RSS Feed

Tag Archives: appeal

Poppi Worthington

 

There has been a lot of media interest and frustration about the death of Poppi Worthington.  She died in December 2012 and was just thirteen months old. A finding of fact hearing took place in care proceedings and judgment was given on that in March 2014.  Despite media interest and applications, the contents of that judgment are still not known other than to those directly involved in the case.

A reporting restriction order remains in place, that prevents the contents of that hearing being shared in the media or published. [As ever with reporting restriction orders, they apply to me and to my commentators, so if the information is leaked elsewhere on the net, please do not link to it]

We do know that an inquest took place, with an open verdict and the Coroner releasing Poppi’s name into the real world and was recorded as describing her death as ‘unusual and strange’

The Press were interested in the suggestions that either the finding of fact hearing in the care proceedings might be a miscarriage of justice (based on the Coroner’s verdict being open, rather than concluding that Poppi was unlawfully killed)  OR that the finding of fact hearing was critical of the Local Authority and social workers and that this was being hushed up.

[See for example, the Daily Mail piece here http://www.dailymail.co.uk/news/article-2810262/How-council-tried-baby-s-death-secret-protect-social-workers.html   ]

Either of those things are possible, it is really hard to prove or disprove them until we see the judgment itself.

For a long time, the decision to hold back the contents of the judgment despite media interest, was on the basis that there might be a pending criminal trial.

The police decided on 16th March 2015 not to charge the father with any criminal offences. The Press obviously thought that this would mean that the judgment would be released and they could tell Poppi’s story.

However, as a result of enquiries that had been made in the police investigation, including fresh medical experts, the father considered that there was scope to challenge the decision of the fact finding hearing and the decision to make Care Orders on Poppi’s siblings.  [I don’t think it is rocket science to infer that the final outcome of the finding of fact hearing was that father had done something to Poppi that led to her death, which he disputes]

 

The issues then for Mr Justice Peter Jackson to resolve were :

1. Should this be an application to the Court of Appeal on fresh evidence OR an application for re-hearing made to the High Court who had originally heard the case?

2. If the latter, should the application for re-hearing be granted?

3. Should the original judgment be published prior to the conclusion of that appeal/re-hearing?

And that is what he dealt with in the case of Cumbria County Council v M and F (Application for rehearing) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/35.html

 

 

  1. At the original hearing, the main medical evidence came from three pathologists. Dr Alison Armour, Dr Stephanie Bitetti and Dr Stephen Leadbeatter and from Dr Victoria Evans, a paediatrician. Their opinions coincided in some respects and diverged in others. I substantially accepted the evidence of Dr Armour.
  2. As a result of the fact-finding judgment, the police commissioned further medical enquiries. Opinions have now been given by Dr Nathaniel Cary (pathologist) and Dr Liina Kiho (histopathologist). Their views diverge in a number of respects from those of Dr Armour. An opinion has also been obtained from Dr Victoria Aziz, who is described as a forensic examiner.
  3. In their submissions, the parties have analysed the extent to which the more recent pathology evidence differs from that which was given that the original hearing, with reference to five particular post-mortem appearances.
  4. On behalf of the father and the Guardian, it is argued that the additional medical evidence raises issues of sufficient importance to warrant a rehearing. On behalf of the local authority and the mother, it is said that the issues are ones of nuance and interpretation that do not amount to a reason for reopening the matter. It is also said that the process by which the new evidence was gathered may have had shortcomings.
  5. In my view, the further evidence contains matters of mixed fact and opinion that deserve further consideration. In particular, it contains an alternative unifying hypothesis for the post-mortem appearances. That hypothesis was not overlooked at the earlier hearing, but it did not receive the degree of attention that is now being paid to it. Arguments about any consequences arising from the process by which the further opinions were obtained cannot be resolved without significant further inquiry, and a decision on the father’s application should not in my view be postponed for that to occur.
  6. The circumstances in which the court will reopen established findings of fact are rare. There is a public and private interest in litigation being final. The impact of a renewal of the litigation on the family members can be significant, as is undoubtedly the case here. Further proceedings are also expensive, in this case to the public, and consume court time that is needed for other cases.
  7. There are two ways in which an application for a further hearing can be made. The first is by way of an application to appeal out of time on the basis of fresh evidence. The second is by way of an application to the trial court for a rehearing. In this case, the latter course has been selected. It is argued on behalf of the mother that the former course would have been better. However, it is acknowledged that the appeal route would be likely to lengthen the overall process in circumstances where the earliest resolution is in the interests of the children. In the overall circumstances, and bearing in mind that this court has had an ongoing involvement since the conclusion of the care proceedings because of issues of publicity, I find that the father’s application is appropriately made here.

 

So, in these circumstances, an application for re-hearing was better than an application to appeal. What about the merits of the application itself?

  1. His choice of venue will have been influenced by the way in which the tests that apply in each court have been articulated. An application to appeal out of time engages the well-known test in Ladd v Marshall 1954 1 WLR 1489. The new evidence must be such that it would probably have an important influence on the result of the case, though it need not be decisive, and it must be apparently credible, though it need not be incontrovertible. An application to the first instance court for a rehearing engages the guidance contained in paragraph 33 of the decision of the President in Re ZZ (Children) 2014 EWFC 9 where he endorsed the words of Mrs Justice Hale in an earlier decision: “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions on the same evidence … The court will want to know … whether there is any new evidence or information casting doubt on the accuracy of the original findings.” To this, the President added that “one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my own part I would be disinclined to set the test any higher.”
  2. There may be cases in which the formulations of the tests on appeal and at first instance might make a difference to the outcome, but I do not consider that this is one of them. The court’s overriding objective is to deal with cases justly, having regard to welfare issues involved, and that is my goal.
  3. The considerations that persuade me that justice requires that a further hearing should take place are these:

    (i) The finding of fact addressed in the more recent evidence is of central importance for the family. It is of a kind that determines the children’s future and is of great significance to the parents.(ii) It will be important for the children to have an accurate understanding of what happened to their sister. The more recent evidence has the effect of raising doubt about the existing conclusion. The children’s welfare requires that the matter is resolved.

    (iii) The more recent evidence, like the previous medical evidence, comes from a reputable source; further, it was commissioned in response to concerns expressed by this court about the earlier police enquiry.

    (iv) While the outcome of a further hearing cannot be foreseen, it is possible that a review of the overall medical evidence may lead to a different conclusion. It may, or it may not. What can be said is that there is a serious issue to determine in the light of the further opinions.

  4. As to the scope of the further hearing, oral evidence is likely to be limited to medical testimony. I am unlikely to admit other oral evidence, unless a particular matter needs clarification. Transcripts and notes of evidence from the earlier proceedings will be gathered. A meeting of the doctors should be held in order to establish points of agreement and disagreement. The parties will present a draft directions order, having made further enquiries.
  5. At an earlier stage, the father submitted that any rehearing should take place before a different judge. That submission was not in the end pursued, in my view correctly. There are considerable advantages in judicial continuity in a case of this complexity.
  6. The outcome is that the further hearing will take place in the autumn.

 

So there will be a re-hearing in the autumn. But we are not yet into May – what happens between now and then?

