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“You’re going to fight THAT?”

I have had on my mind recently the old-fashioned notion of Trial by Combat, where one could elect a champion to fight on your behalf, and if your champion won, then you would win your case. Trial by combat is no longer lawful in this country, despite the noble efforts of Mr Leon Humphreys, who sought to persuade Magistrates that rather than pay a £25 fine for a trivial motoring offence, he would instead do battle with a champion nominated by the DVLA.


But of course, our British legal system, given that it is adversarial, does have an element of trial by combat to it. Both sides select their champion (or advocate), they clash swords or rather words and at the end a victor is declared.

That raises a difficult philosophical issue about justice – when the Judge makes their decision are they setting aside the performance of the respective champions and just getting to the pure Truth of the case, or could the outcome stand or fall on the selection of the Champion? If one swapped over the briefs, might the outcome be different?

It seems that in a fair judicial system, it ought not to matter very much who speaks on your behalf – the Truth should out, and the Judge get to the bottom of what really happened. But very often in care proceedings we are trying to sum up years and years of the lives of several people and reduce them down to 350 pages, and then questions are asked about those pages over three or four days.  There must inevitably be a degree to which the Judge is guided by what it is they are shown by the advocates – what is drawn out and brought to life, and those aspects that are not dwindle in significance.  Of course, the Court is not a rubber stamp, and will have read into the case and picked up on details and issues that neither advocate touches on, which is why they are allowed to ask their own questions.


It is really difficult to tell how much of a judicial decision is that the Truth is there and is laid bare in a judgment (just as Pythagorus’ Theorum was true before he set it out and would remain true if he had never found it and someone else had), or whether the questions are more akin to those history essays that ask you to set out the causes of World War I and there’s a range of possible Truths, possible answers – some more vivid and likely than others.  Is the Truth that we find in judgments a Universal Truth, or a particular version of the Truth?


I had the pleasure, when I was training, to see a lot of advocacy – this was in the times when lawyers used to ‘sit behind counsel’ and watch the whole final hearing and take a note – that exposed me to a huge range of advocacy, and I can tell you, when you see someone really shine at it, it is a thing of beauty.  I have seen Silks get brain surgeons to eat out of the palms of their hand, seen confessions gently extracted from a witness who had no idea they were going anywhere near such a thing, heard questions asked that make everyone in the court room want to mouth, in the style of Dan Maskell, tennis commentator “Oh, I say”. I’ve also seen the flip side, when blind alleys were stumbled into, points not taken, the issues not grasped, witnesses pushing the advocate around.


It isn’t always even that there are good advocates and bad advocates (though there are such creatures) – sometimes it can be good days and bad days, sometimes even that Sir Ronald Rutt is a good match for a very forensic case with lots of fine detail and voluminous notes to pore over and draw the witness into, but not such a good match for a combative witness like Mr Albert Haddock.


Sometimes I have been on the wrong side of an opponent who really sang, and for whom the Court of Appeal’s delicious phrase “The purifying ordeal of cross-examination” was particularly apposite. It can be a bruising experience watching what appeared to be a good case on paper become merely confetti.


Those are some idle musings of mine, which serve chiefly as an excuse to crowbar in a photograph of the Red Viper of Dorne, who I think would have made rather a good barrister.


Oberyn Martell






You know what a pig IS, don’t you? If not, I’m afraid there is a great deal of tedious spadework ahead of us


Not much juicy law about this week, so a diversion to America, courtesy of Lowering the Bar.


This is an extract from some genuine cross-examination, which ends up being so good that the New York Times actually made a video re-enacting it  (by way of context, the person being cross-examined here has made use of a law allowing the State to charge 2 cents a page for PHOTOCOPYING to charge 2 cents a page for material copied onto a computer disc, which can be done in 5 seconds with the push of a single button, and is, some might say, rather a different action to the act of photocopying, so the plaintiff’s lawyer is trying to get the deponent to admit that he understands what the nature of photocopying IS, and the deponent (witness) is trying to avoid saying anything to that effect)


This is my favourite exchange


Plaintiffs’ Lawyer: During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?

Deponent’s Lawyer: Objection.

PL: Any photocopying machine?

Deponent: When you say “photocopying machine,” what do you mean?

PL: Let me be — let me make sure I understand your question. You don’t have an understanding of what a photocopying machine is?

D: No. I want to make sure that I answer your question correctly….When you say “photocopying machine,” what do you mean?

PL: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?

D: I just want to make sure I answer your question correctly.

PL: Well, we’ll find out. If you can say yes or no, I can do follow-ups, but it seems — if you really don’t know in an office setting what a photocopying machine is, I’d like the Ohio Supreme Court to hear you say so.

D: I just want to make sure I answer your question correctly.

