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Tag Archives: article 6

Equality of arms – D v K and B 2014

 

One of the principles of article 6 of the Human Rights Act (the right to fair trial) is the ‘equality of arms’ – in essence that there should be a level playing field. Of course, there isn’t always – in a big money divorce, the person who has the assets might well be paying for the better lawyer,  sometimes one party will go and get a QC and the other can’t afford it.  Equality of arms was something that concerned a lot of people when the legal aid reforms came in and established that a person making very grave allegations would have the opportunity to get free representation, whereas the person defending themselves against what might be false allegations was very unlikely to get the same treatment.

D v K and B 2014 brings that into sharp focus

http://www.familylawweek.co.uk/site.aspx?i=ed128264

1. An issue arises in private law proceedings concerning B who is three years old. A fact finding hearing has to take place. One of the many serious allegations made by the mother is that she was raped by the father in 2010. The allegation of rape would be central to the fact finding hearing and so a court conducting that hearing would have to decide whether the alleged rape took place. The Father denies that it did. That allegation is not the subject of criminal proceedings.

2. The mother has the benefit of legal aid. The father does not. His application for legal aid has been rejected. This judgment was given on 27th January 2014 with the intention that it should be referred to the Legal Aid Agency. I invited them to reconsider the father’s application for legal aid as a matter of urgency. At the most recent hearing on 12th March I was told that the application had been reconsidered and had been rejected again.

 

This does seem, to me, to be a case where there should be equality of arms – father’s case is not rejected because he is wealthy and can afford to pay, but because of the principle that the person defending the allegations is unlikely to get funding (you need the Legal Aid Agency to decide that it is exceptional and justified)

The Judge outlined why he considered that this was an exceptional case and why public funding would be justified

6. If ever there was exceptional private law litigation then this must be it. I say that for these reasons:

i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother’s allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event.  In March this issue was being investigated further.

ix) As to the position of the Guardian’s representative everything that I have said about the position of the judge applies in at least equal measure to the guardian’s solicitor if not more so. The guardian’s statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children’s solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child’s solicitor could be expected to conduct cross examination on behalf of this Father.

The final point is saying, in very careful terms, that in order for the truth to be determined about these allegations, mother and father would both have to give evidence. Father would be cross-examined by a barrister – a trained professional not emotionally connected to the case (and in this case, I note, a very good and skilful one, who sadly won’t be able to comment on this case).  Mother, however, would be cross-examined by father – leaving him at a disadvantage because there’s not equality of arms, but also making it much more of an ordeal for both of them.

You simply can’t cross-examine on an allegation like this without putting to the mother that her allegations aren’t true, that she has made them up, that they are malicious. You can’t do it without going into some detail. You can do that as gently and sensitively as you can – it is still not a nice experience. If the person asking the questions is the subject of the allegations, then it is ghastly for everyone.  This is why in crime, it isn’t possible to represent yourself on some criminal charges (such as sexual offences)

s34 Youth Justice and Criminal Evidence Act 1999

34 Complainants in proceedings for sexual offences.

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

There were damn good reasons for that – and I’d suggest that the same good reasons mean that you want to avoid it if at all possible in family cases too.

Obviously it can’t be that the lawyer brought in to represent the child can do this on father’s behalf – the father isn’t his client. That’s not someone frankly and fearlessly fighting his case for him.

Could the Judge do it? That made the Judge uneasy, and rightly so.

7. I am now going to quote from H v L & R. A similar issue arose in H v L & R [2006] EWHC 3099 (Fam) and Wood J said this at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”

8. I respectfully agree with Wood J and therefore, in January, asked the Legal Aid Agency to think again. As matters now stand, it seems highly unlikely that legal aid will be granted.

Sadly, you may detect from the final sentence that the Judge is not optimistic that this will work. Legal Aid Agency and ‘see reason’ aren’t concepts that go hand in hand.

“You can’t see me”

Withholding documents in Court proceedings from a party, and documents being shown to that party’s lawyer

 RC v CC and Another 2014

 http://www.bailii.org/ew/cases/EWHC/COP/2014/131.html

 This is a Court of Protection case, but has wider implications (in fact, it imports a lot of the principles established in care proceedings into Court of Protection cases)

 It does sometimes (but only very rarely) happen within court proceedings that there is a document, or something within a document that might be problematic for one of the parties to see. In those circumstances, the Court have to decide whether the reason for keeping it from that party are sufficiently strong to interfere with the usual principle that a party gets to see all of the evidence against them.

 

It is absolutely right that the test for keeping evidence secret from one party is a very very very high one. It does very little good for the perception of fairness and equality in Courts if things are kept away from a party.

This is a very rare course of events – I’ve come across it twice in nearly twenty years of practice. In the overwhelming majority of cases, the parent is entitled to see all of the evidence, and to ask for whatever documents or disclosure that they or their lawyers think is fit. It is also worth noting that even in these rare cases where a piece of evidence is determined by a Judge that the parent should NOT see it, the process itself ought to be transparent  (i.e that the parent knows that SOMETHING is being kept back, they just don’t know what it is).

 

In this case, which was an appeal heard by the President, a birth mother had been applying for contact with her daughter who had been adopted. There were circumstances that led to that being a Court of Protection case. There were three pieces of social work evidence which the Local Authority had argued ought not to be seen by the mother (though they were seen by the Judge) and the Judge ordered that they were not to be disclosed.

 

The President accepted the appeal, for reasons set out below, and sent the case back to the original judge for reconsideration. The President was able to confirm that the principles which govern non-disclosure of documents to a party in care proceedings applied equally to Court of Protection cases.

 The original Court had properly identified the tests to be followed (and they are all helpfully set out within the judgment)

 

  1. How is the jurisdiction to be exercised? I return to what Lord Mustill said in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, page 615:

“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 nondisclosure only when the case for doing so is compelling.”

  1. In Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, having examined a number of both domestic and Strasbourg authorities, I concluded my judgment as follows (para 89):

“Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant’s access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.”

As I pointed out in Dunn v Durham County Council [2012] EWCA Civ 1654, [2013] 1 WLR 2305, para 46, this approach, so far as I am aware, has never been challenged and has often been followed.

  1. Dunn v Durham County Council is in fact clear authority (see paras 23, 24 and 26) that the test is, indeed, one of “strict necessity”, what is “strictly necessary”.
  1. In a case such as this the crucial factor is, as we have seen from the passage in the speech of Lord Mustill in In re D, page 615, which I have already quoted, the potential harm to the child. Lord Mustill summarised the proper approach as follows:

“the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

… 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.

… 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.”

  1. Before leaving this part of the case, there are two further points to be noted. The first is that, as I put it in Dunn v Durham County Council (para 50):

“disclosure is never a simply binary question: yes or no. There may be circumstances … where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if it has first been anonymised.”

To the same effect, Maurice Kay LJ said (para 23) that:

“in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.”

  1. A related point, often commented on in the authorities, is that the position initially arrived at is never set in stone and that it may be appropriate to proceed one step at a time. This is not the occasion to discuss this in any detail. I merely draw attention, as examples, to what was said by Hale LJ, as she then was, in Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828, [2002] 2 FLR 476, para 28, and, most recently, by Baroness Hale JSC in In re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2012] 3 WLR 1484, para 36.
  1. Thus far, as will be appreciated, the authorities to which I have referred have mainly related to children. Do the same principles apply in cases in the Court of Protection relating to adults? To that question there can, in my judgment, be only one sensible answer: they do.

 

 

Part of the appeal was that although the original judge had drawn his attention to those authorities and the test, in the discussion passages of his judgment it appeared that he had reversed the test and begun talking of there being no strong reason why the mother needed to see the documents  (as can be seen from the above guidance, the test is the opposite – it has to be demonstrated why it is necessary that she SHOULD NOT see them)

 

  1. First, Mr Fullwood submits that Judge Cardinal misdirected himself, failing in fact to apply the law as he had summarised it. He points to the passages I have set out in paragraph 34 above where Judge Cardinal says “I do not consider that RC needs to see the social work evidence” and, again, “I do not take the view at this stage that it is necessary for the … social worker’s evidence … to be disclosed”, submitting that this is to put the point the wrong way round. The question, he submits, and I agree, is not, is it necessary for RC to see the documents? The question is whether it is necessary (in CC’s interests) that RC does not see the documents. Now particular phrases in a judgment are not to be torn out of context. The judgment must be read as a whole, giving it a fair and sensible reading, not a pedantic or nit-picking reading. Are these particular passages on which Mr Fullwood fastens, passages which taken on their own are wrong, saved by the rest of the judgment and, in particular, by Judge Cardinal’s concluding summary quoted in paragraph 25 above? I cannot be confident.
  1. Second, Mr Fullwood submits that in any event Judge Cardinal has given inadequate and unsustainable reasons to justify his conclusion. There are a number of points here. There is no differentiation between the obvious necessity to prevent the disclosure of anything that might lead to CC being identified or traced by RC and the far less obvious necessity to restrict RC’s access to other personal information about CC. It is surprising, even allowing for what Judge Cardinal says are the difficulties in redacting the material, that it is necessary that nothing in the three witness statements should be disclosed. After all, a large amount of sensitive personal information about CC was disclosed to RC in the redacted psychologist’s report. What is it about all the information that makes it necessary not to disclose it? And how does this square with the fact that Judge Cardinal thought that RC’s counsel should be able to see it? It may be that, with fuller explanation, Judge Cardinal’s decision could be sustained, but as it stands it provides inadequate justification for such a drastic restriction of what RC can see.
  1. Mr Fullwood’s third complaint is that Judge Cardinal has in effect introduced a closed material procedure, which, he says, was inappropriate in this particular case and is in any event, as a matter of general principle, inappropriate in the Court of Protection. I am not sure that it is helpful to categorise what Judge Cardinal did here as a closed material procedure as that expression is more generally understood. I take him to have been doing no more than has been hallowed by long practice in these cases and now has the weighty imprimatur of Baroness Hale. Whether, on the other hand, it was appropriate in this case is another matter. I have already alluded to the deficiencies in Judge Cardinal’s reasoning. But there is another point. As Moses LJ made clear, this is a process dependent upon counsel’s agreement – an agreement which counsel for the reasons given by Moses LJ may feel unable to give and which in any event the instructions from his lay client may prevent him giving. Judge Cardinal does not seem to have explored these aspects of the matter. Nor, for that matter, does he consider other possible solutions: allowing RC to read, but not to borrow or copy, suitably redacted copies of the documents, or directing that there be disclosure to her of a document setting out the gist of what is being said by the social workers.