 

As to the publication of the original judgment, I remain on view that this is not appropriate at this point in time, for the reasons given on 30 March. However, I have expressed a provisional view that it should be published at or around the time that the rehearing begins, rather than it being withheld until that hearing ends. There is a proper public interest in the course that these proceedings, and the other procedures surrounding Poppi’s death, have taken. The media will be able to describe matters more effectively if the original findings can be described at the point when they come under review. I have also raised the possibility of the further hearing taking place in public. I will hear from the parties and the media about these issues at the next directions hearing.

 

So the judgment will not be published until the autumn. It MIGHT be published before the re-hearing finishes, and even possibly at around the time that it begins.

The reference to the judgment on 30th March is this one – which was considering the position given that the police had dropped their case against father, but father was wanting to challenge the findings in the family Court.

From that judgment

http://www.bailii.org/ew/cases/EWHC/Fam/2015/918.html

 

  1. On the question of publication of the judgment, there is division between the parties:

    (i) The media, on whose behalf Ms Caoilfhionn Gallagher has presented written submissions, supplemented today by Mr Murphy, argues for publication. It says that the matter is of the highest public interest, both as to the circumstances of the death and as to any agency failures. There is a risk that an information vacuum will be filled with inaccurate speculation. Moreover, continued non-publication would be likely to reignite concerns about “secret courts” and lack of transparency in the family justice system.(ii) The local authority argues that the judgment should be published now that a charging decision has been taken. Even if the findings are reopened, there is a public interest in being informed about the process as it occurs.

    (iii) The mother supports publication, particularly as non-publication heightens speculation in an unhelpful way.

    (iv) The father opposes publication at this point. On his behalf, Mr Rowley QC argues that the evidence gathered during the father’s criminal investigation forms a credible basis for querying the court’s findings. He submits that it would be wrong, taking into account the father’s rights, to publish the judgment ahead of a decision about whether the findings will or will not be reviewed.

    (v) On behalf of the children, the Children’s Guardian opposes publication of the judgment at this time. The children, whose future plans remain at a sensitive stage, would have to face a heavy bout of publicity now with the possibility of further, conflicting publicity at a later stage.

  2. The Practice Guidance issued by the President of the Family Division on 16 January 2014 and entitled “Transparency in the Family Courts: Publication of Judgments” [2014] 1 FLR 733 advises that fact-finding judgments in serious cases should be published unless there are compelling reasons to the contrary. Quite apart from that guidance, this should in my view be the starting point in a case of this kind. The public interest that the media contends for is very significant indeed. As I have said elsewhere, I am aware of the value of the media being able to describe events in real time as they unfold. The risk of speculation replacing information is also a relevant consideration.
  3. I have nevertheless concluded that it would not be right for the fact-finding judgment to be published now. The court retains control over the question of publication and must give due weight to the public interest, the interests of justice and the interests of the individual parties, not least those of the children concerned. It would be wrong in my view to place in the public domain a judgment that would be likely to receive considerable publicity immediately before taking a decision on the question of whether that judgment should be reviewed. To do so would be unfair to the father and contrary to the welfare of the children.
  4. I well understand the desire of the media to carry out its role as fully as possible, and the frustration that is felt at the course of events in this case, in particular where one obstacle to publication is removed only to be replaced by another. However, I am clear that a proper balancing of the rights of all concerned leads to the conclusion that the judgment cannot be published yet. In saying this, I repeat my intention that it shall be published when it can be.

 

Given the Daily Mail story linked to earlier, it is worth noting that at the hearing on 30th March, the Local Authority (i.e Social Services) were of the same view as the Press, that the original judgment should be released and published.  I can also see however, that if you were the father, hoping to get that decision overturned that you wouldn’t want the Press reporting all the details of how a Court found that you did something dreadful to your child BEFORE you get a chance to persuade the Court that they had got this wrong. I can also see that for the Guardian, representing the children, it would not be ideal to see in the papers terrible headlines about your father and your sibling, and then possibly to have a different version of events and fresh stories AFTER the re-hearing.  But also, I can see that this all feels very unsatisfactory – the Press have a story here which is a genuine public interest. Maybe there were failings from professionals from which others could learn, maybe not. Maybe a family has been broken up as a result of a mistake in the family courts, maybe not.  The Press legitimately want to report the story and they aren’t able to do so.

Not an easy situation.

I also note that there is to be a Serious Case Review (which is the internal investigation where a child dies and there might be lessons to be learned). Those generally have to be published, so I wonder if the report might be timed to come in after the autumn re-hearing; as otherwise the Press could legitimately report on the conclusions and substance of that report.

No broad presumption in favour of a natural parent

The Court of Appeal in Re E-R (A child) 2015 had to deal with a very emotionally difficult case.  [Don’t ask me why they call the case “Re E-R a child, but then use T as the child’s codename throughout. I have no idea why, it makes no sense] 

 

T was five years and nine months old. She had lived with both parents until she was two and they separated, and from then on with her mother. Her mother sadly was diagnosed with cancer.  The separation from the father had been very acriminious and the father had drifted out of T’s life.

 

The mother had made a will appointing a friend SJH as testamentary guardian, wanting SJH to care for T after her death. She and T moved in with SJH, who provided the mother and T with care.  SJH made an application for a Special Guardianship Order whilst the mother was unwell but still alive.

 

His Honour Judge Vincent at the family court sitting at Truro on the 30th January 2015. The judge’s order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant’s application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T’s current living arrangements provided for by the order were to take effect only upon the anticipated death of T’s mother.

The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was “a broad natural parent presumption in existence under our law”. The Appellants appeal only the child arrangements order and do not appeal the judge’s refusal to make a special guardianship order.

 

Very sadly, the mother died before knowing the outcome of the appeal and thus without knowing whether her daughter would continue to live with SJH or whether she would be removed and placed with the father.

The Court note at the end, but I think it is very important, that everyone in this case struggled with the law (counsel in the first hearing and the Judge) and that father had not been able to be represented and had to represent himself in the Court of Appeal on extremely tricky points of law. A wholly unacceptable situation.

  1. This was a difficult case. The court was faced with making a decision as to what arrangements could best be made to ameliorate the loss to T following the death of her mother. The judge listened conscientiously and carefully to extensive evidence and made findings about the parties involved. He was however denied critical assistance in two respects:

    i) The relevant law was not brought to his attention; as a consequence his analysis was conducted on the basis that there was a presumption that T should live with her father. This was wrong in law and as already indicated, upon that basis alone, the appeal must be allowed.

    ii) The judge might nevertheless have been better able to analyse the complicated issues which were thrown up had he had the benefit of something more than the somewhat one dimensional and superficial reports which were available to him.

  2. The father has today once again been in a position of having to represent himself. This case is yet another example of the consequences of treating private law children proceedings, (in the absence of allegations of domestic violence), as being essentially straightforward matters in which parents are expected to “sort themselves out” and to make appropriate arrangements between themselves to enable their children to spend time with each of them without the necessity for, or entitlement to, legal representation.
  3. The challenges presented by this case are obvious and have been set out above; the difficulties have been demonstrated at every professional level in the case, from the reports being wholly unsuited to the complexity of the case to counsel being unaware of the legal issues thrown up. As a consequence, the judge was left having to deal with the case without the help he needed. If the complexities of the case proved too much for these skilled professionals, what hope was there for the father in trying to represent himself?
  4. Lord Justice McFarlane recorded, when granting permission that the issues raised in the appeal were principally a matter of law and that the father was to be given “every assistance” to obtain legal advice and representation. Unhappily the father appears before the court today once again unrepresented, although supported by JB. To his credit, the father has produced a skeleton argument for the court; his oral argument was courteous and moderate but inevitably did not touch upon the legal principle at the heart of the appeal. The father’s skeleton argument, far from addressing the point of law raised by the appeal, sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives

 

The Court of Appeal did overturn the order and send it back for re-hearing.  That does not automatically mean that the decision is that T will live with SJH, but just that in making the decision it is not a starting point or broad presumption that it would be better for a child to live with a birth parent.  The Court of Appeal were at pains to point out that just as there’s no starting point or broad presumption that natural parent should prevail, nor was there one that the status quo should prevail.

