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Forty tons of Toblerone

Relocation cases bore me, so I would have skipped over this one. But it was Justice Peter Jackson, who is generally worth reading. And it has an unusual wrinkle. Stick with it.

The argument in the case was whether a 15 year old and 13 year old should go and live with their father in Switzerland, or stay with mother in England. The parties clearly have money – whether they have more money than sense is a matter for readers to draw their own conclusions about.

S v S (Relocation) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/2345.html


35.I record that the legal costs globally in this case are outrageously high. The estimates that I have been given concern only these proceedings relating to the boys. They do not concern the other costs that the parties are responsible for in relation to the divorce and any financial aspects. The father estimates his costs of this application at £493,000. He has also paid or taken responsibility for costs of £174,000 in relation to the children’s costs, so taken together with the mother’s costs, the total comes to some £938,000 of which the father is already responsible for two thirds of a million.

2.What does have to be remembered is that the court can only work with the material with which it is provided. Often, as here, it is not possible to produce a truly good outcome but only to choose the one which is least bad. In a case of this kind, where a family has every conceivable material advantage, it is easy to forget the old truth that money cannot buy you happiness. It certainly has not done for this family. Instead, the pursuit and accumulation of wealth that has created conditions that have left everyone spoilt for choice and thoroughly miserable. The fact that the family has spent just shy of £1 million on these proceedings, proceedings of no particular complexity that only began in April, is fairly typical. This is not empty moralising. If the parents and children cannot return to a more considerate, a more normal way of behaving, the future is bleak whatever the court may decide. In saying this, I am not only speaking to the parents but also to the three children who are old enough in their own ways to do their bit to repair the damage that has been caused.

That led me to do a google search for ‘costs to hire a private jet’ by way of comparison, which if nothing else, should get me more glamorous pop up ads. You can hire a private jet to take you to Nice for £10,000. So let’s say Switzerland is about the same. The father could have flown the children to Switzerland by private jet every weekend (and back) 32 times for what he’s paid lawyers to argue about the case. As the youngest child has 250 weekends left of his childhood, that does leave a bit of a shortfall, but (whisper it) there are cheaper methods of transporting children to Switzerland.

You can buy a 4.5kg bar of Toblerone for £75. So dad could have bought 8893 huge bars of Toblerone. THAT’S FORTY TONS of Toblerone, people.

(If anyone wants to pay me for my legal advice in Toblerone, I am willing to negotiate. I would give a discount for Terry’s Chocolate Orange…)

Anyway, the real purpose of the blog post is the bit that sneaks into that paragraph on costs

He has also paid or taken responsibility for costs of £174,000 in relation to the children’s costs

The children, if they are of sufficient age and understanding, are entitled to seek their own legal advice, and they can, if they make an application be represented in the proceedings. The solicitors have to get paid, and there would be no legal aid for children in private law proceedings who instruct their own solicitor (i.e there’s not a court-appointed Guardian) so someone has to pay it.

The Judge is not critical of the solicitors involved (who are very experienced and expert in these international cases) but it is an unusual circumstance for one party to litigation funding the children’s own lawyers. More so when you learn that the mother says that she didn’t know that the children were having consultations with their own lawyers and did not know that they were going off to meet with them. Nobody has done anything WRONG here, but it being an issue that I’ve not encountered before, it does throw up some interesting questions.

It feels a bit weird that one parent pays the legal costs of the child. That feels a bit conflict-y, no matter how much effort everyone puts in to ensure that there is no conflict between independence of the advice and the person who is paying for that advice. It feels a bit Sussex Justices – there may be nothing wrong whatsoever happening, but if you were on the other side of that equation, would you feel that this is entirely fair?

28.I now add a coda concerning the impact of the legal representation of these children upon their welfare. The sequence of events concerning the children’s lawyers is this; in February 2016 the father’s Russian lawyer, prompted by his English solicitor, contacted Ms Hutchinson who happened to be in Russia at the time. In March 2016, on her return Ms Hutchinson met the boys in a café close to their school, unknown to the mother. Dawson Cornwell’s fees were paid by the father and nothing happened until a year later. In March and April 2017 when the father’s first application was issued, the boys communicated a number of times with Ms Hutchinson and her colleague, Ms Fleetwood, by social media. In April Ms Fleetwood met D at the school without the mother’s knowledge. She wrote to the mother’s solicitors subsequently that D had made her aware of the relocation application that the father had now issued; in fact Dawson Cornwell had learned about this from the father’s solicitors a fortnight earlier.

