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Category Archives: private law

Diplomatic immunity – it’s just been revoked

 

 

Well, it hasn’t been revoked, but who wouldn’t want the chance to see the classic Lethal Weapon 2 exchange?

 

https://www.youtube.com/watch?v=kwC_IaY3BmY

 

 

[If any ancillary relief Judge wants to quip in a case involving a millionaire farmer – “You want to be a farmer? Well here’s a couple of acres” then you’d be doing me a solid. Failing that, I’d settle for a “Get to the chopper” line for a case involving a TV chef]

 

https://www.youtube.com/watch?v=-9-Te-DPbSE

 

This case involves a child whose father has taken one of two twins (I know, that seems redundant, twins do tend to come in twos, but ‘one child of twins’ doesn’t seem great either) to another unnamed country, whilst the other remains with his mother in England.

 

The mother obtained an order for the return of that child. The father asserted diplomatic immunity.

 

I would love to be able to assert diplomatic immunity. If there’s a country out there who wants a diplomat, a country that is prepared to accept that I would almost certainly abuse that privilege, then give me a call. I would be prepared to learn another language (at least to the extent of “sorry sucker, I’m afraid I’ve got diplomatic immunity” in said language)

 

Re MA and Another 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4730.html

 

There was some debate about whether diplomatic immunity only extended to things which occurred during the carrying out of professional duties or all things, but it is settled as being complete immunity from arrest or detention.

 

A feature of the case is that the father has asserted diplomatic immunity, pursuant to the Vienna Convention on Diplomatic Immunity, incorporated by the Diplomatic Privileges Act of 1964. It appeared, following the father’s arrest on 14 October 2014, that whilst the diplomatic protection the father enjoys is in effect full immunity from the criminal jurisdiction and in the civil and administrative jurisdiction, it was limited to acts performed only within the course of his duties. As matters have evolved it seems the scope of his protection is more extensive and he remains, it is asserted, inviolable at all time to any form of arrest or detention.

 

 

 

The High Court may retain some powers under the inherent jurisdiction to ask him to think very carefully about what he’s done and why he should say sorry, but that’s about it. Also, I’m adding ‘inviolable’ to a growing list of words I don’t want to try to pronounce for the first time in Court.

 

The father didn’t attend the hearing. He did produce a statement, which the Court wasn’t very impressed with. It wasn’t in a recognisable format and they did not think that a lawyer had been involved in its preparation.

 

[my personal speculation was that his statement was just “sorry suckers, I’m afraid I’ve got diplomatic immunity” in Guarani. Or alternatively, just a CD with a loop of Billy Bragg singing the “your laws do not apply to me” bit from Sexuality]

 

and the Court decided to proceed in his absence and hear evidence from the mother. They repeated the order that he should return the child to the jurisdiction and that the child was wrongfully removed from the mother’s care and out of the jurisdiction.

 

That’s an order that is somewhat toothless, since there is no punishment that the Court can levy against him if he decides not to comply. It is still the right thing to make the order.

 

Enforcement of it is going to be very difficult indeed. Let’s hope that these twins are reunited without any further litigation.

 

Let’s not bring politics into it

The case Re A and B (Prohibited Steps Order at Dispute Resolution Appointment) 2015 might have one of the dullest names concievable, but I’ll be very surprised if it doesn’t become rather newsworthy.  Wizardpc (regular commentator – you’re going to want to read this one)

http://www.familylawweek.co.uk/site.aspx?i=ed143473

Why?

Because fresh on the heels of the President of the Family Division telling us all that there’s nothing wrong with a father belonging to the English Defence League, we have a family Judge banning a UKIP Parliamentary candidate from bringing his children to election rallies. [And another family Judge overturning that on appeal]

It is a short judgment, so before anyone’s knees jerk too much, let’s all read it first.

The children are both under 10, this is an appeal from a decision of the District Judge in private law proceedings to make this order:-

i) By way of preamble, that the court held the view that it is inappropriate for young children to be actively engaged in political activities as they may be emotionally damaged by potentially hostile reactions from members of the public;

ii) By way of order, that neither parent is to involve the two youngest children actively in any political activity.

 

 

There were three older children who were not subject to these stipulations.

As a matter of law, can the Court do that? Well, section 11 of the Children Act allows the Court to set conditions about contact / time spent with a parent, and the powers are broad, or as here, a Prohibited Steps Order, where one parent can ask that another be prevented from doing something particular (almost anything) with their child – so long as they meet these three criteria

Is it a necessary and proportionate interference with article 8 right to family life?
Is it better for the child to make this order than to not make the order?
Is this the right order, considering that the child’s welfare is paramount.

So the Court has the legal power to make such an order – providing those tests are met. But can it be right to make such an order?

9. Procedure – The father says that:

i) The District Judge was wrong not to hear evidence or at least his full submissions in relation to the need for a prohibited steps order to this effect;

ii) The District Judge made incorrect assumptions about the factual basis for such an order;

iii) The District Judge wrongly dealt with the issue without the father having notice prior to the hearing as to her intention to consider making such an order;

iv) The District Judge did not give the father an opportunity to contend that the order was neither necessary nor proportionate.

10. The mother, who is in person, contends that 99.9% of parents would recognise that their children should not be involved actively in political activities and so the District Judge was acting sensibly and fairly when faced with a father who, she says, does not share that recognition. However, she accepted before me that the father had not been given the opportunity to argue his case before the District Judge and that he made it plain throughout that he did not agree to the order that the District Judge was proposing. The mother could plainly see the difficulties that arise in seeking to upholding the decision of the District Judge.

11. The Cafcass report – The Cafcass report is in the bundle. The following parts of it are particularly relevant:

i) The only mention of political activity in the report is at D5. There the Cafcass officer stated: ‘The mother has expressed concerns that the father’s political views and value base are influencing the children – particularly C who can be racist and homophobic. The father has allegedly enlisted the support of his children to distribute UKIP leaflets when they have spent time with him’. That is the only reference to political activity within the report.

ii) The views of the children, which are very fully explored by the Cafcass officer, do not record any complaint by them in relation to their father’s political activities or their involvement with them;

iii) The children are reported as having some other concerns about their father’s method of disciplining them but were observed by the Cafcass officer to be happy in their father’s company. The Cafcass officer stated at paragraph 27 that ‘it is my view that, on the whole, the children enjoy the time they spend with their father and this needs to be supported…my observations of the children with their father were positive’.

