RSS Feed

Category Archives: Uncategorized

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.

The Bundle-oh

A lawyer took a walk through a deep dark wood
A fox saw the lawyer and the lawyer looked good

Where are you going, tired little dude?
Come to my den, and I’ll have some food

It’s terribly kind of you, fox, but no
I’m going to Court with this Bundle-Oh

A Bundle-Oh? What’s a Bundle-Oh?

A Bundle-Oh? Why didn’t you know?
He has terrible jaws and a terrible spine
And if I don’t carry him, I will get fined

His dimensions are wrong, he won’t fit on the shelf
And if he flies at you, well its bad for your health

If he pins you down there’s no hope of escape
You can’t truss him up with a bit of pink tape

His innards are massive, to count them would take ages
Listing what he’d eaten would take pages and pages

So while carrying him is quite bad for my back
It’s better than facing a front on attack

And fox, if you thought, you’d best him in a scrap
Beware, because the Bundle-Oh is foolscap

Away the fox sped

Silly old fox, didn’t you know?
You can’t HAVE a foolscap Bundle-oh

Beware the Bundle-oh my son, the jaws that bite, the claws that catch

Beware the Bundle-oh my son, the jaws that bite, the claws that catch

A tale of One Telegraph – follow up

I said that I would look out for the transcript of the judgment that Mr Booker was reporting about

http://suesspiciousminds.com/2015/02/16/a-tale-of-two-telegraphs/

The bare facts that we knew were – His Honour Judge Jones, two boys, a bruise, and an older child, and Placement Orders being made.

This case here, ticks all of those boxes

Re A (a child) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B200.html

I don’t want to get stuck into the facts too much, because there’s no way to be SURE that it is the same case that Mr Booker was writing about. You may recall that the central complaint in Mr Booker’s piece was that the parents weren’t able to fight the case and were not allowed into Court.

From Re A, the Court say this:-

 

  1. The parties to the applications and their legal representations are as follows:
  • the Local Authority, X County Council brings both applications in respect of the children and are represented today by Miss Beattie;
  • the children’s mother L is represented today by Miss Erwood. The mother has been present during the course of today, but she like the father has decided not to remain within this courtroom this afternoon for the purposes of this judgment. That decision is perfectly understandable so far as the Court is concerned;
  • The children’s father is CC. He shares parental responsibility for the children. He is represented by Mr Blythin;
  • The children are represented by their Guardian Miss Siân Wilson who has been present today and is represented by their solicitor Miss Debbie Owens.

 

A parent deciding that they don’t want to come in and hear the judgment is not that uncommon, and is an utterly different thing to being told they aren’t allowed to come in.

It can’t be an easy thing to listen to, particularly where (as these parents did) they have decided not to fight the case and they know that the outcome is going to be something that will break their heart.

One of Mr Booker’s complaints is that the parents were told that there was no prospect of appeal. That would be right in this case, because the parents decided not to oppose the case. It would be an extremely unlikely scenario that a person can decide not to fight a case and then the same day have legal grounds to appeal the decision.

It is always difficult with a Mr Booker story to be sure when you actually have the judgment that matches up with his case, and in his defence, it could be that this is another case entirely.

There’s nothing improper about the judgment in Re A – it considers everything that needs to be looked at, it is not a rubber stamp, it gives proper regard to the evidence and the legal tests and it is as kind as a Judge can be in those difficult circumstances.

IF this is the case that Mr Booker complains of, there is absolutely nothing in it that warrants the level of complaint he was making.

They had legal representation, they were entitled to go into the Court, they were entitled to instruct their lawyers to fight the case. By the sounds of it, they were given advice that the chances of doing so successfully were very poor and they decided not to put themselves through that ordeal. Perhaps they regretted it almost immediately. Perhaps they feel in hindsight that they didn’t feel that they had a choice. Perhaps they wish that they had fought the case and that they will never know now what might have happened. But they had the choice to make, and they made that choice with legal advice.

Perhaps (and I really don’t want to besmirch these particular lawyers, it is more of a general complaint) lawyers don’t always make it completely clear enough to parents that the lawyer is there to advise them, but that the parent can refuse to take that advice. They can tell the lawyer to fight on, and the lawyer’s job then is to fearlessly represent that client without fear or favour.  You can tell your lawyer, thanks, but not thanks.

