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What made Tracy Barlow evil?
Some musings on the biological and neurological causes of crime, with references to Wetherfield’s nasty bit of work.
Firstly, by way of context, this all arises from my reading of this book, “The Anatomy of Violence” by Adrian Raine. It is an absorbing and fascinating book, with a lot of interest to anyone working in the field of violence, abuse and neglect. I’d be very interested to know what the few neuroscientists who dip into this blog make of it. I will be coming back to some more of the issues raised in the book in later pieces.
You can find the book here, and it really is worth reading – even if you end up disagreeing with some or a lot of it, the thought processes involved in formulating your counter opinion are worthwhile – and as Raine points out, the very action of reading the book and thinking about the ideas is altering your brain’s structure.
So, Tracy Barlowe. For the benefit of the one reader I know (hi Neville) doesn’t own a television, Tracy Barlow is a television character on Britain’s longest running soap, Coronation Street. When I began watching it, she was a little girl much attached to doing colouring in and wearing a parka coat. She grew up to be a nasty bit of work. Here’s some of what she has done :-
Spiking the drink of a harmless oddball, Roy Cropper, so that she could convince him that he had slept with her, breaking his marriage vows, to win a one penny bet.
Murdered her boyfriend Charlie (who admittedly was a beast) spending months beforehand setting up a fake defence that he had been domestically violent
Blackmailing a teenage boy into lying for her at this trial with promises of sex
Lied that a neighbour (Gail Platt) had confessed to murder which sent Gail to prison
Lying to Steve McDonald that the love of his life Becky, had assaulted her causing her to miscarry his twins
Running through the Hare psychopathy checklist, she doesn’t half tick a lot of those boxes. She has no empathy, no remorse, doesn’t take responsibility, is a glib and charming individual, a pathlogical liar, is cunning and manipulative
http://en.wikipedia.org/wiki/Hare_Psychopathy_Checklist
Now – why is she evil? (I am of course, aware, that the reason her character is evil is that it makes for good drama to have wicked people and once you start doing wicked stuff in a soap, you become the go-to character for driving such storylines – but I am interested in, assuming for a moment that she were real, why that would be?)
She is bright, wasn’t abused as a child, her parents don’t have violent or psychopathic tendencies, she has had no major life traumas that we know of. She didn’t have a troubled adolescence, had a good education. The first time she got into any trouble was taking ecstasy (this inadvertently led to her needing a kidney transplant, which she got from her mother’s toyboy holiday romance fling, who then dies).
When you look at her life, her mother Deidre has had a lot of romantic entanglements, on and off love affairs, which may have led to feelings of confusion, uncertainty, even rejection. The male figure most constant was Ken Barlow, intellectual but distant – a firm moralist and a black and white “right and wrong” sort of man (but simultaneously a hypocrite) who never shied away from letting her know that she was a disapointment. And the family unit was constantly shifting, as one or other of the primary carers found a new passion, a new relationship, before reconciling.
Of course there are bigger issues then – which the book explores a lot. Can we ever understand evil, can we predict violence, can we do anything about the factors that lead to violence and anti-social behaviour? Can we repair someone who has taken that path?
One of the interesting studies in the book shows that children who had a violent crime, a murder, in their neighbourhood went on to perform markedly worse in school tests than other children who had not. And that living in an area where a single murder took place nearby lost the equivalent of what a year and a half of education would provide (in terms of alteration to IQ). Coronation Street may seem far from Baltimore or Washington DC, but it is rife with violence and crime – why even those two old dears in the pub with their sherry (Rita and Emily) both lost husbands to violent incidents AND were the victims of murder attempts.
Another, unexpected one, relates to Tracy’s mother Deidre – she is famous for being one of the few characters on modern tv that is still allowed to do something. In soaps, she is probably the only one left who you see doing this activity and it turns out to be something that studies have shown if you do during pregnacy, you are three times more likely to have a violent or anti-social child or child who turns out to be that in adulthood.
Smoking.
