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Another day, another appeal against Placement Orders refused

 

I know…  it is like autumn 2013 but in reverse.  It would be nice, once in a while if the Court of Appeal would grant some appeals and refuse others, rather than having six months of granting them all and then six months of refusing them all.

At the moment, these appeals are like turning up to play 5-a-side football with your mates, and Christiano Ronaldo turns up as one of the ten.

It isn’t that hard to predict the outcome and if you are on the other side, it is a lot of hard work for not much reward.  Even worse if you turn up thinking he’s going to be on your team, only to find out that the rules changed to put him on the other side whilst you were travelling to the match.

 

Re P (A child) 2014 http://www.bailii.org/ew/cases/EWCA/Civ/2014/1648.html

 

Nothing much in this one about the legal test and the ongoing debate about whether when the Supreme Court and Court of Appeal say “You’ve got to do A, B, C and D if you are going to make a Placement Order” that amounts to a change in law or not.

But some things of interest.

 

The difficulty for a real human being  (we lawyers call them “lay persons”, but “person” is also an acceptable term to use for a person) in understanding the appeal process and what to do, what form to fill out, where to send papers, who to send them to

 

This case yet again puts into sharp relief the difficulties which arise for the courts, the litigants and most of all the children, where unrepresented parents seek to navigate their way through a system which necessarily operates on the basis of detailed procedural rules, without which there would be chaos but which inevitably present the layman with significant difficulties. Had the father been represented, the mistakes that followed, would have been picked up by his solicitors.

 

The Court of Appeal explain that in this case, the father had thought he could appeal to the County Court, and the County Court had also thought that for quite a while because the Recorder who heard the case had also been sitting at that Court as a District Judge. Their explanation for this is so complicated, I had to read it three times to grasp it, so I feel for all involved.

 

Then the age old difficulty of getting a transcript

Meanwhile, notwithstanding that the county court had asserted that a transcript of judgment had been sent to the parties in December 2013, it was not until the 11 July 2014 that the local authority received a copy, and even then they obtained it only because counsel for the father sent it to them. Unhappily, whatever defect in the system for the obtaining and distribution of transcripts had been responsible for the delay in the onward transmission of the Recorder’s judgment did not lead to a revision of those systems as there were further significant difficulties with regard to obtaining transcripts. It is not being suggested that the resulting delays were the result of indifference on the part of the court staff. No doubt the problems stem from a lack resources leading to a shortage of appropriately trained and experienced court staff able to identify the problem and put in place a system for ensuring the prompt and efficient ordering and distribution of transcripts of judgments and evidence.

 

The County Court actually wrote a letter of apology to the father in this case for all of the things that had gone wrong. That’s a fairly rare occurance  (in twenty years of practice, I’ve never heard of the Court apologising to anyone)

As I understand it the father has received two letters of apology from the County Court for the mistakes which led to the wholly unacceptable delay in this matter coming before the court; a delay unacceptable for the father, but also for the prospective adopters. Whilst the father was obviously distressed during the course of the hearing, he behaved with dignity and composure throughout. It will inevitably be hard for him to accept that the outcome of this appeal, and the making of the adoption order which will in due course be made in respect of S, are not a direct result of an inadequate judgment and delay within the family justice system. I can only assure him that it is not so; Mr Hayes put forward every possible argument to convince the court that the case should be remitted, but even his skill and tenacity could not undermine the fact that upon close analysis of the findings and assessments available to the court at the time of the hearing, the making of a care order and placement order in respect of S was the inevitable outcome.

 

In this case, the appeal was based on the judgment not being sufficiently clear about what basis various options had been discounted to arrive at adoption – one might think from reading Re B-S that when they said THIS

 

41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

42. The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

that they meant that a judgment ought to grapple with the factors at play and give proper focussed attention for the specifics.

The Court of Appeal had been taking a very hard line on this, but seem to have softened their approach and are prepared to look at the totality of the judgment and the evidence heard by the Judge  (which was not the case in the low-watermark case where the parents had both been in prison at the time of the Placement Order and the appeal was granted)

  1. One of the difficulties where a judgment lacks structure and fails to present the reader with a clear analysis of the evidence, its application to the law and thereafter of its cross check with Convention rights, is that a reviewing court is not only presented with a formidable task in determining whether the decision reached by the judge was wrong, but it potentially leaves a litigant, (often a parent destined as a consequence of that judgment to have their parental tie severed), with a sense of unfairness, even where there is no question of his or her Article 6 rights having been compromised.
  2. At first blush it appeared that the deficiencies in the judgment with which this court is concerned were such that, no matter what further delay was occasioned in determining S’s future, the appeal must be allowed and the matter remitted for rehearing. The process of determining whether the essentials can in fact be found within the judgment and the evidence has been immeasurably assisted by the careful analysis of Miss Morgan QC, through which it has become clear to the court that notwithstanding the difficulties inherent in the judgment:

    i) All the material necessary for a proper determination of the case was before the judge and tested in cross examination.ii) That, whilst the finding in relation to developmental delay cannot stand, there were nevertheless more than adequate findings to allow the threshold criteria to be satisfied and therefore the court to proceed to consider what, if any order, should be made.

    iii) The father was assessed by both the Guardian and the social worker as to his ability to care for S. The judge was entitled, having heard the evidence, which included oral evidence from the father, to accept the recommendation of the Guardian and indeed, if a court decides not to follow the recommendation of the Guardian, it should give its reasons for failing to do so. (Re J [2001] 2 FCR 44)

    iv) The evidence before the judge addressed the available options and the judge took into account the father’s strengths as well as weaknesses. The Recorder gave his reasons for concluding that it was not in the best interests of S to be rehabilitated to her father.

    v) Whilst the judge failed to state in terms that he made a care order before moving on to consider the placement order application, it was implicit that, having determined that the child could not return to the only parent who was a realistic option, a care order would follow. The conditions necessary for the making of a care order were undoubtedly made out.

    vi) The care plan was for adoption. The necessary information was available to the judge for the welfare analysis within the extended assessment of the Children’s Guardian. The Recorder noted the exceptionality of the order sought and said that the making of such an order was ‘necessary’. Even though the case was heard before Re B-S the Recorder took into account the importance of the order for adoption being ‘proportionate’ and importantly, that it is not enough to say that “it would be better for the child to be adopted than to live with his natural parents”

    vii) This was a little girl who had just turned 2 at the time the orders were made in circumstances where there was no one within the extended family who could appropriately offer her a home. Once the court had concluded that it was not in her best interests to be returned to the care of either parent then, given her age and need for a secure, stable and permanent home, it could not be regarded as wrong for the judge who had heard the case to conclude that her welfare required an adoption order to be made.

  3. Pieced together in this way, I conclude that the Recorder did engage with the essence of the case and that his judgment contained the essential ingredients necessary for there to be a proper determination of the issues which determination also respected the Convention rights of all the parties

Re R – is B-S dead?

 

That’s the Court of Appeal case that we’ve been talking about all week.  It happened to come in time for my deadline for my Family Law column, so my analysis of it is over there.

 

I know not all of you read Family Law, so here is the link.

 

In very short terms, the Court of Appeal layeth the smackdown on those people who were pushing, stretching and exagerrating Re B-S to be an authority for “leave no stone unturned, climb every mountain, ford every stream – till you avoid adoption, that’s B-S’s dream”.   BUT  Re B, and Hale’s formulation stands – the President specifically says that Courts can’t make a Placement Order unless satisfied that Lady Hale’s formulation applies, and every single bit of content in Re B-S still applies.  In a nutshell, Re R says to advocates, don’t take bad points and don’t appeal on flimsy technicalities based on your notion of what a post Re B-S judgment looks like.