  1. The Law
  2. In Re G 2006 UKHL 43; [2006] 2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:

    30. My Lords, the Children Act 1989 brought together the Government’s proposals in relation to child care law and the Law Commission’s recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

    “We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.”

    Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it “rules upon or determines the course to be followed”. There is no question of a parental right. As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.

    31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] FamCA 55:

    “I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved”

  3. In her conclusion Baroness Hale said:

    “44. The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”

  4. In Re B (a child) 2009 UKSC 5; [2010] 1FLR 551 Lord Hope referred back to the passage in Re G set out above, saying as follows:

    This passage captures the central point in the Re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we’d wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in Re G, but the essential task of the court is always the same.”

  5. When granting permission to appeal McFarlane LJ said: “It is highly regrettable that the relevant case law was not drawn to the attention of the judge by counsel then instructed”. I respectfully agree. Had the two key authorities been put before the judge he would inevitably have approached his analysis from a different perspective aware that there is no “broad natural parent presumption” in existence in our law. Miss Renton who did not appear in the court below, on behalf of the Appellants submitted that had the judge approached the case from the correct legal perspective, he would not have fallen into error by elevating the father into a preferential position when he commenced his decision making process. The consequence of having done so, submits Miss Renton, is that whilst all the welfare factors properly analysed, pointed to the status quo being maintained, the biological link between the father and T had subverted the welfare factors in favour of a transfer of care to the father as a “capable father”.
  6. I accept Miss Renton’s submission that the judge wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent. On this basis alone the appeal must be allowed.
  7. In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father, In her grounds of appeal Miss Renton argued that the facts ‘militated strongly in favour of the status quo’, referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor – custody) [1992] 2 FCR 279 and a passage in which Lord Justice Balcombe said:

    I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.

  8. In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art “status quo” into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.
  9. In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.

 

I’ll clarify this – this is the law for PRIVATE law proceedings, and in care proceedings, there is clear authority that the best person to bring up a child is the parent.

“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided thechild’s moral and physical health are not endangered.”

Lord Templeman in Re KD (A Minor) (Access: Principles) [1988] 2 FLR 139 at 141A.

This has been cited approvingly in dozens of cases and is a fundamental underpinning of public children law.  It at essence means that it is not the job of the Court when considering a Care Order application to think about whether the child might have a happier life, or better standard of living and better opportunities if they lived with foster carers or nice adopters, but to decide whether the parents care of the child was harmful to them in a way that could not continue. It is the bulwark against social engineering.

(Many would argue, and Owen Jones in particular has argued that a large part of the adoption system is social engineering, moving children from poor working-class families to middle-class ones, but if the Court does its job properly this ought not to happen)

There might well be some tricky decisions in future months when the options before the Court are not parent v foster care, but ‘good enough but not great parent’ versus ‘stellar grandparents’ – it must be very hard to resist the tempation to ‘fix’ the children’s lives by leaving them with far more capable grandparents. But that is a tempation that Lord Templeman warned us to avoid.

 

Adoption – here we go again?

The Court of Appeal have found the reverse gear to their reverse gear (from the original reverse gear of Re B-S).  Sort of.

I actually think this is just the Court of Appeal reminding Judges that in cases where Placement Orders are being made, it is actually a requirement that the judgment explains why.

 

There have been a few cases where the judgments have been flawed and the Court of Appeal rolled up their sleeves, got under the bonnet of the case and got oil on their forearms in order to set out what the Judge must have meant, but omitted to say. This wasn’t one of those.

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html

 

It is pretty bad that the Court of Appeal remark of the judgment that it barely contains any information that emerged during a three day final hearing or any analysis of the evidence that the Court heard.

The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment

The judge’s approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he “rejects” or “accepts” one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge’s quotations with regard to the parents’ capacity are all drawn from the written report alone.

This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.

10…the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:

 

“I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application.”

  1. Insofar as it goes, the judge’s description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:

    “Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child’s right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?”

  2. Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.

 

It is of note that the Court of Appeal formally acknowledge and approve the President’s judgment in Re A about thresholds, giving them even more weight if any were needed.

 

In fact, as Lord Justice Aikens not only approved the points in Re A, but provided a distillation of them, this authority bolsters those points considerably. You won’t get far re-arguing those points with the Court of Appeal.   [Although I note with heavy heart that ‘nothing else will do’ is making a comeback, after I thought we’d reverted to Baroness Hales full paragraph]

 

  1. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that “nothing else will do”.
  2. The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.

    ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.

    iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.

    iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)

    v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.

    vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.

    vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

    viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 RLR 625.

I think that is an excellent distillation, and much more user-friendly than the original.

Ms Daisy Hughes drew out a particularly good point, and one which I expect to see appear again  (I applaud her work here)

On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father’s evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child) [2015] EWFC 11 in which, at paragraph 6, Sir James Munby P states:

“I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?”

In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father’s evidence to make good her submission that this judgment falls well short of what is required.

In this particular case, the parents were disputing the threshold and the order sought was the most serious that the Court could make. So it was imperative that the Court gave a judgment that resolved the factual issues and set out what harm the Court considered the child was suffering from or at risk of suffering, as the ‘baseline’ for considering what orders might be necessary.

 

The trial Judge had failed to do this. The Court of Appeal expressed some doubt as to whether, as pleaded, threshold was capable of having been met.

 

  1. The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents’ stance was not without merit.
  2. In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:

    “It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father’s] substance misuse. It is my professional opinion that many of the local authority’s concerns relate to the lack of maturity of the couple.”

    In that paragraph ‘Domestic Violence’ must, even on the judge’s findings, be confined to the assault a year prior to J’s birth, clothes being thrown out of a window in March 2014 and the mother’s reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father’s admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.

  3. To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam):

    “I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

  4. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.

 

The Placement Order was over-turned and the case sent back for re-hearing before a different Judge.

Mostyn Powers

 

Long-term readers will have picked up by now that there’s always something of value in a judgment by Mostyn J.  He follows that Raymond Chandler dictum of putting a diamond on every page.

 

This one follows his earlier decision (which many of us questioned at the time) that he wasn’t bound by the Supreme Court in Cheshire West and went with the principle that had been rejected by them to decide that a person wasn’t being deprived of their liberty

http://suesspiciousminds.com/2014/11/20/have-we-just-given-up-on-the-notion-of-the-supreme-court-being-supreme/

In that case, Mostyn J declared that he was bound by the decision of the Supreme Court in Cheshire West, though making it plain that he didn’t agree with it, but then didn’t follow it, distinguishing his case on its facts. He felt that it was something that the Supreme Court should look at again, and invited an appeal.

