Tag Archives: article 6

When is immediate not immediate?

Posted on November 14, 2018 by suesspiciousminds

 

Removal of a child subject to a Care Order from a parent – if you are a parent, or parent’s lawyer this case gives information and advice about how you might stop that, and if you are a social worker or Local Authority lawyer this case tells you that it is FAR LESS simple than you might imagine, and you’d better be ready to show your working.

 

The High Court in 2014 in Re DE 2014 told everyone that their previous thinking that under a Care Order a Local Authority had the power and authority to remove a child if they wished and the remedy of the parents would be to apply to discharge the Care Order if they disagreed was WRONG.

 

A Care Order gives the Local Authority the legal POWER to remove a child without a further Court hearing. The case law says rather differently though – that just because you have that POWER doesn’t mean you are free to exercise it as you see fit. There are hoops to jump through.

https://suesspiciousminds.com/2014/06/04/an-answer-to-an-important-question-you-didnt-know-you-had/

 

And that effectively, unless a situation arose that was the equivalent of a situation that would allow a Court to make an Interim Care Order (the child’s safety requires IMMEDIATE SEPARATION) then there was instead a long and careful process to go through before the Local Authority could trigger a removal under a Care Order.

 

To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

 

While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.

In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

 

The Court of Appeal have just considered, for the first time, a scenario post Re DE 2014 where a Local Authority removed under a Care Order, saying that it was an emergency, a situation akin to an ICO triggering event.

The parents disputed this, and an application to discharge the Care Order (and somewhat oddly an inherent jurisdiction application) was lodged. The Court at first instance decided that the LA were entitled to remove in the interim and arguments and decisions about whether that would be permanent would have to wait for the final hearing of the application to discharge

The parents appealed

Re K (A child) 2018

https://www.bailii.org/ew/cases/EWCA/Civ/2018/2512.html

 

I think there are three points of interest in this case

 

  • The emergency/non-emergency point, and how hard the LA has to work to show their full consideration of interim removal under a Care Order
  • Whether the inherent jurisdiction is the right route (hint, no)
  • And finally, the position where a Local Authority had, and declined, the opportunity to cross-examine father about allegations against him and a Judge went on to in effect make findings against the father.

 

 

I’ll deal with those in reverse order.

 

 

 

Failure to cross-examine father

 

44.The judge made findings against the mother to the effect that she was in breach of the written agreement. In particular, the judge accepted (as he was entitled to do) the evidence of PC Tonse, that the mother had told her she had been the victim of two previous assaults at the hands of the father. That she had said this was denied by the mother, who gave evidence and was cross-examined.

 

 

45.At the hearing, counsel (Mr Richardson for the father) offered to call the father in order for him to be cross-examined about the events of 30 December and, no doubt, in relation to the two earlier alleged incidents. No party required him to be called.

 

 

46.Having heard and seen both the mother and PC Tonse give oral evidence, in my judgement, the judge was undoubtedly entitled to conclude that the mother was not being honest and to accept the police officer’s account of what the mother had said to her in the flat in the early hours of the morning. The judge, however, went on (without having heard evidence from the father) to conclude at paragraph 13:

 

 

 

“So we have three assaults in three weeks. [The mother] is, unfortunately for her, telling the truth when she said that the police officer and therefore 30 December is not an isolated incident in the relationship between her and [the father]… So there was that; there was direct contact on at least, to my mind, three known occasions during which [the mother] was assaulted.”

47.And At 23:

 

 

 

“I have already found that there has been at least three incidents when he has assaulted her. There may have been, and I do not know, other occasions when he has come to the property.”

 

The Court of Appeal decided

 

 

 

71.The judge necessarily had to make findings as to what occurred on the night of 30 December. He found that the mother had seen and been assaulted by the father on three separate occasions. It follows from that finding, that the mother had not told either the police or the local authority about the two earlier occasions of violence. The judge further found that the mother’s written and oral evidence to the court was untrue and the product of her realisation of the consequences of her account of the events given by her that evening to the police.

 

 

72.In order for the judge to reach these damning findings of fact, he was required to consider all the available evidence. In my judgment, a serious error was made by the local authority in failing to cross-examine the father. It is not enough, metaphorically, to shrug the shoulders and say: “He would say that wouldn’t he?” of the father’s statement in support of the mother’s account. The father’s evidence was directly relevant. More serious still is that the judge made specific findings of assault against the father, a man who was both a party and a witness, without hearing his evidence, in circumstances when he was available and willing to give evidence and to be cross-examined. In my judgment, this was clearly unfair and a serious procedural irregularity.

 

 

73.Almost by a side wind, there is now a finding of fact that this father assaulted the mother on three separate occasions, all within a matter of weeks of each other, when a non-molestation injunction was in place, and at a time when his wife was being given (on the local authority’s case) one last chance to bring up their child. It is rightly difficult for a party to go behind a finding of fact made against them by a judge after a trial where a party has been represented. But as a consequence of the findings, all future assessments of this father, and any decisions made in respect of either K (and indeed any child this father may have in the future) will have these serious findings as their starting point. Mr Richardson submitted that, in some way, the findings carried less weight because this was an interim hearing and could be, therefore, reviewed at a final hearing; I am afraid I cannot accept that to be the case.

 

 

74.Having read and reread the judgment, it is abundantly clear that this judge was making positive findings that this father had assaulted the mother on three separate occasions, and indeed all the evidence available makes it absolutely clear that, from 7 March onwards, the local authority has proceeded on precisely that basis. These findings were made, without the father having an opportunity to give evidence in circumstances where he was present in court and willing to go into the witness box and expose himself to cross examination.

 

 

(Being old-school, I always operate on the basis that if you are offered the opportunity to cross-examine a witness and decline to do so, you are accepting the account they give. You can’t call someone a liar in submissions if you didn’t have the decency to call them a liar to their face and give them the opportunity to deny it)

 

The inherent jurisdiction

 

33.As already recorded, K was the subject of the full care order. In those circumstances, the court was bound by the jurisdictional principles which relate to care orders and care planning. That means that the inherent jurisdiction cannot be used as a means of diluting, or circumnavigating, a local authority’s right to exercise parental responsibility following the making of a care order under section 33 and subject to section 34(4) of the Children Act 1989.

 

 

34.That this is the case could not have been stated more clearly than was done by Lord Nicholls of Birkenhead in Re: S (Minors) Care Order Implementation of Care Planning; Re: W (Minors) Care Order Adequacy of Care Planning [2002] UKHL 10; [2002] 2 AC 291; [2002] 1 FLR 815 at 23:

 

 

 

“While a care order is in force the court’s powers, under its inherent jurisdiction, are expressly excluded: section 100(2)(c) and (d). Further, the court may not make a contact order, a prohibited steps order or a specific issue order: section 9(1).”

35.Also, more recently in Re: W (Care Proceedings Functions of Court and Local Authority) [2013] EWCA Civ 1237; [2014] 2 FLR 431 Ryder LJ said:

 

 

 

“71. It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued.”

36.Whilst the court has jurisdiction under its inherent jurisdiction to prevent the removal of a child (subject to a care order), the House of Lords made it clear in Re: S that an injunction under the Human Rights Act 1998 (HRA 998) can be utilised in order to achieve a similar outcome.

 

(I think there’s a missing ‘no’ between has and jurisdiction in para 36….)

 

37.From paragraph 22 onwards of Re: DE, Baker J traced the jurisdictional route to an application for an injunction under HRA 1998. Baker J noted that other potential remedies (for example, judicial review) do not ordinarily provide adequate protection for a family when a local authority is planning to remove a child, and that, as a consequence, the appropriate route will be for an application to be made under section 7 of the HRA1998.

 

 

Now, the emergency issue

 

When the Judge made a Care Order, placing K at home with the mother, the Judge said this

 

9.The judge concluded at 73:

 

 

 

“For all those reasons, I consider that the welfare of [K] demands that, if at all possible, he stay in the care of his mother and the wider family. If at all possible, it requires his parents to stay away from alcohol and it requires his parents to stay away from each other. That is not an easy thing to ask of anyone. 74. You have gone a long way down that road. It has been said that your motivation is caused by compulsion. This is arguable but I know many psychiatrists who would say that it does not matter what causes the motivation, motivation is important and the important thing is that it sticks. I am going to be making a Care Order subject to many conditions, subject to written agreements, subject to court orders and subject to you being honest not only with yourselves but with each other, with [K], with [H] and with the local authority. I believe you can do it but if you do not there is only one place where this matter will go and you will have both lost your son.”

 

This raising three issues of significance – being abstinent from alcohol, the parents staying away from each other, and the mother being honest with professionals.

 

 

What happened was that the child, K, became unwell and was admitted to hospital. The father became aware of it and went to mother’s home at about 2.00am on 30th December. There was an allegation of an altercation and a claim that father assaulted mother, knocking her unconscious. The police attended and took a statement. The mother told the officer that she had consumed three beers.

 

 

20.During the course of all this, and whilst still at the mother’s house (according to PC Tonse’s notes), the mother told her that the father had assaulted her 2 weeks previously and then again a week later, on which occasion he had punched her nose causing it to bleed. These two instances had not been reported to the police. The mother, as recorded by PC Tonse, had said “that she would not have called for the police tonight had it not been for her son, who she felt was at risk due to the father’s aggressive behaviour.” The officer’s focus, not unreasonably given the view of the paramedics, was on the assault. The mother’s focus, also not unreasonably, was on her baby. Eventually, it was agreed that the mother and K would go by ambulance to hospital.

 

 

21.When K was examined in hospital he was diagnosed as suffering from meningitis. He was admitted and remained in hospital for 10 days. The mother stayed with him day and night for the whole period of his stay in hospital.

 

 

22.A note of the doctor is recorded in the judge’s judgment:

 

 

 

“Talked to mother. Had two beers last night. First time for a long time. Father came to her house as worried about son. Mother said she asked him to leave but he hit her and she called the police.”

23.On 2 January 2018, the local authority was informed (by what means is unclear) that the mother and K were in hospital. The mother that same day was handed a letter entitled “Notice of intention to remove [K] from your care on or after 5 January 2018”. The letter referred to District Judge Alderson’s judgment (referred to above) and the written agreement, before going on to say:

 

 

 

“Due to the significant risk posed to [K] by you not being abstinent from alcohol and from other domestic violence perpetrated on you by [the father] and any contact between [the father] and you, in relation to your failure to inform the Local Authority or the police of at least two occasions in December 2017 when you subsequently alleged to the police on 30th December 2017 that you had been subjected to domestic violence from [the father], the Local Authority has determined that it is necessary to remove [K] from your care to foster care and that there is no other means of safeguarding him.”

24.According to a statement, filed upon the direction of this court on 7 June 2018, the local authority say that they first became aware that K had been admitted to the Whittington Hospital on 2 January. At about 13.30 that day, the mother was spoken to by the duty social worker, and was told at the hospital that same afternoon that K would be taken into foster care upon his discharge.

 

Without labouring the point, the triggering incident happened on 30th December (the day before New Years Eve) and the Local Authority found out about it on 2nd January, the next working day, and issued notice that they would be taking K into foster care when he was medically fit for discharge from hospital.

The LA took the view that they had learned of the mother drinking alcohol, of father coming to the home and assaulting mother perhaps on three occasions, and of a lack of honesty in mother telling them about the earlier incidents, and given what had been said by the Judge, considered that this was an immediate safety risk (if the child were to go back to mum after discharge from hospital)

 

The parents argued otherwise.

 

40.The local authority and the child’s guardian each submit that the appeal should be dismissed. The local authority submits that the issue at the hearing was to decide whether K’s welfare demanded “immediate separation”. They submit that, given their view that instant removal was required, the guidelines contained in Re: DE had not been engaged. For example, whilst they submitted that the 10 days’ notice period provided for in the written agreement had not been complied with, that was acceptable given that the local authority considered the case to be an emergency.

 

At the hearing to consider whether the child should be returned to mother in the interim (in effect whether the LA were wrong to have removed in the interim)

 

48.The judge concluded that K was at serious and immediate risk of harm as, he said, nothing could be put in place which would protect him from his father’s behaviour. At the request of counsel for the father, the judge went on, in the briefest of terms, to consider the welfare checklist. In relation to any change in circumstances, the judge noted that this was “a big change in the circumstances for [K]” but that it was a “proportionate approach”.

 

 

49.With respect to the judge, in my judgment, such a bland recording, insufficiently reflected the reality of what was happening to K. K had never been apart from his mother. All those involved throughout his life to date accepted unreservedly that the mother’s care of K was excellent, as was their attachment. At no stage had the local authority sought to limit the mother’s care of K whilst he was in hospital, which was at all times wholly unsupervised. Nowhere, in either the judgment or the local authority material, have I seen any indication of anyone considering the effect on this baby of removal from the care of his mother. K had been dangerously ill and was only starting to convalesce and to recover; then was discharged, not home to his mother and all his familiar surroundings, but to a strange place with only strangers around him. I say this to highlight why the protocol set out in Re: DE exists and should be applied in all cases.

 

 

50.In giving permission in this case, I directed the local authority to provide a statement setting out the manner in which they complied with the Re: DE protocol and, in particular, to provide full details of the involvement of the applicant in the decision-making process, and the details of the process by which the local authority – to use the words of Baker J in Re: DE – “rigorously analysed all the realistic options; considering the arguments for and against each option” prior to removing K from care of his mother. The local authority was further directed to exhibit all minutes and written recordings in relation to the decision not to return K upon his discharge from hospital, including the written records required under the Re: DE protocol.

 

 

51.The statement supplied by the local authority in response to that direction makes no mention of the case of Re: DE at all. It does not exhibit any minutes or written recordings in relation to its decision to remove; it does not explain how the mother was consulted, save to detail (by way of chronology) how the previously made decision was conveyed to her at hospital by the duty social worker.

 

 

52.Mr Parker, who has only recently been instructed on behalf of the local authority, acknowledged this to be the case and apologised to the court. The local authority could offer no explanation for the failure to follow the Re DE protocol other than to say that the local authority regarded the case as an emergency. Further, the local authority suggests that in granting permission to appeal and referencing “what is likely to be permanent removal” in respect of K, demonstrated an incorrect approach and incorrect analysis of the judgment on my part. The hearing was, they submitted, focused solely on K’s safety which required immediate removal, and the long-term plan was a matter for the application to discharge the care order. The local authority submit that it would have been premature for them to have engaged in any sort of Re: BS analysis as required by Re: DE, or indeed to “rigorously consider other options”. That, they say, could be done later.

 

 

53.I do not accept that to be the case. I would have found such a submission more convincing if it had not been patently clear from the papers that, from as early as 2nd January, the local authority had no intention of rehabilitating K to his mother once he had been removed.

 

 

54.The position as recorded on the order and confirmed orally to the judge at the hearing was that, far from consideration being given to K returning to the care of his mother, the local authority was forthwith considering placing him with a family member in Australia. This was confirmed only two weeks later in the care plan dated 21 March 2018. In addition, it is absolutely clear, by reference to the fact that the decision to remove K from his mother’s care was made the very day the local authority was informed of the crisis, that no consideration was given as to whether anything could be done to salvage the situation rather than the knee-jerk reaction of immediate removal.

 

 

55.During the course of the trial, those representing the mother sought to call and adduce evidence in respect of the quality of her care of K on a day-to-day basis, and particularly in relation to her exemplary care of him whilst he was in hospital.

 

 

56.The judge declined to hear any evidence to this effect. The judge said he was working on the assumption that the mother was able, in principle, to “look after the child”. It is because, he said:

 

 

 

“She allegedly had failed to keep to the written agreement and that she has put the child at risk. That is the issue. It is simple as that. It is a very easy, very short and very small issue.”

57.I do not agree.

 

 

The thrust is this – even if the LA assert that the circumstances are such that it is an emergency interim care order style scenario, they need to be able to evidence their decision-making process as to why this is the case, what steps they considered to manage the risk in another way, what efforts they made to communicate with the parents and if not, why not. They had to avoid a knee-jerk decision, and they had to avoid making a final decision that having removed in the interim, that was that.   (It was rather brave to claim that they hadn’t made any final decisions when it was said at the initial hearing that their plan was to consider placing the child with relatives in Australia…)

 

 

 

63.In my judgment, the absence of the availability of the guidance in Re: DE resulted in the judge having too narrow a focus and led to him failing properly to consider the wider issues. I note from Mr Richardson’s position statement at first instance that, without referring to Re: DE specifically, he urged the court to consider all possible options, an invitation declined by the court.

 

 

64.I am conscious of the submission made by both the local authority and the guardian that the court will approach “slow burn” or “gradual deterioration” cases somewhat differently from crisis cases. That is undoubtedly right. But that does not mean, where a child has been living successfully at home under a care order, that following a crisis that child can be unilaterally removed by the local authority without any of the protective processes enumerated in Re: DE having been carried out.

 

 

65.In the case of a true emergency, once the child in question has been removed there should, thereafter, be a rapid and thorough implementation of the applicable parts of the Re: DE protocol without having to wait for an application to discharge the care order being made. This is with a view to seeing whether the child can be returned home with different or further support or supervision pending a final hearing. It remains of considerable concern to me that, notwithstanding my order, no evidence has been produced in relation to the decision-making process in this case. I can, therefore, only conclude that the decision was made rapidly and has not been reconsidered since.

 

 

66.One of the things that went wrong in the present case was the delay in the matter coming to court – some 7 weeks. In my judgment, applications such as the present, properly brought under the HRA 1998, should be brought before the court with the same speed and urgency as an initial application for an interim care order where removal of a child is sought. Each application involves the proposed removal of a child from his or her home and (it is accepted by the local authority) the test for immediate removal is the same in both cases, namely: “does the child’s safety demand immediate separation?”

 

 

67.All attempts should be made to adhere to this, although I fear this may be a counsel of perfection given that a parent’s only route to court (once a full care order is made) is via an application to discharge that care order, coupled with an application under the HRA1998. Unlike care proceedings, there is no automatic right to legal aid in discharge proceedings and inevitably there is, therefore, a delay as the application for legal aid for the parents is processed. It is to the immense credit of the mother’s solicitor that he managed to obtain legal aid for her application at the speed he did.

 

 

68.Further, when making a removal order in respect of a very young child and where it is inevitable that the final hearing will not take place for several months, the court must balance the effect of long-term removal of the child from its parents with the risk of short-term harm if he or she remains with him: Re: M (Interim care order removal) [2016] 1 FLR 1043.

 

The appeal was granted and the case sent for re-hearing. That does, of course mean that K has been separated from his mother since 2nd January and a decision still has not actually been reached about interim removal.