12. Statements – Both parties provided brief statements for the hearing before the District Judge. The father’s statement is dated 20th November and the mother’s dated 24th November 2014 (the day of the hearing before the District Judge). There was no application in relation to the father’s political activities or the children’s involvement in them and therefore the father’s statement makes no mention of this. The mother states in her statement at C8: ‘I would like it if he respected my wishes and promised the court that he will not use the children directly in any of his political activities. I would be prepared to abide by the same promise if he so wished. Although it is apparent that the court has failed to protect certain of the children from brainwashing, since [C] has been campaigning for UKIP, is a member of UKIP youth and [E] has also attended UKIP rallies and is intent on joining UKIP youth’.

13. That is as far as any prior notice of this issue went. The father saw the mother’s statement at court. He did not have any other notice prior to the hearing that this issue would be raised. It is therefore significant to note that there was no evidential material relating to any involvement or harmful consequences for the two younger children in relation to the father’s political activities.

It does appear that this issue was somewhat bounced upon the father – did he have proper opportunity to challenge it, and was there proper evidence before the Court as to political activity being harmful?

If one is saying that political activity is harmful to young children generally (as opposed to just toxically dull) then there a lot of babies who will be saved from being kissed by George Osbourne/Ed Balls/Danny Alexander (choose which candidate you most dislike / least admire).  And to be perfectly honest, if it would remove any possibility in the future of the horror that was Tony Blair in his shirtsleeves drinking tea out of a mug with a picture of his kids on it – then, y’know, I can see an upside.

 

The worry with this is that a decision was made about whether the Court cared for the particular brand of politics espoused by the father – which is getting us into Re A territory to an extent. We see mainstream politicians regularly dragging their kids out for the cameras.

14. What happened at the hearing? Both parties appeared in person, that is without legal representation. I have studied the whole of the transcript of the hearing. I made sure that I read it through twice. Both parties were in person and the District Judge was faced with a difficult task in relation to parties who held strong views. I do not in any way underestimate the task that befell the District Judge and, by this judgment, pay tribute to her experience and exceptional industry. She knew this case well having been involved in it previously.

15. The following are some of the key parts of the transcript :

i) At page three there is the following: ‘THE DISTRICT JUDGE: Yes, all right. One of the other issues she raises, and I know there is another issue in your statement that you want to raise in a minute, [father], I have not forgotten this, one of Mother’s concerns is, and she is quite happy to promise in the same way but she does not like the fact that the boys are being involved in your UKIP activities and she would like you to give an agreement that you will not involve them in your UKIP, for instance, C campaigning in [X town] recently she mentions. How do you feel about that?…FATHER: I’m totally unwilling to have her dictate anything what I’m doing with the children in that respect….THE DISTRICT JUDGE: She said that she would be prepared not to involve them in any political activities as well….Father: Well, she does. She indoctrinates them, you know, so I just don’t think this is on. C is very keen; he gets a lot out of it’.

ii) At page 4 the District Judge said: ‘I can understand where you are coming from because you are not a UKIP supporter, yes….MOTHER: Or any political party. Is it right for a child of A’s age to be going into school saying, “What did you do at the weekend? I’ve been to a UKIP garden party”, and the other kids go, “Hey, what?” they have no idea what she’s talking about. They shouldn’t know what she’s talking about because none of them at that age should know anything to do with politics. Isn’t that to do with abusing their childhood if they’re being pumped full of whatever political party?

iii) At page 5 – ‘THE DISTRICT JUDGE: As I have said, children will always be very conscious about what their parents’ political views are. Your political views may well be at the other end of the spectrum. MOTHER: But I wouldn’t dream of taking them to any political meetings or encourage them to leaflet on the streets. C was egged by somebody. Is that right? …THE DISTRICT JUDGE: Is that right? Was C egged by somebody?…Father: He was exceedingly amused to have an egg land somewhere near his feet on one occasion. MOTHER: I do not want the younger children put in that position.
iv) Also on page 5 – ‘MOTHER: And what about the younger children— THE DISTRICT JUDGE: No, I am just thinking—MOTHER : —who go into the classroom— THE DISTRICT JUDGE: Yes. MOTHER: Think about the teachers then who have to pick up the pieces, so and so’s brother was egged at the weekend. The other children are too young to be worried about this and it’s confusing for them’.

v) At page 8: ‘THE DISTRICT JUDGE: What have you been doing with A and B at the moment so far as UKIP is concerned?…FATHER: A and B have sat on the van while a couple of the others get out and do some leafleting, that’s happened about once. Then there was a garden party where they played in the garden a long way from a congregation where there was a speech going on, so they were happy and they were supervised and they didn’t feel embarrassed and we all left together. So they were not put in any sort of awkward or inappropriate situation and I wouldn’t do, of course…THE DISTRICT JUDGE: I mean what I would like to do is to make a neutral order which is that neither of you should involve A or B in your political activities. Now, going to a garden party, I do not regard that as political activity, that is a garden party, all right? Probably sitting on the van is not but what I am talking about is they should not be going out leafleting and actively taking part….FATHER: Well, I’m just amazed, I’m just amazed— MOTHER: [Inaudible – overlap of speech] A was encouraged to hand out a leaflet and somebody went up to her and just tore it up in her face. She’s a tiny, little girl. This is really mentally challenging for them. THE DISTRICT JUDGE: Yes, look. Father, I am not expressing any political views, it is not appropriate for me to express any political views but there are a lot of people in this country who have very strong feelings about UKIP and I would not want to expose your two youngest children to emotional harm because of how people might react to them if they get involved. That is how I am looking at it, because you must accept there are a lot of people who are dead against UKIP, you understand that?

vi) At page 9 and 10 – ‘THE DISTRICT JUDGE: I am worried about somebody throwing – all right, C is 15, if he is happy to get involved in UKIP then he is old enough to decide that but I am not happy with A and B being involved in political activity to the extent that somebody in front of their faces rips up a poster. That is emotionally damaging for them. That should not be happening to two little girls and I do not care whether we are talking about the Labour party, the Conservative party, UKIP, the Liberal Democrats or whatever. That should not be happening to two little girls…FATHER: Well, that’s three of us agreeing then, isn’t it?…THE DISTRICT JUDGE: Yes….FATHER: So what’s the problem? I don’t see—…THE DISTRICT JUDGE: So I am going to make an order that neither of you are to involve the two younger girls actively in political activities, so I am saying to you garden party is not a problem, sitting on the van is not a problem but they are not going out actively taking part in your political activities because there are a lot of people out there who do not like UKIP and probably a lot of grown ups will not think about the impact on children’ .

16. There was no formal judgment given. The matter was dealt with as part of the discussion that took place at the hearing. There was no evidence given and the underlying facts were disputed, in particular, the extent to which the father does involve the children in his political activities and the extent to which this might have caused harm to them. The father wished to advance in full his arguments but the matter was cut short by the judge making what she perceived as a ‘neutral order’.

