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An unmusical Mozart – a patient’s right to say no to surgery


The Court of Protection dealt with a challenging case in Wye Valley NHS Trust v B 2015. The case was decided by Mr Justice Peter Jackson, and as ever he brings analysis, kindness and humanity to bear on a very difficult issue in the Court of Protection.


Here a man who clearly lacked capacity to make a fully informed decision, had expressed extreme hostility towards having an operation to amputate his foot. The medical professionals were clear that if he did not have his foot amputated, that the infection in it would spread and eventually kill him.


The Court had to decide whether it was in the man’s best interests to have the operation against his will or whether it was in his interests to respect his autonomy and wishes even though it would have adverse consequences.

A person who has capacity to understand the medical advice and risks and consequences would be able to say no to surgery in any event. What the Judge had to do here was consider what weight to give to the man’s wishes and the context of those wishes being expressed by a person who did not have the capacity to fully weigh up the pros and cons.


  1. Where a patient lacks capacity it is accordingly of great importance to give proper weight to his wishes and feelings and to his beliefs and values. On behalf of the Trust in this case, Mr Sachdeva QC submitted that the views expressed by a person lacking capacity were in principle entitled to less weight than those of a person with capacity. This is in my view true only to the limited extent that the views of a capacitous person are by definition decisive in relation to any treatment that is being offered to him so that the question of best interests does not arise. However, once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.
  2. This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an “off-switch” for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view.
  3. In this case, the Trust and the Official Solicitor consider that a person with full capacity could quite reasonably decide not to undergo the amputation that is being recommended to Mr B, having understood and given full thought to the risks and benefits involved. However, the effect of their submissions is that because Mr B himself cannot balance up these matters in a rational way, his wishes and feelings are outweighed by the presumption in favour of life. It is, I think, important to ensure that people with a disability are not – by the very fact of their disability – deprived of the range of reasonable outcomes that are available to others. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront that it would be to others who are more fortunate.
  4. In some cases, of which this is an example, the wishes and feelings, beliefs and values of a person with a mental illness can be of such long standing that they are an inextricable part of the person that he is. In this situation, I do not find it helpful to see the person as if he were a person in good health who has been afflicted by illness. It is more real and more respectful to recognise him for who he is: a person with his own intrinsic beliefs and values. It is no more meaningful to think of Mr B without his illnesses and idiosyncratic beliefs than it is to speak of an unmusical Mozart.
  5. Further, people with Mr B’s mental illness not uncommonly have what are described by others as “religious delusions”. As appears below, he describes hearing angelic voices that tell him whether or not to take his medication. Delusions arising from mental illness may rightly lead to a person’s wishes and feelings being given less weight where that is appropriate. However, this cannot be the automatic consequence of the wishes and feelings having a religious component. Mr B’s religious sentiments are extremely important to him, even though he does not follow an established religion. Although the point does not arise for determination in this case, I approach matters on the basis that his Article 9 right to freedom of thought and religion is no less engaged than it would be for any other devout person.
  6. This is another manifestation of the principle that the beliefs and values of a person lacking capacity should not be routinely undervalued. Religious belief has been described as a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science: R (Hodkin and another) v Registrar General of Births, Deaths and Marriages [2014] AC 610 at [57]. Religious beliefs are based on faith, not reason, and some can strongly influence the believer’s attitude to health and medical treatment without in any way suggesting a lack of mental capacity. Examples include belief in miraculous healing or objections to blood transfusions. There may be a clear conceptual difference between a capable 20-year-old who refuses a blood transfusion and an incapable elderly man with schizophrenia who opposes an amputation, but while the religiously-based wishes and feelings of the former must always prevail, it cannot be right that the religiously-based wishes and feelings of the latter must always be overruled. That would not be a proper application of the best interests principle.
  7. Having commented on the process of evaluating wishes and feelings, I refer to the Law Commission’s current consultation paper No. 222: Mental Capacity and Deprivation of Liberty. It proposes [Proposal 12.2] that s.4 of the Act might be amended so that an incapacitated person’s wishes and feelings should be assumed to be determinative of his best interests unless there is good reason do depart from the assumption. It is said [12.42] that there is insufficient certainty about the weight to be given to a person’s wishes and feelings and that prioritising them would reflect to some degree the approach of the United Nations Convention on the Rights of Persons with Disabilities.
  8. In the above discussion, I have identified some of the circumstances in which the wishes and feelings of incapacitated individuals might be unjustifiably undervalued. However, my respectful view is that the Law Commission proposal would not lead to greater certainty, but to a debate about whether there was or was not “good reason” for a departure from the assumption. To elevate one important factor at the expense of others would certainly not have helped the parties, nor the court, in the present case. All that is needed to protect the rights of the individual is to properly apply the Act as it stands.


For my part, I think that the proposal by the Law Commission would be a beneficial addition for dealing with these cases, putting a rebuttable presumption that a person’s expressed wishes should be followed unless there are strong reasons for the contrary. Whilst many Court of Protection Judges (including this one) have a very healthy respect for autonomy and the wishes of the patient, some still tend to veer towards the wrapping P in cotton wool and the patrician approach.


