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LAA LAA land (or judicially reviewing the legal aid bods and winning)

Posted on May 2, 2013 by suesspiciousminds

Ooh, exciting.  I am grateful to M’learned friend Miss Eleanor Battie of counsel for highlighting this case to me.

T, R and Legal Aid Agency 2013

http://www.bailii.org/ew/cases/EWHC/Admin/2013/960.html

Miss Battie has done a very good summary of the case here, on the UK Human Rights blog

http://ukhumanrightsblog.com/2013/05/02/laa-must-give-reasons-about-funding-expert-assessments-in-care-proceedings-eleanor-batty/

In essence, you may recall that the Legal Aid Agency (previously the Legal Services Commission, previously the Legal Aid Board) implemented, with the express authority of Parliament, a series of measures aimed at reducing the burgeoning costs of expert assessments.  That was a fairly laudable aim, there could be no doubt that we had reached a point where the demand for expert reports was so exceeding supply that there was almost a housing-style bubble with experts being able to name their fee if you wanted them to do the work.

Unfortunately, and in classic State grasping control of an issue style, the baby was thrown out with the bathwater.

Almost every case involving an expert became embroiled in a battle of bureaucracy  (I am reminded of A P Herbert’s beautiful expression “I have been engaged in exhaustive, if one-sided correspondence”) where solicitors got the Court to agree the expert assessment that was needed to fight for their client but then it couldn’t happen because the LAA wouldn’t agree to pay for it.

This culminated in the issue coming before the then President of the Family Division, Wall LJ, who found that his request for a representative of the LAA/LSC to attend and clarify things wasn’t complied with, and when he telephoned, was told more or less (and this isn’t really an exaggeration) Oh, we don’t attend court hearings when we’re ordered to, we get so many of those orders, we just ignore them.

But the President reluctantly concluded that the power to order assessments and order that they be paid for (arising from section 38(6), the Family Procedure Rules and the Calderdale case) had evaporated, and it was now the LSC/LAA who had the final say, not the family Court.

This was in A Local Authority v D S and Others 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

where the President wove a fairly cunning trap for the LSC, although told them up front that this was a trap, and they should be ready for it, that a careful judicial decision that a report was necessary, coupled with careful analysis of why and why the costs were proportionate, would probably pave the way for a judicial review of an unreasonable refusal.

And so we arrived at a mountain of preambles in every single case involving an expert, just in case anyone was going to judicially review the LSC.

We also, in the interim, had Ryder LJ determine that the LSC had the power to say no to paying the costs of an expert assessment where the Court had decided one was needed but the parents had no funding and no money to pay for it.

So, we arrive now at this case, where once again, the Judge asked the LSC to attend/communicate with her and they declined to do so.

The judgment and order directing the expert assessment was very careful and completely D S and Others compliant, yet the LSC refused the assessment.

In the judicial review, Collins J, who accepts from the outset that he is not a family Judge (and thank heavens for that, given that he actually seemed prepared to put the child first, rather than the LAA’s interest), makes it plain that the LSC /LAA have the power to refuse or partly refuse the costs of an assessment ordered by the Court, but that if they do so, they HAVE to give reasons, and the reasons have to take into account that a Judge who knows the case and all of the issues gave a careful judgment saying that the report was necessary.

 [I'm a bit saddened that Collins J, in an otherwise magnificent judgment, resisted the temptation to say "The LAA have great power, but as Spiderman could tell us, with great power, comes great responsibility".  This is why I will never, ever be made a Judge]

The LAA plead the impossibility of this, saying effectively that they say no so often that they don’t have the resources to give reasons each time.

Collins J rolls up his sleeves, takes firm hold of the baseball bat, and knocks that one clean out of the park.

  1. While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.
  1. The letter of 19 March 2013 gives no reasons to explain why the full sum put forward is not approved. Since the defendant appeared through its representative, Mr Michael Rimer, at the hearing of S it was clearly aware of the President’s guidance. Guidance in this field from so authorative source as the President, in a reserved judgment after hearing submissions from, amongst others the LSC, gives rise to a public law duty upon the LSC, capable of being enforced, as the President said, by judicial review. Ms Hewson has sought to rely on the real difficulties faced by the defendant in dealing with the increasing number of applications for prior approval. In the S case it had been shown that following the new funding order in October 2011 introduced as part of the legal aid reform programme designed to save costs applications for prior approval of experts increased from 216 in November 2011 to 1855 in April 2012. That increase has, I was told, continued. Ms Hewson said that 4 employees in an office in Wales now had to deal with some 100 applications each week. That I suspect was something of an exaggeration but the point she was seeking to make was that the burden on those responsible for making the decision was such that they did not have the time to enter into any discussion nor to give any substantial reasons. Attempts to save costs in one way can have an effect which increases costs in another. If as a result of the new rules introduced in October 2011 greater pressure is imposed resources must be provided to meet that pressure. In R(H) v Ashworth Hospital Authority [2003] 1 WLR 127 at paragraph 76 Dyson LJ said this:-

“I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.”

These observations apply a fortiori where there is an absence of reasons when reasons are required.

I have to say, that I am delighted with the outcome, but rather surprised that the facts of this case got it. The expert assessment was for 180 hours, and the LAA originally agreed 130.

Given that their guidance figures for assessments are FAR FAR FAR below that, and the assessment costs as a whole were over £31,000 when the usual cost of an assessment has now come down to under £5,000 , the LAA would have had, I think, a decent case (had they (a) given reasons and (b) you know, bothered to file a skeleton argument in the JR case) for saying that the costs in this case were wildly disproportionate   (those costs are rather more akin to the residential assessment that the LAA suspected this was in disguise)

 

So, if you do get a cost of an expert declined, make sure you get the reasons from the LAA, and remember that scarcity of resources to give good reasons don’t make inadequate reasons adequate…

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Posted in case law, costs, experts, judicial review and tagged , , , , , , . Bookmark the permalink.

“Cutting edge forensic linguistics”

Posted on May 2, 2013 by suesspiciousminds

A discussion of the Court of Protection case of PS v LP 2013

 http://www.bailii.org/ew/cases/EWHC/COP/2013/1106.html

 

An interesting case – I don’t cover Court of Protection stuff as often as I should, and this one throws up some interesting ideas about certainty, expertise and cutting edge science.

 This one involved a woman, LP, who had separated from her family and formed a new relationship with a man PP.  The family considered him to be an unhealthy influence on her. PP for his part said that the family had treated LP badly and that she had wanted nothing more to do with them.

 

Disaster struck on 25th August 2008 when LP suffered a cerebral aneurism which has left her severely disabled. She is gravely impaired. It is, I understand, impossible to obtain from her any indication of her wishes at the present time. She is said to be in need of twenty four hour care and resides at a nursing home provided for by the relevant PCT and she is fully CHC funded. It is uncertain whether she knows who or where she is. There is a possibility of an operation to deal with her hydrocephalus but it is by no means certain that this will improve matters. There is a chance it may improve communication and a little improvement might enable her to show like or dislike of ideas or people but any changes are said to be likely to be small.

 

Since that time, she had had no contact with her family. A letter and a will, essentially cutting them out of her life were prepared shortly before this cerebral aneurism

 

  1. On 27th July she apparently signed a document entitled, “Last wishes should my ex-family find Paul and me,” and on 28th July 2008 she prepared a document entitled, “Last Will and Testament.” The letter of wishes is badly spelt and drafted.
  1. The will is clumsily drawn and is likewise written in poor English. It is rambling in parts but that reflects an ignorance of the law and legal niceties rather than an incapacity in some way in that she leaves any inherited monies “in trust” for B, her great grandson, she leaves a necklace to DP, the wife of PP, and everything else to PP, her cohabitee. There was gift over in the event of PP’s demise to R. The will criticises “my ex-husband and siblings” “because of the abuse I received from them.” It does not mention her children but I suspect that is because she did not appreciate the meaning of the word “siblings.”
  1. The letter of wishes recounts a history of alleged physical and mental abuse from JR, PS, JP, PS’s son, and grandson, D2. It refers, in confirming her problems, to Detective Sergeant NL at a police station. It relates how she built up a relationship over the years with PP despite physical and mental abuse from BP. It says that her parents and her brother, R, were pleased that she had found happiness with PP. It ends by resuming criticisms of PS, JR, JP, D2, KR and her husband. There is no doubt that the PS family and BP will have found this letter very upsetting.

 

The family said that this document was not in fact prepared by LP, but by PP and that it was not something that she would have prepared and used words and a style that she would never have used.

 

Additionally, even if those were the wishes and feelings she had recorded shortly before her awful and sudden life-changing illness, were they to be adhered to now?

