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You can ring my be-ee-ll, ring my bell

There’s been debate in the legal community and in the social work community for a long time about the desire of some parents to make recordings of their interactions with social workers.

There’s a feeling among some professionals that it feels like it should be illegal, but when you drill down into it, it’s hard to find an actual law that prohibits it. (The Human Rights Act, which would protect interference with private and family life works for individuals who are owed duties by the State, and not vice versa)

There’s very good guidance from the Transparency Project here

https://www.transparencyproject.org.uk/guidance-on-parents-recording-meetings-with-social-workers-2/

The grey area has been whether there might be arguments about whether the making and keeping of audio or video recordings might constitute data processing for the purposes of data protection legislation – and if it does, then all sorts of duties arise, including very strict restrictions on the purpose and transparency on the person processing that data. But data protection legislation makes an exemption where the information is being handled for ‘household use’ (understandably , if you are keeping a diary, your friends / neighbours don’t have the right to see any entries you’ve made about them in the same way they would if say an Electricity Company was keeping records about them)

s21 (3) Data Protection Act 2018 This Chapter does not apply to the processing of personal data by an individual in the course of a purely personal or household activity.

So, what’s household use and what’s not?

This case throws up some interesting new questions – and it t like the national press are quite interested in it, so I’ll share my early thoughts.

The national press for example, the Daily Mail doing their usual Betteridge’s Law headline

https://www.dailymail.co.uk/news/article-10087671/EVERY-Ring-doorbell-customer-face-100-000-fine-landmark-ruling.html

NO.

Spoiler – this case does not provide a definitive answer to our issue.

Two important things to note

  1. This is a decision by a Circuit Judge so it is not an authority that would bind any other Courts – they might be referred to it as a matter of interest in how another Judge decided the issue but they are not obliged to follow it.
  2. The behaviour complained of here is pretty exceptional, and it may be hard to draw parallels with cases that aren’t so extreme.

That being said, let’s dive into it.

In this case, Dr Fairhurst sued a neighbour, Mr Woodward, for harassment nuisance and breach of data protection legislation about security cameras that Mr Woodward had installed. One of which was one of those high-tech doorbell security cameras , the particular model being “Ring” (which is the angle that the National Press are super interested in, and hence the title of this post)

In tests done for the purposes of the litigation, the Ring doorbell camera would routinely trigger when a person passed within 17 feet of the front door, and begin recording. It would record video footage and also make audio recordings of anyone having conversations within that distance, which is longer than the boundaries of the property and covers the street outside. (I think from later entries, the audio recording operates at a higher distance – i.e you wouldn’t get video footage of someone standing 17 feet away but you would get audio recording)

131.The Claimant’s pleaded case is that: images and audio files of the Claimant
are personal data within the meaning of Article 4(1) of the General Data
Protection Regulation 2016/679 (“the Regulations”); that the Cameras
collected such personal data, that the transmission to the Defendant’s phone

or computer or other device, the retention of any such images or sound on
such a device and their onward transmission to others (whether neighbours,
the police, or the cloud for storage) are processing of personal data within
the meaning of Article 4(2) of the Regulations; that the Defendant as the
person determining the purpose and means of that personal data is, and was
at all material times a data controller within the meaning of Article 4(3) of
the Regulations, and accordingly must comply with the principles set out in
Article 5(1) of the Regulations.

  1. I don’t think any of that analysis is disputed, and I so find. The question is
    whether the Defendant has processed such personal data lawfully and in
    accordance with the principles
  1. I note that the Information Commissioner has provided Guidance on the
    meaning of ‘transparently’ in which she says that “Transparent processing

    is about being clear, open and honest with people from the start about who
    you are, and how and why you use their personal data”. Given the extensive
    findings that I have made relating to the manner in which the Defendant
    sought to actively mislead the Claimant about how and whether the
    Cameras operated and what they captured I am satisfied that the Defendant
    has breached: the first principle as he cannot be said to have processed data
    fairly or in a transparent manner

That would seem, subject to the caveats I started with, to be quite significant in terms of covert recording. The action of making and keeping the recordings was considered by the Court to be data processing, and doing so covertly would be in breach of the duty under the General Data Protection Regulations that the processing must be transparent.

What about the ‘household use’ element?

Annoyingly for my purposes, the judgment doesn’t really get stuck into s21 (3) and if it applies – although given that the Court found that there were breaches under the DPA 2018, it must be implicit that the Court did not consider that it did (although i always prefer it to be explicit)

Here’s as close as we get, which is more an argument about whether the processing was legitimate rather than s21(3). (Growls to himself – I really would have liked the s21(3) issue to be properly ventilated and ruled on, even though this isn’t a binding authority. I’ve looked carefully and done a couple of searches and I can’t find s21 (3) mentioned – it isn’t in the summary of the relevant DPA law or as a defence. Could it really have been overlooked by everyone???)

134…..I consider that the balance
between the legitimate interests of the Defendant and the right of the

Claimant to privacy and a home life are met in relation to the processing of
video personal data from the Ring Doorbell, and I am so satisfied. That is
because any video personal data of the Claimant is likely to be collected
only incidentally as she walks past, unless the Claimant stands on the
Defendant’s door and rings his doorbell, and I consider that his legitimate
interest in protecting his home whether he is there or not are not overridden
by her right to avoid such incidental collection on a public street, albeit in
the vicinity of her home. However I consider the processing of audio
personal data from the Ring Doorbell to be problematic and I will return to
that

So the video data from the doorbell was okay, because unless the Claimant was actively on his property ringing his doorbell or walking past his home, you wouldn’t get video footage, and the Defendant’s interest in protecting his home outweighs that of the Claimant’s wish not to be filmed.

The driveway camera footage to protect his car from damage or theft was not.


I135. I consider that such interests are overridden by the Claimant’s right to
privacy in her own home, to leave from and return to her house and

entertain visitors without her video personal data being captured. Again, the
audio personal data collected and processed by means of this Driveway
Camera is even more problematic and detrimental than video data in my
opinion. For those reasons I am satisfied that the Defendant’s processing of
the Claimant’s personal data by means of the Driveway Camera is not
lawful

On the Ring doorbell audio footage

138…I am satisfied that the processing of such audio
data by the Defendant as data controller is not lawful. The extent of the
range means that personal data may be captured from people who are not
even aware that the device is there, or that it records and processes audio

personal data, or that it can do so from such a distance away, in breach of
the first principle. The Claimant has fallen into each of these categories
during the relevant time. The living individuals whose conversation it
captures may well be identifiable from the data itself or from other
information which can be obtained from the data controller particularly in a
case such as this where the Defendant knows and is familiar with his
neighbours and can probably identify many of them by voice alone, and
certainly identify them with both the audio and video data that these
devices capture.

The Court made orders for the removal of the cameras and ring doorbell, though asked for enquiries to be made as to whether the Ring doorbell could be installed in such a way to prevent audio recording. Damages are yet to be determined.

So no definitive answer I’m afraid, but I am aware that more specialist GDPR lawyers are looking at this case and talking about it and if I learn more, I’ll let you know.

There are some other gems in this judgment

26.

I found the Defendant Mr Woodard to be a very poor witness. He admitted
that some of his evidence was incorrect. Different accounts given at
different times contradicted each other. Some of it he changed in oral
evidence as he went along, as difficulties with his evidence were revealed
by Mr Phipps’ questioning. Much of his evidence was exaggerated. Some
of it is contradicted by contemporaneous documentation or correspondence.
Some of it was simply unbelievable. In several ways, I found him to be
untruthful. I can believe almost nothing that he tells the Court unless it is
supported by other evidence which is both credible and reliable, or the
inherent probabilities. Where his evidence is in direct conflict with that of
the Claimant and Dr Franich, I prefer their evidence

and a beautiful typo

34…He eventually accepted in cross-examination that the Driveway
Camera was in wife range, which makes the story he told about draping a
wire from one house to the other for the purposes only of set up, in my
judgment, entirely concocted to attempt to support his position that it was
never a functioning camera

VERY GRATEFUL TO JOHN GOSS on Twitter, who explained to me very nicely that s21(3) has been repealed and the appropriate law on household usage is now Article 2(2) GDPR (UK)

2.
This Regulation does not apply to—
(a)
the processing of personal data by an individual in the course of a purely personal or household activity;

So the substance is the same, the reference I gave was wrong.

Not a metaphorical car crash

Once in a while, you read a case and think “well, I’ve never seen THAT before” and this is one of them.

It is an international family law case, which isn’t really my bag, but basically a family broke up in Poland, mum came to UK with the children, dad applied to Court here to ask for her to be made to return to Poland. There are some specific factors which the Court can apply to say “no, not in this case”

So the argument was whether Article 13 of the Convention applied

The Court is not bound to return of the child if the person, institution or other body which opposes its return establishes that –


b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’

I’m being coy about the name of the case, because it rather gives away what is alleged to have happened. I’ll give it at the end.

There are all sorts of allegations of mistreatment and abuse within the case, but the stellar allegation is this one:-

On 28 July 2020 there was a serious incident in which the father crashed his car into an Opel Vivaro minibus in which the mother, the maternal grandmother and the children were travelling. His motive for acting in this way was, he says, to prevent the mother from removing the children from him without his consent.

Okay, you possibly weren’t expecting that. Let’s expand.

The mother’s case is that by the summer (when the twins were aged 4 and the older children will have been 10 and 8), against a background of abusive behaviour by the father, she realised that she needed to get out of the family home ‘for all our sakes’ even if just for a holiday. She sought help from her mother who hired a minibus with a driver and came to collect them while the father was at work. The mother says that she did not at that stage intend to leave permanently.
The father was alerted to the mother’s plans by his grandmother. He immediately left work and drove towards the home in his Audi car. While he was en route, he spotted the minibus and recognised that his family were inside it. Based upon an account given by him the day after the incident [F267], he then diverted his car via ‘a field closed to traffic’ (I assume this to be a grass area separating the two carriageways) and crashed his car into the minibus which was traveling in the opposite direction to him. In his account given on 29 July 2020 he maintained that his manoeuvre had been aimed at blocking the path of the minibus, not actually crashing into it (an explanation he continues to advance); he suggested that the driver of the minibus had increased his speed (an assertion not supported by any other evidence) and said that he had been acting under the influence of emotion and strong agitation as he feared losing contact with his children.
Included within the police disclosure is what appears to be a forensic analysis of the circumstances of the collision. It was estimated that at the time of the collision the father’s Audi was travelling at a speed of approximately 36 km/h (c.22.5 mph); the Opel minibus was travelling at a speed of approximately 54-58 km/h (c.34-36 mph). It was virtually a head-on collision. The front left part of the Audi (the driver’s side) collided with the front left part of the minibus. The minibus was caused to spin round to the right whereupon it crashed into a pillar on its other side. It sustained significant damage on both sides. The Audi, heavily damaged, spun round to the left following the collision.