Unlike a boxing cornerman, your lawyer can’t throw in the towel on your behalf, even if they think you will take a horrible beating. Only you can throw the towel in.

[One can accept of course that someone can legitimately hold a view that adoption is wrong in all cases and that any case involving adoption is thus wrong and unfair. If that’s your view, then like Ian of Forced Adoption, you’re entitled to make complaint about all and any cases. But if you are instead arguing that in this particular case, the parents were robbed of a fair hearing, and denied due process, there’s nothing to support that assertion]

If it isn’t the same case (and he is able quite easily to establish the date of the final hearing and who was representing the parents to show otherwise) then we will have to wait and see for when the real case he was writing about shows up.

 

There ARE things that go wrong in family law, there are cases where parents are done great injustice (like the HH Judge Dodds case that Mr Booker also writes about) and it is a good thing that there are people to make those injustices known. It is only by dragging them into the light that things will get better.  But we do also have to be responsible in reporting and be sure that if we are shouting that there’s a wolf that what you are seeing is really a wolf.

 

Hope my legs don’t break

 

We’ve all had times when we have had a document to prepare – a skeleton that seems to grow in size and weight until it could only be the skeleton of a mammoth or terrible lizard, a position statement where your position makes no sense, a case summary where you feel like you are loading ammunition into other people’s guns for them, perhaps even a best man’s speech (hi Shah).

Having found this, I will try not to bitch about having a different document to prepare. This was a speech that William Safire was asked to write for President Nixon.  (I already like William Safire, because he argues that it is wrong to say that “Jim munched a hot dog” because you can’t munch anything that doesn’t make a crunching noise)

At the time, Buzz Aldrin and Neil Armstrong were on the moon and the world was watching. The third astronaut, the one with an unenviable job, was orbiting the moon thousands of miles above them. His name was Michael COLLINS (dumb error changed)

One of his jobs was that if the Eagle lander couldn’t take off again, he was to leave the other two astronauts on the moon and come home.  No glory, just an unspeakable thing to have to do. Leaving his colleagues to their certain death. This was a real genuine possibility – you simply couldn’t do a dry run of whether that lander could take off as expected, you just had to hope.

And President Nixon needed a speech, in case that happened, and the two men who were America’s great heroes had to be left up there on the moon. No prospect of rescue. They would have to starve, run out of air, or just take their helmets off and surrender. He asked William Safire to write the speech. It had to be a good one, obviously, because of the awful tragedy that would have occured. It would have to give praise to the astronauts, but also hope for the future. And it had to be a speech that the author, although he had put his heart and soul into it, had to hope would never, ever be used.

 

Here it is. I honestly think it hits the mark in every regard.  It emerged 30 years later, in a bunch of documents released about the Nixon administration. Heaven knows, there probably weren’t a lot of documents from the Nixon administration that could lift up your soul and improve your view of human endeavour, but this is one.

 

Fate has ordained that the men who went to the moon to explore in peace will stay on the moon to rest in peace.

These brave men, Neil Armstrong and Edwin Aldrin, know that there is no hope for their recovery. But they also know that there is hope for mankind in their sacrifice.

These two men are laying down their lives in mankind’s most noble goal: the search for truth and understanding.

They will be mourned by their families and friends; they will be mourned by their nation; they will be mourned by the people of the world; they will be mourned by a Mother Earth that dared send two of her sons into the unknown.

In their exploration, they stirred the people of the world to feel as one; in their sacrifice, they bind more tightly the brotherhood of man.

In ancient days, men looked at stars and saw their heroes in the constellations. In modern times, we do much the same, but our heroes are epic men of flesh and blood.

Others will follow, and surely find their way home. Man’s search will not be denied. But these men were the first, and they will remain the foremost in our hearts.

For every human being who looks up at the moon in the nights to come will know that there is some corner of another world that is forever mankind.

 

 

(I had not been aware of this until I saw the xkcd cartoon today, but I liked it sufficiently to want to share it with all of you. )

 

 

Pannick attack

I know some of my readers are not in the Chris Grayling fan club  (which is a shame, because you get a lovely badge and a code book that allows you to translate what he’s saying into something that resembles common sense   – hint, you just say the opposite of what he’s saying)

 

so you might enjoy Lord Pannick tearing him a new one, and giving everyone a route map to crush the new judicial review legislation into oblivion in the future

 

Lord Pannick (CB): My Lords, I am very pleased that the Government have given way on the issue of principle in Motion B and have indicated that the identity of those contributing up to £1,500 funding for a judicial review will not need to be disclosed. The Minister said that our earlier debates on these issues had been highly intelligent. Without, I hope, debasing the currency, I want to make some observations.

