RSS Feed

A stain on the reputation of the family justice system

 

There’s been legal chatter for a while about the issue of alleged perpetrators of domestic violence being able to cross-examine alleged victims.  There was a big press campaign, and our beloved Lord Chancellor got knee-jerked into issuing a ‘something will be done’ statement without actually getting any funding for it, which then got kicked into the long grass in the quest for strong and stable Government by calling a snap election.

Lucy Reed over at Pink Tape has written about it quite a lot, and well worth checking out Pink Tape if you don’t already read it.

Anyway, here is Hayden J’s pretty savage commentary when it arose in a case before him

A (A Minor : Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam) (19 May 2017)

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1195.html

  1. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).
  2. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.
  3. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.
  4. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.
  5. The iniquity of the situation was first highlighted 11 years ago by Roderick Wood J in H v L & R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162. It was reiterated in Re B (a child) (private law fact finding-unrepresented father), DVK [2014] EWHC (Fam). Cross examination by a perpetrator is prohibited by statute in the Crown Court, in recognition of its impact on victims and in order to facilitate fairness to both prosecution and defence. In Wood J’s case he called for ‘urgent attention’ to be given to the issue. This call was volubly repeated by Sir James Munby, President of the Family Division in Q v Q; Re B (a child); Re C (a child) [2014] EWFC 31 and again in his ‘View from the President’s Chambers (2016): Children and Vulnerable Witnesses: where are we?
  6. In that document the President highlighted the Women’s Aid Publication: Nineteen Child Homicides. I too would wish to emphasise it:
    1. “Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control.”

Commenting on this, the President asked ‘who could possibly disagree?’ The proposition, in my view, is redundant of any coherent contrary argument.

  1. I understand that there is a real will to address this issue but it has taken too long. No victim of abuse should ever again be required to be cross examined by their abuser in any Court, let alone in a Family Court where protection of children and the vulnerable is central to its ethos.

 

 

Damn…

 

For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

 

If Hayden J’s hat was in the ring for replacement of our current President at the end of his term, he may just have lined the brim with lead.  The MOJ tend to be squeamish about Judges getting too outspoken. Although I may be wrong and that only happens in Judge John Deed. ( I’m still quietly hoping for Mr Justice Peter Jackson as next El Presidente, although my chief preoccupation is worrying that we might be trading down for  [REDACTED REDACTED REDACTED] )

 

Ha ha, my hat will be easier to pick out of the ring than Hayden J’s… putative President Oddjob

 

 

Oh man, I’m now going to be thinking about Mr Justice Knick-Knack all day….  That and imagining Sir James Munby delivering his next Benmusa judgment with a large white Persian cat on his lap.

 

 

Failure to bury a child

 

 

 

Quick warning – this case is about a child who has died, and the issue in the case was disposal of the child’s cadaver. So it may be distressing or upsetting to some readers – I will do my best to treat the subject matter with gravity and sensitivity. There’s nothing intentionally detailed or gruesome within the piece, but obviously the central issue is upsetting.

 

Also, there’s a criminal trial pending, so please no speculation about the identity of the parents or what may or may not have happened to the child – nobody wants to run the risk of prejudicing a fair trial.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1083.html

Re K (A Child : deceased), Re [2017]

 

The child died in July 2016. The Coroner released the body in October 2016. In March 2017, the child had still not been buried and no arrangements had been made for a funeral. The child’s half-sibling had been involved in care proceedings and the Local Authority, having done all that they could to persuade the parents to make those funeral arrangements, sought permission from the Court to step in and arrange the funeral themselves.

 

 

 

 

 

 

 

 

5.It was common ground during the course of submissions that the starting point in establishing a jurisdictional basis for orders relating to the burial of a child is to be found in Buchanan v Milton [1999] 2 FLR 844 at 845/846 per Hale J, as she then was:

 

 

 

 

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson).”

 

 

  1. In Re JS (disposal of body) [2016] EWHC 2859 (Fam) Peter Jackson J observed:

 

 

 

 

“47. The law in relation to the disposition of a dead body emanates from the decision of Kay J in Williams v Williams [1882] LR 20 ChD 659, which establishes that a dead body is not property and therefore cannot be disposed of by will. The administrator or executor of the estate has the right to possession of (but no property in) the body and the duty to arrange for its proper disposal. The concept of ‘proper disposal’ is not defined, but it is to be noted that customs change over time. It was not until the end of the 19th century that cremation was recognised as lawful in the United Kingdom, and it was in due course regulated by the Cremation Act 1902. Nowadays cremation is chosen in about 3 out of 4 cases in this country.

 

 

  1. Thus, in English law, there is no right to dictate the treatment of one’s body after death. This is so regardless of testamentary capacity or religion. The wishes of the deceased are relevant, perhaps highly so, but are not determinative and cannot bind third parties. For discussion of the impact of the European Convention on Human Rights on the common law in this respect, see Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB) and Ibuna v Arroyo [2012] EWHC 428 (Ch).”

 

 

[The Justice Peter Jackson case is one you might recall – where the teenaged child wanted to be cryogenically frozen after death, mum supported it and dad wasn’t keen. It was unusual.]

Whilst there is no legal ownership of a cadaver, the general principle is that the immediate family of the deceased have responsibility for arranging the funeral. What happens where, as here, the family do not take any action?

 

 

 

In Anstey v Mundle [2016] EWHC 1073 (Ch) Mr Jonathon Klein sitting as Deputy Judge of the Chancery Division concluded that the Court could not determine or direct where or how the deceased would be buried, but could declare who had the power and duty to bury the deceased, among the various contending parties. The judge adopted the reasoning of Ms Proudman QC, as she then was, in Hartshorne v Gardner [2008] EWHC 3675 (Ch).

 

“24. …In that case, Ms Sonia Proudman QC, sitting as a Deputy High Court Judge, was invited to exercise the court’s inherent jurisdiction to direct to whom the deceased’s body should be released for the purposes of its burial. The judge accepted, as Hart J had apparently done before her, that the court has such an inherent jurisdiction. In that case, the claimant and the defendant were equally entitled to a grant of representation. It is perhaps notable that the judge did not exercise any section 116 jurisdiction. In that case, the judge identified factors which were relevant to the exercise of the court’s jurisdiction, although she did not seek to limit the relevant factors to those she listed.

