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Allegations of abuse against a father

Reported cases in private law where serious allegations of sexual harm are made against a father against a backdrop of separation and acrimony and disputes over the children are becoming more common. They are always extremely difficult. And these days, more and more, they may begin as private law cases but end up as public law cases.

 

The Court is generally left with four choices when faced with allegations of this kind

 

  1. The allegations against father are true, with all the consequences that that will mean for his relationship with the children
  2. The allegations are not true, but they were an honest mistake (with the hope that once the Court has given that judgment, everyone can move on)
  3. The allegations are not true, and they were made with the honest belief of the mother that they were true (again, with the same hope as above)
  4. The allegations have been fabricated by the mother with the intention of hurting father and frustrating his contact.

 

In this case, Hampshire County Council v Mother and Others 2014, there are two linked judgments.

 

The first http://www.bailii.org/ew/cases/EWCC/Fam/2013/B19.html was in December 2013 and was the finding of fact judgment.

 

That concluded that the allegations against father were not true, and that mother had played a part in bringing them about

 

My finding is that while Mother has indeed been the victim of her psychological problems, she has also consciously created some of the allegations here. I have been told that the Guardian is also of the view that there is a combined explanation for the allegations. The timing between contact re-starting and the next allegation being made is too much of a co-incidence for there not to have been some volition on her part. There are also examples of Mother embellishing stories as – the addition of the alleged threat of self harm she over-heard Child make to a nurse or doctor on the 31st August when she was questioned about it by MG is a good example.

 

 

It must be understood by Mother that her allegations that Father has sexually abused Child have been found to be totally unfounded, created by her both unconsciously and consciously. She must also understand that what she has done has been hugely emotionally damaging to Child, who will take a long time to recover her own psychological equilibrium, even with her Father’s help. She must never allow herself to make such allegations again, or she will risk never seeing her daughter.

 

 

An interim care order had been made in October 2013, placing the girl in foster care.

 

 

The second judgment http://www.bailii.org/ew/cases/EWFC/OJ/2014/B126.html

 

relates to the final decisions in the case, mother having been given six months of time to reflect on the findings and move forward.

 

Sadly, she had not been able to do so. That led to the child being placed with the father, that mother would have seven contacts per year and that there was a s91(14) order meaning that mother would be unable to make any further applications to Court without leave.

 

(The Court note in that analysis that it is not lawful to attach conditions to a s91(14) order but did agree that it would help to tell mother the sort of changes that she would need to be making for such leave to be granted)

 

One of the difficult features in this case was that mother’s position if anything had hardened in that intervening period, probably not helped by the fact that her therapist was supportive of her belief that father had abused the child, and so were her family.

 

(MG was an expert in the case, who had made some recommendations as to the best way of moving mother forward after the finding of fact judgment)

 

 

MG has been cross examined as to her findings and conclusions in this hearing. She said that since the last hearing it is a great pity that her recommendations as to treatment for Mother have not been taken up. She had recommended that Mother be seen by an independent psychiatrist to formulate a treatment plan to reduce her anxieties and her medication. She said that therapy should be found for Mother in conjunction with the psychiatrist. Instead Mother has been discharged by her treating psychiatrist in the NHS mental health service with a diagnosis of “no serious mental illness,” which MG said is regular practice these days by treating mental health professionals. And instead of seeing an independent psychiatrist, she has found a psychotherapist who she consults by webcam, and who has accepted without question everything that Mother has told her about her allegations of sexual abuse against Father. MG said that it is a great pity that this treatment is not evidence based and does not challenge her at all, so the net effect is that Mother is no further forward with any form of treatment, but appears to be reinforcing her views by getting professionals on-side.

 

Mother’s actions since the December hearing, it should be recorded, have been to try and shore up her position that the allegations against Father were true. She has repeated them fully to her psychotherapist, who wrote a lengthy letter to the court on her behalf. A mental health professional contacted Children’s Services on her behalf in connection with the allegations. Her vicar has become involved in the case, getting up a petition with over 100 signatures from churchgoers for the return of Child to Mother’s care, and attending contact uninvited. And finally Mother has re-asserted the truth of the allegations in a document written by her for a contact planning meeting in January 2014 after a difficult contact session.

 

 

[The Court doesn’t seem to have picked up on the point that it is unlawful for mother or others to identify that her child is the subject of ongoing Court proceedings, which someone must have done in order to sign the petition]

 

 

These cases are all really hard. For a father, to be accused of sexually harming your child when you have not done it must be one of the worst things imaginable and if the Court decide having tested the evidence that you are innocent you think that this will be an end of the nightmare, but it isn’t. And looking at it from the mother’s perspective, either the allegations are true and the Judge has got it wrong (which is not right legally, but is a human reaction) or by that point your relationship with the father is so corrosive and damaged that you have convinced yourself that he IS a risk and yet nobody will listen to you.

 

 

Looking at it from a purely forensic and legal perspective, the only thing for a mother to do in this situation is to say that the allegations were made in good faith and to protect the child, but that she now accepts the judgment.

 

But human beings don’t make decisions based on pure forensic legal considerations but on emotions and feelings.

 

I am reminded of the Blackadder lines

 

It is so often the way, sir, too late one thinks of what one should have said.

Sir Thomas More, for instance, burned alive for refusing to recant his Catholicism, must have been kicking himself, as the flames licked higher, that it never occurred to him to say, “I recant my Catholicism”

 

 

In a case like Hampshire, where mother is given the chance to recant her allegations and not only doesn’t do so, but proclaims them anew, it is not a very difficult decision for a Court to make.

 

On the ground, for a family and a child, they are some of the hardest things of all.

 

The mother and her side of the family are never going to accept that the child should be with father, they are always going to feel that mother has been punished for speaking out and saying the truth and that the child is in the most dangerous placement possible. What does that do to their relationship with the child? What are those contact sessions like? How will difficult questions raised by the child be answered?

 

I’ve got very little sympathy for mothers who perniciously fabricate such allegations about fathers (the option 4 in my original list), but what about those mothers where the allegations were made in good faith and they can’t move on from “it is my child, I KNOW in my heart that this really happened”?  (options 2 and 3)

 

Legally and forensically it is easy – recant your Catholicism and accept the judgment. I can’t help but have some sympathy for mothers in that position though. What, they might say, if the Judge has got this wrong? People make mistakes – Courts get things wrong.

 

If you are in that position, how easy is it to just say “I give up, okay, it never happened”, when every fibre of your being says that it did?

 

What, they might say, if the Judge thinks that on the balance of probabilities, it is 55% likely that the allegations aren’t true. For the law, that proves it. But for me as a mother, what about that 45% chance? How could I, as a mother, be happy that there was a 45% chance that my child has been abused?

 

[None of that counts in legal and forensic terms – once the Judge has made a decision, you either accept it, or you successfully appeal it. The Court’s decision means that all of that doubt and uncertainty is removed and that what the Court say happened IS what happened]

 

We are hearing more and more from the Courts that it is not the job of the Court to fix people, to make them better, to solve their problems.

 

(for example T v S http://www.bailii.org/ew/cases/EWHC/Fam/2013/2521.html

 

The court simply cannot micro-manage this very difficult relationship. If it sought to do so it would simply disempower the parents and add to the stresses on the child. Despite the force and intensity of the father’s complaints, he has said nothing in my judgment which, whether looked at individually or collectively, justifies the drastic step, so shortly after Mr. Justice Hedley refused, entirely appropriately as it seems to me, to vary the arrangements, to throw all that back into the melting pot and to embark upon the kind of investigation preparatory to the kind of fundamental change in the arrangements which it is the father’s ambition to achieve.

 

And Re K http://www.bailii.org/ew/cases/EWCA/Civ/2014/1195.html

 

“In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot – its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be ‘allocated’ to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court’s decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies.”     )

 

 

And to an extent, that is right. The Court don’t have a magic wand to make things better, they don’t have resources to fix people.

 

Indupitably, however, there are people who come out of Court proceedings substantially more broken than when they went in. I don’t have an answer, and I suspect we’re less likely to get one that we were pre Austerity.

 

Fraud unravels everything – Rapisarda v Colladon part 2

 

 

 

 

I’ve been eagerly awaiting this judgment. This is part 2 of the case involving the Queen’s Proctor and an alleged systematic fraudulent obtaining of 180 divorces (some decree nisis, some decree absolutes)

 

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/09/rapisarda-v-colladon-italy.pdf

 

I wrote about part one here http://suesspiciousminds.com/2014/05/09/the-pages-of-the-most-extravagant-french-novel/

 

That judgment was all about whether the Press could report what had been going on, because there are historic statutes aimed at preserving the decency of Victorian breakfast tables stopping the Press reporting the details of divorce cases (they can report the financial settlements, but not the divorce itself).

 

The President did one of his very clever conjuring tricks to resolve that and allow the case to be reported.

 

Part 2 is about whether there had been this systematic fraud. According to the case, the allegation is that many divorce petitions were lodged, all using the same address in Maidenhead for the petitioner, as a means of allowing the divorce to be obtained in England, when the petitioners really lived in Italy. This was so that the divorces could be progressed more quickly.

 

(Yes, for inexplicable reasons, our divorce system is more efficient than the Italian one. I shudder to think about that)

 

In 179 of the cases (I shall deal separately with the other case, La Marca v Prestieri BY12D00274, where an address in Epsom was given as the petitioner’s residence) the address given for the petitioner or the respondent, as the case may be, was identical: Flat 201, 5 High Street, Maidenhead, SL6 1JN. I shall refer to this as “Flat 201”. The address given for the other party – and these were different addresses – was in each case in Italy, except in one case1 where an address in Germany was given for the respondent. In the majority of the 179 cases in which Flat 201 was given as the address it was said to be the petitioner’s address; in a small minority of cases – in 37 of the cases I think – Flat 201 was said to be the respondent’s address.

 

I suppose that it is theoretically possible that there really have been 179 different women living in this one flat in Maidenhead, all of whom coincidentally happened to be getting divorced at around the same time. It doesn’t seem all that likely though.

If those decrees were obtained by fraudulent means, then they would all be set aside

 

Moynihan v Moynihan (No 2) [1997] 1 FLR 59.

 

the well-known words of Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702, 712:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever … ”

 

 

“A decree absolute is generally considered to be good against all the world. It is an order ‘in rem’. However, if it has been obtained by fraud, there is a fundamental defect. In this case, I have no doubt that Lord Moynihan’s divorce petition was deliberately framed in a way which was calculated to deceive the court. All the subsequent representations and submissions which were made to the court were vitiated by fraud. He wished to obtain a divorce. He wished to do so even if his wife objected to it, as I believe she did or would have objected, if only on financial grounds. He quite deliberately set out to deceive the court. His affidavit verifying the petition was false, and in swearing it he committed perjury. He perverted the course of justice and succeeded in obtaining a decree. It is a gross case. The inevitable consequences to all are serious. I have no doubt that I should set aside and declare null and void the decree absolute and the decree nisi and dismiss the petition.”

 

 

Moynihan v Moynihan is a pretty saucy case in any event.

24.  It was, like this, an application by the Queen’s Proctor for the setting aside of a decree absolute of divorce obtained, so it was said, by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The fraud as found by Sir Stephen had various strands: The particulars set out in the petition were false in a number of material respects; the affidavit in support of the petition, in which the petitioner swore that everything stated in his petition was true, was perjured; the statement of the proposed arrangements for the child of the family, filed with the petition, was wholly misleading; the petitioner subsequently falsely told the court that the child had died when he knew full well that he was still alive; the acknowledgement of service purportedly signed by the respondent wife (and in which she purportedly admitted the adultery alleged in the petition) was false.

  Specifically, the petitioner falsely asserted an English domicile when he was in fact domiciled in the Philippines. His case on this point was supported by perjured evidence, what Sir Stephen called “deliberate lies”:

“In order to deceive the court into accepting jurisdiction in his divorce suit, he told quite deliberate lies. He persisted in and added to the lies when the registrar at Tunbridge Wells County Court required confirmation and further elucidation of the domicile position. Those lies enabled the court to accept jurisdiction and to proceed to deal with the divorce suit.”

25. Sir Stephen continued:

“However, this was not his only deceit of the court. I am satisfied on the balance of probability that neither the respondent wife nor the co-respondent was served with the petition. Lord Moynihan arranged for false acknowledgements of service to be returned to the court, and yet a further deception related to the child of the family”.

His conclusion was damning:

“I find that there was a clear, deliberate and sustained deception of the court by Lord Moynihan … Lord Moynihan unfortunately was a man accomplished in fraud and indeed in forgery.”

 

 

You don’t that often come across a case where a Judge gives a peer of the realm that sort of kicking (it is, of course, rather easier to do so when the peer is dead)

 

 

The President sums up the law as it relates to fraud, perjury and divorce petitions as follows :-

29. So far as material for present purposes I can summarise my conclusions on the law as follows:

i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;

ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;

iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;

iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.

As will become apparent, it is the third of these propositions which is determinative in this case.

 

 

 

The President then gets stuck into the facts – as outlined, the same address appears in 179 of the petitions, giving jurisdiction in England.

 

Except in one case, which I shall deal with separately, Rapisarda v Colladon AL11D00099, issued in the Altrincham County Court on 16 February 2011, there is no reason to believe that either the petitioner or the respondent, as the case may be, whose address was stated to be Flat 201 had ever resided in England or Wales.

 

Be that as it may, it is certain that none of them can ever have resided at Flat 201. On 28 August 2012, police officers of the Thames Valley Police executed a search warrant in relation to Flat 201. The evidence of one of the officers who executed the search warrant, Detective Sergeant Steven Witts of Thames Valley Police, whose witness statement is dated 4 March 2014, confirms that Flat 201 was not a residential property or, indeed, a property capable of occupation. It was in fact a mail box, mail box 201, one of a number of mail boxes located in commercial premises. As the investigating officer in charge of the police investigation, Detective Sergeant Jonathan Groenen, mordantly commented in his witness statement dated 29 October 2013, “It is not possible for 179 applicants or respondents to reside at this address.” Indeed, given the dimensions of the mail box it is clear that not even a single individual, however small, could possibly reside in it.

 

 

In short, it is clear beyond any sensible argument that in each of these 179 cases the assertion that the English court had jurisdiction to entertain the petition was founded on a lie, the lie that either the petitioner or, in some cases the respondent, resided at Flat 201. To put it plainly, the English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition.