DL: There’s different types of photocopiers, Dave.



D: I’m sorry. I didn’t know what that meant. I understand that there are photocopying machines, and there are different types of them just like –

PL: Are there any in the Recorder’s office?

D: — there are different cars. Some of them run under gas power, some of them under electric power, and I’m asking if you could help me out by explaining what you mean by “photocopying machines” –-

PL: That’s a great point.

D: — instead of trying to make me feel stupid.

PL: If you feel stupid, it’s not because I’m making you feel that way.

DL: Objection





optimistic litigation

You might, by now, have heard of Mr Purisma, an unfortunate fellow who got bitten by a dog on a bus, and sued as a result.  He included a variety of other grievances in his lawsuit, including that he was routinely overcharged for his coffee at an airport and that Chinese tourists took photographs of him.

What makes it newsworthy is the value he sets on his claim. Two thousand undecillion dollars.  If, like me, you are thinking that this is the sort of number that some six year old invented “A gabillion-zillion-million-bajillion” then you are wrong.  The amount, in dollars of his claim is $2,000,000,000, 000,000,000,000,000,000,000,000,000

I didn’t come across this claim on the legal blogs, though it has hit a few now (damn you, other people writing on something I’d hoped to write about), but on the uber geek site xkcd.  And I’ve been wanting to have a chance to plug xkcd for ages now, and this seemed like a good opportunity.


One thing that Randall Munro, the creator of xkcd, does every week, is take a ludicrously out there question and apply real life science and maths to it – in the past he has explained what would happen if a baseball pitcher could throw a ball at the speed of light (which is mind-boggling), whether you could make something take off and fly by firing sufficient machine guns down at the ground, how many people a T-Rex would have to eat a day to survive, and dozens of others.


On this one, Randall ignores whether the lawsuit is plausible and whether the quantum is reasonable, in favour of just working out if there is currently that much money in the world (no), and if there would ever be (no) and if it could ever be produced before all the stars in the universe go out (no), or whether if you melted down the world and sold it to aliens for scrap that would pay for the compensation (no) but he does this in a beautiful and stylish way that I can only commend to you all

By weight, the single most valuable thing that’s been bought and sold on an open market is probably the Treskilling Yellow postage stamp. There’s only one known copy of it, and in 2010 it sold for $2,300,000. That works out to about $30 billion per kilogram of stamps. If the Earth’s weight were entirely postage stamps, it would still not be enough to pay off Au Bon Pain’s potential debt.[7]


Culminating in working out that if the respondent hired the most expensive lawyer on earth [who charges apparently $1,800 per hour], and every single planet so far discovered in the universe was populated entirely by clones of that lawyer, and the respondent employed them ALL, the costs would still be dwarfed by the lawsuit, and it would be worth fighting the case.


My open submission to become Chief Football writer for the Telegraph



West Midlands in Rapture as Simon Gerrard lifts the Premiership Cup for Liverpool


After nine long years, the West Midlands was ready for a party and they certainly got one, as Liverpool clinched the Premiership Cup, causing all fans in the area to rejoice and sing at the top of their voices. Simon Gerrard, their captain, known as “Simey Gee”,  lifted the trophy aloft, saying that “This one is for all the Yam-Yams who have supported this club for so long”

Liverpool, owned by the Russian billionaire, Roman Abramovich, finally triumphed in the Premiership Cup, beating Newcastle 2-1 whilst their rivals West Ham succumbed to a 2-0 defeat to Manchester City.


How about it? I think I come up to the rigorous standards of accuracy, fact-checking and in-depth knowledge of my subject that we have come to expect.



[There are miscarriages of justice in family cases, there are bad social workers, there are mistakes made, there are people to fight for, there are wrongs to be remedied. I'll give two names that are in the public domain and where you can see from the judgments that mistakes were made and that families went through misery as a result - Alas Al-Wray and Musa.  But nobody is done any favours when the basic facts are misreported so badly]


I’ll borrow from Lucy Reed, on the code of conduct for journalists


The National Union of Journalists Code of Conduct says :

A journalist:

  1. At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed.
  2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair.
  3. Does her/his utmost to correct harmful inaccuracies.
  4. Differentiates between fact and opinion.
  5. Obtains material by honest, straightforward and open means, with the exception of investigations that are both overwhelmingly in the public interest and which involve evidence that cannot be obtained by straightforward means.
  6. Does nothing to intrude into anybody’s private life, grief or distress unless justified by overriding consideration of the public interest.
  7. Protects the identity of sources who supply information in confidence and material gathered in the course of her/his work.
  8. Resists threats or any other inducements to influence, distort or suppress information and takes no unfair personal advantage of information gained in the course of her/his duties before the information is public knowledge.
  9. Produces no material likely to lead to hatred or discrimination on the grounds of a person’s age, gender, race, colour, creed, legal status, disability, marital status, or sexual orientation.
  10. Does not by way of statement, voice or appearance endorse by advertisement any commercial product or service save for the promotion of her/his own work or of the medium by which she/he is employed.
  11. A journalist shall normally seek the consent of an appropriate adult when interviewing or photographing a child for a story about her/his welfare.
  12. Avoids plagiarism. 


