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Relinquishing for adoption and nothing else will do

This is a High Court case, decided in April, but the report of judgment has only recently come out. I’m grateful to Celtic Knot for ensuring that it came to my attention
I touched on the (at that time unresolved) issue of whether the raft of jurisprudence on ‘non-consensual adoptions’ also applied to step-parent adoptions and relinquished babies where the mother was giving the child up for adoption but the father was not identified/told.

http://suesspiciousminds.com/2014/04/12/step-parent-adoption-telling-the-birth-father/

and this High Court case Coventry City Council and A 2014 deals with the relinquished adoption issue (and my next blog post will deal with the Court of Appeal’s decision on step-parent adoptions)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2033.html

If you want the Too Long; Didn’t Read version – it is that I would be very cautious about relinquished adoptions particularly if there is any international element. If either parent is from another EU country, I would strongly urge you to read the judgment in Coventry CC and A. I suspect that it will make ‘relinquished adoptions’ considerably more protracted, complicated and expensive.
This case took nearly a year to resolve (with a baby that mother wanted to give up for adoption – so twice as long as fully contested care proceedings are intended to take)

Part of the reason why is that the mother was Romanian, and the High Court embarked on a process of notifying the Romanian authorities about the existence of the child and the potential order that would be made in the UK courts.

Let’s look at what mum had to say about her extended family

The hospital was able to contact the mother through her friend, Z, via a mobile phone and a meeting was arranged with the mother to attend the hospital on 7th June. Initially the mother failed to return but, ultimately, after some persuasion, she did so with her friend Z. She was spoken with through an interpreter speaking Romanian. At this meeting she gave her baby a name after some prompting with the social workers and held the baby for the first time showing some emotion in doing so. The mother gave information about her and her baby’s background. She said that the father was Romanian Roma but she was herself Romanian. She refused to provide the father’s name. She said that her family were not aware of her pregnancy. She had not told them about it or her relationship with the father and she had concealed the pregnancy from them. She said that her family would not approve of the relationship with the father as he was Roma and her mother would disown her if she knew. She wanted the baby to be adopted. She intended to return to Romania as soon as possible after she received her new travel documents.

She said she was from a named village in Romania, that she had two other children residing there, a son aged nine and a daughter aged ten and they were being cared for by their maternal grandparents. She had no money to support a baby. She said the father was aware of the pregnancy but was not interested and he was not aware that the baby had been born. She had come here on holiday to see her friend, Z, who came from the same area as the maternal grandparents. She had not told Z about the pregnancy until her waters broke. She said she had no fixed abode, she moved between the homes of various friends and had been evicted the evening before and was at that time staying with a friend of Z.

That seems, to me, to be a very clear message that the mother did not want her relatives approached or told of the existence of the baby.

Unfortunately, mother did not help herself because she didn’t attend the appointment with a CAFCASS officer to sign the adoption forms. Nor did she attend the second such appointment, and then she vanished.

The baby was thus not, in law, relinquished. Mother had agreed to give the baby up for adoption but had not signed the paperwork that would be a vital part of the process. That meant that rather than being a relinquished baby adoption, this had to go into care proceedings.

And, the case having gone into care proceedings, efforts had to be made to find and serve the mother.

[HUGE LESSON here – if you are dealing with a mother who wants to relinquish her baby, it is vital that she is made to understand that not filling out the forms is going to make life much worse for her. Fine to decide ‘I don’t want to sign them because I want the child back’, but ‘I don’t want to sign the forms because I want to stop thinking about this’ is just going to make things much much worse]

It made things much much worse for this mother here, because a process server was sent out to look for her in a Romanian village near Bucharest

The process server met with the mother’s own mother who is Romanian, who told him she is looking after the children at the family home, that the mother was not in Romania, she had left a few months ago to go to the United Kingdom. She said that the family believed she was working as a prostitute in the United Kingdom and recently had had problems and had been in hospital. The process server was unable to gain any further information but was able to say that the address in Coventry, which the mother had given to the local authority, did not exist.
In the second report, dated 30th November, the process server described the village as being small, about 100 kilometres from Bucharest, with “a majority gypsy population very poor and simple peoples.” He met with the mother’s own mother again who was shown a photograph of the mother. Initially she denied recognising the mother but later produced a copy of the mother’s ID card with a photograph of the mother. Whilst there, a niece of the mother identified the photograph as the mother and a sister of the mother did so as well. The grandmother then returned with a copy of the mother’s ID card and was able to confirm that the photograph with the process server was that of the mother. The process server then showed a photograph of the mother to a village policeman who identified it as that of the mother and said that she had been registered as missing but had returned to the address and was declared not missing. It seems he thought that she was probably in the United Kingdom and said that she did not have a relationship with her family. The local authority have been unable to trace the mother and has no information as to the father’s identity or whereabouts.

Remember, of course, that this mother did not want her family to know anything about the baby or to become involved. So that worked out marvellously for her. (I also dread to think how much Coventry had to pay for the Romanian equivalent of Jim Rockford to go out flashing this photograph of the mother around, including showing it to a village policeman)
The final upshot though, was that the mother was not found, and the care case thus proceeded in the absence of the mother, or a father.

What then happened was that the Court caused the Romanian authorities to be informed of the case. It took a while to get any response out of them, but once they started to respond, they got highly responsive, ultimately saying that they wanted the case transferred to Romania and were wholly opposed to a child of Romanian parents to be adopted, even where the mother herself was not opposing it.

 

the Romanian authorities have been informed as to the existence of A and the existence of these proceedings and the care plan for adoption. The care proceedings were issued on 9th August last year and the application for the placement order was on 14th October. These applications were transferred from the Coventry Family Proceedings Court to the Coventry County Court on 18th November 2013 due to the complexity of the international aspects. On 20th November her Honour Judge Watson directed that the Romanian central authority be invited to attend the next hearing on 4th December. On 4th December, although the Romanian central authority had been notified, no representatives attended but on 2nd December the Romanian Directorate for International Law and Judicial Cooperation wrote saying that the correspondence had been forwarded to the child protection directorate and that a response was awaited.
On 4th December Judge Watson invited the Romanian central authority to write to the local authority by 23rd December informing the local authority of its position concerning the baby and the substance of any representation or applications that they were intending to make to the court. A further invitation was made to the Romanian central authority to attend at the next hearing on 13th January, it being noted that the court may make such an order on that date in the absence of any representation and the court considered that sufficient notice had been given. Judge Watson also ordered that the local authority do have permission to disclose this order and other relevant documents suitably redacted to the Romanian central authority before forwarding it to the Romanian child protection directorate that a warning of the confidentiality of the court proceedings would need to be maintained until further order.
The local authority was ordered to send a copy of the order to the Romanian central authority under cover of a letter explaining that their attendance is requested at the next hearing when final orders may be made in their absence. Judge Watson ordered that the Romanian authorities should not disclose the birth of the baby to the maternal family without the permission of the court. She gave leave to the Romanian central authority to apply to discharge parts of the order.
The matter was restored to her Honour Judge Watson on 13th January. The Romanian central authority had been invited but made no representations and was not in attendance on that day. However, the court read a letter from the Romanian directorate for International Law and Judicial Cooperation and another letter from the director of the Romanian child protection department and noted that the child protection department was content not to inform the maternal family about the birth of the baby and the judicial proceedings whilst A’s best interests were considered.
The child protection department does not consider the adoption of the child as justifiable and that it seeks the return of the child to Romania. Various directions were made and the matter was transferred to Mrs Justice King to be heard in the Royal Courts of Justice in London on 17th January 2014. The Romanian authorities were invited to make representations to Mrs Justice King. It was noted that such attendance is essential if the court is to consider the Romanian authority’s opposition to the local authority’s application for care and placement orders. By paragraph 4 of the order if the Romanian authorities wish to oppose the local authority’s application for care and placement orders they are invited by the court by 16th January to file and serve a document setting out their case in detail whether questions regarding the child’s welfare are subject to determination under the United Kingdom or the Romanian law; however, the courts in England have powers of jurisdiction to determine the questions relating to the child’s welfare and any points they make in opposition to the local authority’s plans for the child, any points they wish to make in support of a plan for the child to be returned to Romania, and the plan they propose for the child’s care including how her medical needs would be met. The Romanian central authority was to be served forthwith.
The letter of 9th January which was before Judge Watson came from the Directorate of International Law and Judicial Cooperation addressed to Coventry City Council, “Please find attached letter of response from the child protection directorate concerning the child. The Romanian child protection considers that the international adoption of a child is not justified as Romanian national law provides specific and limited situations when international adoption can take place. The child protection directorate requests repatriation of the child to Romania where the local child protection agency will be available to make the necessary investigations and to adopt protective measures for the child.”
The directorate also wrote on 16th January again to the local authority, “Further to your message of 13th January, we are sending you attached the answer provided by the child protection directorate dated 15th January. With regard to the question raised by the Coventry County Court on the question of jurisdiction, it is our opinion that Article 13 of the EC council regulations number 2201 of 2003 is applicable, that the Royal Courts of Justice could also take into consideration and apply the provisions of Article 15 of Brussels II (Revised). As to the question of consent and participation by the Romanian representative at the hearing on 17th January our office cannot confirm that at this time.”
The letter that was enclosed came from the Directorate of Child Protection which is dated 15th January; “Further to your request for an opinion regarding the case of A, we believe that we should make the clarifications below. As you are aware from the information provided by the British authorities, the Romanian side has been asked to observe confidentiality about the situation of the child and the identity of the parents. It has been mentioned in our previous correspondence that there is a complete provision for Romanian local authorities to support and assume repatriation of the child considering that she is a Romanian national. However, given that the British authorities have only provided us with extremely brief information about the situation, we believe that their request dated 4th January that a series of documents should be made available by the 16th which should present a proposed plan for the child including the manner in which her medical situation would be handled and any other arguments meant to challenge the decisions made by the local authority that the child is adopted are unrealistic considering that any serious assessment must be based on documents that affect both the social background and they affect the medical condition of the child and the family environment of the natural extended family of the child in order to make a substantiated decision about setting up a measure of special protection. Under the circumstances in relation to the recent request by the British court we wish to mention that our institution upholds its opinion about the Romanian local authorities assuming the responsibility of repatriating this child to Romania and that the specialised documents will be prepared by the general directorate of social assistance for child protection from the country of domicile after the British Social Services provide us with the documents that describe the current situation. Whether a representative of the Romanian Embassy will appear on 17th January, please be advised that we cannot issue an opinion about the designation of the representative who will participate.” Then it was signed off

 

Yes, I have left out of my opening remarks that this case is going to involve Brussels II, but sadly it does. I just didn’t want to put you off reading it at the outset, apologies for my deception.
It gets worse, because then the Romanian authorities began to get cold feet about whether the mother was in fact Romanian, and that debate went on for ages and ages. Their position was that IF the baby was Romanian, then they would want the case and would oppose adoption, but in the absence of documentary proof about the mother’s nationality they wanted no part of it (and they weren’t accepting the process server’s detective work at finding family members and a policeman who confirmed that mother was from a village in Romania)

On 13th March the child protection department wrote the following: “Taking into consideration that child citizenship is still to be clarified, we would like to state that if the court would confirm the child is a Romanian citizen, then the Romanian local authorities from the county where the child’s natural family has residence would issue all the required documentation to return the child to Romania specifying also detailed measures and individual protection plan under which the child’s best interests would be protected. We would like to mention that repatriation procedure as well as the background checks are carried out by the Romanian authorities would be based on the government decision number 1443 of 2004 regarding procedures for the repatriation of unaccompanied children providing the child’s best interests would be protected. If, following the assessment made in relation to the child’s extended family or natural parents, it would be decided that the family re-integration is not an option, then a Romanian competent authority would recommend the child be placed in a foster care based on a court order. The child’s placement would be done by the panel for child protection in the county of residence thought necessary by the court depending on the evidence presented if special protection measures are necessary. Taking into consideration the child’s age, the foster care placement would be the solution to be considered by the Romanian authority as under the current Romanian law, a child under the age of two cannot be placed in a residential institution (orphanage). We would like to emphasise that for the moment the Romanian authorities have been unable to identify the child’s extended family members due to the confidentiality of this case. If the citizenship of the child and the mother are established as Romanian then the Romanian authorities will assume true responsibility for its repatriation be handling the case under Romanian laws.”
That was the final word from the Romanian authorities and the note that sets out the general picture, that letter does not give a timescale as to what would be done, when it would be done and when the child could be placed. There is a lacuna as to what actually would be done in fact and the timescale was not set out.

The Court had to consider the factual matrix to decide whether this baby was habitually resident in England, thus giving the English Court jurisdiction, and decided that she was.

I accept that it is likely that the mother and the little girl are both Romanian. I cannot say that I am one hundred per cent certain but the evidence firmly indicates that likelihood. The mother seemed to speak Romanian as her first language. She talked about Romania and said she was returning to Romania. It seems that we have located her family. I am not making a clear finding of that because all I can do is to look at the evidence before me and the mother is not here. The little girl was born here and the mother wanted her to be adopted here. There was no pressure on her to reach this conclusion. It was her conclusion and she gave her reasons. She said that she had no money to support the child; that her family did not approve of her relationship with the father, that they would disown her and they would not support her and that the father himself was not interested. She herself had concealed the pregnancy from her family and from her friend, Z. The mother has effectively abandoned A to her fate here. She wanted her to be adopted in the United Kingdom, hoping that she would find a good home.
Effectively the mother has left her daughter. Since the birth, A has been here, she has never left this country, she has been in hospital for good reasons after her birth and then when she was ill in July. She only left hospital in September when she was placed with her foster carers and she has not left their care since. She looks on them as her carers, as her family, their home is her home, she knows nothing else, she is only ten months old but she is comfortable, seemingly happy and settled in that environment. If she has a language, it is English. It is not Romanian. No doubt she is familiar with the sound of English. She may now be understanding a lot of things, I know not, but if she has a language it is English. Her culture is that of her carers. The environment in which she lives is that of her carers. She has accessed the United Kingdom’s health system. She moves around her carers’ home area with her carers. She will know their friends and her environment is that of her carers who are British, living somewhere in this country, although I am not sure where; that is where she is and that is her environment. She has had no contact with her mother since 7th June when she was still very, very small. It is clear to me that there is a distinct level of integration for this little girl in the social and family environment in this country with these carers. She has no connection from a practical day to day point of view with Romania. It is clear to me that she is habitually resident here and I make that finding.

