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Poppi Worthington – the Judge publishes his decision about what happened to her

 

I think I’ve written nearly as many blog posts about Poppi Worthington’s case as I have about Re D, yesterday’s case.

The most recent Poppi Worthington piece is here

Poppi Worthington – the long-awaited judgment

 

For those who don’t know, Poppi died in December 2012.  The Judge in care proceedings made findings about the causation of her injuries, and what also raised media attention was the Guardian’s list of lessons that ought to be learned or failings by professionals.  Those were all finally aired in the judgment above.  The Coroner  considered the case  in October 2014 and left the causes of the child’s death blank. The police decided not to charge anyone. Father as a result of some of the medical evidence obtained in the police investigation asked the family Court to reopen their findings and look at it again.  And all the way through this, the Press have been asking to be able to publish the judgments, and have had to wait until this.

I have to say that the November judgment contained a peculiar line, that the police took a forensic swab from father’s penis, which led to some obvious worries about what it might have been suspected had happened to poor Poppi, but I didn’t want to speculate about it given that the family were going through a re-run of the family Court fact finding hearing.

The father had obviously hoped and believed that the re-run of the finding of fact hearing would clear his name.

I’m afraid that for me, the detail of the case is too grim for me to want to rake over here. For those who want to read it, it is here.

F v Cumbria County Council and M (fact-finding no 2) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/14.html

 

The conclusion of the fact finding was this:-

  1. For the court to conduct a further hearing in a case of this kind is highly unusual. It does not do so simply because others hold different views to those of a witness whose evidence has been accepted. This further hearing took place because it was asserted that there was evidence capable of establishing an alternative plausible hypothesis for the bleeding, namely that it may have come from congested blood vessels that had been affected by a viral infection. But even before the hearing began, that assertion had vanished like frost in May.
  2. In conclusion, stepping back and reviewing the evidence as a whole, I arrive at the same view as I expressed at paragraph 142 of the previous judgment: Shorn to its essentials, the situation is one in which a healthy child with no medical condition or illness was put to bed by her mother one evening and brought downstairs eight hours later by her father in a lifeless state and with troubling injuries, most obviously significant bleeding from the anus. Careful assessment of the meticulous pathological and paediatric evidence has clearly established that the injuries were the result of trauma from outside the body.
  3. My finding at paragraph 152 was that the father perpetrated a penetrative anal assault on Poppi, either using his penis or some other unidentified object. That remains my conclusion. Some witnesses at this hearing have expressed the view that penetration with a penis would have been expected to cause more obvious injuries. That may be so, but the evidence does not exclude any one of a number of distressing possibilities. As I said before, it is not possible to reconstruct the exact sequence of events that led to Poppi’s collapse without a truthful account from the father.

 

Reporting restrictions still apply on naming Poppi’s siblings. The Press access to this particular hearing was unprecedented, giving them access to documents and reports and even allowing for daily reporting and tweeting about the ongoing case provided it was done after the end of the Court day. The Judge thanked the Press for their responsible behaviour.

 

  1. The ability of the media to report a hearing of this kind on a day-to-day basis is unusual and the arrangements here are probably unprecedented. At the outset, ground rules were discussed and established, as follows:

    1. The reporting restriction order made on 11 July 2014 and varied on 14 January 2015 remains in effect. Copies have been provided.

    2. The hearing is taking place in private. Accredited media representatives may attend and are asked to sign in on a daily basis.

    3. Any media representative who attends will be provided with the full 2014 judgment, the medical reports, the minutes of the experts’ meetings, the schedules of agreement and disagreement and the summary of medical evidence. These documents are for information, to assist with understanding the course of the hearing, and they are not for publication. They can be removed from court but they are to be kept safe and are not to be copied or given to others.

    4. The media may report daily on the proceedings on these conditions:

    (1) Such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing.

    (2) Reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, so that the court has had an opportunity to consider whether any additional directions are required.

    (3) Until the publication of the final judgment, nothing is to be reported that might directly or indirectly indicate the findings that the court made in March 2014.

    5. The final judgment, when available, will be published. At that point the full 2014 judgment will also be published.

    6. Any queries about the ground rules should be addressed to court staff who will consult with the parties and with the court as necessary.

  2. A copy of these rules was placed in the civil jury box where, as it happens, the media sat during the hearing. On the first two days, eight media representatives attended, with the number reducing on subsequent days. On a few occasions, issues about what could or could not be published were raised by a party or a journalist, and these were easily resolved. The opening of the hearing was extensively reported, with less coverage thereafter.
  3. I repeat what I said at the outset of the hearing:“I would like to emphasise that the unusual package of arrangements for this hearing arises from the application of existing law to the exceptionally unusual circumstances of this case. These arrangements do not establish new law or practice in the Family Court and they are not intended to set a precedent for other family cases.”
  4. I nonetheless record that the conduct of the journalists in court was entirely professional and their presence did not adversely affect the hearing; on the contrary, their attendance may be said to have reflected the seriousness of the occasion. The media’s ability to observe the court going about its work in this particular case, and to report and comment on the outcome and the process, has in my view been a valid exercise.

 

Where does that leave things (assuming there’s no appeal)?  Well, almost all of the national press are reporting that the Judge found that Poppi died having been molested in a vile way, and that the person who molested her was her father.

The police have made a decision not to prosecute  (that could potentially be reviewed by the CPS  – though given the press reporting, there might be issues of fair trial now, and of course there are the flaws identified in the last judgment about the process. ).

This particular father, because the child’s full and real  name is in the public domain and the Press took such an interest in the case, is probably now known to everyone in his local community and all of them will have a view about the case, yet he has not been convicted in a criminal court or even charged.  His name is actually within the judgment and naming him is not prohibited.

It is hard, of course, to have any sympathy for someone found to have done what this father was found to have done. It is a very tough test of transparency though – it does feel right that the Press were able to dig into this case and report it accurately and properly, but we do end up with a father who the police did not think it was right to charge being named and shamed in the Press as having done something that every person reading it would think was truly monstrous.

 

The Reporting Restriction Order is plain, and will apply to this blog and commentators. Don’t put anything in your comments that would breach it.

A REPORTING RESTRICTION ORDER IS IN FORCE. IT PROHIBITS THE IDENTIFICATION OF THE SURVIVING CHILDREN OR THE MOTHER, OR THEIR HOMES, SCHOOLS OR NURSERIES. IT DOES NOT PREVENT THE NAMING OF POPPI, OR HER FATHER, OR THE REPORTING OF THE CIRCUMSTANCES OF HER DEATH. THE JUDGE HAS GIVEN PERMISSION FOR THE JUDGMENT (AND ANY OF THE FACTS AND MATTERS CONTAINED IN IT) TO BE PUBLISHED ON CONDITION THAT ALL PERSONS, INCLUDING REPRESENTATIVES OF THE MEDIA, MUST ENSURE THAT THE REPORTING RESTRICTION ORDER IS STRICTLY COMPLIED WITH. FAILURE TO DO SO MAY BE A CONTEMPT OF COURT.

 

Risk-taking and the Court of Protection

 

I’m always interested in Court of Protection cases that drill down into the key principles of autonomy v safeguarding – the dilemma between whether someone should be free to make decisions that an onlooker would consider to be bad or dangerous, or whether the freedom to make such mistakes is how we learn and grow. Of course, in law, the principle consideration is whether the person has capacity to make the decision – which does not necessarily mean that they understand every nuance of it and have weighed it up like Mr Spock – in daily life, we all make decisions without necessarily giving each and every one much thought.

This case also has important things to tell us about just how rotten a society we live in where someone with autism can be exploited on television for a cheap laugh because they don’t have a great singing voice, and even worse that there are sick men in our society who see someone fragile on television or social media and try to exploit them sexually.

Re Z and Others 2016

http://www.bailii.org/ew/cases/EWCOP/2016/4.html

 

Z is a 20 year old woman who is autistic. There was a time when she was very focussed on becoming a celebrity and wanted to become a singer. As a result, she appeared on the auditions for a television talent show (the show is not named, but readers are not ignorant and can probably narrow it down to one of two or three).

 

 

  • Z attended mainstream school, and told me (I am not sure how reliably) that she had obtained a number of GCSEs. She reported that she had many friends at school, although contemporaneous records in fact show her to have been rather isolated and a loner. After school she went on to train in the field of beauty therapy at a local education college, but her passion has always been, and is, music; Z keenly wishes to be a singer. In 2012, Z appeared in a televised talent show; it was not a success. Sadly she now regards the experience as humiliating and she is embarrassed by her performance. She dropped out of college and became depressed. A referral was made to CAMHS. She started to display risky behaviours; her performance was available to view on the internet, and she was deluged with contacts through web-based social media, mainly from men. She met with some of those who contacted her, some of whom allegedly abused or exploited her. She became sexually disinhibited, and some of her sexual experiences were believed to be non-consensual. Over a period of time, Z received support from SECOS (Sexually Exploited Children’s Outreach Services); although she appeared to show some insight into the risks of her behaviours, it became apparent that she did not always apply this insight or learning into practice, and continued to place herself at risk. The last evidence of this kind of risky behaviour with men now goes back to 2013 or (at the latest) 2014.
  • In 2013, Z was assessed by a clinical psychologist who concluded that she did not have a diagnosis of learning disability, and she retained capacity to make decisions about social contacts.
  • Like many young people, Z occupies her time on different forms of social media. Unlike many, at one time she removed all the privacy settings on her account, and was alleged to post up provocative material about herself. It was said (though she denied it, and I make no finding about it) that she had at one time sent naked photos of herself over the internet for money. For a time, though in my judgment to a much lesser degree now, she craved publicity for her singing, and was focused on becoming a celebrity.

