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Objection to gay adopters

This is an interesting news item from PinkNews  (rather than Pink Tape for once)

Allowing same sex couples to adopt was highly controversial and politicised – almost the entire Parliamentary debate about the 2002 Adoption and Children Act was taken up by this sole issue. We have even had a Children’s Minister within this Parliament who is staunchly opposed to it. But it has been law now for 13 years and same sex couples can legally adopt.

This news item relates to a Magistrate hearing a set of care proceedings, and remarking to his colleagues in the retiring room that he would prefer the child to go back to mum and dad than go to a gay adopter.

[Of course, any Magistrate hearing a family case ought to prefer that a child live with birth parents if possible, rather than adopters, but the sexuality of the adopters shouldn’t really be a factor]

The Magistrate was suspended and sent on various awareness courses – I think with mixed success, given what he has to say about the situation now

There is tremendous pressure to keep quiet and go along with what is seen to be politically correct.

“Everyone else seems to be allowed to stand up for their beliefs except for Christians.

“I think there is something about a man, a woman and a baby, that it’s natural and therefore the others are not. That is the comment that I made.

“Therefore, since my task as a magistrate is to do the best for the child, my feeling was, quite reasonably, that a man and a woman would be better.”

 

[Also the fact that he is getting advice from an anti-gay pressure group suggest to me that maybe his diversity training to re-educate him hasn’t completely worked]

http://www.pinknews.co.uk/2015/01/18/family-court-magistrate-suspended-after-objecting-to-gay-parents/

 

It clearly isn’t right for someone with such views to sit on a family case where the issue arises – but is it okay for him to do other cases but recuse himself from any case that involves same sex adopters, or indeed parents?  Or do attitudes of this kind end up colouring your approach on other matters?

For example, might someone with this sort of belief system also take an overly harsh view of a mother who has had an abortion, if the Magistrate holds the view that abortion (though legal) is morally wrong?

It will not be a massive surprise to readers that the comments section on this piece in Pink News reads rather differently to the comments section on the same basic story in the Mail.

I’ve never been in a position of having to give a judgment, and am never likely to be – though if by some clerical error I find myself in the Supreme Court I’m going to choose to be called Lord Vader. I imagine that you must bring something of yourself to the process – Judges aren’t robots – they have human experiences and thoughts of their own. The key is to be able to identify for yourself if you are putting too much weight on feelings rather than facts and evidence and legal principles.

Criticism of professionals – two cases

These aren’t earth-shattering judgments (though I think that both are very well written and constructed, and worth sharing for that alone) and they aren’t precedent authorities for any points, but both raise practice issues which are valuable, and they also show that Judges are prepared to call out faults when they see them.

They also both have happy endings for the families concerned, and that’s nice to see.

 

The first is in relation to a Guardian,

Re R (Care proceedings :Rehabilitation) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B193.html

 

It involved two children, one nearly 8 and one 4 1/2. The Local Authority final plan was for both children to be returned to their mother’s care, the Guardian opposed that and wanted the children to be made the subject of a Special Guardianship Order and to live with their current foster carer (a family friend).

 

This is what the Judge said about the Guardian’s evidence and report.

217 There are two aspects of the guardian’s final report that concern me. I have noted that in his analysis of the advantages of being brought up by a natural parent the guardian said very little about the benefits of that, although it is universally accepted by professionals and the courts. He provided helpful answers when I specifically asked him about it, and Miss Shah in her oral submissions suggested that the advantages are so obvious that the guardian did not need to set them out in his report. In my view, that is not the appropriate or just approach to the analysis by a guardian who, in a final report, asks the court not to return the children to their mother’s care, and it would be a pity if that omission perpetuated the mother’s impression that the guardian remained set in his views against her.

218 I also found it remarkable that in his final analysis the guardian did not mention Miss Jones’ report. There was no summary, no analysis, nor any explanation of his reasons for rejecting the views of a jointly instructed expert. That he does reject her views is obvious from his position, and he had raised questions with her at an earlier stage. Nevertheless I consider that a serious omission.

219 Further, I noted that the guardian described the carer as a member of the children’s family and argued for a different approach to the right to family life on that basis, although he had previously described her as a “family friend”. Also in his oral evidence he referred to the children’s attachment to their mother as “insecure”, although he had previously described it in his report as “secure”.

220 These two matters have raised a concern that at the final hearing aspects of the guardian’s case have been overstated in an effort to support his argument that the children should remain in the care of the carer.

221 The guardian considers the case as finely balanced, but ultimately prefers the “status quo”, the continuation of the children’s placement with the carer under a special guardianship arrangement. He considers the local authority’s final care plan to be “high risk”. I accept that if the mother does relapse and the rehabilitation plan breaks down it would be catastrophic for the children. I have considered the other risks. I am persuaded that the mother will deal with them with support robustly.

 

And in case you think that as a Local Authority lawyer, I’m just reporting a Guardian getting a hard time for my own amusement, the next case involves a Judge seriously criticising social workers.

 

This is Re EH (Supervision Order) 2014

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B78.html

This case involves a girl aged 6 1/2. The final order made was a Supervision Order , which means that the girl would live with her father.

