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Della was his secretary, Drake’s sat on the desk with Perry


In the High Court, in the case of Wirral Borough Council v KR 2015     some serious Perry Mason moves were pulled.

If you don’t know who Perry Mason is (hello Rachel Gymsocks) then I’m somewhat surprised that you are reading a law blog.  He is a fictional lawyer, American and suave, who had the inherent luxury of only ever representing people who were wrongly accused, and he would prove their innocence during the trial with some flamboyant move or surprise witness or dragging a confession out of a witness who had ostensibly only come to Court to say that “yes, they saw the rake that morning and it had some orange paint on the handle”.


[See also Johnny Cochrane, for a real world example, and his notorious “If the glove doesn’t fit, you must acquit” defence.  Of course, cough, in that case, perhaps he didn’t enjoy all the inherent luxuries enjoyed by Perry Mason. See also “The Chewbacca defence”  ]

You will see that in fiction, a Perry Mason move is a lawyer doing something outside the box that proves that their innocent client is innocent, whereas in real life, a lawyer doing something outside the box to get their client off is generally more of a Chewbacca defence.  This case is a Perry Mason move. There is a real, and important distinction. If the lawyer involved hasn’t been boring her clerks senseless with her tale of how she did this, I’ll be very surprised. I’d be telling this story every day for months if I’d pulled it off.

I suspect that the conversation from this point on will be


Barrister “Did I ever tell you about the time I….”


Clerk (wearily and quickly) “Yes”


This was a case involving alleged non-accidental injuries to a child.

To put the Perry Mason move into context, the LA turned up to the fact finding hearing with no case summary, no chronology and no schedule of findings sought.  One of the people under suspicion was the mother’s partner, JL, who did not have legal aid and was thus unrepresented.


  1. First, the bundle lodged by the local authority in this case failed completely to comply with the requirements of PD27A. In particular, it failed to contain any of the documents specified at paragraph 4.3 of the Practice Direction, the so called ‘Practice Direction documents’. Thus, until 9.00am on the morning on which the hearing commenced the Court was without an adequate Case Summary, a Chronology, any Position Statements and, most significantly given the Court was being asked to make findings regarding alleged inflicted injury to an 11 month old child, no Schedule of Findings. Further, in addition to the absence of these documents, JL, as a then litigant in person, had not been provided with any of the other documents contained in the bundle (save for some very limited documentation received from the mother’s solicitor at an earlier date).
  2. Whilst the failure to comply with PD27A was a plain breach of that Practice Direction, it is also the case that the failure of the local authority was of particular detriment to JL and placed his right to a fair trial in significant jeopardy.
  3. The absence of a schedule of findings meant that the respondents to this application did not have proper notice of the particulars of the allegations made against the mother and JL. In the mother’s case this difficulty was in part, but only in part, mitigated by the fact that she had lawyers to advise her. However, as a litigant in person, JL arrived at court on the first day of the hearing without any notice of the allegations made against him or of the totality of the evidence on which the local authority relied to make good those allegations, and with no real idea that the local authority was that very day intending to invite a judge of the High Court to find that he had injured deliberately an 11 month old child. It was the most remarkable and unsatisfactory state of affairs.
  4. After the Court expressed its extreme displeasure at the approach of the local authority towards JL, and to avoid the need for an extended adjournment while he got to grips with the issues and, from a layman’s perspective, the relatively complex evidence in this case, the local authority agreed to fund representation for JL. The Court is grateful to Mr Jamieson of counsel and to those who agreed to come on the record to instruct him for stepping into the breach. The court is further grateful to Mr Jamieson for discharging his professional duties with evident skill notwithstanding the short notice given to him.
  5. Whilst the local authority is to be commended for agreeing to fund representation for JL, I must observe that such a step, whilst of course desirable, would not have been necessary had the local authority complied with the requirements of PD27A and provided JL with a properly constituted bundle.
  6. The requirements of the Practice Direction are clear and the President of the Family Division has recently reiterated in the strongest terms in Re L (A Child) [2015] EWFC 15 the need for it to be complied with to the letter. The requirement to give proper notice to respondents of allegations made against them, and of the evidence in support of those allegations is equally firmly established in law and applies with equal force to cases involving litigants in person. The local authority is under a heavy obligation to ensure that the procedure at all stages is both transparent and fair, both in and out of court. The fact that a party or intervener in public law proceedings may appear in person does not relieve a local authority of its responsibilities in this regard. Indeed, it requires the local authority to be even more diligent to ensure that those responsibilities are fully and properly discharged.


To be fair to everyone involved, I am asking myself what on earth happened at the previous court hearings in this case?  These were all blindingly obvious matters that the Judge who dealt with it previously ought to have set out in an order, even if none of the advocates had suggested it in their draft order. The Court have to own some of this screw up.


The Local Authority pay for the legal costs of their major suspect (and stretching their powers to spend money under the Local Government Act well past breaking point, like two hungry yard-dogs fighting over a Stretch Armstrong toy) and STILL get told off.

So that’s the context – before the hearing began, nobody had received the proper documents from the LA setting out precisely what findings were to be sought.

It was during the cross-examination of the paediatrician by mother’s counsel that the Perry Mason move emerged.


  1. Towards the conclusion of her cross examination of the consultant paediatrician, Ms Howe on behalf of the mother proceeded to produce a photograph which had been shown to the other parties and to the consultant but not to the court. The consultant had not been asked about the photograph during her evidence in chief. The photograph, which was undated and not exhibited to any statement describing the circumstances in which it was taken nor what it purported to show, appeared to show a bruise to the back of A’s thigh sustained, it was said by Ms Howe, when he sat down heavily on a toy whilst in his kinship placement with the maternal grandmother.
  2. This was the first time that the court had been put on notice that there had been an independently witnessed incident that was said to replicate the explanation advanced by the mother for the bruising to A’s thighs. The consultant paediatrician had received little better notice of it than the court and, as previously noted, had not been asked to comment on it during her evidence in chief.


I did wonder when I read this, whether Ms Howe of counsel was about to absolutely cop it from the Judge. It isn’t the done thing to produce material evidence during the course of cross-examination of an expert, having not shared it with the other side.

However, any criticism she was perhaps going to receive was completely forgotten about when THIS happened

  1. Upon the photograph being produced by Ms Howe, counsel for the local authority Ms Banks rose and announced to the court that the allocated social worker, Mr Morris had been present at the maternal grandmother’s property during the incident to which the photograph was said to relate, had witnessed A sit down heavily on a plastic toy and had observed a red mark on the back of A’s thigh resulting from that incident. As will become apparent, when giving evidence Mr Morris confirmed that whilst the mark had not developed into a bruise by the time he left the house, the bruise shown on the photograph corresponded to the location of the red mark that he had witnessed following A’s impact on the toy. Despite the obvious relevance of this evidence, the local authority had not prior to this hearing secured a statement from the social worker placing that evidence before the court.
  2. Thus it was that at the end of the cross examination of the medical evidence in this case the court was for the first time made aware of the existence of photographic and witness evidence central to the court’s determination of whether a mechanism advanced by the mother for some of the injuries to the child, which the local authority contended were inflicted by the mother or JL, could constitute a reasonable explanation for those injuries. I directed that a statement be taken from the mother exhibiting the photograph and that a statement be taken from Mr Morris detailing what he had witnessed.
  3. The mother makes clear in the statement taken from her at court that she had only appreciated the significance of the photograph when she spoke to Ms Howe at court. During closing submissions Ms Banks informed the court that the photograph had only been the subject of discussion between the parties at the outset of this hearing, at which point she was informed by the mother’s team that it was being said Mr Morris had witnessed the event. Ms Banks further submits that the mother did not raise the possibility of A sitting on his toys as a cause of the injury until her statement of 26 January 2015.


So there you go, a genuine Perry Mason move.

  1. It is nonetheless a matter of great concern that this evidence had not been identified well before the commencement of the final hearing and shortly after the mother advanced her explanation in the statement of 26 January 2015. Had it been identified, the evidence could have been produced before the court in form which complied with the rules of court and the consultant paediatrician could have been given proper notice of the evidence and a chance to consider and comment upon the same before attending court. Once again, it was an entirely unsatisfactory state of affairs.
  2. There is a heavy burden on those representing parties to care proceedings to ensure that their respective cases are rigorously prepared such that all evidence relevant to the advancement of those cases is identified and placed before the court in good time. This heavy burden applies equally to local authorities and includes a duty to identify and disclose evidence that may assist a respondent’s case. Discharging this burden effectively will often involve close questioning of clients in conference as parents and social workers may well not immediately appreciate the forensic significance of events, documents or photographs until advised by their lawyers.
  3. Whilst I am aware that it is, regrettably, less common than it used to be for the advocate who ultimately undertakes the final hearing to have an early conference with their client and thereafter continuing intimate involvement in each stage of the case management process, and acknowledging as I do the impact of an increasing scarcity of resources, such input is vital in circumstances where the early identification of issues requiring resolution at the IRH or determination at trial, and of the evidence relevant to the resolution or determination of those issues is central to our system of case management and to the just and efficient resolution of cases.
  4. This is not a case in which the making of a finding of non-accidental injury would have resulted in the children being permanently separated from their birth family by way of adoption. However, were I to have found that the local authority had demonstrated that the injuries had been inflicted to I, and had the mother refused to accept those findings, the local authority would have invited me not to return the children to their mother’s care. That this was a possible outcome had the advocates not discovered, at the very last minute, the evidence concerning the independently witnessed incident outlined above should serve to concentrate minds.


It will not surprise you to learn that on examining all of the other injuries and listening to the family members give evidence, the Court decided that no deliberate injuries to the child had occurred and no orders were made.



[There is a less polite term for when you as a lawyer ask a question and the whole case disintegrates as a result of that question having been asked, which would also apply here,  like when you say “Do you accept that you, Francis Black, struck the child with a toffee hammer?” and the witness says “Yes”.   It is called a “F**k me question” because it is really hard when you hear the answer, not to immediately say “F**k me, I wasn’t expecting THAT” under your breath]



[Have also just thought that “Wirral going on a summer holiday” would be a good headline for a blog post, so if you work at the Wirral, please can you engineer a law report that is about a conflict about whether a child can go on a summer holiday? Thank you! Ideally, the holiday will be where the sun shines brightly, and where the sea is blue]

Breastfeeding mother versus gay couple


I think that this case has probably been in the news, or is about to be.