 

 

  • In the January 2015 interview, it appears that Z demonstrated a good degree of insight into the debacle of her talent show audition, indicating that she would decline further opportunities for a repeat for the time being (“not at the moment, I don’t think I’m ready”). She showed a realistic, if not cynical, view of why men had shown such interest in her following her television appearance (“it’s obvious, men wanted sex with me…”). She denied inappropriate use of social media (“I have kept away from social media … I don’t want to go back to square one”), showing an understanding that people contacting her through social media “might be a risk to me”.
  • Dr. Rippon considered that Z showed interest in fame and celebrity status to an “unusual” degree. Dr. Rippon considered that Z had misinterpreted the talent show judges’ comments, and had formed a misguided appreciation of her impressive progression through the audition stages (as a possible object of ridicule rather than through talent). Dr. Rippon was concerned about Z’s “difficulty in processing information particularly that of an abstract nature”, and was of the view that

 

“… during the course of the proceedings, [Z] would struggle to be able to understand the evidence, either in written or verbal form, that is given in Court, process this information and use it to instruct her counsel appropriately. I also do not believe that [Z] would be unable (sic.) to think through the consequences of the instructions which she is providing to her solicitor or understand the risks to herself of any instructions given”.

 

and again later, the Judge describing Z’s presentation in Court and in her evidenc

 

She showed insight into her dismal talent show audition (“it was overwhelming … my nerves seemed to overtake my vocals… it was vocally bad”). She discussed the way in which she had been exploited by men who had contacted her, saying that there was a “bad light” around her at that time

 

The issue for the Court in this case was whether there should be a declaration as to Z’s capacity to

 

i) Choose her residence;

ii) Make contacts with others;

iii) Deal with her care;

iv) Litigate in these proceedings.

 

It was clear that Z had capacity to consent to sexual intercourse – she understood the mechanics of the activity, understood that pregnancy could result and how to mitigate against that and understood the risks of sexually transmitted diseases and how to protect herself.

We have dealt with this issue before as to whether a person who has capacity to consent to sex has the capacity to put him or herself in the position with a potential partner who might pose a risk to them of taking that risk.  Most dramatically in this piece

 

Let’s find you a nice young man

 

where the Court of Protection were trying to put in place a regime for a man who wanted to have homosexual sex and had capacity to consent to it, but no real understanding of how to weigh up a partner as to whether they would meet his needs or treat him violently and badly.  Re A Local Authority v TZ no 2 2014

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

(and I personally think that the CoP got themselves in a tremendous pickle in that case, with good intentions, but ending up with a regime that was utterly unworkable for a real person)

 

 

In this case, the Judge had to weigh up whether Z had capacity in relation to those issues, the dominant one being in making decisions about friendships and relationships

 

  • The Local Authority was perfectly justified in initiating proceedings in June 2014, at what was a very low point in Z’s life when her self-destructive behaviour was posing a significant threat to her well-being, and her capacity to process key decisions was significantly in question. I am inclined to the view (this is not, for obvious reasons, a finding) that she probably did lack capacity to make decisions on the matters under review at that time. However, having reviewed the contemporaneous material with care, and on the evidence available to the court at this hearing, I have reached the conclusion, on a fine balance, that the local authority has not rebutted the presumption of Z’s capacity in relation to the matters under review in this case, at the present time.
  • There is no dispute in this case that Z does suffer from an “impairment of … the mind” within the meaning of the MCA 2005, namely her autistic spectrum disorder, with a secondary component being her learning difficulty. The issue as to her capacity focuses in this case on the functional element of the test. At the heart of the dispute is the assessment of Z’s ability to ‘use or weigh’ information (section 3(1)(c)) about risk to herself, and her ability to keep herself safe in independent living, and in her social contacts. Only if I were to find that Z is “unable” (section 3) (and I emphasise ‘inability’ rather than ‘impairment’ – see again [15] above) to process information relevant to risk (in the ways defined in section 3(1)) could I find her incapacitous in relation to the matters in dispute. As the wording of the statute makes clear, the point in time at which I must capacity is to be tested is now (i.e. “at the material time”).
  • In order to determine Z’s capacity, it is not necessary for her to use or weigh every detail of the respective options available, merely the salient factors (see CC v KK and STCC: [12] above). In this case, it is apparent to me that Z does indeed understand the essential implications of living at home or living independently; as indicated above, Z acknowledged the benefit of having some “guidance” on living independently. She recognised that she would reasonably expect to be allocated a flat, and was able to distinguish between the ‘good’ areas and ‘bad’ areas of town in which to live. I am (perhaps unlike Dr. Rippon) sufficiently persuaded that Z recognises at a material level the benefit of third party support in the event that she is to live on her own. She showed insight into the possible loneliness of living independently; she felt that one of the downsides of leaving home is that she will lose the benefit of having her mother’s “shoulder to cry on” when things are getting her down. She has an outline knowledge of her financial circumstances, and currently appears able to perform basic budgeting. She seems aware that her life is easy now, as all the bills are paid, and she is cared for; I felt that she recognised that she would be giving these comforts up if she were to move. Overall, I am satisfied that Z is able to ‘use or weigh’ the evidence relevant to the matters set out by Theis J in LBX v K and L (see above) at [14].
  • In relation to social contacts, Z needs to be able to weigh up the risks of associating with strangers, particularly those whom she meets through the internet – something which she says that she has indeed learned to deal with through experience. Dr. Rippon acknowledged that, other than with A, there was no evidence of Z making contacts through social media which were of any concern. The fact that she has rejected any ongoing support or care from Dimensions is not evidence in itself that she lacks the capacity to decide on its usefulness. She has articulated her reasons: she does not feel that she currently needs the package, and she feels that the workers are constantly talking about the past not the future, and they ‘talk down’ to her.
  • Dr. Rippon expressed the view in November 2014 (see [29] above), that with time and increased maturity, Z’s ability accurately to assess risk may improve; it is my view that the evidence now available (December 2015) indicates that time and increased maturity, and the benefit of learning from experience, have indeed had that effect. There is no real issue but that 2015 has been a period of relative stability for Z; she has engaged (to a limited extent at least) with the support which is provided for her through Dimensions, and even within the limits of that work, she has impressed the workers with her display of increased maturity. In 2014, Dr. Rippon advised that it would be sensible to re-assess Z’s capacity in “two to three years time”, plainly contemplating a potential future change in capacity, but timescales of this kind are notoriously difficult to gauge, and in my view the evidence appears to have revealed change rather sooner.
  • While it may have been that Z showed an “unusual” degree of interest in fame and celebrity in the past (to some extent in 2014, when first interviewed by Dr. Rippon), and a limited appreciation of the quality of her talent-show performance, I do not find that she continues to hold or display these views. More recent discussions (including her evidence in court) reveal a good degree of awareness of the deficiencies of her performance, and a more realistic appraisal of her quest for fame. At the hearing before me, she impressed as someone who was more than just aware that “people should treat you with respect”, apparently mindful that people had not done so in the past. Dr. Rippon expressed scepticism in her 2014 report about Z’s ability to understand the evidence which was to be given in Court, process this information and use it to instruct her counsel appropriately; this scepticism was I believe misplaced. Z showed a good level of attention to the evidence, gave instructions to her solicitor and counsel, and – even on Dr. Rippon’s own view – answered questions in evidence better than she had during the three previous interviews.
  • Dr. Rippon entirely fairly observed that young adults are generally able to learn from negative experiences, and use this to support their future decision making. She felt that Z had failed to do this; I do not agree. Z’s behaviour in 2013 and 2014 was, I am prepared to accept for present purposes, intensely destructive; I accept Z’s own assessment that she has at least to some extent “learned how to make decisions”. I accept that she has changed, and I was impressed with her own assessment that “… everything has happened for a reason. It made me stronger and made me more mature” (see [30] above).
  • Dr. Rippon indicated that she would be looking for Z to develop and display insight, that she is not putting herself in risky situations and is understanding of other people’s motives; the trip to Brighton to stay with A was risky to some extent, but not more than usually risky for a young person who is in love, and who has met the object of her affections a number of times on home territory before heading off to see her at her home. Moreover, when the Brighton trip became intolerable, she left.

 

 

 

The Judge here recognised that capacity can fluctuate, and that there had been a time when Z had lacked capacity to keep herself safe but had learned from those experiences and now had the capacity to make decisions for herself about who she wanted to spend time with. Will she make the right decision every time? Probably no more than you or I have always made the right decision about friendships or relationships. Getting things wrong is part of life. If you never get these things wrong, you never have the life-enriching experience of getting them right and finding a true friend or a soul-mate or both.  It isn’t for the Court to worry about outcome or to wrap a person in forensic cotton wool – if they have the capacity to make a decision, then they are free to make it, even if you think they are likely to make some bad ones along the way.