This is what the Judge had to say about the complaints that the parents made about the way they were treated by the Local Authority.

 

63. a) I deal with this issue here, not because the local authority’s capacity to care for EH arises, but because its approach has had an evident impact on all those discussed above, and with the agreement by all parties that there should be a Supervision Order it is clear that the Local Authority’s future conduct of the case will have an important effect upon EH’s future care.

(b) The parents, Mr and Mrs B and the Guardian have all raised concerns about the approach taken by the Local Authority in general and this Social Worker in particular.

(c) I am aware that it can be said that parents are bound to criticise a Social Worker involved in child protection proceedings relating to their child, and that the Social Worker is in a no-win situation, but it is not as simple as that. The roles a social worker and a local authority play are crucial and must demonstrate a real effort to work in partnership with a family, a readiness to try and rebuild a family and identify support to do so, a fair and robust analysis of all the information available, and sensitive interaction with the family to support all the above.

(d) I have already noted a number of concerning features earlier in this judgment: a failure by the Social Worker to include and consider carefully all the available evidence of the Father’s relationship and interaction with EH, and particularly her own s37 analysis; an unquestioning acceptance of the extreme analysis of the FAST assessor; a failure to include in the social work analysis of EH’s presentation during the FAST assessment crucial information that the Mother had told EH she might be removed into foster care and other potentially relevant factors; a failure to provide any adequate analysis of EH’s needs in terms of her close and loving relationships with her parents and the impact upon her of being removed from their care with limited contact; and an excessively rigid and negative reaction to the concerns raised in Mr and Mrs B’s viability assessment.

(e) As already mentioned, the downturn in the Local Authority’s approach and the parents’ relationship with the Local Authority and the Social Worker appears to have begun with the angry response received by the Social Worker and Practice Manager Jenny Jones in mid-March 2013 when Father was requested at short notice to extend his weekend staying contact. The negative viability assessment of Mr and Mrs B by the Social Worker followed in May 2013. This appears to have been communicated excessively bluntly and negatively to Mr and Mrs B, according to their account to the Guardian (E125). I take into account that they were not questioned directly about this while giving evidence and so I have to rely on the Guardian’s account of her conversation with them, but I also note that they were not challenged that this had been their experience, and I find that they had no reason to lie about this to the Guardian and they came across as entirely honest and helpful witnesses. I have subsequently seen an entirely proper letter, sent on 5.6.13 shortly after these conversations took place, setting out advice to Mr and Mrs B as to what steps they could take. By then however, that damage was done.

(f) The proceedings were then issued and first steps taken to progress the case. On 21.8.13 a FAST planning meeting took place between the Social Worker, Ms Mayet the FAST assessor and the Father. I have already found that his approach was hostile and unhelpful in trying to arrange dates for the FAST assessment. However, it was followed by the Social Worker, later at the same meeting, pressing Father to sign adoption medical consent and parental health forms. I accept the Guardian’s evidence that this was poor professional practice, and in any event it lacked sensitivity or any awareness of the meaning of these proceedings and assessments for the parents. A meeting about the Local Authority’s plan for adoption (even if a parallel plan) should not ride immediately on the back of a meeting that is about the assessment of that parent’s parenting. It will instantly undermine the parent’s faith in that assessment, particularly where the Local Authority is the assessor, and will appear to be grossly insensitive and as if the Local Authority are approaching the case with a closed mind. A separate meeting with a proper explanation of the parallel planning process should have been conducted.

(g) A similar and wholly unnecessary pressure and insensitivity was evident in the Social Worker’s actions on 8.11.13. On that date DJ Pilling’s judgment relating to the parents’ and Guardian’s applications for further assessment by ISWs was awaited from the contested hearing the day before on 7.11.13, and was handed down by email on the afternoon of 8.11.13. However, the Social Worker persisted with a meeting with Mother on 8.11.13, with the approval of her manager Jenny Jones, at which she sat with her for a lengthy period of time persuading her to complete parts of the Child Permanence Report which covers the views of the parent in relation to the proposed plan for adoption and contains a section relating to what information the parent would like the child to know in the future if adopted. I have seen that document. Understandably, the Mother described herself as intensely distressed by this exercise. The excuse for putting this highly vulnerable Mother through this was that the Social Worker had to prepare documents for the Agency Decision Maker to consider the Local Authority’s plan for adoption and that she would have been in trouble if the documents were not ready. However, she of course conceded that as soon as an assessment is to be carried out an ADM is not in a position to approve a plan for adoption, and of course it turned out that DJ Pilling’s judgment confirmed that both the Father and Mr and Mrs B should be further and independently assessed. Simply waiting one day for that decision would have saved the Mother a great deal of unnecessary distress and saved the Social Worker a waste of her time on preparing wholly unneeded documents. I could not fathom what drove the Social Worker and her manager to continue with this course of action in those circumstances. It cannot but have led the family to be convinced that the Local Authority was not prepared to think supportively and openly about the possibility of EH remaining in her family, and that the Social Worker was prepared to put the Mother through an intensely distressing experience come what may.

