function here.

 Whilst the Court could potentially make a direction for the Local Authority to prepare a report under section 7 of the Children Act 1989, and recommend to them that they prepare some observations of supervised contact, that would be only a short term solution, at best securing two or three supervised sessions of contact.

 Can they be obliged to supervise the father’s contact on an ongoing basis, as that is what is needed here?

 The answer, sadly, is that they are not.

 I cannot compel them under section 11 (7) (d) of the Children Act 1989, since I am not able to place conditions on contact that apply to third parties (as a result of s 11 (7) (b)

 I have been pointed to Family Assistance Orders pursuant to section 16 of the Children Act 1989, where the Court can order a Local Authority to ‘advise assist and befriend’ a family. Does that go so far as to require the supervision of contact?

 The case of S V P (CONTACT APPLICATION: FAMILY ASSISTANCE ORDER (1997)  1997] 2 FLR 277 suggests that a Court going over and above the requirement to advise, assist and befriend component of a Family Assistance Order goes too far.  Whilst I could invite the Local Authority to supervise contact under such an order, I cannot compel them to do so. I can direct s16 (4A ) for the LA to give advice and assistance regarding establishing, improving and maintaining contact, and direct for them to prepare a report s16 (6)

 Additionally, the FAO only lasts for 12 months, and what is required here is something much longer lasting.

 There is a temptation to consider making the FAO, directing that the father have supervised contact, and that the LA report in 12 months; and that is something I will store on the back burner for the moment. 

 I have also considered whether I could reasonably make an Interim Care Order (under which the Local Authority would have a duty to promote the father’s contact, and thus would have to provide supervision of it), but I cannot make such an order of the Court’s own motion, save for alongside a section 37 investigation. I could make more than one such order, if the section 37 report was in my judgment insufficient.  

 RE K (Children) 2012   [2013 1 FCR 87]  being authority for that point.

 But in my view, the most that could be achieved by doing so, would be to obtain a series of supervised contact sessions, and information about whether father could have meaningful contact in such a setting. It does nothing to secure the provision of ongoing supervision of contact; which would only happen if either the Local Authority wished to do so voluntarily, OR they voluntarily applied for a Care Order and one was made in due course.

 I have made enquiries of the Local Authority, and not surprisingly, they take the view that Vincent is being well cared for by his mother and that a Care Order is not required to protect him. They do not volunteer to either supervise his contact, other than as a ‘one off’ nor to issue proceedings.

 To make an Interim Care Order purely to facilitate contact appears to me, in the hackneyed phrase to be a sledgehammer to crack a nut. 

  [Author’s note, I think I can recall a case several years ago where this was done and supported by the higher Courts but I can’t now find it – if anyone recalls it, please nudge me. It might be Re M (Intractable Contact Dispute :Interim Care Order 2003, [2003] 2 FLR 636 where the Court sanctioned a removal under an ICO and a section 37 to try to resolve an intractable contact dispute. I think it probably is. ]

 I thus, it appears to me, cannot order the Local Authority to provide the supervision of contact, and the best statutory provision is to make an order for weekly supervised contact, make the Family Assistance Order for 12 months and direct the LA to report on their work in 12 months time, adjourning any final decisions until that point.

 It must be open to question whether the Court could utilise the same rationale as in Re K (Children) 2012, to make repeated Family Assistance Orders where the report does not cover what is desired  (i.e reports on the quality of that supervised contact and some ongoing commitment to supervise in the future)     – the Court of Appeal in Re K took the view that as there was nothing in statute to PREVENT repeated s37s, it was lawful to do so, and that therefore could be argued in this case, were I to do so.   Thus, a succession of Family Assistance Orders could potentially be made, leading to many years of litigation, albeit litigation only revisited annually.

  Instead, however, I make an order that the mother should make Vincent available for contact with his father once per week for two hours.

 I am entitled, under section 11 to make directions as to how that section 8 contact order will come into effect, and those of course include the handover venue.

 Very well, I have determined, taking into account all the circumstances of the case, and the welfare checklist, with Vincent’s welfare being my paramount consideration, that the handover venue should be the reception area of the Local Social Services offices. The father is not to have unsupervised contact, and is not to leave that reception area with Vincent without the express approval of the Local Authority. Those are matters that I direct, pursuant to section 11 of the Children Act 1989

 I will ensure that a transcript of this judgment, which indicates that Vincent would be at a risk of serious harm if the father’s contact were not supervised, and that any professional who knowingly allowed Vincent to come to that risk would, in my judgment be negligent. 

 I trust to the goodwill and sensible nature of the Local Authority staff that they would not allow Vincent to be subjected to a risk of significant harm that a Judge has carefully determined cannot sensibly be ignored.  I am sure that they will step in and make sure that Vincent is watched and observed and kept safe during the two hour period when he will be in their reception area (or such other venue as they choose to transport him and the father to)

 The parents, may of course, vary the handover location by agreement.

 I am certain that any reasonable Local Authority, mindful of their duties towards a child in need (and I find that Vincent is such a child) in their immediate proximity would conduct their section 17 assessment of his needs REASONABLY and conclude that he needs to have the relationship with his father that the Court have determined is vital for him, and that in order for him to be safe, there is a need for services, in the form of supervision.

 If I am wrong in my certainty, then another Court will look at this case, either by way of judicial review, or a civil claim for negligence.

 Thank you all for your time. 

 

 edward scissorhands

 

 

[As ever with my imaginary judgments, all I did was have the kernel of an idea – what would happen in Court if Edward Scissorhands have a baby? And then run with that, with no idea of how my imaginary Judge would get herself out of this predicament that I had cheerfully dug for her.  I didn’t get on to the disability discrimination aspects, though it does seem to me that it is solely the result of father being physically disabled and not having hands, that has resulted in him not having unsupervised contact. 

 

The joy of this draconian decision (which occurred to my imaginary Judge, who I think is called  Judge Knott-Lestyebe  is that not being a party to the proceedings, though the LA would want to appeal it, they may struggle to do so.

 

Although even this footnote now gets its own footnote  - a person who can show that they are a person interested, aggrieved or prejudicially affected by the judgment may appeal with leave  Re M (Prohibited Steps : Application for Leave} 1993 1 FLR 275.  

Of course, this is all mere fiction and fancy and any lawyer will recognise the most ridiculously far-fetched element of the whole piece - there is no way that post LASPO either party would have had counsel ]

 

Whatever you do, don’t blink

An imaginary judgment, that will make largely no sense to you if the title above doesn’t already resonate.  [In fact, it may well be utterly unintelligible, if you don't already know what a Weeping Angel is. sorry]

 

This is a most vexed and unusual  Children Act case, involving a, well, one cannot definitively say ‘child’ as that is itself litigious, and one cannot say ‘young person’ as that too is litigious.

I shall use those terms, as I will ‘mother’ and ‘daughter’ although those matters too fall to be determined. The ‘mother’ in the case, and from this point on, I shall omit the quotation marks, does not strictly speaking have a name, although all have decided to call her Eleanor Acquitane.

 

At the risk of a terrible pun, and I am afraid it may not be the last, she has cut a statuesque figure.

That is because, to the naked eye, she is a statue, or at least she has that appearance to our eyes. She is, however, a lifeform. The Court has been advised by Mr William Compton of counsel, representing her, that she is a lifeform of a sentient species known as Weeping Angels.

As is often said, by counsel representing parents “My client is no angel” but in Mr Compton’s case, she is. The ‘child’ in question ‘C’ is also in appearance a cherubic infant statue.

The Local Authority claim the following about Weeping Angels

1. That they are sentient and capable of reasoning

2. That whilst looking at them, they appear to be statues, or possibly even that they turn to stone whilst you are looking at them

 3. That they cannot move whilst you are looking directly at them

4. That they become ambulatory, and vividly so, if you are not looking directly at them. They can move considerable distances in the blink of an eye.

5. That they do something to human beings, if allowed to close that distance, which removes them from existence.

 

It is hard to say ‘kill’ as no body is found for analysis, nor any chemical substance which could be analysed for remains. There is some speculation that what actually occurs is that the person is sent back in time, but obtaining hard evidence for this is difficult. For my part, if I am sent back in time, I hope that it is to the Sixties, where I intend to forge a career as a song-writer and professional gambler.

The Local Authority contend that these matters, taken in their totality, mean that Eleanor Acquitane is not suitable to care for C and that C will be exposed to significant harm, including witnesing some form of murder on a frequent basis.

Those representing Eleanor Acquitane accept points 1-4, but refute point 5.

They also challenge a number of matters which would ordinarily be taken for granted in an application under the Children Act.

Those are the following:-

1. That the relationship between Eleanor and C can be described in any way as that between parent and child.

2. That C is in any way a child

3. That C needs any care at all

4. That the Children Act applies to Eleanor and C in any way

5. That the habits, customs and traditions of Weeping Angels are such that to attempt to judge them and critique them by human standards and mores would be as ridiculous as trying to judge a lion by the standards of a polite Kensington dinner party.

These facts are clear.

(a) Eleanor and C had been living in a London park.

(b) They moved from that park, on or about June 6th 2012

(c) They moved to a vacant flat in the Local Authority’s area

(d) Initial professional visits to the flat, following referrals, resulted in no reports being completed after the visits, and staff never being seen again.

(e) An interim care order was made on 12th July 2012, and C taken into foster care. I have heard vivid evidence about the logistical and practical difficulties in executing that order, and the Court would wish to offer sympathy to the families of the four workers who are sadly no longer with us

(f) In the short intervening period, C has had seven foster placements.

I heard evidence from the current foster carers, who have to watch C at every moment of the day and night, never taking their eyes off her in case she moves and does whatever it is that Weeping Angels do (even their infants, offspring, ‘prima facie younger versions’ do this).

This has been understandably a strain and a difficulty on them, and the momentary loss of concentration that was a prelude to Uncle Martin’s disappearance has added to that burden. It is unique, in my view, for a Court to hear from a witness in care proceedings whose final words to the Court are “For God’s sake, free us from this living hell”

(g) A psychologist was appointed to assess C and Eleanor Acquitane. The report was never completed. It was a shame that the psychologist had conducted the interview alone, and that he had declined all sensible advice to have an additional eight persons present, all fixing their gaze firmly on C and Eleanor at all times.

 

I have been presented with a report, which was published in a science-fiction magazine named “Mind-Expanding Tales of Wonder” in 1977, which purports to be the psychological assessment of Eleanor and C.

I have been invited, by Miss Pond, for the Local Authority, to take this into account and treat it not as fiction, but as the actual report in the case, genuinely written, as it claims, by the psychologist who had been thrown backwards in time after the Weeping Angels reached him.

I find it difficult, on basic principles of evidence, to accept that a science fiction story written in 1977 can be, in fact, a factual report which the Court directed to be prepared in 2012.

Of course, the coincidences in the fictional publication are manifold and surprising. Miss Pond pointed them out to me, and they included that the author’s name was that of our psychologist, that the descriptions of Eleanor and C (and their names) was accurate, that the article names myself as the Judge, and so forth.

Those matters are on the face of it compelling, as is Miss Pond’s submission that what has happened to all of the people who have vanished after taking their eyes off C or Eleanor have actually been sent back in time.

 

Mr Compton concedes that this is a possibility, and given that the other accusation against his client is that she has been disintegrating these innocent professionals attempting to do a difficult job, one can see why he would be swayed towards that explanation.

He does firmly say that without the opportunity to cross-examine the psychologist, and the uncertainty about whether the ‘story’ can genuinely be the report itself, the Court could not realistically give weight to what purport to be expert conclusions of “Both are incredibly dangerous, and the only thing to do is ship both to Antartica and hope the world never sees either of them again” .

 

For my part, I did not need a great deal of encouragement not to adopt those recommendations or conclusions. On the balance of probabilities, the coincidences in the ‘story’ with the facts of the commissioned report are just that, coincidences, and it would be manifestly unfair to treat them otherwise.

I have, therefore, to proceed on the basis of there being no psychological evidence before the Court, there being no-one else willing to undertake it. I should recount the unusual arrangements at Court.

It would not be safe, for anyone, on the little we do know, for Eleanor Acquitane to sit behind Mr Compton in the traditional way.