 

 

  • As indicated at the outset of this judgment, some risk-taking in adolescents and young adults can be perfectly healthy, such as in sporting activities, or artistic and creative pursuits, travelling, making new friends (including internet dating and friendship groups), or entering competitions. Healthy risk-taking helps young people to learn. Some adolescent risk-taking can be unhealthy and dangerous – casual sexual relationships, unprotected sex, driving too fast on the roads, excessive consumption of alcohol, consumption of non-prescribed drugs, dealing with anger and confrontation. These forms of risk-taking are inherently unwise and unsafe. In dealing with risk issues in relation to a young person in the context of assessment under the MCA 2005, it is necessary to separate out as far as is possible the evidence which indicates that second category of risk taking (unhealthy, dangerous, unwise) from that which reveals or may reveal a lack of capacity. As Lewison LJ said in PC v City of York (above) “adult autonomy” includes the freedom “to make unwise decisions, provided that they have the capacity to decide” (see [64]).
  • Lewison LJ also referred in the same case (PC v City of York) to the need for a “solid evidential foundation” on which the judge’s decision as to capacity can rest. In this case, as I have earlier mentioned, Mr O’Brien invites me to ‘infer’ a continued existence of risk, and Z’s inability to ‘use or weigh’ information relevant to such risk. An inference can barely be described as an evidential foundation, let alone a ‘solid’ one.
  • I have not found this a particularly easy decision, in the main, because more than a year had passed between the filing of the principal evidence and the hearing. Moreover, I am conscious that I am differing in my conclusion from Dr. Rippon, who in many ways was an impressive and helpful witness and who, as I have indicated above (see [52]) also found the case “incredibly difficult”. In differing from Dr. Rippon, I remind myself that her role and mine are distinct: the expert advises and the court decides. While the opinion of an independently instructed expert in a case such as this is “likely to be of very considerable importance” (Baker J in PH v A Local Authority [2011] EWHC 1704 (COP)), as indeed I find her evidence to be, the decision as to capacity is a judgment for the court (see Re SB [2013] EWHC 1417 (COP)), weighing the expert evidence against my findings on the other evidence. I consider that Dr. Rippon may well have been right in her assessment as to Z’s capacity over a year ago (November 2014), but in my judgment, the passage of time and Z’s greater maturity, coupled with some support from Dimensions and enhanced self-esteem through her music, Z appears to have matured, learned from her mistakes, and developed sufficiently in her capacity to make relevant decisions, and keep herself safe. While the Brighton trip illustrates some unwise decision-making, in fact its greater significance lies in its revelation to me (in contrast to Dr. Rippon) that Z had developed sufficient ability to ‘use or weigh’ information which indicated risk, and insight into the consequences of her choices. In the way she described the visit when giving her unsworn evidence, it is apparent that she was alert throughout the trip to the potential hazards (i.e. the events which made her uncomfortable) and when the relationship with A appeared to be deteriorating badly, she took the appropriate step, entirely independently, of returning home.
  • I have conscientiously cautioned myself against considering outcome when determining Z’s functional ability; I repeat this point, as I am conscious that Z is a vulnerable young person who deserves to have, and should be persuaded to receive, support from adult social services going forward. It is tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z’s future; but this would be unprincipled and wrong. I am satisfied in any event that Z currently has a reasonably fulfilling life, which enjoys; she has a loving relationship with her mother who currently cares for her well and who, I hope, could be encouraged to do so for a while longer while Z grows further in maturity and confidence.
  • That is my judgment.

 

If you are wondering, this decision and Re TZ are not in conflict, because the Judge here was satisfied that Z had capacity to make the decisions, whereas in Re TZ the Court was satisfied that TZ did not have the capacity to assess risk for himself  (though had capacity to consent to sex) and thus tried to construct a workable framework in his best interests that would allow him to express his sexuality and desire whilst keeping him safe.  Whether you think that they did so successfully is a matter of opinion….

 

 

Important case regarding learning difficulties

 

It is a Presidential pronouncement, and a long one. So expect it to be cascaded to all Judges and Courts in the next few days.

To be honest, a case that makes the President say this:-

 

  • This is by some margin the most difficult and unusual care case I have ever had to try.

 

is going to be worth a read. It is really difficult.  Just as when many of us read Re B, we felt that the circumstances described by the Court of Appeal and then the Supreme Court didn’t seem to justify a finding that threshold was met and that adoption was the correct outcome, this one made me feel deeply uncomfortable. I don’t think that I agree with the eventual conclusion, though to have decided the case otherwise would have caused a huge shift in the legal approach to such cases.

 

I’m afraid that it is long. And I am also afraid that in my attempts to condense what is a very long judgment into manageable size, some of the nuance and detail will be lost. There is no real substitute for reading the whole thing.

Re D (A child) (No 3) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/1.html

 

This case has appeared in the blog many times.  It is the one where a child was placed at home with parents, who had some learning difficulties, under a Care Order in 2012. The Local Authority then removed that child and placed the child in foster care. So initially it was key case law about the principles in law that apply to a removal of a child under a full Care Order. The LA then decided that their plan was adoption and made an application for a Placement Order. It then took many months of arguing about the lack of availability of legal aid for the parents (and lawyers not only working for free but signing indemnities that if cost orders were made against the Official Solicitor that they would guarantee to pay them out of their own pocket. Doesn’t quite fit with the conspiracy narrative that parents lawyers don’t try…)

It is the plaintive case where the mother cried out during one hearing that nobody seemed to be talking about her child at all, that all of the attention was on regulations and LASPO and fripperies, when what was surely important was the child. Quite so.

Anyway, this is the decision about whether the child should live with the parents, or be made subject to a Placement Order and hence go on to be adopted.

It raises some really challenging philosophical questions – and not ones of idle curiousity but ones that go to the heart of how such cases should be run.

 

  1. Were the things that happened to this child a result of parental deficiency, or were they frankly things that could happen to any child and any parent, but they were pathologised because of the parents known issues?
  2.  Were the failings here attributable to the parents, or the support provided?
  3. Is there such a thing in law as reparative care, or is insisting that a child needs higher than good enough care simply a social engineering argument in disguise (topical, given the proposed reforms to adoption)
  4. Is a parent with learning difficulties treated differently (or discriminated against) than a parent with physical disabilities?
  5. Is a plan that involves extensive professional support and carers really harmful to a child, or is it the sort of thing that happens all the time with children whose parents are very rich?

 

I’m going to steal the arguments in relation to each of these from the submissions of Deidre Fottrell QC  and Sarah Morgan QC contained in the judgment, because the day that I can write something that is better than the way Deidre or Sarah puts it is the day that I’ll be closing up the blog to spend quality time with my Pulitzer Prize.

 

 

  • Ms Fottrell, who it must be remembered acts on behalf of the father but also takes instructions from the Official Solicitor, expresses their deep concerns about what, with every justification, she calls the “notable deficit” in the support being given to the family by the local authority in relation to its failure to provide the father with the adult support services to which, as it eventually conceded, the father was entitled. As she submits, this impacted on the family in two ways: first, the father has not had the support he required, and thus continued to struggle with day to day tasks for himself; and, secondly, this meant that the mother was overburdened by being required to support him – which must have impacted on her ability to look after D. This is not, Ms Fottrell says, a small point, for it undermines the local authority’s case that the parents were fully supported when D was living at home. It is not enough for the local authority to assert that it was committed to D remaining at home and that it provided support. The key issues, she says, are (i) whether the local authority offered the right support and (ii) whether it was entitled to expect, as it did, that the support could be reduced and eventually withdrawn. Her answer to each is clear: No.
  • Ms Fottrell identifies what she suggests are two fundamental flaws at the heart of the local authority’s case. First, she says, there is an inherent contradiction given that the nature of the parents’ learning disabilities is, as she puts it, inherent and unchanging, a fact known to everyone when the original order was made: so the need for ongoing support on an indefinite basis underpinned the care plan approved the court in November 2012. It is therefore, she submits, unfortunate and somewhat harsh for the local authority and the guardian now to be saying that the parents have failed to ‘improve’ their parenting. She suggests that this goes to demonstrate either that the support envisaged was not provided to the extent required or that the local authority’s expectations of the parents were either unclear or unrealistic.
  • Secondly, she challenges the assertion that D needs better than good enough parenting: it is, she says, circular and dangerous and runs the risk of a parent with learning difficulties being held to a different and more onerous standard. It would, she suggests, exclude a parent with learning difficulties who requires support from being able to parent their child if the child also has learning difficulties. She points to what Gillen J said in Re G and A and observes, correctly, that the court has to comply with both Article 8 and Article 14 of the Convention. It cannot be right, she says, for the court to sanction a local authority’s intervention in the family life of a parent with disability in a way which would be discriminatory under Article 14. Moreover, as she points out, there is a positive obligation on the State under Article 8 and that, she submits, in a case such as this, imposes a broad obligation to provide such support as will enable the child to remain with his parents.
  • More generally, Ms Fottrell aligns herself with the submissions put forward on behalf of the mother, to which I now turn. Before doing so, I should mention two other important points made by Ms Fottrell. She challenges the assertion that the parents need support round the clock – a proposition, she submits, not made out on the evidence. And she points out that D has never suffered any physical injuries. Insofar as there are said to have been what can be characterised as ‘near misses’, she poses the question: Are these the kind of incidents, familiar to every parent, where the reaction is ‘there but by the grace of God …? Or were they, in truth, disasters waiting to happen where by some miracle nothing did happen?
  • In conclusion, Ms Fottrell submits that, with the right package of extensive support provided by a combination of Mrs P and the professionals, the parents will be able to care for D safely and appropriately, as the court had intended in November 2012

 

 