(h) Given that one of the key criticisms of the Mother was that she was failing to engage with the Social Worker, and of the Father was that he was aggressive and abusive to the Social Worker, I find it astonishing that she should take (or have been advised to take) such insensitive steps that cannot but have worsened the prospect of improving her working relationship with each of them.

(i) The Guardian was also concerned that the Social Worker called the police twice to EH’s home, in summer 2013 and February 2014. She considered that this was excessive and heavy-handed, particularly where a child is attending school and contact with another parent, and she could be seen through the window in summer 2013. It had a frightening impact on EH and again must have led the family to feel that the Social Worker had an excessively negative attitude towards the family.

(j) I note and accept that the Social Worker has agreed with hindsight in her oral evidence that some of these steps were not best practice and expressed regret through the Local Authority’s advocate for some of these actions. However, the matter unfortunately goes a stage further.

(k) In her final statement dated 21.2.14 at C143 the Social Worker reported a comment of the Mother’s that she had not in fact wanted the Father to spend Christmas with her and EH. The Social Worker then used this comment to suggest that the Father was again being inappropriately overbearing and that the Mother was being excessively weak, with consequent damaging exposure of EH to their relationship difficulties. However, during her oral evidence the Social Worker let slip that the Mother had in fact invited the Father to come for Christmas as EH had requested it. This is wholly absent from her written account and as a result it becomes a distorted and wholly misleading version of what occurred. Nowhere is the Mother’s willing and appropriate response to her daughter’s request mentioned. I am astonished that this could be characterised by the Social Worker as the Father overlooking the Mother’s feelings and the Mother being too uncomfortable to assert her wishes against him, when it was clearly nothing of the sort. This level of distortion to fit the Local Authority’s case is unhelpful in the extreme, unprofessional and frankly a misrepresentation of the true situation.

(l) Additionally, last week the Social Worker concedes that she answered Mother’s questions about what would happened at the end of this case by openly discussing in front of EH the need to pack a bag for EH. I fail to see how this should have arisen at all. The Social Worker should have either had this discussion long before with the Mother or should have deflected her questions so as to have the conversation in EH’s absence. This was a hugely insensitive and potentially destabilising discussion for EH to overhear. It is frankly flabbergasting to hear that that a child protection professional has acted this way. It is as if the child’s feelings are invisible.

(m) I must express my disappointment at having to consider these examples of the Local Authority failing to approach this case sensitively and with the aim of truly working in partnership with a family, and I consider that the family’s concerns as to the insensitive and negative approach they have been treated to are justified. Some examples appear to be the responsibility of the Social Worker and some of her management within her team. The attitudes betrayed by these examples must change for the Supervision Order to be properly administered by the Local Authority in EH’s interests. This is particularly the case given my findings in relation to EH and her Father that do not follow the Local Authority’s position adopted thus far.

(n) I am very grateful to the Local Authority for the addendum document dated 13.3.14 which adds to their care plan. I am also grateful for the Local Authority’s decision of which I have been informed this morning: to change the team which will be responsible for the Supervision Order. The Local Authority had originally confirmed that the Social Worker would change but that the team would remain the same and the manager Jenny Jones would remain in direct charge of the case. The Guardian had expressed the view that it would be preferable for the team and the manager to change. While aware of the limitations on my powers, I concurred and I had invited the Local Authority to think carefully and creatively about how to achieve the fresh start that it appears from the concerns set out above are urgently required to serve this family fairly, to enable the Local Authority, the Senior Social Worker and the Professional Assistant to look at these parents with a fresh eye, and to be able to work in partnership with them successfully. I had reminded the Local Authority to consider the guidance of Sir James Munby P in Re BS (2013) at §29 in terms of doing what is necessary to make the orders of the court work and not to be limited by resource arguments.

 

It is important, and in saying this, I’m aware that my own words might come back to haunt me in the future, that where parents have not been treated fairly and professionals have not behaved as they should, that Judges properly call them out on this, as these two Judges have done. Care proceedings are terrifying and confusing for parents and the very least that they can expect is that professionals treat them fairly and with dignity.

Judge orders A father to take his child to Mass

 

[“A father”, not as I’d wrongly typed originally “His father”  – a Judge who ordered his own father to take his child (the Judge) to Mass would be legally impossible and is a sort of mix between Judge John Deed (for impropriety) and Doogie Howser MD (for a Judge who is still a child)  ]

This is a story in the Daily Telegraph

http://www.telegraph.co.uk/news/religion/11355745/Judge-orders-father-to-take-his-children-to-church.html

 

The gist of it is that His Honour Judge Orrell ordered a father in private law proceedings that when the child is with him, he will take the child to Catholic mass.  The order applies to Christmas only. The father is not Catholic, but the mother is.

“If the children are with their father at Christmas he will undertake that they will attend the Christmas mass.”

The Daily Telegraph say that they have seen the Court transcripts (I have not) and that the Judge discussed his own Catholicism during the hearing.

 

So, a number of quick points on this.

 

1. I haven’t been able to find a judgment on this case on any of the law websites.

2. Initially, my thinking was that this was an order that had been made in the run-up to Christmas this year, hence the topicality of the story as we are now late January.