 

(I think… I couldn’t find any reference in the judgment to the child having been returned, just that the application for discharge is still proceeding and that there’s a directions hearing coming up about it.  It does seem that if you’ve appealed the judicial endorsement of interim removal successfully, the child ought to be at home whilst that discharge hearing takes place, but I can’t see from the judgment whether that’s what actually happened)

 

 

 

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Unlawful killing

Posted on February 20, 2018 by suesspiciousminds

 

 

 

A very peculiar case and one in which leading counsel puts self in harms way in order to demonstrate breach of article 6 and succeed in appeal.

 

Re R (Children) 2018

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/198.html

 

In this case, the central issue related to

 

On the evening of 2 June 2016 the mother of two young children died in the kitchen of their family home as a result of a single fatal knife wound to her neck; the wound had been inflicted by their father

 

The father was arrested and the two children were removed into foster care. The father faced criminal trial and was acquitted of all charges. There was a finding of fact hearing in the High Court and the father was made the subject of a finding that “he had used unreasonable force and unlawfully killed the mother”

 

He appealed that finding, successfully.

 

 

 

5.The mother’s death occurred in the context of an acrimonious relationship between the parents following the father’s discovery, in December 2015, that the mother was having an affair. The parties had separated and at the time of the killing the mother was living away from the family home where the two children still lived with their father. The mother returned to the house regularly to have contact with the children; the evening of 2 June 2016 was one such occasion. During the course of an argument between the couple in the kitchen of the property, the mother picked up a kitchen knife and slashed out with it so as to cause significant injury to the child A’s arm and to the back of the father’s head.

 

 

6.The father was able to usher A out of the immediate vicinity. He then struggled with the mother and at some stage gained possession of the knife. It was at that stage that the mother sustained the fatal wound to her neck. The knife caused a single but very substantial wound which severed most of the internal structures of the centre and right side of the neck including a complete transection of the right common carotid artery and internal jugular vein. As a result the mother experienced an immediate very substantial loss of blood causing her to collapse and die shortly thereafter. Cause of death was exsanguination due to the severity of the neck wound.

 

 

7.The father’s account, both during his criminal trial and before Theis J, was that he had done no more than was reasonable in the circumstances to protect himself and the children.

 

 

8.Although it is not my intention to descend to detail it is necessary, for the purposes of understanding an aspect of the father’s Article 6 appeal, to set out the terms of an account presented by his criminal defence solicitors to the experts in the criminal trial in a letter dated 2 December 2016 which reads as follows:

 

 

 

“He was holding the knife in his right hand by the handle. (Mother) came at him and he swung in a circular motion with the knife which connected with the left side of (mother’s) neck. The knife entered the neck at this point and went straight through the neck to the other side and in fact the tip was pointing through. The skin on the front of the neck was intact. The blade of the knife was facing [the father]. [The father] was still holding the knife in this position as the movement continued and he pushed (the mother) backwards whereby the knife was cut out of the throat as the blade was facing [the father]. The knife has come out of the neck/throat as (the mother) has fallen away. “

9.Again in very short terms, the significance of that account was, on the unanimous evidence of the expert pathologists called in the proceedings, that for the knife to go into the neck and be followed by the action of pushing the mother backwards causing the knife to slice forward and exit the neck, involved two planes of motion, whereas the shape of the wound on the mother’s body indicated a single continuous movement rather than two.

 

 

The father’s appeal was based on two major facets. Firstly, that the High Court had become very bogged down in criminal terminology when conducting the fact finding hearing (as a result of the word ‘unlawfully’ in the threshold finding sought, the defences to lawful killing – self-defence and loss of control, played a significant part in the case) and secondly that the timescales set down by the High Court for the preparation of father’s case were so short and unrealistic that it put the father in the position of having his very skilled and experienced representative feeling that she was not in a position to properly put his case.

 

 

(Being fair to the LA here – because threshold requires that a parent’s behaviour which caused the harm was ‘not being what it would be reasonable to expect’, they may well have concluded that the father if asserting that he acted in self-defence which was reasonable might have a basis for concluding threshold was not met and felt that they needed to establish a higher level of culpability on his part. It is very very tricky drafting threshold in a set of circumstances like this. I think I might have tested the water to see if something along the lines of “The children were exposed to an extreme incident of violence leading to the violent death of the mother, which would have been extremely frightening and distressing and which will be likely to have lifelong implications for their mental and emotional wellbeing” might have been accepted, but it is a lot easier to make that call in the benefit of hindsight)

 

The criminal bit first

 

 

 

 

31.For the appellant, Miss Venters’ response to the court’s interjection was to state firmly and clearly that the Family Court should not involve itself in analysis based upon the criminal jurisprudence. In particular, by reference to this case, she submitted that it was unnecessary and impermissible for the Family Court to make findings of “unreasonable force” or “unlawful killing”.

 

 

32.Miss Janet Bazley QC, leading Miss Catherine Jenkins, who both appeared below, pointed to the terms of the local authority’s pleaded case as set out in a “final threshold document and schedule of findings” dated 26 June 2017:

 

 

 

“On 2 June 2016, the father killed the mother by cutting her throat…he used unreasonable force or, alternatively, his actions were reckless in all the circumstances.”

 

Miss Bazley informed the court that the local authority had not intended to establish a link between the findings that it sought and any test within the context of criminal law. Miss Bazley pointed to the formal response to the proposed findings made on behalf of the father which asserted that he had used “reasonable force” and, for the first time, brought in criminal law concepts which, as the trial progressed, lead all the parties to address the issues in the case by reference to the relevant criminal case law.

33.However, in the local authority Opening Note the following appears:

 

 

 

“The local authority’s current position is that the preponderance of the relevant evidence is that the father was behind the mother when he caused the fatal injury. If the court concludes that this is more likely than not to have been the case, the local authority will invite the court to conclude that the father killed the mother deliberately.”

 

Miss Bazley submitted that it is permissible for the Family Court to make a finding that killing was “deliberate”. She is explained that at no time did the local authority seek a finding of “murder”. However, Miss Bazley later accepted that the local authority’s “closing submissions” document includes the following under the heading “conclusion in relation to the other findings sought”:

 

“In relation to the mother’s death, the local authority invites the court to conclude on all the evidence, that this was an unlawful killing, probably pre-meditated or otherwise carr[ied] out in anger. The court is respectfully invited to firmly reject the father’s assertion that he acted either instinctively (an accident), or in self defence, using reasonable force.”

34.More generally, and in response to this court questioning why it was necessary for the Family Court to establish precisely how the mother was killed, Miss Bazley submitted that detailed findings were important because of the difference they might make to the welfare determination that the court would have to make at the end of the family proceedings.

 

 

35.Miss Bazley submitted that it was appropriate for the Family Court to use the word “reasonable” in a non-legal manner. She also asserted that the local authority had not sought a finding that the mother’s killing had been “unlawful”. Such a finding, she submitted, was not necessary in the context of the family proceedings.

 

 

36.On the facts of this case, as found by the judge, any reference to the father acting in “self defence” evaporated as the judge rejected his account. Thus, whilst the local authority accepted their part in the collective error by the advocates in encouraging the judge to consider the criminal case law as to self defence, and accepted that the judge should not have made a finding of “unlawful” killing in the family proceedings, Miss Bazley submitted that the detailed factual findings of the judge should stand. She submitted that the references to criminal law, “unreasonable force” and “unlawful killing” were extraneous for the purposes of the Family Court process and they could be struck out from the judge’s judgment and findings without the need for a re-trial of the factual evidence.

 

 

37.For the children’s guardian Mr Malcolm Chisholm, who also appeared below, argued that, as the father’s case was that he was defending himself from an attack by the mother, a finding as to the degree of force used was important and would heavily influence the determinations about the children’s welfare that the Family Court would, in due course make. Mr Chisholm accepted that it was neither necessary nor helpful for the Family Court to analyse these issues by reference to parallel provisions in the criminal law, or, for that matter, the civil law (as for example in Ashley v Chief Constable of Sussex Police) [2008] UK HL 25). Mr Chisholm accepted the court’s observation that, in contrast to criminal or civil proceedings, the focus of the Family Court is not on the adult, or the need to establish a finding of culpability against him; the Family Court’s focus is upon the children and their future welfare. Put shortly, Mr Chisholm said that the question for the Family Court is “is he safe or is he unsafe?” Detailed findings of fact are therefore necessary to determine, for example, whether an individual has over reacted or whether they have been honest and are reliable.

 

 

38.Like Miss Bazley, Mr Chisholm urged this court to strip out the judge’s extraneous references to criminal law and the attribution of criminal law labels to her specific findings, whilst leaving the detailed findings themselves standing. Mr Chisholm submitted that there was a real integrity to the judge’s fact finding judgment as a whole. The factual findings are supported by a wealth of reliable evidence and were, in his words, “absolutely rock solid”.

 

 

39.In response, Miss Venters submitted that the whole trial before the judge and the resulting judgment were tainted by reference at every point to the need to conduct the analysis of the factual evidence and make findings in a manner compatible with the criminal law. All parties now accept that that approach was wrong and, as a consequence, the judgment as a whole cannot stand.

 

 

Conclusions on that aspect

 

 

61.Although the father’s grounds of appeal implicitly accepted that the judge had been obliged to apply the relevant elements of the criminal law directly within her analysis of the evidence and in drawing factual conclusions, at an early stage of the oral appeal hearing the court questioned whether the criminal law should have any place in a fact-finding determination made in the Family Court. As a result of our intervention, all parties before the court readily accepted that the structure and substance of criminal law should not be applied in the Family Court and, to the extent that that had occurred in the present case, the court process and the judge’s evaluation had been conducted in error.

 

 

62.The parties were right to concede the point, and to do so without argument, as they did. The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare. Similarly, where facts fall to be determined in the course of ordinary civil litigation, the purpose of the exercise, which is to establish liability, operates in a wholly different context to a fact-finding process in family proceedings. Reduced to simple basics, in both criminal and civil proceedings the ultimate outcome of the litigation will be binary, either ‘guilty’ or ‘not guilty’, or ‘liable’ or ‘not liable’. In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established.

 

 

65.The extracts from the judgments of Butler-Sloss P and Hedley J helpfully, and accurately, point to the crucial differences between the distinct roles and focus of the criminal court, on the one hand, and the Family Court, on the other, albeit that each may be considering the same event or events within their separate proceedings. Against that background, it must be clear that criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court. Given the wider range of evidence that is admissible in family proceedings and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of ‘murder’ or ‘manslaughter’ or ‘unlawful killing’. How is such a finding to be understood, both by the professionals and the individual family members in the case itself, and by those outside who may be told of it, for example the Police? The potential for such a finding to be misunderstood and to cause profound upset and harm is, to me, all too clear.

 

 

66.Looked at from another angle, if the Family Court were required to deploy the criminal law directly into its analysis of the evidence at a fact-finding hearing such as this, the potential for the process to become unnecessarily bogged down in legal technicality is also plain to see. In the present case, the judge’s detailed self-direction on the law of self-defence, and the resulting appeal asserting that it was misapplied, together with Miss Venters’ late but sound observations about the statutory defence of ‘loss of self-control’, are but two examples of the manner in which proceedings could easily become over-complicated and side-tracked from the central task of simply deciding what has happened and what is the best future course for a child. It is also likely that the judges chosen to sit on such cases in the Family Court would inevitably need to be competent to sit in the criminal jurisdiction.

 

 

67.There is no need to labour this point further. For the reasons that I have shortly rehearsed, as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts. As my Lord, Hickinbottom LJ, observed during submissions, ‘what matters in a fact-finding hearing are the findings of fact’. Whilst it may not infrequently be the case that the Family Court may be called upon to re-hear evidence that has already been considered in the different context of a criminal prosecution, that evidence comes to the court simply as evidence and it falls to be evaluated, in accordance with the civil standard of proof, and set against whatever other evidence there may be (whether heard by the criminal court or not) for the sole purpose of determining the relevant facts.

 

 

68.That the Family Court process in the present case fell into error in the manner that I have described is now conceded and is not in doubt. That it did so is a matter of both surprise and regret in circumstances where the highly experienced advocates for all three parties jointly advised the judge that it was necessary to rely directly on the criminal law and, so far as the local authority are concerned, where a specific finding of ‘unlawful killing, probably pre-mediated or otherwise carried out in anger’ was sought.

 

 

69.What is the impact of this error on the overall integrity of the process before Theis J and the judge’s detailed underlying findings? Miss Venters submits that the whole hearing was irrevocably tainted by focus on the criminal law and the need to achieve a finding of ‘unlawful killing’ against the father. The local authority and the guardian, conversely, argue that the high-level findings of ‘unreasonable force’, ‘unlawful killing’ and ‘loss of control’ are extraneous and can be struck out leaving the judge’s discrete factual findings intact.

 

 

70.Given the scale of the hearing before Theis J, in terms of time, endeavour and cost, any rehearing should only be contemplated if there is no alternative available course. As will be apparent from this judgment, this court has not begun to evaluate the soundness of the judge’s underlying findings and, for these purposes, I am prepared to accept that each of the 17 detailed findings made at paragraph 141 may be, as Mr Chisholm cast them, ‘absolutely rock solid’. It remains the case, however, that the court was led into fundamental error in relation to a matter of legal principle. It is clear from the local authority opening statement and from its closing submissions that it was presenting its case on the killing in the terms of the criminal law; that was the case that the father understood he had to meet and that was plainly the mindset of all three legal teams and of the judge. The fact that this appeal was being run, and responded to, as a detailed debate conducted within the criminal law of self-defence is proof enough that the fundamental error that has now been identified (and accepted) was not understood by any of the parties prior to the hearing in this court.

 

 

71.Given the importance, in terms of its scale and the potential impact upon him, I regard the fact that the court was wrongly drawn into making a finding of ‘unlawful killing’ within these family proceedings, and given the manner in which the proceedings were wrongly focused from the start on establishing culpability in the context of the criminal law, I would be minded to accept Miss Venters’ submission that the case as a whole was tainted to such an extent that it is insufficient simply to strike out certain offending words from the judgment. But, before reaching a conclusion on this all-important question, I propose to consider the father’s case more generally in relation to ‘fair trial’.

 

 

The fair trial point

 

 

The father was acquitted on 30th May 2017. The family Court had a directions hearing on 9th June 2017 setting the case down for a finding of fact hearing. The LA produced its schedule of findings sought on 26th June 2017 seeking (for the first time) a finding of ‘unlawful killing’ – the fact finding hearing was due to begin on 11th July – eleven working days later.

 

Eleven working days to effectively prepare a murder trial is obviously compressing realistic timescales considerably. Under protest from the father’s team, the Court granted a five day adjournment, giving effectively three working weeks for father to prepare. For a fact finding hearing involving 42 witnesses, from a standing start.

 

 

 

 

44.In relation to the appellant’s case under Article 6, Miss Venters makes one overarching submission and one very specific submission each pointing to the overall unfairness of the process.

 

 

45.The overarching submission can be recorded shortly. It is that, despite their very best endeavours, the father’s legal team were simply not able adequately to prepare for the fact finding hearing. Although the “criminal bundle” had been disclosed and copied to the father’s legal team in the family proceedings as the criminal process went on, it had not been read by them because the material in it was not, at that time, relevant to any factual issues that were to be litigated before the Family Court. Miss Venters, understandably, states that any time spent working on the criminal papers would, in any event, not have been covered by the father’s Family legal aid certificate at that stage.

 

 

46.In relation to equality of arms, Miss Venters points out that the local authority had taken three weeks after the conclusion of the criminal trial to consider the criminal material before disclosing, for the first time, that they intended to seek findings upon it. Thereafter, in contrast, the father was given just 7 days to file his response.

 

 

47.The specific point relied upon by the appellant under Article 6 which was, again, unfortunately, raised for the first time in oral argument, relates to the reliance placed upon the letter from the father’s criminal defence solicitors dated 2 December 2016 (set out at paragraph 8 above) during the Family Court trial.

 

 

48.I have already explained the significance placed on the 2 December account by the experts, it being the unanimous expert view that the mechanism described in that letter would involve two planes of motion, whereas the injury to the mother was likely to have resulted from one single movement of the blade.

 

 

49.Miss Venters told this court that the 2 December 2016 letter was not provided by the father’s criminal team to the advocates in the family proceedings until 1 August, a week prior to the second part of the hearing when the experts were due to attend and, thereafter, the father was due to give his evidence. During the hearing the terms of the December 2016 letter were taken by all parties, including Miss Venters, as being the father’s account. It is only, Miss Venters reports, as a result of consideration she has been able to give to the case since the conclusion of the Family Court trial, and after the judge’s judgment, that she now understands that the second part of the December 2016 account, namely that the father pushed the mother backwards, has never been an account given by him in police interviews, during the criminal trial or during the family proceedings. The December 2016 letter was put to the father in the witness box before Theis J and he simply accepted that that account had been given.

 

 

50.Miss Venters submits that the fact that she failed to notice that the pushing element in the December 2016 account was not, in fact, a description that her client had ever actually given in evidence, is but one example, albeit a very significant one, of her overall inability to be on top of her client’s case as a result of the wholly unrealistic time afforded to the father’s team for preparation.

 

 

51.Miss Venters offered as a further example, the lack of sufficient time for her to consider whether or not the eldest child, A, should be called to give oral evidence within the family proceedings.

 

 

52.Candidly, Miss Venters told the court that she is not now able to identify other specific aspects of the father’s case which, as a result of the pressure of work, were not presented to the court. Her position was, however, that, as an experienced professional she “simply did not have a grip on the evidence” in order to identify what issues should be raised in cross-examination or otherwise.

 

 

53.Miss Venters reports that, despite expressly raising in detail the many difficulties she faced, and despite taking up a dozen or so pages of her opening Position Statement at the start of the hearing listing the difficulties that were still outstanding, the court pressed on with the hearing with the result that Miss Venters told this court that she felt that she simply “wasn’t being heard in anyway” on these points by the other parties or by the judge.

 

 

And in conclusion

 

 

72.Having set out the key elements in the appellant’s case in relation to the ability of his legal team to meet the case against him in a manner that was fair and proportionate, it is possible to deal with this aspect of the appeal shortly.

 

 

73.An advocate as experienced and robust as Miss Venters deserves to be taken seriously when she tells an appellate court that, in consequence of the difficulties that she has explained, she ‘simply did not have a grip on the evidence’ and that, despite giving a clear and specific account of her professional difficulties, her client’s case in that regard was not heard. When the factual finding that the court has made is of the magnitude and, in terms of its impact in the family proceedings and elsewhere, importance as the one reached by the judge here, the need to take what is said seriously is particularly acute.