Lastly, I refer to the principle at s. 4(4) that so far as is reasonably practicable, the person must be permitted and encouraged to participate as fully as possible in any decision affecting him. In this case, given the momentous consequences of the decision either way, I did not feel able to reach a conclusion without meeting Mr B myself. There were two excellent recent reports of discussions with him, but there is no substitute for a face-to-face meeting where the patient would like it to happen. The advantages can be considerable, and proved so in this case. In the first place, I obtained a deeper understanding of Mr B’s personality and view of the world, supplementing and illuminating the earlier reports. Secondly, Mr B seemed glad to have the opportunity to get his point of view across. To whatever small degree, the meeting may have helped him to understand something of the process and to make sense of whatever decision was then made. Thirdly, the nurses were pleased that Mr B was going to have the fullest opportunity to get his point across. A case like this is difficult for the nursing staff in particular and I hope that the fact that Mr B has been as fully involved as possible will make it easier for them to care for him at what will undoubtedly be a difficult time.


[that noise you can hear is me applauding]


The Judge sets out the pros and cons of the best interests decision very well – the judgment is short, and well worth a read for those sections.

  1. Conclusion
  2. Having considered all of the evidence and the parties’ submissions, I have reached the clear conclusion that an enforced amputation would not be in Mr B’s best interests.
  3. Mr B has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century. He is a sociable man who has experienced repeated losses so that he has become isolated. He has no next of kin. No one has ever visited him in hospital and no one ever will. Yet he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his “fierce independence”, and it is this that is now, as he sees it, under attack.
  4. Mr B is on any view in the later stages of his life. His fortitude in the face of death, however he has come by it, would be the envy of many people in better mental health. He has gained the respect of those who are currently nursing him.
  5. I am quite sure that it would not be in Mr B’s best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone’s behalf and just fighting them. Enforcing treatment in this case would surely be the latter.
  6. The application, which was rightly brought, is accordingly dismissed.
  7. I conclude by thanking the parties and witnesses for the quality of their contributions and by paying tribute to the high standard of care and treatment that Mr B is now receiving.


Bristol legal event – bring gum

Readers in the West Country  (I am striving to avoid any Wurzels references, and immediately failing) might be interested in this event.  It is going to be attended by His Honour Judge Rowdy Roddy Piper  (subs, please correct), hence the suggestion to bring gum.


I don’t know all of the speakers here, but the ones that I do know of, I think very highly of, so if you are in that neck of the woods, well worth checking out.



What does the Family Court do? … This is your chance to find out.

Join His Honour Judge Stephen Wildblood QC, designated family judge for the Bristol area, and a panel of legal experts to hear about how the Family Court works, what to expect and where to get helpful information.

Find out what the Family Court does, what it’s like going to Court and what to expect in terms of: paper work, giving evidence and the hearing process in general.

Get information about Legal Aid, the support available when you attend Court by yourself and alternatives to the Court process.

This will be an opportunity for you to come to the court building and ask questions about the practice of the Family Court.*

Who should attend?

  • Anyone interested in finding out more about the Family Court
  • All professionals in the field of family law
  • Journalists
  • Students

Other materials covered

  • What are Private Law Orders and upon what basis are they decided?
  • Public Law Orders (Supervision, Care, Placement and other Orders)
  • Civil Partnership and Divorcing Couples
  • Who decides on Cases?
  • What happens after a case?

The panel

Numbers are limited so book as soon as possible to avoid disappointment.

*Please note that individual cases will not be discussed.

Kent Child Care Conference 12th October


A quick plug for Kent’s Child Care Conference – they’ve been running one of the best Community Care Conferences around for a number of years now, and they are doing one on Children Act this year.  It is open to lawyers, social workers and Guardians.  It has a really great line up – Isabelle Trowler, Tina Cook QC, Lorna Meyer QC,  Mrs Justice Theis and the excellent and inspiring Lucy Reed from Pink Tape.  The Riaz and beyond talk is particularly tempting, given just how much of a profile CSE now has and just how hard a problem it can be to solve.  And the “No Recourse to public funds” session in the afternoon is becoming even more important with the likely shift in Government policy about Syria and the numbers of people who will be coming into the UK.

I think that you can email  about tickets if you are interested.  {Don’t email me, I have no tickets!}


Child Care Conference


Sessions House, County Hall, Maidstone

Monday 12th October 2015

5.25 hours CPD


09:15 – 09:45 Registration
09:45 – 10:00 Welcome from Ben Watts, Head of Law – Litigation and Social Welfare
10:00 – 10:45 Transparency – Clear as Mud?

