RSS Feed

Revocation of adoption order

In this case, Pauffley J had to decide whether to revoke an adoption order that was made in 2004.  That is a very unusual application to hear, and still more unusual to grant.  The only successful applications I’m aware of before this were ones where the adoption order was made before an appeal could be heard and thus the revocation was just to restore the ‘status quo’ so that the appeal could be heard.

 

The major reported case was the one involving the Webster family, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C.  The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/59.html

 

The other notable case involved the young man who had been adopted by a Jewish couple and brought up as a Jew but who learned in later life that his father had been a Kuwaiti muslim and his mother a Catholic  – the adoption meant that he felt he was unwelcome and misplaced in both sets of communities –  he could not live in Israel because of his ethnicity, and was unable to settle in Kuwait because he was officially Jewish.   That case also refused to revoke the adoption order  – rather controversially. Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239

http://www.bailii.org/ew/cases/EWCA/Civ/1995/48.html

 

Thus, you can see that such an application faces a considerable uphill task, when you look at those two cases (where an ordinary member of the public thinking about the facts would have almost certainly revoked both of the orders)

  1. The key passages from each were considered by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609.
  2. I could not improve upon Bodey J’s analysis. He observed it was common ground that “the only possible vehicle for revocation would be the inherent jurisdiction of the High Court … but only in exceptional circumstances.” Bodey J cited a passage from Re B (supra) where Swinton Thomas LJ said this – “To allow considerations such as those put forward in this case to invalidate an otherwise properly made Adoption Order would in my view undermine the whole basis on which Adoption Orders are made, namely that they are final and for life, as regards the adopters, the natural parents and the child. In my judgment, (Counsel) is right when he submits that it will gravely damage the lifelong commitment of adopters to their adoptive children if there is the possibility of the child, or indeed the parents, subsequently challenging the validity of the Order.”
  3. Bodey J also referred to the judgment of Wall LJ (as he then was) in Re Webster v Norfolk County Council) and to the following extract – “Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

 

[There is one reported case called Re M 1991, where the Court did use the inherent jurisdiction to revoke the adoption order, but there’s no link to it, and it is not one that I know at all.   The only links to it are via paysites, but here is a summary I have found of it, via Jonathan Herring in New Law Journal http://www.newlawjournal.co.uk/nlj/content/family-revoking-adoptions

 

 

Wall LJ gave as an example of an exceptional case where an adoption order had been set aside as Re M (Minors) (Adoption) [1991] 1 FLR 458 where two girls had been adopted by their mother and stepfather. The father had consented to the adoption but had not been aware that the mother was suffering from terminal cancer at the time. The wife died soon after, but the stepfather struggled to care for the girls and they returned to their father. The Court of Appeal was willing to set aside the consent order. The primary reason was that the father had consented on the basis of a mistake and that the father would not have consented had he known the truth about his wife’s medical condition.

 

[And a step-parent adoption is a rather different kettle of fish, and the father in that case had consented, but it was a classic issue of him not having been given the accurate state of affairs at the time of that consent]

 

PK v Mr and Mrs K 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2316.html

 

In 2004, PK had been removed from her mother, and placed with adopters, Mr and Mrs K.  However, within 2 years, Mr and Mrs K had placed PK with relatives in Ghana, who went on to considerably mistreat PK.

 

  1. On any view, PK’s childhood has been troubled and disrupted. It might have been thought that when, aged almost four, she became an adopted child her future was assured. Almost certainly, the expectation of the judge who made the adoption order was that PK would enjoy stability, consistency and security as the adopted child of Mr and Mrs K. No professional involved with PK at the time she was adopted could have envisaged that within two years she would be cast out from the home of Mr and Mrs K and sent to live with extended family members in Ghana.
  2. Nor could there have been any indication that whilst in Ghana, PK would be abused by the adults with whom she had been sent to live. Her experience of adoption, particularly the arrangements made for her after the age of six, would seem to have been extremely abusive. She is desperate to draw a line under that part of her life.
  3. When, last year, PK returned to England, she was reunited with her biological mother and maternal grandmother. She is delighted to be back with them.

 

So, should the adoption order be revoked?  There seem to be many positive reasons why it should be. The child has no relationship at all with the adopters, who have (let’s be frank) badly let her down, and is now with her biological family.  But as a matter of law, it is the adopters who have any legal rights about her and not her biological family.  Her biological mother is no longer her mother in law.

 

  1. PK has extremely strong feelings about her legal status. It is very important to her that the court takes account of her wishes and firm views which are that she should no longer be the adopted child of Mr and Mrs K but instead revert to having legal status as a member of her biological family.
  2. PK very much wishes to once more assume the last name of her biological mother to reflect that she is her child and belongs to that family. She urges me to permit her to change her name enabling her to apply for an amended birth certificate and a passport showing that her name is the same as that of her natural mother.
  3. PK remains frightened and wary of Mr and Mrs K. She does not wish them to know precisely where she is living.
  4. There is no potential difficulty, as there was in Re W, Bodey J’s case, arising out of the need to notify PK’s natural parents or for that matter her adoptive parents. In this instance, all of those adults who should be aware of the application have been served. There is no prospective trouble. Mr and Mrs K, by their inaction, have signified their lack of interest in PK’s future. It is probably fair to assume their position is one of tacit acceptance.
  5. PK’s mother and grandmother are thrilled to have her restored within their family. They are committed to providing for her long term future; and fully support her applications.
  6. If I were to decline to revoke the adoption order and refuse to allow PK to change her name back to that of her natural mother, it seems to me that there would be profound disadvantages in terms of her welfare needs. PK would continue to be, in law, the child of Mr and Mrs K. They would have parental responsibility and the legal rights to make decisions about and for her. But there would be considerable, maybe even insuperable, obstacles in the way of them exercising parental responsibility for PK given that they play no part in her life and she wishes to have nothing to do with them.
  7. Moreover, against the background described, there would be emotionally harmful consequences for PK if she were to remain the adopted child of Mr and Mrs K.

 

 

The only counter argument was the “public policy” argument that an adoption order is one that ought to be final and secure and that in revoking orders that principle is undermined and weakened.

 

 

Whilst I altogether accept that public policy considerations ordinarily militate against revoking properly made Adoption orders and rightly so, instances can and do arise where it is appropriate so to do. This case, it seems to me, falls well within the range of “highly exceptional and very particular” such that I can exercise my discretion to make the revocation order sought.

 

 

  1. The only advantage of a refusal of the application to revoke the adoption order would be the public policy considerations in upholding a validly made adoption order.
  2. I am in no doubt. The right course is to allow both applications in these highly exceptional and very particular circumstances and for the reasons given.

 

 

Absolutely the right decision.    [I would also have set aside the adoption order in Re B.  And I would have lost sleep over Webster, but ultimately I think that the passage of time since the orders were made and that the children had made new homes and new lives probably tipped the balance]

 

I don’t think that this is an ‘open the floodgates’ type of case  (though as Jack of Kent points out, the whole point and value of floodgates is that they can open, so it isn’t a bad thing), because the features are just so extraordinary and that informs the entire decision.

Re-e-wind, when the crowd say Bo Selecta!

 

 

(I had to go back and google to make sure I hadn’t used this before as a title – I had not, but I had hankered after it here

 

http://suesspiciousminds.com/2013/11/25/rearrange-these-three-letters-f-w-t/           )

 

This case is Re M, not Re E, but is a case where the Court made a decision to re-e-wind the care proceedings.