 

  1. The factors she identified were: one, the deceased’s wishes; two, the reasonable requirements and wishes of the family who are left to grieve; three, the location with which the deceased was most closely connected; and, four, to quote the judgment, “the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay”. I have concluded that in this case those are also the relevant factors which I should consider.”

10.Mr Sharp contends that the factors identified at points two and four above are plainly relevant here. I agree. I would also stress that I consider proper respect and decency is not presently being shown to K’s body. I would also emphasise that there has been wholly unacceptable delay. I note that the Births and Deaths Regulations 1987 Reg 51(2) provides that if the registrar learns (after a delay of 14 days from the date on which he should have received notification of the date, place and means of disposal of the body) that the body has not been disposed of he must, unless he is informed that the body is being held for the purposes of the Human Tissue Act 2004, report the matter to the officer responsible for matters of environmental health for the district in which the body is lying. This, to my mind, indicates that as a matter of public policy, a body should be disposed of with due dispatch.

 

 

This next statutory provision arises more often with deaths in the elderly community with those who have no relatives, and is for public health grounds

Section 46(1) of the Public Health (Control of Disease) Act 1984 provides:

 

 

 

 

“It shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority.”

 

 

 

Whilst this does not directly illuminate any of the issues that fall to be considered here it does indicate the general promotion of respect and decency for a body and the obligation for it to be disposed of with proper dispatch that is reflected in the case law that I have set out above

 

The Court here was asked whether under the inherent jurisdiction, the Court could authorise for the Local Authority to undertake the burial.

 

the concept of ‘a wise parent acting for the true interests of the [particular] child’ is integral to both the parens patriae and the inherent jurisdiction. It is, to my mind, axiomatic that a ‘wise parent’ would attend to the burial of a child. Thus having regard to the historical base and underlying philosophy of the inherent jurisdiction and the case law to which Mr Sharp has drawn my attention, I am satisfied that, pursuant to the inherent jurisdictional powers of the High court, I can authorise the Local Authority to make arrangements for the disposal of K’s body by way of burial or cremation, making the necessary funeral arrangements and if the body be cremated the disposal of the deceased remains. There are pressing practical reasons why this requires to be attended to expeditiously which are too distressing to incorporate within this judgment and need not be.

 

One of the obvious things that I wondered was whether there was some forensic reason connected with the criminal trial (i.e a second opinion autopsy or similar exercise) why the parents had been reluctant.

 

The Court was appraised of a letter from father’s counsel in criminal proceedings raising just that suggestion, but this is confused rather because there were representations from his criminal solicitor to a rather different effect. In any event, the Court was not satisfied that arranging a funeral would interfere with the parents right to a fair criminal trial.

In a postscript, the Court notes that the funeral took place and thankfully both parents attended

Forensic incontinence

 

At the present time, there are few smaller pockets of intense joy than visiting Bailii and seeing the name Benmusa appear in the new cases list.

If you’ve not been keeping up, Ms Benmusa believes (without the tiresome business of evidence or justification) that she is the secret illegitimate daughter of Princess Margaret and that opening up Princess Margaret’s will is the final (or indeed first) piece of the puzzle. The only way she can do that is to make an application to the increasingly exasperated and creatively irritated President of the Family Division. The last time, she produced a death certificate from someone she claimed to be her maternal aunt (who would thus be Princess Margaret’s older sister… do you see the inherent problem with that? And added to that, said maternal aunt was born at a time when Princess Margaret’s father would have been ten and more interested in whatever the turn of the twentieth century equivalent of Transformers were than procreation)

 

This time round, Ms Benmusa’s killer argument is that the sole piece of evidence that she herself produced was ‘a flake’  (which we assume to mean ‘fake’), which is an impressive trump card to pull out. It is the legal equivalent of tripping over your feet and falling flat on your face and trying to recover the situation by shouting loudly “I meant to do that”

This brilliant argument did not, needless to say, impress the President, who was somewhat mournful (yet comedically so) about the fact that the remainder of his, and indeed all succeeding Presidents, was going to be taken up with Benmusa applications and that there wasn’t even a Court fee to be paid. The Court staff HAD to issue the applications even if they had no merit and the President would have to consider them. There was no value in declaring Ms Benmusa a vexatious litigant as that would just lead to a string of leave applications.

How was the President to stop this ‘forensic incontinence’?    (and with that line, the President has set a high bar in my new Pithiest Judicial Remark of the Year contest.  You’ll all be stealing that.)

http://www.bailii.org/ew/cases/EWHC/Fam/2017/966.html

Ms Benmusa’s wasting of the court’s time – a phrase I use advisedly and deliberately – has been facilitated by the surprising fact that an application of the kind made by Ms Benmusa is, rara avis, one that can be made without payment of any court fee: see Tristram and Coote’s Probate Practice, ed 31, paras 25.234 and 25.265. I cannot help thinking that even someone like Ms Benmusa might be deterred from such forensic incontinence if she had to pay a fee.

What is to be done? As a matter of high constitutional principle (1) court staff cannot refuse to issue process – such a decision can be taken only by a judge – and (2) a judge cannot make an order absolutely barring access to the court; even a vexatious litigant so declared, or a litigant subject to a civil restraint order or a Grepe v Loam order (see Grepe v Loam (1887) 37 ChD 168) retains the right to apply to a judge for permission to bring proceedings. So, there is no kind of order I can properly make to prevent Ms Benmusa continuing to bombard the court with further nonsensical applications which will have to be put before a judge. What I can do, and this is what I propose to do, is to direct that if any further application is received from Ms Benmusa it is, before being issued, to be put before the President of the Family Division who can then either direct, if appropriate, that the application is, by order of the President of the Family Division, to be returned, unissued, to Ms Benmua, or direct, if appropriate, that the application is to be issued, whereupon it can then be considered by the President of the Family Division in the usual way.