Goodness. Well, after you crash your Audi into a minibus which your children were travelling in, you probably get a moment of clarity where the realisation of what you did comes into sharp focus.

Or not.

In the immediate aftermath of the crash, the father left his vehicle and made his way towards the minibus. After unsuccessfully attempting to open a damaged door on one side of the bus, he made his way to the other side and proceeded to open the opposite door. The mother recounts (and the father has not denied this) that the father then grabbed the mother by the arms and attempted to drag her out of the minibus. The occupants of the bus were all screaming, in a state of considerable distress as a result of the father’s actions.
According to the father, he opened the door in the immediate aftermath of the incident as he could hear one of the children shouting ‘Dad’ and wanted to check that he was ok. The father accepts that having opened the door he said to the mother words to the effect of ‘I will not let you steal my kids’. In a witness statement provided to the police, the driver of the minibus stated that the father was shouting at the two women in the bus; he could not hear what he was shouting as the children started to cry loudly. Another witness reported to the police that in the aftermath of the incident he spoke to the father who stated thathe had caused the traffic incident deliberately because his wife had once again tried to take his children’.

Insert gif of blonde-haired slowly blinking man here.

The minibus and the Audi both sustained serious damage in the incident.
The mother and the children suffered scratches and bruises from the crash. The mother’s arms were also bruised from the father’s attempts to drag her out. Z suffered a sore neck which was placed in a collar by the firefighters who attended the scene. One of the twins had bruises to his chest from the seatbelt. F had bruising under his eye and on his eye as a result of hitting the seat in front of him. The extent of F’s distress was such that, according to the mother, he had to see a psychologist for therapy. The maternal grandmother had a loss of feeling in a right arm caused by the airbag opening. None of the family, however, required hospital treatment. The mother recalls being so shaken that initially she could not speak. She was given pills by a doctor to help her calm down.
The results of a toxicology report later revealed that the father had been under the influence of amphetamines at the time of the crash.
The incident led to the father’s arrest and detention in prison. He was charged initially with an offence that did not include any reference to drug misuse. Following receipt of the toxicology report the charge was amended to include that as an ingredient of the offence. The full charge is set out at [F186] and is expressed in fairly lengthy terms. It includes that:

‘[the father], intentionally, foreseeing the possibility of a catastrophy (sic) in land traffic and consenting to its committing, brought about a catastrophy (sic) in land traffic endangering the life and health of numerous persons…’

The charge also refers to the father having ‘intentionally violated’ the traffic rules by driving under the influence of amphetamine, having caused an ‘intentional collision’ with minibus and having ‘intentionally damaged’ it.

The father remained in prison for approximately six months and was released on 21 January 2021. He did not challenge his conviction, only the sentence.

The father sought to persuade the Court that this was not a situation to which Article 13 applies, to which I can only say, it is somewhat difficult to imagine what would if this didn’t.

In my judgment, the July 2020 incident (and its aftermath) considered against the background of serious abuse which preceded it, results in the mother’s case satisfying Article 13(b) by some margin. I agree with Ms Jones’s submission that there are no protective measures which can be put in place which will sufficiently mitigate the risks.
In entirely endorse Ms Demery’s characterisation of the mother and the children having experienced a
terrifying ordeal’ as a result of the incident. As Ms Demery says, it is only through good fortune that the incident did not result in serious injuries to any of the passengers. The charge which the father faces (or, on Ms Guha’s case, of which he has been convicted) is that he acted intentionally, having forseen the possibility of a catastrophe, and that by his actions he endangered the life and health of his children. He continues to deny that he acted intentionally, but for these purposes I must assume that this was indeed the case. It is difficult, in my view, to fathom how any father could have acted with such reckless disregard for the safety of his own children knowing (as he did) that they were travelling in the minibus at the time; indeed, notwithstanding his use of amphetamines, it is difficult to understand how he could have overcome the ordinary human instinct to press on a brake pedal and/or steer away from danger, but instead use his vehicle as a battering ram against the oncoming minibus.
In my judgment (assuming that the charge he faces is established in full), the father’s actions in crashing into the minibus represent an act of coercive control at the top end of the scale. He was delivering a message to the mother that no matter what she attempted she could not leave his home with the children. If the father’s priority had been, as he asserts, to prevent the abduction of his children he could have turned his car around and followed the mother to her destination. A desire to prevent his children from being taken to stay with his mother-in-law does not, in my view, begin to explain his actions let alone justify them. His mindset at the time is demonstrated by his reaction to the crash: he expressed no remorse and no concern for the state of health of any of the occupants of the minibus; instead he proceeded to attempt to drag the mother from the vehicle, causing her further injury, shouting at her and making a remark which, in my view, was in the nature of a threat.
I entirely accept Ms Demery’s view that the incident has had a lasting impact upon the older children. In my judgment, it is likely also to have had a lasting impact upon the other occupants of the vehicle including the mother and the two younger children (one of whom sustained a seatbelt injury).

In addition to the risks that the father would perpetrate physical and psychological harm against the mother and the children (which I have described above), requiring the children to return to Poland at this juncture would, in my judgment, be highly destabilising for the family. I accept the mother’s description of the father as ‘a dangerous man who feels entitled to do just what he wants’, on the assumption that her account of events is true. I consider that the fears she expressed on 4 November 2020, prior to her departure from Poland, were justified and that were she now to return – in the run up to the December hearing – she would once again, be consumed by fear which she would be unable to conceal from the children. As Ms Demery has noted, for F, returning to Poland would mean “I would have to go back to the country where I have endured so much and experienced so much because of my stepfather”. Both of the older children have memories of the abuse they suffered in Poland; I agree with Ms Demery that F’s reasons for wanting to remain in England are ‘cogent’. The July incident, Ms Demery notes, has had a lasting impact upon the older children and in my view the same is likely to be true for the mother and the younger children. In my judgment it would be intolerable for the children to have to return to Poland in circumstances where the family would be living in a state of fear for their safety. The children are very vulnerable and have had disrupted upbringings in which they have been exposed to abuse on multiple occasions. They should not now be expected to tolerate being required to return to Poland in the circumstances I have described.
In all the circumstances, I have reached the conclusion that magnitude of the risks which the children would face upon a return coupled with the potential consequences for them were those risks to materialise are of such severity that they can be characterised as ‘grave’ within the meaning of Article 13(b). In my judgment, there is a grave risk that they would be exposed to both physical and psychological harm and that they would be placed in an intolerable situation.

I’m very grateful that nobody was more seriously harmed in the crash, and what a truly dreadful experience to have gone through.

The case is

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2688.html

K And M (Children), Re (Abduction: Grave Risk: Intentional Car Crash) [2021] EWHC 2688 (Fam) (14 September 2021)

Potentially life-saving treatment

This is a case decided by MacDonald J

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2676.html

An NHS Trust v D (A Minor : Out of Hours Application) 2021

D is 16 years old and living in Local Authority care. The Judge describes D as being ‘looked after’ and then in the same paragraph says that the Local Authority have parental responsibility for D. So we have to assume that the Local Authority have a Care Order or Interim Care Order for D, although that is not made explicit. D’s parents are not involved in her life (and to pre-empt questions, I don’t know from this judgment why this is or why D does not live with them)

“She reportedly took 16 tablets of 500mg of paracetamol at her care home at 0400am on the 4th October 2021. There was a long delay in presentation and she arrived in the department at 15:32. She refused investigations and she refused the antidote treatment for paracetamol toxicity. She was seen by the CAMHS team and was deemed to have capacity but they wanted to keep her in overnight to “cool off” and to reassess in the morning. The patient left the department at 20:00 and is back at her children’s home with her key worker and is refusing to come back.”

The NHS Trust made an application at 2.50am for D’s liberty to be restricted in that she would be taken to hospital and given treatment for this overdose.

Following D leaving hospital after refusing treatment, and as I have noted, the Trust submit that the local authority were less than helpful when contacted by the Trust, a duty solicitor for that local authority indicating that, notwithstanding the situation I have described above, no further action would be taken by the local authority save for observing D in the placement. I am conscious that the local authority is not represented before the court, but on the face of it this is an extraordinary position for a local authority with parental responsibility for a child to have taken in light of the level of concern expressed by D’s treating doctors.

We obviously don’t know whether the LA would dispute that, but it does seem extraordinary.

Looking at it just from the facts that we have, if the LA have a Care Order, they could use their powers under s33 to authorise the treatment, which would potentially be life-saving, without parental consent. It is clearly an emergency.

However, it becomes a little more complicated when dealing with a 16 year old who has refused treatment. If D had been unconscious, and the doctors wanted consent to treat her, then I would consider it wholly reasonable for the LA to have given that consent under section 33 of the Children Act 1989 in the emergency circumstances of the case.

Would section 33 allow the Local Authority to authorise the medical treatment where the 16 year old was not consenting and objecting to it, and where it would involve the 16 year old being forcibly taken to the hospital for treatment? On the wording of section 33, possibly. But of course, the action to be taken is a deprivation of the child’s liberty, and Local Authorities are only able to do that under the secure accommodation provisions of s25 of the Children Act 1989 or where the High Court has authorised it under the inherent jurisdiction. s25 doesn’t feel like a good fit here. This is not about the ACCOMMODATION being the only suitable place for D, it is about D being admitted to hospital for treatment.

So my gut feeling would be that the LA could not have consented to D being forcibly removed and moved to hospital for treatment, although they could have consented to the treatment itself. (Although they have duties to take D’s views into account on the latter, it would be possible to override them)

I think what I would probably have done is explained that to the Trust and lawyered up to get to the hearing to either support the Trust’s application or make my own application under the inherent jurisdiction for authorisation to deprive D of her liberty so that the treatment could be undertaken.

Having said that, an adult with capacity could in D’s position have refused treatment and discharged herself from hospital just as D has done, and the hospital/Court would need to have evidence to dislodge the presumption of capacity under the Mental Capacity Act 2005. The MCA doesn’t apply to people under 16, but D is OVER 16. And the MCA says specifically :-

(3)A lack of capacity cannot be established merely by reference to—

(a)a person’s age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

Which means that you cannot determine that D lacks capacity to make the decision that she does not want treatment even if that might mean pain, suffering or ultimately death BASED merely on her being 16 rather than older, OR that she’s taken what objectively seems like an unwise decision in taking so many paracetomol.