 

 

74.Although we have not drilled down to detail, or examined the trial documents and other material, there is no real dispute about the scale of the task facing the father’s lawyers when, for the first time on 26th June, they understood that the criminal evidence was all to be re-heard within the family proceedings. They had, initially, 11 working days to prepare and, although that was subsequently extended to 15 and the experts were not called until 3 weeks after that, it seems likely to me that the timetable imposed by the court on the father’s team was, in the circumstances, untenable.

 

 

75.It is of particular note that it was only in the local authority Opening Note, dated 11th July, that the father will have read for the first time that a finding of ‘deliberate’ killing was being sought against him in the Family Court.

 

 

76.Although no specific example of the father’s case not being correctly or fairly presented to the judge is pleaded in the Grounds or Skeleton Argument, Miss Venters’ late reference to the importance of the 2nd December 2016 criminal solicitor’s letter is of significance. She, as the advocate who was in charge of the father’s case, has told this court that what is said in the second part of the account in that letter has never actually been directly given in evidence by her client. It has simply been taken as read as being his account and, then, dismissed as tenable by the experts in a manner which the judge, understandably, found to be of importance. For my part I did not regard the five references to which we were taken by Miss Bazley as being conclusively against the point that is now being made; they may be or they may not be. Equally, the extract from the transcript of the father’s cross examination, rather than being reassuring that what was said in 2 December document was his accurate memory, seemed to bring the issue yet further into doubt.

 

 

77.The importance of the father’s account on whether there was one motion or two movements with the knife is plainly high. In terms of determining the issue of ‘fair trial’, it is neither necessary nor wise for this court to analyse the matter further. For my part, the fact that the father’s advocate has now raised the issue, and has told this court that, because of the speed of preparation (and the document’s late delivery), she only appreciated its significance after the end of the proceedings, may well establish that, as a result of the undue pressure of time, an important aspect of the father’s case may not have been presented fairly to the court.

 

 

 

Conclusion

78.The hearing of this appeal took an unusual course. As a result of the intervention of the court, we have not heard the full appeal. Instead, the advocates responded to and conceded the point of principle raised by the court concerning the relevance of criminal law and we then heard shortly on the ‘fair trial’ issues before adjourning to take stock of the appeal in the light of those submissions.

 

 

79.Having now undertaken the stock-taking exercise, and for the reasons that I have expressed thus far, it is clear, firstly, that a serious error occurred in the trial in relation to the relevance of the criminal law. Secondly, that error may not, of itself, justify ordering a rehearing, but the option of simply striking the offending words from the judgment may not be an adequate remedy given the significance of what had been, wrongly, said. Thirdly, whilst, again, the points made about a lack of a fair process may not establish, as night follows day, that only a rehearing will provide a remedy, what is said about the 2nd December letter, given its importance in the case, is of real concern.

 

 

80.Although an error of law may not necessarily lead to a finding that there has not been a ‘fair trial’, in the present case, when that error goes to the very focus of the fact-finding process and the judge’s analysis, I consider that the point sits squarely within the rights protected by Article 6. The two matters that I have thus far considered separately in this judgment should therefore, properly, be drawn together. If that is done then, albeit with a heavy heart, I am fully persuaded that in combination, looking at the matter overall, and taking both elements into account, this appellant has not been afforded a sufficiently fair trial in the Family Court

 

 

The Court of Appeal then give some specific guidance in relation to family Courts hearing allegations which have been tried in the criminal Court.

 

 

81.Moving beyond the circumstances of the present appeal, and building upon what is said at paragraphs 61 to 67 above, the following general observations as to the approach of a family court when trying, or re-trying, factual issues which could also be framed as a criminal charge are intended to be of assistance to all levels within the Family Court, where the need to undertake such a fact-finding exercise is by no means unusual.

 

 

82.By way of summary, the following points are, in my judgment, clear:

 

 

 

  1. a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court [paragraph 62 above];

 

  1. b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes open to such risks as the factual determination may have established [paragraph 62];

 

  1. c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court [paragraph 65];

 

  1. d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts [paragraph 67].

83.Where there has been, or may be, a criminal prosecution in relation to the actions of a parent or other person connected with a child whose future welfare is the subject of public or private law proceedings before the Family Court, the question of whether the factual matters that may support such a prosecution should also be litigated within the family proceedings falls to be determined by the Family Court on a case-by-case basis.

 

 

84.The Family Court should only embark upon a fact-finding process where it is necessary to do so. The recently updated Practice Direction FPR 2010, PD12J ‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’, relating to private law proceedings includes the following guidance which is of more general application to all proceedings relating to the welfare of children where ‘domestic abuse’ or other potentially criminal activity is alleged:

 

 

 

 

‘Directions for a fact-finding hearing

 

 

  1. The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –

 

 

 

(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;

 

 

 

(b) in order to provide a basis for an accurate assessment of risk;

 

 

 

(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or

 

 

 

(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).

 

 

  1. In determining whether it is necessary to conduct a fact-finding hearing, the court should consider –

 

 

 

(a) the views of the parties and of Cafcass or CAFCASS Cymru;

 

 

 

(b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed;

 

 

 

(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;

 

 

 

(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;

 

 

 

(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;

 

 

 

(f) the nature of the evidence required to resolve disputed allegations;

 

 

 

(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and

 

 

 

(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.’

85.In addition the factors listed at paragraphs 36 and 37 of PD12J are also likely to be relevant in deciding whether to conduct a fact-finding process in relation to ‘domestic abuse’ or any other potentially criminal activity in any proceedings relating to the welfare of a child:

 

 

 

’36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.

 

  1. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –

 

 

(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;

 

 

(b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;

 

 

(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;

 

 

(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and

 

 

(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.’

86.On the basis of the guidance in PD12J, and on the basis of general principles, a family court should only embark upon a fact-finding investigation where it is both necessary and proportionate to do so, having regard to the overarching purpose of public law proceedings of (a) establishing whether the CA 1989, s 31 threshold criteria are satisfied and (b) determining the future plan for the child’s care by affording paramount consideration to his or her welfare.

 

 

87.Where, as is in the present case under appeal, one of the parents has died in the course of an altercation with the other parent, it may well be necessary to investigate the broad context of the relationships within the family and the behaviour of the parents over a period of time, but it does not follow that it will also be necessary for the court to determine precisely how the death occurred and the role, if any, that the surviving parent played in it. In each case, it will be a matter for the judge in the Family Court to decide, in the circumstance of each individual case, whether some or all of the issues that relate directly to the death need to be investigated in the family proceedings and, if possible, determined.

 

 

88.For my part, and from experience of a number of such cases over the years, the importance, in some cases, of the court and the children knowing whether or not the surviving parent’s actions were reasonable or not in relation to the circumstances of the death itself is likely to render a fact-finding hearing necessary, but this, it must be stressed, is a matter for the trial judge to determine in each case. That general observation is in line with the judgment of this court [Wall LJ and Neuberger LJ] in Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181; [2005] 1 FLR 285 at paragraph 56:

 

 

 

‘… we are also of the view that it is in the public interest that children have the right, as they grow up into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.’

89.The potential for future harm to a child where one parent has been directly involved in the circumstances that have led to the death of the other parent, is by no means limited to the risk that the surviving parent may physically injure the child. Indeed, future physical injury may be low on the spectrum of future potential harm. It is the potential for future emotional and psychological harm arising, either directly from the ‘fact’, if fact it be, that the surviving parent caused the death of the other, or indirectly from the way in which the parent will conduct him/herself in the future as a consequence, which is likely to be of far more importance.

 

 

90.Lastly, I would mention the specific matter of the use of language. The potential for the court to become drawn into reliance upon criminal law principles is demonstrated by the present appeal. Even where the family court succeeds in avoiding direct reference to the criminal law, it is important that, so far as it is possible to do so, the language of the judgment (and in particular any findings) is expressed in terms which avoid specific words or phrases which may have a bespoke meaning in the context of the criminal jurisdiction, for example ‘self-defence’, ‘reasonable force’ or ‘the loss of self-control’. Phrases such as ‘inappropriate force’ or ‘proportionate force’ may reflect the judge’s findings in a particular case, and avoid the risk that the judge’s words may be misunderstood as expressing a finding based directly upon criminal law principles.

 

 

91.At the end of the day, the often very difficult role of a judge once it has been determined that a finding of fact hearing is necessary can be reduced to the short statement that the family judge’s task in such cases is simply to find the facts. Once any facts are found, they will then form the basis of a more wide-ranging assessment of any consequent risks to the child whose future welfare needs will then fall to be determined

 

The Court of Appeal did disagree as to whether a finding of fact hearing would be necessary at all (in a minority judgment) and how the Court at a re-hearing was to determine whether father’s actions were or were not reasonable (again, in a minority judgment). We may not have had the final word on this sort of thing.    (The minority judgment was suggesting that threshold akin to my earlier formulation – that regardless of culpability for the death of the mother, the emotional harm suffered by the children by witnessing her violent death was the real issue and thus a finding of fact as to culpability for death would not always be necessary. )

 

 

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Magical sparkle powers – a sparkle too far?

Posted on October 18, 2017 by suesspiciousminds

Regular readers will know that when I read the phrase “The Court’s powers under the inherent jurisdiction are theoretically limitless” it makes me bristle, and hence my coining the name “magical sparkle powers” for the use of these, to remind ourselves that the Court is effectively inventing powers for itself out of thin air.

As is established law, Princess Kenny MAY use her magical sparkle powers to get the Black Friday Bundaroo

The problem I have with it is not that the Court have used the inherent jurisdiction as a way to solve a particularly thorny legal problem on an individual case, it is that this then gets used as an authority for “well, we could do THAT with our magical sparkle powers, so THIS is only a further stride along that path” and then THIS gets used as authority for taking another stride to THE OTHER. It is the stepping stone issue.

So a while back, the President ruled that the inherent jurisdiction could be extended to protect vulnerable adults, and then someone else ruled that his decision was authority for protecting adults with vulnerabilities, and then someone else ruled that THAT decision was authority for protecting adults who didn’t seem to have any vulnerabilities but whom the Court wanted to protect

And then we end up with this
http://www.bailii.org/ew/cases/EWFC/HCJ/2017/65.html

Mahzar v Lord Chancellor 2017

Mr Mazar is a 26 year old man with muscular dystrophy. He has no mental health problems and he has capacity. Part of his physical illness is that he needs apparatus to breath through, and this apparatus needs to be suctioned four to five times every hour. Without this, he could be at risk of serious injury or death. Mr Mazar wanted to be in his own home for this procedure rather than be detained in hospital – he says that his family members have had training in the procedure. That may be contentious – I don’t know whether th

I don’t know the ins and outs of why Mr Mazar came to that conclusion, but we don’t NEED to know. If he is an adult, with capacity to make his own decisions and does not have a mental health disorder, he is entitled to say that he does not want to be admitted to hospital. That’s his right. He is entitled to say that even if all of the medical opinion is that this is dangerous and stupid. Even if it might lead to his death.

What actually happened was that the Trust applied to the High Court for permission under the inherent jurisdiction to not only treat him against his will, but for police officers to enter his home and remove him by force if necessary to take him to hospital.

2. The order complained of is as follows:

“(I) It is lawful for the police and any medical professionals, as are required, to enter [address] (the property) and use reasonable and proportionate force to do so.

(2) It is lawful for the police and any medical professionals, as are required, to remove Mr Aamir Mazhar from the property and to convey him to an ambulance.

(3) It is lawful for the ambulance service, together with any other medical professionals and police as are required, to convey Mr Aamir Mazhar to the Queen Elizabeth Hospital, Birmingham.

(4) It is lawful until further order for Mr Aamir Mazhar to be deprived of his liberty at the Queen Elizabeth Hospital, Birmingham for the purposes of receiving care and treatment from his arrival on 22 April 2016 and then to be conveyed to the specialist respiratory centre at Guy’s Hospital, London until suitable care can be put in place for him at home, or to be transferred to an alternative specialist respiratory unit.

(5) The matter shall be listed for urgent hearing on the first available date after 25 April 2016 (upon application to the Clerk Rules (sic)).

(6) There be leave to serve this order without a Court seal until 16:00 on Monday 25th April 2016.”

It was an out of hours application, without any notice to Mr Mazhar or his family and they were therefore not present or represented at the hearing.

The pleaded consequence of the order made by Mostyn J is the forcible and what is described as the highly distressing removal of Mr Mazhar from his family home at 3 am on Saturday 23 April 2016 by two police officers and the ambulance service. Mr Mazhar was and is a young man who has the capacity to make decisions for himself. It is submitted on his behalf that there was no basis in law for the order to be made or for the actions taken in accordance with it.

7. Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person’s alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law.

Mr Mazhar sought damages against the Trust, who settled out of Court. He also made a Human Rights Act claim against the Lord Chancellor for breach of article 5 (that he was unlawfully deprived of his liberty), article 8 (that his right to private and family life was breached) and article 6 (that such a fundamental decision was taken without any challenge to the application being made.

The Lord Chancellor concedes that Mr Mazhar was deprived of his liberty when he was removed from his home and taken to hospital and accepts that he was not a person of unsound mind within the meaning of article 5(1)(e) at the date of the order. He does not however accept that the broader proposition that the inherent jurisdiction is limited in the way suggested on behalf of Mr Mazhar and in particular that it can only be used to facilitate the re-establishment of autonomy. He argues that its use to detain and remove a person who has mental capacity to make decisions about his care (but who is a vulnerable adult) to a safe place such as a hospital is a well recognised jurisdiction which acts as a safety net to protect persons who fall outside the scope of the Mental Capacity Act 2005. He contends that use of the jurisdiction to detain is neither arbitrary nor unlawful because there are procedural safeguards ie it is a procedure prescribed by law, governed by Rules of Court, Practice Directions and Guidance. It is clearly established by case law which is sufficiently accessible and foreseeable with advice and the jurisdiction’s flexibility is reasoned and justified so that, for example, where detention is permitted there are rigorous safeguards that include regular review.

9. The Lord Chancellor does not accept that there were procedural failings such that the detention was unlawful within the meaning of article 5 of the Convention or unfair at common law. He avers that in any event the threshold of ‘gross and obvious irregularity’ is not met. The procedural protections for anyone deprived of their liberty are the lex specialis of article 5(4) and provide equivalent protection to article 6 which the Lord Chancellor submits is not engaged. Any breach of article 8, which is not admitted, is justified by being in accordance with the law, necessary and proportionate.

So who is right?

It is a really important point. As the High Court repeatedly says – the powers under the inherent jurisdiction are theoretically limitless – so on the face of it Mostyn J had the power to make that order, even though Mr Mazhar was of sound mind and had capacity to make his own decision.

Is that really right?

If the law is going to authorise police officers to come into your home and remove you by force and take you to hospital and detain you there while you have treatment that you have not consented to, that seems to me rather a big deal – particularly as there’s no clarity at all about what hurdles the Trust ought to have to meet to establish that – if Mr Mazhar lacked capacity there would be a statutory framework as to what the Court would need to consider and a mechanism for challenge.

So I was reading this case with great interest to see what was decided about whether or not the inherent jurisdiction really does give Mostyn J or other Judges the power to make such a dramatic order – without Mr Mazhar even being told about it in advance and having the opportunity to have his say.

The order was made on a specific evidential basis which was recorded in the recitals to the order. It is important to acknowledge that this prima facie evidential basis was the evidence, at that stage unchallenged because the application was made without notice, which the judge had available to him and which he decided was sufficient to lead to the order that he made. It is part of Mr Mazhar’s claim against the Lord Chancellor that the judge should not have accepted the evidence without an opportunity being given at that stage for challenge and, in any event, that it was insufficient in law to justify the order made. It is also important to acknowledge that some of the evidence provided to the judge was wrong and may have been untruthful. The difference between the recorded prima facie evidence and the agreed facts is stark. The claim against the NHS Trust which deals with those issues has been settled and it is not for this court to give judgment on the failings of the NHS Trust. Some of those failings are however apparent in the differences revealed between the recitals and the agreed facts. The implications are very worrying indeed.

Sadly, the Court doesn’t answer that at all. Instead we get reams of paragraphs about why the challenge to the order of the High Court can’t be by HRA claim or claim for vicarious liability on the part of the Lord Chancellor, and judicial immunity, and this is all absolutely right, but still very frustrating.

43. Lord Denning MR described the principle of judicial immunity in Sirros v Moore [1975] QB 118 at 132D:

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the excess of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred or malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to the Court of Appeal or to apply for habeas corpus or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action in damages. The reason is not because the judge has any privilege to make mistakes or do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well state by Lord Tenterden CJ in Garnett v Ferrand (1867) 6 B&C 611 625:

“This freedom from action or question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be”

All of this is particularly frustrating, because the Lord Chancellor had in June submitted a position statement to the effect that judicial immunity was not going to be relied upon as a defence, and then rescinded that and relied on it successfully

If Mr Mazhar wants to find out whether Mostyn J really did have the power to make that order under the inherent jurisdiction, his mechanism is an appeal of the order, not a HRA claim.

Conclusion:

78. The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal.

79. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal

Annoyingly, Mr Mazhar gave evidence at the hearing, when the case turned completely on legal argument rather than his evidence, so it was unfortunate that he was put through the experience of giving evidence when the judicial immunity point was the real heart of the case.

I hope that he does want to find out and that an appeal will be brought.

That’s not to say that I think Mostyn J got this spectacularly wrong or was off on a frolic of his own – this sort of application and this sort of order is a natural extension of where the legal authorities on inherent jurisdiction are eventually going to take us. I’d be very keen to find out if the Court of Appeal think that there IS a line in the sand that needs to be drawn on inherent jurisdiction and where that line might be.

I don’t think that the law SHOULD have allowed Mr Mazhar to have police officers enter his home and remove him by force and detain him in hospital for treatment that he had a right to refuse. But I think that the law MAY say that this is within the Court’s jurisdiction and powers. I hope that even then, the Court of Appeal may have something to say about the safeguards that ought to be put in place about how such wide-ranging and sweeping powers need to be managed to respect a person’s article 5, 6 and 8 rights.

If police came to my door, forced entry and removed me from my home to hospital for treatment that I’d said I didn’t want, just because doctors thought my decision was stupid and went before a Judge on their own without putting my side of the story, I wouldn’t be satisfied to be told that the Court’s magical sparkle powers make all of this okay. It isn’t okay.

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Human rights, damages and costs – important case

Posted on February 16, 2017 by suesspiciousminds

Not sure this is the last nail in the coffin of HRA damages claims piggy-backing on care proceedings, but the bag of nails certainly isn’t full any more.

