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The Adoption statistics

The Government have published their statistics (there’s a time delay, so these are the stats up to Autumn 2014)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436613/ALB_Business_Intelligence_Quarter_3_2014_to_2015.pdf

 

I suspect that the headline one  (which prompted all of those press releases in late April) is going to be this:-

 

 

Quarterly data suggests that the number of new decisions has continued to fall from 1,830 in quarter 2 2013-14 to 910 in quarter 3 2014-15, a decrease of 50%. The number of new placement orders have also continued to fall from 1,550 in quarter 2 2013-14 to 740 in quarter 3 2014-15, a decrease of 52%.

 

 

What they don’t have, is a measure of how many cases LA’s put before an Agency Decision Maker, so we can’t tell whether

 

  • Social workers were asking ADM’s for adoption approval less often, so less cases were approved
  • ADM’s were refusing a higher proportion of requests than previously, so less cases were approved
  • A combination of those factors  (which if so, would lead to even more of a drop – if social workers were only giving their ‘best’ cases for adoption to the ADM, but they were being knocked back, then you’d expect less and less cases to go to the ADM)

 

[And of course, what underpins all of that is whether social workers / ADMs were being overly cautious about the case law and not asking for adoption in cases where the Court would actually have made Placement Orders, or whether they were being realistic and knowing that if they asked for adoption they wouldn’t be capable of satisfying their Court that the tests were met]

 

 

What really fits is the increase stats on Special Guardianship Orders  – I haven’t seen the raw data, but the BBC claim this has tripled since 2012 (BS cough cough)

http://www.bbc.co.uk/news/uk-32840224

 

When you look at the graph showing Agency Decision Maker decisions that adoption should be the plan for the child over time, you can see the numbers drop off a cliff at the time of the Supreme Court decision in Re B (nothing else will do).

 

You can argue (and it is a legitimate argument, where Re B and Re B-S were a new test, or a nudge in the ribs to apply the existing tests with proper rigour, and whether that’s a good thing or a bad thing) but you can’t really argue as the current official narrative has it, that this isn’t even a thing. The graphs make it really obvious.

The quarter BEFORE Re B-S, 1830 decisions by ADMs that adoption was the right plan for the child. Re B-S hit in September 2013, so it would be the third quarter of 2013 when ADM’s would have known about it. Those numbers, 1290.  It is the sharpest drop of the entire graph.  It has continued to slope downwards since then, but the bit in the graph that looks like abseiling down the Eiger is Re B-S. You absolutely can’t dispute it.

The Myth-Buster document was published in December 2014, so we can’t see from the stats and graph whether that has led to a reversal of the pattern in the graph. We’ll see that in about six months, I suppose. Similarly, whether the Court of Appeal’s softening of position on “nothing else will do” translates into an increase in ADM decisions that adoption is the plan.

 

[Cynically, I doubt it. I’m well aware that I am not a normal human being in my interest in case law, and I haven’t always had it. For about my first five years in child protection law, you could get by on three cases  Re G (interim care is a deep freeze affording no tactical advantage), H and R  (the nature of the allegation doesn’t increase the standard of proof) and whatever at the time was the law on residential assessments.  Re B and Re B-S, with their hard-hitting message and backed by a soundbite ‘nothing else will do’ resonate with people much more than the inching back, case specific, deeply nuanced and incremental Court of Appeal cases since that time.  Even the Re R case http://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  that was intended to slay the Re B-S myths is so nuanced that it takes nine or ten reads to have a grasp of what it is actually saying, and almost the day after you’ve done that, you couldn’t actually put it into a meaningful summary sentence]

 

 

[I argued before HERE  http://suesspiciousminds.com/2015/05/15/adoption-rates-in-freefall/  that the Press narrative that the case law will mean ‘children suffering in unsuitable and unsafe homes’ is an emotive over-simplification. I’d stand by that. At the moment, the case law on adoption has been going through its most radical changes in a generation, and it is certainly less predictable than it has ever been to decide what sort of case will result in a Placement Order and what won’t.  We are in a period of re-balancing. I don’t know yet whether these figures show that we have found the right level of those cases where adoption IS the right plan to put before the Court, whether there are even more drops to come, or whether there’s an over-reaction to it.   I have a suspicion, given that the entire history of child protection and family justice is about lurches from child rescue to family preservation and vice versa, and an eventual settling down at one particular side of the scale but hopefully not at the absolute far end of the scale…]

 

Given the huge push to recruit adopters – all the Government policies about making it easier, less time-consuming, less intrusive, more appealing , this statistic may get less attention but must be concerning

 

Registrations to become an adopter have decreased by 24% from 1,340 in quarter 2 2014-15 to 1,020 in quarter 3 2014-15. The number of adopter families approved for adoption has decreased by 3% from 1,240 in quarter 2 2014-15 to 1,200 in quarter 3 2014-15.

 

 

We will wait to see how the Court decisions that moved children from prospective adopters to the birth family (which is a completely new phenomenon, having not occurred at all prior to December 2014) has on adoption recruitment and retention.

 

 

The backlog (which had stood at 1 approved adopter for every 3 children approved for adoption) has been nearly cleared.

 

Our most recent estimate for the “adopter gap” suggests that the gap has closed, and we now have more adopters than children waiting. However, there are still 2,600 children with a placement order not yet matched and the relevance of this measure assumes that matching is working effectively.

 

 

The number of adoption ORDERS made is, they claim the highest since recording began

 

3,740 children adopted in quarters 1 to 3 2014-15

2013-14 saw the highest number of adoptions from care since the current data collection began in 1992, with 5,050 children adopted from care.

