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serious case review versus judicial review – a (cough) review

Who ‘owns’ a Serious Case Review, and what rights or  powers do the Courts have over its disclosure?

 

X (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Admin/2014/2522.html

 

I do complain about the President quite a bit, but the one thing you could never accuse him of is being work-shy. This is yet another very tricky judgment that he has taken on – whilst still having two insanely difficult judgments still to produce –  Q v Q (how to fund litigants whose article 6 rights would be breached by them being unrepresented) and the fallout judgment from Cheshire West (how are the Court of Protection going to deal with the HUGE volume of additional cases that arise from the Supreme Court’s decision on deprivation of liberty).

 

This one relates to a child, X, whose mother stabbed him when he was about ten years old. He is now thirteen. Those care proceedings ended with the making of a Care order, hotly contested by the father, who has been in one form of litigation or another about this perceived injustice over the last three years.

Outside of the Court case itself, the Local Safeguarding Children Board (LSCB) – which is a group of senior representatives from all the relevant agencies in each local authority area (police, schools, health, social services etc), held a Serious Case Review.  These Serious Case Reviews are intended to be a scrutiny of what happened in the case and specifically whether agencies made mistakes, could have predicted what would happen, could learn lessons for the future, might need to change some policies and perhaps even whether someone professional is badly at fault and to blame.

 

The general rule and principle these days are that these Serious Case Reviews are to be published, although with names of children and parents anonymised. This in part, emerged from the public disgust at Baby P and the desire that these exercises were available for all to see. There’s a debate for another day about whether that transparency is a good thing, or whether it inhibits the ability of each agency to properly lay out their shortcomings.

 

The father contributed to this exercise and saw the report, but didn’t have a copy of it, and it was not made public.

 

The LSCB rationale for that was this :-

 

  • The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X’s current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X’s parents.

 

 

 

  • Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:

 

 

“The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X’s recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published.”

 

Two competing factors are being balanced – the interests of transparency and open public debate versus the impact on the child.  That underpins most of the transparency debate (and given the President’s well-known views on transparency, the LSCB must have been slightly fearing the worst when the case was listed before the President. That might be why they shelled out for a QC to represent them…)

 

The father’s application was a free-standing one under the Children Act 1989, but on analysis, the President found that this could not be right in law, and that the proper legal mechanism (indeed the only one) would be a judicial review of whether the LSCB had behaved in an unreasonable way (specifically a way that no reasonable body in their position could have behaved) in making the decision not to publish this Serious Case Review

 

 

  • In the final analysis the father’s application turns on quite a narrow point.

 

 

 

  • The first thing to appreciate is that the LSCB is a public body, juridically distinct from and wholly independent of the local authority. It exercises public functions in accordance with the statutory scheme to which I have already referred. In accordance with that statutory scheme it is for the LSCB, not the local authority and not the court, to decide whether or not to publish the overview report and the executive summary: see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, paras 7, 58.

 

 

 

  • The second thing to appreciate is that this is, as Judge Wildblood correctly said, a free-standing application. It is not an application made in pending proceedings for disclosure of documents into those proceedings. It is not a case (as Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, was) of an application for a reporting restriction order to restrain publication of a document. It is an application by the father for an order requiring the LSCB to disclose to him a document which the LSCB in exercise of its statutory functions has decided should not be disclosed to him except upon terms that he is not willing to accept. It is, in other words, an application challenging the LSCB’s decision, a matter therefore, as Judge Wildblood said, of administrative law.

 

 

 

  • Such a challenge, in circumstances such as this, can in my judgment be made only by means of an application for judicial review in accordance with CPR Part 54. It cannot be made in the Family Court, nor in the High Court except in accordance with CPR Part 54. On that short ground, and irrespective of the factual merits, this application is misconceived.

 

On that basis, the President looked at the father’s arguments

 

  • The father has set out, both in his written statements and in his oral submissions, the various reasons why he wants a copy of the overview report. He says it should be published in the interests of transparency and so that public officials can be made accountable. He says that he should be allowed to study it with more time and scope for careful analysis and understanding than if he is merely allowed to read it at the local authority’s offices. He believes it contains material errors which should be corrected; he wants to ‘set the record straight’. He believes it contains material that will enable him to reopen the care proceedings by way of a further appeal or a renewed application to discharge the care order (thus correcting what he believes to have been a miscarriage of justice) and which may assist him in bringing a civil claim. He says that as X’s father he should be allowed to have a copy.

 

 

 

  • Those are all very understandable reasons why the father should be seeking the relief he is, but none of them demonstrates any proper basis of challenge to the decisions of the LSCB, whether the original decision not to publish or the decision explained in Mr D’s letter of 19 September 2012. As Mr Tolson put it, and I can only agree, the father does not identify, still less demonstrate, any flaw in the LSCB’s decisions or decision-making process.

 

 

With that in mind, the father’s application for judicial review was refused – the only crumb of comfort being that one of the arguments deployed by the LSCB was crushed from a great height by the President

 

  • I have set out the reasons given at the time by the LSCB for its decision not to publish (see paragraphs 6-7 above) and for its later decision not to allow the father a copy (paragraph 10). Those reasons are clear and readily understandable. They disclose, in my judgment, no arguable error of law. They set out matters, including in particular the advice of X’s treating psychiatrist, which plainly entitled the LSCB to conclude, as it did, that there were indeed the “compelling reasons” which had to be demonstrated if there was not to be publication. The LSCB plainly applied its mind carefully to all the relevant material and to the key issue it had to decide. Its process cannot, in my judgment, be faulted. It is impossible to contend that its decisions were irrational. Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

 

 

 

  • Mr Tolson also submits that permission to apply for judicial review should be refused because the father’s claim lacks any practical substance, because he cannot demonstrate, so it is said, how any flaw in decision-making might materially affect him, nor can he demonstrate why he needs a copy of a document which he has been able to read on three occasions. With all respect to Mr Tolson I find this most unconvincing. I would not have been prepared to refuse permission on this ground. But this does not, of course, affect the ultimate outcome given my conclusions in relation to Mr Tolson’s first two arguments.

 

 

 

 

 

Booker

 

I have just read the latest scandal piece about the family justice system by Christoper Booker.  Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published.  [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn't any of those - so will keep an eye out]

As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.

Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.

Here is his story

http://www.telegraph.co.uk/news/uknews/law-and-order/10775631/Costs-ruling-in-family-court-penalises-those-helping-wronged-parents.html

 

Let’s break it down into the core allegations that are made

 

1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.

 

2. Mother removed him from foster care

3. Mother was sent to prison for removing him from foster care

4. Whilst in prison, she was assaulted by prison staff and crippled

 

5. That she was then deported to America

 

6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought

 

7. At a hearing in April, at which her McKenzie Friends “could not be present”,  Mrs Justice Simler decided that the case was entirely without merit  (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )

 

7a  That Mrs Justice Simler is “the latest recruit to the High Court team”   [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely.  EDIT  - it does appear that she became a High Court Judge in October 2013, so I stand corrected.]

 

8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000

 

9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.

 

 

I am fairly sure that points 6, 7 and 8 ARE true.  We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing).  You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.

 

Well, not quite.

The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible.  One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order.  It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad.   That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk

 

Here is the deal

 

If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.

The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it

In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.

You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case.  You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.

 

So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court.  Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.

 

[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that's probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]

 

 

ADDENDUM

It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012  http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html.

 

There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.

 

My previous piece  http://suesspiciousminds.com/2013/11/01/it-aint-me-babe-it-aint-me-youre-looking-for/   .

 

Mr Booker’s previous column about this woman   http://www.telegraph.co.uk/health/children_shealth/10308803/Deported-imprisoned-and-beaten-for-being-a-parent.html ]

LAA LAA land (or judicially reviewing the legal aid bods and winning)

Ooh, exciting.  I am grateful to M’learned friend Miss Eleanor Battie of counsel for highlighting this case to me.

T, R and Legal Aid Agency 2013

http://www.bailii.org/ew/cases/EWHC/Admin/2013/960.html

Miss Battie has done a very good summary of the case here, on the UK Human Rights blog

http://ukhumanrightsblog.com/2013/05/02/laa-must-give-reasons-about-funding-expert-assessments-in-care-proceedings-eleanor-batty/

In essence, you may recall that the Legal Aid Agency (previously the Legal Services Commission, previously the Legal Aid Board) implemented, with the express authority of Parliament, a series of measures aimed at reducing the burgeoning costs of expert assessments.  That was a fairly laudable aim, there could be no doubt that we had reached a point where the demand for expert reports was so exceeding supply that there was almost a housing-style bubble with experts being able to name their fee if you wanted them to do the work.

Unfortunately, and in classic State grasping control of an issue style, the baby was thrown out with the bathwater.

Almost every case involving an expert became embroiled in a battle of bureaucracy  (I am reminded of A P Herbert’s beautiful expression “I have been engaged in exhaustive, if one-sided correspondence”) where solicitors got the Court to agree the expert assessment that was needed to fight for their client but then it couldn’t happen because the LAA wouldn’t agree to pay for it.

This culminated in the issue coming before the then President of the Family Division, Wall LJ, who found that his request for a representative of the LAA/LSC to attend and clarify things wasn’t complied with, and when he telephoned, was told more or less (and this isn’t really an exaggeration) Oh, we don’t attend court hearings when we’re ordered to, we get so many of those orders, we just ignore them.

But the President reluctantly concluded that the power to order assessments and order that they be paid for (arising from section 38(6), the Family Procedure Rules and the Calderdale case) had evaporated, and it was now the LSC/LAA who had the final say, not the family Court.

This was in A Local Authority v D S and Others 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

where the President wove a fairly cunning trap for the LSC, although told them up front that this was a trap, and they should be ready for it, that a careful judicial decision that a report was necessary, coupled with careful analysis of why and why the costs were proportionate, would probably pave the way for a judicial review of an unreasonable refusal.