 

http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back#.VJLA_3vzOud

Drinking during pregnancy

 

There was quite a lot of media attention about the Court of Appeal’s decision in

 

RE CP and Criminal Injuries Compensation Authority 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1554.html

 

and quite a bit of that media attention missed the point really.  [Which is fair enough, because the point was obscure and technical, and a far better story for selling newspapers is whether we are going to send mothers to prison for having a glass of wine during pregnancy]

 

The case was not about whether mothers should be prosecuted for drinking whilst pregnant, but whether technically they COULD be, which would allow for children who suffered damage (Foetal Alcohol Syndrome) to receive compensation from the Criminal Injuries Compensation Authority.

 

The Criminal Injuries Compensation Authority was set up by Government to make payments to people who are the innocent victims of crime.

 

“from people who have been physically or mentally injured because they were the innocent victim of a violent crime…”.

 

A person does not have to show that the perpetrator of that crime was later convicted of the offence, it is sufficient to show that (a)there was a violent crime and (b) they were physically or mentally injured.

 

The case was also not about whether or not it is a bad thing for mothers to drink during pregnancy. The Court did not hear arguments about whether consumption of alcohol causes harm to foetuses and whether that harm continues after the baby is born; that was a point that was accepted by all of the parties.

 

 

 

For a while, the Criminal Injuries Compensation Authority (CICA) were paying some claims on behalf of children who had Foetal Alcohol Syndrome due to their mother drinking during pregnancy, but then stopped.

 

CB’s case was brought as a test case for around 80 similar cases where children were possibly going to receive compensation if the Court of Appeal found that the consumption of alcohol in pregnancy was capable of being a crime.

 

If it isn’t capable of being a crime, no CICA compensation.

 

So, firstly, what crime are we talking about?

 

s23 of the Offences Against the Persons Act 1861. This provides:

 

“Maliciously administering poison, etc so as to endanger life or inflict grievous bodily harm.

Whosoever shall unlawfully administer to… any other person, any poison or destructive or noxious thing, so as thereby…to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted there of shall be liable…to be kept in penal servitude for any term not exceeding ten years”

 

 

As with any criminal offence, there are a lot of ingredients – unlawful administration, of something, to any other person that something being noxious, and the administration causing grievous bodily harm to that person

 

We could make this very complicated, but I’ll try instead to make it very simple.

 

If a mother takes her six year old child, and makes him drink a bottle of gin and he suffers as a result, liver damage or kidney failure, or even if he is just hospitalised, the offence under s23 is made out. The alcohol is a noxious thing, the administering is unlawful and grievous bodily harm was suffered.

 

But with a child in the womb, it was uncertain whether the offence under s23 was capable of being committed.

 

And that is a result of this bit in the statute “any other person”   - at the time the noxious thing was administered, was the victim a person?

 

 

That gets us into huge theological and pro-choice v pro-life debate; some people will feel very strongly that a foetus is a person, some will feel very strongly that until birth the foetus is not a person, some might feel that it depends on the age of the foetus, still others will feel that it depends if the foetus has reached a stage where it would be capable of being born alive.

 

But we can cut through all of that (fascinating and controversial as it is), because the Courts have given decisions on the legal position before.

 

And as the decision was from the House of Lords, it is powerful authority

 

  1. In Attorney General’s Reference (No 3 of 1994) [1998] A.C. 245, the House of Lords considered the case of a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, which survived for only 121 days. The stabbing set in train events which caused the premature birth, which itself led to the child’s death, its chances of survival being very significantly reduced by the fact of the premature birth. Thus, a chain of causation between the stabbing and the death of the child was established. The issue was whether in those circumstances the crimes of murder or manslaughter could be committed.

 

  1. Their Lordships held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother. It was held that whilst there could not be a conviction for murder, there was sufficient for a conviction for manslaughter. The defendant in stabbing, had intended to commit an act which was unlawful and which any reasonable person would recognise as creating a risk of harm to some other person. Although a foetus was not a living person, the possibility of a dangerous act directed at a pregnant woman causing harm to a child to whom she subsequently gave birth, made it permissible to regard that child as within the scope of the defendant’s mens rea for the purposes of manslaughter when committing the unlawful act. Accordingly the crime of manslaughter could be committed even though the child was neither the intended victim nor could it have been foreseen as likely to suffer harm after being born alive. Thus the trial Judge should not have held that there was no case to answer on manslaughter on the basis that at the material time there was no victim capable of dying as a direct and immediate result of what was done.

 

  1. At paragraph 15 of its decision, the Upper Tribunal referred to the fact that Lord Mustill had identified a number of established rules relating to criminal liability. It continued;

 

 

“One of these was that in the absence of a specific statutory provision, an embryo or foetus in utero does not have a human personality and cannot be the victim of a crime of violence.

Although the foetus is a unique organism it does not have the attributes that make it a person. As Lord Mustill said (at 262D, my emphasis): “The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person… “.”

 

 

The “rules” set down by the House of Lords included these:-

 

“3. Except under statute an embryo or foetus in utero can not be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not a murder.

….

  1. The existence of an interval of time between the doing of an act by a defendant with the necessary wrongful intent and its impact on the victim in a manner which leads to death does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death. …
  2. Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility even if the harm would not have been criminal (apart from statute) if it had been suffered in utero.”

 

 

 

So, the CICA were arguing broadly that as the foetus was not a person at the time the mother was administering the noxious substance (alcohol), there was no s23 offence.

 

And those representing CB were arguing broadly that IF there was consumption of alcohol in the womb, but the consequences of the harm were suffered after the baby was born, the s23 offence is capable of being made out.

 

 

[The CICA placing weight on rule 3 above, and CB placing weight on rules 4 and 5 above]

 

 

  1. If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime. This, no doubt, is why Mr Foy albeit with some hesitation, sought to rely on the first limb of his argument as it would avoid this difficulty which arises under the second limb. He sought to meet the objection to the second limb by arguing that where FASD occurs, the foetus is damaged before birth, but that after birth there is continuing damage by reason of retardation. To the observation that what occurred after birth was simply the consequences of damage caused before birth, he submitted that these are continuing and that the court should be slow to distinguish between damage done and subsequent consequences or symptoms.

 

  1. I cannot accept this analysis. The reality is that the harm has been done to the child whilst it is in utero. The fact that if the child is born alive it will suffer the consequences of the insult to it whilst in the womb does not mean that after birth it has sustained damage by reason of the administration of the noxious substance. One only has to cast one’s mind back to the Thalidomide tragedy. The injury was done to the affected children by the administration of the drug whilst they were still in the womb. Those children who were born affected were born with missing or ill-developed limbs. Whilst they suffered the consequences on a lifetime basis after birth, they did not sustain any additional damage after birth by virtue of administration of the drug.

 

  1. Reference to the expert evidence of Dr Kathryn Ward, an experienced consultant paediatrician, whose very detailed report was before the First Tier Tribunal, (and which was not disputed), shows that the harm which is done by ingestion of excessive alcohol in pregnancy is done whilst the child is in the womb. The child would then, when born, show damage demonstrated by growth deficiency, physical anomalies and dysfunction of the central nervous system. Very often, as in this case, the full extent of retardation and damage will not become evident until the child reaches milestones in its development, at which point matters can be assessed. The fact that such deficits cannot be identified until that stage does not constitute fresh damage. It merely means that the damage was already done but has only then become apparent.

 

  1. It seems to me that this is fatal to the appellant’s contention. The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was whilst CP was in the womb. At that stage the child did not have legal personality so as to constitute “any other person” within the meaning of s23. The basis upon which the actus reus is extended in a manslaughter case cannot apply here since nothing equivalent to death occurred to CP after her birth.

 

 

 

What the Court of Appeal say in effect is that in the absence of Parliament specifically saying that an offence can be committed against a foetus in the womb, the Courts should be reluctant to take that upon themselves. Parliament has passed some legislation about offences that a mother can perpetrate on a foetus (using poison to attempt to procure a miscarriage, for example) and if Parliament had wanted to make excessive consumption of alcohol during pregnancy a criminal offence, it could have done so.