  • Ms Morgan and Ms Sprinz acknowledge that the mother has had her difficulties with MB and the foster carers and they do not shy away from some of the things the mother has said about professionals. But they urge me to remember the context. What after all is a parent likely to think about the social worker who has advocated the removal of her child or about the foster carer who is doing what the parent herself wants to do? And they urge me to accept TG’s appraisal of the mother as someone who can – and, they say, will – work with professionals if they are there to assist, support and advise, rather than to assess and monitor, and who treat her as an adult and a mother rather than, as she perceived it, as if she is “stupid.”
  • Moving to the heart of the case, Ms Morgan and Ms Sprinz challenge the assertion that the level of support the parents need carries with it the danger that people other than the parents will in truth be bringing D up and acting as his parents. There are, they suggest, two aspects to this: Is this really the case? And, even if it is, to what extent does it matter? In relation to the second point they caution against the risk of making a value judgment (as opposed to coming to a judgment) if it is, in truth, based upon no more than the circumstances in which the particular parent – these parents – come to need help. They submit that what matters is that the child has a clear and secure knowledge of who his or her parents are. The fact that some parents either need or choose to have assistance with the way in which their children are brought up does not, they say, alter that.
  • Here, as they rightly say, the parents need help. But how, they ask, do these parents, with their particular difficulties, differ from the parent physically disabled by Thalidomide, or the parent who is blind, or a parent with a brain injury as distinct from a learning disability, who may not be able to see or to react quickly to some risk to which their child is exposed. What such parents need, they submit, is that a reasonable adjustment is made for the deficits in their parenting which arise from their own inherent difficulties rather than from neglect or failure or indifference. The fact that such adjustments are made, and that such parents may be receiving a high level of help and support, does not, they say, mean that they are not bringing up their children. Why, they ask rhetorically, should it be any different for these parents with their difficulties?
  • They suggest that the true approach is best illustrated by those parents who choose to have assistance, for example, parents working long hours who employ a live-in nanny not merely to look after the children while their parents are at work but also to help with the daily beginning and end-of-day routines, or parents who send their children away to boarding school (and will therefore not see their children for days or possibly weeks on end), or the parents moving in circles where, even today, there is a domestic staff cooking the meals and where the children may eat separately from their parents. No doubt, they say, in all these cases the parents hope for continuity throughout the child’s childhood, but, as they point out, that is not the real world. Nannies move on, staff change, teachers leave, so the children are exposed to differing professionals providing care for them at differing stages during their childhood.
  • The point, they say, is that if one steps back and considers not the circumstances which bring about this help with or delegation of parental care but the experience of the child in these various examples it does not differ markedly, if at all, from what D’s experience would be under his parents’ proposals – except that he would probably have rather more parental care. They stress that these are not flippant points. They are made to underline the submission that it is easy to criticise, easy to buy into the notion that there is a way in which parents in care proceedings are expected to take sole unassisted responsibility for parenting and that if they do not or cannot then it is not good enough.
  • Ms Morgan and Ms Sprinz conclude with two further submissions. They reject the guardian’s approach that the parents will need 24 hour wrap-around support. That is not what the mother is seeking, nor is it what she, or the father or D need. Finally, they suggest that there has been an undue emphasis on risk, particularly in relation to D’s safety. Quite apart from the fact that all the incidents relied upon predated the local authority’s volte face, they point out that risk cannot be eradicated from children’s lives, although of course it can and should be reduced. They urge a sense of proportion: of course, a child can fall and poke himself in the eye with a dinner knife, but so too with a pencil, a crayon or a toy. The parents can learn to manage by modelling, which the mother, they say, will accept and learn from. Moreover, as they point out, risks change through time: road safety with a small child becomes internet safety with an older child; bath-time is hazardous for a very small baby but the risk diminishes over time to nothing for the older child. The parents, they urge, with proper training and support will be able to manage the changing risks. The mother, as they point out, has changed in her view of D’s needs and limitations. Earlier on, she was unwilling to accept that there was anything wrong or that he had any difficulties; in her evidence, she was able to acknowledge that that this was not so, saying that “it’s on both sides of his family, so it’s not that surprising.”
  • With proper support, they submit, D’s parents will be able to care for and look after him adequately. They point out that whoever looks after D will need help and support. They urge me to be rigorous in my Re B-S analysis, carefully evaluating and balancing the benefits to D of returning to his home to be looked after by devoted parents who love him very much and who have done and always will do their very best to care for him, accepting him and loving him as he is, against what they suggest are the unknowns and perils of adoption, particularly for a child with D’s characteristics. My assessment of what the parents propose for D must, they submit, be based upon the full support package proposed, that is, with input from A+bility, the local authority, other professionals and Mr and Mrs P. Adoption, they say, is not a panacea. I should be cautious about accepting the local authority’s rather sanguine view as to the ease with which suitable adoptive parents will be found – a view based, they suggest, on a limited understanding by that part of the local authority of D’s particular needs and complexities. They urge me to feed into my evaluation the risk that D may not be adopted and thus end up remaining in foster care.
  • At the end of the day, as they rightly observe, it is not my task to find a ‘better’ family for D if, in truth, his parents, with proper support and assistance, can provide him with good enough parenting. I must be vigilant not to countenance social engineering.

 

 

Okay, to be fair, I have not also quoted from the counter submissions from the Local Authority and the Guardian, who make a series of very good points also. But the argument is challenging nonetheless.

I felt when I was reading the judgment that the President was very drawn to the spirit of these arguments, and there’s a passage where he makes it explicit that he was striving to reach a conclusion that would have returned D to his parents care.

 

 

  • Ms Fottrell, Ms Morgan and Ms Sprinz join in submitting that, with the benefit of the right package of extensive – what they accept will need to be very extensive and intensive – support, with all the right input from A+bility, from the local authority and other professionals and from Mr and Mrs P, the parents will be able to provide D with adequate care, today, tomorrow and well into the future, indeed throughout the remainder of his childhood.
  • In response, the local authority and the guardian make three essential points, with each of which I am, sadly, at the end of the day, driven to agree:

 

i) The first is that the proposed package will simply not work, is simply not sustainable for as long as it would have to be maintained in place to meet D’s needs. Despite the best intentions of the parents, they have, the mother in particular, great difficulty in accepting guidance, advice or support when it does not fit in with their own views. The experience of what happened between November 2013 and March 2014 is, unhappily, an all too likely predictor of what will happen again. I am driven to conclude that the parents – through absolutely no fault of their own – will simply not be able to maintain over the ‘long haul’ the effective working partnership with the support team which is essential if the package is not to collapse.

ii) The second is that, even if the package can somehow be maintained, the gap between what the parents can offer D and what he needs is very large indeed and, sadly, in my judgment, simply too large to be capable of being bridged by even the most extensive support package. I refer, without further citation, to what I have already set out (paragraphs 145-149). I am driven to this conclusion after the most careful consideration of all the evidence, including, of course, the important evidence of Mrs P, which points in the other direction.

iii) The third is that even if a sustainable package could be devised which was in one sense capable of bridging the gap, it would not in fact be promoting D’s best interests. His parenting would, in reality, become parenting by his professional and other carers, rather than by his parents, with all the adverse consequences for his emotional development and future welfare identified by MB, by Ms Randall and by the guardian.

 

  • In relation to this last point I must, of course, address the powerful and perceptive submissions of Ms Morgan and Ms Sprinz (paragraphs 116-119). There is much in what they say with which I agree. And in many cases their analysis would indeed point in the direction to which they would have me go. But at the end of the day the outcome will always be case specific, dependent upon the particular, and often, as here, unusual, facts of the particular case. In the present case there are, in essence, two reasons why on this point I am unable to follow Ms Morgan and Ms Sprinz. The first is that this is only one of three quite separate reasons why, as I have said, no sustainable and effective package can be devised – so this particular point is not, in fact, decisive. The second reason flows from their submission (paragraph 116) that what matters is that the child has a clear and secure knowledge of who his parents are. But that, in the light of what MB, Ms Randall and the guardian have all told me, would at best be very questionable here.
  • I confess that I have struggled hard to try and find some proper basis upon which I could conscientiously have come to a different conclusion. But at the end of the day, and for all the reasons I have given, I am driven, however reluctantly and sadly, to the conclusion that D must be adopted. I am satisfied that ‘nothing else will do’; that D’s welfare throughout his life requires that he be adopted; and that his parents’ very understandable refusal to consent to his adoption must be dispensed with.

 

In effect, the President’s decision was that adoption was the right outcome for the child because it was not possible to devise any plan that would work to keep the child at home with the parents and have his needs met, partially because of the scale or what was needed and partly because the parents understandable issues with professionals would cause any such plan to break down.

 

On the reparative care point (for a particular child can the LA say that the parenting required is higher than ‘good enough’ because of the child’s needs) the President says this:-

 

 

  • Finally, the question of whether D needs ‘good enough’ parenting or ‘better than good enough’ parenting. There is, I think, a risk of this becoming mired in semantics. The reality is clear and simple. As Ms Randall put it, D has complex special needs (paragraph 76). The guardian expressed the same view when she said that D’s care needs are over and above those of other children of his age (paragraph 95) and said that, because of his own difficulties, D will need additional support both through childhood and as a young adult (paragraph 100). I agree with those assessments.
  • Ms Randall went on to express the view that in these circumstances D will require ‘better than good enough’ parenting in order to achieve his potential (paragraphs 76, 82). Although this is a conventional way of expressing it, the real point surely is this. What is required is parenting which is ‘good enough’, not for some hypothetical average, typical or ‘normal’ child, whatever that means, but for the particular child and having regard to that child’s needs and requirements. Where, as with D, the child has needs over and above those of other children of his age, then what is ‘good enough’ for him may well require a greater level of input. D, in my judgment, plainly will. That is the point, and that is what is relevant, and in this case highly relevant. The descriptive label is merely that, a convenient form of professional shorthand. I make clear that in coming to this conclusion and in expressing myself in this way I have very much had in mind and taken into account Ms Fottrell’s submissions.

Somewhat side-stepped so as to preserve the principles of “good enough” parenting, but stressing that it must be “good enough” for this particular child with these particular needs.