And so we arrived at a mountain of preambles in every single case involving an expert, just in case anyone was going to judicially review the LSC.

We also, in the interim, had Ryder LJ determine that the LSC had the power to say no to paying the costs of an expert assessment where the Court had decided one was needed but the parents had no funding and no money to pay for it.

So, we arrive now at this case, where once again, the Judge asked the LSC to attend/communicate with her and they declined to do so.

The judgment and order directing the expert assessment was very careful and completely D S and Others compliant, yet the LSC refused the assessment.

In the judicial review, Collins J, who accepts from the outset that he is not a family Judge (and thank heavens for that, given that he actually seemed prepared to put the child first, rather than the LAA’s interest), makes it plain that the LSC /LAA have the power to refuse or partly refuse the costs of an assessment ordered by the Court, but that if they do so, they HAVE to give reasons, and the reasons have to take into account that a Judge who knows the case and all of the issues gave a careful judgment saying that the report was necessary.

 [I'm a bit saddened that Collins J, in an otherwise magnificent judgment, resisted the temptation to say "The LAA have great power, but as Spiderman could tell us, with great power, comes great responsibility".  This is why I will never, ever be made a Judge]

The LAA plead the impossibility of this, saying effectively that they say no so often that they don’t have the resources to give reasons each time.

Collins J rolls up his sleeves, takes firm hold of the baseball bat, and knocks that one clean out of the park.

  1. While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.
  1. The letter of 19 March 2013 gives no reasons to explain why the full sum put forward is not approved. Since the defendant appeared through its representative, Mr Michael Rimer, at the hearing of S it was clearly aware of the President’s guidance. Guidance in this field from so authorative source as the President, in a reserved judgment after hearing submissions from, amongst others the LSC, gives rise to a public law duty upon the LSC, capable of being enforced, as the President said, by judicial review. Ms Hewson has sought to rely on the real difficulties faced by the defendant in dealing with the increasing number of applications for prior approval. In the S case it had been shown that following the new funding order in October 2011 introduced as part of the legal aid reform programme designed to save costs applications for prior approval of experts increased from 216 in November 2011 to 1855 in April 2012. That increase has, I was told, continued. Ms Hewson said that 4 employees in an office in Wales now had to deal with some 100 applications each week. That I suspect was something of an exaggeration but the point she was seeking to make was that the burden on those responsible for making the decision was such that they did not have the time to enter into any discussion nor to give any substantial reasons. Attempts to save costs in one way can have an effect which increases costs in another. If as a result of the new rules introduced in October 2011 greater pressure is imposed resources must be provided to meet that pressure. In R(H) v Ashworth Hospital Authority [2003] 1 WLR 127 at paragraph 76 Dyson LJ said this:-

“I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.”

These observations apply a fortiori where there is an absence of reasons when reasons are required.

I have to say, that I am delighted with the outcome, but rather surprised that the facts of this case got it. The expert assessment was for 180 hours, and the LAA originally agreed 130.

Given that their guidance figures for assessments are FAR FAR FAR below that, and the assessment costs as a whole were over £31,000 when the usual cost of an assessment has now come down to under £5,000 , the LAA would have had, I think, a decent case (had they (a) given reasons and (b) you know, bothered to file a skeleton argument in the JR case) for saying that the costs in this case were wildly disproportionate   (those costs are rather more akin to the residential assessment that the LAA suspected this was in disguise)

 

So, if you do get a cost of an expert declined, make sure you get the reasons from the LAA, and remember that scarcity of resources to give good reasons don’t make inadequate reasons adequate…

“The driver cannot ignore the passengers”

 The judicial review case of H R v Kingston Upon Hull 2013  – where the Court found that a failure to consult with parents BEFORE making a decision to move children under an ICO was unlawful

 The case is here

 http://www.bailii.org/ew/cases/EWHC/Admin/2013/388.html

 This is, I think, the pivotal passage from the judgment (hence the title)  – underlining mine

 When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved… A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.

In this case, the Local Authority had initially sought to remove the children from the parents, and at Court (as is often the way) a compromise was reached, whereby the parents agreed to an Interim Care Order if the children were placed with grandparents, and the LA agreed to place the children with grandparents. As often is the way with compromise, regrets followed.

 Thereafter, the LA had doubts about whether that was the right placement, and they conducted their fostering assessment, which became available on 30th January. This was very negative, and it considered that the grandparents attitude towards the concerns about the parents care was worrying. Sufficiently worrying for them to decide on 31st January that they would seek to move the children into foster care.

 They met with the parents on 1st February, and told them that this was the plan. The parents reacted badly, particularly the father, who said (inadvisably) that he would kidnap the children.

 The LA then moved the children, earlier than they had intended to.

 The parents made an application for judicial review, seeking to overturn two decisions :-

  1. That the decision on 31st January that the children would be moved was unreasonable, it having taken place without consultation
  2. That the decision on 1st February to move them forthwith was unreasonable

The parents triumphed on ground 1, but lost on ground 2  – the Court determining that the events of 1st February (although they had arisen purely because of the LA’s failure to properly consult) did legitimately give rise to a reason to implement a move.

 The LA had claimed that they had not MADE a decision on 31st January to move the children, but the Court rejected that.

  1.  I gave a short judgment announcing my decision in which I set out the following:

(1) The decision made by the LA on 31st January 2013 to remove the children was unlawful.

(2) The LA was the author of the very unhappy events of 1st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.

(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.

(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.

(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.

 The Court placed quite a lot of emphasis on the LA not consulting with the Guardian (perhaps working on the basis of five years ago, when  all Guardians communicated much more regularly with social workers and would give a view on events) , and in this case the children were between Guardians, leaving responsibility solely with CAFCASS.  Nonetheless, this LA did not notify CAFCASS or the Court, or the child’s solicitor that a move was afoot.

 The Court summed up the human rights position in relation to interim care orders, and this is a helpful summary.  Underlining again mine, for emphasis.

  1. An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must: (i) only do as much as is really necessary to secure the safety of a child; (ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and (iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety.

The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.

  1. There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and Human Rights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.
  1. When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.
  1. During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.
  1. In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:

(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.

(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.

(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.

(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.

  1. The passage of the judgment at paragraph 36 is apposite to this case:

“So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also —- after care proceedings have come to an end and whilst the local authority are implementing the care order.”

This is interesting – there are occasions, when representing a Local Authority that the concerns the LA have are so high that care proceedings are certain to be commenced. In those circumstances, it is traditional to send the Letter Before Action, making it plain that care proceedings will be commenced.  [Though of course, the parent is able to obtain legal advice and contest the ICO application]

Is the upshot of this judgment that it is unlawful to DECIDE to commence proceedings before consulting with the parent about this?   It seems to me that it probably is.    

The Court then went on to consider the interplay between interim care orders and judicial review – mindful that there is of course a remedy in the care proceedings (to challenge the ICO, or to appeal a court decision to continue it)

56. There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

 

The Court also covered the duty to consult – and made it plain that there is a spectrum of consultation, not merely ‘agreement’ at one end, and ‘informing the parents of the decision’ at the other  – there has to be a genuine dialogue which allows for the potential for a parent or other interested party to bring something to the conversation which might result in a different outcome.

  1. I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):

“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.”

Further:

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

  1. Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include the parents. If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them, then different considerations apply. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.
  1. The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.
  1. It has to be acknowledged that there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.
  1. During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon. This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement. Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must act speedily and without express approval if exceptional circumstances obtain. The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.

 

Whether you represent a parent, or child, or Local Authority, this case has some important information, and reminders.  I think that most Local Authorities would have had the case before the Court before the children were removed, but conversely, that most would probably have made the DECISION that they intended to remove once that negative viability report arrived. This case reminds us that the duty to consult goes far deeper than simply telling the parents that a decision has been reached, but actually to be a genuine discussion about the situation and the options available PRIOR to a decision being reached.

“Not with a bang, but a whimper”

Possible fallout from R (JG) v the Legal Services Commission 2013

This is the much anticipated, and long-awaited, outcome of the judicial review against the LSC (now the Legal Aid Agency, LAA) and their refusal to pay the child’s solicitors the costs of an expert fee in private law proceedings where the Court had determined (a) that they needed expert evidence to determine the case (b) that the parents who were not in receipt of public funding could not pay for it, or even pay a third share of it, and thus (c ) that the entire costs of the expert assessment should fall upon the child’s public funding certificate.

 That seemed to be the only way for the Court to obtain expert evidence when faced with parents representing themselves or who had no funds to pay for an expert; but many observers were becoming increasingly concerned that the Courts were appointing Guardians in private law cases not so much for what the Guardian could bring to the table, but so that the Court had access to the child’s public funding.

 The LSC were always going to take a stand on this at some point, and refuse to pay all of the costs of an expert report when the parents were not contributing.

 Here are some of the reasons, from a quick think, about why expert evidence might be needed in private law proceedings in order to reach a fair conclusion :-

  1. The child presents as having psychiatric or psychological problems – maybe the child is self-harming, or has anorexia
  2. The child has a medical condition, for example Asperger’s Syndrome, which may impact on change, or routines (and thus how contact and residence are to be managed), or the parent has a medical condition which affects their ability to care, or travel to contact
  3. There are allegations of Parental Alienation Syndrome, or implacable hostility
  4. There are historical concerns that require a risk assessment of future risk
  5. There are allegations about substance misuse  or alcohol misuse (testing, psychiatric evidence about prognosis)
  6. There is a dispute about paternity that requires DNA evidence   (unless the Court is going to start resolving paternity disputes without DNA testing)
  7. There are concerns about the mental health of either parent which requires expert evidence as to diagnosis and prognosis

In our brave new world where neither parent is entitled to public funding, none of those assessments can be done unless someone is prepared to pay for them.  And the LSC have made it plain that this someone is not going to be them, where they have been parachuted into the case as a portable chequebook (sorry, Rule 16.4 Guardian)

Sadly, the judgment in JG v LSC is not yet up, and I’m sure that the Court made attempts to put a ring fence around the most serious sorts of cases and put some exceptional circumstances in place (so I will return to the topic once the judgment is up)

 But in broad terms, the child’s solicitor, and the Law Society lost, and the LSC won. Not a huge surprise. We all saw that coming.   It doesn’t seem  to me that the Courts fought the LSC on the beaches on either this one, or the prior authority case, the judgments in both may as well have been written on a white flag.