So I don’t think it is straightforward. I can perfectly see why the Court would make the decision authorising the forcible treatment of D, and I can also perfectly see why with a ticking clock and the Court dealing with it at 2.50am D ended up with nobody arguing against this action or the intrusion into her autonomy that it represents. The Court clearly considered it carefully. I can’t really imagine any Judge deciding the case any other way. If the time factor hadn’t been such an issue and if D had been represented and was giving cogent instructions that she did not want the treatment, it might have been a more difficult scenario but I think that the outcome would have been the same.


  1. Within this context, the following legal principles inform the discharge of the court’s duty:
  2. With respect to the question of competence, a child will be considered Gillick competent in respect of a decision concerning medical treatment if he or she has achieved sufficient understanding and intelligence to understand fully what is proposed (Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 FLR 224). With respect to children over the age of 16, the court has the power to override the decisions of a Gillick competent child in this context where it is in the child’s best interests for it to do so (see Re W (A Minor)(Consent to Medical Treatment) [1993] 1 FLR 1).
  3. Within the context of the foregoing legal principles, I accept Ms Khalique’s submission that in D’s case the balance falls overwhelmingly in favour of authorising treatment capable of saving her life, should such treatment be clinically indicated.
  4. As at 2.45am this morning the court has before it evidence that D may have taken an overdose of paracetamol that is potentially fatal if she does not receive treatment and evidence that the window for optimum treatment is closing rapidly. In light of the extreme urgency and the potentially fatal consequences for D if steps taken to treat her are not taken, I am satisfied that the orders sought by the Trust should be granted. Whilst I am conscious that I take this step in respect of D having heard only from the Trust, I am satisfied given the extreme urgency of the situation that every minute spent putting in place arrangements for D to be represented moves D further away from the treatment she required to avoid liver damage, or even death.
  5. Within this context, I am satisfied that the following factors demonstrate that the orders sought by the Trust are in D’s best interests:
  6. In the circumstances, I am satisfied that it is in D’s best interests to make the following orders:
  7. That is my judgment.

Empty children’s home

Another day, another High Court case about an extremely vulnerable child with no suitable accommodation. Honestly, i could write four of these posts a week.

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2593.html

Nottinghamshire County Council v LH (A child) (no 2) 2020


  1. On 23 September 2021 I refused to exercise the inherent jurisdiction to authorise the continued deprivation of the liberty of LT, a 12 year old child who was being confined in an acute psychiatric admission unit for adolescents. She does not have a psychiatric condition requiring hospitalisation. She is a looked after child but the local authority had not been able to find anywhere else in the whole country to accommodate her. Evidence before the court demonstrated that it was harmful to LT for her to remain on the unit. The only reason the local authority sought to keep her on the unit was that it had been unable to find any alternative placement. I had previously been prepared to authorise the deprivation of LT’s liberty on the unit whilst urgent efforts were made to find alternative accommodation but by 23 September 2021 LT had been on the unit for over a week. She had just come out of isolation (as a Covid-19 precautionary measure) and it was anticipated that this would, if anything, increase the distress to her. Still no alternative accommodation had been identified. I refer to my judgment Nottinghamshire County Council v LH, PT and LT 
    [2021] EWHC 2584 (Fam).

Really sadly, within the psychiatric unit, LT is by far the youngest patient and because of her huge needs she is being taunted by other patients as a result of the attention she gets from staff.

The Local Authority found a resource for her, which was an empty registered children’s home. They did not have staff with psychiatric training to staff it, so have had to hire and train staff specifically to care for LT.


The local authority’s plan now is to apply for a Secure Accommodation Order. However, according to evidence put before the court from Mr Edwards, Director of Youth Families and Social Work at the local authority, there are currently approximately 50 children nationally on a waiting list for secure accommodation and those with behaviours such as LT’s often remain towards the back of the queue. Hence, he advises, it is “highly unlikely that this will be a viable solution for LT.” Accordingly, as what Mr Edwards refers to as “the least bad immediate alternative available”, the local authority proposes to transfer LT to the W Children’s Home from Monday 27 September 2021. This is a registered children’s home which is currently empty after previous residents have departed. It can accommodate up to four children but for so long as LT is there, she will be the only resident. The staff on site are unqualified and have no experience of managing children who self-harm but the local authority plans to rely on agency nurses, using the same agency as currently provides nurses to work alongside the NHS staff to care for LT on the psychiatric unit. On handover, the Trust will provide advice and materials about managing LT to assist those caring for LT at the new placement.

They have done remarkably well to put this together, but it is a shameful state of affairs that in our country we don’t have something proper in place for all of the children like LT, and bespoke placements are having to be put together out of thin air. I don’t know what the solution is, but a starting point would be building units staffed by medically trained professionals aimed at managing and alleviating the problems of young people like LT – at present, they don’t fit well into adult psychiatric units or into children’s homes – we need specialised resources dedicated to helping these most troubled children.


  1. Mr Edwards says that the decisions he has now had to make in respect of LT are some of the most difficult he has had to make in his professional career of over thirty years. I fully acknowledge the extreme difficulties faced by all those involved in these decisions, and in caring for LT. This case demonstrates the consequences of the national shortage of secure and other suitable accommodation available for vulnerable children. It has caused avoidable harm to this child, anguish to her mother, stress for numerous professionals and carers, disruption to other vulnerable children and young persons, and avoidable expense to the NHS and the local authority. I direct that a copy of this judgment is provided to some of those who might be able to address the root cause of the problems this case demonstrates: the Children’s Commissioner for England; the Secretary of State for Education; the Minister for Children; the Chair of the Care Review; the Parliamentary Under Secretary of State in the Ministry of Justice, Lord Wolfson QC; the Chief Social Worker; and Ofsted. It will join a number of similar cases brought to their attention.

Sadly, the way the news cycle and political attention work, I’m afraid that it will take a real tragedy to open eyes to the desperate need for an urgent solution to these cases. Everyone involved in these cases is working tirelessly and under huge pressure to make sure that the tragedy does not involve the case they are working on, but it is no way to run a system.

Intercontinental telepathic love snails

Or “Snail mail”

It has been a while since this blog has given you something that is just weird and has no law implications, but as I am on leave this week, and I’ve learned about the Pasilalinic-sympathetic compass, I thought that I would like to share it with you.

In the mid 19th Century, a French occultist named Jacques-Toussaint Benoît was giving thought to the issue of communication over long distances. The telegraph had recently been invented, but the laying of transatlantic cables was proving arduous and the salt in seawater was rotting the cables. Something better needed to be invented, and Benoit was nothing if not inventive.

A hundred years earlier, some Rosicrucians had devised the system of the sympathetic alphabet – two people would have a portion of skin removed from one another’s arms, and transplanted onto the other, tattooing letters onto the new piece of skin, and considered that they could communicate remotely by pricking the desired letters on the tattooed portion, causing a sensation in the other person’s arm.

If you’re thinking – hmm, that sounds as though it might not actually work, buckle up buckaroo, because we’re just getting started.

Benoit’s starting point for creating a device that would allow two people to communicate over long distances was, naturally, the principle that once two snails have been in love they remain connected for life. Whatever happens to one snail would thus occur to the paired snail.

And of course, once you have thought about this principle, it is a small step to begin construction of a device involving twenty four snails, a ten foot scaffold, zinc bowls and copper sulphate. One person has one device, consisting of twenty four snails, each having mated with their pair that belongs to the other person’s device. (each snail corresponding to a letter of the alphabet – moving snail A on contraption one would cause snail A to be propelled on contraptation two – because once the snails have been in love, they are linked forever no matter what the distance, remember?), and so you could painstakingly spell out a message on what was effectively a giant snail typewriter. 24 rather than 26 because French was the language being used and they only use the letters W and K for words imported from other languages)

Benoit would need funding though, and for that he approached the owner of a gymnasium, Monsieur Triat, who I can only presume was blessed with the twin assets of being both solvent and gullible. Benoit told Triat that he would just need to acquire a few pieces of wood to make the invention work, and Triat allowed him to have free food and lodgings whilst the invention was perfected.

A year later, Triat became impatient (I’m not sure impatient is the mot juste there, it seems extraordinarily patient to have given this scheme more than 20 seconds ) and wanted to see the machine and have a demonstration.

Benoit initially stalled (hmmm, wonder why) but had to acquiesce and finally on 2nd October 1850 Benoit invited both Triat and a journalist Jules Alix to observe the machine and to demonstrate it. Benoit explained that at this point, he was in regular snail conversation with a collaborator in America, but for the purpose of this demonstration he had constructed two machines in the same room.

At one end of Benoit’s apartment rested a huge wooden frame, a large horizontal disc suspended beneath. In the disc were twenty-four holes, each containing a zinc dish lined with a cloth soaked in copper sulphate solution. The cloth was fixed by a copper blade, and in the dish, secured by glue, sat a living snail. Against each dish was written a letter of the alphabet. To transmit the letter, the operator would touch the snail in the dish, causing a sympathetic reaction in the corresponding snail in the other half of the apparatus – a device of identical construction at the other end of the room

Benoit explained that Triat would be at machine one, and would convey a word through the manipulation of the snails, and that Alix would be at the other. Triat asked if the machines could be separated perhaps through a curtain and Benoit explained that this was sadly not possible.

During the demonstration, to supervise closely and ensure that it was being done properly, Benoit stood very closely to the machines and walked between the two of them. Despite this less than perfect test condition, the word transmitted was still wrong.

Triat was very sceptical, but Alix wrote a glowing review for La Presse, even suggesting that this communication method, once refined, might even be worn by ladies as an accessory wrist band allowing them to communicate and look stylish – with 24 snails wrapped around their wrists.

On 27 October a glowing article appeared in La Presse: `…snails which have once been put in contact, are always in sympathetic communication. When separated, there disengages itself from them a species of fluid of which the earth is the conductor, which develops and unrolls, so to speak, like the almost invisible thread of the spider, [but] the thread of the escargotic fluid is invisible as completely and the pulsation along it as rapid as the electric fluid.’

Triat demanded a second demonstration, under properly strict conditions. It is almost as though he suspected that someone walking to and fro between the two devices could have just been conveying the word that was being transmitted though the medium of a whisper. Benoit agreed and a date was set.