 

 

When I have looked at Court stats on adoption http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-316163   5050 looks like a pretty average year, with there having been figures nearly 50 per cent higher in the earlier 1990s.   (Now, it may be that the measure that is being used here is “Adoption of children who are in care” and that the Office of National Statistics figure bundles that in with ‘step-parent adoptions’,  so it is not a like-for-like comparison)

 

 

 

Finally, this statistic initially looks positive (how long does it take between a child coming into care and a child being placed for adoption  – you’d WANT that number to go down, since whether you want more or less children being adopted, most of us could agree that we wouldn’t want children to wait so long for a family to be found)

 

In 2013-14, the average number of days between entering care and placement was 594 days, an improvement from 656 days in 2012-13. Latest quarterly data suggests there has been a further improvement to 533 days. At 216 days, the average number of days between placement order and match in 2013-14 was a slight improvement on 2012-13. However, the latest quarterly data suggests that this has increased to 241 during quarter 3 2014-15.

 

 

The closer inspection is this :-

 

That since the 2012 figures, there has been legislation and huge resources expended on bringing care proceedings down from what was an average of 55 weeks to a target of 26 weeks.  That OUGHT to have had far more of an impact than 60 days being shaved off the time between entering care and a family being found.  It should be something more like a saving of 200 days. As the time from Placement Order to placement had gone slightly down (but was now going back up), that SUGGESTS that IF there is a saving of 30 weeks from start of care proceedings to Placement Order, but it results in only a time saving of 8 ½ weeks,  that there’s about 20 weeks unaccounted for.

 

Does that mean that :-

 

  • Whilst average time of care proceedings has gone down, it hasn’t gone down as MUCH for cases where adoption is the plan?  (That makes sense, as those are the ones that are most contentious and where all avenues tend to be exhausted?)
  • There’s been an increase in the time that children who go on to be adopted are spending in care PRIOR to care proceedings?  That “front-loading” element.

 

 

I don’t know how or if statistics on those issues are being kept.  It must be problematic that if we are compressing the time that care proceedings take, with all that involves, but barely reducing the time that a child waits between coming into care and a new family being found, have we really improved anything for the child?   (Note particularly that with the latest quarterly data, HALF the time that has been cut appears to have been lost by an increase in the family finding process.  216 days of family finding and matching post Placement Order equates to 30 weeks)

 

 

The notional 200 day saving from faster care proceedings isn’t turning into a real saving, and that feels counter-intuitive. What we’ve been told for years is that if decisions about children are made by the Courts quicker, the children will be easier to place  – they will be younger and have less issues (and thus, you’d assume, faster to place).

Was an autobiography harmful to a child?

 

The Supreme Court have given their decision in James Rhodes v OPO 2015

https://www.supremecourt.uk/cases/docs/uksc-2014-0251-judgment.pdf

 

This was a case in which James Rhodes, a concert pianist, author, and film-maker, wrote an autobiographical account of his life,  and where the mother of their child sought an injunction to prevent its publication. The Court of Appeal granted that injunction, based on an 1897 case called Wilkinson v  Downton. That case established a cause of action which was “intentionally causing physical or psychological harm”

Mr Rhodes took that case to the Supreme Court, and triumphed.

 

The Supreme Court posed the central question in this way:-

 

What, then, is the proper scope of the tort in the modern law? In particular, can it ever be used to prevent a person from publishing true information about himself?

 

When you read snippets from the book contained in the judgment, those snippets pull no punches. It describes the dreadful sexual abuse that the author sustained as a child, the harrowing impact that it had on him, the consequences throughout his life and how for the author, music provided an escape from that. The descriptions are brutal and shocking – but of course, so is what happened to this man as a child. The words hurt, but nothing like how the experience must have hurt.

One can also see that the mother of a young boy (who has Aspergers’ Syndrome, amongst other difficulties) would be worried about the boy coming across these accounts.  They are graphic accounts – they are so by intent – the author is wanting to convey just how monstrous what happened to him was, to reach out to other victims or potential victims, and possibly to reduce the chances of what happened to him happening to others. They are not easy to read – even for me – and I work within a field where I see accounts of abuse against children almost every week and would be expected to be somewhat more de-sensitised to it than the average adult. What James Rhodes has written is powerful and hard to read.  I commend him for it.

 

[This isn’t a terribly neutral summary, I am glad that he won this case – but nor do I think that the mother was a bad person for bringing the claim – I see entirely why she would not want her son to read this material whilst he is a child, and that in the modern era it is not as simple as just not having a copy in his home to read – the internet will have passages from it, indeed the judgment does, and other children who the son knows may come across it and make use of it]

 

As a matter of law then, what does the Supreme Court have to say about this tort?

Let’s look at the history first – as ever with old caselaw, the facts are quirky, and I’m sure that nobody involved ever imagined they’d be making legal history and newspaper headlines 120 years later.

 

Mr Wilkinson had been out at the races (I think that I can say without fear of defamation 120 years later that some degree of liquid refreshment may have played a part in the day’s events) and his friend Mr Downton decided that it would be an amusing practical joke to tell Mrs Wilkinson that Mr W had had an accident at the races, broken his leg and needed help.  Mrs W took it very badly and had weeks of nervous shock.

 

Wilkinson v Downton

31. Mr Downton secured a place for himself in legal history by a misconceived practical joke. He thought that it would be a cause of harmless amusement among the clientele of the Albion public house in Limehouse to tell the landlord’s wife, Mrs Wilkinson, a false tale that her husband had fractured his legs in an accident while on his way back from a race meeting and that he had sent a message to ask for her help to get him home. It cost her 1 shilling and 10 ½ pence to send her son and another helper on this fools’ errand, but a matter of far greater concern was the effect on her health. She suffered severe shock to her nervous system, which manifested itself in vomiting and weeks of physical suffering. Mrs Wilkinson had not shown any previous sign of predisposition to nervous shock. She and her husband sued Mr Downton, and the matter came to trial before Wright J and a jury.