 It seems, to this jaded hack, that Abu Qatada was able to get our Courts to do more for him, than the Law Society were able to get a Court to do for children. *  I will cheerfully retract this, if when I see the judgment, it appears that a valiant but ultimately doomed  attempt was made by the Court to  preserve the interests of children as being paramount in the whole exercise. 

*{too harsh? Probably, but I am a bit crosspatch about this. For example, in the recent planning case of  Stevens v Secretary of State for Communities and Local Government 2013, the Court reminded themselves that where a persons human rights are impacted disproportionately by a decision, the Court can look at things more widely than as a pure judicial review.  Was that done in this case?

Furthermore,…….the House of Lords have held that, where the proportionality of the impact of a decision on human rights is at issue, that is a substantive question to be objectively determined by the court, and not a procedural one that requires the court to investigate the decision-making process (R (SB) v Governors of Denbigh High School [2006] UKHL 15: (“SB“) and Miss Behavin’ Ltd v Belfast City Council [2007] UKHL 19; (“Miss Behavin’“))

Thus, in SB, Lord Bingham said (at [29]):”The focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated”;

and, consequently, what matters in any case is “the practical outcome, not the quality of the decision-making process” (at [31]).  

And I ask, what the practical outcome on children and families of having Courts wish to obtain expert evidence to achieve a fair result in a case but being prevented from doing so, would be?}

 The LSC relied heavily, as they would,  on section 22 (4) of the Access to Justice Act, which provides that costs should not fall on a publicly funded party that would not otherwise have fallen on the party if they were not publicly funded.  [Of course, that Act was written at a time when the sheer volume of unrepresented litigants could not be foreseen, as it was pre LASPO, and I have yet to see whether the judgment wrestled with whether s22 (4) in these circumstances led to an incompatibility with section 1 of the Children Act 1989]

 And the LSC thus argued, and were successful, that the Court would not have made an order that the father or mother pay the entire cost of the expert fee, and that the most the LSC should pay is an equal share, one third.

 Where that leaves children, when the question for the Court in all those private law cases where the parents are not both in receipt of public funding (i.e nearly all of them) and the Court consider that an experts report is necessary to determine the case, is somewhere towards the source of the Swannee.

 *( I think it would need to be both parents getting funding, since the same principles would apply to  ‘parent gets public funding as a result of say domestic violence, would still be the LSC saying that they would only pay the share matched by the other parent)

 Can a Court, in fact, order that a parent pay for the costs of a report? They are an adult, and I think the Court are in difficulties ordering an adult to incur costs, or to do anything  (short of injunctions).  The Court can merely say, if you want to run your case, then there will be consequences for your case if you don’t comply with the directions that have been made. Ordering an adult to do something, or pay for something seems to me to need some statutory basis for the Court having that jurisdiction.

 So the Court can of course say “If you want to obtain this report and rely on it, then you will have to pay half of the costs. No costs, no report.” 

 But that doesn’t help, because of course, when you have two parties to litigation, one of them has a vested interest in not obtaining such a report. They are happy not to have it done.

 And will any expert take on an instruction where the parents are paying privately?  If it were me, I would want cash up front, because how would I get the payment from a mother if my report says something she doesn’t want to hear? Even if the parent is happy with the report, once they have it in their hands, what is the incentive to pay for it? So, cash up front is the only way.

And we are back, again, to the concept that money can buy you a better service in the family Courts   (a parent on income support who wants a report on how their child’s Asperger’s Syndrome might impact on a shared residence arrangement is not going to get one, whereas a parent who is a quantity surveyor say can get the report)

 It doesn’t feel too great to me, that in private law cases (and contrary to what the Family Procedure Rules say) the key question for a Court considering the need for an expert report is not

“Is this report necessary to assist the Court to resolve the proceedings”   but

 “Who will pay for this report?”

[Also, eek, will the LSC now try to clawback all of the expert fees that they have paid out to solicitors representing rule 16.4 guardians in the past?]

[Addendum – very grateful to 11kbw who have the judgment up on their website http://www.11kbw.com/judgments/docs/PNTCJudgment.pdf

 readers can form their own impression as to whether the right of parties to a fair trial, and the issues of whether a broad principle that if parties can pay for a report it shouldn’t all fall on the LSC has been blurred with LASPO whereby a party can now be not in receipt of public funding although they have no means to pay for representation or disbursements.  For my part, I thought an awful lot of the judgment was on the “well, we won’t be having those experts anymore, and this just helps with that” side of the fence.

For example  para 67:-  

“If  the children’s guardian is of the view that the issues identified are beyond his or her skill and expertise, the Court may be minded to ask CAFCASS whether the case can be co-worked by an extended scope practitioner who if necessary can be appointed as a joint guardian”

The exceptions aren’t set out in detail , but are touched on in principle at  para 87, the LSC having argued that the Court would have no jurisdiction even in extraordinary circumstances (the report being absolutely necessary, and the Court having carefully explored whether the other parties could pay a share or a reduced share) and the Court knocked the LSC back on this, though no other point; and said that there WOULD be circumstances in which if the report was necessary and there was simply no other way, the LSC might be ordered to pay for it. 

[Although they don't need to follow a court order, don't need to appeal it, and there's no legitimate expectation for a child's solicitor that a court order ordering the LSC to pay for it will ever result in a cheque being written, so hooray!]

The overwhelming message I take away is – don’t worry too much about how you are going to fund experts, because there won’t be any.  Bearing in mind that this judgment was prepared by the Judge seized with responsibility for modernisation of family justice, that’s an important message.  But read it and decide for yourselves, it is very possible that I am being deeply unfair. ]

Pindown revisited?

 

The Court of Appeal decision in  The Childrens Rights Alliance v Secretary of State for Justice 2013

 

 

This was an appeal against refusal for judicial review of the Secretary of State’s refusal to provide the Childrens Rights Alliance (or the children concerned) with details of which children were the subjects of illegal restraint methods whilst held in Secure Training Centres in the UK.  That disclosure would obviously have been a prelude to advice about, consideration of, and possibly issue of civil claims on behalf of those children.

 

 

The case can be found here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/34.html

 

 

The Childrens Rights Alliance lost the appeal, and thus won’t get access to the information that is required. That may have been the right decision on a strict formulation of the law on judicial review, but on reading the case I felt that it is a state of affairs that deserved a bit more attention, and perhaps some of my readers might be in a position to do something.

 

 

At the Secure Training Centres, which “accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable.”

 

Until about July 2008, there was fairly widespread practice at the four Secure Training Centres, which held about 250 young people, of using restraint techniques that staff genuinely (but mistakenly) believed to be lawful

 

  1. it is first convenient to describe the nature of the techniques with which we are concerned. They took two forms. First there is restraint, or physical restraint, properly so called. This includes a number of holds (such as the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, and the Double Embrace Lift) designed to enable up to three members of staff to obtain physical control over an inmate; they were not intended to inflict pain. On 19 April 2004 a 15-year old trainee at Rainsbrook STC, Gareth Myatt, was asphyxiated while being restrained in one of these approved holds. Secondly, there are “distraction techniques”. The PCC Training Manual for 2005 (PCC stands for “physical control in care”) describes three such techniques: nose, thumb and rib distraction. These involve the measured application of pressure on those parts of the body in order to cause a short, controlled burst of pain administered to distract a trainee who is seriously misbehaving in order to bring the incident to a swift and safe conclusion. The nose distraction technique had been applied to a 14-year old called Adam Rickwood, who committed suicide at Hassockfield STC on 8 August 2004. His mother was the applicant in the Pounder case.
  1. At the core of this appeal is the fact that officers at the STCs who applied these various restraint techniques at the material time genuinely but mistakenly believed that the law entitled them to do so for the purpose of maintaining good order and discipline (GOAD). It was definitively established that there was no such entitlement only after the deaths of Adam Rickwood and Gareth Myatt: see paragraphs 14 and 35 of the judgment of the Divisional Court in C ([2008] EWHC Admin 171).

 

 

 

It was clear, and not disputed that these techniques were used on children who were very vulnerable.

 

 

  1. 9.       “It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people.”

 

 

And it was clear that this happened to a significant number of ‘trainees’ in these institutions

 

  1. 15.   “76… [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C.

77… [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques… were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose.

78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale…”

 

 

 

The telling and difficult thing for the Childrens Rights Alliance, which is why they invited the Secretary of State to take steps to inform the particular children that they had been illegally restrained and when, was that many of the individual children would not have known at the time that what was happening to them was illegal and would give rise to a claim now

 

  1. At the end of paragraph 91 Foskett J stated that very few, if any, of the trainees appreciated at the time that what was done to them was unlawful. Earlier he had said this:

“88… I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. Furthermore, at least during the period with which this case is concerned, it is likely that if a complaint had been made, the substantive answer to it would have been that the officers who used the restraint techniques were justified in using the force considered necessary at the time.”

 

 

 

Following through the judicial review principles (which is pretty dry and beyond my interest in this piece), the Court of Appeal concluded that there were no grounds for judicially reviewing the Secretary of State’s refusal to carry out this exercise and therefore the court at first instance had not been plainly wrong to refuse it.

 

 

Of course, and the Court hint at this – there is nothing within this judgment which prevents or would inhibit any individual child who had been detained at an STC in asking for information about their records and whether they had been subject to illegal restraint.  But what the Childrens Rights Alliance had wanted was not for the individual children to be obliged to “Pull” to get their rights, but for the Secretary of State to “Push” and be obliged to notify them that they had been treated illegally.