That would leave my eyes as the only ones on her, and expose Miss Pond and even Mr Compton to inordinate risk, should I have had to look at a document, or wipe my glasses, or blink.

She has therefore spent the entireity of the hearing in the witness box, and those at the bar have taken it in turns to watch her, as the saying goes, like a hawk.

I come now to the central issues in the case, as delineated by Mr Compton.

He does not dispute that IF his client were human, and C were her child, and C was witnessing at best the disappearance of other humans around her on an almost daily basis, then the threshold would be satisfied and that his client would have a mountain to climb in terms of persuading the Court not to make a Care Order.

However, as he points out, she is not human. And the Local Authority have not been able to prove that C is a child at all. She is certainly not a human child.

It has not been possible to age her – there are no dental records, and those who have seen her teeth (which happens only after a short blink or removing ones gaze) have no wish to attempt to obtain any dental examination of them. Mr Compton contends that whilst C has the outward appearance of a young cherub or infant child, the Local Authority simply cannot prove this.

Nor can they prove that C and Eleanor have any biological connection, still less that of mother and daughter. His client insists that their relationship is close to that of comrades, or colleagues and not a parent and child dynamic at all. C is entirely self-sufficient and does not require parental care. He states that the experiences of the foster carers, chilling though they are, show that none of the things that a human infant would need are needed by C, and that she is more than capable of ‘feeding’ if feeding is what is being done when ungazing people around her vanish.

It is not possible to establish the relationship by DNA testing. Firstly, it is entirely possible that both C and Eleanor do not in fact have any DNA. Secondly, rather than a swabbing process, the only way a sample could be taken is by drilling into the skin of C and Eleanor, and that is not something that the Court could sanction.

I have to consider, of course, whether the Human Rights Act applies to this case at all; and that has proven to be problematic.

On the face of it, if as Mr Compton contends (and as seems clear from the evidence) his client is not a human, she would appear to not have the protections that the Human Rights Act offers. But, says Mr Compton, one must look at the wording of Article 6, for example

ARTICLE 6 RIGHT TO A FAIR TRIAL

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

And

ARTICLE 8 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 Mr Compton submits  that the key word there is ‘everyone’ and that there is no stipulation that such rights are limited to humans. It does not say “Everyone who is a human being

It is true that within the Act, there is no definition of human. It was reasonable, at the time it was written, for the Parliamentary draftsmen not to anticipate that we would be sharing our planet with another sentient race. But here we are.

The Human Rights Act, Miss Pond says, clearly, even if it does not spell it out in statute must only apply to humans, and that applying the logical consequence of it applying to any living being that it does not explicitly exclude, the State would owe ants a right to private and family life. The Act, she says, applies to humans and humans only. Should Parliament wish to extend rights and protections to Weeping Angels, they would have to bring that about with fresh legislation.

Similar arguments extend to whether the Children Act 1989 gives the Court any jurisdiction at all on C.

And here, the parties reverse their positions.

Mr Compton says – his client is not human, the Act is intended only for human children, and that to widen its scope would be analogous to making Interim Care Orders for puppies and kittens.

Miss Pond says – the precise wording of the Act defines “child” as (s105) a “person under the age of 18” and that the Court may determine on the balance of probabilities that C, given her appearance is a person under the age of 18.

(This seems to get the Court into ‘age-assessment’ territory, and I have been kindly taken to the wealth of caselaw on that point, almost all of it concerning Croydon. It is fair to say that I am not particularly helped on how to age a child who has the outward appearance of a statue. As Mr Compton readily points out, if one asks how old the Statue of Eros is at Piccadilly Circus, one is more likely to answer that it is about a hundred years old than that it is about five months old)

Even if I overcome the thorny issues of whether the Human Rights Act and the Children Act apply to this case; and it seems to me that they either must BOTH apply or neither can apply – the Court cannot cherrypick on ‘the spirit of the law’ versus the ‘letter of the law’ and apply that differently on the two different Acts.

Either the Acts intend to cover only human beings though neglecting to make that transparently plain or a narrow construction of the law that it does not exclude other sentinent and conscious beings is right. I will come to that later.

But even once that is resolved, one is left with the issues of whether it is an essential part of the character of Weeping Angels to make humans disappear, and whether depriving C of that culture is to go against nature itself. Is it part of their essential make up, just as dreaming, hoping, wishing or worrying is part of our essential make up as humans? What sort of life is there for C in care, with those charged with caring for her being actually terrified of her every minute of the day and night and there constantly being the fear that the placement will break down, if she ceases to be observed for even a second or two, and vanishes her carer?

Is there, in short, as Mr Compton argues, a compelling case for striving to understand that a human trying to care for a Weeping Angel would a fruitless exercise doomed to failure. As Wittgenstein observed – if a lion could speak, we would not understand what he had to say.

Fortunately for all of these thorny issues, I have arrived at a very elegant solution and one which will please everybody.

Erm, I would ask counsel to not look at me whilst I am delivering this judgment. I appreciate that it is Court etiquette to do so, and no doubt ingrained into you all, but….

I am afraid I have been looking at my notes, and you have been looking at me. And now Miss Acquitane is no longer in the witness box and is only four inches away from me. Her teeth are very sharp. Everyone, don’t blink. Whatever you do, don’t blink

TAPE ENDS

 

[Writing this led me into the curious mental debate about what would happen if a Judge delivered a judgment but passed away before the order could be drawn up? Are the findings binding? How far into the judgment does a Judge have to survive into for it to be intact? What if she or he makes findings on seven of the ten allegations but passes away mid sentence before moving on to the eighth? Does the whole thing get re-tried, or only the last three allegations? If anyone knows, please tell me, because I have the sort of mind that worries about these things.  What if they've written the judgment down, but they die whilst reading it out?       On the unlikely event of there being any Judge who reads this blog, I am incredibly sorry to have expressed such macabre thoughts about you and your job, and rest assured, I wish you nothing but well, and that you get to the end of all of your judgments intact. ]

Silence is golden, justice is blind

 

 

 

An imaginary judgment, dealing with section 98 of the Children Act 1989 and rights to remain silent….

 

The Court is dealing today, I was sorely tempted to begin this judgment with ‘we are gathered here today’ given the themes of the case, with a vexed preliminary issue prior to the determination of a finding of fact hearing.

 

The bare facts of the case are simple. The Court is about to embark upon a finding of fact hearing. Serious allegations of physical abuse are made against the mother and the father, and the Court must establish firstly whether these allegations are proven on the balance of probabilities, and then move on to determine whether it is possible to identify the perpetrator, or exclude either parent. 

 

The father has made it plain that he does not seek to care for the children, he and the mother having separated, and his role in the proceedings is limited to the factual determination of the finding of fact hearing. For his part, he denies that the injuries were non-accidental, and if the Court is against him on that, he denies that they were perpetrated by him.  He does not go so far as the mother, who actively asserts that the father caused the injuries.

 

The factual allegations are detailed and involve multiple injuries over multiple dates and the factual enquiry into this will without doubt involve a great deal of detailed cross-examination and forensic discussion. There will need to be exploration of the accounts provided, and how these tally with both the medical explanations and any previous accounts.

 

This is complicated by the father’s current position. He, having left the family at the outset of these proceedings, has undergone something of a religious conversion, and is now living in a monastery and has become a Trappist monk.  It is asserted on his behalf, that a fundamental part of his religious beliefs and practice is to maintain a complete vow of silence. Evidence has been filed , necessarily in writing, from those at his monastery to confirm that (a) the father is living there (b) that he has undertaken the necessary conversion to become a Trappist monk, albeit in a more accelerated process than is usual, (c) that the vow of silence is indeed a legitimate and indeed mandatory form of his religious expression  and (d) that having taken that vow, he is bound by it and cannot relinquish it.  The necessity to speak and give oral evidence does not countermand his vow of silence, so far as his religious practices are concerned.

 

 

I am advised that a rudimentary form of finger signing is permitted, but an inspection of this shows that it would be substantially short of the ability to communicate the level of detail that would be required. Equally, it is apparent that it would be permissible for father to reduce his answers to writing, and for these to be read aloud by another.  I muse that this must be an acceptable method of dealing with the need for oral evidence in a case where the witness is physically incapable of speech, for example where they are mute.

 

It is submitted on behalf of mother, and supported by the Local Authority, that giving his evidence by way of written answers affords the father a tactical advantage. Clearly his answers would not be as instant as those given by someone answering aloud; the process of writing them renders both an opportunity for thinking time and indeed the opportunity to avoid ‘stumbling into an answer’  because he would have the ability to correct a remark that he wished he had not made and substitute it for a more polished answer before the written answer is finalised and shown to the Court / read aloud by an usher. 

 

Equally, the mother submits, that in comparing and assessing the evidence of two parents who are under the spotlight of suspicion, the Court hearing tone, manner, demeanour, facial expression and cadence of one witness and merely the written answers of another is ‘comparing apples and oranges’ and that mother’s right to a fair hearing may well be prejudiced if the two parties under scrutiny are not competing on a level playing field.

 

It is certainly right that all of the factors mentioned by mother’s counsel are matters which a judge properly brings to bear on an assessment of a witness’ evidence. It is not merely, as she asserts, “what is said, but the way it is said’ that is important.

 

I accept, that it would be better, if at all possible, to hear from the mouths of both witnesses, their evidence; and that alternative methods such as communicating in writing should be done only if unavoidable.

 

 

We turn, therefore, to the issue of whether the father can legitimately be compelled to give oral evidence, irrespective of his religious convictions.

 

I am referred to section 98 of the Children Act 1989

 

98 Self-incrimination.E+W

(1)In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a)giving evidence on any matter; or

(b)answering any question put to him in the course of his giving evidence,

on the ground that doing so might incriminate him or his spouse [F1or civil partner] of an offence.

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [F1or civil partner] in proceedings for an offence other than perjury.

 

 

 

 

It is submitted on behalf of father, quite properly, that this relates to the principle that a person is not excused from giving evidence or answering questions in evidence on the grounds that it might incriminate him, or his spouse.  In effect, that in care proceedings, there is no “Fifth amendment” right to ‘refuse to answer that question on the grounds that it may incriminate me’   or, adopting the UK terminology in the criminal process, the  right to remain silent.

 

He asserts that he  (a) is not refusing to answer questions, but is unable to do so and (b) that if he is ‘refusing’ it is not on the grounds that it may incriminate him, but on religious beliefs.

 

The other parties assert that it is clear from the reading of section 98 that there is no reason that a witness in care proceedings can refuse to give evidence.

 

He is a competent witness, applying the principles of  the Youth Justice and Criminal Evidence Act 1999, section 53  -  “all persons are competent to give evidence unless  they don’t understand the questions put to them, or they cannot give answers to those questions which can be understood”    - although those principles strictly apply to criminal trials, I am satisfied that they are an appropriate measuring stick and that father is competent (and thus compellable) on that basis.

 

If a witness summons is issued, compelling father to attend and give oral evidence, what powers, if any, does the Court have if he is asked to swear the oath, or to answer a question and not a syllable passes his lips?

 

 

I am helpfully pointed towards the decision of the criminal courts in

R v Montgomery 1995, which sets out that refusal to give evidence can constitute a contempt of court.

 

 

 

R v Montgomery (1995) 16 Cr.App.R.(S) 274

• An immediate custodial sentence is the only appropriate sentence for contempt

unless there are wholly exceptional circumstances.

• There is no rule or established practice that states higher sentences should be

imposed in cases of interference with for example jurors, than in the case of a

witness refusing to give evidence.

• Although the maximum sentence for failing to comply with a witness order is 3

months, this does not mean a longer sentence cannot be imposed for blatant contempt by refusing to testify.

• The following factors were determined to be relevant to the sentencing of contemnors:

(a) the gravity of the offence being tried;

(b) the effect upon the trial;

(c) the contemnor’s reasons for failing to give evidence;

(d) whether the contempt is aggravated by impertinent defiance to the judge;

(e) the scale of sentences in similar cases, albeit each case must turn on its own facts;

(f) the antecedents, personal circumstances and characteristics of the

contemnor; for example, whether for the contemnor this would be his first time to prison or is institutionalised.

 

It is notable, that the father, faced with the possibility that his decision not to give oral evidence might result in a custodial sentence, possibly in excess of three months, has not waivered from his position that he is unable to give oral evidence.