 

Re M (a child) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/71.html

 

The case was decided by the President of the Family Division, because it related to a failure of the Legal Aid Agency to provide public funding for the mother to be represented.

Here is the nub of it

 

  1. M was born in December 2011. A skeletal survey in July 2012 revealed a fracture of her arm. The local authority commenced care proceedings the same month (DO12C00164). A finding of fact hearing took place in the County Court before His Honour Judge Bond in December 2012. His judgment is dated 3 January 2013. He found that the fracture was inflicted “by either the mother or the father, the other parent failing to protect M” but that “it is not possible to determine which of the two parents was responsible.” The care proceedings concluded on 15 November 2013 when Judge Bond made a 12 month supervision order and a special guardianship order in favour of one of the mother’s relatives.
  2. On 11 July 2014 the mother made an application to the Family Court (BH14C00470) seeking “discharge of Supervision Order and Special Guardianship Order.” That concealed the true nature of the application. As set out in a skeleton argument dated 23 February 2015 prepared by her counsel, Ms Alison Grief QC, what the mother was seeking was a re-hearing of the finding of fact hearing because of what was said to be a breach of Article 6. Her case was that: i) New evidence demonstrated the full extent of the mother’s disability, rendering her a vulnerable adult.

    ii) The fact finding hearing was conducted without this vital information.

    iii) The integrity of the fact finding hearing was so significantly compromised as to amount to a breach of Article 6, thus necessitating a re-consideration.

  3. The application came before Judge Bond on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others [2014] EWFC 9. He expressed his conclusion in this way:

    “Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.

    I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.

    I therefore give the mother leave to re-open the fact find.”

    Judge Bond added that his decision “does not include any indication of the ultimate result of a re-hearing.”

  4. Given the way in which Judge Bond expressed himself and, importantly, the basis upon which he decided to re-open matters – the fact that, as he found, the mother had not had a fair trial – it is quite clear that the effect of his judgment is, as it were, to rewind the care proceedings, by which I mean the original care proceedings, DO12C00164, back to the point at which the finding of fact hearing was taking place in December 2012. In other words, this is not a case in which the application to set aside the supervision order and the special guardianship order is founded on some subsequent change of circumstance. It is founded on the fact – now established to the satisfaction of the original trial judge – that the mother was denied a fair trial of the original proceedings. In other words, the matter now before Judge Bond is not application BH14C00470; it is the substantive proceedings in DO12C00164.

 

The Legal Aid Agency had treated mother’s application for public funding as being an application to discharge the SGO, which would not get legal aid, rather than an application to be represented in care proceedings, which would.

 

It rather irks me that nobody took the simple solution here, which is – the final orders made in November 2013 are discharged  (on the basis that the hearing was not a fair trial),  and declare that the original application for care proceedings issued in 2012  is now a live application.   The Court could then go on to make either no order (if there is agreement that the child stay with grandparents whilst the matter is being determined) or an ICO (if there is no such agreement).

 

Of course, that is going to absolutely BATTER the Court statistics for that particular Court, since the care proceedings when they finally finish will have taken not 26 weeks, but something more like 150 weeks.

 

So the alternative is:-

 

  1. Discharge the existing orders
  2. Direct that the LA prepare a section 37 report  (which in effect will be their initial statement in fresh care proceedings)
  3. Make an ICO under the section 37 powers
  4. LA apply for fresh care proceedings, on the basis that if they do not, the child will return to mother’s care

 

Either of those solutions mean that the substantive litigation will be done under care proceedings, and thus the legal aid is mandatory non-means, non-merits for the mother.

 

But anyway, given that the case was before the President, what could be done instead is the muscle-flexing don’t mess with the President approach

  1. It may be that the Legal Aid Agency was given inadequate information as to the nature of the proceedings now before Judge Bond, but in my judgment, what is now before Judge Bond – which, to repeat, is the original care proceedings DO12C00164 – is plainly a “special Children Act 1989 case” in relation to which the mother is entitled to legal aid in accordance with paragraph 2 of the Regulations.
  2. There is, therefore, no need for me to consider whether the mother is entitled to look to any other source of funding. It was common ground before me that the effect of the recent decision of the Court of Appeal in Re K and H (Children) [2015] EWCA Civ 543, is to preclude the making of any order against Her Majesty’s Courts & Tribunals Service. Had the need arisen, Mr Tughan would have pressed for an order again the local authority, relying for this purpose on what I said in Re D (A Child) [2014] EWFC 39, para 35. That, unsurprisingly, is an order that Mr Nother made clear his clients would resist.
  3. I trust that the Legal Aid Agency will now be able to move with appropriate speed to ensure that the mother has legal aid for the next and subsequent hearings before Judge Bond.
  4. I make the following order:

    “Upon reading the judgment of His Honour Judge Bond dated 26 February 2015 and the orders subsequently made by Judge Bond

    It is declared that (a) the effect of that judgment is to re-open the proceedings DO12C00164 under section 31 of the Children Act 1989 (b) future hearings before Judge Bond will be of the proceedings DO12C00164 and (c) the ongoing proceedings before Judge Bond are accordingly a “special Children Act 1989 case” within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.”

 

It is not at all clear to me how everyone in the original set of proceedings missed mother’s learning difficulties, thus leading to an unfair trial, but it happened.  Perhaps the State shouldn’t now compound that injustice by failing to give her the free legal advice and representation that she’s entitled to.

 

 

Payne v Payne – rumours of my death have been much exaggerated

 

But now, it looks as though they are finally correct.

If you aren’t familiar with Payne v Payne, it was a Court of Appeal decision about a mother wanting to leave the country with a child and start a new life abroad. The Court of Appeal had provided a set of questions to be posed

 

“(a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?…. Is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated? …

(b) Is [the father’s opposition] motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive…What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?…

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?…”

 

You can see that those questions drive the Court in many cases to approve the mother moving to say Australia, even though the impact on the child’s relationship with father would be devastating.

 

Payne v Payne would have to go down as one of the least-loved decisions of the Court of Appeal, and occasional efforts are made by the Court of Appeal to backtrack from it – although with difficulty, because it would have needed a Supreme Court decision or a change in statute to do so categorically.

 

The usual efforts have been to create a new category of case to which Payne v Payne doesn’t apply.  And so many Court hearings are taken up with debate as to whether the case before the Court is a  “K v K” case, or a “Re Y” case or a “Payne v Payne” case   (and that taxonomic debate can have a huge bearing on the outcome)

“[60]. There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a ‘primary carer’ nor a ‘shared care’ case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, “the circumstances in which these difficult decisions have to be made vary infinitely.” This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a “Payne type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.”

 

For almost the entire time that Payne v Payne 2001 has been authority, Judges have been making speeches deprecating it and forecasting that it would be properly overturned.

In the snappily named   Re F (A child) (International Relocation Cases)(DF and NBF) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/882.html

 

The Court of Appeal overturn the decision of a Judge who had followed the Payne v Payne test and posed those questions in the judgment. Not because the case had been wrongly classified as a Payne v Payne rather than K v K or Re Y, but just because the Court of Appeal rule that the proper approach IN ALL Children Act cases is to follow the welfare paramountcy principle as the major factor, with adherence to the guidance given by the Courts in authority cases but never losing sight of the fact that the welfare paramountcy principle is, erm, paramount.