 

 

It is a sobering experience to read of these things happening to children in custody, and reminded me vividly of the Pindown crisis.

 

That might well be ancient history for some of my readers, so I will elaborate.

 

In the 1980s, in Staffordshire, a method of discipline was introduced in children’s homes for children in care who were being difficult or hard to manage, involving locking them in rooms on their own for periods at a time, this method of discipline being called Pindown. It lasted for various periods, but for one child, it lasted for 84 consecutive days. It caused a scandal when it came to light, with World in Action doing a documentary on it, and was the subject of a significant public enquiry.   (In large part, it led to the construction of the legal principles in the Children Act 1989 about “secure accommodation”)

 

 

Very sadly, I have struggled to find a copy of the Pindown report which was written by Allan LevyQC (sadly no longer with us) and even Amazon  say  “Currently unavailable. We don’t know when or if this item will be back in stock.”

 

 

Perhaps this is an example of George Santayana’s well worn remark that those who fail to learn from history are doomed to repeat it.  And for the modern era, those who hide away public enquiries and don’t ensure that access to them is easily found online shouldn’t be surprised that people don’t know the contents.

 

 

Of course I understand that staff on the ground in a Secure Training Centre are doing a difficult job, one that I wouldn’t want to do, and that the children detained there are not little Peter Pan figures full of cheeky (but ultimately harmless) mischief, but incredibly disturbed and challenging young people.  I do understand that managing them is hard and that if guidance was given to those staff that “figure four armlocks” were okay, they were going to follow that guidance.  It is the people who gave them that guidance who let the children down.

 

 [As an incidental detail, I note that in Russia, this armlock technique is known as the ‘militia’ armlock because it is used by the Russian militia and police…. ]

Ghosts in the judicial review machine (or, “I think it’s going to be a long, long time”)

 

A discussion of the decision of R and Naureen Hyatt and Salford City Council 2012   (which relates to judicial reviews, costs disputes and accommodation under section 21 of the National Assistance Act 1948 as it pertains to failed asylum seekers, so I hope you will forgive me for a flight of fancy and digression to liven it up)

 

I once read that the screen-writing Coen Brothers use a particular technique in creating tension in their films. They write a scene, and box the character into a corner, a predicament that there is no possible way out of.  They bat around possible solutions until they exhaust all possible exits that they can think of.

 

Then they leave the script for a week, a month, however long it takes, until they have hit upon an escape mechanism for that predicament – the idea being that if they are genuinely stumped at how to escape the scene, the audience won’t be likely to be able to second guess in a few moments the solution that took them months to hit upon.

 

 

In Ancient Greece, when playwrights constructed their plays, usually involving a combination of philosophy, fine wordplay and frogs, they often found that they had boxed themselves into a corner. The hero was faced with a situation that could not possibly be resolved.  A grisly death, a broken heart, an unsolveable dilemma, was all that lay ahead.  How to deliver a happy ending?

 

And their solution to this was the deus ex machina, the ghost in the machine. A crane type device would be used to lower an actor into the stage or arena, the actor playing a God. Of course, the God could solve any problem in an instant, resolve any dilemma, any drama.  That was a boon to the playwright, but of course robs the scene of any dramatic tension.

 

Imagine if you were watching an episode of 24 and Jack Bauer was trapped inside a volcano  in Hawaii that’s about to erupt, he is handcuffed to  the steering wheel of his car, and the ignition keys are in the beak of a paramilitary parakeet who we have just watched fly away, and then he learns that a nuclear bomb is about to go off at the Hoover dam in just two minutes and only his fingerprint can stop the bomb and then the credits roll. Tense, or what?   

 

volcano

 

If you tune in the following week, to see God fly down into the volcano, stop time and instantly transport Jack to the Hoover damn and unlock his handcuffs, you might feel disappointed by this resolution.  The next time there is a cliffhanger, you won’t feel apprehensive and nervous about how Jack will get out of it, you’ll just think “Ah, God will come down and sort it out”    – in short, the cheap device used to get the writers out of a tough spot will just make you feel cheated.

 

[The way I did when watching the black and white serial Rocket Man aged 12, when a “cliffhanger” showed a car in which Rocket Man was locked in the trunk plummet off a cliff, clearly showing that it went over the edge and that nobody got out of it so he was undoubtedly dead, and next week's episode began  with completely different footage of him jumping out before it went off the cliff.   I remain bitter about this, to this very day, and I never watched another episode]

 

rocket man 

 

 

Curse you Rocket Man! !!

 

So, deus ex machina became frowned on as a narrative device, and to this day are viewed as a bit of a cop out, or cheap flimsy storytelling.

 

 

Anyway, on to the case,

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1795.html

 

 

Essentially, the claimant was a failed asylum seeker and wanted the Local Authority to provide him with accommodation under section 21 of the National Assistance Act 1948.

 

  1. Section 21 of the 1948 Act provides:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing —

(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely —

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute.”

 

So, his being a failed asylum seeker makes it very hard for him to get accommodation under s21, and he claimed his need was not as a result of destitution or physical effects of destitution, and the LA claimed that it was.

 

 Various demanding and defying letters were exchanged and a judicial review was issued.

 

By the time the case got into a substantive hearing, the claimant had managed to overturn the immigration authorities decision that his asylum claim was refused. That then gets rid of s 21 (1A) as a relevant factor.

 

Accord was reached that he would be provided with accommodation and the claim was withdrawn.

 

There then followed a debate about costs – the Claimant claimed that he should win his costs because he had achieved his desired result but had had to bring a JR case to do it, the LA claimed that costs should not be paid as the issue had not been litigated and the Claimant might well not have been successful if it had been.

 

The Judge decided that it was not possible to determine which side would have won had the issue been litigated, and made no order as to costs.

 

The Claimant appealed.

 

The relevant legal authority on this vexed issue of where costs fall in a JR case where the matter is settled rather than litigated is set out in  Re M  v Croydon LBC  2012

 

 

  1. On 8th May 2012 the Court of Appeal handed down its decision in R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607. The claimant in that case was an asylum seeker, whose age was in dispute. The claimant brought judicial review proceedings to compel the defendant local authority to reassess his age. The action ultimately settled in the claimant’s favour, leaving only the question of costs to be determined by the court. Lindblom J decided that there should be no order for costs. The Court of Appeal allowed the claimant’s appeal and ordered the defendant to pay the claimant’s costs.
  1. Lord Neuberger MR gave the leading judgment, with which Hallett and Stanley Burnton LJJ agreed. At paragraphs 47 to 64 Lord Neuberger gave general guidance as to how costs should be dealt with following a settlement. In the latter part of that passage he dealt specifically with cases in the Administrative Court. He identified three different scenarios. The first scenario is a case where the claimant has been wholly successful whether following a contested hearing or pursuant to a settlement. The second scenario is a case where the claimant has only succeeded in part following a contested hearing or pursuant to a settlement. The third scenario is a case where there has been some compromise which does not actually reflect the claimant’s claims.
  1. At paragraph 63 Lord Neuberger gave the following guidance in respect of the third scenario:

“In case (iii), the court is often unable to gauge whether there is a successful party in any respect and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.”

 

[This is a pain in the neck decision, since now when you settle a JR, you have to have an argument about who would have won, if you'd fought the whole thing, which is nearly as cumbersome as just fighting the whole thing] 

The Claimant argued that effectively, having settled the case and obtained his desired outcome, the original Judge ought to have determined that he had succeeded or would have succeeded had the case been litigated, and that costs should have followed.

 

The Court of Appeal disagreed , and you will see from my underlining, that they considered that the reason for the favourable settlement was the intervention of a third party – the immigration authority reversing their decision – a deus ex machina, and where that was the cause of the favourable settlement, one could not determine that the Local Authority were to blame.

 

  1. The second ground of appeal is that when one looks at all the factors which ought to have been taken into account, the judge should have been driven to the conclusion that the defendant should pay the claimants’ costs. The factors upon which the claimants rely are the following:

i) The claimants achieved the substantive benefit which they were seeking, namely long term housing and welfare support.

ii) The claimants achieved an immediate benefit, namely interim relief, which they could not have achieved without litigation.

iii) The claimants complied with the pre-action protocol and sent appropriate letters to the council before commencing proceedings.

iv) The conduct of the council was unreasonable. It resisted the claimants’ claim at every stage. It brushed aside the letters from the claimants’ solicitors. It did not provide interim accommodation for the claimants until it was ordered to do so.

v) The claimants’ case was strong. If the litigation had gone to trial, it is very likely that they would have won.