Be grateful it is nails. As the LA is Kirklees, I've been trying to think of a Shatner reference...

Be grateful it is nails. As the LA is Kirklees, I’ve been trying to think of a Shatner reference…

 

The High Court have given judgment in Re CZ (Human Rights Claim:Costs) 2017

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/11.html

 

The fact that there was a breach is impossible to deny and the LA accepted it. (Even looking at the recent steer from the Hackney authority that failure to follow guidance does not amount without more to an actionable claim, this one goes far beyond that)

12.CZ was born by emergency caesarean section at X Hospital on 6 November. It was a traumatic birth and CZ was for a short time placed on the Special Care Baby Unit (‘SCBU’). The baby was slow to feed, and showed temporary normal post-birth weight loss. That said, no child protection concerns were raised by the staff on SCBU nor on the ward to which he was discharged.

13.On 10 November 2015, the Local Authority received a referral from the X Hospital maternity ward; concerns were raised regarding the long-term parenting capacity of this mother and father. It was suggested that the mother had no family support, and that the father was expressing unorthodox views about the need for sterilisation of bottles, and the benefits of formula milk. It was nonetheless noted, in the referral, that the paternal grandmother of the baby was being supportive to the couple and was planning to move in with them at least in the short-term after discharge from hospital.

14.On the following day, 12 November 2015, the maternity ward staff reported to the social worker that CZ had put on weight, but that they remained concerned about the feeding plan and wished to monitor him further. The social workers did not visit on this day.

 

15.On 13 November 2015, the social worker visited the hospital at about lunchtime and was advised by staff that CZ had again gained weight; the staff had no further concerns about the baby, who was reported to be well enough to be discharged. This was, indeed, planned for later that day.

The LA made an application on 13th November 2015 on short notice to Court for an ICO. The parents did not attend that hearing. The LA assured the District Judge three times that the parents had been informed of the hearing. They also assured the District Judge that the parents agreed with the plan for the child to be placed with grandparents. A Guardian did not attend (the LA emailing CAFCASS minutes after the hearing apologising for forgetting to notify them)

 

It turned out that the parents had NOT been informed of the hearing. They had been told by the social worker that the LA planned to start care proceedings but not that there was a hearing imminently and when it was. Whilst the mother had agreed s20 accommodation, the father had not.

At a hearing on 20th January 2016, the parents through their solicitors gave notice that they wanted to challenge the ICO. At a hearing on 27th January 2016, the LA attended and set out that they did not consider that the threshold criteria was met any longer and sought to withdraw their application. The proceedings ended and the child returned to the parents.

The HRA claim was made on the basis of breaches of article 6 and article 8.

33.The Local Authority concedes that I should make the following declarations:

  1. i) It breached the parents and child’s right to a fair trial, pursuant to Article 6 ECHR when it failed to inform them and/or Cafcass of the urgent hearing which was held at 3p.m. on Friday 13 November 2015; this breach is compounded by the fact that the Local Authority repeatedly informed the court that the parents had been so notified;
  2. ii) Between 13 November 2015, and, at the latest, 7 December 2015 (the next hearing date), the Local Authority breached the rights of those named above to a family life as enshrined in Article 8 ECHR. The parents did not live in the same household as their son for that period albeit they enjoyed extensive contact to one another. The child was placed with the paternal grandparents in their home.

These concessions were made at an early stage of the process, and were shared with the court on 14 July 2016,

 

Cobb J ruled that :-

41.In this case, I am satisfied that the breaches of the Claimants’ ECHR rights were serious, a view which I expressed in the presence of the lay parties at the hearing. This was plainly not an exceptional case justifying a ‘without notice’ application for removal of a baby from the care of his parents (see Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), and it is questionable whether there was a proper case for asserting that CZ’s immediate safety demanded separation from his parents at all: Re LA (Children) [2009] EWCA Civ 822. The failure of the Local Authority to notify the Claimants that the hearing was taking place on the afternoon of 13 November was particularly egregious; misleading the District Judge no fewer than three times that the parents knew of the hearing aggravates the culpability yet further. This infringement will rightly be subject of a declaration of unlawfulness (see above), and to a very great extent this represents the essential vindication of the right which they have asserted.

42.The separation of a baby from his parents represents a very substantial interference with family life, and requires significant justification. In this case, my assessment of the seriousness of the interference has been moderated by two facts: first, because the actual arrangement effected under the interim care order, with CZ living with the paternal grandmother for the period while the parents enjoyed virtually unrestricted contact, was a variation of a plan which the parents had formed with Health Professionals prior to and following the birth in any event, namely for the paternal grandmother to reside with them for that period, and secondly, because once the parents and Cafcass obtained legal representation and were able to consider the situation with legal advice, none of them sought to challenge the living arrangement immediately and did not in fact do so until 20 January 2016.

 

 

The fundamental issue here was that the damages sought amounted to just over £10,000 and because they arose out of care proceedings, in order for the parents and child to receive a penny of those damages those representing them also sought costs orders not only for the HRA claims but for the care proceedings.

 

That is because the statutory charge bites on the damages, not only for the HRA claim costs (which is sensible) but for the care proceedings (which is hard to explain, but it is clear that it does).

section 25 LASPO 2012; this statutory provision reads:

 

 

 

 

“25 Charges on property in connection with civil legal services

(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

(2) Those amounts are—

(a) amounts expended by the Lord Chancellor in securing the provision of the services (except to the extent that they are recovered by other means), and

(b) other amounts payable by the individual in connection with the services under section 23 or 24″.

 

The total costs were £120,000.   (To be fair, Cobb J has included the LA’s costs within that calculation, and the LA would be paying their own costs in any event. So the costs are really £80,000)

You do not have to be a hot-shot civil lawyer to suspect that spending £80,000 to recover £10,000 is not a viable proposition.

Cobb J considered this case in a very detailed way and said some very important things.

 

  1. The cunning solution in P v A Local Authority [2016] EWHC 2779 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html , a case in which Keehan J found a way of facilitating the grant of the award of damages to the Claimant in such a way that it was unaffected by the LAA’s statutory charge. On the facts of that case, the applications under the HRA 1998 and under the wardship were quite separate and unconnected; he said this: “P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings” [71] (emphasis added).

Did not work here, and would not work in the majority of the HRA claims that we are concerned with, since they did arise out of the care proceedings or a prelude to them (s20)

 

 

  1. The fact that s25 LASPO meant that the statutory charge swallows all the damages does not mean that the Court is pushed into HAVING to make an award of costs to ensure that the claimant gets something.58.I reject the Claimants’ arguments on this first basis for the following reasons:  i) I do not accept that the very wide discretion afforded to me under section 8(1) has to be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome under section 8(3);ii) If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not; iii) Most awards of damages would be likely to be reduced to some extent by the incidence of assessment/taxation of the litigant’s own bill. While this may not apply so harshly to publicly funded litigants, it seems to me that the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;iv) The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award. I would regard it as unprincipled to increase the award of damages by a significant sum (which on the instant facts could be approximately seven-fold) to reflect the costs of the proceedings. Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
  2.  
  3.  
  4.  
  5.  
  6.  
  7.  
  8. He tackles the principle of financial damages over and above the declaration of breach of human rights.  39.In deciding (i) whether to award damages, and/or (ii) the amount of an award, I must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention (Article 41, though not incorporated into English law, deals with ‘just satisfaction’). It is not necessary for me to review the significant European or domestic case-law on this point, more than to identify the following extracts from speeches and judgments on the point which have guided my views:  i) The Court of Appeal (Lord Woolf CJ, Lord Phillips MR and Auld LJ) in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, [52-53], and [57-58]: “The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages. … Where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance” [52/53].
  9.  
  10.  
  11.  
  13. 38.An award for damages for infringement of Convention Rights is warranted where the court concludes that it is “necessary to afford just satisfaction to the person in whose favour it is made” (section 8(3) HRA 1998). There is no specific formula or prescription for what amounts to “just satisfaction”, but in considering the issue, statute requires me to consider “all the circumstances of the case” including any other relief or remedy granted (including the grant of a declaration, and I suggest a formal apology) and the consequences of any decision of the court.

 

I interject here, to say that this is not the way that damages claims under the HRA in care proceedings has been developing, and it is a noteworthy reminder.

 

 

“Our approach to awarding damages in this jurisdiction should be no less liberal than those applied at Strasbourg or one of the purposes of the HRA will be defeated and claimants will still be put to the expense of having to go to Strasbourg to obtain just satisfaction. The difficulty lies in identifying from the Strasbourg jurisprudence clear and coherent principles governing the award of damages….”

 

 

And then quoting from the Law Commission:

 

 

“Perhaps the most striking feature of the Strasbourg case-law, … is the lack of clear principles as to when damages should be awarded and how they should be measured”. [57/58]

 

  1. ii) Lord Bingham in Regina v. Secretary of State for the Home Department (Respondent) ex parte Greenfield [2005] UKHL 14, [2005] 1 WLR 673 at [9] and [19],

 

 

“The routine treatment of a finding of violation as, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation.” [9]

 

 

“The Court [in Strasbourg] routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the Court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them.” [19]

 

iii) Lord Reed in R (o.t.a. Faulkner) v. Secretary of State for Justice [2013] UKSC 23 at [13](4)/(7):

 

 

“(4) [T]he quantum of awards under section 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living

 

 

(7) The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases”.

 

  1. iv) And in a passage which directly chimes with the facts of this case, Wilson LJ in Re C (Breach of Human Rights: Damages) [2007] EWCA Civ 2, [2007] 1 FLR 1957 at [64]

 

 

“… the European Court generally favours an award of damages in cases in which local authorities have infringed the right of parents under Article 8 to respect for their family life by shortcomings in the procedures by which they have taken children into care or kept them in care, whether temporarily or permanently” [64]

40.I further take account of the Practice Direction issued by the President of the European Court of Human Rights (2007; re-issued September 2016) on ‘just satisfaction’:

 

 

 

 

“The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting Party responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.” [9]

 

 

“It is in the nature of non-pecuniary damage that it does not lend itself to precise calculation. If the existence of such damage is established, and if the Court considers that a monetary award is necessary, it will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law.” [14]

 

 

“Applicants who wish to be compensated for non-pecuniary damage are invited to specify a sum which in their view would be equitable. Applicants who consider themselves victims of more than one violation may claim either a single lump sum covering all alleged violations or a separate sum in respect of each alleged violation”. [15]

 

It is convenient to cite here also what is said in the Practice Direction (at [17]) about costs and expenses (to which I make reference at [58(vi)] below):

 

 

“The Court will uphold claims for costs and expenses only in so far as they are referable to the violations it has found. It will reject them in so far as they relate to complaints that have not led to the finding of a violation, or to complaints declared inadmissible”.

 

And thus that damages are not a natural consequence of an identified breach – the claimant must specify what damages they seek and why they are sought. Why are the breaches such that only an award of damages will provide ‘just satisfaction’?

 

(I will return to this, because if the damages are just going to the LAA because of the stat charge, HOW CAN the claimant really argue that the award is to provide ‘just satisfaction’? On the face of it, all that is achieved is punishing the public body by making them write a cheque to the LAA, and that’s specifically ruled out by para 9 of the Practice Direction…)

 

Note however, what Wilson LJ said in Re C, quoted above, that the ECHR does make damages awards where the breaches have caused a parent to lose their child, “whether temporarily or permanently”

 

  1. Awarding costs of the care proceedings due to egregious conductCobb J ruled that the LA had conducted part of the proceedings in a way that triggered a justification for a costs order under the Supreme Court guidance in Re S and Re T, but not the whole of the proceedings, and the costs order should be limited to that.
  2. 67.In relation to the costs of the CA 1989 proceedings, the Claimants have failed to demonstrate in my judgment that the Local Authority behaved “reprehensibly” or “unreasonably” otherwise than in the circumstances in which it launched the proceedings and conducted the hearing on 13 November. This had ramifications (i.e. the placement of CZ away from the parents’ care) until 7 December. In my judgment, applying ordinary costs principles, the Claimants would be entitled to the costs of the CA 1989 proceedings for the limited period from 13 November to 7 December 2015.
  5. The Claimants litigation conduct had a bearing on the costs award in relation to the HRA claim – not making efforts to try to settle the case and not responding constructively to offers had a bearing on this.          
  6. On ordinary costs principles, I am of the view that the Claimants should be entitled to recovery of their costs of the HRA 1998 proceedings from the grant of certificates up to and including 14 July, but no further.
  7. vi) On the information available to me, the Claimants have not complied with the direction which I made (on 5 October 2016) to make open proposals for settlement in a timely way, or at all.
  8. v) So far as I can tell, there was no response to the offer made on 15 July 2016;
  9. iv) Further ‘without prejudice’ offers were made on the days either side of the Case Management hearing on 14 July, without any meaningful response. On the 14 July itself, at court, Ms. Irving QC made an open offer. On 15 July 2016, the offer was increased to £2,500 on an open basis, together with the HRA 1998 costs; the Local Authority proposed a further ’round table’ discussion but this fell on deaf ears;
  10. iii) The mother and Children’s Guardian did not respond positively to the request to provide costs schedules at an early stage or an order to the same effect, and none of the Claimants complied with my direction for the provision of open offers of settlement;
  11. ii) The Claimants were invited from 22 February 2016 to indicate a ‘settlement amount’ in relation to any prospective HRA 1998 claim, but they did not apparently (i.e. from the correspondence – including that marked ‘without prejudice’ – which I have now seen) do so;
  12. i) They failed to respond constructively to the Local Authority’s efforts to achieve a negotiated settlement; from an early stage (i.e. February 2016: see [45](i) above), through until July and beyond, the Local Authority was making appropriate overtures to sort out this dispute, but the Claimants were ostensibly unreceptive;
  13.  
  14. 66.On the facts of this case, the Claimants have succeeded in their HRA 1998 claim, and ordinarily therefore they could look to the “unsuccessful” party (Local Authority) to pay their costs under Part 44.2(2)(a); however, I consider that the Claimants’ litigation conduct is such that they have forfeited this entitlement. In particular:
  15.                 In any evaluation of costs whether under the CPR 1998 or the FPR 2010, I am obliged to have regard to the parties’ litigation conduct, and whether costs are reasonably or not reasonably incurred. The Claimants’ approach would require me to ignore or forgive any reckless, wasteful or profligate manufacture of costs in order to ensure that the Claimants receive their award; this cannot be right. In this case, as will be apparent from my comments below, the Claimants did not conscientiously attempt to settle their claims, whereas I am satisfied that the Local Authority did make genuine efforts to do so
  17. A suggestion was made to multiply the child’s damages by 3, and award the total damages to the child, so that only the Child’s public funding certificate had the stat charge arise, and thus make only costs order to cover the child’s certificate in full.

 

Mr. Taylor further submitted that I could award an aggregate damages award of £11,250 (£3750 x 3) to the child, and order the Local Authority to pay all of the costs of the Children’s Guardian; in that way, (i) this would reduce the financial outlay for the Local Authority than the alternative route contended for by the Claimants, and (ii) at least one of the parties would actually benefit from a damages award. Ms. Irving QC indicated that if the Court approved it, the Local Authority would not contest this approach. The LAA was, sensibly, consulted about this proposal, and rejected it for the contrivance which it undoubtedly is. I could not in any circumstances sanction this approach. I have awarded damages to each of the three Claimants; the figure awarded is what I regard as “necessary” to give “just satisfaction” to each of them. The proposal outlined undermines the principles on which I have resolved the claims.

 

 

 

 

Decision

 

75.I shall make the declarations proposed and conceded, set out in [33] above.

 

76.I shall award each of the three Claimants £3,750 by way of damages, to be paid by the Local Authority, under section 8(3) HRA 1998. It is, I acknowledge, regrettable that because of the costs order I propose to make, the Claimants are unlikely to receive these sums.

 

77.I shall make an order that the Local Authority makes a contribution to the publicly funded costs of the Claimants, limited to the following periods:

  1. a) 13.11.15-7.12.15 (all Claimants: CA 1989 proceedings);

 

  1. b) From the date on which the LAA granted extensions to the Claimants’ existing certificates (issued for the CA 1989 proceedings) for them to pursue HRA 1998 claims to 14.7.16, excluding the costs incurred by those who attended on behalf of the mother and the child at the meeting arranged by the Local Authority on 17 March 2016 (save as provided for herein, all Claimants: HRA 1998 proceedings).

78.That is my judgment.

 

Quantum-wise, a sum of damages of £3,750 per party, for the child being removed under an ICO hearing where the parents had not been given notice and the Court was misinformed that (a) they had and (b) they consented to the plans, where the LA withdrew the proceedings just months later because threshold was not met, compared to some of the very high s20 damages awards makes interesting reading. Cobb J was very specifically addressed on quantum and the principles to be applied and this case (together with the Hackney case) sets down a considerable marker that there is unlikely to be sufficient diamonds in the mine to justify the digging costs save in a highly exceptional case.

To escape the stat charge and ensure that the client receives any of the compensation, either the costs will need to be very small, or the damages very large, or a better case for a costs order than this one….

 

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Judge making findings about a witness – fair trial

Posted on November 20, 2016 by suesspiciousminds

This is a very tricky one – I have to say that my eventual conclusion is that the Court of Appeal are entirely right about the principles and the decision that they came to, but it leaves me feeling uncomfortable and queasy that allegations as important as this about professional misconduct end up being dealt with on a technicality. What was alleged (and found by the Judge who heard all the evidence) was very serious stuff indeed.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1140.html

 

 

In this case, at the end of a 4 week hearing, the Judge delivered a judgment that said that the SW and Police Officer had embarked on a deliberate calculated exercise of getting ‘evidence’ to prove sexual abuse without any relation to whether or not the allegations were true, that they had drawn other professionals in, that both had lied to the Court and that the SW had caused considerable emotional harm to the child.  The Judge also directed that the judgment be sent to their employers.  The Judge delivered this judgment as a bullet point ‘draft’ and allowed the SW and PO to make representations about it before it was finalised, but it ended up in the same form.