But not kept. Benoit disappeared, and the Pasilalinic-sympathetic compass was never put into mass production.

During the 1871 barricades of Paris, Marquis Rochefort floated it as an idea for communication. He had previously rejected ideas such as ‘dropping hammers out of hot air balloons on our enemies’ and ‘release lions from the zoo to attack our enemies’ as outlandish, but something in the lovelorn telepathic snail telegram struck a chord in him.

There’s a very good episode on this on the Ridiculous History podcast, and also a great Atlas Obscura article, here

Psychic Snail Sex Couldn’t Replace the Telegraph, But One Frenchman Sure Tried – Atlas Obscura

and this one

CABINET / The Internet of Snails (cabinetmagazine.org)

“As shameful as this one is”

A case like this has been coming for a while. I’ve been writing for a long time about the crisis in welfare secure beds and the tendency as a result of chronic shortages in such beds for the High Court to be asked to approve placements exercising powers that are all but secure accommodation in name (and sometimes even greater ones) when the units are not Ofsted-approved for such secure accommodation.

We have finally reached a point where a High Court Judge, even faced with no other option for the child, decided that approval of the existing regime under inherent jurisdiction would be wrong, and indeed a breach of the child’s article 3 rights.

Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam) (14 July 2021) (bailii.org)

Judgments given by a court should be sober and measured. Superlatives should be avoided. It is likewise prudent that a judge carefully police a judgment for the presence of adjectives. However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child “as shameful as this one is”, Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement. But that is not a solution that can be countenanced in a civilised society. The test laid down by the law is not which is the lesser of two evils but what is in the child’s best interests having regard to the child’s welfare as the paramount consideration. The parens patriae inherent jurisdiction of the court is protective in nature. As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y’ current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility.

We know that the Supreme Court are to hear an appeal in relation to secure accommodation, Re T. Even if they are to go far further than I could envisage them doing and declare that the Government is breaching the article 3 rights of extremely vulnerable children by not providing sufficient welfare secure beds (and i really don’t think they will go that far), this isn’t a short-term fix. Even if they did that, and the Government accepted it and did something about it, planning, building, approving and staffing the twenty additional secure units that the system really needs is going to take years.

Why is demand for welfare secures so high? Well, in part because brand new concerns have arisen over the last ten years. Nobody was welfare securing children to protect from radicalisation, county lines or systematic grooming ten years ago. The problems with mental health and mental welfare of children has also increased considerably in that time. The favouring by units of criminal beds has also been a fairly recent phenomenon.

In looking at this case, I will describe some of Y’s problems first:-

“On 3 July 2021, Y attempted to strangle himself at the residential placement using a phone charger cable. Y was conveyed to the Emergency Department at the [named hospital] where he presented as agitated and combative on arrival. The history given at the Emergency Department was that care home staff had found Y distressed and threatening to kill himself. He had a screwdriver which he had used as a tool to self-harm and was blue in the face with a cord around his neck which they removed. Y was said to have had fought out against them and assaulted them by spitting and hitting them.

On arrival of the CAMHs practitioner at the emergency department Y was in full restraint with several police officers and staff. His legs were strapped together and his face covered with a guard to prevent him from spitting and biting. On the advice from the CAMHS practitioner, Y was given IV lorazepam following a discussion with the psychiatric consultant, Dr Amdan. Y was admitted to a paediatric ward.

The [named hospital] is not CQC registered to provide mental health care and does not have staff trained to provide physical restraint. During the course of the hearing Ms Davies on behalf of the hospital Trust reiterated that staff on the ward do not have the training or expertise or manage the challenging behaviour that is exhibited by Y and no training in the deployment of physical restraint techniques. Within this context, the local authority agreed to provide trained staff to undertake these tasks. Ms Davies contends however, that there have been difficulties with both the attendance of and the qualifications of the staff provided by the local authority. This has resulted in the Trust having to make frequent calls to the duty social worker in relation to the care provision for Y.

On 4 July 2021 at 3pm Y absconded from the ward following a further incident in which he had become aggressive and combative with staff. Y was recovered to the ward by police, social workers and security staff. He was returned to the ward in handcuffs. Upon removal of the handcuffs, Y crawled under the hospital bed and attempted to bring the bed mechanism down on himself. He was pulled out from under the bed by police and restrained on a mattress situated on the floor. The handcuffs were re-applied by the police at this point. Following this, Y had several incidents of holding his breath”

The current staffing ratio for Y is five to one. He is not able to have a proper bed, a pillow or a sheet. When he showers, the door to the shower has been removed, affording him no privacy. He is having regular intravenous tranquilsers administered, at the maximum dosage that doctors consider safe.

HE IS TWELVE YEARS OLD.

It is impossible to read any of this without feeling a deep sense of shame that this country has been allowing a damaged 12 year old boy to be treated in this way.

“HHJ Singleton QC extended the order authorising the deprivation of Y’ liberty on the hospital ward, the restrictions authorised comprising 5:1 supervision on the ward, the use of physical restraint and the use a fast acting tranquiliser administered intramuscularly if efforts to gain his co-operation proved impossible. HHJ Singleton QC expressly deprecated the use of handcuffs on Y as a method of restraint.

Y currently remains contained on the ward in a sectioned off area. The doors to the paediatric ward have been securely shut and the area cleared of all movable objects. The door to the shower in which he washes himself has been removed, and therefore Y has no privacy at all when showering or dealing with other aspects of his hygiene. He is at present sleeping on a mat on the floor and he is unable to have a pillow, or a sheet due to the risk of self-harm and suicide. Y is still being prescribed daily intra-muscular Olanzapine, which is an anti-psychotic, the hospital taking the view that without this chemical sedation Y’ behaviour would be simply unmanageable. Y does not socialise. In stark contrast to every other case of this nature that has recently come before this court (none of which involved placement on a hospital paediatric ward rather than in a residential setting), neither the evidence contained in the bundle nor the submissions made by the advocates identifies any positives with respect to Y current parlous situation, whether with respect to improvements in his behaviour, his relationships with staff or otherwise. His assaults on staff are frequent, violent and cause injuries to both Y and the staff.

The primary purpose of a paediatric hospital ward is to treat children, not to deprive them of their liberty by means of locked doors, sparse belongings and chemical restraint. There is now no clinical basis for Y to be on the hospital ward and he is medically ready for discharge. There is therefore also now no connection at all between purpose of the hospital ward on which Y is held and the deprivation of Y’ liberty. Within this context, Y currently remains contained on the ward in a sectioned off area that is not designed to restrict the liberty of a child but rather to provide medical treatment to children. The doors to the paediatric ward have been securely shut and the area cleared of all movable objects. Accordingly, not only is there no connection at all between purpose of the hospital ward on which Y is held and the deprivation of Y’ liberty, but the arrangements that are in place to restrict his liberty in that setting are, accordingly and necessarily, an entirely ad hoc arrangement that is not, and indeed can never be, designed to meet his needs.

The door to the shower in which Y washes himself has been removed, and therefore Y has no privacy at all when showering or dealing with other aspects of his hygiene. It must be beyond reasonable dispute that, whilst aimed at preventing him from harming himself, this is a grossly humiliating situation for a 12 year old child to be in and one that presents him with an invidious choice between embarrassment and the maintenance of personal hygiene. It would likewise appear that Y has no means of ensuring privacy on the ward when getting dressed and undressed. Added to this indignity, Y must at present sleep on a mat on the floor and he is unable to have a pillow, or a sheet due to the risk of self-harm and suicide. Y does not socialise. It is unclear on the evidence before the court how Y takes his meals or how he maintains any form of daily routine more generally. Once again, these ignominies have their roots in the fact that a paediatric hospital ward is simply not equipped to undertake the task that circumstance, and an acute lack of appropriate resources, has assigned to it.

I accept the submission of the Children’s Guardian that a further consequence of the paediatric hospital ward being a wholly inappropriate venue for the deprivation of Y’ liberty is that there is an increased risk that the restrictions authorised by the court as lawful risk being regularly exceeded in an attempt to manage Y in an inappropriate setting. There is indeed evidence that this has taken place in circumstances where, for example, Y has been deprived of a bed, pillow and blankets, where on occasion physical restraint is taking place by staff who are not properly trained and, whilst HHJ Singleton QC authorised the use of “fast acting tranquilisation” as a means of chemical restraint when efforts to gain Y’ consent fail, where the current regime of chemical restraint cleaves closer to that of constant sedation. This is not the result of malice or negligence but simply of an increasingly desperate attempt to contain Y in a situation that is not designed, in any way, for that purpose.

Further, and within this context, the fact that the hospital ward is a wholly inappropriate venue for the deprivation of Y’ liberty forces medical staff to step outside the normal safeguards that are put in place in that environment. As I have noted, Y is still being prescribed daily intra-muscular Olanzapine, which is an anti-psychotic, the hospital taking the view that without this chemical sedation Y’ behaviour would be simply unmanageable. However, as Dr SH has made clear, a medication plan is not in place nor set out for the Trust to follow, the Trust is not CQC registered to provide mental health services, paediatricians on the ward are not experienced at prescribing anti-psychotics and other psychiatric medication to patients and, in that context, the only guidance available is that provided by the Alder Hey medication protocol. All these factors in my judgment increase the risk to Y of being harmed by the restrictions that are in place.

In stark contrast to every other case of this nature that has come before this court, neither the evidence contained in the bundle nor the submissions made by the advocate identifies any positives with respect to Y current parlous situation, whether with respect to improvements in his behaviour, his relationships with staff or otherwise. His assaults on staff are frequent, violent and cause injuries to both Y and to the staff who are doing their utmost to care effectively for him. In this context, I accept the submission of Mr Jones that whilst the arrangements in cases such as Lancashire v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam) or Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam) were sub-optimal, and in certain respects inappropriate, Y’ current situation is orders of magnitude more severe having regard to the matters that I have set out above.

Having regard to the matters set out above, I cannot in good conscience conclude that the restrictions in respect of which the local authority seeks authorisation from the court are in Y’ best interests, having regard to Y’ welfare as my paramount consideration. Indeed, I consider that it would border on the obscene to use the protective parens patriae jurisdiction of the High Court to authorise Y’ current situation. I am further satisfied that this conclusion is not altered by the fact that, as at 12 noon yesterday, there was no alternative placement available capable of meeting Y’ needs. In this case, I consider that the current arrangements for Y are so inappropriate that they constitute a clear and continuing breach of his Art 5 rights. Within this context, the fact there is no alternative cannot by itself justify the continuation of those arrangements. All the evidence in this case points to the current placement being manifestly harmful to Y. Within that context, the absence of an alternative cannot render what is the single option available in Y’ best interests and hence lawful.