 

 

(I cannot express how much I love the “given the dimensions of the mail box it is clear that not even a single individual, however small, could possibly reside in it” line. )

 

 

Now, if you know about divorces, you will know that an affidavit has to be sworn at some point. The affidavits in many of these cases were ostensibly sworn before a solicitor in Reading. So, were these Italian petitioners flying over to Reading to lie when swearing their affidavit? Were the solicitors in on it?

 

The affidavit purported to have been sworn by the petitioner on 27 April 2011 before a solicitor. Opposite the words “Sworn at” there appear, seemingly affixed by a rubber stamp, what purport to be the name and the postal and DX addresses of a firm of solicitors in Reading. The name and addresses are those of a firm of solicitors that does indeed exist. I should add that similar affidavits appear in the court files of most of the other cases before me.

 

42.There are, I suppose, a number of possibilities: that the affidavit was in fact sworn as it purports to have been (unlikely, given that this affidavit resembles many others in the cases I am concerned with and that it is fanciful to imagine that large numbers of Italians, who there is no reason to believe lived in this country, should have made the journey to Reading); that someone in the solicitors’ office was colluding in the conspiracy; that the solicitors were the innocent victims of impersonation; or that the solicitors were entirely innocent, had nothing whatever to do with the affidavit and are themselves yet another victim of this fraudulent conspiracy. I am entirely satisfied that this last alternative is in fact the truth. Interestingly, and revealingly, Reading County Court was not one of the many county courts used by the architects of this fraud.

 

43.In the course of their investigations, police officers from Thames Valley Police visited the solicitors’ offices in Reading on two occasions, Detective Sergeant Witts in August 2012 and Detective Sergeant Groenen in March 2014. The police received every possible assistance from the firm’s employees, including from the senior managing partner. Detective Sergeant Groenen in a further witness statement dated 3 April 2014 is very clear. He is, he says, “satisfied” that the various persons named in these affidavits“were not employees of [the firm] and had no association with the real firm. In my view, the firm’s name has been used falsely by those responsible for drafting the affidavits, without the knowledge or permission of anyone at the firm.”

 

Wow.

 

I suppose if you have no scruples at all, that’s not that hard to do. You pluck a solicitors firm out of the air, and swear affidavits pretending to be a solicitor from that firm.

 

Do we get any information about where and how this fraud was being orchestrated?

 

 

44. In one of the cases, Rapisarda v Colladon AL11D00099, there is direct evidence of how the relevant affidavit came into existence. This is one of the cases in which it was said that it was the respondent who resided at Flat 201. The petitioner, Agata Rapisarda, was said to reside in Italy. For reasons which will become apparent in due course, I will need to go into this particular case in more detail. For the moment I need refer only to the petitioner’s affidavit, again in Form M7 and filed in accordance with rule 2.24(3), purportedly sworn on 19 April 2011 before the same person who, eight days later, purportedly witnessed the petitioner’s signature in Gargiulo v Armani AF11D00099. I have evidence from the petitioner, which I have no hesitation in accepting. She made a witness statement dated 25 October 2013 and gave oral evidence before me on 9 April 2014. Until she came to London in April 2014 to give evidence, she had never been in this country. She has never been to Reading. She accepts that it is her signature on the affidavit but says that she was in Italy, in Verona, when she signed it. The solicitor’s details were not there when she signed the document. She thought that most probably the other parts had also not been completed. Whatever the reality in relation to that last point, it is quite clear from her evidence, which I accept, that this purported affidavit was never sworn by the petitioner as it purports to have been sworn.

 

45.In fact and in law, the purported affidavit in Rapisarda v Colladon AL11D00099 was no such thing; it was a forgery, deployed by the fraudsters to deceive the court. If it was an affidavit, then, like the purported affidavit in Gargiulo v Armani AF11D00099, it reeked of perjury. Either way the court was being deceived, the administration of justice was being perverted.

 

 

So, who is behind all of this? Who is “The Napoleon of Criminal Divorce”?

 

The moving spirit of the operation in Italy was someone calling herself Dr Frederica Russo (email div@fredericarusso.com; fax 06-233237081 or 06-233237080). I have no idea whether that is her real name. The emails in both the Rapisarda file and the Rodrigues file pass from and to her. Some of the parties mention having spoken to her on the telephone (+39 347 8535829, 00448445853857, 3408903115), but no-one records ever having met her. The total cost of the service she was providing seems to have varied: €4,050 in Meola v Danesi EX11D00570, €3,750 in Rapisarda v Colladon AL11D00099, and €4,700 in Diaferio v Rodrigues TS10D00587. Payment was made by instalments to an account in the name of Anita Colucci. Some of the parties believe this to be another name for Dr Russo.

 There is mention of the involvement of an entity called Nolton Company Service and of a company, Russo Legal Service Limited (of which Dr Russo “portrays herself as the director”) registered at Companies House under number 08519986, both located at Office 5, 105 London Street, Reading RG1 4QD, which I shall refer to as “Office 5”. This is in fact another mailbox. One of the parties says, “Mrs Russo cooperates in these divorce proceedings with Mr Francesco Galatà, via Carduzzi, 1 Sarzana (SP), Italy, with his office in via Camponesto 3 Sarzana (SP) Italy.” Another refers to “Russo and her partner Francesco Galata.”

 The investigations by Thames Valley Police revealed that the Flat 201 mailbox was owned by a company which also owned the Office 5 mailbox. Both were rented by Mr Galata. The police investigation also established that Nolton Consultants Limited, a company registered at Companies House under number 3244763, appeared to have some involvement with the Flat 201 mailbox, though it was not clear to the police how Nolton was connected with Mr Galata. On 29 October 2012, Detective Sergeant Witts spoke to Mr Galata on the telephone. Mr Galata, who said he was in Italy, stated that he charges £120 per hour “to assist lawyers in Italy with facilitating divorces across the whole of Europe.” The officer added, “He became vague when regarding how his post box in Maidenhead was linked to the divorce petitioners”.

 

(I bet he bloody did)

I really want to email Dr Frederico Russo, but I am trying my best to resist that temptation.

 

In the words of Jimmy Cricket, “come here, there’s more”

 

In some cases letters sent by the court to the mailbox at Flat 201 in 2013 addressed to one of the parties were returned under cover of a letter from Nolton Consultants Company Services, giving an address at 65 Via XX Settembre, 19038 Sarzana (SP), Italy (telephone +39320 233 3476). So far as material for present purposes these letters said:

“We are the registered owners of the address “Flat 201, 5 High Street, Maidenhead SL6 1JN”; any mail sent there is forwarded

to Italy fortnightly where our office staff then processes and forwards all the items received to the due addressee,

Our business includes receiving, processing and forwarding parcels and correspondence on behalf of our clients.

… We are hereby returning your letter for the following reason:

The addressee is no longer our client”

 

The Rapisarda file contains an email from the petitioner to Dr Russo dated 23 February 2011 saying (I quote the translation) “I received what I enclose, what should I do?” Cross-referring to the court file this would seem to be a reference to the notice of issue of the petition dated 16 February 2011 sent to the petitioner by Altrincham County Court and notifying her that a copy of the petition had been posted to the respondent on 16 February 2011. On 28 February 2011 Dr Russo sent the petitioner an email, seemingly referring to the acknowledgment of service to be signed by the respondent, seeking her assistance in obtaining his signature, and saying “only to be signed, not to be completed”. (The court file shows that the completed acknowledgment of service was received on 14 March 2011.) I heard evidence about this from the respondent (see further below). He accepted that it is his signature on the acknowledgement of service but said that the form was otherwise blank when he signed it. I shall return below to consider this in more detail. For the moment two obvious questions arise: Why was Dr Russo seeking the assistance of the petitioner, resident in Italy, in obtaining the signature of the respondent, then supposedly living in England at an address known to Dr Russo? And what is the significance of the instruction to “sign” but not “complete” and, indeed, of the fact that the respondent signed a blank form? In relation to the latter point, an email from the petitioner to Dr Russo dated 7 April 2011 says “I received the document which is attached. Please let me know what to do.” Examination of the court file would suggest that this refers to the court’s notice dated 24 March 2011 of its receipt of the respondent’s acknowledgement of service, enclosing with it a form of request for directions for trial (special procedure) and a form of the appropriate affidavit to be sworn by the petitioner. Dr Russo’s response to the petitioner the same day was “Do not reply because … to avoid errors we fill forms”.

 

55.I interpolate that similar instructions are referred to in information supplied by parties in other cases: “just to sign the documents already filled in … that would be sent to us … without adding anything besides the signatures”; “JUST sign where indicated, because all that was necessary to indicate in those documentations would be added later by the Doctor and/or her staff”; “She told us that we wouldn’t have had to do anything, just sign the papers where she indicated in a facsimile.”

 

56.Turning to the Rodrigues file, it includes one particularly interesting exchange. Dr Russo’s modus operandi was to send her clients a document setting out the steps in the process and a questionnaire seeking relevant information. The information was then embodied in a document referred to as “La base del divorzio” sent to the parties by email for their approval. In this case it was emailed to the respondent from div@fredericarusso.com on 7 September 2010, with a covering message from Dr Russo. It gave the petitioner’s address as “England”, said that the parties had lived together at an address in Italy until 6 October 2008, and that (I quote the translation) “from 7-10-2008 [the petitioner] has had an address in England.” On 8 September 2010 the respondent emailed Dr Russo, saying “You (I don’t know who) have confused dates and addresses … The … corrections are given below.” He set out the petitioner’s address as being in Ravenna in Italy and said that the parties had lived together at that address from the date of the marriage, 28 September 2008, until 30 August 2010. Dr Frederica Russo replied by email the same day:

“If we wish to obtain the divorce judgment as “by consent as the spouses no longer live together” I must write as follows (devo scrivere in questo modo) … from 7-10-2008 [the petitioner] has had an address in England.”

 

57.The respondent’s comment on this, in a statement dated 5 December 2013, really says it all:

“I knew this divorce process was not honest from the day I was sent a draft from the mediator hired by my ex-wife” – it is clear from the context he is here referring to Dr Russo – … “My concern was not bogus residency, as I did think she would actually move to England to start the process, but I worried about the fact that we had not been living apart for two years immediately before applying, as stated on the draft and apparently required by law.”

 

58.I add one final detail. The petitioner in another case who was alleged to have resided at Flat 201, says “Doctor Russo has not … indicated that it was necessary to be RESIDENT in England or in Wales … The Doctor has never given any hint of the need of going personally to England”.

 

 

 

I am LOVING this case, and having found our villain, we are about to (perhaps for the first time in reported case law history) identify as our hero a beleaguered member of Court staff. And I am delighted that the President names her – it is Julie Farrah of Burnley County Court. Well done Julie.  (and hurrah for DJ Conway too, for sending staff out to visit Flat 201 and see that it was a mailbox uninhabited by Italian distressed wives)

 

The problem was first identified in late February 2012 by an eagle-eyed member of the court staff at Burnley County Court, Julie Farrah, who spotted that in two files, both involving Italian parties, the address was the same and that it was in Maidenhead (which is in the south of England, whereas Burnley is in the north-west). She brought it to the attention of District Judge Conway, who contacted a colleague in the Slough County Court (located near to Maidenhead). He arranged for a member of the court staff there to visit Flat 201, which revealed that there was no residential accommodation there. When this was reported back to District Judge Conway on 1 March 2012 she immediately notified both her local Designated Family Judge and the Queen’s Proctor. Later the same day her concerns were escalated to the relevant Family Division Liaison Judge and by him to the office of the President of the Family Division, at that time Sir Nicholas Wall. On 22 March 2012 the President’s office circulated a message asking courts to stay all such cases, without reference to the parties, pending investigations by the Queen’s Proctor and the police

 

 

This is all leading inexorably to these decrees being set aside

 

 

What does the evidence establish? I have set it all out, and need not repeat the details. The materials before me, when read in conjunction with the relevant court files, establish, and I find as a fact, that:

i) In each of these cases the assertion that the English court had jurisdiction to entertain the petition was founded on a lie, the lie that either the petitioner or, in some cases the respondent, resided at Flat 201. The English court was deceived; it was induced by fraud to accept that it had jurisdiction to entertain the petition.

ii) In the Class 2 and Class 3 cases the application to proceed in accordance with the special procedure was supported by the filing of what purported to be an affidavit but was, in fact and in law, a forgery, deployed by the fraudsters to deceive the court. (The parties are here impaled on the horns of a dilemma: if it was an affidavit, then it reeked of perjury; if it was not in truth an affidavit it was a forgery. Either way the court was being deceived, the administration of justice was being perverted, whether by perjury or by forgery.)

 

It is quite clear that in each of these cases the English court was being deceived. Importantly, that deception went not just to what I have called the court’s jurisdiction to grant a decree; more fundamentally it went also to the court’s jurisdiction to entertain the petition.

 

 

 

There were very few of the 180 cases where the petitioner or respondent came to Court to try to persuade the Court that they had indeed been genuinely living in a mail box in Maidenhead and that they had sworn an affidavit in Reading before a solicitor who did not exist. That’s not a huge surprise.

 

Of one who did try, it didn’t go so well

 

 

I have to say that I am sceptical as to whether, even on his own evidence, the respondent can establish that he was ever habitually resident in this country. But even assuming that he can, I am persuaded by Mr Murray that it cannot avail either the respondent or the petitioner. The fact remains that in this case, as in all the others, the English court was deceived into believing that, in this case, the respondent lived at Flat 201, and the decree nisi and decree absolute were procured by the use of a purported affidavit which, like the others, was in fact and in law a forgery. As Mr Murray succinctly puts it, the fact is that the false address was presented to the court. On that ground, as Mr Murray submits, the Queen’s Proctor is entitled to the same relief in Rapisarda v Colladon AL11D00099 as in the other cases.

 

95.Quite apart from that, there are other difficulties in Ms Villarosa’s way. The use of the wrong address was not, as Ms Villarosa would have it, a “mistake”; it was deliberate. Moreover, even if I could in some way cure this defect in the petition it is far from clear that this could, without more ado, retrospectively cure the process culminating in the decree nisi and the decree absolute. And in any event, Leake v Goldsmith [2009] EWHC 988 (Fam), [2009] 2 FLR 684, a very different case, does not assist Ms Villarosa, nor do two other cases to which reference was made, S v S (Rescission of Decree Nisi: Pension Sharing Provision) [2002] IDS Pensions Law Reports 219 and Kearly v Kearly [2009] EWC 1876 (Fam), [2010] 1 FLR 619.

