RSS Feed

Tag Archives: official solicitor

Barbecue tongs and police being given power to force entry to a home

 

Another C-section Court of Protection case. You may have seen the Daily Telegraph piece already

http://www.telegraph.co.uk/news/uknews/law-and-order/10952683/Judge-allows-police-to-break-down-womans-door-for-enforced-caesarean.html

 

The Telegraph’s reporting is very faithful to the judgment here, and it is more of a factual report than a comment piece.  The judgment itself is the Mental Health Trust and DD 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/11.html

 

This is the sixth pregnancy that DD has had. She has mild to borderline learning disability (Full scale IQ of between 67 and 75 – if you read cognitive assessments often, that’s in the bottom 1% of the general population, but in the area where USUALLY , and I stress USUALLY the person has the capacity to make decisions for themselves and conduct litigation), but this was compounded by her autistic spectrum disorder, and it was the combination of the two difficulties that led the Court to conclude that she lacked capacity for the purposes of the Mental Health Act.

 

None of the previous five children live with DD or her partner, BC  – her partner is said to have significant learning difficulties and a lower IQ than DD. The obvious compelling fact from the five previous children is this, in relation to child 3

 

In June 2010, on a home visit, DD was found cradling a baby born in her home; the baby was believed to be 5-10 days old. Child 3 (male) was at that point seriously dehydrated and undernourished (it appears that the parents had sought to feed him with cup-a-soup), with lesions on his head believed to be caused by Bar-B-Q tongs which (from information provided by DD and BC at the time) BC had used to assist in the delivery (DD denies this)

 

Added to that is that during the pregnancy of the fourth child, mother suffered an embolism, leading to increased health risks in pregnancy and labour for future children

 

  • On a routine visit to DD’s and BC’s home in July 2011, DD was observed to be very unwell; she was fitting, and unconscious. It later transpired that she had suffered an intracerebral embolism causing fitting (status epilepticus), probably brought about by the pregnancy. BC was unable to say for how long DD had been in this dire state. DD was admitted to hospital as an emergency; her fitting could not be controlled, and she was therefore given general anaesthetic and ventilated on the intensive care unit. Monitoring of the unborn baby revealed evidence of foetal bradycardia (slowing of the heart and consequent distress). In order to treat the patient (DD) and relieve the foetal distress, an emergency caesarean section was therefore performed. DD suffered significant post-partum haemorrhage, and required a 2 unit blood transfusion. Child 4 (female) was born very prematurely at 29 weeks.

 

 

 

  • Following the birth, neither parent sought to see Child 4, nor did they engage with child care proceedings. Child 4 was made the subject of a care and placement order and placed for adoption.

 

 

 

  • Significantly, DD resisted prophylactic injections to prevent further blood clots. The occurrence of the embolism means that any future pregnancy carries an increased risk of stroke and of haemorrhaging

 

 

And then child 5

 

 

  • Child 5: Later in 2012, DD became pregnant again. The pregnancy was once again concealed from the professional agencies (including social workers from the adult and child services) which were endeavouring to work with the parents. The parents withdrew from engagement with professionals, and on occasions refused entry to their home. In mid-July, an unannounced visit by child care social workers was made to the home; BC declined their request to enter. Following protracted negotiations (involving discussion of police attendance to obtain access to DD), BC relented. On entering the property, DD was seen attempting to breast feed a baby (Child 5: female), swaddled in a dirty pillow case soiled with blood. The home was dirty; there was no sign of baby clothes, blankets, bottles, nappies or anything suggesting preparation for a child. DD was evasive when asked where the afterbirth was; there was concern that it may not have been delivered. DD looked unwell. BC handed Child 5 to the social workers, and gave permission to have her examined in hospital.

 

One can understand why any professional involved with DD would be concerned about her pregnancy and anxious to ensure that the baby is not born at home without medical supervision. It appears that DD and BC withdrew from medical and other services during this pregnancy

 

 

  • Between late February and early April, twenty-five social work visits were made to DD and BC’s home. Even allowing for the fact that on occasion DD will undoubtedly have been out, the social workers were not able to obtain access on even a single occasion. Occasionally, DD and BC have been sighted at the windows within the property, but have not responded to knocking at their front door. On one occasion, BC responded to the knocking by telling the visitors (through the locked door) that DD was “not pregnant“; DD was heard shouting in the background.

 

 

 

  • Given the level of concern, and belief in the advancing pregnancy, the Adult social services sought and obtained a warrant under section 135 Mental Health Act 1983 which authorised them to enter, with police presence and if need be by force, DD’s home, and, if thought appropriate, to remove her to a place of safety with a view to making an application in respect of her under Part II of the Mental Health Act 1983. Mr. D told me that there was reasonable cause to suspect that DD (a person believed to be suffering from mental disorder) was being kept otherwise than under proper control.

 

 

 

  • On 8 April 2014, the warrant was executed. On entering the flat that evening (17:00hs), there was an overwhelming smell of cats’ urine; the home was dirty and dingy. DD and BC were initially distressed, but (according to Mr. D and Mrs. C, who were both present) the situation was soon calmed, and DD was conveyed to a mental health unit for full mental and physical assessment. DD co-operated with a physical examination, an ultrasound scan, and blood sampling.

 

 

 

  • Following this assessment, fifteen further attempts were made to see DD at home. On none of those visits did DD or BC answer the door. DD did not attend pre-booked ante-natal appointments on 23 April, or on 21 May 2014; transport had been offered and provided. The letter reminding her of the ante-natal appointment was returned with a message on the envelope ‘return to sender, moved away‘.

 

 

 

  • To add context to this level of ante-natal intervention, NICE (National Institute for Health and Care Excellence) Guidelines recommend nine appointments for a high-risk pregnancy (which this is – see §97(vii) below); by this time, DD had had one appointment, and only (as is apparent from the history above) when she had been removed from her home following court order.

 

 

 

The Trust (ie the hospital and doctors at the hospital) made an application to the Court of Protection for a number of declarations about DD

 

i) DD lacks capacity to litigate in respect of the issues below;

ii) DD lacks capacity to make decisions in respect of whether to undergo a caesarean section and to make decisions generally about her care and treatment in connection with her impending labour, including the place and mode of delivery of her unborn child;

iii) It is in DD’s best interest to undergo a planned caesarean section in hospital with all necessary ancillary treatment;

iv) DD lacks capacity to consent to be subject of an assessment of her capacity to make decisions in relation to contraception (by way of sections 48 or 15 Mental Capacity Act 2005);

v) It is in DD’s best interest to be subject of a one day assessment of her capacity to make decisions about contraception;

vi) The Applicants may take such necessary and proportionate steps to give effect to the best interests declarations above to include, forced entry, restraint and sedation.

 

The Court of Protection were not dealing with, were not asked to deal with, and have no powers to deal with, what would happen to DD’s baby once it was born. The Judge,  Cobb J, simply says this

I exhort the Council to make sure that any application for orders fully engages DD, so that she can be represented by her litigation friend, the Official Solicitor. It is plainly important, in DD’s best interests, that plans for the baby are formulated and presented to her in a way which engages her to the fullest extent.