If, as we suspect, Deidre smoked during pregnancy, and judging from her demeanour when she smokes, she’s been a forty a day woman for getting on for forty years now, and her pregnancy was in the early seventies, she almost certainly did, that might actually turn out to be a factor. The hypothesis, supported by these studies, is that smoking in pregnancy affects the formation and structure of the infants brain, and that damage and alteration to the structure increases the relative risk of a violent or antisocial life for your child. [Of course, the concept of relative risk here is important - if for example there is a 1 in a million chance of hving a violent child, then a threefold increase is, whilst not good, still a pretty low chance, and the book doesn't really get stuck into the relative risk]
But it was something that surprised me – and once in a while we have a mild moral outrage in the press when we see a pregnant celebrity smoking, but I had no idea that smoking during pregnancy could have any impact on behaviour in later life. (not as much as alcohol, head injuries, malnutrition and lack of care in first year of life, those are the big big factors)
Four minute warning [or “last night the plans for a future war, was all I saw, on Channel Four” ]
Not law, rambling nonsense about the four minute warning. Warning, warning, this post contains nuclear war, excessive amounts of 80s pop culture and possible references to Sting.
I realise, as one of the markers of getting old, that a cultural touchstone of my life, the “four minute warning” might well mean nothing at all to younger people, so before I start, I’ll explain what it is.
Back in the days of the Cold War, where we were worried about Russians and nuclear war rather than Al Qaeda and suicide bombers, the Government had an early warning defence system. They would know, from monitoring at Jodrell Bank (a big telescope observatory station) if missiles had been launched, and then the Government would bring into play klaxons, sirens and alarms to let everyone know that we had four minutes before the missiles would strike.
Growing up in the 80s, particularly in a city that was within a five mile radius of several RAF bases, and with left leaning teachers who were all signed up to “Save the Whale” and “CND”, I spent most of my formative years having these three facts drilled into me :-
(a) You will need a degree to get a job, even a job stacking shelves, when you leave school, and there won’t be any jobs, thanks to “Mrs Thatch”
(b) If you have sex with anyone ever, you will almost certainly catch Aids and die
(c) You won’t know when nuclear war will come, and any day could bring that four minute warning, but it WILL come [oh, and living where we do, you WILL be vapourised, no mutants and rebuilding society from the ashes for you, you will BE the ashes]
The school further emphasised point (c) by showing us the film “Threads” in which we saw a shopping centre not all that far from us get devastated by a fictitious nuclear war. That certainly made going shopping at the weekend a much more haunting and terrifying experience. If there’s one thing worse than knowing you could be vapourised any moment, it is that you could spend your last moments alive trying on far too tight shoes in Clarks or looking in bad mirrors in Concept Man trying to work out if burgandy and mustard go together.
What a cheery adolescence that was, alleviated only by “Axel F”, Gauntlet, Star Wars figures, Nike trainers, New Order, the Um Bongo advert, Wilma Deering’s lipgloss on “Buck Rogers” and Frank McAvennie’s blonde perm [these things not necessarily in order of preference].
So, it suddenly struck me the other day, that having lived under the shadow of nuclear war, and the four minute warning, an existential horror so incomprehensibly unfathomable in modern society that the only way I can explain it is to suggest that it made certain sections of the British public think that Sting of all people, was very wise, provocative and deep in his song “I hope the Russians love their children too”
that I hadn’t thought about the four minute warning for years. Does it still exist?
Would we get more time now, as with satellites and better computers we might know earlier that the nukes were being warmed up? Or would we get less, because technology in rockets has advanced and they would fly quicker?
This, by the way, is the message that would have been read out on all radios and on the BBC. It is, you will agree, a great comfort.
http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/03_10_08nuclearattack.pdf
Here is the cheeky opening which comes right out with the important bad news, just in case you were watching “Telly Addicts” and cursing that it had been interrupted by a party political broadcast. Don’t touch the “hoofer doofer” pops, this is it!
This is the Wartime Broadcasting Service. This country has been attacked with nuclear weapons. Communications have been severely disrupted, and the number of casualties and the extent of the damage are not yet known. We shall bring you further information as soon as possible. Meanwhile, stay tuned to this wavelength, stay calm and stay in your own homes.
Remember there is nothing to be gained by trying to get away. By leaving your homes you could be exposing yourselves to greater danger.