29.In May 2017, the boys came to court and later that month they were joined as parties by Pauffley J. In June 2017, the boys met their solicitors at Dawson Cornwell’s offices twice with the knowledge of the parents, and in July 2017 they met the solicitors and counsel locally to their home with the knowledge of both parents.

30.The mother understandably complains that, entirely without her knowledge and at a time when she was having difficulty parenting the children, the father was funding a legal team for the boys, now to the tune of £174,000. She says that this just added to the other ways in which the father was undermining her authority.

31. At my request, Mr Vine QC has addressed the duties of solicitors in these circumstances in a short position statement. That reads as follows:

“In so far as there is further clarification on the obligations of a child’s solicitor in this difficult area:

(1) The Solicitor’s Regulatory Authority (SRA) Code of Conduct secures the obligations to act with integrity (Mandatory Principle 2), not to allow the solicitor’s independence to be compromised (Mandatory Principle 3), and to protect the client’s interests (Mandatory Principle 4 and Chapter 1.1);

(2) The Solicitor’s Regulatory Authority (SRA) Code of Conduct further requires the solicitor to keep the client’s affairs confidential unless disclosure is required or permitted by law or the client consents (Chapter 4.1);

(3) The SRA Practice Note Acting in the absence of a children’s guardian suggests the solicitor is mindful of a guardian’s PD16A duties;

(4) As a matter of general principle, parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision, Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 11, Lord Scarman at 186;

(5) On familiar principles, a child has an Article 8 right to respect for their privacy in the setting of client/professional information;

(6) Again on familiar principles, a child has a right to confidentiality in the same setting;

(7) The entire area of a child’s Article 12 UNCRC right to participation in proceedings concerning them is one that continues to evolve, Re W (A Child) [2016] EWCA Civ 1051, Black LJ §26 and Re F (Children) [2016] EWCA Civ 546, Sir James Munby P §41.

There would appear to be no direct guidance on the obligations in question, and the answer must be that the obligations will depend upon the nature of the information presented and the instructions given to the solicitor by the child, and their judgment as to their child client’s best interests. Information relating to child protection or the safety of others will generate a more obvious response than information relating to a private dispute.

The child’s solicitor is in a delicate position, calling for sensitivity to the competing interests of the child and parent.”

32.I agree with all of that and I particularly wish to record that the lawyers acting for these two children are among the leading experts in representing children, particularly in international cases. However, I am left with a sense of unease. I am not sure that Mr Vine’s analysis, correct as far as it goes, is the whole picture. There is a tension between the right of children to receive legal advice and the need for parents to know what is happening in children’s lives so that they can look after them properly. For the lawyers to be having secret meetings with children in cafés and at school without the knowledge of their primary carer inevitably leaves a sour taste. How, for example, is the school to react? Is it right that one parent should know what is happening and pay for it while the other is left in the dark? These are also child welfare issues that need further thought but, having identified them, I say no more about it on this occasion.

The boys are actually moving to Switzerland as a result of the case, so in so far as spending two thirds of a million pounds on lawyers could ever be said to be money well spent, perhaps this was. Come to think of it, where would you even KEEP forty tons of Toblerone?

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Magical sparkle powers – a sparkle too far?

Regular readers will know that when I read the phrase “The Court’s powers under the inherent jurisdiction are theoretically limitless” it makes me bristle, and hence my coining the name “magical sparkle powers” for the use of these, to remind ourselves that the Court is effectively inventing powers for itself out of thin air.

As is established law, Princess Kenny MAY use her magical sparkle powers to get the Black Friday Bundaroo

The problem I have with it is not that the Court have used the inherent jurisdiction as a way to solve a particularly thorny legal problem on an individual case, it is that this then gets used as an authority for “well, we could do THAT with our magical sparkle powers, so THIS is only a further stride along that path” and then THIS gets used as authority for taking another stride to THE OTHER. It is the stepping stone issue.