In circumstances where I am satisfied that the current arrangements for Y constitute a breach of his Art 5 rights, it is not necessary for me to go on to address the submission that Y’ Art 3 right not to be subjected to torture or to inhuman or degrading treatment or punishment has also been breached in this case. A given situation will cease to be in a child’s best interests long before that situation meets the criteria for a breach of Art 3 of the ECHR. However, I would observe that, whilst the threshold is a high one, there is considerable force in the argument that Y’s current situation as described above breaches Art 3 in circumstances where treatment is inhuman or degrading for the purposes of Art 3 if, to a seriously detrimental extent, it denies the most basic needs of any human being, particularly were Y’ current parlous situation allowed to persist for any longer.

The foregoing conclusions of course lead inexorably to a stark question. What will now happen to Y? The answer is that local authority simply must find him an alternative placement. Y is the subject of an interim care order and therefore a looked after child. Within this context, the local authority has a statutory duty to under Part III of the Children Act 1989 to provide accommodation for Y and to safeguard and promote his welfare whilst he is in its care. More widely, and again as made clear by Sir James Munby in in Re X (No 3) (A Child) [2017] EWHC 2036 at [36], Arts 2, 3 and 8 of the ECHR impose positive obligations on the State, in the form of both the local authority and the State itself. Art 2 contains a positive obligation on the State to take appropriate steps to safeguard the lives of those within its jurisdiction where the authorities know or ought to know of the existence of a real and immediate risk to life. Art 3 enshrines a positive obligation on the State to take steps to prevent treatment that is inhuman or degrading. Art 8 embodies a positive obligation on the State to adopt measures designed to secure respect for private and family life. Pursuant to s.6 of the Human Rights Act 1998, and within the foregoing context, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Within this context, the court has discharged its duty, applying the principles the law requires of it, to give its considered answer on the two questions that fall for determination on the local authority application. That answer is that it is not in Y’ best interests to authorise his continued deprivation of liberty on a paediatric ward. The court having discharged its duty, the obligation now falls on other arms of the State to take the steps required consequent upon the courts’ decision, having regard to mandatory duties imposed on the State by statute and by the international treaties to which the State is a contracting party.

CONCLUSION

For the reasons set out in my judgment, I decline to authorise the continued deprivation of liberty of Y on the paediatric ward at [the named hospital]. Given the conditions in which Y is currently deprived of his liberty, which I am satisfied breach Art 5 of the ECHR, it is simply not possible to conclude that the restrictions that are the subject of the local authority’s application are in his best interests, even where there is no alternative currently available for Y.

Judgments given by a court should be sober and measured. Superlatives should be avoided. It is likewise prudent that a judge carefully police a judgment for the presence of adjectives. However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child “as shameful as this one is”, Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement. But that is not a solution that can be countenanced in a civilised society. The test laid down by the law is not which is the lesser of two evils but what is in the child’s best interests having regard to the child’s welfare as the paramount consideration. The parens patriae inherent jurisdiction of the court is protective in nature. As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y’ current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility.

Once again, the difficulty in this case is that a child requires urgent assessment and therapeutic treatment for acute behavioural and emotional issues arising from past abuse within a restrictive clinical environment but no such placement is available. Once again, these difficulties are further exacerbated by the problems that arise when seeking to distinguish between psychiatric illness and the psychological impact of trauma for the purposes of the application of the domestic mental health legislation.”


  1. Two further matters call for comment. Whilst the focus of this court is, and has to be, on the welfare of Y, it cannot be ignored that the situation that has arisen in this case by reason of an acute lack of appropriate resources for vulnerable children in Y’ situation has impacted severely on many other children and families. In this case the absence of appropriate resources has resulted in many other children being denied planned surgery, being diverted to hospitals further from home at a time of illness and anxiety and in disruption to the paediatric care arrangements for an entire region of the United Kingdom. Within this context, the adverse impact of the lack of appropriate provision that the courts have to wrestle with week in and week out in cases of this nature is now also impacting on the health and welfare of children and families who have no involvement with the court system.
  2. Finally, I wish to make clear that nothing that I have said in this judgment constitutes a criticism of the doctors, nurses, social workers, police and other professionals who have been required to engage with Y. They have, I am satisfied on the evidence before the court, tried to do their best in a situation in which they should never have been placed. All those involved have done their level best in a situation that has bordered on the unmanageable. In so far as fault falls to be apportioned, it must settle on those who have not made the provision required to address the needs of highly vulnerable children such as Y.
  3. It is, once again, my intention to direct that a copy of this judgment is provided to the Children’s Commissioner for England; to Lord Wolfson of Tredegar QC, Parliamentary Under Secretary of State for Justice; to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education; to Josh MacAllister, Chair of the Review of Children’s Social Care; to Vicky Ford MP, Minister for Children; to Isabelle Trowler, the Chief Social Worker; and to Ofsted.
  4. That is my judgment.

What happens next for Y? Well, it isn’t at all clear. A proper secure unit, that has trained staff, if one can be found, a proper children’s psychiatric unit, if one will take him.

Y is probably the worst example that we’ve seen, but make no mistake. This is a nationwide crisis, and a crisis for which it is hard to find a fast solution. Specialist psychiatric children’s units that offer trained staff and trained support for children in crisis, regardless of whether their extreme behaviour emerges from a mental health condition or as a result of experienced trauma would be my suggestion, but that’s expensive, and won’t happen overnight – the units have to be planned (and believe me, no home owners are happy with the suggestion of planning permission for such units near their homes) and built, and staffed.

Something rotten in the state of hair strand testing?

There’s a decision reported on Bailii which was decided by the President of the Family Division.

Greater Manchester Police v Zuniga & Ors [2021] EWHC 1572 (Fam) (10 June 2021) (bailii.org)

It sounds very technical and dull – it was about what happens to evidence gathered in the family Courts if it is capable of being DNA tested (such as hair samples) when it goes to the police – who have various duties and responsibilities about this.

But far more importantly, it is about a lab based in Manchester who are under police investigation for falsifying the results of tests for alcohol and drugs – and that some 27,000 tests are under suspicion. A lot of this relates to criminal law cases. The suspicion is that in order to get commercial advantage and gain contracts with the police for their drug and alcohol testing, the lab cut corners – falsifying results and cutting and pasting results from one case into others.

The criminal investigation is ongoing, so we must be careful not to make conclusions that these allegations are proven, but one of the defendants has made admissions of a cover-up during two cases involving family Court where concerns arose and the Court was trying to get to the bottom of anomalous cases.

  1. The background to the case is an investigation begun in 2017 and led by GMP into data manipulation by the seven Respondents, who are the suspects in the case, at a forensic laboratory which, via two different companies consecutively operating at the laboratory, provided services to police forces for the purposes of identifying drug use. The forensics analysed hair, blood, and urine for quantities of illegal substances, and the results provided, some of which were falsified, were used in in criminal, family, coronial or employment cases.
  2. The investigation has uncovered 27,000 reports which appear to have been affected, and therefore the potential injustices which have occurred as a result of the data manipulation are many and serious. It is worth recording that an investigation of this scale, complexity, and irregularity is difficult and skilled work, which necessarily takes time.
  3. The alleged activity occurred between 2011 and 2017 at the same Manchester testing centre, the Hexagon Tower. Two companies were primarily involved, and the Defendants span both: Trimega Laboratories (“TL”) operated at the Hexagon Tower from 2009, and continued under that name (after the Ingemino Group bought TL in 2012) until they ceased trading in April 2014 and the company was liquidated by KPMG; Randox Testing Services (“RTS”), bought the equipment and methodology from TL upon its liquidation and operated at the Hexagon Tower from 2014 onwards.
  4. The Respondents are said to have engaged in data manipulation practices for the purposes of ensuring rapid accreditation by the regulator, UKAS, by which the company could provide its forensics services to the police forces, thereby gaining commercial advantage over competitors. The object was therefore the raise the value of the company by gaining a larger market share.
  5. This data manipulation dates back almost a decade and takes a variety of forms, including copying results and quality assurance data from one sample and pasting it into another, as well as manipulating quality controls and suitability tests, and falsifying identification of drugs and validation data.
  6. Against this background, the seven suspects have been served as Respondents in the case on the basis that they are affected by the order, following the Criminal Procedure Rules Part 47. None has chosen to appear to oppose the application.
  7. The alleged data manipulation first came to light in January 2017, when RTS contacted GMP following their discovery of data manipulation at Hexagon Tower. Both RTS and GMP began concurrent investigations, and RTS cooperated with GMP throughout. RTS discovered the erroneous results in the forensic data during a trial of a person accused of driving under the influence of drugs, in which the prosecution’s expert evidence was challenged and, upon the defence instructing an expert, the two experts were unable to agree due to data anomalies which undermined the reliability of the report from RTS. RTS investigated this and found that the anomalies were data duplication that could only have been carried out by a laboratory assistant with extensive knowledge of the system. Their investigation uncovered that the data manipulation had been ongoing since before they purchased the laboratory and equipment in 2014.
  8. GMP’s investigation also involves the cover up of data anomalies relating in particular to two family court cases. These cases are “the Welch case” and Bristol City Council v A & A and Others (2012): in Welch a woman contested the results from TL of hair testing for drugs, and the another forensic provider was employed to test her hair; in Bristol City Council, TL’s drugs testing was challenged by a woman whose children had been removed from her care on the basis of drugs use. In both cases TL’s tests were contradicted by newly instructed forensics providers, and TL acted defensively, possibly for the purposes of competition with the alternative forensic providers used in those cases. Bayliss admitted in police interview to involvement in a cover-up during these two cases. The anomalies in these cases were discovered at the same time as the sale of TL to Ingemino. If disclosed, the fact of the anomalies would have dramatically reduced the value of the sale. There is also investigation into what the senior management of TL knew of these cases at the time.

I wrote about the Bristol case at the time.

Hair we go again – or blip versus tip | suesspiciousminds

I’ve written before also about how unsatisfactory it is, given the huge amount of public money spent on drug and alcohol testing and the huge decisions that can be made as a result of the results, that we simply can’t get a straight answer on how reliable these tests are.