If you leave, you may find yourself without food, without water, without accommodation and without protection. Radioactive fall-out, which follows a nuclear explosion, is many times more dangerous if you are directly exposed to it in the open.
That’s pretty bleak stuff.
I have to say, I personally find the idea of this warning being more comforting if I imagine it being read out by Hugh Grant’s character from “Four Weddings and a Funeral” – done with much more beating around the bush and nervous embarrassment at having to say it at all.
“Not quite sure how to say this, and I’m sure it comes as a bit of a shock to you all, it did to me, certainly, and I don’t really know why Mr Cameron asked me of all people to tell you, but the fact of the matter is… gosh, this is awkward. Hard to really know how to start. Is it best, all things being equal to break it gently, or just dive right on in there.
Imagine for me, if you will, the really absolutely worst thing I could be about to tell you. Imagine a bit harder. Are you thinking about mushroom clouds? If not, you’re not quite imagining the right thing… try again. In the words, perhaps of Michael Stipe, while he was still with REM in fact, it’s the end of the world as we know it. Erm, sorry.”
So, the news is, we no longer get a four minute warning. All of the klaxons and sirens have been dismantled (apart from, oddly, the one at Broadmoor). A combination of cost, difficulty of organisation, the realisation that the Electromagnetic Pulse that will accompany the nuclear missiles falling on nearer targets will probably wipe out electronic communication anyway, and oddly, the prevalence of double-glazing meaning that most people wouldn’t now hear the sirens, led to it being put to bed in the mid 1990s.
[Only in England could Safestyle UK “I say you buy one, you get one free” be the driving force behind ending the public’s right to know that nuclear annihilation was imminent]
Judging from the conversations that we always had in the 80s about what we would do if the four minute warning came, cancelling it did not so much stop people carefully stockpiling water and salt and tinned fruit, as prevent a wave of pimply teenaged boys trying to cop off with any female in sight and “driving a yellow Lamborghini Countach at 160 miles an hour”
I suspect that the reality of the situation would be that if we did get a four minute warning, there would just be utter panic, looting, a complete collapse of the internet and mobile signals as everyone tried to ring their loved ones/tweet something jaded and pithy about the war, and gridlock on the roads as everyone tried to either get home or get the hell out of the city. [Or even more depressingly, people spending their last minutes watching that last episode of Broadchurch that they Skyplussed, on 16 x speed so they can die knowing who did it]
Just forty truck drivers blocking our supply of petrol for five days achieved much the same thing, so it doesn’t seem unfathomable that we’d get similar if not worse meltdown from a genuine actual crisis.
I suspect, that given that all that seems to be gained from a warning is panic and misery, that the Government wouldn’t actually get Hugh Grant on the television to tell you to stay indoors (using the protective power of your double glazing) and to save your tinned peaches for later.
Which means the only survivors of a nuclear attack on Britain would be pensioners (who are inside anyway, and have loads of tinned fruit), politicians (who get the secret warning and grabbed their expenses forms and headed to their bunker and drew up the Duck drawbridge), the inmates of Broadmoor, and people who were at home watching “Loose Women”. What a glorious future we will have, when things are rebuilt. Britain will be great again.
That was all a bit depressing. Who would have thought that nuclear war could be a bit of a downer, all in all?
Here’s a picture of a yellow Lamborghini Countach, to cheer you up.
Brrrrrrrrmmmm
And if you are still feeling a bit blue, here’s Wilma Deering out of Buck Rogers. If that doesn’t cheer you up, I’m out of suggestions. Perhaps find a clip of loveable TV scamp (and falsely rumoured “he’s an adult with a kidney disorder” ) Gary Coleman asking Willis what he is talking about.
“On the twelfth day of proceedings, my true love sent to me…”
A purposeful and robust CMC
Or that is the plan in the imminent revised Public Law Outline anyway.
Let’s have a look, day by day, at what that might mean for the beleaguered parents solicitor.
On the first day of proceedings, my true love sent to me….
A notice from the Local Authority (don’t worry, they aren’t all going to rhyme)
I shall assume that the notice is served on a Monday, marking day one of the proceedings, and the client promptly reacts to that by wanting an appointment with a solicitor, and they are able to get one that same day. Luckily, the solicitors diary has been freed up by the helpful LASPO changes, hurrah.