 

 

  • Standing back, I return to the questions I posed at the outset: Given that these are parents who the local authority, the guardian and the court agreed in November 2012 were able to provide their son D with good enough parenting, given that that conclusion was endorsed by the local authority on 3 February 2014 after careful evaluation and in the light of a very careful core assessment completed as recently as 29 January 2014, What has happened? What has changed? Why is the local authority now proposing, and why am I agreeing to, something so radically different?
  • The answer, in my judgment, is to be found in a telling phrase used by the guardian and a question posed by Ms Fottrell. As long ago as November 2012 the guardian had described the local authority’s plan as “courageous”. The sad reality is that it turned out to be too courageous. Ms Fottrell, as we have seen, posed the question of whether the reason D was removed in March 2014 was because the necessary support had not been provided by the local authority or because the local authority’s expectations of the parents had turned out to be unrealistic. In my judgment it was the latter. Despite the very intensive support provided by the local authority, it gradually became apparent, contrary to everyone’s hopes and expectations, that the parents were not able to manage. Matters came to a head in March 2014 when, in effect, if one wants to put it this way, MB admitted defeat and realised that her, and her colleagues’, hopes and expectations were not going to be, in reality could not be, achieved.
  • This, as I said at the outset, is a desperately, indeed, a wrenchingly, sad case. D’s parents are devoted to him and have always wanted to do, and have done, their very best for him. They would never harm him, and have never done so. They are not in any way to blame. They are not to be criticised. It is not in any sense their fault. They have struggled against great odds to be, as they would want to be, the best possible parents for D. But ultimately it has proved too much for them. Their own difficulties are simply too great. My heart goes out to them.

 

 

The President also imports some new principles / approaches into English law, by borrowing from a decision in an Irish Court.

 

 

  • This leads on to the profoundly important of observations of Gillen J, as he then was, sitting in the Family Division of the High Court of Justice in Northern Ireland, in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5. So far as I am aware, his decision has never been reported, but the transcript is freely available on the BAILII website.
  • Gillen J referred to a number of papers and reports, including “Finding the Right Support”, a research paper from Bristol University’s Norah Fry Research Centre funded and published by the Baring Foundation in 2006. He continued:

 

“A reading of these documents leads me to set out a number of matters which I feel must be taken into account by courts when determining cases such as this involving parents with a learning disability particularly where they parent children who also have a learning disability.”

He then set those matters out in eight numbered paragraphs. Although lengthy, they are so important that they require quotation in full. Accordingly, I set them out in an Annex to this judgment. I respectfully agree with everything said by Gillen J. I commend his powerful words to every family judge, to every local authority and to every family justice professional in this jurisdiction.

 

David Burrows and I will probably ponder for aeons as to whether this is actually binding on anyone, and whether it actually forms part of the decision or is simply part of the President’s stylistic approach to judgments whereby they are part judgment, part speech, part policy initiative and part a Practice Direction without a consultation process. But for non geeks, it is a pretty simple message. Follow this stuff, or else.

 

 

  • Extract from the judgment of Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5:

 

“(1) An increasing number of adults with learning difficulties are becoming parents. The Baring Foundation report records that whilst there are no precise figures on the number of parents with learning difficulties in the population, the most recent statistics come from the First National Survey of Adults with Learning Difficulties in England, where one in fifteen of the adults interviewed had children. Whatever the figure it is generally recognised that their number is steadily rising and that they represent a sizable population whose special needs require to be adequately addressed. The Baring Foundation report refers to national policy in England and Scotland committing government to “supporting parents with learning disabilities in order to help them, wherever possible, to ensure their children gain maximum life chance benefits.” Nonetheless the courts must be aware that surveys show that parents with learning disabilities are apparently more likely than other parents to have their children removed them and permanently placed outside the family home. In multidisciplinary jurisdiction such as the Family Division, it is important that the court is aware of such reports at least for the purposes of comment. It is important to appreciate these currents because the Children Order (Northern Ireland) 1995 places an emphasis on supporting the family so that children can remain with them and obligations under disability discrimination legislation make public services accessible to disabled people (including parents with learning difficulties). Moreover the advent of the Human Rights Act 1998 plays an important role in highlighting the need to ensure the rights of such parents under Articles 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms (“the Convention”).

(2) People with a learning disability are individuals first and foremost and each has a right to be treated as an equal citizen. Government policy emphasises the importance of people with a learning disability being supported to be fully engaged playing a role in civic society and their ability to exercise their rights and responsibilities needs to be strengthened. They are valued citizens and must be enabled to use mainstream services and be fully included in the life of the community as far as possible. The courts must reflect this and recognise their need for individual support and the necessity to remove barriers to inclusion that create disadvantage and discrimination. To that extent courts must take all steps possible to ensure that people with a learning disability are able to actively participate in decisions affecting their lives. They must be supported in ways that take account of their individual needs and to help them to be as independent as possible.

(3) It is important that a court approaches these cases with a recognition of the possible barriers to the provision of appropriate support to parents including negative or stereotypical attitudes about parents with learning difficulties possibly on the part of staff in some Trusts or services. An extract from the Baring Foundation report provides a cautionary warning:

“For example, it was felt that some staff in services whose primary focus was not learning difficulties (eg in children and family teams) did not fully understand the impact of having learning difficulties on individual parents’ lives; had fixed ideas about what would happen to the children of parents with learning difficulties and wanted an outcome that did not involve any risks (which might mean them being placed away from their family); expected parents with learning difficulties to be ‘perfect parents’ and had extremely high expectations of them. Different professionals often had different concepts of parenting against which parents were assessed. Parents’ disengagement with services, because they felt that staff had a negative view of them and ‘wanted to take their children away’ was also an issue, as were referrals to support services which were too late to be of optimum use to the family – often because workers lacked awareness of parents’ learning difficulties or because parents had not previously been known to services”.

(4) This court fully accepts that parents with learning difficulties can often be “good enough” parents when provided with the ongoing emotional and practical support they need. The concept of “parenting with support” must underpin the way in which the courts and professionals approach wherever possible parents with learning difficulties. The extended family can be a valuable source of support to parents and their children and the courts must anxiously scrutinize the possibilities of assistance from the extended family. Moreover the court must also view multi-agency working as critical if parents are to be supported effectively. Courts should carefully examine the approach of Trusts to ensure this is being done in appropriate cases. In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents. Their competences must not be judged against stricter criteria or harsher standards than other parents. Courts must be acutely aware of the distinction between direct and indirect discrimination and how this might be relevant to the treatment of parents with learning difficulties in care proceedings. In particular careful consideration must be given to the assessment phase by a Trust and in the application of the threshold test.

(5) Parents must be advised by social workers about their legal rights, where to obtain advice, how to find a solicitor and what help might be available to them once a decision has been taken to pursue a care application. Too narrow a focus must not be placed exclusively on the child’s welfare with an accompanying failure to address parents’ needs arising from their disability which might impact adversely on their parenting capacity. Parents with learning disabilities should be advised of the possibility of using an advocate during their case eg from the Trust itself or from Mencap and clear explanations and easy to understand information about the process and the roles of the different professionals involved must be disclosed to them periodically. Written information should be provided to such parents to enable them to consider these matters at leisure and with their advocate or advisers. Moreover Trusts should give careful consideration to providing child protection training to staff working in services for adults with learning disabilities. Similarly those in children’s services need training about adults with learning disabilities. In other words there is a strong case to be made for new guidelines to be drawn up for such services working together with a joint training programme. I endorse entirely the views of the Guardian ad Litem in this case when she responded to the “Finding the Right Support” paper by stating:

“As far as I am aware there are no ‘family teams’ in the Trusts designated to support parents with a learning disability. In my opinion this would be a positive development. The research also suggests that a learning disability specialist could be designated to work within family and childcare teams and a child protection specialist could be designated to work within learning disability teams. If such professionals were to be placed in the Trusts in Northern Ireland they could be involved in drawing up a protocol for joint working, developing guidelines, developing expertise in research, awareness of resources and stimulating positive practice. They could also assist in developing a province-wide forum that could build links between the Trusts, the voluntary sector and the national and international learning disability community.”

(6) The court must also take steps to ensure there are no barriers to justice within the process itself. Judges and magistrates must recognise that parents with learning disabilities need extra time with solicitors so that everything can be carefully explained to them. Advocates can play a vital role in supporting parents with learning difficulties particularly when they are involved in child protection or judicial processes. In the current case, the court periodically stopped (approximately after each hour), to allow the Mencap representative to explain to the parents what was happening and to ensure that an appropriate attention span was not being exceeded. The process necessarily has to be slowed down to give such parents a better chance to understand and participate. This approach should be echoed throughout the whole system including LAC reviews. All parts of the Family justice system should take care as to the language and vocabulary that is utilised. In this case I was concerned that some of the letters written by the Trust may not have been understood by these parents although it was clear to me that exhortations had been given to the parents to obtain the assistance of their solicitors (which in fact was done). In terms therefore the courts must be careful to ensure that the supposed inability of parents to change might itself be an artefact of professionals ineffectiveness in engaging with the parents in appropriate terms. Courts must not rush to judge, but must gather all the evidence within a reasonable time before making a determination. Steps must be taken to ensure that parents have a meaningful and informed access to reports, time to discuss the reports and an opportunity to put forward their own views. Not only should the hearing involve special measures, including a break in sessions, but it might also include permission that parents need not enter the court until they are required if they so wish. Moreover the judges should be scrupulous to ensure that an opportunity is given to parents with learning disabilities to indicate to the court that something is occurring which is beyond their comprehension and that measures must be taken to deal with that. Steps should also be taken throughout the process to ensure that parents with learning disabilities are not overwhelmed by unnecessarily large numbers of persons being present at meetings or hearings.