 

 

  1. If section 23 had expressly included a foetus as well as “any other person”, EQ would have committed the actus reus of the offence during her pregnancy. But that is not what Parliament has provided. Accordingly, it is because a foetus does not come within the ambit of section 23 that Mr Foy’s argument breaks down.

 

  1. I am fortified in the conclusion that I have reached by a number of other considerations. First, the approach to section 23 that I have adopted is consistent with the established structure of the criminal law as it relates to the foetus. Parliament has identified certain circumstances where criminal liability arises if a mother causes injury to her foetus. Thus the offence of a pregnant woman using poison, with intent to procure her own miscarriage (section 58 of the Offences Against the Person Act 1861) specifically provides for circumstances in which a woman administers poison or a noxious thing to herself. This offence does not apply to the circumstances of the present case because it requires intent. Section 1 of the Infant Life (Preservation) Act 1929 provides that it is an offence to destroy the life of a child capable of being born alive before it is born. Parliament could have legislated to criminalise the excessive drinking of a pregnant woman, but it has not done so outside these offences. Since the relationship between a pregnant woman and her foetus is an area in which Parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.

 

 

CB’s appeal was unsuccessful and it is therefore NOT a criminal offence to excessively consume alcohol during pregnancy. (As said at the outset, it is not a green light to mothers to do that)

 

I think that most lawyers felt that CB’s case was not going to succeed, and that a foetus would not (at present) be classed as ‘any other person’ in a legal sense to make out the s23 offence.

 

Does that mean that it was a waste of time? Well, not really. Firstly, it has drawn publicity and attention to the risks of drinking during pregnancy. Secondly, it has drawn attention to the fact that children like CB aren’t receiving compensation and won’t unless Parliament either change the law (or probably more sensibly change the terms of reference for the CICA to allow them to pay compensation for victims of violent offences AND victims of Foetal Alcohol Syndrome)

I come not to praise “nothing else will do” but to bury it

 

I think one could safely say that five Court of Appeal decisions in five weeks whose thrust is “don’t come wingeing to us about nothing else will do” counts as a hint being heavily dropped, much like my own heavy-handed hints that a Darcey Bussell calendar would hit the spot over this festive period.

 

Hints, of course, are not always taken.

 

[I know of more forthcoming decisions from the Court of Appeal, and I suspect there will be a few working their way through the system before Counsel for the appellant makes a difficult telephone call saying “we’re doomed, we need to drop this”]

 

Re T (Children ) (Rev 1) 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1549.html

 

The original case had involved 6 children, the youngest two being made subject to Placement Orders, and the older four being made subject to Supervision Orders and placed with their father.

 

The mother’s appeal was largely based on a claim that the Judge had failed to properly analyse whether adoption was proportionate and that “nothing else will do” and whether a placement with her instead might have met the children’s needs.

 

Reading between the lines on this one, mother’s counsel was put through the wringer by the Court of Appeal who have a somewhat different approach to that taken earlier in the year and last autumn.

Ms O’ Leary concedes, without hesitation, that :

i) HHJ Waller is a well known and experienced family judge who gave a long, carefully considered and thorough judgment having seen and heard the parties give evidence.ii) The Social work report was ‘exemplary’ including the way in which it dealt with the question of future placement alternatives for the children in a balance sheet form. The social worker gave evidence and the judge undoubtedly had in mind the totality of her evidence.

iii) The authors of the FAST assessment report were not required by the mother to give evidence. It was conceded on behalf of the mother that the authors of that assessment would have been the people through whom to challenge the assessment generally, or to put a case that the mother could cope with two children if not with six.

iv) The judge had not been asked to consider the return of the two youngest children; the mother’s case had been unclear, but at trial she had been seeking the return of at least three of the children (including J and O).

v) The judge not only expressed his understanding that adoption is an order of “last resort” [48] but expressed on a human level, that “it is with great reluctance and after careful consideration” [265], that he reached the decision to grant the care and placement orders.

 

The issue of interest in this appeal, other than it being yet more bolstering of an argument that appeals based solely on “nothing else will do” are not going to be cutting much mustard anymore, is that the judgment at first instance did not contain a single section in which all of the analysis and proportionality assessment was self-contained, but the Court of Appeal ruled definitively that if this material was threaded through the judgment as a whole, that was sufficient.

 

  1. The judge recognising that the care plan of the local authority was one of adoption thereafter asked himself the right question namely whether “the permanent separation from the natural family and relatives and the severance of legal ties, is necessary or whether there is any other realistic option” [277].
  2. Whilst not corralled in one section of the judge’s judgment, the positives and negatives of both rehabilitation and of adoption are threaded through the judgment; they are no less a part of the Re BS exercise for that. The judge as he was entitled to do, answered the question he had posed and decided, on the facts and in the light of his careful welfare analysis, that the children’s future welfare could not be safeguarded with the mother and therefore other alternatives had to be considered.
  3. In this case it was accepted that given the ages of the children and the absence of any family members to care for them, adoption was the only realistic alternative to rehabilitation. Where the judge had only two options available to him his decision making process is not rendered “linear” simply by virtue of his conclusion that rehabilitation is not in the best interests of the children, so leaving adoption as the only realistic option for the children concerned. The “holistic” consideration to be applied in applications for adoption had been implicitly, if not explicitly, conducted through the careful weighing up of the benefits for and against rehabilitation and for and against adoption which are found within the body of the judgment.

 

 

Baby without a name / child removed because of father’s aggression towards social workers

 

The Court of Appeal have given judgment in the full Permission to appeal application by these parents from a Care Order and Placement Order decision at first instance.

 

 

Re BP and SP v Hertfordshire 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1524.html

 

 

This case was covered by me when Ryder LJ first gave a judgment on the papers moving it forward to fuller hearing

 

http://suesspiciousminds.com/2014/08/02/we-are-all-unquantified-risks/

 

 

[You might recall, if I jog your memory, that this was the case involving a child where there had been no naming ceremony, and the father had assaulted the social worker – and at the hearing before Ryder LJ the thrust of the argument had been “if the child was removed because the father was a risk to social workers, was that wrong?”

 

If you don’t remember that, you might remember the Telegraph’s report about the case

 

http://www.telegraph.co.uk/news/uknews/10855218/Child-with-no-name-must-be-adopted-judge-rules.html ]

 

These were Ryder LJ’s strong words at that initial permission hearing (but the permission hearing could not ultimately reach a decision because the parents and their McKenzie Friends did not have the court papers from the care proceedings that would be vital in reaching a proper determination of the basis on which orders had been made.

 

These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

 

 

At this hearing, the papers were available, and the application was heard by three Judges. Ryder LJ gives the lead decision, and again reminded everyone that “nothing else will do” is not a legal test or principle.

 

There was no error of law made by Judge Mellanby and Judge Waller was right to dismiss the first appeal. This is not a case in which it can be argued that there was any misapprehension by either judge about what the concept of proportionality might mean and it is perhaps appropriate to remind practitioners and ‘interested McKenzie Friends’ that ‘nothing else will do’ is not a new legal test, rather it is part of the description used by the Supreme Court for the proportionality evaluation that is to be undertaken by the court. The language used must not be divorced from the phrase that qualified it, namely: “the overriding requirements pertaining to the child’s best interests” (see [77] and [215] of Re B (A Child) [2014] UKSC 33).

 

 

 

 

In relation to the father’s main point of appeal, the Court of Appeal encapsulate it like this :-

 

In layman’s terms he was saying: it is not a sufficient reason that my children are permanently removed from my care because I disagree with the local authority and will not co-operate with them.