 

Awesome – one individual has effectively just got their own Presidential Practice direction.

 

I shall be sad to see an end to the Benmusa litigation – the President clearly has greater control over his curiousity than I would have – I’d have opened up the will and had a peek and told the world that there was no secret confession about ANY secret illegitimate children in there. But I guess those who believe would have just written that off as part of the cover-up.

 

 

(*Also kudos to the President for using rara avis, one of the few Latin phrases that I know – it means ‘that rare bird’ or in this context ‘very unusually’ )

Bone marrow transplants and struck off doctors

 

 

 

 

This is a very peculiar Court of Protection case, decided by the President.  Very peculiar is a massive understatement, to be frank.

SW, Re [2017] EWCOP 7 (12 April 2017)

http://www.bailii.org/ew/cases/EWCOP/2017/7.html

 

As the acronyms are a bit confusing, I’ll give us a cast list

 

 

SAN – a man who has cancer. It is said that he needs a bone marrow transplant to save his life, as a result of this.

 

SW – SAN’s adopted sister, and a woman about whom it is alleged lacks capacity to make decisions in her own right.

 

Son – the son of SW, who does have capacity, and who applied to Court for a declaration to be made that SW undergo surgery in order to donate bone marrow to SAN and that the surgery be undertaken by the next two members of our cast.

Dr Waghorn – a surgeon, who coincidentally is the husband of SW and the father of Son. He has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

Dr Jooste – another surgeon – a family friend and colleague of Dr Waghorn. He too has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

 

The intention is that Dr Waghorn and/or Dr Jooste would carry out the transplant surgery.  By the way, don’t assume that SAN is keen on having this surgery. Or even that Son, Dr Waghorn or Dr Jooste have recently asked him if he wants it or consents to it.

 

 

Are you a dreadful cynical hard-bitten creature? Are your internal alarm bells going off loudly and causing dogs in your vicinity to bark furiously at the hellish clamour that was produced by the ‘relinquished his membership with the GMC’ bit?

 

 

This is the size of dog that is proportionate to how loudly my ‘WARNING’ alarm bell is ringing

 

(If Amazon suddenly get a spike in DVD orders for that film, I should get a cut. If you haven’t seen it,     ch-ch-ch-ch-check it out)

The Judge explored that a little further

 

6.In fact, both Dr Waghorn and Dr Jooste have had their names erased from the Medical Register following determinations by different Fitness to Practise Panels of the Medical Practitioners Tribunal Service, the one, in the case of Dr Waghorn, on 26 July 2013 and the other, in the case of Dr Jooste, on 17 February 2014. In each case the Panel’s findings make for very disturbing reading.

 

 

7.In relation to Dr Waghorn the Panel said this

 

“The Panel accepts that the matters before it relating to patient care arise from the treatment of one patient. However, they represent such a wide-ranging and serious set of clinical failings and such a cavalier and uncaring approach to patient safety that, even viewed in isolation, they demonstrate misconduct that is fundamentally incompatible with the practice of medicine. That misconduct is compounded by the fact that it occurred with foreknowledge of the wholly inadequate conditions under which Patient A was to be treated and it involved the criminal offence of carrying on a hospital without registration with the CQC. The misconduct is also exacerbated by Dr Waghorn’s breaches of the conditions that had been put in place to prevent any repetition and by his dishonesty in trying to disguise the extent of his subsequent work at the same clinic.”

 

In fact, as appears from the Panel’s determination, Dr Waghorn had been convicted at the City of Westminster Magistrates’ Court on 9 June 2011 of an offence contrary to section 11(1) of the Care Standards Act 2000 of carrying on an Independent Hospital without being registered in respect of it under Part II of the Act.

8.In relation to Dr Jooste the Panel said this:

 

 

 

“Dr Jooste is a risk to patient safety …

 

The Panel also considers that there is a risk to patient safety in Dr Jooste’s unwillingness to accept or comply with the authority of his regulator, in that he seems not to acknowledge any restriction or control on his practice and will not be called to account. Dr Jooste has behaved in an outrageous manner in his conduct towards the Interim Orders Panel and witnesses and in the entirely unmeritorious applications he has made to the High Court.

 

The Panel has received no evidence of any mitigating factors …

 

The panel has concluded that suspension would be wholly inadequate to mark the seriousness of Dr Jooste’s misconduct or to protect public confidence in the profession.

 

… The Panel has rarely encountered a doctor to whom so many of the indicative criteria for erasure apply. In short, Dr Jooste’s misconduct is fundamentally incompatible with his continued registration as a doctor.”

 

 

What is your prediction, at this point, as to whether the President is going to allow two doctors with this record to perform surgery on a woman with no capacity (who happens to be the wife of one of them…) ?

 

Yeah, me too.

 

To echo erstwhile comedian and labelled-welly-wearer Jimmy Cricket, come here, there’s more

 

9.As appears from his application form and the attached Annex E, the son made the application as SW’s attorney under a Lasting Power of Attorney (Health and Welfare) purportedly executed by SW on 18 October 2014 and registered on 9 January 2015. He had also been appointed SW’s attorney under a Lasting Power of Attorney (Property and Financial Affairs) purportedly executed by SW and registered on 17 June 2015. SW’s signature on the first of these documents had been witnessed by Dr Waghorn. The certificate declaring that SW understood what she was doing and was not being pressurised was given by Dr Jooste on 23 October 2014, who described himself as SW’s “friend for 10 years.” Both Dr Waghorn and Dr Jooste were described as “Dr” though each had by then been struck off.

 

There had also been litigation in the Court of Protection involving not SW as the vulnerable person but SAN

On 8 December 2014, Newton J gave judgment in the Court of Protection in proceedings (COP12599814) relating to SAN and the proposed treatment of his condition, in which Dr Waghorn appeared on behalf of SAN apparently pursuant to a lasting Power of Attorney (Health and Welfare) granted on 5 September 2013.