 

96.Ms Villarosa submits that the petitioner and the respondent were innocent parties, who did not collude or in any way take part in whatever fraud may have been committed by Dr Russo or Nolton. I am prepared to assume in their favour that they were taken advantage of by others who were intent on making money dishonestly at their expense. But their plea of innocence will not wash. On the petitioner’s own account, she must have realised that there was something distinctly odd about the affidavit she was being asked to sign. So far as the respondent is concerned his (admitted) signature to the acknowledgment of service faces him with a dilemma from which he cannot escape. If, as he says, he signed the form in blank, then he must take the consequences. If, on the other hand, it had been completed when he signed it, how can he explain the fact that his address is shown immediately below his signature as Flat 201 and not, as he had notified Dr Russo by email on 1 February 2011, his true address in Bromley?

 

 

 

How would we stop this sort of fraud happening again? Other than cloning the marvellous Julie Farrah (who I hope has received a promotion or some sort of bonus)

 

The fraud in these cases was, I have no doubt, facilitated by rules which, as explained in paragraphs 2 and 10 above, enabled the architects of the fraud to spread the issue of 180 petitions very thinly across no fewer than 137 different county courts. For reasons unconnected with what this case has uncovered, that facility is shortly to be very drastically curtailed. As I explained in my recent View from the President’s Chambers: The process of reform: an update [2014] September Fam Law 1259, 1262, Her Majesty’s Courts and Tribunals Service is, with my active support, proceeding to centralise the handing of divorce petitions, concentrating this work in a limited number of locations where petitions will be issued and all special procedure divorces will be processed. I anticipate that by this time next year there will be fewer than twenty, possibly as few as a dozen, places at which a divorce petition can be issued.

 

100.This alone, however, will probably not be enough to prevent such frauds. There is no need for me to set out each of Mr Murray’s helpful suggestions, but there are two which I can usefully mention. One is that both the petition for divorce and, in special procedure cases, the notice of application for decree nisi should require the completion of a statement of truth in a specified form next to a prominently displayed warning of the penalties for untruth. The other is that part of the process in the court office for issuing a divorce petition should include a search of the court’s FamilyMan system to identify whether the address(es) given in the petition have been used in other cases. Each of these suggestions, it seems to me, merits careful consideration, though until such time as the court has up-to-date IT systems (which could no doubt be programmed to identify automatically any relevant addresses) I recognise that implementation of a standard search procedure will no doubt have resource implications.

 

 

I loved this case. It might not have huge legal implications (although I suspect if you are an Italian couple living in a flat in Maidenhead, your divorce might take a bit longer to get issued), but what a fantastic human interest story. I think there’s a good documentary in that.

 

 

 

Cheshire West fallout

There’s an excellent piece of investigative work by Community Care about the escalation in the number of Deprivation of Liberty cases since the Supreme Court made a substantial change to the law in Cheshire West.

 

If you have a chance to read the full thing, I heartily recommend it.  (the remainder of this article is my extraction and citation of what I considered to be the main issues)

http://www.communitycare.co.uk/2014/10/01/50-deprivation-liberty-safeguards-cases-breaching-legal-timescales/

 

Half of Deprivation of Liberty Safeguards (Dols) cases are breaching legal timescales for completion after a landmark Supreme Court ruling in March triggered a nine-fold rise in monthly referrals to councils, a Community Care investigation has found

 

In 2013-14 councils received 8,455 requests for Dols assessments; since April this year they’ve already had 32,988 referrals. The figures mean average monthly referrals have risen from 713 in 2013-14 to 6,643 in 2014-15. The effect of the dramatic rise in cases is clear. Last year 2.2% of cases breached timescales; so far this year 50% of cases were not completed in time.

 

Councils have also seen more legal challenges to deprivations of liberty and one local authority has sent a ‘systemic abuse alert’ to an adult safeguarding board warning that it could not meet the ‘Supreme Court challenge’ due to a shortage of resources.

 

 

The court ruling has also intensified a shortage of best interests assessors (BIAs), whose role is to determine whether a person is, or will be, deprived of their liberty and, if so, and whether this is in the person’s best interests. Councils are scrambling to train up more social workers as BIAs in a bid to boost assessor numbers, but many training courses are oversubscribed and, even if a place is secured, training can take months.

 

We found that the shortage of trained staff in councils means local authorities have already spent £1.4m on independent BIAs in 2014-15. That’s almost three times the £550,000 spent across 12 months in 2013-14.

 

 

  • Legal challenges are rising: In the first five months of 2014-15 local authorities had 61 legal challenges brought over deprivation of liberty cases. In the 12 months of 2013-14 the councils had received a total of 49 legal challenges.

 

  • Safeguarding concerns have been raised: Cornwall council raised a ‘systemic abuse’ alert with the local safeguarding adults board over the council’s inability to safeguard people under Dols, due to a lack of resources to meet the post ‘Supreme Court challenge’. The council said it wanted to ensure there was independent scrutiny of its response to the judgement. The councils said its “principal difficulty is one of resources and the availability of suitably trained staff to implement the DoLS for the greatly increased numbers. The council referred its concerns into the adult safeguarding process while it took urgent steps to address problem.”

 

  • Stacks of referrals have been held back: Evidence from council reports shows that the referrals received so far are only likely to be a fraction of those that could meet the Supreme Court test as care homes and hospitals are delaying applications. In some cases, council reports say this is due to them ‘ignoring’ or not understanding the implication of the Supreme Court judgement. In other cases it is deliberate:

We found one example of a council agreeing with a care provider to delay sending in 30 referrals to help with ‘backlog avoidance’.

In a second case, a council report showed that some homes had delayed in sending in referrals as they were ‘sympathetic’ to the pressures on the local authority. In the report, the council’s Dols lead said that this was often happening ‘to the detriment’ of the person. The report shows that the Dols lead contacted the homes and told them to make the applications.

◦A third council report we obtained showed that a local acute hospital had still to send in applications. The hospital had conducted an initial scoping exercise and identified a potential 35,000 referrals. This alone would lead to the Dols team facing a 350-fold increase in cases, the report showed.

 

Bloody hell.

 

Information drawn from the Health and Social Care Information Centre  from 130 of 152 councils make the point even more vividly. http://www.hscic.gov.uk/catalogue/PUB15475

A 600% increase in monthly referrals is a terrifying amount. There is simply no way that social workers, local authority lawyers, best interest assessors, lawyers for families, the Official Solicitor or the Courts can cope with that sort of increase.

 

The councils received 21,600 Dols applications from April to June 2014, compared with 12,400 in the whole of 2013-14, a 597% increase in monthly referrals;

  • of these, 51% were authorised, 12% were not authorised, and 36% had not been withdrawn or not signed off by the council as of September 2014.

 

(I’m really impressed with the work that Community Care have done on this, and I hope that everyone in the field reads their piece, hence my bigging it up here)

Conjurers and children’s birthday parties

 

The decision of the President in Re X (a child) (surrogacy : Time limit) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3135.html

 

This was a case where the commissioners of a surrogacy arrangement were late getting their application for a Parental Order before the Court.

 

That caused them to fall foul of

s54(3) of the Human Fertilisation and Embryology Act 2008

 

 

 

“the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”

Although it seems that there is very little mischief (and Parliament never said why they wanted a 6 month cut off date), the Courts have previously interpreted this pretty plain English provision in the ordinary plain English sense of the word – if you don’t get your application in before the Court before the child is 6 months old, you can’t have your order.  (Parliament did not give the Court a discretion here to perhaps allow an application with leave, or allow extenuating circumstances, or to permit the Court to make the order of its own motion notwithstanding that there was not a valid application)

It has been one of those bits of law that is just, if you are too late, tough luck.

 

That was, until the President got one of these cases. I have to say that everyone involved clearly worked hard to achieve a legal framework in which the Court could make a Parental Order, that clearly being a better order for the child involved than anything else that could be come up with.   (My personal view on it is that “must” is as clear as can be, and that whilst I support the aim to soften that into a judicial discretion, I think its going beyond the scope of the separation of powers. I would personally, have been happier with a Judge saying that in a case of this kind, the Act is incompatible with article 8 and that Parliament should look at the wording again to GIVE a discretion for exceptional circumstances)

 

That said, I think the way around it is clever, and there’s nobody better at making words behave as he tells them than the President.

 

This is the thrust of it.  Where Parliament uses a mandatory form of wording, but doesn’t set out what the consequences are if that mandatory form of wording isn’t followed, is there an implicit discretion?

 

 

  • The second strand in the argument put forward by Ms Isaacs and Mr Maynard is based on the long line of cases of which the decision of Lord Penzance, sitting as Dean of Arches, in Howard v Bodington (1877) 2 PD 203 is usually taken as the starting point. Lord Penzance said this (pages 210-211):

 

“The real question in all these cases is this: A thing has been ordered by the legislature to be done. What is the consequence if it is not done? In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be mandatory or directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still, whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end. Now the question is, to which category does the provision in question in this case belong?

… I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

 

  • Down the years a vast jurisprudence developed around the imperative / directory dichotomy. There is no purpose to be gained by entering into this morass, for the dichotomy has fallen into disfavour in recent years: see the historical analysis by Lord Steyn in Regina v Soneji and another [2005] UKHL 49, [2006] 1 AC 340, paras 15-22.
  • Lord Steyn identified what he called the core problem (para 14):

 

“A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance.”

He concluded (para 23):

“Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead … the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction.”

In applying that approach in the particular case Lord Steyn adopted (para 24) what he called “a purposive interpretation” of the statute in question.

 

 

That is not terribly simple stuff, even for law geeks, so I am grateful that the President gives a practical example

 

 

  • Lord Rodger of Earlsferry illustrated the point with a striking example (para 30):

 

” … if your young daughter wants to go out with friends for the evening and you agree, but tell her that she must be home by eleven o’clock, she is under a duty to return by then. But this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet your deadline, she still remains under a duty to return home. On the other hand, if you contract with a conjuror to perform at your daughter’s birthday party, you want the conjuror and his tricks only for the party. His duty is accordingly limited to performing at the party held on your daughter’s birthday and, if he fails to turn up, he cannot discharge the duty later. In the present cases Parliament has placed the court under a duty, where appropriate, to make a confiscation order before it sentences an offender. If the court fails to do so and proceeds to sentence the offender first, does Parliament intend that – like your daughter – the court should remain under a duty to make the order? Or does Parliament intend that the duty should be limited so that – like the conjuror – the court can perform it only before sentencing?”

So, is s54(3)’s “MUST apply for the order during the period of six months after the child is born”  like your daughter being in after eleven (in which case you would not be happy, but you’d still let her in the house i.e make the order)  or is it like the conjuror booked for a birthday party turning up a week late, in which case he doesn’t get paid (and you don’t hear the application?)

I’d still say that it was the latter. I don’t know why Parliament put a hard cap on the time limit, or what the mischief was, but if they had wanted to give a Judge a discretion to hear the application out of time, it would have been a really simple clause 54(3) (b) addition  “SAVE THAT a Court may grant leave for the application to be heard out of time if the Court considers it necessary to do so”.

As I’ve remarked before, if you are before the President and he finds a clever way of doing something, you should bet heavily on him doing it. I can’t recall a judgment where he says “It would be possible via very clever prestidigitation to do X, but I am not going to do X”

  • Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of parent and child with all its far-reaching manifestations and consequences.” Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child’s welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future.
  • Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day’s delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical. It is, after all, easy to imagine far from fanciful circumstances in which the application arrives too late: the solicitor misunderstands section 54(3) and excludes the day on which the child was born from his calculation of when time runs out; the solicitor’s legal executive is delayed by a broken down train or a traffic jam and arrives at the court office just after it has closed; on the way to their solicitor’s office to give instructions the commissioning parents are involved in a car crash that leaves them both in a coma from which they recover only after the six-month period has elapsed. Why should they be barred? Even more to the point, why should the wholly innocent child be barred by such mishap? Let it be assumed, though in truth, and with all respect to her, this is little more than speculation, that the underlying policy is that identified by Eleanor King J in JP v LP and others [2014] EWHC 595 (Fam), namely to provide for the speedy consensual regularisation of the legal parental status of a child’s carers following a birth resulting from a surrogacy arrangement; that policy surely does not require section 54(3) to be read as meaning that any delay, however trivial, is to be fatal. One can see why Eleanor King J was concerned that there should not be what she referred to as delay over “a protracted period”, but that is a different point.
  • I have considered whether the result at which I have arrived is somehow precluded by the linguistic structure of section 54, which provides that “the court may make an order … if … the [relevant] conditions are satisfied.” I do not think so. Slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended.
  • I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period. That is a conclusion which I come to, without reference to the Convention and on a straightforward application of the principle in Howard v Bodington (1877) 2 PD 203.

 

As I think I’ve conveyed, I’m no big fan of s54(3) and if Parliament were to amend it to add a clause (b) giving judicial discretion to allow an application out of time, I’d be delighted.

I’m not terribly delighted about a judicial decision that reads ambiguity and discretion into a perfectly unambiguous clause. The commissioning parents in this case did not make their application one day late. They realised too late that the statute applied and were already out of time (but “ignorance of the law is no excuse”)  and now the application is thirteen months out of time.

  • Having got thus far in the analysis, the remaining question is whether in the present case the commissioning parents are to be allowed to pursue an application made some two years and two months after X was born. In my judgment, they are.
  • This period in fact falls into two parts: first, the period from December 2011, when X was born, until July 2013, when Judge Hindley first drew attention to the significance of section 54; second, the period thereafter until the application was issued in February 2014. In the particular circumstances of this case, the latter period, in my judgment, properly falls out of account. Until Ms Isaacs suggested otherwise in January 2014, everyone – the parties’ legal advisers and the judges dealing with the case – were agreed that section 54(3) presented an insuperable obstacle. And that was hardly surprising given the decisions of Hedley J and Theis J referred to in paragraph 21 above. So the true focus must be on the period of thirteen months delay from June 2012, when the six month period expired, until the hearing before Judge Hindley in July 2013.
  • In one sense that is a long time, both in absolute terms and when compared with the statutory time limit of six months. And it is a very long time indeed compared with the matter of a few days that were fatal to the appellant in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, [2013] 1 WLR 3156. But principle demands that I have regard to the statutory subject matter, the background, and the potential impact on the parties if I allow section 54(3) to bar the application. I repeat in this context what I have already said in paragraphs 54-56 above. There are, without labouring the point, three aspects of a parental order which very obviously and very fundamentally distinguish it from the kind of case which the court was concerned with in Adesina. The first is that a parental order goes not just status but to identity as a human being. The second is that the court is looking, indeed is required by statute to look, to a future stretching many, many decades into the future. The third is that the court is concerned not just with the impact on the applicant whose default in meeting the time limit is being scrutinised but also with the impact on the innocent child, whose welfare is the court’s paramount concern. In these circumstances the court is entitled, indeed in my judgment it is bound, to adopt a more liberal and relaxed approach than was appropriate in Adesina. After all, as Maurice Kay LJ recognised in Adesina, what the court is required to do, albeit it is required to do no more, is to secure compliance with the Convention. I would not be doing that if I were to deny the commissioning parents and X access to the court.
  • I intend to lay down no principle beyond that which appears from the authorities. Every case will, to a greater or lesser degree, be fact specific. In the circumstances of this case the application should be allowed to proceed. No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks.