 

 

Their decision and analysis in relation to this, having seen all of the papers (that were of course not available to Ryder LJ at the previous hearing ) was this

 

 

On the facts of another case that might be a successful submission but that simplistic analysis does not adequately examine the facts relating to this father’s antagonistic behaviour and lack of co-operation. There is of course no general duty on a citizen to co-operate with an agency of the state unless that duty is described in law. That said, these proceedings might not have been taken had father co-operated and it may not be too much of a speculation to say that, given his capabilities to provide support for mother and the children, there may not have been a need for the proceedings to be completed i.e. they may not have been pursued to an adverse conclusion had he demonstrated that he was prepared to act in the best interests of his children.

 

 

The significance of the father’s conduct is not that his children were removed because he had the temerity to argue with the local authority: to put it in that way misses the point. The welfare issue that was legitimately pursued by the local authority was that father’s antagonistic and unco-operative behaviour was indulged in by him to the detriment of his children. By way of examples, the following are relevant:

 

 

  1. father exhibited sustained antagonistic behaviour throughout the proceedings before DJ Mellanby who concluded that his behaviour was likely to continue;

 

  1. the consultant psychiatrist relied upon by DJ Mellanby was of the opinion that father would not change his aggressive behaviour;

 

  1. father had assaulted the social worker in the presence of P in respect of which he has been been convicted and since then he has also been convicted of an offence of threats to kill for which he was sentenced to a term of imprisonment;

 

  1. father was unlikely to be able to manage his behaviour even in the presence of his children;

 

  1. father prioritised his own needs above those of his children:

 

  1. by refusing to engage with the local authority to agree contact with his sons even to the extent of denying B a relationship with him;
  2. by refusing to comply with assessments or engage with the children’s guardian;

iii. caused an unnecessary change of placement for P;

 

  1. father is unlikely to change his behaviour;

 

  1. mother is unable to control father’s behaviour.

 

Given the nature of the positives that the parents demonstrated in the residential assessment and despite the recorded antagonism that he exhibited during that assessment and thereafter, DJ Mellanby gave father ‘one last chance’ in the proceedings relating to P. She did so in response to the decision of this court in Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 WLR 563 which had been handed down during the proceedings. In so doing she was being more than fair to the parents. She allowed a further examination of the evidence and of the father’s ability to change in the hope that the parents might provide a realistic alternative to long term placement away from the family.

 

 

Sadly, father failed to act on that opportunity and remained implacably opposed to any child protection mechanism or support that would verify that P was safe. He had refused access to the social work team in October 2012, he refused to engage with further assessment which would have been able to demonstrate that the positives had been carried across into the family home and ultimately when access was again refused in February 2013 it had to be obtained with the assistance of the police. Father’s written submissions to this court highlight the fact that mother would have been left in the care of the children when he was at work and in the context of the opinion that mother could not cope on her own, there was a legitimate child protection interest in the adequacy of the arrangements that the family had put in place once they were at home and no longer in a professionally supported setting.

 

 

There was ample material before both courts to justify the conclusion that the children’s father represented a greater risk to them than the benefit he provided by his capability to support their mother. The welfare evaluation of the parents was accordingly adverse i.e. the detriments outweighed the benefits. To the extent that he was able to argue, as he did at the first permission hearing, that he was an un-assessed risk, that ignores the evidence that was before the court, the father’s refusal to co-operate with assessments and the court’s ability and indeed duty to undertake its own analysis for the purposes of section 1(3) of the 1989 Act. The local authority were able to prove both of their cases and the family was unable to take advantage of such support services as the local authority might have been under a duty to provide because father refused to participate in any arrangement that would have demonstrated the efficacy of the same.

 

 

In any event, it is the parents’ case that they do not need help. They deny that the assault in the presence of P (and indeed the continuing aggression thereafter) would have had any effect on P. They deny that either of the children would be likely to be adversely affected by father’s continuing and uncontrolled aggressive behaviour. They are oblivious to the confusing and frightening effects of father’s conduct. They are unable to see that it was their own failure to co-operate within proceedings when they had access to the court to argue their case and non means and non merits tested public funding to facilitate the same that led to the removal of P. Father’s written submissions to this court continue to assert that father will not deal with social workers.

 

 

 

Against that factual backdrop, the Court of Appeal was satisfied that father’s bare assertion that he might be a risk to social workers but not to his child was not bourne out by the evidence, and thus that limb of the appeal was not successful.

 

The interesting academic argument about whether threshold is met as a result of a parent behaving aggressively to a social worker but not to a child or in the presence of a child, will have to wait for another case.

 

 

A fresh limb of appeal was raised, which was that within pre-proceedings work, an expert had been instructed, and the parents subsequently learned that this expert was on a retainer basis with the Local Authority in that they had agreed to do 20 hours of work with the Local Authority each week for 46 weeks of the year, making them really semi-employed by the Local Authority (not in an employment law sense, but leading the parents to question whether such an arrangement could still result in the expert being considered ‘independent’)

 

A separate issue arose during the first permission hearing that has become the second ground of appeal before this court. That relates to the independence of the psychologist. It transpires that on 4 March 2013 the local authority entered into a form of contract with the psychologist described by them as a ‘retainer’ by which the psychologist agreed to work for an agreed hourly rate and for up to 20 hours a week during 46 weeks of the year. Any work covered by the retainer was to be undertaken with a transparent letter of instruction and the psychologist was expected to act in accordance with the obligations of an expert (see for example, Family Proceedings Rules 2010 Part 25, PD25B 9.1(i)).

 

 

The arrangement enabled the local authority to rely upon independent expert advice that may have been obtained by them pre-proceedings where they needed it to supplement their own social workers and in-house advisors and which would subsequently be respected within family proceedings (in accordance with the guidance given for example in Oldham MBC v GW & Ors [2007] EWHC 136 (Fam) at [24] and [91]). The independence of the expert would enable other parties to join in the instruction if they chose to do so. We are told that the arrangement was revealed to solicitors then acting for the mother and each of the children in a circular letter. The arrangement was not specifically referred to in either of the proceedings concerning P and B.

 

 

The funding arrangement of the psychologist should have been notified to the court and to the parties in the proceedings not just by way of a circular letter that may not have come to their attention. The perception of fairness is very important in proceedings that can involve the permanent removal of a child from a parent’s care. There is a hypothetical conflict of interest that can be implied in the financial arrangements. There is, however, no actual conflict of interest on the facts of this case nor any complaint that the psychologist did anything that could have amounted to a breach of her obligations as an independent expert. Far from it, she was not even cross examined as to any of her opinions or the work she had done. This court has been shown no material that would have warranted cross examination other than the disagreement of the parents with the expert’s ultimate conclusion. The assertion that the error in referring to her as a ‘Dr’ in the letter of instruction or the implication that she was unqualified for the task that all parties agreed is without foundation in that no valid complaint is based on the same. Accordingly, although the situation is regrettable, the manner in which the expert was selected and did her work gives rise to no issue that is capable of undermining the determinations appealed and the alleged procedural irregularity is insufficient on the facts of this case to warrant further consideration.

 

 

Such an arrangement, the Court of Appeal say, could be capable of giving rise to a conflict of interest, and proper transparency needs to take place (not just burying the disclosure deep in the pages of boilerplate Letter of Instruction); but there had not been a conflict of interest in this case – the Court of Appeal noted that there had been no cross-examination of the expert by the parents, who would have been entitled to do so if they challenged the report.

Nothing else will do – In which Nails are placed in coffins, and heads of pins are danced upon

 

The third Court of Appeal decision in a month to backtrack from “nothing else will do” and this one does so very powerfully. (previous two Re MH and Re M, both blogged about last month)

 

To the point of saying that it is not a test.

 

In case you are pushed for time to read this, I’m afraid that you still have to write/read all the analysis of the various options, and the Court still have to consider those options and analyse them, but the Court of Appeal say that “nothing else will do” isn’t a test, but a process of deductive reasoning.

 

In case you are new to the whole adoption debate, then welcome, and in a nutshell there appears in the last year to have been a tension between the Government (pushing a pro adoption agenda, including telling social workers to stop thinking of adoption as a last resort) and the senior judiciary, who have been mindful of the principle that adoption is a last resort.