Help, it’s the care-hair bunch! | suesspiciousminds

(goddamn it, that piece was nine years ago – I’ve been yeeting on about this for nine years)

The decision of the President in this case is twofold – firstly all of the material held about the testing in the family cases under suspicion is going to go to the police and secondly, the family members involved are entitled to ask for that from the police and also get evidence from the police about what the concerns are that led to their tests being considered suspicious.

It isn’t clear to me whether the police will be contacting the alleged victims of these suspicious tests or whether it is for the victims themselves to chase this up. But if you did have drug tests conducted by Trimega using the Manchester labs between 2007 and 2017 you may want to contact your solicitors and see if anything can be done.

I’d really welcome this whole topic being properly cleaned up – we can’t have rival labs hiding behind commercial advantage and competition as a rationale for not being properly transparent about how accurate these tests are.

E-mail justice

This is a curious little appeal – I’m slightly surprised it went to an appeal rather than just got reconsidered at local level but it seems like the attempt to do that was rebuffed.

M (Children: Applications By Email) [2020] EWCA Civ 806 (28 May 2021) (bailii.org)

Basically, a Court had directed in care proceedings that there be a psychiatric assessment of the mother. The mother didn’t turn up for the appointment and the psychiatrist alerted everyone and offered a second appointment. Mother’s solicitors were asked why mum had not attended and they didn’t have instructions. The Guardian considered that the appointment should not be reoffered. The children’s solicitor, quite properly, notified the Court that there had been a slip in the timetable.

However, between draft 1 of the notification which was sent to the Court by email and it being actually sent, there was a development. The social worker informed the lawyers that the children’s grandmother had died a few days earlier and that of course the mother was devastated.

That really should have made everyone take stock and decide to notify the Court that the appointment was missed and that enquiries were going to be made as to whether a second appointment could be offered and once the impact on the timetable was known, the Court would be asked to consider matters.

Instead, the email went as drafted, without that key piece of information, but with a draft order for the Judge to approve. (Slightly oddly not the Judge dealing with the case but the Designated Family Judge).

Within 15 minutes of receipt of the email from the children’s solicitor, those representing the mother sent an email contacting the Court.

The Court made an order discharging the direction for a psychiatric assessment. Those representing the mother contacted the Court to ask this to be reconsidered and the Court said that the decision had been made and were standing by it.

So far as the court was concerned, the entire procedure consisted of three emails sent and received within a period of an hour and a quarter.

Hi, it looks like you’re lodging a draft order that isn’t actually agreed. Do you want to get it agreed ? YES / NO

The Court of Appeal in looking at this stressed that there are circumstances, such as the parties inviting the Court to consider a CONSENT ORDER to which everyone CONSENTS, where matters could be dealt with by way of email, but this was not a consent order and the email from the children’s solicitor had not even set out that some of the parties had an alternative view or were without instructions.

  1. Taking stock:

(1) There was, first and foremost, an obligation upon the mother’s solicitors to bring to the court’s attention a development that impacted on the timetable. The children’s solicitor was observing the ‘compliance order’ and following good practice by engaging with the other parties about this, and in drawing it to the attention of the court before a deadline was breached.
(2) However, the making of an application to discharge the order was evidently a step beyond what the compliance order required. It is far from clear why the Guardian considered that the assessment as a whole should be scrapped without some better understanding of the mother’s position. It is clear from the sequence of events that she formed her view before she knew of the mother’s recent personal difficulties, and that she did not revise it when that information was given by the local authority. There is no information about whether or not the children’s solicitor took the Guardian’s further instructions about making an application after that further information came to light.
(3) It is in any case unfortunate that the children’s solicitor’s message was not amended in the light of the information that became available after it was dictated and once it became clear that the application was opposed by the mother. The message to the court did not set out these matters as it should have done. Nor did it explain that on 7 April Dr D had offered the mother another appointment on 25 April.
(4) Further, an application made by email must confirm whether the proposed variation is agreed. The position of the other parties (the local authority, the children’s fathers and the uncle and aunt) was not stated, if indeed it was known at all to the Guardian and the children’s solicitor.
(5) By allowing requests to vary orders to be made by email, the court had used its power to dispense with the requirement for an application notice. In doing so, it had ordered that any such application was to be made to the allocated judge. We asked why this application had been made to Judge Williscroft, who is the Designated Family Judge and had had no previous dealings with the case, and not to District Judge Gillespie, the allocated judge. We were told that this is because the DFJ takes a close interest in the timetabling of cases in her area. That is as it should be, but it does not justify parties approaching a DFJ to make orders in cases allocated to other judges, unless there is some special reason why that should happen in a particular case.

The appeal was obviously allowed and directions made for the assessment to take place.

40. For these reasons, I conclude that the order was wrong and unjust for serious procedural irregularity: indeed, the error in the order was the direct result of the errors in the procedure. The appeal will be allowed and the order will be set aside. The overall circumstances speak in favour of a revision of the timetable, and not for remittal. The original order will revive, with revised dates and (because Dr D is no longer able to report in time) a different expert, who has been identified. The order will record that the mother has promised to attend her appointment and I know that those supporting her will help her to do that; if she fails without good reason, she can expect the order to be discharged. I hope she will be assessed, because even if the child cannot return to her care, the report will be of value in planning for their future, as identified in the District Judge’s original order.

Finally, I make these observations about the procedure for making applications without the filing of an application notice.

Rule 18 of the Family Procedure Rules 2010, which is in similar terms to rule 23 of the Civil Procedure Rules, concerns applications made within existing proceedings. The respondents to an application are the parties to the proceedings (rule 18.2). Rule 18.4 reads:

This framework allows the court to accept and consider applications made without a formal application notice and to make orders without a hearing. It is desirable, at a time when the courts are under considerable pressure of work and where remote case management hearings have become common, for these powers to be used flexibly in the interests of justice and, in the Family Court, in the interests of children. To this end, the court must distinguish applications that can appropriately be made without an application notice from applications that should, because of the importance of the issue or for some other reason, be made by formal notice. The fact that it has given a general permission for applications to be made by email obviously does not prevent it from requiring an application notice to be filed in a specific instance.

Similarly, the court must discriminate between those applications that require a hearing and those that do not. The default position is that there should be a hearing, as the court can only make an order without a hearing if it does not consider that a hearing would be appropriate. It should be on solid ground if it makes an order without a hearing when, as the rule contemplates, the parties agree that a hearing is not required, or where the order is agreed. It may also decide to dispense with a hearing in other circumstances, for example where the issue is not of particular importance, or where the proper order is obvious, or where the documents contain all the information and arguments and a hearing is unlikely to add much. There will be other reasons why an application can be fairly dealt with without hearing – it is all a matter of judgement.

The essential point is that, whatever form an application takes and whether or not there is a hearing, the same standards of procedural fairness apply. The fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny. On the contrary, a judge considering an application on the papers must be alert to ensure that the rules and orders of the court have been followed and that the process is as procedurally fair as if the parties were present in person.

Head-banging therapy

When I was at middle school, our deputy head announced that from that point on, at school discos, ‘head-banging’ was forbidden. She went on to explain how dangerous it was to bang your head on the floor repeatedly. This was one of the early moments in my life where I realised that adults are not infallible. (It’s particularly weird, looking back, because our school disco was run by the caretaker who owned only three records – Prince Charming, Stand and Deliver and Eye of the Tiger. We must have been head-banging to Eye of the Tiger. Also, frankly as none of us had long hair head-banging was utterly pointless )

Anyway, this case involves the welfare stage of a set of care proceedings, some devastating findings having been made at a fact finding stage by Keehan J.

K (Children) [2021] EWHC 1409 (Fam) (26 May 2021) (bailii.org)

Some of what Keehan J said about the parents included this: –

The mother and the father have serially lied to the court, to the social workers, to the children’s guardian and to every other professional with whom they have had contact, including the police and health professionals.

  1. The mother is the most egregious liar I have ever encountered. The father has also serially lied to the court, to the social workers and to the children’s guardian.

There was an abduction of the children during proceedings and a concealed pregnancy.

The President of the Family Division dealt with the welfare portion of the case

The Court instructed an expert, Dr Banks, to try to understand why the parents were locked into a pattern of denial of the findings and whether this pattern could be broken.

In oral evidence, Dr Banks said this:-

Because of the nature of the parents’ difficulties, and particularly the mother’s approach which is to push and talk so as to ‘bamboozle’ others, Dr Banks advised that the therapist needs to do, what he called, ‘head-banging’ therapy, so as to be directive with respect to each parent, rather than passive.