 

 

11.So far as material for present purposes, what Newton J said was this:

 

 

 

“… in order for the Court to exercise jurisdiction, in the Court of Protection, there has to be evidence that the patient does not have capacity …

 

The short [point] here is that all the evidence, in fact, points the other way. In fact there is absolutely no evidence that he lacks capacity at all, indeed quite the reverse. My attention has been drawn to the letter dated 16th October 2014 from Dr Bray which makes it clear that Dr Hunter, who is the consultant haematologist who is currently treating [SAN], is sure that he has full capacity regarding the decisions concerning his own health, but did not wish to pursue those other treatments.

 

Enquiries both of the insurers, and the legal advice by the medical group confirm that [SAN] has capacity, there is therefore no need for any best interests decision involving his power of attorney. In fact, Dr Bray spoke to [SAN] and he made it very clear that he did not wish for this matter to be pursued at that time and would like things left as they were. That point of view was reiterated by [SAN] himself as recently as Thursday of last week, when enquiries were made on behalf of NHS England. He made it plain that he was currently in remission, that he did not wish for the treatment to be pursued, and that he did not wish there to be court action.

 

Dr Waghorn feels that that very acutely, not least because of his expertise as a doctor, but also I have no doubt because of his concern and affection for his brother-in-law, he is deeply anxious that his brother-in-law simply does not grasp the full effect and indeed understanding of (A) his illness, and (B) what may be done to alleviate or assist him. And that is a point to which Dr Waghorn has repeatedly returned. But, counsel has pointed out, it seems to me correctly that that is for those are dealing with matters or treatment, and it is not for me in arrangement without first being able to establish lack of capacity …

 

It is a short point. As I explained to Dr Waghorn, in order for the Court to deal with the matter I have to have jurisdiction: there is no reason to believe, that he does not have capacity, as the lawyers or doctors understand it. His own treating clinician believes that he has capacity, she having treated him for some time. It is clear, as I understand the evidence, that he has consented to and understands his medical condition and the treatment options, as is plain from the papers. [SAN] himself does not agree that he lacks capacity: he believes that he has capacity to make decisions about his medical treatment and does not, in fact, agree with this application being made. The practitioner who spoke to him as recently as last week also considered, that he also did not lack capacity.

 

Therefore, whilst I understand the position in which Dr Waghorn has found himself, in my judgment I do not think, and indeed I am entirely satisfied that I do not have the jurisdiction to make any decisions in relation to [SAN’s] medical condition and treatment. I have no jurisdiction because there is no evidence that he does not have capacity, even on an interim basis (indeed quite the contrary).”

 

A company then sought to judicially review the NHS decision in this case not to allow surgery. Coincidentally, two directors of that company were Dr Waghorn and Dr Jooste. That application was dismissed on 9 June 2015 by Hayden J as being “totally without merit.” The judge observed that “The claim is at best vexatious, nor is it presented in any coherent or logical manner.”

The President remarks :-

13.There is a common thread to all three sets of proceedings, the purpose in each case being to obtain from the court relief facilitating or enabling Dr Waghorn and/or Dr Jooste to carry out an allogeneic bone marrow transplant from SW to SAN.

 

Dr Waghorn sought to involve the Anthony Nolan charity as interveners. Unsurprisingly, they declined. In much the same way that I would decline an invitation to “Tequilla-Fueled Sword Swallowing for Beginners, followed by candlelight dinner with Katie Hopkins and Eric Pickles”

 

 

 

15.Dr Waghorn sought to enlist the interest, and indeed involvement as intervenor in the present proceedings, of the well-known Anthony Nolan charity. On 28 February 2017 he received this stinging rebuff:

 

 

 

“… I would like to underline that we do not want to be involved in this case.

[Almost word for word what I said to Katie and Eric, btw. Well, actually, my response had certain rhyming qualities with the description of these two doctors in the title of the blog post…]

 

Anthony Nolan’s position is that allogeneic stem cell transplantation should be provided by registered specialist transplant physicians in an accredited NHS or accredited private transplant centre setting.

 

As such we do not want to be involved in this case in any way.

 

Please do not contact us again about this case.”

 

Dr Waghorn’s riposte was to threaten the writer of that letter with a subpoena to attend the hearing on 3 March 2017 – a threat which appears not to have been carried through.

 

 

The Judge then considers the position of SW, noting that the evidence as to her capacity or lack thereof was rather deficient. Her IQ was now around 78, having been previously about 90. That isn’t of itself, suggestive of a lack of capacity.

 

25.Quite apart from the issue of SW’s capacity, there are three particularly striking features of this application:

 

 

 

 

  1. i) First, there appears to have been, so far as I can see, and I pressed the son on this point, no discussion or consultation with SW about this application. I was told nothing about her wishes and feelings. What are they? More fundamentally, there seems to have been a wholesale failure to have regard to the fundamentally important principle in section 4(4) of the 2005 Act, requiring, “so far as reasonably practicable, [a decision-maker to] permit and encourage [SW] to participate, or to improve [her] ability to participate, as fully as possible in any act done for [her] and any decision affecting [her].”

 

  1. ii) Secondly, there appears likewise to have been no discussion or consultation with SAN about his wishes – a particularly egregious omission given everything Newton J had said as recently as December 2014. All the son could say, in answer to my probing, was words to the effect that ‘obviously he will agree because no-one wants to die.‘ Even as a general proposition this is not without its difficulties; in the present case it does not begin to address the obvious questions flowing from Newton J’s findings. This omission is also very significant for another reason for, according to the son’s skeleton argument, allogeneic bone marrow transplantation carries “a significant risk of mortality” for the donee.

 

iii) Thirdly, the application is put before me by the son explicitly on the basis that those with “clinical responsibility” for SW are two individuals who, although this was concealed from me, have in fact both been struck off the medical register, and that the relevant “treatment” is to be provided by one of these two struck off doctors. A prudent judge probably never says “never”, but I find it impossible to conceive of circumstances where the Court of Protection would ever contemplate authorising treatment of a kind referred to in PD9E (and this is such treatment: see PD9E, para 6(b), following Re Y, pages 116-117) where the treatment is to be given by a doctor who has been struck off.