 

 

The Court assessed DD’s capacity.  (I will set out now, because it is an issue that continues to trouble some practitioners in this field and also campaigners, that although DD was represented through the Official Solicitor, the Official Solicitor had not met with her or taken her views on the issues and did not in effect mount a challenge or defence to those declarations. The Official Solicitor’s role is to make representations to the Court about what they consider to be in DD’s best interests – in some cases that means agreeing or not opposing the declarations sought, in some cases it means a very robust opposition to the declarations sought, but there is no general principle that the Official Solicitor ought to argue against state intervention and FOR autonomy for people like DD)

 

The peculiar issue in relation to capacity was that DD in five sets of care proceedings had been adjudged to have capacity to litigate, and had NOT been represented through the Official Solicitor. That would be fairly unusual in a case where the Court was contemplating surgery against the person’s will

 

  • I am satisfied that “all practicable steps” (section 1(3) MCA 2005) have been taken to help DD to make a decision as to litigation, and mode of delivery, but that such steps have been unsuccessful – not just because of the low level of co-operation, but because she has displayed such rigid and unshakeable thinking (‘mind-blindedness’) about the information provided.

 

 

 

  • Her decision-making is undoubtedly “unwise“, but it is not, in my judgment, just “unwise“; it lacks the essential characteristic of discrimination which only comes when the relevant information is evaluated, and weighed. I am satisfied that in relation to each of the matters under consideration her impairment of mind (essentially attributable to her autistic spectrum disorder, overlaid with her learning disability) prevents her from weighing the information relevant to each decision. While anxious that in the past DD has ostensibly participated (albeit in a limited way) in public law proceedings without any finding of the court as to her capacity to do so (which causes me to reflect yet more carefully on the issue under consideration now) I must consider the issue with regard to this particular piece of litigation (Sheffield Crown Court v E & S – supra).

 

 

 

  • Moreover, on the evidence laid before me, there is reason to believe (section 48) that she lacks capacity in relation to whether to participate in an assessment of her capacity to decide on future contraception.

 

 

 

  • In these conclusions, I am fortified by the fact that the Official Solicitor, on DD’s behalf, does not seek to persuade me otherwise.

 

 

 

  • These conclusions can be drawn as declarations reached pursuant to section 15 Mental Capacity Act 2005, save for the conclusion in relation to capacity to consent to an assessment of decision-making relevant to future contraception, which will be drawn as a declaration under section 48 MCA 2005

 

 

 

The Court then went on to consider, what the best interests of DD required, given that she lacked capacity to make her own decision. The analysis that Cobb J undertakes of the various options for delivery of the child, the pros and cons of each and the balancing exercise is the best of these that I have seen, and I hope that this sort of root-and-branch analysis becomes more widely used in these cases. He reaches the conclusion that caesarean section is the best course of action, and makes the declarations that would allow the hospital to carry out that surgical procedure.

 

We then move to the headline item – in all of the other C-section Court of Protection cases the expectant mother has been in hospital, here she is at home. How is she to be conveyed to hospital?

 

Achieving the admission to hospital: Use of reasonable force & deprivation of liberty

 

  • I am conscious that steps may need to be taken to give effect to the decision which I make, if compelled attendance at hospital is required (for caesarean or induced vaginal delivery) in the face of DD’s objection. The extent of reasonable force, compulsion and/or deprivation of liberty which may become necessary can only be judged in each individual case and by the health professionals.

 

 

 

  • On two recent occasions forcible entry has had to be made to DD’s home in order to achieve some form of assessment: once with the authorisation of the lay justices (section 135 MHA 1983: 8 April 2014) and once pursuant to an order of Pauffley J (section 48 MCA 2005: 19 June 2014).

 

 

 

  • Any physical restraint or deprivation of liberty is a significant interference with DD’s rights under Articles 5 and Article 8 of the ECHR and, in my judgment, as such should only be carried out:

 

 

i) by professionals who have received training in the relevant techniques and who have reviewed the individual plan for DD;

ii) as a last resort and where less restrictive alternatives, such as verbal de-escalation and distraction techniques, have failed and only when it is necessary to do so;

iii) in the least restrictive manner, proportionate to achieving the aim, for the shortest period possible;

iv) in accordance with any agreed Care Plans, Risk Assessments and Court Orders;

 

  • On each previous occasion, after DD’s (and BC’s) understandable initial distress at the intrusion, DD has been calm and co-operative; BC less so. The presence of the police has not aggravated the situation; on the contrary, I was advised by Mr. D that DD sees the police as neutral and therefore helpful in maintaining peace. DD does not see the police as a risk; indeed, it was felt, the presence of police (in fact, uniformed police underline for the concrete thinker the visual confirmation of authority) creates a brake on her anxiety, anger, frustration and fear. The police add a ‘message’ to DD that the situation is ‘serious’ (according to Mr D) and has the effect of calming DD and BC.

 

 

 

  • In fulfilment of the plan as a whole, it is critical that the particular team of trained and briefed professionals is involved.

 

 

 

  • I recognise that sedation may be needed to ensure that DD does not cause herself harm at the time of the transfer to, and in-patient stay, in the hospital. General anaesthesia is likely to be necessary in my judgment to facilitate the caesarean section given the risks to herself if she were to interfere with the surgical procedure, or choose to be non-compliant with localised anaesthetic.

 

 

 

Finally, the Trust were proposing that DD be told of the general plan – that she would be taken to hospital and undergo a C-section, but not detail as to the date. The Judge considered the pros and cons of this here

 

 

  • The Applicants propose that neither DD nor BC should be advised of the date planned for the caesarean procedure, but should be provided with partial information: they are aware of this hearing, and it is proposed that they should be informed of the Applicants’ plan to arrange a caesarean section for her.

 

 

 

  • It should be noted that neither DD nor BC were advised in advance of the date of the localisation scan which took place two weeks ago.

 

 

 

  • There are plainly risks associated with providing DD and BC with full information (i.e. about the planned date), and, in the alternative, providing them with partial information. The professionals consider that the risks associated with providing them with full information are greater given DD’s likely raised stress and anxiety levels as the date approaches; this may have a serious impact on her mental health. This concern is underlined by the fact that she was adamant that she should not have her planned caesarean at the time of the birth of Child 2 until the exact due date.

 

 

 

  • There is a further risk that in advising DD and BC of the date of the caesarean, that they may seek to leave their home, and disappear. This in itself would create risks to DD, in that:

 

 

i) There is no guarantee that the specialist team local to her current home which has been identified to look after DD on the appointed date could be assembled on short notice, once DD and BC have been located;

ii) Health professionals in any new area would be unfamiliar with her situation, and less well equipped to deal with her, and her particular needs;

iii) Managing a safe transition from the community to hospital may be less easy or (if she is located in a public place) dignified.

iv) If she attempts a vaginal delivery at home (particularly any temporary home which is unfamiliar), she may be putting herself at additional risk.

 

  • If DD and BC are given partial information (omitting specific dates) the levels of anxiety are likely to be lessened and DD may have difficulty relating the information to herself given her autism spectrum disorder. This condition may make it difficult for DD to see how the information relates to her until concrete actions take place. Recent experience (8 April and 19 June) has demonstrated that while DD has been initially distressed, this reduces quite quickly and effectively using skilled de-escalation techniques.