The issue of principle is that the courts will now retain a power to hear a judicial review even if it is said that the alleged defect would not have made a difference in the individual’s case. I would have preferred the concession to be drafted in more generous language than an exceptional public interest, but concession it is. As the Lord Chancellor said in the House of Commons on 13 January at col. 811, and as the Minister confirmed this afternoon, it will be for the judges to decide how and when that test should apply. Indeed it will.

In applying the criterion, I am sure that the courts will have very much in mind Mr Grayling’s explanation of the purpose of the clause. He said that it is designed to prevent judicial reviews being heard when they are,

“based on relatively minor procedural defects in a process of consultation … That is what these proposals are all about”.—[

Official Report

, Commons, 13/1/15; col. 812.]

I am confident that the courts will have careful regard to those explanations by the Lord Chancellor and that if the judicial review is not concerned with minor procedural defects but with allegations of systematic or deliberate wrongdoing, or errors of law in the interpretation of statutes which have a general effect, the discretion will be exercised so that the case is heard in the traditional way, as it should be.

21 Jan 2015 : Column 1345

In applying the clause, I would also expect the courts to pay close regard to what the noble and learned Lord, Lord Woolf, then Lord Chief Justice, who I am delighted to see in his place today, said in R v Offen, 2001, 1 Weekly Law Reports 253. In the Court of Appeal, the noble and learned Lord was considering Section 2 of the Crime (Sentences) Act 1997, which requires courts to impose an automatic life sentence on a person convicted of a second serious crime,

“unless the court is of the opinion that there are exceptional circumstances”.

At paragraph 79 of his judgment, Lord Woolf said that the meaning of “exceptional” depended on the statutory purpose, and where the statutory mischief did not exist, the case was indeed exceptional.

Applying that approach, as I am sure that the courts will do in the present context, the judges will be able to say—and I hope that they will—that the statutory purpose here is the very limited one identified by Mr Grayling of striking out judicial reviews which raised what he describes as “relatively minor procedural defects”.

Other cases, particularly those raising allegations of substantial errors of law or of systematic wrongdoing are outside the legislative aim and are therefore, on the approach of the noble and learned Lord, Lord Woolf, exceptional. They can be heard in the normal way. For those reasons, I am confident that we have arrived at a tolerable result at the end of this saga.

We have arrived at a sensible solution because, and only because, this House was prepared twice to disagree with the House of Commons. It should be noted that the concern about Mr Grayling’s proposals was expressed across this House. My amendments were supported by a very large majority of Cross Benchers who voted; they were signed by the noble and learned Lord, Lord Woolf. The amendments were supported by the Labour Benches, led on this occasion by the noble Lord, Lord Beecham, with his customary wit and fire; he signed the original amendments. There was a very substantial rebellion in support of retaining judicial discretion from the Liberal Democrat Benches; the noble Lord, Lord Carlile of Berriew, also signed the original amendments. Also of importance on the Floor of the House and behind the scenes, there was substantial support from noble Lords on the Conservative Benches who are wise and experienced, and respectful of the value of the rule of law, with some forceful speeches in support of retaining judicial discretion, in particular from the noble Lord, Lord Deben. I am very grateful for all that support.

I express particular thanks to the Minister, the noble Lord, Lord Faulks, who has assisted the House by the force and clarity—indeed, the good humour—of his advocacy as the acceptable face of the Lord Chancellor’s department at all stages of the Bill. I know that he has worked tirelessly and successfully behind the scenes to arrive at a compromise which can be agreed by the Lord Chancellor and by noble Lords concerned about this clause. That is a remarkable achievement.

21 Jan 2015 : Column 1346

I should add one further observation and I do so with regret, but it needs to be said. I regret that on 13 January, when the House of Commons considered this matter for the final time, a Lord Chancellor again expressed comments that display an astonishing lack of understanding about the role of judicial review—one of the cornerstones of the rule of law. Judicial review does not, as Mr Grayling complained at col. 819, involve public bodies being “blackmailed”. He also suggested,

“severe doubts about whether secondary legislation should be subject to judicial review”.