In that sense, there is no need for me to consider Article 13 and I have jurisdiction because she is habitually resident here but if I am wrong on that, Article 13 would kick in. Where a child’s habitual residence cannot be established and jurisdiction cannot be determined, the courts of the Member State where the child is present shall have jurisdiction. I am saying that Article 8 applies, this child is habitually resident in this country and by that means I have jurisdiction
The next issue, then, was whether the appropriate venue for decisions to be made was England or Romania, applying article 15 of Brussels II

The Court decided not to transfer the proceedings to Romania (and if you are some sort of Brussels II addict, then the specific paragraphs are 44-50.

The NEXT issue was whether there should be an approach made to the extended family in Romania, and HERE for the first time is a live debate between parties to the proceedings. The Local Authority wanted to respect mother’s clear wishes, the Guardian wanted to explore the extended family so that adoption would only be the outcome if it was the last resort.

This has long been a difficult philosophical issue, and it is difficult to ever find a decision on this point that most people would agree on.

The Court here decide that it IS in the child’s interests for that exploration to be made, and place reliance on ‘nothing else will do’ (although it is quoted as ‘nothing less will do’). That, I suspect, is likely to be the conclusion of such debates in the future, unless there are compelling reasons to the contrary.

It does, as the Local Authority submitted, raise the spectre of mothers not coming to Local Authorities to relinquish where they don’t want their family involved or contacted, but going back to the bad old days with babies being left in wicker baskets outside hospitals or police stations.

I move on to the last issue before me which is should enquiries be made of the maternal family in Romania and that this would entail a breach of the mother’s confidentiality. The local authority have said that there should be no more enquiries, that it would not be in A’s best interests. It would delay the proceedings here and it would delay the making of a care order and a placement order. The guardian is of a different view and says that there should be enquiries because it would be in A’s best interests if those enquiries are made.
It is never an easy point to breach the confidentiality of a mother who has given birth in difficult circumstances and I recognise that she does not want her family to know about the child and she has given her reasons. It has been said by the local authority that if it became known by a mother in similar circumstances, and if she felt that her confidentiality would be broken, she may not seek the assistance of medical help in giving birth; she may seek “a back street abortion” or give birth secretly which would endanger the mother and the child. The reality is that each case depends on its own facts. The matter is within my discretion.
Under the Children Act my task is to consider the child’s best interests and that must be my paramount consideration. It then sets out the checklist required by section 3 as to whether I make an order or relating to the welfare and best interests of the child. Under the Adoption of Children Act 2002, section 1(2) the paramount consideration of the court must be the child’s welfare throughout his or her life and I am referred to the checklist and things that I have to consider all relating to the future welfare of the child. The care plan here is for adoption. Romania, I acknowledge, does not have the same rules for adoption and their position for placing children is different from ours. Here, recently adoption has been described as the last resort for a child when all else fails and that was said in Re B [2013] UKSC 803 or, as Lady Hale said, it is “when nothing less would do”.
It is a last resort at the end of the day because it is the curtailment of a child belonging to his or her natural family. By adoption the child legally becomes a member of another family and is incorporated into that family on an everyday basis. She would become a full member of that family legally, practically, and emotionally. It is a change of identity of lifestyle, environment, a change of everything in a child’s life. It is a cutting off for the child from her background or the knowledge of the family and the environment in which she came from and it is a cutting off in law as well. The President in the recent case of Re B indicated that it should only be done on very clear evidence and there must be proper evidence both from the local authority and from the guardian and the evidence must address all issues and must contain an analysis of the arguments for and against each option. There must be clear evidence and proper information or as much as can be garnered. All options must be considered before a care plan for adoption can be accepted, with a placement order being made or an adoption order being made.
The court has a duty to ensure that full and proper enquiries have been made of the child’s family. Herein lies the problem, the tension between the little girl’s interests and rights and those of the mother. The mother is not present because she cannot be found and she is not here to put her view and her voice cannot be heard but she made her wishes and intentions for her daughter clear. She wanted the little girl to be adopted and she wanted full confidentiality and had concealed the pregnancy. It is not known how the maternal family would react or what the consequences might be either within the family or to the mother if it became known by the family that the mother had given birth to this little girl and had effectively abandoned her in a foreign land. That we do not know. All we have is the indications by the mother that the family was disapproving of her relationship with the father and she felt that they would not support her in keeping the baby, that the father was not interested. We do not know the consequences that might arise if the family knew about it. All we know is that she wanted confidentiality for her own reasons.
Against that, the little girl has her rights and rights that should be considered before she is adopted here by her current carers. Enquiries should be made to see if she can be returned to her family, her culture, her birth environment, the country of her origins and those are her rights. Both sides, the mother and the daughter, can claim their right to Article 8 of the Human Rights which is that everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of respect except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, and economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In other words, in a case like this, there is to be respect for the individual’s private and family life and that the court and others should not interfere with that right.
I must also remember that if the information is correct, there are other members of her family, the grandmother, and there may be a grandfather, the half-siblings, and the father himself would have rights to know about this child, to have a voice in that child’s upbringing, if only to say, “We are not interested,” but they have rights.
It is established law that if there are conflicting interests between a child and adults that after careful consideration of all the interests and consequences of any order, and the child’s interests are paramount and they prevail over others.
On the one hand, we have the mother’s position, as she set out and her wishes and her intentions for her daughter. On the other hand, we have the little girl’s interests. Very little is known about her mother or her maternal family or their circumstances and even less about the father who has not been identified. The guardian, on behalf of A, says that it is important to carry out further enquiries and investigations to see if there is a long-term family member available in Romania, if there is a possibility of direct or indirect contact in the future if she is to remain here and to be adopted; and, if she is to be adopted, more information as to her background would be useful as to her family, their background. Such information may be of value to her in the future to know who she is, to know her background and to give her some sense of identity as to where she came from. Her guardian says that eventually if she is to be adopted, she will grow up to know that she has been adopted but she needs to know before she is adopted that everything was done that should have been done before a decision is made and that will be of value to her in her adult life. The guardian accepts that if there are to be further enquiries, there must be no delay.
There was a window of opportunity in February, it has narrowed in the last few weeks and there is very little time left if those enquiries are to be made. If I allow enquiries to be made, they should be strictly time restricted. The local authority say that there is enough information for this court to proceed, that this child needs to be settled quickly, decisions should be made and there should be no more delay given that the mother’s wishes are clear.
I accept, if there is to be further investigation, that delay is an issue. Fortunately she is well placed. If she is to be adopted there will be no move and therefore she herself from a day to day point of view will remain settled until more is known and further decisions can be made but against that, the stress and strain on the carers must be huge. They love her and are committed to her and want to commit to her long term. They need certainty now or very soon from now. It is not fair on them to make them wait for ever. I bear that very much in mind because they are doing a good job and the little girl is benefiting from their care. Anxiety within the home never is good. It will or potentially could impact upon their care and that is what worries me.
I have thought about this and it is not an easy issue but I have come to a decision. I have come to the view that it would be in A’s best interests to make further enquiries in Romania about her family and for the reasons set out by the guardian but those enquiries should be strictly time limited. There should be a strict timetable as to when they should be concluded. If they are not concluded in the timescale because it has not been possible, then decisions will have to be made in this court to conclude these proceedings. I think there should be one last attempt to make further enquiries of the mother’s family and of the father’s if he can be identified and of the provision and systems for child care in the Romanian locality.

 

As I said at the outset, this was not strictly a relinquish case, because mother didn’t sign the forms, but it is on any reading a case where that was her intent, and the High Court here apply “nothing else will do” as a rationale for not making the order, delaying the proceedings and making further enquiries about family members.

Surrey seems to be the hardest word

 
The High Court decision in Surrey County Council v AB and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1115.html

This is a judgment which might be pertinent for an elephant in the room issue since the Family Justice Review started moving us away from independent experts. Once you take that expertise out of court rooms and decisions about families, what is filling that gap? Is it sufficient to treat all social workers as experts without considering the huge differences between an experienced and analytical social worker and a relative newcomer?

The writer is aware of a pending article for Family Law Week prepared by Miss Battie of counsel, which touches on this very issue.

http://www.familylawweek.co.uk/site.aspx?i=ed128671

In this case, the Local Authority ended up apologising, in writing, to the parents and grandparents because the social worker they had been allocated was “at the bottom of her learning curve”

[Just like any profession, newcomers start out new and have to gain experience by doing it. Every social worker has to have a first case, a first contested case, a first adoption case. The significance of course is that adoption(or separation of a child from birth parents permanently) is, as the Supreme Court reminded us last year, the most dramatic order that can be made in family Courts and it requires a robustness and rigour in the analysis and decision-making if it is to be done fairly. I don’t mean to suggest that all experienced social workers get everything right, nor that all new social workers get everything wrong, rather that when you are looking at a social worker having the entireity of the assessment process on their shoulders rather than having experts to consult with, the individual ability of that social worker comes into play far more than it did two years ago.]

“That document repeats the apology given to the parents and paternal grandmother for them being at the bottom of the “learning curve” for the allocated social worker.”

[Any underlining is mine, for emphasis]

The child in this case was 2 ½ years old. He had significant needs

X has complex health needs. He was born with hypertonia, suffers from a visual impairment Peters Anomaly Type 1/Anterior Dysgenesis Anomoly, has significant motor delay, scoliosis of the spine and suffers from digestive difficulties. As a result of these health difficulties he requires a standard of care that enables his particular health needs to be met. Such care includes 24 hour postural support, careful monitoring of his diet and significant care when feeding and essential auditory and tactile stimulation to ensure his emotional needs are met and to compensate for his loss of other senses. He has been placed with foster carers since May 2012 under a section 20 agreement.
The parents also had significant needs

10. His parents have their own health difficulties. His mother has cerebral palsy involving weakness in one arm and both legs and a possible mild learning disability. The father was diagnosed as a child with ADHD and is said to have Asperger-like symptoms, although there is no formal diagnosis.

The quality of the assessment and interventions that the parents received were a critical part of the case (and given that the Local Authority apologised in writing, you can make an informed guess that there was some judicial criticism of them)

11. One of the central issues in this case has been the adequacy of the assessments of the parents as to their capacity to care for X. Put simply the parent’s case was that the local authority comprehensively failed in their duties to support X’s continued placement with his parents. It is submitted there has been an unfair process resulting in a catalogue of missed opportunities and inadequate assessments, which have resulted in the parents now being at a significant disadvantage in putting themselves forward to care for X.
12. The local authority acknowledges some of their procedures and assessments have been inadequate, but submit the basic factual background has not changed. This is a young boy who needs exceptional care due to his particular needs and the combination of the parent’s volatile relationship and the father’s inability to provide emotional care for this young boy mean his parents were unable to provide the care he needed.

The Judge follows through the chain of mistakes and missed opportunities
Core assessment
17. A core assessment was started on 23 March 2012 and completed on 25 April 2012. Curiously the core assessment under “Agencies contributing to core assessment” records “No Key Agencies identified”. Under the section asking whether there were any disability or communication issues for the child or parents are to be recorded the box is left blank. This is despite it then being known about some of X’s health difficulties and the body of the assessment refers to his ‘global delay’, the mother having cerebral palsy and learning difficulties and the father Aspergers. The assessment also records in relation to the mother that she was ‘unable to use public transport due her physical disability’. The assessment goes on to record under parents’ views ‘[the parents] do not believe that their difficulties will impede on their capacity to care for or meet their son’s needs and their wish for him to be returned to their care in the very near future’. The parents are recorded as not agreeing with the local authority’s recommendation that X be made the subject of a child protection plan, however it goes on to record that both parents ‘are keen to work with all agencies so that they will be able to care for their son’. In the decision section the ‘No further action’ box was ticked.
18. This was not a promising start. On the face of the document it seems incomprehensible that the core assessment failed to identify the disabilities and communication difficulties that were obvious on the face of the assessment. Of the ‘tick box’ decision options there was included ‘specialist assessment’ and ‘referral to other agency’ yet despite identifying difficulties which required further assessment and the parents expressing their willingness to work with agencies no further action was taken. It is suggested that this was one of the first lost opportunities to support the parents in their wish to care for X. I agree.
Core group meeting
19. There was a core group meeting on 27 April 2012 attended by the parents, maternal grandparents, allocated social worker Ms Perrin, the ATM Mr Taljaard, Ms Livingstone the health visitor and Ms Murdoch (described as other social care staff). The minutes dated 8 June 2012 (some six weeks later) record ‘a residential unit for AB and X was discussed with AB stating that she is not keen for this to happen as this would put further stress on [the parents] as a couple’.
20. At this time X remained in the care of the mother in the maternal grandparents’ home. After the parents reported the mother’s brother’s use of pornographic sites X was placed with foster carers pursuant to section 20. There is no evidence of what, if any, other options within the wider family were explored to enable X to remain being cared for by his mother.
Allocation of new social worker

21. Ms Kim Horrox became the allocated social worker on 29 June 2012. She took over from Claire Stevens. Garth Taljaard was the ATM and remained so until Ms Grindon took over in January 2013, she remains the ATM to date. Ms Horrox qualified in 2011 although she had some previous social work related experience. This was her first case that resulted in care proceedings. By this stage X had been with the foster carers for six weeks.
22. Ms Horrox was clear in oral evidence that at the handover meeting in June 2012 she was informed that a residential assessment had been refused by the mother and was not being further explored. However, this is not consistent with other documents at the same time which seemed to indicate this issue was being actively pursued. There is a record of a discussion with the mother on 15 May 2012 in which she says she would rather go to a mother and baby foster home or residential unit than go back to her parents’ home for further assessment. A letter from the paediatric dietician to the consultant paediatrician on 24 May records that the mother was ‘awaiting a mother and baby placement in foster care for her and X’, it was mentioned as being the preferred plan in a meeting with the safeguarding nurse Mel Baxendale on 29 May 2012 and on 22 June 2012 there is an email from Mr Taljaard ATM after the review CP conference stating that the team manager and area manager have agreed a care plan that allows mother and baby to be placed in an appropriate residential unit for further assessment. This is said to be a further lost opportunity, I agree.
Assessment by the new social worker

24. Ms Horrox stated that on taking the case over she wished to conduct her own assessment of the parents and make her own judgment. She met with the parents on 3 July and on 17 July a youth support worker informed Ms Horrox that the mother was declining support from adult services. Ms Horrox accepted in oral evidence that she should have been more creative in helping the mother access appropriate support.
Assessment of the parents

29. In February/March 2013 there was a referral by Ms Horrox to the adult services team for an assessment to be conducted as the parents were said now to be consenting to such an assessment. It is accepted by Ms Horrox that this referral was not accepted by the relevant team until 23 September 2013 some 7 months later. Ms Horrox said in evidence that having made the referral she chased it three times and on the third time was told it needed to be sent to the ‘transition team’, that required a different referral form which she completed and sent. That was apparently deleted by mistake, once that was discovered a further referral was sent and then, finally, it was ‘actioned’. I agree this was another lost opportunity.