  1. Let me deal with those factors in the order set out above. As to the first factor, it is undoubtedly correct that the claimants have achieved their ultimate objective, namely long term housing and welfare benefits. On the other hand they have achieved that objective not because of any court order or concession by the council. The claimants have achieved that objective because of the Secretary of State’s decision to grant exceptional leave to remain. As Moore-Bick LJ observed in argument, this came as a deus ex machina. In my view the favourable intervention by a third party not involved in the litigation cannot be a reason to order the defendant to pay the claimants’ costs.
  1. I turn now to the second factor. The claimants applied for interim relief. The council opposed the application. The court granted interim relief. If the claimants had applied on 10th December 2010 for the costs of the interim relief application, Judge Waksman may have ordered the council to pay those costs. Alternatively, he may have ordered that the claimants’ cost of the application be costs in the cause. In the event, however, with the agreement of both parties Judge Waksman reserved the costs of the interim relief application, without any discussion of the basis on which costs were reserved.
  1. Since the underlying dispute between the parties never came to trial, I do not see any basis upon which Judge Stewart on 12th April 2012 could have ordered that the costs reserved by Judge Waksman on 10th December 2010 be paid by the council. Indeed in their lengthy written submissions on costs dated 30th March 2012 the claimants did not ask for an order that they be awarded the reserved costs of the interim application. I am therefore quite satisfied that Judge Stewart cannot be criticised for failing to make any separate and specific order in respect of the reserved costs.
  1. Mr. Wise relies upon the claimants’ success in obtaining interim relief as one of the reasons why Judge Stewart should have awarded to the claimants the entire costs of the action. He points out that the claimants got what they wanted in the teeth of the council’s opposition.
  1. The difficulty with this argument is that Judge Waksman was not adjudicating upon the substantive dispute between the parties. He began his judgment by saying that for the purpose of the current application the claimants had “a fairly modest task”. They only had to show their case was “prima facie arguable”. He did not even decide whether the claimants’ case was strong enough to merit the grant of permission to proceed. He simply made an order for interim relief to protect the claimants’ position until there could be a “rolled up” hearing.
  1. In my view, the fact that the claimants obtained interim relief does not mean that they were successful in the action. It is not a reason for awarding to the claimants the costs of the action.
  1. I turn now to the third factor. The claimants are to be commended for complying with the pre-action protocol. If following the commencement of proceedings the council had conceded the relief sought without admitting liability, they would have had difficulty in resisting an order for costs. The present case, however, is different. There has been no substantive decision by the court and no concession by the council. In these circumstances the fact that the claimants complied with the protocol is not a reason for awarding to them the costs of the action.
  1. I turn next to the fourth factor, the conduct of the council. The council, like the claimants, have been consistent. They have carried out assessments as required by 1990 Act. They concluded that they were not obliged to provide accommodation for the claimants pursuant to section 21 of the 1948 Act. This was the council’s position both before and after the issue of proceedings. Whether the council were right in their assessment of the position is a matter which has not been judicially determined. In my view, the council’s conduct in this case is not such as to attract an adverse costs order.
  1. I come finally to the fifth factor, the strength of the claimants’ underlying case. We have heard submissions from Mr. Wise as to why the claimants would probably have won. We have heard submissions from Mr. Howell as to why the claimants’ case was unfounded and they would probably have lost.
  1. It is not the function of this court on a costs appeal to give a substantive decision about litigation which never came to trial. Suffice it to say that both Mr. Wise and Mr. Howell put forward formidable arguments.
  1. For present purposes, it is necessary to focus on the material which was placed before Judge Stewart in April 2012. This comprised the parties’ written submission on costs and the court file. The court file would have included the pleadings and the evidence previously lodged. On reading and re-reading this material, I am not surprised that Judge Stewart was uncertain as to who would have won if the action had come to trial. I find myself in a similar state of uncertainty. In my view, it cannot possibly be said that the judge’s conclusion in this regard was either wrong or perverse.
  1. On reviewing all the circumstances of this case, I do not believe that the judge’s costs order can be faulted. The judge made no error of law or error of principle in the exercise of his discretion under rule 44.3 which would warrant intervention by this court

 

 

I know, this rambled about a bit *, but come on, you never thought you’d get Jack Bauer, volcanoes, Rocket Man, Greek theatre and parakeets in a law article on costs orders in judicial reviews, did you?

 

[* a lot ]

As clear as a bell (if the bell were made out of mud)

The High Court helps out yet again, on ordinary residence issues, between Local Authorities, with head-scratching results. I think I finally get it, though it took three reads of the judgment.  In the words of Bertie Wooster,  “the slight throbbing about the temples told me that this discussion had reached saturation point.”

 

Suesspicious Minds accepts no liability for any such throbbing about the temples in the reader who attempts this judgment. 

This happened in the case of  Cornwall Council v Secretary of State for Health and others 2012

 

http://www.bailii.org/ew/cases/EWHC/Admin/2012/3739.html

 

This time, it relates to an adult with profound difficulties, who was owed duties by the State under the National Assistance Act 1948 to provide him with accommodation and services to meet those complex needs. The issue was, which precise bit of the State, and more importantly, which local authorities local taxpayers were about to shell out a huge wedge of cash on a person who had very little whatsoever to do with them.

 

The duty of course, is owed by that Local Authority in which the person is ordinarily resident, but in adult cases, that test of ordinary residence comes with a settled intention on the person’s part to live or settle there.  Where the person lacks capacity to form such intention, problems arise.

 

The various local authorities involved went to the Secretary of State for a determination, under section 32 (3) of the National Assistance Act 1948.

 

The Secretary of State looked at the case, and determined that this adult, who was not physically living in Cornwall,  was not accommodated in Cornwall, had no home in Cornwall and visited his parents in Cornwall two or three times per year, was the responsibility of Cornwall. 

 

Unsurprisingly, Cornwall didn’t like that much, and challenged it by way of judicial review.  It does seem manifestly crackers that a council’s taxpayers can be obliged to fork out upkeep for an adult who has never lived in their area, is never going to live in their area and whose sole connection with it is that his parents live there.

 

Cornwall  felt, that Wiltshire, who had accommodated this adult in 1991, when he and his parents had been living in Wiltshire, and had been looking after him ever since, were the authority who had ordinary residence.  From 1991 to 2004, he had been living with foster parents in Wiltshire; but then when he became an adult was provided with residential care in a third local authority’s area, South Gloucestershire. By that time, the adults parents had moved to Cornwall.

 

Cornwall, Wilshire, South Gloucestershire and Somerset (who, I think) were the local authority whose area this adult might be moving to in the future, had different ideas about who was the local authority responsible for providing care for this adult for the remainder of his days.  Though I suspect they all expressed it in broadly the same way “Wherever this person is ordinarily resident, it isn’t in my area”

 

 

I am afraid that the discussion within the judgment is eye-wateringly complex, but shakes down to this, at its heart, deriving from R v Waltham Forest LBC, ex p. Vale, 25 February 1985.

 

Taylor J set out two approaches, which are referred to as “test 1″ and “test 2″ in the Departmental Guidance. “Test 1″ applies where the person is so severely handicapped as to be totally dependent upon a parent or guardian. Taylor J stated that such a person (in that case it was a 28 year old woman) is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base”. The second approach, “test 2″ considers the question as if the person is of normal mental capacity, taking account of all the facts of the person’s case, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person himself or herself to have adopted the residence voluntarily

 

 

So, if the person has capacity, one looks, in the traditional Shah sense, of whether they have made a settled intention to live somewhere (even if that is not where they are physically living), and it would not have been Cornwall.

 

But, where they don’t, even though they are an adult, the Court treats them as a small child, and ordinary residence is where the parent of that person lives.

 

(Even if the adult were 50 and the parents were 80, one assumes)

 

Using my traditional loophole lawyer mind, I’m troubled as to how the Court resolve the issue of ordinary residence here where an adult’s parents are deceased, or live separately to one another in two different local authorities.

 

 

 

For the purposes of the case, the important arguments were in the fourth ground for JR, that Vale was now overtaken by subsequent decisions and the Mental Capacity Act, and that it was no longer the right test for deciding cases of this kind.  And that physical presence, rather than the physical location of the parents of an adult with capacity issues, was a more important factor in determining ordinary residence.

 

If you don’t want to slog to the end of this very law-heavy paragraph, and I honestly could not blame you – the upshot is that the High Court think the Secretary of State is right, Vale remains good law, Cornwall got well and truly hosed.   The underlined passage is probably why.

 

 

 

  1. iv) Ground 4:
  1. I turn to ground 4, the challenge to the approach in Vale’s case based on the submissions that there is a conflict between the tests in that case and those set out by the House of Lords in Shah’s case and in Mohammed v Hammersmith and Fulham LBC and that the approach has been overtaken by the approach to mental incapacity in the Mental Health Act 2005. In his reply, Mr Lock also submitted that Vale’s case is not authority for the proposition that, after thirteen years first with foster parents and then in two care homes, PH’s “ordinary residence” at the relevant time was that of his parents and follows their ordinary residence because they continue to take an interest in his welfare.
  1. The starting point in considering Mr Lock’s submissions is the acknowledgment by Lord Scarman in Shah’s case (see [1983] 2 AC at 343G-H) that the statutory framework or the legal context in which the words “ordinary residence” are used may require a different meaning to that in his “canonical definition”. The context before the court in that case was entitlement to a mandatory grant for fees and maintenance for students pursuing a course of study leading to a first degree or comparable course of further education. To be so entitled, they had to be “ordinarily resident” in the United Kingdom throughout the three years preceding the first year of the course. The key concepts in Lord Scarman’s definition (set out at [6]) are that the residence must be “voluntarily” adopted and that it must be for “settled purposes”. Lord Scarman stated that these are the two ways in which the mind of the individual concerned is important in determining ordinary residence: see [1983] AC at 344. As Mr Harrop-Griffiths observed, in the light of the facts of Shah’s case, it was hardly surprising that Lord Scarman did not seek to explain how the test he stated could, if necessary, be adapted in the case of an incapacitated person. What is clear, however, is that a test which accords a central role to the intention of the person whose “ordinary residence” is to be determined cannot be applied without adaptation when considering the position of a person who does not have the capacity to decide where to live.
  1. The other case on which Mr Lock relied, Mohammed v Hammersmith and Fulham LBC was also not concerned with a person who lacked capacity. Moreover, it was not concerned with the term “ordinary residence” but with the term “normal residence” in sections 198, 199 and 202 of the Housing Act 1996. M was a homeless person who had lived as the guest of a friend in Hammersmith for two and a half months. After being reunited with his wife, the couple applied to the Hammersmith and Fulham Council for assistance with accommodation. In July 1998 the Council determined that neither the applicant nor his wife had any local connection with Hammersmith but, as the wife had a local connection with Ealing by reason of her several years of residence there, their application was referred to the local housing authority for Ealing.
  1. The question for the court was whether the Hammersmith and Fulham Council had erred in not taking into account the period spent by M when living in its area as the guest of his friend. It was held that it had. Interim accommodation within the area of the Council could constitute “normal residence” for the purpose of section 199(1)(a) and thus be evidence of a local connection. Lord Slynn of Hadley stated (at [17]) that where a person in fact has no “normal residence” at a particular time, the term is to be given the same meaning as “ordinarily resident” in Shah’s case, and (see ibid at [18]) that “the prima facie meaning of normal residence is a place where, at the relevant time, the person in fact resides”. He continued:

“That therefore is the question to be asked, and it is not appropriate to consider whether, in a general or abstract sense, such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else must not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is, for the relevant time, the place where he normally resides.”