 

The Court heard evidence from all of the family, and PP, and from the police officer who spoke with LP and PP when the allegations of abusive behaviour by the family were made. The police officer was obviously unable to say whether the allegations were true, but was able to give evidence to the effect that there was nothing in the presentation that suggested that PP was the driving force, or that LP was under his thrall, or being coerced into saying these things.

 

The case then becomes quirky, because in order to consider whether the documents of July were written by LP, the Court authorised the instruction of two Professors, Professor C and Professor PJ, whose expertise was forensic linguistics, and both were operating “at the cutting edge of it”

 

Until today, I was not aware that there even was a field of forensic linguistics, let alone a cutting edge of it, but one lives and learns.

 

  1. How did Professor C’s evidence assist me? He is the Emeritus Professor of forensic linguistics at Aston University and wrote a report of 4th October of last year. I have no doubt about his expertise. His view was this:

“The linguistic evidence is consistent with the hypothesis that the wishes, will and PP’s text were all typed by the same person.”

But he was also cautious and he added this:

“There are, however, no distinctive linguistic features to enable me to express an opinion on whether the author of the three texts was the same.”

So he is much more cautious than Professor PJ and Professor PJ’s evidence, is therefore, the more important.

 

i.e he compared a sample of writing KNOWN to come from PP, with the documents in question and concluded that the writing is consistent with having all been by the same author, but wasn’t able to take the next step and say “The will and letter weren’t written by LP, but by PP”   but just rather that it wasn’t possible to exclude that as a possibility.

 

  1. Professor PJ gave evidence through the court TV video link. He is an Associate Professor of computer science at Duquesne University, Pittsburgh, USA. His specialism is the assessment and evaluation of authorship/ attribution of written pieces of work and he is the author of a programme called JGAAP, Java Graphic Authorship Attribution Programme, a computer authorship analysis system funded by the National Science Foundation of the United States. So his work, to quote Miss Hewson, is “cutting edge forensic linguistics.”
  1. He was asked by those acting for PS to consider the last wishes and the will and the statements of PP. He reported on 27th November to the effect that the letter of wishes and the statements were, in his opinion, written by the same person; in other words, that PP is the true author of the letter of wishes. He did not form the view, however, that the will was written by him but that was because it was of a notably different genre; i.e. a written will in legalistic phrasing. But he did not reject the hypothesis that all three could have been written by the same person.
  1. In addition to his first report, I have read questions put to him by the Official Solicitor and read his replies of 4th January and I have seen his supplementary report. I have noted that he accepted that a person is likely to use similar language and phraseology to that of his partner but he took the view they were not likely to be identical. That supplementary report to which I have referred was filed on 25th January. He had prepared that as a result of seeing an additional document of PP. He ran the same tests as before and noted again that he thought the same person was the author of that second statement.
  1. He maintains his conclusions on this basis: of sixteen tests that he performed, fourteen, he said, show the authorship was similar in that of the letter of wishes and PP’s two statements; and he became quite forceful and firm in his conclusion that PP was, indeed, the author of the letter of wishes.
  1. I have to say the professor’s written reports and his analyses are not an easy read. He has examined in his reports the difference between the style and presentation in various documents in the sixteen tests he conducted and come to the conclusions I have set out. At answer eighteen to the questions raised by the Official Solicitor, he sets out the experiments undertaken as to how he looked at, for example, vocabulary, sentence lengths, word pairs and so on.
  1. I am quite unable to assess the validity of this analysis as a discipline. It is new to me and I know of no UK expert, save the related expertise of Professor C, to which I shall again come, but I do not know the quality and reliability of this kind of expert evidence for it is a relatively new specialism.

 

 

 

Professor PJ goes on to say that he is 99.9% sure, looking at the statement prepared by PP, that the author of that statement was the same person as the author of the letter  expressing the wish not to be involved with her family or see them any more (and thus that LP hadn’t written them).

 

But of course, the Court had to be troubled by the degree of confidence one could have in this science.  And here we get to a very interesting (to me) issue.

 

Professor PJ doesn’t arrive at this conclusion by poring over the samples himself, but by using a computer analysis of the sample documents. And he was the creator of that computer programme, and accepted that over recent years he had made changes and adjustments to the computer programme  (the inference of course, being that these changes had been needed to make it more accurate and reliable, and that one couldn’t anticipate whether subsequent changes might be needed to fix current unknown inaccuracies)

 

In a situation like this, who is the expert? Professor PJ, or the computer? Can a computer programme be an expert? Does the computer have to give evidence ? (“I’m afraid I can’t help you with that…. Judge“)

 

Can the computer analysis be accurate, without the Court knowing much more about it?  Since after all, the science put into the computer programme could be completely accurate, but there could have been an error in the programming, Professor PJ not being an expert in computers but in linguistics.  

Even if the linguistic principles going into the computer are right, could there have been an error in creating the computer programme to analyse? How would one know?

 Could we ever reach a situation in which expert assessments are conducted by computers rather than people?  All exciting geeky sci-fi questions intriguing my imagination. A computer, if programmed correctly, couldn’t be biased, couldn’t be lying, couldn’t be recollecting poorly, couldn’t be inconsistent… but of course, “if programmed correctly” is a very significant element of that – how would you know for sure that biases, incorrect assumptions, improper weighting hadn’t been incorrectly incorporated into the initial programming.

[This stuff is so cutting edge, I haven't even seen it in CSI  - I can now imagine a good storyline in which the computer programme proves who wrote a blackmail letter, or whether the suicide note was really written by the deceased...  And lo, in a quick search for a nice image, I find a good computer programme to assist Horatio Caine in his decision-making]

 horatio caine

 In the event, the Court were not persuaded to make the finding sought by the family that PP had written the letter of wishes, and thus it should be simply discarded.

 

  1. First, I do not doubt the family of LP have shown a considerable degree of care and concern for her in the proceedings before me. I do not think that BP or PS or anyone else in the family poses a physical risk to LP now, whatever the past history may be about which I make no findings. The question for me to look at with care is what is in the best interests of LP as to contact.
  1. I note, of course, that the husband and family of LP are unsophisticated. BP struggled to help me at times during the course of his evidence, although I have sympathy because of his having had two strokes; they have plainly affected his speech, his memory to a degree and his cognitive functioning, but I accept, of course, that his concern for his wife was palpable.
  1. Miss Hewson, second, describes that any decision I should make that BP and PS should be “banned” (her word) from contact would be “a draconian level of interference in LP’s private and family life,” and she seeks that I should draw that conclusion. Of course, it would be a breach of Article 8 rights were it the case that LP’s wishes were not being considered and assiduously weighed up by me and I hope in due course I will come to a careful consideration of the Mental Capacity Act but that Act is compliant with the Human Rights Act and I shall apply, in particular, section 4(6) in due course.
  1. But I remind myself of the decision of the Court of Appeal in the case of K v LBX [2012] EWCA (Civ) 79. In that case the Court of Appeal observed that the right approach under the 2005 Act was to ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights or if that violation is, nonetheless, necessary and proportionate. In that case Black LJ pointed out that:

“Giving priority to family life under Article 8 by way of a starting point or assumption risks deflecting the decision maker’s attention from one aspect of Article 8, private life, by focusing his attention on another, family life. There is a danger it contains within it an inherent conflict for elements of private life, such as the right to personal development and the right to establish relationships with other human beings in the outside world, may not always be entirely compatible with the existing family life and particularly not with family life in the sense of continuing to live within the existing family home.”