 

The fact remains that ultimately, whether I find the father in contempt of court I cannot compel him to utter a word in the witness box. I can compel him to get into the witness box, and punish him for not answering, but no more than that.

 

 

 

 

All that I could do would be to witness summons him to give evidence, and commit him to prison if he refused to do so, and then, as our American cousins say “lather, rinse, repeat” whilst we test which of us has the greater patience – the father in spending three months in prison following each time he comes to court or myself in whether I am prepared to keep adjourning the case indefinitely should he remain steadfast.

 

And of course, I must bear in mind that throughout this theoretical exercise of brinkmanship where I would test whether the father’s determination to not speak would exceed my own determination to have his evidence heard, the child would be in limbo and waiting for a determination. The principle of no delay I think, drives me, not to embark on a futile course of action that would cause delay for the crucial decision to be determined.

 

So, as far as the father is concerned, I can potentially  punish him for not speaking, but I cannot compel him to speak.

 

 

 

 

 

 

 

Given that the father’s defence to any application for contempt would be that he is not refusing to give evidence, but is unable to do so as a result of his religious convictions, I must turn now to the Human Rights Act 1998 and in particular, the right to religious expression; to consider whether in law, I could actually punish him at all for exercising his religious beliefs, inconvenient as they may be for the Court.  

 

 

  ARTICLE 9
  FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
      1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
 
      2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

 

 

Regardless of the assertion by the Local Authority and the mother that I should treat the father’s religious conversion as a convenient device for the purpose of side-stepping the need to give oral evidence and that the Court can make inferences in that regard, perhaps even so far as making inferences that this is as a result of a guilty conscience,  I am troubled that this would be a step too far.  The father has the right to adopt a religion and to change it.

 

The Court can look to an extent, at whether this is genuine or a device, but cannot peel off too many layers of that particular onion.  

 

If he merely asserted that he was now in deep sympathy with the principles of Trappist monks and had taken a vow of silence, and had taken no steps whatsoever to adopt any other elements of their religion,  the Court would be justifiably sceptical; but this father has actually moved into a monastery and undergone the conversion process. There is no evidence to suggest that since doing so, the father has not adhered to their practices, and as indicated early, much evidence to the contrary.

 

One of the essential facets of faith is that it can be a lifelong deeply held belief, or a sudden conversion, as a person encounters a situation or comes to a revelation that there is another facet to the world than the merely physical and that they wish to take steps to embrace the sense of religious wonder or responsibility that they feel.

 

 

It may be that the connection with the Trappist monks and their vow of silence is  a helpful device (or as mother puts it ‘a get-out-of-jail-free card’, it may be a  merely coincidental happenstance, as father asserts. Without prima facie evidence that his religious beliefs are not genuine, I am not entitled to delve too deeply into this.

 

Regardless, he is legitimately entitled to change his religion to that of a trappist monk if he wishes, and legitimately entitled to follow their religious practices unless there are limitations to this prescribed by law.

 

 

I could legitimately issue a witness summons against him, but it must be questionable whether I could legitimately commit him for contempt for not answering a question once he gets into the witness box. That being the case, and given that the father has made it plain through those who represent him (who have had more than the usual volume of written notes passed to them during these proceedings) that he is willing to attend the hearing and step into the box, one wonders whether there is any value in issuing a witness summons.

 

 

 

The best I can do, in this difficult and vexed situation, and I am sure that this is a solution that will earn me a great deal of displeasure from my usher, a person whom I depend on for smooth running of my daily working existence and a person who I offend at my peril, is for both parents to give their evidence on the same footing.

 

Therefore, both mother and father may, if they desire, give their evidence by writing their answers on a pad of paper. When the answer is finished, they will hand the answer to the usher, who will read it aloud.  It is not ideal, but it avoids the risk of comparing apples and oranges that the Court must be alive to.

 

Counsel are asked to keep their questions as concise as possible, in order that answers can be likewise, and to avoid the nested and tiered questions of which so many advocates are fond these days.

 

I will now rise for lunch, and I suspect that I may need to be treating the usher to something substantial and possibly lavish, so I will begin the case at 3 o’clock.

I saw mummy kissing santa claus

 

An imaginary judgment, dealing with what happens when a key piece of evidence is found from an unwelcome source

 

 

This matter comes before me as an Appeal from a decision of the Family Proceedings Court to make Care Orders and Placement Orders in respect of three young children, who in time honoured fashion, I will label A, B, and C. The eldest is just four, the youngest is six months old, born within these proceedings. The mother of all three children is Miss X. The father of the older two children has played no part in these proceedings. The father of the youngest child is Mr Y.

 

The facts of the case before the Court were relatively straightforward and sadly not uncommon in the cases involving public law applications for children which are being heard throughout the land. The mother of the children was proceeding very well with her care of A and B until she formed a relationship with Mr Y.  Mr Y, although he seemed attractive, kind and attentive, had an unfortunate background, involving convictions for very serious sexual offences against children, he having only just been released from prison.  Understandably, the Local Authority concerned, once they became aware of Mr Y’s background and involvement with the family sought to provide mother with certain advice about the merits of this relationship continuing. Expert evidence was before the Court, and was unchallenged, that Mr Y’s history, psychological make-up and lack of empathy, insight and remorse for his proven past crimes meant that he was unsafe to be around children and that any timescales for treatment were well outside of the children’s timescales and the prognosis in any event was poor.

 

The mother and Mr Y separated, but of course, baby C had been conceived by then.

 

As often occurs in these cases, concerns arose as to whether the separation was genuine, or whether it was, in effect a placatory public gesture to satisfy professionals whilst clandestinely it continued apace. Allegations of this, together with such corroborating evidence as the Local Authority were able to assemble was placed before the Family Proceedings Court and tested appropriately in evidence.

 

Thus far, there is nothing exceptional about the case, and this Court would be exceedingly reluctant to interfere with any findings made by the Family Proceedings Court about the factual matrix of the case or whether the relationship was, or was not continuing.

 

The unusual facet of the case, and the impetus behind this appeal, is that after the parents had given their evidence, but before the Guardian had given hers, the case concluded for the day, with the intention being to reassemble the next day.  One of the three Magistrates who had been hearing the case,  left the Court building and happened upon two adults locked in what can best be described as passionate and tender embrace. It was with some understandable embassment and chagrin that this Magistrate came to the opinion that these adults were Mr Y and Miss X, and that far from having been completely separated and with no intention to spend any time together, as had been their sworn evidence, there was a passion and intensity about the embrace that called that into question.

 

The next morning, the Magistrate concerned, who I will label Miss J, immediately notified the Legal Advisor of this. In that consultation, they resolved that Miss J should not discuss this in any way with the other two magistrates and that the issue should be put to the parties in order that representations could be made about the way forward. The Legal Advisor suggested to Miss J, who took this advice, that she could no longer sit as a Magistrate in resolving this particular case as she was now potentially a witness of fact.  Miss J prepared a short document setting out what she had observed.  It was very plain that Miss J was advised not to discuss the issue with the other Magistrates, and that no discussion of the issue other than the formal representations (and if necessary, evidence) given in Court should take place, to do ones utmost to preserve the integrity and impartiality of the other Magistrates.

 

If I may say so, I think that the Legal Advisor in this case acted very sagely in the most exceptional of circumstances. It is difficult to see what more she could have done.

 

When the document that Miss J had prepared was circulated to the parties, two camps effectively formed. As one might expect,  the mother and father sought an adjournment of the case with there to be a re-hearing at which Miss J could give evidence before a completely fresh bench, untainted by any association with Miss J.  The Local Authority and Guardian pointed out that the case could proceed with two magistrates and that Miss J could give evidence, which would be assessed by the bench with the same impartiality and scrutiny as any other witness and the parents recalled, adding that any other bench that could be assembled in due course to hear the case would be as likely as these two Magistrates to have sat with Miss J as some time or another, it being the nature of the Family Proceedings Court that rather than a fixed block of three Magistrates always working together, there is more of a ‘mix and match’ approach.   The decision was taken to continue, and the parents representatives quite properly registered their disquiet about the unusual situation and that they reserved the right to seek an appeal of any final adjudication, not least because of the wider public interest issues that the case had thrown up.

 

In relation to the way the Court approached the evidence of Miss J, I can find no fault with that.  A proof of evidence was available to the parties and all had seen it in advance of her giving evidence. It was made plain that she was giving her evidence as a member of the public who had witnessed something (she having left the curtilage of the Court, she was no longer effectively Miss J, Magistrate, at the time, but Miss J, person).  The Legal Advisor ensured that a Turnbull direction was given in Court before the evidence was heard.

I remind myself at this point that the Court of Appeal have previously given a decision in which it was made plain that Turnbull directions on the risks of misidentification of a person is not limited to criminal trials but applicable in a family case where there is eye witness evidence about a specific individual being alleged to do certain things. This particular Legal Advisor was familiar with that case. It is a shame that more people are not.   RE A (CHILDREN) sub nom EH v (1) X LONDON BOROUGH COUNCIL (2) AA (3) REA & RHA (BY THEIR GUARDIAN) (2010) [2010] 2 FLR 661

In all cases such as this, I consider that it is incumbent upon a judge to remind himself in judgment of the precise terms of the passages in R v Turnbull[1977] QB 224 in which Widgery CJ stated at 228:

First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear term the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special
reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a
material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them”. Finally, he should remind the jury of any specific weakness which has appeared in the identification evidence.
“Recognition may be more reliable then identification of a stranger but even then when the witness is purporting to recognise someone whom he knows,
the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. “

 

When the Family Proceedings Court, sitting as a bench of two, made their determination on this factual issue, they took considerable pains to analyse each and every point of the Turnbull principles in their determination. They made the finding that the evidence of Miss J was preferred, following that careful analysis to the evidence of Mr Y and Miss X, and that the couple on the day of their substantive evidence declaring effectively undying separation had been observed in the throes of considerable and lengthy passionate embrace. The Court made other findings about the relationship based on the allegations. I note, and it is of some significance, that two of the five allegations made by the Local Authority about occasions when the parents were suspected to be together were not made out because the Court felt that there was not sufficient evidence to be satisfied about them, and the Court did not make the mistake of conflating the likelihood of  (a), (b) and (c) having been true, just because they had found a significant (d) to be true.

 

In this appeal, no criticism is made of the way that the Magistrates drew up their reasons, nor that they took into account something that was irrelevant, or failed to give sufficient weight to something that was relevant. Clearly, with one eye on the likely appeal and the need in this case because of the circumstances to be rigorous, the Facts and Reasons are an exemplar of their kind.

 

Counsel for the appellant mother, makes effectively one point in this appeal and it is a compelling one. I am grateful that a ‘scattergun’ approach was not taken, but the issue confined to the one which is the crux of the case.  Does this decision satisfy the Sussex Justices case that justice must not only be done, it must be seen to be done.

 

Could the two Magistrates determining the case, no matter how much care and attention they gave the matter and no matter how hard they strove for neutrality and impartiality, really appropriately weigh and sift the evidence without giving a disproportionate weight to the fact that one witness of fact on a key disputed issue had previously been sitting by their side on the case as they heard live evidence?

 

Counsel for the appellant makes the strong case that if this were a criminal trial, and the witness of fact had been a member of the jury who perhaps overheard some material evidence being talked about by a defendant, the jury would be discharged and the case reheard.  The Joanne Frail case, where the juror had been in communication with the defendant on Facebook whilst the jury were still deliberating  was referred to

ATTORNEY GENERAL v (1) JOANNE FRAILL (2) JAMIE STEWART : R v KNOX (2011) [2011] EWHC 1629 (Admin)  as was the case where a juror had been flirting with a police officer giving evidence in the trial

R v (1) JOHN CORT (2) BRIAN FARRELL (2011) [2011] EWCA Crim 1597  and indeed the case where an officer of the Court involved in jury selection had been socialising with members of the jury

R v CHRISTOPHER JOHN BURCOMBE (2010) [2010] EWCA Crim 2818  and R v MICHAEL WILLIAM MCDONNELL (2010) [2010] EWCA Crim 2352 where the jury had searched for information about the defendants on the internet.