So a while back, the President ruled that the inherent jurisdiction could be extended to protect vulnerable adults, and then someone else ruled that his decision was authority for protecting adults with vulnerabilities, and then someone else ruled that THAT decision was authority for protecting adults who didn’t seem to have any vulnerabilities but whom the Court wanted to protect

And then we end up with this
http://www.bailii.org/ew/cases/EWFC/HCJ/2017/65.html

Mahzar v Lord Chancellor 2017

Mr Mazar is a 26 year old man with muscular dystrophy. He has no mental health problems and he has capacity. Part of his physical illness is that he needs apparatus to breath through, and this apparatus needs to be suctioned four to five times every hour. Without this, he could be at risk of serious injury or death. Mr Mazar wanted to be in his own home for this procedure rather than be detained in hospital – he says that his family members have had training in the procedure. That may be contentious – I don’t know whether th

I don’t know the ins and outs of why Mr Mazar came to that conclusion, but we don’t NEED to know. If he is an adult, with capacity to make his own decisions and does not have a mental health disorder, he is entitled to say that he does not want to be admitted to hospital. That’s his right. He is entitled to say that even if all of the medical opinion is that this is dangerous and stupid. Even if it might lead to his death.

What actually happened was that the Trust applied to the High Court for permission under the inherent jurisdiction to not only treat him against his will, but for police officers to enter his home and remove him by force if necessary to take him to hospital.

2. The order complained of is as follows:

“(I) It is lawful for the police and any medical professionals, as are required, to enter [address] (the property) and use reasonable and proportionate force to do so.

(2) It is lawful for the police and any medical professionals, as are required, to remove Mr Aamir Mazhar from the property and to convey him to an ambulance.

(3) It is lawful for the ambulance service, together with any other medical professionals and police as are required, to convey Mr Aamir Mazhar to the Queen Elizabeth Hospital, Birmingham.

(4) It is lawful until further order for Mr Aamir Mazhar to be deprived of his liberty at the Queen Elizabeth Hospital, Birmingham for the purposes of receiving care and treatment from his arrival on 22 April 2016 and then to be conveyed to the specialist respiratory centre at Guy’s Hospital, London until suitable care can be put in place for him at home, or to be transferred to an alternative specialist respiratory unit.

(5) The matter shall be listed for urgent hearing on the first available date after 25 April 2016 (upon application to the Clerk Rules (sic)).

(6) There be leave to serve this order without a Court seal until 16:00 on Monday 25th April 2016.”

It was an out of hours application, without any notice to Mr Mazhar or his family and they were therefore not present or represented at the hearing.

The pleaded consequence of the order made by Mostyn J is the forcible and what is described as the highly distressing removal of Mr Mazhar from his family home at 3 am on Saturday 23 April 2016 by two police officers and the ambulance service. Mr Mazhar was and is a young man who has the capacity to make decisions for himself. It is submitted on his behalf that there was no basis in law for the order to be made or for the actions taken in accordance with it.

7. Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person’s alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law.

Mr Mazhar sought damages against the Trust, who settled out of Court. He also made a Human Rights Act claim against the Lord Chancellor for breach of article 5 (that he was unlawfully deprived of his liberty), article 8 (that his right to private and family life was breached) and article 6 (that such a fundamental decision was taken without any challenge to the application being made.

The Lord Chancellor concedes that Mr Mazhar was deprived of his liberty when he was removed from his home and taken to hospital and accepts that he was not a person of unsound mind within the meaning of article 5(1)(e) at the date of the order. He does not however accept that the broader proposition that the inherent jurisdiction is limited in the way suggested on behalf of Mr Mazhar and in particular that it can only be used to facilitate the re-establishment of autonomy. He argues that its use to detain and remove a person who has mental capacity to make decisions about his care (but who is a vulnerable adult) to a safe place such as a hospital is a well recognised jurisdiction which acts as a safety net to protect persons who fall outside the scope of the Mental Capacity Act 2005. He contends that use of the jurisdiction to detain is neither arbitrary nor unlawful because there are procedural safeguards ie it is a procedure prescribed by law, governed by Rules of Court, Practice Directions and Guidance. It is clearly established by case law which is sufficiently accessible and foreseeable with advice and the jurisdiction’s flexibility is reasoned and justified so that, for example, where detention is permitted there are rigorous safeguards that include regular review.