  1. Third, Miss Hewson contends the court should not act as some sort of divorce court. Well, of course, it should not and I am not, in deciding as I do, decreeing any form of divorce or judicial separation.
  1. But, fourth, there is no doubt in my mind that LP’s wish not to see her family was quite genuine and of her own volition at the time she expressed it.
  1. I say this because I accept the account of Detective Sergeant NL who seemed to me to be entirely credible. Moreover, I have noted his own expertise in dealing with the vulnerable and his being used to dealing, for example, with honour based violence so he would be more than aware of the possibility of a person’s wishes being overridden by the controlling or threatening behaviour of a member of the family, partner or spouse. No alarm bells rang for him. He saw no need at any time to interview LP on her own. Furthermore, she had the opportunity of saying she was acting under some kind duress when he took PP to the rear of the police station to interview him about the alleged sexual offence and LP said nothing to the desk sergeant or anyone else.
  1. Moreover, I must assume that at the time when she left her family and ran away with PP and at the time she saw the detective sergeant and when she signed the will and letter of wishes she has to be assumed to have capacity to make the decision that she wanted nothing more to do with her family unless the contrary is shown and it has not been.
  1. Fifthly, I do not find PP to be a dominating or bullying man. True he was indignant when Miss Hewson put to him that he had forged the will and the letter of wishes but he showed no sign of being intimidatory or controlling; rather I noted a man deeply affected by the catastrophic injury to LP and hoping, perhaps futilely, that she would somehow improve and be with him. He plainly has no financial motive in running away with her. Not only has she no assets but I understand he has lived on pension credit alone. This man is not a so called gold digger. But he is a man whose memory is inaccurate at times. He cannot have been asked about the sexual assault allegations of N in late 2008. He did not raise with the officer the issue of death threats in June 2008. There was no warrant for his arrest as he claimed. So he has tendency to misunderstand and overstate and his memory is at fault at times.
  1. But, sixthly, for all of that, I am constrained to find that LP signed the will and the letter of wishes and I am so constrained because the signature is similar to the untrained eye, albeit smaller, to the writing on the one postcard and letter of years ago that I have seen. In addition there is the clear evidence of KM. He, of course, did not know what he was witnessing but it is quite clear that LP wanted an independent witness and his account is clear and coherent. He was certain that PP was not there when the documents were signed so there is no obvious evidence of immediate intimidation or improper behaviour. If LP signed the documents of her own volition, then they must, on the face of it, be found to be what she wanted to say. In other words, she did not want to see her family, and that includes her husband of many years standing, and that she wanted to say the bitter things about the family that she then did.
  1. Seventh, I do not find that the poor drafting and inelegant expressions to be found in the letter of wishes and the will should immediately lead me to the conclusion that they are of no effect. Looked at in the round, LP made it quite clear who did she did not wish to see and I do not ignore her wishes simply because they are not expressed very well or elegantly.
  1. Eight, did LP really draft the will and the letter of wishes and feelings? That is a much more difficult question to answer. I do not see in Professor C’s written evidence how he could draw the conclusion quoted by me that he did and his conclusions as to the striking similarity between the will, letter of wishes and statement of PP are couched overall with such caution that I am unable to draw a clear and unequivocal conclusion from his evidence alone. Moreover, there is room for uncertainty, even on Professor PJ’s evidence, as to the will’s authorship so I cannot say she did not draft that or have a part in drafting it.
  1. What specifically of the letter of wishes? Much depends on the credence this court gives to the new discipline in which the professor specialises. There is no doubt the specialism of forensic linguistics is a developing one. The professor himself indicated that to me by conceding that his computer programme had been rewritten in part in recent years because, no doubt, of inaccuracies. I have not been told of any other case in the Court of Protection where this sort of evidence has been used, or, indeed, referred to any other English civil case where this discipline has been found to be of importance in determining the case, or, indeed, of great value or significant assistance. In fairness, I repeat Miss Hewson referred to my having to deal with ‘cutting edge technology’ in the course of the case.
  1. I do bear in mind the recent judgment of the President of the Family Division in the children case of In the matter of TG (A Child) [2013] EWCA (Civ) 5, although, of course, that judgment was issued after I had permitted the expert to be instructed. It seemed to me at the time to be right, however, to admit the investigations of the professor and I acknowledge he has formed a firm view that the author of the letter of wishes is the author of PP’s statements. But I bear in mind that even the professor has in various articles cited to me by Mr. Patel acknowledged difficulties in the technique of authorship attribution. Moreover, each of the tests that the professor employed on his case has a margin of error of up to twenty per cent. I am persuaded by Mr. Patel’s helpful analysis of the documents at paragraph 22E of his final written submission which I now quote:

“Lastly, looking at Professor PJ’s results, W1 is as similar to W2 as W2 is to S and both pairs are less similar than W1 is to S1. Professor PJ explained the difference by saying the gap between W2 and S is, in his opinion, due the difference in the genre of the two documents, W2 being notably different. However, that explanation could account for the difference between W1 and W2, rather than it being attributed to a difference in author. Further, it could also account for why W1 and S are similar to each other as they are documents which are not in a notably different genre. In the Official Solicitor’s submission, the failure to explain the matters set out above may have been due to the bias in instructions. Professor PJ may have been anxious subconsciously to favour an interpretation which supported the positions of the party instructing him and of Professor C for whom he was doing a favour.”

  1. And that leads me, of course, to a slightly worrying aspect of Professor PJ’s evidence which to an extent affects its standing; that is, the manner in which he had become involved. In saying this I make no criticism of the solicitor or counsel for PS. The letter of instructions was perfectly proper. But in evidence Professor PJ agreed he had accepted instructions as a favour to Professor C, whose conclusions, as I have set out, are somewhat uncertain. Second, he simply did not seem to comprehend that the basis of accepting instructions might give the appearance of bias. To say the computer has no friends and does not lie is to avoid the issue and, indeed, does not understand the difficulty. But he did accept that the account of the background that he had received risked introducing bias.
  1. So I view Professor PJ’s conclusions with some caution, though I by no means dismiss them on that basis alone. I cannot find that his conclusions were biased even if I have been given some cause for concern.
  1. I consider, however, that, even if PP did have a part in drafting the letter of wishes and has lied about that, it is much more difficult to discern what that part was. I do not and cannot find that LP’s will was overborne in drafting the letter so my conclusion is that, when PP insists he had nothing to do with drafting this, that, even if he might have played a part, it is not a matter that determines the issue.
  1. So, ninthly, I ask myself, nonetheless, does it matter if PP drafted or helped to draft the two documents or one of them? The other evidence is clear enough. A woman aged fifty nine, not then suffering from any discernible illness or disability at the time, chose to leave her family and her husband with whom she had had a relationship of forty years. She chose to go with PP. She chose to go to a police station with him. She chose only to contact her brother, parents and, if N is to be believed, N. She chose to leave her estate to PP with a gift over to her brother and a “trust fund” to B, the great grandson on whom she doted. These actions may be unkind, ungrateful and even mean spirited. These actions may be inexplicable but they were an adult’s decisions, however justified or unjustified, and not lacking in logical thinking. Even if she was being inaccurate in what she claimed, that is the point. I cannot find and have no evidence on which to base a finding that her will was overborne by PP. This is not a clear case of duress or undue influence. People take inexplicable decisions, if her decisions were inexplicable. I cannot look into the mind of a person back in 2008 and say that she was not then capacitous.
  1. Tenthly, does it matter even if PP has lied as to his involvement in drafting the documents? Assuming for one moment he did, after all, draft them or assist in drafting them, I apply, insofar as they are relevant, the directions in the criminal case of Lucas. I need to determine whether his purported untruths support or undermine his evidence. A witness may lie for many reasons and those reasons do not necessarily denote an attempted fraud or misleading of the court as to the true nature of the case. The alleged lie as to the authorship of the letter of wishes or the will may well have been an attempt by him simply to bolster the case. He is, after all, palpably at odds with the family of LP and wants no contact with them. More than that, he is plainly fearful of them. I cannot and do not find that, in having a part in drafting the letter of wishes and of the will, PP would have substituted his views for LP’s and I cannot and do find, in any event, that the document has been written after LP’s stroke. There remains no evidence that PP forged the letter and its contents are entirely consistent with what was said to the detective sergeant by LP.
  1. Eleventh, then, I do not find that Professor PJ’s evidence takes me to the point at which I must conclude there has been serious misleading of the court by PP. I do not find him to have forged any documents and I believe the will and letter of wishes, by whomsoever they were drafted, to express the genuine wishes at the time of LP, wishes that remained firm at the time of the aneurism. It is a very heavy burden on a party to show that PP has been guilty of fraud, forgery or duress of some sort and PS has not surmounted it.
  1. Twelfth, Miss Hewson asked me to find that the letter of wishes has no legal effect, given the uncertainty as to its genesis. I cannot find that for the reasons I have set out but I bear in mind that the time since it was signed has elapsed and, of course, in fact we cannot tell what LP would have intended in circumstances like the present.