32. Recovery of the transport costs incurred in response to Mr Wilkinson’s supposed request for help presented no legal difficulty. Such costs were recoverable as damages for deceit. The jury assessed damages for the illness caused to Mrs Wilkinson by her nervous shock (together with her husband’s claim for the resulting loss of her services) at £100, but the legal basis for making such an award was problematic.

33. Wright J rejected the argument that damages for deceit could include an award for Mrs Wilkinson’s suffering, because the essence of liability for deceit was that a maker of a false representation, intended to be acted upon, was liable to make good any loss naturally resulting from the representee acting on it, but the illness suffered by Mrs Wilkinson was not a consequence of her acting on what she was told. It was simply a consequence of the shock brought about by the news reported to her.

34. Wright J held, at pp 58-59, that a cause of action could be stated in law where a defendant has

“wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.”

He continued

“That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”

35. This compact statement of law contained a number of key features. First, he identified the plaintiff’s protected interest as her “legal right to personal safety”. Secondly, he identified the defendant’s act as wilful. Thirdly, he described the act as “calculated” to cause physical harm to the plaintiff. Fourthly, he noted the absence of any alleged justification. Fifthly, he characterised the “wilful injuria” as “in law malicious” despite the absence of any purpose (ie desire) to cause the harm which was caused. Having stated the law in that way, Wright J then considered whether it covered Mrs Wilkinson’s claim. He held that it did. He said:

“One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed …”

 

The discussion of the Supreme Court into this tort and partic ularly on the key ingredient ‘maliciously’ is wide-ranging –  covering level-crossings, horses ram-raiding into pubs, pretending to unmask someone as a German spy, and imputations of inchastity.  I was saddened that the promising case name of Mayor of Bradford v Pickles 1895 did not hinge on a gherkhin-related dispute, but rather on water supply…

Of course, you will note that in Wilkinson v Downton, the story that caused the harm was false, made up, whereas the story being told by Mr Rhodes is true. We shall see if that makes a noticeable difference.

72. The order made by the Court of Appeal was novel in two respects. The material which the appellant was banned from publishing was not deceptive or intimidatory but autobiographical; and the ban was principally directed, not to the substance of the autobiographical material, but to the vivid form of language used to communicate it. The appeal therefore raises important questions about freedom of speech and about the nature and limits of liability under Wilkinson v Downton.

73. In Wilkinson v Downton Wright J recognised that wilful infringement of the right to personal safety was a tort. It has three elements: a conduct element, a mental element and a consequence element. The issues in this case relate to the first and second elements. It is common ground that the consequence required for liability is physical harm or recognised psychiatric illness. In Wainwright v Home Office Lord Hoffmann discussed and left open (with expressions of caution) the question whether intentional causation of severe distress might be actionable, but no one in this case has suggested that it is.

 

When writing a book, the author is not obliged to consider that any reader of the book might be caused damage by reading it – that would make it almost impossible to write anything. The Court of Appeal had held that it was applicable in this case to consider that in writing the book, the child was a relevant person to take account of – i.e that he was a specific person who could be said to be affected by it.

 

74. The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant. We are concerned in this case with the curtailment of freedom of speech, which gives rise to its own particular considerations. We agree with the approach of the Court of Appeal in regarding the tort as confined to those towards whom the relevant words or conduct were directed, but they may be a group. A person who shouts “fire” in a cinema, when there is no fire, is addressing himself to the audience. In the present case the Court of Appeal treated the publication of the book as conduct directed towards the claimant and considered that the question of justification had therefore to be judged vis-à-vis him. In this respect we consider that they erred.

 

 

 

75. The book is for a wide audience and the question of justification has to be considered accordingly, not in relation to the claimant in isolation. In point of fact, the father’s case is that although the book is dedicated to the claimant, he would not expect him to see it until he is much older. Arden LJ said that the father could not be heard to say that he did not intend the book to reach the child, since it was dedicated to him and some parts of it are addressed to him. We have only found one passage addressed to him, which is in the acknowledgments, but more fundamentally we do not understand why the appellant may not be heard to say that the book is not intended for his eyes at this stage of his life. Arden LJ also held that there could be no justification for the publication if it was likely to cause psychiatric harm to him. That approach excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story.

76. When those factors are taken into account, as they must be, the only proper conclusion is that there is every justification for the publication. A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail. Of course vulnerable children need to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so is not to expand Wilkinson v Downton to ban the publication of a work of general interest. But in pointing out the general interest attaching to this publication, we do not mean to suggest that there needs to be some identifiable general interest in the subject matter of a publication for it to be justified within the meaning of Wilkinson v Downton.

 

As the Supreme Court point out here – Mr Rhodes case triumphs on the wider public interest of telling his story, but that does not mean that the story HAS to have that wider public interest to defeat a Wilkinson v Downton claim.

Where a story is true, they say, the law gives the freedom of someone to tell the truth a great deal of protection.

 

77. Freedom to report the truth is a basic right to which the law gives a very high level of protection. (See, for example,Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 WLR 934, para 42.) It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself. That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential. But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person’s intention. The question whether (and, if so, in what circumstances) liability under Wilkinson v Downton might arise from words which are not deceptive or threatening, but are abusive, has not so far arisen and does not arise for consideration in this case.

 

It MIGHT be that a set of circumstances exist in which words in a publication are true, and not threatening, but are abusive and would cause harm to the recipient, but it is quite difficult to think of what those circumstances might be. It may be some time before we see another Wilkinson v Downton claim.

 

Finally, the Supreme Court looked at the mental element of the tort (the intent)

 

83. First, where a recognised psychiatric illness is the product of severe mental or emotional distress, a) is it necessary that the defendant should have intended to cause illness or b) is it sufficient that he intended to cause severe distress which in fact results in recognisable illness? Option b) is close to the version stated by Salmond & Heuston which attracted Lord Woolf in Wainwright v Home Office.

 

They concluded that option b was correct, and declined to develop the law to include ‘recklessness’ within the mental element of the offence.