(7) Children of parents with learning difficulties often do not enter the child protection system as the result of abuse by their parents. More regularly the prevailing concerns centre on a perceived risk of neglect, both as the result of the parents’ intellectual impairments, and the impact of the social and economic deprivation commonly faced by adults with learning difficulties. It is in this context that a shift must be made from the old assumption that adults with learning difficulties could not parent to a process of questioning why appropriate levels of support are not provided to them so that they can parent successfully and why their children should often be taken into care. At its simplest, this means a court carefully inquiring as to what support is needed to enable parents to show whether or not they can become good enough parents rather than automatically assuming that they are destined to fail. The concept of “parenting with support” must move from the margins to the mainstream in court determinations.

(8) Courts must ensure that careful consideration is given to ensuring that any decision or judgment is fully explained to such parents. In this case I caused a copy of the judgment to be provided to the parties at least one day before I handed it down to facilitate it being explained in detail before the attendance at court where confusion and consternation could be caused by a lengthy judgment being read which the parents could not follow at the time.”

[I’m rather struck by the underlined words in paragraph 4   In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

Although threshold had already been established in this case when the original Care Orders were made, it does appear that the worst thing that happened to D whilst he lived with his parents before being removed and a plan of adoption approved was that there was an occasion when mother closed a kitchen drawer not knowing that D’s finger was in the way, giving him a swollen and no doubt quite painful finger.  Hmmmm.

The Judge had this to say about that

  • First, the question of D’s physical safety. It is important both to keep this in perspective but at the same time also to understand the real focus of the local authority’s concerns. I start with two obvious but important points. The parents have never done nor, I am satisfied, would they ever dream of doing anything to harm D. And the fact is that, with the sole exception of the occasion when his finger was trapped in the drawer – something that could happen to any child in the care of the most attentive and careful if momentarily distracted parent – D has never suffered any physical harm while in their care. Moreover, the specific incidents to which the local authority understandably draws attention are none of them, viewed in isolation, anything particularly out of the normal; indeed, probably familiar, if we are honest about it, to any parent. On occasions, children do escape. On occasions they find things which may cause them injury if they fall over. On occasions they make more or less perilous journeys up or down potentially dangerous staircases. On occasions parents, in exasperation, throw things.*
  • I should add that I reject any suggestion that the parents have ever been other than caring and diligent in making sure that D receives appropriate medical treatment whenever the need arises. I accept the mother’s explanations as to why, and in my judgment quite reasonably, she took the view that D did not need medical attention after his finger was trapped in the drawer. Whatever she may have said to TG, and the words TG reports are capable of more than one meaning, I reject any suggestion that this was a deliberate attempt by the mother to cover up. She would, I am confident, always have put her child’s safety first. That is simply the kind of mother she is.

[*Expect to see Re D a child No 3 2016 turn up in responses to thresholds for all manner of similar issues over the next few months. This seems to be judicial authority for it being okay to throw things in exasperation and will no doubt be pleaded as such]

He does, however, say that the evidence was that the parents could not properly anticipate risks

 

  • So what is the real focus of the local authority’s concern in relation to safety? Looking to the various views expressed by A+bility (paragraph 52 above), by MB (paragraph 61), by TG (paragraphs 67-70), and by Ms Randall (paragraphs 78-79, 81), all of which are to much the same effect and point in the same direction, and which I have no hesitation in accepting, the problem is a group of difficulties the mother has: in anticipating possible risks (particularly if they are novel); knowing how to react quickly and effectively in the face of potential hazard; not always being able to anticipate or control D’s actions; not being able to transfer past experiences or training into practical precautions next time round (as TG put it, progress ‘in the moment’ tended not to be carried through over time); not being able to bring her theoretical awareness of risk to bear effectively when confronted with a live situation; and not being able to multitask in situations where she might be distracted from her focus on D. TG’s description (paragraph 67) of the contrast between the mother’s fluent explanations and her inability to translate this into practical terms is striking and illuminating, as indeed is the whole of TG’s evidence on the issue of danger.
  • In my judgment, these are very real and very worrying concerns. The cumulative weight of all the professional opinion on the point is compelling in identifying and evidencing just why the professionals are, and in my judgment rightly, so concerned. Not just for the here and now but also for the future, as D, who Ms Randall describes as a child with little sense of danger, becomes more challenging and finds himself exposed to new and different forms of danger.

 

Again, hmmm. In all the time that D lived with the parents (and remember, against a backdrop of the LA REDUCING the practical support to the family), this failure to anticpate risk led to just one injury, a pretty innocuous one.  Have we really here ensured that:-

In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

And I have to ask myself, rhetorically, whether the Judge who decided Re A, would have countenanced within a threshold that a child’s finger was accidentally caught in a drawer that mother was closing IF THE MOTHER DID NOT HAVE LEARNING DIFFICULTIES and that was being used as evidence that her difficulties made her a poor parent?

 

 

 

 

Judge describes police investigation as “cack-handed”

 

The High Court  (Justice Peter Jackson) has just published a judgment (one that was actually delivered a year ago) which has some significant lessons for practitioners.

Wigan Council v M and Others 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/6.html

 

The opening is as clear and cogent a distillation of the pernicious nature of sexual abuse that I’ve ever seen.

 

  • The perpetrators of sexual abuse are inadequate individuals who control weaker people, often children, for their own gratification. Their behaviour is always an abuse of power and usually a breach of trust. They destroy families and blight childhoods. They create dread in their victims by convincing them that the consequences of speaking out will be worse than the consequences of silence. They create guilt in their victims by persuading them that they have somehow willingly participated in their own abuse. They burden their victims with secrets. They poison normal relationships, trade on feelings of affection, drive a wedge between their victims and others, and make family and friends take sides. They count on the failure or inability of responsible adults, both relatives and professionals, to protect and support the victims. Faced with exposure, they commonly turn on their victims, try to assassinate their characters, and get others to do the same. Most often, their selfishness is so deep-rooted that they ignore other people’s feelings and are only capable of feeling pity for themselves.
  • The effects of sexual abuse on the victim can be lifelong, but because of the way perpetrators operate, most abuse goes undetected. It takes courage to ask for help. Victims are beset by feelings of shame, guilt and fear. They should be able to have confidence that their accounts will be adequately investigated and that they will be appropriately supported. Instead, experience shows that the abuse is often compounded by sceptical or inadequate reactions within the family and beyond. It is not always possible to establish where the truth lies, but where it is possible to investigate, there must be a good reason not to do so. The position of a complainant whose allegation is described as ‘unsubstantiated’ is extraordinarily difficult, but sometimes ‘unsubstantiated’ is no more than a euphemism for ‘uninvestigated’.

 

In this particular case, G was 15 years old and made very serious allegations of sexual abuse against her step-father, Mr C.  Although these were reported to the police and social workers, what actually happened was that G was removed from the family home and Mr C remained there with other children, who we now sadly know he went on to abuse.  Dreadfully, one of the siblings that had been abused, B, had been very outspoken during the investigation into G’s allegations that G was lying.

 

 

  • In this case, a 15-year-old girl (who I will call G) told the police and social services that she had been subject to years of gross sexual and physical abuse by her stepfather, who I will call Mr C. Having done this, she was promptly banished from the family home by her mother and forbidden from having any contact with her four younger siblings. She then found a home with a kindly neighbour who looked after her for a year, largely at her own expense. Although the investigating police officer and the girl’s social worker regarded her allegation as credible, she was treated as a child in need and no child protection procedures were invoked; instead, after five months’ absence, it was Mr C who returned to the family home, while G herself remained outside the family. It might well be asked: what was in it for this young person to confide in the authorities if these were to be the consequences?
  • Two months after Mr C’s return, the second child in the family, a now 15-year-old boy who I will call B, told the police and social services that he too had been the victim of exactly the same kind of sexual and physical abuse (though during the earlier investigation he had denied it). He now corroborated his sister’s account and added that Mr C had also made him engage in extreme sexual activity with her, something she then confirmed. High among the distressing aspects of the matter, B described how the abuse continued after Mr C was allowed back into the home.

 

I won’t go into the details of what happened to the children, because it is too distressing and unpalatable for most readers. The judgment is very clear as to why the children’s allegations were true and why Mr C had been proven to have done these dreadful things, and of the failures of the mother to react properly (though she did accept by the time of the hearing that Mr C had abused the children).

Instead, I’ll focus on some of the issues that the Judge identified as failings in the investigative process.

 

 

After the ABE and medical examination of G  (she having alleged that C had been abusing her physically and sexually in unspeakable ways)

 

 

  • On 4 October, a Child and Family Assessment undertaken by the social worker, Ms W, concluded with the decision that the family would be supported via a Child In Need Plan pending the outcome of the police investigation. As part of the assessment G was spoken to, as were the other children. G said that she felt happy and safe living with Mrs D. B said that there was no truth in G’s allegations. The younger children were also spoken to and at a series of meetings work was done to understand their wishes and feelings and to give them keep-safe work.
  • During this period, B wrote a number of fulsome tributes about and to Mr C: for example “I love you more than the world”. In answer to a question “What is the worst thing about my family?”, he wrote “Nothing. Having [G] near him [Mr C] makes me feel uncomfortable in case she says anything else in relation to rumours/allegations about any of my family.” At the same time, B told the social workers that G was a liar and that she was “sick in the head and needs to see a doctor.”
  • The mother told the social workers that G was a liar. She flatly denied that G had told her that Mr C was sexually abusing her or that she had ever seen him hit any of the children.
  • During the preparation of the local authority’s assessment, a meeting took place on 3 October, attended by the mother and by G and B. G was confronted by her mother and brother calling her a liar, while she insisted that she had told the truth. She was very distressed.
  • On 5 November, the police concluded their investigation and determined that no further action would be taken. They did not refer the matter to the Crown Prosecution Service. Mr C’s bail conditions were rescinded and he gradually returned to live with the mother and the younger four children in December after the keep-safe work had been completed.
  • On 20 December, the local authority closed the case. It referred G to its lowest level of support: Gateway Services. She was not even considered to be a child in need.