 

This is the follow-up judgment after the Court of Appeal reached the entirely unexpected conclusion that the Supreme Court had already decided that the FACT of whether a person was deprived of their liberty didn’t take into account whether their disabilities made that necessary, that’s for the second stage as to whether the Court should authorise that deprivation of liberty.

Readers may recall a previous occasion on which Mostyn J didn’t take it entirely in his stride when the Court of Appeal overruled him and he disagreed with their view.  He drops the “with the profoundest of respect” bomb during the judgment where he has to deal with the case again.

http://suesspiciousminds.com/2014/10/26/with-the-profoundest-respect/

 

So, given that scenario, one is following the firework code when reading Mostyn J’s decision.

Rochdale v KW 2015

http://www.bailii.org/ew/cases/EWCOP/2015/13.html

 

Firstly, here’s what happened in  the Court of Appeal  (I haven’t seen this reported yet, but given that the original Rochdale v KW 2014 unleashed the contents of a cattery into a pigeon coop, it is important)

The appeal was fixed for a full oral hearing on 4 or 5 February 2015. However, on 30 January 2015 the Court of Appeal allowed the appeal against my decision by consent and without a hearing purportedly pursuant to the terms of CPR PD52A para 6.4. Its order provided as follows:

“UPON reading the appeal bundle filed with the court.

AND UPON the Respondent confirming that it does not intend to oppose the appeal

IT IS ORDERED that:

1. This appeal is allowed.

2. For the review period as defined below, KW is to reside and receive care at home pursuant to arrangements made by Rochdale Council and set out in the Care Plan; and to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised.

3. If a change or changes to the Care Plan that render it more restrictive have as a matter of urgent necessity been implemented Rochdale Council must apply to the Court of Protection for an urgent review of this order on the first available date after the implementation of any such changes.

4. If a change or changes to the Care Plan that render it more restrictive are proposed (but are not required as a matter of urgent necessity) Rochdale Council must apply to the Court of Protection for review of this order before any such changes are made.

5. In any event. Rochdale Council must make an application to the Court no less than one month before the expiry the review period as defined below for a review of this order if at that time the Care Plan still applies to KW. Such application shall be made in accordance with any Rules and Practice Directions in effect at the date of the application being filed or, if not otherwise specified, on form COPDOL10.

6. Any review hearing shall be conducted as a consideration of the papers unless any party requests an oral hearing or the Court decides that an oral hearing is required.

7. “The review period” shall mean 12 months from the date on which this order was made or, if an application for review has been filed at Court before that date, until determination of such review application.

8. Nothing shall published that will reveal the identify of the Appellant who shall continue to be referred to as “KW” until further order pursuant to section 12 of the Administration of Justice Act 1960.

9. There shall no order for costs between the parties.

10. There shall be a detailed assessment of KW’s public funding costs.”

Attached to the order was a piece of narrative, prepared by counsel for the appellant, which provided as follows:

“Statement of reasons for allowing the appeal as required pursuant to CPR, PD52A at para 6.4.

The reason for inviting the Court of Appeal to allow the appeal by consent is that the learned judge erred in law in holding that there was not a deprivation of liberty. He was bound by the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & ors [2014] UKSC 19; [2014] AC 986 (“Cheshire West“) to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave. It is accepted by both parties on facts which are agreed that this was the position in the case of KW and that the learned judge also erred in holding that KW might soon not have the ability to walk or leave home on her own.”

That’s right, everyone involved in the case (except Mostyn J) wrote to the Court of Appeal saying that they thought Mostyn J had got it wrong and agreeing that there HAD been a deprivation of liberty and that the Court should authorise it.

The case then came back before Mostyn J, hence this judgment and hence this piece. I would imagine that the advocates did not have the most peaceful of sleep the night before that particular hearing.

Mostyn J did not take this terribly well.

He questioned whether the Court of Appeal had jurisdiction to make such a decision on a consent basis without actually hearing from the parties.  He has a point here, I think, it must be very unusual. Even in cases where everyone is agreed that a mistake has been made, there is usually a judgment given.

  1. CPR 52.11(3) provides:

    “The appeal court will allow an appeal where the decision of the lower court was –

    (a) wrong; or

    (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

  2. CPR PD52A para 6.4 provides for a very limited derogation from this simple and necessary rule. It is headed “SECTION VI – DISPOSING OF APPLICATIONS AND APPEALS BY CONSENT” and provides:

    Allowing unopposed appeals or applications on paper

    6.4 The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matters relied on as justifying the order and be accompanied by a draft order.”

  3. It can be seen that the strict terms of CPR 52.11(3) are modified by the deployment of the adverb “normally” in the first sentence. In the second sentence the sole exception to the primary rule is spelt out. An appeal may be allowed by consentwithout determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing”. Therefore it follows that this procedure, which involves a determination on the papers and without an oral hearing, cannot be used to determine an appeal on the merits.
  4. One can see the need for this provision. Following the first instance decision there may have been a change in the law deriving from legislation or a binding decision of a higher court. In such a case it would be necessary to set aside the original decision without a determination on the merits. Similarly, a procedural order may require to be set aside without a determination on the merits because of a change of circumstances or a mistake. It is impossible to see however how this procedure could be used to overthrow on the merits the central basis of a first instance decision particularly where that involved a clear statement of legal principle in relation to the facts as found.
  5. My limited researches in the field of family law reveal that where a merits based decision has been reached at first instance, which all parties agree should be set aside on appeal, then there is a hearing and a judgment. This is consistent with the only reasonable interpretation of para 6.4. The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise. Thus in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 412 Thorpe LJ held as follows:

    “1. In a judgement handed down on 23 June 2008, Charles J dismissed an application brought by the wife to set aside a consent order reached on 20 July 2006 at an FDR appointment determining her claims for ancillary relief for herself and the two children of the family.

    2. Charles J dismissed the wife’s application and refused her permission to appeal. Her application for permission was renewed to this court by a Notice of Appeal dated 7 August 2008. Wilson LJ granted permission to appeal on 30 October 2008, and that appeal was listed for hearing today and tomorrow, 4 and 5 March 2009.

    3. At the outset Mr Martin Pointer QC and Mr Jonathan Cohen QC, representing respectively the wife and the husband, informed the court that the parties had reached a comprehensive agreement to settle not only the appeal but also pending or prospective applications for the variation of the order of 20 July 2006.

    4. The agreement reached between the parties invited the court to allow the appeal, set aside the order of 20 July 2006, and to make revised orders on the wife’s applications.

    5. A short disposal might have followed but for our concern that the judgment below had already been reported at [2008] 2 FCR 527 and at [2009] 1 FLR 2001 and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.”

    Thorpe LJ then went on to give a full judgment explaining why Charles J had fallen into error.

  6. Similarly, in the recent decision of Re S-W (Children) [2015] EWCA Civ 27 it was recorded at para 4 that:

    “Neither Liverpool City Council nor the children’s guardian seeks to uphold the orders made. All parties are therefore agreed that the appeal should be allowed and that the matter should be remitted to Her Honour Judge de Haas QC, the Designated Family Judge for Liverpool.”