 

 

I would add this one to the ever growing pile of “Presedents”   -(phrase coined by Celtic Knot) and see these two blog posts by Lucy Reed http://www.pinktape.co.uk/rants/who-to-follow-the-precedent-or-the-president/  and David Burrows http://dbfamilylaw.wordpress.com/2014/09/23/clarity-in-law-precedent-law/

 

Of course our legal history is steeped in the tradition of Judges pushing language very hard to achieve an equitable outcome – I was probably the only person in my law class at college who thought that Lord Denning was in the wrong when he did this sort of thing. The President here has done the right thing for this family and this child, and I am probably being churlish in grumbling about it.  But I hope we are not setting a precedent that a Parliamentary use of “must” is really just a jumping off point for negotiations…

Tin-foiled again. Conspiracy and the Court of Protection

The Court of Protection case of A Local Authority v M and Others has it all.  A huge schedule of potential findings, a real barney as to whether a young man’s parents have been the victims of terrible circumstances and cover ups and abuse or whether they have been abusing their son, Andrew Wakefield (of all people),  homeopathic medicine, a conflict between “mainstream medical thinking” and “mainstream autism thinking”, a witness list of 91 witnesses including a request that a High Court Judge be called to give evidence, and not forgetting a period of time in which the parents wrapped various household electrical objects up in tinfoil.

 

It is a very involved and detailed judgment, and I’ve quoted from it extensively. There’s a lot that I haven’t included  (the judicial analysis of the efforts made to be fair to the parents and take into account that they were acting in person is very thorough and a good working model for other cases in the future, for example)

 

http://www.bailii.org/ew/cases/EWCOP/2014/33.html

 

This is the background

 

 

  • M is a 24-year-old man who has been diagnosed with autism and a learning disability, although, as discussed below, that diagnosis is a matter of controversy. For the first 18 years of his life he lived at home with his parents – his mother, hereafter referred to as E, and father, A – where he was by all accounts generally looked after very well. His parents were and are devoted to him and have devoted much of their lives to his care. He attended local special schools and enjoyed a wide range of activities.
  • Until his late teens the family had no contact with the local authority. At that point, however, social services became involved because his parents were looking for a residential placement where he could continue his education. There is no evidence up to that point of any conflict between members of his family and those professionals with whom they came into contact. From that point, however, the picture changed and there has been almost continuous conflict, in particular between M’s mother, E, and the local authority. M’s parents assert that they have been subjected to a malicious campaign aimed at removing M from their care. The local authority asserts that M has been subjected to a regime characterised by excessive control exercised by E over every aspect of M’s life. More seriously, the local authority alleges that E has fabricated accounts of M’s health problems and subjected him to unnecessary assessments and treatments, as well as imposing on him an unnecessarily restrictive diet, with a range of unnecessary supplements. There have been several court proceedings concerning the family, culminating in this case, brought by the local authority in the Court of Protection, seeking orders as to M’s future residence and care. The local authority makes a series of allegations on which it asks the court to make findings. All those allegations are hotly disputed by the parents and this has necessitated a lengthy fact finding hearing. This judgment is delivered at the conclusion of that hearing.

 

 

This is what the Judge said about the central debate  (E being the mother of the 24 year old, and A being the father)

 

70. In the course of the hearing it became clear that E, and perhaps also A, see themselves as the victims of a network of three conspiracies. First, they assert that there has been a systematic conspiracy by the medical profession to conceal the truth about the effects of the MMR vaccine and its links with autism. Secondly, they assert that the employees of this local authority have fabricated a case against them with the aim of removing M from their care for financial reasons, to acquire control of his benefits and limit the amount of money the authority has to spend on him and, furthermore, has drawn into this conspiracy all the other professionals involved in this case – the staff at Y House, X College and N House and some of the doctors – all of whom they say are financially dependent on the renewal of future contracts with the local authority. Thirdly, they assert that the Official Solicitor, far from representing M properly in these proceedings, has used them as an opportunity to pursue an agenda of undermining the prospects of future litigation about the MMR vaccination and to that end has deliberately chosen experts (Dr Carpenter and Professor Williamson) whose views are known and who have been involved in similar cases in the past. They assert that the Official Solicitor and the local authority have attempted to attract political favour by bringing the MMR issue into this litigation.

 

71. I will return to this issue at the end of this judgment at this stage, I merely observe that, if the parents’ assertion about conspiracies is correct, it would amount to gross misfeasance in public office and the biggest scandal in public care and social care in modern times.

 

 

A core part of the parents case was that after their son had his MMR injection, he developed autism, and indeed at one point it was asserted by them that he had been in a persistent vegetative state for six months as a result.  The parents said that where the medical records did not bear this out, this was because they had been tampered with.

 

7. On 12th January 1991, aged just under 18 months, M was given the measles, mumps and rubella (“MMR”) vaccination. There is no record in his GP notes of any adverse reaction. In fact, there is no report of any adverse reaction to the MMR in any record relating to M for the next nine years. From 2000 onwards, however, M’s parents, and in particular his mother, have given increasingly vivid accounts of an extreme reaction to the injection experienced by M. There are descriptions of M screaming after having the injection, followed by six hours of convulsions, screaming and projectile vomiting. It is the parents’ case that the mother told their GP that he had had a bad reaction to the MMR but was told by him that she was an over-anxious mother and must be imagining it. When E called the GP a second time and said she was calling the emergency services, she was told not to do this, but went ahead because M was going in and out of consciousness. The paramedics and the GP had arrived at the same time, at which point M’s temperature was 104. The GP had told the paramedics to leave. Before going, they had told her that this was a case of meningeal encephalitis. The GP had been verbally abusive to E. The above account, given to Dr. Beck, a psychologist instructed as an expert witness in these proceedings, is similar to that given by the mother to a variety of professionals. She also gave a detailed description of M’s reaction to the MMR in the course of her oral evidence. One note in an “auditory processing assessment report” dated 31st October 2002 records E alleging that, following the MMR, M had remained in, “A persistent vegetative state for six months.”

 

8. The parents’ “chronology of health issues” prepared for these proceedings states that between January and June 1991 M was prescribed anti-inflammatories, antibiotics, antihistamines, decongestants and pain relief. There is no medical record of any such prescription, save for the decongestant. It is the parents’ case that the medical records have been tampered with in some way to conceal the true picture. They produced two copies of the medical records which purported to show a gap of some eight months between December 1990 and August 1991. In fact, the original records show that the next consultation after the MMR took place on 26th April 1991. It is the parents’ case that a page of the medical records was missing from the copies with which they had been supplied previously. The GP note of the consultation on 26th April 1991 records that E was concerned that M was a nasal breather and had thick mucous. He was prescribed a decongestant. The note also records that he had been uncooperative at the hearing test that day. According to E, in the summer of 1991 he started to receive homeopathy, reflexology and cranial osteopathy

 

It emerged that these parents had been involved in the Andrew Wakefield research that linked the MMR vaccine with autism (a claim that has not been able to be replicated by any other reputable researcher, and research that it later transpired was funded with a view to bringing litigation, and research that ended up with Andrew Wakefield being struck off.  Notwithstanding that, a number of people still believe him to be correct (I will point out that I am absolutely NOT one of them).  As one of the experts said to the Judge on some websites he is still talked of as a maligned hero.”

 

As M grew older, his difficulties increased and his mother E was reporting that he had been violent towards her as a result of his many medical conditions.

 

 

21. In his teenage years M started to demonstrate more difficult behaviour. He started having temper tantrums on a scale with which his parents struggled to cope. In her final statement E described this as “an unavoidable personality change” brought about because he was “dominated by testosterone and mercury.” Also in her final statement, E asserted that M became violent towards her at this time and as a result she got quite a “lengthy A&E record” because, in her words, “just about every rib in my body was broken, three with double breaks and my stomach muscle lacerated from my ribcage.” In 2007 M was prescribed lorazepam and then resperidone and was referred to the community mental health team. In August 2007 the parents wrote to that team stating that they had decided that it was not in his best interests for them to continue to be assessed by them. They stated:

 

“The medical profession does little to recognise the chronic medical disease that autism truly is … It is for this reason that we have consistently adopted a biochemical intervention approach and engaged a variety of privately funded specialists, all of whom have made a tremendous difference to the improvement to M’s quality of life and proven that autism is a treatable medical condition. Due to the constant rejection and dismissal of our conviction that we have continually faced, we have chosen only to tap into the NHS for diagnosis of secondary medical complications of a more general nature, local dietary advice and, where specialist expertise was available, in the form of Dr Andrew Wakefield.”

 

 

22 Meanwhile, E was continuing her campaign about the link between the MMR vaccine and autism. On 6th March 2008 she wrote a long letter to the Lord Chancellor and Secretary of State for Justice, the Right Honourable Jack Straw, MP complaining about the failure of the Legal Services Commission to fund the litigation, and making allegations of a conflict of interest against the judge who had dismissed the application against the Commission, asserting that the legal services and the judiciary had betrayed “our” children, warning that as a result they had been placed on “a permanent collision course with each and every public agency” and stating that they would take a number of measures to address their grievances. On 8th May 2008 she received a lengthy reply from the Head of Civil and Family Legal Aid, which was included in the documents produced by E and A in the course of the hearing, stating, inter alia:

 

“Due to the severity of these illnesses and that they were of the wider public interest, the Legal Services Commission initially invested £15 million in this case. Despite this investment, medical research has yet to prove a recognised link between the MMR vaccine and autistic spectrum disorder. Additionally, no link has been proved by any other medical body. There remains no acceptance within the worldwide medical authorities that MMR causes the symptoms seen in these children. Therefore, the litigation was very likely to fail. It was for this reason that the Legal Services Commission decided that it would not be correct to spend a further £10 million of public money funding a trial that is very unlikely to succeed, and withdrew funding for this case.”

The author of the letter added that a confidentiality clause surrounding the judicial review prevented him disclosing the exact reasons why funding had been withdrawn, but pointed out that the solicitors acting for the claimants were aware of the reasons and were at liberty to disclose them to the applicants.

 

The parents sought help from the Local Authority in caring for M

 

 

  • By this point M’s parents, who had hitherto managed without any assistance from social services, had contacted the local authority as plans needed to be made for M’s future when he left school. E and A identified a college in East Anglia which they thought would be the right option for M. Difficulties arose, however, as to the funding of this placement and M’s parents issued proceedings against the local authority, claiming that it was unreasonably refusing to fund the package of education and social care. The local authority’s case before me is that the placement could not proceed because the Learning and Skills Council was unable to fund the educational component of the placement because the establishment had not been approved by OFSTED and the local authority was unable to pay for the residential component of the placement because it had not been approved by the Care Quality Commission. In July 2008, M left school and, with the local authority’s support, attended a life skills development course locally for a year while the dispute between the local authority and his parents was resolved. The local authority has estimated that the package of care and support offered to M during this year cost the authority around £55,000. Negotiations between the local authority, the Learning and Skills Council and his parents continued and ultimately his parents identified an alternative college in the south of England – hereafter known as X College – which the Learning and Skills Council agreed to fund.
  • M started attending X College in September 2009. For the first few weeks he was driven to the college every day. In October he moved into a residential unit nearby with the assistance of the local authority – hereafter referred to as Y House. At first this placement went well but problems soon arose. E made a series of complaints about the standard of care given to M, including that he suffered repeated episodes of ringworm, other fungal infections, conjunctivitis and ear infections, including a burst eardrum. As a result, E spent three weeks staying in a nearby hotel to provide support for M. She was also concerned that certain assurances given about Y House prior to M’s arrival had not been fulfilled. In particular, having been told that the House, which was a new project, was intended for young people of M’s age, she was alarmed to find that older people with more extensive disabilities were accommodated there. Relations between E and the staff at Y House deteriorated. The staff expressed concern about the level of control over M exercised by his mother. She provided a strict dietary programme for M to be followed by the staff, regular health bulletins on his return to the unit after weekends at home and a list of all the treatments and supplements to be given to him. By this point, according to a list prepared by E and A, the range of biomedical interventions being supplied to M included a probiotic, six vitamin supplements, four mineral supplements, five trace elements, fatty acids, amino acids, enzymes and a range of homeopathic remedies. E and A said that this combination had been arrived at through the advice of the gastroenterology department of the Royal Free Hospital, the Autism Research Unit at Sunderland University, the Autism Treatment Trust in Scotland and a privately funded naturopath. They said that the reason for M taking this combination of supplements was “to address the autistic enterocolitis he suffers from.”

 

There was then some other litigation with E and A judicially reviewing the Learning and Skills Council about funding of a placement for M, that litigation being settled by the Learning and Skills Council

 

On 12th March 2010, E made an application to the Court of Protection to be appointed as M’s deputy (i.e this Court of Protection litigation was initiated by her).

 

It would be fair to say that the family and the Local Authority were not getting on well

 

 

28. In the summer of 2010, E and A made a formal complaint against the local authority comprising of a range of individual complaints about the placement, care provision and care management. According to E and A, the complaints made on this occasion amounted to a total of 236 individual complaints. At the hearing before me the local authority asserted that the total number of complaints made was many times more than those made in any other case. Some of the complaints were directed at MS and as a result she was withdrawn from the case. At the end of June, M’s case was transferred to a different locality team within the local authority and allocated to a team manager – JR – and a senior practitioner – LG. Those senior social workers have remained responsible for M’s case to the present day. The complaints were investigated by an independent practitioner. Nearly all of these complaints were not upheld. In his conclusion the investigator observed, inter alia:

 

“First and foremost, although a few of the complaints have been upheld, they arise from a genuine desire by E and A to do the very best they can for M and obtain the very best services that they can … They feel that their mission has meant having to fight every inch of the way against health and legal services and more recently social care services. This has no doubt influenced the extent to which they are able to work in partnership with the statutory agencies. As E and A have such clear ideas about all aspects of M’s life and believe that the conclusions they have reached about him are correct, it is understandable that they have difficulty in accepting the views of others where those differ from their own. In the current circumstances E and A are required to work alongside professionals in social care, medical services and residential care services. Those professionals will also have M’s best interests at heart, but may hold differing views about what is in his best interests. Where the professionals have wished to pursue their own views and approaches, they have found that they have had to be very clear and assertive. This has brought about an even more assertive approach in response and commonly this has led to communications which border on the unacceptable. Many of the complaints appear to arise from such circumstances.”