[I've broken point 12 there...]


Perhaps Mr Booker and his editor honestly think that his reporting on the Italian C-section case, to take just one example, really follows the spirit of that code. Perhaps I missed the correction piece that would seem to be desirable under point 3 when the facts of the case emerged.

Presidential press conference


There’s quite a lot in here, and as we know, speeches and views and opinions seem to have a habit of making their way into judgments, so it might be an advance insight.


The one that has already made the news is the President suggesting that consideration be given to taking divorce (as in the dissolution of the marriage, not the financial issues) out of the hands of judges and giving it to Registrars. That one needs a post all on its own (probably tomorrow) – I tend to agree with quite a lot of what he says on this, and the need for proper remedies for people who are not married but have had long term relationships / periods of cohabitation.


Here are the other big talking points


1 . Not helpful to think about adversarial v inquisitorial, but as more and more cases involve litigants in person who would rather be represented, Judges are going to need to play a larger role in the conduct of proceedings

The President says that in cases where there are litigants in person, the Judges are going to have to be more inquisitorial in style, and that sitting Sphinx-like until judgment isn’t going to work. He doesn’t think we are likely to end up with a continental style inquisitorial system, but we are a long way removed from the traditional adversarial system already.

2. Doesn’t think that the cuts will adversely affect the reforms

In fact the thrust of what the President seems to be saying here are that the reforms are vital because of the cuts, and that drive towards efficiency, cost-effectiveness and reducing time taken before the Court will allow for the litigant in person cases, which he accepts take longer


3. Believes that there will be a tipping point for mediation, where when it is sold correctly as to the benefits, more and more people will want to take it up  [We are in an almost- crisis situation at the moment but once we get the message across it will be a very attractive option]

He was not keen on the idea of cost sanctions for failure to mediate or engage properly in mediation


4. Next stage of transparency will be greater access to court papers

As he rightly points out – if so much of a hearing is “Can I refer to to page B64, paragraph 6″ then a journalist sitting in Court is not able to get any real sense of what is happening, what is being referred to. He says that there are going to be proposals about this in the very near future.  He also indicates that because of the way that case numbers are coded, anyone who tries to work them out can quickly decipher that a Case Number refers to a Private Law case in Sunderland, as opposed to a Public Law case in Wolverhampton   (He is wrong about the code for Brighton being BH though – for some reason I have never fathomed, it is UQ)


5. He is aware of the tension between what the Government say about adoption and what the Courts say


For me, this was the most interesting question, and indeed answer. It is clear that on the one hand, the Courts are implementing a “nothing else will do” philosophy on adoption, and on the other the Government has a pro-adoption agenda and is measuring Local Authorities on performance and threatening to remove these functions from Councils who don’t meet what the Government have in mind. What the President says, in effect, and much more politely than my shorthand summary, is that Parliament make the statutes, not Governments, and that if Parliament disagree with how the Courts are interpreting statute, then Parliament will need to change the statute. He acknowledges the tension (explicitly referencing that the Government have talked about local councils need to get away from the idea that adoption is the last resort) and says that on the ground, for Directors of Children’s Services, “it must be slightly difficult to know exactly what they should be doing given that tension”    (something of an understatement)




I am starting to come across cases in which rather than a police notebook or statement, the Court now has the benefit of seeing the video-footage recorded by the police vest-camera of an incident. The officers have a camera fitted to their vest, and everything that they do in the course of the working day is recorded and available for later scrutiny.

No doubt this is very helpful in cases with Brazilian electricians, or where there is doubt about whether or not someone had a gun, or heaven forbid whether a Government Minister included a class-based insult when swearing at police officers.

The benefit for court proceedings is plain – rather than relying on a recollection of an event that may or may not be accurately remembered or may be coloured by other issues, what actually happened is there for the Court to see. It might back up what the prosecution is saying, it may back up what the defence is saying. I was tempted to say “The camera never lies”, but we’ve seen too many doctored photographs to believe that any more.

There are potentially other benefits, as well as the direct forensic one – chiefly about trust and relationship between the public and the police. There’s no value in the police stretching the truth, or behaving in an improper way towards a suspect if the camera footage is going to be disclosed and seen later.

So, is there merit in trialling these vest cameras (the most high-tech ones being about the size of a credit card or identity card) for social workers?