This is one of those cases that we are seeing a lot with the Court of Appeal as it is presently constructed  – the case before it is used as a vehicle to deploy new policy, rather than any real argument that the Judge in a particular case was “wrong”  instead it is the Court of Appeal using a particular case as a method of delivering a binding speech about policy for similar cases in the future.

 

I am not sure how a Judge could be “wrong” in considering, as this Judge did, all of the relevant authorities on relocation, applying those principles and answering within the judgment the questions that Judges are told to ask themselves and answer.   Any Judge could have been unlucky enough to be overturned on this, as the Court of Appeal had just been waiting for a good opportunity to put an end to Payne v Payne.

 

 

43. Reduced to the barest essentials the guiding principles and precepts are as follows. The welfare of the child is the paramount consideration. That is the only true principle. In deciding, in a case such as this, where a child should be located it is necessary for the court to consider the proposals both of the father and of the mother in the light of , inter alia, the welfare check list (whether because it is compulsorily applicable or because it is a useful guide) and having regard to the interests of the parties, and most important of all, of the child. Such consideration needs to be directed at each of the proposals taken as a whole. The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

  1. For the reasons given by my Lord, in the present case the judge’s reliance on the Payne v Payne criteria led her away from carrying out the necessary overall welfare analysis that was needed

 

If you are a proper law geek and you are wondering how the Court of Appeal can strangle Payne v Payne when it was a Court of Appeal decision and stare decisis applies  (i.e the Court of Appeal is bound by Court of Appeal decisions unless the Supreme Court or statute changes), then here is the answer

 

 

  1. The ratio of the decision in Payne was more nuanced in the sense that the questions were always intended to be part of a welfare analysis and were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived and the best intentions of the court were lost in translation. The caution expressed by Dame Elizabeth Butler-Sloss P in Payne went unheeded, namely that guidance that had been derived from authorities such as Poel v Poel [1970] 1 WLR 1469 was being expressed in “too rigid terms” and ‘unduly firmly’ with an over emphasis on one element of the case. I respectfully agree with her and with the benefit of hindsight the continued use of the Payne guidance by courts without putting it into the context of a welfare analysis perpetuated the problem.
  2. Furthermore, in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise, the absence of any emphasis on the child’s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it, to which I will return in due course.
  3. The approach which is now to be applied could not have been more clearly stated than it was in Re F where Munby LJ said at [37] and [61]:

    “[37] There can be no presumptions in a case governed by s 1 of the Children Act 1989. From the beginning to the end the child’s welfare is paramount and the evaluation of where the child’s interests truly lie is to be determined having regard to the ‘welfare checklist’ in section 1(3)”

    “[61] The focus from beginning to end must be on the child’s best interests. The child’s welfare is paramount. Every case must be determined having regards to the ‘welfare checklist’, though of course also having regard, where relevant and helpful, to such guidance as may have been given by this Court”

 

 

For those, such as Ian (Forced Adoption) who are not fans of the word ‘holistic’, there’s a bit at the end of the judgment where McFarlane LJ who has inadvertenly popularised the term rather deprecates its overuse (and misuse). He points out that it is not a new or novel creation, but a restoration of the way that the law had worked and decisions HAD been made before a “linear method” had taken hold and moved us away from a proper practice of looking at the whole of the relevant evidence and issues and making a decision that was in the child’s best interests.

 

  1. The word ‘holistic’ now appears regularly in judgments handed down at all levels of the Family Court. This burgeoning usage may arise from my own deployment of the word in a judgment in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2014] 1 FLR 670 where, at paragraph 50, I described the judicial task in evaluating the welfare determination at the conclusion of public law children proceedings as requiring:

    i. ‘a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.’

  2. Having heard argument in this and other cases, I apprehend that there is a danger that this adjective, and its purpose within my judgment in Re G, may become elevated into a free-standing term of art in a way which is entirely at odds with my original meaning.
  3. In the judgment in Re G my purpose in using the word ‘holistic’ was simply to adopt a single word designed to encapsulate what seasoned Family Lawyers would call ‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child’s welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic’ in that it requires the court to look at the factors relating to a child’s welfare as a whole; as opposed to a ‘linear’ approach which only considers individual components in isolation.
  4. Reference to ‘a global, holistic evaluation’ in Re G was absolutely not intended to introduce a new approach into the law. On the contrary, such an evaluation was put forward as the accepted conventional approach to conducting a welfare analysis, as opposed to a new and unacceptable approach of ‘linear’ evaluation which was seen to have been gaining ground.
  5. In the context that I have described, it is clear that a ‘global, holistic evaluation’ is no more than shorthand for the overall, comprehensive analysis of a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the relevant welfare checklist [CA 1989, s 1(3) or Adoption and Children Act 2002, s 1(4)]. Such an analysis is required, by CA 1989, s 1(1) and/or ACA 2002, s 1(2) when a court determines any question with respect to a child’s upbringing. In some cases, for example where the issue is whether the location for a ‘handover’ under a Child Arrangements Order under CA 1989, s 8 is to take place at MacDonalds or Starbucks, the evaluation will be short and very straight forward. In other cases, for example a case of international relocation, the factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child’s welfare. That is what, and that is all, that I intended to convey by the short phrase ‘global, holistic evaluation’.

 

 

 

Note also that whilst Ryder LJ emphasises and endorse the ‘balance sheet’ approach of the Court having a tabular document setting out the pros and cons of each option, McFarlane LJ deprecates that

Finally I wish to add one further observation relating to paragraph 29 of Ryder LJ’s judgment where my Lord suggests that it may be helpful for judges facing the task of analysing competing welfare issues to gain assistance by the use of a ‘balance sheet’. Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours.

 

It will not amaze anyone to know that I am firmly with McFarlane LJ on this.  A balance sheet approach can easily distort a case  – you could produce a table that has 2 cons and 14 pros, but the cons could outweigh the pros because of the weight attached to those two things, whereas some of the pros could be fairly trivial in significance. A visual image of a table with 2 cons and 14 pros, however, is going to lead to an impression that the option is desireable and that the balance is firmly in its favour.

 

As the third Judge, Clarke LJ merely says this, in relation to the weighing up exercise

The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

 

the issue of whether Balance Sheets are, on balance, good or bad, remains a live issue to be resolved.

 

Wrongful arrest and detention under a location order

The High Court address a situation in which a woman was unlawfully removed from a plane and arrested as a result of misunderstanding about a location order.

 

Taukacs v Taukaca 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2365.html

 

In this case, the Court had made a location order, that would require the production of the child’s passport, revealing information about his location and preventing him from being removed from the country whilst the Court make decisions about the child’s longer term future.

 

This was served on local police, who went to mother’s home. She provided them with the child’s passport and gave them information. Very specifically, she told them that she had a flight booked for a holiday to Spain, the child would not be going, and asked if she could still go. She was told that yes, the order prevented the child leaving the UK but not her.  To double-check, she visited the local police station to ask the same question and was given the same answer.   What she was told was quite right.