 

It is almost impossible to read this and not conclude that a decision had been taken that G was a liar and had made up the allegations, which awfully we now know not to be the case. She was telling the truth and if she had been believed, her siblings could have escaped further abuse and harm.

 

It was only really when B made serious allegations of the same sort, and importantly that some photographic evidence was found, that things actually moved forward.

Amazingly, it was not until 13 March 2014 — some nine months after G’s initial allegations — that the local authority lawyers were consulted. Even then, it took another eight weeks for proceedings to be started. There were then a large number of case management hearings, largely directed to extracting information from the police. I agree with the conclusion reached by the local authority and the officer in the case that there should have been an early meeting between the local authority lawyers and the police so that the latter’s files could be inspected. As it was, police disclosure was still arriving on the eve of the hearing.

 

 

These conclusions are tragic and also contain some recommendations as to best practice.

 

 

  • (4) Despite clear warning signs, the statutory agencies did not protect these children. Further significant harm thereby came to G by being excluded from the home and to B by remaining there.
  • The following is a non-exclusive list of the practice issues raised by the evidence:

 

(i) The actions of the police in August 2011 and on 1 June 2013 can only be described as cack-handed. By twice being confronted unexpectedly in the presence of the adults, G was effectively dropped in it. Instead of protecting her, these actions made her situation at home even worse and made it even harder for her to speak about what was happening to her.(ii) Against a background of chronic concerns and previous sexual abuse allegations, the social work assessment of the allegations that G made in July 2013 was superficial and inadequate. As a result, the decision to treat these children as children in need, and subsequently to downgrade their status even further, was plainly wrong. There was no risk assessment whatever. There was no analysis of the issues, merely a recital of facts with no conclusions being drawn – see C270. There was no thinking. There was clear evidence in the form of G’s allegations and the family’s striking response that demanded the invocation of child protection procedures. Instead, G’s emotional needs were forgotten while Mr C returned to the home and in the mother’s telling words “everything settled down”. Had a Child Protection Case Conference been called, it would have been an opportunity for an experienced multidisciplinary assessment of this abnormal situation. Proper consideration could have been given to the real needs of this sibling group. G’s anomalous situation in living without contact with her family in an unregulated private fostering arrangement could have been improved. B could have been protected.

(iii) It is disturbing to consider G’s situation at meetings such as the one that took place on 3 October 2013, where she was made to face the hostility of her family. It is no wonder that she was so distressed.

(iv) It is entirely unsatisfactory that no social worker viewed any of the ABE interviews until October 2014. It is a serious imposition on children to record them speaking about such sensitive matters. The least that they can expect is that their social worker will watch and listen to what they have had to say. If crucial evidence of this kind is not absorbed, it is not surprising if misjudgments follow.

(v) The social workers should certainly have asked for legal advice in 2013, well before the case was closed.

(vi) Although Ms H became the children’s social worker back in October 2013, I am in no way critical of the way that she has carried out her responsibilities. This demanding case was the first to be allocated to her as a newly qualified social worker. She was entitled to rely on her manager for supervision and guidance. The local authority has had the opportunity to present evidence showing what that amounted to, but it has not done so. Having heard Ms H give evidence, the first time that she has done so in any case, I was impressed by her grasp of the issues and her willingness to learn from experience. She inherited a case that had already taken the wrong path and she is not personally or professionally responsible for the consequences.

 

 

 

 

 

Law on adoption to be fundamentally changed

 

The Secretary of State for Education has “unveiled plans” to fundamentally change the law on adoption, many newspapers report today.

This is one of those peculiar unveilings where nothing actually gets unveiled. This announcement is unveiling in the same way as Michelangelo lifting up the cover over David an inch so that people can see it is a statue of a human, possibly a man, almost certainly made out of marble is unveiling the statue.

 

Or being invited to a film premiere, where you are ushered into a room and shown a copy of the poster for the film.

There’s nothing on the DFE website with any actual proposals, any actual intentions, any sort of timescale, or any suggestion as to how it is going to be done. There’s not even a press release available. I’m sure the Press got one, but it isn’t published.  My guess is via statutory instrument, the Adoption and Children Act 2002 has enabling provisions to allow the Secretary of State to make regulations telling Local Authorities and Adoption Agencies to exercise their functions under the Act.  There’s no such power to tell the Courts how to apply the law or tests, so that would require an Act of Parliament. A much longer process, and generally one that starts with a formal proposal to be consulted on.

Anyway, let’s look at what little we do know. I think Community Care’s piece is the best one for that.

 

http://www.communitycare.co.uk/2016/01/14/law-will-changed-increase-adoptions-government-announces/

 

The government has said it will quickly change legislation to make sure councils and courts prioritise placements on the basis of whether they will provide care up to the child’s 18th birthday, and provide the quality of care the child will need to recover from abuse and neglect.

The government said the change would mean that courts and councils always pursue adoption when it’s in a child’s interests. Morgan said it would “make sure decisions rightly prioritise children’s long-term stability”.

 

It sounds to me that this is intended more to be a reform to Special Guardianship – we were after all told at the start of this year that changes to law on that would be imminent, so it would fit.  It seems as though this is focussing on Local Authorities making scrutiny of potential alternative placements with an eye to two things :-  (1) will this placement really endure until the child’s 18th birthday and (2) can the placement offer the quality of care needed to fix any harm the child has suffered  – a concept called “reparative care” and one that’s not so far had a clear place in English law.

One person’s “reparative care” is another person’s “This is social engineering” and it can be a tricky argument to deal with in Court. It will be interesting to see how the draft (or indeed actual) legislation frames it.

Will changes to what Councils have to look at make any real difference on the ground if the legal principles that the Court will apply remain those set out in the Act itself, as developed by caselaw?

Potentially, if the legal change is more about examining the alternatives to adoption, then the DFE / Secretary of State have potentially wider powers to make regulations than under the Adoption and Children Act 2002

s14 (F) (7) The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of special guardianship support services in accordance with plans and reviewing the provision of special guardianship support services.

(8)The regulations may in particular make provision—

(a)about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;

(b)about the way in which a plan is to be prepared;

(c)about the way in which, and the time at which, a plan or the provision of special guardianship support services is to be reviewed;

(d)about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;

(e)as to the circumstances in which a local authority may provide special guardianship support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);

(f)as to the consequences of conditions imposed by virtue of paragraph (e) not being met (including the recovery of any financial support provided);

(g)as to the circumstances in which this section may apply to a local authority in respect of persons who are outside that local authority’s area;

(h)as to the circumstances in which a local authority may recover from another local authority the expenses of providing special guardianship support services to any person.

Potentially the underlined passage could include factors within the assessment that the Court must have regard to.  It would be very rare for Regulations to be made that add boundaries to a Court’s discretion which aren’t contained within the Statute itself – I suppose the precedent would be the various sentencing regulations and guidance for criminal Courts…

I’d also looked at Part I Schedule 11 that sets out the powers of the Lord Chancellor to make regulations in terms of jurisdiction, but that only applies to which level of Court can deal with which particular type of family law case, so it would not allow Regulations to be made about the principles the Court must apply.

Sadly, all of this is in a vacuum of information at the moment. I really wish that rather than giving speeches or press releases announcing a plan, the Government would occasionally put the broad details of what is proposed and timescales and route into the public domain.  At the moment, it is very difficult to see whether this really is a fundamental change to adoption law, or simply writing down in Regulations what almost every Local Authority already does  – they don’t tend to recommend placing children with relatives if they think it is bound to break down or to damage the child. The issue will always be about whether those doubts are capable of being supported by evidence, which when tested actually comes up to proof.

The press release is now up, and Community Care had already wrung every last scrap of actual detail out of it. But for completeness, here it is

https://www.gov.uk/government/news/education-secretary-unveils-plans-to-change-adoption-law

Appointing a professional as deputy, rather than a family member

 

Again, a Court of Protection case.  This time by Senior Judge Lush.

Re A 2016

http://www.bailii.org/ew/cases/EWCOP/2016/3.html

The first thing that leaped out at me in reading this was that the applicant, who was asking that a professional be appointed as a deputy to manage the affairs of her mother, had instructed a QC. That’s pretty rare, and tells me that the case might have a bit of substance. The person opposing the application, D, was the son, and he was in person.

The mother A was 78 and the Judge says “comes from a titled family”, so one assumes there’s some pot of money.  I have to say that from the brief description of her, I liked her enormously.

 

“She told me that she still hears voices but wasn’t able to tell me what they have said recently. She told me about her hobby of sending letters and cards to famous people. She was very keen to discuss the Queen and her plans to send a Christmas present that the Queen would appreciate. When I asked what this would be, she replied, ‘Books, make-up and a lollipop.’ She then told me that she wants to send a ‘woolly animal toy’ to David Cameron’s daughter. Mr Cameron is one of the famous people that she is most interested in and she told me that he had proposed marriage to her in the past, despite having a very glamorous wife already. A told me that she had met the Prince of Wales several times and that he was ‘very easy to be with’. She went on to say. ‘He has eighteen women lovers. I wish he liked me’.”