 

 

The Judge hearing the appeal, His Honour Judge Wildblood QC came to these conclusions  (underlining mine, emphasising that the three ingredients I spoke of earlier weren’t present. That, combined  with lack of  fairness to the father in the procedure meant the appeal was successful and the order discharged)

28. My difficulties with this case are:

i) The father had no notice before the hearing that this issue would be raised as one that was argued, let alone governed by orders.

ii) The factual underlay behind the orders is disputed and there was no written or oral evidence before the court that related to the issues before it.

iii) The contentions that the mother raised in support of the order were contested and the father did not have an opportunity to answer them. If he was not to have notice of this application for an order and was not to be allowed to give evidence about it he was entitled to the opportunity to make full submissions about it. He expressed the wish to advance his side of the story on the issues that arose and did not get it.

iv) The Cafcass report did not raise this as an issue that required intervention and there was no professional evidence before the court that supported the necessity for such an order.

v) This was an important issue in the context of this case. The order made was a prohibited steps order. Such an order should only be made for good (and, I add, established) cause and for reasons that are explained as being driven by the demands of the paramount welfare of the children. I do not think that such orders can be justified in contested proceedings on the grounds of neutrality and I do think that the decision must relate to the specific children in question. In Re C (A child) [2013] EWCA Civ 1412 Ryder LJ said: ‘A prohibited steps order is a statutory restriction on a parent’s exercise of their parental responsibility for a child. It can have profound consequences. On the facts of this case, without commenting on the wisdom of any step that either parent took or intended to take when they were already in dispute, and in the absence of an order of the court, father had the same parental responsibility as mother in relation to his son. Once the order was made, he lost the ability to exercise part of his responsibility and could not regain it without the consent of the court. That is because a prohibited steps order is not a reflection of any power in one parent to restrict the other (which power does not exist) it is a court order which has to be based on objective evidence. Once made, the terms of section 8 of the Children Act 1989 do not allow the parents to relax the prohibition by agreement. It can only be relaxed by the court. There is accordingly a high responsibility not to impose such a restriction without good cause and the reason must be given. Furthermore, where a prohibition is appropriate, consideration should always be given to the duration of that prohibition. Here the without notice prohibition was without limit of time. That was an error of principle which was not corrected by an early return date because that was susceptible of being moved or vacated unless the prohibition also had a fixed end date. The finite nature of the order must be expressed on the face of the order: R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin) at [38] per Munby J’.

vi) Further, the District Judge was being asked to make orders that were invasive of the Article 8 rights of the father and of the children to organise their family lives together without interference by a public authority unless that interference was necessary and proportionate. That issue was not examined.

vii) Oral evidence is not always necessary (see Rule 22.2 of The Family Procedure Rules 2010). However there must be some satisfactory basis for an order if it is to be made. Otherwise the justification of the order is absent.

29. The form of the order made – The order that was made merely states that ‘neither parent is to involve the two youngest children, A and B, actively in any political activity’. I am personally in no position to cast stones on the drafting of injunctive orders in the light of what was said in Re Application by Gloucestershire County Council for the Committal to Prison of Matthew John Newman [2014] EWHC 3136 (Fam) but I think that there are very real difficulties about the form of the order that was made in this case.

30. By reason of Rule 37.9(3) of The Family Procedure Rules 2010 it is a matter of discretion as to whether a prohibited steps order should contain a penal notice (In the case of …a section 8 order…the court may’…attach a penal notice). I am concerned that this order did not make plain the consequences of any disobedience, the duration of the order or the activities that were prohibited. I realise that the District Judge said that garden parties would not be covered but I think that, if this order was ever to be enforceable in any way, it needed better definition. At a DRA there would have been very little time to examine that, I appreciate. District Judges lists are stretched to snapping point.

31. The conclusion that I have reached, therefore, is the decision of the District Judge was procedurally irregular and cannot stand. I therefore give permission to appeal and allow the appeal. I direct that there be a rehearing of the issues that have been raised in this appeal before me. Paragraph three of the order of the District Judge is discharged.

 

 

I think, regardless of what you might think about UKIP, the appeal was correct. The issues had not been properly explored and the father had not had proper opportunity to challenge what was a very unusual request, made at a hearing which was really only intended to set up the necessary directions to get the case to a substantial hearing.

I already have fond thoughts of His Honour Judge Wildblood QC, having read a lot of his judgments, and this made me think even better of him – this is very nicely done.

34. Finally, I will release this judgment on Bailii. By this decision I mean no offence at all to the very experienced District Judge for whom I wish to record my appreciation and thanks. In choosing my words when explaining why I am allowing this appeal I hope that I have displayed an understanding of the motto ‘do as you would be done by’ – who knows, tomorrow another court might hear an appeal from me.

 

[This case shows some of the risks of jigsaw identification – I’m sure I could work out UKIP Parliamentary candidates in the West country with five children and identify this family very swiftly. I’m sure others can do the same, and probably will. Not here in the comments though, please. ]

 

6. Publication – An officer of the press is present in court. I have referred her to Rule 27.11 of The Family Procedure Rules 2010 and also to PD27B of those rules. I explained the law to her in the presence of the parties and adjourned so that she could read the Practice Direction and the rule. She was referred to Section 97(2) of The Children Act 1989 and also to section 12 of the Administration of Justice Act 1960 and confirmed her understanding of the limitations on any reporting of this case. I am not going to explain those limitations in this judgment. If any person, organisation or party is thinking about making any aspect of this case public, they should inform themselves of those limitations. If in doubt, an application should be made to the court because breach of the law would amount to contempt which would be punishable by imprisonment, a fine or sequestration of assets.

7. Anonymised information about this case has already appeared in the press today. The father expresses his views in the press reports, without revealing his identity other than as a father and UKIP candidate. That being so I have alerted the Judicial Press Office about this case and of my intention to place this judgment on the Bailii website under the transparency provisions. I think it essential that there should be a clear and immediate record of the basis of my decision. That being so I have had to type this judgment myself immediately at the end of the hearing under pressure of time.

Fifty-fifty – equal parenting time

 

 

 

As far as I know, Re M (A Child) 2014 is the first time the Court of Appeal have dealt with a case involving equal parenting time since the Children and Families Act with its controversial clause came into being.

 

http://familylawhub.co.uk/default.aspx?i=ce4491

 

This case has some other remarkable features, but just focussing on what the Court of Appeal say about equal parenting time – that being the order that the trial Judge made.