26.A curious observation at the very end of the son’s skeleton argument, makes me wonder what, and who, are really driving this application. He is SW’s son, and puts himself forward as making the application as her attorney, yet he says of the declaration he seeks:

 

 

 

“If granted, such a Declaration will enable the public to obtain these life-saving, and curative treatments, from family members – not only for haematological cancers such as leukaemia, lymphoma and myeloma but also for solid tumours, with minimal residual disease, such as metastatic breast, colon & pancreas.”

 

Is there some wider agenda at work here, and, if so, whose agenda is it?

 

 

I like “a prudent Judge probably never says Never”

 

 

 

As we all suspected, the application was dismissed, leaving just issues of costs and anonymity in any published judgment

 

33.As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.

 

 

34.The application must be struck out.

 

 

35.There remain two other matters I have to decide.

 

 

36.The first relates to costs. The HTA seeks costs which it invites me summarily to assess in the sum of £7,671.

 

 

37.As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. In saying this I make clear that I attribute no responsibility at all to the son for the previous litigation; but his conduct of the present proceedings is of itself more than adequate justification for ordering him to pay the costs. The amounts claimed are, in my judgment, plainly reasonable, and he has not sought to challenge any of the individual items or amounts. He says that he is “at this present moment” unable to afford the costs, praying in aid the fact that the Jobseekers Allowance he was previously receiving terminated in January 2017. That may be, but inability to pay is not, of itself, any answer to an otherwise appropriate order for costs and, in all the circumstances, I see no reason why he should not be ordered to pay the costs, and in the amount claimed. Impecuniosity does not provide immunity from the normal consequences of forensic folly.

 

 

38.As against Dr Waghorn and Dr Jooste, the question is not quite so simple because they, of course, were not applicants in the proceedings. But, and it is a very significant but, they each sought to be joined as a party and expressed themselves as consenting to the application; without any challenge on their part, they were put forward by the son as having clinical responsibility for SW; as I have already described, they seemed throughout the hearing to be making common cause with the son; and Dr Waghorn himself sought relief from the court. In these circumstances, and having regard to the principles expounded in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2004] 1 WLR 2807, and Deutsche Bank AG v Sebastian Holdings Inc and another [2016] EWCA Civ 23, [2016] 4 WLR 17, to which Ms Khalique referred me, both Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs.

 

 

39.I shall, therefore, order the son, Dr Waghorn and Dr Jooste to pay the costs, summarily assessed, in the sum of £7,671.

 

 

40.The remaining matter relates to the reporting restriction order. There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour. I appreciate that the effect of naming Dr Waghorn may make it a matter of simplicity for anyone minded to do so to put names to both SW and SAN, but for reasons which will be all too apparent they also need to be protected, for example if there were to be any further attempt to embroil them in litigation. The balance is properly held, in my judgment, by varying the reporting restriction order so as to permit the naming of Dr Waghorn and Dr Jooste while continuing to forbid the naming of SW, SAN and the son.

The gift that keeps on giving – Princess Margaret’s will

 

Ms Benmusa, not content with the hint dropped from the last judgment, which was as heavy as an anvil catapulted into the air by Wiley Coyote only to come crashing back down on his bonce, revived her application to see Princess Margaret’s will, which would prove that she, Ms Benmusa, was the illegitimate daughter of Princess Margaret.

She filed a statement, making reference to her aunt, who was born in 1904.

As the President carefully pointed out, this aunt is thus purportedly the elder sibling of Queen Elizabeth II. That is difficult to countenance, because (a) being the elder sibling of Queen Elizabeth II would have made this Aunt the Queen, and perhaps more importantly (b) the alleged father of this aunt was King George VI who was born in 1895. I know times were different then, but I do honestly believe that if King George had fathered a child when he was just nine years old, that would have been something of a sensation.

http://www.bailii.org/ew/cases/EWHC/Fam/2017/785.html

 

The judgment is short enough, and cool enough, to print in full, so I’m going to…

 

  1. I have before me, as President of the Family Division, another application by Malika Benmusa. I struck out a previous application on 14 March 2017: Re Benmusa [2017] EWHC 494 (Fam). This application is dated 20 March 2017 and was received by the court on 23 March 2017.
  2. This application, like the previous one, seeks “To apply to unseal the will of the late Princess Margaret.” The only difference is that, on this occasion, the application which, like the previous one, I am invited to deal with “without a hearing” is accompanied by a closely-spaced one page statement by the applicant dated 20 March 2017 and a copy of a death certificate of a woman, who was born in 1904 and died in 1997 and who, according to the applicant, was “my late Aunt.”
  3. I do not propose to set out the entire contents of the applicant’s statement. Its flavour can be judged by the opening part (again I set it out as written):
    1. “I MISS MALIKA BENMUSA, am the last child of the late princess Margret … I was born in Scotland. My mother married my father a year before I was born, then separated, but never divorced. I do not wish to give out my father id as he is a very well know. […] My mother was very frightened of her so called family, and felt I needed protection. I am the heir to the throne of England. This is why so much trouble has been taken to cover up my identity. I believe between the age of three years old I was raised by my mother older sister, not known to the public, due to my grandparents’ not been married, and because of the war at the time. When I was three years old I believe my mother was frightened by her own family member to give me up for adoption, my mother did not consent to this. They frightened her saying that she was a drunk and my father was a drug addict. And my mother was told to remove me from the care of her older sister who real name was [name as on death certificate] […] Last address was before she passed [address as on death certificate]. The Kings Georges oldest daughter.”

In charity to the applicant I quote no more.

  1. The application is self-evidently complete nonsense It is a matter of public record, of which I can take judicial notice, that the father of her late Royal Highness Princess Margaret, Countess of Snowdon, was his late Majesty King George VI, who was born on 14 December 1895, and that her mother was her late Majesty Queen Elizabeth the Queen Mother, who was born on 4 August 1900. They married on 26 April 1923. Quite obviously a woman born in 1904 could not have been, as the applicant asserts, her mother’s elder sister if, as she also asserts, her mother was HRH Princess Margaret. I have no hesitation in concluding that I should strike out the applicant’s claim, as I do. It is a farrago of delusional nonsense.

 

I am ordering in popcorn and waiting for round 3.