 

 

Having established therefore that the letter and will were reliable evidence for what LP had intended at the time that she had capacity, the Court then had to look at whether those intentions should remain live today, some five years on, and after of course a very serious life-changing illness (which LP had not anticipated  – it wasn’t suggested that she knew it was forthcoming and was effectively writing a “living will”)

 

  1. First, not without very careful thought, I take the view I cannot direct that contact be immediately restored to husband or family and particularly PS, the Applicant, terribly sad though that is. It appears that LP took the decision that her future was with PP and she wished to break with the past. Accordingly, I declare that at present it is in the best interests of LP not to see her family. I say this with great regret and I hope not without sympathy for the family from whom she was estranged but this is not the time to experiment with contact. Unless things change, her wishes must be respected and the position remains as it is.
  1. I find that in coming to that conclusion I have not overridden Article 8 rights but, if I have and to the extent that I have, then that overriding is reasonable and proportionate.
  1. And, second, I come to this conclusion. The time may yet come when it is in the best interests of LP to see her family again but that can, in my judgment, only be when she is capable of expressing a view to that effect. Despite Miss Hewson’s elegantly expressed argument, it is not, in my view, appropriate for there to be a trial period of contact. That said, it is only right the extended family should be kept informed of developments. I, therefore, invite Mr. Patel, on behalf of the Official Solicitor, to suggest now a means by which after approximately every six months contact can be made with PS and her family whereby the family are told whether LP has developed an ability to express, or, indeed, has expressed a genuine wish to see PS and/or the remainder of her family in which event there will be permission to apply on forty eight hours notice for urgent directions to me and I shall reserve the case to myself when available

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Huntingdon’s disease and testing children

Posted on April 26, 2013 by suesspiciousminds

A hearbreakingly sad, but interesting High Court case recently grappled with a very difficult issue

 Re Y and Z (Minors) 2013

 http://www.familylawweek.co.uk/site.aspx?i=ed113400

 

The substantive issues in the case, that the children could not be safely placed with either parent, or within the birth family, were resolved, but the subsidiary and important issue remained that the father was asserting that he, himself, had a family history of Huntingdon’s disease and might potentially have it himself  and could have passed it on to the children. And should therefore, the children be tested for it?

 It is obviously a very serious illness, and is passed down genetically. Anyone whose parent has the disease has a 50% chance of inheriting it. (Thus, if one of the father’s parents had the disease, he had a 50% chance of having inherited it, and the two children each had a 25% chance of having inherited it)

 The faulty gene causes damage of the nerve cells and areas of the brain which in due course leads to physical, mental and emotional change. Anyone whose parent has the disease is born with a fifty per cent chance of inheriting the gene. Anyone who inherits the gene will, at some stage, develop the disease. The symptoms usually emerge when people are between ages 30 and 50, although in some rare instances they arise at an earlier stage. The extent of the symptoms varies from person to person. In the later stages of the disease, the physical and mental disabilities can become profound and, if so, much care and support is required.

 There were, therefore, no immediate consequences for either of the boys concerned, they were 3 and 2 respectively, and were thus many many years away from developing symptoms  [although there could of course be the rare case of earlier onset]

 However, given that the care plan for the boys was adoption, there was a tension between whether there should be a test conducted, so that the boys adoptive carers would know definitively whether one, both, or neither were going to develop Huntingdon’s disease; or whether the counter argument, that the decision as to whether or not to undertake a test is one that rests with the individual concerned and that should not be decided until the individual was of an age to make that an informed decision.

 In essence – is the right of the carers to KNOW more important than the right of the child/person to decide that they don’t WANT TO KNOW?

 It is more complicated than something like, say, testing for diabetes or fragile X syndrome, as the knowledge that you have a disease that will active at some point probably in your 30s and will have a profound effect on your quality of life, must be something which weighs immensely heavily on you. If it were you, would you want to know and be able to prepare for it, or would you rather not know and just live your life under a potential shadow? I don’t know how I would make that decision, and am thankful that I will never have to.

(1)   Social Worker’s Evidence
12. The evidence about the prospect of adoption was provided by the operations manager of the local authority’s adoption team, SS. She has very considerable experience in the social care field including adoption. She was asked to advise as to the prospects of placing the boys for adoption. It is her evidence that, if Y and Z do not have HD, the local authority should be in a position to identify an adoptive placement for them within six months. Although it is more difficult to find adoptive placements for sibling groups, the fact that the boys are young should be a positive factor when seeking such a placement in this case. At present, this local authority has two families approved for a sibling group of two children, together with others whose application to be approved are in the pipeline. In the event that the local authority is unable to find such a placement from its own resources, it is able to widen its searches to seek to find a suitable family from within the region or nationally.

13. SS advises that if, either of the boys have the gene for HD, this will make the task of identifying an adoptive family much more difficult. It is her experience that many adopters are unwilling to offer a home for two children where there is a serious medical condition. SS has consulted colleagues working on the National Adoption Register who expressed a similar view.

14. If no test is carried out, so that it remains uncertain as to whether the boys have the HD gene, it is SS’s experience that this, too, will make it difficult to identify adopters willing to offer the boys a placement

 

[For what it is worth, I think that's probably right - bizarrely, I think there is probably a BETTER chance of finding adopters who would take children on with the disease than who would take them on knowing that there was a CHANCE they would have the disease but no certainty] 

 And the Judge was also taken to the BAFF guidance on genetic testing

 

 

33. Finally, the parties have referred me to a paper produced by the British Association for Adoption and Fostering (‘BAAF’) in 2006 headed ‘Genetic Testing and Adoption’ which makes the following comments about genetic testing, adoption and the rights of children:

“In all circumstances, the best interests of the child must be paramount. However, in adoption proceedings it can sometimes be difficult to judge whether a particular course of action is in a child’s best interests. Each situation will need to be judged on its own merits, taking a number of factors into consideration.

• All children have a right to information about their genetic heritage. Adoptive children who through circumstances beyond their control are not living with their birth parents must not be further disadvantaged by being denied this information.

• Most looked after children, even those from high risk backgrounds, are healthy. Neither birth nor adoptive parents can be ‘guaranteed’ a perfectly healthy child who will develop normally. All parents have to live with risk.

• Potential adoptive parents have certain rights. These rights include the right to be given relevant family history and a full health and developmental profile of the child they are considering adopting.

• There is no evidence that collecting extensive family histories and discussing the potential risks to a child in detail before placement either deters adopters or delays a placement.

• ’Matching’ a child with informed, well prepared and supportive adoptive parents is the best way of ensuring a successful adoption placement.

• All children, whether they are living with their birth families, being looked after by local authority or adopted need protection from the potentially negative effects of genetic testing. Therefore, wherever possible, unless there are convincing indications to the contrary, looked after children should have the same rights as children who are living with their birth families. The threshold for testing should be the same. Testing should never be undertaken to make a child more adoptable.”

 

A particular complication in this case was that although the father had thrown this hand grenade into the court room, he hadn’t produced any evidence as to his own medical records or the medical situation of his family.   (My starting point when reading this case was that you would test the father to see if he had the gene, rather than testing the children, since if he doesn’t have it, the issue simply falls away. You will see, however, that the father decided that he didn’t want to be tested, and of course the Court can’t compel him to do so. And drawing an inference from that, isn’t much help, since one is not interested at all in “forensically” do these boys have the Huntingdon disease gene, you want to know if they “actually” have it)

 

 

(2)   Evidence of HD in the family
16. There is no conclusive evidence, in the form of medical reports or records, demonstrating that any member of this family has HD. All we have are the assertions made by the father that his mother and brother have the disease and that he himself has symptoms consistent with it. No statement from the father’s mother or brother has been put before the court, nor have their medical records been produced. The father has given inconsistent accounts about his own condition. At the case conference on 6th March 2012, he stated that his mother and brother have been diagnosed with HD and that he suspects that he has the condition as well. He has told the police that he has the disease, but told the health visitor that he does not. In his position statement in these proceedings, the father says that he does not know if he has the disease and is himself unwilling to undergo the test.

17. There is therefore some uncertainty about whether the disease is indeed present in this family, and the local authority invites the court to take that into account when making an analysis of the probability that these children carry the gene.

 

 

The Court had some beneficial evidence from Professor Patton, a geneticist (and I would hope that no matter how far we go down the ‘necessary’ route in deciding whether to commission an expert assessment, it will still be available for this sort of specialised thing which is clearly outside the common experience and skillset of the social worker and guardian)

 

21. If the individual is referred for predictive testing, it is Professor Patton’s practice to meet the patient, go through the family history in detail, and try to confirm the diagnosis. He then discusses the nature of HD in terms of its neurological and psychological features, stressing that there is at present treatment but no cure. He discusses the pros and cons of predictive testing and goes through the reasons why people at risk may choose to take the test, for example to reduce uncertainty, because they wish to start a family, or to deal with issues about insurance and employment. He draws attention to the progress in  research and informs the patient that it is his view that there may be new approaches to treatment that will alleviate the condition. After this preliminary consultation, Professor Patton allowed the patient a period of about a month to consider the points raised. Thereafter, if the patient wishes to proceed, the test is taken and the results are available within 4 weeks.

22. Professor Patton helpfully appended to his report and these proceedings a report of a working party of the Clinical Genetics Society (UK) headed the ‘The Genetic Testing of Children’ written in 1994 (J Med. Genet., 1994, 31:785-797), which dealt with a range of genetic disorders. The conclusion and recommendations of the report include the following:

“(1) The predictive genetic testing of children is clearly appropriate where onset of the condition regularly occurs in childhood or there are useful medical interventions that can be offered….