These doubts appear to have no basis whatever other than the fact that the courts have, on a number of occasions in the last year, held that regulations made by the Lord Chancellor were outside the scope of his statutory powers.

Furthermore, judicial review is not, as the Lord Chancellor again suggested,

“now overtly used by campaign groups and third parties to seek to disrupt the process of government”.—[

Official Report

, Commons, 13/1/15; cols. 819-20.]

Such comments make no sensible contribution to the debate. They demean the office of Lord Chancellor because they disrespect and undermine the vital role of judicial review in ensuring that the business of government is conducted lawfully.

However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament. The discipline of the law plays a vital role in promoting the high standards of administration in this country that we are in danger of taking for granted. It helps to concentrate—and rightly so—the mind of a Minister or civil servant taking a decision whose legality he or she will be answerable for in public before an independent judge.

4.45 pm

Your Lordships’ Constitution Committee said recently, in its excellent report on the office of Lord Chancellor, that the Lord Chancellor should have,

“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.

Every time this Lord Chancellor addresses judicial review, he contradicts that essential guidance. I am very pleased that this House has performed its role in requiring the House of Commons and the Lord Chancellor to think again, and in securing acceptable compromises that will enable judicial review to continue to perform its valuable and essential functions.

 

If you want to see the Hansard debate (the rest of it is not quite so amazing as this, which actually made me want to stand on my desk and say “captain, my captain”) it is here

 

http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/150121-0001.htm#15012189000542

 

Judicial review is a thorn in my side, as it is for anyone who works for a public body – there is little that ruins your month more than getting a judicial review claim letter, it is a miserable and painful experience. But that pain is part of the price you pay for having a State that can be properly held to account for behaving unreasonable, irrationally or unfairly in its dealings with people.  Many people like me learn to tolerate and even love the thorn, and its a shame that our Lord Chancellor can’t see it that way.

But then, if you can’t grasp that your actual role is to be a Check and Balance, you might not understand the importance of Checks and Balances.

Objection to gay adopters

This is an interesting news item from PinkNews  (rather than Pink Tape for once)

Allowing same sex couples to adopt was highly controversial and politicised – almost the entire Parliamentary debate about the 2002 Adoption and Children Act was taken up by this sole issue. We have even had a Children’s Minister within this Parliament who is staunchly opposed to it. But it has been law now for 13 years and same sex couples can legally adopt.

This news item relates to a Magistrate hearing a set of care proceedings, and remarking to his colleagues in the retiring room that he would prefer the child to go back to mum and dad than go to a gay adopter.

[Of course, any Magistrate hearing a family case ought to prefer that a child live with birth parents if possible, rather than adopters, but the sexuality of the adopters shouldn’t really be a factor]

The Magistrate was suspended and sent on various awareness courses – I think with mixed success, given what he has to say about the situation now

There is tremendous pressure to keep quiet and go along with what is seen to be politically correct.

“Everyone else seems to be allowed to stand up for their beliefs except for Christians.

“I think there is something about a man, a woman and a baby, that it’s natural and therefore the others are not. That is the comment that I made.

“Therefore, since my task as a magistrate is to do the best for the child, my feeling was, quite reasonably, that a man and a woman would be better.”

 

[Also the fact that he is getting advice from an anti-gay pressure group suggest to me that maybe his diversity training to re-educate him hasn’t completely worked]

http://www.pinknews.co.uk/2015/01/18/family-court-magistrate-suspended-after-objecting-to-gay-parents/

 

It clearly isn’t right for someone with such views to sit on a family case where the issue arises – but is it okay for him to do other cases but recuse himself from any case that involves same sex adopters, or indeed parents?  Or do attitudes of this kind end up colouring your approach on other matters?

For example, might someone with this sort of belief system also take an overly harsh view of a mother who has had an abortion, if the Magistrate holds the view that abortion (though legal) is morally wrong?

It will not be a massive surprise to readers that the comments section on this piece in Pink News reads rather differently to the comments section on the same basic story in the Mail.

I’ve never been in a position of having to give a judgment, and am never likely to be – though if by some clerical error I find myself in the Supreme Court I’m going to choose to be called Lord Vader. I imagine that you must bring something of yourself to the process – Judges aren’t robots – they have human experiences and thoughts of their own. The key is to be able to identify for yourself if you are putting too much weight on feelings rather than facts and evidence and legal principles.