Conclusion

  1. In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal’s order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment

 

 

The other matter of interest was that the original Court had ordered that the documents in question could be seen by mother’s legal team (presumably to reassure themselves that there was not a “smoking gun” being kept back from them) but on the basis that the documents or their contents were not to be shared with the mother.

 

That puts the lawyers in a difficult spot, and the President makes it plain that such an arrangement

 

(a)   can only happen with the agreement of the legal team and not be imposed upon them, and

(b)   they can only agree if they have instructions to do so, and

(c)   They can only agree if they are satisfied that they can do so without any damage to their client’s interests (which is, of course, bloody difficult when they don’t know what might be contained in those documents)

 

  1. It is apparent from Official Solicitor to the Supreme Court v K and Another [1965] AC 201 that disclosure limited to a party’s legal representatives was already by then a recognised practice in wardship. It is mentioned by Sir Nicholas Wall P in A County Council v SB, MA and AA [2010] EWHC 2528 (Fam) , [2011] 1 FLR 651, para 37. There can be no doubt as to the legality of the practice: see, for example, R (Mohammed) v The Secretary of State for Defence [2012] EWHC 3454 (Admin). But there are obviously potential difficulties, some identified in a characteristically thoughtful discussion in the June 2013 issue of the Thirty Nine Essex Street Court of Protection Newsletter of Judge Cardinal’s judgment in this case.
  1. Importantly, such disclosure cannot take place without the consent of the lawyers to whom the disclosure is to be made; and they may find themselves, for reasons they may be unable to communicate to the court, unable to give such consent. Moreover, they cannot consent unless satisfied that they can do so without damage to their client’s interests. As Moses LJ said in Mohammed (para 28):

“The free and unencumbered ability to give and receive instructions is an important facet of open and fair trials. That ability is hampered if in some respects the lawyer is unable to disclose all the relevant evidence and material and, in that respect, the client is deprived of the opportunity to give informed instructions. But the degree to which that is of importance will vary from case to case. No lawyers should consent to such a ring unless they are satisfied they can do so without harming their client’s case. But provided the legal advisers are satisfied they can safely continue to act under a restriction, the inability to communicate fully with the client will not in such circumstances undermine the fundamental principles on which a fair application for judicial review depends.”

 

Secret decision to remove

(No, I’ve not asked Christopher Booker to do a guest blog, but this is a case which is worthy of attention, given how much press coverage the Italian C-Section case received. I am quite surprised that this made it through the Lord Nueberger view of article 8 and what the word necessary means in that context)

A Local Authority v C 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4036.html

This is unusual, because it is an application that the Local Authority made BEFORE the birth of the child. I have only ever seen one of these before, the one referred to in the judgment Re D 2009.

    1. The local authority’s application is, therefore, for a without notice order which is not to be served on the mother that:

(a) she lacks capacity to make decisions relating to the future care of her child when born;

(b) it is lawful as being in the best interests of her child when born for its Claimants, its servants or agents immediately to remove the child from the mother’s care and to maintain that separation pending a Court considering the Claimant’s application from an emergency protection order or interim care order;

(c) it is lawful for the minimum necessary force to be used, if required, in the course of effecting and maintaining such separation;

(d) it is lawful for the police to assist in the carrying out of the order by utilisation of their powers pursuant to section 46 of the Children Act 1989; and

(e) it is lawful for the Claimant to withhold from the mother its intention to remove her child from her immediately following birth and, in this regard, not to involve the mother in the planning process for her baby.

(I note that it is a shame that the order accompanying the judgment is not published, since (b) is interesting. It seems as though that might be akin to an Emergency Protection Order made before the baby is born, to take effect at birth. Edit – actually what it does is tell the police (d) that they can lawfully remove under a PPO.  That raises even more questions, since the existing law is that Police Protection ought to be behind making an EPO or ICO application in the pecking order – Liverpool v X, for example)

The mother in this case was said to have profound mental health problems and other issues

Mother has long-standing mental health problems and an IQ of 64. I have read a report from her treating psychiatrist. Her diagnosis is of paranoia and psychosis. She also abuses drugs. She is described as challenging, and she can be volatile. She has had two previous children, both of whom were removed from her very early in their lives. The elder was removed from her care in 2007 aged three weeks, when mother physically injured that child by causing twisting injuries to his arms and bruising to his chest. Both those children now live with those children’s father. She is now pregnant again, by a different father, with an estimated delivery date of 22nd September 2013.

What were the arguments for not telling her?

    1. The local authority perceives there to be a grave danger to the unborn child immediately after birth, in the light of the mother’s mental health problems and the increasingly worrying presentation which has manifested itself to her obstetrician, to social workers and to others. She is undoubtedly incapacitous in some respects, the extent to which is not clear because she has not been assessed. She is likely to have understanding in a number of respects, particularly those aspects of her own health care and her own wishes and feelings about her child which do not require sophisticated intellectual understanding.
    1. Her consultant obstetrician found a very marked deterioration in her presentation. He describes how her usually more placid demeanour has become more and more aggressive, hostile, confrontational and oppositional, during the monitoring of her pregnancy. She has had, until recently, a fairly trouble-free pregnancy and her two previous deliveries were normal. She has had some internal bleeding. It is not clear how accurate her description of the severity is of that. There is a fear there may be problems with the attachment of the baby’s placenta. She became very agitated when he needed to examine her and refused to be examined. She is not currently medicated or accepting her medication, and this cannot take place until after the birth. She showed pressure of speech; she swore, was verbally aggressive and she had what the obstetrician called “an outburst”. She was threatening. A number of minor issues were raised by her which it was impossible to “de-escalate”. He is extremely worried that the mother will not be compliant with staff during the birth process as a result of her discussions with him. I have been referred to his notes recorded in an internal meeting.
    1. If professionals attempt to hold any form of conversation with her on a topic with arouses her emotion she becomes hostile very quickly. All the professionals who have been dealing with the mother are concerned that her mental health is currently deteriorating.
    1. Her consultant psychiatrist reports that it has proved impossible to have a coherent rational conversation with her. She is “very thought disordered”. The psychiatrist anticipates a struggle if the mother is asked to hand over the baby at birth. He believes that the risk to the baby when born would be high if the mother were to be allowed to hold the baby. He also infers that the mother’s mental health was not as severely effected at the time when her older child was injured since she was not known to mental health services at that time.
    1. All those who have had dealings with her think it highly likely that the mother would inadvertently harm the baby whilst attempts are made to remove it from her.
  1. The view expressed by all the professionals is that if she is told about any plan to remove the baby at birth or after birth (under an emergency protection order or interim care order) this will exacerbate the problems with her mental health and “increase the already risky situation that is likely to occur following the birth”. She is presently in a psychiatric unit and arrangements are being made for her to undergo her delivery at a local hospital.

You should also note that the mother was not represented at THIS hearing, even through the Official Solicitor  (the agency who act on behalf of parents who lack capacity to instruct a solicitor). This was discussed, here

I raised the question with Mr Jones during the course of his carefully presented argument as to whether or not it would be appropriate for me to indeed appoint the Official Solicitor (if he so agreed) to act on behalf of this mother, and for the Official Solicitor to be informed of the nature of the application (or indeed any order), in order that representations could be made to the court. However, I perceive that the Official Solicitor, or indeed any legal representative acting on behalf of a party, incapacitous or not, cannot be bound to withhold information which comes to their notice from their client. And it seems to me that this mother probably has the capacity to understand the nature of this application and that the local authority intends to remove the child from her. In my view, the only basis upon which a legal representative can agree not to disclose information to their client is if that client consents to that course of action, and in order to obtain such consent the Official Solicitor would have to alert the mother to the nature of these proceedings. Mr Jones tells me that the authority shares that concern.

So, the order was made, using the authority of Re D, and the principles set out within that judgment

    1. I have come to the conclusion from the documents which I have read and the submissions that I have heard, that this is indeed a highly exceptional and unusual case and that the history of the mother’s mental health problems, her mistreatment of her other children (and there are other assertions of ill-treatment as well as the injury to the baby), the mother’s increasing volatility, irritability and inability to accept the concerns of others and indeed her deteriorating mental health, do give rise to an imminent, serious and present danger to the child when it is born, in particular of an inadvertent injury to the child if the child is sought to be wrested from her.
    1. It seems to me that the only way in which that risk and danger can be guarded against is by way of an order that the baby be removed immediately upon delivery. I understand and acknowledge what a drastic step this is, how deeply distressing this will be to this mother (as it would indeed be to any mother newly delivered of a child), and I am in no doubt that she will understand what is happening to her in these circumstances. But I am persuaded, and indeed now convinced, that there is sadly no other way of safeguarding the interests of this child than by making an anticipatory declaration as I am asked, in order that intervention can take place at the earliest possible opportunity.
    1. Weighing up the options (as I must do), removal is the one which safeguards the child’s interests whereas non-removal does not.
    1. This will not deprive the mother of an opportunity to be heard on an application for an emergency protection order or interim care order at the earliest possible date.
  1. I recognise that the first moments after a child’s birth are particularly precious and can never be recovered, but nonetheless the opportunity to have her case heard at the earliest possible moment will go some way to preserving the mother’s opportunity to have a relationship with her child.