  7. Three full judgments followed explaining why Judge Dodds had fallen into error. Again, this was the least he could have expected and a reasoned judgment would have the effect of preventing similar mistakes in the future.
  8. The reason why in neither of these cases the Court of Appeal exercised its powers to deal with the appeal on paper, without a hearing, and by consent pursuant to para 6.4 was that in each instance it involved a determination on the merits that the judge was wrong. Therefore in each case the circumstances fell outside para 6.4.
  9. The researches of counsel, undertaken after argument was concluded before me but before this judgment was handed down, have not revealed any case where a fully reasoned decision has been overturned on the merits by consent and without a judgment. This is not surprising.

In this case the appeal was against para 6 of my order, which reflected the terms of my judgment, that the package of care provided to Katherine does not amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights. That was the centrally, if not the only, relevant component of my judgment. It was its very ratio decidendi. By para 1 of the Court of Appeal order the appeal is allowed. That is plainly a determination on the merits. It could not be anything else. But such a determination on the merits does not fall within para 6.4.

I do rather agree with Mostyn J here. Whilst I respectfully think that he was wrong at first instance, he was wrong in a way that several very senior Judges (including two members of the Supreme Court) have agreed with.  It would have been helpful to have this issue put to bed. I happen to think that the Supreme Court have already done it, but as there appears to be judicial doubt, better to have that cleared up.

 

I also think that even if one accepts that Mostyn J was wrong and that KW’s liberty HAD been deprived, it is then a leap for the parties to agree an order between themselves that the Court of Appeal authorise such deprivation as being in KW’s best interests when frankly that particular argument has not been fully ventilated and litigated because the trial Judge ruled that on the facts he did not consider that she HAD been deprived of her liberty.

 

Where does that leave KW then?

  1. Even though the Court of Appeal appears to have taken a procedurally impermissible route, the rule of law depends on first instance judges complying scrupulously with decisions and orders from appellate courts. And so I must here, even if I happen to think that the order of the Court of Appeal is ultra vires. The allowing of the appeal should be construed as setting aside para 6 of my order, even if it does not actually say so. But does the order replace it with a declaration that Katherine is being deprived of her liberty? It does not explicitly say so, which is highly surprising. Further, para 2 of the order is phrased in highly ambiguous language. It says “to the extent that the restrictions in place pursuant to the care plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised.” The use of this conditional language suggests to me that Court of Appeal has not actually decided that this is a situation of state detention. What they are saying that if it is then it is authorised. In my judgment para 2 of the order does not amount to a declaration that Katherine is being deprived of her liberty.
  2. It therefore seems to me that we are back to square one with no-one knowing whether Katherine is, or is not, being detained by the state within the terms of Article 5. That issue will have to be decided at the next review hearing whether it is held under paras 3, 4 or 5 of the Court of Appeal order. Pursuant to para 6 I now direct that any review hearing will be conducted by me at an oral hearing and on the basis of full fresh evidence concerning Katherine’s circumstances. Until then Katherine’s status must be regarded as being in limbo.
  3. For the avoidance of any doubt it is my finding that the hearing ordered by para 5 of the Court of Appeal order is not a review of a determined situation of state detention but is, rather, a hearing de novo to determine if one exists.

 

Mostyn J goes further – having said that there has NOT been a decision that KW is being deprived of her liberty and there would have to be a hearing if anyone invites the Court to make such a finding, he goes on to drop this remarkable bombshell

  1. Further, it is my ruling that a hearing under paras 3 or 4 can only be triggered if the restrictive changes proposed amount to bodily restraint comparable to that which obtained in P v Cheshire West and Chester Council. Any restrictions short of that will amount to no more than arrangements for her care in her own home and would not, consistently with my previous judgments, amount to state detention. Therefore, in such circumstances there would be nothing to review under paras 3 and 4.
  2. It will be apparent from what I have written above that in the absence of a reasoned judgment from the Court of Appeal explaining why I was wrong I maintain firmly the correctness of my jurisprudential analysis in my principal decision as augmented in my Tower Hamlets decision. In this difficult and sensitive area, where people are being looked after in their own homes at the state’s expense, the law is now in a state of serious confusion.

 

So we seem to be in a position where if you go before Mostyn J, Rochdale v KW 2014 is good law, but if you go before another Judge, it may not be considered that way. The Court of Appeal sanctioned an order which had the effect of overturning the decision in Rochdale, but Mostyn J has ruled that it did not actually rule on the principle or the interpretation of the law.

That’s not really the way that precedent works. There are quite a few precedents that I don’t agree with and where I think the law has got it wrong, but it is the law and has to be followed until it is overturned or refined.  You have to be able to pick up a piece of case law and know whether it is a precedent which others may follow or if it is not. (Yes, sometimes, like H&R or even Cheshire West at CoA stage, the precedent which everyone follows is later determined to be wrong, but we all knew that those cases were being appealed)

The legal status of the principle in Rochdale v KW 2014 is not at all clear to me any longer. Mostyn J makes a compelling argument here that it remains binding on any Judge who is less senior than a High Court Judge. Equally, we know that the orders made did not stand following an appeal to the Court of Appeal. Is it law, or isn’t it?

We can’t surely have law that applies if you are before X Judge but not before Y Judge.

 

[I hope that I’ve been plain that whilst I disagreed with Mostyn J’s original call, I think he was right that there was a sufficient element of doubt that the Court of Appeal ought to have properly considered it and ruled on it. This was a decision that did not only affect the parties, but had a degree of public interest. It should not have been carved up by the parties, even if I think they were correct that the Judge had fallen into error on thinking the case could be distinguished from the principles in Cheshire West]

Child giving evidence

Very quick one – this is an appeal just decided, about a 14 year old girl who wished to give evidence in care proceedings. She was saying that the allegations made against her father (about sexual abuse of her younger sibling) were not true, and thus the father was not a risk to her or her sister and her mother had not failed to protect.

 

The Local Authority and the Guardian were both saying that what the girl was saying was not correct  ( This might have covered either that she just didn’t know about the abuse or that she was lying to protect her parents) but that she should not give evidence and the trial Judge had agreed with that.

 

The Court of Appeal ruled that this decision was wrong – this was a witness who had capacity, who was willing to give evidence, she had filed a statement and the contents of that evidence was being challenged and it went to a material issue. The girl should have been able to give evidence, and if her evidence in her statement was not right for that to have been tested in cross-examination.

 

(Of course a Local Authority when bringing care proceedings on a child feels uncomfortable about cross-examining that child and causing them emotional harm, and similarly the Guardian is in a tough position cross-examining a child, but in a situation like this, the child has to be able to give evidence if she wishes)

 

Re R (children) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/167.html

 

  1. In civil litigation the general rule is that where a party witness provides an appropriately verified written statement of her evidence, and is willing to attend for cross-examination, the court cannot be invited by other parties to disbelieve that evidence on a matter within her personal knowledge, unless it has been tested in cross-examination. This is a basic and deep-rooted aspect of the fair conduct of a trial, and reflects the central role which cross-examination plays in the ascertainment of the truth.
  2. It is therefore very unusual to find, as in the present case, a situation where the parties who do wish to challenge verified statement evidence from a party witness with the closest personal knowledge of the relevant events, seek to persuade the judge not to allow that witness to attend for the necessary cross-examination, where the witness herself positively desires to do so. Of course the motivation for this persuasion is of the very highest, namely an understandable concern for the young witness’s welfare. But for that concern, one would expect it to be common ground that there was a need for the witness to attend for cross-examination, since she denies in her evidence the very thing which the Local Authority seek to prove, namely that both she and her sister have been sexually abused by their father.
  3. To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.