 

 

All of which chiefly made me very relieved that I no longer conduct criminal trials, as they seem to be a hot-bed of socialisation, fraternisation and social networking pitfalls, with the court and jury room being more akin to some form of speed-dating evening than the administration of justice.

 

I consider that it is right and proper to draw the distinction here between a juror who has set out to act inappropriately (whether through ignorance or sheer bloody-mindedness) and a Magistate who here happened to stumble into possession of material evidence which made her a witness. Had she endeavoured to follow Mr Y or Miss X and observe them, or visit their home to watch them, then I would be in no doubt whatsoever that her conduct would be reprehensible.  There is, in my judgment, a clear bright line when a person is sitting in a judicial capacity between hearing and testing the evidence that is presented in Court and endeavouring to find out more outside the Court. The latter is not acceptable. By way of illustration, it would be appropriate for a Judge to indicate to the parties that they seek to read a specific piece of research referred to in Dr Jinglebones report, but not to search on the internet for criticisms of Dr Jinglebones or photographs illustrating his vivid social life and partiality towards tequilla. There is a clear, bright line between hearing the evidence that is presented in court and making ones own enquiries, and a Magistrate or indeed Judge would step over that clear bright line at their own peril.

 

However, here it is different. Miss J had not desired or intended to gather evidence, rather it was a matter of happenstance  – in the altered words of Malvolio  “Some are born with evidence, some achieve evidence and some have evidence thrust upon them”.  She turned a corner and saw what she saw and could not unsee it.  Nor could she have ignored it. Nor could this information have rightly been set to one side or supressed. It was material evidence, and it was deeply unfortunate that it was Miss J who happened to fall upon it, rather than the social worker or the Guardian. It could have been worse – it could have been counsel for either of the parents, which certainly would have led to the need to a rehearing with fresh counsel.

 

The appellant makes the second point, arising from this, that even if there is no culpability, the impartiality of the Court is tainted inexorably by one of the tribunal giving evidence. They submit, wisely and correctly, that if this had been a County Court judge who had made the identification, mistaken or genuine, then it would have been impossible to continue the case, and that the parents should not be prejudiced by the mere happenstance that the Family Proceedings Court have three Magistrates allowing for an element of ‘redundancy’ whereby one can drop out and the hearing continue.

 

This is clearly a difficult case, and as the well known axiom has it  (though I have not found authority for it)  “hard cases make bad law”    – the closest authority I have identified arises here :-

 

R v National Insurance Comrs, Ex pp Hudson [1972] AC 944, 966, Lord Reid also observed,
at p 966: “It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think
that they act wrongly in so doing: they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one
can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that
overruling such a decision will promote and not impair the certainty of the law.”

 

I am certain that in this case, it was appropriate for the Court to consider the evidence of Miss J, that it was incumbent on them to consider the problems of eye witness identification evidence and give themselves a Turnbull direction, which they did. I am certain that Miss J could not play any part in the decision-making, being a witness of fact, and she did not. I am certain that had she discussed the case in any informal sense after becoming a material witness, the case should be reheard, and I am satisfied that this did not happen. I am satisfied that if Miss J had sought out this evidence deliberately, this would have indelibly tainted the entire bench and the case would need to be reheard, which she did not.  I am satisfied that the Court would have to give very careful and compelling reasons for accepting Miss J’s evidence to remove any lingering suggestion that her evidence was preferred because of her status, and I am satisfied that the Court did so.  I am completely satisfied that the Court were not biased, and that they did everything possible to remove any suggestion or impression of bias.

 

All things being equal, if one had a time machine and could revisit that hearing, I would myself have preferred a decision that the case be transferred to the County Court and for a circuit judge (who would be not associated with miss J) to hear all of the evidence and determine the case. But it is not, of course the role of the appeal court to substitute its own judgment for that of the Family Proceedings Court, but to analyse whether that decision was plainly wrong. It is my conclusion that a spectrum of possible decisions about the way forward existed for the Court – they decided to proceed with a raft of safeguards and in my determination they were not plainly wrong to do so.

 

Should a situation arise in the future where a Magistrate or Judge finds themselves in the unfortunate position of having to give evidence in the same case, however, I would not wish this case to be authority for any principle that they should not recuse themselves. With the benefit of hindsight, a recusal and rehearing would have been a better approach and more in keeping with the principles of R v Sussex Justices,  and one would hope that should this situation ever arise again, a rehearing with a fresh tribunal would be the outcome.

 

I therefore dismiss the appeal.

 

 

 

If I had a photograph of you

An imaginary judgment   (is scanning documents in a court building illegal?)

The Court is today dealing with a matter of great trivia, which at the same time has a great deal of import for the legal community and for once not merely in the omphaloskepsis manner of mere curiousity in the law, but in the day to day practice of advocates who appear before the Court.

The facts of the case are simple. Miss Rose Record is a family law barrister, who appeared before me today in a relatively straightforward case. At the conclusion of the case, a manuscript set of directions was prepared, and Miss Record left the court room, entered the robing room and at the request of her counterparts, used an electronic device (known as an ipad) to electronically scan a copy of those directions, which could then be emailed to the other advocates. This allowed all of the advocates to have their own copy of the document without delay, or the expense to the public purse of them all traipsing down to the court office to request photocopies of the document.

And that would have been the end of the matter, were it not for these factors. Firstly, a legal issue arose as to the legality or otherwise of what Miss Record had done. Secondly, the advocates concerned disagreed about this issue. Thirdly, the remainder of my list had collapsed, and finally, when my clerk alerted me to the nature of the debate, my curiousity was piqued. For the benefit of the taxpayer, I shall declare at the outset that all of the advocates dealt with the matter pro bono, my list had collapsed and I took the day off as leave. Any public costs that have been incidentally incurred, I shall myself meet.

Why should the issue of scanning be potentially illegal at all? The answer lies in section 41 of the Criminal Justice Act 1925.

41 Prohibition on taking photographs, &c., in court.(1)No person shall—
(a)take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or
(b)publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;
and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding fifty pounds.
(2)For the purposes of this section—
(a)the expression “court” means any court of justice, including the court of a coroner:
(b)the expression “Judge” includes . . . F1, registrar, magistrate, justice and coroner:
(c)a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court–room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court–room or any such building or precincts as aforesaid.

We have had some lively debate in this Court about whether there is a distinction to be drawn between scanning and photography. For my part, I am drawn to the simple argument laid out in this manner. The first stage in the scanning process is for a photograph to be taken of a document, then that image is stored electronically in a format that can be communicated electronically to any number of users. Clearly, the first stage therefore involves photographing the document, and hence taking a photograph. The ipad device, I am quite satisfied, has a camera built into it, and the scanning takes place by way of this camera. If the camera lens of the ipad were covered, the scanning process would not work. Scanning requires, therefore, the taking of a photograph.

Even if I had not been so convinced, the case of R v Loveridge [2001] EWCA Crim 973 makes the matter plain, I think. In that case, the Court of Appeal were tackling a case in which the alleged perpetrators of a robbery had been identified by witnesses to that robbery being shown video footage surreptitiously filmed of the alleged perpetrators on a mobile telephone by a police officer. That filming had taken place at a magistrates court, though not in the court room itself. The Court of Appeal had to grapple with the issue of whether video footage constituted photography and decided the matter thus :-

Obviously when the Act was passed in 1925, video cameras were not in contemplation. However, we have no doubt that the section should be applied in a way which takes into account the modern developments in photography. Accordingly we have come to the conclusion that a filming which took place at the court contravened s41. The conduct was therefore unlawful

I can see no reason to deviate from this – scanning is a modern development in photography, and the act of scanning involves the taking of a photograph.

Next, we have the issue that the scanning took place in the robing room, rather than in the court room itself. I am quite satisfied that this is entirely dealt with by s41(2) (c) which makes it plain that the prohibition is not confined to the court room but covers the entire building in which the court is housed, together with its curtilage.

The final matter involves an analysis of the placement of the commas in section 41 – in essence, whether the prohibition is on taking any photograph, or whether what was intended to be prohibited was the photographing, sketching or portrait making of any person within the Court (including the building).  This was not the most gripping part of the case, commas are seldom fascinating. My conclusion is that the framing of the Act is such that photographing is grouped separately to the prohibition of sketching or portrait making of a person within the Court, and it is photography of any kind and any subject that is prohibited. We did digress at this point to the realisation that were someone able to bring in clay and other such materials, a model could be made of any person without being in breach of s41, or even a block of marble (though I have doubts about whether the requisite chisel would make it through security in this difficult times in which we now live)

That seemed, very much to be that. Scanning would fall foul of section 41 and thus be unlawful, no matter how useful or harmless it is. There is not a discretion within the Act for the Court to permit or direct photography, and the offence is a strict liability one. To be sure, the financial penalty itself is not significant, but for advocates who depend on having a blameless criminal record to practice, the risk (no matter how small) of prosecution is not one to be sniffed at.

That would have been that, had we not risen following submissions for a short comfort break. On our return, Miss Rose Record took the unorthodox step of asking to call a witness. This was unexpected to say the least. Nobody had anticipated that oral evidence would be heard in this test case, nor that it would be of any particular value. Nonetheless, I allowed it.  Even more unexpectedly, although the witness was an expert witness, he had not been commissioned, nor invited or requested to attend. Miss Record had happened upon him, quite by chance, hard at work in the court building.

He was a photocopier repair man.

He gave evidence before me, unchallenged, as to the nature of a photocopier, and broadly, how it worked. There is a camera within the device, which takes a photograph of the document, which is then duplicated.

We all instantly saw the point, and I am not ashamed to say that a small peal of applause broke out in the Court room and that it was led by me. There is no fundamental difference between scanning a document and photocopying it. Both are photographing it.  And if s41 is valid law, both are equally illegal if they take place in the Court. And Miss Record reminded me that this was not restricted to the court room itself, but to the entire building.Every time the “copy” button is pressed on a photocopying machine within the Court building, an offence is committed.

Any advocate, or member of the court staff (or even the judiciary, who have been known to press a button or two themselves, being not entirely helpless) is in breach of section 41 if they use a photocopier which is situated within the court building. The court could not carry out its basic functions if they were deprived of the use of a photocopier and the same would be true up and down the land. Nor could it be feasible for every advocate who has ever used a court photocopying machine, or every judge who has asked for a document to be copied, nor every employee of Her Majesty’s Court Service to be prosecuted for breach of section 41. This would manifestly and plainly intefere with the right to a fair trial of every user of the Court  (since they would have no advocate, no judge, no court staff, who could progress their case); and if all copying machines were removed from the Court, the delays and costs of having to go out of the building to get copies – particularly in the Royal Courts of Justice, would be immense.

Therefore, section 41 as currently drafted, simply must be incompatible with article 6 of the Human Rights Act and I would be driven (were this not a hypothetical case) to make such a declaration of incompatibility. Photographing a person would remain validly prohibited, but a restriction on using photography to make an image of a document simply cannot be legitimately prohibited without making criminals of us all.

(I really should just go to sleep – thank you to Lucy for raising the question in my mind, and the peculiar answer that came to me in the middle of the night)

Postscript  – whilst this seemed ridiculously trivial when I started, the additional concerns now arise :-

1. If photocopying in the court premises is an offence, how is it legitimate to charge for it, and how much revenue has been generated by the courts in doing this since 1925?

2. If filming in court is a breach of s25 (pace R v Loveridge) and there isn’t discretion for the judge to waive s41 (I haven’t found such discretion) then how is video-link evidence whereby the court is filmed so that the witness sitting elsewhere can see the judge and advocates not a breach of s41?

3. Are adopters who attend for an adoption ceremony, who routinely take photographs and are generally welcomed by the judiciary in doing so, inadvertently in breach of s41? If they are not, then the Judge must have power to waive s41, but there isn’t that power specified anywhere I can find.

4. The amendments to s41 proposed in the Crime and Courts Bill relate only to ‘recordings’  and don’t affect photography  (although s22 of the Crime and Courts Bill suggests that the draftsmen believe, perhaps mistakenly that the prohibition on photographs applies only to photographs of persons present at Court)

 

I’d suggest that an easy solution would be for s22 to be amended (given that it is going through a process of finessing and polishing in any event, may as well get it right now)  to make it plain that the prohibition in s41 is of photographing or filming persons attending Court UNLESS the Judge authorises such photography or filming.