89. In the present case there is no basis for supposing that the appellant has an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant.

 

Also hooray for Lord Neuberger’s remarks on free speech.

96. It is true that the book contained material which some people might find offensive, in terms of what was described and how it was expressed, but “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence” – see Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, para 20, per Sedley LJ. As he memorably added, “[f]reedom only to speak inoffensively is not worth having”.

97. Quite apart from this, it would, I think, be an inappropriate restriction on freedom of expression, an unacceptable form of judicial censorship, if a court could restrain publication of a book written by a defendant, whose contents could otherwise be freely promulgated, only refer in general and unobjectionable terms to the claimant, and are neither intended nor expected by the defendant to harm the claimant, simply because the claimant might suffer psychological harm if he got to read it (or extracts from it).

 

 

UN Convention on the Rights of the Child

I know that some of my commenters have been interested in this in the past, and in particular the curious half-way house that the UK finds itself in with the UN Convention.  We recognise it in our law, but don’t consider ourselves to be bound by it.  The Government has agreed to take it into account when formulating policy but there isn’t a cause of action that a person can take to Court to say “I think X has acted in breach of the UN Convention”

 

That came into very sharp focus in the Supreme Court’s decision as to whether the Government’s policy on a cap on welfare benefits was discriminatory and in contravention of the UN Convention on the Rights of the Child – since children of parents who were (a) on benefits and (b) had large families were going to find themselves poorer through no fault of their own.  Had the UN Convention been a formal part of English law, what was a knife-edge decision that the policy wasn’t discriminatory might easily have gone the other way.

 

[When I say knife-edge, I’m not kidding. It was 2-2, and the Judge who made the fifth judgment had gone the other way in his original decision, but changed his opinion when he saw the other draft judgments. It honestly could not have been closer]

 

See the excellent summary in UK Human Rights blog, which I couldn’t hope to match.

http://ukhumanrightsblog.com/2015/03/19/supreme-court-splits-the-baby-over-the-benefit-cap-mike-spencer/

 

And the other newsworthy item on the UN Convention is the Parliamentary report on the UK’s compliance with the UN Convention here :-

http://www.familylaw.co.uk/system/redactor_assets/documents/2799/UK_s_compliance_with_the_UN_Convention_on_the_Rights_of_the_Child.pdf

summarised very well by the people at Jordan’s Family Law here

http://www.familylaw.co.uk/news_and_comment/uk-s-commitment-to-children-s-rights-doesn-t-go-far-enough#.VRFUtfmsUXw

 

The Report also points to areas, such as immigration, legal aid and children in custody, where some policy developments have actually worked against the best interests of children, despite the Government’s specific commitment to the United Nations Convention on the Rights of the Child (UNCRC) made in December 2010.

The Committee expresses its disappointment that, during the current period of austerity, children – particularly disadvantaged children – have in certain areas suffered disproportionately, and concludes that the Government’s statutory duty to eliminate child poverty by 2020 should be treated as a human rights issue.

The Committee also states that the Government should move to ratify the Optional Protocol to the UNCRC which would allow children in the UK the right to individual petition to the UN Committee on the Rights of the Child in the same way that applies under the UN Convention on the Elimination of Discrimination Against Women and the UN Convention on the Rights of Persons with Disabilities.

 

 

 

Hounds of Justice – 500th post!

Obviously, I meant to do something weighty and serious for the 500th post. But as luck would have it, the marvellous Last Week Tonight gave me a much better post.

 

If you’re not familiar with Last Week Tonight, it’s a show on HBO (and Sky Atlantic) which is a satirical news show. It happens to be both the funniest and most thought-provoking show on tv, and tackles really hard hitting stuff in amongst the light nonsense.  It’s also presented by a geeky man in spectacles, so it is close to my heart in a number of ways.

 

On this week’s show, after presenting a hard-hitting piece on how mindless and stupid bureacracy has prevented translators in Iraq and Afghanistan who risked their lives to help US forces from taking up the US citizenships that they were promised, the show tackled the difficult issue of how the law can decide really very important things BUT it is really boring and dull to watch.

 

So, they took what was already a pretty funny case (is it Unconsitutional to ban prisoners from growing beards because they might hide tiny revolvers in them) and showed how you can present that in a gripping and televisual way.  By the way, if you are drinking coffee when watching this, I am not liable if it comes out of your nose.

 

 

 

They also kindly provided raw footage and material on line, so that people could take the actual audio tapes of any Supreme Court hearing and turn it into this style of presentation, and people are already putting major decisions up on You Tube.  NOW THAT’S WHAT I CALL TRANSPARENCY.

 

I CANNOT WAIT for the next UK Supreme Court decision….

A gilded cage is still a cage (Lady Hale finally wins one!)

If you do Court of Protection work, you have probably been waiting for the Supreme Court’s decision in Cheshire West and Chester, which is here

http://www.bailii.org/uk/cases/UKSC/2014/19.html

 

 The Supreme Court decided unanimously that P’s liberty was being deprived, and on a 4-3 split that MIG and MEG’s liberty was being deprived. [Yes, a 4-3 split in which Lady Hale finished on the winning side. A 4-3 split does, however indicate that the issues are difficult and that it wasn’t an easy decision or foregone conclusion – they also overturned the Court of Appeal on these two linked cases]

 At the same time, they dismantled the Court of Appeal’s notion that a factual determination of whether someone’s liberty was being deprived was a subjective comparison with what would be reasonable to do for someone of similar characteristics. This is also, as far as I know,  the first finalised deprivation of liberty decision applying to a person living in a foster placement rather than a care home or hospital.

 If you do only care or children work, you’ve probably never heard of Cheshire West, or MIG and MEG, or possibly even DoLs; but just in case you think you can cheerfully ignore all of them, give me one paragraph of your time, to convince you that you ought to learn a bit about this case.