 

However, when she got on the plane, this happened

  1. Having very creditably taken those steps, the mother must have gone with some confidence last Saturday to Birmingham International Airport with her friends in order to fly on Saturday evening to Palma in Spain. She actually boarded the aircraft, but, after she had boarded and before the aircraft took off, she was removed from it. I will now take up the narrative by reading from the short witness statement dated 2nd August 2015 made by a police constable of the West Midlands Police currently stationed at Birmingham Airport Again, it would not be fair in a public judgment to name that police constable. She says:

    “On Saturday, 1st August 2015, I saw a woman in the front office area of the police station at Birmingham Airport who I now know to be Ludmila Taukaca. I was made aware by officers that Taukaca had been removed from a Monarch flight departing to Palma, Spain, this was due to her breaching a High Court order which stated that she was not to leave the United Kingdom and that she had to surrender her passport. Taukaca only spoke Latvian and Russian, so in order to communicate with her I used Google translator on my personal mobile telephone. At 23.00 hours I informed her that she was under arrest for breaching the court order. Language Line was then contacted and the facts of arrest explained to her. Taukaca was then transported to Solihull police station where the facts were related to the custody officer and her detention authorised. I had no further dealings with Taukaca.”

  2. Pausing there, it seems to follow from that that this lady was arrested and then detained in custody for two reasons. First, that she had not surrendered her passport. Second, that she was attempting to leave the United Kingdom. The police at the airport and later at Solihull police station took the view that both of these facts were breaches of the order. The police at her home, and later at West Bromwich police station, had both expressly told her that she could travel and was not required to surrender her passport. Essentially, following that, Mrs Taukaca has been held in custody ever since, as I have said, and was brought here by escorts this afternoon. She was held for a time in the cells here at the Royal Courts of Justice.
  3. One has only to consider those facts to appreciate that this matter has what I would regard as scandalous elements. This lady did produce her own passport to the police. They looked at it, but did not take it with them and left it with her. This lady did tell the police that she had a booked holiday to Spain a few days later and asked whether she could lawfully go. The police told her that she could. This lady took the extra trouble and precaution, which few people might have done, of going to a police station on Friday, together with her friend, to check whether she could lawfully travel to Spain. She was told that she could. She got as far as being on the aircraft when she was removed. That of itself must have been a degrading and humiliating experience and, probably, very frightening for her; and she has now suffered being detained in custody, as I have said, for something of the order of now 42 hours and two nights, and of course missed her holiday.

 

 

She was held in the cells for about 42 hours before the case came before Holman J and it was appreciated that she ought never to have been arrested.

 

The problem, Holman J identified, was with the standard pro forma order,  that the Tipstaff circulates to the police force.

The problem which this case throws up is the language of the standard form location order. Paragraph 2 of the order in this case, which is in standard form, reads as follows:

“The respondent [viz in this case Mrs Taukaca] and/or any other person served with this order must each hand over to the Tipstaff (for safekeeping until the court makes a further order) as many of the following documents as are in his or her possession or control:-

(a) every passport relating to the child, including an adult’s passport by which the child is also permitted to travel, and every identity card, ticket, travel warrant or other document which would enable the child to leave England and Wales; and

(b) every passport relating to the respondent and every identity card, ticket, travel warrant or other document which would enable the defendant to leave England and Wales.”

 

I have to say that I myself would read (b) in the same way that the officer at the airport read it, that the mother had to surrender any travel document that would allow her to leave England, she had clearly got such items in order to get through airport security, ergo she was in breach of the order. I can quite see why the officer at the airport read it in that way.   The problem is the ambiguous use of “defendant” in that standard order – who can it possibly mean other than the mother?

 

Pausing there, the first source of ambiguity leaps off the page of that part of the prescribed standard form order, although I have to say that it is not an ambiguity that I, myself, have ever spotted or noticed before. The heading of the order describes, in this case Ludmila Taukaca, as “respondent”. The opening words of paragraph 2 require “the respondent” to hand over the specified documents, but, when one gets into the detail of sub-paragraph (b), it will be noticed that it meanders between a reference to “the respondent” and a reference to “the defendant”. So far as I am aware, at any rate in this particular version of this order, it is only within paragraph 2(b) that there is any reference to the words “the defendant”. But at all events, what the person designated as “the respondent”, namely in this case Ludmila Taukaca, had to hand over was any passport relating to herself “which would enable the defendant to leave England and Wales”. It leaves completely unspecified who is meant or intended by the words “the defendant”, but a police officer might reasonably suppose that the reference to “the defendant” was a reference to somebody other than “the respondent” and, perhaps, that it was some further reference to the child concerned.

 

 

In this case, the police who first attended asked to see the mother’s passport and she showed it to them, but they did not ask her to hand it over, as their reading of the order was that they were to take any documents that would prevent the child from being taken abroad.

 

The fact that two different sets of police officers read the order entirely differently is more the fault of the order than the police.

  1. Assuming, however, that paragraph 2(b) did not contain that ambiguity, then it is a clear direction to hand over to the Tipstaff, or in a case like this to the police officer executing the order, every passport, etc., “relating to the respondent”. If and when the police officers last Wednesday looked at Mrs Taukaca’s own passport, which she had handed to them, but then placed it back on the table and left it with her, when they left her home, it was the officers who were failing to understand or failing to discharge their duty under this order. It was not Mrs Ludmila Taukaca, who, it will be remembered, cannot speak or read English.
  2. One then reads on to paragraph 4 of the order. That provides as follows:

    “The respondent and/or any other person served with this order must not knowingly cause or permit the child:-

    (a) to be present overnight at any place other than the place where the child was staying at the time of service of this order; or

    (b) to be removed from the jurisdiction of England and Wales.”

  3. So far as paragraph 4(a) was concerned, this particular child, M, was staying, at the time when the order was served upon the mother in Smethwick, at the address of his brother in Northamptonshire. As I understand it, M has continued to stay at the address of his brother in Northamptonshire seamlessly between last Wednesday and now, so the mother has not been, and is not, in breach in any way whatsoever of paragraph 4(a).
  4. Quite clearly, the whole of paragraph 4 is directed to the whereabouts of “the child” concerned, and a prohibition on causing or permitting the child concerned to be removed from the jurisdiction of England and Wales. Here is the ambiguity and tension in this standard form of order which seems to me to have led to what I have described as a scandalous situation in the present case.
  5. Paragraph 2(b) does require the handing over of passports and similar documents “relating to the respondent”. If they are handed over, then the effect and intention would be to prevent the respondent from travelling out of England and Wales. I have, however, already pointed out ambiguities within paragraph 2(b). The focus of paragraph 4 is a clear and express embargo on removing the child from England and Wales, but neither paragraph 4 nor any other part of the order expressly prohibits the respondent parent from leaving England and Wales. Indeed, it may require very careful consideration whether there should be any restriction on the parent, as an individual and free person, from leaving England and Wales, provided only that the child, who is the subject of the application, is not able to leave England and Wales.
  6. At all events, it seems to me that the way that the police officers, who attended last Wednesday, interpreted this order was that it required them to remove the child’s passport, which they did, and contained an embargo upon the child leaving England and Wales, but no embargo upon the mother herself leaving England and Wales. So it was that, as the mother herself describes, the police said to her words to the effect that, “Yes, you can travel to Spain. It is nothing to do with you, but you cannot take your son abroad.” The same ambiguity seems to have influenced the police officer whom the mother saw and from whom she received advice and reassurance when she attended at West Bromwich police station on Friday.
  7. It seems, therefore, that, as a result of ambiguities in a standard form of order, which judges of this Division have been making now for many years, a terrible injustice was done to this lady. I have explained all this at some length in this public judgment. I have ordered that a transcript of this judgment must be made as a matter of extreme urgency. I personally am last sitting on Wednesday of this week before I go for several weeks of holiday. I intend to ensure that the official approved transcript of this judgment is placed upon the BAILII website before I go. It must be very urgently drawn to the attention of the President of the Family Division. It must, of course, be very urgently and seriously considered by the Tipstaff. It seems to me vital that very urgent steps indeed are taken to clarify and improve the wording of this standard form of order so as to avoid that any other person suffers the injustice and indignity and loss of freedom which this lady has suffered.