 

29. E and A did not accept the outcome of this investigation and asserted, inter alia, that the investigator had not been truly independent of the local authority and had not investigated the complaint properly.

 

There’s then a LONG history of medical issues, problems and investigations over the next three years, and I did promise that I would get to the tinfoil bit.

 

On 3rd March, KH informed the local authority that E had told him that she believed that M was suffering from an adverse effect to electromagnetic energies and she was wrapping electronic items in his bedroom in tin foil to protect him. On 12th March, according to KH, E told him that they had taken M to accident and emergency two days earlier because he was in an immense amount of pain. He had been diagnosed with what appeared to be brain seizures. On 19th March, according to KH, E said that M was now on three types of pain relief – paracetamol, ibupfofen and codeine – and this seemed to help. She thought he was suffering from either migraine clusters or brain seizures. On 4th April, JR and LG made an unannounced visit to the home. What happened on this visit is disputed. The social workers’ evidence is that they spoke to A but that E refused to come down to see them as she was busy upstairs and dealing with M. A told them he would ensure that M came to no harm. The social workers did not see M on this visit.

Around this time M developed a small wound on his leg. His mother, having read two articles in the newspapers, came to the conclusion that he was suffering from Lyme disease. She consulted her GP, Dr W, who tried to reassure her that this was unlikely to be the case, but at her insistence tests were carried out in this country and subsequently at a clinic in Germany. This analysis revealed that M had one chemical marker consistent with Lyme disease. Dr W continued to reassure the mother, on the basis of his own experience of Lyme disease, that the overall clinical picture did not fit this diagnosis

It would appear to be at around this time that professionals moved from seeing E and A as very anxious carers of a young man with very serious health needs to beginning to look at whether M had such health needs or whether there was an element of factitious illness syndrome being played out here.

 

 

  • On 18th July 2013 the local authority started these proceedings in the Court of Protection seeking orders (1) permitting the authority to remove M from his parents’ home and either return him to Z House or place him in independent or supported living; (2) that he should not take supplements or medication unless prescribed by a doctor or considered necessary by his carers; (3) that professionals and care staff were not required to follow E’s instructions regarding M’s care and (4) removing E as his deputy. In the application the authority identified concerns about M being isolated from professionals, his apparent distress at his mother’s behaviour, the fact that he had been removed from Z House without agreement, the degree of control exercised by E over his life, the difficulties in E’s relationship with professionals and the allegation that had been made that E “may have Munchausen by proxy.”
  • On 23rd July, M attended the graduation ceremony at X College. On 25th July, District Judge Mort gave directions, including the reappointment of the Official Solicitor as litigation friend. E subsequently applied for the summary dismissal of the local authority’s applications, contending, inter alia, in a lengthy exposition of her case, that it was “a shameful and reckless attempt [at] retribution by persecution of us as a family” and made with the purpose of “sabotaging” the costs application outstanding from the previous court proceedings, and to detract from the complaints and other litigation which she and A had brought against the authority. Attached to E’s application for summary dismissal was a further document described as an “overview of M’s health”, listing the background of dental attention, including a reference to the x-ray of July 2012, which “indicated the swelling above UL6, advised to be sinuses”, a list of twenty illnesses and symptoms that M was said to have suffered since October 2012 and a further list of thirty-one illnesses, symptoms and treatments that he was said to have suffered, exhibited or taken in the past four months, including: “on movement body temperature drops/hands and feet freeze and become rigid”, “swelling of joints, hands and feet”, “projectile vomiting”, “excruciating pain and in waves, intensity and frequency likened to cluster headaches/migraines”, “uncontrollable temperatures”, “stabbing pain in the groin, “difficulty in urinating”, “uncontrollable sneezing”, “unable to have any volume/sounds on”, “simplest of movement causes exhaustion”, “on constant pain relief”, “now on concentrated oxygen for up to six hours a day”, “biomedical natural supplements have become life supporting.”. It was said that in the previous four months M had seen

 

“our GP on a weekly basis, an ENT specialist, a neuro-autonomic diagnostic specialist, a neuro-psychologist, a neuro-physicist, his neuropsychiatrist and his biomedical nutritionist.”

It was further said that M

“underwent an MRI brain scan and an EEG on the 2nd of May 2013, referred by neuro-physicist, and as a result of possible brain stem dysfunction, suspected internal destruction of his nerve endings and heightened/over-exaggerated reflex response and his nervous system was so obviously trapped in flight mode.”

It was said that his immune system had been “chronically compromised” as a result of his infection with bacteria associated with Lyme disease. E added that:

“blood is not interrogated further in this country, unlike the European laboratory in Germany. In this country there is a reliance upon a GP to clinically diagnose and treat this most debilitating disease but that does not allow for the fact that GPs prefer to avoid doing so, for reasons we are now endeavouring to determine. Meanwhile, our son continues to deteriorate at an alarming rate.”

It was said that E was having to massage his hands and feet for up to six hours a day. E added:

“the loss of this circulation and sensation has since been diagnosed as rheumatoid arthritis induced by his immune system turning in on itself and known as auto-immune dysfunction.”

Amongst other claims made, E also asserted that it had been suggested that M could be suffering from an electro-sensitivity disorder and as a result they had terminated all wireless transmissions in the house. E set out her case in detail as to what she had been told about the problems in M’s mouth, referring to a complete breakdown of all life support and systems, a black shadow on which the left sinus was sitting and an intolerable level of pain.

 

Andrew Wakefield crops up again here, it being said that when M had a tooth removed it was kept by mother in the freezer to send to him for analysis (ironically, one of the dental establishments involved here was the Tooth Fairy Surgery)

 

 

  • On 5th August 2013, M underwent surgery under general anaesthetic in which the two teeth were removed. The hospital notes for this admission reveal that, in summarising M’s medical history, E said that he had “tested positive for Lyme disease.” The two teeth were subsequently given to E, who stored them in her home freezer with a view, it is said, to send them for testing in America by Mr (formerly Dr) Wakefield. In a further email to Ms Haywood dated 11th August, E spoke graphically of the implications for M of the delay in treating the abscesses:

 

“This would not only explain the excruciating pain that [M] has experienced, and possibly on/off since October 2011 … that would have been horrendous for [M] to have had to cope with over the last year and just unbearable without intravenous pain relief. They also easily explained the neurological and blood poisoning problems that M has been suffering. Left undetected they can be fatal. Hence, they have said they have caught [M] in time but not soon enough to stop the bacteria produced by these abscesses from eating away at the body and affecting all life supporting systems. Apparently, the soft facial tissue is attacked first, along with the soft tissue of the heart and the lungs while they swell the brain and cause abscesses on it. While all this going on, apparently at the same time they eat the bone structure of the body – the knuckles and fingers and toes, the wrists, ankles, elbows, knees, shoulders and hips – as they make their way up the bones. So, all of this was well underway with [M].”

Miss Haywood was continuing to prescribe various protocols for M, and on 6th September she prescribed a general nutritional supplements protocol and a “Lyme disease protocol”.

 

[Let's not forget here that the only medical professional who had given a view on Lyme disease was saying that M did not have Lyme disease]

 

On 3rd March 2014, the expert report had come in, and formed the view that this was a factitious illness case and M was removed into a residential home pending investigation and the Court determination of the case.

 

 

  • On 3rd March 2014, Dr Beck delivered her report to the solicitor representing the Official Solicitor, Miss Nicola Mackintosh. Dr Beck concluded that E suffers from factitious disorder imposed on others and that M is the victim of that disorder. She added that she could not:

 

” … rule out the possibility that E may pose a risk of harm to M in order to prevent her loss of control over him as a source for attention for herself.”

These conclusions led the Official Solicitor and the local authority to be concerned, first, that M might be at risk of harm remaining in E’s care and, secondly, and immediately, that he might be at heightened risk of harm when the report of Dr Beck was disclosed to the mother. The Official Solicitor made an application to me for directions in relation to the disclosure of the report to E and A. By the time the application came on for a hearing the local authority had applied for the immediate removal of M from the care of E and A and this was supported by the Official Solicitor. At the conclusion of that hearing on 6th March, I authorised M’s removal the following day, into an emergency placement at an establishment – hereafter referred to as “N House” – run by an organisation – hereafter referred to as “C Limited” – some sixty miles from the family home and in a different County, and ordered that he should reside there until further order.

 

Factitious illness cases (or what used to be called Munchhausen Syndrome By Proxy) are difficult cases. They are particularly difficult when the alleged victim does also have genuine medical conditions. They are difficult to run in care proceedings, when everyone has the benefit of free legal advice and representation. In the Court of Protection, these parents were on their own. They were representing themselves. An added complication was that part of the parents case was that they wanted to run a case that the MMR vaccine causes childhood autism  (bear in mind that when the Legal Services Commission as they then were, were envisaging funding the litigation on that issue alone, they’d set aside TEN MILLION POUNDS as a reasonable sum to thrash that issue out)

 

 

  • Asked to prepare a witness schedule, E filed a document which appeared to indicate that she wished to call, or at least rely on the evidence of, 91 witnesses at the hearing, including Keith J, who had heard part of the litigation involving MMR, and their MP, the Right Honourable Mr Michael Fallon, and for 48 witnesses to be required to attend for cross-examination.

 

  • One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy.
  • In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. For example, no health visitor records were produced for the period of M’s early years. At a very late stage E alluded to the possibility that she may have copies of these records somewhere in the loft at her home. Furthermore, and despite my explaining the rules about disclosure on more than one occasion, I am not entirely satisfied that E and A have complied with their obligation to disclose all relevant documents, including those that do not support their case. At one point E’s medical records were produced and, when E objected to their disclosure on grounds of confidentiality, I conducted a public interest immunity examination to determine which pages of the records were relevant. In the event, I concluded that only 16 pages fell into that category, but E insisted on challenging the disclosure of some of those pages on the grounds that they would assist the other parties. This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure.
  • The list of 139 witnesses who the parents seemed to suggest should or might have to give evidence was, fortunately, considerably reduced. Even so, 32 witnesses gave oral evidence at the hearing: four members of the local authority social services team (LG, the current social worker, JR, the team manager, MS, the former case worker and MW, the head of adult services); MH, the chief executive of X College; staff involved with the running of Y House (CS, the first manager, PL, his successor, and RR, the regional operations manager of the agency); staff involved in running Z House (CH, the manager, and KH); staff involved in running N House (AA, the owner of the agency that runs that home, and AR, a care worker at that property); three friends of E and A with experience of caring for autistic people, one of whom is herself on the autistic spectrum; JB, a carer employed by E and A when M was at home; the family GP, Dr W; the family dentist, DC, and the locum who worked at the surgery, Ms Malik; practitioners who had been consulted by E in connection with M’s treatment (Shelley Birkett-Eyles, occupational therapist, Dr Julu and Juliet Haywood, the nutritional therapist); expert witnesses, namely Dr Beck, Mr McKinstrie, Dr Carpenter, Professor Williamson, Dr Adshead, Dr Aitkin and Mr Shattock, all instructed by E and A; M’s sister, S, and, finally, his parents, E and A themselves.

 

The parents stated that no fewer than 13 of those professionals had lied to the Court and that the allegations of factitious illness had been cooked up by professionals to pay them back for the successful judicial review litigation about funding a placement for M at college, and that the case had been fabricated for financial reasons rather than any genuine concern by professionals that M was at risk.

 

An interesting issue was in relation to three witnesses called by the family whose expertise was in alternative medical treatments. They had been providing assessments and treatment for M, who was an adult, with no understanding of whether he was consenting or had capacity to consent.

 

  • he last group of witnesses about whom I wish to make specific mention before turning to the evidence are the three alternative medical practitioners called by E and A: Shelley Birkett-Eyles, Dr Julu and Ms Haywood. Mrs Birkett-Eyles is an occupational therapist and Director of Hemispheres Movement for Learning Limited, a private occupational therapy practice specialising in the assessment and treatment of children and young adults with learning and developmental difficulties. She has seen M on several occasions since 2010 and, amongst other things, ran a training day at X College on the topic of sensory processing. Dr Peter Julu describes himself as a specialist autonomic neurophysiologist and consultant physician. Juliet Haywood is a nutritional therapist who has been advising E on M’s diet for the past four years.
  • My impression of Mrs Birkett-Eyles was that she was a responsible practitioner working within the proper confines of her particular field, although, as will be clear later, the reliability of her opinion as to treatments given to M was challenged by Dr Carpenter. I was more concerned about the evidence given by Dr Julu and Ms Haywood.
  • Dr Julu told the court in oral evidence that his field of interest is not yet part of mainstream medical training in England and that he is the only autonomic neurophysiologist in Europe. I was not satisfied from his evidence that his purported specialism is a legitimate field of medicine and, again, the reliability of his assessments and treatment recommendations for M were challenged by Dr Carpenter. In her supplemental closing submissions filed this morning, E said that the lack of knowledge amongst those challenging Dr Julu’s evidence is “startling, as it is easily accessible on the internet.”
  • Ms Haywood, whose professional qualification is a diploma from the College of National Nutrition, has played a major role in advising E in recent years. The papers contain a number of emails passing between E and Ms Haywood and it is clear from reading them that there are others which have not been disclosed. I am satisfied that in the course of her involvement with the family Ms Haywood has given advice that went well beyond her expertise. One glaring example was Lyme disease when, on her advice, given after seeing a photograph of a mark on M’s leg, E sent urine samples abroad for further testing. Subsequently, Ms Haywood confidently expressed an opinion on the interpretation of the results of those tests. She has no chemistry or other qualification that equips her to do so. I was also concerned that Ms Haywood had prescribed the dietary protocol for M without seeing him and with no independent knowledge of his medical history, content to rely solely on what she was told by E; for example, that M had a chronic gut disorder. In contrast to Mr Shattock’s Sunderland Protocol, which recommends the systematic testing of diets and supplements individually, Ms Haywood was content to prescribe a dietary programme without testing each individual component separately. She did not agree with the NICE guidelines as to the impact of diet on autism. She had forthright views on many things, saying, for example, at one point that she did not like Cancer Research UK. I was left with a profound anxiety about Ms Haywood’s influence on E and her role in the treatment that M has received.