 

Delay in issuing / drift in section 20
30. The care proceedings were issued on 25 March 2013, 10 months after X had been placed with foster carers and over 4 ½ months after the local authority issued letters of intent to the parents informing them of their intention to issue proceedings. Ms Horrox frankly accepted in evidence this delay was unacceptable, she acknowledged it was her first case where care proceedings had been issued and had been a ‘steep learning curve for her’. She agreed with Ms Jenkins on behalf of the father that it was not fair the parents were at the bottom of this learning curve she said ‘I apologise for it being at the expense of this family’.
Lack of supervision of the social worker
31. Despite the volume of material in this case and the length of the social work statements there is little, if any, evidence of effective supervision of Ms Horrox between June 2012 and September 2013. If there had been it would have been expected such unacceptable delays would have been picked up and effectively managed.

 

Failure to consider of all of the options
32. The local authority care plan at the time the proceedings were started was, in reality, adoption, although Ms Horrox said she kept an open mind. The discussions she had had with the mother at the PLO meeting in November was in the context of long term placement with Mr and Mrs SG, either under a care order, adoption or SGO. In her evidence Ms Horrox kept talking about ‘parallel planning’ but there was no evidence of any effective parallel assessment of the parents’ ability to care for X at the same time as investigating alternatives in the care of the local authority. That is what parallel planning means. It is right the mother is recorded at the meeting in November as effectively supporting the long term placement of X with Mr and Mrs SG but that was without legal advice and in circumstances where there was no evidence of any alternative involving X being cared for by his family being actively discussed at that time.

The social work assessment in proceedings being flawed

33. Following transfer of the proceedings to the County Court the first effective hearing was not until 13 August. HHJ Cushing case managed the four significant hearings between then and 17 October 2013 when the deficits in the assessments undertaken by the local authority became clear. In essence a parenting assessment had been undertaken by Ms Horrox without the benefit of any assessment from adult services, and the subsequent assessment by adult services was accepted by the local authority to be inadequate. The care plan filed by the local authority on 6 September sought care orders and placement orders with contact with the birth family 4 times a year and made no mention of any outstanding assessments
The failure of the professionals meeting to answer the agreed questions
34. The Professionals Meeting convened on 2 October 2013 was, unfortunately, not a good example of how such a meeting should be structured. The minutes record at the beginning the 8 questions that were described as the purpose of the meeting, which included such matters as what are the identified needs of the Mother and Father, now and in the foreseeable future? What services are required to meet those needs? How can those serves be provided? What services are therefore required to allow the parents to meet X’s needs? This is followed by 9 pages of typed notes of the discussion with a record at the end as follows:
Meeting confirmed that
1) X’s needs are such that he needs consistent care
2) CWD will not offer a service
3) SSD to arrange another TAC meeting (team around the child)
35. In her evidence Ms Horrox agreed with Ms Wiley, on behalf of the mother, that this meeting did not answer the questions at the beginning, although it is clear from the record of the meeting that both the CWD team and the AWD team informed the meeting that they could only do assessments of the parents if X returned home, which seemed an unnecessarily unhelpful and rigid position to take. This was another lost opportunity.

 

 
The failure of the community based assessment

 

37. The matter came before Mostyn J on 22 October 2013. He transferred the case to the High Court and the order provides for further comprehensive community assessments to be conducted with a recital recording that ‘the court indicating that there should be an independent element to the assessment and that if a different person from both the Children with Disability Team and the Adult Team undertake the assessment, this would constitute that independent element’.
38. A 6 week community based assessment plan was devised at the end of October which included the children with CWD and AWD teams. The assessments were completed in early December 2013 and involved nearly 100 hours of observed assessment by the various teams. The matter came before me on 18 December. I made directions leading to the final hearing on 12 March 2014. It transpired that Ms Gomesz carried out one of the assessments. She had been part of the earlier assessments, this was not made clear by the local authority in the evidence they filed. When the Children’s Guardian made enquiries she was informed there was no one else available and, in any event, it was too late to do anything about it. Whilst there is no criticism of the work undertaken by Ms Gomesz it was not what was intended by the order made by Mostyn J.
By the end of all of this (and a further independent social work assessment) consensus had been reached between the parties that the current foster carers who wanted to permanently care for X were the best people to do this.
This must be one of the most damning paragraphs I have ever read in a family court judgment. It is heart-breaking. We should NEVER be in this position.
48. I am satisfied the agreement reached in this case does meet X’s welfare needs. Whilst it will never be known if the correct assessments of the parents had been undertaken earlier, as they should have been, whether the parents would have been in a position to care for X the reality is now the comprehensive assessments undertaken since are united in their conclusions that the parents would not be able to care full time for X, even with extensive support being provided. Those assessments have been subject to the critical eyes of two independent people.

 
If all of that were not enough, the Court went on to make four particular findings about the failings of the Local Authority
(1) Delay generally and, in particular, in issuing proceedings
72. Some of the delays in this case have been wholly unacceptable. There are three specific examples that illustrate the point:
1) X was placed with foster carers in May 2012, care proceedings were not issued until March 2013 some 10 months later. The fact of that delay put the parents in an increasingly difficult position to seek to restore X to their care, as there was no structure to the period of time prior to the issue of proceedings and they did not have effective access to legal advice. To rely, as Ms Horrox did in her evidence, on the fact that they did not take up the offer of legal advice at the PLO meetings misses the point;
2) The decision to take care proceedings appears to have been made prior to November 2012 yet the proceedings were not issued until some 5 months later. Again leaving the parents in limbo with the local authority, in effect, recommending permanent removal of X from his parents care by way of adoption but the parents not being within the structure of legal proceedings to challenge that was unfair. I appreciate the mother at the November PLO meeting appeared to be endorsing the plan of the local authority, but that was without the benefit of independent legal advice and was perhaps illustrative of the internal struggle she has had about where X’s best interests lay.
3) The delay in the referral to adult services from February/March to September 2013 was unacceptable. It was caused by a catalogue of errors, a lack of effective co-ordination and structure between teams that should be effectively working together. There appeared to be no system in place to chase up referrals.
(2) Ineffective supervision, planning or co-ordination
73. This concern applies in almost every aspect of this case up until late October 2013. There appears to have been a chronic lack of effective supervision of the allocated social worker who was inexperienced and dealing with a complex case. I agree with the observations made by Ms Dove about the lack of effective multi agency planning which should have been in place immediately after the initial core assessment in April 2012. Again three examples well illustrate this area of concern:
1) The initial core assessment dated 25 April 2012 is on the face of it flawed. It details the disabilities both X and the parents have, yet fails to record that in the relevant box which specifically addresses that issue. It records the parents willingness to work with all agencies so that they will be able to care for their son and then in the decision section ignores the options that would flag up further assessment or referral to other agencies and just ticks the ‘no further action box’. There is no evidence these inconsistencies were picked up in any subsequent discussions with the ATM or in any of the meetings.
2) When Ms Horrox took over the case she was clear in her evidence that at the handover a residential assessment was no longer being pursued as the mother did not agree. However other contemporaneous documents, one just a few days before she took over from the ATM is reported to state ‘the team manager and area manager have agreed a care plan that allows the mother and baby to be placed in an appropriate residential unit for further assessment’ and a letter in May refers to the mother waiting to hear about a residential assessment. It is deeply concerning that there appeared to be such a deep level of miscommunication on such a fundamental issue by two of the key social work professionals managing the case.
3) The failure to pick up in supervision (i) there had been no referral to adult services or when there was the delay of six months; (ii) to consider getting advice about how to more effectively communicate with the father; (iii) what further steps could be taken to engage the parents with support services; (iv) filing a care plan seeking adoption when a key referral to the adult disability team was still outstanding (which is not referred to in the Care Plan dated 6 September 2013 or the parenting assessment dated 17 July 2013)

(3) Not keeping an open mind about placement
74. There is a thread of evidence which points towards the local authority making up their mind at a very early stage that X could not be restored to his parent’s care and that, in reality, the options were either adoption or an SGO with his current carers. Whilst Ms Horrox said she retained an open mind, from the parent’s perspective that may not have been readily apparent to them. There is no evidence of a structure as to how that position was reached and an analysis of the options, with the advantages and disadvantages being properly weighed up and considering what support could be available for the parents. From the parent’s perspective it may have seemed an unfair process.
(4) Content of the statements filed on behalf of the local authority
75. The social work statements were far too long and, in part, unfocussed and there was a lack of balance regarding their content. For example, it was extremely difficult to find the core relevant material that underpinned the threshold criteria. There were pages of generalisations which lacked any real evidential value. The lack of balance in the way some of the information in the statement was presented is illustrated by the reference in Ms Horrox’s statement referring to the police being called by the neighbours in early December as the parents were reported to be arguing. The statement records the mother being ‘dishevelled’ is not in the referral from the police, which is the only source of the information. Also, what the statement does not record, which is in the referral document sent by the police to the local authority, is the particular neighbours who alerted the police had been previously arrested for wasting police time for making such calls. That could have been an important context that should have been set out and addressed, not just left out.
76. Another matter that arose in the oral evidence was comments made by the mother in July 2013 regarding her concerns about the paternal grandmother. Whilst those comments were referred to in general terms in the written material the detail only came out under cross examination by Ms Stone on behalf of the Children’s Guardian. Ms Horrox’s instincts were correct that information should have been recorded and disclosed. She was understandably concerned about the management of when it was disclosed, but appeared to be awaiting authorisation from some unspecified person to disclose it. It is right to record that the Court has made no findings about the concerns raised by the mother and no party has suggested that those concerns affect the paternal grandmother’s ability to care for X in the future during periods of contact.
To be fair to the social worker, the Judge outlined that these were not faults that lay entirely with her, but systemic failings
81. The court is acutely aware hard choices have to be made about limited resources but the structural failures in this case, particularly at the early stages, to properly assess the parent’s ability to be able to care for X has caused enormous delay in decisions being made about X’s future care.
82. I should make it clear whilst Ms Horrox has been the person giving evidence and been at the front line, I am satisfied on the information I have seen that the faults appear to be primarily systemic faults within the structure of the local authority. It was Ms Horrox first case where proceedings had been issued. She accepted there were delays in the disability assessments, delays in completing the relevant documentation for care proceedings. Those and other delays should have been picked up by those with responsibility for supervising her much earlier.

 

The Local Authority did take on board those failings and presented the Judge, after the judgment was delivered, with a blueprint for how they proposed to remedy those failings in the future. That doesn’t help this family, who were badly let down.

 

Having reached a broad consensus that X should live with his foster carers and under Special Guardianship Orders, there was also agreement that the Court should review the case in six months time.

62. What is being sought by the parties is for the court to retain a welfare oversight for a short period of time to assist the parties, if required, to deal with issues concerning the welfare of X. In particular to provide a legal framework which kept all parties on equal terms and did not undermine the morale of the parents and made both the parents and the local authority accountable to the court for the maintenance of a proper working relationship.

That posed a problem – how to legally structure that review?
One can easily understand that simply adjourning the care proceedings was not a palatable one, with the LA being in the driving seat, given the raft of criticisms made of them.
The eventual solution settled upon was to give the Local Authority leave to withdraw their application for care proceedings, and for the Court to use its inherent jurisdiction (if one of the parties asked them to)

64. Having considered the position I have reached the clear conclusion that in the very unusual circumstances of this case, and particularly because of the history, the court should accede to the request by the local authority to withdraw the care proceedings and invite one of the parties to issue proceedings under the inherent jurisdiction with the other parties to the care proceedings being joined as parties.
65. I have reached this conclusion for the following reasons:
1) The agreement reached by the parties was on the basis that the local authority does not pursue its findings regarding the threshold criteria and seeks leave to withdraw the care proceedings. It would be inconsistent with the letter and the spirit of that agreement, if the court went on to make findings, albeit on the lower level necessary to found an interim supervision order. The risk with that course is that it may hinder the future good working relationship between the parties which is not in X’s best interests. Particularly as there is going to be a change of team.
2) I am satisfied that the withdrawal of the care proceedings is consistent with X’s welfare. In the light of the agreement reached between the parties it would be wrong to require a trial on the threshold issues in this case. The parents accept X will be cared long term by Mr and Mrs SG under an SGO and they accept the revised care plan put forward by the LA regarding their contact. There would be no demonstrable welfare purpose in such a contested hearing. On the contrary I consider such a trial would seriously risk the positive steps made by the parties in reaching agreement. Having said that I am certainly not prepared to say on a summary basis that threshold could not have been made out in this case. As I indicated in argument, Ms Wiley’s submission at the start of this hearing that the proceedings were unlawful was ambitious and was wisely not pursued. I did not hear all the evidence and whilst it looked like the issues concerning missed medical appointments and failure to provide breakfast on one occasion during the assessment did not stand up to forensic scrutiny there were other issues, such as the parents’ relationship and the emotional care of X that would, if necessary, have required detailed consideration by the court as to whether the threshold criteria was met.
3) X’s welfare requires the parties in this case to look forward. I consider that has the best chance of succeeding if the care proceedings are withdrawn at this stage, rather than lingering on in the way suggested which may hamper the parties on the ground being able to move forward with a proper working relationship, which is what X’s welfare demands.
4) I have been informed by the parties that there are no procedural or funding obstacles in the way of the same parties being re-constituted within different proceedings. This step will not cause delay.
I am not sure that I share the same degree of confidence about funding obstacles, but no doubt some assurances had been obtained from the Legal Aid Agency. Care proceedings receive no questions asked free legal advice for parents (or at least “non means, no merits” funding within tight fiscal limits) whereas representation within the inherent jurisdiction sounds to me like it will be entirely discretionary for the Legal Aid Agency.