Judicial appointment is not a licence to be gratuitously rude

 

You may recall His Honour Judge Dodds, who has not had the best time with appeals in the lifespan of this blog.

http://suesspiciousminds.com/2015/02/02/sentence-first-verdict-afterwards/

where he made full Care Orders at the first hearing, when none of the parties were expecting that or asking for it.

 

and

http://suesspiciousminds.com/2014/07/02/go-on-then-appeal-me-i-dare-you/

 

Where the Judge refused to assess family members largely because they were in Poland and offered the remarkable sentence of “If you don’t like it, there is always the Court of Appeal”

 

And this is the one that I’ve been waiting for.

Re A (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed143386

 

This was an appeal, arising from the conduct of a hearing. The Judge was asked for several things at that hearing. The mother and father both applied to discharge the Care Order and for more contact. The child SA, asked for DNA testing, saying that she had always had doubts that the father was really her biological father.

It is quite a short judgment, and practically every line of it is remarkable. This is the sort of thing that people who disapprove of the family justice system can rightly point to and say “This is the sort of thing that goes on”

In this case, the appeal was probably the easiest that the Court of Appeal have ever had to deal with – every single aspect of the hearing was wrong and improper. So in this case, the system screwed up royally, but then worked because an appeal put things right. But what we can never know is how many times something a bit like this happens and the advocates don’t appeal. Either they can’t get funding, or their client doesn’t want to, or they take the view that appealing a Judge who approaches things in this way is going to be counter productive in the future  (the “don’t poke an angry bear with a stick” argument)

 

It is a terrible indictment and this case makes sorry reading. The only consolation really is that the child herself was not in Court.

 

5. The importance of and the right of children to know the identity of their biological father has long been recognised and has only recently been restated by the President in Re Z (Children) [2014] EWHC 1999 Fam. Para 5. An application under section 55A is the proper procedural route in order to determine the parentage of a child. It must therefore have caused Ms Roberts and Mr Saunders (who acted on behalf of the Local Authority), considerable consternation when the judge, having dismissed out of hand the father’s application to discharge the care order as, “Factious” and the mother’s as, “An affront”, turned to Mr Saunders and told him that in relation to the section 55A application, “You may want to put your crash helmet on”.

6. Mr Saunders and Ms Roberts valiantly tried to explain to the judge what they sought and why they sought it, only to be met with evermore intemperate responses from the judge. In relation, for example, to the cost of the DNA testing, Ms Roberts told the judge that Legal Aid would paid for it. The response was, “You can pay for it if you want, I will let you. In fact, I am half minded to make an order that you do so”. Judge Dodds continued, “If she (meaning SA) told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?” He continued: “The lunatics have truly taken over the asylum” and “For heaven sake, in this day and age especially, just because the lunatic says, ‘I want, I want’, you do not have to respond by spoon feeding their every wish”. The judge went on to comment, “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”.

7. Finally, the judge in dealing with the actual application said, “There is not a syllable of evidence before me to warrant making the order you seek and so it is refused”. He went concluded:

“At lest there be a nanosecond’s doubt as to the application for an order under section 55A of the Family Law Act 1986, I am nothing short of appalled that it was thought that public funds could be expended upon such nonsense. And I tell you I am within a hair’s breadth of ordering that any costs incurred in respect of that application should be paid by you.”

 

 

The Appeal Court, as indicated earlier, had no trouble in deciding that the appeal had to be granted and the case sent back to a different Judge for re-hearing.

 

9. In my judgment, it is not necessary to consider the merits of the application itself. The submission that the hearing amounted to a serious procedural irregularity is unanswerable. Each of the points made in the skeleton argument are made good when the transcript is considered. The judge did not allow proper submissions to be made; the premature threat of costs inevitably, and rightly, gave the impression that the judge had a closed mind in relation to the application and no proper reasons were given for the decision to dismiss the application. The manner in which the hearing was conducted went far beyond anything that could be characterised as robust case management.

10. In the event, neither parent attended the hearing, fortunately, although not surprisingly, SA was not there either. Even so, the unrestrained and immoderate language used by the judge must, I am afraid, be deplored and is wholly unacceptable. Such bombast can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent and, rightly, as though their lay clients have been denied a fair hearing.

 

 

and

 

The transcript of the hearing makes embarrassing reading and I hope that Judge Dodds will read it for himself and be ashamed of his behaviour on that particular occasion. Appointment as a judge, at whatever level, is not a license for intemperate language or for being gratuitously rude to advocates and others appearing before you. Judge Dodds’ behaviour on that occasion was beyond what is permissible. It meant that there was a serious procedural irregularity. That particular hearing was not fair. I do emphasise that my remarks concern only that one particular hearing. However, this appeal must be allowed.

 

I am aware that the newspapers in Liverpool made enquiries about whether there was an investigation or complaint into judicial conduct as a result, and were told that there was not, because no complaint had been received.  One does not want to see judicial complaints made each and every time a Judge loses an appeal or gets something wrong, but you might think that an appeal judgment as serious as this might be a trigger for an investigation without a formal complaint being made.

 

[In case you are ever before a Court and this sort of thing happens, and I very much hope that it never does, there is a formal body who deal with complaints about judicial conduct, as a separate body to the appeal process which deals with the decision made.

 

http://judicialconduct.judiciary.gov.uk/making-a-complaint.htm

Let’s not bring politics into it

The case Re A and B (Prohibited Steps Order at Dispute Resolution Appointment) 2015 might have one of the dullest names concievable, but I’ll be very surprised if it doesn’t become rather newsworthy.  Wizardpc (regular commentator – you’re going to want to read this one)

http://www.familylawweek.co.uk/site.aspx?i=ed143473

Why?

Because fresh on the heels of the President of the Family Division telling us all that there’s nothing wrong with a father belonging to the English Defence League, we have a family Judge banning a UKIP Parliamentary candidate from bringing his children to election rallies. [And another family Judge overturning that on appeal]

It is a short judgment, so before anyone’s knees jerk too much, let’s all read it first.

The children are both under 10, this is an appeal from a decision of the District Judge in private law proceedings to make this order:-

i) By way of preamble, that the court held the view that it is inappropriate for young children to be actively engaged in political activities as they may be emotionally damaged by potentially hostile reactions from members of the public;

ii) By way of order, that neither parent is to involve the two youngest children actively in any political activity.

 

 

There were three older children who were not subject to these stipulations.

As a matter of law, can the Court do that? Well, section 11 of the Children Act allows the Court to set conditions about contact / time spent with a parent, and the powers are broad, or as here, a Prohibited Steps Order, where one parent can ask that another be prevented from doing something particular (almost anything) with their child – so long as they meet these three criteria

Is it a necessary and proportionate interference with article 8 right to family life?
Is it better for the child to make this order than to not make the order?
Is this the right order, considering that the child’s welfare is paramount.

So the Court has the legal power to make such an order – providing those tests are met. But can it be right to make such an order?