3. The article does tuck away, in the midst of its hatchet-job on His Honour Judge Orrell, that the father involved appealed this case unsuccessfully and also failed in a judicial review challenge. (I haven’t been able to find either of those reported). I’d suspect that the order in question might be a bit older than December 2014 then, to have got the appeal and judicial review heard by now.  In fact, when you read the detail of the article, the order complained of was in 2009. But it remains in force.

4. If the appeal transcript does come to light (it may have been refused permission on the papers – you don’t always get a published judgment for that) I’ll put a link up to it so that we can read it for ourselves.

5. I’ll assume that the sub-headline “Child care proceedings challenged after judge tells father he has a legal requirement to take his sons to Catholic mass” which is wrong on both the nature of the proceedings and the legal requirement issue, is the work of a sub-editor and not the author of the piece.

6. The Court does have power, if two parents are arguing about religious upbringing of a child, to make orders stipulating how the child’s faith is to be observed.  If, as the article claims, this was not a request by the mother, but of the Judge’s own motion, that would be unusual  (not unlawful, but unusual).

7. If, as the article claims, the Judge had made the decision because of his own attitude to faith and imposing his own values on the case, that would have been something that would have troubled the Court of Appeal.  Without seeing the transcript, or the Court of Appeal decision, I can’t tell you definitively whether what has claimed happened.  To be fair to this father, the fact that his appeal was unsuccessful does not NECESSARILY mean that his claim was not accurate, he might have lodged his appeal in a flawed way or not highlighted that particular aspect.

8. There is an interesting issue about whether, when deciding a child’s religious upbringing, one parent’s lack of faith is to be respected as much as the other parent’s faith. Are they on an equal footing for the law, or does the person with faith have a head-start?

 

An interesting case, I wish that we knew a little more. The appeal judgment would help enormously.

The bald order does seem harsh, for a parent who does not believe in Catholicism, but without knowing the circumstances, we don’t know, for example, whether Christmas mass was such an important issue for the mother / child, that directing that father take them was the only way of getting him to have contact on Christmas Day. It might have been a trade-off.

As someone who does not follow a faith, I’d have similar feelings to this father if a Judge imposed on me a requirement to go to church, so I have sympathy with his position and objection, and I think that this is a newsworthy story – I just wish that we had the appeal judgment to get more understanding of the factual and legal issues involved and why the decision was upheld.

 

FGM – an important authority

The President has given judgment in care proceedings where alleged Female Genital Mutilation was the sole issue

Re B and G  (Children ) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/3.html

Being the first reported case on this issue, it is significant anyway, but I think the President really comes into his own when he is giving a judgment of this kind  (I’m less keen on Views and Practice Directions and model orders, but this sort of thing he excels at)

It is going to be worth holding in mind that B was male, and G female. This will become important later on.

Firstly, and importantly, one should note that the Court found that the allegation that G had been subjected to Female Genital Mutilation was not proven, and thus did not happen. This despite two experts who examined G reaching that conclusion.

A lay person might well think that the factual issue of whether or not a procedure to remove a part of the body happened would be fairly straightforward, it turned out not to be.

The medical professionals in the case were criticised by both the parents advocates and ultimately by the Court.

  1. Mr Myers and Mr Ekaney invited me to accept Professor Creighton’s evidence. Mr Myers suggested that Dr Share’s evidence demonstrated the lack of awareness and training within the medical profession on the issue of FGM. Despite being a respected and experienced consultant community paediatrician with expertise and extensive experience in conducting child protection investigations, she openly and honestly admitted to having made significant errors in her reports. Mr Ekaney made similar points, questioning her expertise, whether clinical or forensic, in FGM cases. In relation to Dr Momoh neither pulled their punches. Mr Myers submitted that both her report and her oral evidence were “well below the standard required of an expert witness”. He described her evidence as “confused, contradictory and wholly unreliable” and submitted that I should attach no weight at all to her evidence on scarring. Mr Ekaney characterised her oral evidence as “unclear, dogmatic and unreliable”.
  2. It is unavoidable that I make findings about the expertise and reliability of the three experts.
  3. Dr Share is an experienced and highly regarded consultant community paediatrician but did not put herself forward as having particular expertise in FGM. She very candidly admitted that her initial findings were wrong and that she had changed her mind even after the second examination. In giving oral evidence she was an entirely honest, open and frank witness. The critical question is how reliable a witness she was in terms of what she thought she had seen when examining G.
  4. I regret to have to say that Dr Momoh merited all the harsh criticism expressed by Mr Myers and Mr Ekaney. Whatever her expertise in relation to FGM in pregnant women, in relation to young children it was extremely limited. Her inability in the witness box to provide explanations for matters that cried out for explanation was striking. Her report dated 23 April 2014 was a remarkably shoddy piece of work. A report that says, without further explanation or elaboration, and this is all it said, “It appears that [G] has been subjected to some form of FGM as her vulva does not appear normal”, is worse than useless. In my judgment her report and her oral evidence were well below the standard required of an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory.
  5. In contrast, Professor Creighton merited all the encomiums she received from Mr Hayes, Mr Myers and Mr Ekaney. She was the only one of the three with real experience of FGM in a paediatric context. Her evidence, both written and oral, was clear and measured; it did not change; it was delivered with authority; it carried conviction.
  6. I make every allowance for the fact that Dr Share and Dr Momoh examined G with the naked eye, Dr Share twice, whilst Professor Creighton did not, but I nonetheless find it quite impossible to rely upon their evidence as reliably establishing, even on a balance of probabilities, that G had been subjected to FGM.
  7. The fundamental problem is that, on their own evidence, neither Dr Share nor Dr Momoh has been able to give a clear, accurate or consistent account of what it is they thought they were seeing when examining G:

    i) Dr Share began off thinking that what she had seen was the removal of tissue, that is, FGM WHO Type I and possibly Type II; she ended up thinking that what she had seen was a scar, FGM WHO Type IV.

    ii) Dr Momoh recorded missing tissue; she also ended up thinking that what she had seen was a scar.

  8. An equally significant problem is presented by the fact that Dr Share and Dr Momoh disagree about the features of the scar they both say they saw. Dr Share described it as “curved” and “raised”, Dr Momoh as “straight” and not raised. As Mr Ekaney observed, they cannot both be right.
  9. Another significant problem is presented by the difficulties both Dr Share and, in much greater measure, Dr Momoh had in explaining the content of Dr Momoh’s notes of their joint examination.
  10. For all these reasons, and having regard also to all the other troubling aspects of their evidence to which I have drawn attention, I find it quite impossible to rely upon Dr Share’s and Dr Momoh’s evidence as establishing the local authority’s case. I am not persuaded of the presence of the scar which is now the only feature relied upon by the local authority in support of its allegation of FGM.

 

The President went on to give some specific guidance for the medical assessment process

i) There is a dearth of medical experts in this area, particularly in relation to FGM in young children. Specific training and education is highly desirable. As Professor Creighton explained (Transcript pages 23, 27-28), there is an awareness problem and a need for more education and training of medical professionals, including paediatricians. In answer to my question, “presumably we need more paediatric expertise than we have at present?” (Transcript page 29), she said “Yes, definitely”. She told me (Transcript pages 28-29) that there are at present only 12 specialist FGM clinics throughout the country, of which six are in London, and that her clinic at University College Hospital is the only specialist paediatric FGM clinic in the country.

ii) Knowledge and understanding of the classification and categorisation of the various types of FGM is vital. The WHO classification is the one widely used. For forensic purposes, the WHO classification, as recommended by Professor Creighton (Transcript page 2), is the one that should be used.

iii) Careful planning of the process of examination is required to ensure that an expert with the appropriate level of relevant expertise is instructed at the earliest opportunity. Wherever feasible, referrals should be made as early as possible to one of the specialist FGM clinics referred to by Professor Creighton. If that is not possible, consideration should be given to arranging for a suitably qualified safeguarding consultant paediatrician to carry out an examination recorded with the use of a colposcope so that the images can be reviewed subsequently by an appropriate expert.

iv) Whoever is conducting the examination, the colposcope should be used wherever possible.

v) Whoever is conducting the examination, it is vital that clear and detailed notes are made, recording (with the use of appropriate drawings or diagrams) exactly what is observed. If an opinion is expressed in relation to FGM, it is vital that (a) the opinion is expressed by reference to the precise type of FGM that has been diagnosed, which must be identified clearly and precisely and (b) that the diagnosis is explained, clearly and precisely, by reference to what is recorded as having been observed.

I heard on the radio this morning criticism that despite many reported cases of FGM there had not yet been a criminal prosecution – this case perhaps illustrates that it isn’t going to be as easy to prove to a criminal standard whether it occurred as the press and public might think.

The Local Authority having not proved their central allegation (that G had been subjected to FGM) they were also not able to prove that there was a likelihood of this in the future, and thus threshold was not proved and no orders were made. Although the family had probably spent 6 months or so under suspicion with substantial impact upon them.

Of wider impact, however, are the President’s observations on two points.

Firstly, does FGM if proven, amount to significant harm?  (One might think that this is a no-brainer, but the President had to consider the cultural issues and the fact that male circumcision is something that does not routinely trouble anyone, let alone the Courts; and thus if FGM was the sole issue how would significant harm for the male child B be established IF G had been subject to FGM? Also, remember that the significant harm test includes a component of “not being what it would be reasonable to expect a parent to provide”  – so if FGM is part of the parents cultural matrix, are they being unreasonable?)