  1. Mr Lock gains some support from Lord Slynn’s statement that the term “normal residence” is to be given the same meaning as “ordinarily residence”. But it is limited support. Apart from the differences of statutory context and terminology, Lord Slynn stated the term “normal residence” is only to be given the same meaning as “ordinarily residence” where, at the relevant time, the person in fact has no “normal residence”. The test is thus a surrogate because the person in fact had no “normal residence”. It is, indeed, a surrogate which accorded an important role to intention. Lord Slynn’s reference to the need for the person to “voluntarily accept” the place where he eats and sleeps, suggests that physical presence was used as an indication of what the person voluntarily wanted and it was that which could constitute a local link. Moreover, the factual circumstances included a number of features pointing to a strong attraction to the borough in which M was physically present. They included the presence of relatives in the borough and the need for medical treatment which was being provided by a hospital in the borough. It would appear that physical presence is insufficient in itself and that what is required is an underlying attachment.
  1. Mr Lock also relied on R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 and R (Sunderland CC) v South Tyneside C [2012] EWCA Civ 1232, two cases about the meaning of the term “resident” in section 117 of the Mental Health Act 1983. The Hertfordshire case is of limited assistance because there was no evidence that JM lacked capacity: see [2010] EWHC 562 (Admin) per Mitting J at [5] and [8] and [2011] EWCA Civ 77 per Carnwath LJ at [8]. In the Sunderland case Lloyd LJ stated (at [26]) that, in understanding the meaning of the term “resident” in the 1983 Act, he did not find it helpful to consider cases in which “ordinary residence” in other legislation has been construed. Similarly, I do not find the cases on the term “resident” of assistance in construing the term “ordinary residence” in the 1948 Act.
  1. I therefore turn to Vale‘s case. It was the first case in which the determination of the “ordinary residence” of an incapacitated person fell for decision. For the reasons I have given, I do not consider that the approaches set out by Taylor J in it are “inconsistent” with the approach in either Shah‘s case or Mohammed v Hammersmith and Fulham LBC. Is it, however, outdated or flawed in some other way?
  1. On examination, the facts and the judgment of Taylor J show that what are referred to as “Test 1″ and “Test 2″ in the Departmental Guidance are not rules of law but two approaches to the circumstances of a particular case. Both involve questions of fact and degree, although Test 2 may be thought to do so to a greater degree.
  1. Vale‘s case concerned Judith, a 28 year old woman who lacked the mental capacity to decide where to live. She was born in London but her parents moved to Dublin in 1961, when she was five. She was placed in residential care in the Republic of Ireland. In 1978, when she was 22, her parents moved back to England with their other children to an address in the area of Waltham Forest. Judith remained at a home for the mentally handicapped in Ireland, but visited her parents two or three times a year. In May 1984, she returned to England to her parents’ address. In anticipation of her return her parents, who wanted to place Judith in a suitable home, sought assistance from Waltham Forest LBC. After her arrival, a placement was found at a home in Stoke Poges, in Buckinghamshire. The DHSS agreed to meet the major part of the cost. Waltham Forest refused to make up the shortfall on the ground that Judith had not been a resident in the borough, but had transferred from a residential placement in Ireland where her need for residential accommodation arose.
  1. After considering Shah‘s case, Taylor J stated that, where a person’s learning difficulties were so severe as to render them totally dependent on a parent or guardian “the concept of her having an independent ordinary residence of her own which she has adopted voluntarily and for which she has a settled purpose does not arise”. He identified two alternative approaches to the determination of where such a person is ordinarily resident. Where a person is so severely handicapped as to be totally dependent upon a parent or guardian, he stated that she is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base”. This (see [24(8) – (9)] is referred to as Test 1 in the Departmental Guidance.
  1. Taylor J stated that the alternative approach (which the Departmental Guidance refers to as Test 2) is to consider the question as if the person is of normal mental capacity. He considered where the person was in fact residing and the purpose of such residence. He stated that Judith was residing “with her parents for the settled purpose of being looked after and having her affairs managed as part of the regular order of her life for the time being” and “until it was possible to obtain funding for her to go” to the home in Stoke Poges. He stated that there was no other address at which she could have been ordinarily resident, that Shah’s case required future intent to be left out of account, and that Judith could not be regarded as a squatter in her parents’ home. The Departmental Guidance (paragraph 34, summarised at [24(10)]) rationalised what he had said about this second alternative thus:- “all the facts of a person’s case should be considered, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person themselves to have adopted the residence voluntarily”.
  1. Vale‘s case was decided two months after the decision of the House of Lords in Shah‘s case. It was the first case in which the approach to the determination of the “ordinary residence” of an incapacitated person fell for decision. It was applied by Potts J in R v Redbridge LBC, ex p. East Sussex CC [1993] COD 256, and considered without disapproval by Charles J in R (Greenwich LBC) v Secretary of State [2006] EWHC 2576 (Admin) and the Court of Appeal in R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 at [41] (Carnwath LJ). Central government and local authorities have placed significant reliance on it in formulating guidance.
  1. In these circumstances there needs to be a good reason to replace it and a satisfactory alternative approach. Cornwall‘s case is that primacy should be given to physical presence. It is, however, important not to accord insufficient weight to the fact that Parliament chose the concept of “ordinary residence” as opposed to “residence”, to the difference between those concepts, and to the other factors which are of relevance in determining “ordinary residence”.
  1. It is clear from the cases, including Shah’s case and Mohammed v Hammersmith and Fulham LBC, that physical presence is not sufficient to constitute “ordinary residence” but the implication of Mr Lock’s submissions is that it is a necessary requirement. He relied on Holman J’s statement in North Yorkshire CC v Wiltshire CC [1999] Fam. 323 at 333 that it is “wholly artificial to regard a child as continuing to be ordinarily resident in an area in which neither he nor his family continues actually to reside and to which neither expects to return”. In PH’s case that has been the position since May 2012, but it was not the position in December 2004. At that time PH’s parents lived in Cornwall, there was a physical presence by him in the county during his visits. Indeed, as it happened, PH was physically present in Cornwall on the day before his eighteenth birthday, although I disregard that fortuitous circumstance as of no significance to the determination of the question before me. However, his parents were much involved in the arrangements for his care and took an active and continuing interest in him, and that is a relevant factor.
  1. At this stage it is instructive to consider the two first instance cases in which Vale’s case has been considered. The first is R v Redbridge LBC, ex p. East Sussex CC , 21 December 1992, of which I only have the summary of the judgment in the Crown Office Digest: [1993] COD 168. The father of handicapped autistic twins, who lived in Haringey, placed them at a residential school in East Sussex. Four years later in 1986 the twins’ parents moved to the area of Redbridge LBC and sought assistance from the council. In 1987 Redbridge informed the father that, pending a statutory assessment, it would accept responsibility for the education of the twins, then aged fifteen. In January 1989 the residential school informed Redbridge that it would be closing on 17 March 1989.On 2 March Redbridge learned that the twins’ parents had sold their house in Redbridge and left this country to live in Nigeria in December 1988, and, on 10 March, Redbridge informed East Sussex of the impending closure of the school, the parents’ return to Nigeria, and that it considered that the statutory responsibility for the twins lay on East Sussex. As the twins were in urgent need of assistance and were in its area, East Sussex provided emergency respite care under the National Health Act 1977, but instituted judicial review proceedings contending that the duty to provide for the twins under the 1948 Act lay on Redbridge. There appears to have been no consideration of responsibility under the Children Act 1989.
  1. Potts J held that the duty under the 1948 Act fell on East Sussex. The summary in the Crown Office Digest states that he held that the twins were ordinarily resident in Redbridge until December 1988 because they were so mentally handicapped as to be totally dependent on their parents, and because Redbridge was their base. However, after their parents left and the family house was sold, they had no settled residence, were physically present in East Sussex, and were in urgent need of care. East Sussex was (see [23]) the “local authority of the moment” and, as such, the duty fell on it. The summary does not state whether the twins had ever visited their parents in Redbridge before the parents returned to Nigeria. It refers to Redbridge seeking to contact the parents in December 1988 about funding a holiday placement, and to the fact that the parents left for Nigeria without informing Redbridge. These factors suggest that there may have been only little contact between the parents and the twins, even in the school holidays, before that time. Nevertheless, their parents’ house in Redbridge was stated to be their base.
  1. The second case is R (Greenwich LBC) v Secretary of State[2006] EWHC 2576 (Admin). D, an elderly woman who lived in the area of Bexley LBC moved into a care home in Bexley. Her means were such that she and her family were responsible for the costs of her care, and her home was sold to provide funding for this. After about a year, it was decided that it was no longer appropriate for D to remain at that home because she needed to be in a EMI nursing home or in NHS care. She was placed in a nursing home in the area of Greenwich LBC. Four weeks and five days later, on 29 June 2002 her capital had fallen to the point that responsibility for her care fell on the appropriate local authority. There was a dispute between Greenwich and Bexley and they referred the matter to the Secretary of State. He determined that, although the move to the home in Greenwich was facilitated by Bexley, it was D’s family and not Bexley who placed her there. The question was where she was ordinarily resident on the date when her available capital fell below the relevant financial cap. The Secretary of State decided that it was Greenwich. After considering the authorities, including Vale‘s case, Charles J stated (at [72]):