 

 

 

  • I acknowledge that giving full information to DD and BC about the plans for the delivery of the baby would most fully observe their Article 8 and Article 6 ECHR rights.

 

 

 

  • However, in my judgment the provision of only partial information (i.e. that the plan is for a caesarean section, but not giving her a date) is a justified interference with her potent Article 8 rights on the facts of this case, as necessary in the interests of her health and the health of her unborn child. Moreover, I am of course satisfied that her Article 6 rights have been observed by her full and effective representation – with the fullest opportunity for her engagement – in this hearing

 

 

 

These cases, as with so much that falls to be decided by High Court judges, are extraordinarily difficult, with there being no perfect answer. Nobody can, or indeed should, feel wholly comfortable with a deeply vulnerable woman being removed from her home by police officers and taken to a hospital to have surgery performed on her against her will; not least because one can see that her prospects of remaining together with the baby are not strong given the previous history. It makes me feel squeamish and uncomfortable. But when one contemplates the alternative – that two parents of such limited abilities try to deal with a home birth unsupervised and a labour that has medical complications, given that they previously tried to use barbecue tongs as forceps and injured child 3’s head during the process, that feels terrible too.  I don’t know how we get these decisions right and do them fairly, but it would be hard for anyone who takes the time to read Cobb J’s judgment carefully to think that he didn’t try his utmost to make this difficult decision fairly.

 

My one caveat is that I think there should be someone in Court who is advocating for non-intervention, and for DD’s autonomy. If the Court don’t consider that DD’s autonomy can outweigh her wider interests and safety, then so be it, but I would feel better if someone was really arguing ‘fearlessly and without favour’ for the State to leave this woman alone. That way, all of the competing options are rigorously argued out and tested. Otherwise, that is left entirely on the shoulders of a Judge – and we may not always be as fortunate to have a Judge like Cobb J, who has the mindset, the knowledge and in this case the time, to vigorously consider the counter arguments that are not being made by the advocates.

“Capacity to marry”

Sandwell MBC and RG, GG and SK and SKG 2013 and whether an arranged marriage where the individual had no capacity should endure or be dismantled

http://www.bailii.org/ew/cases/EWHC/COP/2013/2373.html

This was a Court of Protection case, heard before Mr Justice Holman. It involved two adult males, both of whom had significant capacity issues.

After considerable investigation and careful consideration by the local authority, the Official Solicitor and experts variously instructed by them, it is now common ground: first, that GG and RG each lack the capacity to make a range of decisions as to where they reside, their care packages, their contact with others, and certain other matters; and, second, that it is in their respective best interest that there be a range of declarations and other orders in terms which have been carefully drafted, and with one exception, are agreed.

 

The ‘one exception’ is of course, the majority of the litigation. In 2009, RG’s family arranged a marriage for him, to a woman named SK, and that marriage took place in India.

SK then came to the UK. It was her evidence, accepted by the Court, that it was only subsequent to the wedding ceremony that  she learned that RG had profound difficulties. Nonetheless, the marriage was consummated.

Mrs SK bears no personal responsibility at all for the events which happened. There is no question whatsoever of her having personally exploited the mental disability of RG. She was an obedient daughter, in a Sikh family, who compliantly participated in the arrangements that her family made for her marriage. Having married him, she now feels committed to him, and, indeed, says that she does now love him. She says that it would be impossible in her culture and religion for her ever to marry anyone else, and that if she were divorced, or her marriage was annulled, she would be ostracised in her community.

  1. The issues that now remain in relation to RG relate to the status and continuation of that marriage. It is accepted by Mrs SK that she cannot provide to RG the support and daily care and assistance that he needs, and always will need, and she no longer resists that he remains living in the accommodation provided and staffed by the local authority. She implores me, however, not to facilitate or permit steps to be taken to annul their marriage.
  1. At the outset of the hearing Mrs SK was also still asking to be permitted to have some sexual relationship with her husband, the more so as it would be culturally impossible, now, for her to do so with any other man. The evidence of Dr Xenitidis was, however, crystal clear that RG has no understanding at all what sex is, and, accordingly, that he lacks any capacity to choose whether to agree to sexual touching. As Xenitidis put it: “He does not even understand what sex is. Whether it is voluntary, or not, is a kind of luxury for him.”

That would place SK in difficulties with the criminal law, and specifically section 30 of the Sexual Offences Act 2003, in that making love with her husband could potentially land her in prison, the maximum sentence being life.

Section 27(1)(b) of the Mental Capacity Act 2005 expressly provides that nothing in that Act permits a decision to be made on behalf of a person consenting to have sexual relations. Accordingly, if, as is clear, RG himself lacks any capacity to consent to sexual relations, the court cannot provide any consent on his behalf, even if (I stress if) that might enable him to gain some physical pleasure from some sexual activity.

 For these reasons the order will include a declaration that RG lacks capacity to consent to sexual relations. It will be the duty of the local authority, as his carers, to take all reasonable steps to prevent him from being the victim of a criminal act, and the regular contact between Mrs SK and RG will have to be supervised to the extent necessary to ensure that there is no sexual touching between them. Mrs SK now accepts a condition of contact that she does not communicate to RG that she would like to have sexual relations with him, or go to the bedroom with him.

Turning to the marriage, the Court unsurprisingly found in the light of the expert evidence on RG’s capacity that he had no understanding whatsoever of what a marriage was, that he had not had capacity to enter into the marriage contract.

The argument then, and it becomes an interesting one, is what should happen with the marriage. Underlining mine

  1. There remains, therefore, the question of whether I should declare that it is in the best interests of RG that the Official Solicitor should present a petition for a decree of nullity on his behalf, there being no doubt that RG personally lacks any capacity to make a decision whether to do so.
  1. The Court of Protection cannot itself annul a marriage. So in relation to a petition for nullity all I can do in the present proceedings is authorise, and, if necessary and appropriate, direct that the Official Solicitor presents and pursues one. For that purpose, the actual decision where RG was domiciled on the date of the marriage, would fall to be made, not by me in these proceedings, but by the matrimonial court, once seised with a petition for nullity.

It might well have been an interesting position for the Official Solicitor (who were, on RG’s behalf opposed to petitioning for nullity) if the Court had declared that it was in RG’s best interests for them to do so. Clearly they would have to have either done so, or appealed the declaration.  

The LA were very keen for the marriage to be ended, chiefly as a matter of public policy

I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled

 

 

  1. In the forefront of Miss Pratley’s submissions is policy. The position of the local authority is encapsulated in paragraphs 7 and 8 of her cogent, written, outline submissions dated 28 June 2013, where she wrote:

“7: It is plainly a relevant circumstance that RG lacked the capacity to enter into the marriage, and continues to lack that capacity. Indeed, his lack of capacity is a fact of such importance that it would be difficult to argue it is not the starting point (or, if not the starting point, a circumstance of very significant weight) in determining best interests. It is submitted on behalf of the local authority that it is an overarching and compelling consideration in the best interests analysis. Whilst it is not asserted that it could never be in a person’s best interests for the court to decide not to take steps to end their marriage in these circumstances, only in exceptional cases will such a conclusion be sustainable.