It seems therefore, that what the Court did was use the inherent jurisdiction to authorise removal of the baby at birth PENDING a very fast application for an Emergency Protection Order.  The Judge makes it plain that the EPO application must be ready to be heard very swiftly

In Mr Jones’ draft order he refers to an application for an emergency protection order or an interim care order. This local authority is in no doubt as to the basis of its potential application and the application must be prepared now and must be lodged at the first possible moment during court opening hours after the child is born. If I say ‘immediately’, that means that it does not go down by courier; it means that nobody is still checking for spelling mistakes, it means that it is all sorted out and it is all ready to go and it is with the court at the drop-box or in the court office. I direct that the local authority contacts its local Court where the application is to be issued to ask that special arrangements be made for receipt of this emergency application.

I have some problems with this judgment and decision (not as a matter of law, the Judge followed Re D and balanced things but as a matter of principle and human rights).  The remedy here for the removal at birth is that the mother has the opportunity to challenge within a few hours that decision at the EPO hearing. But how realistic is that?

Firstly, she is going to be in a state of complete shock at the removal, which will be a total surprise to her.  (I know that lawyers could look at the history and say “well, an EPO application was likely” but from mother’s perspective, if social workers have been working with her and never said that the baby would be removed, she might well think that she will keep the baby)

Secondly, she is also in the immediate aftermath of childbirth, a process which is fairly stressful, painful and somewhat discombobulating  (that is a huge understatement) – not putting one in the best shape to get dressed and get on a bus to court

Thirdly, when she gets to Court, she is not entitled to instruct a solicitor to represent her, as she doesn’t have capacity

Fourthly, the Official Solicitor hasn’t been warned of the pending application so that they will be ready at court to represent her

So a vulnerable woman, with mental health problems, in the immediate aftermath of childbirth will be in Court, reeling from the shock of removal and representing herself at a contested removal hearing.

Forgive me if I don’t think that this is terribly fair.

In addition to that, the legal tests for an Emergency Protection Order are rightly very high, following Re X, and are particularly high when the Court is only hearing one side of the story (as here). Shouldn’t the Court, when making a pre-emptive EPO using the inherent jurisdiction have to meet an even higher burden on the evidence than Re X?

I don’t blame the LA here – the facts of the case make this a very tricky and difficult decision, and they did place it before a Court for consideration. Nor do I blame the Court, who applied the existing principles, had all of the evidence when I have only seen a flavour of it, and had a hard judgment call to make.  But I do think, and I suspect many of my regular readers will think the same, that this mother has not been fairly treated. Is the fact that she would react very very badly to the news of the plan for removal really sufficient to take from her her article 6 right to a fair hearing about that removal?

Do we have a proper system in place for mothers who have profound mental health problems, not least because often their drugs to control their condition aren’t conducive to being taken in pregnancy? Shouldn’t we be doing more? What are the safeguards for people like this mother?

(I don’t think this will be opening floodgates – the 2009 decision was viewed by most lawyers who read it as being something that would only be used in the most dramatic and extreme circumstances. I’m not sure these are those, however.  I do honestly think that this case probably justifies more public debate than the C-Section case – at least she had legal representation, even if one could argue that she didn’t get much of a say in it )

Devon knows how they make it so… necessary

 

I was going to blog about the new High Court decision in  Devon County Council v EB and Others 2013, but John Bolch of Family Lore not only beat me to it (which is usual) but he said everything that I wanted to say.

So, I commend his feature on it to you.  If you don’t already follow the Family Lore blog, then you should.

I suspect we are about to get a Court of Appeal decision (I hear these whispers) that clarifies that “necessary” in the context of “is this expert necessary” means something rather akin to “If I am to continue living, it is necessary that you stop strangling me”    [what we lawyers might call the Dudley v Stephens interpretation of the word 'necessary'] and moving away from this namby-pamby idea of necessary in that context being anything to do with uncovering the truth, or delivering justice, or providing a fresh pair of eyes on a pivotal and life changing decision, or article 6.

Anyway, in the meantime, read this authority whilst you can still potentially rely on it.

http://www.familylore.co.uk/2013/04/devon-county-council-v-eb-ors-minors.html

“You’re fired! Now, can I have an adjournment?”

We seem to have had a recent flurry of Court of Appeal decisions about whether it is fair to press on with a final hearing where a parent parts company with their lawyer shortly before the hearing, or even in the midst of it.

This is an interesting dilemma, since obviously there’s a tension between wanting a fair trial and recognising that a parent who suddenly finds that they are representing themselves at the eleventh hour has more than they can realistically cope with, and having decisions made in accordance with the timetable the Court has fixed for the case (that being based on what the child’s timescales are)

On the one hand, it is important that parents who face the prospect of permanent separation from their child (a) HAVE a lawyer and (b) HAVE CONFIDENCE in that lawyer; on the other, if simply sacking your lawyer gets the hearing adjourned, then it would always be better to simply sack your lawyer at the morning of the first day, rather than INSTRUCT your lawyer to argue for an adjournment.

 [Also, if not having a lawyer gets you an adjournment, you can infinitely prolong the decision by sacking your lawyer every time you reach the final hearing, so there has to be a line drawn in the sand somewhere]

 alan sugar

There are two recent cases, with two different outcomes

Re L (A Child) 2013, where the decision to refuse an adjournment was overturned

http://www.bailii.org/ew/cases/EWCA/Civ/2013/267.html

Re GB (Children) 2013, where the refusal of the adjournment was approved.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/164.html

 So, in brief summary, the facts of the two cases :-

 In Re L, the father was having considerable difficulties with his solicitors and things reached the point where they indicated that they were no longer willing to act for him. This happened on the Friday, with the final hearing due to start on the Tuesday. His solicitors conveyed the full set of papers to him on Monday, but he was not at home, having had to set off to make the journey to the town in which the final hearing was to take place.

 The father had sought an adjournment, as although he was ‘wedded to not wanting to return to his previous solicitors, he was also wedded to having legal representation’ and was not seeking to represent himself.

Additionally, and pivotally, there was also a report from a psychiatrist, Dr Bowskill  (this having been a piece of information which caused quite a lot of the disruption between father and his solicitors) and was not presented at the initial final hearing, but was presented to the Court of Appeal.

 

  1. We have what the judge did not have, namely a letter from Dr Bowskill dated 6 September, in which he states shortly but pertinently:

“I have assessed Mr LL and confirm that my opinion is that he is not fit to represent himself in court.”

Beyond that, we have a full medico-legal report from Dr Bowskill dated on its face 20th, but actually signed and dated by the doctor 27 September 2012. What is important is paragraph 7.1, in which the doctor states:

“My opinion is that Mr LL has a Paranoid Personality Disorder, as defined in Section F60.0 in the International Classification of Mental and Behavioural Disorders, Version 10.”

Then in paragraph 7.10 and 11, he states:

“7.10 Given Mr LL’s Paranoid Personality Disorder, I do not believe Mr LL would be able to represent himself in a useful way in the court process. Judge Compston made his findings without being aware of Mr LL’s Paranoid Personality Disorder.

7.11 My opinion is that the degree of Mr LL’s personality disorder is that he would not be able to rationally respond to and address questions that would be posed to him during the Court process. Indeed, the Court process is likely to exacerbate his feeling of paranoia and persecution.”

 For the Court of Appeal, that tipped the balance –underlining mine

I would not myself conclude that the judge’s decision on 14 August and 15 August fell without the very generous ambit of discretion given to a judge who has to balance on the one hand possible unfairness to the applicant, on the other hand unfairness to the respondent in granting the application, to which must be added the all-important welfare dimension taking into account the interests of the child. Finally, there is the general point of public importance that public funding resources need to be husbanded. A transfer from firm A to firm B usually involves wastage and therefore increase in the ultimate bill to the public purse. And always, there is the risk of delay inherent in granting any adjournment and the additional pressure on the limited resources of the court in filling the time vacated and finding matching time elsewhere.

However, the importance of the fresh evidence must, in my judgment, be recognised. Had that information been available to the Recorder, had he had the letter of 6 September and even more the medico-legal report, he would have recognised that he had before him a vulnerable applicant, disadvantaged as a result of his disorder and one who in the opinion of an expert was simply not fit to litigate unrepresented. Accordingly, if he had available to him information available to this court, it is at the least arguable that he would have reached the contrary decision. Indeed, in my view had he had that material, the application required to be granted, at least to give the applicant a limited opportunity to ensure that the certificate was not lost, but transferred to an alternative firm, who would then simply have the relatively light task of picking up the trial from the point at which all the documentation had been prepared. And Mr Maitland Jones, who had only been stood down from his brief to represent on the 14th, would have been available to be briefed on some other day.

 

 

In Re GB, it seems that the parents lost confidence in their legal team shortly after the Issues Resolution Hearing  (a hearing at which their position was confirmed as being that that parents accepted that the 3 children would not be returning to their care, and that the time estimate for the final hearing was reduced by agreement from 5 days to 2),  but did not obtain fresh representation between the IRH and final hearing and had not taken any steps to do that.