 

Mostyn-tacious – a judgment that makes your temples throb

 The case of Re D (A child) 2014 presented Mostyn J with a very very serious issue to try.

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/121.html

 The child, D, was profoundly unwell, with a great deal of problems.

 A very full report by a consultant paediatrician, indicates that D suffers, or is suspected to suffer, from, inter alia, sublugotic stenosis, chronic lung disease, cerebral palsy, visual impairment, epilepsy, sickle cell disease inherited from her parents, aspiration pneumonia, and gastroesophageal reflux. As a result she has suffered multiple cardio-respiratory arrests, is fed naso-gastrically and has undergone both insertion of a central line and a tracheostomy through which she is continuously administered oxygen – she is oxygen dependant. She will require 24 hour intensive care even upon discharge from hospital.

 On 2nd July 2013, there was a suspicion that D’s mother had deliberately turned off the tap which controlled the oxygen supply to D.

 There ended up being three, and only three possibilities

 

  1. The tap had not been turned off, and the medical staff who believed that it had were wrong
  2. The tap had been turned off, but it had been done so accidentally by a student nurse J
  3. The tap had been turned off deliberately by the mother

 

 

It is fairly easy to see that if a student nurse had made such a dreadful mistake, that would have some consequences. Likewise, if the Court were to find that mother had done so deliberately that would have very serious consequences for her.  Therefore, if the medical staff who believed the tap had been turned on were wrong, that would be important to know.

 

The police had undertaken a forensic exercise, but the only DNA on the tap was D’s herself. Obviously D was not capable of touching the tap, so the DNA would have been transferred there by another person touching the tap. So, the forensic evidence did not really help one way or another.

 

Here’s where things start to get complicated. Obviously, before you move to the identification of a perpetrator  (the whodunit exercise), you first want to establish whether anyone did anything.

 

Mostyn J indicated that he was satisfied that it was more likely than not that the tap HAD been turned off.

 

As he then pointed out, once he had found that it was more likely than not, the binary approach turns that into a probability of 100%.  Once a Judge finds that X event was more likely than not to have happened, then it happened.

 

The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para [2] per Lord Hoffmann.

 

And moving onto the ‘whodunnit’ part, the Court no longer takes into account that there was doubt about the first element, because it is a proven fact.  [i.e once the Court has found as a fact that an injury happened, then on considering who perpetrated it there is no longer a final option of “nobody did anything”]

 

 

Mostyn J was clearly in difficulties with that. He provided some probabilities, purely by way of example.

 

  1. Counsel for the Local Authority asks me to consider scenario (i) first. She invites me to find first on the balance of probabilities that the oxygen supply was indeed turned off and that Nurse G is not mistaken about that. As I will explain, I accept that submission notwithstanding that I have some serious concerns that I may well be wrong. I will find on the barest balance of probability that the supply was turned off. I appreciate that in a different context in Re B (Care Proceedings: Standard of Proof) at para 44 Lady Hale stated that “it is positively unhelpful to have the sort of indication of percentages that the judge was invited to give in this case”. However I do not think that prevents me from indicating, only for the sake of example, that the probability that the supply was turned off was 55% (or as the mathematicians would say P = 0.55 and Q = 0.45). Indeed, were I not to do so I believe that a serious injustice may well arise in this and other cases, for the reasons that follow.
  1. If I approach the exercise in the staged way suggested by Counsel for the Local Authority then the 55% probability which I ascribe to scenario (i) is converted by reason of Lord Hoffmann’s binary method of judging to a 100% certainty (or P = 1). What is a mere likelihood (in the true sense of the word) is transmuted into a certainty. The 45% probability that the oxygen supply was not turned off simply will not feature in the second stage which inquires into who turned it off.

 

 

What he then says, is (and indicating that he ascribes these percentage values purely for illustration) – what if the Judge then thinks that between the two remaining probabilities  (the student nurse did it v mother did it) he ascribes a 60% chance to the student nurse and 40% to mother…

 

On the traditional approach, having established that someone turned off the tap (it is more likely than not that someone did, so it becomes a judicial fact), one would then just find that it was more likely than not that the student nurse did it accidentally.

 

But if you sit down and do some maths, as Mostyn J did

 

Well, you then end up with

 

1.         The chance that the tap was not turned off and it was a mistake                        45%

2.         The chance that the tap was turned off by the student nurse 33% [that being 60% of the 55% chance that the tap WAS turned off]

 

3.         The chance that the tap was turned off by the mother       22%  [that being 40% of the 55% chance that the tap WAS turned off]

 

[That adds up, as probabilities must, in a closed system where there are no other options, to 100%.  And the largest of those probabilities is that the tap wasn’t turned off – although none of them hit the magic 51% that would show that it was MORE LIKELY THAN NOT]

 

As you can see, you get two contradictory results, depending on whether you approach the three possibilities in a LINEAR way (deciding first whether the tap was turned off, and then who did it)  or whether you calculate the probabilities of each event and THEN look at which is the most likely.

What is being illustrated here, is that if, instead of a two stage process

1. Did the event happen?

2. Who did it?

One compresses that into a one stage process

1. Is it more likely than not that person x did event y ?

 You can end up with two different answers.

 

That led Mostyn J to form these two conclusions

 

 I have already indicated that on the barest balance of probabilities Nurse G was right to deduce that the oxygen supply was turned off. The grip on the tap in the off position is distinct if slight. She has been consistent in her contemporaneous statements. She is an experienced and meticulous nurse. On the other hand, she accepted that this may well have been an event where the oxygen saturation level fell even though the oxygen was on, and that she may have jumped to a conclusion. There was a great drama happening and attention to detail may have been wanting. Having considered the matter very carefully I am satisfied, just, that the supply was turned off, but I do record that my doubts are very real.

 

[i.e that the Court finds it was more likely than not that the tap WAS turned off, although there’s a significant possibility that it wasn’t.]

 

But then

 

Having weighed all the evidence very clearly I conclude on the balance of probabilities that if the supply was turned off the mother did not do it. In the light of Lady Hale’s strictures I do not ascribe a percentage probability to this finding but I am confident in it. But it does not follow from this finding that I am concluding that J did turn the supply off by accident. Far from it. A correct application of the laws of probability leads me to conclude that in relation to her also I am not satisfied on the balance of probability that she accidentally turned off the supply.

 

 

[Explicitly finding that IF the tap was turned off, mother did not do it, but also making clear that this does not mean that the only remaining of the three possibilities – that the student nurse, J, did it, was what the Court found. In fact, that this possibility is not found either. ]

 

 

I think (deep breath) that the finding actually ends up being (though this is never baldly stated)

 

Whilst it appears that it is more likely than not that the tap was turned off, once one factors in the doubt about this, it is not more likely than not that the tap was turned off EITHER by  J, the student nurse, or by the mother, and thus no findings can be safely made against either mother OR J the student nurse.

 

 

I can see what Mostyn J is getting at here, but it is clearly problematic that a Judge faced with the exercise of hearing the evidence about a very grave allegation ends up not finding that any of the only three probabilities is more likely than not to have happened.  You end up with an odd situation that the Judge basically hints that the MOST likely of the three explanations is that the tap was not turned off, even though the only thing that he found WAS more likely than not was that the tap WAS turned off.

 

A problem here is that the case before him didn’t easily settle into a Lancashire finding – i.e that (i) it is more likely than not that someone turned off the tap (ii) the Court can’t identify the perpetrator, but that the only two possibilities are the student nurse J and the mother and neither can be safely excluded

 

The reason being that the ‘motivation’ for turning off the tap is different for the two potential perpetrators – one is an accident, and one is deliberate. So a Lancashire finding doesn’t really resolve anything.  [It is, at least arguable that if the scenario had been that either mum or dad had deliberately turned off the tap and nobody else could possibly have done it, then, a Lancashire finding would have been made]

 

 

The other problem is that whilst the numbers used by Mostyn J are arbitrary, for illustrative purposes, the residual impression is that Mostyn J considered that if the tap HAD been turned off, it was much more likely to have been by the student nurse than by the mother, that being caused simply by the numbers he plugs into his calculations.

 

That residual impression is quite a big deal for the nurse in question, and I wonder whether the human importance of what was being deliberated here got somewhat lost in the maths.

 I wonder if these arguments are going to be imported into other cases, or whether Mostyn J is pretty much the only Judge who is going to divert from the standard way of dealing with findings.

One thing is for sure, counsel appearing before Mostyn J in finding of fact cases would do well to read up a bit on probability theory and bring a calculator (and perhaps some Migraleve).  

 

 

Inherently nothing, nothing inherently

A (hopefully short) discussion about the inherent jurisdiction, particularly as it applies to adults.

I wrote about the Court of Protection popping on the High Court hat to make use of the inherent jurisdiction to get around an otherwise impossible jam, in A NHS Trust v Dr A 2013 http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html and it got me pondering.

As a quick summary, the inherent jurisdiction is a creation of the common law, i.e it was decided in cases before the Court rather than laws enacted by Parliament or regulations or codes drawn up by Ministers.  It essentially provides for the High Court to use unspecified but wide-ranging powers to solve a problem that could not otherwise be achieved by use of statutory powers. In the case of Dr A, because Dr A was detained under the Mental Health Act AND lacked capacity, and the treatment that was considered desirable for him was not in relation to his mental illness but his physical wellbeing; the construction of the Mental Capacity Act prohibited the treatment being authorised by the Mental Capacity Act, and it was treatment that couldn’t be legitimately compelled without consent under the Mental Health Act.

 

The Court’s solution was to make use of the inherent jurisdiction – as we know from that case, had they not done so, the man would probably have died, and we also know that the man went on to make a good recovery and was happy not to have died. So it was the right thing to do. But it was, nonetheless, the High Court using broad and unspecified powers to achieve an outcome that was specifically prevented by legislation enacted by an elected Government. Yes, that legislation was probably a mess and it hadn’t been properly thought through, but nonetheless, the High Court did something that the statute had specifically prevented.

So, my question is – Is the Inherent Jurisdiction a useful and helpful tool to have to allow Judges dealing with difficult cases the necessary flexibility to arrive at what they consider to be the right outcome, or is it a method by which Judges can grant themselves powers that have never been specifically handed to them?  Are we accepting that in exposure to real life, statutory laws will always have stress points and flaws and sometimes break completely and it is helpful to have the judicial Polyfilla of the Inherent Jurisdiction to come to the rescue? Or do we consider that if the UK Parliament wanted to make it lawful for Judges to make orders to sterilise patients, to effectively continue Wardship on someone who was an adult, to determine whether a person could marry, to authorise surgery on conjoined twins against the wishes of parents who were competent, to regulate the relationship between vulnerable adults and their adult son, to decide whether a parent’s views about cancer treatment should be overriden for their child, or to authorise force-feeding, that this should be done through statutory laws?   (Those are all genuine cases involving the use of the inherent jurisdiction to make such orders, and some went on to lead to the introduction of statutory mechanisms to resolve these problems)

Of course, if the inherent jurisdiction hadn’t been there, then the Court could have ended up being unable to make the decisions and orders that were deemed to be in the person’s best interests – it would have been no good to any of those individuals that the Government in four or five years time would bring about some legislation on forced marriages, or persons lacking capacity. Don’t we WANT Judges to be able to make the right decisions – they are seized of the facts, they hear the arguments – we wouldn’t want them to have to make a decision that they felt was not right for the individuals concerned merely because the law hadn’t anticipated this set of circumstances and made provision for it?

On the other side, however, it worries me to an extent, firstly because we are now getting into territories where there IS existing legislation to make provision for these things. Both the Mental Capacity Act and the Mental Health Act have very long and detailed provisions for the circumstances in which treatment can be undertaken without consent. Dr A happened to fit within both pieces of legislation – he was detained under the Mental Health Act, and was determined to lack capacity to make decisions about the feeding treatment under the MCA.  Whilst I consider that the final decision that was taken was right, and in Dr A’s best interests, I can’t get away from a nagging feeling that all of those statutory provisions and requirements were sidestepped by a Judge simply deciding that “X should be done, and I will do it under the inherent jurisdiction”

We surely needed the Mental Health Act and Mental Capacity Act so that it was clear (or comparitively clear) under what circumstances the State could interfere with a person’s life and autonomy, what would be required before the State could do so, what the checks and balances would be, what rights the person would have.  All of that seems to me to get a little lost when a High Court Judge can simply decide that they have the power to achieve the outcome they desire?

In children cases, the use of the inherent jurisdiction is moulded into the statute – it says what it cannot be used for, and gives parameters in which the State can invite the Court to use those powers. In adult cases, it is not incorporated or limited.

Sentences like this, from McFarlane LJ  (who I believe to be a fair and just Judge) still make me shudder a little   “It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”  DL V a Local Authority 2012  http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

I don’t like the notion that Judges are able to consider that they have carte blanche with these powers unless Parliament expressly take them away.  Because another way of looking at it would be – that when you are deciding on compelling medical treatment for a person who doesn’t consent to it, you are looking at whether it can be authorised under either Mental Health Act, Mental Capacity Act or the doctrine of necessity, and that if it can’t, then it simply can’t be authorised.

Once you consider that in every case where the Court uses its Inherent Jurisdiction they are in effect making a decision that the State knows best and can impose a paternalistic decision upon people overriding their autonomy, it becomes something that is potentially concerning.  I say that not because I think any of the Judges who have used it have ever done so for reasons other than genuine belief that it was in the best interests of the individual; but because I firmly believe that people should have autonomy other than in circumstances specifically set out in statute law.  I would rather preserve Judges as the referee , as the person sifting the evidence, hearing the argument, being arbiters and determiners of whether the State has made out its case for taking decisions away from the individual under statutory powers;  and not stepping onto the pitch and taking part in the match itself.