 

 

 

  1. I wish to stress very clearly indeed that, so far as I am concerned, Mrs Taukaca has not in any way whatsoever broken any court order. This is not a situation in which she has “purged her contempt”. Rather, she was never in contempt of court at all. She should never have been arrested, still less, detained, and I order her immediate release, repeating as I do a very sincere and unreserved apology on behalf of the legal system. But I wish to stress also that I do not intend in anything that I have said any criticism whatsoever of any of the police officers who were engaged in this case. Frankly, the fault lies with the language of the order and for that, ultimately, the judges must take responsibility.

 

 

It is remarkable that a standard form of order, that has been used for around four years, and has been regularly seen by the very brightest High Court Judges and counsel who are capable of dealing with international law cases (who tend to be bright people) has had these ambiguities within it for all that time.

 

And as a result, this lady has had the indignity of being removed from a plane and arrested, missed her holiday, and spent 42 hours in a cell.  As a result of a poorly drafted clause in a standard order.  Where’s Christopher Booker when you need him?

 

The transcript at the end makes a very sad case even sadder – it was really clear that this woman had no possessions, them having been confiscated, and absolutely no idea how to get across London to Euston station so that she could go home to Smethwick.  You don’t often read Court transcripts that make you want to give someone a hug  (and I have delivered precisely six hugs* in my entire life to people I wasn’t in relationships with, so I’m no hugger ) but this one did.

 

[*Half of those were a mistake, with the benefit of hindsight.  I saw the trailer for the film “The Martian” last weekend, where Matt Damon gets accidentally stranded on Mars and will be entirely alone for years until a rescue mission comes and I believe that I actually sighed wistfully / with jealousy]

Tag, you’re it

A follow-up from last week’s case involving a decision that children whose parents were suspected of intending/attempting to take them to Syria to a war zone should be at home with the parents, with the parents being electronically tagged to prevent a recurrance.

 

You may remember that during that piece, I expressed some reservations about how the scheme would operate and who would pay for it.

 

Well, part two of

 

X and Y (children) No 2  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2358.html

 

raises that particular question and then doesn’t answer it.

 

The answer is, that in THIS PARTICULAR CASE but not other future ones, the Ministry of Justice agree to pay.

  1. By the time the matter came on for hearing before me on 3 August 2015, Mr Alex Ustych, on behalf of MoJ, was able to tell me on instructions that it would take approximately a fortnight to put all the arrangements in place for GPS tagging. He was also able to say that, having considered its position further since filing its submissions, MoJ was willing, if I took the view that there should be GPS tagging, to meet the cost in this case without having recourse to any of the parties for any payment.
  2. That, as he made clear, was entirely without prejudice to MoJ’s position as I have summarised it in paragraph 2 above, and is not to be treated as a precedent in any future case. In particular, the fact that MoJ is willing in this case to agree to meet the cost does not mark any departure from its fundamental position that the court has no power to order MoJ or NOMS (or, I assume, EMS) to bear the cost of providing GPS tagging.

 

You may have picked up the not comforting crumb that it will take a fortnight to get the tagging sorted out.

So what about future cases?  Well, it seems fairly plain that the MOJ would at the very least want to have an argument about it, and as we learned from the Court of Appeal decision about whether the President’s suggestion that the MOJ/HMCS should pay for costs of a litigant where article 6 would be breached  (no statutory power, so no thanks)  they might well win there.

 

Can the costs be split between the parties?  Well, if you were a solicitor for the parents or child, there’s no way on Earth that you are writing that cheque without the Legal Aid Agency agreeing. And I am certain that they won’t.  Putting a tag on a parent can in no way be construed as an assessment of the parent. What are you assessing? Whether they will run away if there is an electronic device that prevents them from doing so?

 

If you want an expert to assess that, I am available to conduct the assessment.  It will be a very fast turnaround, and my report will consist of the words, “No, they won’t. I don’t know what they will do when you take the tags off”

So, that leaves the good old Local Authority.   Well, what’s sauce for the MOJ goose is sauce for the gander too.  Please find me the statutory power that allows the Court to order the Local Authority to pay for electronic tagging.  I don’t mind waiting.

 

I’m afraid that the very next Local Authority who have to go to Court because children in their area have been involved in an attempt to take them to Syria are going to have to go through this entire argument all over again.

 

And I will add in another argument – it is still really unclear what would happen if one or both of the parents does not consent – is there a proper statutory basis for an interference with their article 5 rights?  It is probably easier if both refuse, because then the children just can’t be placed with them, but if one says yes and the other says no? tricky.

 

If you WANT to enter into this arrangement, the President does set out a very useful template order.

Strategy meetings

 

If you aren’t familiar with Strategy Meetings, they usually happen where there is a suspicious or unexplained injury to a child, and the medical professionals meet with the social worker and sometimes police, to gather together all of the relevant information and consider the options for going forward.

 

In this case, Re L  (application to withdraw ) (Head injuries : Unknown cause) 2015   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/67.html

 

they took on a particular significance.

 

A quick caveat – this case took place in my local Court, so of course I know some of the lawyers involved, and it was decided by my Designated Family Judge. I have had absolutely no involvement in the case (I never write about cases that I have had even a tiny part in) but of course it is much more easy to be dispassionate about the rubbish arguments deployed by Mr Edward Shirtsleeves and  Miss Rebecca Cufflinks of counsel when I’ve never met them and never will, rather than people who might concievably be in kicking distance of my shins from time to time.

 

Broad issues in this case were that in October 2014, a child presented to hospital with signs of head trauma. He was unwell at the time and has thankfully recovered.   A strategy meeting was held in November, and care proceedings were later commenced. The child was made the subject of an Interim Care Order and placed with an aunt.

 

At the final hearing, the Local Authority sought findings that the child had been shaken by one of his parents, suffering significant harm as a result.

 

After the medical evidence had been heard in those proceedings in June 2015, the Local Authority applied to the Court to withdraw their application.

 