It is yet another example of a case where arrangements that were made before the birth of a child where conception was not the routine (birds do it, bees do it, even educated fleas do it) method, but a complex arrangement between adults that the adults involved did not properly record.

Re H v S (surrogacy agreement) 2015.


I will use fake names, because I find in these cases that the bare initials just leave you grappling around for what the heck is going on.

The child is M (Mary). Mary was born on 27th January 2014.

Mary’s mummy and daddy were not two people who loved each other very much and when a mummy and daddy love each other very much, they have a special cuddle.

Mary’s mummy S (Sarah) says that she wanted a baby, and a gay man that she knew, H (Harry) agreed that he would provide her with the genetic material to have a baby, and that when she had that baby, she would be the only carer for that child.

Harry, on the other hand, says that he and B (Bob) are in a committed homosexual relationship, wished to have a child, and reached an agreement with Sarah that Harry would artificially inseminate Sarah, and that after the birth, Harry and Bob would care for the baby together, but that Sarah would play an active role in the child’s life.

That is not so much a gap but a Grand Canyon in the different understandings of the people involved.

Ms Justice Russell said this:-

Very sadly this case is another example of how “agreements” between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court.

The Court had to deal with this as a straight private law children dispute under the Children Act 1989, rather than an application by Harry and Bob for a Parental Order under Human Fertilisation and Embryology Act, because Sarah did not consent to the making of a Parental Order  (and the Court have no power to make one if the biological mother does not consent)

Also, some of these adults were Romanian, some had been raised in Romania but were of Hungarian birth, and so the child is of mixed Romanian and Hungarian heritage, although all concerned now live in England.

We add into the melting pot of complexity here that the three adults concerned are not all of the same religion and there was a dispute about what religion the child should be baptised into. There was a Court order that Sarah should not baptise the child until the Court had heard argument about this and determined the dispute, but she did, and she also lied about it. Also registering Mary with names that had not been agreed or even discussed.


On the 21st May 2014 the Applicants applied for prohibited steps orders regarding the child’s name and her baptism. The Respondent had registered the child on her own with her surname and with first names chosen by her that had not been discussed with the Applicants or agreed between the parties. The Applicants also applied for an order prohibiting S from having M baptised according to Christian Orthodox rites as although all three of the parties are Christian H is a Protestant and B is Roman-Catholic. An order was made by Recorder Bazley QC which prohibited any party form removing M from the jurisdiction or from causing or arranging for her to be baptised or christened. In the event S not only disobeyed the order of the court and had M baptised but lied about having done so. She informed the court and the parties that she had M baptised in October 2014 at the hearing in January 2015; this despite her assurances to the contrary to the guardian in December 2014 and to the court in her own statement dated the 7th January 2015.


Towards the end of the hearing, the Court heard that a Tweet had been sent about the case and that the tweet had been tagged with the name of a reporter at ITN, no doubt with the intention of stirring up a public debate.  {I think that I have seen that tweet, or retweeted versions of it on my own twitter feed, which is why I had been watching out for this judgment}


  1. At the outset of the trial the guardian (on behalf of M) and the Applicants drew my attention to the publication of information regarding the case on social media. The first was a posting on Facebook on the 5th October 2014 by a person known to be a friend of S. The guardian was made aware of this post soon after it was published but considered that there was no information by which M herself could be identified and decided not to bring it to the court’s attention. I accept from the information contained in it that the source of that information must have been one of the parties (or someone very close to them) and it is more likely than not that that source was S. The person concerned wrote to the court and had been involved in “mediation” between the parties. This is an example of S’s mode of conducting her case not through the court alone but by recruiting support from others to pursue her case in other arenas. I do not accept that he would have published this or the Tweet in January 2015 without her knowledge or consent.
  2. On the 16th January 2015 the guardian was made aware that the same person had made the following Tweet: Wealthy gay couple force child from good mother’s breast setting bad precedent. Starts Mon19Jan 10am High Court RCJ, court 35,
  3. The Tweet which was available to anyone online was tagged to alert a reporter at ITN. S denied any part in this tweet, and while it may be the case that she did was not directly involved in posting the tweet, it is in keeping with her conduct of the case during which she sent emails copious emails to the court, to the President of the Family Division and pursued an appeal against the order made on the 1st October 2014 apparently against legal advice. The solicitor for the Applicants, sent an email to the person who had tweeted requesting him to take the tweet down and informing him of the objections of the Applicants to him tweeting about this matter.


During the hearing, the mother raised two major arguments. The first was that as she had been breast-feeding Mary, that had led to a bond and relationship which would be damaging to break.

  1. S has made a great deal of her status as a breast-feeding mother and the disruption to M’s routine of staying with her father overnight; not least because M “co-slept” with S and was breast fed during the night. Although some weeks after the hearing concluded S changed her position and agreed to M staying over-night with her father and B it is evident that she did so as she accepted that she had to following the decision to refuse her permission to appeal. Prior to that S had, as I have set out above, used the fact that she continued to breast-feed M as a reason for reducing or limiting contact and claimed that it was in M’s best interest. It is the current orthodoxy, which the court does not gainsay, that breast feeding, if possible, for the first year or more as it provides many health advantages for a child. In her first statement in April 2014 S said that she wanted to breast-feed for the first 9 months; as time has progressed so the length of time she wishes to breast-feed has increased. In her oral evidence she was unable to say how long it would go on but indicated that it would be as long as M wanted it to which could be as much as several years into the future.
  2. Part of S’s case is that she sleeps with M which also provides the child with health and emotional advantages in respect of their co-attachment. The practice is not recommended for babies and small infants as there is a danger of over-lay and as a result may be considered to be more controversial, but that was not a matter that I was asked to decide. This practice when it takes place cannot be used as a reason to inhibit or curtail a child’s right to form a positive and substantial relationship with her other parent or parents; which was a direct effect of S’s practice in this case and she used it as part of her argument to support the curtailment of overnight stays. Based on the needs of a child, as M grows she must be allowed to become independent and grow as a human being separate from her parents and carers. At her age it is most unlikely that she will not suffer any harm sleeping on her own; indeed she has already experienced it without ill effect when she stayed with her father and his partner overnight.

The second was that Harry and Bob were in a gay relationship and that all such relationships were promiscuous and inherently wrong and unstable.

  1. I have now heard the oral evidence of all the parties and read copies of electronic communication between them. The dispute about the agreement is largely based on S’s assertion that she and H decided to parent a child together, and that B was to play no part other than as the child’s father’s “boyfriend”; to use her word. S has sought to present herself throughout the proceedings as a victim and someone whose “rights” as a mother and as a woman have been trampled over and abused. She claims, in terms, that H and B are attempting to remove her child, from her breast, in a cruel and calculated attempt to build a family and that she is being discriminated against and victimised. She describes H and B in an openly disparaging and dismissive way saying that they are not like a very well known celebrity couple (who she names) who have had children by surrogates; “They are not a gay couple having a child”.
  2. S repeatedly made allegations, wholly unsupported by any objective evidence, about H and B; about their relationship and about their lifestyles. About the former she repeatedly relied on stereotypical views on the nature of their relationship suggesting that she knew “they have an open relationship, what gay people call it, have sex in groups.” There is no foundation to this claim which I consider to be a reflection of her deliberate attempt to discredit H and B in a homophobic and offensive manner. At the outset of the case she filled in a form (C1A dated 19th February 2014) alleging harm and domestic violence. She said in this form that H “has an open view on class A drugs. He believes that it is OK for people to use class A drugs and has said he would like to try it himself” She went on that H “is a self-confessed antibiotics user he gets his own supply of very strong antibiotics from Belgium and use [sic] them all the time”. S went on to allege that H might give them to M if he had unsupervised contact; and to allege that there were “loads of people coming and going” from the Applicants’ address and that drugs may be used at that address. None of these allegations were followed up before or during the hearing when the Applicant’s gave oral evidence. The abandonment of allegations during the trial lends little to the weight that that court can give her evidence as a whole.
  3. I had the opportunity of re-reading the emails sent to the court and evidence filed by S both during this case and after it concluded. It is peppered with allegations, innuendo, offensive and disparaging comments about H and B. I do not need to set them all out or repeat them as most of it was never put to the Applicants and was not pursued in evidence. I had the opportunity to see the Applicants and S in court during the five days of the hearing and on other occasions when they have appeared before me. I saw S give evidence and observed her while she listened to the evidence of others. There was never the slightest indication of a cowed, submissive or victimised person. On the contrary she conducted herself in a very confident and most assertive manner throughout. She has sought to impose her will on the court and manage the proceedings. The need to express her breast milk while genuine was used to interrupt and disrupt the evidence of the Applicants. The evidence in support of this was the manner in which she could, suddenly, regulate it after their evidence was completed


On the factual dispute – whether this conception was intended (as Sarah says) to be a baby for Sarah to look after with Harry donating his sperm or (as Harry and Bob say) a surrogate arrangement where Harry and Bob would care for the baby but Sarah would play a role in the baby’s life, the Judge heard evidence and read a lot of emails between the main players.  The Judge concluded that the stated  intention between the parties  HAD been for Harry and Bob to be the main carers, and more significantly that rather than this being a case where mum changed her mind after the birth (as can happen), that she had basically tricked and manipulated these men into providing a baby for her when they would never have agreed if they had known it was always her intention to keep the child.