They dismissed their legal representation and sought an adjournment to obtain fresh legal representation, which was refused, and thus found themselves in the position of being litigants in person. [Again the underlining is my own, for emphasis]

  1. Ms Sterling’s case before us today sought to highlight a number of aspects. First of all, the mother’s vulnerability before the court. In doing so, we were handed one page from what is obviously a lengthy report prepared by Mrs Westerman, a clinical psychologist who conducted an assessment of the mother. The page that we have sets out three paragraphs listing the outcome of a number of psychological tests that were undertaken. These indicated that the mother had an elevated score in a number of aspects, in particular in one test on the “paranoid scale of the severe personality pathology scale”. Another result indicated the presence of “depressive and masochistic personality traits”; and, generally, Ms Sterling submitted that these results established or at least strongly indicated that her client was a significantly vulnerable individual and not well fitted, or fitted at all, to be either a litigant in person in any proceedings or, more forcefully, the litigant in person in these proceedings in relation to her own history, her own functioning as a parent and the future of her own children.
  1. Ms Sterling also took us to no less than four occasions in the judgment where the judge either herself expressed the view, or quoted the view of professionals, that the mother lacked “insight” into the difficulties that were being raised against her in the proceedings. Ms Sterling also pointed out that this mother had herself had a very troubled time as a young person in the care system.
  1. As part of the task facing the mother at the hearing, she was required to cross-examine the psychologist who had produced this comprehensive report. Ms Sterling said in terms that it was just wrong for a person such as this mother to be required to cross-examine a psychologist in these circumstances. She said that for the judge to have established a trial where this took place was unfair, unjust and unkind.
  1. In support of the second ground of appeal, Ms Sterling having taken us in her detailed skeleton and in her oral submissions to other matters, stressed that the judgment of the court does not simply deliver the task of deciding what should happen to the three children before the judge in November 2011, it also has an impact upon any future child that this mother might have, because it would be taken as the starting point and given credence by the local authority in deciding whether the mother could be a safe or good enough parent for any future child. The submission was made that there was no urgency in the proceedings before the judge, that there was benefit in time being taken to allow for legal representation; the children were not going to be moving, and indeed have not moved, from the places that they were already established in at the time of the hearing and the judge should have given the mother the adjournment that she sought.
  1. Finally Ms Sterling took us to the detail of the task that the mother faced in conducting the hearing. She described it as a herculean task, not least because of the physical burden of the mother carrying the six or seven bundles of paperwork away with her for the first time from court at the end of the first day, travelling on public transport back to her home, reading them as best she could overnight and returning to court for the 9.30 start on the next morning.
  1. Ms Sterling also said that a reading of the transcript showed that to pack so much into the day and for the judge to hold, as she did at the beginning of the first day, that the hearing would finish “tomorrow” was to put too much pressure on the mother and led to the court driving the case forward at an unacceptable pace during the course of the second day.
  1. I asked Ms Sterling whether any criticism was made of the approach the judge took once the hearing had begun, other than the pace of the process, and to that request Ms Sterling indicated that the way in which the judge simply allowed the mother to ask very long narrative questions of the witnesses was in fact a detriment to the mother; it allowed her, to use Ms Sterling’s phrase, “to rant” in an unfocussed manner which almost became self-defeating of the mother trying to present a positive and wholesome picture to the judge

The Court of Appeal in both cases referred back to Re B and T (care proceedings: legal representation) [2001] 1 FCR 512 and cited the general principles about an adjournment application where the parents had become unrepresented [underlining mine]

 

  1. 45.   “17. The assertion by Mr Miss Booth that art 6 obliged the judge to discontinue on either 12 June or, if not then, on 14 June, seems to me to be an unrealistic submission. In this jurisdiction the proceedings are not adversarial proceedings. The judge always holds an inquisitorial responsibility, It is his difficult task to maintain a balance between the rights of the children to an early determination of their future. The obligation of the judge to avoid delay is expressed in the statute. I cannot see that it could be said that this judge, supremely experienced in this field of work, fell into error in balancing the rights of the children to determination against the rights of the parents to a fair trial. It is not a case in which the parents were denied the opportunity to put their case. It is manifest that the judge endeavoured, to the best of his ability, to ensure that the received the support which is conventionally given by a judge and advocates to unrepresented litigants.

[…]

21. When one considers the requirements of art 6 of the Convention, it is relevant to remember that art 6 requires the entire proceedings to have been conducted on a fair basis. It is not appropriate simply to extract part of the process and look at that in isolation. In this case, as my Lord has said, there had been abundant legal advice and guidance of the most skilled nature available to Mr and Mrs T before the matter came before Wall J. There had also been the possibility, indeed the obligation, to produce further evidence: steps that had not been taken on the instance either of Mr and Mrs T or of those were acting for them. I do not therefore agree that, in assessing the impact of the Convention in this case, one should necessarily start on the day upon which the adjournment was sought, ignoring everything that had gone before. Further, I do not agree that, in proceedings of this nature, in which the children as well as the parents have an intimate and pressing interest, one should look at the question of fairness to the parents in paramount priority to fairness (in terms of a prompt decision, which is another aspect of art) to the children. In the passage that my Lord has read, it is clearly apparent that the judge had, and properly had, the interests of the children well in mind when he was making his decision.

22. However, I put those matters to one side. I will look at the case on the basis upon which Miss Booth put it in support of the submission that art 6 did require a decision, either to adjourn the trial or to stop it at the point that I have indicated. We have to remind ourselves, as I have already said, that art 6 is concerned with the overall fairness of the proceedings. The article itself lays down very few absolute rules. That said, both the jurisprudence of the European Court and simple common sense, of a kind that an English lawyer can immediately identify, do require in general terms that certain elements are present in any judicial proceedings, an obvious example is the right and ability of those concerned in the proceedings to put their case. Here Mr and Mrs T had ample opportunity and occasion, as the judge was satisfied they had done.

23. Another consideration is that there should be equality of arms between the parties but, in my view, that does not mean that there must necessarily be legal representation on both sides, indeed on all sides, more particularly where everybody concerned in the case was acutely aware of the need give every assistance to people who were representing themselves. Provided that the tribunal is itself aware o and constantly reminds itself of the duty of fairness, it is very much a matter for that tribunal, and is recognised in the jurisprudence of the Convention as being to a substantial extent a matter for that tribunal, whether, in all the circumstances, it is able to discharge the case fairly.”

[Just as well, considering what has just happened to legal representation in private law cases, that equality of arms doesn’t mean that if one person has a a lawyer, everyone else should have a lawyer]

So, in Re GB, the Court of Appeal went on to consider whether, drawing on those general principles, the decision to refuse an adjournment was plainly wrong

  1. It therefore seems to me that issues such as the one raised in the present case will of necessity be fact specific; it will be necessary to look at all of the elements that were in play before the judge who decided to adjourn or not adjourn a set of proceedings. The principles are set out in the European decision of Re P and most helpfully set out in Re B and T, as I have indicated.
  1. Applying those matters to the present case, and not underestimating the task that the mother faced in conducting this litigation before the court in the, to her, unexpected event of the court pressing on without granting an adjournment, I consider that the process that was adopted and the decision to press on without an adjournment did not breach the mother’s Article 6 rights to a fair trial, looked at either in terms of the narrow focus of the hearing itself in November or, as we have to do, against the canvas of the proceedings as a whole.
  1. This was a case which turned very much upon the assessments that had been undertaken by the various professionals. Much of the work of teasing out the detail, the strengths and weaknesses of the various family members and the vulnerabilities and needs of the children had been undertaken by professionals over the course of weeks and months, had been reduced to writing and was before the judge. The judge’s decision was very much based upon that material. There is a limit in such circumstances as to how much any advocate, lay or otherwise, can achieve where the body of material upon which the judge will rely is established, and there is no countervailing expert opinion the other way. For example, had the independent social worker instructed on behalf of the parents taken a contrary view then there would have been more room for manoeuvre available to an advocate to present a case; here the evidence was all one way.
  1. Secondly, this was a case where the judge was contemplating delay of already one year from the time the children were removed to foster care. Although they were not going to change their placement or their home if the orders sought were granted, everybody involved with them, and in particular the children insofar as they could understand it, needed to know whether or not these arrangements were going to be for the future, so that they could hunker down and get on with life and the task of growing up or bringing up the children; or, if the children were going to go home, plainly that issue had to be determined so that the moves to move them back to the parents’ care could be undertaken. The judge was therefore justified in attaching a premium to the need to achieve finality in this process.
  1. Although Rule 1.1(2)(c) urges the court to establish an equal footing between parties, that can never be justification of itself for a litigant in person seeking an adjournment and holding that the failure to grant an adjournment is a breach of Article 6 rights.
  1. At each turn a balance has to be struck; it is not a balance that is to be determined under Section 1 of the Children Act under which the child’s welfare would be the court’s paramount consideration, but the court must take account of the child’s welfare and the fair trial needs of the parties to the court, which include the parents but also include the child and, to a lesser extent, the local authority. This was a decision that the judge was particularly well seated to take; she had a prior knowledge of the case and she had indicated at the earlier hearing that no adjournment would be contemplated simply for a change in legal representation to be achieved. In my view, the judge was right to reject the adjournment application.
  1. But that is not the end of the matter. Once the case is proceeding a judge is faced with the difficult judicial task of acting as the judge in the proceedings, of refereeing the court process, but doing so in a way that seeks to meet the need for all parties to be on an equal footing so far as is practicable, notwithstanding that one of them is not legally represented, and in this regard I think the judge conducted herself in a way which was conspicuously helpful in meeting that need. In particular, the judge had been open and clear to the parties by indicating at the previous hearing that there would be no adjournment. The parties were in no doubt that that was the judge’s view and any change that they were going to seek to make in their representation would have to bear in mind that parameter set by the judge.
  1. Secondly, once the judge had decided to press ahead with the hearing she was clear in dealing with the mother as to what was required and, on my reading of the transcript, went out of her way to assist the mother to achieve focussed representation in the terms of choosing which witnesses to call and how they should be questioned. One aspect of this is that, despite the breakdown in the professional relationship between the parents and their lawyers, the judge invited counsel and solicitors for the parents to remain in the court room during the morning of the first day of the hearing. The time came when the court turned to ask the mother which witnesses she would wish to call. At that stage the judge was able to ask the mother to spend a short time out of the court room with her previous barrister and solicitors to obtain their assistance and indeed to consider reinstructing them and returning them to their previous role. The result of that was that a list of witnesses was provided and the mother confirmed that she did not wish to reinstruct the lawyers. The judge’s invitation for the lawyers to remain in the court room seems to me a sensible and proportionate step to have taken.
  1. Most of the witnesses who were called on the second day had in fact been stood down, and again the judge did not stand by the previous order which had simply listed a few witnesses to be called; she exhorted the local authority to obtain as many of the key witnesses as possible and adjourned the case from time to time to assist that process.
  1. During the evidence giving itself, the judge allowed the mother full rein; she did not interrupt the mother with interventions designed to keep the mother on a track that a lawyer skilled in the forensic process should follow; she did not bombard the mother with technical points; instead she allowed the mother simply to say what she wanted to say, and then at a suitable interval the judge would try to focus the witness onto a question or questions arising from what the mother had said.