Do I think that this principle is more important than a Court being able to solve an intransigent problem in an individual case?  That’s harder to say – faced with a life or death situation like Dr A and the statutory law as written meaning that the Court would be powerless to order the treatment which it had already decided was in Dr A’s best interests, it is hard to feel that they should be denied the chance to make the right decision. I perhaps feel that using the inherent jurisdiction to Polyfilla the cracks is ultimately less good for the individual than Judges being able to go back to Parliament and say “Look, you hadn’t envisaged this scenario – I have fixed it just this once, but what do you want Courts to do if it comes up again?@

Deprivation of liberty and force-feeding

The Court of Protection grappled with a difficult issue in A NHS Trust v Dr A 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html

Apologies in advance – this is a long article, it is complex and if you don’t do mental capacity or mental health law you probably don’t need to read it.

The facts of the case involved a Doctor who began manifesting erratic behaviour, for example insisting that anyone in the colour red was a member of the Iranian Secret Police and that a book he was writing disproving evolution would make him famous after his death. Dr A also went on hunger strike, following the confiscation of his passport by the UK Border Agency.

Although one expert was of the view that Dr A’s behaviour was all an attempt to apply pressure to reverse decisions about his asylum case, the vast majority of the experts considered that he had had a genuine breakdown of his mental health.

Without going into the details too much, the Court were satisfied that Dr A was suffering from a delusional disorder impairing the functioning of his brain affecting his ability to use or weigh up information relevant to his decision as to whether or not to accept nourishment.  (And thus in terms, that he did not have the capacity to decide to refuse nourishment)

The Court then weighed up whether it was in Dr A’s best interests to receive nutrition by way of force feeding or not  – this is not a simple decision, and a number of competing factors were weighed up and considered. The Court determined that it would be in Dr A’s best interests to receive nutrition by way of nasogastric tube feeding.

However, an issue then arose about whether, having made the declaration that Dr A lacked capacity, and that force-feeding would be in his best interests, whether the Court actually had jurisdiction to compel it.

  1. I therefore conclude that it is in Dr. A’s best interests for this court to make an order that permits the forcible administration of artificial nutrition and hydration.
  1. I now turn to consider the power of the court to make the order in his best interests. The question emerged in the course of argument as to whether, in the circumstances of this case, the court had the power under the MCA to make an order for the forcible feeding of Dr. A. Subsequently, the investigation and analysis of that question has taken a considerable amount of time, both for the parties’ legal representatives and the court. It is alarming to find that the legal position on this fundamental issue is far from straightforward

 

The fact that the next part of the judgment is headed “Eligibility – a new gap?” will make practitioners in this field very nervous – the last gap went all the way to Europe, and ended up with the Mental Capacity Act and all of the impenetrability that the MCA has become in practice.

The Court had to look at whether force-feeding was a deprivation of liberty, and concluded that yes it was. This may well turn out to be important in other cases involving for example political protests,  Brady-type efforts to end ones own life or persons with eating disorders.

When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds himself. In this case, there is no dispute that subjecting Dr. A. to forcible feeding amounts to a deprivation of liberty. In order to feed him he will be physically restrained by NHS staff against his will while a nasogastric tube is inserted. The restraint continues to prevent him removing the tube. On occasions, in this process, he is sedated. He is not allowed to leave the hospital. The staff are effecting complete control over his care, treatment and movements, and, as a result, he loses a very significant degree of personal autonomy.

The issue then was whether the Court had powers under the MCA to make an order that had the effect of depriving Dr A of his liberty. This becomes very complex, very quickly, even by MCA standards.

  1. 16A(1) of the MCA are clear:

“If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.”

And then a long trawl through Schedule 1A of the MCA which sets out when a person is ineligible to be deprived of liberty under the MCA shows that the MCA can’t be used to deprive a person of their liberty if they are being, or are capable of being , detained under the Mental Health Act.

In the light of the evidence suggesting that the criteria set by section 2 MHA might be met in respect of Dr. A., it seemed to me that it was at least arguable that he was “within the scope of the MHA” and therefore, by virtue of paragraph 5 of schedule 1A of the MCA, ineligible to be detained under the MCA.

The hospital actually detained Dr A under s3 of the Mental Health Act during the interim period between the Judge asking trial counsel how the heck this could be fixed and them coming up with solutions. Did that help?

  1. The consequence of placing Dr. A under section 3 was, however, merely to accentuate the difficulties about the application of section 16A because, although removing him from the ambit of case E of schedule 1A, it put him squarely within case A. On any view, he is both subject to a “hospital treatment regime” within the meaning of paragraph 8(1) of the schedule and also detained in a hospital under that regime. In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived.
  1. Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his “treatment” under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself.

 

So, you can provide treatment to a person who is, or is capable of being, detained under the Mental Health Act, in accordance with the MHA  BUT if the treatment isn’t capable of being provided under the MHA you cannot then turn to the MCA as being a vehicle for providing that treatment even if the person does not have capacity and the Court has declared that the treatment is in their best interests, because of Schedule 1 A of the MCA.

Sorry, this is going to be  complex, it takes about five pages of going through the Act itself to get to that point – the Judge was so exasperated by what he described as  the ambiguity, obscurity and possible absurdity of the legislation, that he authorised counsel to look at the Parliamentary debates in a Pepper v Hart exercise to see if this idiocy was what Parliament had intended, or whether it was a cock-up.  (Judges hardly ever embark on the exercise of looking at what Parliament said about the construction of the Act  – it’s that Otto von Bismarck  “laws are like sausages – it is better not to see them being made” thing)

  1. The Official Solicitor now suggests three solutions to the problem described above:

(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.

(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.

(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court’s inherent jurisdiction.

I shall consider these options in turn.

Authorising the treatment under the Mental Health Act

Understandably, the Official Solicitor cited the Ian Brady case as authority for the suggestion that force-feeding can be authorised under the Mental Health Act.

This is the key passage in the Brady judgment that sanctioned his force-feeding under the MHA  (a decision that frankly, I found a bit ‘iffy’ at the time, going much further than traditional views that one can forcibly treat the mental disorder but not physical disorders under the MHA)

71.   “On any view, and to a high degree of probability, section 63 (MHA) was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder.”

The medical evidence in this case did not back that up

In this case, therefore, the clinicians treating Dr. A. feel strongly that artificial nutrition and hydration and ancillary treatment are, on the facts of the case, treatment for a physical disorder, starvation and dehydration, and not for the underlying mental disorder. Dr. A. is not suffering from an eating disorder. Whilst feeding him may make him feel better, it is not treating him for a mental disorder as it would be were he suffering from anorexia nervosa.

  1. On this point I have found the views articulated by the treating clinicians, and in particular Dr. WJ, persuasive. She does not consider that the administration of artificial nutrition and hydration to Dr. A. in the circumstances of this case to be a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady.
  1. I also accept the submissions put forward by Miss Paterson, and acknowledged by the Official Solicitor, that it is generally undesirable to extend the meaning of medical treatment under the MHA too far so as to bring about deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA. I recognise the need for identifying, where possible, a clear dividing line between what is and what is not treatment for a mental disorder within the meaning of the MHA; but I venture to suggest that in medicine, as in the law, it is not always possible to discern clear dividing lines. In case of uncertainty, where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court to approve the treatment. That approach ensures that the treatment given under section 63 of the MHA will be confined to that which is properly within the definition of section 145 as amended. It would help to ensure that patients with mental disorders are, so far as possible, treated informally rather than under section. Finally, it ensures compliance with Article 8 and provides the patient with a more effective remedy than would otherwise be available, namely a forensic process to determine whether the treatment is in his best interests.
  1. I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr. A. under the MHA

Authorising the treatment under the MCA, by interpreting it in light of the Human Rights Act

I liked this argument, it is clever. If the MCA as drafted, puts a Court in a position of not being able to protect the right to life of a person who the Court has determined does not have the capacity to refuse treatment which would save his life, the Court ought to interpret the MCA in such a way that it does NOT clash with the article 2 right to life. And using the powerful tool of s3 (1) Human Rights Act to do so

Under section 3(1) of the Human Rights Act:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

 

  1. The second basis on which the Official Solicitor invites the court to authorise the forcible feeding of Dr. A. is under section 16 of the MCA. He submits that the provisions of the MCA read in compliance with the Human Rights Act and the European Convention permit the court to take this course. Mr. Moon and Miss Street submit, first, that, so far as it is possible to do so, the MCA must be interpreted so as to be consistent with the best interests of the person lacking capacity (section 1(5) of the MCA). Unless the court authorises the forcible administration of artificial nutrition and hydration to Dr. A. he will die. The court is thus under an obligation to interpret its powers in a way that ensures his life is saved.
  1. It is submitted by Mr. Moon and Miss Street, however, that the obligations on the court go further. Under Article 2 of the European Convention of Human Rights “everyone’s rights to life shall be protected by law”. Amongst the duties imposed on the State by Article 2 is the so-called “operational duty” requiring the State in certain circumstances to take preventative measures to protect an individual whose life is at risk: Osman v. United Kingdom [1998] 29 EHRR 245.

 

 

But it is still No

  1. The course proposed by counsel, though in some ways attractive, involves reading into section 16A a provision that would have the effect of fundamentally altering its clear meaning. The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment:

“Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” [my emphasis]

In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.

  1. I acknowledge, of course, my obligation under section 6(1) of the Human Rights Act not to act in a way that is incompatible with that Act. Were it not for the availability of the inherent jurisdiction, I might be more inclined to adopt the course proposed above or to arrange further hearings before making a decision. Happily, however, for the reasons I will now explain, I am satisfied that the powers available to me under the inherent jurisdiction enable me to comply with my obligations under that section.

Inherent jurisdiction then?

The Judge set out the body of authority which endorses the view that the Court hold an inherent jurisdiction in relation to adults just as it does for children, ending with the most recent authority.

90.   Confirmation is provided by the more recent decision of the Court of Appeal in DL v. A Local Authority [2012] EWCA Civ. 253 in which Davis LJ said at paragraph 70:

“Where cases fall precisely within the ambit of the MCA 2005 and are capable of being dealt with under its provisions there is no room for – as well as no need for – invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the MCA 2005, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute.”

  1. The issue is considered at greater length in the judgment of McFarlane LJ who, in reaching the same conclusion, pointed out the MCA contains no provision restricting the use of the inherent jurisdiction in terms of those found in section 100 of the Children Act 1989, “Limited use of Wardship and Inherent Jurisdiction in matters relating to Children”. On this, McFarlane LJ said at paragraph 61:

“It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”

In essence, if Parliament wanted to stop the use of inherent jurisdiction to creatively solve problems, they need to legislate this explicitly.

This is the cunning argument deployed  (which involves assuming that when the MCA says “Court” it means only the Court of Protection, not the High Court, even though in practice, as here, it is likely to be the same Judge, sitting in the same room, who just metaphorically puts on a different hat for a moment.

 

93.   (1) The prohibition on making an order which authorises the person being deprived of his liberty is expressly restricted to the Court of Protection exercising its statutory jurisdiction under the MCA and is not, but could have been, extended to the High Court exercising its inherent jurisdiction.

(2) Following McFarlane LJ in DL, the clear implication is that Parliament did not intend to prevent the High Court exercising its jurisdiction to make an order in the best interests and in order to uphold the Article 2 rights of a person lacking capacity in the circumstances of a case such as this.

(3) Furthermore, Parliament cannot have intended to remove the safety net from a person lacking capacity who requires the orders sought to be made in order to prevent his death.

(4) The relevant concept is his ineligibility to be “deprived by this Act” (section 16A(1) and schedule 1A at paragraph 2).

(5) If a person is ineligible to be deprived of his liberty by the MCA, section 16A provides that “the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. In this provision:

(a) “The court” means the Court of Protection; and

(b) “the welfare order” means an order under section 16(2)(a) of the Mental Capacity Act by the Court of Protection.

I agree with those submissions.

So, having determined that the Court had power under the Inherent Jurisdiction (which is like the legal equivalent of Duct Tape, or perhaps more accurately Polyfilla to cover up the cracks), the Judge then had to consider whether he should go on to use that power.

  1. the court, as a public authority, cannot lawfully act in a way that is incompatible with a right under ECHR. I accept the submission that I am under an operational duty under Article 2 to protect Dr. A., a man who, as I have found, lacks capacity to decide whether to accept nutrition and hydration against the risk of death from starvation. By making the orders sought by the Trust under the inherent jurisdiction, I will be complying with that operational duty.
  1. In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Article 5. Unless and until this court or another court clarifies the interpretation of section 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under section 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA 1983 and (b) involves the deprivation of a patient’s liberty.
  1. Under that jurisdiction, I am satisfied, for the reasons set out above, that an order for forcible feeding of Dr. A. is in his best interests. I therefore make the orders sought by the applicant Trust, that is to say declaring that it shall be lawful for the Trust clinicians to provide Dr. A. with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and further declaring that, insofar as those measures amount to a deprivation of liberty, they shall be lawful.

An elegant fix of a mess caused by Parliament.

There is a postscript update on Dr A, which may be of interest

98.   On 1st July 2013 (before the transcript of the judgment was finalised) the Trust notified my clerk that Dr A had returned to Iran, having made, in the doctors’ opinion, a capacitous decision to do so. I received statements from Drs R and WJ and correspondence from the parties, detailing the clinical decisions and events, which preceded his departure. I am informed that Dr A had continued to be provided with artificial nutrition and hydration requiring restraint. He also received amisulpride, an anti-psychotic. His mental state gradually improved, in response to the medication. Dr A started drinking and eating voluntarily on 8 and 10 May respectively. His weight returned to a level within a normal range. The Trust states that Dr A first mentioned he was returning to Iran on 23 May 2013. He made the final decision on 4 June 2013; after taking medical advice and legal advice from his immigration solicitor. On 14th June 2013 Dr WJ rescinded Dr A’s detention under section 3 MHA; his mental condition having continued to improve. He returned to Iran on 24 June 2013. I will now make an order concluding these proceedings, discharging the declarations and the order for a review hearing.

Rubric’s revenge

I wrote yesterday about the murkiness and lack of clarity of what a parent can or can’t say post proceedings, particularly in a case where they were successful and the Court found that the LA had treated them badly.

And most, if not all, of the control of that  was pinned on the “Rubric”, the preamble wording under which the Judge releases an anonymised transcript.