Disney Character Rights Blog

There have been a lot of decisions recently by the Disney Court of Character Rights, sitting in Never-Never Land. Here is a round-up

Simba v Scar

In this case, Simba brought a case for breach of article 6, claiming that he was not given a fair trial against allegations of murdering his father Mustafa and that his uncle Scar in effect banished him from the Kingdom, thereafter seizing the throne.

The Court held that Scar was not in breach of Article 6, which does stipulate that in Act One, the antagonist is entitled to pass judgment and sentence on the protagonist on fairly superficial or even fabricated evidence and that the general population will go along with this PROVIDED that in Act Three there is the opportunity for redemption and forgiveness. The Court were persuaded by Scar’s evidence that prior to the death of King Mustafa, the Applicant Simba had been heard jauntily singing a song to the effect that he just couldn’t wait to be King (this being prima facie evidence of his desire for his father to die)

Fundamentally the Court felt that bringing this claim in Act One was premature and that Simba in the spirit of the Disney Character Rights Act ought to wait until Act Three to see if the injustice is remedied.

The Court found that Scar had given every reasonable opportunity for an Act Three turnaround – he had adopted a suspicious name (Scar), he had a suspicious British accent (see also Mowgli v Shere Khan) and he had properly followed the principles that Evil Antagonists Should Be Bad Rulers in somehow bringing hunger and misery to a previously thriving and colourful kingdom in a remarkably short period of time.

They did however feel that Scar’s actions in allocating two hyenas Rozencrantz and Guildenstern to be Simba’s comedy sidekicks, and the choice of song “Hasa Diga Ebowai” to be in breach of all regulation and guidance on inspirational comedy sidekicks (see also the Court’s previous decision in Ariel, where the antagonist’s choice of a rotting alcoholic squid for a comedy sidekick for the protagonist was quashed and replaced with a cheerful upbeat crab)

The Court therefore ordered that two more suitable comedy sidekicks be provided and they recommended that the song be more upbeat, suggesting “Hakuna Mutada”, which they explain means no worries for the rest of your days.

Advocates are asked to take note of the Court’s remarks in the judgment that “a little bit of Elton John may be considered acceptable, but two hours of it is a bit much”

Prince Hans of the Southern Isles v Anna

Prince Hans was claiming breach of Article 7, “Right of Princes to marry Princesses” in relation to Princess Anna’s decision to break off their engagement and marry Kristoff, a commoner ice-farmer instead.

The Court held that although Article 7 has widespread applicability, it was wrong for Prince Hans to assert that it gave him the right to marry a specific and identified princess rather than just a generic right that he would marry A princess.

In relation to the claim that Princess Anna marrying a commoner would inexorably lead to other Princesses marrying people who were not princes and thus lead to it being impossible for Article 7 to be satisfied, the Court felt that this had some force, but cited as precedent earlier decisions of the Disney Court of Character Rights in relation to Characters falling in love with people from a different social circle

[Lady and Tramp – in which the re-enactment of the spaghetti-eating sequence caused one Judge to state in his judgment that “It nearly broke my heart” and the later case of Thomas O’Malley (The Alley Cat) and his marriage to an cat who was so posh that she wore a necklace. ]

They determined that the inherent nature of Princesses to want to marry Princes was so strong that an occasional deviation such as this would not set a precedent. (One minority judgment held that once Kristoff married the Princess he would become a Prince anyway, thus satisfying Article 7)

The Court further held that in relation to Princess Anna breaking off the engagement to Prince Hans, his failure to be her One True Love and kiss her to break a curse was a material breach of his One True Love article 9 duties towards her, compounded by his later attempt to murder her, and her sister. Anna was therefore entitled to terminate the engagement.

Additionally, as the engagement had never been approved by the defacto Queen, Elsa, it was questionable whether there was in law, an engagement to break.