  1. Essentially, the evidence of the experts and medical professionals was put to the test over those days, and by the conclusion of the medical evidence it had become clear to all those in this matter, including myself, that the local authority, who must prove their case against the parents, were in a position where it was highly unlikely that the evidence would support findings to the requisite standard against the parents and the threshold criteria would not be met in this single-issue case. I make it plain that there can be no criticism of the fact that the Local Authority issued proceedings here where there was clearly a prima facie case from the time L fell ill on the basis of the medical information which was supplied to them.
  2. Very properly in my judgment, and with exemplary good grace, the Local Authority made their application having taken stock of the evidence available to them at this point in the hearing.
  3. To found the basis for permitting the local authority to withdraw their application, I note the difficulties posed which have arisen in this unique case: some are serious, some perhaps less so, and some only visible with hindsight. There were gaps in the information available to the experts, and gaps in their own expertise as regards being able to come to clear understanding about what happened to L medically. There was, however, less uncertainty amongst the treating clinicians at Worthing Hospital as regards the cause of L’s head injuries at the critical point in time when life-changing decisions were to be made as regards his future, and I have concluded on all the evidence that this is something which requires careful exploration and recording in this judgment.
  4. L’s case and his long separation from the care of his own family will, I hope, contribute to a greater understanding of how the identified omissions which prevailed in this case might be avoided in future, though that may be poor consolation for his family.
  1. I have the weight of the expert evidence in this case as my yardstick to measure the identified omissions: it is difficult to imagine a more experienced and respected array of consultants with specialist knowledge, who have been stretched to and at times beyond their limits, but who have also provided valuable opinion in terms of their views of best practice. The case illustrates the position that there are limits to what can be achieved forensically.
  2. It is important that this judgment is seen as specific to the highly unusual case of L. Hindsight offers the court the opportunity to develop a counsel of perfection, but I am the first to acknowledge that this is unlikely to be achievable and practices vary and will always vary, and may be resource-specific. I can only do the best I can on what I have to go on in this matter with its very unusual features. The information about L which the experts had to go on was undoubtedly insufficient, and that in turn has left the court in the position where it cannot simply bypass their powerful evidence and return without more to the clinical picture available at Worthing Hospital to make findings, because such doubt has been cast upon L’s case as it was dealt with there. The information that there was what now appears to have been a very relevant differential diagnosis in relation to the cause of L’s injuries was available to the hospital, but it was not provided to the Local Authority at the outset of the case. The fact that there was a later differential diagnosis with a recommendation for further investigations related to L’s treatment was not fully conveyed to anyone in this case until the matter got to court.

 

 

 

If you are involved in a child protection case involving a head injury to a child or are a doctor who is involved in this area, I’d commend the entire judgment to you. It throws up a lot of really important practice issues, which are beyond the scope of this small(ish) piece.

You will see that although the Judge does not criticise the Local Authority for bringing the case to Court (and of course the Court when they made Interim Care Orders had to make the decision on the same information that the LA had),  we still end up in a situation where the parents were separated from their child for around seven months when they had done nothing wrong.

 

The mother was separated from her child for seven months. That is an almost unimaginable situation. I reaffirm the significance of this; of what she has missed out on in enjoying the first wonderful months of her child’s life and of what she must suffered as a result. She has lost her happy relationship with the father as well.

 

I think all of us could agree that this is intolerable. But what’s the solution?  One immediately cries out that the case must be heard more swiftly, but it is clear from reading this case that it was only by deploying a raft of very specialist experts that the true picture with all of its complexities emerged.  If someone had decided at the outset that the Court would reach a decision after say three months, those experts wouldn’t have reported and it is possible that the wrong conclusion could have been reached.

 

As Billy The Kid used to say,  “Speed’s fine, partner, but accuracy is final”

The other solution is not easy. Faced with an application for an Interim Care Order, with the treating medical professionals telling the Court that this child has been hospitalised as a result of one of his parents violently shaking him,  one is therefore asking a Court to take that risk on their own shoulders and keep the child and family together.  As we can see with the benefit of hindsight, that would have been the right thing to do on this occasion.  But ask yourself what would happen if a Local Authority (or a Court) decided that the medical evidence might later be proven wrong and left the child at home, where a second injury possibly more serious or life-threatening occurred?   How would Ofsted, the newspapers, the House of Commons, the public, react to that?

Part of the problem is that at the time when the social worker and then the Court has to make the decision about where the child should be whilst everything is investigated, that those cracks in the medical evidence haven’t yet appeared. It is only when ALL of the source material is available and looked at by people in painstaking detail, people with expertise, that you really get a sense of whether the evidence is unequivocal or whether this is a case with some real grey areas.

A Judge faced with an application for an Interim Care Order in those circumstances will know that there is a  risk of very serious injury but also that until all of the experts has reported we will not know whether the medical evidence is cast-iron or swiss cheese. Short of the parents going to live with another trustworthy adult or vice versa  (which is not really a practical solution for a seven month period of time), the risk can’t be absolutely protected against whilst the child is with the parents.  What’s the lesser of two evils here?

The way to keep the child at home with the parents is for the Judge to say “I know that there is risk here, I know that if it turns out that the medical evidence provided so far is right then these parents may have seriously harmed the child and may do it again, but experience has showed us that the only time one can be absolutely confident about the medical evidence is at final hearing when it is put to proof, so I am deciding that the risk should be taken in keeping this family with the parents, and I make that decision knowing that something could go wrong, no matter how much effort is put into a protection plan”.    And for a Court of Appeal to back a Judge up in that situation.

I would not pretend that this would be an easy thing to do.  If it goes wrong, the clamour would be for heads to roll and it would be a judicial head on the paraphet.

 

Anyway, back to the particular case.

 

Everyone was in agreement that the case should be withdrawn and the Court should find that the threshold was not met; but the issue was whether the Court should consider making a declaration under the Human Rights Act and possibly compensation   (although note that the Legal Aid Agency are currently stating that the Statutory Charge applies to such HRA compensation and it would all be swallowed up to repay legal costs)

 

The argument was twofold :-

 

1. That the medical professionals on the ground (not the Court appointed experts) had made serious mistakes which led to the child being removed and hence a breach of article 8

2. That the strategy meeting convened had been one at which a decision was made for the issue of proceedings, and thus was something that the parents should have been invited to, and failure to involve them was a breach of article 8 and article 6.

 

The Judge had been critical of some of the treating medical team on the ground, but was mindful that this was not, and could not purport to be a medical negligence case – the doctors had not been represented, nor had their Trust, and it was going outside the scope of the care proceedings to conduct that exercise.  The Court could go as far as it had, which was to identify practice areas for improvement and highlight failings, but apportioning blame was going too far.

 

The second point was developed more fully.

 

  1. I have been referred to Re R [2002] 1 FLR 755, Re L [2002] 2 FLR 730, Re G [2003] 2 FLR 42, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings. [4]Re M [2001] 2 FLR 1300; Re S (Minors) [2002] 1 FLR 815; McMichael v UK [1995] 20 EHRR 205 and the injunction that: “Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
  2. In Re G, the importance of full and frank disclosure by a local authority was emphasised:

    i) Informing the parents of its plansii) Giving factual reasons

    iii) Giving an opportunity for parents to answer allegation

    iv) Providing an opportunity to make representations

    v) Allowing the parents the opportunity to attend and address any crucial discussions.

  3. I have also been referred to Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 where parents were not present at a discussion where the decision was taken to place a child from adoption; Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 for the premise that the case must be viewed as a whole and exclusion may not in itself render the proceedings unfair.
  4. S 47 of the Children Act 1989 governs the duty of a Local Authority to investigate. The relevant aspects of this section are:
  5. S47 (1) 1:

    (1)Where a local authority—………………

    (b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

    the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.. . .

    (2)(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

  6. In addition I have been referred to the Sussex Child Protection and Safeguarding Procedures, published in March 2015. I have not been privy to this document hitherto. It contains a chapter on Strategy Discussions and Discussions, envisaged as a preliminary step before initiating a S 47 Enquiry, and when one is required, to plan how it should be undertaken. It provides guidelines for convening a strategy discussion or discussion. Discussions are advised in the case of serious physical abuse. It is identified as a “confidential professionals’ discussion” and participants are identified as a “professionals sufficiently senior to be able to contribute, although exceptional circumstances may arise where others may usefully contribute”. The relevant Consultant is highlighted as a required participant, as here.
  7. There is no requirement to include parents at such a discussion.
  8. In this case, I am faced with the tension between the need for a confidential professionals’ discussion to take place to which parents would not ordinarily be invited, and the argument that these parents should have been invited to contribute to that meeting, either for whole or part of it.