 

The President has issued guidance saying that Deprivation of Liberty applications don’t apply to children under 17 (he is right), and that if there is in a child’s case a deprivation of liberty issue then the mechanism is either detention under the Mental Health Act or an application for a Secure Accommodation Order. The Supreme Court here decided, on a 4-3 split, that what was happening to two young women (formerly children) in a foster care / residential home setting WAS a deprivation of liberty. And therefore, if this was happening to children in other cases, those other cases ought to be the subject of a Secure Accommodation application, or Mental Health Act intervention.

 

Children have historically been the subject of Secure Accommodation applications if they are absconding, or taking deliberate actions, but this case raises that if their liberty is being deprived as a result of their vulnerabilities or medical situation or functioning, that can still equate to a deprivation of liberty which needs to be sanctioned by the Court.

 

That is only the case if it is the State, or a limb of the State that is restricting the child’s liberty.

 

54. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

 

 

I come back to this at the very end of the piece, so if you really don’t care about Court of Protection work, you can skip to the bottom.

 

What sort of restrictions were being applied to those young women, and why?  (I’ll call them MIG and MEG, as they were initially dubbed. This is interchanged in the judgment with P and Q, but because the Supreme Court were dealing with two cases interlinked  “P” and “MIG and MEG” / “P and Q”  I think it is confusing to have two separate “P” cases in the same discussion)

 

11. MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sister’s and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour.

 

  1. At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her “mummy”). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication.
  1. MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister.

 

 

The original Court of Protection hearing decided that what was happening was NOT a deprivation of liberty, and that any restrictions were for the best interests of MIG and MEG and were justified.

 

The Court of Appeal agreed: [2011] EWCA Civ 190 [2012] Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the “relative normality” of the sisters’ lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the “greater fulfilment in an environment more free than they had previously had” (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that “what may be a deprivation of liberty for one person may not be for another” (para 40).

 

 

That sentence lays at the heart of the two appeals to the Supreme Court.  In the other case, involving an adult named P, the Supreme Court were unanimous that his liberty had been deprived.

 

  1. P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Down’s syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the local authority.
  1. Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to P’s family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one “waking” member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a “body suit” of all-in-one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication.
  1. By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance” (para 59). Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty” (para 60). Nevertheless it was in his best interests for those arrangements to continue: [2011] EWHC 1330 (Fam).

 

 

That decision was reversed by the Court of Appeal

 

The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: [2011] EWCA Civ 1257, [2012] PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of “relative normality” adopted in P and Q, and considered it appropriate to compare P’s life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P” (para 120).

 

 

This concept of ‘relative normality’ or ‘what might be a deprivation of liberty for one person might not be for another’ really lays at the heart of these appeals to the Supreme Court.  In essence, is whether someone is deprived of liberty an OBJECTIVE test, or a SUBJECTIVE test?

 

There is an excellent history of how the “deprivation of liberty” legislation came about in Lady Hale’s judgment, well worth a read.

 

There were a category of people who weren’t detained under the Mental Health Act, or under criminal legislation, but who were being effectively detained because they lacked the capacity to say “I want to leave” or that if they tried to leave weren’t allowed to do so.

 

This came to a head with a man named L, who took his case up to the House of Lords. R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458.  He had been living with foster carers, became agitated one day at a day care centre and was taken off to hospital, and the carers were not able to get him out. If he HAD been detained under any legislation, then the carers would have had access to legal routes to challenge the decision, but were left in a grey area where they and L seemed to have no rights at all.

 

The majority decision  of the House of Lords was that he had not been detained, and if he had been, it had been under the doctrine of necessity.

 

Lord Steyn disagreed, forcefully and  said

 

  1.  “Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale.”

 

When the case went to the European Court of Human Rights, Lord Steyn was shown to be right, and went about his day without egg on his face.

 

  1. The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL.
  1. Key passages from the judgment are these:

“89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.

90. . . . . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . . . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.

91. . . . the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. . . .

Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court’s view, fairly described by Lord Steyn as ‘stretching credulity to breaking point’ and as a ‘fairy tale’.”

 

 

As a result, it became necessary for the UK to introduce a statutory mechanism to deal with people like L, and that mechanism was the deprivation of liberty powers within the Mental Capacity Act 2005

 

Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the person’s condition while a case is pending before the court.

 

Lady Hale goes on to say that the safeguards have the appearance of bewildering complexity   (only the appearance?)  and a few High Court Judges, notably Peter Jackson J have remarked in judgments that the law on deprivation of liberty has become so complex that nobody can understand it, least of all the relatives or carers of the vulnerable people who need to be safeguarded by it.

 

 

Let’s get on with the central argument

 

  1. The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in P’s case appears to have thought that it is not, for he criticised the trial judge for failing to grapple with the

“question whether the limitations and restrictions on P’s life at Z house are anything more than the inevitable corollary of his various disabilities. The truth, surely, is they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. P’s life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker J’s phrase…, dictated by his disabilities and difficulties” (para 110).

This view has been confirmed by the rejection in Austin v United Kingdom (2012) 55 EHRR 14, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania (2013) 56 EHRR 11).

  1. The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty.

 

 

To be honest, you can just assume that I am saying “hear hear” at most paragraph breaks from here on in. But hell yeah.

 

  1. Allied to the “inevitable corollary” argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.
  1. The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present-day conditions and continued:

“It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008).”

 

 

So, there isn’t a different test about whether someone’s liberty is being deprived because of the circumstances of that individual   (that might go to the later question of whether the deprivation is justified or justifiable, but it is a straight factual decision – EVERYONE has the right not to be deprived of their liberty, and you don’t lose that right just because you are autistic or vulnerable in other ways. We certainly don’t compare sedating a vulnerable person and preventing them from leaving with putting a seatbelt on a wriggling child in the back of a car.    (Or at least, we don’t any more, that comparison was made in one of these Deprivation of Liberty – DoLS cases)

 

Second question then, if deprivation of liberty is a factual question, what are the characteristics that decides whether someone is, or is not being deprived of their liberty?