Day twelve is therefore a week on Friday.
That will, as we now know, be the CMC. Under the revised Family Procedure Rules 2010 and assorted Practice Directions, if a party seeks an expert assessment, they have to lodge a draft order and the raft of information with the Court not less than 2 working days prior to the CMC.
If you haven’t done that by the time of the CMC, it is very very unlikely that you’ll be getting an expert assessment.
So, by day 10 (the Wednesday of the second week), the parent’s solicitor needs to have drafted that order, got all of the information, and lodged that with the Court. Let us assume that the solicitor has no time out of the office and is able to draft all of that documentation ON THE VERY SAME DAY THEY GET THE INFO FROM THE EXPERTS
{This may not actually be realistic, I am looking at a counsel of perfection here, as if that needs saying}
Thus, the expert needs to have responded to all of the requests for information by Day 10. How long do we think we should give them to do that? Well, we’ve got a weekend at days 6 and 7, so it probably means the solicitor needs to send the expert the request by day 5. That gives the expert the grand total of three working days to complete all that information.
Our fantastically dedicated and efficient solicitor (and their fast-typing assistant) sends the request for information out on the very same day that they draft the request, and they will do it all by email, because post would make this utterly impossible – that therefore means that the solicitor needs to have everything in place to know what expert they want, what questions are to be asked, by day 5 (which is probably the day after the first hearing).
So no prospect of getting any disclosure in, and you will know where the child is placed in the interim, and what the Guardian’s view of the case is for a whole day before making those strategic long-term decisions about expert assessments.
Day 1 Monday papers received – client comes in with all of them promptly
Day 2 Tuesday
Day 3 Wednesday Day
4 Thursday The first hearing, probably
Day 5 Friday The solicitor needs to identify what expert assessment might be required, formulate some questions, find some suitable experts and send off the request for information as required by the Practice Direction
Day 6 Saturday
Day 7 Sunday
Day 8 Monday
Day 9 Tuesday
Day 10 Wednesday Expert responds to the request for information, solicitor completes and lodges draft LOI, draft order and all the requirements under the Practice Direction
Day 11 Thursday
Day 12 Friday CMC
Oh, and you probably have to write your client’s statement too in that period. Luckily, as you can see, there are a full 5 working days where you are doing nothing whatsoever but twiddling your thumbs. [Apart from, you know, reading the papers, taking instructions, giving advice, contesting an ICO, preparing arguments as to why there should be an assessment, and looking after any other client you happen to have]
We are lucky on this plan that the care proceedings are issued on a Monday, as we only lose two days to weekends. If the proceedings are issued on a Friday, we lose four days to weekends. Heaven help any issued just before a bank holiday weekend.
I think if I were an expert, I wouldn’t be putting down any deposit on a new conservatory or a holiday cottage in the South of France, I suspect with that sort of timetable, instructions might well be drying up a bit.
“The driver cannot ignore the passengers”
The judicial review case of H R v Kingston Upon Hull 2013 – where the Court found that a failure to consult with parents BEFORE making a decision to move children under an ICO was unlawful
The case is here
http://www.bailii.org/ew/cases/EWHC/Admin/2013/388.html
This is, I think, the pivotal passage from the judgment (hence the title) – underlining mine
When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved… A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.
In this case, the Local Authority had initially sought to remove the children from the parents, and at Court (as is often the way) a compromise was reached, whereby the parents agreed to an Interim Care Order if the children were placed with grandparents, and the LA agreed to place the children with grandparents. As often is the way with compromise, regrets followed.
Thereafter, the LA had doubts about whether that was the right placement, and they conducted their fostering assessment, which became available on 30th January. This was very negative, and it considered that the grandparents attitude towards the concerns about the parents care was worrying. Sufficiently worrying for them to decide on 31st January that they would seek to move the children into foster care.
They met with the parents on 1st February, and told them that this was the plan. The parents reacted badly, particularly the father, who said (inadvisably) that he would kidnap the children.
The LA then moved the children, earlier than they had intended to.