The Boy under the stairs – an imaginary judgment

 

(Another one of my imaginary judgments – the facts may be familiar to some readers)

 

I am dealing with an application by X Local Authority for a Care Order in relation to a child who I shall name Harry, for the very good reason that this is not only his name, but that his first name is already well known to the public at large through the media interest in his case, he being “The Boy under the Stairs” of public notoriety.

 

His surname, and that of his carers, his aunt and uncle, are not known. I shall refer in this judgment to the aunt as P, the uncle as V, and their son, coincidentally the same age as Harry as D.

 

A reporting restriction order has been made, which will ensure that the surnames and any other identifying characteristics will not be published.

 

 

Harry is now fourteen years old. He had the most difficult start in life, his birth parents being murdered when he was literally a babe in arms. P, who is his maternal aunt, took him in and have cared for him since then.  I have heard and read evidence that this arrangement was certainly not entered into in good heart, nor even the sense of making the best of a fraught situation, but with a deal of truculence;  I heard V describe it as a “grudging arrangement” and that is sadly an accurate version of events.

 

Up until Harry was eleven years old, he had a relatively unremarkable life. His teachers noted that his clothes were not particularly kempt, that he was somewhat shy and quiet; it was noted that his cousin D (who attended the same school and lived in the same house as Harry) displayed a conspicuously higher standard of living and of money clearly being spent on D when it was not on Harry.  One school teacher produced a essay written by Harry entitled “What I did in the summer holidays” which described Harry living in a cupboard under the stairs and eating his meals in that cupboard whilst his aunt, uncle and D enjoyed a fine time in the family home without him. This was put down to a vivid imagination, and dismissed as fiction. We now of course, know this not to be the case. No blame can be attributed to his school teacher – I had the clear sense in hearing her evidence that this teacher who was a good, caring, kind and professional person has reproached herself more or less constantly since “The Boy under the Stairs” case broke, and whilst this may be of scant consolation to her my own conclusion is that she has no need to do so, and that any objective person in the same situation would have reached the same conclusion as she did.

 

 

I turn now to the findings of harm that I am invited to make. This has been a rather unorthodox hearing, since P and V were not seeking to care for Harry or seeking his return to their care, in fact they were adamant that he should remain in care and have no contact with them, but instead devoted all of their efforts into ensuring that the criticisms made of their care of Harry did not result in any consequences for their care of D.

 

I was invited at the outset of this case by those representing P and V to find that the threshold criteria was made out on the basis that Harry was beyond parental control, and not to make any of the other findings sought by the Local Authority.

 

I manifestly reject that invitation, which was certainly a bold submission.  The matters contained within the threshold are significant allegations and it would be of considerable assistance in the long-term care of Harry to establish which allegations are proven and which are not; they are of such consequence to Harry that it is appropriate in my view, for the Court to go beyond the concessions given by P and V (which effectively seek to place the blame for all matters upon the child himself).

 

In broad terms, the findings sought by the Local Authority were :-

 

  1. That from the age of 11, Harry has not attended school at all. He is now 14.
  2. That this lack of education has resulted in a boy who was bright and capable (even though he was never a high-flyer, he was certainly not dull) now having no grasp of basic matters that would be known to any child of his age.
  3. That he was made to live and  sleep in a cupboard under the stairs for his entire life with P and V until his removal. That the conditions of this accommodation were manifestly unsuitable, compounded by the fact that he shared this cramped, dark accommodation with an owl.
  4. That the scar on his head was the result of a non-accidental injury, perpetrated by either P or V.

 

I add, though this is not threshold per se, but an aggravating factor, that V had an extremely well-paid job and was perfectly in position to care for Harry and meet his needs, as can be seen by the high ‘standard of living’ enjoyed by D. It is an astonishing detail of the case, and one understandably embraced by the tabloid press, that whilst living in this cupboard under the stairs, Harry’s pockets were full of gold coins which could have afforded him a life of luxury if surrendered.

 

That gaping chasm in the quality of life enjoyed by D and the abject misery endured by Harry is said by the Local Authority to be an additional element of emotional harm. I shall turn to that aspect at a later stage.

 

The position of P and V  (though as indicated, they were clear from the outset that they had no desire to resume the care of Harry and described themselves as being “well shot of him”) in relation to these allegations was : -

 

 

  1. That Harry had been attending a private boarding school from the age of 11.
  2. That having arranged the private boarding school, they are not responsible for any gaps in Harry’s education as a result of paucity in the quality of the schooling he received.
  3. That Harry did live and sleep in a cupboard under the stairs, but only in the school holidays. The presence of the owl in said cupboard was Harry’s own choice.   [Parenthetically, I will add that in twenty years of sitting in the family courts, one gains a high threshold for what is surprising, but these two arguments in tandem were amongst the most surprising I have ever seen deployed, and one has to congratulate begrudgingly counsel for P and V for the chutzpah with which they made the most unpromising of arguments]
  4. The allegation that P and V caused the scar was strenuously denied, they stating that the scar had taken place on the same night that Harry’s parents were murdered and by the same assailant.

 

 

The private school


P and V were unable to provide the address of the alleged private school that Harry was attending, nor any school report, nor any correspondence, or any evidence from any teacher at this school. Their bank statements did not show any payment of private school fees. The private school they named is not known to the Department of Education, nor Ofsted, nor has frankly anyone ever heard of it. The fact that P and V could not even hazard a guess as to which county this school is in raises further doubt.

 

It would be fair for me to say that this was not the most difficult factual issue I have ever had to wrestle with. It is established beyond doubt that Harry did not attend any local school from the age of eleven, and the account of P and V that he attended a private school whose details they cannot provide, and who apparently provided this private education, including boarding , entirely free of charge, is utterly without merit.

 

I find that P and V did not send Harry to school for three years when he was in their care. Those three years are some of the most critical in his education, and emotional development and any proper parent (or relative acting in a parenting role) would have known that Harry should have been at school. Their lack of this most basic of parenting functions caused him significant harm.

 

The lack of education


Harry was assessed by a Child and Adolescent Psychiatrist, Miss Gale Terns, and the findings were astonishing.  His grasp of chemistry bore no relation to the science as practised since the Middle Ages and was closer to alchemy than genuine chemistry, biology restricted to non-existent plants, his understanding of the basic laws of physics was diametrically opposed to how they in fact operate,  he had no idea of history or geography other than that of fanciful creations of his own. Even on a less academic level, he had no idea of football, which is astonishing in a boy of his age, even a bookish one.  I have studied carefully Harry’s account of the sport he does claim to follow, and I am afraid that even making allowances for a young boy’s imagination and the psychological damage he has clearly sustained, this sport makes absolutely no sense.

 

He had devised his own intricate fantasy world, with its own rich internal rules and customs. Miss Terns concludes that this is by way of being a fugue state, the boy being so unhappy and living such a dreadful life that he had to fashion an escape from reality by creating something more appealing and satisfying. It is for that reason, that although he is fourteen, he is adjudged by the Court to not have capacity to instruct solicitors on his own behalf, and has been represented through his helpful Children’s Guardian.

His imagination is without doubt vivid, and the consistency of his own account (while utterly amazing) makes it easy to recognise that there is a keen if misdirected intelligence at work here. Had he been given mainstream education, there is much he could have achieved.

I agree with Miss Terns, the failure of P and V to provide Harry with mainstream education has been immensely damaging to him. The internal fantasies he created about having attended a school where wondrous things were taught as a substitute for having a genuine education means that there is much work ahead for those who are going to have to teach this young man genuine skills to be able to cope in the real world in which he will sadly have to live.  I am sure I speak for all of us that in glimpsing into the world Harry imagined himself living in, it sounds markedly more pleasant and entertaining than our own, and it is a harsh but necessary task to unpeel him from that one and bring him into ours.

The psychological damage that has been done to Harry through the poor quality care he has received at the hands of P and V is considerable, and the Court is grateful that Miss Terns has agreed to take on the long-standing reparative work that is required, and indeed for the Local Authority for funding such work.

 

The cupboard under the stairs


 

This was barely disputed. Given that the Court has already found that the account of P and V that Harry attended a private boarding school is a wild fantasy, their account that he only lived and slept in the cupboard under the stairs during the school holiday is rejected. The fact that they admitted that much is considerably damning.

 

The Court has seen the photographs of this small, dingy and cramped space in which a growing adolescent spent his days and nights. I  have heard from the neighbours that for months on end they never saw Harry, and that he was not even having the benefit of attending school or even seeing the light of day for long periods – weeks and months, rather than  minutes or hours.

 

I am satisfied that P and V provided Harry with accommodation and a standard of basic care which would have been woefully inadequate had they been living in an Elizabethan slum, let alone in a suburban home that many middle-class parents might aspire to live in. He was made by them to live and sleep in a cupboard under the stairs for his entire life. This is utterly unacceptable, and caused him significant harm. These were not parents of meagre means, doing the best that they could but that best not being enough. It is woefully apparent, from the lavish care and attention and material provision for D, that P  and V were more than capable of providing a child with much better than good enough care, and they deliberately chose to treat their own biological child far, far better than they did Harry, who was their kin and deserved so much better. The other harm I have identified in this judgment is compounded by the fact that Harry was faced on a daily basis with D who was being loved, and indulged and even spoiled. That in itself must have been hurtful and harmful to him.

 

 

The miserable day to day existence for Harry in such an unsuitable physical accommodation  was compounded by an owl being kept in this wretched accommodation with him. The smell was reported by those who removed Harry to be unspeakable. It is hard to fathom, even for this jaded Court who are faced on a day to day basis of new, creative and barbaric ways to mistreat children and let them down, to imagine what was going through the mind of P and V when they brought this situation about.

 

I completely reject their attempt to mitigate this situation by claiming that the owl was a pet and that it was Harry’s own desire to share his accommodation with the owl.

 

The scar


The Court has had the benefit of paediatric evidence from Dr Malcolm Foy, who was clear that there was no likely accidental explanation for the lightening shaped scar on Harry’s head. He gave clear evidence that the injury had been caused non-accidentally – the mechanism was unclear, but the only conceivable one was that a hot object, in the shape of a lightening bolt had been pressed against Harry’s head. No parent or carer could do this by accident.

 

P and V had provided no explanation for an accident that had caused it.  They had been the carers for Harry for every day since the death of his parents. There had been no hospital admission or medical attention for any accidental injury to Harry.

Counsel for P and V have urged me to take into account the strenuous and vehement manner in which P and V denied this allegation, and compare this to the very serious allegation that they kept Harry under the stairs which they instantly admitted at least in part.  This is probably the best of a bad bunch of arguments that P and V have deployed during this hearing.

 

But it does not hold water, when one considers the alternative. Either this scar was caused by P and V, who have behaved disgracefully towards Harry for 14 years, or it was inflicted on him by his birth parents when he was a mere infant.

 

The Court must find, therefore either that Harry’s birth parents deliberately inflicted this injury on Harry BEFORE P and V began caring for him.  [I should add, for the benefit of the transcribers and those taking a careful note, that when I use the term “caring” in relation to what P and V provided for Harry, I am using inverted commas] ,  OR that P and/or V inflicted this injury on Harry after they began caring for him.

 

Given the findings that have already been made, I must consider that whether it is substantially more likely that P and V (who I have found to have systematically abused this young boy for 14 years in appalling ways) injured him or that his birth parents, about whom no criticisms or allegations have been made, caused the injury and scarring. This young man had the worst start in life imaginable, and has grown up with no memories of his parents. This Court is not going to leave him with any residual doubt that his parents might have deliberately harmed him. It is inconcievable to this Court that the injury was caused by anyone other than P or V, and the Court makes that finding, that the injury was caused deliberately by either P or V and neither can be excluded.

 

The threshold is crossed, overwhelmingly so.

The Court is grateful for the active role that Harry’s Guardian played within that enquiry,  Mr Thomas Riddle has been a stalwart Guardian throughout, ensuring that matters were properly ventilated. The Court entirely agree with his conclusions, and adopt his formuation that it is impossible that anyone other than P or V caused the scar to Harry’s forehead.