(2) In contrast, the working party believes that predictive testing for an adult onset disorder should generally not be undertaken if the child is healthy and there are no medical interventions established as useful that can be offered in the event of a positive test result. We would generally advise against such testing, unless there are clear cut and unusual arguments in favour. This does not entail our recommending that families should avoid discussing the issues with younger children, but rather that formal genetic testing should generally wait until the ‘children’ request tests for themselves, as autonomous adults. This respect for autonomy and confidentiality would entail the deferral of testing until the person is either adult, or is able to appreciate not only the genetic facts of the matter but also the emotional and social consequences of the various possible test results.

In circumstances where this type of testing is being contemplated, there should be full discussions with both the family and between parents and genetic health professionals (clinical geneticists or non-medical genetic counsellors); the more serious the disorder, the stronger the arguments in favour of testing would need to be.”

23. The working party identified a number of possible advantages and disadvantages of predictive testing in childhood set out in a table at page 790. The advantages included

(1) Relieves anxiety about possible early signs of the disorder.

(2) Family uncertainty about the future is reduced.

(3) More accurate genetic counselling becomes possible.

(4) The child’s attitude towards reproduction in adulthood will be more responsible.

(5) Children who might benefit from genetic counselling in the future might be identified.

(6) Practical planning for education and career, housing and family finances becomes possible.

(7) Parental expectations of the child’s behaviour become altered.

The possible disadvantages included

(1) Removes the child’s right to decide whether or not to be tested in adulthood.

(2) Parental expectations of the child’s future reproductive behaviour become altered.

(3) Damages the child’s sense of self esteem.

(4) Generates unwarranted anxiety about possible early signs, before any genuine manifestation of the disorder.

(5) Leads to future difficulties in obtaining life insurance.

(6) Rarely leads to clarification of the genetic status of other the family members.

24. The working party addressed in particular the merits of genetic testing in respect of children who are being considered for adoption. In such cases, the arguments for testing, in addition to those set out above, include the specific point that appropriate carers may more easily be found for the child. Arguments against testing, in addition to those identified above, would include specific points relating to adoption namely ‘that the diagnosis will label the child and affect the (already difficult) process of identity development [and] that it is irrelevant to the needs of the child for the acceptance as he/she is…..’ The working party continued:

“The arguments will have to be made in each case, but their force will not differ greatly from the standard case of a child in the original birth family, unless it proves difficult to find suitable prospective adoptive parents for a child at risk of a late onset genetic disorder because of the uncertainty surrounding the child’s possible genetic status when either the decision to put the child forward for adoption, or the decision about genetic testing, will need to be reconsidered. In practice, this situation may arise infrequently, but will call for a careful consideration of the child’s overall best interests when it does so. In general, it would seem best, wherever possible, to find adopters who can accept the child as a whole, and subsequently participate in any testing that is appropriate for the child as a confirmed member of their family.”

25. In addition, Professor Patton appended a more recent report, produced for European Huntington Disease Network in 2012 (to be found in Clinical Genetics, 2012) entitled ‘Recommendations for the predictive genetic test in Huntington’s Disease’. These included (as recommendation 2.1):

“It is recommended that the minimum age of testing be 18 years. Minors at risk requesting the test should have access to genetic counselling, support and information, including discussion of all their options for dealing with being at risk.”

To this recommendation, the authors of the document append this comment:

“Testing for the purpose of adoption should not be permitted since the child to be adopted cannot decide for him/herself whether he/she wants to be tested. It is essential, however, that the child should be informed about his/her at risk status.”

 

 

The Court obviously had to give this evidence quite a lot of weight, and even went on to muse about the circumstances in which the Court would ask a medical professional to undertake an exercise or assessment that the medical profession as a whole was not comfortable with.

 

it is submitted that the court should be slow to go against the clearly established position of the medical profession on this issue. On behalf of the guardian, Mr Watson reminds me of the dicta of Lord Donaldson in Re J (A Minor) (Child in Care: Medical Treatment)  [1992] 4 All ER 614 at page 622:
“The fundamental issue in this appeal is whether the court in the exercise of its inherent power to protect the interests of minors should ever require a medical practitioner or health authority acting by a medical practitioner to adopt a course of treatment which in the bona fide clinical judgment of the practitioner concerned is contra-indicated as not being in the best interests of the patient. I have to say that I cannot at present conceive of any circumstances in which this would be other than an abuse of power as directly or indirectly requiring the practitioner to act in contrary to the fundamental duty which he owes to his patient.”

42. I remind myself, however, that, whilst the court must pay particular attention to expert evidence, the ultimate decision is a matter for the court since it is the court which alone has all the evidence upon which to make the decision: A County Council v K D and L [2005] EWHC 144 (Fam) per Charles J at paragraphs 39 and 44

 

 

The Judge therefore carried out a balancing exercise, summarising the benefits and disadvantages of testing (which may be useful in any subsequent case where this issue arises)

 

44. The principal arguments in favour of testing seem to me to be as follows. First, and most importantly, a decision not to direct genetic testing will reduce the number of prospective adopters for the boys. I accept that, if Y and Z cannot be returned to the care of their parents, it is in their interests to be found permanent placements that provide them with as much security as possible. In most cases, adoption is the option that provides the greatest security. In every case, however, an assessment has to be made as to which outcome meets the needs of the children. I accept the opinion of SS and the position of the local authority that, if the tests are not carried out, it will be significantly harder to find adoptive placements for the boys. I do not, however, accept that it will be impossible to find adoptive placements in those circumstances. The guardian considers that it is possible to find adoptive placements for both boys and that accords with this court’s experience of cases involving children being placed for adoption. Many children with profound disabilities are successfully adopted. Nevertheless, I accept that it will be significantly more difficult to find adoptive placements and that this is a factor that points in favour of authorising the genetic testing at this stage. Furthermore, there is considerable force in the argument that matching children with adopters who are fully informed about the children affords the best opportunity for a successful placement.

45. There are, in addition, other factors in favour of authorising testing in this case. As a general rule, all children have a right to be brought up with knowledge of their background and inheritance. Unless and until testing is done, there will always be uncertainty which will affect the children’s carers and in due course the children themselves. I note the point made in the research literature that, as children are not, as a matter of course, tested and thus do not acquire knowledge about the genetic inheritance until they have become adults, the medical consensus against testing in these circumstances is substantially based on assumptions about psychological and social harm rather than empirical evidence. In addition, although there is no course of counselling specifically designed for children to assist them to come to terms with the knowledge that they will develop a serious disease in adult life, it would obviously be possible to devise a course drawing on counselling that is given in other circumstances.

46. On the other hand, there are a number of cogent arguments against carrying out testing in these circumstances.

47. First, it is the general practice not to provide genetic testing to children to determine whether they have a condition whose onset occurs in mid adult life where there is no treatment which could be provided in childhood. I accept the evidence of Professor Patton, who is a world-renowned expert in this field, that it is generally recognised that it is contrary to the interests of the patient for testing to be carried out under the age of 18. Professor Patton describes in careful detail the preparatory steps he takes with all patients prior to a decision being taken about testing. Those steps require the patient to have the capacity to comprehend and reflect on the issues before taking the decision. Professor Patton also describes the programme of therapy and counselling available for dealing with adults who have been diagnosed as having the gene, and for helping them come to terms with the risk of psychological harm and the sociological and economic consequences of the diagnosis. Although as stated above I think it likely that a course of counselling could be devised for children in these circumstances, I accept his evidence that there is currently no set or recognised process for addressing the risks of psychological harm which, I find, will be likely to arise.

48. Secondly, and following from the previous point, I accept the principle that it is undesirable to treat children differently simply because they are being considered for adoption. I accept the argument set out in the BAAF paper quoted above that all children, whether they are living with their birth families, being looked after by local authority or adopted, need protection from the potentially negative effects of genetic testing. Therefore, wherever possible, unless there are convincing indications to the contrary, looked after children should have the same rights as children who are living with their birth families. Save in exceptional circumstances, all other children will be given the opportunity to decide for themselves when they are older whether or not they should have the test. To order testing of Y and Z at this stage would deny them the right to make their own decision when they are older. I reject the submission that this point should carry little weight because it is based on personal autonomy. Manifestly, personal autonomy is part of the characteristics of a child, and thus a factor within the checklist in s.1(3)(d) to be taken into account in any assessment of his welfare. Furthermore, personal autonomy is an integral aspect of a person’s right to private and family life under Article 8. As Dame Elizabeth Butler-Sloss P observed in NHS Trust A v M [2001] Fam 348 at para 41 ,”Article 8 protects the right to personal autonomy, otherwise described as the right to physical and bodily integrity. It protects a patient’s right to self-determination and an intrusion into bodily integrity must be justified under Article 8(2)”. More recently, the European Court of Human Rights has observed in Jehovah’s Witnesses of Moscow v Russia [2011] 53 EHRR 4 (at para 136) that : “The freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is vital to the principles of self-determination and personal autonomy.”