Lucy Reed, St John’s Chambers and author of Pink Tape Family Law blog

10:45 – 11:30 Riaz and Beyond

Lorna Meyer QC and Stefano Nuvoloni, No5 Chambers

11:30 – 11:45 Coffee Break
11:45 – 12:30 The Future of Children’s Social Work

Isabelle Trowler, Chief Social Worker

12:30 – 13:00 A View from the Bench

HHJ Scarratt


13:00 – 13:45 Lunch
13:45 – 14:45 Break Out Sessions
14:45 – 15:00 Coffee Break
15:00 – 15:45 The Dark Corners of Non-Accidental Injury

Tina Cook QC, 42 Bedford Row


15:45 – 16:30 International Issues in Care Proceedings

Mrs Justice Theis


16:30 – 16:45 Questions and Close



Child Care Conference

12th October 2015


Break Out Sessions



  • Special Guardianship and Adoption post BS


Discussions led by Donna Frost, Solicitor, considering the impact since Re BS.



  • Assessments in International Cases


Discussions led by Catherine Bowcock, Senior Solicitor, considering this tricky area of law.



  • Threshold in Public Law Cases


Discussions led by Sally Barter, Senior Solicitor



  • No Recourse to Public Funds


Discussions led by Erica Ffrench, Solicitor, covering key issues and problems in this difficult area.


American teenager charged with child abuse of herself for sending photo to boyfriend



This is a very perplexing story from Lowering the Bar



So, a 16 year old girl sent her 16 year old boyfriend some nude photos of herself via her mobile phone. (This is a combination of two youth trends, “sexting”  (sending saucy messages and photographs via mobile phones) and “selfies” (taking a picture of yourself, usually because you are an ego-maniac, or more charitably because you are young).


I apologise that I have to use words like “sexting” and “selfies” to tell this story, I couldn’t find a way round it that would not make me appear to be some sort of Edwardian time traveller attempting to “recount, for the benefit of sundry and diverse readers, a story through the medium of an irregular periodical published via the Ether where the content is both authored by and published by the same individual without the intervening sanitising and corrective influence of an editor”


[Second apology – the word “junk” is used as a euphemism fairly constantly from this point. I do not mean either a chinese fishing boat or a pile of unwanted rubbish]

Such photographs then found their way into the hands of others, and from there into the hands of the police.


After a 16-year-old Fayetteville girl made a sexually explicit nude photo of herself for her boyfriend last fall, the Cumberland County Sheriff’s Office concluded that she committed two felony sex crimes against herself and arrested her in February.


[I agree with Lowering the Bar here, that this sentence makes perfect sense up until the word “that” and that subsequently, it is bats**t insane.  Lowering the Bar points out that if convicted, she would have been a registered Child Sexual Offender for the rest of her life, presumably making for some really awkward conversations in college interviews, job interviews, any sort of interaction with anyone who sees her criminal record.   All in all, because they were charging her with taking the photo, sending the photo and possessing the photo, there added up to SEVEN felony counts between these two sixteen year olds for sending photos between themselves that both of them were consenting to.  Lowering the Bar also points out that had she and her boyfriend had sex, that would have been perfectly legal]


It is easy to roll your eyes at things that happen in American Courts and say “Oh, it could never happen here”, but could it?



Well, the provision in English criminal legislation is the Protection of Children Act 1978

(1)It is an offence for a person

(a)to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph]of a child. . .; or

(b)to distribute or show such indecent photographs  or pseudo-photographs]; or

(c)to have in his possession such indecent photographs [or pseudo-photographs], with a view to their being distributed or shown by himself or others; or

(d)to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs [or pseudo-photographs], or intends to do so


It had been an offence only if the indecent photograph etc had been of a person under 16, which would have exempted this sort of thing, but section 45 of the  Sexual Offences Act 2005 changed the offence to be an indecent photograph of a person under 18.


So, given that the offence can be to “take” or “Permit to be taken”, then yes, technically, a 17 year old boy taking a photograph of his junk can be committing the offence, even though the ‘victim’ of the offence is himself. Similarly a 17 year old girl taking a photograph of herself.  The offence can also be ‘distributing or showing’, so when said 17 year old boy sends the photo of his junk to someone else, that’s commiting a criminal offence.

The criminal statute doesn’t expressly say that someone taking a photograph of themself is exempt. Heck, the Act was drafted in 1978 – nobody envisaged that anyone would ever want to take a photograph of themself.  I don’t think even the Polaroid Instamatic had been around then, so any such photos would have been taken with a camera and you’d then have to take them into Boots to be developed  (and importantly, the curtains in the background would have been brown and orange, ruining any effect you were hoping to achieve)

Even when the Act was tweaked in 2005, selfies were not something that legislators had envisaged.

I think it is extremely unlikely that any police officer would actually charge a 17 year old for taking a picture of his junk, or sending it to someone who was willing to receive it.  (unwelcome sending of photos of your junk is a different thing, that might well end in police involvement), but technically they could.   I’m also fairly sure that a jury would not convict for consensual sexting between actual legitimate 17 year olds (but don’t rely on that – this blog is legal comment, not legal advice), as I suspect most jurors would consider that the experience of standing in a witness box whilst a dozen people looked at photos of your junk would be a suspiciously  mortifying enough punishment.


As Lowering the Bar points out, given that most surveys say that about a third of teenagers have taken nude selfies and ‘sexted’, we’d be criminalising huge swathes of our children.