 

The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.

 

 

  1. In none of the more recent cases was the purpose of the confinement – which may well have been for the benefit of the person confined – considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46:

“I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . . . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified?”

 

 

ie, something doesn’t cease to be a deprivation of liberty just because there are good reasons for it  – what you have there is a deprivation of liberty which is justified, and the Court can sanction it.

 

 

  1. In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
  1. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
  1. For that reason, I would reject the “relative normality” approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading

 

 

 

  1. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their “concrete situation” on which we need to focus?
  1. The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave” (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.
  1. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach

 

 

 

You are looking for  – is a person under continuous supervision and control, are they free to leave.

 

It is NOT relevant that the person is complying or not objecting.

 

It is NOT relevant that a person in similar circumstances to this person would have the same sort of placement or restrictions

 

It is NOT relevant that the reason for the restrictions is to protect the person or that it is for their own good   (that comes into the second stage – is the deprivation justifiable)

 

 

54. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

 

And on P

 

  1. In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that “a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person’s care and movements” (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the person’s life, which in my view are not relevant factors. But when he considered the circumstances of P’s life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that P’s life was as normal as possible, but continued (para 59):

“On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.”

In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that “looked at overall, P is being deprived of his liberty” (para 60) should be restored.

 

 

And in conclusion Lady Hale says

 

Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.

 

 

 

As I said at the outset, the Supreme Court was unanimous that P’s liberty had been deprived, but were 4-3 split on MIG and MEG, the majority agreeing with Lady Hale that their liberty had been deprived.

 

 

The dissenting views were in very broad terms based on agreement with this proposition by Parker J in the original decision on MIG and MEG

 

  1. 107.                        “225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made.

226. In my view it is necessary to analyse what specific measures or restraints are in fact required. …”

 

And that

 

nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIG’s liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG.

 

 

 

I am aware, in conclusion, that I have devoted far more time to the majority judgment and lead judgment of Lady Hale than to the dissent; an analysis of the nuances between them is probably beyond the scope of this blog and I’ll leave it to specialists like Lucy Series over at The Small Places blog. 

 

 

[Lucy hasn’t written on it yet, but can I refer you to this brilliant, stirring and beautiful piece on the House of Lords dissection of the MCA  http://thesmallplaces.wordpress.com/2014/03/14/democracy-in-action/

 

I wish that I could write with an ounce of Lucy’s passion – she’s the sort of writer that makes me want to man the barricades. If, as the House of Lords hint, there should be some sort of monitoring/oversight/scrutiny/guidance body other than the Courts overseeing the MCA, Lucy should be on it ]

 

Plus, as I have not even attempted to disguise during this piece, I wholly agree with Lady Hale’s determination.

 

It may well be that there are far more people than the current 11,800 DoLs applications as a result of this decision. Well, so be it. For me, that is more people whose liberty is being deprived having the opportunity to challenge and test that before the Courts, rather than workers on the ground deciding that they aren’t being deprived of their liberty because the restrictions are right for ‘that sort of person’ and ‘for their own good’

 

Maybe the number of applications will break the system. Well, then the system needs to be broken and rebuilt.  Because of the extreme vulnerability of people like P and MIG and MEG, we should err on the side of extreme caution when protecting their rights.

 

 

As to the children and secure accommodation orders approach, it might be worth noting Lord Kerr’s observations (this one of the majority judgments)

 

  1. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
  1. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.
  1. Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age.  There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting.  A comparator for a young child is not a fully matured adult, or even a partly mature adolescent.  While they were very young, therefore, MIG and MEG’s liberty was not restricted.  It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.

 

So in order to ascertain whether a deprivation of liberty is occurring you are looking at whether the restrictions being put on THIS child are comparable to that of another child of similar age  – of course carers and parents put different restrictions on an 8 year old than a 15 year old, and it is nonsense to say that the 8 year old’s liberty is being deprived as a result of not having the same freedoms as a 15 year old.  But if a particular 15 year old is having restrictions that are over and above what an average 15 year old might be allowed, then the question might arise.  It is important to note that whilst Lord Kerr is tolerating a degree of subjectivity, he is not saying that the test is completely subjective – the comparator is an average child of this age, not a child who has the same sort of problems, or behaviours, or vulnerabilities of this child.

 

 

For example

 

Most 14 year olds wouldn’t be allowed to leave their home at 2.00am, so a foster carer doing the same won’t be depriving the child of their liberty.

 

Most 14 year olds have had the experience of being ‘grounded’ for bad behaviour and having a period of time in which they aren’t able to go out with their friends, or use the computer or similar, so a foster carer doing the same isn’t depriving a child of their liberty

 

However, most 14 year olds aren’t told that they can never leave the home except under adult supervision, or have their door locked at night, so that would be a deprivation of liberty if it happened to a child in foster care.

Emotional wrecks

Following the Supreme Court decision in Re B yesterday, which we hoped would tackle the four issues on which leave to appeal was granted :-

(i) the meaning of significant harm;

(ii) the relationship between the nature and gravity of the harm which is feared and the degree of likelihood of that harm being suffered in the future;

 (iii) the proportionality of a care order with a care plan for adoption in a case such as this; and

(iv) the proper approach of the Court of Appeal to a finding that the threshold has been crossed, and (although this was not expressly referred to) to the issue of proportionality.