8: This is because the court would otherwise make a decision, the effect of which would be that RG remain married in circumstances where he lacked capacity to marry, on the basis of circumstances, such as RG’s wishes and feelings and the impact on RG if his marriage was brought to an end, with little or no weight given to the fact of his incapacity on the basis that he is already married. It is impossible to reconcile this with the fact that a court could never take such considerations into account in allowing RG to marry in the first place. This would undermine the legal foundation of the institution of marriage in England and Wales, where consent is a fundamental element of a legally unassailable and enduring marriage contract.”

 

 

SK pleaded vehemently that the marriage should not be annulled, that as a consequence of her religion and culture it would cause her shame and might cause her to be ostracised.

The Official Solicitor took the view that RG would not want to cause SK any harm or distress, and when the issue that SK might have to permanently leave the UK (as she would if the marriage were annulled) he reacted very badly against this, and thus it was in his best interests not to annul the marriage, notwithstanding that he had not had the capacity to enter into it.

  1. The present wishes and feelings of RG himself, so far as they can be ascertained, are quite clear. Although he has such little understanding of marriage that he lacked capacity to marry, he, nevertheless, frequently uses the words “wife”, and “marriage”, or “marry”, in relation to Mrs SK. She visits him regularly, several times a week. Although the visits are quite short, he reacts to them with pleasure and appears to gain pleasure from the visits and from the relationship.
  1. RG reacts badly to references to divorce. Mr Dipak Mohan, his key social worker, said that if RG is told that his marriage is at an end, he is likely to take it extremely badly. When his brother told him that Mrs SK might be deported, he reacted extremely badly and aggressively

The Judge determined that the Official Solicitor was correct

  1.  Unquestionably, RG cannot gain the support, pleasures and benefits of a marriage, as normally understood. He cannot gain many other of the pleasures of life that are available to persons of normal capacity. But still he gains some pleasure and some benefits from this marriage and relationship.

 

  1. Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled. For these reasons I will exclude from the otherwise agreed order in relation to RG those parts which provide for the Official Solicitor now to present a petition for the marriage to be annulled.

There was obviously a tension in this case between public policy (the compelling argument that marriages arranged by families overseas with the knowledge that the bride or groom lacked any capacity to enter into it should not result in the families benefiting from the marriage enduring)  and the individuals in the case, with there being good evidence that RG would have been caused distress by the annulment – since SK would have had to leave the country and little evidence of positive benefit to him. The Judge found in favour of the individual rather than public policy.

Whilst the Judge was at pains to point out at the outset that the case turned on its facts and that he was not seeking to establish any general principles, it is not difficult to see that those acting in such cases in the future would point to the issues in this case as being broadly supportive of the marriage not being annulled on the basis of public policy alone, and that there would have to be benefits to the individual concerned.

Can a person choose whether to be represented by the Official Solicitor?

A consideration of the ECHR decision in R.P and Others v The United Kingdom 2012 

You may remember this case from 2008 in the Court of Appeal  – it was an appeal brought on behalf of a woman who had been judged to lack litigation capacity, and who had been represented through the Official Solicitor in care proceedings. The Official Solicitor had eventually not contested the care order at final hearing, and the woman then contacted John Hemming MP, and an appeal was brought on the basis that :-

(a)   The assessment of her litigation capacity was wrong

(b)   The assessment of her litigation capacity was fundamentally flawed as it had been obtained by an expert report funded by all parties, and thus the expert had a financial interest in reaching a particular conclusion (i.e because the LA were paying some of the experts fees, the expert had a financial conflict of interest and delivered a verdict they wanted)

(c)   That the entire principle of a person being unable to fight a Care Order when they wished to do so, purely because they lacked capacity was unfair and discriminatory against the most vulnerable persons in society.

The Court of Appeal dismissed the appeal, and it is a judgment worth reading. I know that Mr Hemming disagrees with the conclusions, as he is entitled to, and I put that caveat in so that people know that there is a different perspective to that in the judgment.  [That judgment is at  http://www.bailii.org/ew/cases/EWCA/Civ/2008/462.html]

The case finally reached the ECHR and their judgment can be found at :-

http://www.bailii.org/eu/cases/ECHR/2012/1796.html

The Claimant was unsuccessful on all counts, but I still think that the case raises some important issues. It does feel uncomfortable that every parent, no matter the quality of their case has the right to be legally represented and challenge the recommendations of the State and to test that evidence UNLESS they lack litigation capacity and the Official Solicitor takes a view that the case should not be contested. 

It does seem to me that a person can lack litigation capacity to know what a care order is, or what a threshold criteria document is, or even to be taken through individual allegations and be able to respond to them, but I think fundamentally it is not difficult to judge whether the view of a parent in a care case is  “I want my child back” or “I don’t want my child to be adopted” and I think that case ought to be put.

What RP didn’t really get massively into was the ability of the Official Solicitor to effectively throw the towel in on behalf of a parent who lacks capacity to instruct a solicitor but still has firm views on that central question of ‘I want my child back’.  If the O/S always approached cases on the basis of ‘if the parent is saying they want the child back, that case must be put, but it will be for the O/S to instruct the solicitor on HOW to put the case’   I would be quite happy. Like John Hemming MP, I do feel uncomfortable when the O/S throws the towel in – even where the evidence is overwhelming. 

[After all, there were probably stages of Alas Al Wray where the evidence looked overwhelming…]

 

 

The ECHR accepted the view of the UK that where a person lacks litigation capacity, the Official Solicitor can be appointed and conduct the litigation and that the O/S has to do what they consider is in the child’s best interests.

 [Now, in my humble and trivial opinion,  sometimes what the parents consider to be the child’s best interest and what the child’s best interest is completely overlaps, sometimes they are diametrically opposed and more often than either, sometimes it takes a Court hearing and a determination of the evidence to see whether those two views overlap or are incompatible – that’s why we have Court hearings]

 

And of course, the need to conduct the ligitation with the child’s best interests at the forefront, rather than the parents wishes, is not a stipulation that applies to those receiving instructions directly from parents.   [With some caveats – a solicitor isn’t allowed to lie to a Court on your instructions,  or conceal child abuse,  but if a parent says ‘I want you to fight the case’ a solicitor isn’t obliged to decide whether fighting the case is good for the child, they let the Judge make that ultimate decision]

 

I think the submissions of the Equality and Human Rights Commission are interesting and worth reading.

  1. 58.                        3.  The submissions of the Third Party intervener

 

  1.   The Equality and Human Rights Commission (“the Commission”) submitted that learning-disabled parents in the United Kingdom were more likely to have their children removed from their care than other parents and frequently did not receive the support which they needed in order to retain custody of their children. Consequently, decisions about the removal of children from learning-disabled parents required very close scrutiny of the support offered to the parents.