And thus concluded that taking the principles from Re B and T and the European Court decision in P, C and S v  UK, which is reported in [2002] 2 FLR at 631 and applying the facts of this case, the Court had not been plainly wrong in refusing the adjournment.

 What we don’t have then, is a checklist of what factors tip the balance for granting the adjournment and refusing one.

(I’d suggest that relevant factors would be – the circumstances in which the parent and lawyer parted company, the complexity of the trial, the timing of the separation, what steps the parent has taken to try to get fresh representation, the vulnerabilities of the parent, their ability to conduct the litigation in person if given appropriate support, the impact of delay on the case and the child,  and the timescales for reconvening the hearing. But those are just my suggestions, the Courts haven’t sat down and thrashed out a set of factors]

Of course, this raises the interesting point – in order to properly seek an adjournment, the parent (who is representing themselves, perhaps unwillingly) needs to know of the substance of at least four pieces of case law – Re B and T, P C and S v UK, Re L and Re GB, and to be able to highlight to the Court the facts of their case which put them in the Re L bracket and not the Re GB bracket.   [Good luck with that]

It would seem sensible, where the other parties get advance notice of a parting of the ways, for the relevant cases to be brought to Court and the principles distilled into a short document for the benefit of the Court and the parents.

 The Court of Appeal in Re GB also made some salient points about the delay, it having taken 15 months to get the appeal heard, principally because the appeal had not been issued until the transcript of the hearing had been obtained, and firstly there had been a delay in getting the LSC to fund the transcript and secondly in getting the transcript approved by the original trial judge.

The Court of Appeal encourage parties in a similar position to issue the appeal without the documents and use the force of the Court of Appeal’s directions to hasten the production of those documents.

  1. From this unedifying chronology it seems to me that the following points for future practice can be drawn:

a) The preparation of transcripts, and indeed the obtaining of advance authorisation for the costs of preparation from the Legal Services Commission, may take a significant amount of time. At each turn it is important to ask the question: is the obtaining of this particular transcript an essential pre-requisite before either filing a notice of appeal or indicating that the papers are in order for the permission to appeal application to be considered?

b) Where, as here, time was running on and a further first instance hearing was timetabled, serious consideration should be given to filing the notice of appeal in any event, notwithstanding that one or more plainly essential transcripts is not yet available. Such a step

1) enables the Court of Appeal to support a prompt process by the Legal Services Commission and the transcribers in meeting a sensible timetable;

2) enables the Court of Appeal to contact the first instance judge if necessary to chase up approval of the transcript of judgment; and

3) provides a vehicle via which the proposed appellant may seek a stay of the ongoing court proceedings pending consideration of their application by this court.

c) In a case which is already grossly delayed, the notice of appeal if not already filed must be filed within a matter of a day or so after granting of legal funding and not, as here, some weeks later.

d) the pursuit of transcripts in relation to issues which, at best, are peripheral should not delay progressing the case at least to the stage of consideration for permission to appeal.

Does a child have a RIGHT to give evidence? Does anyone?

The Court of Appeal decision in Re P-S (Children) 2013

An interesting case. A child whose future was being determined by the Court had a different view to that of the Guardian representing him, and was competent to instruct his own solicitor. He did so. He met with the Judge, who obviously did not conduct that meeting as any form of forensic exercise.

 He later became distressed and unhappy and applied through his lawyer to give oral evidence, so that the Court could directly hear his views on the plans being considered and his strong opposition to those plans. The other parties made it plain that they would not cross-examine him, so his evidence would be instead a platform for his direct expression of his views.

 The Court refused that application and went on, in due course, to make the orders that the young person had been opposing.

 The appeal was therefore on the point of whether the child had a RIGHT to give evidence, if he was competent to do so, or whether it was a case management decision in the discretion of the Judge.

 And additionally, whether, when the child is of sufficient age and understanding, should the “wishes and feelings” portion of the Welfare Checklist, be weighted such that it is a rebuttable presumption in favour of their wishes being complied with.

 

On 16th November 2011 M made his application for permission to attend to give evidence by video link “so that the strength of my feelings can be made clear to everyone”. He explained that he would be “extremely distressed if told that I was to be forced to remain in foster care and I would struggle greatly to accept this outcome.” He also said that “I have had thoughts of running away as sometimes I have felt that people are not taking me seriously. These have occurred quite often, including quite recently, but in the last few weeks I have been a little more optimistic and hope that the court will grant my wishes. I would feel devastated if I were told I could not return.” That application was heard on 21st November 2011, the Local Authority and guardian indicating that they did not wish to cross-examine M on the content of his statement, Mother indicated that the only question she would be seeking to ask him through her counsel would be about the likelihood of him voting with his feet and running away from the foster placement should a care order be made.

 

 

The judgment on M’s giving evidence

10. The judge observed that the two authorities to which she had been referred, namely Re: W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 and A City Council v T, J and K [2011] EWHC 1082 (Fam), [2011] 2 FLR 803, dealt with radically different situations from the one with which the court was faced, the former concerning the giving of evidence to substantiate a complaint for the purpose of establishing the threshold and the latter dealing with an application for secure accommodation.

11. She made these findings:

“12. It is a relevant factor that the Mother has always displayed her own emotions quite openly in court whether represented or not. …

13. There remains, therefore, in my judgment a severe risk that if M is within the court precincts and available to Mother, as he would be by way of the video link, she will be unable to resist the temptation for an extreme emotional outburst in his presence which, based on her previous conduct in court, it would be impossible to control. That I regard as of real potential detriment to M in terms of his coming to give evidence.”

12. She noted Mr Blakes suggestion that there is “value added” to his written statements through the court being able to assess Ms subjective viewpoint and the strength of his feelings through his demeanour. But she held that it was inevitable that he would want to do what he thinks is right by his Mother and will want to put right by what he Judgment Approved by the court for handing down. P-S (Children)

says matters over which he has no control and for which he is not responsible. Her conclusions were:

“37. It is likely, in my judgment, to be enormously harmful to M to assume a responsibility for the outcome of this case, which is exactly what he would do if he came to court to give evidence. … If [I may not be able to arrive at a conclusion which is consistent with his wishes] then he will feel that he has failed and moreover that there is a prospect that his relationship with those who would be responsible for his care and his own Guardian would be damaged. …

38. I question whether there is anything more that M can tell me or which I am going to be able to assess from his demeanour that is going to assist me with the determination of the relevant issues. …

39. I am prepared to accept, both for the purposes of this application and for tomorrows hearing that M would like to return to the care of his Mother, and if that involves As father to their joint care I am perfectly prepared to accept that he will be bitterly disappointed if he is not able to achieve that. I am also prepared to accept that there may be some short-term emotional harm to him as a result of a rejection of that case which is put on his behalf. But, as the advocates will be aware, there is rarely a perfect outcome to proceedings involving children, and this case is no exception.

40. The conclusion that I have arrived at is that the additional benefit to the determination of the relevant issues of M giving evidence is significantly outweighed by the very real potential detriment.

41. If there is really no evidential matter on which Ms evidence can assist the Court, slow though I am to arrive at this conclusion, I have to question whether there is any need for him to be placed in the invidious position of giving evidence when the giving of that evidence may make matters significantly harder for him should the case go against his express wishes.”

 

 

The Appeal considered the UN Convention on the Rights of the Child, particularly Article 12

 Article 12 of the Convention provides:

“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

 

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” (I have added the emphasis)

 

How successful have we been in implementing Article 12? First, the child is automatically a party to the care proceedings by virtue of FPR 12.3(1). Secondly, there is provision for the representation of the child, s.41 of the Children Act requiring the appointment of an officer of the service or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interest. The court may appoint a solicitor to represent him. The so-called “tandem” model for the representation of children who are parties to family proceedings, namely by a guardian with social working qualifications and a specialist family solicitor meets our obligations to comply with Article 12: see Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, per Thorpe LJ at [26] who went on to conclude his judgment saying:

“32. … this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The Rules are sufficiently robustly drawn to accommodate that shift.”

If the circumstances of the case demands it, as they did in this case, the child will be afforded separate legal representation by solicitors and counsel.

27. Thirdly, there is provision for attendance. Under s. 95 of the Children Act the court may order the child concerned to attend as prescribed by rules of court. FPR 12.14 provides that any party must attend the proceedings but the proceedings or any part of them may take place in the absence of a child pursuant to FPR 12.14(3) if the court considers it in the interests of the child having regard to the matters to be discussed or the evidence likely to be given and the child is represented by a guardian or solicitor.

28. Fourthly, as for evidence, s. 96 of the Children Act provides that a childs evidence may be heard by the court if, in its opinion he understands that it is duty to speak the truth and he has sufficient understanding to justify his evidence being heard. S. 96 also provides for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay. FPR 22.1 gives the court power to control evidence by giving directions as to the issues on which it requires evidence, the nature of that evidence and the way in which the evidence is to be placed before the court. The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at the final hearing by the oral evidence.

 

 Of course, section 96 is providing the POWER to hear from a child, in those circumstances, and not providing a RIGHT for the child to hear evidence. And the Court of Appeal here draw the distinction between hearing from a witness to PROVE a fact, and hearing from them as to their views.

 (The case of Re W, of course, the lead authority on children giving evidence, was primarily dealing with cases where the child was s96 competent to give evidence AND was a witness of fact. Here, the issue was not a factual dispute to be unpicked, but as so often in care cases, a dispute as to how the case should be properly disposed of, given the facts that were available)

 The lead judgment in Re P-S grappled with the issue of whether a child has a RIGHT to give evidence and reached this conclusion  [underlining is mine]

 

That being the jurisprudence, is it enough for us to say that a child has a right not only to be heard in proceedings affecting him but also, and more relevantly for the appeal, a right to give evidence in those proceedings? The U.N. Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have to it when considering matters relating to it. The position may now be different in Wales because the United Nations Convention on the Rights of the Child has become part of Welsh legislation by reason of the Rights of Children and Young Persons Measure (Wales) 2011 which came into force in May 2012. The Measure will shape all future policy decisions taken by Welsh ministers.