I had not been aware until I made this quick check, that s45 Sexual Offences Act 2005 does allow someone who has MARRIED a 16 or 17 year old, or who lives with them  as partners in an enduring family relationship to take (with that 16 or 17 year old’s consent) an indecent picture of them, and for those to be exchanged between the two partners, but nobody else.

That suggests to me that if the police were being over-zealous, that two 16 year olds who were in a relationship with each other and who were sending each other saucy photographs but who were NOT MARRIED and not living together could be charged with offences under the 1978 Act.  [That, if the surveys are to be believed, is most of them]


By the way, this story is not really perplexing by Lowering the Bar standards, which is a brilliant source for legal cases that make your mind boggle.

Removal of a child from prospective adopter


I have written about a few of these cases since Holman J’s decision in December 2014, but this one is rather out of the ordinary.


RY v Southend Borough Council 2015


Hayden J was dealing with two applications. The first was an application by RY, an approved adopter, to adopt a child who is about 2 1/2, a little girl named SL.  The second was the application by the Local Authority  (Southend) to remove the child from RY’s care, under section 35 of the Adoption and Children Act 2002.

Cases about section 35 are rather rare, and this one raises some unusual issues.

First things first, what does s35 say?


“35 Return of child in other cases

(2) Where a child is placed for adoption by an adoption agency, and the agency –

(a) is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion, the prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency.

(5) Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order (including a Scottish or Northern Irish adoption order), special guardianship order or residence order, or for leave to apply for a special guardianship order or residence order, was made in respect of the child, and

(c) the application (and, in a case where leave is given on an application to apply for a special guardianship order or residence order, the application for the order) has not been disposed of, prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders”.

In plain English, where a Local Authority have placed for a child for adoption, if they ask for the child back, the adopter must hand the child back within 7 days.  UNLESS the adopter has already made an application to Court for adoption, or a Special Guardianship Order or a residence order (Child Arrangements Order), in which case it is up to the Court what happens.

In this case, RY had lodged her application to adopt SL BEFORE the LA asked her to hand the child back, so it was for the Court to decide.

By way of important background, SL was a very ill child.

  1. At birth SL was pale, floppy and had no respiratory effort or heart rate and required intensive resuscitation. Her first gasp was not until 20 minutes into life. Dr. Daniel Mattison, Consultant Paediatrician, identifies that SL had experienced hypoxic-ischaemic encephalopathy. This can result in a wide spectrum of disability and in SL’s case she has been left with a raft of problems. Firstly, quadriplegic cerebral palsy, which means that she has impaired movement and stiffness of all her limbs as a direct result of brain damage to the parts of the brain involved in movement, tone and posture.
  2. Secondly, she has global developmental impairment. Thirdly, she has gastro-oesophageal reflux disease. That is a condition where the stomach contents pass into the oesophagus causing symptoms. The stomach contents are acidic so the symptoms include pain from the acidic contents coming into contact with the oesophagus and the throat. They also include vomiting, feeding difficulties and respiratory problems if the stomach contents irritate the top of the windpipe or if small amounts enter the lungs. Gastro-oesophageal reflux disease is more common and may be more severe in children with severe neuro-disability like SL.
  3. Finally, Dr. Mattison considers that there is visual impairment as a result of the deprivation of blood and oxygen to those parts of the brain involved in vision.

One can see that absolutely anyone would have faced challenges in caring for SL and meeting her needs.

What the Judge found, by careful consideration of the facts, was that the matching process of RY and SL was optimistic.

RY had some considerable issues of her own, having been diagnosed with Ehler-Danloss syndrome, occasionally needing to feed herself through a gastrostomy tube and being in a power chair needing to use hoists to move herself out of the chair.  She also stated that she had been diagnosed with Asperger’s Syndrome when she was 19.

None of that, of course, means that she is excluded from being a carer for a child, or from being an adopter, but it does mean that there were medical issues that needed some careful consideration in the assessment and matching process.

The fact that the assessment process identified that there had been views that RY’s physical problems were emotional or psychological in nature, at the very least ought to have meant that the adopter’s medical records would have been needed to be seen and commented on by a medically qualified professional.

I am not myself at all clear as to why that wasn’t the case.


12…the assessment report more generally – poses a number of questions. Most importantly, it does not address RY’s capacity physically to parent a disabled youngster as the child got older and heavier. It also has to be said that the possibility that RY’s health difficulties might have a psychological component were evident. It is easy, of course, to be wise with the benefit of hindsight, but nonetheless it seems to me that the enquiries made into RY’s physical and mental health were less than satisfactory.

  1. A number of reports were requested, including one from RY’s general practitioner and rheumatologist, but the nature of that enquiry appears to have been very limited and as RY on her own account has had very little recent contact with either in recent years, it is not surprising that little constructive information was forthcoming.
  2. Ms. Frances Heaton QC and Mr. Shaun Spencer, who appear on behalf of Southend Borough Council, absorb this criticism without demure. In their closing submissions they state as follows: ^

    “With regard to its own failure to consider these records, the adoption agency is cognisant of the fact that although not signposted in the regulations, a review of RY’s medical records is likely to have been beneficial during the adoption process”.