The parents made an application for judicial review, seeking to overturn two decisions :-
- That the decision on 31st January that the children would be moved was unreasonable, it having taken place without consultation
- That the decision on 1st February to move them forthwith was unreasonable
The parents triumphed on ground 1, but lost on ground 2 – the Court determining that the events of 1st February (although they had arisen purely because of the LA’s failure to properly consult) did legitimately give rise to a reason to implement a move.
The LA had claimed that they had not MADE a decision on 31st January to move the children, but the Court rejected that.
- I gave a short judgment announcing my decision in which I set out the following:
(1) The decision made by the LA on 31st January 2013 to remove the children was unlawful.
(2) The LA was the author of the very unhappy events of 1st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.
(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.
(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.
(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.
The Court placed quite a lot of emphasis on the LA not consulting with the Guardian (perhaps working on the basis of five years ago, when all Guardians communicated much more regularly with social workers and would give a view on events) , and in this case the children were between Guardians, leaving responsibility solely with CAFCASS. Nonetheless, this LA did not notify CAFCASS or the Court, or the child’s solicitor that a move was afoot.
The Court summed up the human rights position in relation to interim care orders, and this is a helpful summary. Underlining again mine, for emphasis.
- An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must: (i) only do as much as is really necessary to secure the safety of a child; (ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and (iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety.
The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.
- There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and Human Rights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.
- When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.
- During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.
- In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:
(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.
(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.
(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.
(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.
- The passage of the judgment at paragraph 36 is apposite to this case:
“So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also —- after care proceedings have come to an end and whilst the local authority are implementing the care order.”
This is interesting – there are occasions, when representing a Local Authority that the concerns the LA have are so high that care proceedings are certain to be commenced. In those circumstances, it is traditional to send the Letter Before Action, making it plain that care proceedings will be commenced. [Though of course, the parent is able to obtain legal advice and contest the ICO application]
Is the upshot of this judgment that it is unlawful to DECIDE to commence proceedings before consulting with the parent about this? It seems to me that it probably is.
The Court then went on to consider the interplay between interim care orders and judicial review – mindful that there is of course a remedy in the care proceedings (to challenge the ICO, or to appeal a court decision to continue it)
56. There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.
The Court also covered the duty to consult – and made it plain that there is a spectrum of consultation, not merely ‘agreement’ at one end, and ‘informing the parents of the decision’ at the other – there has to be a genuine dialogue which allows for the potential for a parent or other interested party to bring something to the conversation which might result in a different outcome.
- I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):
“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.”
Further:
“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”
- Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include the parents. If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them, then different considerations apply. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.
- The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.
- It has to be acknowledged that there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.
- During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon. This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement. Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must act speedily and without express approval if exceptional circumstances obtain. The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.
Whether you represent a parent, or child, or Local Authority, this case has some important information, and reminders. I think that most Local Authorities would have had the case before the Court before the children were removed, but conversely, that most would probably have made the DECISION that they intended to remove once that negative viability report arrived. This case reminds us that the duty to consult goes far deeper than simply telling the parents that a decision has been reached, but actually to be a genuine discussion about the situation and the options available PRIOR to a decision being reached.
Cobb-led together
Hope you all had a Merry Christmas. I was pleased to see before Christmas that Stephen Cobb QC has been made up to a High Court Judge.
I look forward to reading his judgments, which I am expecting to be somewhere between MacFarlane LJ and Munby LJ in style and analysis (so no pressure there).
The promotion of course does remove the one answer that a family lawyer has been able to give with certainty to one legal question over the last few years, as opposed to our traditional humming and hawing, and “it depends”.
When asked “I’ve got a case where I need a silk, who should I go to?” the answer I have given every single time, has been Stephen Cobb, and now I need a new answer to that question.
I am faintly disappointed that I will now never be able to tell my story, which has a festive overtone, of Stephen Cobb, a Guardian and an ill-judged Christmas present. But no doubt imaginations more powerful than mine can invent your own story. (Just so that you know, Mr Cobb was the undoubted good guy in the story)
I’ve drawn sporting parallels before in this blog, and the one that springs to mind for Mr Cobb QC is that if David Gower had married complete application and discipline to his talent, and come to the family bar, he would have been pretty similar to Mr Cobb QC.