36. Nevertheless, in my judgment, it should now be declared that the child does have the former important but limited right, that is to say, a right to be heard in the proceedings. It is apparent from the foregoing that the right to be heard does not specify how the child is to be heard for the Convention expressly recognises that the voice of the child may be conveyed “either directly, or through a representative or appropriate body”. Indeed the guidance at [43] prefers the child being heard under

conditions of confidentiality, not in open court. It may be enough that a social worker, i.e. the CAFCASS officer or guardian hears the views of the child and it does not seem essential that it has to be the judge who hears directly from the child. So, whilst the child must be listened to, there is nothing in the Convention which entitles the child to give evidence to the judge. In my judgment a child has no right to give evidence.

 

 

 

The Court of Appeal then went on, and this is what makes the case particularly interesting, to a law geek like myself

 

In my judgment no-one has a right to give evidence. A trial may nonetheless be fair if the court exercises fair and reasonable powers to control the evidence as is provided for by FPR 22. Once there is undisputed evidence of a fact which may, for example, be a fact admitted on the pleadings, there is no need for further oral evidence to prove that fact. Evidence may be led to dispute a fact but the court will not tolerate a parade of witnesses all saying the same thing. An adult would not be allowed to give that evidence any more than a child should be.

 

[I think until the Court of Appeal ruled on that, MOST professionals would have suspected and said confidently that a party had a right to give evidence in care proceedings - yes, that that doesn't mean they can pontificate for hours on end, or that they can call a string of character witnesses, but that if they want to get into the box and speak directly they have the right to do so.]

I have had many cases, and am sure that other lawyers and professionals would say the same, where the parents have wanted to have their say in giving evidence to the Court, although the evidence is not being heard to resolve a factual dispute  (did X or Y event happen) but rather as part of disposal (given that X or Y happened, what should happen now?)

 I have often made it plain, in those circumstances, that I would not cross-examine the parents, who want to have their say – their view and beliefs are legitimately held, and the experience of care proceedings is bad enough for a parent without my cross-examining them (unless there is a factual dispute).

This authority suggests that a parent does not have a RIGHT to take to the stand and be heard from, in the absence of a factual dispute.

 Of course, the reality is that this evidence takes little time, gives the Court a feel for the parents presentation and is perhaps part of the cathartic process for the parents in feeling that they had their say – as opposed to leaving Court feeling like they have not been heard.  I suspect that most Courts will continue to hear from parents in those circumstances, but as they say in Game of Thrones, “Winter is Coming” and who knows how circumscribed our hearings might become in our brave new world of 26 weeks?

 The last point of the appeal was whether the welfare checklist was, in effect, weighted once a child neared their majority so that their wishes and feelings had greater force than the other elements, or was perhaps even a rebuttable presumption that they should be adhered to.

Is there a rebuttable presumption that the mature child’s wishes should prevail?

43. In my judgment the answer is certainly not. The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive. Judge Parry dismissed this argument for reasons with which I totally agree.

“Ex parte removal by the back door”

A discussion of the Court of Appeal decision in Re L (A Child) 2013

 I will begin this discussion by being frank. I do not like this decision. I do not like it on a train, I do not like it on a plane. I do not LIKE green eggs and ham.

 I feel deeply uncomfortable with it, and hope sincerely that it is not used as precedent for any future decisions. I hope that it rests with the peculiarly unusual facts of this case only.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/179.html

 In very brief terms, the central issue was this. The Court had profound concerns over a number of months about a child and had a wealth of information about difficulties in the parenting provided to the child. The Court, faced with a shift in the Local Authority stance that the time had come to remove the child, used the powers under section 37 of the Children Act 1989 to make an Interim Care Order, which allowed the Local Authority to remove the child.

 So far, nothing terribly questionable. The facts of the case justified the making of an Interim Care Order, they probably justified removal, and the Court had the power to make an ICO under section 37 of the Children Act 1989 although no application had been made.

 My issue with the case is that what actually happened was the Local Authority deciding that if they placed the mother on notice that they intended to make an application for a Care Order / Interim Care Order, that the child would not be safe.  They obtained a hearing before the Judge, to which the other parties were not invited and did not attend and had no knowledge of.

 

The Court looked at the section 7 report prepared by the Local Authority, which made plain their escalation of concerns, their intention to issue care proceedings and their fear of what mother might do if given notice of that intention, heard from those representing the LA and made a section 37 direction and an Interim Care Order, with a view to a hearing being listed at which the parents could challenge that ICO.

 

  1. On 22nd January 2013 I granted Mr and Mrs S permission to appeal. At that time the understanding that they had, together with their counsel, was that at the without notice hearing the judge had, then and there, made the full 8 week interim care order. In the absence of a transcript of all save for the judge’s final “on notice” judgment, the understanding was that the “on notice” hearing that followed was relatively short, concluding in a judgment in which the judge sought to justify the steps that had already been taken at the “without notice” hearing.
  1. For the purposes of the present hearing we now have a full transcript of the without notice hearing and the on notice hearing together with a short memorandum from counsel, Miss Anna McKenna for the local authority, who appeared before Parker J on 14th December and again before us at this hearing. The greater clarity that those materials provide indicate that some time between 1 p.m. and 1.15 p.m. the s 7 report was handed in for the judge to read in her chambers. At about 1.50 p.m. the local authority team went into court for the “without notice” hearing. Miss McKenna’s recollection, which is confirmed by the transcript of the hearing which runs to just over two sides, is that this hearing lasted a matter of no more than 5 minutes. The judge stated that she had read the s 7 report and was contemplating making an interim care order but questioned the power to do it at a without notice hearing. The potential to utilise s 37 is raised by the judge and the scheme that was apparently adopted is encapsulated in one short exchange:

Miss McKenna: You can make a s 37 placing the child into our care, take the matter immediately and hear inter partes arguments.

Mrs Justice Parker: Including an application for discharge. Could I discharge the care order on that basis?”

  1. There is then a short discussion about security arrangements and the decision that the local authority have taken. The judge then twice states that she is keen to get “everyone in”. At the conclusion Miss McKenna says “may I take it that a s 37 direction has been made?” to which the judge replies “yes, a s 37 direction and a care order, and for the purposes of the transcript I am satisfied that there is a real risk of significant harm to this child if I do not make an interim care order prior to Mrs S understanding that this local authority is wishing to take care proceedings. There is no doubt about that.”

 

 

And the Court of Appeal felt that this was permissible and justified

 

In circumstances where, as I have held, the judge was justified in holding that this child’s safety required immediate protection by means of compulsory removal from her home, a submission that the procedural path chosen by the judge was technically not available to her is only likely to succeed if there is no escaping the procedural points that are made. This is not such a case. The course adopted by the judge is not excluded by any provision in the CA 1989, the FPR 2010 or elsewhere.

Mr Tolson accepts that, in an emergency, the court is not required to follow the pre-proceedings protocol in PD12A. He accepts that if an application had been made either for an emergency protection order or an interim care order it would either be commenced in, or transferred immediately up to Parker J in, the High Court where these long running proceedings were pending (Allocation and Transfer of Proceedings Order 2008, Art 5(3)). Given that M was a ward of the High Court, the local authority would in any event require Parker J’s permission before making an application for an emergency protection order or an interim care order and, before such an order was granted, Parker J would have to order the discharge of the wardship.

Whilst in another case, of course, the alternative steps that I have described could be taken, the fact that an alternative route exists does not mean that the s 37 route chosen by the judge was impermissible. To my mind, the legal requirement for the case to come before Parker J before any application for a public law order could be made, demonstrates the arid nature of the appellants’ technical challenge. Mr Tolson does not submit that Parker J could not have made an interim care order on 14th December or that, if the situation was properly regarded as an emergency, she could not have done so despite non-compliance with PD12A; his submission is simply that a different route should have been followed. It would, in my view, have been permissible for Parker J simply to have made the interim care order upon the local authority undertaking to issue their application that afternoon or the following morning. Finally, if the October s 7 direction had been made under s 37 (as a number of previous directions had been) no jurisdictional issue would exist.

In the unusual circumstances of this case, I am entirely satisfied that Parker J, who had concluded that M’s safety required an immediate order, was justified in using s 37 to achieve that outcome.

 

This is my problem, in a nutshell.  Where a Local Authority wish to initiate care proceedings and they think that the risks of doing so on notice are too great, there is a mechanism for making an application ex parte and having it heard before a Judge.

 The mechanism is to make an ex parte Emergency Protection Order application.

 And because the nature of such an order is draconian, and because the risks of making an order without the parents being there and represented are so serious and risk a breach of article 6, there are incredibly stringent requirements of the Local Authority, who have to demonstrate extraordinarily compelling evidence to do so, pace RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

It sits extremely badly with me that in private law proceedings (albeit ones that are about to become public law proceedings) a Local Authority can go in and see the Judge ex parte   [not least because they have no locus standi to make any sort of such application] and that a decision can be made which is in practice an ex parte Emergency Protection Order using section 37 of the Children Act, without any of the protective mechanisms of Re X.

I also think, for me, there is a wealth of difference between a Judge weighing up the facts of a case and reaching for section 37, and a Local Authority effectively asking the Judge to exercise the section 37 power to make an ICO without there being an application on the table.

I’ll make it plain, on the facts of this case, which the Court was extremely familiar with, there was a considerable argument that the removal was the right thing to do. There was some very peculiar stuff happening with this poor child, and the watershed moment had been reached.

And I suppose one takes into account that unlike a traditional EPO application where the Court knows nothing of the case but what the applicant tells them, the Court here had a wealth of knowledge.  I have pretty little doubt that HAD the application been framed as an ex-parte Emergency Protection Order application   [there’s sadly quite a bit of song and dance to how you get that heard by the High Court Judge who knows the case, rather than in the Family Proceedings Court] it would have been given and a judgment delivered that would have been safe from appeal. BUT it would have had to have had the Re X safeguards.