 

  1.   The Commission further submitted that Articles 6, 8 or 14 could be breached if limitations were placed on a learning-disabled litigant’s right of access to a court which were not strictly necessary, or if a litigation friend did not take sufficient positive steps to ensure that the specific needs and interests of such a parent were properly taken into account. In particular, it was important that strong procedural safeguards existed to ensure that the parent’s views were properly, fully and fairly advanced before the court. In order for this to be the case, it was essential that decisions about the parent’s litigation capacity should not be taken on the basis of a joint report part-funded by an opposing party in family litigation; that the question of capacity be kept open, with a formal institutional/legal mechanism for it to be challenged by the learning-disabled person and reviewed if any evidence suggested it could be wrong or that the position had changed; and that the case put forward by the Official Solicitor or other litigation friend should be focused solely on the needs of the parent.

The ECHR were satisfied that the UK system has sufficient safeguards for establishing whether a person has litigation capacity and whether they are entitled to challenge such assessment, for the Official Solicitor role to operate properly and for this to be explained to the person, that the system did not discriminate against those with a disability, and that the system of jointly funding experts did not lead to a conflict of interest.

 

[Frankly, as a Local Authority lawyer who knows the financial budgetary problems, I’d have been delighted if the ECHR had decided that the LA could no longer share in the costs of instructing an expert]

Here is the reasoning on this element

  In cases involving those with disabilities the Court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned (see, for example, Shtukaturov v. Russia, no. 44009/05, § 68, 27 March 2008). This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the Court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Article 6 § 1 of the Convention. In assessing whether or not a particular measure was necessary, the Court will take into account all relevant factors, including the nature and complexity of the issue before the domestic courts and what was at stake for the applicant (see, for example, Shtukaturov v. Russia, cited above, § 68).

  It is clear that in the present case the proceedings were of the utmost importance to R.P., who stood to lose both custody of and access to her only child. Moreover, while the issue at stake was relatively straightforward – whether or not R.P. had the skills necessary to enable her successfully to parent K.P. – the evidence which would have to be considered before the issue could be addressed was not. In particular, the Court notes the significant quantity of expert reports, including expert medical and psychiatric reports, parenting assessment reports, and reports from contact sessions and observes the obvious difficulty an applicant with a learning disability would have in understanding both the content of these reports and the implications of the experts’ findings.

 

  In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the Court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that R.P.’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect R.P.’s interests might in itself have amounted to a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, T. v. the United Kingdom [GC], no. 24724/94, §§ 79 – 89, 16 December 1999).

 

  It falls to the Court to consider whether the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. In making this assessment, the Court will bear in mind the margin of appreciation afforded to Contracting States in making the necessary procedural arrangements to protect persons who lack litigation capacity (Shtukaturov v. Russia, cited above, § 68).

  With regard to the appointment of the Official Solicitor, the Court observes that he was only invited to act following the commissioning of an expert report by a consultant clinical psychologist. In assessing R.P., the psychologist applied the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70, namely whether R.P. was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which her consent or decision was likely to be necessary in the course of the proceedings. She concluded that R.P. would find it very difficult to understand the advice given by her solicitor and would not be able to make informed decisions on the basis of that advice, particularly when it involved anticipating possible outcomes. The psychologist produced two more reports in the course of the proceedings, the second of which contained a further assessment of R.P.’s litigation capacity. In that report she noted that R.P. did not have the capacity to give informed consent to a placement order as she could not really understand the proceedings, except at a very basic level. The Court is satisfied that the decision to appoint the Official Solicitor was not taken lightly. Rather, it was taken only after R.P. had been thoroughly assessed by a consultant clinical psychologist and, while there was no formal review procedure, in practice further assessments were made of R.P.’s litigation capacity in the course of the proceedings.

  The Court considers that in order to safeguard R.P.’s rights under Article 6 § 1 of the Convention, it was imperative that a means existed whereby it was possible for her to challenge the Official Solicitor’s appointment or the continuing need for his services. In this regard, the Court observes that the letter and leaflet which the Official Solicitor sent to R.P. informed her that if she was unhappy with the way her case was being conducted, she could speak to either S.C. or to the Official Solicitor, or she could contact a Complaint’s Officer. Moreover, in his statement to the Court of Appeal the Official Solicitor indicated that R.P. could have applied to the court at any time to have him discharged. Alternatively, he indicated that if it had come to his attention that R.P. was asserting capacity, then he would have invited her to undergo further assessment. While the Court observes that these procedures fall short of a formal right of appeal, in view of the finding that R.P. lacked litigation capacity, it considers that they would have afforded her an appropriate and effective means by which to challenge the appointment or the continued need for the appointment of the Official Solicitor.

  The Court does not consider that it would have been appropriate for the domestic courts to have carried out periodic reviews of R.P.’s litigation capacity, as such reviews would have caused unnecessary delay and would therefore have been prejudicial to the welfare of K.P. In any event, as noted above (see paragraph 69), assessments were in fact carried out of R.P.’s litigation capacity in the course of the proceedings. The Court would also reject R.P.’s assertion that she should have been encouraged to seek separate legal advice at this juncture. In view of the fact that she had been found to lack the capacity to instruct a solicitor the Court does not consider that this would have been a necessary or even an effective means by which to protect her interests.

  As stated in paragraph 61 above, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective and this is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (Airey v. Ireland, cited above, § 24). Consequently, any means of challenging the appointment of the Official Solicitor, however effective in theory, will only be effective in practice and thus satisfy the requirements of Article 6 § 1 of the Convention if the fact of his appointment, the implications of his appointment, the existence of a means of challenging his appointment and the procedure for exercising it are clearly explained to the protected person in language appropriate to his or her level of understanding.

 

  In this regard, the Court recalls that the letter sent to R.P. indicated that the Official Solicitor would act as her guardian ad litem and would instruct her solicitor for her. It further indicated that S.C. would tell the Official Solicitor how R.P. felt about things and that he would consider her wishes and views before he filed a statement on her behalf. He would do his best to protect her interests but also had to bear in mind what was best for K.P. The leaflet accompanying the letter informed R.P. that the Official Solicitor made decisions about court cases, such as whether to bring, defend or settle a claim. Under the heading “Will the client be consulted” R.P. was informed that “the instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager”. If she was dissatisfied with the way her case was being conducted, she was informed that she should discuss the matter either with S.C. or the Official Solicitor’s Office. If she remained dissatisfied she could write to the Complaint’s Officer. While the Court accepts that R.P. might not have fully understood, on the basis of this information alone, that the Official Solicitor could consent to the making of a placement order regardless of her own personal wishes, it cannot ignore the fact that she was at all times represented by S.C. and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the implications of his appointment.  Indeed, in this regard the Court recalls that S.C.’s conduct of the case was commended by the Court of Appeal which found, in its judgment of 8 May 2008, that R.P. had been fully informed of the involvement of the Official Solicitor and the nature of his role. Nevertheless, she did not seek to complain until ten months after his appointment and two days before the final hearing.

74.                         Consequently, the Court considers that adequate safeguards were in place to ensure that the nature of the proceedings was fully explained to the applicant and, had she sought to challenge the appointment of the Official Solicitor, procedures were in place to enable her to do so (cf. Stanev v. Bulgaria, [GC], no. 36760/06, 17 January 2012, where no direct access to court was open to the applicant to have his status as a partially incapacitated person reviewed by a court).