It is quite a long analysis, paras 54-73, so I’ll skip to the conclusion (but it is worth reading in full)

  1. Moving on to the second limb of the statutory test, Mr Hayes submits that in assessing whether the infliction of any form of FGM can ever be an aspect of “reasonable” parenting, it is vital to bear in mind that FGM involves physical harm which, it is common ground, has (except in the very narrow circumstances defined in section 1(2)(a) of the Female Genital Mutilation Act 2003, not relevant in a case such as this) no medical justification and confers no health benefits. The fact that it may be a “cultural” practice does not make FGM reasonable; indeed, the proposition is specifically negatived by section 1(5) of the 2003 Act. And, as I have already pointed out, FGM has no religious justification. So, he submits, it can never be reasonable parenting to inflict any form of FGM on a child. I agree.
  2. It is at this point in the analysis, as it seems to me, that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms. There are, after all, at least two important distinctions between the two.[2] FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.
  3. I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish ‘threshold’ in accordance with section 31 of the Children Act 1989; male circumcision without more will not

 

The next key proposition was that the LA involved had been saying that if the allegation that the parents had been involved in FGM relating to G, the appropriate care plan would be adoption of both B and G.  The Judge expressed doubts as to that as a general proposition. But one can see the real problem – it might be justification to adopt the female child but it obviously can’t be justification to adopt the male sibling, and that leads to splitting the siblings.  And the obvious point that once the FGM has been carried out, the horse has bolted – the parents can’t carry out that form of abuse on the child in the future, so future harm is non-existent.  [In the absence of evidence about harsh treatment or neglect in other regards]

 

  1. Since in the circumstances the point was only briefly explored in submissions, I propose to say very little about it. No generalisations are possible. Much will obviously depend upon the particular type of FGM in question, upon the nature and significance of any other ‘threshold’ findings, and, more generally, upon a very wide range of welfare issues as they arise in the particular circumstances of the specific case. Arriving at an overall welfare evaluation and identifying the appropriately proportionate outcome is likely to be especially difficult in many FGM cases.
  2. There are two particular problems. The first is that once a girl has been subjected to FGM, the damage has been done but, on the evidence I have heard, she is unlikely to be subjected to further FGM (though of course female siblings who have not yet been subjected to it are likely to be at risk of FGM). How does that reality feed through into an overall welfare evaluation? The other problem is that, by definition, FGM is practised only on girls and not on boys. In a case where FGM is the only ‘threshold’ factor in play, there will be no statutory basis for care proceedings in relation to any male sibling(s). Suppose, for example, that the FGM is so severe and the circumstances so far as concerns the girl are such that, were she an only child, adoption would be the appropriate outcome: what is the appropriate outcome if she has a brother who cannot be made the subject of proceedings? Is her welfare best served by separating her permanently from her parents at the price of severing the sibling bond? Or is it best served by preserving the family unit? I do not hazard an answer. I merely identify the very real difficulties than can arise in such a case. In cases where there are other threshold factors in play, balancing the welfare arguments as between the girl(s) and the boy(s) may be more than usually complex, particularly if FGM is a factor of magnetic importance.
  3. The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.
  4. I add a final observation. Plainly, given the nature of the evil, prevention is infinitely better than ‘cure’. Local authorities need to be pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM. And, as I have already said, the court must not hesitate to use every weapon in its protective arsenal if faced with a case of actual or anticipated FGM. An important tool which lies readily to hand for use by local authorities is that provided by section 100 of the 1989 Act. The inherent jurisdiction, as well as all the other jurisdictions of the High Court and the Family Court, must be as vigorously mobilised in the prevention of FGM as they have hitherto been in relation to forced marriage. Given what we now know is the distressingly great prevalence of FGM in this country even today, some thirty years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, I suspect, if not the first one of only a handful of FGM cases that have yet found their way to the family courts. The courts alone, whether the family courts or the criminal courts, cannot eradicate this great evil but they have an important role to play and a very much greater role than they have hitherto been able to play.

I’ll repeat para 77, because it is key

The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.

I’ve never had an FGM case so I haven’t had cause to think about it in this amount of detail, but being honest with myself, I think I would have considered that (a) it would be easy to prove (b) I wouldn’t even have questioned whether it crossed threshold and (c) adoption would have been in my mind. So, this case is helpful in getting practitioners (and even Judges) to look at the situation in more detail.

A whole heap of trouble (secure accommodation)

You don’t often get secure accommodation judgments published, largely because they are usually decided by Justices rather than Judges so don’t fall into the publication scheme, but this one was decided by Mr Justice Hayden and throws up some interesting philosophical issues.

London Borough of Barking and Dagenham 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4436.html

 

There’s an exercise in philosophy where one starts putting individual pebbles on a table. You add one at a time, every few seconds. At some point, what you have is a heap or a pile of pebbles. But if you are adding them one at a time, it is difficult to see the point at which you go from “non-heap” to “heap”.  Equally, once you have a heap of pebbles and start removing one at a time, finding that precise point at which you’ve removed the pebble that turns it from “heap” to “non-heap” happens.  Obviously we can all agree that 3 pebbles aren’t a heap, and that 300 are, but where that precise boundary line happens is much more fuzzy.

 

In this case, the heap issue arises in part on the legal test for making a Secure Accommodation Order (which, lets not forget, is an order that allows a family Court to sanction a child being locked up not as punishment for a criminal offence but for their own good)

“Use of accommodation for restricting liberty

(1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (‘secure accommodation’) unless it appears -

(a) that -

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.”

 

They are alternate tests – either (a) OR (b),  you don’t have to satisfy both  (though in many such applications, both limbs are satisfied).