There’s not a lot of transparency online about the costs of these cameras, since they are being produced by commercial bodies who don’t want to stick their pricing up on line and give their competitors an edge, so that would be the major hurdle. But you can tell from the price of camcorders and how much cheaper and smaller they have gotten over the last five years that it wouldn’t necessarily be prohibitive.

The camera would be worn for every meeting with the family, every assessment session, every visit. The family would be entitled to request to see any of these, and to make use of any of them in Court. Equally, the Judge could see any footage of an incident where there is a dispute. Rather than having to choose between two competing stories, the Court can see for themselves what actually happened.  It cuts both ways – if a social worker is exagerrating about the home conditions or being provocative, difficult or patronising, that will get seen – on the other hand, the Court could see exactly what was said and exactly how the house looked on the day in question. Much better chance of getting to the truth.

And just as with the police, the knowledge that everything is being filmed might reduce the occasions on which professionals are heavy-handed or stretch the truth.  Which in turn might improve the relationship between professionals and families – everyone knows that the facts can’t get twisted or have words put in their mouth, because the truth is there to be watched and inspected.


Is it something that is worth a try? Is it the sort of thing that would make more of a difference to how families are treated than micro-management of forms and documents?


The counter arguments might be that being filmed might inhibit people or make them self-conscious giving a more stilted performance in assessments, that the footage might be misused or misfiled or get lost (accidentally or deliberately), that the footage might find its way online, that children might be shown it or come across it. Those are things which would need careful thought.




I have just read the latest scandal piece about the family justice system by Christoper Booker.  Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published.  [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn't any of those - so will keep an eye out]

As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.

Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.

Here is his story


Let’s break it down into the core allegations that are made


1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.


2. Mother removed him from foster care

3. Mother was sent to prison for removing him from foster care

4. Whilst in prison, she was assaulted by prison staff and crippled


5. That she was then deported to America


6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought


7. At a hearing in April, at which her McKenzie Friends “could not be present”,  Mrs Justice Simler decided that the case was entirely without merit  (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )


7a  That Mrs Justice Simler is “the latest recruit to the High Court team”   [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely.  EDIT  - it does appear that she became a High Court Judge in October 2013, so I stand corrected.]


8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000


9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.



I am fairly sure that points 6, 7 and 8 ARE true.  We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing).  You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.


Well, not quite.

The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible.  One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order.  It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad.   That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk


Here is the deal


If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.

The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it

In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.

You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case.  You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.


So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court.  Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.


[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that's probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]




It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012


There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.


My previous piece   .


Mr Booker’s previous column about this woman ]

Withdrawing care proceedings


Re J, A, M and X (Children) 2013

Cobb J gave a judgment in this case which would now be your go-to place to see the law on a Local Authority’s application to withdraw care proceedings.  [There's a potentially important bit at para 63 of the judgment, where the Judge gives a view as to whether an injury deliberately caused by a sibling could be capable of crossing the threshold even if the parents had done nothing wrong]

The long and the short of the case was that it involved a head injury to X, who was 18 months old. This head injury presented with subdural haematoma and retinal haemorrhages.  That, ten years ago, would have had shaking injury written all over it. The Courts and experts are a bit more cautious these days, but it is still a concerning set of injuries and the possibility of deliberate harm is one that is explored by the Court.

The parents explanation is that they were in an adjacent room, J (their 16 year old) was in a room with the other children, and M who was 3 1/2 had pushed X, who had fallen over.

The medical opinion:



  • In this case, the parties have been fortunate to garner the expertise of some of the finest medical experts currently available to the family courts. I have read their reports with care, and the transcript of the meeting at which they were able to share their views. There is some measure of professional consensus about the medical evidence, and I attempt to do no more than to distil some of the key aspects of their evidence as follows.





  • Mr. E, Consultant Ophthalmologist, has opined that, taken with the other findings in the case, the retinal haemorrhages provide strong evidence that X was subjected to a shaking injury. He describes him fulfilling the “characteristic profile” and refers to the triad of features which includes encephalopathy and subdural haemorrhage; he considers that unilateral retinal haemorrhage is not unusual in NAHI. He concludes that by reference to his expertise on ophthalmological features alone, the fall described cannot be considered a plausible explanation for the retinal findings. I remind myself that I do not consider one aspect of the medical evidence in isolation from other aspects.





  • Mr. R Consultant neurosurgeon, suggests that on current medical understanding a low level fall of the type described would not be expected to cause an acute subdural bleed and that developing a subdural haematoma from such a fall would therefore be a very unusual event. The account of X being pushed over and hitting his head could explain the acute subdural haematoma although it would be an unusual event in these circumstances. The appearances of the bleeding do not assist in determining the explanation, and can be explained by a single localised impact to the top of the left cerebral hemisphere. He opines that the accidental event described causing this haemorrhage is a possibility although it would be unusual. Another event involving greater force that has not been reported remains a possibility but this cannot be definitively stated on the appearance of the subdural haematoma alone.