Well, lo and behold, here is another one, in the case of Re E (A Child) 2013 (which is a really absorbing case, and I will come back to it, but it will take a while to fully absorb)

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2400.html

This judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of the family must be strictly preserved.

This does not prevent the parents from identifying themselves and the child in the event that they wish to discuss and/or publicise what has happened to them and their family in the course of these proceedings and beforehand.

Now, I am both a lawyer, and a pedantic git, and a lover of labyrinthine legal language, but I have to confess that as a result of those two paragraphs, I would not be certain whether the parents definitely could go on This Morning to talk about their experiences in this case using their real names.

It seems to me that the second paragraph says that they can (in fact, I am fairly sure it does, but fairly sure isn’t great when you are wondering whether what you are about to do is or isn’t a contempt of court), and the second paragraph specifically says that nothing in the first paragraph prevents it, but now I don’t see the point of the first paragraph.

Does the first paragraph (in light of the second) mean nothing more than “nobody else can OUT these parents, but if they choose to OUT THEMSELVES, they can” ?   Or does it in effect mean nothing more than “You can publish this transcript of judgment, but you can’t publish it in a way that takes out all the “E” “M” and “F” and replaces those with the real names?”

Or something else entirely?

My gut feeling is that the family, much as with the Websters, are probably permitted by the rubric to publicise the facts of their case, using their own names, if they so wish.

Having said that, whilst the paragraphs suggest that the parents can go onto This Morning and name themselves and the child and talk about the case, paragraph one looks to me like it still bites on the producers of “This Morning” or the editor of the newspaper deciding whether to actually publish the interview in which they do it. Paragraph 2 doesn’t permit the producers or editors to ignore para 1. I don’t think that can be what was intended, but again, if I were being asked by the producers of This Morning whether they were good to go on running the peace, I’d have to say that I think they are okay, if the parents themselves identify their names, but I’m not sure. I definitely wouldn’t put up a caption of the parents names or introduce them – the parents would have to say their own names before Pip and Holly use them.

[For the avoidance of doubt, my own view would be that they SHOULD be able to do this - where the child is as young as this, and they were exonerated of all allegations of harm and there are important lessons for professionals to learn, they should.  Only by doing that will a case of this kind, where "Child rescue" overrode "Family Preservation" get the same sort of media attention as say the Daniel Pelka case where things may have gone wrong in the other direction. If we only get media reporting of the State failing to act, and not of the negative consequences of the State taking action, the debate and policy arising from the debate can be badly skewed]

“If you ever go across the sea to Ireland”

 A discussion of two cases dealing with parents who fled to Ireland to avoid pending care proceedings. We are having a curious burst of the Higher Courts dealing with similar issues coincidentally in batches, and this is another example.

The longer judgment is in  Re LM (A Child) 2013, a High Court decision determined by Mr Justice Cobb

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/646.html

and the shorter is a Court of Appeal decision

 Re OC and OE (Children) 2012 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/162.html

 

In the Court of Appeal case, the Local Authority had concerns about the children, though probably not sufficient to warrant removal, and the mother fled to Ireland with them. The LA sought Interim Care Orders and a return to the jurisdiction. The Court of Appeal agreed that the English Courts had jurisdiction and that making orders compelling the return of the children to the jurisdiction was correct, but reminded themselves, that the status quo prior to the move to another country ought to be restored, and that the Judge had erred in making Interim Care Orders and sanctioning removal of the children in the absence of (a) the parents being there to oppose and (b) the LA demonstrating that the grounds for removal were made out.

 

I felt for the LA lawyer,  “their advocate frankly conceded to the judge that he was not operating in legal territory familiar to him”   and of course, LA lawyers don’t tend to be specialists in international law. If we were, we would wear much more expensive shoes, and work shorter hours.

 The Re LM case is probably more interesting.  Justice Cobb sets out the background here

 

  1. In June 2012, AM (hereafter “the mother”), then in an advanced stage of pregnancy, travelled with her husband, MM (hereafter “the father”) to the Republic of Ireland. In the following month, she gave birth to a baby girl (“LM”). LM is the mother’s fourth child. The mother’s older three children have been the subject of public law proceedings in this country, and are subject to public law final orders, all in kinship placements away from the mother.
  1. At this hearing, in London, the mother told me that she and her husband made that journey to Ireland “purposely to avoid my child [i.e. the baby] being stolen” by the local authority who had taken proceedings in relation to her older three children. It is common ground that this local authority would indeed have issued care proceedings in relation to the baby, had the mother remained in their area.
  1. The mother went on to tell me that “unfortunately” their plan has “backfired.”

 

The plan backfired, because the authorities in Ireland issued their equivalent of care proceedings, and the child was placed in foster care. Having fled there only to avoid care proceedings, the parents had no real interest in staying or living in Ireland – the mother came back to England [although to a different LA than the one she had been living in, and which was 200 miles away] , the father for work purposes moved to Scotland. That obviously had a huge impact on their contact.

 

It was therefore the mother’s application for the proceedings relating to the child to be brought into the English jurisdiction.

 

The High Court went on to identify the main aims of the judgment, and one of them is particularly noteworthy (I know that the ‘flee to avoid proceedings’ is a common school of thought on the internet, and Ireland has been a popular choice – proximity, no language barrier, and their constitutional opposition to adoption being key factors in this. In this case, it seems that it was discussion on the internet that led mother to make that decision to flee to Ireland )

 

  1. This judgment serves two principal purposes:

i) It discusses the legal and practical complications arising in seeking to achieve a transfer of jurisdiction in these circumstances;

ii) It seeks to provide solutions in the instant case, to achieve the move of LM to this jurisdiction in the near future, and the transfer of care proceedings to this Court, initially to the Family Division of the High Court.

  1. This judgment further serves to highlight how futile, and potentially damaging to the infant child, was the course which the parents embarked upon in June 2012. I am advised that there are other parents who have considered leaving this jurisdiction (and indeed been advised by campaigning groups to do so, as the mother indicated she had been) to avoid public authority intervention in their lives, and to achieve some juridical advantage through process in the Irish Courts. Quite apart from the fact that the parents themselves in this case apparently soon came to realise that this was not a good solution for LM or themselves, this judgment will underline how effectively the Courts of England and Wales and the Courts in Ireland, and the public authorities in each State, are able to co-operate to achieve the transfer of a child, and the public law proceedings concerning that child under the Council Regulation (EC) 2201/2003 of 27th November 2003 (hereafter ‘BIIR’), where it is demonstrated to be in the interests of the child to do so. The approach of the English Courts and the Irish Courts appears to be similar; the Irish Constitution exhibits no intention to establish Ireland as a sanctuary for families from other jurisdictions: see the Irish Supreme Court’s decision in Nottinghamshire County Council v B [2011] IESC 48 (at paragraph 72, per O’Donnell J.).

 

[The Irish case is worth reading, and I had not encountered it before. It sets out the very interesting analysis of the Irish constitutional situation with regard to adoption, particularly adoption of children of MARRIED couples http://www.bailii.org/ie/cases/IESC/2011/S48.html    which would probably be an entire article on its own. There certainly has been a school of thought, which this judgment corrects, that the Irish Courts and authorities could not and would not sanction a return of a child to a jurisdiction where adoption was a possible consequence of that return. It is rather more complex than that, and at the very least, the Irish courts would need to be satisfied that the risk of adoption was a very real and proximate one, rather than a possibility ]

The procedure is another Article 15 of Brussels II one [you may remember my recent blog on the Slovak case where the Slovak authorities used it to take over proceedings that were very advanced in the English Courts]

 

http://suesspiciousminds.com/2013/03/22/ambassador-with-these-brussels-2-applications-you-are-really-spoiling-us/ 

For that reason, I won’t set out all of the principles again. (Phew)

 

  1. At this hearing, on the matters relevant to and consequent upon the Article 15 transfer request, the position of the parties is as follows:

i) The mother: The mother initially proposed, and continues to support, a transfer of the proceedings to this jurisdiction, stating that it is clearly in LM’s interests that such a transfer should be effected. Towards the conclusion of her submissions, she appeared to suggest that her agreement to the Article 15 transfer was in fact conditional upon the receiving authority being identified as Y County Council rather than X County Council. I note the mother’s position in this regard and discuss it further below. That her acceptance of transfer is said to be conditional on the identification of a specific local authority as applicant in this country is of no real consequence, given that effective transfer relies on ‘acceptance’ by one party only to the Irish proceedings; in the instant case, the HSE has indicated its unconditional acceptance.

ii) The father: By letter dated 6th March 2013 from the father’s Irish solicitors, I was advised that he “continues to support his wife’s Article 15 request and consents to the transfer of the public law proceedings in their entirety to the jurisdiction of England and Wales. Our client is content that his position be confirmed by Counsel on behalf of the HSE to the English court on 12th March 2013.” In fact the father attended, from Scotland, for the second day of this hearing and confirmed that he supported the transfer but (corresponding to the position of his wife) wished me to identify the proposed applicant authority as Y County Council;

iii) The HSE: The HSE unconditionally ‘accepts’ the transfer and supports the court taking effective steps to achieve transfer of the proceedings to this jurisdiction; it invites me to be satisfied that it is in the best interests of LM that the proceedings are so transferred; the HSE is neutral on the identification of the appropriate ‘receiving’ authority;

iv) The Guardian ad Litem in the Irish proceedings: The Guardian, by letter dated 11th March 2013, confirms that it is her opinion:

“that the application being made is in the interests of [LM] and should be proceeded with as a matter of urgency ….”

The Guardian expresses her concern that “a transition plan” should be devised to achieve the physical transfer of the infant LM to this jurisdiction ideally to “a long term placement …. should the decision outcome of care proceedings in England and Wales be that [LM] remain in long term State care”. She supports a transition plan “strictly on the basis that” LM is placed in the care of a specific local authority (she had proposed X County Council) and recommends that a Guardian ad Litem be appointed for LM.

And then

 

  1. The request for transfer under Article 15 was further predicated upon a conclusion that it is in LM’s “best interests” for the transfer to be made to this court. It is suggested on behalf of HSE that the best interests test is amply satisfied by a combination of the following factors, in summary:

i) LM is British; her parents, siblings and kinship carers are British.

ii) LM has no family in Ireland. Her only connection with Ireland is that she is physically present there because of a tactical international move made by the mother to avoid the jurisdiction of the English courts.

iii) The mother is now in this jurisdiction and has indicated a wish to remain here. Were LM to be returned to this jurisdiction, this would render easier the facilitation of contact between her and her mother. Assessments of family relationships will be more effective if mother and daughter can be seen regularly together;

and

iv) The background history of LM’s older half siblings originates entirely in the area of X County Council; this evidence is likely to be important in any determination of LM’s future care

 

 

[You will note that HSE, who are the Health Service Executive of Ireland, were agreeing to the transfer of jurisdiction, thus showing comprehensively that the theory that Irish authorities are constitutionally bound to stand guard over parents who might run the risk of their children being adopted and ensure they are not removed, doesn’t work in practice, much as the “freeman of the land” devices don’t actually work in practice]

The case then got into a consideration of which of the two local authorities in England (the one mum had fled from, or the one in which she was now living) would be responsible for the new proceedings.

 I won’t repeat any of that argument, as the authorities are all well known, but I did like Justice Cobb’s asides here

 

The hopes of Thorpe LJ in the Northamptonshire case that the statutory sub-sections could provide “a simple test” to be “operated by the court in what should be the unlikely event of dispute, to determine which Local Authority is to be responsible for the care plan and its implementation” (p.891A) have not entirely been fulfilled, as the subsequent case-law demonstrates. What he hoped would be a “rapid and not over sophisticated review of the history to make a purely factual determination” (p.890G ibid.) in any given case has equally proved forlorn.

 

 

On the facts of the case, the Court found that the designated authority was the one that mother had originally fled from and that she had not become ordinarily or habitually resident in the new one (she was effectively sofa-surfing)

 

The role of the Court in assessing alternative medical treatment

 

 A discussion of  An  NHS Trust v SR 2012

 

 

This case made a lot of the national press over the last month, and I wanted to wait for the judgment before discussing it.  It involves a child who is seven years old and has cancer, and a mother who disagreed with the proposed medical treatment and removed him from hospital.  You may recall that the mother and child then went missing, and the High Court took the unusual step of identifying them in the press so that they could be located, and an interim care order was made to convey the child to hospital once the child was found. The mother was prepared to speak to the press and put forward her arguments as to why the proposed treatments were not in her child’s interests.

 

The Court were asked to resolve this dispute and made orders directing that the hospital could undertake the treatment they wished to. 

 

[That decision was made potentially more simple by the parents disagreeing about whether the medical treatment should or should not happen, so the Court were in a position to treat it as a dispute over the exercise of parental responsibility, rather than both parents being adamantly opposed to treatment]

 

[Caveat - although I might well know some of the people who were involved in this case, I have not discussed it with any of them, and the discussion here is purely my own thoughts arising from the judgment]

 

The case can be found here :-

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3842.html

 

 

Mr Justice Bodey sets out the factual background very succinctly, and I do not hesitate to steal his construction

 

  1. This is an application by an NHS Trust in respect of N a boy aged 7, who is suffering from a Medulloblastoma, a malignant brain tumour. The consultant paediatric oncologist “Dr A” and his multi-disciplinary team of child cancer experts at the hospital treating him (a recognised centre of excellence) are of the opinion that following surgery he now requires radiotherapy and chemotherapy. Generally speaking such a treatment package has about an 80% success rate, sometimes put at 86%.
  1. N’s father (whom I will call “the father”) agrees with the advice that radiotherapy and chemotherapy should now be delivered to N as soon as possible; as does N’s Guardian from CAFCASS who represents N in these proceedings. However, N’s mother (whom I will call “the mother”) does not consent, believing that there are alternative methods of treatment which should be used and which would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. Since a child is unable to give the necessary consent for medical treatment, such consent is usually given by one or both parents. In law, medical professionals can act on the consent of either parent. However, when the matter is a very serious one and the parents cannot agree, it is accepted that an application will or may need to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence this present application by the NHS Trust concerned to the High Court to determine the issue of N’s treatment following on from his brain surgery.