One of the only barristers I have ever sat and listened to (in the golden days when lawyers would go to Court with counsel, and I thank my lucky stars that I began my career being exposed to advocacy of a multitude of styles and techniques and had two years of listening to people do it very well before I had to start finding my own way), who even when he was against you and dismembering your case [as he did to me very often], you were a little sad to see him sit back down. You don’t get many barristers who make you think “I wish they’d kept talking a bit longer”, and he was one of them.
[Just so that you all know, I don't get up to the High Court any more, except when the moon is blue, so this is how I genuinely feel, rather than any favour currying. In fact, it is my general desire and ambition to keep my cases in local Courts where the staff answer the phone, tell you things, don't ship you to the other end of the country on a day's notice, and don't lose every document that ever comes near them, so every High Court case is now a pain in the neck, rather than the exciting ego trip they used to be when I was young and full of enthusiasm]
Hop off the bus Gus, don’t need to discuss much
A not law post.
One of the first songs I can remember singing a lot (by which I mean relentlessly), when I was about six, was Paul Simon’s Fifty Ways to Leave your lover. It is a bouncy, happy, funny song, taking as its core subject how simple it is to completely destroy the life of a loved one by walking out on them without a word, providing you do it in a way that rhymes with your name. (Helpful hint – try to find a partner with a name that doesn’t rhyme with much – Rupert, Julian, George are all starts)
This song, triumphing both desertion and adultery, is really a helpful guidance when setting out the facts that lead to grounds for divorce – I would argue that ending a relationship by Dropping off a key, does not make it reasonable behaviour simply because your name is Lee, so we can get a third fact in there too.
What a peculiar song for a six year old to be singing, even against the backdrop of a father who had taken Paul Simon’s tenets as Buddha-like codes to live by. I realise now that the song being on the Muppets had a lot to do with its popularity amongst children at the time. Its a very curious juxtaposition of children’s favourite characters, a happy upbeat song, and a subject of human misery being treated lightly.
So, no need to be Coy, Roy, just give them the link
You can’t take it with you?
A knotty issue about Special Guardianship
I was asked a question about Special Guardianship today, and as I had entirely two different answers within the space of ten minutes, I thought it might be worth a discussion.
The questioncan be simplified (ha!) to this :- “If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?”
My initial reaction was that the PR from Special Guardianship Order (like that of Residence and unlike that of adoption or being a birth parent) exists so long as the order exists, and thus it isn’t something which can be left to someone else in a will.
My second reaction was, that perhaps Parliament did intend to give Special Guardians such a power, it being an order more in character with “adoption-lite” than the “Residence plus” it has become in practice.
My third reaction was “I don’t know, I’ll have to find out” which is my favourite sort of thing.
Well, firstly, there’s nothing in the Special Guardianship provisions which says that the order ends if the Special Guardians die. (One might have thought, given that this is an order often made to people who are considerably older than the children concerned, that it should have been at least contemplated)
Here are the things that stop a Special Guardianship Order being in force :-
1. The Court granting an application to discharge under s14D
2. The Court making an order to discharge under s14D of its own motion
3. That is all.
I find it a little bit bizarre that, for example, making a residence order to the father or mother wouldn’t discharge the SGO, but there you are.
According to Hershman McFarlane “Children Law and Practice” the making of a Care Order does NOT discharge the Special Guardianship Order (D904) and I can find nothing to contradict them. Common sense and logic says that surely it must, but the constructors of the legislation omitted it entirely. The making of an SGO does, however, discharge an existing Care Order. s91(5A) .
This immediately makes me think that it is THEORETICALLY possible for a Court to make an SGO, pause for breath and make a Care Order. Who has ‘super PR’ in those circumstances?
Which wins
14C Special guardianship orders: effect
(1)The effect of a special guardianship order is that while the order remains in force—
(a)a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and
(b)subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).
OR
33 Effect of care order.
(1)Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.
(2)Where—
(a)a care order has been made with respect to a child on the application of an authorised person; but
(b)the local authority designated by the order was not informed that that person proposed to make the application,
the child may be kept in the care of that person until received into the care of the authority.