 

 

None of the three witnesses had received any training on the Mental Capacity Act 2005 and it was clear from their evidence that none of them had given proper consideration to the question whether M had capacity to consent to their assessments or the treatment they were prescribing. The family GP, Dr W, also admitted in his oral evidence that he only made a detailed study of the Act and the Code of Practice when he was told that he would be giving evidence in this case, and he identified a number of learning points about the Mental Capacity Act arising out of his involvement in these proceedings. Mr Bagchi reminded me in his closing submissions of the concerns expressed in the House of Lords’ Select Committee on the Mental Capacity Act 2005 Post-Legislative Scrutiny Report on the implementation of the Act, dated 30th March 2014, about the general lack of awareness by the general public and professionals of the principles and workings of the legislation. This case has highlighted the urgent need for all health professionals, including those practising in alternative and complimentary medicine, to familiarise themselves with the Act so that they can apply its principles and procedures when they treat a person who lacks capacity, as most of them will at some point.

 

[I had a quick look on the internet, as recommended by E, into autonomic neurophysiology, and found this paper submitted by Dr Julu himself - in which to my mind he is asserting that there is scientific proof for the efficacy of homeopathy. So he is either an eternal optimist, someone who is not necessarily as scientifically rigorous as one might hope*,  or he is about to win a Nobel prize. I could not possibly comment as to which is more likely  http://www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/memo/homeopathy/ucm2002.html ]

In summarising the capacity issues in the case, the Judge begins with “M’s diagnosis is a matter of some controversy”  – which is a masterpiece of understatement.  The Judge boils it down to M having had childhood autism.

Reaction to the MMR

 

  • The issue of M’s reaction to the MMR vaccination and whether it was the cause of his autism lies at the heart of this case. E and A insist that M had a devastating reaction to the MMR, that his autistic traits date from that time and that this provides clear evidence in support for the Wakefield theory. On the other hand, it is alleged by the Official Solicitor, in particular, but also supported by the local authority, that E and A have fabricated the account of M’s reaction to the vaccine and thereby falsely sought to establish a link between the vaccine and his autism.
  • As I stated more than once during the hearing, this case is not an inquiry into whether there is a link between the MMR vaccine and autism. The relevance of this issue is whether the account given by E, in particular, of M’s reaction to the MMR, is true. Nonetheless, it is necessary to outline briefly the expert evidence that I have received about the possibilities of a link.
  • I have already described the history of the controversy in the summary above. The prevailing medical view is as set out information published by the World Health Organisation – actually produced by E in the hearing – which states that:

 

“The overall evidence clearly indicates no association of MMR vaccine with either inflammatory bowel disease or with developmental delays, including autism.”

This accords with the opinion given by Dr Carpenter. Nevertheless, there is a substantial body of opinion to the contrary, including parents of autistic children and some alternative medical practitioners.

 

  • Dr Carpenter reached the conclusion in his report that the diagnosis of M’s autism as having been induced by the MMR vaccine is inconsistent with the independent contemporary evidence and, therefore, not viable. He notes that M’s parents did not link his apparent regression to the MMR injection until after the publication of Dr Wakefield’s paper in 1998. Dr Carpenter has carried out, as requested, a full analysis of the medical records and found that the first account of M deteriorating immediately after the MMR vaccination was not given until 2001. E’s subsequent accounts of M’s reaction to the vaccination – of a child developing normally prior to the vaccination and thereupon having seizures, screaming fits and declining into a vegetative state for six months – is incompatible with the other records. There is no mention of adverse effects or any reference to a bad MMR reaction in the GP records. Dr Carpenter notes that a few months after the MMR, the GP records show M being described as hyperactive, which Dr Carpenter points out is inconsistent with the account of his being in a vegetative state. When a change of GP took place a few months later, there was no note of any recent adverse event being recounted to the new doctor. If M had been in a severely regressed state at this time, Dr Carpenter would have expected this to have been mentioned to the new GP. Furthermore, 21 months after the MMR, when giving a detailed account of his development to Dr Baird, no mention was made by the parents of any deleterious reaction to the MMR. On the contrary, their account concentrated on an earlier deterioration after an illness at age 10 months – seven months before the MMR was administered. In cross-examination by E, Dr Carpenter said that any adverse reaction to the MMR vaccination which had caused a regression in M’s development would have been recorded in his 24 month developmental check and it was not. What was recorded was not regression, but a lack of progress.
  • After the allegation of an adverse reaction to MMR was eventually recorded in 2001, it became more dramatic in subsequent accounts. Thus, in 2001 the description was: “Distressed after injection. Had fever. Eyes glazed, dilated and fixed.” E’s account became more florid over time, with references to screaming, jolting, spasming and a persistent vegetative state. In her final statement she said that: “M died within six hours of the MMR.” In the witness box she gave a full account of the events on the day on which the MMR was administered and M’s reaction to it. E acknowledges in her final statement that she uses certain words and phrases in her own particular way. For example, for her the phrase “vegetative state” means “slipping in and out of consciousness, not responding and appearing lifeless.” And her use of the word “died” to describe what happened to M means “stopped breathing and lost consciousness”. For E, her use of these words and phrases is as valid as the way in which they are used by medical professionals.
  • For some time E has alleged that part of M’s medical record is missing. The inference that she invited the court to draw was that pages had been deliberately removed to conceal contemporaneous records of his reaction to the MMR. It is now clear that no part of the records have been removed. One page of the records was missing and copies produced by E and A, but the original record was intact. I am not going to speculate on the reason why the copies produced by E and A are incomplete.
  • If M had an experienced an extreme reaction to the vaccine, as now alleged, it is inconceivable that E and A would not have sought medical advice and thereafter told all doctors and other medical practitioners about what had happened. As I put it to E in the course of the hearing, there are only three possible explanations for what has happened. The first is that E did give the account to Dr Baird and all the other practitioners at every appointment, but each of them has negligently failed to record it. The second is that she gave an account but all the practitioners have chosen not to include it in their records. That is what E maintains has happened, alleging that the whole of the medical profession is deliberately concealing the truth about the MMR vaccine. The third is that E has fabricated, or at least grossly exaggerated, her account.
  • Mass negligence can obviously be discounted. In my judgment, it is also completely fanciful that the whole of the medical establishment had decided to act deceitfully in the way alleged by E. I therefore conclude that the account given by E as to M’s reaction to the MMR is fabricated.
  • For the purpose of this case, it is unnecessary to make any finding as to why it has been fabricated. It is unnecessary to explore whether E truly believes that M reacted in the way she now alleges. It is notable that A also, apparently, adheres to the same account, although he is noticeably more reticent in his evidence about it. The key point for the purposes of this case is that E has fabricated her account of a crucial aspect of M’s medical history and thereafter relied on this false account to direct the course of his future treatment.

 

Lyme disease

 

  • The clear evidence of Dr W, the family GP, was that M did not have Lyme disease. Although he was not instructed as an expert witness, it is significant that Dr W’s clinical practice has included experience in rural areas where he has come across cases of this condition, which is caused by a tick bite. He advised that it is a diagnosis based on biochemical testing in the context of the overall clinical picture. I therefore conclude that he has the expertise to give a definitive opinion as to whether M was suffering from it, and I accept his evidence that M was not.
  • E, on the other hand, did not accept Dr W’s view and persisted in obsessively pursuing her theory that M was suffering from this disease. Her unshakeable view was based initially on two newspaper reports of women who were diagnosed with the disease that had gone undetected for some time. She thought the mark on M’s leg had been caused by just such a bite. Her fears were stoked by comments from Ms Haywood, speaking about a matter in which she was completely unqualified, who warned that testing carried out by British laboratories was inadequate. At her suggestion, E therefore insisted that samples be sent abroad. The results suggested that one marker consistent with, though not diagnostic of, Lyme disease was present in one sample. On this basis E maintained that M had indeed had that condition and continued to include it in summaries of his health history. For example, when he was admitted to hospital in August 2013 for the dental extraction, E said that he “had tested positive for Lyme disease”.
  • I accept Dr W’s evidence. M did not have Lyme disease. This is yet another example of E giving a false account of M’s medical history. In this regard she was supported by Ms Haywood, who showed no doubt in the witness box about her ability to express an opinion about Lyme disease without having any appropriate qualifications.

 

 

 

Tooth abscess/sinus problems

 

  • On 21st June 2012, E took M to the family dentist’s surgery suffering from pain. The regular dentist, DC, was not at work, so M was examined by a locum, Ms Malik, who works regularly at the surgery. Ms Malik had not originally been scheduled to give evidence at the hearing before me but was located at the last minute and duly called by the Official Solicitor.
  • Ms Malik’s computerised record of the examination stated that M had complained of pain and that E had been informed by his support worker that he had not been eating well on the previous day. On examination she found slight tenderness in tooth upper left 6. An x-ray was taken and revealed that he had an area of periapical infection. Ms Malik was shown the x-rays in the witness box and confirmed the diagnosis. The records indicate that she told E that M needed to be assessed urgently for extraction or root canal treatment under general anaesthetic and that E said that she would like to monitor it for now as M was unable to have a local anaesthetic. The records further indicate that Ms Malik offered antibiotics for M, but E declined. Ms Malik said that she had told E to make a further appointment to see DC when he returned to the surgery.
  • It is E’s case that Ms Malik has given a false account of this examination. E says there was no mention of any periapical infection or abscess, but instead Ms Malik had told her that there was a problem with M’s sinuses. She denies that there was any talk of root canal treatment or extraction or that antibiotics were offered. E put this version to Ms Malik in oral evidence, who emphatically stood by her evidence: she had not mentioned sinuses.
  • Two days later after M was examined by Ms Malik, E called an out of hours doctor about M because he had pain and facial puffiness. When M was examined by the doctor, E reported that he had been seen by a dentist who, according to the doctor’s record, said he had sinusitis. In court, E denied using the word “sinusitis” but said that she had told the doctor that the dentist had said there was a problem with his sinuses. According to the doctor’s note, on examination the doctor did not detect any definite tenderness in the sinuses, but after E said that M would not definitely say if there was tenderness, the doctor recorded the diagnosis as “likely sinusitis” and prescribed antibiotics. When M returned to X College and Z House on the Monday after Ms Malik’s examination, a diagram was provided (now at page N202 in the bundles) showing the sinuses and recording that the x-rays taken on 21st June had indicated no tooth or gum infection or decay, no nerve irritation, but swelling of the sinuses and pressure from a ruptured wisdom tooth. This was completely at odds with what Ms Malik said she had advised E. On 27th July 2012, M was seen by a different dentist at a surgery close to Z House. On examination nothing untoward was detected. It seems likely, as suggested in evidence by Ms Malik, that the antibiotics prescribed by the out of hours doctor on 23rd June temporarily alleviated the symptoms. E requested that no radiographs be taken at the examination on 27th July. In oral evidence, Ms Malik told the court that a clinician would need to see x-rays to diagnose the presence of abscesses.
  • In due course, on 23rd May 2013 – some 11 months after Ms Malik’s examination – E took M to a different surgery not far from the family home called The Tooth Fairy Holistic Centre, where x-rays confirmed the presence of periapical areas in upper left 6 and 7, indicating the presence of abscesses – confirmed by a surgeon to whom M was then referred and who then subsequently extracted the teeth under general anaesthetic.
  • E’s case is that Ms Malik is lying about her examination on 21st June 2012 and that she somehow altered the communication on the computer record. I completely reject that submission. I found Ms Malik to be an utterly truthful and a reliable witness. At one stage in the hearing, E suggested that the records had been falsified and Ms Malik had lied to the court because DC was concerned about his surgery being sued for negligence. For that reason, DC was called by the Official Solicitor, although in the event E did not put it to him that he had falsified the records. When DC gave evidence, he described Ms Malik as an excellent clinician to whom he had entrusted his patients as locum for many years. I accept Ms Malik’s account of the examination and what she said to E. Amongst the many revealing details is her note that E had told her that M could not have a local anaesthetic. It has been E’s case that she is allergic to local anaesthetics following an incident when she was younger, for which there was no independent evidence, and that this has been inherited by M. Ms Malik’s note, therefore, contains something that E must have told her.
  • It follows that this is yet another example of E giving a false account of part of M’s medical history and thereafter relying on this false account to direct the course of his future treatment.
  • In this instance, it is possible to trace the consequences for M of this fabricated account. In ignoring Ms Malik’s advice, failing to make an urgent appointment with DC on his return, taking M to another dentist, failing to give a full or accurate account to that other dentist and expressly declining further x-rays which would have been likely to reveal the abscesses, E was solely responsible for allowing M’s infected mouth to go untreated for over a year, thereby condemning him to further pain and suffering as the area of infection gradually got worse. Throughout the period of 14 months between Ms Malik’s examination and the eventual surgery to extract teeth, M suffered pain, repeatedly described by E, which Ms Malik advised in evidence was probably caused by the abscesses. Meanwhile, as I find, E pursued other increasingly extreme theories for the causes of M’s pain, none of which has any basis in fact, at a time when she knew or ought to have known that the cause of the trouble was the dental infection which she was concealing.
  • On any view, this was deplorable and dangerous behaviour. M was and is a highly vulnerable young man, totally incapable of communicating his needs. E was his deputy and carer. He was dependent on her. She failed to protect him and acted in a way that was plainly contrary to his interests.

 

Other examples

 

  • The history shows other examples where E gave descriptions of M’s health, notably to KH, but also to others, for which there was no independent supporting evidence. These include that M had lost sensation in his hands and feet; that he was suffering from an adverse effect to electromagnetic energies; that he had been diagnosed with what appeared to be brain seizures; that his urinary system had shut down; that he was finding it difficult to walk very far; that M’s immune and nervous system were down; that he had tumours in his gum sockets; that he had been diagnosed with chronic blood poisoning; that he had a black shadow sitting on his left sinuses that he had black gunge oozing from every orifice. Other diagnoses put forward by E and dismissed by Dr Carpenter were: rheumatoid arthritis; heavy metal poisoning (based again on an isolated test result when such a diagnosis turns on repeated elevated levels); and a defective blood brain barrier. I share Dr Carpenter’s astonishment at reading E’s account of how M had attended a cranial osteopathy appointment which:

 

” … had focused on the contorted membranes between the two frontal lobes, apparently where the optical and auditory brain stems sit. The twist in the central membrane was significant for most of the treatment to be spent on it and it would appear to have come from M’s head overheating, obviously trying to release body heat.”