Or if the Court of Appeal had said, it is acceptable to use section 37 in this way, but the applicant should have the same duties as set out in Re X and the Court should approach the section 37 request in the same way, where the application is made ex parte.

 I really don’t like this decision, and for me, this is the second recent time that the Court of Appeal have looked at the ability of the Court to make an Interim Care Order (sanctioning removal of a child from parents without the parents having had sight in advance of the Local Authority case and a threshold document) using section 37 as the hook, and have taken a very permissive “the law doesn’t prevent this, so go ahead” stance, rather than focussing on the issues of natural justice and saying that it is a tool to be used with extreme care.

I probably would not have allowed the appeal, since the decision to remove was probably the right one, but would have made it plain that a Court in future faced with any such ex-parte consideration of using section 37, should have firmly in mind the principles of Re X.  

The Court of Appeal don’t, for me, seem to have contemplated that it was never envisaged that the Court would make a section 37 order and ICO without the parents being present or represented at a hearing, because it would TAKE PLACE IN PRIVATE LAW PROCEEDINGS to which they are parties.  It was never envisaged that a Local Authority would be having an ex parte hearing in proceedings where they had no locus (having been asked to compile a section 7 report).

“Don’t ever invite a Judge into your house, you silly boy, it renders you powerless”

 A peculiar little case, considered by the High Court, and not just a cheap opportunity to quote from The Lost Boys, honest. [But come on, when would Suesspicious Minds ever pass up an opportunity to reference the Lost Boys?  "Burn rubber, does not mean warp speed!"]

Re AMV and MV 2012

http://www.familylawweek.co.uk/site.aspx?i=ed111643

It isn’t an important case, save for those involved, nor does it say anything vital about the law, but it is one of those interesting ones that I collect and write about where the mind boggles at how cases sometimes end up being conducted.

The Judgment is very short. Here is the nub of it.

A private law dispute where the mother and the children were living sometimes at her own home and sometimes with the maternal grandparents. The father alleged that the mother was living full-time with the grandparents, in an unsuitable property and not living at her own address at all.

The District Judge decided that the best way to assess that was to go out and see for herself.

So the mother was asked to agree to that site visit, there and then, and given 15 minutes to decide.  [I like to imagine that the Judge was also loudly humming the Countdown theme tune, but this did not actually happen]

Obviously, saying no might have given the impression that there was something to hide, so with some confusion, she agreed.

It hadn’t been possible to contact the grandparents to forewarn them / ask them, so the Judge, accompanied by the mother, father, counsel and the CAFCASS officer set out on the journey.

All parties duly arrived at the mother’s house, were permitted entry and apparently combed the premises, opening doors, looking in cupboards and fridges, even looking in wastepaper baskets. I was told that the District Judge had specifically looked into a dustbin and, as a result, made an express finding, arising from this as to the likely occupancy of the house.

6 On completion of this outing, the parties (still in the two separate cars) drove to the maternal grandparents’ property. On arrival they were given admittance. The maternal grandparents were to an extent taken by surprise. They did not have independent legal advice. The process of investigation, as already described, then took place in their home, with doors being opened, the contents of drawers being investigated and the like.

7 The parties returned to court. The entire outing took about one and a half hours. The District Judge made findings in reliance upon what had been seen – indeed, a great deal of cross-examination of the CAFCASS officer took place on the basis of counsel’s perception of the state of the two homes.

It is not going to take a genius to work out that the Court having made decisions based on these site visits, the mother was going to appeal those decisions, and that she was going to succeed in that appeal.

To my mind, this entire procedure was wholly unacceptable. In the first place, it was a suggestion which came within or shortly after the opening of the case and did not permit time for proper consideration of the implications. In reality it gave the mother and her adviser little effective choice but to agree for fear that a negative response would draw an adverse inference from the court. It was, in effect, litigation by ambush.

9 Although I have not been addressed in detail by either counsel, it would also seem to me it was, prima facie, a breach of the mother’s Article 6 rights to a fair trial. It is not the role of a judge in such a situation to play detective and enter a person’s home. 10. More importantly this Judge entered the home of a third party in order to elicit evidence. Prima facie, that was a breach of the maternal grandparents’ Article 8 rights.

To my mind, a judge’s job is to consider the facts presented, weigh up that evidence after cross-examination, make findings and a determination. If the methodology adopted by this District Judge was correct, it would lead inevitably to breaches under the ECHR. A Judge cannot seek to determine who is telling the truth by a surprise or unannounced visit in relation to disputed facts. That is not an appropriate way to litigate.

Moreover, the method of approaching third parties and seeking entrance into their home in those circumstances as I have stated left them with effectively no choice. I doubt that they felt that they had any alternative but to open their front door and make the Judge, counsel, their daughter and their former son-in-law welcome in their flat.

The District Judge found their home was cramped, dirty and untidy. Hardly a matter which was appropriate in all the circumstances.

10 I consider that it is inappropriate for any District Judge to seek to deal with a case in this manner. Especially as the site visit came at the Courts suggestion without any or any sufficient time for mature reflection let alone legal advice.

If there are real concerns that children are not being cared for properly (and that was not an issue in this case) it is a matter that can be dealt with by social services who are entitled to, and do make, regular unannounced visits.

I deprecate the method used by the District Judge and would urge that nothing similar occurs in the future.

I suppose the process of the District Judge effectively making an unannounced visit and looking in dustbins, and the parents counsel cross-examining the CAFCASS officer about a home visit to which not only they, but also the Judge had also been present (and thus technically witnesses about) was slightly more scientific and forensic than the Judge starting the judgment with “Ip dip sky blue, it is not you” , but not all that much more.

Please, judges and counsel of the land, keep making such extraordinary and peculiar decisions, it brightens up my day.

[The usual tangent – it seems that the lore that a vampire must be invited into your home comes from Bram Stoker, in “Dracula” "He may not enter anywhere at the first, Unless there be some of the household who bid him to come; though afterwards he can come as he please." - where Van Helsing is recounting the powers and limitations of the vampire, and wasn’t around as a myth before then]

we trashed the one who looked like twisted sister - totally annihilated his nightstalking ass

Jumping the gun

A consideration of the High Court decision in Re RCW v A Local Authority 2012 , and the need to be very careful when making decisions to remove a child from prospective adopters

 

 

There is an excellent summary and discussion of the case at Family Lore, and is actually so good that I nearly didn’t write this piece, but I thought I might be able to find something fresh to say, even if it won’t be so pithy.

 

http://www.familylore.co.uk/2013/02/rcw-v-local-authority-unusual-and.html

 

 

 

In essence, it related to a challenge by a woman who had been intending to adopt a child. The child had been with her for 10 weeks (this being the exact period of time that the child would need to be placed with prospective adopters before the formal adoption application could be lodged) and then the carer had an operation, having slightly earlier been diagnosed as having a brain tumour, and that operation tragically left her without sight.

 

The LA decided that they would wish to remove the child from her care. As a matter of strict law, prior to the prospective adopter making an application for adoption, they believed that they were able to do so.

 

The timing was very tight – the carer lodged her application for adoption, and on the same day received a letter from the LA indicating that they proposed to move the child.  (The LA decision therefore pre-dated, though only just, the carer applying for an adoption order)

 

 

[The removal is under s35(2) of the Adoption and Children Act 2002

 

  1. Section 35(2) of the ACA 2002 provides that:

“Where a child is placed for adoption by an adoption agency, and the agency –

(a) Is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion

The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency”.

 

 

And the provision which protects a carer who has LODGED an adoption application is s35(5) of the same Act

 

  1. Section 35(5) provides:

“Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order … was made in respect of the child, and

(c) the application (…) has not been disposed of

Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.”

 

And the timing here was so critical that it might be said that the adoption application was after the s35(2) decision to remove, so there was not necessarily protection under s35(5)

 

Hence the prospective adopter seeking an injunction under the Human Rights Act to prevent them removing the child, which was the only avenue open to her.

 

She had not been involved in any discussions or meetings with the Local Authority about this change of plan, which of course came at a god awful time for the woman; she learning of it on the day of her discharge from hospital.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/235.html

 

 

The Judge, Mr Justice Cobb, you will be pleased to hear (unless you are a reader from the LA in question, in which case sorry to rub salt in the wounds) granted the injunction, preventing the LA from removing the child, and was critical of the decision-making process.

 

 

The Judge concluded additionally, that the carer had the shield of section 35 (5) of the Adoption and Children Act 2002, principally because the notice has to be in writing, so although she had been told in a telephone call that the LA proposed to remove BEFORE her adoption application had been lodged, the written notice came AFTER.  Her prompt action in lodging the application got her that protection.

 

But the Judge went further, and said that regardless of the timing and sequence of events, the process by which the LA reached their decision to give notice of their intention to remove under s35(2) was flawed

 

 

  1. A decision to remove a child who has been placed with prospective adopters is a momentous one. It has to be a solidly welfare-based decision, and it must be reached fairly. LBX discussed its plans to remove SB from the care of RCW at two meetings referred to in the chronology above; the decision was made on 30 January 2013 and communicated to RCW shortly thereafter by telephone. I have not yet seen the minutes of the planning meetings at which the decision to remove SB was made (it has been indicated that Mr M’s notes can be made available forthwith, and they should be). But it is difficult to identify on what material LBX could truly contend that it had reached a proper welfare-based evaluation; there had been limited direct observation and assessment by that time, no apparent discussions with the friends and supporters, and little knowledge of RCW’s condition or, more pertinently, its likely prognosis.
  1. I do not believe that RCW was invited to either of the meetings at which the future placement of SB was discussed (indeed, she was still in hospital at the time of the first meeting). There is nothing in the statements before me which indicates that RCW’s specific views about her ability to care for SB for the future, her support network, or the impact of her condition on her life were sought or obtained; it does not appear that RCW was given any opportunity to make representations at the meeting.
  1. On the information before me I am satisfied that LBX failed to give RCW a full and informed opportunity to address its concerns about the future care arrangements for SB. In this respect, LBX had acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.
  1. LBX’s difficulties in defending its decision on fairness grounds are substantially compounded by its acknowledgement that when reaching its decision to remove SB it did not know (and does not know) whether RCW’s visual impairment is temporary or permanent. If the disability proves to be temporary, and RCW is able to resume her life as she led it prior to 8 January 2013, LBX would have no basis for intervening in the care arrangements.