  3. They continue:

    “Where an adoption agency has referred a proposed placement to the adoption panel, the panel must consider the proposed placement and make a recommendation to the agency as to whether the child should be placed for adoption with that particular prospective adopter pursuant to regulation 32(1) of the Adoption Act Regulations 2005.

    In considering what recommendation to make the panel, (1), must have regard to the statutory duties imposed on the agency; (2), must consider and take into account all information and reports ^ passage of it; (3), may request the agency to obtain any other relevant information which the Panel considers necessary; and (4), may obtain legal advice as it considers necessary in relation to the case. Thereafter, in coming to a decision about whether a child should be placed for adoption with a particular prospective adopter, the agency decision maker must take into account the recommendation of the adoption panel and have regard to the child’s continuing welfare, pursuant to regulation 34(4) of the Adoption Act Regulations 2005″.

  • 16.Ms. Heaton and Mr. Spencer also identified the most recent Department of Education Statutory Guidance on Adoption, July 2013, drawing my attention particularly to para.4.15, which states:


      1. “Agencies have a duty to satisfy themselves that prospective adopters have a reasonable expectation of continuing to enjoy good health. The medical adviser should explain and interpret health information from the prospective adopter, their GP, and consultants if relevant, to facilitate panel discussion. The opinion of the prospective adopter’s GP and the agency’s medical adviser about the health status of the prospective adopter needs to be given sufficient weight by adoption panels and agency decision-makers. Mild chronic conditions are unlikely to preclude people from adopting, provided that the condition does not place the child at risk through an inability to protect the child from commonplace hazards or limit them in providing children with a range of beneficial experiences and opportunities. More severe conditions must raise a question about the suitability of a prospective adopter, but each case will have to be considered on its own facts …”



That seems to me very clear that an adoption medical of the prospective adopter would be required and that in a case where medical issues arise, the records would be needed.


This next part, for my mind, is the most worrying aspect of the case  – that these important aspects had not been properly considered because of the pressures on Southend (and one assumes other Local Authorities) to move adoptions through the system quickly to satisfy the Government driven statistics. But even more seriously, that where a Local Authority does not properly satisfy the Government as to performance, there are ‘penalties’

I have to be candid, I do work for a Local Authority. I don’t know about penalties for failure to meet the thoughts that Central Government have about performance (and frankly I wouldn’t know how to find out). The common-sense reading of this portion is that there are financial implications for a Local Authority who doesn’t get their adoptions through as quickly as Central Government thinks that they should.  Perhaps that is right, in which case it would be very worrying.  Perhaps someone has got the wrong end of the stick here.

  1. Counsel seek to explain the deficiencies of this agency’s process in these terms, they state:

    “The agency appreciates the strength of an argument that it failed to have sufficient regard to the matters required of it both by the regulations and the statutory guidance. In the context of that argument, the court understands the pressures on agencies quickly to match children with approved adopters as a result of government measures”.

  2. Ms. Heaton and Mr. Spencer say:

    “It is a reality of the situation that adoption agencies are being judged and measured by government departments on the speed of time taken to match children, poor performance leads to penalties”.

  3. They conclude:

    “This adoption agency recognises that these pressures may have resulted in proper scrutiny not being fully implemented in this case. I am offered reassurance that the agency recognises that a request to consider our wide medical records would have been beneficial to the matching process. I have been told that they intend to address this failing for the future by ensuring that the agency is more ready to be resistant to pressures and to identify at an early stage those cases which it considers to be exceptional where a ‘longer matching process is required’.”


The Judge was also perturbed about this :-


  1. I am not in any way in any position to evaluate the explanation proffered in the authority’s fulsome explanation. I was not, for example, aware that government departments were subjected to penalties where there had been too much delay in the time taken to match children, I confine myself entirely to observing what is little more than a statement of that which should be obvious.
  2. Children like SL are profoundly vulnerable. Social services and society more generally must be sedulous in its protection of them. The fact that there may be fewer welfare options available for such children must never mean the criteria for matching carers to them can ever be compromised. On the contrary, the obligations should be seen as even more rigorous. The matching of RY to SL was undoubtedly ambitious.



In any event, things became more serious, because what was asserted was that RY’s care was not merely deficient but actually harmful and indeed that the care of SL had reached the point where significant harm had been caused.