9. The Lord Chancellor does not accept that there were procedural failings such that the detention was unlawful within the meaning of article 5 of the Convention or unfair at common law. He avers that in any event the threshold of ‘gross and obvious irregularity’ is not met. The procedural protections for anyone deprived of their liberty are the lex specialis of article 5(4) and provide equivalent protection to article 6 which the Lord Chancellor submits is not engaged. Any breach of article 8, which is not admitted, is justified by being in accordance with the law, necessary and proportionate.

So who is right?

It is a really important point. As the High Court repeatedly says – the powers under the inherent jurisdiction are theoretically limitless – so on the face of it Mostyn J had the power to make that order, even though Mr Mazhar was of sound mind and had capacity to make his own decision.

Is that really right?

If the law is going to authorise police officers to come into your home and remove you by force and take you to hospital and detain you there while you have treatment that you have not consented to, that seems to me rather a big deal – particularly as there’s no clarity at all about what hurdles the Trust ought to have to meet to establish that – if Mr Mazhar lacked capacity there would be a statutory framework as to what the Court would need to consider and a mechanism for challenge.

So I was reading this case with great interest to see what was decided about whether or not the inherent jurisdiction really does give Mostyn J or other Judges the power to make such a dramatic order – without Mr Mazhar even being told about it in advance and having the opportunity to have his say.

The order was made on a specific evidential basis which was recorded in the recitals to the order. It is important to acknowledge that this prima facie evidential basis was the evidence, at that stage unchallenged because the application was made without notice, which the judge had available to him and which he decided was sufficient to lead to the order that he made. It is part of Mr Mazhar’s claim against the Lord Chancellor that the judge should not have accepted the evidence without an opportunity being given at that stage for challenge and, in any event, that it was insufficient in law to justify the order made. It is also important to acknowledge that some of the evidence provided to the judge was wrong and may have been untruthful. The difference between the recorded prima facie evidence and the agreed facts is stark. The claim against the NHS Trust which deals with those issues has been settled and it is not for this court to give judgment on the failings of the NHS Trust. Some of those failings are however apparent in the differences revealed between the recitals and the agreed facts. The implications are very worrying indeed.

Sadly, the Court doesn’t answer that at all. Instead we get reams of paragraphs about why the challenge to the order of the High Court can’t be by HRA claim or claim for vicarious liability on the part of the Lord Chancellor, and judicial immunity, and this is all absolutely right, but still very frustrating.

43. Lord Denning MR described the principle of judicial immunity in Sirros v Moore [1975] QB 118 at 132D:

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the excess of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred or malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to the Court of Appeal or to apply for habeas corpus or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action in damages. The reason is not because the judge has any privilege to make mistakes or do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well state by Lord Tenterden CJ in Garnett v Ferrand (1867) 6 B&C 611 625:

“This freedom from action or question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be”

All of this is particularly frustrating, because the Lord Chancellor had in June submitted a position statement to the effect that judicial immunity was not going to be relied upon as a defence, and then rescinded that and relied on it successfully

If Mr Mazhar wants to find out whether Mostyn J really did have the power to make that order under the inherent jurisdiction, his mechanism is an appeal of the order, not a HRA claim.

Conclusion:

78. The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal.

79. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal

Annoyingly, Mr Mazhar gave evidence at the hearing, when the case turned completely on legal argument rather than his evidence, so it was unfortunate that he was put through the experience of giving evidence when the judicial immunity point was the real heart of the case.

I hope that he does want to find out and that an appeal will be brought.

That’s not to say that I think Mostyn J got this spectacularly wrong or was off on a frolic of his own – this sort of application and this sort of order is a natural extension of where the legal authorities on inherent jurisdiction are eventually going to take us. I’d be very keen to find out if the Court of Appeal think that there IS a line in the sand that needs to be drawn on inherent jurisdiction and where that line might be.

I don’t think that the law SHOULD have allowed Mr Mazhar to have police officers enter his home and remove him by force and detain him in hospital for treatment that he had a right to refuse. But I think that the law MAY say that this is within the Court’s jurisdiction and powers. I hope that even then, the Court of Appeal may have something to say about the safeguards that ought to be put in place about how such wide-ranging and sweeping powers need to be managed to respect a person’s article 5, 6 and 8 rights.

If police came to my door, forced entry and removed me from my home to hospital for treatment that I’d said I didn’t want, just because doctors thought my decision was stupid and went before a Judge on their own without putting my side of the story, I wouldn’t be satisfied to be told that the Court’s magical sparkle powers make all of this okay. It isn’t okay.