  1. The emails do not set out an agreement in terms and it is H’s case that after the beginning of February the discussions were oral and went on to include B. The fact that there are not any emails produced after February supported his case. It also fits in with the insemination taking place about the fourth week of April 2013, in the Applicants’ home with B there on at least one occasion. It is, and I use the term advisedly, inconceivable that B was not aware of what was going on before April and was not party to any of the discussions. In this as in much else I do not accept the evidence of S. Her later use, in evidence, of the term “sperm donor” is completely at odds with the tone and contents of her emails in February. It is not possible to accept both from what H told her in the emails and from the obviously close relationship of H and B (which I have seen at close quarters throughout the trial) that S could have ever thought that she was having a child with H to the exclusion of B; she says so herself in her emails. I conclude that she must have either deliberately misled the Applicants about her intentions or changed her mind as the pregnancy progressed.
  2. On the balance of probabilities, and for the reasons set out above and in the following paragraphs of this judgment, I find that S deliberately misled the Applicants in order to conceive a child for herself rather than changing her mind at a later date. Having at first encouraged H to be involved S was already trying to exclude H not long before M was born from involvement with the birth and with the child. I accept the evidence of H and B that S was a part of the arrangements that were made to rent a larger property. If as she claimed they were aware from the outset that any child would be her’s and live with her there would have been no reason to go to the expense of moving and furnishing a larger home. It highly unlikely that S could ever have thought H, who had told her he so desperately wanted a child in his emails, would decide to act as a sperm donor for her, there was no reason for him to do and it would have been entirely at odds with his own plans and wishes.
  3. S has consistently done all she can to minimise the role that H had in the child’s life and to control and curtail his contact with his daughter. Far from being a child that she conceived with her good friend, as she describes it, her actions have always been of a woman determined to treat the child as solely her own. She made sure that H was not at the hospital when M was born; she registered the birth without putting H on the certificate and did not give the child any names except those chosen by her and did not reflect the child’s paternal family names in that choice. The history of these proceedings bears this out; H and B were left with no choice but to issue applications.



The question then was where this child should live during her childhood?  You need to read the whole judgment to get a proper feeling for the case, there was a lot going on, but it finally gets distilled here:-

  1. The evidence has to be considered in the light of the child’s best interests. I have used the welfare checklist as the basis for my decision because I am concerned with how to best provide for M’s physical, emotional and educational needs under the provision of s 1 (3) (a) CA. Although M is not yet at school it is more likely than not that the parent who can best meet all her other needs and is most likely to be able to provide her with a secure home and stable upbringing with room to grow emotionally for the remainder of her infancy is more likely to meet her educational needs fulfil her potential in the future. The latter requires that M is afforded the scope to grow up in an environment where conflict is at a minimum. M is not yet able to say as she is just learning to talk so I do not know her expressed wishes and feelings but I assume it that for the immediate future she would want to continue to remain with S and continue to spend time with and H and B, including overnight stays.
  2. Any decision that M lives with H and B and spends much less time with S is bound to affect her, likely to upset and distress her in the short term at least and necessarily amounts to a change in her circumstances. However familiar M is with her home with H and B she would miss her mother with whom she has spent most of her time. Against that I will weigh the harm that she is at risk of suffering if she remains with her mother. As she gets older she will become more aware of, and will be directly affected by, her mother’s negative views about her father and B. These views will affect her own sense of identity; negatively inform her view of herself and where she fits into the world.
  3. I can only judge S’s ability to parent M based on recent history and based on that history M is more likely than not to suffer harm; to continue to be taken to the GP and to hospital at times when it is not necessary in furtherance of S’s determination to control M’s contact with H and B or in respect of contact or any other dispute she may pursue over M with H in the future. It is likely that S will present H and B in a negative way to M and give her limited opportunity to understand the history behind her conception and of how she came to be here; nothing in S’s conduct of her case can offer any assurance to the court that S is capable of doing that for M in a balanced way that is free from S’s own agenda.
  4. At present S is able to care for M well physically but there are already grounds for concerns about her mother’s over emotional and highly involved role in this infant’s life. Ultimately the role of a parent is to help the child to become independent. This is a child who at 15 months old is still carried by her mother in a sling on her body. M spends most of her time with her mother who does not set out any timetable for returning to work, as S would have to, to provide for M and for herself. There is a potential for enmeshment and stifling attachment rather than a healthy outward looking approach to the child’s life. The question is who benefits most from this chosen regime which points towards an inability to put the child’s needs before her mother’s need or desire for closeness.
  5. The attachment which will develop in an infant who sleeps with her mother, spends all day being carried by her mother and is breastfed on demand through out the day and night raises questions about the long term effect on M. From the point of view of this judgment it further begs the question as to who benefits most from the regime S has chosen to impose without reference to M’s father, H. I have little doubt that the breast-feeding was used a device to frustrate contact during the proceedings, a conclusion supported by S claiming at first that she could not express her milk which so reduced the time available for contact; subsequently when it was clear that M could be fed and was able to eat other foods S no longer had difficulty expressing milk. I am forced to conclude that S has shown herself to be unable to put M first and that she is unable to meet M’s emotional needs now and in the long term.
  6. The contact that S has with H and B has been very successful; the guardian who has observed it more than once described M as alert, happy and relaxed in her surroundings. Unlike S, H and B have not made a plethora of allegations against S; apart from those directly concerned with contact or her conduct towards them during contact. They have said that they want there to be as harmonious a relationship as possible between the adults and their support of M spending time with her mother is evinced by the level of contact they suggested. Their conduct has been consistent with this approach and while it is exemplified by an offer of contact which is greatly in excess of that proposed by the guardian they have never sought to exclude S from M’s life and to the end of the proceedings expressed the hope that the relationship between the parties could become more harmonious for the sake of M. The Applicants could easily have adopted the recommendation of the guardian that contact should be once a month but they have not done so.
  7. While to move a young child from her mother is a difficult decision and is one which I make with regret as I am aware that it will cause S distress I conclude that H is the parent who is best able to meet M’s needs both now and in the future. It is he who has shown that he has the ability to allow M to grow into a happy, balanced and healthy adult and it is he who can help her to reach her greatest potential. I accept the evidence of the guardian that H and B have had a child-centred approach throughout. It was obvious from their oral evidence and their statements. H, in particular, has always sought to put M first.
  8. H thought carefully about having a child and his discussions with S in the emails that they exchanged in February 2012 are an illustration of his awareness of the difficulties that would be encountered as well as a clear expression of his very great desire to have a child; and to have that child with B. It is highly unlikely that H would have reached any agreement about having a child without involving B, not least because it would have jeopardised his relationship with B and H’s future role as father to the child he very much wanted to have.
  9. The best that can be said for S is that she deluded herself about the nature of the agreement she was reaching first with H and later with H and B. It is very unlikely that such an obviously astute and determined woman would have left anything to chance when it came to having a baby. While I do not rely on the substance of the CA proceedings in Kent I do take account of the fact that S no longer has her daughters living with her and has limited contact with them. This situation, whatever its cause and whatever her role in it, will indubitably make it more likely that she wanted, as she said, to have another child for herself. The emails that she sent were deliberately misleading and S continued in the deceit, allowing H to believe that he and B would be the main carers for the baby until pregnancy was well advanced.
  10. It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood. It is, however, a fact that M was not conceived by two people in a sexual relationship. The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend, this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place. Therefore M living with H and B and spending time with S from time to time fortunately coincides with the reality of her conception and accords with M’s identity and place within her family.
  11. M should live with her father H and his partner B as it is in her best interests to do so; I reach that conclusion having had regard throughout to the welfare checklist and to M’s interests now and in the long term.



The Court therefore decided that Mary should move from Sarah’s care to live with Harry and Bob.  We will wait to see whether the media reporting deals with the substance of the case that the Judge had to decide, or whether it follows the easy sound bite narrative of the tweet – Court rips child away from mother’s breast to give to gay couple…


There is a Reporting Restriction Order in place that the child and the adults involved not be named, and as ever it applies to me and any commenters, so if you do know the names, I don’t want to see them here.


Children travelling to join ISIS

The Tower Hamlets case attracted quite a bit of media attention, and the judgment is now out. It contains quite a bit of practical guidance for all agencies where there is a concern that a child is going to be sent or going under their own volition to a country such as Syria with an intention that they join a terrorist organisation such as ISIS.

Tower Hamlets v M and Others 2015

The case was heard, alongside another one mentioned in paragraph 6, by Mr Justice Hayden.

The Judge recognised that the seizure of the children’s passports did not require any evolution or extension of the law, but could be done under existing provisions, but did set out some practical recommendations to be followed.


  1. This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself. For example, the jurisdiction was recognised in Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.
  2. Both cases came before me last week on ex parte application. I was satisfied, on the evidence presented to me, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent. I remain convinced of both.
  3. The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.


The Judge went on to explain that by candour, he did not just mean honesty and that this was a given, but that the evidence presented to the Court for such an application must be the fullest possible, and that even evidence that would seem to be harmful or hinder the application must be shared with the Court.

  1. Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.
  2. This duty, in such an application, extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.
  3. Moreover, the lawyers involved must take great care to emphasise and reinforce this obligation to their lay and professional clients in clear and unambiguous terms. This very high degree of candour must also be accompanied by careful consideration as to whether the facts present a real degree of urgency, which of themselves necessitate an application being made on an ex parte basis.

There were a couple of points in the Tower Hamlets case that prompted that – the first being that the orders made necessarily required the police to take a number of actions – the Court had understood that the police were aware and supportive, only to learn at a later stage that the police were unhappy about some of the things they had been asked to do.

This was very serious. Counsel for the Local Authority had specifically addressed the Court on this, and his instructions had been plain that the police supported the Local Authority applications and said so unequivocally to the Court twice. [I will make it really plain that the Judge was satisfied that Counsel had been sold a pup, rather than was intentionally misleading the Court]


  1. I had been told by Mr Barnes, counsel who appears on behalf of Tower Hamlets, at the first hearing, on 20 March, when the Local Authority appeared alone, that the police supported the Local Authority’s actions. In fact, I twice asked whether that was the case, and twice Mr Barnes reassured me, unequivocally, that it was. I have no doubt at all that those were his instructions.

Hoerver, after the orders were made, it had become obvious that the police had not been as involved in the process as the Court had been led to understand. To the point that the police had been liaising with the High Court tipstaff about wanting to see if the passports could be handed over voluntarily by the families, and the Judge suspended his orders.