  • Dr. SA, Consultant Paediatrician, reminded the Court that there are exceptions to the rules that generally short falls do not give rise to significant cranial or intracranial injury whereas large falls and severe impacts will do. He considers that X did not simply fall to the ground, he was pushed and although this was by a small child this will have increased his velocity and impact. He concludes that the injuries found are consistent with the fall and that this is consistent with an accidental event. The injuries are more likely due to the reported fall.





  • Dr. ST, Consultant Neuroradiologist, concluded that on imaging grounds alone he could not exclude shaking as a cause for the subdural bleeding. The inter-hemispheric component and the bleeding in the posterior fossa are somewhat unusual in the context of being secondary to head trauma. However, because of the unusual nature of the fall in his view it is possible to explain the imaging features as having occurred as a result of that event. He does not exclude the event as a reasonable possible cause.





  • The experts have met, and I have a transcript of their discussions; this reflects the expert view that the constellation of injuries was caused by the same event which occurred shortly before X’s collapse; that there are a whole series of atypical features in this case; that the experts cannot from their respective areas of expertise reasonably exclude any of the possibilities that were debated, and that it is a matter for the Court to “put all the pieces of the jigsaw together”.





  • A Schedule of Concurrence (of expert views) has been helpfully prepared by Mr Rothery arising from the meeting. The Local Authority relies upon this analysis and summary of the expert medical evidence. The document summarises the nature of the injuries; there is agreement that the injuries are a result of trauma on a single occasion, and more likely to be impact than shaking alone.





  • The doctors conclude (para.4.1) that it is not possible on the medical evidence alone to determine whether the injuries were accidental or non-accidental. The summary discloses that the experts considered a range of possible mechanisms which may account for X’s injuries (para.2.4). Paragraph 4.2 reads:




“the explanation given by J that X fell over having been pushed by M is a possible explanation of all Xs injuries“.

What that means is that medically speaking, the experts considered that the accidental explanation could account for the injuries. What of course they could not say, is whether this explanation happened. That would be ultimately a matter for the Judge.  The Local Authority COULD have pressed on with the finding of fact hearing, and asked the Judge to hear the evidence and reach a decision. They decided instead that they would accept that the injury had been caused accidentally by M pushing X over.

The application for leave to withdraw


  • The Local Authority, upon whom the burden of proof falls at this essentially adversarial stage of these proceedings, does not seek to prove that the injury sustained by X was non-accidental.



  • It takes as its starting point the unanimous expert medical opinion that the accident described by J “is a possible explanation of all X’s injuries“.



  • The Local Authority has then weighed into the reckoning what the parents and J have said about the incident. Ms Cross and Ms Hobson have rightly in my view formed the view that where the medical evidence is poised so evenly on the fulcrum of possibility, it is necessary critically to evaluate the other aspects of the case and, in particular, what it is that the parents and J say about the events which may tilt the balance. Only, say the Local Authority, where the forensic process could significantly damage the credibility of the parents or J would the Local Authority be able to contend that the balance tilted against this being an accident. But, Ms Cross continues, there is little in the relevant lay accounts which gives cause for such a conclusion



  • Even the inconsistencies in the accounts, such as they are, lend weight to (rather than detract from) the conclusion that an essentially honest account has been given: there has been sufficient consistency about the incident: It occurred when X was trying to negotiate the sofa; X was not confident or steady on his feet; M ran at him and collided with him; M pushed him over and he fell to the ground; X hit his head and it ‘bounced’; X reacted adversely and immediately, developing symptoms consistent with a seizure; J shouted for her mother; all the children were together in the room; the parents were in an adjacent room; J alerted the parents immediately, indicating her distress and concern for X; upon arriving at the scene the parents witnessed X in a state of collapse.



  • Moreover I note as context to the key events that:


(a) No-one gives any hint that there had been any stress or tension within the home immediately prior to the incident

(b) J has never shown any aggressive behaviour towards her younger siblings;

(c) There been no particular health or behavioural issues relating to the children


  • If I were to embark upon a fact-finding enquiry, it seems to me that I would probably need to reach a position in which I was satisfied that J had been able to maintain quite a sophisticated lie in inventing an account which coincided in some important respects with the expert medical opinion as to key elements of causation of the injuries. I would further need to satisfy myself that J was prepared to blame her little half-sister M for injuring X to protect herself, and that the younger children were able to maintain a consistent and impenetrable wall of silence in relation to a different type of event causing the injury. While I cannot form a concluded view on this point on the papers, the indicators point the other way: I have noted the comments in Ms LM’s report, and note the comments of J’s guardian who (in her recent Analysis document) describes her as a “lovely young person”.