Nods and becks and wreathed smiles

In this case, the President of the Family Division deals with the thirty-fifth case where a fertility clinic had failed to complete the paperwork properly, meaning that people who thought they were a child’s legal parents were not, and had to go to Court at considerable stress and expense to put this right.

Re P, Q, R, S,T and U 2017
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2532.html

(This episode of Sesame Street is brought to you today by far too many letters)

The clinic in question sent letters out to the people who had conceived a child with flawed paperwork, following the realisation and reporting of the first such case Re A 2015

12.No-one before me seeks to justify, either in terms of their tone or in relation to their legal content, the letters sent out by Dr X on 15 March 2016. I also have concerns about the form of letter sent out on 28 April 2016. My concerns relate to (i) the focus on “clarifying” the parent’s “intention” and (ii) the indication that a statement “clarify[ing] what your intention was … may not give you legal certainty or resolve any potential problems with legal parenthood” (emphasis added). The point is very simple. Although “intention” is a necessary it is not a sufficient condition for acquiring parenthood. For, as I very recently observed, in Re the Human Fertilisation and Embryology Act 2008 (Case AK) [2017] EWHC 1154 (Fam), para 20, it is the presence or absence of consent in writing – and, I should emphasise, such a consent given before the relevant treatment – which is ultimately determinative:

“As In re A demonstrates, the ultimate question is whether X has, within the meaning of sections 44(1)(a) and 44(2) of the 2008 Act, “given … a notice [in writing .. signed by [X]] stating that [X] consents to [X] being treated as the parent of any child resulting from treatment provided to [Y].”

Moreover, the word “may” was, it seems to me, insufficient in circumstances which surely demanded plain words rather than “Nods, and becks, and wreathed smiles.”

You do have to admire a Judge who, whilst admonishing someone for not using plain words, throws in a bit of Milton poetry containing the word “becks” which is not in wide circulation other than when referring to German lager. A beck, in this context is a gesture designed to attract attention (as if you were trying to catch the eye of a waiter) and is where we get the expression “At his beck and call”

The line before “Nods, and becks, and wreathed smiles” in the poem is “Quips and cranks, and wanton wiles” which I am going to claim as an accurate description of my site. If only I were launching it today, I’d have that as the tag-line.

“Cranks” in the Milton poem, means ‘clever or fanciful speech, whims, caprice’ and not what you thought I meant.

Oh, also “wreathed smiles” just means to have a big smile on your face – I had originally taken this to be a sinister or thin-lipped smile because of the negative connotation that wreath has now, but I guess it is more in the laurel wreath or Christmas wreath sense rather than a funeral wreath.

I am beginning to think that Milton is not the best source for plain speaking that everyone can readily understand…

As ever, I am ashamed that I did not have a proper classical education. If I had, then I too would scatter allusions to Homer and Milton around as though this was commonplace on the Clapham omnibus. The only Milton I was exposed to in my school days was on the last day of term when we were allowed to bring in Ker-Plunk by Milton Bradley Games. [Tin-Can Alley was the best thing for someone to bring in, because there was a rifle that shot light at toy tin cans, making them jump into the air. Awesome-sauce. I only really know Milton now from the ‘better to serve in Heaven than to reign in Hell’ line and that only from Neil Gaiman’s Sandman)

Anyway, what emerged in the case was a practice of patients being asked to sign declarations kept by the clinic that they MEANT to be joint parents, and thus avoiding the need to go to Court AND more importantly that the HFEA was wrongly passing on to clinics this suggestion.

The President was rightly not in the slightest bit keen on that, and stressed that this practice emerged AFTER Re A, which clearly demonstrated that Court orders were required to fix the mess caused by these clinics.

13.My real concern is that there appears to be an impression in some quarters that the kind of problems which have characterised all the many cases which I have had to deal with – Re the Human Fertilisation and Embryology Act 2008 (Case AK) was the thirty-fifth such case in which I have given judgment – can sometimes be resolved appropriately without obtaining an order of the court. This, in my judgment, is a highly problematic, indeed dangerous, view. I need briefly to explain why.