 

  1. 75.                          With regard to the role of the Official Solicitor in the legal proceedings, the Court recalls that he was to act “for the benefit of the protected party”. The Court has taken note of R.P.’s concerns about his focus in the present case on “what was best for K.P.”. However, the Court accepts that the best interests of K.P. were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests. Consequently, the Court does not consider that the fact the Official Solicitor “bore in mind” what was best for K.P. in deciding how to act amounted to a violation of R.P.’s rights under Article 6 § 1 of the Convention.

 

  1. 76.                          Moreover, the Court does not consider that “acting in R.P.’s best interests” required the Official Solicitor to advance any argument R.P. wished. On the contrary, it would not have been in R.P.’s – or in any party’s – best interests for the Official Solicitor to have delayed proceedings by advancing an unarguable case. Nevertheless, in view of what was at stake for R.P., the Court considers that in order to safeguard her rights under Article 6 § 1 of the Convention, it was imperative that her views regarding K.P.’s future be made known to the domestic court. It is clear that this did, in fact, occur as R.P.’s views were referenced both by the Official Solicitor in his statement to the court and by R.P.’s counsel at the hearing itself.

 

  1. 77.                          Moreover, the Court recalls that R.P. was able to appeal to the Court of Appeal. Although she was not legally represented in the appeal proceedings, this was through choice as she refused the assistance of pro bono counsel which the Official Solicitor had secured for her. Nevertheless, the Court notes that in the course of the appeal proceedings she was afforded ample opportunity to put her views before the court, and her arguments were fully addressed in the court’s judgment.

[If you have read the Court of Appeal decision, you will be aware that whether this letter was sent was a matter of great factual dispute, with it being alleged that it had been falsely inserted into the file by the solicitor as a ‘back covering exercise’ after the event  but never actually sent. The Court of Appeal rejected that allegation fairly forcefully, but one can see the critical importance of proper documentation prepared in a way that the client can comprehend being provided in a timely fashion]

 

All of this seems to go away, of course, now that the Practice Direction suggesting that the Official Solicitor may cheerfully refuse to act on behalf of someone lacking litigation capacity and that the solicitor should take instructions from the client’s friends, family, neighbour,  friendly milkman,  local newsagent et al instead.

 

I am adding in the comment made by @thesmallplaces on the UK Human Rights blog post about this, because I think it raises some really important points and in an excellent way – so none of these are my words that follow, but I do agree with an awful lot of it, particularly the fine final paragraph.

I think it’s a real shame that this case has become overshadowed by the antics of John Hemming MP. Although it raised very serious Article 6 issues, every time these issues are raised they get swept aside by a discussion of Hemming’s behaviour. Valid as many of those criticisms are, this misses the point entirely. I’m really pleased to see that serious lawyers like Rosalind English and Richard Stein are talking about these issues.

My feeling is that the ECtHR gave a very superficial analysis of the situation. Prior to RP bringing the case in the Court of Appeal, it wasn’t even clear that a person who had been found to lack capacity to litigate had standing to (see paragraph 36 where Sir Nicholas Wall ‘says no more about it’ as neither the OS nor the LA raised a challenge on these grounds). I suppose the ECtHR ruling has at least made clear that people in RP’s position must have standing to apply to the court to displace their litigation friend. But there are several problems here. How is a person who may have borderline capacity, who is unlikely in the extreme to be familiar with CPR 21 or Court of Protection Rule 147, supposed to do so without being able to instruct a solicitor? These are precisely the circumstances which drive people into the arms of McKenzie friends like Hemming in the first place. Secondly, if they do wish to challenge the appointment of a litigation friend in court – is there public funding for them to do so? How are they supposed to secure and fund any expert reports they might need?

The ECtHR placed great store by the OS’s complaints mechanism. There is very little evidence that the complaints mechanism has ever been used in this way. Certainly none of the OS’s annual reports for the last four years suggests that he has withdrawn from a case on the basis of a complaint. The ECtHR also said that RP should have raised her challenge to his appointment earlier. There is very little discussion as to precisely what RP was told about the OS’s appointment at the outset. The role of a litigation friend seems baffling to most people outside the legal world. To be told that somebody has been appointed who will act in your best interests is very different to being told that somebody has been appointed who might argue a case which conflicts entirely with what you want. Surely that latter point is what must be pressed home to a person in order for them to fully understand the significance of being found to lack litigation capacity. Yet neither the CoA nor the ECtHR report that this is what RP was told.

One of the core principles of the MCA is that people should be offered support to promote their capacity in the relevant respect. If you look at the correspondence between RP and her solicitor quote in the CoA ruling, it’s very hard to see how this is geared towards supporting a young mother with learning disabilities who is extremely distressed. For somebody in RP’s position, the first stage should be to provide support for her to understand and make the requisite decisions herself. For people with learning disabilities, it may require skills which mainstream solicitors don’t have – yet there is very little provision of advocacy services or similar which could help people with litigation matters.

There is a wider question about whether it is even appropriate for a person’s ‘objective’ – as opposed to ‘subjective’ – best interests to be represented in court. There are cases where there is a danger that a person might run up excessive costs or settle for trifling amounts without the intervention of litigation friends – they often have a very valuable role in such cases. Likewise in cases where a person’s wishes and preferences cannot be discerned. But in cases like this, or cases in the Court of Protection, where the courts are already bound to give effect to the best interests of the child or the person themselves, what is the danger in pressing as hard as possible for what the person actually wants? To do otherwise distorts the case that is presented before the court so that a person’s rights to self-determination are never fully adversarially tested. What is tested instead, is other people’s views of what they should want.”

Practice directions make perfect?

 

Gosh, this is an insanely bloggy week.  Some consultation documents for new family law practice directions have flitted across my inbox today. I read them, so you don’t have to…

 

There are three big ones

 

One on experts pre-proceedings, which is obviously going to become more and more pertinent as the Government move the goalposts to artificially reduce the timescales for Court proceedings , sorry ‘shift the assessment process to pre-proceedings’.   It seems to me eminently sensible – there should be a proper LOI, documents shown to the expert should be particularised, and the expert should be told that they are to treat themselves and the assessment in exactly the same way as if it were being done within proceedings. 

 

 

One on the Official Solicitor, which is jawdropping.

 

1.1             The court will investigate as soon as possible any issue as to whether an adult party or intended party to family proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings. An adult who lacks capacity to act as a party to the proceedings is a protected party and must have a litigation friend to conduct the proceedings on their behalf. The expectation of the Official Solicitor is that the Official Solicitor will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act.

1.2    Any issue as to the capacity of an adult to conduct the proceedings must be determined before the court gives any directions relevant to that adult’s role in the proceedings.

 

We all know that this has been the direction of travel for the Official Solicitor for some time – they simply can’t cope with the volume of cases that have come their way. But this is a recognition in a Practice Direction that for most cases, a person lacking capacity will have to instruct solicitors through a friend or member of their family.

 

No prospect for difficulties there.  There’s never anything massively sensitive within care proceedings about an adult that might not be appropriate to share with their family member. There’s never any conflict between family members and any shifting allegiances or falling out. And there’s never any conflict of interest between say a mother who wants to fight for her child, and the grandmother who is now instructing the mother’s representatives but who actually wants the child to live with her (grandmother) rather than the mother.