9. Procedure – The father says that:

i) The District Judge was wrong not to hear evidence or at least his full submissions in relation to the need for a prohibited steps order to this effect;

ii) The District Judge made incorrect assumptions about the factual basis for such an order;

iii) The District Judge wrongly dealt with the issue without the father having notice prior to the hearing as to her intention to consider making such an order;

iv) The District Judge did not give the father an opportunity to contend that the order was neither necessary nor proportionate.

10. The mother, who is in person, contends that 99.9% of parents would recognise that their children should not be involved actively in political activities and so the District Judge was acting sensibly and fairly when faced with a father who, she says, does not share that recognition. However, she accepted before me that the father had not been given the opportunity to argue his case before the District Judge and that he made it plain throughout that he did not agree to the order that the District Judge was proposing. The mother could plainly see the difficulties that arise in seeking to upholding the decision of the District Judge.

11. The Cafcass report – The Cafcass report is in the bundle. The following parts of it are particularly relevant:

i) The only mention of political activity in the report is at D5. There the Cafcass officer stated: ‘The mother has expressed concerns that the father’s political views and value base are influencing the children – particularly C who can be racist and homophobic. The father has allegedly enlisted the support of his children to distribute UKIP leaflets when they have spent time with him’. That is the only reference to political activity within the report.

ii) The views of the children, which are very fully explored by the Cafcass officer, do not record any complaint by them in relation to their father’s political activities or their involvement with them;

iii) The children are reported as having some other concerns about their father’s method of disciplining them but were observed by the Cafcass officer to be happy in their father’s company. The Cafcass officer stated at paragraph 27 that ‘it is my view that, on the whole, the children enjoy the time they spend with their father and this needs to be supported…my observations of the children with their father were positive’.

12. Statements – Both parties provided brief statements for the hearing before the District Judge. The father’s statement is dated 20th November and the mother’s dated 24th November 2014 (the day of the hearing before the District Judge). There was no application in relation to the father’s political activities or the children’s involvement in them and therefore the father’s statement makes no mention of this. The mother states in her statement at C8: ‘I would like it if he respected my wishes and promised the court that he will not use the children directly in any of his political activities. I would be prepared to abide by the same promise if he so wished. Although it is apparent that the court has failed to protect certain of the children from brainwashing, since [C] has been campaigning for UKIP, is a member of UKIP youth and [E] has also attended UKIP rallies and is intent on joining UKIP youth’.

13. That is as far as any prior notice of this issue went. The father saw the mother’s statement at court. He did not have any other notice prior to the hearing that this issue would be raised. It is therefore significant to note that there was no evidential material relating to any involvement or harmful consequences for the two younger children in relation to the father’s political activities.

It does appear that this issue was somewhat bounced upon the father – did he have proper opportunity to challenge it, and was there proper evidence before the Court as to political activity being harmful?

If one is saying that political activity is harmful to young children generally (as opposed to just toxically dull) then there a lot of babies who will be saved from being kissed by George Osbourne/Ed Balls/Danny Alexander (choose which candidate you most dislike / least admire).  And to be perfectly honest, if it would remove any possibility in the future of the horror that was Tony Blair in his shirtsleeves drinking tea out of a mug with a picture of his kids on it – then, y’know, I can see an upside.

 

The worry with this is that a decision was made about whether the Court cared for the particular brand of politics espoused by the father – which is getting us into Re A territory to an extent. We see mainstream politicians regularly dragging their kids out for the cameras.

14. What happened at the hearing? Both parties appeared in person, that is without legal representation. I have studied the whole of the transcript of the hearing. I made sure that I read it through twice. Both parties were in person and the District Judge was faced with a difficult task in relation to parties who held strong views. I do not in any way underestimate the task that befell the District Judge and, by this judgment, pay tribute to her experience and exceptional industry. She knew this case well having been involved in it previously.

15. The following are some of the key parts of the transcript :

i) At page three there is the following: ‘THE DISTRICT JUDGE: Yes, all right. One of the other issues she raises, and I know there is another issue in your statement that you want to raise in a minute, [father], I have not forgotten this, one of Mother’s concerns is, and she is quite happy to promise in the same way but she does not like the fact that the boys are being involved in your UKIP activities and she would like you to give an agreement that you will not involve them in your UKIP, for instance, C campaigning in [X town] recently she mentions. How do you feel about that?…FATHER: I’m totally unwilling to have her dictate anything what I’m doing with the children in that respect….THE DISTRICT JUDGE: She said that she would be prepared not to involve them in any political activities as well….Father: Well, she does. She indoctrinates them, you know, so I just don’t think this is on. C is very keen; he gets a lot out of it’.

ii) At page 4 the District Judge said: ‘I can understand where you are coming from because you are not a UKIP supporter, yes….MOTHER: Or any political party. Is it right for a child of A’s age to be going into school saying, “What did you do at the weekend? I’ve been to a UKIP garden party”, and the other kids go, “Hey, what?” they have no idea what she’s talking about. They shouldn’t know what she’s talking about because none of them at that age should know anything to do with politics. Isn’t that to do with abusing their childhood if they’re being pumped full of whatever political party?

iii) At page 5 – ‘THE DISTRICT JUDGE: As I have said, children will always be very conscious about what their parents’ political views are. Your political views may well be at the other end of the spectrum. MOTHER: But I wouldn’t dream of taking them to any political meetings or encourage them to leaflet on the streets. C was egged by somebody. Is that right? …THE DISTRICT JUDGE: Is that right? Was C egged by somebody?…Father: He was exceedingly amused to have an egg land somewhere near his feet on one occasion. MOTHER: I do not want the younger children put in that position.
iv) Also on page 5 – ‘MOTHER: And what about the younger children— THE DISTRICT JUDGE: No, I am just thinking—MOTHER : —who go into the classroom— THE DISTRICT JUDGE: Yes. MOTHER: Think about the teachers then who have to pick up the pieces, so and so’s brother was egged at the weekend. The other children are too young to be worried about this and it’s confusing for them’.

v) At page 8: ‘THE DISTRICT JUDGE: What have you been doing with A and B at the moment so far as UKIP is concerned?…FATHER: A and B have sat on the van while a couple of the others get out and do some leafleting, that’s happened about once. Then there was a garden party where they played in the garden a long way from a congregation where there was a speech going on, so they were happy and they were supervised and they didn’t feel embarrassed and we all left together. So they were not put in any sort of awkward or inappropriate situation and I wouldn’t do, of course…THE DISTRICT JUDGE: I mean what I would like to do is to make a neutral order which is that neither of you should involve A or B in your political activities. Now, going to a garden party, I do not regard that as political activity, that is a garden party, all right? Probably sitting on the van is not but what I am talking about is they should not be going out leafleting and actively taking part….FATHER: Well, I’m just amazed, I’m just amazed— MOTHER: [Inaudible – overlap of speech] A was encouraged to hand out a leaflet and somebody went up to her and just tore it up in her face. She’s a tiny, little girl. This is really mentally challenging for them. THE DISTRICT JUDGE: Yes, look. Father, I am not expressing any political views, it is not appropriate for me to express any political views but there are a lot of people in this country who have very strong feelings about UKIP and I would not want to expose your two youngest children to emotional harm because of how people might react to them if they get involved. That is how I am looking at it, because you must accept there are a lot of people who are dead against UKIP, you understand that?

vi) At page 9 and 10 – ‘THE DISTRICT JUDGE: I am worried about somebody throwing – all right, C is 15, if he is happy to get involved in UKIP then he is old enough to decide that but I am not happy with A and B being involved in political activity to the extent that somebody in front of their faces rips up a poster. That is emotionally damaging for them. That should not be happening to two little girls and I do not care whether we are talking about the Labour party, the Conservative party, UKIP, the Liberal Democrats or whatever. That should not be happening to two little girls…FATHER: Well, that’s three of us agreeing then, isn’t it?…THE DISTRICT JUDGE: Yes….FATHER: So what’s the problem? I don’t see—…THE DISTRICT JUDGE: So I am going to make an order that neither of you are to involve the two younger girls actively in political activities, so I am saying to you garden party is not a problem, sitting on the van is not a problem but they are not going out actively taking part in your political activities because there are a lot of people out there who do not like UKIP and probably a lot of grown ups will not think about the impact on children’ .