There is an issue of relevance here – the existing case law is that if the Judge is satisfied that the threshold could not be crossed, they can deal with the Local Authority’s application to withdraw on that basis alone (the statutory test for making orders not being met, the proceedings ought to end), whereas if the Judge considers that the threshold COULD be crossed, the Judge then has to consider whether the withdrawal of the proceedings is in the children’s best interests

28.  The Local Authority submitted – per paragraph 44 to 46 of its skeleton argument – that as this is an application to withdraw proceedings at the pre-threshold stage (because it says, it does not believe that it can cross the threshold), then I would be required to “evaluate the application” by reference to that “fact alone” (i.e. that the threshold cannot be crossed), without engaging any consideration of welfare; it is said that my compass of enquiry on this application is accordingly is a narrow one.



Reliance for this proposition was placed on a decision of Hedley J in Redbridge London Borough Council v B C & A [2011] 2 FLR 117 in which he said (at para.9 of the judgment) that:



If the local authority could not prove the threshold criteria, then of course, their application would succeed without more as otherwise I would have no alternative but to dismiss the proceedings. If, however, the threshold could be established, then the application would really depend upon the court concluding under s 1(5) of the Children Act 1989 that no order was necessary; that is to say on the basis that withdrawal was consistent with the welfare needs of A – see London Borough of Southwark v B  [1993] 2 FLR 559 and WSCC v M, F, W, X, Y and Z [2010] EWHC 1914 (Fam), [2011] 1 FLR 188.”

(emphasis by underlining added for emphasis).

 In this case, as it is presented before me, I am not in fact being asked to conclude (and indeed I do not conclude) that the Local Authority could not on any view prove the threshold. Plainly on one or more than one construction of events, the threshold could be crossed. To fall into the category of case envisaged by Hedley J in para.9 of his judgment, wherein the court would have no alternative but to permit the withdrawal, it seems to me that the inability of the Local Authority to demonstrate facts to cross threshold ought to be obvious.



  • The Local Authority here invites me to adopt their likely construction of the evidence, and on that basis they invite me to say that they will not be likely to cross the threshold. They further maintain that it is not in the interests of the children concerned that an enquiry is embarked upon to establish whether that construction or another construction should be preferred.



  • In a case where there is argument whether the threshold could be crossed, I have to remind myself that answers to the questions relating to threshold may also inform the answer on welfare. The crossing of the ‘threshold’ is simply one part of a two-stage process (and the court has two questions to ask i.e. has the threshold been crossed? If so, what will be best for the child?) The same factual issues are often relevant to each question. Just because a hearing is split, does not mean that the evidence relevant to stage 1 may not be just as relevant to stage 2: “the finding of those facts is merely part of the whole process of trying the case. It is not a separate exercise” (see Baroness Hale in Re B (supra) at para.74).



  • After oral argument before me, all counsel agreed that this was not such an ‘obvious’ case that the Local Authority could not prove the threshold; it was acknowledged by all that on the evidence there were plainly significant difficulties in them achieving this.

{i.e it is POSSIBLE that the Judge could have heard all of the evidence and found the parents and J’s account of the accident implausible, and made the finding. Well, actually, it goes even further than that, because of paragraph 63, which I think might come up again}

  • The Local Authority has further maintained (para.47 and 48 of the Skeleton Argument) that at its highest, the threshold may not have been capable of being crossed even if I were to be satisfied that J injured X (i.e. non-accidentally). I respectfully disagree with the analysis of the law set out in these paragraphs of the skeleton argument. If I were to have found that X had sustained non-accidental injuries, these injuries would unquestioningly have represented ‘significant harm’, and that harm would have been “attributable to the care given to X” not being what it “would be reasonable to expect a parent to give him”. The fact that X was at the critical point being cared for by J does not mean that the threshold is not crossed. I do not consider that there are grounds for distinguishing the situation relating to X (as the injured child) from the situation relating to the parents (as opposed to the childminder) of the parents’ child in the Lancashire v B case in respect; and given that the mother/father and J would all form part of the family unit hereafter, there is no proper basis for considering the other children differently either.

You need to read that carefully – what the Judge is saying is that EVEN if the finding was that it had been J who harmed X (rather than the parents, or the 3 1/2 year old M) the threshold could have been crossed, the Local Authority were saying that it would not have been.