 

 

Even the President of the Family Division has acknowledged this tension

 

 

http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=18284:top-judge-recognises-tension-over-court-rulings-and-guidance-on-adoption&catid=54:childrens-services-articles

 

 

the Department for Education said: “The local authorities that are most successful in finding adoptive families for looked after children will generally be those with a very clear care planning process that always considers adoption as a possible permanence option and not an option of last resort.”

 

Asked about the issue by Local Government Lawyer at a press conference yesterday (29 April), Sir James responded: “Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the judges to decide what the statute means.

 

The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so.”

 

But the President added: “I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in Re B in the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year…..

 

“So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law.”

 

The Family President added: “In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.”

 

 

 

You might want to put a mental Post-it Note on the President (the lead author of Re B-S) saying THIS

 

The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view

 

Because the Court of Appeal (Ryder LJ lead judgment) are currently saying THIS

 

 

Turning then to the issue in this appeal. I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts.

 

 

Have fun reconciling those two things.

 

The case is CM v Blackburn with Darwin Council 2014 (lead judgment Ryder LJ)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1479.html

 

 

The point of the appeal was an issue that immediately came into most people’s minds following Re B-S – dual planning.

 

It is not (or was not) unusual, to see a care plan that said “we will search for an adoptive placement for the child for 6 months, and if that is not successful, then a foster placement will be found”

 

As a matter of law, based on the principle of “nothing else will do”, how could a Court say that fostering would not do in order to make the Placement Order, when the plan envisages fostering being a possible outcome? Either it is permissible to say “adoption is better than fostering for this child, but both would do”   or on a strict interpretation of “nothing else will do” the Court should reject the Placement Order as there is clearly something else that will do (fostering, explicitly provided for in the dual care plan as the fallback)

 

The Local Authority in such cases aren’t saying that fostering won’t meet the needs of the child, it is saying that adoption is a BETTER way of meeting those needs. (which for me is fine and common sense – they have to make the case, but a Court should have that discretion)

 

Is that compatible with “nothing else will do” ?

 

Well, given cases in October (and cough, the adoption figures and political uproar), it is not surprising that the Court of Appeal say “yes, dual planning is compatible with the law”

 

 

 

Here’s what they have to say about “nothing else will do”   (and it is not only a major shift, but it probably makes large parts of the Myth-Busting document now accurate, or at least more accurate than it was before this judgment was published – so it was a fortune-telling document as well as a Myth-Busting one)

 

 

Turning then to the issue in this appeal. I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts. The test remains untouched but the court’s approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision. That can be seen in graphic form in the comments of the President in Re B-S at [30]

 

“we have real concerns about the recurrent inadequacy of the analysis of reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new, but it is time to call a halt.”

 

 

 

Yes, you have read that right – the Court of Appeal are now calling nothing else will do an unnecessary gloss on the statutory test. A gloss that a year ago they were embracing and thrusting on us all. We are rewriting history here – in the words of Kevin Costner “We’re through the looking glass here, people”.

 

 

Someone else might hear make a cruel remark about irony and unfortunate glosses to statute, but that would be beneath me.

 

 

The Court of Appeal goes on

 

Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption. What the decisions do is to explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same.

 

 

(That will delight the Government and Mr Narey – as this is their line. But go on, please)

 

 

A court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the ‘welfare checklist’). That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child’s welfare throughout her life: that is the court’s welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long term placement options. That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court’s welfare analysis which leads to its value judgment. In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child. That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence.

 

 

[You may be seeing here that there is no mention of the least interventionist order, last resort, draconian nature of the order – that’s all bound up here in proportionality. But it is fairly pivotal and important that it was the specific issue of whether adoption was a proportionate answer and the circumstances in which it might be that led to the ECHR decision in Y v UK which was at the heart of Re B and Re B-S. It is a strange omission, and one which is also conspicuous by its absence in the Myth-Busting document]

 

That is what ‘nothing else will do’ means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.

 

 

“nothing else will do” is not a test – that noise you may hear as you read this is your eyes rolling. It is just a description of the process of deductive reasoning. Therefore, if the Judge has carried out the balancing exercise and answers the question “Am I satisfied that nothing else but adoption will do?” with a “No”, can he or she make the Placement Order? If it is not a test, but just a description of a process, then possibly.

 

I mean, this is just flat out strange – the Supreme Court made themselves rather plain, I thought. But now we are told that this is not in fact a test, and we should just read the word as ‘requires’

 

I’ll deviate for a moment

 

Supreme Court, Re B June 2013. http://www.familylawweek.co.uk/site.aspx?i=ed114409

 

We are all familiar with Lady Hale’s key paragraphs, but I’ll set them out, because they seem to be vanishing before our eyes. Note that on the issue of “nothing else will do” she says that all of the Supreme Court Judges agree on that. And she is right. Although she gave a minority judgment in the case overall (i.e whether the Judge had got the individual case right or wrong), on this aspect, these paragraphs reflect the decision of the Supreme Court.

 

  1. Perhaps above all, however, this case raises the issue of when it is proper for an appellate court to interfere in the decisions of the trial judge who has heard and read all the evidence and reached his conclusions after careful cogitation following many days of hearing in court and face-to-face contact with the people involved. We all agree that an appellate court can interfere if satisfied that the judge was wrong. We also all agree that a court can only separate a child from her parents if satisfied that it is necessary to do so, that “nothing else will do”.

 

 

  1. Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.

 

  1. But that is not the end of the story. We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.

 

 

 

Let’s now look at the words of the President in Re B-S on this issue

 

  1. Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child “requires” this. “Require” here has the Strasbourg meaning of necessary, “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”: Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120, 125. This is a stringent and demanding test.

 

  1. Just how stringent and demanding has been spelt out very recently by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. The significance of Re B was rightly emphasised in two judgments of this court handed down on 30 July 2013: Re P (A Child) [2013] EWCA Civ 963, para 102 (Black LJ), and Re G (A Child) [2013] EWCA Civ 965, paras 29-31 (McFarlane LJ). As Black LJ put it in Re P, Re B is a forceful reminder of just what is required.

 

  1. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

 

 

 

And

 

  1. It is time to draw the threads together and to spell out what good practice, the 2002 Act and the Convention all demand.

 

 

 

All of these “striking” words, we are now told, were not intended to amount to any change in the legal test or a gloss on the statute. Anybody interpreting the word ‘require’ in the wording of the statute as now incorporating those principles is just wrong, or that a Judge is expected to answer a question about whether “nothing else will do but adoption” is wrong.

.

 

52 (1)The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that— .

(a)the parent or guardian cannot be found or is incapable of giving consent, or .

(b)the welfare of the child requires the consent to be dispensed with.

 

Re B-S is thus, presumably, case management guidance rather than law. One wonders, if that’s the case, why it wasn’t all set out in a Practice Direction rather than a judgment, given that the primary author of Re B-S had the power to do that. [I don’t believe for a second that Re B-S wasn’t intended as an authority that Judges who failed to properly engage with proportionality and necessity and the Re B principles would be at risk of appeal]

 

 

I will give a caveat to all of this – I’m sure that there were very good Judges up and down the country who were grappling with these issues in their judgments before Re B, and were properly considering the pros and cons of adoption and were not doing as criticised in Re G by a linear process of “if I’ve ruled out mum, dad and grandparents, what is left is adoption, so adoption IS the last resort”. For those very good Judges, Re B and Re B-S didn’t really change the way they were doing those judgments and making their decisions. But it was very plain from the volume of successful appeals that there were Judges who weren’t.