14.I venture to repeat at this point what I said in in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, para 3:

“The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation … is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?”
15.Legally the issue has the potential to arise – possibly, I emphasise, years or even decades in the future – in a variety of contexts. Family lawyers will of course be alert to the risk of future breakdown in the parental relationship, perhaps triggering private law proceedings under the Children Act 1989 in which the precise legal status of a parent may be challenged. But we need also to be aware that the existence or otherwise of the legal relationship of parent and child may become relevant in the future in relation to such matters as citizenship and nationality or – and possibly decades in the future when both parents are dead and therefore unable to give evidence – in relation to matters of succession and inheritance.

16.In what is now a long line of cases involving applications for parental orders in accordance with section 54 of the 2008 Act, Theis J has emphasised the importance of the need for such orders. There is, of course, a significant difference between the two types of case, because whereas a parental order has, as has been said, a “transformative” effect, and creates legal rights, the declaration granted in the present type of case is, as the word suggests, merely declaratory of existing legal rights. But that does not mean that there is no advantage to be gained by obtaining such a declaration. Far from it: a declaration of status granted by the High Court after appropriately stringent investigations, and after, as is invariably done, notice of the proceedings has been given both to the Attorney General and to the Secretary of State, has an effect in law and reality which far transcends any purely private transaction or agreement between the parents. To adopt, mutatis mutandis, some words used by Theis J in J v G [2013] EWHC 1432 (Fam), para 28, quoting from the parental order reporter in that case:

“A parental order allows the reality for [the children] to be formalised now and bestows a sense of finality and completeness. It closes the door on official challenges to the intended parents’ authority and paves the way for the future without … further anxiety.”

Similarly, a declaration puts matters on a secure legal footing. It affords both child and parent lifelong security. It puts beyond future dispute, whether by public bodies or private individuals, the child’s legal relationship with the parent as being, indeed, his legal parent.
17.There is one final matter to which I need to draw attention. The witness statement filed on behalf of the HFEA by Nick Jones, its Director of Compliance and Information, included the following:

“Ms Walsh [she was the Senior Inspector who, with colleagues, undertook the inspection of the clinic in March 2016] has set out in her statement the facts and circumstances surrounding Care Manchester’s ill-advised decision to try resolving the parenthood issues by getting patients to sign a declaration. As Ms Walsh has said, we were not aware that the clinic intended doing this until after they had already sent out a number of those declarations to patients. Whilst we were not aware of Care Manchester’s intentions to use this declaration, following the judgment in the Alphabet case [In re A] we had been informed by a number of clinics that on legal advice, they were asking a small number of patients to complete declarations.

These clinics told us that some patients had, having been fully informed of the potential consequences and impact of the consent failings, said that they did not wish to go through any legal process in order to become the legal parents of their own children. Understandably, some patients were affronted at the suggestion that they were not legally the parents of their children. In such cases, a small number of clinics informed us that on legal advice, they had asked these patients to complete a declaration. These clinics and a legal advisor acting for several clinics, told us that the purpose of this declaration was to record the intentions of the couple at the time of their treatment, that is, a way of confirming that at the time that the couple had treatment, and notwithstanding any anomalies in their consent forms, they had intended to have treatment together and for both to be the legal parents of the children born from such treatment.

Clinics told us that this was a measure their legal advice suggested they put in place in order that in the future, should these couples separate, for example, and have to grapple with issues around the custody and care of their children, the clinics would have these signed declarations which could be relied on at that time, albeit with uncertainty as to the status of such a declaration. Whilst I expressed some concern about such an approach, and felt unease, I was assured the clinics did so on the basis of legal advice, and then only in those cases where patients had said that they did not wish to go through a court process in order to become the legal parents of their children. Having advised clinics to take their own legal advice, and now having done so, I felt we were not in a position to question that advice. Similarly, not having any method of communicating with this group of patients directly and also taking it on trust and good faith that the legal advice was sound and that clinics were acting in the interests of their patients, we felt we could not question the clinic’s approach and the decision these patients had taken to sign declarations.”
18.For reasons which by now will be apparent, Mr Jones was, as it seems to me, well justified in having those concerns and feeling that unease. But I am bound to say that it seems, and not merely with the priceless benefit of hindsight, unfortunate that the HFEA was not more questioning of what it understood was the advice being given at a time, I emphasise, after I had given judgment in In re A. I appreciate that the HFEA was not privy to the detail of any of that advice, but in the light of its understanding, as explained by Mr Jones, of what advice was being given, it might be thought that alarm bells should have been ringing and that the HFEA should have been more questioning, both privately and more publicly, as to the appropriateness and wisdom of the advice it understood was being given. I do not suggest that the HFEA should necessarily have commissioned legal advice itself on the point, but might it not have been better if it had circulated guidance to clinics, setting out what it understood to be happening, stressing that it was for individual clinics to obtain such legal advice as they might think appropriate, but saying that it did have concerns about the appropriateness of the advice which it understood certain clinics had received and perhaps briefly explaining why.