49. Thirdly, as already stated, whilst I accept that it may be harder to find an adoptive placement if there is an unresolved possibility that the boys may carry the HD gene, I do not accept that it will be impossible to find such a placement. Adopters are found for children with profound disabilities with reduced life expectancy. Here, it is very unlikely that a child carrying the gene will develop the disease until mid life. A crucial component of any search for adoption is educating those who come forward. I agree with Professor Patton’s view that prospective adopters should have the option of knowing more about the disorder and in particular how today’s research is leading to the possibility of treatment in the future.

50. Finally, when children have been removed permanently from their birth family, it is important, if possible, that they be placed permanently together. As stated above, there is a significantly greater risk that one boy will be found to carry the gene and the other not. In those circumstances, there is, on the basis of the local authority’s plans, a significant prospect that these children will ultimately be separated. Such a course would not only cause emotional harm to each boy by separating him permanently from his brother but also be likely to cause additional harm to whichever boy is left in foster care in the form of psychological harm through having to grow up with knowledge for which he may not be prepared and the risk of severe damage to his self-esteem. I accept the view of the guardian, and the parents, that this course should be avoided if possible and that the children can be placed together.

51. Balancing all these factors together, I have reached the clear conclusion, on the facts of this case, that it is not in the welfare interests of Y or Z for the court to order testing to establish whether they are carrying the gene for HD. The risk, identified in the consensus of opinion amongst professionals working in this field including Professor Patton, of emotional and psychological harm to the boys if one or both of them has the gene, including the risk of separation of the siblings and the damage to their personal autonomy by being deprived of the right, available to all other children, to decide for themselves when they reach adulthood whether or not to undergo the test, outweighs the risk of harm arising from the likelihood that it will be harder (though not, in my judgment, impossible) to find an adoptive placement if genetic testing is not carried out.

 

 

 

Of course, what the Court was dealing with here was a condition for which a reliable test exists,  and the illness/disease being asymptomatic during childhood, AND of course, the illness/disease had no prospect of being passed on other than in a hereditary way.  It would be, I suggest, less easy to predict the outcome where a parent in such a case posits the suggestion that they are, say HIV positive.  One could argue again, that the young person has the RIGHT NOT TO KNOW and to be able to decide whether or not to be tested when they are old enough, but there might be medical treatment or interventions, or sensible precautions that ought to be taken. That seems to me to be potentially more finely balanced than this one was. Nonetheless, this case seems to me a very good starting point for any debate about testing children for serious illnesses.

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Avoiding catastrophes

Posted on April 26, 2013 by suesspiciousminds

 The peculiar, and desperately sad, case of Re C (A Child) 2013. 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/431.html

This is a Court of Appeal decision which has hit some of the national press. It is the one where a father learns three years after the event that he has fathered a child, and worst still, learns that the child has been made the subject of a Care and Placement Order and placed with adopters.

 He sought to oppose the adoption order, and this was refused. What happened then, was that a Judge heard the application for adoption and made the order (knowing that there was a desire to appeal the decision refusing leave to oppose the adoption order, but it being uncertain as to when that would be).

  1. C, as I shall refer to him, was born on 13 August 2007. The appellant was in fact, though he did not know it at the time, his father. C’s mother was unable to care for him. On 16 August 2007, just three days after he was born, the local authority obtained an interim care order in relation to C from the Family Proceedings Court in accordance with section 38 of the Children Act 1989. The next day, 17 August 2007, C was placed with a foster carer with whom he remained until 28 October 2010. On 1 May 2008 the Family Proceedings Court made a final care order in accordance with section 31 of the 1989 Act, followed on 8 August 2008 by a placement order in accordance with section 21 of the Adoption and Children Act 2002. On 19 October 2010 C was matched with adopters. On 28 October 2010 he was moved to an interim placement while introductions began with the adopters. On 8 November 2010 he was placed with the adopters. He has been with them ever since. On 20 April 2011 the adopters applied to the Principal Registry for an adoption order under section 46 of the 2002 Act.
  1. Thus far, everything had proceeded as might have been expected. At this point I need to go back to the beginning.
  1. The appellant had had a brief sexual relationship with C’s mother in late 2006 at a time when she was living with another man, R. The appellant learned that the mother was pregnant. He asked her if he was the father. She denied it and said she thought R was. The care proceedings were brought and continued on that basis. In 2009 the appellant resumed his relationship with the mother. According to him, it continued until about May 2011. A son, M, was born to them in September 2010. Towards the end of 2010, according to the appellant, his sister saw photographs of C and wondered whether he might be the father; the mother apparently laughed and said she was sure he was not. He says that to him she always said that R was the father, though he admits he began to have doubts.
  1. In about May 2011 the appellant became aware of the adoption proceedings. On 6 June 2011, and again on 20 June 2011, his sister approached the local authority. She was told that they should seek independent legal advice. The first directions hearing followed on 15 August 2011; the order made on that occasion recorded the local authority’s agreement to carry out a DNA paternity test.
  1. On 3 October 2011 a DNA test report from Cellmark indicated that the appellant was C’s father. On 18 October 2011 the results of the DNA test were communicated by the local authority to his solicitors and by them to the appellant. The very next day, 19 October 2011, he filed an application at the Principal Registry under Part 19 of the Family Procedure Rules 2010 seeking “permission to defend/oppose the adoption order” and permission to be joined as a party. The application was made pursuant to section 47(5) of the 2002 Act. It is to be noted that in response to the question “Does your application include any issues under the Human Rights Act 1998?” the answer given was “No”. Directions were given by District Judge Malik on 20 October 2011, 7 November 2011 and 20 December 2011. On the last occasion he had a position statement from C’s mother which set out her position very clearly: “I do not want my child … to be adopted by strangers … I wish to ask the court to place him with his natural father or allow his sister to adopt him”.

The Court made it plain that the Local Authority in the care proceedings, having been assured by mother throughout that the child’s father was a man “R” and that the true father had never come into the equation, were entitled to proceed on that basis and not have to try to investigate the true paternity. By the time the father came forward, the child had already been in the potential adoptive placement for two years and the application was lodged.

The Court of Appeal considered the case and concluded that the initial decision to refuse leave to oppose was correct, and certainly not plainly wrong.

  1. Before Judge Redgrave, the appellant had to clear two fences. First, he had to establish (as he did) the necessary change of circumstances referred to in section 47(7) of the 2002 Act; second, he then had to satisfy the court that, in the exercise of discretion, it would be right to grant permission: Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para [18]. In relation to the second, the question fell to be decided by the application of section 1 of the 2002 Act to the facts of the case, so the paramount consideration for the court was C’s welfare throughout his life: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 1 WLR 2556, [2007] 2 FLR 1069, paras [27], [55].
  1. At this stage a “stringent approach” was required: Re W, para [28], approving the approach adopted by McFarlane J, as he then was, in X and Y v A Local Authority (Adoption: Procedure) [2009] EWHC 47 (Fam), [2009] 2 FLR 984, para [15]. In Re W Thorpe LJ expressed it in this way (para [20]):

“I am in no doubt at all that where a judge exercises a broad discretion as to whether or not permission should be granted at the second stage under s 47(5), the judge must have great regard to the impact of the grant of permission on the child within the context of the adoptive family. Of course, each case will depend upon its particular facts. The present case may be said to be a strong case in the sense that the mother had had no sight of J since the summer of 2007. J had been placed for over a year. J had been told of and had reacted to the making of the adoption order in the spring. To put all these seemingly solid steps into melting question would inevitably have a profoundly upsetting effect on the adopters and the child. So such a consequence should surely not be contemplated unless the applicant for permission demonstrates prospects of success that are not just fanciful and not just measurable. In my opinion, they should have substance. Perhaps, to borrow from the language of Lord Collins of Mapesbury in another sphere, they should have solidity.”

That is, of course, a reference to what Lord Collins said in Agbaje v Agbaje [2010] UKSC 13, [2010] 1 AC 628, para [33].