 

And I shall leave it to others to debate whether or not they successfully clarified those points (save for (iv) which they undoubtedly did tackle, some might say at the expense of the 3 more important issues)

 

But it made me think about emotional harm post Re B, and some hypothetical examples to debate.  In each of these hypothetical examples :-

 

(i)                 The child is well fed, well cared for, their basic needs are met

(ii)               They are not hit, or sexually abused or neglected

(iii)             The parents are not drug addicts or alcohol abusers

(iv)              The parental behaviour complained of is just simply as is set out baldy and nothing else

(v)                All efforts to divert them from this behaviour has been unsuccessful to date

 

I make those caveats so that it is clear what we are debating is ‘pure emotional harm’, not the emotional harm that accompanies neglect, or physical or sexual abuse.

 

Have a look at the examples, if you would and consider whether you think (a) that it is appropriate for the State to intervene in this family’s life by issuing proceedings (b) whether the section 31 threshold is crossed and (c) whether the Court might consider it proportionate to make an order, if – as in Re B, all prospect of the parent being able to address that behaviour were not successful.

 

 

Example 1

 

 

The parent routinely tells the child that they are worthless, that they will never amount to anything, that the parent is ashamed of them, that they are fat and ugly and unloveable,  that even their parents don’t love them, that they will be a failure in life.

 

Example 2

The child wants more than anything to grow up to be a professional footballer, and the parent routinely tells the child that they are no good at football, that they aren’t getting any better at it, that they have no chance of becoming a footballer and that they are not going to be able to do it for a living.

 Example 3

The parent routinely tells the child that once you are an adult, “you shouldn’t knock it till you’ve tried it” and that they should try cocaine, heroin, amphetamines for themselves once they become an adult. The parent also makes it plain that once the child is an adult, if they want to try drugs, they do so with parental blessing and the parent will provide them with funds if they wish to do so.

 

Example 4

The parent has strong Marxist beliefs/no conscience about personal property, and regularly tells the child that “all property is theft” and that once the child reaches adulthood, it is perfectly legitimate, if they so wish, to steal things if they want them or need them. They make it clear that their view is that only a fool would work and save up for something when it is so easy to just take it from someone else.

 They themselves steal to supplement their lifestyle, and the home is full of luxury goods that they could not afford and they make no secret of how they obtained them. They do, however, not involve the child in any theft (either as witness or accomplice) and stress to the child that until they reach the age of 18, they should not steal anything.

 

Example 5

The parent routinely tells the child that the Holocaust never happened. They make it plain that Jewish people have lied about it, and that any small number of Jews who did die deserved it. They communicate to the child that books and television programmes or films that claim otherwise are lies and that the creators of such material cannot be trusted.

 

 

Example 6

 

The parents believe in reincarnation and karma, and routinely tell the child that people who die of terminal illnesses or have disabilities have these problems because they did bad things in a former life and are paying for them.

 

 

[I will stress that none of these are actual cases or even small features of actual cases, they are purely hypothetical examples of ways that a parent could behave which may lead the State to question whether the behaviour amounts to significant harm. I also stress that I am not attempting to claim that post Re B, all of these examples WOULD meet threshold or that a Local Authority would issue on them even if they did, rather to simply debate whether they are CAPABLE of meeting threshold and whether there is consensus about which that do or not, or whether there is uncertainty. ]

 

 

Do any of them, on their own, cross threshold?

 

Supreme Court and emotional harm

The Supreme Court judgment in Re B is out, and can be read in full here:-

 

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0022_Judgment.pdf

For the too-long didn’t read version, the parents lost. The case was hoped to clarify emotional harm, and whether it justifies State intervention, and whether the risk of future emotional harm (when it becomes somewhat tenuous and predictive) justifies the most draconian of orders, a plan for adoption.

There was an excellent preview of the case by Celtic Knot over on Pink Tape, here

http://pinktape.co.uk/cases/rescuing-children-from-significant-harm-looking-forward-with-trepidation-and-hope/

and it sets out the backdrop to this case very clearly and why it was that he and I were both hoping that the parents would succeed. In all of this debate, I am mindful that  (a) I haven’t had the chance to read or hear all of the evidence and (b) that the case sadly involves real people and a real child.  Sadly, as it has important principles, it is something that needs to be discussed in broader terms than just the tragedy for the immediate family.

Frankly, my reading of the Re B Court of Appeal decision was that there was a lot that professionals were worried about or anxious about, but none of it actually amounted to proof that the child was at risk of significant harm. [I stress, this may very well be a fault of the Court of Appeal judgment in not properly framing how they found threshold to be crossed, rather than on professionals involved in the case]

 

I think the closest it came to threshold was in this passage here

It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond  abnormal personality traits and in additi on to, and more significantly than, her  somatisation disorder, M suffers a factitious  disorder of mild to moderate intensity.

This is a related psychiatric disorder in  which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories.

There is therefore a deceptive dimension to  the disorder which was replicated in a  mass of other evidence before the judg e, unrelated to M’s medical condition,  which raised questions about  her ability, and for that matter  also the ability of F, to behave honestly with professionals. Dr Bass  stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken  only if she were to acknowledge the problems and to engage honestly with the therapist.

 

 

Undoubtedly within the case, and the Supreme Court gave multiple examples, there had been incidents where claims had been made by M which the Court found to be untrue, and they were florid claims. That much, I don’t disagree with.  The decision of the Court of Appeal that this crossed the threshold seemed, to me, to fall short on the critical area of actual evidence that it HAD harmed the child or was a risk of harming the child, and not merely in nebulous “Jedi-hand-wave” terms – what was it that was said the parents might do that would harm this child, and how likely was it that they would do it?

 

The original trial judge said this:-

The judge concluded: “Ultimately, I find that I am persuaded… that what the evidence  clearly demonstrates is that these parents do not have the capacity to  engage with professionals in such  a way that their behaviour will be  either controlled or amended to  bring about an environment where  [Amelia] would be safe… In short I cannot see that there is any  sufficiently reliable way that I can fulfil my duty  to [Amelia] to  protect her from harm and still place her with her parents. I  appreciate that in so saying I am depriving her of a relationship  which, young though she  is, is important to  her and depriving her  and her parents of that family life which this court strives to promote.”