Checking Facebook – social workers and social media

I happened to read the Community Care piece on social workers and social media this week. I think it is a good piece, it is here

http://www.communitycare.co.uk/2017/10/10/social-workers-use-social-media/?cmpid=NLC|SCSC|SCNEW-2017-1011

But I mentioned on Twitter that this paragraph troubled me

3. But debates continue about the impact of social media on the confidentiality of service users, and how information shared publicly on social media should be used by social workers, says Birchall. “If a social worker visited a home and saw a dangerous person who should not be present in the family home, they would be wrong not to act on this, but if they looked at a service user’s profile on social media and found out the same information there’s a sense that this breaches the service user’s confidentiality, even though the information is public. There are strong feelings on both sides of the argument. It’s a new world and we’re just getting to grips [with it].”

I mentioned that this is in contravention of the published guidance about members of the State looking at the social media of members of the public (even where the social media is on public settings and open to anyone to view)

Not in any sense a criticism of the author, or Community Care – the guidance has obviously gone under the radar, but it is important

It seems that many people didn’t know about this guidance from the Office of Surveillance Commissioners

http://www.publiclawtoday.co.uk/local-government/information-law/344-information-law/31202-public-authorities-and-surveillance

Extract from OSC Procedures & Guidance document

Covert surveillance of Social Networking Sites (SNS)

288. The fact that digital investigation is routine or easy to conduct does not reduce the need for authorisation. Care must be taken to understand how the SNS being used works. Authorising Officers must not be tempted to assume that one service provider is the same as another or that the services provided by a single provider are the same.

288.1 Whilst it is the responsibility of an individual to set privacy settings to protect unsolicited access to private information, and even though data may be deemed published and no longer under the control of the author, it is unwise to regard it as ―open source, or publicly available; the author has a reasonable expectation of privacy if access controls are applied. In some cases data may be deemed private communication still in transmission (instant messages for example). Where privacy settings are available but not applied the data may be considered open source and an authorisation is not usually required. Repeat viewing of ―open source sites may constitute directed surveillance on a case by case basis and this should be borne in mind.

288.2 Providing there is no warrant authorising interception in accordance with section 48(4) of the 2000 Act, if it is necessary and proportionate for a public authority to breach covertly access controls, the minimum requirement is an authorisation for directed surveillance. An authorisation for the use and conduct of a CHIS is necessary if a relationship is established or maintained by a member of a public authority or by a person acting on its behalf (i.e. the activity is more than mere reading of the site‘s content).

288.3 It is not unlawful for a member of a public authority to set up a false identity but it is inadvisable for a member of a public authority to do so for a covert purpose without an authorisation for directed surveillance when private information is likely to be obtained. The SRO should be satisfied that there is a process in place to ensure compliance with the legislation. Using photographs of other persons without their permission to support the false identity infringes other laws.

288.4 A member of a public authority should not adopt the identity of a person known, or likely to be known, to the subject of interest or users of the site without authorisation, and without the consent of the person whose identity is used, and without considering the protection of that person. The consent must be explicit (i.e. the person from whom consent is sought must agree (preferably in writing) what is and is not to be done).

So this is guidance to members of the State (such as social workers) as to when they can view social media without consent of the author or going to obtain Regulation of Investigatory Power Act (RIPA) authorisation in the form of a warrant from a Magistrate. (which they are highly unlikely to get)

If a parent has privacy settings, then the ONLY way to view it is with the person’s explicit consent OR a warrant under RIPA from a Magistrate. Anything else is an offence.

The guidance is VERY plain that using dummy or fake accounts to gain access to another person’s social media presence is ‘inadvisable’

The tricky bit is here

Where privacy settings are available but not applied the data may be considered open source and an authorisation is not usually required. Repeat viewing of ―open source sites may constitute directed surveillance on a case by case basis and this should be borne in mind.