In which MacDonald J asks the question and answers it in paragraph 1 of the judgment

 

Which is something that I’d like to see more often.

 

The question before me is whether the High Court has power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid. I am satisfied that the answer to that question is ‘no’.

 

In essence, that question arose because the Local Authority had read some of the previous authorities on radicalisation or alleged radicalisation of children to suggest that they ought to be issued as wardship proceedings (which doesn’t get non-means, non-merits legal aid) rather than care proceedings (which do).  That doesn’t feel right, because parents in such cases really do need legal representation.

A scheme so cunning you could put a tail on it and call it a weasel was devised (either nobody invited the LA to simply issue an application for care proceedings so that there would be legal aid for the parents or they did and the LA refused, I don’t know), but anyway an intricate scheme was attempted instead.

As you can see, MacDonald J said no to that.

HB v A Local Authority & Another  (Wardship Costs funding order) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/524.html

 

However, MacDonald J clarified that in his mind, there was no obligation for an LA on a radicalisation case to issue solely in wardship and not in care proceedings.

In the circumstances, I am satisfied that, contrary to the view taken by the local authority, neither Hayden J nor the President have sought to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation.

 

MacDonald J shoots up in the league table of my estimation by also dissecting the much discussed homily that the ‘powers of the inherent jurisdiction/magical sparkle powers are theoretically limitless’

 

I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.

 

  • Whilst the inherent jurisdiction is theoretically unlimited, it is, in reality, constrained by proper limits. In London Borough of Redbridge v SA [2015] 3 WLR 1617 Hayden J observed as follows at [36]:

 

“The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.”

In R v Central Independent Television Plc [1994] Fam 192 at 207-208 Waite LJ noted:

“The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have nevertheless found it necessary to set self-imposed limits upon its exercise for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages.”

 

  • Within this context, I am satisfied that the limits that are properly imposed on the exercise of the inherent jurisdiction for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages in this case are those that must be applied when considering the nature and extent of the court’s jurisdiction to order a public authority to incur expenditure. As Lord Sumption pointed out in Prest v Petrodel Resources Ltd [2013] 2 AC 415 at [37], courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. Imposing the limits that I am satisfied must apply, I regret that I cannot accept the submission of Mr Hale and Mr Barnes that the inherent jurisdiction of this court is wide enough to encompass a power to order a public authority to incur expenditure in order to fund legal representation in wardship proceedings for a parent who does not qualify for legal aid because that parent does not satisfy the criteria for a grant of legal aid laid down by Parliament, notwithstanding the considerable benefits that would accrue to the parent, and to the child, from such funding.

 

 

 

 

 

That’s when I start promising the world to a brand new girl I don’t even know yet

 

Next thing, she’s wearing my Rolex.

 

I wrote about Part 1 of the Pauffley J hearing about alleged radicalisation where all of the evidence that might prove whether threshold criteria existed or not was in the hands of the security services and they (having originally tipped off the LA that they should do something) decided they didn’t want to cough up the material.

https://suesspiciousminds.com/2016/12/28/cloak-and-dagger-threshold/

I feel very very uncomfortable about this sort of thing.  I fully understand that in order to protect the citizens of this country, the security services will watch individuals and don’t want those under suspicion to know exactly what the security services knows and how they know it. I get that. But by the same token, if a parent is being accused of being a risk to their child and faces the possibility of losing their child, they are entitled to see what the evidence against them is and to test it.

The alternative is that we end up with a set of care proceedings run along the lines that Christopher Booker imagines happens all the time, where the parents aren’t told what they are supposed to have done and don’t get to fight the allegations.

I’m not sure how you square that circle. My gut feeling is that the children probably stay with the family unless and until the security services either have enough to charge the parents with a criminal offence, decide there is no risk, or that the information known can be safely shared without putting others at risk.

Anyway, you may remember from Part 1, that it ended with the Security services telling the Court that they were going to get a Public Interest Immunity (PII) certificate signed by the Secretary of State about the documents.

This is what happened next.

http://www.bailii.org/ew/cases/EWHC/Fam/2017/692.html

C (A Child), Re (No 2) (Application for Public Interest Immunity) [2017] EWHC 692 (Fam) (31 March 2017)

 

Those representing the Secretary of State asked for a CLOSED hearing. In basic terms (and I’m massively oversimplifying to make it possible for normal people to follow) that means that the lawyers for the Secretary of State would address the Judge about the documents and why they could not be shared, and nobody else would be in the room.

 

 

Discussion of procedural steps

 

  • I quite accept that the courts and the SSHD are even now in the relatively early stages of grappling with the problems consequent upon proceedings of this kind. I would be the first to accept that I have been engaged in a learning exercise. I suspect the same may be true for those advocates who have not hitherto had much experience of dealing with cases where PII might be asserted in circumstances such as these.
  • There have been several complicating factors leading to delay identified by Ms Wheeler in CLOSED session which are inappropriate for inclusion within this OPEN judgment.
  • At all events, there are some obvious conclusions to be drawn from events in this case. The first is that where the SSHD is faced with disclosure orders relating to material which is or may be sensitive and where the likelihood is that PII will be asserted, it is incumbent upon the GLD to set up a process for early and definitive decision making.
  • The spectre of a potential PII claim was manifest in this case from as far back as 3 November 2016. On that day, I received an urgent letter from the GLD, indicating there was material which for reasons of national security the SSHD was not at liberty to disclose. A further period of 28 days was requested to further consider the information with a view to either effecting disclosure, advancing a claim for PII or seeking a declaration under s.6 of the JSA 2013.
  • By the time of the 2 December hearing, the indications were that if the SSHD was unsuccessful in her bid to revoke the 4 October 2016 disclosure order, she would claim PII. As I observed towards the end of the December judgment, until there was a PII Certificate containing the SSHD’s judgment as to the harm to the public interest that would be caused by disclosure and the weight to be given to competing public interests, there was no appropriate mechanism for action.
  • It is disappointing to say the least that the PII Certificate was not issued until 7 March 2017, some three months later, and at a time when no fewer than four distinguished legal teams had spent a great deal of time and effort considering a landscape which did not comprise a claim for PII. Had the claim been made sooner, those endeavours would have been largely unnecessary.
  • Doubtless the GLD is an over-stretched organisation with many competing calls upon the time of those who work within. However, with an eye to the future and other similar cases, it seems to me that there must be mechanisms for significantly swifter specialist advice and consequent action. Had there been an application for PII in the autumn of last year, it would have been resolved before Christmas; the hearing of 2 December would have been superfluous to requirements; and the care proceedings would not have been mired in procedural argument for more than three additional months pending resolution of these issues.
  • As Mr Twomey suggests, delays, lack of clarity and inconsistency in the approach of the SSHD are unhelpful and tend to give rise naturally enough to scepticism and suspicion. The earlier there is (can be) precision the better. The stop / start approach of the last four to five months has been distinctly unhelpful. By some mechanism or another, strategies for avoiding anything similar should be devised as a matter of urgency.