There were many issues in this regard, and the Judge was also critical that the document provided to RY that set out what portions of parental responsibility she was allowed to exercise and what she was not was a stock document and was ambiguous


  1. What is contemplated here is the granting of some but not all parental rights. The focus is on the child with the objective of permitting the prospective adopter to take day-to-day decisions in the sphere of health, education, religion, holidays and social activities. Here this local authority, in common with many others, I am told, issued a standardised pro forma document.
  2. In relation to health issues, it permitted RY to consent to emergency medical treatment. It did not permit her to consent to treatment including operations that require anaesthetic. It did permit her to take decisions in relation to any prophylactic treatment, including immunisations, decisions in relation to involvement in counselling or therapeutic services, agreement to school medical appointments and decisions in relation to dental treatment. It also provided for her to have decision making responsibility across a range of issues relating to education, day-care, religion, holidays and contact, had that been relevant. I need not look at those wider issues and I concentrate entirely, because it is in focus here, on the provisions relating to health. I have, to say the least, been greatly exercised by them. They are not to my mind a model of pellucid clarity.
  3. There has been much confusion by the professionals as to what the scope and ambit of RY’s parental responsibility powers in fact were. Having read the document I am not surprised. This document, particularly if it is, as I am told, issued widely, really requires refinement. Again I am reassured that Ms. Heaton has this in her sights. She submits that the adoption agency recognises that on reflection and with the benefit of hindsight, (a recurrent phrase) the use of this local pro forma document was not suited to the facts of this case. It is now, she says, recognised that what was required – and is likely to be required in cases such as this concerning any child with complex care needs – is “a bespoke s.25 parental responsibility document tailored to the individual circumstances and needs of the child being placed.”
  4. She goes on to offer the reassurance that in the light of this acknowledgement this Adoption Agency intends to review its own practices and procedures in relation to the identification of appropriate restriction on parental responsibility and to introduce bespoke PR documents in appropriate cases. It also intends to raise the issue with the British Association of Adoption and Fostering so that other adoption agencies may benefit from learning from the experience of this case. I would add to that my own view that the standardised document is itself lacking in clarity. The first two requirements permitting consent for emergency treatment and refusing to bestow consent to treatment including operations are not immediately capable of easy reconciliation and generate, to my mind, inevitable confusion. As I have said, they require some refinement though, of course, I recognise, in many cases, issues such as this will simply not arise.



The crux of this case was as to how RY behaved whilst SL was in hospital, which sadly given SL’s considerable health needs was something that happened often and would be likely to happen in the future. It was asserted that she was obstructive about the child’s feeding, resistant to medical advice, over-reporting of medical concerns, requested sedation for the child, adminstered oxygen when she was not trained to do so and discharged the child against medical advice.


  1. The local authority’s schedule posits six findings and four supplemental findings. The first is that during SL’s hospital admission, which commenced on 26 September 2014, RY repeatedly refused nursing observations such as taking blood pressure or temperature. The second is that RY repeatedly refused to allow medical advice in relation to SL’s dietetic requirements. The third is that RY repeatedly stopped or refused medication and treatments. The fourth is that RY demonstrated an inability consistently to accept medical advice. The fifth is that RY repeatedly requested treatments of her own motion or insists on treatment methods. And the sixth is that due to RY’s anxieties, she tends to focus her attention on unnecessary medical procedures or extreme outcomes.
  2. The four additions are that RY suctioned SL unnecessarily too vigorously and in an inappropriate manner. Secondly, that she repeatedly requested sedation medication for SL despite being told by at least two health professionals, Dr. Court and Sally Deever, that such may compromise her breathing. The third is that RY gave SL oxygen unnecessarily and inappropriately when she was not trained to do. And fourth, that SL suffered harm in RY’s care and was likely to do so if she were to return to her care. That last finding being essentially a composite of the earlier allegations.
  3. As I have already said, it is really a very striking feature of this case that so much of what is set out in that schedule is factually uncontentious. It is the gloss or interpretation that is put on it that has become the focus of disagreement during this case. In, for example, the first finding, namely that during SL’s hospital admission in September 2014 RY repeatedly refused nursing observations, there is agreement that she did indeed make such refusals.



Most of the factual matters, being supported by the medical reports provided by the hospital treating SL, were not in dispute. What was disputed was the interpretation to be placed on them, or whether they amounted to harmful behaviour rather than just genuine concern about a child who was undoubtedly very unwell.