  1. However, on Saturday afternoon, I received a telephone call from the High Court Tipstaff to inform me that the police considered that they had not had proper chance to evaluate the risk identified in the Local Authority’s application. And insofar as they had, they considered that enforcement of the orders might not be required.
  2. In essence, I was told, they wished to see if it might be possible to secure the surrender of the passports, as contemplated by the orders, by cooperation with the families.
  3. In view of the fact that this information, given to the High Court Tipstaff, came from a team specialist in counter terrorism, and I have been told authorised at very senior level, I ordered the immediate suspension of my earlier order.


That is obviously extremely serious, and the Judge rightly explored it further on the return date.

  1. However, during the course of that hearing, Mr Barnes confirmed that a misleading impression had indeed been given by the Local Authority to the court on 20 March.
  2. Whilst it is correct to say that the police had been informed of the applications, as I was told, investigation of how and when they were told, undertaken at my insistence, revealed that they had only been notified of the application at around 2 o’clock on 20 March by email and had, therefore, no real chance to consider their response.
  3. I pause to say that by 3.30 that afternoon the Local Authority were already before me.
  4. I regret to say that I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.

Very serious indeed.


The second was that there had been an issue over whether one of the children’s passports was (a) missing and (b) whether it was expired in any event. This was obviously a very critical point, given that what was being sought was orders to prevent the children leaving the country. The Court had been given information about this, in good faith, that later turned out not to be accurate. (It is all set out at the end of the judgment if you want to know more)


I should like to take this opportunity to distil a number of core principles.

(i) The lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it. This should be undertaken before coming to court. That will not only expedite the subsequent service of the orders on those concerned, it is also a crucial forensic discipline, compelling the lawyers to think in a properly focused manner about the specific orders they seek;

(ii) Thought should be given, from the very outset, as to how quickly the case can be restored on notice. This is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights;

(iii) Even though these cases will, of necessity, be brought before the court in circumstances of urgency, they nonetheless require the instruction of senior and experienced lawyers. The issues have profound consequences, not limited to the individuals concerned, and will frequently require a delicate balancing of competing and potentially conflicting rights and interests;

(iv) All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail;

(v) It will never be satisfactory, in applications of this kind, merely to offer verbal assurance, through counsel or any other individual, that the police, security forces or those involved in counter terrorism, are aware of and support the application. There must in future always be ‘hard’ evidence, i.e evidence which is cogent and coherent, placed before the court and capable of being subject to appropriate scrutiny. The format of the evidence may vary from case to case. It may require a police presence in court. There may be the need for police/counter terrorism officers to be represented, written and sworn statements may sometimes suffice. On occasion evidence may be received by secure telephone or video link;

(vi) Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process. In both cases this week, the press attended. It was only necessary for them to withdraw on one occasion, at the request of a very senior police officer present in court, supported by the local authority. The request was made because sensitive issues of policy and national security arose. Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system;

(vii) Recognising that there will be an urgency to these applications, careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity. In this exercise, it should be remembered that some of the families involved may already have excited a degree of press coverage. Indeed, they may, on occasion, have sought it out. There is a risk that identification of the children might be revealed by piecing together information already in the public domain, i.e. the ‘jigsaw effect’. As, in paragraph 1 above, and for similar reasons, the restrictions contended for should be drafted before coming to court;

(viii) Though it may appear trite to say so, an evaluation of the reporting restrictions, as I have been reminded by the press this morning, should always have at the forefront of the exercise the reality that publicity is not confined to the conventional or recognised media outlets, but extends, with inevitably greater challenges, to the wide range of social media likely to be the primary sources of information for these children, their peers and those with whom they interact more generally;

(ix) The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved, simply cannot be overstated. An ongoing dialogue in which each party respects, and I make no apology for repeating the word respect, the contribution of the other, is most likely to achieve good and informed decision making.


Diplomatic immunity – it’s just been revoked



Well, it hasn’t been revoked, but who wouldn’t want the chance to see the classic Lethal Weapon 2 exchange?



[If any ancillary relief Judge wants to quip in a case involving a millionaire farmer – “You want to be a farmer? Well here’s a couple of acres” then you’d be doing me a solid. Failing that, I’d settle for a “Get to the chopper” line for a case involving a TV chef]


This case involves a child whose father has taken one of two twins (I know, that seems redundant, twins do tend to come in twos, but ‘one child of twins’ doesn’t seem great either) to another unnamed country, whilst the other remains with his mother in England.


The mother obtained an order for the return of that child. The father asserted diplomatic immunity.


I would love to be able to assert diplomatic immunity. If there’s a country out there who wants a diplomat, a country that is prepared to accept that I would almost certainly abuse that privilege, then give me a call. I would be prepared to learn another language (at least to the extent of “sorry sucker, I’m afraid I’ve got diplomatic immunity” in said language)


Re MA and Another 2015


There was some debate about whether diplomatic immunity only extended to things which occurred during the carrying out of professional duties or all things, but it is settled as being complete immunity from arrest or detention.


A feature of the case is that the father has asserted diplomatic immunity, pursuant to the Vienna Convention on Diplomatic Immunity, incorporated by the Diplomatic Privileges Act of 1964. It appeared, following the father’s arrest on 14 October 2014, that whilst the diplomatic protection the father enjoys is in effect full immunity from the criminal jurisdiction and in the civil and administrative jurisdiction, it was limited to acts performed only within the course of his duties. As matters have evolved it seems the scope of his protection is more extensive and he remains, it is asserted, inviolable at all time to any form of arrest or detention.




The High Court may retain some powers under the inherent jurisdiction to ask him to think very carefully about what he’s done and why he should say sorry, but that’s about it. Also, I’m adding ‘inviolable’ to a growing list of words I don’t want to try to pronounce for the first time in Court.


The father didn’t attend the hearing. He did produce a statement, which the Court wasn’t very impressed with. It wasn’t in a recognisable format and they did not think that a lawyer had been involved in its preparation.


[my personal speculation was that his statement was just “sorry suckers, I’m afraid I’ve got diplomatic immunity” in Guarani. Or alternatively, just a CD with a loop of Billy Bragg singing the “your laws do not apply to me” bit from Sexuality]


and the Court decided to proceed in his absence and hear evidence from the mother. They repeated the order that he should return the child to the jurisdiction and that the child was wrongfully removed from the mother’s care and out of the jurisdiction.


That’s an order that is somewhat toothless, since there is no punishment that the Court can levy against him if he decides not to comply. It is still the right thing to make the order.


Enforcement of it is going to be very difficult indeed. Let’s hope that these twins are reunited without any further litigation.


Looks like I picked a bad day to give up not being a veracity assessor


Wigan BC v M (veracity assessments) 2015


Veracity assessments, if you don’t know, is where you have an expert, usually a psychologist, to look at the video interviews of a child’s allegations of abuse and to advise the Court as to the features of that interview that indicate whether reliance can be placed on them.  They went through a brief spell of being popular, and then became unpopular – largely because they go to the ultimate decision of the Judge.  The Judge’s function is to decide who is telling the truth and who is lying, and thus on some level it is a bit of a cop-out to ask an expert to give them the answer.

[There is quite a lot of good research about human beings ability to assess whether people are lying, and we really are quite bad at it. The one I have in mind was specifically about whether a six year old on a video is telling the truth about whether or not they touched a particular toy – and most people who had some ‘professional’ stake in deciding whether or not people are liars did worse than the group of students who did the same exercise as a control group. In fact, people generally do reasonably well when estimating that a statement is true, and are actually slightly worse than chance when estimating that a statement is a lie.  The ‘signs’ that most of us think will be present in a liar actually correlate very badly with actual lying

In a minority of studies, accuracy in detecting lies was computed separately from accuracy in detecting truth. Where this did occur, results show a truth-bias, that is, judges are more likely to consider that messages are truthful than deceptive and, as a result, truthful messages are identified with relatively high accuracy (67%) and deceptive messages with relatively low accuracy (44%). In fact, 44% is below the level of chance, and peoplewould be more accurate at detecting lies if they simply guessed.  “Detecting true lies”  Portsmouth University study ]

This is the first veracity assessment case I’ve seen in a few years, and certainly the first one since the test for an expert became ‘necessary to resolve the proceedings justly’

To be fair to the expert in the case, he did exactly what was asked of him and pretty much concluded that there wasn’t a need for a specific veracity assessment  “I have seen nothing to suggest that what these children say requires interpretations by an expert, beyond the accommodation of the factors identified in this report. I hope that I have set out the significant factors and possibilities in this case in such a way that weight can be placed on relevant factors, including any new information that emerges.”


In the end, nobody relied on the report, and the Judge at final hearing, Jackson J, indicated that the parties had been premature in seeking such an assessment.  The child in question was a capable witness who could have been called and had questions put to them, and that was a much better way of getting to the truth than having an expert look at things.

The Judge expressed doubts about whether a veracity assessment could meet the current test for expert reports – it might be informative, or useful, but it could hardly be necessary.

Veracity assessments / validation exercises

  1. Having received short submissions from the parties and having consulted the current experience of colleagues, I believe that three principles can be identified:

    1) As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true. That was the conclusion of the Court of Appeal in Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195, interpreting Section 3 of the Civil Evidence Act 1972. It held that expert evidence dealing with issues, including the ultimate issue, was admissible, subject to the overriding requirement of relevance, which, together with questions of weight, was a matter for the judge. At page 210, Butler-Sloss LJ said: “The modern view is to regulate such matters by way of weight, rather than admissibility. But when the judge is of the opinion that the witness’s expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence, while never losing sight of the fact that the final decision is for him.”2) The Court of Appeal left open the question of whether and to what extent the court had a power to exclude evidence that was admissible and potentially relevant. That question has now been answered by FPR 2010 Rule 25.4 which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.

    3) In my view, cases in which it will be necessary to seek expert evidence of this sort will nowadays be rare. While the decision must rest on the facts of the individual case, judicial awareness of these issues has greatly increased, from the Cleveland Inquiry in 1987 to the most recent iteration of the principles of Achieving Best Evidence in 2011. In the two decades since Re M and R (above), understanding has naturally moved on. The process continues to evolve, with the final report of the Children and Vulnerable Witnesses Working Group set up in 2014 by the President of the Family Division expected shortly. The overall result is that judges have been trained in and are expected to be familiar with the assessment of evidence of this kind. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.