 

More detail about the Strategy Meeting followed

 

 

  1. (a) The Strategy Discussion
  2. In a case such as this, the decision to initiate a statutory s 47 inquiry (set out above) is taken following a strategy meeting held with relevant interested representatives of social services and external agencies such as the police, GPs and other medical personnel, schools, carers and, in appropriate cases, more specialised individuals. No more than and no less than that occurred in this case.
  3. The document generated by the meeting on 5th November is headed “Record of Strategy Discussion.” I see that It was called for as follows: “Referral from hospital this morning L had been admitted on two occasions. L has subdural bleeds of different ages. Suggestion non accidental injury. Possible shaken baby“.
  4. The proceedings hare was set running on what appears to have been the basis of the single clinical view provided at that meeting. There were a number of doctors at the meeting – Dr Cooke, Dr Kabole and Dr Shute in particular.
  5. These meetings are familiar to the Court. There is a protocol locally in operation across the three local authorities which sets out the normal parameters for such a discussion, which in short includes those who should “generally” be involved. It reads “all participants should be aware that a strategy Discussion/Meeting is a confidential professionals meeting and as such, notes of the meeting should not be shared within anyone without the permission of the chair”.
  6. It was chaired by Amanda Cole but I do not know who made the record. Its accuracy has been explored by the parties with Dr Hazell who gave her input over the phone. I have to say that the list of negatives does not quite coincide with Dr Hazell’s more nuanced evidence but I make nothing of that.
  7. The Social Worker Ros Sims told the court in her statement that L’s injuries were confirmed at the strategy meeting by the consultant paediatricians who attended as non-accidental injuries and consistent with L having been shaken and have resulted in the significant harm that has been medically evidence. The entire case stood on the information available to West Sussex County Council. It was the only thing which supported his removal. The initial stated belief of the local authority was that “L had experienced significant harm from one or more of his carers”.
  8. It was known that the parents were to be arrested and interviewed because it is recorded. The only planning in relation to further action by the local authority was that they were to make a decision regarding legal proceedings. In Re G [2003] 2 FLR 42 the first of the identified requirements upon a Local Authority is to inform parents of their plans. The recorded plan was to move to a decision in relation to legal proceedings. That is all.
  9. The issue is whether in this case, as distinct from other cases where parents would not normally be included in a confidential professionals meeting,[                 and                    ]should have been invited.
  10. Mr Storey argues that on the basis of Re G, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings, this particular strategy discussion should be considered as part of that inclusive roll call to say that he fact that the mother and father were not invited to the Strategy Discussion was an incursion into that right because to was a decision to separate the mother from the child.
  11. Looking again at that decision. I am mindful that what has to be determined is whether, having regard to the particular circumstances of the case, and notably the serious nature of the decisions to be taken, the parents were involved in the decision making as a whole, to a degree sufficient to protect their interests. If not this would amount to a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.”
  12. Mr Storey takes that decision at its highest, and sets it as the first rule in every case, to mean that this particular decision was part of the trial process and the parents were entitled to participate without qualification. If that is the case, then potentially parents would be entitled to be present at every strategy discussion, and the essentially confidential nature of the discussions would be lost.
  13. Like the experts in L’s case I am really hampered. All I have are the recordings. All I know is that the wheels had been set in motion prior to that meeting because there was a plan to arrest the parents and the social workers were going to refer the case to their legal department. It was technically not a decision to separate the parents from L, as far as I can tell from the notes. They are not likely to reflect the whole of the discussions. However I do not have the benefit of the evidence of those present: they have not been required to set out their evidence as to what occurred and why.

 

 

That did make matters difficult.  The Judge distilled the HRA argument into a central question

 

To reach any conclusion as regards an infringement of the parents’ rights due to not being invited, a court would at the very least have to ask the following question; Was the omission to invite the parents to a confidential professionals’ discussion, where the case was extremely serious in terms of what was being advanced medically, where their accounts appear not been given to the discussion, an infringement?

 

The Judge goes on to say, that understanding that the HRA point was developed once it became clear that the medical evidence was less solid than it would have appeared at the outset of the case, that there were important evidential matters which would have been needed to be obtained and put to witnesses before the Court could properly make that decision.

 

  1. The evidential basis for answering those questions with care and fairness is not available to me. To really understand what occurred and why, a court would at the very least need a detailed response from the local authority, and evidence from the key participants which could be fairly and properly tested. I cannot therefore take this point any further.
  2. What does concern me however is the medical information which was given then and later which tended so strongly to characterise this case as a case of inflicted injury as opposed to there having been another possible identifiable cause as of 4th November and indeed throughout. That alternative possibility has never gone away during this case. The Local Authority assumed that to be the only available diagnosis at the start of the case and the court only had the single view upon which to proceed.

 

The Court also expressed disquiet about the medical information provided at that meeting, most notably that it was not communicated to the Strategy Meeting that at least one treating doctor had considered that there was a medical explanation for the injury due to an unusual clinical feature that might give rise to a differential diagnosis  (i.e that there might not have been an injury at all, but rather some sort of medical episode)

 

I know not whether those involved intend to leave it at that, or whether a stand-alone HRA claim will be lodged.

 

For the moment, the answer to the question  “Is it a HRA breach to have a strategy meeting which might result in very critical decisions being made for a family if the family aren’t present?”   is  “it might be”  –  and at the very least, this case has made us all think rather harder about the issue.

 

 

Shoe-throwing and Interim Care Order

 

This is a tricky case.  It involves an appeal to the Court of Appeal about the Judge’s making of an Interim Care Order in relation to four children aged between 8 and 2 1/2

 

Re W-J (children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed146039

The mother in the case has what appears to be a form of personality disorder.  She accepts that there are times when she is utterly unable to control her temper and can fly into an unmanageable rage. Generally during these rages, she takes it out on inanimate objects.  She describes that the things that can set off these rages can be very trivial, giving the example of someone eating a packet of crisps loudly.

 

 

3…In short terms, from time to time she loses control of her behaviour, loses her temper, and the trigger for this is often a trivial matter which would not affect other people. On one occasion, for example, she describes losing her self control simply because she was irritated by the noise of someone eating a packet of crisps.

4. When she does lose control, she behaves in a physically violent way, normally towards inanimate objects, utensils in the kitchen, other matters of that sort. Sometimes she can detect the onset of these symptoms and make arrangements for the children, if they are at home, to go outside the house or go to be with someone else. On other occasions she is not able to have such foresight and it is plain from what the children have said that they have witnessed the distressing spectacle of their mother behaving in this way

 

Whilst that must be distressing and upsetting, what prompted the proceedings was that on two occasions, things went further than that.

 

what led to the proceedings being issued by the local authority were two instances relatively close together where the children reported on separate occasions being injured as a result of the mother’s behaviour. The first occurred on 2 February 2015, when the mother threw a shoe and it hit one of the older children. She accepted that and she indeed accepted a caution at the police station as a result of that behaviour. She accepted that she had thrown the shoe and thrown it at the child but she asserted that she was not deliberately intending to hurt him. She said she had lost control. The second occasion on 20 March 2015 was when the mother’s foot came into contact with the 7 year old girl. The judge heard some evidence about that. The mother accepted that, physically, her foot came into contact with her daughter but was not accepting that this was deliberately in order to cause injury. The child nevertheless was injured, albeit not very seriously. Following the second of those two outbursts, the local authority issued the proceedings.