(3)While a care order is in force with respect to a child, the local authority designated by the order shall—
(a)have parental responsibility for the child; and
(b)have the power (subject to the following provisions of this section) to determine the extent to which
(i)a parent, guardian or special guardian of the child; or
(ii)a person who by virtue of section 4A has parental responsibility for the child,
may meet his parental responsibility for him.
The first says that the SGO may exercise their PR to the exclusion of anyone else with PR, the second says that the LA PR trumps everyone elses. Which of them actually has the trump card? Forget irresistable force versus immoveable object, this is two irresistable forces meeting head-on.
If you are a Judge, and you feel mischievous, or you’re up for retirement and just want to go out with a bang, please make an SGO, pause and then make a Care Order, so that I can see what the answer to this is.
[The wording of s14C also raises interesting theoretical problems where the SGO is made to two people, grandma and grandpa, say, and they then separate. Whose s14C power trumps whose?]
But, you are saying, surely the order discharges if the child dies? Well, to all extents and practical purposes yes, but legally speaking, no.
Section 14 (C) (5) of the Children Act 1989 imposes a duty on Special Guardians to notify the parents of the child if the child dies
(5)If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—
(a)each parent of the child with parental responsibility; and
(b)each guardian of the child,
but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.
Implying that in law, the concept of them continuing to be a Special Guardian (rather than “the former Special Guardian” ) exists.
Anyway, back to the issue. So there’s nothing specific in the Act that says the SGO ends with the death of the Special Guardian. Again, in practice, their exercise of the order is of course curtailed, unless Derek Acorah is on hand to impart their wishes and feelings with a Scouse flavour.
Can they appoint a Guardian to look after the child after their death?
Yes (underlining mine)
(4)A guardian of a child may appoint another individual to take his place as the child’s guardian in the event of his death; and a special guardian of a child may appoint another individual to be the child’s guardian in the event of his death].
(5)An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or—
(a)in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the Wills Act 1837; or
(b)in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature.
(6)A person appointed as a child’s guardian under this section shall have parental responsibility for the child concerned.
But hang on, what if the Special Guardian dies, and the birth parents are still alive? Doesn’t their existence trump the appointment?
Again, my underlining to aid with clarity
S5 (7)Where—
(a)on the death of any person making an appointment under subsection (3) or (4), the child concerned has no parent with parental responsibility for him; or
(b)immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child or he was the child’s only (or last surviving) special guardian,
the appointment shall take effect on the death of that person.
(8)Where, on the death of any person making an appointment under subsection (3) or (4)—
(a)the child concerned has a parent with parental responsibility for him; and
(b)subsection (7)(b) does not apply,
the appointment shall take effect when the child no longer has a parent who has parental responsibility for him.
So, a father appointing a guardian after his death would not have that guardian appointed where the mother was still alive (or vice versa), but a SPECIAL GUARDIAN who appoints a guardian for the child has that guardian’s pr kick into life as soon as the Special Guardian dies.
There’s a procedure in section 6(7) of the Children Act 1989 for an application to dismiss a person as a guardian (and indeed even the guardian themselves can do this).
Sadly, I can’t find any caselaw where this has actually happened. Boo. I would LOVE to be wrong, please let me know if so. The only piece of caselaw in the whole Hershman McFarlane chapter on guardianship (which I have never read before today) is a 1959 case, saying that where there are two guardians (yes, the Court can appoint an unlimited number of guardians) and they are in conflict, one should step down.
But what I don’t believe is the case is that the ‘super PR’ (or more accurately, the power under s14C
(b)subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).
Passes to the guardian. I think it is just PR, putting the guardian and the birth parents on a more equal footing.
A guardian being appointed doesn’t stop the parent seeking a residence order in their own right. (It would be interesting, given what I suggest about whether the SGO remains in force, whether the parent has to have LEAVE to make such an application)
If the Court were dealing with a residence/contact/specific issue dispute, between a guardian and a birth parent, I’m not sure I would have confidence as to whose views would win out, I think it would be entirely a merit-based decision.
So, the ultimate answer to the question originally posed
“If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?”
Is “maybe”
And I managed to be wrong twice in ten minutes, despite seemingly having covered all the bases.
Or as the Reverend Lovejoy said “…ooooh short answer yes with an if, long answer no with a but…”