  2. I note that in D v B & Others [2006] EWHC 2987 (Fam), Mr Stephen (now HHJ) Wildblood QC said that “Personally I find veracity evidence of assistance in many cases in this field of exceptional difficulty.” In that case, matters had gone awry after the veracity expert went far beyond her proper remit and then changed her opinion after leaving the witness box. It might be seen as an extreme illustration of the potential pitfalls of admitting evidence of this kind.
  3. I also note the observations of Baker J in A London Borough Council v K [2009] EWHC 850 (Fam):

    “… this case has, to my mind, demonstrated that veracity or validity assessments have a limited role to play in family proceedings. They are, so far as I am aware, unused in criminal proceedings in this country, and I see strong arguments for imposing restrictions on their use in family cases as well. … there is a danger that some courts, faced with these difficult decisions, will subconsciously defer to the apparent expert. That danger has been recognised in a number of cases in which the courts have emphasised the discrete roles of the expert and the court. In the case of the veracity expert, the danger is particularly acute. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone. He cannot delegate that decision to any expert. I acknowledge that a child psychiatrist… may be able to point out some features of a child’s account that add or detract from authenticity… But, in my experience, many of these features should be obvious to judges in any event. No expert, however experienced and however well briefed about the case, will be in a position to say where the truth lies. Only the judge sees and hears all the evidence.”

  4. I entirely agree with that statement of principle. I acknowledge that judges, however experienced, benefit from the knowledge that experts bring, but that knowledge can be absorbed through judicial training and awareness of the well-known protocols of good practice; it does not have to be imparted case by case with the attendant expense that is bound to arise.
  5. In the present case, the parties now accept that the children’s evidence should have been studied before the question of a ‘veracity’ or ‘validation’ assessment was considered, and that if that course had been taken, it is unlikely that the application would have been made, let alone granted. I agree. In the event, the parties did not refer to the resulting report during the fact-finding hearing, nor did I do so when determining the veracity of the children’s allegations.


If your assessment of my veracity when I claimed in the title to be a veracity assessor was that I was lying, then congratulations, you were right. You might want to consider becoming a veracity assessor. Or you might not, given that you’re not going to get any instructions.


[I can see some scope for a veracity assessment where there is something about the child’s  background which makes them give their responses in a way that would be consistent with them being a liar when compared with an average person from England, but is more about their culture or disability, but I think that’s more about an assessment of child’s presentation or functioning than about veracity per se]


NB, a voracity assessment might be a very different thing, and there might still be a place for those…

I would put this as a must-read (adoption case, dynamite)


The case is very fact-specific (the facts are extraordinary) but it is still very important.


I’ve written before about the leave to oppose adoption case law and whether this is a meaningful legal right given that there are no reported cases of an adoption being successfully opposed (there’s one law report of a Court being persuaded to make a Residence Order rather than adoption, but the child remaining with the prospective adopters).


For it to be a meaningful legal right, there must be some set of circumstances which would result in the opposition to adoption resulting in placement back in the birth family. But, the consequences of that for the recruitment and retention of adopters is massive.


As Holman J observed, this case is likely to attract strong opinions on both sides, and it does turn very much on an unprecedented set of facts.


Re A and B and Rotherham Metropolitan Borough Council 2014




The child, C, was the subject of Care proceedings and a Care Order and Placement Order were made in August 2013. The child was placed with prospective adopters (A and B) and they duly applied for an adoption order.


At the time of this hearing, the child was 20 months old and had lived with A and B for 13 months.


The child’s genetic father, who had not been a party to the care proceedings (and who does not hold PR for the child) sought leave to oppose.


This is the telling paragraph


It is accepted by all concerned in this case that if the father had come forward and the true paternity had been established at any time up to the moment when the child was actually placed with A and B, then he would not have been placed with them and, after due assessment of her, would almost certainly have been placed with the aunt.



I’d urge you to read the whole thing, but that paragraph is dynamite.


As is this one


The case and dilemma has provoked divergent professional opinions. The front line social workers for each of the child and A and B support the making of an adoption order. A child psychologist who was jointly instructed to perform a “paper exercise”, but has not met anyone concerned, favours the making of an adoption order. The Director of Safeguarding Children and Families and interim Strategic Director Children’s Services of the local authority (equivalent to the Director of Social Services in this field), who is the decision maker and who expresses the considered opinion and case of the local authority, firmly resists adoption and advocates that the child moves to live with the aunt. The child’s guardian also strongly advocates that outcome.



That made me blink several times, so I will spell it out. The social workers supported the adoption, but the Guardian AND MORE SIGNIFICANTLY the Director of Social Services supported the child being placed with the paternal aunt.


That really is an extremely difficult issue to resolve. As a Local Authority legal hack, the idea of a Director and Social Worker in an intractable difference of opinion makes me shudder. [This Director was clearly very fair minded in not just saying “well, I’m the big boss, so do what I say”]


I’m not surprised by what Holman J says at the opening of this judgment.



I have been a full time judge of the Family Division for almost twenty years. In all that time, apart from cases concerning serious ill health, I have rarely heard a more harrowing case. The hearing was a very painful one for all concerned, and I sincerely thank all parties and the professional witnesses for their attention, dignity and, to the extent possible, good humour. I know, and deeply regret, that my decision will cause intense grief. After hearing all the evidence and argument, and after due consideration, I am, however, clear as to the outcome, which I do not reach narrowly or marginally.



I’ve read many of Holman J’s judgments over the last few years, and he really has dealt with harrowing, peculiar and emotionally draining cases repeatedly, so to say that speaks volumes.



This passage will probably appear again – it is how the Court deals with the issue of “speculation” (and I think it is wonderfully constructed)


There is one further “legal” matter which it is convenient to mention in this section of this judgment. At times during the hearing, when longer term risks or advantages were being mentioned or considered, Mr Power referred, understandably but somewhat dismissively, to “speculation”. Advocates, and also judges, often do dismiss points as speculative or speculation. However, in relation to adoption, the Adoption and Children Act 2002 very clearly does require courts (and adoption agencies) to speculate. It requires, as the overarching duty, that the paramount consideration must be the child’s welfare throughout his life. This child is still less than two. He is healthy, and his normal life expectancy may be around a further 80 years. It is probable (but speculative) that he and his half sister, F, and his cousin, G, will outlive all the adults in this case by many years. I am required by statute to take a very long term view, but I cannot gaze into a crystal ball. I can only speculate. More specifically, the court is required by section 1(4) (c) of the Act to have regard to “the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person.” Whilst that paragraph requires the court to consider only the “likely” effect, any such consideration involves speculation; and (speaking generally) the further ahead one looks (and one must envisage a whole lifetime) the more speculative such consideration necessarily becomes. My decision in this case does include speculation. That is what Parliament has told me to do.



You may, as I was, be interested in how it was that this aunt was not a feature in the care proceedings. If she had been known about then, the Placement Order would not have been made and the child never placed with the prospective adopters A and B. So why wasn’t she known about?



This is the most fact-specific bit of the case, I think. (It is not THAT unusual for a birth father to be untraced during the proceedings and to appear later, it is the WHY that is significant here. Mr E here is NOT the genetic father, but he is the man who appears on the birth certificate as the father, and who was treated as the father in care proceedings)


The mother is a young woman of white ethnicity who is still in her very early twenties. She has had problems with both alcohol and drugs. While a teenager she had already had two children by different fathers. They are now aged about 5 and nearly 4. They were removed into care and have since been adopted together by one adoptive family. (I will refer to them later as the adopted maternal half siblings.) The mother began a relationship with Mr E. He, too, has had an unstable past and has a criminal record for a range of offences of both violence and dishonesty, and a recorded history of drug abuse. In March 2013 the mother gave birth to C. He was a normal, healthy baby, and is now a normal, healthy young child. As had already been pre-planned by Rotherham, care proceedings were immediately commenced and the baby was removed from the mother five days after his birth and placed with foster parents. Neither the mother nor Mr E engaged with the care proceedings nor, effectively, with the local authority. However, the mother and Mr E jointly registered the birth on 18 April 2013, jointly stating and signing that Mr E was the father to the best of their knowledge and belief.


[Keep that in mind – the mother was white]



The child’s social worker, from the end of March 2013 and still now, is Miss Claire Fogwill. She did not know or meet Mr E for some time. She did, however, see the baby. I have seen photographs taken of him shortly after his birth, including the original colour photograph which is part of the later formal application form for the placement order. Although not black, the baby is very obviously very brown and has obvious negroid features. These are not racist comments. They are relevant facts. As all concerned with the case agree, he very obviously appeared to be of mixed race. Miss Fogwill said in her oral evidence that “when [she] first saw him as a baby he seemed obviously to have a black parent or at any rate a strong black/negroid genetic strain.”


Miss Fogwill was finally able to meet Mr E, who was in prison, on 22 May 2013. She said that she was expecting to meet a black man and “was quite shocked” when he came into the room, since he appeared to be an entirely white man. She asked him whether he was the biological father. He said that he was. (It is, of course, entirely possible that the mother had assured Mr E that he was the father, if she had never confessed to him that she had been having sex on the side with the actual father. As I have no evidence at all from either the mother or Mr E, I simply do not know.) Miss Fogwill questioned Mr E further and, according to Miss Fogwill, he told her that the baby was very brown because he, Mr E, had a Burmese mother, and added that the baby would become paler with age. Neither Miss Fogwill nor, so far as I am aware, anyone else, took any steps to seek to verify whether in truth Mr E has a Burmese mother. I personally do not have the slightest idea. Miss Fogwill claimed that she was “not able to meet the mother again to ask her about paternity”, but in truth she made little effort to do so, and she made no enquiries of the mother’s own mother whose whereabouts were settled and known.