 

 

There is no longer any need, because of the change in the legislation, to impose a “shared” order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent.

 

If you are one of the campaign groups representing fathers, the Court of Appeal saying that a 50-50 split will be a “rare order” “only to be contemplated where there is confidence it will not work to the disadvantage of the child” is not something you wanted to hear.   So all parents are equal, but some are more equal than others.

 

Anyway, the meat of this appeal was more on the issue of whether a Court can impose a condition on WHERE a parent will live when making an order that says that the child will live with them (residence order, in old money)

 

 

In this case, the boy is 5 ½ .

 

The circumstances as they were before the judge was that for some time the mother had set up home with W in Newcastle whereas the father lived in London with his two older children, half siblings of W, and it was impracticable to consider the father moving from London, given his commitments there and, in particular, his longstanding employment.

 

 

There were a series of findings about the father’s conduct that had led the mother to move out of the family home in London and move to Newcastle, the atmosphere in the family home having become ‘toxic’

 

So far as allegations that the mother made against the father, the judge made a greater number of findings. They all, in one aspect or another, relate to the degree of control that the father sought to assert over the family as a whole, but in particular over the mother.

 

One aspect that understandably had prominence was the unfortunate fact that the father was confirmed, as time went on, to be HIV positive. The question arose as to when he knew or must have known that that was the case and whether he told the mother promptly about that and, if not, why not. In short terms, the judge found that there did come a time when the father will have known that it was highly likely that he was HIV positive, but it was not for some year or more after that time that he told the mother about this, despite some active continuing sexual contact between them. The judge describes her finding in this regard as: “Appalling behaviour on behalf of the father. The mother was understandably terrified with this news.” The judge, in short, found the mother’s allegation proved.

 

The mother’s case was that the boy should live with her in Newcastle and spend some time with his father.

 

Father was saying that the boy should live with him in London and spend some time with his mother.

 

 

 

The Judge made an order which seemed utterly bizarre on the face of it, particularly given the findings made, which was that the boy would live with father in London and IF mother moved to London, there would then be a 50-50 split of time.

 

The judge, in the event, made an order that provided for W to be returned from Newcastle to live with his father in London and provided in the interim for arrangements for the mother to have contact. The order further provided that if the mother moved back to the London area herself, she would have substantial contact with her son. Indeed, we have seen a draft order, which counsel have explained to us is more than simply a suggestion of an order as a result of negotiation between counsel, but arose as a result of direct invention from the judge at two or three hearings up to and including 8 July 2014. The basis of the order is that if the mother moves to London, W: “shall live with his father and mother with the principle of equal shared time to include half of all school holidays.” In the meantime, or if the mother does not move to London, the provision was for holidays to be split into equal shares. For each alternate fortnight, so that is once every four weeks, W would travel with the father up to Newcastle to spend most of Saturday and half of Sunday with the mother, and, on another fortnight on each four week cycle, the mother would travel to London to have a similar amount of time with him

 

The mother appealed, on the basis that (a) given the findings and facts a decision to split the time equally was perverse (b) the evidence was that mother did not want to move back to London and would have considerable difficulty in doing so and (c) this stipulation amounted to attaching a condition to residence – something which is only to be done in exceptional circumstances which this was not.

 

 

Let us be fair to the Judge – this ‘third way’ compromise had been suggested by the CAFCASS officer.

 

“42.The recommendation of Mr Power is that W should be returned to the father and it is the hope from Mr Power that the mother will feel able to relocate back to London and therefore there can be come shared care arrangement. The mother says that it is quite impractical; she does not have a job, she does not have income, she does not know where she could afford to live and it is of note that neither party have initiated court proceedings so there are no financial provision proceedings in being. So at the moment the position is that the mother has no known resources such that she can obtain from her family or from by finding a job. She says that if she has to come back to London she does not know that she can find accommodation. She looked into the possibility of finding accommodation and a refuge is one possibility but the problem about that is that at the time she requested alternative accommodation she was told the only then available refuge was in Manchester. 43. Mr Power was of the view that, biding her time while she remains in Newcastle, that a London refuge would eventually be available to a suitable place and that in his experience people are satisfactorily re‑housed, usually within a period of six months, and that whereas living in a refuge is not something one would necessarily wish to do it was perfectly adequate if W were to live with the mother in the refuge. It is fair to say that, looking at the large amount of documentation produced for this hearing, that the mother in the past has been able to potentially find herself accommodation; at one stage she has through her brother I think paid for four months worth of rent in a flat if the father would co‑operate to allow for some further finance of that in the future but the father refused so she has looked into the possibility and obtained money from her brother. Her brother, also I think, is in medicine or science and lives on the continent and he has helped her financially in the past.”

 

 

 

The Court of Appeal give me a lovely new phrase to use – referring to key passages of the judgment, they say that these are the “engine room” of the judgment. Stealing that!

 

In paragraph 46, the judge, looking at W’s best interests, said this: “46.It is vital for him that he should have the continued love and care from his mother in the future as he has had in the past. 47. So looking at those two options, those are really the only two options. Either W stays in Newcastle with the mother under the regime she puts forward or some other workable contact arrangement, what these days are child arrangement and sharing of care, or she comes down to London and she with the father, together, care for W. Mr Power, when asked about what he had in mind with a shared care arrangement, said that he would hope that the mother would have at least half the care of W and possibly more than half the care of W depending upon her commitments, but he could not be more definite about the arrangements because at the moment the plans are inchoate.

 

  1. The father’s proposal if W was returned to London would be that W would see his mother very little indeed. Having heard the evidence he said that he would support what Mr Power recommended. Therefore if the mother can remove herself back to London then she should be able to have a substantial part of the care of W depending upon where in London she is able to live. Of course the court cannot force the mother to move back to London; it will have to be a decision for to make but looking at all the options. The court must make the decision which is the least destructive of family life, must make no order unless an order is necessary and must make a proportionate order. It is a difficult balancing exercise but the balancing exercise must be carried out in what is in this little boy’s best interest. I have no doubt it would be in the mother’s best interest that she should remain in Newcastle. She is happy there and she has a very nice home and there are suitable arrangements for W but this case sadly cannot be decided upon what is in the mother’s best interests; it has to be decided on what is in W’s best interest. I am well aware that she in a difficult predicament because of at the moment she has no income, she has no job and her immigration status is questionable but she is, I find, a resourceful woman and she has been able to achieve that which she wanted, within reason, in her circumstances whilst she was living with the father. Although I have found father was controlling, nevertheless she did go out, she went to courses, she had a job, she left when she chose to to take W to see family or friends. She says she has no friends now but she obtained friends over Facebook and in the past she went to stay with one friend, S, and at one stage she was able to be friendly with her brother’s fiancée but that too has come to an end. So she is a woman who is capable of making friends, who is capable of arranging life as best she may even when in that toxic atmosphere. Therefore I am satisfied that if she decides she wants to move back to London then she will be able to find one way or another that will enable her to do so. As I say, at the moment, there are no financial proceedings so I know not how they may work out if such applications were made; that is not for this court and it is certainly not for this court today.