 

 

It is important to note that this is not a case where the mother was in denial that the child had an extraordinarily serious medical condition, nor one where she was flatly refusing that he should have any form of treatment, but rather that she felt that her reasons for opposing the radiotherapy and chemotherapy were compelling and persuasive, and that she was acting properly as a parent in objecting to them.

 

The Court had to deal with the mother’s reservations about the treatment and her alternative proposals. There was clearly an interesting day in Court where eminent cancer specialists were cross-examined by Queen’s Counsel about alternative therapies.   {The underlining for emphasis here is my own}

 

 

 

 

  1. Yesterday, Thursday 20th December 2012, the court sat again for further consideration and determination of the issue about radiotherapy. Early on, Mr Peddie QC handed up a report dated 19th December 2012 by a Dr D. Usually rules apply about expert evidence, such that the expert’s expertise is checked by the court in advance for its relevance and then his or her report, when prepared, is shared between all parties. Arrangements are made for the experts to meet or speak in advance, so to narrow the issues between them and thus their evidence is able to be dealt with in an orderly way. However, in proceedings of this nature and urgency, that is not always possible and in practice substantial latitude is allowed – although this may make, as here, for a somewhat disorganized hearing. Dr D’s statement makes clear that he is not a medical doctor and he does not purport to be so. His CV refers to him as ‘an internationally acclaimed expert in agricultural, environmental and health sustainability’. His work has focused on diverse issues including ‘the development of natural and sustainable approaches to health care’, and also to ‘the development of sustainable agricultural systems, the reduction of synthetic chemical load among urban and rural communities and the protection of natural ecosystems’. He sets out a number of alternative treatments and therapies which exist, but which I do not need to go through here, and he gives the names and addresses of a number of Harley Street doctors who practise complementary or alternative medicine. Mr Peddie cross-examined Dr A on these various alternative procedures referred to by Dr D, seeking to show that they are worth looking into further, as being actual or possible treatments suitable for N. Dr A dismissed the applicability of all of them here, explaining that they are either experimental, or else used with patients who are already in relapse, or who are otherwise unable to be treated with standard doses of radiotherapy and / or chemotherapy. None of the techniques put to him have, he said, been subjected to the rigorous clinical trials which would need to have been carried out before approving a course of treatment for a child. (The case of an adult is different, as he or she can weigh risks and take his or her own decision as to his or her preferred treatment).
  1. Late yesterday afternoon, Miss Butler-Cole asked the mother in cross-examination about her (the mother’s) folder of material on which she (the mother) was appearing to rely in the witness-box when referring to thousands of children who have survived cancers without mainstream treatment, including radiotherapy. It was arranged that overnight M would chose and produce the two papers or reports which she was putting forward and relying on as being the most supportive of her stated case about the existence of credible alternative treatments. That has been done this morning. Mr Peddie has cross- examined Dr A about her two chosen papers. To put it shortly, neither paper supports the suggestion that there should not be radiotherapy and chemotherapy for N. One of the reports is concerned with studies carried out as long ago as 1987 to 1994, which attempted reduced radiotherapy but which in fact turned out to be rather unsuccessful; and the other paper is actually one upon which Dr A is in any event basing the proposed treatment package for N. Nothing has been produced from the mother’s folder supporting the suggestion that there are Chinese or Russian or other reports which speak to thousands of children surviving cancers without mainstream treatment, including radiotherapy.
  1. The underlying issue is, as I said at the outset, whether radiotherapy and chemotherapy are in N’s best interests? The advantages have to be balanced against the disadvantages (of which there are several and to which I will come back). The “gold standard” orthodox approach contained in the CCLG guidance (the Childhood Cancer Leukaemia Group to which oncologists in this country belong) is that a package of radiotherapy and chemotherapy is necessary to produce optimum survival rates. Much research, investigation and deliberation by cancer experts over decades has determined the minimum dosages to produce maximum survival rates, with the minimum possible detrimental consequences as regards quality of life. Before radiotherapy was developed during the course of the last century, patients who had N’s cancer invariably or almost invariably died in spite of surgery.
  1. Various research papers have been placed before me and have been discussed in evidence. I do not need to descend to the detail of them, although I have read and carefully considered them. One particular statistic was extracted by Mr Tolson QC and is adopted by Mr Peddie QC. It is based on studies of infants (children under three years of age) who were treated by way of chemotherapy alone, that being reasonable treatment for that particular age group, since the detrimental side-effects of radiotherapy for children with developing brains are far worse than they are for children aged around 7, whose brains are that much more developed. Extrapolation from the studies concerned, being in respect of a different age group to N, is not therefore necessarily reliable in any event. The statistics relied upon on behalf of the mother are that with chemotherapy alone, 35% of the infants in the study achieved “event-free” survival at five years (i.e. survival without relapse) which compares with 80% of those who received both radiotherapy and chemotherapy. The statistic for “overall survival” at five years (i.e. the combined total of those infants who had not relapsed plus those who had relapsed) is tabulated as being 67.5%. That appears to compare quite well with the figure of 80% for those infants originally treated with both radiotherapy and chemotherapy (being only about 12.5% lower). However that figure of 67.5% for “overall survival” (set out under the heading ‘chemotherapy only’ in Mr Tolson’s table) in fact includes all those infants who had relapsed after treatment with chemotherapy alone and who had only survived to the five year point by being ‘rescued’ by subsequent radiotherapy and by further (and often more aggressive) chemotherapy. The disadvantages of radiotherapy are much the same whether it is administered as a first-line treatment or as a second-line ‘rescuing’ treatment after a relapse. Thus whatever the statistics may appear superficially to show, there is in fact a significant tested and reported difference regarding the survival rate of infants as between whether they are treated with chemotherapy only, or whether they have both radiotherapy and chemotherapy. Such tests do not exist in respect of children of N’s age because it has not been considered ethical, since radiotherapy began to be used, to treat them without it. There is another all-embracing series of studies which reports on the outcomes without radiotherapy, measured at 8 years on, as being lower still: 27% “event-free survival” and 42% “overall survival”. I add for completeness that the figures under discussion assume treatment starting without undue delay, which is not N’s situation now; his rate is likely to be or may be somewhat lower than it would have been, whether treated with radiotherapy followed by chemotherapy, or with chemotherapy only

 

 

It is fairly clear from that that the medical evidence was strongly in favour of the appropriate course of action for the child being that recommended by the hospital.   (Of course, as we know, today’s medical orthodoxy can become tomorrow’s discredited leech therapy, but the Court have to make decisions on the facts as best they know them)

 

That was one limb, the efficacy of the radiotherapy and chemotherapy as against alternative therapies. The second was comparing the negative consequences of the therapies, and here the mother made more headway

 

  1. I now turn to the disadvantages of the proposed treatment package, in particular radiotherapy. I put it that way because radiotherapy was the live issue when most of the evidence on the point was given on 7th December, 2012, since the mother was not then opposing chemotherapy. Dr A has from the outset acknowledged the existence of the detrimental side-effects on patients which the treatment package recommended by him and his colleagues has. As regards intellectual and cognitive impairment, his evidence was originally that one can expect to see about a 4 point per annum IQ loss over each of the four years after treatment, although it could be less or more. He thought there would be some intellectual detriment from radiotherapy, although said it could be minimal. Subsequent research by him has produced a later paper which suggests a very much less significant decline in IQ. He accepted that radiotherapy would decrease anyone’s chances of ‘growing up to be a lawyer or doctor’, but said that he has treated many patients with this disease using the standard treatment he recommends for N and that they even go to school with some additional help, play sports and do the normal sort of things which others do who have never had the disease. Generally, he said they cope pretty well with the side-effects. He expressed concern that the reduction in cognitive function attributable specifically to radiotherapy has been overstated. He did not consider that there would be any effect on the N’s personality.
  1. As regards hormonal detriment, Dr A accepted that there could be impact to the growth hormone, although he said the progress of the child is monitored and hormone replacement therapy is routinely given. Generally speaking, therefore, any loss of growth ‘…would not be noticed in the street’. As regards the thyroid, Dr A told me that a negative impact is much less common. It can make the patient more lethargic and cause a weight increase, but again this is monitored and is dealt with by tablets. As to fertility, Dr A accepted that there are risks of sub-fertility or infertility. He said that older patients are usually counselled to the effect that ‘…there is a risk of sub-fertility which, at its worst, could mean that you cannot have a child’. Nevertheless, he advises older patients to take contraceptive measures. Further, Dr A pointed out that chemotherapy (which, as I say, the mother was accepting) has a greater role to play in threatening fertility, roughly 60 to 70%, as compared with radiotherapy’s role of perhaps 30 to 40%. As regards the risks of secondary malignancy later on in life, Dr A accepted that such a risk exists. The most common such cancer is benign and therefore normally treatable by surgery. In ‘ballpark’ terms, he placed the risk of later-life cancer (of all types, benign and malignant) at a figure of some 2% to 4%, although the individual might have suffered such cancer in any event. There are one or two other downsides to the suggested treatment which I have well in mind, but do need to go into individually.
  1. I have heard Dr A give evidence at length. He has been a consultant paediatric oncologist for 10 years, with hands-on responsibility for child patients. His knowledge and experience of the subject matter is highly impressive, as would have been obvious to anyone in court. He and his team work at the cutting-edge of this discipline, anxious to keep up with the developing techniques as they are tested and reported on, both here and elsewhere. He told me how the team strives to strike the necessary balance in giving their children treatment which has the best possible rate of survival, but with the least possible detrimental side-effects. Having seen and heard Dr A, I find it hard to see that he and specialists like him would keep back or fail to explain the possible benefits of credible alternative therapies which work, or might work, for such very ill children. He told me of ongoing trials in the USA aimed at further reducing the standard dose of radiotherapy, but explained that these will not be reported upon until about 2016. For the moment, he regards the idea of using chemotherapy alone as ‘a big risk and a big gamble…reducing the prospects of survival by an experiment’. I accept Dr A’s evidence and I reject any suggestion that he has minimised the disadvantages of the recommended treatment package. I find that he has shown dedication to this case and therefore to N’s best interests, devoting much time to it, beyond the call of duty. He has been in court and available to assist throughout the hearings, except during the delivery of this Judgment. He has answered many questions both in court and outside court in writing, some inevitably rather repetitive (due to the change of legal representation) doing so clearly and with patience. I am satisfied that he has done his best to assist the court neutrally and fairly.
  1. The mother, having heard Dr A’s evidence and being asked whether it affected her view on radiotherapy replied that, following upon her many hours of research, she still feels there are other ways to treat N. She told me that to her mind the orthodox view of oncologists is the product of indoctrination. I cannot accept that. I find it on the evidence before me to be the best we have at the present time to deal with what the mother’s own expert, Dr X, described to Ward L J as ‘…a highly malignant disease’, and one which will very probably cause death if not conventionally treated. It may well be that some of the complementary techniques which the mother has in mind, for example as to diet and lifestyle, or as to oxygen therapy, can beneficially be used in conjunction with the mainstream therapy proposed. Dr A said he and his team have no problem with this and can work with parents along those lines, so long as the alternative suggestions do not conflict with or disrupt the primary treatment.
  1. The mother has been through a very stressful time. What the parents have suddenly had to confront over the past two or three months is every parent’s nightmare. I have every sympathy with them; and with the mother in not wishing to see N subjected to the risks and side-effects which conventional treatment carries with it. Her wishes and views as a parent are obviously an important part of the balancing exercise, both in their own right and because of their potential effect on N. But I am worried that her judgment has gone awry as to the extent of the seriousness of the threat which N currently faces. As I have said, she did originally agree to chemotherapy at the hearing on the 7th December, 2012; and, when Mr Peddie made his submissions at the end of this hearing, he spoke of her continued agreement to it, although in her evidence I noted her disagreeing to it, alongside her continuing objection to radiotherapy. During the course of Ward LJ’s judgment at the telephone hearing three nights ago, he observed that “… the mother is becoming increasingly implacable” and I too have the perception that her approach has hardened as these stressful days in court have gone on. It concerns me that she may have become somewhat overwhelmed by the process whilst this case has been in court, which is most unfortunate from N’s point of view. I express the hope that, when she has had time to stand back and reflect upon his best interests, she will come to terms with the court’s decision (as she told me at the first hearing she would) and support him through the very difficult times ahead. N clearly needs both his parents to be pulling together alongside the treating team and nothing could be worse than for him to pick up on any sense of maternal opposition to the treatment.

 

 

The Court had to make a decision, and the decision was fairly easy to predict

 

It will be obvious from the above what I have decided should happen. I accept the submissions of the father, the NHS Trust and the Guardian. The balance of advantage and disadvantage tilts well in favour of radiotherapy and chemotherapy, notwithstanding the detrimental side-effects. One cannot enjoy even a diminished quality of life if one is not alive. I shall therefore make a Declaration that the treatment package proposed by the NHS Trust is lawful.