The Court determined that Prince Hans “had had it coming” and declined to give him the relief that he had sought. In short, they concluded that he should let it go. [The same minority judgment opined that “Princess Anna, is indisputably hot, but it is plain that she is also high-maintenance and pretty tiring and Hans might be best to consider it a lucky escape. I myself had had enough of her after about ten minutes”]

Mirror Mirror v Disney Court of Character Rights

This is satellite litigation arising from Snow White v Wicked Queen, where Snow White established that administration of a poisoned apple leading her to fall asleep was a breach of her article 5 right to liberty. (Who can ever forget Lady Hale’s moving song “A gilded cage is still a cage”? )

Within that, evidence was heard from the Wicked Queen’s mirror, particularly as to motivation and intent. The mirror was only able to answer questions that were put to it in rhyming couplets (the first of which should be related to the mirror’s geographical location)

That led to questions being put to the witness such as “Mirror Mirror on a kite – Did the Queen intend to detain Snow White?” and “Mirror Mirror on the quilty – do you say the Queen is guilty?” and from those representing the Wicked Queen – “Mirror Mirror resting on bacon – could you perhaps have been mistaken?” and “Mirror Mirror in a bath of acid – wouldn’t you say the Queen’s overall nature was placid?”

For such questions, the mirror was hoisted up on a kite, or laid on a quilt, or in the worst example, put in a bath of acid for the duration of the question.

The Mirror claimed that this amounted to inhuman and degrading treatment in breach of Article 3. Sadly, the Court were unable to explore this claim properly without the Mirror being hoisted up onto a kite or such again, with the very first question proposed

Mirror Mirror down the drain – how do you establish your claim” being in itself potentially a breach of article 3

The Court settled this claim by writing the Mirror a substantial cheque and asking it to go away.

 

Sleepy v  Doc and the Six men wearing shoes on their knees band

 

Litigation over the royalty rights to the original songs created by the Seven Dwarves  (Hi Ho, Hi Ho being the major hit of the original band) rages on. Of the original line-up, only Doc is left in the band, and he claims that he wrote all the original material and is entitled to perform it with the Seven Dwarves tribute band. As readers will know, Dopey signed away his rights for some magic beans, Sneezy is in his fifth year of rehab, Grumpy is now in a death-metal band, Happy proclaims himself content with the situation, and Bashful was too publicity shy to enter the litigation, leaving only Sleepy to litigate. Progress has been slow, due in part to narcolepsy in the witness box.

 

Buzz Lightyear v Carbolic Smoke Ball Company

Over in Pixar litigation, this case continues into its seventh year, with the Court hearing from expert witnesses as to whether “To Infinity and Beyond” was a contractual obligation to which Mr Lightyear could be forced to meet or rather a puff of advertising. Mr Potato-head remains in custody, having taken the stand as a character witness for Mr Lightyear and then having appeared again subsequently using facial pieces stolen from Mrs Potato-head to give evidence whilst pretending to be her.

Mr Lightyear’s request to call Andy, his owner, as a character witness was refused, on the basis of the application of the Uncanny Valley principle (in short that the real people in Pixar just give everyone the creeps because they just don’t look right)

 

 

In other news

The big money divorce of Perdita v Pongo has reached a conclusion. There was considerable consternation in Court when Perdita revealed that Pongo had been pressurising her into starting a second litter. The Puppy Maintenance payments ordered by the Court are believed to be the biggest on record, and the schedule of Puppy Arrangement Orders setting out when Pongo would spend time with each puppy ran to seven lever arch files.

Baloo’s cookery programme has been taken off air after several claims for food-poisoning due to viewers following his advice to “take a glance at the fancy ants, and maybe try a few” were settled out of Court. There are also allegations that Baloo had been moon-lighting as Little John, and his showbiz career appears to be in tatters.

The lower Courts have confirmed that in Backtrack v Mowgli that when King Louis stated baldy “Oh, Shooby-Doo, Nothing Else Will do –ooh-ooh” he had never intended to mean that literally nothing else will do. Nor did he literally want to walk like you, or talk like you. It’s plain to see, that someone like Louis, can learn to be, like someone like you.

[And I’m sure that you are now humming I wanna be a man, mancub, and stroll right into town – so here it is for you. ]

 

 

If you don’t happen to read Adam Wagner’s UK Human Rights blog which inspired this pastiche, I’ll recommend it to you. It has a much broader focus than this blog, and you can usually find something very thought-provoking there – whether it be what should be done with King Richard II’s bones, whether people should have the right to die with dignity or where the limits of religious conscientious objection to abortions stretch in relation to Catholic midwives – and today, why Strasbourg was chosen as the correct venue for the European Court of Human Rights – it is nothing to do with geese, apparently.

It is immensely useful when the Press are having one of their periodical fits of morality, and you want to find out a bit more about what’s behind the story.

http://ukhumanrightsblog.com/

Follow

Get every new post delivered to your Inbox.

Join 3,041 other followers