 

What the Court had to do at that interim care order hearing was to determine whether the test for separation had been made out, and whether the risks could be managed in another way, applying the least interventionist principle.

 

Three of the children were found placements within the family, which were a decent compromise. That left one child, T, and a decision had to be taken about whether she could stay with mother, somewhere, or go into foster care.

There is a law geek point about whether the Court could have made an injunction under the Human Rights Act 1998 to make the LA manage the risk by keeping mother and child together.  The Court of Appeal closed this down by saying that it wasn’t sufficiently argued before the Judge to be an appeal point, so it is not resolved  (for my part, I think that the order that the Court can make in that regard is the straightforward Interim Supervision Order OR to compel them to place in residential assessment, a section 38(6) direction, and there’s no need to monkey around with esoteric HRA injunctions, but there may be a better case where the point really does arise)

 

10. In the course of the robust and constructive representation that the mother had at the hearing provided by Ms Kochnari, her counsel who represented her before the judge and before this court, Ms Kochnari drew attention to the jurisdiction that the Family Court may have in certain circumstances under the Human Rights Act 1996 to grant an injunction requiring a local authority to take a particular course of action. That jurisdiction in part is based upon, obviously, the wording of the Act itself but also decisions of this court, in particular Re: H (Children) [2011] EWCA Civ 1009 and a decision of the High Court: Re: DE (A child) [2014] EWFC 6. In short terms, Ms Kochnari’s submission was that the judge should grant an injunction requiring the local authority to keep the mother and child together, leaving it up to the local authority how that should be achieved.

11. That describes the position of the parties, mother and local authority, before the judge. The children’s guardian has plainly given this matter a great deal of anxious consideration. Both the guardian and the judge (and it is particularly important to stress that this was the judge’s perspective) saw the value for young T, particularly at the age she currently has reached, in remaining together with her mother. They have a good attachment and it would be seen as a detriment to that attachment, and a detriment to that important aspect of her best interests, for mother and child to be separated for any significant period at this juncture of her life.

12. But the question was how a maintenance of maternal care could be achieved. The guardian indicated that she would support a placement of the mother and child together in a foster home or some other form of residential accommodation if that could be achieved. The judge agreed with the guardian. The judge apparently said during the course of submissions that “heaven and earth” should be moved by the local authority to try to find a suitable placement and indeed an hour and a half or so was allowed during the course of the court day for the local authority to make enquiries. Those enquiries failed to identify any placement on the local authority’s books that could provide a mother and child placement at that stage. The local authority, however, took a more principled stand in addition to the practical difficulty of finding a particular placement. Their submission to the judge was that it was simply inappropriate to consider a mother and child foster home for this sort of case, this sort of case being one in which there is no real concern about the mother’s ability to provide day to day, hour to hour ordinary parenting, the concern being about her mental well being and the local authority indicated that it would be difficult to find a foster carer who would be prepared to accept the risk of having an adult, namely the mother, in the foster home when what is said about her behaviour is being said and is being said in the current period of time.

13. So the judge did not have an option before him for a mother and baby placement if he was to make an interim care order.

 

That left a rather stark choice

1. Grant the ICO and separate T from mother

2. Make no order / ISO and the child remains with mother at home

Or

3. Make no order, but adjourn for fuller enquiries about a placement that might have allowed a section 38(6) application for residential assessement to get off the ground.

 

The Court of Appeal set out why option 3, the adjournment, was not feasible

 

20. Dealing with the question of adjournment, the position before the judge is not altogether plain. It is clear that Ms Kochnari invited the judge in her closing submissions to afford more time for a more comprehensive search to be undertaken. She, in her submissions to us, urges us to interpret that as being really a request for the judge to consider adjourning the case for a period of a day or more to allow the sort of search that has now been undertaken to be conducted. The judge may have interpreted it simply as a matter of a further short time. For my part, given no doubt (although we have not got information about this) that that submission was made late during the course of the court day because this process will have taken up most of the court day, a request for more time almost inevitably meant more time when office hours are open and therefore another day, so in Ms Kochnari’s favour I assume that was the import of her submission to the judge.

21. But, in my judgment, the judge had to face up to the application before him and he did so without any consideration that another day or two could change the landscape and produce a firmed up and clear alternative for him to consider. He, with the reluctance that the choice of words that he used in his judgment clearly demonstrates, considered that it simply was not safe for this child to be at home with the mother for any period of time after the day on which he was giving judgment. In my view, he was entirely justified in coming to that view. I have referred to the psychiatric evidence, such as it was, that was available to him. He had evidence of the two recent episodes where the mother’s behaviour had flared up to the detriment of the children. A factor that I have not mentioned is that the older children had indicated a clear wish not to return to their mother’s care. He will have understood that for children, even if they were not physically injured by any particular deterioration in the mother’s behaviour, simply to watch their mother, the person upon whom they relied, behaving in this way, will have been totally bewildering and frightening. The judge did expressly take account of the fact that the older children had been able to be protected by the actions of the local authority because they had spoken up, they had gone to school or they had gone to other carers and said that their mother had behaved in the way that is now established she had behaved. But young T, aged two and a half would not be in a position to blow the whistle, as it were, on any such behaviour.

22. The final factor, and to my mind it is the crucial factor, is that it is impossible for an outsider to predict whether the mother will or will not flare up at any particular moment of any particular day. It is not a risk that can be predicted, contained or controlled, either by the mother or by any outside agency.

23. With all of those factors in mind, the judge was, in my view, entirely justified in saying that the risk was not one that could be taken in T’s best interests and immediate separation was required. So, even on the basis that a fully formed application for an adjournment had been made, in my view the judge’s decision not to adjourn but to make the order that day could not be said to be wrong and indeed on his analysis of the evidence it would seem hard to justify an alternative conclusion.

 

 

What could, perhaps, have been done but that wasn’t expressly considered here was for the Judge to make a short order – say a week, to allow that search for an alternative placement to take place and then revisit if there was any way to safely manage mother and child together.

 

The Court of Appeal, whilst acknowledging how difficult a situation this was and expressing hope that a longer term solution to mother’s difficulties might be found so that the other very good aspects of her parenting could prevail, were driven to conclude that the Judge’s decision to make an Interim Care Order was not only not wrong but actively right.

 

27. We are therefore left with the judge’s decision to make the interim care order in the circumstances that he did. This is a worrying case. I explained the basis of the worry at the very beginning of this short judgment. It is a case that will require very careful evaluation by the authorities and by the court over the course of the next 2 or 3 months as material is prepared for a final hearing. Crucial will be a full psychiatric assessment of the mother’s underlying mental health difficulties. At the end of the case, a judgment will have to be made as to the long term welfare of these children and as part of that judgment the many positives that can be said about this mother will come into play. But all that the judge was doing and, all that we are contemplating, is making a decision about the child’s welfare for the very short term under the interim order. In that context, important though the decision is, I regard the judge’s determination as being unremarkable. It was a decision made carefully by a judge on the correct legal test, supported by the evidence and one which amply was justified by the welfare of this young child. 

 

I’m sure that all of us would wish this mother well for the future and hope that a solution can be found that would let her parent in the way that she would wish to and be free of what must be a terrible inability to control those outbursts.

Follow

Get every new post delivered to your Inbox.

Join 3,680 other followers