Miss Fogwill made reports to Looked After Reviews on 12 April, 13 May and 11 July 2013. Also present at, and chairing, these reviews was the Independent Reviewing Officer (IRO). The minutes of the first two reviews record that the child “… is a child of mixed heritage. His mother is white British … the social worker is, to date, unclear of father’s ethnicity and has asked [sic] father to clarify this …” The minutes of the review on 11 July, also chaired by the IRO, record that “… the social worker has clarified with father that he is dual heritage as his mother is Burmese … the parents wished for the child to be referred to as White British, despite his presentation not reflecting this. Father [viz Mr E] informed the social worker that he expected the child’s skin colour to change with age …” There is no hint in those minutes that the IRO queried the account of paternity or suggested that further enquiries should be made. I do not make a criticism of the IRO for she has not been involved in this hearing and has had no opportunity to state her own point of view, but I accept the point made by Mr Prest that the responsibility of Miss Fogwill appears to have been shared with others. Miss Fogwill has, however, accepted that she made a serious error in swallowing the explanation of the Burmese mother (i.e. the child’s grandmother) and not investigating paternity further, and she has apologised from the witness box to both the true paternal family and the applicants for adoption. Miss Fogwill’s formal report to the court dated 28 June 2013 in support of the application for a placement order depicts a photograph of the child as I have already described, and refers to his having black hair and brown eyes and a dark complexion. It continues that the mother is white British and Mr E is half white British and half Burmese as his mum was Burmese and father white British. “[C’s] skin is quite dark however [Mr E] states that as [C] becomes older his skin will become paler. [Mr E’s] skin is white.”


The present guardian, Mrs Sheila Hassall, also acted in the care and placement proceedings. In her report dated 19 July 2013 she describes Mr E as “White British Burmese” and says at paragraph 12 “[C’s] paternal grandmother is Burmese, although I understand his father [viz Mr E] views himself as white British. At present [C] has the appearance of a baby who is not white British …” As I understand it, the guardian herself never actually met either the mother or Mr E. So she merely accepted the story via the social worker. She said that she only ever saw a blurred black and white photocopy photograph of the child. She said that she visited the baby once at the home of the foster mother. However he was asleep, face downwards, with his head largely covered. She only saw one arm sticking out. The arm looked brown but she did not examine the baby further. Mrs Hassall accepted her share of responsibility. She said during her oral evidence: “I make a heartfelt apology we are in this situation. I feel desperately sorry for all those involved.”


I have already referred to the report to the court for the application for a placement order. I do not know whether the circuit judge saw the original with the colour photograph which, as I have described, very clearly depicts a brown child of mixed race with negroid features; or whether he saw a black and white photocopy, one version of which I have seen, which shows the child’s face as a barely distinguishable large black blob like a large blob of spilt ink. At all events, the judge appears not to have raised any question about true paternity at the, probably short, hearing when he made the care and placement orders.



If you are following this, Mr E was named as the father on the birth certificate, the mother said that he was the father, and he said he was the father. The contradictory evidence (of people’s eyes) was firstly an area that people feel uncomfortable with – that of colour, and secondly Mr E had given an explanation for it that was accepted. On that first point, just reading the paragraph, even when said by a Judge, it made me feel uncomfortable to read that ‘n’ word.


So a last opportunity seriously to question paternity and consider obvious avenues of further enquiry was lost. I accept, of course, that such enquiries might not necessarily have uncovered the true father, but they well might have done, for the affair between the true father and the mother was well known in the community and circle within which they lived. The mother’s own mother certainly knew the true facts, as will later appear.



Let’s also not forget that in a culture of 26 weeks, no delay, and assessments only being done if they are ‘necessary’, it might have taken some persuasion to get the DNA test of Mr E done. If it had been done, the proceedings would have been delayed, but an inordinate amount of time and pain would have been avoided.


How did the real father ever find out about this? Deep breath, because this is quite complicated too.


The father was in a long-term relationship with someone else, Miss D. When he had been sleeping with the mother, he was cheating on Miss D. There had been speculation in the community and gossip, and someone came up to Miss D and showed her a photograph of the child as a baby.


Soon after the child was born someone showed Miss D a photograph of the baby. She could see that the colour and the features looked like her own daughter, F, and also like the father. She told him “I really think he is your child.” He continued to deny to her that he had had sex with the mother and that, therefore, he could be the father.


It seems, though this is not explicit, that these suspicions continued and finally the father’s sister (the aunt in question) approached the Local Authority in March 2014   to say that she thought her brother was the true father of this child. (For timing purposes, that’s seven months after the Placement Order, and two months after the prospective adopters had made their application to adopt)


On 6 March 2014 the aunt first contacted the social services and said that her brother might be the father of the baby. Miss Fogwill was shocked and surprised by this news. She and a more senior colleague interviewed the father on 14 March 2014. She then immediately arranged for DNA sampling and testing of the baby and the man, and a report dated 24 March 2014 established a 99.9999 per cent probability that he is indeed the father. All parties including A and B accept that he definitely is the father and the case has since proceeded on that basis. The father is a black African who was born and brought up in that continent. He is now aged 32. His own father died when he was young. He himself travelled to England in 2001 and claimed asylum. He has lived here ever since and has indefinite leave to remain. He is the seventh of a large family of eight children. His own mother, now aged 64, now lives in the Midlands. Two brothers live in the Midlands and South Wales. A sister lives in East Anglia, and his youngest sister, the aunt, lives in the Home Counties. The brothers and sisters in England and Wales have between them eight children who are paternal first cousins of C. Some of them are of mixed race, having also a white parent. The father’s three other siblings live variously within Africa and Canada. There is, therefore, a considerable extended paternal family, mostly located within England and Wales.



But hold on a minute – this all happened within a small community, and whether the father knew or not that he was the genetic father of this baby, he must surely have known that as he had been sleeping with the mother, there was a chance that he might have been?   The Judge found that he was aware of that.


And did he know that the baby was in care?


This evidence as a whole satisfies me that, within a very few weeks of the birth at the latest, the father knew perfectly well that it was highly likely that he was the father of the baby. He could not of course be certain, since he knew also that the mother had had other sexual partners. But she told him, in effect, that the baby was half black and that he had been her only black partner. Short of DNA testing, the likelihood was obvious.


He took no action at all. He showed no real interest in the baby, or even much interest in seeing him, although he did ask the mother if he could do so. I do not know why not, but it was probably due, at least in part, to his continuing stance of denial to Miss D. Whatever the reason, it is a significant part of the history of this case that for almost a year the father showed no interest at all in, or commitment at all to, the child, and denied rather than asserted that he was the father. So as well as the responsibility of Rotherham, the guardian, and possibly the court, for not investigating paternity further, a very heavy responsibility for events lies upon the father. If he had shown any real interest in the baby and put himself forward in any way as the likely father, then the true facts would probably have emerged much earlier and the baby would never have been placed with A and B.


A separate and distinct question is when the father first learned that the baby was in care. His case is that he learned this for the first time at the beginning of March 2014. He said that he saw the mother’s mother in the town. He asked her where the child was. The mother’s mother said that he was in care and that the mother had lied to him. He then immediately spoke to and told his sister, the aunt, and at his request she immediately contacted the social services. He says that in the first weeks after the birth he had indeed asked the mother if he could see the baby and she had fobbed him off by saying that the baby was staying with her mother or sister. She also misled him into thinking that she was caring for the baby by asking him on a few occasions for money for nappies.


To the very end of his evidence, even when recalled and admitting what I have recorded above with regard to his knowledge of paternity, the father remained adamant that it was only around early March 2014 that he first learned that the baby was in care, and that he at once informed the social services and requested that he or his family could care for the baby.



This last point might be critical – if the father knew that he was probably the baby’s father, he could have legitimately kept quiet not to rock the boat and jeopardise his relationship with Miss D UP UNTIL he knew that the baby was in care, whereupon it was time to speak up.


The Court concluded that his evidence that he had not known until shortly before his sister approached Social Services should be accepted.


I have to decide whether I am satisfied on a balance of probability that the father knew that the baby was in care as early as about April 2013, as the local authority allege; or only in early March 2014, as he himself claims. On this issue there is force in the point Miss Ford makes on the third page of her written closing submissions dated 21.11.14, and as she elaborated orally. The father’s case is that he first learned that the baby, of whom he was likely to be the father, was in care in early March 2014. He immediately contacted the social services (initially via his sister) and has, unquestionably, strenuously sought the move of the child to live with him or his family ever since. It was only later that he learned that the child had actually been placed for adoption or that there was a current application to adopt him. So, as Miss Ford puts it, his conduct by contacting social workers in March 2014 can only be explained by his having only recently learned that the child was in care. No other event or trigger has been identified as to why, having done nothing and shown no interest for so long, he suddenly did then make the contact which he did. Miss Ford asks, rhetorically: Assuming that he had known that the child was in care from, say, mid or late April 2013, why did he suddenly do something and with such resolve in March 2014? She submits that the activity in and after March 2014, for which there is no known other explanation, is really only consistent with his having recently learned in March 2014 that the child was in care.


I take into account the demeanour of the father in the witness box when he was recalled. At the same time as now admitting that soon after the birth the mother herself had told him that he was the father, he maintained his account, apparently convincingly, that he only knew that the baby was in care almost a year later, and said that the social worker must have misunderstood him. I also accept the force of Miss Ford’s point as described in the previous paragraph. There was room for misunderstanding, and I am not satisfied on a balance of probability that the father knew that the baby had been taken into care earlier than early March 2014, when he took action at once.




So, that’s how this situation arose. The person who had been treated as the father in the care proceedings was not the real father, and the real father had not known of the care proceedings because nobody had thought to tell him. The only person who knew both key sets of facts was the mother, and she had taken no action.  [The maternal grandmother might have known, by my reading, but whether that is definitive is hard to say]



The judgment then talks about the various assessments, but the long and the short of it is, the options available were to make an adoption order to A and B, or to remove the child from A and B and to place with the paternal aunt.


A and B were clearly very good, capable and loving people, well capable of caring for the child. The Judge said this about them :-



Even before C was matched with them, A and B prepared themselves very thoroughly as prospective adopters. They read widely. They attended courses. They learned about the importance of attachment, stimulation and other parenting qualities. This stood them and him in good stead. I accept unreservedly the current assessment by Miss Lancaster that A and B are the “perfect” adoptive couple. She said in her oral evidence that in spite of all the challenges they are remarkable people. They are excellent adopters doing a remarkable job. If she could paint the ideal adopters they are not far from the mark. They have an excellent understanding about attachment, about which they were trained. The have a very good understanding about the impact of loss and trauma. They have great appreciation of the kind of parenting styles that work well.