 

  1. Therefore, carrying out that balancing exercise and looking at what is in the best interests of W, I have come to the conclusion that it is in the best interest of W that he now should be returned to the father’s home and that he should live there under a shared care arrangement; a child arrangement where, in principle, the mother should have a substantial part of the care of W but that of course cannot be put in place until and unless the mother is willing and able to move back to London. If she is not, and in the meantime whilst she remains in Newcastle, sensible arrangements will need to be made so that she can see W and I will leave the parties to see if they can, by agreement, work out a sensible regime. There needs to be a date when W is moved back here; clearly he needs to be back in time for the start of school in September and consideration needs to be given to what happens in the meantime and no doubt arrangements will have to be made but in my judgment, for this little boy, the familiarity of school and the church that he has been going to is, I agree with Mr Power, what is the most stable part of W’s life in the light of the fact that his parents are separated. Therefore, in my judgment, W should return to live with the father. The order should reflect the fact that, in principle, the mother should have part of the care of W when and if she is able to come and live in the proximity to the father and to W’s school and until such time as that happens, what used to be described as contact arrangements will have to be worked out.”

 

Those paragraphs are the engine room of the judge’s judgment and have been the focus of the appeal before us

 

 

So, the Court of Appeal had to consider whether what the Judge had done did amount to attaching a condition on residence and whether that was justified.

 

The law on that really emerges from Re E (Residence : Imposition of Conditions) 1997 2 FLR 638 – “where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to chose where he/she will live within the United Kingdom or with whom. There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way of conditions which include a condition of residence”

 

The Court do have the legal power to make conditions under s11(7), but unless there are exceptional circumstances, they ought to have decided which of the two competing plans (with mum in Newcastle or with dad in London) was the right plan, rather than imposing an order which effectively compelled mother to move to London against her wishes.

 

 

In my view, the judge should have made a clear choice, hard though it would have been, between W remaining living in the care of the mother in Newcastle or living in the care of the father in London and she should not have endorsed the halfway house arrangement that she did, which, for the reasons I have given, was, first of all, in my view, impermissible as a back door condition, but secondly, and perhaps more importantly, was simply not justified on the evidence and hard to understand as a concept that would be compatible with the child’s welfare. For those reasons, I would allow the appeal and set aside the judge’s order.

Faking medical evidence

 

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

 

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

 

Re E (a child) 2014

 

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

 

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

 

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

 

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

 

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

 

 

    The father has perverted the course of Justice:

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

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

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

 

 

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

 

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

 

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

 

 

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

 

The father within the proceedings had also involved the media

 

 

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

 

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

 

 

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

 

The father’s action in respect of the falsified documents

 

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

 

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

 

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

 

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

 

 

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

 

 

The role played by Dr C

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

 

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

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

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

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

 

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

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

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

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

 

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

 

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

 

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

 

 

if legal aid is being refused to people such as this mother I am satisfied that injustices will occur

This is a report of a short judgment from Her Honour Judge Hallam sitting in Middlesbrough, building on a decision from District Judge Reed in the same Court. Huge credit to both of them for calling out the Legal Aid Agency on this dreadful state of affairs   (the LAA in turn are just doing what they are told to do by our Lord  Chancellor)

 

Re H 2014

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B127.html

 

 

This was a private law case, between a mother and a father. The father had legal aid, because the child was known to social services and they were supporting him. The mother did not.   [One could make far more sense of it if it were the other way around – the father had a lesser need of representation because his case was being supported]

 

At a hearing in May 2014, the Court picked up that this mother was not someone who was going to be able to represent herself – there was an assessment of her cognitive abilities that assisted with that

 

She is not sufficiently disadvantaged to say that she does not have capacity to litigate. She has capacity to litigate but in my judgment that is only with the assistance of a solicitor. She has difficulties in hearing, in speech and intellectual difficulties. She is unable to read or write. They are not fanciful difficulties. In previous public law proceedings there has been a report from Dr Cooper, who is a psychologist, informing the court of the mother’s cognitive difficulties and learning difficulties. Having seen the mother in court, I am satisfied that she would not have been able to represent herself in a case as complex as this and therefore, in my judgment, she was, to all intents and purposes, prevented from having access to this court

 

 

At that hearing, D J Reed gave these directions

 

The matter came before District Judge Reed in May of this year, on 19th May. As I say, it was apparent at that stage that the mother opposed the father’s application. Furthermore, it was apparent that the local authority supported the father in his application. There was a recommendation about contact. When the matter came before District Judge Reed, the local authority, Middlesbrough Council, were made a party to the proceedings. At that stage the mother was self-representing and the judge was clearly concerned about that and there is a lengthy preamble to the order that he made in May. That preamble recorded that the attendance of GHu in court to support the mother was not appropriate, given the issue in the case. He recorded that:

 

 

 

‘In the absence of legal aid to secure representation of the mother, it is inevitable that her article 6 and her article 8 ECHR rights will be at risk of being violated, given her evident speech, hearing and learning difficulties, if the case proceeds without further representation.’

 

 

That could not have been a clearer indication of the judge’s opinion and consideration of this matter and therefore he also said that:

 

 

 

‘On its facts and having regard to the surrounding circumstances and, in particular, the recent party status of Middlesbrough local authority, the criteria for assessing an exceptional grant of legal aid are likely to be made out.’

 

 

He went further and said that the local authority involvement in the current proceedings is based largely on public law and child protection issues relating to the respondent mother’s fifth child, subject to public law proceedings which concluded in 2014, resulting in both care and placement orders. He said there is considerable similarity and overlap in the issues which present in both sets of proceedings. That part of the preamble continues with:

 

 

 

‘Furthermore, in the circumstances of this particular case and those of the respondent mother, it would be unrealistic and potentially unjust to expect the respondent mother to be a self-representing person.’

 

 

Therefore he adjourned what was to be a final hearing on that occasion in order for a further application to be made to the legal aid authorities.

 

 

You might think that you could not have a clearer indication (particularly in light of Q v Q) that the State would be breaching mother’s article 6 and article 8 human rights by not allowing her to have free legal representation.