 

 

 

There was then an issue about whether that should be a final decision, or whether the treatment should commence but be reviewed, with mother having an opportunity to fully assemble her evidence of the case both for her alternative therapy/treatment and against chemotherapy and radiotherapy  {Again, underlining for emphasis is my own}

 

 

  1. The question then arises as to whether this should be a final decision, or whether I should give the mother a further opportunity to marshal and call expert evidence on complementary or alternative treatments. The time for everyone to prepare for this case has been short and she clearly has her Article 6 right to a fair hearing. I am very conscious that she feels catapulted into this litigation, without proper time to get her case together. It is however the fact that the mother has been fully aware since early November 2012 about the opinions of the treating clinicians that N requires radiotherapy and chemotherapy. She herself mentioned today having ‘done a crash course on the issue over the last 6 weeks’ and she spoke earlier of having ‘numerous people working on it’. On both the 3rd December and 4th December 2012, Hogg J gave her permission to call expert evidence, although I accept that the mother’s having gone missing with N that week made it impossible in practice for her then legal team to do much about that. On the 13th December, 2012, by an e-mail order, I gave the mother further permission to call an oncologist. It is now clearer, with the emphasis at this hearing on entirely complementary therapies, that that may not have given the mother exactly what she may have wanted; but my order also gave her ‘liberty to apply urgently to seek further or other directions’. That was some eight days ago. The mother has had representation by and advice from Leading Counsel and solicitors since before the 3rd December 2012, as Mr Tolson QC prepared a robust Position Statement on her behalf for the hearing before Hogg J of that date. She changed her legal team during the hearing on Tuesday of this week (the 18th December 2012) and it follows that her current legal team has struggled to read into the case and to get very much together to support her position in the time available. She has referred several times to research from and treatments available in Russia and China and elsewhere, which research she has not been willing to pass across to the NHS team, although asked by them to do so, for fear (as Mr Peddie put it) that she might be seen as seeking support ‘from quacks’. Mr Peddie submitted today that the mother’s search has been hampered by the S.4 of the Cancer Act 1939, which prohibits the advertising of cancer services; but on her own case the mother has been able to carry out much research on the internet, which anyone can do without difficulty. Dr D set out in his report of 19th December, 2012 a list of Harley Street doctors who he says offer complementary medicines; but nothing has been heard from any of them.
  1. I have to keep firmly in mind what is required for there to be any realistic prospect of the court’s preferring some complementary alternative to the standard mainstream treatment for N’s condition. It is not just a question of demonstrating that there is research and experimentation going on out there; nor that there are ideas and possibilities being floated, nor even that there are reported success stories of cures occurring without the use of radiotherapy and / or chemotherapy. What is required is the identification of a clinician experienced in treating children aged about 7 having this kind of brain cancer; a clinician with the access to the necessary equipment and infrastructure to put the suggested treatment into effect and able and willing to take over the medical care of and responsibility for N. As Ward LJ said at paragraph 38 of AVS v NHS Foundation Trust [2011] COPR Con. VOL. 219: “… if there is no one available to undertake the necessary operation, the question of whether or not it would be in the patient’s best interests for that to happen is wholly academic…”. The treatment proposed by any such clinician would have to be (or should preferably be) properly studied, tested, reported on and peer-reviewed. To have any realistic prospect of becoming selected by the court (and I repeat that this is not a decision to be made by an adult for himself, but for a child) the proposed plan would have to have a prognosis as to probable survival rate not much less than (and preferably equal to) the sort of survival rate achievable through the use of the orthodox treatment universally applied at present by oncologists in this country.
  1. Giving the mother a review hearing date after Christmas, or just a “liberty to apply ” provision in my order, would also have an incidental downside to it. This is because everyone working at the hospital with N should ideally be able to go forward with as much certainty and confidence as possible that the necessary decisions have been taken. They need to be able to get on with making the necessary booking arrangements for the equipment, making the restraining mask and planning their commitments. They need to be able to prepare N with play-therapy which is able to be confidently delivered, and not in some half-hearted way because they are aware that the radiotherapy might never happen. It is not in N’s interests that everything should be ‘semi-on-hold’ awaiting notification after Christmas or in the New Year as to whether or not there is still to be further litigation. Whilst recognising therefore that the mother’s right to a fair trial is absolute, I am satisfied in all the circumstances (i) that she has had a sufficient opportunity overall to put forward a case for complementary treatment for N and (ii) that it is not unfair for this decision to be taken today, without there being any pre-ordained opportunity for her to apply at a further hearing after Christmas. Obviously, in any case involving the best interests of a child, a dramatic change of circumstances would enable a party to turn to the court, but that is not something for which I consider I should specifically plan.

 

 

I found these passages to actually be the most interesting in the judgment. The suggestion here is that it is appropriate for the Court to rule in favour of mainstream treatment unless a parent can show that the prognosis and survival rate in terms of the alternative treatment is “not much less than and preferably equal to the orthodox treatment universally applied by oncologists in this country”

 

The reasoning behind that is that the Court is looking not at the decision of an adult to make an informed decision about treatment for themselves, but on behalf of a child. Where the adult is aware that the treatment for themselves may not be as efficacious as the treatment they are rejecting, they are taking that decision for themselves and are entitled to more leeway in making a decision that other people might not make for themselves.

 

This does seem to me, to set the bar quite high, and perhaps does not fully take into account that there is more than simply the efficacy of treatment, there is also the negative impact of the treatment on quality of life, pain, discomfort etc, that a parent might legitimately want to shield the child from.

 

To put it this way

 

If  Treatment A has a score out of 100 (1 being bad, 100 being good) of

 

Prognosis  85     Patient comfort   20

 

 

And Treatment B has the scores

 

Prognosis  60  Patient comfort 65

 

 

And Treatment C has the scores

 

Prognosis 5  Patient Comfort 100

 

Well then a great many parents might well decide that the only factor that matters to them is prognosis, the survival chances of their child and Treatment A is obviously the right one. But others might well say that with both treatments, there is some chance that the child won’t survive and they don’t want the child to be in pain or distress during the treatment, so they would prefer Treatment B. 

 

It would seem fairly easy to reject Treatment C as simply not being good enough at treating the condition, and so there’s a point at which lower prognosis for higher patient comfort stops being a valid trade-off. I’d suggest that opting for Treatment C would be an unreasonable decision, if A and B were instead available for the child   [though it would be a viable decision for an adult to make for themselves].   Treatment C might for example, be sugar pills, which would have themselves no adverse impact on the child, but do very little for the actual condition itself.   [cough, homeopathy, cough, cough]

 

It might be that the average parent would go for Treatment A, but would a parent going for Treatment B be manifestly wrong, to the extent that a Court should intervene?

 

These numbers are of course plucked out of the air, I have no idea what evidentially the mother might have been able to produce that would show the prognosis on her proposed model of treatment, or the comparisons of pain, side effects, discomfort.

 

 

But I am a little troubled that this case, with those fictitious numbers above, would mean that a parent could not plump for Treatment B, because the prognosis is not  “not much less than and preferably equal to the orthodox treatment universally applied by doctors in this country”  

For the avoidance of doubt, I think the Court made the right decision in this case, and that there simply wasn’t the compelling evidence presented to them to diverge from the very clear and strong medical opinion that this child needed urgent and orthodox medical treatment;   and that the State has to have power to intervene where a parent ignores that medical advice and is seeking to provide treatment which is untested, or crackpot.  But is there some room in the middle where a parent can choose between two valid treatments, one of which is less efficacious than the orthodox one?

 

I always get worried, as a bleeding heart liberal, when parental autonomy is eroded. In this case with this evidence, choosing between what mum wanted and what dad wanted, was very straightforward, but that construction that a parent seeking to provide unorthodox or alternative therapy for a child has to show that the prognosis is as high as the orthodox treatment seems to me to set a very high bar, and to not fully take account of the other factors than prognosis that might properly influence a parent.

If you must Hague, don’t be vague

 

The “too long, didn’t read” version – if you’re making an application in the High Court under the Child Abduction and Custody Act 1985, bring your chequebook. And if you’re doing that, and are listed before the Honourable Mr Justice Charles, ring your bank manager first.

 

 

A discussion of the decision in the High Court of B v A 2012

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3127.html

 

As readers of the blog will know, I often lavish praise on High Court Judges. I am fond of High Court Judges who have admirable qualities, such as clarity of thought, beautiful construction of sentences, being able to illuminate a difficult point with a clever analogy, or who are fundamentally kind and appreciate the human dynamics of the cases that appear before them.

 

I am not afraid of distributing praise in those circumstances – I would say fulsome praise, but I am mindful of the words of Inigo Montoya   (no, not, “my name is Inigo Montoya, you killed my father, prepare to die!”  – the other one)  “You keep using that word. I do not think it means what you think it means”

 

Don’t ever say fulsome if you mean generously complimentary….   Or at least, not to a word-geek.

 

 

Anyway, this judgment is by the Honourable Mr Justice Charles and is bloody important for anyone who deals with abduction cases, both solicitors and counsel.

 

 

It would be fair to say that he was irked during the course of this judgment. He considered that insufficient care had been given both to the very serious nature of the application for a location order and to involve the tipstaff, and moreover to the inherent risks of doing so where the initial application was made ex parte, and the facts laid out before the Court were both partial  and potentially partisan.

 

The Judge begins by setting out the reasons why making such orders is extremely serious

 

  • Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that: 

    i) the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival, 

    ii) the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and

    iii) these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.

     

  • The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young [2012] 2 FLR 470 at paragraph 26 (ii) to (v). That case related to a passport order in a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child).

 

Nothing at all to disagree with there.

The Judge was perturbed that an application had been made that was not  constructed as well as it ought to have been. He reminded the applicant’s counsel of a valuable  previous authority B Borough Council v S & Anor [2006] EWHC 2584 (Fam)   dealing specificially with how inappropriate it was for these applications to be made without notice without a great deal of care.

 

  1. General comment on without notice applications


37. There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.

38. Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with:

i) a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent’s case is, or is likely to be,

ii) where available and appropriate, independent evidence,

iii) a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and

iv) in many cases an account of the steps the applicant proposes concerning service, the giving of an explanation of the order and the implementation of an order. This is likely to be of particular importance in cases such as this one where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders. In such cases, as here, information as to those intentions are likely to inform issues as to the need for, and the proportionality of, the relief sought and granted

39. As to point (ii) I pause to mention that in my view it is surprising and disappointing how many times a without notice application for relief is made in the Family Division based only on largely unparticularised assertions by one side of serious allegations without any third party material to support them, or more generally the basis for the relief sought. I appreciate that in many instances there is a very real urgency and there will not be third party evidence of allegations of abusive behaviour that are readily available but in others there will be. A classic example, which occurs regularly, is that an applicant who seeks a return of children to his or her care fails to provide any third party evidence (e.g. from a school, a GP or records in their possession) to confirm that he or she is indeed the primary carer of the relevant children.

40. Guidance has often been given on the information to be provided and the procedure to be followed in seeking without notice relief (see at first instance Re S (a child) (ex parte orders) [2001] 1 WLR 211, [2000] 3 FCR 706, W v H (ex parte injunctions) [2000] 3 FCR 481 (by analogy X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 and Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris [2005] 2 FLR 551 in particular at paragraphs 63 to 69, and see also the notes to CPR Part 25 and the practice note now reported at [2006] 2 FLR 354).

41. Naturally I endorse that guidance and do not seek to add to it save to emphasise the points made above and to record my own observations that practitioners (a) too regularly do not follow and implement that guidance, and (b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted.

42. As to this I acknowledge that the courts must take part of the blame for such failures by granting relief without notice in cases when (a) the guidance has not been followed, and (b) the impact on the person against whom the relief is granted could be considerable.

43. I add that additionally there is a need (a) to comply strictly with undertakings given at the time the order is made, and (b) to keep full and proper records of what is put before the court and said to the court. This should include a record of the times of the hearing so that a transcript can be more easily obtained. The availability of a transcript does not however reduce the duty of those applying for without notice relief to keep a full record of what the court was shown and was told.

 

Having quoted those passages, the Judge then indicated that he fully agreed with them    and added to them

 

16. As well as endorsing the guidance set out above, there are three additional comments I would make:

(1) If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.

(2) If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant’s rights, quite apart from the court having been given misleading information.

(3) Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.”

 

 

 

All very good points, I have been on the other end of a number of ex parte applications, and when you come to Court and outline what the other side of the story is, you often see the Judge’s expression become “Well, if I had known THAT…”  

 

And these applications are of course, an immensely serious interference with someone’s liberty and free movement, and it is therefore important that a great deal of care is taken, both by the advocate presenting the case and by the tribunal determining it.

 

 

The long and short of this case was that the applicant’s representatives ended up not just not getting the order, but with something far, far, far worse than that. Probably the worst outcome you can ever get if you send counsel off to Court to make an application.  

  1. As mentioned in B Borough Council v S, I recognise that there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable, and, I add, to find children who it is alleged have been abducted. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed. Naturally this applies to all without notice applications, but it can be said to have particular importance when Tipstaff orders are sought and granted because they can found a deprivation of liberty without further court involvement, and they do restrict freedom of movement.
  1. In my view, a practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence is to be deprecated.

 

AND

  1. It seems to me that if such failures are to be avoided in the future there is a need for judges:

i) to refuse to make without notice orders if the established principles and procedures are not applied (I and some other judges do this), and

ii) to treat such failures as negligent and thus as a foundation for the exercise of discretion to make a wasted costs order.

  1. Sadly, the first course alone has not resulted in general improvement and it is to be hoped that when the second course is added it will. But, I acknowledge and confirm that this promotional effect is not a ground for making the order rather it is a potential product of making such an order applying the approach set out in Ridehalgh.

 

 

And more chillingly for advocates

 

  1. Generally, a litigant has to take the consequences of such behaviour and look to his advisers for recompense but I have concluded that the application for costs against him should be refused, because:

i) the point that the shortcomings in the presentation of his case by his advisers is a reflection of endemic failures of family practitioners and courts means that his conduct should not be categorised and reprehensible or beyond the band of what is reasonable (see paragraph 80 hereof), and

ii) the policy and merits arguments referred to in paragraphs 82 to 84 support no such order being made.

 

 

Thus it wasn’t the client who was going to be hit for costs, but rather his representatives

 

 

  1. Also, in my view:

i) the merits and policy arguments referred to in paragraphs 82 to 84 above, and

ii) the point that the father’s solicitors are unfortunate to be singled out when their failures to comply with the principles and procedures relating to without notice applications are widespread in the Family Division and were not picked up by a number of judges,  warrant reductions in the costs to be awarded as wasted costs.

  1. Taking the above into account, in respect of the costs schedule up to the hearing on 10 September 2012, I make a wasted costs order against the father’s solicitors in the sum of £18,000 (to include VAT).

 

The Judge had actually knocked quite a bit off the costs to reflect that this was a warning shot across the bows and that the particular advocates involved had not been worse in their failings than many other cases.  But implicit in that is “woe betide”

 

I suspect that there may well be some family barristers who are having gentle chats with their clerks about whether the cab rank rule means that they need to take cases where they are liable to be personally stung for costs of £18,000 plus, and frantic calls to the RCJ list office to determine tribunals might well be being made.

 

I do wonder also whether sufficient weight has been given here to the very nature of the applications – a parent believes their child has been abducted, the child is missing, information is sketchy and develops piecemeal, and often the most strikingly important details emerge during the course of the day and are not necessarily reduced to affidavit form in advance. I also wonder how much better such cases will be presented in the High Court when those advocates who are skilled and accomplished at presenting them no longer want to bear the personal risk of doing so…

 

 

 

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