I accept unreservedly that C is now very well attached to A and B. He feels, and is, secure with them. They provide an excellent home. They are also undoubtedly deeply attached to him. B said very movingly “He is such a happy, settled, loving little person who knows who we are … I am so proud of him. I love him so much. I will always love him. He will always be my son.” C is also a familiar and much loved member of the extended families of both A and B.


There is no doubt that if the true paternal family had not emerged and put themselves forward in the way that they have, an adoption order would have been made several months ago.



And the Aunt?

My own impression of the aunt was very favourable. She is much more articulate than her brother, the father. She appeared to be thoughtful and flexible, and insightful and understanding of the issues in this case. She said that she has prepared her own son, G, for the possibility that he might be joined by another, younger, boy. She talks to G about C, and G would not be surprised if C became part of their family. She said that G himself is a lovely boy, very caring and very sharing, who plays very well with other kids. She paid generous and sincere tribute to A and B although of course she has never met nor seen them. She said she was just so grateful for what they have done. It is beautiful. They have taken very good care of him.



Even the social workers who were supporting the child being adopted by A and B were not critical of the aunt, just feeling that the child ought not to be moved.



[I will quickly note that the Aunt and Miss D were represented pro bono by counsel and solicitors, which was an extremely helpful and generous thing]


Holman J made it plain at the outset and repeatedly, that he was not approaching the case in a narrow “nothing else will do” manner, due to the recent authorities, but in weighing everything up as to what order would best meet the child’s needs throughout their lifetime.



The legal framework as I have so far described it is agreed by all the advocates in the case, including that I must apply all the relevant parts of section 1 of the Act. In their written skeleton arguments and written final submissions, as well as in their brief oral final submissions, there has been some debate between the advocates as to whether, in applying section 1, I should adopt the approach that I should only make an adoption order if “nothing else will do”. This led to some brief examination of the judgments of the Supreme Court in Re B (a child) [2013] UKSC 33, and some later judgments of the Court of Appeal in which that court appears to have been exercised by what the Supreme Court actually meant by what they said in Re B (most recently the judgments delivered by the Court of Appeal only two weeks ago on 18 November 2014 in CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479).


In my view that is a debate and territory into which I need not and should not enter. The legal and factual situations in those cases were different. In the present case, the child has already been lawfully and appropriately placed for adoption with A and B for over a year. A range of rights under Article 8 of the ECHR is engaged. There is a continuing legal relationship between the child and his paternal genetic family, with whom he has a father, grandmother, aunts, uncles and a paternal half sibling, but no current psychological relationship. He has never met any of them. (He also has several cousins but they are outside the definition of “relative” in section 144 (1) of the Act.) In this case the child unquestionably also has a private and family life and a home with A and B, and they with him, for which all three of them have the right to respect under Article 8. With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”. (Indeed Mr Nicholas Power might have argued on behalf of A and B, but wisely chose not to do so, that there could now be no interference with the Article 8 rights as between A and B and C mutually except if “necessary” within the meaning of Article 8(2).) Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires. If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.




The parties had all drawn up balance sheets, and the Judge said something that I find very helpful when looking at balance sheets.


I have read and re-read those “balance sheets” and all the written closing submissions, and I have all the points listed there in mind. Judges frequently use the language of “balance” and “balance sheets” (and I do myself. I think lists such as the above are indeed very helpful). But the analogy with balancing scales may be misleading. When weights or objects are put on either side of a scale, their individual precise weights are known, or ascertainable. You can put four objects in one scale pan and seven in the other, and the scales will come down one way or the other due to the aggregate of the individual precise and ascertainable weights on each side. In a case such as this, however, none of the factors have precise weights. All that may be said of any individual factor is that, as a matter of judgment, it is more or less important or weighty than another. Mr Power’s list is long on the advantages of adoption and short on the disadvantages. It is not, however, the number of factors which counts but their respective importance. The Adoption and Children Act 2002 does not itself use the language of balance. It requires the court to “have regard to” all relevant matters, including those specifically referred to in section 1(4). The effect of section 1(6) is that the court must then make a judgment (applying section 1(2) and the paramountcy of welfare throughout the child’s life) whether making (in this case) an adoption order “would be better for the child than not doing so.”




I often read judgments from the High Court and thank my lucky stars that I am not, and never will be a Judge called upon to decide between two impossible situations. This was one of those occasions.


My condensing of this judgment is not, and could not be, a fair reflection of the deliberation that the Judge undertook. I would urge you to read the whole judgment to get a proper reflection of the complexities of this matter.


Nonetheless, you want to know the outcome, and I need to give it to you, so that debate can occur.



This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.


It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.


The care order made on 2 August 2013 now once again has effect. Rotherham, in whose care C again now is, must engage intensively with all the relevant parties, and file and circulate within three weeks a written care plan setting out their plan for C and how they will implement, in the least damaging way, the process of his move from A and B to the aunt. It is impossible for me or any court to micro-manage that plan and process, and inconsistent with the respective roles and duties of the local authority and the court that I or the court should attempt to do so. If (as I sincerely hope will not be the case) any further resort to the court is necessary, application must be made locally to the designated family judge in Sheffield. A copy of this judgment must be given to, and read by, the Independent Reviewing Officer and all social workers having any continuing role with these families.


I have found this decision extremely painful, for I sincerely and deeply appreciate the intense grief it will cause to A and B and to their extended families and friends. But I have not, in the end, found it difficult; and, as I said at the outset of this judgment, it is not one which I reach narrowly or marginally. At the directions hearing in Leeds, when I had read few of the papers (and there were several key documents still to come) and before I had heard any of the oral evidence or argument, I described this as a finely balanced case. By the end, I do not think that it is. I am clear that the welfare of C throughout his life decisively requires that he is not adopted but moves to live with the aunt. It is my duty to make that welfare paramount.




There are a lot of very fact specific components to this case – it is unlikely that another case with exactly these issues will ever appear again. So it is not a definitive ruling for anything other than a case with these particular facts.


Nonetheless it is



  • The first successfully opposed adoption that I have seen since the 2002 Act came into being (and I didn’t find any reported ones going back to the 1976 Act, though I could have missed them)



  • Potentially significant – here, the assertions of mother and Mr E that Mr E was the father was accepted, and a true father emerged later. That particular set of circumstances (stripped of all of the ethnic features and clandestine affairs) is probably not that unusual. Local Authorities and Courts are somewhat dependent on a mother telling them that there is more than one putative father. Will we see successful challenges to adoption on that narrower aspect? Will we see Courts being more inclined to DNA test putative fathers even where mother is saying that there is only one putative father?



I don’t normally write on financial cases, but this one is rather significant (and one can see that it might end up bleeding into other areas)


Seagrove v Sullivan (Practice Directions re bundles and citations of authorities) 2014


This was a case in which Mr Sullivan had lived with Ms Seagrove for over twenty years and they had had children together, but never married. The youngest child was ten. Mr Sullivan owned a house, valued at around £2,300,000.


The equity in that property amounted to about £1 million.


Ms Seagrove had made a claim under TOLATA Trusts of Land and Appointment of Trustees Act 1996, and under Schedule 1 of the Children Act 1989 to seek a financial interest in that property and its 14 acres of land, as there was no marriage ancillary relief was not an option.


The case came before Holman J.


He was, well aghast doesn’t seem to overstate it. This former couple were litigating about whether Ms Seagrove was entitled to a half share in a property whose equity is worth a million, so the sum of money in dispute is £500,000.


For reasons that are unintelligible (unless you do cases involving financial disputes between former lovers where things have gone sour), they’ve spent £1,300,000 so far, arguing about £500,000.


Since she first instructed solicitors following the breakdown of their relationship, Sandra has incurred (including her estimated costs to the end of a fully contested current hearing) costs of about £800,000 inclusive of VAT. She, indeed, currently appears to be heavily in debt as a result. Larry has incurred costs of about £506,000, inclusive of VAT. So, between them, these two parties, who lived together for over 20 years and bore three children, to whom I am sure they are each devoted, have now incurred, or anticipate incurring, expenditure of about £1,300,000 on legal costs.



What are they arguing about? They are arguing about a claimed half share in an asset that may be worth around £1 million. So they are arguing about £500,000. What they have incurred in costs is not far short of three times the amount in dispute. Others might use other words of description, but as this is a judgment in a courtroom, I will merely say that the costs, and also the scale and intensity of this litigation, have been, and are, completely disproportionate.



Holman J was also considerably irritated at the volume of papers lodged in the case.


Having referred to the completely disproportionate costs that have been incurred, I turn now to the documentation which underlines the scale and intensity of this dispute. There were delivered to the court yesterday, or the day before, five large lever arch bundles of documents, which comprise over 2,000 pages, inclusive of the respective skeleton arguments, which are each just under 25 pages. There were also delivered to the court two large bundles and one more slender bundle containing no less than 32 authorities. As if that were not bad enough (as I will later describe), I was, frankly, flabbergasted this morning when the solicitors arrived at the court at about 10.10 am with another large cardboard box containing an additional five large lever arch files of additional documents (these are the ones with lavender coloured card on their spines). I have been told that those additional five bundles contain around a further 1,500 pages of documents. So, in aggregate, at the outset of this hearing, these parties are expecting consideration of all or part of 3,500 pages of documents as well as all or part of the 32 authorities. This needs to be considered within the framework that rule makers and the most senior judiciary have endeavoured to establish in order to ensure the proportionality of litigation.



It has been many years since I did a TOLATA claim, but a quick look at the Court fees schedule suggests that the fee is probably £255 (treating it as a family financial application), but no higher than £2,000 (treating it as a money claim).


I don’t know Holman J’s hourly rate, but to read 3000 pages is a considerable expense to the taxpayer, which is in no way covered by that standard fee.


I can imagine the baleful look that the solicitor got when he or she came in with a box of five further lever arch files.