  1. Ms Fottrell, for whose admirable submissions I am indebted, as is the appellant, distilled her submissions into seven propositions:

i) That Judge Redgrave failed to have due regard to the factors listed in section 1(4), and in particular section 1(4)(c) of the 2002 Act (“the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person”).

ii) That she failed to have due regard to section 1(4)(f) (“the relationship which the child has with relatives, and with any other person in relation to whom the court or agency continues the relationship to be relevant …”).

iii) That she failed to have due regard to the real possibility that C could be placed with relatives and that, considering the known strengths of the appellant and his sister as carers, the merits of his application should have been considered at a full hearing.

iv) That she was disproportionately influenced by the possibility of disruption to the placement, which was not the only consideration when assessing the welfare of the child, and was wrong to conclude and rely on the assertion that a further move would place C at risk of suffering further harm.

v) That she was wrong to conclude that it was implausible that the appellant did not suspect that he was the father of C, having not heard evidence from him.

vi) That she was wrong to conclude that his immigration status was in any way relevant to her analysis.

vii) That, having concluded that she could not assess the ability of the appellant to care for C but that she could not conclude he had no prospect of succeeding (there was a recent assessment of him as a co-carer for M and he was actively caring for a child at the time), she was wrong to conclude that he should not be granted leave to oppose the adoption.

  1. Ms Fottrell identifies the central question for us as being whether Judge Redgrave’s approach was too stringent. She submits that the judge’s approach was to assume that C’s welfare would be adversely affected by a purposeful delay and that too great weight was placed on the fact that C was in the adoptive placement at the time of the application. She supplements this with the additional submissions that Judge Redgrave erred in not considering whether the appellant’s application had ‘solidity’ and in giving insufficient weight to the merits of the appellant’s application to oppose, its prospect of success and the likely benefit to C of being placed with his biological family.
  1. Ms Fottrell also pointed out that, in distinction to both X and Y and Re W, the merits of the appellant’s case had never been considered by any court in the course of either the care or the placement proceedings.
  1. Ms Fottrell relied upon the protection afforded the appellant by Article 8, both in relation to his “private life” and also in relation to his “intended” or “potential” “family life” as expounded in Anayo v Germany (Application No 20578/07) [2011] 1 FLR 1883, paras [60]-[62], Schneider v Germany (Application No 17080/07) (2011) 54 EHRR 407, paras [82]-[84], and, most recently, Kautzor v Germany (Application No 23338/09) [2012] 2 FLR 396, para [75].
  1. Mr Perkins on behalf of both the local authority and the adopters submitted that Judge Redgrave was invested with a discretion that she properly exercised, having regard to the section 1 criteria, in a way that sits comfortably with the current domestic and Strasbourg jurisprudence. Further, he said, even if, which he did not accept, she had included additional matters in her consideration (ie, the appellant’s immigration situation) which she perhaps should not have, her overall assessment and decision was not so plainly wrong as to enable us to interfere.
  1. For the purposes of the appeal, Mr Perkins was willing to assume that the appellant in combination with his sister could provide for C’s physical needs, and to a good standard. But, he submitted, sadly for them the combination of all the circumstances in this case falls well short of Thorpe LJ’s “solidity” test. What he called “the unchallengeable obstacles” are a combination of:

i) the fact that the appellant and his sister are strangers to C, now aged 4; not wishing to be unkind, the sad reality is that they have no relationship whatsoever with him;

ii) the fact that for the first three years of his life C was in foster care, so effectively he has had no experience of natural parental care;

iii) the fact that he has spent the last two years with his adoptive parents and has become settled and attached, no doubt secured by those around him in their expectation that this was to be his permanent home;

iv) the fact that, as the judiciary has already noted positively on a number of occasions, his adoptive placement more than adequately meets his needs, particularly for a placement within a culturally appropriate home; and

v) the risk that setting in train the process now being proposed by the appellant could seriously undermine C’s stability and strike hard against his best interests.

  1. Despite everything that Ms Fottrell has so attractively argued on his behalf, and recognising the bitter heartache this must cause for a father who, it would seem, was cruelly deceived by the mother of his child, I was by the end of the argument on the point entirely satisfied that the appeal against Judge Redgrave’s order had to be dismissed. Standing back from all the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?
  1. In my judgment, Judge Redgrave’s decision as set out by her in a very clear and lucid judgment displays no error of law, no error of approach, whether viewed from a purely domestic perspective or, as one must, from the broader Strasbourg perspective. Nor can it be said that her exercise of discretion was flawed or that it was plainly wrong. In my judgment it was neither. Judge Redgrave addressed the relevant factors and gave them what she thought was the appropriate weight. That was a matter for her, and we cannot interfere unless she was plainly wrong, either in her evaluation of the weight to be attached to them, whether individually or collectively, or in her overall conclusion. She was not. Despite Ms Fottrell’s submissions to the contrary, I do not accept that Judge Redgrave failed to have due regard to, or, as the case may be, was unduly influenced by, the various factors to which Ms Fottrell has drawn our attention

They were not terribly happy that the second Judge, following that refusal of leave to oppose, and knowing that an appeal was being contemplated, went on to make the adoption order.  IF the father had won his appeal against refusal of leave to oppose, that decision to make the adoption order could have made matters very difficult indeed, as overturning an adoption order once made is not straightforward.

  1. The dismissal of the appeal against Judge Redgrave’s order renders academic the proposed appeal against Judge Altman’s subsequent order. I cannot pass it by in silence, however, not least because of the very serious implications if the appeal from Judge Redgrave’s order had in fact been allowed.
  1. It is quite clear that the appellant has locus – status – to appeal against the order made by Judge Altman even though he was not a party to the proceedings at the time it was made: Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [141]. The real question is whether his proposed appeal would have been successful.
  1. The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: Webster para [149]. In that case, the adoption orders “were made in good faith on the evidence then available” (para [177]) and therefore stood, even though the natural parents had suffered a “serious injustice” (para [148]). Webster can be contrasted with Re K (Adoption and Wardship) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (page 227) “inept handling by the county court of the entire adoption process” and (page 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application.” Butler-Sloss LJ held (page 228) that:

“there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

  1. Whether the appellant would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.
  1. In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.

The Court of Appeal (and this is the President of the Family Division, who is even now beavering away on the revised Public Law Outline) had this to add, about the case generally

I cannot part from this case without expressing my very great concerns about what it reveals of our system. The history of the events since 7 February 2012 as I have set them out makes for depressing and profoundly worrying reading. This is not, I stress, necessarily a criticism of those involved, most of whom did what was required of them; it is a criticism of a system whose inadequacies and potential for catastrophe have here been all too starkly exposed. No humanly devised system can ever be foolproof, but we must do everything to ensure as best we can that future catastrophes are prevented.

 

Where a challenge to the making of a Placement Order, or any order consequent to that, is being contemplated, the Court of Appeal say that the following steps MUST be taken  [and adds “when I say must, I mean MUST”]

  1. 48.   i) The appellant’s notice must be filed as soon as possible.

ii) Those advising the appellant must give careful thought to including in the appellant’s notice any appropriate application for a stay or other interim relief.

iii) If a transcript of the judgment being appealed against is not then available:

a) the appellant’s notice must be accompanied by whatever note of the judgment (even if unapproved) is available; and

b) the transcript must be ordered immediately.

iv) When an application for a transcript is received, the court from which the appeal is being brought must deal with the application immediately.

v) Respondents who are parties to any application consequential upon the placement order (eg, an application for an adoption order) must immediately inform both the appellant and the Court of Appeal of:

a) the fact of the making of the application; and

b) the date(s) of any hearing of the application.

The President also indicated that steps are to be taken to deal with the particular logjam in this case, which was that the case could not be appealed until the transcript of judgment was available and that obtaining this transcript had taken many many months, thus preventing a Court of Appeal Judge looking at the appeal application at permission stage and giving directions (which might well have included that any application for adoption should be stayed until the appeal was determined).  None of that really helps, because in this case the LSC would not award funding for the appeal until THEY had seen the transcript, and understandably, counsel drafting the grounds of the appeal needed to see the transcript in order to provide the advice for the LSC that an appeal had a reasonable prospect of success.

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Devon knows how they make it so… necessary

Posted on April 25, 2013 by suesspiciousminds

 

I was going to blog about the new High Court decision in  Devon County Council v EB and Others 2013, but John Bolch of Family Lore not only beat me to it (which is usual) but he said everything that I wanted to say.

So, I commend his feature on it to you.  If you don’t already follow the Family Lore blog, then you should.

I suspect we are about to get a Court of Appeal decision (I hear these whispers) that clarifies that “necessary” in the context of “is this expert necessary” means something rather akin to “If I am to continue living, it is necessary that you stop strangling me”    [what we lawyers might call the Dudley v Stephens interpretation of the word 'necessary'] and moving away from this namby-pamby idea of necessary in that context being anything to do with uncovering the truth, or delivering justice, or providing a fresh pair of eyes on a pivotal and life changing decision, or article 6.

Anyway, in the meantime, read this authority whilst you can still potentially rely on it.

http://www.familylore.co.uk/2013/04/devon-county-council-v-eb-ors-minors.html

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“How safe are our children?”

Posted on April 19, 2013 by suesspiciousminds

The NSPCC report on child abuse and neglect.