  1. RY told me that she derived some satisfaction from the preparation of the food for her daughter that it was instinctive to her to want to do that and that I certainly understand, but as time passed it became all too clear that this preferred method of nutrition not only was unsatisfactory, it was falling manifestly and demonstrably short of meeting SL’s needs. The doctors and nursing staff and dieticians were plainly highly agitated that SL should have good quality calorific and nutritional food, particularly when recovering from her operation, and RY undoubtedly resisted it in the face of her own obviously inadequate regime long after it would have become obvious to the reasonable carer that this was simply not meeting this little girl’s needs.
  2. So obvious was it that, in circumstances which I really find to be truly extraordinary, the hospital required RY to sign a waiver abdicating their responsibility to her for providing SL’s proper nutrition. What I find so deeply alarming is that in this instance and in the other instance that I have just looked at, that is to say the failure to let nurses take temperature, blood pressure, routine tests, et cetera, how it was that RY’s will prevailed to the extent it did. I can only assume that her behaviour was as described so bizarre that it caused confusion in the ward and led to poor clinical judgments to be taken contrary to SL’s interests.
  3. Ms. Heaton put to RY directly on this point, “In those circumstances, how could RY be said to be putting SL’s interests first?” And to that, in my judgment, RY had no satisfactory answer. I simply do not believe that she has understood or is now able fully to understand why it was she behaves in that way, but there is no satisfactory explanation when properly analysed for this failure to meet that most basic of SL’s needs, her need for nutrition.
  4. As I have said, I do not find it necessary to work through each of the many examples contended for in the Scott Schedule of, for example, RY’s refusing medication and treatments, chiefly again because it is not disputed. One such example which stood out to me in the evidence was RY’s refusal to permit SL to take oramorph when moved onto the ward when in the intensive care unit. Oramorph, I was told, is a morphine-based medicine the objective of which was to downscale gradually the pain relief from the higher dosage that she hitherto had been receiving.
  5. RY told the hospital – and indeed told me – as Ms. Walker emphasises in her closing submissions, that SL “didn’t need anything for break-through pain”. It is one of a number of responses that causes Ms. Walker to comment on what she contends to be RY’s arrogance towards medical staff for how, says Ms. Walker, could RY possibly have been in a position to gainsay the medical advice and to assert from the basis of no medical knowledge at all and in a highly specialised area of medicine that this little girl did not need anything for break-through pain. Once again it was RY’s wish and not that of the doctors that prevailed. I agree with Ms. Walker that the evidence in relation to this can properly be described, as she does, “overwhelming”.
  6. I would also like to highlight the incident set out in the unchallenged statement of Ms. Leanne Mulholland, who is a Senior Sister at the Paediatric Emergency Department at the Royal Manchester Children’s Hospital. In her statement of 7 May 2015, Ms. Mulholland tells me that she was the nurse in charge on the early shift of 14 July. Four areas of concern were handed over to her from the night staff.
  7. Firstly, there was the transfer of SL to the Paediatric Emergency Department in RY’s car directly contrary to the advice of the paramedic. A process which in and of itself caused a significant delay in admission as Mr. Unwin emphasises as a convenient forensic illustration of harm. Secondly, on arrival there was concern that RY simply refused initially to allow a full respiratory assessment to be performed. I am still unclear why that was, but it was ultimately completed as it manifestly needed to be. There was reported to Sister Mulholland a concern about the ambit of parental responsibility, which I have already looked at.
  8. Then there was the final area of concern; active discharge from the hospital against medical advice. That RY should do this at all, that she should feel knowledgeable and empowered enough to do it, even before she had been granted the Adoption Order and full parental responsibility, is profoundly troubling. This episode illustrates to my mind that RY had gone beyond behaviour that was merely capable of being categorised as bizarre but had, in truth, spiralled out of control. I find her judgment and her behaviour, was irrational, unstable and she had become, I am truly sad to say, a real risk to SL



There really was no way that Hayden J would have been able to grant RY’s application for adoption. He is very kind in his conclusions


  1. Ultimately, balancing what I have sought to identify as some really clear, captivating and obvious strengths that RY has and balancing those against the harm I have just outlined in summary, does not present to me a remotely delicate balance in determining the future for SL. The way ahead for her, whatever it may hold, is clear. The risk RY presents of harm or significant harm to SL is so real and serious and the potential consequences so grave that I find them to be wholly inimical to her welfare. It points clearly and determinatively in support of the local authority’s application under s.35(2) in effect refusing return to RY’s care. It follows, therefore, that I dismiss her application for adoption.
  2. In my lay view, RY has plainly some real emotional and psychological issues to address. I hope she is able to do so. I hope her family are able to help her to do so. In the meantime, it would not be safe, in my judgment, for her to be involved in the care of any child or vulnerable adult with disabilities.





Hayden J recognised that this was a case, where the system had not worked as it should and that a very vulnerable child had been exposed to more harm in the adoptive placement that had been intended to meet her needs, and there was thus a public interest in the case being reported


Cases of this kind generate real public concern and rightly so. In the past a judgment such as this would not have entered the public domain. It is hardly surprising therefore that public understanding of the Family Court process and confidence in it’s system had begun to erode. The Practice Guidance of the 16th January 2014 was intended to and has achieved immediate and significant change in practice in relation to publication of judgments in the Family Courts and the Court of Protection. In April 2013 Sir James Munby P issued a statement, View From the President’s Chambers: The Process of Reform, [2013] Fam Law 548 in which he identified transparency as one of three central strands of reform which the Family Justice System is currently undergoing. This is an ongoing process in which a balance between freedom of expression, protected by Article 10 ECHR and the rights of vulnerable children to privacy and security, protected by Article 8 is often a delicate one.


The fundamental argument was as to whether RY’s name should be reported.  Unlike a case where identification of a parent who has harmed the child inextricably identifies the child as well, and thus should not happen, here RY and SL did not share a name and identifying RY would not also identify SL.

The Court had come very close to identifying RY in the judgment, and the single factor which mitigated against it was RY’s intention to seek help for her own problems.