Building on Mostyn J’s recent decision in Re J, Holman J reminded everyone about the Rules on bundles



In order to try to exert some control over documentation, which always has a considerable knock-on effect on the length and complexity of hearings, numerous practice directions have been made over the years by Presidents of the Family Division and other heads of divisions. The current practice direction in relation to bundles and documents is Practice Direction 27A, which is itself part of Part 27 of the Family Procedure Rules. This practice direction was issued by the President of the Family Division in April 2014. It was issued after a process of consultation with the well known professional organisations and associations of both the solicitors’ and barristers’ branches of the profession. It did not come out of the blue, and its existence has patently been well known now for an appreciable period of time by all the lawyers engaged in this case.



Of most relevance to the present situation is paragraph 5.1. That was specified by paragraph 13.2 to “have effect from 31 July 2014”. We are now four months on from 31 July 2014. Paragraph 5.1 provides as follows:



“Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one [I emphasise the word, one]A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text.”


A later “statement”, to which I will shortly refer, makes plain that the 350 sides of text must be inclusive, not exclusive, of the sides of paper in counsel’s skeleton arguments



That’s right – unless the Court has specifically directed so, there is to be ONE bundle, of no more than 350 pages (including skeletons)


Holman J noted what Mostyn J had said when deprecating the practice which has sprung up of the parties agreeing the contents of that one bundle between themselves, but then lodging loads of supplementary bundles on the basis that the Court would be bounced into allowing all of that material, and agreed.



Mostyn J continued in a very important passage:



‘I also deprecate a practice of circumvention of which I have become aware. That is for the lawyers for both sides to agree a single “core” bundle and, in addition, an archive of many volumes of expensively prepared secondary or background material. This archive is then brought to trial in the confident belief and expectation that the trial judge will grant permission pursuant to PD27A para 5.1 at the final hearing itself to use documents from the archive. This is no better than the old regime which the new prescription was designed to stamp out … It is possible, of course, that, unexpectedly, further documents may be need to be deployed at the final hearing; but the starting point, and the usual finishing point must be that all the relevant documents should be in the single bundle …”



The advocates attempted to argue that a previous direction given in the proceedings that


Bundles are to be agreed between the solicitors (in consultation with counsel) and prepared by no later than 14 days before the final hearing.


Was in effect a direction that the parties could lodge such documents as they agreed amongst themselves.


“I thought we had Cate Blanchett?”


Holman J manifestly disagreed


The argument was that, by saying that “bundles are to be agreed between solicitors”, Moor J was giving some apparent carte blanche to the parties, through their solicitors, to include in the bundles anything that they wished to do so. Mr Wagstaffe denied that he was advancing such an argument, but, frankly, that is what his argument amounts to. He submits that the use of the words “bundles are to be agreed between solicitors” amounted to a “specific direction otherwise” and authorised bundles to exceed a total of 350 sides of text. Logically, his argument does mean that all and any documents that the solicitors “agreed” could go into the bundles could indeed be included, no matter how many or how long.



To my mind, that argument is spurious. It is inconceivable that, at the same time as ruling, by paragraph 10 of his order, that skeleton arguments were not permitted to exceed 25 pages, Moor J could have intended, or for a moment contemplated, that he was giving carte blanche * to these solicitors and parties to put in whatever documents they liked, no matter how many pages. In my view, there is no “specific direction” otherwise in this case and, as castigated by Mostyn J at paragraph 47 of J v J, the lawyers in this case have approached the case as if the terms of the practice direction “just did not apply to them”.



The courts have to exert discipline in relation to this. I stress, as Mostyn J did in J v J at paragraph 53, that if parties wish, at their own expense, to litigate to their hearts’ content, with thousands and thousands of pages of documents, there is a mechanism available to them known as private arbitration. But litigation within the courts has to be the subject of much more rigorous discipline and structure, precisely because the courts have a duty to ensure that an appropriate, but only an appropriate, share of the court’s resources are allocated to any one case. The same judges have to deal also with an enormous number of very difficult cases involving the future of vulnerable children, and the care and treatment of sick people, including mentally incapacitated people. It is simply not tolerable that we go on and on affording to people like Sandra and Larry an estimated eight days of court time on a dispute that ultimately is measured in something not exceeding about £500,000.



The cost of running these courts is not inconsiderable. I cannot specify what the daily cost is, for I do not know, but the state has to provide and pay for the judge, the court staff, the “back office” staff, the provision of the courtroom, the maintenance of the courtroom and all the other associated costs. It is obvious that the daily running costs of a court and courtroom such as this run into several thousands of pounds. Multiply that by eight and one can see at once that there is an expectation that this state, which as we all know is struggling still to rein in the deficit following the recession, should expend completely disproportionate amounts on resolving issues and disputes of this kind.



[* the Judge clearly meant “Cate Blanchett” here]



The Judge also looked at the timescales for the final hearing




A large part of the ridiculous time estimates in this and other financial cases is referable to the sort of volume of documents, including authorities, that parties still assemble and marshal. This case was given an estimate of eight days, with a detailed trial template. That template contemplates that, after one day of reading and six days of evidence and argument, the judge should be able to give an ex tempore judgment on the afternoon of the eighth day, after merely the morning of the eighth day for consideration. It is fair to the parties and their lawyers to say that that “trial template” was annexed to the order made by Moor J on 11 June 2014. It may be that that particular judge has the mental capacity to listen to seven days of evidence and argument, to absorb up to 3,500 pages of documents and 32 authorities, and still give an ex tempore judgment in what, on that scenario, would be a very detailed case, after merely one morning of consideration. Frankly, I doubt it.



Currently, this estimate is an unrealistic estimate for a case on the scale that the parties or their lawyers contemplate. If this case were to run, including all the evidence and submissions, to the end of day seven, it would manifestly require at least two days for preparation of a detailed, considered judgment, and then a day for delivery of the judgment and working out the aftermath. In other words, frankly, as things stand, the estimate that the parties are putting forward is one not of eight, but of ten days.



If you think that Holman J was about to take ten days of litigation over £500,000 when the parties had already blown £1,300,000 arguing about it, then I have a bridge that I am interested in selling you.


I am absolutely determined, in this case, not to allow that to happen. There has been wholesale breach of the practice direction and of Mostyn J’s statement with regard to documents, and total disregard of the Lord Chief Justice’s direction with regard to the citation of authorities. I propose to deal with it, in this case, as follows. Except for the two skeleton arguments and the chronology, every single piece of paper that has so far been lodged will be taken away from this courtroom now. All the bundles of authorities will be taken away from this courtroom now.



I will adjourn this case now until 10.30 tomorrow morning. At 10.30 tomorrow morning, unless by then the parties have reached an overall settlement of this case, they must attend with one, single, composite bundle, containing not more than 300 pages as the President’s direction requires. I say 300, for I am excluding and retaining the two existing skeleton arguments, which, as I have said, extend to about 50 pages. There must be only one bundle of not more than five authorities.



If the parties cannot agree as to the contents of the documents bundle, then each side can select 150 pages of their own choosing, thereby making the total of 300. If they cannot agree on authorities, then they must at least agree on one essential authority (probably Jones v Kernott) and they may each include two further authorities of their own choosing.



On the skeleton authorities, Holman J was perplexed to see a bundle of 32 authorities, given that the two leading authorities are from the Supreme Court and that those authorities marshall and draw together all of the previous jurisprudence.


This morning, Mr Christopher Wagstaffe QC, on behalf of Sandra, and Mr Richard Todd QC, on behalf of Larry, have endeavoured to address these matters and, to some extent, to justify their positions. It is fair to say that, on behalf of Larry, Mr Todd immediately said that it was “absolutely right that the costs are disproportionate” and indicated that he and his side share my concern about the scale of the documentation. But even Mr Todd, in relation to the assembly of the 32 authorities in apparent disregard of the Lord Chief Justice’s practice direction, sought to justify his position. He fastened on the words “unless the scale of the appeal warrants more extensive citation”. He suggested in a general way that the law in relation to the topic of beneficial interests is complex, so that, somehow, the scale of this case warrants the citation of no less than 32 authorities.



I completely reject that suggestion. When the Lord Chief Justice referred to “the scale of the appeal”, which may be paraphrased as meaning, in this context, “the scale of the case”, that does not simply refer to legal complexity, but to the actual scale of the underlying litigation. This is not litigation about tens of millions of pounds. It is litigation about a half share in the former home in which these parties lived with their three children, having an equity of around £1 million and a half share, therefore, of around £500,000. In the context of family financial litigation, this is, in fact, a relatively small scale case these days.



The whole topic of beneficial interests following cohabitation has been the subject of recent consideration by the Supreme Court, in particular in the well known cases of Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53. It would be surprising, frankly, if it was necessary to look beyond those two authorities; but most certainly, when the Supreme Court has, on more than one recent occasion, traversed all the historic law in relation to this topic, it is quite ridiculous and completely disproportionate to produce bundles of no less than 32 authorities. I know that some of Mr Todd’s authorities relate to some separate argument that he wishes to run with regard to “laches” and limitation, but that does not provisionally strike me as a very promising line of argument in this case.



Mr Wagstaffe began by referring to the undoubted fact that, in the recent authorities to which I have just referred, the Supreme Court have said one has to have regard to the whole course of dealing between the parties; and of course I accept that. In a general way, one does indeed have to begin at the start of the relationship between Sandra and Larry in 1989 and look at their financial dealings since then. That is why, provisionally, it does not seem to me that Mr Todd’s argument based on laches and limitation is on very fertile ground.



The Supreme Court, by what they said in those authorities, cannot have intended courts to disregard the overriding objective in both the Civil Procedure Rules and the Family Procedure Rules; nor to disregard such an integral part of the Family Procedure Rules as the practice direction with regard to court bundles. The court must, from first to last, have regard to proportionality and all the other non-exhaustive matters listed in rule 1.1(2). So I do not accept for one moment that there is something about the facts or legal context of this case which enables or requires proportionality and the practice direction to be disregarded.



The Judge invited the parties in very strong terms to stop throwing their money at lawyers and come to a sensible agreement, which they duly managed the next day.


If you have a Court hearing next week before Holman J and you have ten bundles, I’d get on the phone to the other side and get 300 pages agreed, pronto.


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