 

  • Permission to appeal was granted by this court to the local authority, the named social worker (“SW”) and the named police officer (“PO”). Their appeal, if successful, will lead to the passages complained of being excised from the judgment, it is therefore plainly inappropriate to offer any more than a mere gist of those matters within this judgment. On that basis, and in short, the complaint relates to the judge’s finding that SW and PO, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her. In addition to the specific adverse findings made against the local authority, SW and PO also complain that there was no justification for the judge deploying the strong adjectives that he used in describing the scale of his findings in a judgment which, in due course, in its final form, will be made public.
  • It is necessary to stress that the issues canvassed in this appeal relate entirely to process. This court has not been asked to analyse the evidence underpinning the judge’s adverse findings nor to determine whether or not the judge was justified in criticising the professionals as he did. The central point raised by each of the three appellants is that the prospect of them being the subject of such adverse findings was made known to them, for the very first time, when the judge gave an oral “bullet point” judgment at the conclusion of the hearing. It is submitted that individual and collective adverse findings of the type that the judge went on to make in his judgment, did not feature at all in the presentation of the case of any of the parties and were not raised in any manner by the judge during the hearing. In short terms it is said that these highly adverse findings “came out of the blue” for the first time in the judgment. The findings both in nature and substance have the potential to impact adversely upon the standing of the local authority and/or the employment prospects and personal life of each of SW and PO, yet none of the three had been given any opportunity to know of or meet the allegations during the course of the trial process. They therefore seek a remedy from this court to prevent the inclusion of these adverse and extraneous findings in the final judgment that has yet to be handed down formally and published as the judge intended it to be.

 

 

As a result, the SW has been suspended ever since and the police officer had to be taken off all criminal investigations (a bit of a problem for a police officer) because this judgment would be discloseable to the defence in ANY case involving that officer.  If the process in making the findings was fair, then those consequences would be utterly justified by the findings. But what if the process was NOT fair?

 

  • In the context of potential “legal consequences”, Mr Brandon draws specific attention to the requirement, as he submits it is, for the judge’s findings with respect to PO, if they stand, being “disclosable” material in relation to any criminal proceedings in which PO may be involved as a police officer in the future on the basis of the approach described in R v Guney (Erkin Ramadan) (Disclosure) [1988] Cr. App. R. 242. It is also at least arguable that these findings would amount to “reprehensible behaviour” (R v O’Toole (Patrick Francis) [2006] EWCA Crim 951) and, he submits, they are also capable of being adduced as evidence of “bad character” pursuant to Criminal Justice Act 2003, s 100 by the defence in a criminal trial. Mr Brandon went on to explain that it is common practice amongst constabularies in England and Wales to remove officers who are the subject of adverse judicial findings from the “evidential chain” as their participation in the investigation and prosecution of offences may jeopardise the prospect of convicting those whom they are investigating. If this occurred, PO would not be permitted to be concerned in obtaining evidence in criminal investigation thereby compromising her ability to continue to work as a police officer.
  • For SW, Mr Zimran Samuel, who acts on a pro bono instruction and to whom the court is most grateful for taking on this substantial case, has informed the court that SW who, following these proceedings went to work for a different local authority, has been suspended as a consequence of the judge’s findings and has been unable to work for any other authority since that time. He argues that that circumstance alone is sufficient to amount to a legal consequence sufficient to bring her appeal within the boundaries established by Cie Noga. Mr Samuel adopted the submissions that had been made on behalf of the local authority and PO before making detailed submissions on behalf of SW focussed upon the specific findings of fact made against her. It is not necessary in this judgment to consider that level of detail, although the court fully understands the importance to SW of the points that have been made on her behalf.

 

 

Both of them appealed, so the Court of Appeal had to look at :-

 

  1. A) Can a witness appeal at all? (and the vexed question of whether you appeal against FINDINGS, or ORDERS – an issue that the Court of Appeal change their mind on just about every time the issue comes up)
  2. B) Does the Court as a public body owe article 6 and article 8 duties to WITNESSES ?
  3. C) Was the process adopted here fair?
  4. D) Is there guidance to Judges in similar situations?

 

The Court of Appeal held that in the circumstances of this case, where the witnesses lives were significantly and materially affected by the process, they could appeal, and that they could appeal against the findings. (Those bits are all quite legalistic and compex, so I’ve just given you the answer. The working out is at paras 19-65)

 

Process and fairness

Unfairness

 

  • It is plainly necessary to consider what elements of procedural fairness are required by Art 8 in this context. In my view, however, for the purposes of deciding this appeal, it is unnecessary to go beyond what must be an essential factor to be included on any list of the elements of procedural fairness, namely giving the party or witness who is to be the subject of a level of criticism that is sufficient to trigger protection under Art 8 (or Art 6) rights to procedural fairness proper notice of the case against them.
  • Mr Brandon submits that it is a basic element of fairness for a judge to ensure that criticisms of the nature that he came to find proved are put to the witness rather than appearing for the first time ‘out of the blue’ (to use Mr Brandon’s phrase) in the judgment. Reliance is this regard is placed upon the Court of Appeal decision in Markem Corp v Zipher Ltd [2005] EWCA Civ 267, which was a patent case that included an assertion of procedural unfairness. Lord Justice Jacob, giving the main judgment, drew attention to a 19th century House of Lords decision of Browne v Dunn (1894) 6 R 67. The case report of Browne v Dunn is sparse, but Jacob LJ sets out in full the relevant parts of their Lordships’ opinions at paragraph 59 of his own judgment in Markem. Of particular note is the following in the speech of Lord Herschell LC:

 

‘Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.’

Other members of House of Lords gave speeches that expressly concurred with the Lord Chancellor on this point and the authority of Browne v Dunn was fully endorsed by this court in the course of its decision in the Markem case.

 

  • The statement of the law in Browne v Dunn must however be read alongside the authoritative description of the role of a judge given by Lawton LJ in Maxwell v Department of Trade and Industry [1974] QB 523 at page 541 B-D:

 

“The researches of counsel have not produced any other case which has suggested that at the end of an inquiry those likely to be criticised in a report should be given an opportunity of refuting the tentative conclusions of whoever is making it. Those who conduct inquiries have to base their decisions, findings, conclusions or opinions (whichever is the appropriate word to describe what they have a duty to do) on the evidence. In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more.”

 

  • During the detailed submissions made on behalf of PO by Mr Brandon and of SW by Mr Samuel, we were taken to the transcript of the oral evidence which demonstrated beyond doubt that the matters found by the judge were not current, even obliquely, within the hearing or wider process in any manner. None of the key findings that the judge went on to make were put by any of the parties, or the judge, to any of the witnesses and there is a very substantial gap between the cross examination, together with the parties’ pleaded lists of findings sought, and the criticisms made by the judge. In this respect this is not a matter that is finely balanced; the ground for the criticisms that the judge came to make of SW, PO and the local authority, was simply not covered at all during the hearing.
  • For my part it became clear from reading the transcript that the cross-examination of SW and PO had been entirely conventional in the sense that it dealt with ordinary challenges made to the process of enquiry into the allegations of sexual abuse and was conducted entirely, to use Mr Geekie’s phrase, within the four corners of the case. At the conclusion of the oral evidence, in closing submissions no party sought findings that went beyond those conventional challenges. At no stage did the judge give voice to the very substantial and professionally damning criticisms that surfaced for the first time in the bullet-point judgment.
  • It can properly be said that by keeping these matters to himself during the four week hearing, and failing to arrange for the witnesses to have any opportunity to know of the critical points and to offer any answer to them, the judge was conducting a process that was intrinsically unfair.
  • For my part, in terms of the decision in this appeal, it is not necessary to go further than holding that, unfortunately, this is a fundamental and extreme example of ‘the case’, as found by the judge, not being ‘put’ to SW and PO. However, out of respect for the thoughtful and more widely based submissions that have been made, and because the ramifications of this decision may need to be considered in other cases, I would offer the following short observations on other aspects of procedural fairness in the context of Art 8 in answer to the rhetorical question: ‘what should the judge have done?’.

 

 

To give you an illustration of this point, if I am cross-examining a witness, let’s say David Kessler, I may ask him questions as to whether his appetite for meat has increased in recent times, whether he has visited London Zoo recently, whether he is familiar with a pub called the Slaughtered Lamb.  But if I intend to ask the Judge at the end of the case to find that David Kessler is a werewolf, I have to actuallly put the allegation to him, and not just join up those dots. I have to ask him “Are you in fact a werewolf?” or words to that effect – SO THAT HE HAS THE CHANCE TO DENY IT and give an alternative explanation which might fit those other facts.

Similarly, if as in this case, nobody had actually asked the Judge to find that David Kessler is a werewolf, but the Judge is joining those dots for himself, it is not fair to David Kessler (whether he is a werewolf or not) that the first time he hears of the possibility is when the Judge delivers a judgment.

 

In a case like this, where the Judge was considering (and did) make a finding that the social worker had lied and entered into a conspiracy, that question has to actually be put. It isn’t sufficient to join the dots – the bald question has to be asked.

 

The SW and Police officer won the appeal, the process had not been fair.  (Note in particular that at no point did anyone in the case seek these findings or declarations and the first anyone knew of it was in the judgment).  The Court of Appeal also interestingly said that the Court owes an article 6 right to fair trial to the Local Authority   (the LA is not owed any art 8 rights, though the witnesses were)

 

By way of general guidance

95.Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

 

 

 

  1. a) Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence;

 

  1. b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;

 

  1. c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.

 

 

 

Article 8: Conclusions

97.In the light of the law relating to ECHR Art 8 as I have found it to be, it is clear that the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge. The finding of breach of Art 8 does not depend on whether or not the judgment is published; the need to inform employers or prospective employers of such findings applies irrespective of whether the judgment is given wider publication. In short terms, the reasons supporting this conclusion are as follows:

 

 

 

  1. a) In principle, the right to respect for private life, as established by Art 8, can extend to the professional lives of SW and PO (R (Wright) v Secretary of State for Health and R (L) v Commissioner of Police for the Metropolis);

 

  1. b) Art 8 private life rights include procedural rights to fair process in addition to the protection of substantive rights (Turek v Slovakia and R (Tabbakh) v Staffordshire and West Midlands Probation Trust);

 

  1. c) The requirement of a fair process under Art 8 is of like manner to, if not on all-fours with, the entitlement to fairness under the common law (R (Tabbakh) referring to Lord Mustill in R v Secretary of State for the Home Department, Ex Pte Doody);

 

  1. d) At its core, fairness requires the individual who would be affected by a decision to have the right to know of and address the matters that might be held against him before the decision-maker makes his decision (R v Secretary of State for the Home Department, Ex Pte Hickey (No 2));

 

  1. e) On the facts of this case protection under Art 8 does extend to the ‘private life’ of both SW and PO for the reasons advanced by their respective counsel and which are summarised at paragraphs 61, 86 and 87;

 

  1. f) The process, insofar as it related to the matters of adverse criticism that the judge came to make against SW and PO, was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘put’ to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.

98.As will be apparent from this analysis of the issues in the context of ECHR Art 8, I regard the process adopted by the judge in the present case to have fallen short by a very wide margin of that which basic fairness requires in these circumstances. The occasions on which such circumstances may occur, or develop during proceedings, will, I anticipate, be rare. This judgment should be seen by the profession and the family judiciary to be a particular, bespoke, response to a highly unusual combination of the following factors:

 

 

 

  1. a) a judge considering himself or herself to be driven to make highly critical findings against professional witnesses, where

 

  1. b) such findings have played no part in the case presented by any party during the proceedings, and where

 

  1. c) the judge has chosen not to raise the matters of criticism him/herself at any stage prior to judgment.

 

99.The fact that, so far as can be identified, this is the first occasion that such circumstances have been brought on appeal may indicate that the situation that developed in the present case may be a vanishingly rare one. For my part, as the reader of very many judgments from family judges during the course of the past five years, I can detect no need whatsoever for there to be a change in the overall approach that is taken by judges.

 

 

100.The present case is, unfortunately, to be regarded as extreme in two different respects: firstly the degree by which the process adopted fell below the basic requirements of fairness and, secondly, the scale of the adverse findings that were made. This judgment is, therefore, certainly not a call for the development of ‘defensive judging’; on the contrary judges should remain not only free to, but also under a duty to, make such findings as may be justified by the evidence on the issues that are raised in each case before them.

 

 

 

All of the adverse findings were set aside and were to be removed from the judgment before it was published – so not mere redaction, but actual removal of them as legal findings.  [This is where I have the difficulty, since those original findings were grave, and I think to simply ignore them on a technicality is uncomfortable.  Of course, unless the Judge’s decision on the child was wrong and being appealed, it is hard to come up with a framework to have a re-hearing of the allegations about the professional witnesses, but it still doesn’t sit well with me. It looks like a whitewash]

 

Remedy on appeal

119.Where, as I have found to be the case here, the adverse findings complained of have been made as a result of a wholly unfair process and where, again as here, the consequences for those who are criticised in those findings are both real and significant, it is incumbent on this court to provide a remedy and, so far as may be possible, to correct the effect of the unfairness that has occurred. In the present case what is sought is the removal from the judgment of any reference to the matters that were found by the judge against SW, PO and the local authority that fell outside the parameters of the care proceedings and had not been raised properly, or at all, during the hearing.

 

 

120.Mr Feehan accepts, as I understand it, that if this court reaches the stage that, in my judgment, it has indeed reached, then redaction from the judgment must follow, subject to any submissions as to detail. I agree that that must be the case. So that there is no ambiguity as to words such as ‘removal’ or ‘redaction’ in this context, I make it plain that the effect of any change in the content of the judge’s judgment that is now made as a result of the decision of this court is not simply to remove words from a judgment that is to be published; the effect is to set aside the judge’s findings on those matters so that those findings no longer stand or have any validity for any purpose. The effect is to be as if those findings, or potential findings, had never been made in any form by the judge.

 

 

 

 

 

And general guidance for other cases:-

 

 

108.Looking at this issue in general terms, it must, in some cases, be possible, where a court is contemplating making findings which may have arisen outside the original focus of the case, for the court to embark on a process which allows for those affected to make submissions and/or submit evidence in relation to those matters before final judgment is given. I have already described some of the basic elements in such a process at paragraph 95. For those additional steps to be an effective counter-balance to a process which might otherwise be seen as a whole to be unfair, they need, in my view, to be undertaken before the judge has reached a concluded decision on the controversial points. Whilst not impossible, it is difficult to conceive of circumstances where the overall fairness of the hearing could be rescued by any form of process after the judge has reached and announced his concluded decision. Where a court is considering making findings that have not, thus far, been foreshadowed in the proceedings I would suggest that, at the very least, the judge should alert the parties and, if necessary any affected witness, to the potential for such an outcome so that the steps in paragraph 95, and any other relevant additional matters, can be openly canvassed during the hearing and before any judgment is given.

 

 

The Court of Appeal went on to consider criticism of expert witnesses (and of course this year we have seen the very different approach to the radicalisation case where the Judge savaged the ISW in the judgment without her knowing in advance that this was possible, and the psychologist who made up quotes who had the chance to be represented by a Silk at a hearing where the declarations sought were all set out in advance)

“Fell far short of the promise foreshadowed in her CV” (radicalisation, Tower Hamlets)

 

Tape recording of an expert (a SHOCKING case)

 

Both of these experts had their reputation, and integrity, and livelihood put in doubt by these judgments – and the processes were wildly different.

 

Criticism of Expert witnesses

101.It is, unfortunately, sometimes the case that a judge in civil or family proceedings may be driven to criticise the professional practice or expertise of an expert witness in the case. Although what I have said with regard to a right to fair process under ECHR, Art 8 or the common law may in principle apply to such an expert witness, it will, I would suggest, be very rare that such a witness’ fair trial rights will be in danger of breach to the extent that he or she would be entitled to some form of additional process, such a legal advice or representation during the hearing. That this is so is, I suspect, obvious. The expert witness should normally have had full disclosure of all relevant documents. Their evidence will only have been commissioned, in a family case, if it is ‘necessary’ for the court to ‘resolve the proceedings justly’ [Children and Families Act 2014, s 13(6)], as a result their evidence and their involvement in the case are likely to be entirely within the four corners of the case. If criticism is to be made, it is likely that the critical matters will have been fully canvassed by one or more of the parties in cross examination. I have raised the question of expert witnesses at this point as part of the strong caveat that I am attempting to attach to this judgment as to the highly unusual circumstances of this case and absence of any need, as I see it, for the profession and the judges to do anything to alter the approach to witnesses in general, and expert witnesses in particular.

 

 

The Court of Appeal were trying to be as clear as possible that they weren’t asking Courts to approach the issue of assessment of witnesses and criticisms of witnesses differently or defensively, and that the issues in this case arose really because the specific allegations that led to the findings weren’t actually put to the witnesses, or sought by the parties. If the social worker and police officer had been asked the direct questions and known that such findings were sought, then the Judge’s findings could have been upheld.

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LIP Service

Posted on October 8, 2016 by suesspiciousminds

 

Important High Court authority that states that where a case involves both a Litigant in Person AND a lawyer, the lawyer has to ensure that any case management documents and case law is provided to the litigant in person at least THREE WORKING DAYS before a contested hearing.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2365.html

 

This, when you see it in black and white is of course fair. In this case, the litigant in person was handed counsel’s position statement and case law relied upon at the first morning of the final hearing, 114 pages of fresh information, much of it quite dense. That can’t be fair.

It will though necessitate a change in working practice. The reason the documents aren’t provided three days in advance generally is that they just don’t exist at that point. We have got used to a “Just in Time” pace, where the substantial prep for a hearing is done closer and closer to the actual hearing; in part just as a result of volumes of work and in part because with so many cases the position three days before a hearing bears little relationship to the position AT the hearing.

 

This is going to apply to a lot of private law cases, but also care proceedings where there’s an unrepresented Intervenor or party such as grandparents. It will also apply to adoption and leave to oppose adoption cases where it is very rare for the parents to obtain free legal representation.

 

The Judge, Mr Justice Peter Jackson also reminds us of the Practice Direction Rules which state that a bundle must be provided to counsel not less than 3 working days prior to the hearing.

 

The Rules

    • PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:
  • The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing
  • Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing
  • The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing
  • The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that

 

 

Hands up anyone who is regularly experiencing that.

 

Ah, I see Ms Azim of counsel is rising to her feet. To agree that she always receives bundles three working days before the hearing in accordance with PD27A ?  Not quite

 

http://www.familylaw.co.uk/news_and_comment/this-lawyer-s-life-ping-goes-the-practice#.V_ixssk1Ouc

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Law for social workers (Part 1)

Posted on August 18, 2016 by suesspiciousminds

This piece is aimed at social workers, but it isn’t exclusively for them. Basically, the law has moved very fast in care proceedings since I started writing this blog, and on Twitter yesterday there was a conversation about there not being an easy place for social workers to find out what they now need to know.  So the idea here is two short(ish) pieces that tell you all of the important legal principles and then in part 2, what the specific tests are for each sort of order.