If you do care proceedings regularly, you will come across the explanation that the injuries were caused by a sibling very often, and I think that this paragraph offers a suggestion that if the injuries were caused deliberately rather than accidentally, threshold might still be crossed  – even though the parents had done nothing wrong.   (It isn’t unreasonable, to leave a 16 year old in charge of younger siblings for a short period whilst the parents are in an adjacent room – if it was, there would be an intolerable number of care proceedings)

I’m not sure how I feel about this – my gut feeling was that I agreed with the Local Authority and that I wouldn’t have been saying that threshold was met if the Judge had decided that J (16 year old sibling) had caused the injury and lied about it. But having mulled for a few days, I can see what the Judge is getting at – if  J had injured the infant deliberately and was still going to be a member of the household, then the risk of future injuries isn’t one that could sensibly be ignored.  My suspicion is that if a Judge were to make a finding in relation to threshold on that basis, we would be finding out what the Court of Appeal think.

That’s all something of an academic sidetrack, since there wasn’t evidence that anyone sought to rely on that J had done anything of the kind.

But, having decided that this was a case where threshold COULD have been made out, the Judge had to then consider the application to withdraw on welfare grounds.

  • Given that this case does not fall into the realms of what I call the ‘obvious case’ (where I would have no option but to give leave to withdraw), the question of whether or not a particular fact-finding exercise is to be conducted within care proceedings is a question which requires me to look at the whole application. In this respect I have been particularly guided by the judgment of McFarlane J as he then was in A County Council V DP, RS, BS (By The Children’s Guardian) [2005] EWHC 1593 (Fam) [2005] 2FLR 1031 . He set out (in rather different factual circumstances) the factors which should weigh in the evaluation of whether it was right for proceedings to be pursued (see [24]):


(a) the interests of the child (relevant not paramount);

(b) the time the investigation would take;

(c) the likely cost to public funds;

(d) the evidential result;

(e) the necessity of the investigation;

(f) the relevance of the potential result to the future care plans for the child;

(g) the impact of any fact finding process upon the other parties;

(h) the prospects of a fair trial on the issue;

(i) the justice of the case


(a) The interests of the child (relevant not paramount) I have to consider whether it is in the interests of the children that the application is pursued. There is, I can acknowledge, nothing in the material which actively supports the contention that it is in the interests of any of the children for the fact-finding hearing to go ahead; I can say with reasonable confidence that it be contrary to J’s interests for it to do so;
(b) The time the investigation would take This fact-finding hearing is listed for 12 days – 10 further court days from now. If the threshold were established, there would be likely to be a second stage hearing some way down the line IF I were to find that the threshold were crossed
(c) The likely cost to public funds The cost to public funds would be highly significant given the estimate for the length of the hearing (above) and the fact that the parties are rightly (given the issues involved) represented by leading and junior counsel
(d) The evidential result It is difficult to assess the evidential result were I to conduct a factual enquiry; I have attempted no more than a rough forecast on the information available, and cannot say with any confidence at all that the picture at the end of a long enquiry would be any clearer from what appears now.
The key components of the account of the incident have been maintained by the protagonists up to now, and are broadly consistent; I would need to be satisfied that there was a real chance of a clearer evidential outcome.
(e) The necessity of the investigation I am not convinced that the investigation is necessary, given that it appears to be the intention of the Local Authority to reconstitute this family sooner rather than later;
(f) The relevance of the potential result to the future care plans for the child; The enquiry is unlikely to have any effect on the future care plans for the child; in this respect the situation can be distinguished from the decision of McFarlane J in A County Council V DP, RS, BS (By The Children’s Guardian)
(g) The impact of any fact finding process upon the other parties I am particularly concerned about the impact of the fact finding process on J. I am aware that only J can provide a direct account of the alleged events. The accounts of the Mother and the Father are, necessarily, secondary, rehearsing what J told them of the event itself and describing only the aftermath directly. The pressure on her of the process would be not inconsiderable.
J’s ability to give a clear and coherent account of the events may be affected not only by her own limitations – such as they are – but also by the shock and panic associated by being in the vicinity of the events.
I have been told that J has already been advised that she may well not have to give evidence; whether that was sensible is a moot point given that this decision was not yet available, but I nonetheless note that she was described as “buoyant” to discover that she may well be spared the process of recounting her events to the court, however sympathetically we were to arrange that for her
(h) The prospects of a fair trial on the issue; I believe that a fair trial is possible; arrangements have been discussed and agreed for J to give evidence
(i) The justice of the case The justice of the case lies in reaching a swift, reliable, welfare-based conclusion for the children.




  • Having reviewed the material carefully, listened to the views of the parties, their submission as to outcome and their reasons, I have concluded that the Local Authority should indeed be given leave to withdraw the application for a care order.




  • I have paid close regard to the checklist of factors set out above. Those factors, many taken individually but certainly taken cumulatively, point firmly against a fact-finding enquiry.