 

(And I don’t think that those were bad judges or flawed judges – it was rather that it had become general practice to use that linear model and it was only once McFarlane LJ highlighted the inherent flaws in it in Re G that some shifted.   From the published judgments that I have read on Bailii in the last year, a surprising number of placement order judgments still fail to do that and simply replace analysis by quoting large chunks of the caselaw and saying “I have considered this” thus failing to see the point that the Court of Appeal appear to have been making in their condemnation of stock phrases and judicial window-dressing)

 

Were Re B and Re B-S new law, a fresh interpretation of the word ‘requires’ in the statute, or a gloss? Or were they as is being suggested now, a reinforcement and reminder of the existing law containing nothing fresh other than case-management guidance? We could dance on the head of a pin forever on that one.

 

If it was nothing fresh, it is surprising that so many successful appeals were happening last autumn and winter …

 

 

 

Back to the Court of Appeal in this particular case.

 

 

The words of Lord Nicholls in In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [20012] 1 WLR 258 cited with approval in the Supreme Court in Re B remain apposite:

 

“[16] … There is no objectively certain answer on which two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.”

This court has on two recent occasions highlighted the way in which the proportionality evaluation is being misconstrued by practitioners. In each case practitioners were reminded to use the concept that was described by the Supreme Court in Re B. In M-H (A Child) [2014] EWCA Civ 1396 Macur LJ at [8] said:

 

“…I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215)….”

In Re M (A Child) (Long Term Foster Care) [2014] EWCA Civ 1406 Black LJ said:

 

“What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at [77] of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:

 

“It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be the last resort, because the interests of the child would self- evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. ” (my emphasis)

 

I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests.”

With respect, I agree.

 

It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit. The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available. The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it.

 

My answers to the questions posed by Mr Rowley are as follows:

 

  1. a) The judge’s methodology was right. She conducted a fact finding exercise, a welfare analysis of each realistic option, a comparative welfare evaluation and a proportionality evaluation.
  2. b) The statutory tests are not re-drawn. ‘Nothing else will do’ is the conclusion of a proportionality evaluation after a process of deductive reasoning not a new presumption and not a standard of proof.
  3. c) It is not necessary to have a contingency in a care plan although it is desirable. A timetable within which a local authority have to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.
  4. d) Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.
  5. e) There is no objection in principle to dual planning in an appropriate case. This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy. It was not a decision that one of two options would do.

 

 

 

I think the CoA go further here than in the last two cases – in those, there was still a concept that “nothing else will do” being a test, albeit a more nuanced test in which the words meant “nothing else that will properly meet the needs of the child”

 

Here, they say explicitly

 

The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available

 

That’s not saying that the Court rejected the other options, or ruled them out, or concluded that they were not capable of meeting the child’s needs. That is outright saying that even with a reasonable and available option, adoption can still be the choice of the Court.

 

Although in saying

 

Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.

 

And

 

It was not a decision that one of two options would do.

 

 

Are they in fact saying that there WASN’T a judicial acceptance that long-term fostering was capable of meeting the child’s needs and that the Court was just approving the plan of adoption by rejecting all of the other options and that long-term fostering was not a plan, but a contingency in the care plan that the Court wasn’t required to consider?

 

That’s one way of reading the Court of Appeal’s answers to those questions which still IS compatible with the nuanced / glossed “nothing else will do”   (there is no other option that is capable of meeting this child’s needs in a satisfactory way). I wouldn’t have much quarrel if the case had been decided in that narrow way – it seems to me that you could resolve it by deciding that adoption was the plan, making a Placement Order and advising the LA that a revocation application should be lodged if the plan is formally to be changed.

 

Let us be honest, in a care plan of “search for adoption for 6 months, if unsuccessful long-term foster care”, which of those two things is the ‘last resort’?   It isn’t adoption, that’s the first preference. Long-term fostering there is the last resort. When the Court makes a Placement Order in those circumstances, it really isn’t saying that adoption is the last resort; it is saying that adoption is a better way of meeting the child’s needs than the other available alternative. [Which arguably just falls under s1 of the Children Act and is a good thing, but in that case, the talk of ‘last resort’ is a sham]

 

 

 

Why, one might almost think, if one was very cynical, that the fact that Re B looked like it was heading for the ECHR led the Court of Appeal to take pre-emptive action to bolster adoption before any ECHR decision “look, we’re being proportionate!”   and now that we know Re B isn’t going to the ECHR and the practical import is being seen, there’s a backtrack.

 

I mean, I myself am not that sort of cynical person, so that of course isn’t what’s happened.

 

What has happened is that we naughty, dastardly lawyers have deliberately confused the Supreme Court and Court of Appeal saying that for the wording of the statute, “requires” means literally nothing else will do, and taken that to be a test to be followed, whereas all they meant was the quality of evidence needed for a Judge to be satisfied that the child’s welfare ‘requires’ that parental consent be dispensed with is higher.

 

And all of those successful appeals based on that point were… I’m afraid that my imagination is breaking down there and I can’t find a plausible explanation why those appeals were allowed if the position really is and always was what the Court of Appeal now say.

 

Why weren’t they rejecting all those appeals and saying “no, people have got this wrong, nothing else will do doesn’t mean that at all?”

 

If we can be honest again for a moment, imagine that a Judge in a Placement Order case in September 2013, or even September 2014 had said “I have been referred to the cases of Re B and Re B-S, but I don’t need to follow those and I am sticking to the law exactly as it was in 2012”   would the Court of Appeal have backed that

Habeas corpus

If you see the words “habeas corpus”, you know that one of three things is happening :-

(a) you are reading a very old law report or doing a constitutional law exam

(b) you are reading a Perry Mason novel

(c) this is a misconcieved application drawn up by someone who has read some law but doesn’t actually practice it.

Justice for Families Limited and Secretary of State for Justice 2014 is not a Perry Mason novel, nor is it a very old piece of caselaw.

 

Although it is therefore the latter of the three options, I can see the mischief that it was aimed at tackling.  [In effect, a writ of habeas corpus, if granted, is a legal order meaning that whoever is holding person X must release or produce them]

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1477.html

It involves John Hemming MP, though this time in the form of a Director of a Company, Justice for Families, and the Court of Appeal.

 

Mr Hemming and no doubt the company also, have been concerned for a long time about the people who are imprisoned for breach of family law orders or contempt of court. In this case, they had learned of a woman who had been sent to prison for 28 days, and found that the judgment had not been published on Bailii, which was of course a breach of the guidance that all committal applications should be published.

 

Mr Hemming, in his capacity as an MP had learned that this was not a rare blemish, but a regular occurance, and had issued this writ as a method of focussing attention upon it.

“It is known from statistics provided by the Ministry of Justice in response to a written parliamentary question asked by myself that there are of the order of 5 people a month imprisoned for contempt for whom there is no published judgment in accordance with the practice direction jointly issued by the President of the Family Division and the Lord Chief Justice on 3rd May 2013 [this is a reference to Practice Guidance (Committal Proceedings: Open Court) [2013] 1 WLR 1316]. Hence these people should be properly described as secret prisoners. This is not supposed to happen. It should not have happened on 11th October 2013. The applicant is hoping to obtain an authority from the court of appeal which would assist in preventing this from continuing to happen in the future by making it clear that such imprisonments are unlawful and that an application for a writ of Habeas Corpus must be granted whosoever applies for such a writ and that release from imprisonment would then be expected to follow.”

 

I think, like the Court of Appeal, that the writ was misconcieved, but it is surely wrong that people should be locked up and the judgment explaining why not published. Obviously, one expects some sort of time lag (the tape has to be sent to transcribers, the transcript done, the judge then approves the transcript and it gets put up) but as we have a practice direction saying that all such judgments must be published, it is wrong that so often they are not.  I have some sympathy with Mr Hemming, and whether the application was misconcieved or not (it was), it was an approach that (a) got the case before the President (b) got the President to reinforce that such judgments must be published and (c) will probably get some publicity.