 

None of this is intended to be a substitute for getting legal advice from your own lawyer, it is just a guide to what sort of things the Court is looking for, and what tests they are applying. If you’re very confident about the basics, you can skip to Part 2  (though not immediately, because I am still writing it!)

 

The Acts

 

We all know, I think, that there are two main pieces of legislation involved in care proceedings.

 

The Children Act 1989

http://www.legislation.gov.uk/ukpga/1989/41/contents

 

and The Adoption and Children Act 2002

http://www.legislation.gov.uk/ukpga/2002/38/contents

 

There are a few others that come up occasionally – the Mental Capacity Act 2005,  the Care Act 2015, the Children and Families Act 2014 and various mental health Acts, Housing Acts, if you’re really really unlucky Education Acts.  And of course, the Human Rights Act 1998 permeates everything. In terms of the Human Rights  Act – the big bits that you need to know is that a social worker, as part of the State, owes parents duties under the Human Rights Act – they owe parents an article 6 right to fair trial (which is not limited just to Court, but involves fairness in all decisions) and interference by the State with parents Article 8 rights to private and family life, which can only be done where it is PROPORTIONATE and NECESSARY.

 

Key principles of the Acts

 

  1.  The Child’s Welfare is the Court’s paramount consideration when making any decision – it won’t be the only consideration, but it is the main one.
  2. The Court can only make an order if satisfied that doing so is better for the CHILD than making no order  (the ‘no order principle’)
  3. Any delay is harmful to the child, and has to be justified (the ‘no delay principle’)
  4. The Court should try to make the least serious of the orders available to it, if that will meet the child’s needs  (‘the least interventionist principle’)
  5. There’s a set of guidance of the main issues for the Court to consider when making decisions about children – the Welfare Checklist. Parliament has given us that as a valuable toolkit to reach the right decisions, and you stand the best chance of making the right decisions if you use it.

 

And from Human Rights, the key principles are :-

FAIRNESS  – in all decisions, strive to be fair – take things into account, even when they don’t fit with your hypothesis or initial thoughts, listen to what parents have to say, be honest about what you are seeing, recognise change when it is happening, be willing to consider that you might be wrong. Try to approach the task of working with a family in the way that you would hope someone would work with you if the roles were reversed. Recognise that for a parent, the State can be a scary and powerful force – you might not feel powerful yourself, but be alive to the possibility that that is the way the State can come across. Imagine someone coming into YOUR home, looking in YOUR cupboards, criticising YOUR relationship. It might need to be done, but be aware that it doesn’t feel nice to be on the receiving end.

NECESSITY – is it NECESSARY to do X or Y?  Not just is it helpful or useful or desirable, but did it NEED to be done? And even if it NEEDED to be done, did it NEED to be done in that particular way?

PROPORTIONALITY – looking at what you’re worried about and what you want to do about it, and thinking hard about whether what you want to do is proportionate to the worries that you have.

All of those principles really boil down to being a REASONABLE person – if you are reasonable, and try to do the job in a REASONABLE way, the Court’s are more likely to be receptive to what you’re saying and you are going to be less exposed in the witness box than someone who goes around like a bull in a china shop.

 

The threshold criteria

 

In order for the Court to make an Emergency Protection Order, or a Care Order or Supervision Order, or Interim Care Orders or Interim Supervision Orders, they need to be satisfied that the threshold criteria is met. If there’s no threshold criteria, the Court CANNOT make the order.

The burden of proof (who has to prove it) is on the Local Authority. It is for the Local Authority to PROVE that the child has suffered significant harm, or is at risk of such harm, NOT for the parent to prove that the child isn’t.

The standard of proof (how sure does the Court need to be) is the BALANCE OF PROBABILITIES.  If a Court thinks that something is MORE LIKELY THAN NOT to have happened (in percentage terms 50.000001% or higher) then that is sufficient.  If a Court thinks that the LA has NOT proved that, even if there’s a 49.99999999% chance of it having happened, then in law it did NOT happen. When it comes to factual issues, the law is binary – if it is MORE LIKELY THAN NOT to have happened, then it happened, if not, it DIDN’T.  And if it is exactly 50-50 (which doesn’t happen often, but it HAS happened) then the burden of proof means that the LA failed to prove it was more likely than not, so it DIDN’T happen.

The threshold criteria itself

 

s31 (2)A court may only make a care order or supervision order if it is satisfied—

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.

 

The likely to suffer has been quite tricky to resolve over the years – basically, if you’re going to say that a child is LIKELY to suffer significant harm, you need to :-

 

(a) Prove some facts

(b) Prove that those facts mean that there is a risk of significant harm

(c) Prove that it is MORE LIKELY THAN NOT that the risks involved ‘cannot sensibly be ignored’

 

So you don’t HAVE to show that the risk is MORE LIKELY THAN NOT to materialise.  Sometimes, if the level of the possible risk would be very serious, there can be a lesser chance of it happening as long as there is a FACTUAL basis for saying that the risk exists and it cannot be ignored.

 

Case law

The Acts themselves only give you so much – most of the legal arguments are about how to intepret those Acts – what precisely does such and such a word mean, what has to be taken into account when deciding whether such and such applies. Rather than different Courts across the country having the same arguments over and over and coming to different decisions in different places, when an important point of principle is decided  (for example – WHEN does the threshold criteria have to be satisfied? When proceedings were issued? When they finish? What if the child was in foster care for 2 months before issue – the child wasn’t at any risk in that placement…)  a senior Court – the High Court, the Court of Appeal, the Supreme Court decides a case that deals with that point, and that’s the answer from then on  (in this example, threshold has to be satisfied when the Local Authority ‘took protective measures’  – that could be by issuing, or it could be by a section 20 placement or written agreement)

The next time THAT issue comes up, the Court is able to say ‘well, that’s been decided now, there’s a PRECEDENT for it, and we’ll follow that’.   The Children Act has been around for over 25 years and you would think that all of these technical and interpretation questions would have been sorted out years ago now, but they still keep coming, and occasionally the interpretations change or shift a bit.

For basically ALL of the things that a social worker might want to do, or ask the Court for, knowing what the Act itself says is just the tip of the iceberg. The really important information, and the wording that you are working to is set out in case law.  And as I said, it changes.

 

Part 2 is going to tell you what the current case law says about the various tests – and I’ll keep this up to date when it changes. The law is moving quickly at the moment, particularly in relation to adoption.

 

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

 

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Settlement Conferences

Posted on July 6, 2016 by suesspiciousminds

Settlement Conferences are a new idea in English (and Welsh) family law, though they have been used in other jurisidictions, including Northern Ireland. The thinking is rather like the Financial Dispute Resolution in ancillary relief – you get all of the evidence together, the parties go in front of a Judge who will NOT be hearing any contested hearing and together as a group they try to see if there is a way of agreeing the case that everyone can live with. If they really can’t agree, everything discussed at that hearing is locked away and isn’t used by anyone at the final hearing which will be before an entirely different Judge and all they will know is that agreement wasn’t reached (they won’t be told what the first Judge suggested or indicated, or who gave ground and who didn’t, or what the sticking points were)

The idea is to settle the case by agreement, instead of having the stressful, time-consuming and (for the State/taxpayer) expensive final hearing.

In a money case, that’s always a live possibility – since going to a final hearing costs each side money (even if they are legally aided, their legal costs have to be paid back at some point out of the money they recover) and you know, money has loads of different ways of being divided and some of those ways can result in each side getting something they are happy with.  In a Children Act case where the social work plan is adoption and the parents want the child home, there’s rather less room for compromise – it’s not easy to come up with a way where everyone leaves happy. So it can feel a bit more like a Settlement Conference is one side being told that they are LIKELY to lose at final hearing and to give up.

 

Sarah Philimore sums it all up very well here

 

Guidance from the Ministry of Justice about ‘Settlement Conferences’

 

The Association of Lawyers for Children have published guidance to their members and it is strong, punchy stuff

 

Click to access ALC_Guidance_to_Members_on_Settlement_Conferences_July_1st_2016.pdf

 

For example

Care and adoption proceedings are a grave interference in family life by a public authority. They can have consequences for several generations.
We believe the scheme may be in breach of the ECHR Article 6 and 8 rights of both parents and children.
The right of individuals to communicate privately with their legal representatives is a cornerstone of access to justice.
The right to professional advocacy is wholly undermined if lawyers are expected to remain silent.
A child cannot have a fair hearing if his parents have not.

 

and

 

5…. The essential difference between a conventional IRH and the settlement conference lies in the judge seeking directly to persuade the parties to agree
with his or her view of the likely outcome , and expecting the parent or other parties to speak directly to the judge, without the protection of professional
advocacy and legally privileged advice.
6. The judge taking the settlement conference will not be the allocated judge,and therefore the scheme undermines judicial continuity, which has been a central
aim of the family justice system for many years. The settlement conference judge will not have the depth of knowledge and nuance of the case and may
therefore arrive at the wrong conclusion about the merits.
Apart from the issue of further delay, there is a risk, particularly in the smaller court centres, that the judge who deemed the case suitable for a settlement conference will
communicate their disappointment to the trial judge if the conference fails to produce a settlement.
7.Lawyers are to be present at settlement conferences, but they are discouraged from speaking, and therefore their presence provides only a semblance
of legal representation and due process.
The judge may ask a question directly of the lay client which the lawyer objects to, but the client may answer before the objection
can be made. The judge may attempt to restrict the lawyer’s interventions as an undermining of the process.
The passive presence of lawyers will not best serve the parents’ or child’s interests, but will serve to make appeals from “consent” decisions more difficult
to launch. We believe it will be very difficult if not impossible for our members to discharge their overriding professional duty to
promote the interests of their clients in such an environment.
8.The parents in care cases are usually vulnerable and disadvantaged individuals, a disproportionate number of who have learning disabilities and mental
health problems. They find it difficult to articulate their experiences and present their views effectively in a court room setting. They are inevitably under considerable
emotional stress when attending court about their children. Being directly addressed by the judge and expected to reply is likely to be experienced by the
parent as a form of pressure to make concessions, no matter how tactful and skilled the judge may be. The scheme is intended to produce settlement by
bypassing lawyers and using the judge’s authority and personality toproduce concessions. If it were not, it is difficult to see why the settlement
conference should produce a better rate of settlement than a properly conducted IRH.
9.The scheme will seriously undermine public confidence in the fairness and transparency of judicial decision-making in the family courts.Public confidence in the
“secret” family justice system is shaky.
Final decisions for the permanent removal of children from their parents made “by consent”, without parents having the benefit of legal representation and
privileged advice, will be highly suspect.
This will further damage public trust in family justice.
It would be fair to say that there are still some kinks to work out. Shame that there wasn’t a consultation and dialogue before launch of the pilot to let these issues be ventilated. Whilst the pilot only covers a few local authorities, these are real families and real children who are undergoing a pilot scheme to make these life-changing decisions in a way that is critiqued as savagely as this.
Perhaps the pilots should cease whilst the MOJ get round a table with the ALC to discuss things.
I’d say the ALC response is a takedown that Brock Lesnar would be proud of.
Who is Brock Lesnar?
Only The Beast Incarnate, that’s who.
"My client, BRRRROCK Lesnar"

“My client, BRRRROCK Lesnar”

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Achieving best evidence – a very critical examination

Posted on May 20, 2016 by suesspiciousminds

 

The Court of Appeal in Re E (A Child) 2016  were addressing an appeal from findings of fact that the father had sexually abused all of the children, including making them have sex with a dog, and of having taken them to hotels given them drugs and pills and allowed other men to abuse them or watch them. (I apologise for that graphic opening, I will try to keep the graphic content out of the rest of the post)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/473.html

 

Quick history lesson – ABE, or Achieving Best Evidence, is the guidelines that were drawn up (and occasionally refreshed and honed) as to the police interviewing of children where allegations of abuse are being investigated. They came about as a result of the Cleveland scandal, where many children were removed into care for allegations of sexual abuse and the investigation process was flawed and nearly all of those children had been wrongly removed. When you think of the “Show us on this dolly where daddy touched you?” style of interviewing, that’s what ABE was aimed to stamp out.  The interviews are video-recorded and can be used as evidence in criminal proceedings and care proceedings – with the idea being that if the guidance is followed in spirit and to the letter, the chance of the child’s evidence having been contaminated or influenced by the person asking questions is reduced to a minimum. It’s really important.  I’m glad that the Court of Appeal are looking at this.

 

Let us start with  the delay between the allegations being made and an ABE interview being conducted.

  1. On 20th May 2015 the youngest child, D, then aged 7 years, made allegations to her foster carer implicating both Mr E and young A as having sexually abused her and her brothers. Further allegations were made to the foster carer by D on 25th May and these were in part supported by allegations subsequently made by her older brothers.
  3. All three complainant children were ABE interviewed by police on 27th May 2015. The reason for the delay between the initial complaint and the ABE interview was that the foster carer took the children away on a pre-arranged holiday during the intervening days. The process adopted by the foster carer, social workers and police, together with the content of the ABE interviews themselves, have been the subject of sustained challenge by the Appellant and those supporting the appeal before this court.

 

I have scoured the remainder of the judgment, but it does not seem to me that the delay forms part of the Court of Appeal’s criticism – there are MANY many others. It might, as a practitioner, have been helpful for the Court of Appeal to have been firm about the passage of time that ABE’s are taking – this one, in my experience, proceeded at rocket-lightning pace compared to the average ABE.  Sometimes, that passage of time reduces the chances of an accurate and reliable account being obtained – sometimes that account would rightly exonerate a parent and remove restrictions that are impacting on their family life, sometimes it would point strongly that there’s a case to be answered.

 

When should the Judge in the case see the ABE interviews?

 

In this case, the Judge had not watched the ABE interviews prior to the trial beginning. That, the Court of Appeal suggest, made the decisions she made at the start of the trial less solid (whether police officers should be called, whether the children should be called etc)

Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.

 

  1. It is apparent from the transcript and from the fact that the first day of the main hearing was spent in viewing the ABE material, that the judge had not viewed the videos prior to determining the Re W application on 3rd November. Although it may onerous to do so, it is necessary, before reaching a conclusion on an application for children to be called, for the court to gain a considered view as to the strength of the existing evidence. Sub-paragraphs 9(f) to (j) are plain on this point and require to the court to have regard to:
      1. ‘(f) whether the case depends on the child’s allegations alone;

(g) corroborative evidence;

(h) the quality and reliability of the existing evidence;

(i) the quality and reliability of any ABE interview.’

So the Judge needs to see the ABE interviews before the trial, in order to have a properly informed view as to whether the children should give evidence.

Fast-track interviews

Within this police investigation, the police officers went to see the children AFTER the ABE interviews were made, and conducted interviews with them to obtain more detail / to check their account. Those fast-track interviews were not recorded.

In early June the police log records that the officer in the case “has since the ABE-s in an attempt to get some clarity from the child[ren] about their disclosure, been to the home address and completed a series of fast track questions with the three children to assist in forming a chronology.”

  1. Although not formally part of the ABE interviews themselves, Mr Tyler also submits that the judge should have been extremely concerned that the same police officer had subsequently visited the three children to conduct a ‘fast-track’ interview with them. The concept of a ‘fast-track’ interview involving child complainants in a sexual abuse inquiry has not been encountered before by any of the very experienced counsel in this appeal or by any of the members of the court. Brief notes of the fast-track interviews are contained in the police computer log. B had compiled a handwritten note following his ABE interview and the officer ‘went through’ each point in the note with him, subsequently making a brief summary record on the computer log of what B may have said. Such a process is wholly at odds with the ABE guidance. The record contains the officer’s subjective summary of what the child may have said in response to direct questioning. There is no record of the questions that were asked or of the child’s actual responses. With C the officer ‘went through what C had disclosed to [the foster carer]’; again there is simply a short summary made by the officer of what C may have said.
  2. Mr Tyler’s case is that the fact that the ‘fast-track’ interview took place, without any apparent regard for due process or the potential effect on the ability of the evidence of any of these children to be relied upon in any subsequent criminal proceedings, indicates a need for great caution in placing any reliance on the validity of the earlier process conducted by the same officer(s).

 

(Whilst I haven’t come across “fast-track interviews” taking place AFTER the ABEs, it has become common and in my view sloppy practice, that they happen beforehand, often as a sifting or viability assessment to see if the child will make any disclosures at the ABE.  They are often labelled as Q and A’s. And I think that they are wrong, for all of the reasons above)

  1. However, Mr Tyler has succeeded in demonstrating the following significant departures from recognised good practice by those undertaking the ABE interviews:

c) The children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning.

d) The short summary note of what each child may have said during the fast track process is wholly inadequate.

[We’ll come back to the many other flaws. Again, I wish that the Court of Appeal had condemned the process of police interviewing children either before OR after the ABE process, but one can read between the lines]

Phase one of the interview not being filmed

Phase one is of course a very critical part of the interview – it is where rapport is built, and any observer can see how it established that the child understands things and understands the difference between truth and lies.  I have never heard of this not being filmed before.

Mr William Tyler QC, leading Ms Jennifer Steele who appeared for the appellant before the judge, has identified a number of potential flaws in the ABE process. The first relates to “Phase 1” as described in the ABE guidance in each of the three interviews. “Phase 1” is the preliminary part of the interview in which the interviewer establishes a rapport with the child through the discussion of neutral, non-relevant topics after a preliminary description of the room and the identity of each of those present. Phase 1 should also include a discussion of the “ground rules” and an attempt to establish the degree to which the child understands the importance of telling the truth and the difference between truth and lies. It is apparent that, whatever process was undertaken with each of these three children with respect to the Phase 1 matters, it occurred off camera. The absence of recorded information as to this important early stage is compounded by the fact that no written record was kept of these interviews, as is normally required within the ABE scheme or, if any written record was maintained, it has not been disclosed into the family proceedings. It is therefore plain that the interviewer had some discussion with each child before entering the video suite, but there is no evidence of what was said. Mr Tyler submits that this gap in the evidence is important and can only reduce the potential for a judge to rely upon the answers given by the children in the subsequent stages of each interview which were recorded. 

The Court of Appeal add that to the list of findings about flaws in the ABE process.

a) The introduction and ‘truth and lies’ aspects of Phase One were not undertaken on camera. There is no note or other record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite.

What came across as the purpose of the ABE

  1. Moving on, Mr Tyler submits that each of the three interviews is of a very poor quality in that the interviewing officer, with each child, uses blatantly leading questions during which elements of the narrative, not previously referred to by the child, are introduced. A most striking example of this is at the very start of the taped part of D’s interview, less than one page into the transcript where the officer says:
    1. ‘Okay I think that’s about it for me isn’t it we’ve done the intros. So obviously we know why you’re here today about what we’re going to talk to you about, yes, and I think it’s something you told [foster carer]. Okay can you just tell me, go from the start as much as you can about what’s been happening, do you remember what you told [foster carer], do you remember talking to her last week about something that had been happening with you and your brothers?’