 

I have considered, following those findings, the Welfare Checklist. I have no doubt whatsoever that the appropriate order to be made in relation to Harry is a Care Order.  The Guardian’s suggestion, in combination with the expert, Miss Gale Terns, that Harry be cared for by the Imperius academy for damaged children, is an excellent one and I am pleased that the Local Authority saw fit to put that forward as the care plan. The Court endorse that care plan as being the best thing for Harry. He will attend a mainstream school, and there will be no more of his life wasted thinking about “Hogwarts”

 

The Local Authority will need to consider, in the light of this judgment, whether to seek an order in respect of D.  He has, as I have acknowledged, had a markedly different life to Harry, but I suspect that witnessing all of this mistreatment must have had some detrimental impact on him.  It is hoped that he and Harry will preserve some ongoing contact.

 

The Court once again thanks Mr Riddle, for his efforts in representing Harry, which have gone above and beyond. I am even told today that Mr Riddle has kindly arranged to take the owl with whom Harry shared so much of his life, and to provide the owl with a home. This shows how much Mr Riddle thinks about Harry and wants to take care of him.  Harry is very lucky to have had Mr Riddle take an interest in him.

 

 

 

 

 

 

“A labyrinth of DoLs”

 An imaginary judgment

 

(I am extremely grateful in the construction of the legal framework of this judgment to Lord Justice Wilson’s careful and precise analysis of the law in RE P and Q 2010 – often known as the MIG and MEG case. Almost everything in this that you think is well-written was written by Lord Justice Wilson, and everything shabby and feeble is my own)

 

 The Court is today dealing with an application by those representing the parents of a young man named L, to the effect that his accommodation in the Minos Taurus care facility amounts to a Deprivation of Liberty under the Mental Capacity Act 2005, and that as this has been done without authority, the facility, and the Local Authority who placed him there are in breach of Article 5 of the Human Rights Act 1998 in that his liberty is being restricted without lawful excuse.

 

The Local Authority and the owners of Minos Taurus – Mr Ian K Harris and his dad, Ellis, contend that there is no restriction on L’s liberty and that there is an open door that L can leave by at any time and a path that can be followed to the outside world should he wish to leave at any time; and that thus L is effectively remaining in the placement of his own wish.

 

Matters are complicated when the Court looks, as I am strenuously urged to, beyond the face value of that statement and at the reality of the layout of the Minos Taurus care home. The care home has a front door, which is locked at all times. Staff members have a key, and visitors will be admitted, but residents are not able to freely enter or exit through that door. That much is common ground between the parties.

 

The rear door is indeed, unlocked at all times and any resident is free to go through it and staff would not attempt to prevent or discourage a resident from doing so.

However, emerging from that back door does not grant the resident immediate access to the public highway or the world at large, but rather to the grounds of the Minos Taurus home, which are over two acres in size. I have been shown aerial photography taken by the applicants of those grounds and it is plain that what has been constructed is an array of hedges, constructed in such a way that only one path moves from the entrance to the exit.

The hedges themselves are impenetrable, and could not be scaled without considerable difficulty, being both prickly and twelve feet in height.

In short, what lies at the rear of Minos Taurus can best be described as a labyrinth. The entrance to this labyrinth is the back door of the physical Minos Taurus building and the exit is to the public footpath that runs outside the rear of the property. There is no physical gate, or barrier to that exit.

 Minos Taurus therefore contend that L, or any other resident, would simply have to walk a path between the entrance and the exit. If they walked that path, which they are free to do at any time of the day or night, nothing would prevent them from reaching the footpath and thus leaving the land owned by Minos Taurus. Thus, there is no deprivation of liberty.

I note that they contend that describing their grounds as a labyrinth is pejorative and that it is, in reality ‘a restful and soothing arrangement of hedges in a classical form’.

 They are to be admired for their chutzpah in that submission, but I find that quite the simplest of this entire tangled and byzantine case to unpick. The grounds are laid out in the form of a maze (I note in passing that whilst I may, as counsel did throughout, flit between the term maze and labyrinth, that what we are dealing with here is a maze – since it has an entrance and exit and branching paths, whereas a labyrinth leads to the centre and is not intended to be difficult or puzzling to navigate).

I am satisfied that the applicant’s claim that the grounds of Minos Taurus are intentionally laid out as a maze, and that it is not a merely coincidental happenstance or an intention to create a geometrically and horticulturally pleasing arrangement which simply happened to also take the form of a maze. Nor is it a homage to Hampden Court, or the many other notable horticultural efforts that are set out in glossy photographs in Section J of the bundle. Whilst those photographs have indeed been soothing to consider and admire, they have not assisted me as Minos Taurus had hoped they might.

The grounds are laid out in the form of a maze and this has been a deliberate intention on the part of Minos Taurus.

L’s family contend, that L, being a person who lacks capacity to make decisions in his own regard, is incapable of navigating a maze or labyrinth, and that whilst theoretically, he is free to leave at any time, in reality he is imprisoned by this maze and his liberty is just as restricted as if he were blocked by a locked and barred door.

They state that it is of significance that their Freedom of Information request gleaned that :-

 (a) Since the construction of the maze, no member of staff has chosen to enter by the back door rather than the front

(b) Since the construction of the maze, no resident has left the home by way of the back door.

(c) All residents who have left the home have done so by the front door, which had been unlocked for them by staff.

Turning now to the law, which one might rightly muse is almost as impenetrable as the hedge and with as many twists and turns as the construction in question. The issue whether the arrangements for L amount to a deprivation of his liberty and whether the arrangements engage Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Article 5 provides: “1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law – … (e) the lawful detention … of persons of unsound mind …; … 4 Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

 The practical effect of a conclusion that the arrangements for L amount to a deprivation of his liberty is to be found in the valuable right provided by paragraph 4 of Article 5. For in that event his right would be to take court proceedings for a decision in relation to the lawfulness of their detention The paragraph would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive him of his liberty, albeit perhaps only on paper unless requested otherwise: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at [26] – [28]. The court’s review would probably again require independent representation of him.

It is not, therefore, a merely academic question, but one which goes to the heart of L’s rights. I shall not go into details of the nature of L’s problems, suffice to say that his day to day functioning is approximately that of a five year old child and that it is beyond dispute and accepted by all parties to these proceedings that he lacks capacity to make decisions for all matters relevant to these proceedings pursuant to section 2 of the Mental Capacity Act 2005. There is expert evidence, undisputed, to that effect.

 L came into the Minos Taurus care home as a voluntary patient, his family having brought him there for a period of respite. They say that they had no idea that having taken him there, they did not have the power to discharge him. Although he is free to leave whenever he wishes, he is, they say, prevented from doing so by the practical barriers that have been put in place.

As indicated earlier, Minos Taurus and the Local Authority who are assisting in the funding of L’s placement there, and supporting his remaining in that placement, are of the view that L can leave the placement at any time and that there is a route or path which can be followed which is completely unimpeded to L, if he chose to follow it. Minos Taurus have indicated that if the Local Authority determined that L should leave the home by the front door, or were to cease funding the placement, they would facilitate L leaving by the front door.

The European Court of Human Rights (“the ECtHR”) has made clear that a deprivation of liberty has three elements:

(a) “the objective element of a person’s confinement to a certain limited place for a not negligible length of time”: Storck v. Germany (2005) 43 EHRR 96, at [74];

(b) the “additional subjective element [that] they have not validly consented to the confinement in question”: the Storck case, also at [74]; and

 (c) the confinement must be “imputable to the State”: the Storck case, at [89].

That is not disputed by any of the parties. The critical issue that is in dispute is whether, as a matter of fact, L is confined to a certain limited place, or whether he is not. I am invited by L’s family to reword the test as being whether L is confined to a certain limited place or whether he is free to come and go as he chooses, but I decline to replace the construction that has been carefully arrived at by the ECtHR in Storck with a different formulation. It is not incumbent on the State to demonstrate that L is free to come and go as he chooses, but to refute the claim that he is confined to a certain limited place for a not negligible length of time. The classic exposition of the nature of the enquiry into the objective element, on which no doubt has been cast for 30 years, is that of the ECtHR in Guzzardi v. Italy (1981) EHRR 333, at [92] – [93], as follows: “… the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion …”

These are prescient words indeed and ones that have survived the last three decades better than tastes in literature, music, art or fashion. It certainly is no easy task to determine the clear bright line that separates a restriction of liberty from a deprivation of liberty. One is reminded of the philosophical debate about a pile of stones, and one stone being removed at a time, and at what point there ceases to be a pile.

To the layperson it would seem a relatively easy task to determine whether objectively someone is deprived of their liberty. They would probably begin with asking the question “What’s stopping them from leaving?”  , but there is no question no matter how simple or blindingly obvious the answer that cannot be obfuscated by the combined efforts of Parliament, the judiciary and the focussed minds of the Bar.

In relation to the objective element there are two more recent decisions of the ECtHR of great importance.

The first decision is HL v. UK (2005) 81 BMLR 131;  Mr HL was an incapable 48-year-old man who was autistic, unable to speak and had a history of self-harm. For 30 years prior to 1994 he had been an inpatient in Bournewood Hospital; and for the final seven of them he had been in its Intensive Behavioural Unit. Then, in 1994, without being formally discharged, he was moved into the home of paid carers. In July 1997, following an incident of self-harm at a day-care centre, he was readmitted to the unit at the hospital and he remained there for four months, whereupon he was returned to the carers. For the first three of those months he was an informal patient, i.e. not compulsorily detained there under the Mental Health Act 1983; and such was the period during which, so the ECtHR held, he had been deprived of his liberty in breach of Article 5. Thus did the court identify “the Bournewood gap” in our legal framework for control over the deprivation of liberty in the case of an incapable person effected otherwise than pursuant to the Act of 1983; and Parliament sought to fill the gap by making insertions into the Mental Capacity Act 2005 which, by s.4A(5) and Schedule A1, set up a framework for such control in the case of a person receiving care or treatment in a hospital or a care home and which, by s.4A(1) and (3), rendered any other such deprivation lawful only if made pursuant to a court order that such was in her (or his) best interests. In its submissions in the case of HL the UK government had laid considerable emphasis on the fact that Mr HL had been compliant with his return to live in the unit and had never attempted to leave it nor expressed the wish to do so. But the court held, at [90], that, in that Mr HL was incapable, his compliance was not of central importance. The fact was that, irrespective of whether his ward was locked or lockable, he had not been free to leave the unit: [91] and [92]. The court said, at [91]: “the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained.”

 

The second decision is the case of Storck cited above. A young woman aged 18 was placed by her father in a locked ward of a private psychiatric clinic and she remained there for 20 months. Very strong medication was administered to her, at times by force. On a number of occasions she attempted to flee from the clinic and was prevented from doing so by being fettered. Once she succeeded in escaping and the police forcibly returned her there. She was unable to maintain regular social contact with persons outside the clinic. The ECtHR held that all three elements of a deprivation of liberty were present and that, in respect of the objective element, the case was a fortiori that of HL.

 

In the case of RE P (known as MIG) and Q (known as MEG) 2010, the Court of Appeal determined that there were some important factors to be considered when determining whether there was objectively a deprivation of liberty.

 1. A person’s happiness, as such, is not relevant in determining whether there has been a deprivation of liberty.

 2. However, an objection is relevant, even where a person lacks capacity. If they do not want to be in a place and they object, there will be conflict. At the very least there will be arguments and they will suffer the stress of having their argument overruled. This would be a factor which could be properly taken into account when determining if a person’s liberty were being deprived, rather than restricted.

3. From the relevance of objections and also of the lack of them, it is logical to move to the relevance of medication and also of the lack of it . The administration to a person of medication, at any rate of antipsychotic drugs and other tranquilisers, is always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish. Indeed, if the administration of it is attended by force, its relevance is increased. Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.

4. The purpose of the arrangements under scrutiny can be relevant.

 5. the relative normality, or otherwise of the arrangements under scrutiny can be relevant

 6. an enquiry into the residential arrangements and the degree of outside social contact. “Whether a certain situation constitutes a deprivation of liberty may depend on the living conditions of the person concerned and the degree of freedom he or she enjoyed otherwise”: “The European System for the Protection of Human Rights,” by Macdonald, Matscher and Petzold, 1993, 289.

I propose to analyse the case on the basis of those principles, to form an objective view of whether, as a preliminary issue the first of the three limbs of Starck are made out. Has there been the objective element of a person’s confinement to a certain limited place for a not negligible length of time ?