Dr Banks in his written report made these observations :-

  1. Dr Banks conducted three sessions with the mother and two with the father, each over a video link. With respect to the father, Dr Banks considered that there was a deficit in the father’s ability to integrate emotional and cognitive information in order to provide a sound conclusion. This deficit might lead to distortions in his presentation and to misunderstanding. The father is unlikely to understand the role of formal organisations and institutions and is unlikely to be able to balance competing priorities leading him to be ‘mono directional’ in his decision-making and choices. Dr Banks identified ‘a high level of denial and lack of insight as to the impact of the father’s overall behaviour on the outcome of the current proceedings.’ In short, the father did not consider that he had acted in a way that might demonstrate a lack of cooperation or deception. The father, in Dr Banks’ view, feigned helplessness and lack of understanding of the English legal process as an explanation; a claim that Dr Banks considered was ‘likely to have little foundation’.
  2. The father explained to Dr Banks that, although he had agreed with the court order requiring him not to have any contact with his wife in order to facilitate the rehabilitation of the two boys to his care, he took the view that the court had overstepped its boundaries in imposing this restriction, had not given him any explanation as to the reasons for it and that it was, therefore, an unfair request. He claimed that he had effectively agreed to the conditions under duress.
  3. Dr Banks found the father to be ‘particularly psychologically defended using high levels of denial and minimisation to protect him from feelings of guilt, shame and blame’, with regard to his involvement in the difficulties in the court process and the removal of the children. Importantly, Dr Banks advised ‘this process will ultimately inhibit the father’s capacity for change where he will find it difficult to manage future behaviour when not recognising that outcomes are a consequence of past behaviour.’ Further, Dr Banks considered that the father had difficulties in mentalising and emotionally appreciating his children’s experience and, when specifically asked about the impact on the children, the father gave more detail about the emotional impact on himself.
  4. In view of the father’s reliance upon an interpreter, Dr Banks decided that it was not appropriate to undertake psychometric testing of him.
  5. With respect to the mother, Dr Banks’ initial appraisal was:
  6. Dr Banks considered that the mother’s adult attachment style was motivated by fear (of the authorities) leading to strategies of withdrawal and escape, and ways of dealing with the perceived threat which would become incoherent, self defeating and non-productive.
  7. The mother is seen as by far the more dominant of the two parents within their relationship.
  8. During his sessions with the mother, Dr Banks saw evidence of false beliefs, and an underlying theme of anger towards professionals. There was also ‘a high degree of fragmentation and false innocence and blame with distorted episodes’ which indicated that, essentially, the mother has difficulty in integrating both emotional and cognitive information. The mother identified difficulties in her relationship with the father, and displayed anger with respect to his behaviour, as she alleges it, of making contact with other women. Whilst the mother accepted that she had ‘done wrong’, Dr Banks, despite pressing on more than one occasion, was unable to illicit more that minimal examples of this from her – for example accepting that she had made a false allegation against the father with regard to the original injury to R in May 2017.
  9. During the exercise of psychometric testing, the mother’s scores indicated a high level on the ‘Obsessive Compulsive Subscale’. Dr Banks advised that such individuals tend to be fairly rigid and follow their own personal guidelines for conduct in an inflexible manner, even when this may conflict with social norms. The mother also demonstrated elevated scores on the paranoia scale and the hyper-vigilance subscale. She demonstrated a markedly elevated score on the ‘dominance scale’. Such a score, Dr Banks advises, identifies an individual who is generally domineering and tends to have little tolerance for those who disagree with their plans and desires.
  10. In a further test designed to assess socially desirable responding, the mother’s score on the ‘self-deceptive enhancement scale’ was very much above average indicating, in Dr Banks’ view, that she shows ‘a form of self-enhancement best described as rigid overconfidence akin to narcissism’.
  11. More generally Dr Banks considered that the father exhibited passive aggressive characteristics of a type that would typically result in attempts to sabotage agreements or disrupt agreements that have been reached, while attempting to appear cooperative. It is particularly difficult to resolve the source of conflict within such individuals, due to it being denied.
  12. The mother, too, is seen by Dr Banks as having passive aggressive personality characteristics. He considers that ‘The mother is now faced with a situation where even with her back against the wall, she does not show good reflective qualities to consider alternative strategies to those that have clearly failed her.’ She has a poor reflective capacity, which may give some insight to explain why the children’s needs were not prioritised.
  13. Dr Banks considers that ‘individuals who show passive aggressive behaviour are highly manipulative and tend to avoid responsibility for their behaviour.’ He further (and importantly) concluded:
  14. Dr Banks found that both parents take the view that Keehan J ‘got it wrong’ and that the court process was flawed. Both parents ‘struggled to agree any point in the judgment’.
  15. Despite his appraisal, Dr Banks concluded:

The parents would benefit from a couples therapy approach which would need to take place with two family therapists who could work with the parents to help achieve an alteration in the parents’ perspectives of their behaviours. The approach here will need to be direct and challenging and certainly not a non-directive type approach, as this would only lead to both parents going round in circles and having their existing views confirmed.”
Dr Banks advised that a minimum of twenty sessions would be needed, but that this was within the children’s timescales in his opinion.

The Court had to consider whether to make the Care and Placement Orders sought by the Local Authority or whether to extend the proceedings to commence the ‘head-banging therapy’ recommended by Dr Banks. The President analysed the issue here

  1. Of particular note is Dr Banks opinion (set out at paragraph 35 above) that it would be very difficult to establish a cooperative agreement with the parents that would hold up, due to the high level of the parents’ defensive avoidance, their denial and their huge degree of psychological defendedness. This conclusion is entirely supported by the analysis offered by Dr Banks with respect to each parent. Both the psychological labels that he attributes to the various elements of what he has identified from the parents’ behaviour, and the, at times, striking evidence that he reports of their responses to him during his sessions, justify the application of terms such as ‘high level’ and ‘huge degree’. Yet, despite the coherence of his analysis and his negative conclusion as to the ability of the parents to enter into a sustainable working agreement, Dr Banks’ recommendation is that this couple could respond sufficiently to a single course of therapy to such a degree that his opinion as to their ability to abide by an agreement could change sufficiently for the authorities to trust them to work cooperatively in the future. With due respect to Dr Banks, that recommendation seems to be wholly at odds with, and not supported by, the body of his report.
  2. No matter how directive and robust a therapist may be, the task in hand, namely bringing about sufficient change to establish a situation where the parents can each be trusted not only to enter into, but to stick with, a working agreement with the social workers for the protection of their children, is a very complex and substantial one. Not only must the therapist seek to challenge and turn around a long-established element of the mother’s character, which is maintained by a high level of avoidant behaviour and denial, he or she must also address the difficulties that exist in the couple’s relationship and enhance the father’s ability to understand and resolve his own difficulties. In addition the therapist will be working with a couple for whom lies and deceit are second nature, and who are each in almost total denial that they have any problems that need to be resolved.
  3. Dr Banks advises, and I readily accept, that it is not necessary for parents to exhibit a significant degree of understanding or acceptance of the nature of their difficulties before embarking on therapy. But, where the issue is should the course that would otherwise be in the children’s interests be put on hold for months, there surely needs to be some basis for the court understanding and accepting that there is at least the potential for sufficient change to take place. Here, the description of the nature of the parents’ difficulties, the degree to which those difficulties have been seen to be entrenched over years and the absence of any indication from the parents that they even recognise that they have those difficulties, make it difficult to accept that a single course of couple therapy could provide a commensurate remedy.
  4. After reading his report and then hearing his oral evidence, I was therefore left in the position of understanding and accepting his analysis of the problems, but far less able to understand and accept that his recommendation for therapy offered a sustainable potential solution.

The President went on to look at the written evidence and the parents oral evidence,

  1. the court has the parents’ respective responses to the detailed findings of fact made by Keehan J. These can only be described as being wholly minimal and self-serving. In the mother’s case, once those elements which are indisputable (for example ‘the police came to the hospital’ and ‘by chance a nursing professional in America identified the mother and alerted the authorities’) are removed, the only statement which is a genuine acceptance of an adverse finding is that the parents colluded with each other to conceal the birth of Q and her presence in England. In the father’s case, the only matters of genuine acceptance are that he lied about events in May 2017 and that he never had any intention of being a sole carer for the two boys. It is of further note that the mother’s admission that the parents colluded together to conceal the birth of Q, is wholly at odds with the father’s assertion that he did not even know of the pregnancy until he was introduced to his baby daughter at the age of four months.
  2. Despite Keehan J’s express and detailed findings, and despite stating that they accept that the judge made those findings, the parents’ evidence at this hearing demonstrated that, far from accepting that the findings have been made and must form the basis of planning for the children’s future, they still deny many matters of significance and seek to establish alternative conclusions. This is particularly so in relation to the bruise on R’s eyebrow, the trip to Stranraer, the calling of police in December 2019 and the attempt to flee with Q via Gatwick Airport, but the reality is that (as the parsimonious response to the findings of fact demonstrates) this is their approach to any of the adverse findings save for the minimal matters that have now been admitted.

strikingly given the stage that the court process has reached, the identification of her problems by Dr Banks, and the proposal for therapy to address those problems, during her evidence in chief the mother volunteered a detailed account of church-based therapy. Her account was, even on its own basis, internally lacking in credibility. It was roundly denied by her husband, who had only attended a few early sessions, but had not found them helpful and had withdrawn. He considered that there were still significant difficulties in the couples relationship. Against his evidence, the mother’s account of a course of couple counselling for well over a year, totalling over 100 sessions, and which had resolved all the difficulties in their relationship can only be a blatant lie.

(If you are going to lie, at least get your stories straight)

The President reached this conclusion

  1. Once the parents’ evidence is brought into consideration, the prospect of therapy being able to achieve and maintain a sufficient change in each parent are, in my view, further reduced to a significant degree. The findings that I have now made as to there being nothing other than minimal change in the parents’ acceptance of past harmful behaviour, and their apparently undiminished ability to produce and develop new lies to this court, do not provide any basis at all for identifying that there is any prospect of change on the part of either of them (paragraphs 95 to 98).
  2. Neither parent accepts Dr Banks’ assessment of their individual problems; the mother simply does not see herself as Dr Banks sees her. Rather than receipt of the expert’s report providing a mirror that each parent can look into and gain some understanding of what now needs to be addressed, this potentially dynamic moment has come and gone without any hint of impact in terms of enhanced self-awareness, and with the parents’ dishonest behaviour presenting as firmly embedded as ever. One is driven to the conclusion that, when the parents say that they are willing to undergo therapy and will do whatever is necessary to establish that they can care for their children, they are simply saying what they perceive is necessary and doing no more than paying lip-service towards accepting that there is a need for therapy. It may be that they are not deliberately doing so. It may be that they are incapable of seeing the truth of what Keehan J has said about their past behaviour and what Dr Banks says about why they behaved as they did. Be that as it may, the result is that they have not demonstrated to this court that they genuinely understand why they need therapy.
  3. Taking this appraisal of the parents’ evidence and presentation in the court process into account alongside my concern that the prospect of success in therapy does not seem sustainable even on Dr Banks’ evidence because of the scale of the problems to be addressed, it is impossible to escape the conclusion that there is no realistic prospect of therapy producing sufficient enduring change of the scale and degree necessary to justify consideration of placement of the children in their care on the basis that it would then be sufficiently safe to do so.
  4. Given my conclusion, which is that, despite Dr Banks recommendation, the evidence does not establish that the parents’ problems might be sufficiently resolved through therapy, it is not strictly relevant to consider the question of an adjournment of the case for four months to monitor how the parents might engage with the therapist and establish a therapeutic relationship. Even if a positive report were received after four months, my conclusion that the degree of change that is needed to establish safe parenting is beyond the scope of the proposed therapy would still stand. Indeed to take four months even to reach that stage indicates just how much work would then need to be done in the months that followed, thereby stretching the time during which the children were, yet again, waiting for a permanent placement yet further.
  5. On the issue of capacity, therefore, my sad conclusion is that the current lack of capacity to provide sufficiently safe, stable and nurturing care for their children cannot be reversed by a single course of therapy, starting as it would, from a baseline where the parents simply do not accept that there is any problem that needs to be addressed

The Court went on to make Care and Placement Orders.

ICE CREAM – I thought part 2, but it turns out part 1

Three years ago, in the pre-Covid times which now seem like a lifetime ago and that if you watched TV footage from 2018 everyone would be wearing kipper ties and dressed in maroon and brown, Mostyn J published a judgment about an application to discharge a Care Order.