Now, for ground (a) it all flows from “has a history of absconding”, so how many incidents of absconding amount to a history. One incident isn’t a history, fifty clear is. But at what point do the number of incidents crystallise into a “history”

For the purposes of this application, I find that SS has absconded on two occasions. I doubt whether that can truly be said to be a history of absconding and it is, as I said, significant that, on the second occasion, it was she who sought to return to the foster carer. I am, however, entirely satisfied that she is likely to abscond in the future, if not in secure accommodation, in the sense that there is a real possibility of her absconding. I am absolutely sure that she is at risk of significant emotional and/or physical harm were she to do so.

This was one of those cases where the child was the victim of Child Sexual Exploitation by unsavoury adults, but because of the difficulty in prosecuting such adults for their criminal behaviour, the child is locked up instead, a state of affairs which post the Rochdale child grooming debacle, is happening more and more.

  1. It scarcely needs to be said that restricting the liberty of a child is an extremely serious step, especially where the child has not committed any criminal offence, nor is alleged to have committed any criminal offence. It is for this reason that the process is tightly regulated by the Children Act 1989 in the way I have set out, but also in the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation No.2) Regulations 1991. The use of s.25 will very rarely be appropriate and it must always remain a measure of last resort. By this I mean not merely that the conventional options for a child in care must have been exhausted but so too must the ‘unconventional’, i.e. the creative alternative packages of support that resourceful social workers can devise when given time, space and, of course, finances to do so. Nor should the fact that a particular type of placement may not have worked well for the child in the past mean that it should not be tried again. Locking a child up (I make no apology for the bluntness of the language, for that is how these young people see it and, ultimately, that is what is involved) is corrosive of a young persons spirit. It sends a subliminal and unintended message that the child has done wrong which all too often will compound his problems rather than form part of a solution.
  2. The courts have seen a number of cases in recent years where vulnerable young girls have been exploited in a variety of ways by groups of predatory men. That so many of these men escape prosecution and continue to enjoy their liberty whilst the young girls they exploit are locked up (for their own protection) sends very confusing messages to the girls themselves, to the distorted minds of the men who prey on them and to society more generally.
  3. I have heard something of the regime the unit in which SS has been resident. I have no reason to believe that it is any different to any other of the welfare-based units. I equally have no doubt that those who run and work in them and the variety of disciplines which support such units are all highly motivated to help. There will be circumstances where young people have to be incarcerated to protect them, ultimately, from themselves.
  4. That said, I heard that this unit has what is referred to as an “air-locked security system”; that is to say that only one room can be left open at any stage. There is no computer access. There is a reward system by which privileges are both earned, and taken away. It is difficult not to see, from the eyes of the young people concerned, a custodial complexion to this environment. It has the most profound disadvantage in the case of SS in that it must surely reinforce her own already overactive sense of having done wrong.
  5. I do not criticise the structure or regime of this, or, indeed the other units. I recognise, as I have already stated, that they have a place in the panoply of strategies required to safeguard vulnerable children, but I was not satisfied that such a regime was a proportionate interference in SS’s life and so, to investigate it further, I asked Ms. Lewis, counsel on behalf of the Local Authority, whether she could contact senior officials within the unit so that I could have some closer idea both of the nature of the regime in operation and the philosophy which underpins it. At very short notice, the deputy principal was able to make herself available. She told me that, for young women in the situation of SS, such units could only really try and achieve one objective and that was to keep the young people concerned safe in a time of crisis “only long enough to find them somewhere more suitable”. That seems to me to crystallise the very limited scope of this provision.

 

There’s a peculiar wrinkle with the law on Secure Accommodation, which I was always surprised survived the Human Rights Act but still stands. It is this – unlike any other order in the Children Act which is subject to the “no order” principle and the “welfare paramountcy” principle, orders under s25 are MANDATORY if the Court find that the criteria are made out.

The role of the Court on secure accommodation applications is not, as with any other Children Act application, to decide on both the facts and what to do with those facts for the child’s best interests, but to simply decide whether factually the grounds for the order are made out, and if so  to make the order.

The provision goes on, at subsection (3), to provide that:

“It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied (inaudible)”

And (4):

“If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.”

 

This doesn’t always sit entirely comfortably with the suggestions and recommendations that a Secure Accommodation Order ought to be a last resort.

 

What is a Court to do where it considers that the s25 threshold is met, but that the making of a Secure Accommodation Order is not proportionate? (It surely HAS to consider whether it is proportionate, because it is an article 8 interference with the child’s right to private and family life)    i.e, the LA consider that the case has reached that “last resort” stage, but the Court think that more could be done?

If the case is being brought on the second limb

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons

then the Court COULD conclude that really an attempt should be made to place the child in another form of accommodation with different resources and safeguards as one last try, and so the criteria is not made out.

 

What about the first limb?

(a) that -

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm;

 

That’s probably harder to resist – if factually there IS, a history of accommodation and if factually there IS a likelihood of significant harm if the child absconds again  (and that likelihood is the ‘risk that cannot sensibly be ignored’ provided that there’s some factual basis for thinking that that risk exists), it is hard for the Court to avoid making the order, even if they don’t consider that Secure Accommodation is the right order for the child.