 

I am however, before conducting that exercise, mindful of the following authorities , and indeed that the Court of Appeal in Re P and Q determined that there was NO deprivation of liberty in that case and this body of caselaw strives to convince me that there is far more to the objective question that considering the commonsense formulation that an ordinary person would use “What’s stopping them from leaving?” , in that these cases illustrate that locked doors, tranquiliser medication and physical restraint can all, in certain circumstances be deployed to stop a person leaving somewhere without his liberty being deprived. 

  (I wonder, in an idle moment, whether a Judge in a civil trial to determine a tort of False Imprisonment, would wrestle for even a moment with the issue of whether someone who was drugged, locked up or sat on was being prevented from leaving, but that is by the by)

 

RE  C (BY THE OFFICIAL SOLICITOR) v (1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) A CARE HOME (3) BLACKBURN WITH DARWEN TEACHING CARE TRUST (2011) [2011] EWHC 3321 (Fam) Where an individual who was living in a care home with locked doors was not considered by the High Court to be deprived of his liberty.

 

The Honourable Mr Justice Peter Jackson commented here, and they are sentiments which I would not only echo, but shout into the Grand Canyon via a megaphone and perhaps even go so far as to embark upon a process of chiselling these words into Mount Rushmore:- 

 It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

Bravo.

 I wish that my own meagre contribution to the law in this regard could add illumination, but I fear it is likely to do little other than complicate matters still further.

 I am also referred to the case of CHESHIRE WEST & CHESTER COUNCIL v P (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) (2011) [2011] EWCA Civ 1257 In which the Court of Appeal determined that restrictive measures taken in relation to a man who lacked capacity did not amount to a deprivation of his liberty.

HELD: (1) After reviewing the relevant authorities, the court identified the following factors which were likely to be significant in the type of deprivation of liberty cases coming before the Court of Protection: (a) the starting point was the “concrete situation”, taking account of a range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see paras 32-33, 188, 102 of judgment); (b) deprivation of liberty had to be distinguished from restraint because restraint alone was not deprivation of liberty (paras 23, 102); (c) account had to be taken of the individual’s whole situation and context was crucial, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333 and Engel v Netherlands (A/22) (1979-80) 1 E.H.R.R. 647 applied, Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 A.C. 385 followed (paras 32-35, 102); (d) mere lack of capacity to consent to living arrangements could not in itself create a deprivation of liberty and the fact that a domestic setting could involve a deprivation of liberty did not mean that it often would, Surrey CC v CA [2010] EWHC 785 (Fam), [2011] M.H.L.R. 108 approved (paras 27-28, 41-59, 102-103); (e) it was legitimate to have regard both to the objective “reason” for a placement and treatment and also the objective “purpose”, Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 A.C. 564 followed (paras 60-75, 102); (f) subjective motives or intentions had only limited relevance since an improper motive or intention might have the effect that what would otherwise not be a deprivation of liberty was, for that very reason, a deprivation whilst a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty (paras 74-77, 102); (g) it was always relevant to evaluate and assess the ‘relative normality’ of the situation, Secretary of State for the Home Department v JJ and others followed (paras 78-97, 102); (h) the assessment had to take account of the particular capabilities of the person concerned since what might be a deprivation of liberty for one person may not be for another (paras 92, 97, 102); (i) in most contexts the relevant comparator was the ordinary able bodied adult but not in the kind of cases that came before the Family Division and the Court of Protection, concerning children and adults with disabilities whose lives were dictated by their own cognitive and other limitations (paras 86, 102); (j) in such cases, the comparator was an adult of similar age with the same capabilities as the adult concerned, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. In the case of a child, the comparator was a child of the same age and development, Surrey CC v CA [2011] EWCA Civ 190, [2011] 2 F.L.R. 583 applied (paras 86-97, 102). (2) In the instant case, the judge had not compared P’s situation with the kind of life he would have been leading as someone with his disabilities and difficulties in a normal family setting. There was nothing to show that the life he was living there was significantly different from the kind of life that anyone with those difficulties could normally expect to lead, whatever kind of setting they were living in. On the contrary, there was a strong degree of normality in his life, assessed by reference to the relevant comparator (paras 105-112). The judge’s reasoning in relation to the measures applied to P from time to time was equally problematic. The measures involved the kind of occasional restraint that anyone caring for P in any setting would have to adopt from time to time. The finger sweep was obviously intrusive but had to be looked at in context. It was little different from what any properly attentive parent would do if a young child was chewing something unpleasant or potentially harmful. It involved a degree of restraint but that was far removed from anything approaching a deprivation of liberty. P’s care plan did not involve a deprivation of his liberty (paras 113-117).

 

The Minos Taurus unit, and the Local Authority urge that I exercise caution before determining that the arrangements for L amount to a deprivation of his liberty. They contend that :-

1. There is an unlocked door through which L may leave at any time.

2. L’s needs are being met in the unit

3. L is not making attempts to leave through the unlocked door. Setting aside whether he could navigate the maze (about which they make no concessions) he has not attempted to step out of the physical building and into the grounds at the rear of the building.

 4. L does attend social functions and some educational/play facilities outside of the unit and has a quality of life comparable to that which persisted before his admission 

5. L is not on any medication

6. L has not been the subject of any restraint

7. There are no entries in any of the records of L objecting to the placement, or of wishing to leave. It is plain that he is asking for his family and making positive comments about them and his time with them.

On the evidence that has been placed before me, there is nothing to counteract these facts and I have to find that these contentions are all made out.

 

Set against that,  I am satisfied that the purpose of the arrangements, in having a maze built in the grounds of the building and there being an open door leading into that maze is in order to provide the illusion of a person being free to leave. This illusion does not sit well with me, leaving as it does, an indelible impression of an attempt to circumvent the need to make the application to detain a person using the Mental Capacity Act, which application could be challenged.

I am also satisfied that none of the residents at Minos Taurus, who are there on a “voluntary” basis are capable of negotiating or navigating that maze successfully and that within a few short minutes of being in the maze unaccompanied they would become fearful, lost and no doubt calling for staff to help them. That is not an indication of them consenting to be in the home or wishing to remain there, but the reality of them being simply incapable of negotiating the obstacle that has been placed in their path by Mr Ian K Harris and his father, Ellis.

This, however, is the only matter that I can set against the 7 positive factors listed above to indicate that there might be a degree of deprivation of liberty rather than restriction of it.  I do not feel able to imbue that matter, grave as it is, with sufficient weight to tip the scales against those 7 positive factors.

Much as this conclusion might leave a bad taste in my mouth, the construction of the maze being a clear device to circumvent suggestion that L and his fellow residents are deprived of their liberty, I am in difficulties on the authorities to reach the objective conclusion that L’s family invite me to make. Given that some of the authorities find that locked doors and physical restraint need not amount to an objective deprivation of liberty, and that those factors are not present in this case, I am driven by the authorities and an analysis of the law to find that there is no such deprivation of liberty.

However, my conclusion is that L would like to have a member of his family to visit him in the unit and to walk with him in the grounds. Should they happen to wish to wander in the maze, and should they happen to find their way out (perhaps with the benefit of the aerial photography that can be found at G42 of the Court bundle) then that might be a coincident outcome.

If the unit were to refuse to allow L to be visited by his family and to walk with them in the grounds, or to refuse to allow L to leave by the exit of the maze, should he find his way there, then I would be minded to find that a deprivation of liberty had occurred at that point. Indeed, I determine that if they were minded to do so, they should make the relevant application to give them authority to deprive L of his liberty to walk in the garden with his family.

 The same would be true of any of the other residents of Minos Taurus, and I am happy for this judgment to be published and made available to the family members of all other residents of the unit.

I apologise that my solution and judgment in this case is more akin to the Gordian Knot than Ariadne’s ball of thread, but I trust that it will meet with some satisfaction in at least some of the participants of this fascinating piece of litigation.

“You can’t handle the truth!”

(An imaginary judgment about an imaginary situation, in homage to the incomparable A P Taylor’s “Misleading cases in the common law”)

This is an application brought by X County Council under section 31 of the Children Act 1989, who seek Interim Care Orders in relation to two children, a boy who we shall call A, who is aged 7 and a girl who we shall call B who is aged 5.   The Local Authority seek orders from the Court permitting them to remove A and B from their parents and to place them in foster care. Further, as I shall consider in more detail later, the Local Authority have placed the Court and the parties on notice that should their application be granted, they would not be able to accommodate the parents wish for the children’s religion to be observed in foster care. The parents contest the application and contend that the section 31 threshold criteria are not made out, that the test established by the authorities for removal of a child is not made out, and that even if the Court were to be against them on both of those issues, that the children’s religious practices should be observed in foster care. The children’s Guardian confesses that she has found this an extremely difficult case with deeply unusual features, but on balance supports the Local Authority case.

It is common ground that these children are happy, that they are doing developmentally well, that they attend school and nursery and have positive reports from those establishments, that they are properly fed, that their home conditions are clean, tidy and with suitable toys for the children; further that they are not mistreated either physically or emotionally and that they receive good quality parenting from parents who love them very dearly. The parents shun the use of tobacco, alcohol and drugs. There are many Judges who would gaze enviously at this litany of praise for parents within care proceedings before gazing sternly at the Local Authority who placed the application before the Court.

However, this particular application does have a feature which leads the Local Authority to suspect that the children are at risk of significant harm; they accepting that there is no evidence that the children HAVE suffered significant harm to date.

The parents in this case moved to the United Kingdom from the state of Arkanas in the United States. They are both committed to their faith, which they have practiced for their entire lives, including when they were children in Arkansas.  Their faith is that of snake-handling.

The Court has heard evidence from senior figures within the Snake-Handling faith, and this evidence has been sufficient to make it plain that the faith is legitimate and recognised, albeit, as the parents concede more of the margins than of the mainstream.  The faith arises from quotations from the Bible:-

And these signs shall follow them that believe: In my name shall they cast out devils; they shall speak with new tongues. They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover. (Mark 16:17-18)

Behold, I give unto you power to tread on serpents and scorpions, and over all the power of the enemy: and nothing shall by any means hurt you. (Luke 10:19)

In terms, those who practice the snake-handling faith believe, and it is a central tenet of their belief system, that they may handle snakes and drink poison and that it will not harm them as they are protected by God.

The parents in this case have made it plain, and their evidence on this aspect was, I find, credible, that they do not indulge in the consumption of poisons; as this was not the practice in the Church where they practiced their Faith.

They were, however, candid, that their religious practice is to pray and celebrate the words of the Bible whilst handling  live snakes. They gave evidence that they undertook this ceremony several nights per week, a minimum of three times and as many as five nights per week. The ceremony and handling of the snakes would be for a minimum of ninety minutes, and could on occasion last considerably longer.

Dr Parsel, the expert herpetologist who gave helpful and invigorating evidence confirmed that some of the snakes kept by the family are venomous, and that their bite would be harmful to humans, and in rare cases if medical attention were not sought, could be fatal. She indicated that she would consider the risk of a bite having serious consequences requiring for example an overnight  hospital stay to be at around 30% and the risk of a bite being fatal (if medical attention were sought) to be at around 5% – if medical treatment were not sought for a venomous bite, the consequences would be more severe.   In relation to the non-venomous snakes, her evidence was that a bite would be painful, comparable to the bite of a medium-sized dog, but more of a ‘nip’ than something that would necessarily require medical treatment.

She freely confessed to not have any particular expertise in whether snake-handlers were immune to pain or consequence from receiving bites, but did refer the Court to documented examples of some fatalities emerging from the practice. I note, in relation to this, that the snake-handling church treats such aberrations as being evidence of a lack of genuine faith in the religion, rather than a failure of the religion itself.

She was understandably cautious about estimating the possibility of a snake inflicting such a bite, but did accept in cross-examination by those representing the parents that the risk of a bite being inflicted was considerably reduced where the persons handling the snake are respectful, gentle and not apprehensive or scared.

The medical records of both parents, in this country and those obtained from America have bourne out their account that neither of them have received medical treatment for snake bites and of course, both are here to tell the tale.

They both gave evidence to the effect that being bitten by the snake is very rare in the ceremony, and that it is not the intention of the ceremony to provoke or promote a bite from the snake. I accept the parents’ evidence in this latter regard, but am more cautious about the rarity of the occurance.