D is unresponsive to this and similar requests, which then leads the interviewer to add:

‘[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E’s first name given] and [incorrect name for A given], do you remember that now?’

This is but one example of the approach to questioning adopted by this interviewer throughout each of the three interviews.

  1. Mr Tyler took us to TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597 in which this court was highly critical of the ABE process that had been undertaken in that case. At paragraph 52 Sir Nicholas Wall P said:
      1. ‘As we have already pointed out, the [ABE] Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we are left with the clear impression from the interview that the officer was using it purely for what she perceived to be an evidence gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.’ [Emphasis in original]

It is a very easy trap to fall into during an ABE interview, which is precisely why there is so much guidance in Achieving Best Evidence, and why it requires specific training to be able to do it properly, and why sloppiness and deviation from the Achieving Best Evidence guidelines is so important. This is classic Cleveland Enquiry stuff.

I am not attacking these individual officers, I think it is a national malaise that Achieving Best Evidence isn’t as integral to the process as it needs to be.  And of course, police officers are fundamentally trained to investigate a crime and get the evidence of it happening. In an ABE, the fact that there may have been no crime and there may be evidence from the children of that, is just as important.

 

The hour-long break in the interview

 

For one of the children, the interview paused in the middle for an hour. When it resumed, the child was substantially more forthcoming. The obvious question is, what EXACTLY happened in the interim?

 

As I have already indicated, the interview with D was interrupted at that point for approximately one hour during which time the child was elsewhere in the police station. On returning to the interview room her demeanour is markedly different from the unresponsive presentation previously demonstrated. Again, no written record has been provided of what transpired during this interval. Mr Tyler submits that the judge should have permitted the police officer to be called to explain events during the missing hour. The only evidence available came from the foster carer who claimed that she said no more to D than “you need to say all the things while you are here, D”.

 

The Court of Appeal accepted this as a significant flaw

b) No note was kept of what transpired with D in the police station during the hour that she was out of the interview room.

 

The Judge’s refusal to call the police officer

 

Given the identified flaws, the Court of Appeal felt that the Judge was wrong to have refused the application by the parents to have the police officer attend Court to give evidence. And of course she made that decision not having seen the ABE interviews themselves.

The absence of information as to the Phase One process, the need to understand from the police officers what, if anything, they had said to D during her one hour absence and the need to understand in greater detail than the computer log provided what occurred during the fast-track interviews, made it necessary, in my view, for the police officer to be called. In the context of an 8 day hearing, the judge’s refusal of the application to call the officer on the basis that it was too late was, on the information given to this court, wrong in the absence of clear evidence that it would not be possible to call the officer at some stage in the hearing (either in person or over a video or telephone link).

 

Judicial analysis of the ABE interviews

  1. The conclusion that I have reached to the effect that it was not open to the judge to hold that the ABE interview material was reliable in the absence of a full and thorough evaluation of the potential impact of the numerous breaches of procedure, renders it unnecessary to undertake a full description of the various criticisms that Mr Tyler makes of the judge’s evaluation of the children’s evidence. The key matters raised are, however, important and are as follows:
    1. a) The judgment opens, after four short introductory paragraphs, with the judge’s summary of the ABE interviews of each child. These summaries, which are not set into any context and are not preceded by any account of what the children are reported as having said when the allegations were initially made to the foster carer, elide description with selective evaluation and then findings.

b) No consideration is given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.

c) In the absence of any direct corroborating evidence, the judge failed to evaluate the various factors which militated against the truth of the allegations.

d) There is a failure to take account of the fact that C had twice made, and later withdrawn, false allegations of sexual abuse against other individuals.

e) The judge wrongly reached the conclusion that the evidence of each child corroborated that of the others. There was inadequate analysis of inconsistencies in the accounts, both internally for each child and between the three children.

  1. Although I consider that there is some validity in each of the grounds of challenge that Mr Tyler has raised, the most significant, in my view, is the first relating to the judge’s analysis of the content of the ABE interviews and the last relating to inconsistencies. I do not propose to say anything more as to the content of the ABE material and I will deal with the point about inconsistency very shortly.
  3. Mr Tyler’s skeleton argument plainly establishes the following propositions on the available evidence:
  1. i) each child gave a different account to that given by his or her siblings;

ii) each child made a number of significant factual allegations to the foster carer which were not repeated in their ABE interviews; and

iii) B effectively made no allegations of sexual abuse in his ABE interview.

  1. The judge’s approach to inconsistencies is seen at paragraph 16 of the judgment:
    1. ‘D’s account is different from her brothers. There are inconsistencies in the accounts between the three children which is said undermines the veracity of the accounts but the very same inconsistencies are also evidence that the children have not colluded or rehearsed their evidence. I am satisfied that this is not a prepared script.

Later, at paragraph 28, she states:

‘There is consistency from all three in the ABE interviews, which, although different, each corroborate different aspects of the primary disclosure.’

Finally, in response to a request for clarification after the draft judgment had been circulated, the judge added:

‘The inconsistencies in the children’s ABE interviews are addressed.’

  1. I am afraid that I consider that the judge’s approach to the many inconsistencies within the children’s accounts falls well short of the level of analysis that this evidence required. Without descending to detail, three short points can be made. Firstly, whilst it is correct that the inconsistencies did not demonstrate that the children were trotting out a script, that observation could not, at a stroke and without more, obviate the need for the judge to evaluate the inconsistencies in more detail. Secondly, it is simply not possible to hold that each child giving a different account in his or her ABE interview in some manner corroborates the account given by one or both of the others. As the judge observed, D’s account in her ABE interview was different to her brothers. B’s ABE interview was effectively devoid of any positive allegation being made at all by him. That is not corroboration. Thirdly, this broad brush and superficial approach to the inconsistencies was carried forward by the judge when making her detailed findings which include a number of specific allegations which were only made by one of the children on one occasion and neither repeated by them subsequently nor supported by a similar account from either of the other two children.

 

 

The children giving oral evidence – the Judge’s decision

 

  1. The question of whether or not any of the children should be called to give live evidence was considered by the judge at the IRH on 3rd November 2015. Prior to that hearing Ms Steele, on behalf of the Appellant, had filed a six page position statement in support of the formal Re W application that had been made on behalf of her client. In her document Ms Steele makes detailed submissions relating to the evidence in these proceedings under the various headings identified by Baroness Hale in Re W and supplemented by guidelines issued by the Family Justice Council Working Party on Children Giving Evidence (set out at [2012] Family Law 79).
  3. The transcript of the hearing on 3rd November 2015 did not become available to the court and the parties until the morning of the oral hearing of this appeal. Prior to that stage each party had referred to the judge giving a very brief judgment prior to dismissing the Re W application. The transcript, however, shows that, in fact, no judgment of any sort was given by the judge on that day. During the course of the ordinary business of the IRH the judge made the following references to the topic:
    1. “[the presence in court of the Guardians in the F Children’s case during the fact finding hearing would enable the Guardians/court]… to keep under review whether or not, for example, if I decided against hearing the evidence from the children, I do not know whether I will or not, I have not decided that, but that might be something which will need to be kept under review, because it is possible that the way the evidence comes out suddenly an issue becomes very, very clear which needs to be resolved factually and it would be therefore helpful to the Court, if the Guardians relevant to all the children were able to give guidance, help, recommendations in respect of whether or not I should for example revisit the decision that I made earlier.” (Transcript page 7).

“Well I think at some point a determination is going to have to be made in respect of the evidence of the children and it is probably better to do that in isolation at an earlier stage…”

Ms Steele relied upon the detailed submissions made in the context of Re W in her position statement. The transcript then continues:

“JUDGE WATSON: Well Ms Steele I am very pleased to see how you have set out it. You have set it out very clearly the concerns and the difficulties and indeed the contradiction in terms of the evidence. What I am struggling to see is how calling the children is actually going to improve his position. All of these matters can be dealt with in a written position statement as you have done, in oral submissions, because the one question that you cannot put to the child witnesses, is, ‘You’re lying aren’t you’.

MS STEELE: I accept that. However, the Local Authority are reliant on the evidence given to a number of different sources of the truthfulness of that.

JUDGE WATSON: Yes.

MS STEELE: My client or me on my client’s behalf have to be able to, in my submission, not put to them that they’re lying but be given the opportunity to put to them the contradictions in their evidence.

JUDGE WATSON: Well I would not allow you to put the contradictions. You have got to bear in mind the age of the children-

MS STEELE: I of course-

JUDGE WATSON: -and their ability to deal with that sort of complex questioning. It is, the type of questioning which the, I am sure you are very familiar with the advocates tool kits and the gateway rules that apply in criminal proceedings that would apply in a case like this, and they set it out very clearly. I have just, for my own benefit, just summarised them as no repetitive questions, short questioning, no need to put the case, no tag questions, no comments. So all of the matters which you have properly put out, set out in this [inaudible], could not be put to the child witnesses.

MS STEELE: What, my understanding is that of course I can try and clarify the evidence they have given. Yes, I can’t put certain things and I fully accept that but I can put to them certain inconsistencies or certainly ask them to clarify which they say is correct. That kind of thing. Excuse me.

JUDGE WATSON: Well and to what end that you have confused the witnesses, that is not going to help the Court in deciding where the veracity in truth is. The truth is by looking at the careful submissions that you have made and weighing those into the balance. I do not necessarily have to accept what a child says on an ABE interview.

MS STEELE: No.

JUDGE WATSON: I need to look robustly at what is said in the light of all the other evidence that I hear.

MS STEELE: My Lady I don’t think there’s very much else that I can add-

JUDGE WATSON: No.

MS STEELE: -with what I’ve already said in there and what I’ve said to you.

JUDGE WATSON: Yes.

MS STEELE: There’s really nothing else I can add.

JUDGE WATSON: No.

MS STEELE: Unless you would like me to attempt to-

JUDGE WATSON: No, I, you have set it out extremely fully and I have very much in mind the need for a fair hearing but unlike in criminal proceedings, where the, it is assumed that children will give evidence. They give their evidence in a very, very truncated way and for example the ABE interview only such elements as are agreed are put before the jury. Whereas I will see the entirety of the ABE, I will see it warts and all if I can use that expression. So I will be much more susceptible to any suggestion that there are contradictions that are unclear, that it is [inaudible], I do not need that to be put to a seven year old or a nine year old or indeed a 14 year old who has the difficulties that B has.”

 

I found the underlined exchange quite extraordinary. Of course a great deal of care needs to be taken in asking questions of a young child and of course a “gloves-off” attack on inconsistencies that just muddles and mixes up the child is going to be abusive and not advance the case, but the judicial suggestion here that this would be counsel’s agenda is extraordinary. Just my personal view.

 

The Court of Appeal’s view

  1. Having considered the transcript of the hearing of 3rd November, Mr Tyler made the following submissions:
    1. a) The judge had not viewed the ABE interviews prior to the IRH and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;

b) Despite the detailed submissions made by Ms Steele referring specifically to the various elements identified by Baroness Hale, the judge made no reference to those submissions (save to acknowledge their existence) and did not refer to Re W at all during the hearing;

c) In the circumstances the judge’s consideration of the important question of the children giving evidence was wholly inadequate and could not be supported.

  1. Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.

 

Note particularly this paragraph of the judgment

 

It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights.

 

  1. In any case where the issue of children giving oral evidence is raised it is necessary for the court to engage with the factors identified by Baroness Hale in Re W, together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue.
  3. It is crucial that any issue as to a child giving evidence is raised and determined at the earliest stage, and in any event well before the planned trial date. The court will not, however, be in a position to come to a conclusion on that issue unless it has undertaken an evaluation of the evidence which is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue.
  5. The court should also have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 79. The Guidelines, which were specifically developed to assist courts following the decision in Re W, contain a list of no less than 21 factors to which the court should have regard when determining whether a child should give oral evidence in the context of the principal objective of achieving a fair trial [paragraph 9(a) to (v)]. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:
    1. i) the possible advantages that the child being called will bring to the determination of truth balanced against;

ii) the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence.’

  1. Whilst not all of the elements described by Baroness Hale in Re W or in paragraph 9 of the Guidelines will be relevant in every case, it is plain that the court undertaking a Re W determination will need to engage in a relatively full and sophisticated evaluation of the relevant factors; simply paying lip-service to Re W is not acceptable. By ‘full’ I do not wish to suggest that a lengthy judgment is required, but simply that the judge must consider each of the relevant points with that process recorded in short-form in a judgment. Such a detailed process is in my view justified given the importance of the decision for the welfare of the child and for the fairness of hearing.
  3. It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.
  5. Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation. In some cases, despite the negative factors, it may nevertheless be in accordance with the wider welfare interests of the child for him or her to be called to give evidence. Each case will be different, but even where the child may suffer some emotional harm from the process, if such harm is likely to be temporary and where the quality and potential reliability of the other evidence in the case is weak, it may (in addition to any fair trial issues) nevertheless be in the child’s best interests to give oral evidence. If the ABE interview process is poor, and there is little or no other evidence, then it may be that no findings of fact in accordance with allegations made by a child can properly be made unless the child is called to give evidence. The Re W exercise must plainly take account of such a situation.
  7. The observations made in the previous paragraph are intended only to make the point there made; they are not intended to establish any new test or template for decision making over and above what is said in Re W and the Guidelines to which recourse should be had as a matter of routine in every case where there is a Re W application.
  9. Turning to the present appeal, it is unfortunately plain that the consideration given to the Appellant’s Re W application by the judge fell well short of what was required. I have set out the relevant passages from the transcript in full (paragraph 50 above). No formal judgment was given. At no stage in the hearing did the judge even refer to the factors set out by Baroness Hale in Re W or to those listed in the Guidelines.
  11. It is of concern that the judge suggested, during submissions, that the court, assisted by the guardians, would keep the issue of oral evidence under review during the main hearing itself. The question of whether or not a child is to give oral evidence should be determined well in advance of the hearing at which she or he may be called. To contemplate deciding, at a later stage and once the hearing itself has started, to call them is likely to increase the potential for the process to impact upon the child in a harmful manner and would allow little or no time to prepare the child and those caring for them.

 

 

Child’s article 6 rights

 

In this case, one of the children, A was 15 although with some learning difficulties – he was not capable of instructing a solicitor and was so represented by the Guardian and the child’s solicitor. When the Guardian and solicitor met with him, the allegations were discussed. The Judge directed that a note of those discussions be filed and served.

  1. A has never made any allegation of sexual abuse against his father or of being incited or encouraged by his father to abuse others. He did not admit that he had himself committed any act of sexual abuse on others. On 29th May 2015 he was interviewed by the police. This was not an ABE interview, but an interview under caution which took place after he had been arrested on suspicion of having committed rape. The interview lasted for one hour. A engaged with the process throughout by answering factual questions. When sexual allegations were put to him he was clear and plain in his complete denial of being involved in any sexual behaviour. An audio recording of this interview is apparently available, but no party invited the judge to listen to it.
  3. On 27th October A’s social worker visited him in order to ascertain his ‘wishes and feelings in respect of the upcoming fact finding hearing’. The social worker’s statement records that A asked what a fact finding hearing was and that she explained that the allegations that had been made against him and his parents would be put to the judge, along with other matters that concerned the local authority. She states, ‘A nodded as I spoke, suggesting that he understood’. He was then told that the judge would consider the evidence and make a decision on the likelihood of the allegations being true or not. A’s question following this explanation was about the options for his placement in the event that the allegations were found proved or not proved. The social worker records that when she explained that if no facts were proved she would work with A and his parents to determine how best to move him back home at a pace that he was comfortable with, ‘again A acknowledged this and nodded as I spoke’.
  5. The social worker went on to record that she discussed the allegations that had been made against A and that throughout this discussion he maintained eye contact with her and had open body language. When she explained to A that, with regard to allegations made by D against him, there were only two people who are aware of what, if anything, took place, ‘A nodded at this statement, however did not offer any discussion around this.’ When the social worker asked if A had ever seen behaviour such as that which had been alleged, A’s body language was said to change in that he responded with short answers and began to fidget with his hands, he was, however, still engaging with the conversation. A worker from the unit then joined the conversation and, after trying to explain to A what ‘learned behaviour’ was, he asked A if ‘there was anything he wanted to share at this point’ to which A replied ‘not right now’. When asked whether he might do so later, A said ‘yes, I think so’.
  7. On the 2nd November 2015 A’s CAFCASS guardian and his solicitor visited him in the unit in which he is now accommodated. On the day following the visit HHJ Watson made an order requiring the guardian to file a statement setting out what had occurred during that visit. The guardian complied with that direction by filing a statement on 8th November in which she described meeting A (together with his solicitor and a worker from the unit, ‘G’). A was told by his solicitor that the purpose of the visit was to meet him in order to go through the evidence that had been filed against him. It is not clear whether or not A was told that the meeting was or was not confidential on the usual solicitor/client basis. The statement describes A being given a broad description of the material that had been filed with the court and it records that A either remained silent or gave monosyllabic answers to any questions put to him.
  9. The statement goes on to state that the solicitor explained to A that only A knew if anything sexual had happened involving him and that the solicitor and guardian needed a ‘steer’ from A as to whether there had been anything sexually inappropriate which had happened to him in the past or not. A did not respond to this request and the statement describes time passing with breaks for tea and others matters being discussed before continuing:
    1. “I then suggested that A had a further break and suggested a simple YES (indicating there had been sexually inappropriate behaviour involving A) or NO (there had not). I wrote the two words on a piece of A4 paper and left the room.

When I returned A and G had gone for a further break. They later returned with the A4 paper folded in half. On opening the paper, the word YES was ticked. …

G then explained that A sat with him on a bench outside during the break. G felt that A was so tense that he was physically unable to take the pen and make the mark himself. G held the pen above one answer and then the other and asked A which answer A wanted G to tick. A indicated YES and G ticked it.

[Solicitor] and I did not question A or G further. G stated he would inform A’s key worker when he took over at 3pm.

I was aware that A’s information would be disclosed to his parents on 3.11.15. A was due to have contact on 5.11.15. I agreed to phone the unit later to inform them that Mr and Mrs E will be aware of events following court on 3.11.15. …”

 

The Court of Appeal point out that A had legal professional privilege relating to that visit and had not been asked to waive it. His lawyer was present, rather than just the Guardian.