 

You will, however, not be surprised to know that the Legal Aid Agency did not grant her exceptional funding under s10 LASPO. Of course they didn’t. As part of that decision, they considered that there was no risk of article 6 or article 8 breach. Of course they are in a far better position to assess that than the Judge who is seized of all the facts and knows the stakes. Of course they are.

 

The second matter that I am told that Mr Keegan relied upon was that there would be no breach of Convention rights. I find that statement astounding. A district judge had already found, having seen the mother, that undoubtedly her article 6 and article 8 rights would be breached. When I pause to consider the article 6 first of all, which is to ensure that people have fair trials in the courts of this country, and in order to do that should have equality of arms, I cannot see how anyone can come to the conclusion that this mother’s article 6 rights were not in jeopardy. I repeat again the father has the support of a legal representative. The local authority, who are advancing a case contrary to that of the mother’s, has legal representation. Without legal aid, therefore, the mother, on her own, would be facing two advocates pursuing a case against her. On any basis that cannot be equality of arms. She is the party with the least ability, the greatest vulnerability and she should have had the benefit of legal representation. She is faced with the father, who has the greater ability and the support of social services; as I say, both being legally represented. In effect, this vulnerable mother is faced with two advocates running a case against her and she does not even have one. I cannot think of a clearer breach of article 6. Article 8 – this matter is clearly about family life and the mother’s right to family life, whether the children should be in her care or not and what contact she should have. Again, I cannot see any conclusion other than that her article 8 rights were engaged, as the district judge said, in my view, properly, in the court below.

 

 

Fortunately for this woman, someone stepped in to represent her pro bono, but that doesn’t get away from the fact that we simply don’t have a system where s10 LASPO is the safety net that the MOJ claimed that it was when they were getting this awful legislation through Parliament.

 

If a Judge says that a person’s article 6 rights will be breached without representation, that’s a really really really good indicator that they would be. Judges don’t say these things for fun.

 

Ithas been fortunate that she has had the assistance of someone today because this matter has reached agreement. However, it is not right that legal professionals should have to attend a hearing, as complex as this one, without remuneration. The mother still has concerns about the father’s care for the children and many of those concerns are shared by the local authority, so she has not been running a fanciful case. The matter has resolved; it has resolved with an order and a very detailed working agreement. Again, I cannot see how this mother could have entered into that working agreement which has resolved this case without the assistance of Mr Nixon here to help her understand it, consider whether it was right and ultimately agree to it. Therefore, I have given this judgment because I am satisfied that this mother should have had legal aid and should have been represented. Mothers in her situation should have proper and full access to the court with the assistance of legal advice. As I have said, I am going to order a transcript of this judgment, both for the Legal Aid Board and also because I feel that it should be shown to the President of the Family Division to show what is happening in these courts. I am told that since April 2013 there have been only eight or nine cases where exceptional legal aid has been granted. I do not know if that is correct, but if legal aid is being refused to people such as this mother I am satisfied that injustices will occur. Had this matter proceeded without the assistance of Mr Nixon to a fully contested hearing, this court would have been put in an impossible situation. Having said that, I approve the order. I am grateful to everybody for the time they have spent and I am also, as I keep saying, very grateful to Mr Nixon for having attended today.

 

Allegations of abuse against a father

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

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

 

 

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

 

 

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

 

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

 

I am reminded of the Blackadder lines

 

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

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

the interaction between Children Act and Mental Health Act

This reported case is a County Court one (which means that it is not legally binding precedent) but it raises some unusual issues.

 

The “Too Long; Didn’t read” version – don’t treat a s20 child as no longer s20 just because they get detained under Mental Health Act; and if you enjoy judicial dressing downs, there’s plenty in here worth reading.

 

Re T (Children) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B116.html

 

The application itself was by a child, St, now 16, for contact with her siblings. There were five children  (plus St herself, plus another sister older than St). I note that the Judge identifies birth dates for all of the children.  I won’t in this piece, because I think that there are a limited number of families in the Preston area with seven children and the specific dates of birth is probably all that is needed for them to be inadvertently identified by people in that area reading the judgment.  (The “jigsaw identification” issue)

St had had many difficulties in her life and at the time of the application was detained under section 3 of the Mental Health Act for treatment in a hospital. Her parents had had difficulties in caring for her and from around June 2012 had really delegated her care to the Local Authority.

 

For all practical purposes, the Local Authority had been caring for St and meeting her needs and looking after her from June 2012 until she was detained under s3 of the Mental Health Act.

 

The case was not care proceedings, but rather St’s application under section 8 of the Children Act 1989 for contact with her siblings (or as I must now describe it through gritted teeth “for a Child Arrangement Order to spend time with her siblings”  (or in my own rebranding of the rebranding  “Shiny Happy People order”)  )

The Judge had been concerned about the impact on these five children of contact with St, given her predicament and health. He directed the Local Authority to file a section 37 report advising about these matters.

On 7th January 2014 it emerged that St’s status had been changed by the Local Authority and that she was no longer deemed by them to be a child looked after within the meaning of the Children Act, with to s.20 status, but was deemed by them to be a child in need under s.17 of the Children Act. That was extremely concerning because the change of status was reported already to have had a direct impact upon St’s circumstances for the worse. It therefore seemed to me to be appropriate to make a s.37 direction in relation to St and to make her brothers and sisters parties to the proceedings. I recorded, the Local Authority being represented, what the Local Authority had to say about the change of status at that hearing and the order I made includes this recording:-

“The Local Authority contends that under internal policy, St is not ‘looked after’ by them and has not been since she was sectioned under s.3 of the Mental Health Act 1983.”

 

 

[I will confess very quickly that I don’t know, off the top of my head whether a looked after child ceases to be looked after once they become detained under the Mental Health Act. There are two possibilities – a common sense literal one that says that it isn’t the LA looking after her any more, it is Health, so she is not. And a technical one that suggests to me that there were a raft of statutory instruments that said that children in prisons were looked after so maybe there’s one kicking around that I can’t yet find that says the same thing about mental health]

 

But more to the point, the Judge’s issue was that this decision had actually detrimentally affected St.

Once again, I made recordings about St’s circumstances, setting out what was being relayed to me by the Local Authority through their counsel; this is recorded on the face of that order:-

“Lancashire County Council informed the court that they deemed the applicant, having ceased to be accommodated under s.20 of the Children Act 1989 when she became detained under the Mental Health Act in September 2013”.

And also;-

“Lancashire County Council further suggests that from the point of such detention, primary parental responsibility which was not being exercised by the respondents was to be exercised by the hospital”.