 

I can see that in some quarters, John Hemming MP for one, it might be thought desirable to take the Official Solicitor out of the picture, and have the family help the parent to give instructions to a solicitor, rather than have some remote figure of the State make those decisions.  I have some sympathy with that, and think that it is a perfectly legitimate subject for debate and if it is after scrutiny found to be BETTER to have the family do it than the State, then make the change.

 

 But what’s happening here is a dramatic shift in public policy from “where a person is incapable of instructing a solicitor, someone independent should represent their best interests” to  “anyone suitable in the family can instruct a solicitor on the parents behalf”,   not as a result of debate, or research, or analysis, but because the current workload is too much.

 

Just as we massively scaled down the role of Guardians because CAFCASS was overstretched  (and look what that did – ushered in an era of getting three or four experts on every case, delaying and obfuscating and costing the country), we’re making the same error here.  Instead of properly resourcing the Official Solicitor, we’re just abandoning the principle.

 

 

I am mystified as to what a parent’s representative is supposed to do, faced with a capacity certificate saying the parent can’t give instructions, and two competing people who want to be the litigation friend.  The solicitor can’t chose, the client can’t chose. How do you resolve that?  What if the papers you’ve seen show that the person being put forward as the litigation friend failed to protect the client as a child and is largely responsible for the mess the client now finds themselves in as an adult?

 

 

 

The third one is on the instruction of experts within proceedings. Everyone follows the current practice direction on experts slavishly, as we know, so a fresh one is bound to fix any problems.

 

Here’s the gist of it – try to go for single jointly agreed experts rather than going off to get one each, as if we were in 1980s civil litigation.

 

 Well, we already do. Ah, but now they have an acronym  SJE  (Single Joint Expert) so that is going to make all the difference.

 

The Practice Direction does clarify that telling a prospective expert something at all about the case so that they can (a) tell you whether it is the sort of thing they can do (b) when they can do it by and (c) how much they would like to be paid for it, knowing full well that the estimate they give is subject to the whim of the LSC, is definitely not a contempt of Court.

 

[That is of course, helpful – but given that the Practice Direction is not in force yet, raises the unfortunate spectre that if it is necessary to have a change in law to make sure that doing that WON’T be a contempt of court in the future, that it sort of is now?]

 

And then what will be necessary in the application for an expert – underlining is mine.

 

an application or the court’s permission to call an expert or put in evidence an expert’s report, for an expert to be instructed or for the child to be medically or psychiatrically examined or otherwise assessed for the purpose of obtaining expert evidence for use in the proceedings must state-—

(a)    the discipline, qualifications and expertise of the expert (by way of C.V. where possible);

(b)    the expert’s availability to undertake the work;

(c)     the timetable for the report;

(d)    the responsibility for instruction;

(e)    whether the expert evidence can properly be obtained by only one party (for example, on behalf of the child);

(f)      why the expert evidence proposed cannot properlybe given by an officer of the service, Welsh family proceedings officer  or the local authority (social services undertaking a core assessment) in accordance with their respective statutory duties or any other party to the proceedings or an expert already instructed in the proceedings;

(g)    the likely cost of the report on an hourly or other charging basis;

(h)    the proposed apportionment (at least in the first instance) of any jointly instructed expert’s fee; when it is to be paid;  and, if applicable, whether public funding has been approved.

 

 

And then what is to go into the order – note that it is going to be necessary to append the questions so that the Court can determine that they are kept to a manageable number and are clear and focussed.  That’s good news for solicitors, since it means an end to the interminable tedium of back and forth emailing about questions and the questions being settled by counsel at Court.

 

I think that this is a GOOD thing.  It will mean that CMC’s will take substantially more court time than previously, as the questions will have to be drafted before an order can be lodged.

 

The terms of the draft order to be attached to the application for the court’s permission

3.8    FPR 25.7 provides that a draft of the order giving the court’s permission mentioned in FPR 25.4 is to be attached to the application for the court’s permission. That draft order must set out the following matters—

a)      the issues in the proceedings to which the expert evidence is to relate and which the court is to identify;

b)      the questions relating to the issues in the case which the expert is to answer and which the court is to approve ensuring that they

(i) are within the ambit of the expert’s area of expertise;

(ii) do not contain unnecessary or irrelevant detail;

(iii) are kept to a manageable number and are clear, focused and direct;

c)      the party who is responsible for drafting the letter of instruction and providing the documents to the expert;

d)      the timetable within which the report is to be prepared, filed and served;

e)      the disclosure of the report to the parties and to any other expert;

f)       the organisation of, preparation for and conduct of any experts’ discussion (see Practice Direction 25E – Discussions between Experts in Family Proceedings);

g)      the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion;

h)      making available to the court at an early opportunity the expert reports in electronic form;

i)        the attendance of the expert at court to give oral evidence (alternatively, the expert giving his or her evidence in writing or remotely by video link), whether at or for the Final Hearing or another hearing; unless agreement about the opinions given by the expert is reached at or before the Issues Resolution Hearing (“IRH”) or, if no IRH is to be held, by a date specified by the court prior to the hearing at which the expert is to give oral evidence.

 

 

 

I think the two on experts are fine, and the one on the representation of vulnerable adults who lack capacity is awful.

 

It looks as though the plan is for these Practice Directions to come in some time before the end of this year. Sadly, the consultation process is over before I ever saw the documents, such is life. I doubt my snarky mutterings would have made any difference anyway.

 

And in the words of Meat Loaf – two out of three ain’t bad.

“That’s all we do, isn’t it? Look at things and try new rules?”

-         Ernest Hemingway (nearly) 

A consideration of the private members bill about Family Justice

 

 

I came across John Hemming MP’s draft family justice bill, which will be put forward as a result of him winning the ballot to put forward a Private Members Bill, and felt it was appropriate to write about it.

 

Not because it will necessarily become law  (very, very few Private Members Bills make it to Acts, because they don’t have the force of the parties and whips behind them)

 

Nor because I want to coruscate or ridicule it.

 

But because, at a time when Family Justice Review is dominating the thoughts and actions of professionals, it seemed to me appropriate to look at how one of the staunchest critics of the current system would want to change it. 

 

Just because someone has different and firm views with which I disagree  (in a nutshell, I think miscarriages of justice in family law are tragic but rare, and John Hemming thinks they are relatively commonplace – we’re entitled to have different views on that) , doesn’t mean that their ideas and suggestions are without merit, and I particularly wanted to see how John Hemming would want family law to change.  It seemed to me that his views would be a damn good place to start in working out what changes could be achievable, if one started with a blank sheet of paper.

 

I don’t agree with John Hemming on everything, but I applaud him without doubt for his sincere desire to make family justice better for those who are dragged into using it, and it is substantially easier to knock something down than construct it, so he earns my respect for putting together some proposals.

 

 

If you don’t listen to people who have had the roughest end of family justice, how can you genuinely reform it? I don’t say that you should slavishly follow their views, but the real voiceless in the Norgrove consideration of family law were the parents.

 

I doubt that many people, with the deluge of material we have to read, will have read the draft bill, but I found it genuinely interesting.