 

Potential for conflict

 

  • Arising out of events on 25 January 2017, there was the potential for unfairness which Mr Twomey was right to identify in his written submissions. As he correctly identifies, on 25 January I met briefly with two members of the GLD to take possession of a bundle of CLOSED material; and I concluded that a hearing in CLOSED would be required. Mr Twomey maintained that the parties were unaware of what was said on behalf of the SSHD on that occasion and what I was shown. In fact, as Ms Wheeler related in her submissions of 6 February 2017, the documents I had read were CLOSED submissions and a Sensitive Schedule (also known as a damage assessment) explaining why the SSHD contends material should be withheld, the nature of the damage were disclosure to be ordered and the reasons for delay in progressing a formal claim for PII. But I was not provided with the material over which a claim for PII is being considered.
  • As for anything discussed between the GLD lawyers and me on 25 January, I can confirm that nothing of any substance was said. The sole purpose of the meeting was so as to comply with the necessary procedures for dealing with CLOSED material. My clerk, for example, is not able to handle CLOSED material. Thus it was necessary for me to meet with Mr Fitzgibbons and Mr da Silva to take possession of and later relinquish the CLOSED file.
  • Mr Twomey asked me to confirm whether or not those documents form part of the PII application. If they did not, then it would be necessary to consider whether I could fairly determine the PII application and / or how those documents could be treated so as to ensure a fair hearing.
  • In response to those submissions, I indicated that Ms Wheeler’s CLOSED submissions from late January had not been made available to me in readiness for the hearing on 15 March. Ms Wheeler’s initial view had been that there was no need for me to consider her earlier submissions afresh given that more pertinent material was now available in the form of the OPEN Certificate. Given the potential for a sense of unfairness if the January submissions were not once more made available, a copy was provided in advance of the CLOSED hearing.
  • No party sought to suggest there was any reason associated with events on 25 January, materials read or discussions with the GLD, which could have prevented me from dealing with the claim for PII. Accordingly, satisfied as I was that there was no reason to recuse myself, I convened a CLOSED hearing at which I heard Ms Wheeler’s oral submissions and probed a number of issues.
  • There was no judgment at the end of the CLOSED hearing. I indicated I would be preparing an OPEN judgment.

 

 

 

The Court considered the principles in deciding whether documents should be withheld from distribution under the Public Interest Immunity process

 

 

 

The three steps involved in making a PII claim – R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274

 

  • There are three required steps when the SSHD considers whether to make a claim for PII. First, whether the material is relevant and passes the threshold test for disclosure in the applicable proceedings – (Certificate §11). Second, if the threshold test is passed, whether the material identified as relevant and subject to disclosure attracts PII. The test is whether there is a real risk that disclosure would cause ‘real damage’ or ‘serious harm’ to the public interest – (Certificate §13 and 19). Third, if applying the ‘real damage’ test, the material attracts PII, the question arises as to whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purpose of doing justice in the proceedings. The factors in favour are set out in the Certificate at §18; those against between §§19 and 26.

 

 

Slightly disappointed that Pauffley J did not indicate that R v Chief Constable of the West Midlands Police, ex parte Wiley is a party guy and he knows it, but bigger fish to fry, no doubt.

 

 

 

Positions of the parties

 

  • The local authority’s position is that it will await the outcome of the PII hearing and will then take stock. Ms Morgan understandably submits there is a limitation upon the assistance she can give in relation to the Wiley balancing exercise, given that she has no knowledge of the material over which the SSHD asserts her claim for PII. Ms Morgan does though make a number of observations particularly as to the sufficiency of primary evidence absent disclosure. Ms Morgan’s overarching observation is that I should approach the balancing exercise on the basis that if the care proceedings conclude for want of established threshold criteria, the likelihood of the local authority being in a position to safeguard the child – or justify interference in his life – in any effective way would be virtually non-existent.
  • Mr Twomey suggests that the very significant delay in making the PII application calls for an explanation and raises a serious issue as to the merits of the claim. Mr Twomey suggested that when I considered the claim there were a number of issues which may be relevant but which might only be probed in CLOSED session. He cited eight matters and asked a number of associated questions – all of them useful to me during the CLOSED session.
  • On behalf of the child’s guardian, Mr Parker suggests there are two points which undermine confidence in the SSHD’s evaluation. First, that the unwillingness to provide disclosure was a position arrived at long before the balancing exercise set out within the Certificate. There is a risk, accordingly, that the Certificate is simply an ex post facto justification of the SSHD’s position. Mr Parker’s second general point is that the premise for the balancing exercise is flawed in that the SSHD understands the local authority’s application is for a supervision order whereas the interim measure does not reflect the true nature of the proceedings.
  • Mr Parker makes four points in relation to the Wiley balancing exercise which, he submits, increase the balance in favour of disclosure – the insufficiency of available primary evidence, the inappropriateness of the Channel programme as an alternative method of safeguarding, the current unavailability of the Desistence and Disengagement Programme and the unreasonableness of requiring the mother to surrender her travel documents permanently.

 

1. Relevance

 

  • The first question, as to relevance, is simply satisfied. The SSHD proceeds on the assumption that the material is relevant and, in principle, disclosable as the result of the 4 October 2016 orders for disclosure. That is clearly right.