Their further evidence, that if they were to be bitten, it would have no effect as they are protected by God and their faith is something that the Court have to be more cautious about. It would probably be best expressed in this way, that the Court is satisfied that the parents genuinely believe this to be the case, that they believe this as a fundamental part of their religious faith and that they are not knowingly placing themselves in what they consider to be harm or jeopardy.

The Court further accepts the following, as drawn from the parents’ evidence:-

1)    That they would intend for the children to become involved in the religious practice, and to handle the snakes, some of which are venomous.

2)    That the older child has already, under careful supervision been involved in the handling process; but not with the venomous snakes

3)    That the younger child has observed the ceremony and worship

4)    That both of the children have been shown how to handle the snakes with care and dignity

I now have to consider whether  there is, on the balance of probabilities a likelihood that significant harm may arise. For today’s purposes, the section 38 criteria apply and the test is whether there are reasonable grounds to believe that the children have suffered or would be likely to suffer significant harm, such harm being attributable to the care given or likely to be given not being what it would be reasonable for a parent to provide.

The risk of harm, as outlined by the Local Authority is as follows :-

(a)  that there is a risk of the children sustaining a bite injury from a non-venomous snake, which would be painful, on a par with a ‘nip’ from a medium sized dog, and which would be likely to hurt a child for several minutes but not require medical attention

(b)  that there is a risk of the children sustaining a bite injury from a venomous snake. This would have the same degree of pain as above, accompanied by a feeling of nausea and light-headedness, which would probably last for an hour or two  (if the anti-venom serum were administered immediately) and might require hospital treatment.

(c)  That if the parents did not, as a result of their religious belief that the children would suffer no ill-effect, obtain medical treatment, the consequences could be much more serious and there is a risk of a fatality

(d)  The Local Authority add that although the risk of either incident occurring might be said to be low for each ceremony (though they took pains to point out that they did not necessarily accept this) the Court were entitled to take into account that exposure to a low level of risk several times per week, over the children’s minority could give rise to a cumulative risk which would perforce be higher.

The parents respond in the following way:-

(a)  the children would feel no pain from the bite of non-venomous snakes, as is clear from their faith

(b)  the children would feel no pain or ill-effects from the bite of a venomous snake, as is clear from their faith

(c)  thus, no harm would result from the children demonstrating their faith and engaging in their legitimate act of worship

They accepted wholly that a parent who were not a snake-handler and protected by their faith, who gave venomous snakes to a child, would be acting in a way that it would not be reasonable to expect from a parent; as such a child would sustain a painful injury, and I myself would not find it a stretch to make such a finding.  (They do not claim that venomous snake bites are harmless to the population at large, and if I were required to find that being bitten by a venomous snake would be generally a bad thing for the average child, I would make such a finding)

I find myself in difficult waters here. I would have no difficulty whatsoever in finding that a parent who allows a child to handle venomous snakes for long periods, on numerous occasions per week, would have a child who was at risk of significant harm.

The parents’ case is, in part, that no harm could arise, because of the protection that their faith offers them and their children.

All parties accept that there is some risk (although they differ as to the level) that the children could be bitten by a snake whilst handling it. The Local Authority say that there would be consequences if so, which would constitute significant harm, the parents say that there would be no such consequences.

To reject the parents’ conviction out of hand would draw the Court into territories of ruling that an individual’s faith is incorrect in fact.  The accepted fact that this particular religion is followed by a relatively small group, rather than having a groundswell of popular opinion does not mean that I should discount their beliefs. There might be many who would regard their beliefs as nonsense, but the same could be said of those who believe that God sent his son to earth to die for our sins.   Many generations of philosophers and theologians have grappled with these weighty issues without necessarily coming to a conclusion; and it would certainly be wrong of me to attempt to do what Aquinas, Bertrand Russell and Descartes could not and put a full stop under whether a particular religion is true or misguided.

I have had to consider whether I need, to determine, on the balance of probabilities whether the Local Authority is right (and thus that the parents faith is misplaced) or vice versa.

Looking at the law, it is clear that what I must consider, in weighing up “likelihood”  is the construction set out in Re H and R 1996  “the context shows that in section 31 (2) (a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”

With that in mind, I am able to determine, with confidence, that there is a real possibility that cannot sensibly be ignored that these children, might over cumulative exposure to snakes (some non-venomous, some venomous) be bitten by the snakes and suffer adverse harm as a result.

I do not, when determining this, need to set out that the risk of this occurring is greater than 50%, and therefore do not need to determine that the parents belief is objectively true, or objectively false, rather that there is some margin for doubt.  I am absolutely plain that I could not rule that one could be absolutely categorically certain that the children of snake-handlers would suffer no harm if they were bitten by a snake, and thus I have to accept that there is a possibility which cannot sensibly be ignored that they might be.

I further accept that the consequences of a bite could constitute significant harm if consequences were to arise, and that therefore the threshold criteria as set out in section 38 of the Children Act 1989  are made out.  I do not believe that, having made that determination, there will be a dispute as to the section 31 criteria at final hearing, the same facts coming to bear.

Turning now to the test for removal, I shall not recount the plentiful authorities, as it is common ground between all of the parties that a satisfactory construction of the test would be “is the harm, or risk of harm that the child would suffer or be at risk of suffering proportionate to the removal of the child at interlocutory stage”

I am mindful here that having effectively established that the religious practice of snake-handling gives rise, if children are participating to a likelihood of significant harm, there is a risk of developing a position whereby the Court determines that effectively all parents who are snake-handlers and wish to bring up their children in that faith are not able to safely care for their children.

That in turn, would effectively be the Court saying to a parent that they do not have the right to practice their religion AND simultaneously parent.  Whilst snake handling is a relatively small religion, practised in some forty churches, it is nonetheless a religion. I am reminded of Martin Niemoller’s famous statement “First they came for the communists….”

Considering the body of authorities where the Court have had to consider the extents to which the State can interfere with someone’s religious practices, I would distill this concept  – that any person is free to believe whatever religious principles they wish and that the State should not interfere with that belief, but that where the exercise of such beliefs has an adverse, or potentially adverse impact on the rights and freedoms of another, the State may intervene and must consider whether such intervention is necessary and proportionate.

I have attempted to apply that principle throughout this case – it is perfectly legitimate for these parents to believe that they, and their children can safely handle snakes as part of their religious practice – it is the point at which they propose that the children actually do handle snakes which leads to the Court needing to become involved. That crosses the line from belief into action.

I have obtained some useful guidance from the Court of Appeal in Re R (A minor) (Residence : Religion) 1993 2 FLR 163 where it was held that it is no part of the Court’s role to comment on the tenets, doctrines or rules or any particular section of society provided that these were legally and socially acceptable, but that the impact of tenets and rules on a child’s future welfare was one of the circumstances to be taken into account.  I have endeavoured to approach the case in that manner.

I have to consider that the parents Article 9 right to freedom of religion, would be engaged. Whilst this is a qualified right, and the Court would be entitled to prescribe those rights if it were necessary in a democratic society for the protection of the rights and freedoms of others, the Court should be reluctant to curtail someone’s religious expression.

Speaking for myself, I would feel an enormous sense of disquiet in being the Judge who set a pebble rolling down a slippery slope; whilst I cannot think at present of other religions who might effectively be outlawed to parents I would not wish to set that particular precedent.

In relation to this issue, I have had to consider whether it is possible for safeguards to put in place so that the risks to children I have ruled cannot sensibly be ignored in snake-handling can be managed, such that the child can remain with the parent and that the family can have the freedom to observe their religious practices.

I have a proposal in mind, which I shall outline, and I propose to adjourn the hearing briefly to allow the parents to consider that proposal.

I would not rule that the snake-handling faith in all circumstances is dangerous to children, but I am prepared to decide that  the snake-handling faith, where children are participating in it, requires robust safeguards to be in place in order to prevent the likelihood of significant harm that otherwise would justify the intervention of the State in removing the children to alternative accommodation.

On that basis, I indicate that I would be minded, if the parents accept the safety proposals, to make Interim Supervision Orders, and for there to be monitoring of the adherence to these safety proposals between now and final hearing. If the proposals are agreed but the Court is later presented with evidence that they have not been adhered to, the Local Authority are likely to find the Court much more amenable to the application they have made today. They would be, as the saying has it, pushing at an open door.

If however, the parents are not able to bring themselves to accept the safety proposals, then my ruling will be that the risk of harm that the children are exposed to in the absence of safety mechanisms, is such that the removal of the children is a proportionate response to dealing with it, and would be minded to make the Interim Care Orders.

In the event that I make Interim Care Orders (and I would hope not to need to)  I would not be minded to invite the Local Authority to make arrangements pursuant to section 22 (5)  (giving due consideration to the child’s religious persuasion) , being satisfied that they are extraordinarily unlikely to find foster carers who are snake-handlers or to find foster carers who are willing to allow the children to handle snakes (even in a carefully prescribed environment or regime)

This also requires me to consider s 33 (6) of the Children Act 1989  “while a care order is in force with respect to a child, the local authority designated by the order shall not – (a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made ‘

And it could be argued that any form of placement other than with snake-handlers would be in breach of this, even if the carers had no religious beliefs  (it is hoped that at final hearing, one would not need to cross-examine Richard Dawkins as to whether atheism or agnosticism constitutes a religious persuasion in the negative)

Thankfully, Justice Baker rides to my rescue in that regard in the case of Re A and D (Local Authority : Religious Upbringing ) 2010 1 FLR 615  involving a child who had been brought up by Muslim parents but the mother reverted to Catholicism after they separated (it being largely impossible to raise a single child as both a Muslim and a Catholic)  and the Court determining that section 33(6) is subject to the overriding duties on the Local Authority under section 22 (3) to safeguard and promote the child’s welfare when they are caring for him.

I am satisfied that it would not be reasonable to expect the Local Authority to provide the children with live exposure to snake-handling in their foster placement, though the children should be educated about their religious faith without practically carrying it out. That would be sufficient to ensure that they are not in breach with either s 22 (5) or s 33(6).  As I have said, I would hope that the issue of these children being cared for by the State does not arise.

My proposals, which I invite the parents to consider very carefully are as follows :-

  1. When handling snakes as part of their faith, the children shall not handle venomous snakes until such time as the Court can review this safety package
  2. The children shall be supervised by adults at all times
  3. In any event, the parents shall obtain anti-venom serum suitable for treatment of bites from the venomous snakes that they own
  4. The herpetologist having identified the symptoms of snake bite from the venomous snakes that the parents own, the parents shall undertake to administer that anti-venom serum immediately if they observe either of the children to be bitten by a venomous snake; or if they observe these symptoms in the children, and to seek medical attention for the children in either event
  5. This is by way of a placatory mechanism, and does not reflect adversely on the parents’ deep-seated conviction and belief that the children would be unharmed by snake bites. It is simply their recognition that the State has to manage that degree of risk that cannot safely be ignored by the Court that the children would not be unharmed by snake bites, regardless of their faith.
  6. The parents accept, as a long-term proposal, that notwithstanding their faith and conviction that the children would be unharmed by handling snakes and would not require any medical intervention, they will keep this safety net in place until such time as the children are adjudged to be competent to make informed decisions about the risks themselves [by which I would contemplate their later teenage years], or the Court rule that the safety provisions may be relaxed.

I would refer the parents to the decision of the High Court in Re W (A Minor) 25th November 1991, involving parents of a child who were Jehovah’s Witnesses and could not consent to a blood transfusion.

In that case, the order was phrased “Being Jehovah’s Witnesses, the parents do not and cannot approve the order hereinafter stated but recognise the power of the Court to direct the same and cannot therefore maintain any objection to this order”

I would ask the parents to go further in this case, but I think a preamble to the order that  “It is accepted by all parties that the parents are snake handlers and profoundly believe that they and their children would receive no harm or damage from handling snakes as part of their religious practice, but recognise the authority of the Court to make decisions about children who are deemed to be at risk of harm, and offer the following assurances to ensure that during the children’s minority, they are protected from harm that might arise from snake-handling, even if that risk is no higher than one which the Court cannot sensibly ignore”   would be a sensible resolution to the religious quandary that the parents find themselves in.

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