 

That doesn’t sit right with me – the hospital were looking after St and meeting her physical needs and mental health needs, but they weren’t exercising parental responsibility for her. Suppose for the sake of argument, she had needed an operation that would not have been authorised without parental consent and does not come within the treatment powers of s3? This suggests that the hospital could consent in loco parentis, and that just does not feel right to me.

I was sufficiently concerned that this decision making and approach deprived St of anybody to exercise parental responsibility for her was likely to cause her significant harm given her particular vulnerabilities and circumstances. I therefore made interim care orders in respect of her in accordance with the section pending the preparation of a further s.37 report the need for which was conceded by the Local Authority,.

 

[As readers of the blog may have picked up, I’m not a huge fan of ICOs made under s37 of the Children Act by a Judge of their own motion, but that seems to me to have been the right call here.  I dread to think of how the LA resolved the placement provisions under s22C with a placement in a mental health hospital. For what it’s worth, my attempt would be s22C (6) (d)   – I’m not going to set all of that out, because there are limits to even my law geekiness]

 

The LA decided not to issue care proceedings at the conclusion of that Interim Care Order.

 

The Judge was disappointed

 I should explain why I consider three separate aspects of the Local Authority’s decision making in respect of this child are in error and represent a failure to promote her welfare.

I have three purposes in delivering the judgment. Firstly, I very much hope that after receipt of the judgment the Local Authority will review again their approach to this case. It seems to me that it is always a professional strength and not a weakness to be able to change decisions previously taken if it is right to do so.

Secondly, this seems to me to be an important opportunity to publish a judgment which highlights what has happened to a child who ought to have benefitted from two statutory schemes of protection, both under the Mental Health Act as a person suffering from a mental disorder and under the Children Act as a child who a has suffered or is likely to suffer significant harm. St, in any event, is a child whose welfare overwhelmingly deserves scrutiny and promotion within proceedings.

Thirdly, and this is not my primary purpose, it is the intention of those who act on behalf of St to pursue either or both a complaint and/or other remedies in respect of her against the Local Authority and it may very well be that there are matters covered in this judgment that they consider to be of use in pursuing such courses of action. Providing assistance for those proposed actions is certainly not my primary objective and neither would it be proper for that to be a primary objective. The judgment is therefore mainly given in the hope that the Local Authority might reconsider and to highlight the difficulties that have beset this child who has unfortunately fallen between two statutory umbrellas of protection.

 

As nobody was “looking after” St, and her parents had effectively stepped away from her, when she was in the hospital nobody had provided her with funds or the wherewithal to even have basic funds to buy toiletries or christmas presents for her siblings.

 

The hospital were firmly of the view that the Local Authority ought to be looking after St

I therefore have a full letter dated 21st May 2014 written by Dr K, a consultant child and adolescent psychiatrist at the hospital, the responsible clinician for St. The letter sets out his perspective upon what he regards as the necessity of ongoing looked after status during admission. I am very grateful to him for providing that. He says at paragraph 3 of that:

“I find this to be an unusual position and not one which is taken by other local authorities who have responsibility for looked after children who are placed on [name of hospital given] unit.”

He goes on to say:

“I am not aware of any hospital ward that would take parental responsibility upon themselves. Provision of care in loco parentis is much the same as is provided by schools or residential homes and specific decisions regarding treatment require the hospital to seek consent from the individual with parental responsibility in a similar manner as would be the case in the community.”

He also goes onto say that St, for the most part, may have the ability to give her own views but that there will be times when that may not be the case given her illness. He says this:

It may also be worth clarifying limitations of the Mental Health Act in regard to consent to treatment. Section 3 allows for the provision of treatment for a mental disorder to be provided within a hospital setting and as such it allows for treatment to be given under certain circumstances against a patient’s wishes or where they lack mental capacity to give their valid consent. However, the MHA only relates for treatment of the mental disorder, it does not make provision for physical health conditions to be provided against a patient’s wishes, nor does it allow for any other decisions to be made about wider aspects of a patient’s affairs and lifestyle. In the case of a minor, such a decision is either required to be made by taking valid consent from the patient or where this is not possibly by seeking consent from the individual with parental responsibility. There is no legal provision within the Mental Health Act, or any other statute of which I am aware, that allows for a hospital to take parental responsibility upon themselves. In fact I would argue that is strongly in the interests of the young person that a party independent of a hospital hold this role, particularly when the young person is detained by the hospital against their will.”

He goes on:

Moreover, the benefits of continued looked after status whilst a minor is placed within a hospital setting go beyond the provision of valid consent for decisions that do not relate to the mental disorder. Given the complexity of St’s case and the nature of her social care needs it appears essential to me that she has the benefit of a social worker taking a parental role so as to provide her with continuity and stability of care as well as advice and support around the many challenging issues that she is currently facing.”

Equally that was the view of both Mr Jackson and Mrs. Walwin-Holm, the children’s guardians who have at different times represented St within these proceedings. Dr K’s perspective is that of an experienced clinician working within an acute setting to alleviate the distress and improve the situation of young people in the very distressing circumstances that St finds herself. Any person in hospital, whether a young person or a child or not, seems to me to need – and I apologise for being intensely practical – moral support, social support and financial support. My focus here is upon this child during this admission.

 

By the time of the hearing, the Local Authority had wisely reconsidered their decision to treat St as no longer being a looked after child. That of course does not prevent St or her representatives from satellite litigation about whether that decision was unreasonable and whether it had a deleterious effect on her.

 

I don’t think that the Judge really warmed to Mr McHale, the senior manager who had made the original decision to stop treating St as a looked after child.

   I should, in passing, take some comfort from Mr McHale’s approach to the views of the clinicians. This paragraph I read from his statement, of 23rd July 2014 also reflects his oral evidence when he was challenged. He says:

“While I respect the views of my health colleagues, they do not have a full understanding of the roles and responsibility of CSC in relation to children and young people and although we would always listen to their opinion, ultimately it is our responsibility to decide how we deal with individual children and their legal status.”

So I should perhaps take some comfort that the Local Authority are no more prepared to defer to the clinical view than the court’s view.

 

Ouch.

 

On discussing how that decision was made, and why, the Judge had this to say  (underlining mine for emphasis)

 

I am not going to attempt to make a finding of fact as to what the reasoning actually was or what was actually decided. Mr.McHale claims that it was a child specific welfare focused decision. If it was, it seems to me that it worked very badly indeed because it had an immediate impact upon the service that St was receiving for the worse. She ceased to receive any financial support from the Local Authority and the level of moral and social support given to her also decreased in the wake of that decision. There was a CPA (Care Programme Approach) meeting at the hospital in December 2013 which the Local Authority did not attend. St therefore lost her Looked after Child status and the review system, she lost her independent reviewing officer, she lost the duty of the Local Authority to promote contact between her and relevant people and she was left with no money for basic necessities. She is said to have felt abandoned, a feeling that she has been reported as having to have felt on a number of occasions during the proceedings.