“Habitual or ordinary residence is in each case a question of fact. The temptation to turn it into an abstract proposition should be resisted. Habitual or ordinary residence is not equivalent to physical presence. There can be ordinary or habitual residence without continuous presence, while physical presence is not necessarily equivalent to residence. Residence means living somewhere. The significance of ordinary or habitually is that it connotes residence adopted voluntarily and for settled purposes. That was the point emphasised before me and appears clearly from Shah. Although ordinary in one place can be lost immediately, acquisition of a new ordinary residence requires an appreciable period of time. The length of the appreciable period of time is not fixed, since it depends on the nature and quality of the connection with the new place. However, it may only be a few weeks, perhaps, in some circumstances, even days. In order to establish ordinary residence over a period of time a person must spend more than a token part of that period in the place in question. Ordinary residence is not broken by temporary or occasional absences of long or short duration. …”

  1. Charles J thus regarded “ordinary residence” as involving questions of fact and degree, and factors such as time, intention and continuity, each of which were to be given a different weight according to the context: see [73]. He also stated (see [74]) that the fact that the individual in that case did not have an existing right to reside at a place in Bexley on the relevant date is a significant factor to be taken into account, but “is not determinative of the issue”. Mr Lock’s submissions in effect suggested that PH could not be ordinarily resident in Cornwall because he did not have the “right” to reside at his natural parents’ home. Although certain passages in the Secretary of State’s determination in the Greenwich case might be understood to suggest that the Secretary of State regarded the absence of a place available in Bexley as determinative, Charles J stated (see [85]) that, on its true interpretation, the determination stated that, given all the factors that had to be taken into account, the key factor was that the individual did not in fact have anywhere to live in Bexley any longer, and was actually living in Greenwich, and that the factors that fell for consideration did not outweigh the force to be given to those points in determining her ordinary residence.
  1. Drawing the threads together, “ordinary residence” is a question of fact and degree, and if the Secretary of State gets the law right, the determination of a person’s ordinary residence is for the Secretary of State, subject only to Wednesbury unreasonableness. In the present case PH’s connections with Cornwall differed from Judith’s connections with Waltham Forest in Vale’s case. In one sense PH’s connections were more transitory because Judith had come to stay with her parents in Waltham Forest until appropriate arrangements were made for her whereas by December 2004 arrangements had been made for PH to be placed in a home in Somerset. But, in North Yorkshire CC v Wiltshire CC [1999] Fam. 323 at 334 Holman J stated that “the court is entitled to take into account matters other than where [the person himself or] herself was living during the specified period, and Potts J in R v Redbridge LBC, ex p. East Sussex CC .did not appear to have placed any weight on whether there was a physical presence by the twins in Redbridge during the period in which the court found they were ordinarily resident there.
  1. In deciding whether PH’s base was at the home of his natural parents, the Secretary of State applied the Vale Test 1 in a fact-sensitive way. Although not determinative of the legality of his decision, he did so in a similar way to that presented in “scenario 2″ in paragraph 158 of the Departmental Guidance: which is summarised in the Appendix to this judgment.
  1. The Secretary of State examined (see determination, paragraphs 23-24, set out at [46]) whether there was a real relationship between PH and his natural parents and whether they were in fact making relevant decisions. He was entitled to take account of that and (see determination, paragraph 25) of the “entirety of the relationship between [PH] and his parents”. As part of that, he was also entitled to take account of the time spent by PH with them in Cornwall.
  1. It is also clear that the Secretary of State took account of the approach in section 4 of the Mental Capacity Act 2005. In considering the approach of PH’s family, he concluded that they viewed contact with PH in terms of what was in his best interests.
  1. The process of determining that PH was ordinarily resident in Cornwall may appear artificial. There would, however, have been a similar artificiality in determining that he was ordinarily resident in any of the other counties under consideration. The Secretary of State gave reasons for concluding that PH could not be considered ordinarily resident in Wiltshire at the relevant time: see paragraph 22 of the determination, which is set out at [46] above. Those reasons and that approach are in line and consistent with the decision of the Court of Appeal in Re D (a child) (care order: designated local authority) [2012] EWCA Civ 627.
  1. In D‘s case it was held that the “disregard” principle in section 105(6) of the 1989 Act did not apply when the ordinary residence of a sixteen year old mother had to be determined for the purpose of determining the ordinary residence of her baby. Elias LJ stated:

“[the mother] is treated as though she has two hats; she is a mother whose ordinary residence must be determined by common law principles when that concept is relevant for the purpose of determining her child’s ordinary residence for any purpose under the 1989 Act; but she is a child whose ordinary residence is modified by section 105(6) when it comes to determining her own place of ordinary residence for any purpose under that Act”. (at [45]).

The reasoning summarised in paragraph 22 of the Secretary of State’s determination represents the application of those common law principles.

  1. As to South Gloucestershire, for the reasons I have given in [66], by the relevant date it was clear that PH was only in South Gloucestershire on a very temporary basis and the settled intention required to establish “ordinary residence” could not be imputed to him. Finally, as to Somerset, although it was planned that he would move there shortly afterwards, at the relevant date he had never lived in that county. Shah‘s case required future intent to be left out of account.
  1. For these reasons, I have concluded that the Secretary of State’s determination that PH had, as his “base” his parents’ home as at the date of his eighteenth birthday, and hence was ordinarily resident in Cornwall was one that was properly open to him. Accordingly this application is dismissed.

 

some titbits from the Justice Ryder talk

 

A few pieces of information that weren’t necessarily known before, that emerged from a talk he kindly gave in my neck of the woods.  I arrived late, so if I missed any announcement about Chatham House rules, I’ll obviously take this down.

 

1. There is a judicial review lodged about the LSC and whether they were reasonable in a particular case in refusing funding. From the very little that was given away, it seems to be a case involving private law, and parents who could not afford an assessment deemed important by the Court, so the report was commissioned and the costs directed to the Guardian’s public funding certificate. No timescales for when this will be heard.  The Judge was obviously very circumspect, and appropriately so, and did not discuss any detail or view of the case, but merely passing on that such a case was in the pipeline.

 

2. In drug and alcohol cases where longer testing is required, they might be able to exceed the 26 week limit -BUT it would be after the Court had inspected the evidence and considered that the timetable for THAT child warranted the case going beyond 26 weeks.

 

3. They have been discussing what to do with family and friends who present as viable but come forward very late in the proceedings; one possibility being actively considered is whether the Care Order be made (with the Court effectively determining that the child won’t live with parents)  and then the Placement Order/SGO/residence application be ‘uncoupled’ from the care proceedings and dealt with after assessments are done.

 

4. The judiciary are alive to the idea that when Parliament constructs the statutory framework for 26 week time cap, the exceptions need to not be based solely on complexity – the particular example given was of a first time teenage mother who just needs a longer period of monitoring and testing and learning, and whilst that wouldn’t be complex, there could well be a need for the case to go beyond 26 weeks. The suggestion was that the Court would need to consider and record on the orders why the timescale for that child went beyond 26 weeks. In order to present a balanced picture to the legislators, Justice Ryder was suggesting that Courts should ideally be recording that sort of thing on orders now, to build up a proper framework of what sort of cases genuinely need more time.

 

5. It did sound like the LSC might be having second thoughts about the Pandora’s Box of prior authority, and the senior judiciary are talking with them about possible solutions.

 

It was an interesting talk, delivered well, all questions given proper answers,  and even my cynicism wavered slightly. It does honestly sound as though they mean it this time – change is a’coming.

When is a duty not a duty ? (when it falls on CAFCASS, of course)

 

A brief analysis of the Court of Appeal decision in R & Others and CAFCASS 2012

 

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/853.html&query=cafcass&method=boolean

 

 

It may alarm and stagger you to learn that in some cases back in 2009, CAFCASS did not appoint a Guardian immediately to represent children in public law proceedings.  (It would probably alarm and stagger you still less to learn that this was also the case in some private law proceedings, and almost certainly still is)

 

 

There were four individual cases bundled together :-

 

R – care proceedings began 28th June 2009 and a Guardian was allocated by CAFCASS on 15th September 2009   (the risks were of physical harm, and he was in voluntary foster care at the outset of proceedings)

 

E – care proceedings began 22nd December 2009 – there was a finding of fact hearing relating to physical injuries alleged to have occurred when E was just an infant. There never seems to have been a Guardian appointed. This bit (a direct quote) is astonishing even to my jaded palate.

 

“Therefore, other than to inform E’s parents that he was the guardian he did not participate in the case at all. He forgot to inform the court that he was the allocated guardian.” 

 

 

In the words of the immortal P G Wodehouse , on reading that, I inspected my mind and found it to be boggled.

 

J – care proceedings began 30th October 2009  and a Guardian was appointed on 22nd March 2010  (3 weeks after a Letter Before Claim was sent by those representing the mother)

 

K – care proceedings began on 25th August 2009 – on 22nd March 2010 a Guardian was appointed. (Once again, 3 weeks after the Letter Before Claim was sent to CAFCASS)

 

 

 

The case really turns on whether CAFCASS’s duty to represent children and provide Guardians to represent children extends to a duty to do so in any one individual case, or whether it is more of an aspirational global mission statement which does not ensure that any individual child gets proper representation   (note, this sentence does not purport to be in any way neutral and is strictly the author’s rather than the words of any Judge either at first )

 

 

These passages from the Court of Appeal judgment (that of Lord Justice McFarlane) illustrate the sympathy that the Court had with the Claimants argument that appointment of a Guardian is pivotal to the progress of a care case and that doing so in the early stages  (when the issues are separation or not, the levels of interim contact and the shape and nature of assessments) is critical.