 

  • Many of these were repeated, along with others, in the document entitled, “Overview of M’s health” which E attached to the application at the start of these proceedings seeking the summary dismissal of the local authority’s application. I find that these were all false, or at least grossly exaggerated accounts of M’s symptoms. During the period June 2012 to September 2013, when this crescendo of false and exaggerated reporting took place, M was subjected to a large number of different tests, examinations and assessments, a number of which were invasive and all of which took up his time which would have been better occupied elsewhere.
  • It is unnecessary to go into these or other examples in any greater detail. The local authority’s case on this aspect is plainly proved. I find that E has stated that M is suffering from numerous conditions, the overwhelming majority of which are not true, and has subjected M to unnecessary tests and interventions, and/or lied about his illnesses or tests.
  • Relying on the professional view of Dr Beck, supported by Dr Adshead, it is asserted by the local authority that this amounts to factitious disorder imposed on others. I shall return to this assertion at the end of the judgment. Before doing so, it is appropriate to consider the other findings sought by the local authority.

 

 

In relation to the alternative therapy treatments given to M, at the behest of his parents, the Judge was sympathetic that for carers of a person with autism, the fact that there is no cure makes them willing to seek help from anywhere they can and that there are plenty of people willing to provide such help for a fee. The Judge was at pains to point out that this was not a hearing to rule on the efficacy or otherwise of  any individual form of treatment or therapy. What was of relevance here was the sheer volume of them and the intrusive impact on M’s day to day life

 

 

  • By and large, it is the sheer range and number of the treatments and their indiscriminate use on an incapacitated person that gives rise to concern, rather than the risk of any harm befalling the individual. I accept Dr Carpenter’s evidence that there is no evidence that cranial osteopathy, rheumatology, colloidal silver or homeopathy generally are clinically beneficial. In the case of some treatments, they may have been harmful. I accept, for example, Dr Carpenter’s evidence that there may be concern about the use of auditory integration therapy. He quoted NICE as finding no good evidence that such therapy works. Research Autism quoted research evidence to say that such therapy was not helpful in improving perceptions of autism, although it may be of limited use in the help with sensory problems. Dr Carpenter was concerned, however, that people with hearing loss or infection or damage to the inner ear should not be treated in this way. Dr Carpenter observed that, for M, who has recurrent ear problems, such therapy was potentially dangerous. Equally, he was concerned about the use of oxygen therapy. In his report, his concern was about the use of hyperbaric oxygen therapy, which is associated with risks to ear and teeth, and would have been potentially risky to M. Throughout the hearing, E stated that the oxygen therapy had not been hyperbaric, although I note in her final statement E said at paragraph 245 that M “uses a hyperbaric oxygen chamber for health reasons.” The main concerns about oxygen therapy in M’s case were, first, the sheer degree of interference with the life of an incapacitated adult required to have oxygen administered to him for up to six hours a day and, second, the question of the theoretical process for the therapy provided by Dr Julu – neurodevelopmental dystautonomia – which is not mentioned in any international classification known to Dr Carpenter.
  • I accept Dr Carpenter’s opinion that there is no evidence that any of these treatments were individually beneficial for M and that collectively they were intrusive and contrary to his best interests. M’s life was increasingly dominated by the programme of treatment to the exclusion of other activities. I find that E has implemented a programme of diet, supplements and treatments and therapies indiscriminately, with no analysis as to whether they are for M’s benefit, and on a scale that has been oppressive and contrary to his interests. She has exercised total control of this aspect of M’s life.
  • I stress, again, that I am not making any definitive findings on the efficacy of alternative treatments generally. That is not the subject of these proceedings, which are about M. I do, however, find that: (1) there is no reliable evidence that the alternative treatments given to M have had any positive impact on people with autism generally or M in particular and (2) the approach to prescribing alternative treatments to and assessing the impact of such treatments on people with autism in general and M in particular has lacked the rigor and responsibility usually associated with conventional medicine.
  • This demonstrates the fallacy of E’s belief that there are two parallel approaches to the diagnosis and treatment of autism – “mainstream medical” and “mainstream autism” – each of which is equally valid. The evidence in this hearing has demonstrated clearly that there is one approach – the clinical approach advocated by Dr Carpenter – that is methodical, rigorous and valid, and other approaches advocated by a number of other practitioners, for which there is no evidence of any positive impact and which (in this case at least) have been followed with insufficient rigor. Whilst each treatment may be harmless, they may, if imposed collectively and indiscriminately, be unduly restrictive and contrary to the patient’s interests. These disadvantages are compounded when, as in several instances in this case, insufficient consideration is given by the practitioners to the question of whether a mentally-incapacitated patient has consented to or wishes to have the treatment.

 

Factitious illness

 

 

  • f it was established that E has exaggerated M’s condition and/or made false claims about illnesses that he does not have and/or given him medication that was unnecessary and/or obstructed a normal relationship with health care professionals, Dr Beck and Dr Adshead both concluded that it would then follow that factitious disorder imposed on other people has taken place. Both Dr. Beck and Dr. Adshead observed that the degree of contradiction between E’s claims and the medical records record indicates a pattern of abnormal illness behaviour which seems to have escalated in the last few years. The nature of the diagnoses put forward are couched in increasingly dramatic narrative terms but are not supported with corroborative medical evidence.
  • Dr Beck believes that the underlying driver for the mother’s factitious disorder is that she is suffering from narcissistic personality disorder. Dr Adshead agrees with Dr Beck that there are significant features of personality disorder in E’s presentation, mainly narcissistic and histrionic features, and, in addition, Dr Adshead suspects that she may have some feature of an emotionally unstable personality disorder. As a psychiatrist, Dr Adshead reported that she had seen no evidence that E suffers from a severe mental illness. Dr Beck and Dr Adshead both thought that M’s health care and his identity as an illness sufferer is a key part of his mother’s relationship with him and that M’s health status clearly dominates that relationship. Dr Beck expressed the view that the mother’s desire to find other people to blame appeared to serve functions for her. First, it distracts from her own shame (self-imposed) and, secondly, it draws attention to her and her own needs. Dr Beck concluded her first report by observing that, whilst she did not doubt that E loves her son, she does not believe that she is capable of putting his needs above her own.
  • Dr Adshead advised that, if the facts are proven that support the accounts of factitious disorder imposed on another, together with a diagnosis of personality disorder, this provokes questions of further future risk and how the relationship between carer and a dependent other should be managed in the future. In her experience, the risk of harm to the dependent other is real, especially if the carer has no insight, although the nature of the harm may not necessarily be severe or dangerous. Having seen there is a real risk, it should be fairly clear that the risk can be managed if E is prevented from being the person responsible for M’s care. Once a carer is removed from the role of a carer, there is usually no danger in the carer and the dependent other spending time together. Dr Adshead advises, however, that in such circumstances there must be a proper health care plan put in place, overseen by a senior health care professional. It is Dr Beck’s recommendation that all of M’s health needs hereafter should be overseen by the local authority. Dr Beck agreed that there would be the real risk of an emotional mental and physical nature were M to return to live with E. She also believed that M’s access to opportunities to make choices and grow as an individual would be curtailed
  • .
  • I accept the opinion evidence given by Dr Beck and Dr Adshead. I find that E’s behaviour amounts to factitious disorder imposed on others. It was suggested by E in the course of the hearing, relying on material available on the internet, that the diagnosis was made without justification, as a means of attacking mothers of children with autism with a view to removing them from their care. I have no reason to believe that there is any basis for this assertion, but it certainly does not apply in this case. I am sure that the diagnosis of factitious disorder in this case is valid.

 

 

CONCLUSIONS

 

  • This court acknowledges the enormous demands placed on anyone who has to care for a disabled child. Even though such carers are motivated by love – and I accept that both E and A love M and are deeply devoted to him – the burdens and strains on them are very great. Every reasonable allowance must be made for the fact that they love their vulnerable son and want the absolute best for him. Every reasonable allowance must be made for the impact of these burdens and strains when assessing allegations about the parents’ behaviour. However, having made every reasonable allowance for those factors, I find the behaviour exhibited on many occasions, by E in particular, was wholly unreasonable. I agree with the insightful observation of the independent investigator appointed to consider the parents’ complaints in 2010 quoted above. E and A do feel that their mission has meant having to fight every inch of the way, against health and legal services and, more recently, social care services. This has influenced the extent to which they are able to work in partnership with statutory agencies. As they have such clear ideas about all aspects of M’s life and believe the conclusions they have reached about him are correct, it is understandable that they have had difficulty in accepting the views of others where they differ from their own. However, their attitude and approach has far exceeded anything that could be considered as reasonable.
  • E’s friends admire her determination to stop at nothing to get M the care, support and long-term achievement he deserves. Unfortunately, I find that this determination has led her to behave in a devious and destructive way, relentlessly criticising, occasionally bullying, repeatedly complaining about those who do not follow her bidding. Throughout this hearing she has repeatedly accused the local authority of pursuing its own agenda. I find that it is she who has an unshakeable agenda to follow her own course in pursuit of her own beliefs about M’s condition and how it should be treated.
  • E’s allegations of multiple conspiracies are a fantasy. It is nonsense to suggest that there has been a conspiracy by large numbers of the medical profession to conceal the truth about the MMR vaccine. It is ridiculous to suggest that the local authority has pursued a vendetta against E and set out to remove M from his family for financial reasons and that the staff at the various residential homes have fallen into line and in some cases perjured themselves under financial pressure from the local authority. It is delusional to suggest that the Official Solicitor has been motivated in this case by an agenda designed to prevent a revival of the claims arising out of the MMR and to that end suborned experts. The tone of these outlandish claims by E has become increasingly more strident as the case progressed, culminating in the documents filed after the conclusion of the hearing in which she expresses outrage at the conduct of the local authority and the Official Solicitor at the hearing on 6th March, in terms that are barely coherent. In their final submissions, E and A have made a number of further attacks on the integrity of the Official Solicitor, all of which I reject. It is unnecessary to go into any further detail. They are wholly misconceived.
  • The critical facts established in this case can be summarised as follows. M has autistic spectrum disorder. There is no evidence that his autism was caused by the MMR vaccination. His parents’ account of an adverse reaction to that vaccination is fabricated. The mother has also given many other false accounts about M’s health. He has never had meningitis, autistic enterocolitis, leaky gut syndrome, sensitivity to gluten or casein, disorder of the blood brain barrier, heavy metal poisoning, autonomic dysautonomia (which, in any event, is not recognised in any classification of medical conditions), rheumatoid arthritis or Lyme disease. As a result of E maintaining that he had these and other conditions, she has subjected M to numerous unnecessary tests and interventions. He did have a dental abscess for which E failed to obtain proper treatment and caused him 14 months of unnecessary pain and suffering. E has also insisted that M be subjected to a wholly unnecessary diet and regime of supplements. Through her abuse of her responsibility entrusted to her as M’s deputy, she has controlled all aspects of his life, restricted access to him by a number of professionals and proved herself incapable of working with the local authority social workers and many members of the care staff at the various residential homes where M has lived. This behaviour amounts to factitious disorder imposed on another. In addition, E has a combination of personality disorders – a narcissistic personality disorder, histrionic personality disorder and elements of an emotional unstable personality disorder.
  • Despite her serious conclusions about E’s personality, it is Dr Beck’s view that these parents have a lot to contribute to their son if they are capable of offering the care and support he needs under the guidance of an overarching programme of care coordinated by the local authority. I agree that they would have an enormous amount to offer their son if they could work in collaboration with the local authority social workers and other professionals in M’s best interests. I have not given up hope that this may be achieved. Such an outcome would be manifestly to M’s advantage. It will not be achieved, however, unless E and A – in particular, E – can demonstrate a fundamental change of attitude. If this does not happen, this court will have to take permanent steps to restrict their involvement in his life.

 

 

 

* If you are thinking that the word ‘quack’ appeared in any of my previous draft wordings for those three options you would be deeply wrong and misguided. Shame on you, you dreadful cynic.

 

 

 

 

 

 

 

Research and stats round-up

 

A few important reports on statistics / research documents have come out in the last two weeks. I’m afraid that I don’t have enough time to write about each in depth, but I’ll give you the headlines and a link to each and if that whets your appetite, you can read the whole thing.
1. Serious case reviews

Ofsted have published statistics showing that the number of Serious Case Reviews have dramatically increased

http://www.ofsted.gov.uk/resources/serious-incident-notifications-official-statistics-release

A 53% increase on Serious Case Reviews since 2012.

You might think, as I immediately did – is this evidence that the new methods of working aren’t working and that children are paying a heavy price?

It may be much more prosaic than that. The real chance in Serious Case Review policy is that they went from being internal documents to published documents in 2011, and the numbers went down as a result. Public bodies that had been using them to learn lessons and discuss failings were less keen on doing so in published documents – the “washing your dirty linen in public” effect. And then last year as a result of that decline an independent board was set up to scrutinise decisions as to whether or not to hold a Serious Case Review. So the dramatic rise is just that independent board restoring normality.

However, the number of referrals of “serious incidents” to Ofsted did go up. “Serious incidents” can cover incidents that would warrant a Serious Case Review or that are likely to attract media attention. So a greater media interest in family justice might account for the increase.
2. Ministry of Justice Statistics show a 19% reduction in family cases

http://www.familylaw.co.uk/system/redactor_assets/documents/1657/court-statistics-quarterly-april-to-june-2014.pdf

Private law cases dropped by 41% from the same quarter last year, as those cases that had got in just before LASPO have now all just about ended.