 

 

 

The argument of course, would be that had the carer been involved in the process and her views and position taken into account, that she may well have been able to advance a plan for caring for the child which would meet the child’s needs, notwithstanding her visual impairment; and that the LA had effectively jumped the gun in just unilaterally deciding that if she was sightless she could not care for the child.

 

  1. Visual impairment does not of itself disqualify an adult from being a capable loving parent. In my judgment, the ability for RCW to provide good emotional care for SB (probably with support) needs to be properly assessed. It was not fairly assessed on 24 January 2013 when the social worker visited RCW’s home so soon after RCW’s discharge from hospital. LBX can only point to one example (from the visit on that day) where they maintain that SB’s needs were not being met.
  1. I do not accept that this observation necessarily supports the proposition that RCW is unable to meet SB’s needs; even if it did, it would be grossly unfair to make any judgment about the long-term ability of RCW to meet the needs of SB on the basis of an assessment made on the day on which RCW left hospital and returned home. One can only imagine the tumult of emotions which RCW must have been feeling on that day – joy and relief to be home and with SB; sickening anxiety and possibly despair at her new disability.
  1. In my judgment, LBX’s decision to remove SB was reached on an incomplete assessment of the current situation, and in a manner which was unfair to RCW. I stop short of finding that the assumptions which the authority has made about parenting by a carer who is blind are discriminatory, but in ruling RCW out as a prospective carer so summarily, LBX has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.

 

Of course, the very agency which was to provide this carer with support and assistance as a result of her new-found disability was the Local Authority, albeit under different legislation, and rather than getting together with such supportive provisions to see what could be done to preserve the situation and allow the carer to care for the child, the LA had reached the decision that the child could not remain there.

 

 

The Court referred to the earlier decision of Mr Justice Charles in DL and Another v London Borough of Newham 2011 

 http://www.bailii.org/ew/cases/EWHC/Admin/2011/1127.html  

 

in which the Court considered that before issuing a notice under s35(2) the LA ought properly to discuss their concerns and reasons for contemplating this with the carers.   

 

The Courts have also established that not only an article 6 right exists in relation to such decisions, but that the carer has an article 8 right to family life which must be taken into account.

 

 

I know that it is often said, and I sometimes say it myself (though more verbosely) that the law is an ass, but sometimes, as in this case, the law gets it very right, and prevents a terrible injustice happening.

 

Is there a meaningful right to silence in care cases?

We have all seen the sequence on television, the police arrest their suspect, snap the cuffs on and lead them away (probably pushing down on their head as they get them into the panda car) saying  “You do not have to say anything, but it may harm your defence if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence”

And the right to silence is enshrined in English law in the Police and Criminal Evidence Act 1984.  A person may be interviewed by the police and say nothing, or say “no comment” in relation to every matter put to them.

 

The jury would be directed that no inferences should be drawn about that, unless there is something that they later rely on and there was no good reason for them not to have said it in interview.

So, how do we square that with care proceedings, where the onus is on a parent to be open and honest, and they have to meet with professionals and talk to experts and have to give evidence, often in advance of the criminal trial?

Well, the primary protection is (or was intended to be)

 

Children Act 1989, section 98(1):

“In any proceedings in which a court is hearing an application for an order under

Part IV or V, no person shall be excused from—

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving

evidence,

on the ground that doing so might incriminate him or his spouse of an offence.”

 

 

And

 

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [or civil partner] in proceedings for an offence other than perjury.

 

 

 

So, ostensibly, a parent in care proceedings can give their evidence, either in a statement, or in oral evidence, knowing that it cannot be used against them  or their spouse for any offence other than perjury. 

[Note that there is no protection of it being used in prosecutions against your boyfriend or girlfriend, or cohabitee, or the father of your children, if you are not married to them]

 

There is no right to ‘plead the Fifth’ and “refuse to answer questions on the grounds that it may incriminate me”

 

The Court of Appeal clarified this in Re Y and K (Children) 2003

 

35. We are glad, therefore, to have the opportunity today of clarifying the situation. Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.

 

 

And then in Re O (Care Proceedings: Evidence) [2004] 1 FLR 161 the High Court ruled that where a parent was giving evidence and flatly refused to answer a particular question, the Court would be entitled to, and usually should, draw inferences that the allegations being put are true.

 

 

As a matter of public policy, it is vitally important that parents give evidence in care proceedings and set out their version of events, in order for the Court to best arrive at both the truth of disputed matters and a determination of what is in the child’s interests in the future. Candour is an extremely important feature of care proceedings, particularly where an allegation of physical abuse is being investigated, and one often hears that an admission, even at a late stage would be more desirable than an adverse finding being made after denials.   That is why there is no ‘right to silence’ imported into the Children Act 1989, but that does not mean that this should impinge on your right to silence in the criminal proceedings.

 

That places the parent in care proceedings, and most particularly in care proceedings involving a serious allegation which is also the subject of a police investigation, in a difficult situation.

 

They cannot refuse to give evidence, nor can they during their evidence, refuse to answer questions, and if they attempt to do so, the door is wide open for the Judge to make adverse findings against them.

 

Their protection then, such as it is, is the provision of s98(2) that in giving their account, this will not be used against them for any other proceedings other than perjury.

 

But how true is that, in reality?  

 

 

There were a swathe of cases in the mid 1990′s  about which statements were covered by s98(2) and which were not, and earlier decisions that any admissions or statements made to a social worker during the course of the proceedings WERE COVERED by s98(2) were then overruled by the Court of Appeal in Re G (Social Worker Disclosure) [1996] 1 FLR 276  who distinguished between admissions made to a Guardian (which WOULD BE covered by s98(2)  since the Guardian’s was a creature of the proceedings only) and to a social worker (who had a role and function outside of the court proceedings).

 

So, if you, as a parent are going to confess all, but don’t want to waive your right to silence in the criminal trial, it is best to do it to a Guardian and not to a social worker.  (Of course, the bigger problem for you will be getting any actual face-time with a Guardian to make your confession, since these days you’ll be lucky if they ever speak to you after the very first hearing)

 

 

The Courts have also ruled that statements or remarks you make to an expert during an assessment ARE covered by s98(2)  Re AB (Care Proceedings: Disclosure of Medical Evidence to the Police) [2003] 1LR 161

 

 

 

But in practice, what do the provisions of s98(2) mean? They are after all,  your bulwark against losing your right to silence in the criminal proceedings by virtue of the State having decided that transparency and candour in care proceedings is vital.

 

 

In Re EC (Disclosure of Material) [1996] 2 FLR 725  the Court held that the police could apply for, and be provided with, transcripts of a parents evidence, which would include their admissions, and that the police could use these to shape their investigation, including framing their questions for interview.

 

The transcript could not be produced as evidence in criminal proceedings for anything other than perjury, but the fact that their use for this purpose has become increasingly common  (you will often see the police making applications for disclosure following a finding of fact hearing) is troubling for s98(2)

 

 

In the course of writing this article, I came across a very splendid article on a similar topic, written by Sarah Cooper, a barrister at Thomas More Chambers. It is a good read, and it is only my chance to publicise it further that led me to not abandon my own post halfway through, Ms Cooper having done it so well in the first place.

 

http://www.familylawweek.co.uk/site.aspx?i=ed60575 

 

 

Ms Cooper makes the excellent point, which I would not in all likelihood have found, but which is incredibly important, that where a person in a criminal trial makes an inconsistent statement

 

“The Criminal Justice Act 2003 s119  provides that a previous, inconsistent statement by a witness which is put to him in criminal proceedings is now admissible as evidence of any matter stated of which oral evidence by him would be admissible.”

 

Raising the spectre of at least a debate or legal argument in the criminal proceedings as to whether the document the police have got their hands on through the care proceedings is admissable, to refute an inconsistent statement made by the defendant.   So whilst the admission made in Court may not be evidence ITSELF as to what it says, it may end up being imported as evidence that a statement made by the defendant to the contrary is untrue or at least in doubt.   As Ms Cooper suggests   “section 98(2) is a very leaky sieve indeed”

 

 

I have to say, that I don’t like any of the law on this that sprang up in the mid nineties.   I think that the Court tried to square a public interest in parents being free to make admissions in care proceedings whilst retaining their right to silence as against a public interest in the prosecution and detection of crime, and for me, they got the balance wrong.  I’m sure they genuinely felt that they had been able to do both, but it was a classic slippery slope. Once the police got a foot inside the door of the family court, it was only going to erode the intention of s98(2) over time to a point where it is now nearly meaningless.

 

For me there is a huge  and overriding public policy interest in openness and where a person makes an admission, that being recognised as a good thing, rather than a person running the risk that candour in care proceedings might well be punished in criminal proceedings.

 

I would like to see the law reset to s98(2)’s original intent, that a person could give their evidence freely within care proceedings without fear of external consequences, and to be able to be honest and open with social workers, guardians and the Court.

 

 [I think that the fact that the cases that pushed the door ajar pre-dated the Human Rights Act and particularly article 6, and particularly the inconsistent statement provision of the Criminal Justice Act 2003 means that the time might be right for them to be challenged]

 

 

Of course, the negative side of such a reset is that the police would no longer have access to this potentially valuable material collected within care proceedings, and that valuable police time might be spent chasing a red herring, or spending hours in trying to prove something which has already been admitted. 

 

I think it would be legitimate, where it is known that the police have charged X with an offence, for them to be formally notified, with a form of wording agreed by all parties and approved by the Judge, that the Court in the care proceedings determined that X DID NOT do this thing. 

 

That would avoid or reduce the risk that someone would be wrongly charged or prosecuted for an offence that has already been scrutinized in detail by the family Court.

 

 

 

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