 

[Quick sidebar, the title quote above is actually “That’s all we do, isn’t it? Look at things and try new drinks”  and one that crops up regularly in a book I’ve just been reading called Boozehound, which is about cocktails and is fantastic. I particularly like the author for his insistence that vermouth is a crucial part of a martini, and all this macho “very dry, like open a bottle of vermouth in the next room” nonsense is actually just arising from people like Churchill and Hemingway who were functioning alcoholics and just drinking a very very cold glass of gin.  If you want to try the book, http://www.amazon.co.uk/Boozehound-Trail-Obscure-Overrated-Spirits/dp/1580082882/ref=sr_1_1?ie=UTF8&qid=1344446493&sr=8-1

 

 

Anyway, you can find the draft bill here:-

 

http://www.john.hemming.name/pmb/family_justice_bill_draft_bill.pdf

 

 

There were lots of things I really liked in this.  As a lawyer, there were lots of drafting issues I’d tighten up, and it is clearly a work in progress but the proposals contain good ideas. Drafting is the easy bit, coming up with ideas is the difficult part.

 

 (I would baulk at the idea that any party to court proceedings can bring up to 5 people in to court to support them, but think formally allowing people to be able to bring in some support is not a bad idea  – the Court would need to be able to control behaviour so that it did not descend into Jeremy Kyle territory, but wouldn’t it be better to have a default position that people can bring in a friend or relative to support them, and only exclude them if they misbehave, rather than assuming that they are inevitably going to be trouble-causers?)

 

 

1.  The proposals about grandparents  –  clause 2   

 

(3) Grandparents or siblings of parents, who are not parties to a case, shall

(a) be able to participate in that part of any proceedings which involves considering whether or not childrenshould be placed with them; and such people who have had care of children should not face detailedassessment unless their children have been subject to a child protection plan or care proceedings; and

(b) in the case of grandparents be permitted to participate in proceedings if they have had long term involvement with their grandchildren and have information which will be helpful to the outcome of the case.

(4) Grandparents shall be permitted to have reasonable direct and indirect contact with their grandchildren without this contact being supervised unless it is not in the interest of the welfare of the child

 

[I suspect that as a local authority lawyer, I ought to be against the idea of not assessing grandparents in detail, but I actually think that’s a proposal that’s worthy of consideration. If the grandparents don’t have visible or historical problems, shouldn’t we start assuming that they’re decent people? Why not speed up and slim down assessments by working on the premise that grandparents are prima facie a good thing, unless there’s evidence to the contrary?]

 

2. The addition of a principle that children in care should be placed near their family if possible – clause 2(5)

 

(5) Children not placed with their family should be placed as close as is practicable to their home authority.

 

[Though I would add, unless this would place them or the security of their placement at risk, I think it is an important and worthwhile thing to be included in any new Act]

 

3. The consideration of the conflict that necessarily exists between the Local Authority being responsible for providing for a child in care and at the same time investigating allegations of abuse that occur whilst in care.  The Bill suggests that Parliament should set up an independent body to investigate complaints of abuse to children in care. I think there’s no money for that, but it doesn’t make it a bad idea.

 

4. Establishing that being, or having been in care during your childhood should be a category covered by the Equality Act. 

 

 

5. Proposed amendment to the Adoption and Children Act

 

 4. Amendment of the Children and Adoption Act 2002

After section 52(1) of the 2002 Act there shall be inserted

“(1A) Where a judge is of the opinion that parental consent may be dispensed with pursuant to subsection (1) (b) he must

(a) in his judgement explain how he has considered the requirement of section 1 (4) of this Act; and

(b) then only make an order placing a child in the care of a local authority after considering whether it is possible and in the interest of the welfare of the child to place the child with one of his relatives.”

 

I think every judge I’ve ever been before already does that, but I can’t see that it hurts to have it as a statutory requirement. If there’s doubt that it is being done, then make it mandatory.

 

 

6. A statutory duty for the LA to act so that the child’s welfare is paramount

 

6. Children and Parents: Duties of local authorities and other bodies

(1) When a local authority or other body carries out any functions or makes any decisions in connection with the upbringing of a child, the child’s welfare shall be the paramount consideration.

(2) In respect of subsection (1), the local authority or other body must act on the presumption that the child’s welfare is best served through having access to and contact with both parents and grandparents sufficient to enable him to have a meaningful relationship with both parents and grandparents unless in the opinion of the court such contact is not in the interests of the welfare of the child and that information about the child should be provided to both parents.

 

 

Again, I think that most Local Authorities do this as a matter of good practice, but I would have no problem with this being enacted.

 

 

7. Greater scrutiny for the office of the Official Solicitor

 

 

 

Where I start diverting is :-

 

 

The right of all parties to proceedings to record them  (I see the purpose of it, but think it would be misused massively.)

 

The right of a person who has been deemed to lack litigation capacity to appeal this and to appoint a person of their choice to assist them  (again, I see where the idea of this is going, but the difficulty is that if you are establishing that someone doesn’t have capacity, they don’t then have capacity to make such a decision).  

 

This was the very issue that got John Hemming into hot water with Mr Justice Wall in  RP v (1) NOTTINGHAM CITY COUNCIL (2) OFFICIAL SOLICITOR (2008) [2008] EWCA Civ 462   (though he was clearly making an important point in that case about a person who was denied the opportunity to fight her case because she was vulnerable)

 

I do see where John Hemming is coming from with this – it doesn’t sit comfortably with me when a parent who lacks capacity is saying that they want their children back, but aren’t able to run that case because the Official Solicitor takes the view that they aren’t able to.  That requires a bigger consideration of litigation capacity, however. I would not be against a policy whereby the day to day conduct of litigation is run by the O/S, but the parent is able to communicate to the Court through their solicitor or counsel what their wishes are on the big issues of placement and contact.

 The bill’s proposal for a tweaked test on capacity seems, to me, not unreasonable. People should be allowed to make bad, foolish or downright stupid decisions, providing they are not causing themselves harm in doing so. If the decisions fall within a range of reasonable possible decisions  (i.e it is reasonable to eat salad, or chips, or rice, but not to eat glass) then it seems to me appropriate that a person be allowed to make such decision, even if they would, or could have made a better one

 

13. Ambit of Reasonableness in Capacity

Any person who, in the assessment of their capacity to make a decision, proposes to make a decision that is within the ambit of possible reasonable choices shall be deemed to have capacity for the purposes of that decision notwithstanding that they would otherwise be found incapacitous, unless it would on balance of probabilities cause them serious harm, whether immediately or in the future.

 

 

I have to say, I was surprised, although I strove hard to have an open mind when reading the draft bill, how much of it I found sensible or unexceptional. I thought it would go further, and I almost wish that it had.  If this is all that it takes to placate one of the staunchest critics of the family justice system, I would be prepared (were I an MP, to vote for very much of it, and object to relatively little)

 

I actually wish John Hemming luck with it.

 

It probably would produce a fairer family justice system than the as yet unpublished bill that I suspect is heading our way, which will make a mockery of the sentiment that “Finality is a good thing, but justice is a better one”

Follow

Get every new post delivered to your Inbox.

Join 2,620 other followers