 

Again, that seems to me to be a legitimate decision for the Judge who heard the evidence to take ONCE it was established that the threshold was crossed. If there WAS a risk of harm, then whether the parents could manage that harm, take advice, work with professionals and change their behaviour is massively relevant.

But did we ever cross the threshold on the facts as reported?

My fundamental issue is this – if one cannot put into a paragraph, or a page, what harm it was that the State was protecting this child from, I am not sure that the harm is actually properly made out. [Not a criticism of the LA involved – I  haven’t read the papers, I don’t know the whole case, but from the twin judgments I have seen, I don’t see anything that comes close to telling the parents, or the public, what it was that this child was being protected FROM – other than very peculiar behaviour short of abuse]

 

One focus of the appeal was the wording of the threshold criteria (the test that the State has to cross before a Care Order can be made) which is “significant harm”  and whether the law has wrongly developed to an extent where it is now hard to see the distinction, in law, between harm and significant harm.

 

If one were to get a family lawyer to draw up two columns, one headed Harm, and one headed Significant Harm, and then gave them a series of allegations, would all of the family lawyers put each allegation in the same column ? would there be broad consistency about which is which, perhaps with a few grey areas? Or in fact, would nearly everything go into the “significant harm” column.

 

Here is what the Supreme Court have to say

26.  In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the  gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from  the word itself. Nevertheless it might be worthwhile to  note that in the White Paper which preceded the 1989 Act, namely The Law on  Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:

“It is intended that “likely ha rm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does”

The Supreme Court also rejected the applicant’s submission that when a Court determines whether or not the threshold is crossed, article 8 is engaged, and determined that article 8 only arises when the Court are deciding whether or not to make an order.   [I can’t say that i am happy about THAT either]

 

The second matter relates to Mr Feehan’s submission that the threshold set  by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is  that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if,  in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty,animosities and obstructionism of the parents represent deficits only of character

and that, if and insofar as they might cause harm to Amelia,whom they love, the harm is neither deliberate nor intentional

 

This is an interesting one, taking us into issues of free will and determinism. I would agree partly with Mr Feehan QC  – I think that the threshold ought to get into quality of parenting or how the parenting impacts on the child, but I don’t go as far as saying that a parent is not responsible for elements of their personality which are beyond their control. (The latter, seems to me, to invite later ligitation on the basis of paedophilia being intrinsic to a person, rather than a conscious or deliberate choice on their part)

The Supreme Court rejected this anyway.  

 

One interesting addition from the Supreme Court was their debate about whether, when deciding whether a lower Court had mistakenly found threshold to be crossed (or vice versa) the test for the appellant Court should be the usual one (derived from Piglowska) that the Court had been “plainly wrong”  or whether in the context of the threshold, which is a binary value judgment – the evidence is there to satisfy it, or it is not, the test should simply be whether they were “wrong”

it is generally better to allow adjectives to speak for themselves without adverbial  support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative.

Like all other members of the court, I  consider that appellate review of a  determination whether the threshold is crossed should be conducted by reference  simply to whether it was wrong.

 

 

I think they may come to regret that formulation.

 

Going to the issue of threshold this passage in the judgment outlines why the majority of the Judges found that it was met and the decision was not wrong

The nature of the harm which concerned Judge Cryan was (i) “the emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation disorder and factitious illness disorder”,

(b) “concerns … about the parents’ personality traits”,

(c) “her mother’s lying”,

(d) her father’s “active, but less chronic, tendency to dishonest

y and vulnerability to the misuse of drugs”, and

(ii) “physical harm to [Amelia]” which “can not be discounted, for example, by over treatment or inappropriate treatment by doctors”.

As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s parents did not have “the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe”. He explained that the result of this was that he could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”

to Amelia “to protect her from harm and still place her with her parents”.

 

66. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they

are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based

on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge

as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are

evaluations which are also plainly dependant on the Judge’s overall assessment of  the witnesses, and in particular on his opinion as to the character and dependability of Amelia’s mother and father, and as tothe reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong.

 

Sadly, to me, it seems that the Supreme Court have tackled this case in that very narrow way, rather than comparing the threshold said to be met in this case with the doctrines of Lord Templeman and Justice Hedley, about the difference between abusive parenting which harms a child or is likely to harm a child, and eccentric odd or even poor parenting which falls short of that mark.  I slightly have to wonder why they agreed to hear the appeal at all if they were not going to roll up their sleeves and tackle the issue of emotional harm. They just really said that it was a matter for the trial judge which side of the line the case fell on, unless it was apparent that he had got that wrong.

 

Lady Hale in her judgment, which in my mind actually tackled the issues and concluded in the dissenting judgment that the original judge was wrong to have made a Care Order,  sets out what practitioners felt was the key issue in the case in her opening paragraphs

 

143. This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention.

 

How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents?

 

144.Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?

 

Hear hear

 

 

Sadly all of this next bit is by the by, since it is from the dissenting judgment, but I think it is all correct, and I wish it were an accurate reflection of what the law was, post Re B

The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nichollsdid not contemplate that a relatively small degree of likelihood would be sufficient in all cases.

 

The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.

 

 

Of course, another reason for adopting a test of “real possibility”, rather than “more likely than not”, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child’s immediate future.

 

190 However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child’s resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the “real possibility” solidify

191. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be “attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him”(s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.

 

For my part, I am unsure why the other Judges did not share those views, they seem to me eminently sensible and fair. In reality, it is merely a sieve to remove the sort of cases that Lord Templeman and Hedley LJ were referring to as being short of the level of parenting that requires State intervention.

I also feel somewhat for Lady Hale, who has given excellent judgments in many of the Supreme Court cases but seems to be being characterised as the dissenter who does not sway the majority.

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