The MOJ say that numbers of public law cases has been fairly stable since 2011 (so the figures earlier this year showing a decline was really just the effect of everyone pausing in new cases to make sense of the new PLO requirements rather than any real downturn in demand)

What is interesting is that despite the huge Government push on mediation being the way forward, the number of mediations in the last year decreased by 50% from the level that it was when parents could go and see a lawyer for free advice who would explain the benefits of mediation to them. That’s pretty damning, that a compulsory mediation service has lower take up than when it was voluntary.

http://www.familylaw.co.uk/news_and_comment/new-moj-laa-data-low-income-families-turn-backs-on-court-mediation-falls-50-compared-to-pre-laspo-times

3. CAFCASS research on care proceedings
This is an annual follow-up since the death of Peter Connolly, in which Guardians in public law cases are surveyed after the conclusion of the care proceedings and asked some general questions about whether they feel the LA was right to bring the proceedings, the quality of the evidence and whether the proceedings were brought too soon, too late or about right.

http://www.cafcass.gov.uk/media/217447/three_weeks_in_november_five_years_on.pdf

The headline from that is that “social workers are taking the right actions to keep children safe”

And that in 84% of proceedings, the Guardian felt that there had been no other choice than to issue proceedings. [Of course, the other way of looking at that is that 16% of proceedings are being issued when they didn’t need to be]

It probably isn’t the most impartial measure either – although Guardians are independent of social workers, the ethos of CAFCASS has been fairly obviously “safeguarding” as a priority over family preservation for a few years now.

If you were to ask parents whether the case should have been brought to Court I suspect 84% or higher would say no.  So it rather depends on who you are asking.

The really interesting research would be if you could get Judges to do this survey, keeping it all anonymised.

Cafcass note that the proportion of Guardians feeling that cases were being issued too late rose from 26% to 39% – they fairly note that this could be that delays are getting worse, or that cases have moved to pre-proceedings or that the greater focus on timescales and targets have made Guardians more sensitised to the issue and more critical of delays that would have been tolerable a year ago.

 

 

4. The Children’s Rights Commissioner says that legal aid cuts have detrimentally affected children
To which the MoJ have replied “Well it isn’t meant to”

So that’s all fine then.
“Behind the evidence in our research are countless heartrending stories of children and vulnerable young adults whose lives have been seriously affected by their inability to access legal representation,” Atkinson said. “This means, in effect, that they cannot seek, let alone receive, justice. We should not expect children and young adults to face the complexities of the legal system on their own. These systems are daunting enough for adults, let alone vulnerable children and young people.

“The system is so difficult to navigate that it leads to people having no legal representation. That in turn can prevent decision-makers making decisions properly, as well as stopping individuals obtaining the justice they need … Short-term savings to one part of the legal system – legal aid – are simply shifting costs to another, because judges direct that representation has to be funded.”

http://www.childrenscommissioner.gov.uk/content/publications/content_871

5. NSPCC research suggests that spending a bit more on family support where children are rehabilitated would be far cheaper than our present arrangement

http://www.nspcc.org.uk/Inform/resourcesforprofessionals/lookedafterchildren/reunification-costs-report_wdf104058.pdf

Over 10,000 children are returned home from care every year, however it is estimated that 30-60% of these reunifications fail, meaning children are then moved back to care, at great human and financial cost.

This process costs an estimated £300m, according to a study by the Centre for Child and Family Research at Loughborough University, commissioned by the NSPCC. The costs include social work costs, legal costs, decision-making and placement costs.

However, the researchers found that a £56m investment in providing effective support for families when a child returns from care could reduce the number of reunification breakdowns.
This is an interesting piece of research, and I know that sign up for the pilot scheme was very fast, with it being oversubscribed. If a new approach for support for children being returned home meant that more of them could stay there.

Quick caveat – I think some of the underlying maths is iffy. These are social scientists, not acountants. For example, there are some underlying assumptions that are weak

(i) That it covers s20 not just care
(ii) That a child who comes back into care will remain in care and the costs can be worked out on that basis (whereas some children in s20 might come back into care for a short period)
(iii) That it is fair to work into the costings of the child coming back into care that some children are in residential care (the most expensive type and frankly the ones who are in residential care are likely to be the ones least likely to get turned into successful permanent rehabs)
(iv) That for some reason the estimated legal costs of proceedings is calculated as being less than just the Court issue fee. If a Local Authority can manage to run the whole care proceedings for less than it costs to get the Court to start them off, that’s some wonder economics there
(v) That the figure for failed rehabs is 47%, which is something of a finger in the air taking an average of two other studies   (the headline numbers in those studies look extreme, but if a child is in care, goes home, and comes back into care, the “going back into care” might include a short respite period rather than permanent placement away from the family)

 

But my criticisms are really that the figures are slightly cooked to make the scheme seem even more desirable – I don’t think they needed to do it, the case for better support services is well made out in the body of the report.

This bit some people might find useful – we hear so much about “a low level of support” or “this family need a high level of support” – what does it mean in practice?

The report shows the real actual numbers

This comprises 6 months at a high level (8 hours 15 minutes social worker time plus 50 minutes team manager per month);

3 months at medium level (5 hours and 45 minutes social worker time plus 50 minutes team manager per month);

and 3 months at a low level (2 hours and 35 minutes social worker time plus 50 minutes team manager per month). These activity figures are taken from Holmes and McDermid (2012).
From that – high level of support is just over 2 hours a week of social work time. Medium level is about 1 ½ hours a week of social work time and low level is about 40 minutes a week.

Anything more than that would be accurately described as ‘exceptionally high levels of support’ although when you see the numbers it might not seem to be.

 

I absolutely welcome anyone trying to find out what the best way to make rehabilitation of children back home work better, and credit to the NSPCC for funding this sort of research. I hope that it makes a difference and that if so it is rolled out nationally.

Somerset v MK – conduct of a Local Authority and deprivation of liberty

 

 

This is a Court of Protection case, involving a 19 year old “P”.

 

Somerset v MK – Court of Protection,Deprivation of Liberty ,Best Interests Decisions ,Conduct of a Local Authority 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

 

P is aged 19, she was born on 10/10/1994 and has severe learning disabilities and autism spectrum disorder. She has almost no verbal capacity and communicates through gestures and via PECS

 

In May 2013, P presented with bruising on her chest and was examined by a paediatrician

 

His report (G25) said: “the bruising is felt to be comparable with a blow / blows to P’s anterior chest with a significant force or fall onto an object… this would be an unusual injury pattern to have been self-inflicted but if this was the case then it would be expected that such self-harm, which would have been demonstrably significant and painful, would have been witnessed”.

 

 

Sadly, when considering how those bruises came about, nobody seemed to have grasped the significance of the report from the school two days earlier of P being observed to hit herself hard and repeatedly on the chest.

 

The Judge notes,with a degree of acidity, that it seemed to only be when the papers in the case were sent by the Local Authority to leading counsel that the two matters were linked and the Local Authority ceased to seek a finding that P had been injured by her parents.

 

The belief that P was not safe with her parents was what had led the LA to remove her and deprive her of her liberty, and hence to make the application authorising that deprivation of liberty. Initially it had been for two weeks respite, but that stretched on and on, to over a year.

 

16. In addition the LA changed its position on the factual issues so that it was unlikely to pursue factual findings with regard to the injuries sustained by P. Previously the chest bruising seemed to form a vital part of the LA case and one might, for instance, have expected findings being sought about a perpetrator or perpetrators and failure to protect but now it was clear that no such findings were being sought. It is also clear from the document that the significance of the reported hitting by P of herself in the chest on 21/5/13 had been realised (the class trip evidence had not yet been identified). I suspect the realisation of the significance of this evidence in any Finding of Fact hearing and the instruction of very experienced leading and junior counsel just prior to this document being filed are not entirely coincidental.

 

Given that the reason for keeping P apart from her family had been the suspicion that they had injured her, when the truth is that the bruising was explained by the school’s observations of her hitting herself in the very same place, the LA were in a very tough spot.

 

14. On the 26th March the LA filed its position statement dated 25/3/14 to be found at A12 to 15. In this document the LA conceded that P had been deprived of her liberty (it contended that there may have been some doubt about that before but not after the Supreme Court ruling in the Cheshire West case).

 

15. In addition the LA accepted that there had been a period when they had unlawfully deprived P of her liberty contrary to Article 5 ECHR. It had not been authorised by the Mental Capacity Act 2005 and was not therefore “a procedure prescribed by law”. This it accepted continued from 8th June 2013 (the date when the respite care was supposed to have ended and 28th November 2013 when the first authorisation was obtained. It goes on to concede that P’s deprivation of liberty and the loss of her society to her family was a breach of both P and M’s Article 8 rights and not in accordance with the law.

 

 

If they had stuck with the apology and worked up a rehab plan without delay, things probably would have gone better for them, but instead they decided that it was in P’s best interests for her NOT to return to the family home but to be in a long term placement at a care home.

 

17. The LA make it clear that the best interests decision as to what should happen from now on to P is one to be considered purely in terms of her present and future welfare needs. The document indicates that the LA wish to apologise to the family for its “procedurally inappropriate and unlawful” actions. It still proposes that the best solution is for P to be in LA care and accommodation (up to April 2014 it had suggested a long term placement at a care home in Bournemouth was appropriate). Now it accepts a new social worker should be involved and make another best interests assessment and the case should be returned to court for an interim consideration of where P should be.

 

 

As part of that, the LA had drawn up a schedule of findings of fact on other matters. It is significant to read what the Official Solicitor had to say about that schedule

“…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges.”

 

 

The Judge agreed with that, and also in conclusion said this:-

 

the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.

 

 

{It is rather difficult to look sincere in your apology when you’re also trying to stick the boot in at the same time}

 

25. The siren song behind the argument is if I make the findings of fact and apply them and all the other relevant considerations to the case I will be driven to find that P’s best interests will be served by her not returning home but as far as the LA are concerned that is a matter for the judge. An outside observer might ask himself the question if everyone including the independent social worker and the OS for P are agreed on a return home and the LA are neutral why has it taken 9 days to litigate the case? However the reality is that the past conduct of the family and the LA are the context for the best interests decision and also the components of the breach of the ECHR application and thus needed to be carefully examined.

 

 

The Court did not make the findings that the LA sought, including one that the Judge said was “unprovable and irrelevant at the same time”   (a difficult combination to achieve)

 

What makes this case potentially important is the evidence of the senior manager of the LA, who the Judge remarked a number of times had the principal role of being there to fall on his sword.

 

 

The senior social work manager is a highly intelligent and senior social worker but he is essentially there to fall on his sword for the LA failings and on the best interests issue does not add anything to the LA case

 

However,

 

 

57…He was in my view a highly intelligent, experienced and well-intentioned manager and social worker who was, having observed him not just when he was giving evidence but when he was listening to evidence, genuinely shocked at some points by what he heard. At the start of his evidence he said: “I think the crucial aspect relying on what I have heard in court is a fundamental misunderstanding of the role of adult social care and how to go about their jobs“.

 

[Oh. My. God]

 

58.  He (and I) did not question the motivation of LA to do the right thing, as they saw it, for P but he described the conduct of social workers on the ground as misguided. There was no understanding of the law in this area and that extended to the LA lawyers as well as social workers. He accepted when I asked him that not only were individual actions wrong but the philosophy behind those actions was wrong as well. In particular he said that practice was inadequate when consulting with the family: “I have to ensure the staff who work in this area understand their role and I clearly failed in my responsibilities, failure as team manager, they failed to seek or take advice given the complex nature of the case. The beliefs and intentions of what people did was misguided in its approach”. He was very critical of the delay from September when the police indicated they were not taking their investigation of bruising any further to issuing proceedings which seemed to him to be time taken to, “put a good case together, which was not what we got”. He also highlighted the failure of the LA in not having a lawyer who specialised in adult social care.

 

[Oh. My. Flipping. God]

 

He was not wrong. The Judge analysed the conduct of the LA very carefully.

 

67. The police finally finished their investigation in September 2013, it was inconclusive. The LA were now in a position where prior to May they had not taken any action and the bruising in May could not be used to substantiate a retention of P. At the same time they had a very distressed young woman on their hands to whom medication was now being or about to be administered.

 

 68. Around about the time of the move to SASS people at last start to show alarm at the legal position. Why had they not appointed an IMCA (e-mails at O1169): “I am really not clear how we are holding P at Selwyn”, a colleague to Mr M 22/11/13, later that day in another e-mail should they not have gone to the CoP? Mr M on the same day: “P is still under safeguarding procedures”. One asks the questions why does he think that now the investigation has been over for two months and how does he think that justifies holding her?

 

 69. There had been other meetings the family should have been invited to but were not on 5/9/13 and on 12/11/13. The first of these meetings comprises of a massive amount of criticism being levelled at M and Mr E in particular most of which is either hearsay or from an anonymous source who is quoted at length but seems to be highly unreliable and possibly had some kind of personal agenda.

 

 70. At the meeting of 17/12/13 it was explained according to the minutes at J35 that the family were invited to discuss plans about P’s future and express their views. In fact it is clear that was not the reason they were invited at all. Far from a change of heart and an attempt to communicate the reason is clear. It was felt by Mr M on advice from the LA lawyers that: “The COP might pick up that no ’round table’ meeting has been held and this might disadvantage us during the hearing” (see the bundle at part O page1086).

 

[Oh. My. Martha. Flipping. God]

 

 

The Judge concludes

 

74. This is already a very long judgment and so I do not propose to go on reviewing the LA’s conduct further. The overall summing up by the senior social work manager was: “There has been a corporate failure and a failure of those on the ground to realise that they are out of their depth, most worrying was that they looked more sure about what they were doing than they ought, … it’s going to be difficult to re-establish that trust (with the family) if it’s rebuilt it is going to be with good practice”.” Mr Justice Ryder (as he then was) in a leading authority on FII cautioned social workers in child care cases not to decide what the picture was and then make the facts fit the picture, it seems to me that is what happened here.

 

 

Undertaking the best interests analysis, it is a demolition and as one-sided as a Harlem Globetrotters match

 

The balance sheet therefore shows the following –

 

 

In favour of P returning home

 

i Her wishes

 ii The wishes of her family

 

iii.             The right to a family life of P and her family

 iv The fact that at home she may not be subject to any deprivation of liberty and therefore this will be the least restrictive option

 v Concerns about the bruising have been abandoned as a reason for her not going home

 vi The OS supports return

 

vii.           The independent social work reporter supports return

 

viii.         I have found nothing in the Schedule of Facts to prevent return

 ix I have found there will be a degree of co-operation between the principal family members and the LA.

 

 

For a placement in a specialist home

 

 i The view of the LA that P will best reach her full potential in terms of her development, social life, communication skills and so on in a specialist home.

 

 

 

P therefore returned home and the Court found that there had been breaches by the Local Authority of her article 8 right to private and family life

 

76. There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.

               

 

I make that five breaches

 

78. These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.

 

 

 

 

 

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