 

He also highlighted that the Official Solicitors role in reviewing committal cases and searching for injustice seems to have fallen by the wayside, and I think he is right to say that too.  [the duty got discharged in November 2012, but what safeguards remain? It seems to be an important function that has ended and not been replaced]

  1. The latest figures from the Ministry of Justice of receptions into prison for contempt of court, show that in the twelve months from April 2013 to March 2014, a total of 116 contemnors arrived in prison (monthly totals 15, 11, 8, 13, 14, 7, 12, 7, 6, 8, 7, 8). These figures are broken down into County Court (aggregate total 36), Crown Court (5), Magistrates (4), High Court (5) and “Not recorded” (66). Mr Hemming’s point, which appears to be borne out by an analysis he has conducted for us of the committal cases which appear on BAILII, is that for a very large number of these committals there is no judgment to be found on BAILII. This, if true, and every indication is that unhappily it is true, is a very concerning state of affairs.
  2. Analysis of the problem, and location of responsibility, is not of course assisted by the surprising fact that the available statistics record the type of committing court in less than 50% of the cases: in 66 out of 116 cases the committing court is not recorded.
  3. Mr Hemming, as we have seen, draws attention to the fact that the Official Solicitor no longer has any responsibilities in relation to contemnors. He suggests that some additional protection is needed for what he calls the secret prisoner, who is at present, he says, insufficiently protected.
  4. The duties of the Official Solicitor in relation to contemnors had their informal origins even before 1842, when they were put on a formal, albeit non-statutory, basis following the appointment of J J Johnson as Solicitor to the Suitors Fund (as the Official Solicitor was then called). They were put on a statutory basis by the Court of Chancery Act 1860. From 1963 they were to be found spelt out in a Direction to the Official Solicitor issued by Lord Dilhorne LC on 29 May 1963, requiring the Official Solicitor to:

    “review all cases of persons committed to prisons for contempt of Court, … take such action as he may deem necessary thereon and … report thereon quarterly on the 31st day of January, the 30th day of April, the 31st day of July and the 31st day of October in every year.”

    That Direction remained in force until revoked by the Lord Chancellor on 5 November 2012. Accordingly, as I understand it, the Official Solicitor no longer has a role to play in relation to committal orders which result from contempt of court.

 

I have said, therefore that I can see that this was a very real problem that John Hemming was attempting to highlight and get the Court to deal with, and that I think it achieved its aim, but it is a drizzy Monday morning, and I think some of my readers might also like to read the interesting exchange when the application was being made.

 

In particular, enjoy Collins J saying something breathtakingly cool and rude and true all at the same time (underlined for your pleasure)

The application came before Collins J on 6 November 2013. He dismissed the application. He gave no judgment, but the reasons for his decision appear clearly enough from the transcript of the proceedings, which begins with the following exchange:

“MR JUSTICE COLLINS: Can I see if I’ve understand this correctly? You’ve had no contact with the wife, the woman concerned?

MR HEMMING: That’s correct.

THE JUDGE: You don’t even know her name?

MR HEMMING: That’s correct.

MR JUSTICE COLLINS: You don’t even know if she is still in custody?

MR HEMMING: I’m going by press reports that she was given 28 days, but she might not still –

MR JUSTICE COLLINS: Yes she was, Of course, in any contempt proceedings, the contempt can be purged.

MR HEMMING: Of course.

THE JUDGE: And in this case it could be purged by … indicating where the children were.

MR HEMMING: Of course.”

A little later there is this exchange:

“MR JUSTICE COLLINS: … She refused to disclose their whereabouts or told untruths about where they were, and that is what led to the judge deciding as she did. Now there is no question but there is jurisdiction to impose a penalty, including imprisonment, for contempt of that nature because it is a contempt which is an interference with the administration of justice. And, of course, the whole background to this was the protection of children who otherwise would be at risk. Habeas corpus in these circumstances is an entirely misconceived remedy. There is a right of appeal. She was represented, she had legal aid, and she automatically will, even despite the government of which your party is a member and the removal of legal aid in many circumstances, still legal aid exists for an appeal against a committal order because liberty is at stake. So it is difficult to see what really you are doing here.”

Mr Hemming then explained the basis of his application. Collins J responded:

“MR JUSTICE COLLINS: … there is no possible remedy through habeas corpus because habeas corpus only goes to whether there is a lawful sentence and there is a lawful sentence. And there is a right to appeal, an absolute right to appeal.

MR HEMMING: Yes.

MR JUSTICE COLLINS: For which legal aid is granted. She was represented by counsel and solicitors at the hearing before Mrs Justice [Theis]. You come along without any instructions, without having contacted her, without even knowing who she is –

MR HEMMING: Without the ability to contact her. That’s right.

MR JUSTICE COLLINS: You know nothing about the background to the case. And I am afraid this is an interference which is totally unnecessary because her interests are protected by her representation. She may have purged her contempt for all I know.

MR HEMMING: Yes, we don’t know, do we.

MR JUSTICE COLLINS: No, we don’t

MR HEMMING: And that’s the difficulty of the situation of people in prison in secret –

MR JUSTICE COLLINS: You could easily have got a copy of the committal order from the clerk of the rules.

MR HEMMING: So that’s what you recommend, basically.

MR JUSTICE COLLINS: Well, you can get it but I am afraid habeas corpus is hopeless –“

 

 

The Court of Appeal do not disagree with Collins J on the merits of the writ of habeas corpus

 

  1. There are, in my judgment, two very simple reasons why this appeal is quite hopeless. Each provides a complete answer to the appeal, just as each provided a complete answer to the application before Collins J.
  2. In the first place, and as Collins J correctly explained, habeas corpus does not lie to challenge a sentence of imprisonment imposed by a court of competent jurisdiction. The proper remedy in such a case is appeal: see ex p Hinds [1961] 1 WLR 325, Linnett v Coles [1987] QB 555 and West v HM Prison Bure [2013] EWCA Civ 604. As Lord Goddard CJ said in Re William Oswald Featherstone (1953) 37 Cr App R 146, 147:

    The court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say, persons who are serving sentences passed by courts of competent jurisdiction. Probably the only case in which the court would grant habeas corpus would be if it were satisfied that the prisoner was being held after the terms of the sentence passed on him had expired.”

  3. Secondly, and as I have already pointed out, the mother had been discharged from prison on the expiry of her sentence before the application for habeas corpus was made. Since the only issue on an application for habeas corpus is to determine the legality of the detention, habeas corpus will not lie if the detention has already been brought to an end: Barnardo v Ford [1892] AC 326, and (an authority supplied by Mr Hemming) In re J M Carroll (An Infant) [1931] 1 KB 317, 327. As Lord Watson put it in Barnardo (page 333):

    “The remedy of habeas corpus is … intended to facilitate the release of persons actually detained in unlawful custody … it is the fact of detention, and nothing else, which gives the Court its jurisdiction.”

  4. Mr Hemming’s response to the first point is that the hearing before Theis J on 11 October 2013 was not a hearing by a court of competent jurisdiction. In support of this surprising contention he makes two submissions: first, that the court did not have “jurisdiction” because Theis J was acting both as prosecutor and as judge; secondly, that the court was not “competent” because the hearing was not listed.
  5. As elaborated in his skeleton argument Mr Hemming asserts – perhaps, more accurately, assumes – that, as he put it, the “court” had “moved a motion for committal” and that the court was “sitting in judgment on a motion of its own initiative.” This is simply wrong as a matter of fact. The matter was brought back to court following and because of the arrest of the mother by the Tipstaff. Theis J was sitting to determine whether or not, as reported to the court by the Tipstaff, the mother had breached the collection order and thereby committed a contempt of court. To be fair to Mr Hemming, as soon as we had explained the process in relation to collection orders, he readily accepted that there was no substance in his complaint that the court lacked jurisdiction. Quite plainly, in my judgment, Theis J had jurisdiction on 11 October 2013 in the sense in which Lord Goddard CJ was using the word.
  6. Mr Hemming supports his alternative complaint that the court was not “competent” by reference to Article 6 of the Convention. The argument, in my judgment, is quite hopeless, whether or not bolstered by reliance upon Article 6. The fact is that Theis J was, as the expression was used by Lord Goddard CJ, sitting on 11 October 2013 as a court of competent jurisdiction. She was sitting in public. The mother was present and represented. The submission that an otherwise competent court was not competent because the hearing was not listed is, with all respect to Mr Hemming, devoid of all merit. I should add that I would have come to precisely the same conclusion even if, contrary to the facts, the hearing on 11 October 2013 had been held in private when it should have been in public: see McPherson v McPherson [1936] AC 177, where the fact that a divorce case which should have been heard in open court was heard in private rendered the resulting decrees nisi and absolute voidable only and not void.