16. There was no formal judgment given. The matter was dealt with as part of the discussion that took place at the hearing. There was no evidence given and the underlying facts were disputed, in particular, the extent to which the father does involve the children in his political activities and the extent to which this might have caused harm to them. The father wished to advance in full his arguments but the matter was cut short by the judge making what she perceived as a ‘neutral order’.

 

 

The Judge hearing the appeal, His Honour Judge Wildblood QC came to these conclusions  (underlining mine, emphasising that the three ingredients I spoke of earlier weren’t present. That, combined  with lack of  fairness to the father in the procedure meant the appeal was successful and the order discharged)

28. My difficulties with this case are:

i) The father had no notice before the hearing that this issue would be raised as one that was argued, let alone governed by orders.

ii) The factual underlay behind the orders is disputed and there was no written or oral evidence before the court that related to the issues before it.

iii) The contentions that the mother raised in support of the order were contested and the father did not have an opportunity to answer them. If he was not to have notice of this application for an order and was not to be allowed to give evidence about it he was entitled to the opportunity to make full submissions about it. He expressed the wish to advance his side of the story on the issues that arose and did not get it.

iv) The Cafcass report did not raise this as an issue that required intervention and there was no professional evidence before the court that supported the necessity for such an order.

v) This was an important issue in the context of this case. The order made was a prohibited steps order. Such an order should only be made for good (and, I add, established) cause and for reasons that are explained as being driven by the demands of the paramount welfare of the children. I do not think that such orders can be justified in contested proceedings on the grounds of neutrality and I do think that the decision must relate to the specific children in question. In Re C (A child) [2013] EWCA Civ 1412 Ryder LJ said: ‘A prohibited steps order is a statutory restriction on a parent’s exercise of their parental responsibility for a child. It can have profound consequences. On the facts of this case, without commenting on the wisdom of any step that either parent took or intended to take when they were already in dispute, and in the absence of an order of the court, father had the same parental responsibility as mother in relation to his son. Once the order was made, he lost the ability to exercise part of his responsibility and could not regain it without the consent of the court. That is because a prohibited steps order is not a reflection of any power in one parent to restrict the other (which power does not exist) it is a court order which has to be based on objective evidence. Once made, the terms of section 8 of the Children Act 1989 do not allow the parents to relax the prohibition by agreement. It can only be relaxed by the court. There is accordingly a high responsibility not to impose such a restriction without good cause and the reason must be given. Furthermore, where a prohibition is appropriate, consideration should always be given to the duration of that prohibition. Here the without notice prohibition was without limit of time. That was an error of principle which was not corrected by an early return date because that was susceptible of being moved or vacated unless the prohibition also had a fixed end date. The finite nature of the order must be expressed on the face of the order: R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin) at [38] per Munby J’.

vi) Further, the District Judge was being asked to make orders that were invasive of the Article 8 rights of the father and of the children to organise their family lives together without interference by a public authority unless that interference was necessary and proportionate. That issue was not examined.

vii) Oral evidence is not always necessary (see Rule 22.2 of The Family Procedure Rules 2010). However there must be some satisfactory basis for an order if it is to be made. Otherwise the justification of the order is absent.

29. The form of the order made – The order that was made merely states that ‘neither parent is to involve the two youngest children, A and B, actively in any political activity’. I am personally in no position to cast stones on the drafting of injunctive orders in the light of what was said in Re Application by Gloucestershire County Council for the Committal to Prison of Matthew John Newman [2014] EWHC 3136 (Fam) but I think that there are very real difficulties about the form of the order that was made in this case.

30. By reason of Rule 37.9(3) of The Family Procedure Rules 2010 it is a matter of discretion as to whether a prohibited steps order should contain a penal notice (In the case of …a section 8 order…the court may’…attach a penal notice). I am concerned that this order did not make plain the consequences of any disobedience, the duration of the order or the activities that were prohibited. I realise that the District Judge said that garden parties would not be covered but I think that, if this order was ever to be enforceable in any way, it needed better definition. At a DRA there would have been very little time to examine that, I appreciate. District Judges lists are stretched to snapping point.

31. The conclusion that I have reached, therefore, is the decision of the District Judge was procedurally irregular and cannot stand. I therefore give permission to appeal and allow the appeal. I direct that there be a rehearing of the issues that have been raised in this appeal before me. Paragraph three of the order of the District Judge is discharged.

 

 

I think, regardless of what you might think about UKIP, the appeal was correct. The issues had not been properly explored and the father had not had proper opportunity to challenge what was a very unusual request, made at a hearing which was really only intended to set up the necessary directions to get the case to a substantial hearing.

I already have fond thoughts of His Honour Judge Wildblood QC, having read a lot of his judgments, and this made me think even better of him – this is very nicely done.

34. Finally, I will release this judgment on Bailii. By this decision I mean no offence at all to the very experienced District Judge for whom I wish to record my appreciation and thanks. In choosing my words when explaining why I am allowing this appeal I hope that I have displayed an understanding of the motto ‘do as you would be done by’ – who knows, tomorrow another court might hear an appeal from me.

 

[This case shows some of the risks of jigsaw identification – I’m sure I could work out UKIP Parliamentary candidates in the West country with five children and identify this family very swiftly. I’m sure others can do the same, and probably will. Not here in the comments though, please. ]

 

6. Publication – An officer of the press is present in court. I have referred her to Rule 27.11 of The Family Procedure Rules 2010 and also to PD27B of those rules. I explained the law to her in the presence of the parties and adjourned so that she could read the Practice Direction and the rule. She was referred to Section 97(2) of The Children Act 1989 and also to section 12 of the Administration of Justice Act 1960 and confirmed her understanding of the limitations on any reporting of this case. I am not going to explain those limitations in this judgment. If any person, organisation or party is thinking about making any aspect of this case public, they should inform themselves of those limitations. If in doubt, an application should be made to the court because breach of the law would amount to contempt which would be punishable by imprisonment, a fine or sequestration of assets.

7. Anonymised information about this case has already appeared in the press today. The father expresses his views in the press reports, without revealing his identity other than as a father and UKIP candidate. That being so I have alerted the Judicial Press Office about this case and of my intention to place this judgment on the Bailii website under the transparency provisions. I think it essential that there should be a clear and immediate record of the basis of my decision. That being so I have had to type this judgment myself immediately at the end of the hearing under pressure of time.

Follow

Get every new post delivered to your Inbox.

Join 3,203 other followers