  • I have applied an overall welfare test to my decision, and have satisfied myself that it is not in the interests of any of the children to subject the family, the parents and J in particular, to this enquiry. Such a process would be neither proportionate nor in the children’s interests, it is a course which no party wishes, and which the guardians on behalf of the children discourage me from embarking upon.





  • Where does that leave the allegations of Non Accidental Injury? And how does that leave the parties?





  • I can do no better than to apply the principles most clearly set out in the speech of Lord Hoffman in Re B [2008] UKHL 35, [2009] AC 11:



If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”


  • By reason of the withdrawal of the proceedings, the allegation of non-accidental injury now scores a zero.





  • It follows that the lives of this family should now proceed on the basis that the injuries to X were no more or less than a terrible, fluke, accident. There is not even room for a suspicion that the injuries were caused in any other way. The family, and the professionals around them, should proceed now on the basis that no-one (and I include in this of course M) is to blame for X’s injuries.





  • For the avoidance of doubt, I wish to add that the application for care order was entirely appropriately made in this case on the basis of (a) the presenting features of X at hospital in April 2012 when viewed against (b) the backcloth of concerns about this family, and (c) the medical opinions early expressed about the aetiology of the serious injuries. It is apparent from all that I have read that the social workers have worked conscientiously, not always in the easiest of circumstances, in the interests of the children. The court is, and the family should be, indebted to them for that.


Justices reasons

Arising from Pauffley J’s decision in Re NL, which set out that it was no longer permissable for Justices Facts and Reasons to be drafted by the parties, or any of the parties, in agreed or not opposed cases, some guidance has been published by the Justices Clerks society, endorsed by the President of the Family Division.


It is fairly short, but in a nutshell


Under no circumstances should any of the parties be involved in drafting the Reasons.

The Court should never ask any party to supply draft Reasons to be adapted

It is fine for parties to provide their own position statements setting out their case, including submissions on the legal principles and how they say that that facts of the case relate to those legal principles

It is fine for the Court to refer to those position statements and as appropriate facts may be adopted  (they give as an example “The factual background of this case is as set out in the Local Authority position statement dated…”)

Any contested issues must be identified and the reasons for the Court deciding on a particular course of action or order arising must be set out

The length and complexity of the reasons will depend on the circumstances of the case

The guidance confirms that this applies to private law as well as public law.

“In every case, even when the order is said to be agreed or where there is no active opposition, there is still a judicial task to perform. Justices must ensure that not only justice is done but also that it is seen to be done”


Taken into care for being too fat


The Daily Mirror ran an interesting piece this week, as a result of Freedom of Information queries revealing that over the last five years, 74 children have been taken into care across the country for being too obese.

It is quite a balanced piece and has some interesting views within it – it is neither a hatchet job on parents who let their children get fat, nor on busybody professionals who interfere, but tries to look at both sides of the equation. It is probably the best article in a mainstream newspaper on child protection that I’ve read in a long while – recognising that these are difficult issues, hard choices and that there is no simple right answer either way.

From a strictly legal standpoint, it is worth remembering that a child can’t be removed from a parents care  (other than for a very short period by the police) unless a Court is satisfied that the child is suffering or is likely to suffer significant harm. Being a bit overweight (even quite a bit overweight) isn’t going to be enough for that.  In fact, these numbers tell you that – given the number of media articles bemoaning how Britain’s children are out of shape and obese, that’s quite a small number over a five year period. [If the NHS stats are right, ten per cent of children are significantly overweight]

In order to get anywhere close to meeting the significant harm test, a child would have to be massively overweight AND there would need to be some medical evidence about the harm that this would be causing the child.   (Mere common sense assertions that a child of eleven being sixteen stone is harmful won’t do – you need a medical opinion as to the damage that this is causing their health, their joints, their heart, their ability to participate in ordinary childhood life)


Even if a child does reach that level of obesity, the Court would still be carefully balancing the two types of harm in this case – that physical and medical harm that the obesity is causing against the emotional harm and trauma of removing a child from parents.  (I think the Mirror article covers that very well).  The Court would want to be thinking about whether there is anything else that can be done – better education, a dietician, stern warnings, therapy, putting the child on a prescribed diet – those are all things that would usually be tried before contemplating making an order to remove a child.  It would very much be the last resort when anything else one could reasonably try hasn’t worked.

And of course, the removal into care isn’t a magic wand – it isn’t a magic solution that will solve the problem. For some of these overweight children, there’s an emotional or comfort component to their over-eating and it might be that being away from the parents makes them far more unhappy and far more likely to eat more. The article, and the statistics, can’t tell us how many of those children went home again after their time in care, or how many had their problems addressed / made worse.


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