So you can see that the issue of what amounts to a history of absconding can be important as to whether the Court are in charge of the order, or whether they are just there to factually determine that the criteria are made out.

 

[This judgment is also a good go-to resource for the law on secure accommodation, as the Judge gives a very punchy summary of the key issues, in part because not all of the parties in the case had quite grasped the rather unusual nature of s25]

Nothing else will do – Scotland

I’ve had to look up Scottish adoption law today, and found this little piece from the 1995 legislation  (Children Act Scotland Act 1995)

 

 

96 Duty of adoption agency to consider alternatives to adoption.

After section 6 of the 1978 Act there shall be inserted—
“6A Duty to consider alternatives to adoption.

In complying with its duties under section 6 of this Act, an adoption agency shall, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of that child or whether for him there is some better, practicable, alternative; and if it concludes that there is such an alternative it shall not proceed to make those arrangements.

 

If you just added “And the Court” each time that this says “adoption agency”, it is a pretty workable solution to the whole “nothing else will do” debacle that has had everyone tied up in knots.

I know that in English family Courts, “the Scottish system” is whispered with an air of dread and menace much like actors referring to “the Scottish play”  but I’ll point out that this was in their legislation nearly twenty years ago AND three years before the Human Rights Act was adopted. It looks pretty progressive to me.

 

[We don’t have anything like that in our English or Welsh adoption statutes – this principle of adoption being last resort is purely as a result of judicial interpretation. Be quite nice to have this principle set out in statute, and particularly in such a clear way.]

 

Re D (part 2) a damp squid

 

 

The President’s judgment in Re D  (part 2) is up.  The blog post about part 1 is here:-

http://suesspiciousminds.com/2014/11/03/everyone-really-ought-to-read-re-d/

Re D is the case in which parents had a care order at home, the LA removed under the Care order, there was no legal aid to challenge that decision despite father lacking capacity to instruct a solicitor. Then the LA lodged an application for a Placement Order, and as it was not joined up with care proceedings, there was no legal aid for THAT either.

Father’s legal team were not only acting for free, but they had to write the Official Solicitor an indemnity that if a costs order was made against the O/S they would pay it. Which is above and beyond.

So Part 2 is all about whether Legal Aid would be granted for the father under s10 LASPO (exceptional circumstances) and if not, what would happen.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/2.html

 

Annoyingly, as keeps happening before the President, the Legal Aid Agency eventually blinked and granted funding, thus avoiding a judgment that might declare that s10 LASPO as being practiced is incompatible with article 6.  So we don’t get a valuable precedent because there was no live issue to try. Grrrr.

 

However, note that the public funding granted here is still subject to an ongoing merits review  (that’s NOT what happens in care proceedings – even if your case looks hopeless you are still entitled to have a lawyer fight it for you)

 

The next hearing took place on 2 December 2014. As can be seen from the Annex, the final piece of the legal aid jigsaw had fallen into place the day before. My order recited the position as follows:

“The Father has a substantive funding certificate to cover all work undertaken to date and up to a final hearing in both the s.39 CA 1989 and s.21 ACA 2002 applications. The Official Solicitor will, in the usual manner, conduct an ongoing review as to the merits of the case and this may effect whether the funding certificate will remain in place.

The Mother has a substantive certificate to cover the period up to the exchange of final evidence in respect of both the s.39 CA 1989 and s.21 ACA 2002 applications, whereupon it will be subject to a merits review and report to the LAA which will determine whether the certificate will be extended to cover the final hearing.”

 

So it could be that if all of the professional evidence is against the parents, they will have no legal aid to have lawyers to challenge and test that evidence at a final hearing, although what is at stake is adoption.

 

The President has strong views about this (though note that parents routinely don’t get lawyers to help them on applications for leave to oppose the making of adoption orders, which also feels pretty shabby to me)

I have set out the parents’ legal aid position in paragraph 14 above. It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:

“To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”

A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.

 

The really sad thing about this case is encapsulated by the mother

  1. This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.
  2. I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this:

    “The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.”

    They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?

 

Hear hear.

Equally, it can’t be a decent solution to this situation that we have to get a case before the President before the Legal Aid Agency will blink and see sense. He can’t hear all of them.

The annexe is shocking- it has taken nine months of wrangling to sort out legal aid for something that most people would assume was automatic.

I completely agree with the position of the ALC (Association of Lawyers for Children) and ADCS  (Association of Directors of Childrens Services)  – parents facing an application for a placement order should get non-means, non-merits public funding regardless of when the application takes place.

 

…the ALC makes these two assertions:

    1. “Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable.
    1. Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided.”
  1. I draw attention to two of the points made by the ADCS. The first is that:

    “From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child’s parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings

    In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem.”

     

    [For the benefit of pedants, yes, I know it is ‘squib’, but I like that particular eggcorn. Actually, this case isn’t quite as damp as it appeared when I first read it, because there’s a rap over the knuckles for LASPO here, although it doesn’t end up being the declaration of incompatibility that many were hoping for]

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