I add one final observation. I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound.

 

The Court of Appeal judgment tackles a number of important points.

 

The first is the ability of a third party (ie someone who is not being held captive or prisoner themselves) to seek a writ of habeas corpus

Evidently, there is some provision for a third party to do this, otherwise miscreants could prevent the captive from getting legal remedy by simply holding them so closely that they could not apply. But how close does the relationship between imprisoned party and third party have to be, and what is required?

 

  1. In the nature of things, the court must be willing, where circumstances require, to hear an application for habeas corpus brought not by the prisoner but by some third party. For if the court refused to hear such a third party application, a prisoner unable to instruct someone to act for him would be denied a remedy and left to languish in what might be unlawful confinement. As is said in The Law of Habeas Corpus, 237, “If third parties were not allowed to initiate proceedings, a captor acting unlawfully would only have to hold his prisoner in especially close custody to prevent any possibility of recourse to the courts.”
  2. Thus it is clear that it is possible for a third party to make an application for habeas corpus even though acting neither as the agent of the prisoner, nor on his instructions, nor, indeed, even with his knowledge: see, for example, The Case of the Hottentot Venus (1810) 13 East 195, In re Price (1860) 2 F&F 263,[1] and Re Antoni Klimowicz (1954) unreported,[2] to each of which Mr Hemming helpfully referred us. But as the old case of Ex p Child (1854) 15 CB 238 shows, the right of a stranger to apply for habeas corpus is necessarily kept within bounds. As Jervis CJ said:

    “A mere stranger has no right to come to the court and ask that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas to be discharged from restraint. For anything that appears, Captain Child may be very well content to remain where he is.”

    And it is to be noted that the unsuccessful applicant was there ordered to pay the costs of the respondent who had been brought “fruitlessly and unnecessarily” to court.

  3. The principle in Ex p Child is now to be found stated in RSC Order 54, rule 1, as set out in Schedule 1 to the CPR:

    “(2) An application for [a writ of habeas corpus ad subjiciendum] …, subject to paragraph (3) must be supported by a witness statement or affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.

    (3) Where the person restrained is unable for any reason to make the witness statement or affidavit required by paragraph (2) the witness statement or affidavit may be made by some other person on his behalf and that witness statement or affidavit must state that the person restrained is unable to make the witness statement or affidavit himself and for what reason.”

    Mr Hemming’s witness statement failed to comply with the latter requirement.

  4. In what circumstances, then, is a third party application appropriate? Given the vital importance of the remedy and the infinite variety of possible situations – as the facts of each of the four cases I have just referred to so strikingly illustrate – it would be unwise to be too prescriptive. The court must be flexible. That said, I would expect most cases where a third party application is appropriate to be either (as in Price and Klimowicz) cases where the prisoner is incommunicado or (as in The Hottentot Venus) cases where, to quote the language of The Law of Habeas Corpus, 238, “the impediment preventing the prisoner from acting [is] ignorance or disability rather than close physical custody.”
  5. In the present case neither principle applies. The mother was not held incommunicado. There was no impediment to her acting: she had counsel. Collins J was fully justified in expressing himself as he did. Mr Hemming’s complaint that the mother was being held, “incommunicado”, as a “secret prisoner” whose name was not known, was true only in the sense that neither the appellant nor Mr Hemming had made any effective attempt to discover her name

 

To be fair to Mr Hemming, he encountered a problem that many others will have encountered – an inflexibility with bureacrats to provide information without the Code or Reference number, and an inability to know the Code or Reference number because the judgment giving it had not been published.

  1. As Collins J correctly observed, Mr Hemming could have obtained a copy of the committal order on application to the Clerk of the Rules. FPR 29.12(2) provides that:

    “A copy of an order made in open court will be issued to any person who requests it.”

    Mr Hemming’s account of his attempts to obtain a copy of the committal order is vague and lacking in detail. He says that those acting for the appellant “spent some time wandering around the Royal Courts of Justice visiting the Family Division registry and talking to inter alia Jimmy in the Urgent applications court and the clerk to Justice Theis.” He insinuates, without asserting in so many words, that he was unable to obtain the committal order because he knew neither the case number nor the names of the parties to the case.

  2. As to that I propose to say only this. Plainly the court cannot be expected to embark upon an extensive and time-consuming trawl of its files to identify an order where the applicant is unable to identify what it is he is seeking. But here, Mr Hemming knew both the date of the committal order and the name of the judge who had made it. An applicant seeking a copy of the order, to which, I emphasise, he is entitled under FPR 29.12(2), should not be sent away empty-handed merely because he does not know the number of the case or the names of the parties. The court can, and should, supply a copy of a committal order, even if the applicant cannot provide those details, where the applicant is able to provide sufficient details of the case to enable the order to be located by the court without undue difficulty, for example, as here, the date of the order and the name of the judge.
  3. I add, for the avoidance of doubt, that when I refer to the court in this context I mean the court office. Applications under FPR 29.12(2) should be directed to the appropriate court office and not to the judge or judge’s clerk.

 

The other tangled issue the Court tackle is that of right of audience. Mr Hemming is not a lawyer and does not have rights of audience to present the case to Court. There was quite a clever device to get around this – Mr Hemming was effectively being a litigant in person through the vehicle of being a director of a company that has been set up in part for the purpose of tackling injustice in family cases (as can be seen through its name)

  1. CPR 39.6 provides that:

    “A company or other corporation may be represented at trial by an employee if –

    (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and

    (b) the court gives permission.”

    Paragraph 5.2 of CPR PD 39A provides that:

    “Where a party is a company or other corporation and is to be represented at a hearing by an employee the written statement should contain the following additional information:

    (1) The full name of the company or corporation as stated in its certificate of registration.

    (2) The registered number of the company or corporation.

    (3) The position or office in the company or corporation held by the representative.

    (4) The date on which and manner in which the representative was authorised to act for the company or corporation, e.g. _19_: written authority from managing director; or _19_: Board resolution dated _19_.”

  2. The letters dated 4 November 2013 and 18 February 2014, signed, it is to be noted, by Mr Hemming, are inadequate. Neither complies with paragraph 5.2(4). Each is, in reality, no more than an assertion by the signatory that he is acting with the agreement of the board, an entirely self-serving statement unsupported by any independent evidence that he does indeed have that authority. CPR PD 30A, para 5.2 is there to be complied with. There is no excuse in the present case, where the court had specifically directed attention to it. As a matter of indulgence we agreed to hear the appeal. Our indulgence on this occasion is not to be taken as any precedent.
  3. We have not overlooked the principle, explained in The Law of Habeas Corpus, Farbey and Sharpe, ed 3, 2011, 238-239, that applications for habeas corpus are usually required to be made by counsel (now, a qualified advocate with higher court rights). Our agreement to hear Mr Hemming in this case is not to be taken as in any way weakening that long-established practice.

 

We shall wait and see whether the President’s words here make any difference to the publication of committal judgments – I would be surprised if Mr Hemming does not doggedly pursue (and rightly so) whether this problem has been resolved or whether despite the Practice Direction and the President’s words, committals continue to take place without transparent judgments being published.

 

 

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