 

It was very clear from the assessment of her that she lacked capacity to manage her own affairs. There were some previous proceedings about appointing a deputy in 2013, and I note that the Judge remarked that within those proceedings, D’s conduct had been such that a cost order of £7,500 had been made against him.

 

  • After only eighteen months as A’s deputy, C now wishes to stand down, and on 15 January 2015 she filed an application seeking an order that Suzanne Jane Marriott, a partner in Charles Russell Speechlys, Solicitors, London EC4, be appointed in her place.
  • She also made an application for Mrs Marriott, once appointed as deputy, to exercise A’s power to appoint new trustees of certain settlements and appoint herself as a trustee.

 

 

Reading between the lines, and explicitly, D’s frequent and lengthy correspondence had been a factor in C no longer wishing to act as deputy and wanting a professional person to do so.

D generates an enormous volume of correspondence and, even though most of the points he makes are irrelevant, tiresome and repetitious, his correspondence needs to be read by the recipient, if only to confirm that that is simply hot air. Naturally, Mrs Marriott is concerned about the costs implications for A’s estate if she is required to respond to every item of correspondence or e-mail sent to her by D. Accordingly, the applicant has asked the court to direct that Mrs Marriott need only reply to communications from D that appear to be pertinent to her role as deputy, and that she needn’t reply in relation to any relevant point that he raises more than once.

 

D had two chief reasons for objecting to the appointment of Mrs Marriott as a deputy – the first (sensible) was that a professional deputy will generally charge from the estate, whereas a family member would not. The second was less sensible

(a) she is an expert in ‘tax avoidance’, which, I assume, he regards as morally wrong [Mrs Marriott’s response is that her experience of tax avoidance, as distinct from tax evasion, is no greater than that of any other private client lawyer based in the City of London]

 

To be honest, if you have to have someone else managing your financial affairs, that person having a solid working knowledge of the best lawful ways to minimise tax payments from it seems to me to be rather a good thing.

 

Decision

 

  • Since 1959 a family member has acted as A’s committee and subsequently as her receiver and deputy. Sadly, because of D’s conduct, no suitable family member is now willing to act as A’s deputy for property and affairs and there is no alternative to the appointment of a professional.
  • In my judgment, it would be in A’s best interests to appoint Suzanne Marriott as her deputy and as a trustee of the 1978 Settlements for the following reasons.
  • The checklist in section 4 of the Mental Capacity Act is not tremendously helpful on this occasion. I have no idea of A’s own wishes and feelings about the application, and shall assume that she has no particular views on the matter. According to Professor Howard, “she is not able to understand how the Court of Protection and her niece could operate on her behalf and in her best interests.”
  • As regards the views of others who are engaged in caring for her or interested in A’s welfare, the respondent, D, has made his views known and they are outnumbered by those of the applicant and her mother and siblings and the professionals at Macfarlanes who have been looking after the affairs of A and other members of her family for decades, all of whom support C’s application.
  • Few people, if any, are better qualified than Mrs Marriott to act as A’s deputy and trustee. Charles Russell Speechly’s website says that:

 

“Suzanne specialises in cross border and UK tax planning, wills, trusts, contentious trusts and probates, Inheritance Act claims, estate and succession planning, international wills and trusts, non-domiciliaries, mental incapacity and Court of Protection work, heritage property, art, landed estates and charitable trusts. She acts as trustee, executor, deputy, attorney and charitable trustee for many well-known clients and is often appointed by the court in these roles where there are disputes. Suzanne is a notary public practising in the City of London and is a member of STEP, ACTAPS, and the CLA.”

[These are the acronyms of the Society of Trust and Estate Practitioners, the Association of Contentious Trust and Probate Specialists, and the Country Land and Business Association respectively].

 

  • She and her firm have substantial experience of acting as professional deputies and the role of other partners and members of staff should not be underestimated. In July 2015 the OPG published a set of ‘Deputy Standards’ for professional deputies, Standard 3 of which requires professional deputies to “maintain effective internal office processes and organisation”. Amongst other things, this involves establishing clear and effective governance between the named deputy and staff delegated to carry out the day-to-day functions of the role.
  • Both Suzanne Marriott and Charles Russell Speechlys also have considerable know-how in dealing with landed families and private wealth management. I imagine that, in selecting Suzanne Marriott as a potential replacement for C, Macfarlanes consciously looked for someone with a similar practice to their own but with more experience of contentious Court of Protection matters.
  • I concur with the observation made by Mr Justice Newey that, although Charles Russell Speechlys’ fees are likely to be large, it is improbable that they will be excessive because the Senior Courts Costs Office will carry out a detailed assessment of their general management costs on the standard basis each year.
  • With a view to keeping the costs as proportionate as possible, and because I believe that it would be in A’s best interests to do so, I shall allow the applicant’s request, to which I referred in paragraph 33 above, and direct Mrs Marriott to reply only to communications from D that appear to be relevant to her role as deputy and not to reply to any irrelevant communications or to any relevant point that he has raised more than once.

 

[That last paragraph might seem very appealing to lawyers and deputies around the country who are faced with people like D. ]

 

Court of Protection and Criminal Injuries compensation

 

Slow start to the year, I’m afraid. It seems to be only the Court of Protection who are really publishing any judgments so far.

PJV v The Assistant Director Adult Social Care Newcastle City Council 2015

http://www.bailii.org/ew/cases/EWCOP/2015/87.html

 

This one relates to a 23 year old man, who as a child suffered significant brain injuries as a result of being shaken. No convictions resulted, but the persons present at the time he was shaken as a baby were his mother, her boyfriend and his maternal uncle.  An application for compensation was made to the Criminal Injuries Compensation Authority. He was removed from his mother’s care but went back to live with her in 1994 and has lived with her ever since. That had been the proposal put forward by the Local Authority at the conclusion of the care proceedings, that the best place for him was his mother, even if she could not be excluded as a potential perpetrator of his injuries, and the family Court agreed.

His difficulties were serious.

The Appellant will never be able to compete in the open labour market, will never be capable of independent living and will always require daily support. He is not capable of managing his financial affairs and cannot carry out basic tasks such as shopping or cleaning. His difficulties are permanent and are unlikely to improve. He may be able to have children and to marry.

 

That being the case, the amount of compensation awarded was significant. In July 2012, the sum of £3 million pounds was awarded. As by that stage, the man was an adult, albeit one lacking in capacity, the issue for the Court of Protection was to decide how that compensation should be managed.

This particular case was an appeal, decided by Charles J.

The noteworthy passages are probably these:-

 

 

  • I apologise on behalf of the court for the time it has taken to deal with this case.
  • Standing back and for whatever reason it is the case that since some time before June 2012 the Appellant has not had the benefit of an interim award of £500,000 and that since June 2013 he has not had the benefit of the balance of his award in a sum of over £2 million.
  • This is a sorry state of affairs.

 

 

In terms of pragmatic solutions to this issue from now on, which might affect other cases

 

 

  • There is no need for an application to the Court of Protection to finalise an award that CICA, in the proper exercise of its powers under the relevant scheme, decides should be held on trust and so requires to be paid to trustees on trusts that include and do not conflict with terms that CICA is so entitled to require.
  • A deputy appointed by the Court of Protection can be authorised to negotiate and finalise the terms of such an award and so of the trust and to enter into the “Acceptance of Final Award” or the equivalent document for an interim award on behalf of P and thereby finalise the claim.
  • There are number of ways by which such trusts can be declared and evidenced and so by which the result can be achieved that the award moneys are paid to and from the outset are held by trustees on terms properly required by CICA and wanted by the applicant. A convenient and sensible way is that adopted in practice by CICA when the applicant has capacity (i.e. a declaration of trust by original trustees setting out the trusts over the award which will start to operate on payment). No doubt trust lawyers could set up other ways to give effect to the terms and so the trust created by the finalisation of the process of an application for compensation to CICA under the relevant scheme.

 

Charles J was fairly sniffy about the approach of the CICA to the litigation and that it had required some considerable work to extract from them the important principles and policy.

He did also indicate that the CICA’s decision on quantum of an award was not necessarily the last word on that issue.  (A view contrary to that taken by the CICA)

 

 

  • Whilst I acknowledge that in one sense it can be said that the award is in the discretion of CICA, in my view what Senior Judge Lush says in paragraphs 31 to 34 of his judgment must be qualified to make it clear that the decisions made by CICA are not “entirely” in its discretion. This is because it has to make its decisions on a correct interpretation of the relevant scheme and its exercise of discretion under it is subject to challenge applying public law principles. Indeed routes of challenge are provided in the schemes and then from a decision of a First-tier Tribunal.
  • This means that an applicant and so the Court of Protection, a deputy or attorney does not simply have to accept CICA’s decision and can challenge quantum and the terms that CICA seeks to require.
  • Having said that I acknowledge the point made by counsel for the Official Solicitor that a challenge may result in the award not being made or its payment being delayed. But CICA, as a body governed by public law principles, is bound to act fairly and that is likely to preclude a commercial negotiating stance along the lines accept what is offered now or you will not or may not get an award.

 

 

If you are, for some reason, deeply intrigued by the intricate workings of this case and want to read the full judgment, I will warn you that (a) It involves Trusts and trust law (b) it involves the detailed wording of both the Mental Capacity Act and two CICA schemes and (c) The Judge deciding the case was Charles J  (whom I believe may have had a hand in the scripting decisions of the Phantom Menace that decided to turn a film about people fighting with swords made out of light into a film instead chiefly about Trade disputes, embargos and the inner workings of an intergalactic United Nations).  If Charles J ever decides to publish a thriller, I do not foresee that Tom Cruise will be purchasing the movie rights.  Read it if you absolutely have to.

 

 

 

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