It was one of those judgments that made the press

Boy, 8, was taken off mum by social workers who said ‘she had not taken him for ice cream’ – Mirror Online

And the case itself

GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018) (bailii.org)

(which does indeed feature ice-cream’, but of course it was not the reason for the removal – but it was one of the only concrete examples of the mother failing to meet the child’s emotional needs that the social worker was able to give in evidence, and Mostyn J was perfectly right to be scathing about the weakness of that evidence)

Ms Tommason-James was asked to identify her best example of the mother failing to meet L’s emotional needs. Her response was that until prompted by the local authority mother had not spent sufficient one-to-one time with L and had failed on one occasion to take him out for an ice cream. This struck me as utterly insubstantial criticism, and indeed it must have struck the legal representatives of both the local authority and the guardian in the same way because this was not put to the mother in cross-examination by either of them. A further criticism in this vein was that the mother had failed to arrange for L’s hair to be cut in the way that he liked. Again, this is obviously inconsequential, and again it was not put to the mother in cross-examination. A yet further criticism was that on one occasion the mother allowed L into the house of Mr S, the father of A and K. The local authority’s case is that Mr S represents a risk to L, although this has not prevented them approving the placement of A and K with him. On the occasion in question the mother had gone up to Mr S’s house to get some money for A, and L was allowed to visit the downstairs lavatory while the mother was talking to Mr S outside the front door. How this is supposed to represent a failure by the mother to meet the physical or moral needs of L is completely beyond me. It does seem to suggest that objectivity and disinterested fairness is not being applied to the mother.

And I was SURE that I’d written about it, but I can’t find it. It had all the ingredients of something I would have written about – Mostyn J judgments are always worth a write-up, the ice-cream thing, the media coverage, a scathing attack on attachment theory. But I can’t find the piece, and I have to assume that I just didn’t do one.

The significance of the case, legally was this:-

In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests

 

and the judgment was also highly critical of attachment theory and expert evidence about attachment theory

First, the theory, which I suppose is an aspect of psychology, is not stated in the report to be the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct. Indeed, I asked the advocate for the guardian whether he was aware whether a student could undertake a degree in attachment theory, or otherwise study it at university or professionally. Mr Hussell was not able to answer my question. Therefore, it does not satisfy the first criterion for admissibility as expert evidence.
Second, the theory is only a theory. It might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers as a result of evolutionary pressures, since attachment behaviour would facilitate the infant’s survival in the face of dangers such as predation or exposure to the elements. Certainly, this was the view of John Bowlby, the psychologist, psychiatrist, and psychoanalyst and originator of the theory in the 1960s. It might be thought to be obvious that the better the quality of the care given by the primary caregiver the better the chance of the recipient of that care forming stable relationships later in life. However, it must also be recognised that some people who have received highly abusive care in childhood have developed into completely well-adjusted adults. Further, the central premise of the theory – that quality attachments depend on quality care from a primary caregiver – begins to fall down when you consider that plenty of children are brought up collectively (whether in a boarding school, a kibbutz or a village in Africa) and yet develop into perfectly normal and well-adjusted adults.
For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments.
In her executive summary Cathy Webley says:
“On balance, I feel that the risks to L of a return home at this stage are too high and that he should have the opportunity to consolidate the evident progress he is making in his settled foster placement. My conclusion may have been different if L’s foster placement was unsuitable or was in danger of disrupting. However that is not the case. L is happy, settled on making secure attachments in the way that his care plan was designed to achieve. L is more resilient than he was but he remains more vulnerable than most children. I would be concerned about disrupting him again and moving him into an uncertain future with his mother.”
This opinion is based on supposed expert evidence, but it seems to me to be no more than a standard welfare officer recommendation, and one that does not place any weight at all on the principle of proportionality, or on the right to respect for family life, as explained by me above, let alone on the positive duty of the local authority to take measures to achieve a reunification of the blood family. Indeed, it is noteworthy that on page 15 of her report the very first matter relied on by the independent social worker against the mother’s case is in these terms:

“L has been told he will be staying long-term with [the foster parents] and has made an emotional investment in his new family. He would undoubtedly find separation for his foster family, whom he has learnt to love and trust, distressing, even if he appeared outwardly happy.”
If L has been told that he will in effect be staying permanently with his foster parents then that would be a major dereliction from the positive duty imposed on the local authority to seek to take measures to reunify this family. I cannot see how this factor can be relied on first and foremost by the independent social worker.

I cannot say that this so-called expert evidence has assisted me in reaching the decision I must make.
In my judgment, in any future case where it is proposed that expert evidence of this nature is adduced I would expect the court to determine the application with the utmost rigour, and with the terms of this judgment at the forefront of its mind.

It sometimes feels as though the Court of Appeal have a To-Do list which includes ‘keep an eye out for any case that comes before us where we can overturn an old Mostyn J judgment that we disagree with’ – of course they don’t. I’m being snarky – but I’ve seen quite a few cases now where the Court of Appeal allow an appeal from a different Judge and use as their decision-making framework an explicit overruling of a legal principle set out in a Mostyn J case, and it is pretty rare to see that happen with other Judges.

However, here the Court of Appeal were hearing an appeal about an application to discharge a Care Order where the Judge at first instance had been taken to the Mostyn J decision and applied it.

TT (Children) [2021] EWCA Civ 742 (20 May 2021) (bailii.org)

The Court of Appeal say in the early part of the judgment, when explaining why the appeal had been given permission

The mother sought permission to appeal, which I granted in part on 25 March 2021. In doing so, I noted that it was doubtful that any of the grounds of appeal had a real prospect of success, but that there was a compelling reason for the appeal to be heard as it offered an opportunity for this court to consider the correctness of the decision in GM v Carmarthenshire County Council

The Court of Appeal with reference to Carmarthenshire said this:-

In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests. For the reasons given later in this judgment, these statements are not correct and should not be followed.

The reasons later begin at para 39

  1. I lastly turn to the decision in GM v Carmarthenshire. In that case a 5 year old child was taken into care in mid-2015 and a care order was made in February 2016. In August 2016, the child’s mother applied to discharge the care order. In November 2017, Mostyn J adjourned the application and directed that there should be a six month contact regime of a kind that he described as conventional in a private law dispute. At the final hearing in May 2018, by which time the child was 8¾ and had been with the foster carers for 2½ years, he granted the mother’s application. He described the local authority’s objections to the child returning to his family as inconsequential and trivial and he replaced the care order with a supervision order.
  2. The decision is clearly one that could have been taken on the basis of established principles, but Mostyn J instead approached s. 39 of the Act as if it was untrodden ground. At paragraphs 3 to 9 of his judgment, he developed a series of propositions based on In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, Re B, and the Strasbourg authorities. In the course of this, he observed that:
  3. In their submissions in the present case, Mr Taylor and Mr Lord agree that this analysis is incorrect. In brief, they note that it does not refer to previous authority on the subject of the discharge of care orders. They submit that it is misleading and unhelpful to suggest that “something close to” a threshold applies to decisions about the discharge of care orders. The construct of a ‘near-threshold’ is imprecise, does not fit into any statutory framework, and distracts from a full and balanced welfare evaluation and proportionality check. Care orders exist in a wide range of circumstances and the approach to applications to discharge must be broad and flexible. The implication that there is a presumption in favour of discharge in anything other than exceptional circumstances is not right. The overall analysis is not sustained by any of the six decisions cited above, indeed it conflicts with them.
  4. With respect to Mostyn J, I agree with these submissions. I would only repeat that the reference in paragraph 198 of Re B to a “very strict” test arises, as Baroness Hale stated, in cases involving the “severing of the relationship between parent and child”. In the great majority of cases where there is no plan for adoption, there will not be a severance of this kind, and references to a “very strict” test or to “nothing else will do” are not applicable to an application for a care order, still less on an application to discharge such a care order.
  5. I would also add that the irrelevance of thresholds to decisions under s. 39 is seen in ss. (5), which allows for the making of a supervision order without proof of threshold.

In relation to the comments made by Mostyn J about attachment theory begin at paragraph 36.

  1. An independent social worker instructed with the permission of the court, had provided a report that referred to the child’s attachments. Mostyn J was critical of this evidence (paragraphs 16-21), and he described attachment theory as “only a theory” and “a statement of the obvious”. At paragraph 17 he stated his understanding that attachment theory is not the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct and that it therefore does not qualify to be admitted as expert evidence, and he concluded:
  2. In making these observations, Mostyn J did not refer to other authority about attachment theory. In fact, the subject of attachment and status quo was considered in Re M’P-P (Children) [2015] EWCA Civ 584 at paragraphs 47-51. In that case, where a birth family was seeking to recover children from prospective adopters, McFarlane LJ stated:
  3. McFarlane LJ returned to the topic in Re W (A Child) [2016] EWCA 793, a case in which a child had been with foster carers who were interested in adopting:
  4. The issue of attachment theory does not directly feature in this appeal, but I refer to it because it was addressed in GM v Carmarthenshire. It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as a whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive s. 39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child. The decisions to which I have referred in the two preceding paragraphs make clear that the court has to give appropriate weight to all the relationships that are important to a child, and that there may be a role for expert advice about attachment in cases of difficulty. Insofar as the observations in GM v Carmarthenshire suggest otherwise, they cannot stand.

The test for determining discharge of care order applications is therefore reset to Re S 1995 – has the parent shown that the order for discharge is better for the child than continuing with the status quo.

“159. I am now going to turn to the relevant law. The long-established test I have to apply is within section 1 of the Children Act 1989, the paramountcy of the children’s welfare. This was confirmed, for example, in the early case of Re S [1995] 2 FLR 639, Waite LJ at 634 making it clear that a parent does not need to establish that the threshold criteria no longer exists. That decision was followed in Re C [2009] EWCA Civ 955 and it has not been doubted since.

  1. There is a burden on the applicant to show that the order – that is discharge – is better than not making the order. That follows from section 1(5) of the Children Act. It might be said that that is an evidential burden on the applicant. In the case of Re MD and TD [1994] FL 489 [sic – the citation is from Re S] it was said that “the previous findings of harm would be of marginal reference and historical interest only and the risk to be considered would normally focus on recent harm and appraisal of current risk”. Of course, every case is different and the extent to which a previous finding is historical in the sense of no longer relevant or less relevant will vary case by case.