 

 

  1. I need absolutely no persuasion as to the essential merits of the complaint that lies behind the claims of each of the four children before this court or of the plea that is now made so forcefully and eloquently on their behalf. Whether one uses the words of the Inquiries that argued for the introduction of the guardian’s role, or the words of the Family Justice Review and the government’s response to it, or those of Charles J and the Divisional Court, the immense importance of the role of a children’s guardian both to the operation of the statutory scheme for protecting children from significant harm and to the quality of outcome for the individual child in each such case is hard to understate. Without, I hope, stretching the metaphor beyond its tolerance: in the tandem model it is the children’s guardian, rather than the child’s solicitor, who steers the course for the child’s representation in the proceedings. A guardian who is appointed promptly at the start of the proceedings can conduct an initial investigation of the circumstances, offer a preliminary analysis of the issues and, crucially, assist the court in crafting the case management directions which will, to a large extent, determine the course and timetable of the litigation.
  1. The great value to the child, the other parties and to the court of appointing a children’s guardian very promptly after the start of proceedings under CA 1989 Part IV has been readily accepted by both sides in this appeal and has, since April 2008, been a key expectation of the PLO (and now the FPR 2010, PD12A). Although  CAFCASS  has, understandably, carefully chosen the word ‘undesirable’ to describe the delay in appointment in the four appellants’ cases, Mr McCarthy has not in any manner sought to justify what occurred in positive terms. All are effectively agreed that the optimal outcome is for a children’s guardian to be appointed promptly in every public law child case. The points made about the importance of representation to any party, particularly one under a disability, are well made. The question raised in this appeal does not, however, concern the desirability of prompt or immediate appointment. The question for us is not one of desirability but one of statutory duty and it is whether  CAFCASS  has a statutory duty, owed to each individual child, to effect the prompt or immediate appointment of a children’s guardian in every such case.
  1. Despite the real sympathy that I have for the plea that lies behind the Appellant’s case, it is necessary to apply a legal, public law, analysis to the arguments raised and to the wording of the key statutory provisions. In doing so, where a choice of statutory construction arises, and a purposive interpretation is called for, I am plain that any purposive construction must point to the early or immediate appointment of a guardian.

 

 

 

But also highlight where this is going – in order to impose a duty on CAFCASS to appoint a Guardian in an individual case and do so promptly, the Court would have to find something within the statutes which creates such a duty in an individual case. If not, CAFCASS escape with the Jedi hand-wave of ‘we represent children in general, just not in this particular case, and at a time that suits us’

 

The Court did not find that such a statutory construction could be derived, and that the earlier decision of Mr Justice Charles in R v CAFCASS 2003

 

http://www.bailii.org/ew/cases/EWHC/Admin/2003/235.html  remained the correct expression of the law, that there was no duty on CAFCASS in any individual case to appoint a Guardian.

 

 

 

There was then an attempt to argue that the failure of CAFCASS to appoint a Guardian ‘immediately’ on the commencement of proceedings or on direction from the Court led to a breach of Human Rights, variously on articles 6 or 8.  This did not succeed either.

 

 

  1. It may well be that in one or more individual cases where there has been failure by  CAFCASS  to appoint a children’s guardian in a timely manner, or at all, it will be possible to conclude that there has been a breach of the Art 6 and/or Art 8 rights of the individual child before the court. Such a conclusion would, in my view, only be achievable after the completion of the trial process and after it had been evaluated as a whole so as to determine whether or not a violation of these Convention rights had taken place. We are not invited in respect of the four cases before the court to conclude that in any one of them there was an actual breach of Convention rights. It is of note that in none of the four cases did the trial court hold (or was, I suspect, invited to hold) that a breach of Arts 6 or 8 had occurred.
  1. To hold that, of itself, a failure to appoint a children’s guardian immediately upon being directed to do so amounts to a breach of Convention rights, would involve assuming that the judge, the other parties and, in particular, the solicitor for the child (who, we understand, is likely to have been appointed promptly) would have failed to act in a manner which, to some degree, accommodated the lack of guardian and protected the child’s rights. In proceedings under CA 1989, Part 4, the family court itself has a primary duty under the HRA 1998 to conduct its process in a manner which is compatible with the Convention. To hold, as Mr Geekie asks us to do, that a failure to appoint a guardian immediately is sufficient to establish that the proceedings as a whole are bound to be conducted in breach of Art 6 or 8 must involve the assumption that it will be beyond the capacity of the trial judge to ensure a fair trial in the absence of a guardian for any stages of the proceedings.
  1. The issues involved in public child care proceedings are often of the utmost importance to the parents, to the state and above all to the subject child. No one involved in these cases should be under any misapprehension that rights under ECHR Arts 6(1) and 8 will be ‘engaged’ at every stage of the process. There is a duty upon public bodies, of which  CAFCASS , the local authority and the court are three, to act at all times in a manner which is compatible with the convention (HRA 1998, s 6(1)). It is against that background that  CAFCASS  readily accepts the duty that Charles J found lay within s 12 of the 2000 Act to appoint a children’s guardian as soon as practicable after the request is made. Although not expressly argued before him, the ECHR arguments that we have heard support the conclusion to which Charles J arrived, just as they support the conclusion of the court below in the present case. It is, however, just not possible to hold that the Appellants’ human rights arguments support the conclusion for which Mr Geekie now argues which would involve holding that in every case a failure to appoint a guardian immediately upon request would inevitably amount to a breach of Convention rights. HRA 1998, s 3 will only give this court jurisdiction to read text into a provision where the provision is not otherwise compatible with the Convention rights. Nothing short of a finding on the level I have described would make it permissible for this court to ‘read in’ to s 12 of the 2000 Act a requirement for immediate appointment which, as Charles J has held, is not otherwise present.
  1. Even if, contrary to the foregoing, the effect of Arts. 6 and 8 were to require the immediate appointment of a guardian in every case, it would not justify the court adopting, pursuant to HRA 1998 s.3, a different interpretation of s.12 from that which otherwise be adopted in accordance with the normal principles of statutory construction under domestic law. That is because the CJCSA 2000 contains its own mechanism for the laying down of any appropriate time limits, by means of directions under paragraph 9 of schedule 2, and any requirement as to immediate appointment of a guardian could be imposed by such directions. Compatibility with the Convention could therefore be achieved within the terms of the Act without any need to adopt a different interpretation of s.12 in order to produce such a result. The fact that the statutory mechanism would call for action by the Lord Chancellor in making the relevant directions would not be a good reason for the court to adopt a different interpretation of s.12.
  1. Despite fully acknowledging the very real importance of achieving the appointment of a children’s guardian for a child who is the subject of care proceedings at an early stage in every case, I am entirely satisfied that the decisions of Charles J in R v  CAFCASS  and of the Divisional Court in the present case are sound and correctly describe the duty upon  CAFCASS  under CJCSA 2000, s 12.

 

 

The battle-weary amongst you may be saying, so what?  These cases were all 2009 and we know that CAFCASS were having huge problems now and that these are conquered.

 

I, however, am feeling uncomfortable that this case is a continuation of the green light for CAFCASS should workloads increase or staff numbers decrease in the future, to run what I’ve described in the past as a homeopathic Guardian service, where the active ingredient of a Guardian actually being involved in the case talking, reading, listening and observing becomes so dilute that there is barely any of it.  It imports the ability for CAFCASS to run a sort of ‘triage’ service where they determine which cases need a Guardian straight away, and which can potter along on their own until the work-load crisis ameliorates a little.

 

 

 

 

 

 

 

 

I also feel uncomfortable than in the last two months, the family Courts have decided that family Court judges have no sway, influence, or jurisdiction over :-

 

(a)  CAFCASS if they drag their heels appointing a Guardian, or

(b)  The Legal Services Commission if they decide they don’t want to pay the costs of an assessment or want to quibble over the bill to an extent where the proceedings are catastrophically delayed whilst that is resolved, and where it is apparently okay for them to tell the President of the Family Division that they don’t come to Court when they are ordered to and just ignore those orders.

 

And leaving the remedy for both being judicial review for Wednesbury unreasonable individual examples  (ignoring the difficulties in funding, proving, litigating and timely resolution of this, and that what is needed is general principles, not individual case resolution piece by piece, and that almost certainly the judicial review courts will quickly stamp on these sorts of cases because they are already swamped in ongoing JRs)

 

Although we haven’t had a case about whether the Court can make the Official Solicitor move more quickly in representing the most vulnerable in our society, I have little doubt that the outcome on that would be the same; we’re already inviting them in more and more courteous terms to do the job that they are charged with.

 

Whilst in the same broad period of time decided that their judicial muscles can be flexed in making LA’s pay the costs of intervenors who happen to triumph in their cases.

 

Is the LA now the only body who can be cheerfully pushed around by the Court? It begins to look that way.

 

And Justice Ryder’s recent speech on modernisation points that way too (my underlining)  :-

 

There is a place for independent social work and forensic experts to advise on discrete issues that are outside the skill and expertise of the court or to provide an overview of different professional elements in the most complex cases but regard must be had to why those who are already witnesses before the court have not provided the evidence that is necessary and who should pay for it when it is missing.

 

Who on earth could he mean? Are the Courts going to order CAFCASS to pay when a report needs to be commissioned because Guardians are no longer the independent active ‘Court’s eyes and ears on the ground’ that they used to be?   Or are they just going to make the LA pay for everything and blame it on poor quality social work reports? I wonder.

 

 

 

 

 

I suggest that the Government take half the money that is currently spent on psychologists and Independent Social Workers, and put the Guardian service back the way it was, with staff given caseloads and time to actually be the independent social work check and balance and voice of the child they were intended to be. The reason for the proliferation of experts is because we no longer allow Guardians to do the job they signed up to do and that very very many of them were extremely good at doing.

 

As a footnote on my snarky comments about mission statements, the best advice I ever read about them is to imagine that they say the opposite. If that becomes ridiculous then the mission statement is meaningless.  (i.e This Organisation wants to please its customers – the reverse is not something that would be true of any business, thus the mission statement is redundant nonsense. If nobody could possibly disagree with it, it isn’t meaningful. For example  “We’re against nuclear war” is meaningless, “We’re against nuclear power” is not – there’s a degree of choice and standpoint with the latter – you could agree or disagree, whereas really nobody is in favour of nuclear war)

 

 

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