  1. I have already expressed my clear view that the link between publication of the identity of the carer and any adverse impact upon the child subject to these proceedings is tenuous. However, I think RY’s entitlement to the opportunity of therapeutic support, in private, which gives the process much greater prospects of success is so manifestly in both her own interests and those of society more widely that it weighs heavily in the parallel analysis of competing rights and interests in which the starting point is ‘presumptive parity’.
  2. In my judgement the need to protect RY’s privacy while she embarks on what I have no doubt will be a difficult and challenging therapeutic process is to recognise an important aspect of her own autonomy and dignity



That does obviously raise the prospect that in a similar case, where the adopter’s conduct was not as a result of psychological difficulties or there was not a recognition of those difficulties and an intention to seek help, that an adopter who harmed the child could be publicly named in a judgment. There would be reasonable arguments that this would be the right thing to do.

Lost in translation

This is a decision by a Circuit Judge, so informative rather than binding.


Re R (translation of documents in proceedings) 2015


You may be thinking, as I initially did  – “but the President has already ruled on that!”

Indeed he did, and ruled that it was deeply unfair for a parent who doesn’t speak English not to have the documents translated into their own language, but not all of the documents, and not every bit of the documents. In fact, the parent in the President’s case got the generous amount of 51 pages translated (from a bundle of 591 pages) – thus less than 10%, and it was one of the President’s many rages about 350 page bundles, so even assuming a 350 page bundle, he’d have been getting about 15% of the documents.

So why is this even a case?

Well, because in the Presidents case  Re L 2015


There was no dispute about WHO would pay for the translation, everyone agreed that it would be the parent’s legal aid certificate, but rather about how much should be translated. The estimate was £38 per page, so translating everything would have been £23,000.


In this case, there was a dispute about whether the legal aid agency would, or should, pay at all, or whether someone else should pay.  I don’t know why the LAA didn’t raise that as an issue before the President  (or rather, I do, it is because they knew they’d lose) but it wasn’t settled by Re L.

And of course, there’s absolutely no clarity in the LAA guidance, and no consistency around the country. So this issue is going to crop up over and over.

Her Honour Judge Roberts dealt with it in this way, which I think is very sensible

1. The LA are responsible for translating the pre-proceedings documents, and the initial statement and care plan, since at that point, the parties don’t have lawyers who have a public funding certificate.

2. After that point, the Legal Aid Agency are responsible for the costs of translating other documents, and it is the decision of the parent’s solicitors which documents they feel the parents need to have translated.


Very pragmatically, if you were making the Local Authority pay for the translation in category 2, that would involve them in a decision about which documents the parents needed to see, and that just doesn’t feel right at all.


I’m afraid that this is only binding in Suffolk courts (or until the Legal Aid Agency persuade the Minister to give them a get out of jail card in the form of some new regulations about it), but it might be helpful when the issue arises.


Without being all Nigel Farage about it, this is a real issue. When I started in family law, a case with a foreign parent happened once or twice per year, now it is about a third of my case load. Translation costs are considerable, and it is of course vital that a parent properly understands the allegations that are being made against them and sees the proper detail that they need to fight the case.


If you think that the title of the piece was just a cheap excuse for me to crowbar in a picture of Scarlet Johansson then, how right you are.

If Ms Johansson ever does get offered a part as a family lawyer and wants to shadow anyone for the role, I am available


If Ms Johansson ever does get offered an acting role  as a family lawyer and wants to shadow anyone for the role, I am available. *



*On consultation with my wife, it turns out that I’m not.






FLBA-gasted *


I think many of you may have heard that the FLBA (Family Law Bar Association) have written to the Government requesting that there be a review of advocacy within family law, and making it fairly obvious that their steer is that solicitors should be discouraged from doing it and that only the Bar is really competent to do it.

If you haven’t seen it, I’ll link to it here  (you need PDF skillz to read it, sorry if that shuts you out)


There’s much of it that is very sensible – absolutely the stakes are high in public law cases and it is vital that those who are being represented are receiving that representation from people who are both confident and capable. If people, particularly parents, are not being well represented and points that ought to be taken are not being pursued, then that’s something that needs to be stopped.


And the points that are made that a financial element has pushed solicitors who would rather not be doing advocacy into having to do it to keep their firms afloat, are I think well made. It must be wrong that a lawyer is tackling work which they feel is beyond them because the only viable business model at present is one where a family lawyer does lots and lots of their own advocacy. You have to have a system in place where a solicitor who feels that the case requires a degree of experience and advocacy that is more than they possess is able to instruct counsel without feeling that the case has become as a result unprofitable.


However, I can also see that some of the underlying tone of the document creeps into what I trust is an unintentional assumption that the Bar is never guilty of the poor advocacy described here whereas it must be ‘par for the course’ for Solicitors;  the elements of “two legs bad, four legs good” are not attractive. I’m not sure that divide and rule is the best strategy in these difficult times for both branches of the profession.


*If the FLBA do want to do use as their telephone hold music, a reworking of Shabba Ranks finest hour so that it goes “Mister Loverman, FLBA” they are welcome to implement that idea…



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