 The report can be found here

http://www.nspcc.org.uk/Inform/research/findings/howsafe/how-safe-2013-report_wdf95435.pdf

 and is interesting and well worth a read. It is quite stat heavy, but there are decent graphs which make the points well, and they set out how the stats were arrived at. (One of their core ones, I have an issue with, but will deal with that a bit later on)

The latter bits of the report set out the risk indicators for children, nearly all of which are not likely to come to a shock to anyone working within the family justice system.

You are more likely, as a child, to be physically abused or neglected if these factors are present in your family :-

Domestic violence, substance misuse, parents with mental health problems, parents with learning difficulties, children with physical or mental impairments, children from certain ethnic or minority backgrounds,  parents who suffered abuse themselves as a child, and poverty.

 The poverty one is interesting, because it is the elephant in the room at the moment. Is part of our child protection system, as might be argued by John Hemming and perhaps Dr Dale, a punitive way of dealing with the poorest members of our society (and perhaps even a redistribution of children from those who have them, to those with greater means and income who would adopt them?)

 Also of course, from everything we know about the political climate of the country at present, poverty is only going to get worse over the next few years (unless you were on the Board of HBOS or are a stockholder in Vodafone, Starbucks, Google et al)

 Here’s what the report says about poverty as a risk factor [underlining is mine, as I think this is a VITAL point]

 Children living with poverty, debt and financial pressures

Why is this a risk factor?

Although there is no evidence to show that poverty causes child maltreatment, poverty and child maltreatment share many similar risk factors. Numerous explanations try to explain the relationship between poverty and child abuse and neglect. The impact of the stress associated with poverty and social deprivation on parenting is the most common explanation.

Researchers have found that parents with a low income are four times more likely to feel chronically stressed than parents with higher incomes. Stress levels of parents living in poorer neighbourhoods have been shown to be high. One study identified a “strong relationship between parents’ levels of stress and greater use of physical discipline”. Another associated being in a lower socio-economic group with a more significant level of physical discipline and abuse.

An analysis of women’s childhood experiences of abuse and neglect found evidence that women from poorer childhood homes were twice as likely to have suffered from abuse or neglect and three times as likely to have suffered from more than one form of abuse than those from more well-off childhood homes. Emerging findings from research in England highlight the impact of poor and inadequate housing on families and poor housing is a common characteristic of families in poverty. The unsafe environment and the impact of parental stress have been found to be factors in some SCRs and where children are subject to child protection plans.

 

This does not mean that parents who are poor will abuse or neglect their children. The relationship has been described as “circular and interdependent as opposed to linear and causal”.

 

What we know about prevalence

The Institute for Fiscal Studies estimates that the number of children living in relative poverty in the UK85 was around 2.5 million in 2012, rising to about 2.9 million in 2015.86

 

 Being poor doesn’t mean that you will neglect your children, but being poor of course means that you are much more likely to have to make difficult choices about budgeting and poor choices have a much more detrimental effect.  (If you are choosing between whether to spend £80 or £110 one week on food shopping for the next week, choosing the latter one week doesn’t massively affect your family, but if you are choosing between whether to spend £15 or £25 on shopping that week, and perhaps to spend the extra £10 means not having the heating on, those choices do make a proportionately greater difference to the wellbeing of the family.

 There is an interesting tack in the main body of the report. The NSPCC calculate that for every child known to the authorities to be suffering from abuse or neglect, there are another 8 who are not known.   [This is the statistic I am most cautious about, since it is drawn from an extrapolation of their 2011 study that showed children self-reported abuse or neglect  (6% of over 11s, and 2.5% of under 11s) and applied that to the population at large. For me, I would need the 2011 study to be much larger and more robust before you could start extrapolating it to the population at large – for example, if you are asking a 14 year old whether they have been seriously mistreated by their parents in the last year, that 14 year old’s idea of serious mistreatment might be very different to society’s idea of it. There might well be days when almost any 14 year old would say that his parents were mistreating him]

 But, setting aside my quibble about the number of children who are the bottom part of that iceberg, under the surface and unknown to professionals, the NSPCC say this

 The gap is unlikely to close

Could services ever reach all maltreated children? Even if this were desirable (and few would consider this level of state intrusion into family life appropriate) it is very unlikely in the current context. If children’s social services were to become aware of just one quarter of those children who were maltreated (but not currently known to them), we estimate the number of children subject to child protection plans or on registers in the UK would triple. The resources required for this would be significant: an estimated additional £360 million to £490 million in public spending. In today’s fiscal climate this kind of investment is unlikely; to close the gap altogether is highly improbable. Nor is this the most effective approach. While it is vital to support children and adults in speaking up about abuse, in order to stop abuse in its tracks, this will never be enough to prevent children from being harmed in the first place.

 

 

This seems to be a bold, if pragmatic, thing to say about child abuse. Particularly for an organisation has been campaigning for the last few years on the basis of ending child abuse.  Cruelty to children must end, FULL STOP (remember?)

They are now accepting that society simply can’t end it or stop it. There will always be child abuse and neglect.  And as they point out, even if you raised detection levels to a much higher point, that would have a huge and detrimental impact on freedom and privacy and family life, and the resourcing of the services would be utterly unmanageable for our society to fund.

 So, are the NSPCC throwing in the towel?  Unsurprisingly, not. What they instead posit is moving towards the very early period of child abuse and neglect and nipping that in the bud before it escalates into more serious problems.

 We need a different approach to child protection

 

Which is why a different approach to child protection is needed, one that does more to prevent abuse “upstream” rather than intervening to stop it once it has already happened. Most public spending goes towards picking up the pieces rather than into “upstream” prevention. The National Audit Office estimates that only 6 per cent of public expenditure is focused on stopping problems from emerging in the first place.

 

While intervening to address abuse once it is known will always be a moral and legal imperative, child abuse and neglect will never be substantially reduced unless we become smarter at preventing it from happening at all.

 

Understanding the circumstances in which children are at increased risk is essential for prevention. Research points to the personal characteristics, family circumstances and environments that place children at greater risk of abuse and neglect. In Part 3, we set out the available evidence on this, highlighting nine key risk factors. There is no direct causality between these factors and abuse; they are not predictive of maltreatment. But by recognising that children living in such circumstances are at heightened risk, greater support could be directed towards families to reduce the chances of abuse and neglect from occurring at all. While this support comes at a price, it is ultimately more cost-effective to prevent abuse from occurring than to meet the many costs that fall across society because of the damage caused to children who were abused or neglected in their childhood.

 

Wider society also has an important role to play. Abusive behaviour cannot be stamped out by the state alone; individuals, families and communities must also be responsible for the change. Most adults think parents, families, friends and neighbours have a responsibility to prevent child abuse – and that greater responsibility lies with these groups than with government.

 

So while government can do much to influence the conditions in which children live and while professionals play an important role in intervening to protect children and helping those who are at risk of abuse, wider society has a responsibility too. However, all too often people frame this responsibility in terms of being willing to act if worried about a child, rather than being willing to address faults in their own or others’ behaviour. Perhaps it is time to reassert our responsibilities to children as citizens.

 

 

I can’t say I’m sure how the NSPCC vision here gets translated into action, but I think it is a legitimate and interesting debate to have as a society.  I thought the report as a whole (although I don’t agree with every aspect) was a challenging and thought-provoking document.

 There are some very mind-boggling figures in it

 There were a total of 21,493 sexual offences against children recorded by police in the UK in 2011/12.*

 There were 4,991 rapes of children recorded by police in England and Wales in 2011/12.

 There were 7,812 cruelty and neglect offences recorded by police in the UK in 2011/12.

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“The horse DEFINITELY goes at the BACK of the cart”

Posted on April 18, 2013 by suesspiciousminds

Without further comment, the important part of the speech that the President gave on the process of reform  [the whole speech is good, actually, and is short]

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/pfd-update-process-of-reform.pdf

 

 

26 weeks

A comparatively small number of exceptional cases apart, we can and must meet the 26 week limit. We can, because various pilots and initiatives are not merely showing us that it can be done but, even more important, showing us how it can be done. We must, because if we do not, government and society will finally lose patience with us. I believe it can be done and I am determined to do everything in my power to make sure that it is. My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks

 

[Okay, I lied about no further comment – three cheeky bits. One, this is the umpteenth hint I have seen dropped about it being likely that the Government will take the whole family justice system away from judges and lawyers if we don’t hit 26 week deadlines.  And two – the Children and Families Bill hits committee stage today, which is the first time that any of it has been looked at in any detail at all. It isn't law yet.

 And finally of course, the President can introduce, if he wishes, a Practice Direction saying that the PLO timescale is to be slid down from 40 weeks to 26 weeks, and then it will be LAW that is to be followed, rather than nod and a wink POLICY]

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