 

2. Would disclosure damage the public interest?

 

  • The second issue is confronted within the Certificate in this way. The SSHD identifies that the Government’s approach to PII requires her to focus specifically on the damage that would be caused by the disclosure of the particular material in issue and to assert PII only if satisfied that disclosure of that material would bring about a real risk of real damage to an important public interest. The SSHD expresses herself satisfied that the material referred to in the sensitive schedule would cause serious harm as it includes information of one or more of eleven specified kinds.
  • Within her OPEN submissions, Ms Wheeler explained that the reasons include those relating to national security though it is not possible to be more specific in OPEN about the nature of the harm that would be caused by disclosure. The effect of the material engaging national security considerations was that disclosure would create a real and significant risk of damage to national security (§19 of the Certificate).
  • I have sound reasons for agreeing with the SSHD’s evaluation based upon materials provided to me in CLOSED.

 

3. The Wiley balance – factors for and against disclosure

 

  • The last part of the Wiley exercise involves balancing the factors in favour of and against disclosure. The SSHD when considering the impact of non-disclosure takes into account three specific points – the nature of the material, the open and available material and other powers to protect the child.
  • The SSHD considers the factors in favour of disclosure to fall into two categories. First, the strong public interest in ensuring that children are protected from the risk of harm and that the material of potential relevance should be available to parties to family court proceedings. And second, that in general legal proceedings should be conducted openly; open justice principles are in play and are an important factor in protecting the rights of individuals and maintaining public confidence in the justice system.
  • To my mind, the most significant, weighty and powerful of the factors militating against disclosure is that the material engages considerations of national security. The SSHD formed the view that disclosure would create a real and significant risk of damage to national security. I accord great respect to and share that assessment on the basis of the material made available to me in CLOSED session, namely Ms Wheeler’s CLOSED submissions and the Sensitive Schedule (or damage assessment).
  • The conclusion of the SSHD that national security considerations are engaged, a judgment formed on the basis of comprehensive materials made available to her, in Ms Wheeler’s submission, should properly be accorded great deference. As Lord Templeman observed in R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 @ 281, “As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence of national security or diplomatic secrets will be self-evident and preclude disclosure.

 

Other available evidence

 

  • Ms Wheeler urges me to consider the other factors put forward in favour of non-disclosure. Firstly, the existence of other available evidence from which the court may be able to draw inferences and find the threshold criteria satisfied. Second, in the event that the threshold criteria could not be satisfied and thus a public law order was unavailable, there could be recourse to other safeguarding measures such as the ‘Channel Programme’ and a new Home Office initiative, the ‘Desistence and Disengagement Programme.’ Thirdly, steps could be taken to disrupt travel plans involving flight to a war zone by continued passport restrictions.
  • It is clear that the SSHD’s contention as to the availability (and sufficiency) of other evidence causes the local authority, in particular, very real anxiety. Unwittingly, I suspect that I have contributed to the problem by observations made in the December judgment which play into the argument that further disclosure from the Home Office was (or is) necessary: see §§ 35, 39 – 42.
  • At that stage, however, I had not been required to consider the Wiley balancing exercise, I was not privy to Ms Wheeler’s CLOSED submissions and I had not considered the Sensitive Schedule. The landscape now is very different and disclosure questions call for a modified response.
  • Ms Wheeler is right to draw my attention to the available evidence. It amounts to a mixture of established facts as well as matters which give rise to likely inferences. It is unnecessary to descend into the particulars beyond observing that both parents have been stopped at airports (father in June 2014 and February 2016; mother in January 2016) and questioned pursuant to Schedule 7 of the Terrorism Act 2000. A police officer from the Safeguarding Unit of the Metropolitan Police Service Counter Terrorism Command (SO15) has made a statement. So, too, other officers who conducted the port stops and interviews.
  • More detail of available evidence is set out within paragraphs 3 to 8 of Ms Wheeler’s submissions dated 14 March 2017. Furthermore, Ms Wheeler makes the valid point that the letter from HM Passport Office dated 3 August 2016 refusing the father’s application for a replacement passport is of significance. It can and should be taken into account, argues Ms Wheeler, as part of the evidential picture.
  • I agree with Ms Wheeler’s submission that the Home Secretary’s decision to exercise the Royal Prerogative so as to refuse to issue the father with a passport (based on the assessment that he is an Islamist extremist who seeks to travel to Syria for jihad) is ‘evidence.’ The Home Secretary’s decision is amenable to judicial review but there has been no challenge.
  • I also agree with the suggestion that the denial of a replacement passport on the basis of the exercise of the Royal Prerogative would not be, of itself, sufficient to establish the threshold criteria. Clearly it is a factor of relevance which could be taken into account as part of the evidential picture though it is impossible to assess quite how much weight might be attached in advance of any hearing.

 

As I said earlier, these cases leave me uncomfortable. Yes, a flimsy and vague threshold could be constructed on the basis that the parents have been stopped at airports and questioned under the Terroism Act and that the Secretary of State has seen material such to persuade them to refuse to issue the father with a passport, but if the parents assert that these actions were wrong, mistaken or the result of some form of racial profiling without foundation in reality, how is an LA to prove likelihood of significant harm?

 

The Judge says something very important about the documents that have not been shared. In essence, they wouldn’t themselves establish threshold even if they could be seen and relied upon

Nature of the material – future progress of litigation

 

  • With the future of these proceedings in mind, it is appropriate that I should discuss a matter which arose during the course of CLOSED session. It seems highly unlikely that the material upon which the SSHD has formed her assessment leading to the application for PII would advance the local authority’s case to any significant degree. On any view, the material could not be provided to (and therefore be used by) the local authority for the purpose of legal proceedings, whether to inform its assessment of risk or for the purpose of commissioning any expert intervention. Moreover, the material does not advance an understanding of the parental relationship or contact with or intentions towards the child.

 

 

The judgment and story rather fizzles out there. Perhaps there was an application to withdraw the proceedings, perhaps not. We may never know.