Mr McHale asserted that this was never his intention and that in fact what he intended was for all those services St had been receiving under s.20 to be continued by way of an exercise of discretion under s.17. The Local Authority have not brought any contemporaneous documentary evidence to support this assertion. Mr. McHale was apologetic for particularly the loss of money for St which had an intensely distressing effect upon her in circumstances I will come to describe. In general however it seems to me overall that the impact of the decision, whether specifically child focused or a matter of policy, was deleterious to the welfare of the child. It seems to me as a matter of common sense and experience that if somebody is admitted to hospital they do not change their usual home or their residence. They go to hospital to be treated for the duration of an illness. It seems to me highly unlikely that a Local Authority would even contemplate changing a child’s status from s.20 to s.17 if that child were to be admitted to hospital for treatment for any serious or long-term physical illness. It therefore seems to me quite inappropriate that this child, who was subject to s.3 of the Mental Health Act and detained for treatment in hospital for a mental disorder should have lost a status which conveyed rights upon her which would have continued had the illness requiring treatment not been a mental disorder

It seems to me that the care programme approach of the Mental Health Acts should work hand-in-hand with the Looked after Child processes of the Children Act. These schemes should not be alternatives but should be complementary. That would seem to be the view also of the clinicians. The Local Authority and other parties to these family law proceedings have concentrated on St’s right to services upon discharge from hospital, whether as a Looked after Child entitled to a Pathway plan and services for leaving care or otherwise. That is not the focus of this judgment not only because it should not be the focus of this judgment but also because upon discharge from hospital under the Mental Health Act St will be entitled to extensive services both from the health authority and the Local Authority under s.117 of the Mental Health Act.

My concern is that St’s circumstances on the ground were acutely and deleteriously affected by her change of status and this was also the view of the clinicians at the hospital which was expressed during the CPA meeting to which I have referred on 13th December 2013. I have the record of the meeting in which the following is recorded:

“On admission to [name of residence given] St was under a looked after child s.20. Whilst in hospital her case has been closed and she is no longer considered to be looked after. A senior support worker has not been allocated to ensure that St continues to have involvement with services whilst she remains in hospital.”

Later, the meeting, minutes record this:

“Members of the meeting expressed frustrations and difficulties associated with the removal of St’s LAC status due to her being in hospital. Difficulties arise in particular around St’s physical health and the need for parental consent for certain forms of treatment, despite the current lack of contact and care from St’s parents. There is also a lack of money for St now. Kayley I, advocate, also expressed St’s views and distress at the lack of monies. Options were discussed as to how this could be managed. Funding agreed from social care that St to receive £20 a month for toiletries, all agreed that this is not enough. The meeting discussed making a complaint to the Local Authority about the removal of a young person’s looked after care status when a young person becomes an inpatient and all agreed this would be a good idea.”

 

[I think the Judge’s analysis that if this child had been in hospital for a broken leg there would have been no suggestion that she was no longer looked after by the Local Authority is a very good one, and it is a good way of looking at it. It may be, and it would require a delve into the Regs that is beyond my current level of enthusiasm and curiousity that this child is not technically s20 but it must be manifestly better for her to have treated her in all ways as though she were]

 

In case you think that the Judge was social-work bashing in this judgment, she clears this up.

 

Mr McHale in his evidence, having read what was trenchant criticism of the Local Authority written by Mr Jackson the then child’s guardian, repeatedly asserted that he considered that the Local Authority had delivered an excellent service to St. In that sense he seemed to me to be understandably taking up cudgels on behalf of his staff. I hope he understood, and I hope that anybody reading this judgment understands, that this judgment is intended to be critical, indeed trenchantly critical of the decisions of the Local Authority. However it is by no means intended to be a criticism of the staff who have been working the case on the ground. It is my impression that those staff, that is Mrs S and her manager, have delivered, as Mr McHale asserts, an excellent service to St within and despite the parameters of the decisions of their senior management. This judgment is not intended in any way to undermine that impression. This court, the social workers on the ground, their managers, the clinical team and the children’s guardian are all motivated by having come across a child in St’s situation to improve her situation. My focus has been on how the realisation of that aspiration has been marred by the decisions of senior management. I therefore agree with Mr McHale that his staff have delivered an excellent service to this child. This is despite the decisions that have been made by their senior management.

 

 

This isn’t social work bashing – this is manager bashing. Short of Mr McHale writing to the younger children to tell them that there was no such thing as Father Christmas, there was not much lower for the Judge’s opinion of him to go.  The overriding judicial impression I was left with was (to borrow from Mark Twain) that the moment had arrived for Mr McHale to leave this world and to declare to the Court which of the two possible destinations he was heading for, so that the Judge could make arrangements to head to the Other Place.

I don’t know Mr McHale, let us be charitable and say that this was one where his actions were out of character (and to be fair, it is legally tricky as to whether s20 technically applies here).  It is never fair to butcher someone based on one case alone, particularly a tricky one.

 

The LA, in the light of all this made the submission that the case should now come to a close and the Court bow out and let the LA get on with it.

 

The word on the tip of your tongue is ‘bold’  – that’s a ‘bold’ submission.

 

That doesn’t really go far enough – that’s a submission for which an advocate is entitled to have a stuntman for.

 

Do we think the Judge agreed with their Stuntman submission?

The Local Authority case, put with admirable clarity by Miss Grundy in her written submissions, is that now is the time for the court to bow out completely not only in relation to St but in relation to all of the children and that the proceedings are ready to be concluded. There are cases when that is entirely right and the court should take a focused and issue specific approach to dive in and dive out of children’s lives and not exercise a more surveying role. In this case I decline to do so. It seems to me necessary that the proceedings continue and the court will bow out when the court is assured that that contact is set to continue appropriately and that all of the necessary services are going in. I flagged up to the parties the possibility of a family assistance order at the final hearing. No party considered this to be a good idea. This court’s scrutiny is going to be upon all of the professionals involved in any event, whether they remain in via s.37 or merely as witnesses. I note that the Local Authority decline to accept a family assistance order as well.

I would very much hope that the Local Authority will consider what I have said in this judgment. It is to be transcribed and published. It seems to me right that the plight of children who are subject to both the Mental Health Act because they are ill and need to be detained for treatment and to the Children Act because they are likely to suffer significant harm attributable to being out of control or by reason of parental default is one that should be brought to the public attention.

 

 

 

 

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