 

  1. The first relates to the professional responsibilities of A’s solicitor and guardian during the process of trying to obtain his instructions on the allegations that were to be made against him in the proceedings. A, as a party to the proceedings who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly. The importance of legal professional privilege was plainly stated by Lord Taylor in the House of Lords decision of R v Derby Magistrates’ Court, ex parte B [1996] AC 487:
    1. ‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’
  3. The express purpose of A’s solicitor and guardian visiting him on 2nd November was to go through the evidence against him for the purposes of the forthcoming hearing. It is not apparent from the guardian’s statement or any other material that we have seen that the question of legal professional privilege was considered or discussed with A. The following day the fact that the visit had occurred was made known to the court and the judge directed the guardian to file a statement giving an account of it. There is no indication that that direction was contested or that the solicitor and guardian expressly purported to waive A’s legal professional privilege on his behalf. At the hearing of this appeal Miss Meyer did not argue that the issue had been addressed at all. The result was that the full details of A’s meeting with his solicitor to discuss these allegations, such as it was, became fully known to the court. In the event A had said very little of note during this meeting, but in another case the situation may be very different. It is obviously most important that, in the case of a vulnerable young person, those who are instructed to act on his behalf where he or she is facing serious factual allegations are utterly clear as to their professional responsibilities and astute to ensure that their young client’s rights are properly acknowledged and protected.

 

[This all VERY important for children’s solicitors]  The Court of Appeal actually found that A’s article 6 rights had been breached by this procedure.

 

Obviously with all of these flaws, the findings were overturned, and the case sent back for re-hearing.

  1. In conclusion, I am satisfied that this appeal must succeed on the following broad bases:
  1. i) The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.

ii) The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).

iii) The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.

iv) The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.

v) A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.

vi) The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.

Given that all of the police investigations came up with no corroborative evidence and the case was based almost entirely on the children’s allegations and the ABE interviews, the LA will have an uphill struggle at that re-hearing.

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Something something oranges something part 2

Posted on May 16, 2016 by suesspiciousminds

 

You may recall the recent Holman J case in which a 16 year old subject of care proceedings had told the social worker and Guardian something personal which he did not want his parents to know, and the social worker and Guardian were divided as to whether this was something which could legitimately be kept from the parents

 

Something something oranges something

The application, this time with the parents represented, was decided by Mrs Justice Roberts.

Local Authority X v HI and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1123.html

It raises some interesting questions.

The Court was aware of what the information was, as were the social worker and the Guardian. The mother and father did not know what it was. All of the barristers knew the information, having agreed (upon instructions from their clients) that they would know it but not share it with them.  It is almost impossible to fathom what the parents counsel were supposed to do if the parents were making guesses as to what it might be – save for just being plummy and saying “I can’t indulge in speculation”

The parents, who were the only people in the room who didn’t know what their son’s personal information was,  really then had to work on the basis of Holman J’s categorisation of the information

  1. As to the substance of the information which I has shared, it was described by Holman J in an earlier judgment[1] in this way:-
    1. “Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to the guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is in any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year old child who is in their care, They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.” (The emphasis is mine.)

The argument came into these two camps

A) The Guardian arguing that just as a doctor has a duty of confidentiality to a young person who has capacity (see Gillick) so do a social worker and Guardian have a similar duty if a young capacitous person tells them something and says that they want it to go no further.  (also relying on the  PD v SD, JD and X County Council [2015] EWHC 4103 (Fam).  which was the young person who wanted to undergo gender reassignment and did not want his adoptive parents to have any detailed information)

Thus, on the Guardian’s case as advanced by Dr Bainham, the duty of confidentiality which was found to exist as between a Gillick competent child and a doctor or other medical professional advising on, or offering, medical treatment would necessarily be extended so as to cover social workers and other professionals engaged with the young person concerned.

B) The Local Authority and the parents arguing that that was correct IF the case was not in Court, but once there were Court proceedings, the Article 6 right to fair trail would outweigh such a right to confidentiality, unless there were compelling circumstances.

  1. Specific guidance in relation to the obligations on a local authority in care proceedings was provided by Lord Mustill in the leading case of Re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593. At page 615 D to H, his Lordship set out five principles with which the members of the full court were in agreement.
    1. “1. It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching.

2. When deciding whether to direct that notwithstanding rule 53(2) of the Adoption Rules 1984 a party referred to in a confidential report supplied by an adoption agency, a local authority, a reporting officer or a guardian ad litem shall not be entitled to inspect the part of the report which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

3. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

4. If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

 

Obviously an important issue to resolve – young people do tell social workers and Guardians things, and sometimes they would prefer that their parents did not know. If the Guardian is right here that the approach should be in line with Gillick, then the decision would be made by the individual social worker and Guardian, and if not, the decision would be made by the Court, with non-disclosure being the exception and not the rule.

 

In the context of the present application, it is important to state that the information in respect of which I seeks to maintain privacy is not information which will have a bearing on any evaluation undertaken by the court in relation to the issue of whether or not the care which the second and fourth respondents have given, or may give in future, to I is likely to cause him to suffer significant harm such as to justify the making of a final care order. In my judgment, it will have no bearing whatsoever on any judicial investigation into the quality of the care they have provided in the past or the care they are likely to offer to I in the future in terms of the sort of care it would be reasonable to expect a parent to provide. Further, the local authority accepts that the information has not, and will not, affect or influence their decision-making for I in terms of the final care plan which is now before the court.

 

It would be very difficult to withhold from the parents information which went to whether a particular allegation in the case was true or false, or where the child was expressing a view about where his future home should be, but in this case, the Court was saying that the information was personal and not something that would have any bearing on the outcome of the case.

Father’s counsel disagreed,

  1. In his written skeleton (para 117), Mr Day on behalf of I’s father says that his client wishes to utilise the material at the forthcoming final hearing. He raises concerns that I “will become involved [in] gang culture and criminality and that corporate care will not be in his best interests. The sensitive information very much supports and grounds that contention and is required for there to be a fair trial.”
  4. With respect to Mr Day (who knows the nature of the confidential information), I can see no correlation at all between the information which I has imparted and the likelihood of his becoming involved in gang culture or the sort of criminality which is sometimes associated with such involvement or membership. The link between the two is not even tenuous in my judgment. Furthermore, the statement of intent to use the information at the forthcoming trial is made in an evidential vacuum. As matters stand, I’s father does not know anything about the information and he will not know unless and until the court authorises its disclosure. Mr Day seeks to widen the ambit of his assault on confidentiality by asserting that the material is relevant to that part of his client’s case which relates to an allegation that the local authority will not provide appropriate care for I if a final order is made. It seems to me that this is a matter for the trial judge who will be responsible for scrutinising with the utmost care the final plan advanced by the local authority.

 

What was the right test? And was the information relevant?  The Judge decided this

 

Analysis and Discussion

  1. The local authority was absolutely right to make this application. In my judgment, Holman J was also absolutely right to rule that the matter must come back to be dealt with on notice to the respondents.
  4. In terms of the correct approach to the issue of disclosure, I do not accept that I can consider issues flowing from I’s ‘personal autonomy’ in a vacuum. In my judgment, Mr Day is correct on this point. Gillick and Axon were both cases which did not involve any consideration of the engagement of Article 6 rights. In each, the applicant was seeking declaratory relief but no more. In this case, both Article 6 and Article 8 rights are engaged and accordingly the Re D test must form a part of the overall balancing exercise which I have to perform. However, it seems to me that the principles to emerge from Gillick and Axon become relevant at the stage of the balancing exercise where judicial focus is on the welfare of the child or young person. Respect for his or her views and the consequences of overriding those views where they are genuinely and strongly held must, in my judgment, form part of those welfare considerations.
  7. Dr Bainham makes the valid point on behalf of the Guardian that if Gillick principles are not accorded priority, any ‘looked after’ child in these circumstances would be at a disadvantage since his views would be accorded less respect because of the fact that he is at the centre of contested care proceedings. Whilst I can see the force of that submission, it does not in my judgment mean that I can disregard the equally important considerations which flow from the engagement of the respondents’ Article 6 rights. I’s views are important. They are entitled to considerable respect but they are one aspect of the overall balance which has to be achieved in this case. In my judgment, they are not determinative of outcome. Further, the fact that neither of his parents is currently exercising day to day parental care for I does not dilute the parental responsibility which they currently share with the local authority.
  10. The first question which must be addressed is that of relevance. Nothing which was said by I impinges upon, or affects in any way, the local authority’s case in relation to the respondents’ allegedly deficient parenting. On behalf of the local authority, Mr Krumins submits that it is important to distinguish in this context between the relevance of the information and the weight which can properly be attached to it. In relation to relevance, he contends that the threshold is low. Nevertheless, he concedes that the information is unlikely to assist the trial judge and will ultimately make no difference to outcome. I bear in mind the observation of Thorpe LJ in Re M (Disclosure) that if there is anything within the local authority’s care plan which gives rise to concerns, that may well be adverse to the respondents’ case should disclosure be withheld. However, where the principal challenge to, and defence of, the care proceedings amounts to a denial by the second and fourth respondents of the poor parenting which gives rise to the perceived risk of significant harm to I, it is difficult to see how a care plan which involves removal from that harmful environment can be said to raise independent concerns. That will be the central issue for the trial judge to determine.
  13. I have significant concerns about whether or not the information for which protection is sought is truly relevant to these proceedings. Whatever subjective views Mr Day may seek to advance on behalf of I’s father, it is difficult to see how any objective analysis of the information could lead to the conclusion that it has any relevance to the issues to be determined later this month. However, for the purposes of my judgment and on the basis that Mr Day is right and it has some tangential (or greater) relevance, I must go on to apply the balancing test set out in Re D.

 

Having decided to approach the matter on the Re D principles, the Judge went on to consider whether disclosure would present some risk of significant harm to the child

 

  1. Thus, the next question to be answered is whether disclosure of this information would involve a real possibility of significant harm to I.
  4. The Guardian and the local authority are not agreed on this aspect of the case. The local authority accepts that disclosure would be likely to expose I to an awkward and embarrassing situation, but no more. Within the material which has been put before the court is a statement prepared by a social worker on behalf of the local authority. It is dated 8 April 2016. In that statement, the social worker, AB, expresses the view that I may be embarrassed or ashamed as a result of disclosure. However, she acknowledges, too, that he may in future be reluctant to share information with professionals if the information is revealed to his parents against his wishes. Her statement also raises an issue as to whether what he said was true in any event.
  7. The concerns of the social worker find strong reflection in the Guardian’s evidence. She tells me that, knowing what she does about I’s father and step-mother, she believes neither ‘would … be able to respond to the information in a child-centred way at all, and that this could have emotionally devastating consequences for [I]’. She sets out in her evidence a report which she had received from a colleague who was present at a recent LAC review which was attended by I’s father and step-mother. One of the issues for discussion on that occasion was their willingness to engage in some work with an appropriate professional in order to assist their understanding of I’s needs. Their presentation on that occasion was said to be “extremely oppositional, even in [I’s] presence”. The report which emanated from that meeting is recorded in the body of the Guardian’s statement in this way.
    1. “It was appalling … [I’s father] totally took over, attempting to intimidate the professionals, leading to … [I] putting on the hood of his jacket and pressing his forehead onto the table in what appeared to be a combination of anxiety, frustration and sheer embarrassment. His wife [I’s step-mother] then started a wholly inappropriate and crass attack on the social worker – how can she do the job at her age, not having children. Basically, following father’s continued ranting and finger-pointing at me, I had no choice but to prematurely bring the review to an end. I’m far from convinced that the LA should be promoting contact for [I] with them. Before there can/should be any relationship work undertaken, perhaps father in particular should be advised to see his GP regarding having anger management and/or counselling. He certainly won’t be invited to the next review unless he makes some radical changes.”
  9. The Guardian expresses her very real concerns that the good relationship which I has managed to establish with his social worker and foster carer may be damaged by disclosure of the information which he wishes to keep private. Those relationships are important to him because they enable him to confide in these professional carers and, in turn, to receive appropriate support and guidance. To override his express wishes may undermine his trust in professionals making it difficult for them to offer the level of help and support from which he has so clearly benefitted to date. This would be entirely counter-productive and inimical to his best interests. She has no confidence in either the father’s or step-mother’s ability to respond appropriately or sensitively to something which I regards as a personal and embarrassing episode and she regards the prospects of disclosure as being ‘highly detrimental’ to his welfare.
  12. Thus, it seems to be common ground that disclosure to the parents will cause I emotional upset and some distress. The disagreement centres on the level of emotional harm and whether or not this is likely to be “significant”.
  15. On behalf of the father, Mr Day submits that “the worst reaction could be that the father is dismayed, disappointed and at worst may remonstrate with his son”. On behalf of I’s step-mother, Mr Fletcher reminds me that I has been told by his social worker that it is not possible for her to provide him with a guarantee that anything he tells her will remain private as between them. He points to the absence of any direct statements by I himself as to his fear of his parents’ reaction. He invites me to consider whether any perceived harm could be mitigated by putting in place safeguards so as to ensure that I was protected from any such reaction from his father and step-mother as that anticipated by the Guardian.
  18. I have to bear in mind that I is a very vulnerable young man. He is not yet 16 years old and has already been the subject of two separate sets of care proceedings. He has been found to have suffered neglectful and abusive parenting at the hands of his mother. His experience of life was fractured when he left his home with her to live in a completely different part of the country with his father and step-mother. His unhappiness and distress in that placement is reflected in his attempts to abscond and his absolute resistance to any return to that household and any form of continuing relationship with his father and/or his present wife. Whilst I accept that it is an untested account, I regard the record of what transpired at the recent LAC review as providing a valuable insight into what I is likely to be experiencing at the present time in terms of the conflict which appears to exist between his family and the professionals who are currently caring for him. The picture of I which emerges from the record of that meeting is one of a young man who has few, if any, coping strategies for dealing with that conflict. I do not accept that the absence of a specific reference by I to fear of his father’s reaction should lead me to a conclusion that he has no such fear. On behalf of the mother, Miss Bartholomew supports the Guardian’s position that there is a real risk of further significant harm to I in the event of disclosure. She records in her written submissions the mother’s historic and ongoing concerns about the aggressive and inflexible behaviour demonstrated by his father. She is concerned that his reaction to the information may well place I at risk of significant harm.
  21. In my judgment, whether one applies the label of “significant” or “real” harm to the question, there is indeed a real possibility of significant and detrimental harm to I if this information is disclosed. In his evidence in response to the local authority’s case, I’s father has denied entirely that his son is suffering, or has suffered, from any significant emotional harm. He accepts that he has shouted at I but justifies this on the basis that, “If you don’t stand up as a parent, the children are going to walk on you”. It is said that he referred to I in highly derogatory terms because of his educational difficulties. He does not admit using any such inflammatory terms but still refers to I in his statement as “this little boy”. I am satisfied that there is a clear risk that the consequences of disclosure of this material may well result in I’s disengagement from the professionals who have provided him with guidance and support since his reception into care. He has been damaged by his experience of family life in recent years and findings in relation to threshold have already been made in the context of the interim care order which sanctioned his removal from his father’s home. If his current support structure were to be put at risk for any reason, he may well withdraw and internalise issues thereby putting his happiness and future wellbeing at significant risk.
  24. I bear in mind, too, that whether or not the trial judge makes a final care order at the conclusion of these proceedings later this month, any prospect of repairing the relationship between I and his father will inevitably have to involve some form of therapeutic input from an appropriate professional or professionals. In this respect, it is essential that I believes that he can repose trust and confidence in those professionals and the care and support they will be providing. It would be harmful to him, and significantly so, if the chance to restore some form of relationship between parent and son in future were jeopardised because of a disclosure now of information which he regards as confidential.

 

The next step was to balance the article 6 rights and article 8 rights.

 

  1. In these circumstances, the final step is to weigh the interests of the respondents in having the opportunity to see and respond to the material. This involves a rigorous consideration of the engagement of their Article 6 and Article 8 rights.
  4. Given what I have already said in my judgment, I can dispose of the issue in relation to their Article 8 rights in fairly short order. These rights, whilst engaged, cannot take precedence over I’s Article 8 rights and he is clearly expressing a wish for no communication with his father or step-mother at the present time. As Yousef makes clear, the child’s rights are the paramount consideration in any balancing of competing Article 8 rights.
  7. As to the respondents’ Article 6 rights, the relevance of the information to outcome has already been addressed. In my judgment, it is of tangential or minimally indirect relevance at its highest and is completely irrelevant at its lowest. The local authority accepts that it will not impact upon outcome or future planning for I. The respondents’ rights to a fair trial are, of course, absolute but, as Lady Justice Hale acknowledged in Re X, in deciding how to conduct a fair trial, it is perfectly reasonable to take account of the facts and circumstances of the particular case with which the court is dealing. The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing. Whilst I accept that any departure from the usual requirements in relation to the disclosure of evidence in an adversarial trial must be for a legitimate aim and proportionate to that aim, the Court of Appeal has held that protecting the welfare of vulnerable young persons is a specific and undoubtedly a legitimate aim.
  10. In my judgment, the harm which would be caused by disclosure of information which has very little, if any, relevance to the issues which need to be determined by the court would be wholly disproportionate to any legitimate forensic purposes served. I am entirely satisfied that depriving the respondents of the opportunity to have this information will not deny to any of them a fair trial. Disclosure would, however, be a breach of I’s Article 8 rights.
  13. Considering all these matters in the round, I have reached the clear conclusion that the case for non-disclosure of the information which is the subject of the Guardian’s current application is compelling. The circumstances of this case, looked at in the round, do make it exceptional and I regard it as entirely necessary that I’s confidence and privacy in this information is maintained. I cannot overlook the fact that, as a Gillick competent young person, he has expressed in the clearest terms his wish that the family should not have access to the information. Those wishes deserve the court’s respect, albeit in the context of the overall balancing exercise which I have conducted

 

This particular passage has some broader significance – the right to a fair trial does not mean that a person gets to run the case exactly as they please, the Court controls the content and nature of the hearing whilst still having the duty to secure that the trial is FAIR

 

The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing

 

Finally, the Judge recognised that the parents knowing that something was being kept from them (even if most of us can guess what it might be) was difficult

 

Finally, I would conclude by echoing the words of Holman J which are exquisitely apt in this case. I, too, am deeply conscious that whenever disclosure issues of this kind arise, there is inevitably a problem once parents or other interested respondents are put on notice that there exists some information in respect of which the court has supported an application for non-disclosure. As Holman J observed, ‘”conspiracy theory” and imaginings may inevitably take over’. The parents and step-mother may well be concerned that the information is graver than it actually is. I would hope to reassure them by my finding in relation to the likely relevance of the information to the issues which are at stake.

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