(It’s not clear about where privacy settings are NOT available, but as Facebook, Twitter, Instagram and all dating websites have privacy settings, I don’t think this is going to come up very often. Maybe if the parent is posting a lot on Reddit…. )

What this says is that even where a person has no privacy settings on their social media and it is ‘open source’ – i.e available to anyone to go and look at, “REPEAT viewing of open source sites MAY constitute directed surveillance on a case by case basis” (and if it does, RIPA authorisation would be needed)

Note that

Amendments to the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (“the 2010 Order”) mean that a local authority can now only grant an authorisation under RIPA for the use of directed surveillance where the local authority is investigating particular types of criminal offences. These are criminal offences which attract a maximum custodial sentence of 6 months or more or relate to the underage sale of alcohol or tobacco.

And therefore, if in an individual case, the REPEAT viewing of open source social media by someone working for a local authority DOES count as directed surveillance, it will be unlawful. Because a Local Authority can only do this with authorisation, and the authorisation can only be given for investigating particular types of criminal offences (and the “we were doing it to prevent child abuse/drug misuse won’t cut it. Sale of cigarettes to children in a shop is the sort of thing that is okay for getting a warrant for directed surveillance – that sort of hidden camera thing)

And conducting unauthorised direct surveillance is an offence under RIPA. So serious stuff.

What’s REPEAT viewing?

Well, the guidance doesn’t say REPEATED (which implies multiple occasions) and my best guess is that REPEAT means what it says on the tin, more than once.

Any social worker that accesses a parents social media presence (even if they are available to the public) more than once, is at risk of committing the criminal offence under RIPA and having their actions potentially actionable in damages. Local Authorities are obliged to follow the guidance, they can’t just choose to ignore it.

During the Twitter discussion, some people felt that if a parent chooses to publish the material for the public (and doesn’t make use of the privacy settings) then they have effectively waived their privacy. They have, in so far as members of the public are concerned. Any member of the public can go and look at their social media presence.

But an agent of the State can’t do make REPEAT viewings of it, even if the accounts are open to the public. (and no, you can’t just take off your social work hat and put on your member of the public hat)

I look at it this way. The street outside your front door is open to the public – just like your social media account on no privacy settings. Anyone can stand in that street. If they stand there, they can see your front door, and if you don’t close your curtains, can see into your house. But if it is a member of the State doing that, they either need your permission or an authorisation to conduct surveillance without your permission.

It’s the same here – just because you’ve left your curtains open doesn’t mean that the social worker can stand outside your house in a public road and look through your window whenever they want.

As we can see from the case below, failure to obtain the evidence legally doesn’t make it inadmissible, and the family Court won’t be the place to punish any offence under RIPA (that will be a criminal court, boys and girls, so think on)

But I would imagine that representations would be made that if a social worker has made repeat viewings of social media, and not taken this guidance into account, that their assessment is tainted by this and their evidence should be viewed with caution. Whether or not Judges accept those representations is a different question.

https://suesspiciousminds.com/2017/07/19/watching-the-detectives/

Until there’s more clarity on this, given that it is a criminal offence, the advice must be ONCE without consent is as far as it is safe to go. I would also counsel against anyone immediately thinking “well, as long as I only do it once, there are seven workers in my team, so we can get seven bites at it” . If there’s even a tiny risk that what you are doing may be a criminal offence, don’t mess around with taking that risk.

If you get explicit consent from the parent “I’d like to look at your Facebook profile” “Yes, I agree to that”, then you are good. Otherwise, once is the only safe number.

There’s a tricky grey area where a parent has posted something they shouldn’t have done on social media and have been asked to take it down or something defamatory – how can that now be checked? I think the parent would have to consent. (or directed by the Court to produce evidence to show that the offending remarks have been removed)

Thanks a million

 

The blog passed its one millionth visitor yesterday. Which for me is pretty mind boggling, considering that when I started it, I didn’t know if anyone would ever see it.  So huge thanks to all the people who have read it, told others, commented or tweeted. All of you have made this happen. Big love for all of you

 

 

Andrew

 

 

(Not Sue)

 

 

 

 

 

Follicle a deux

(or trois, really)

This is a High Court case involving hair strand testing, where three different companies were involved and produced three slightly different results. The science is discussed and some guidance for more meaningful and clearer reports is provided.

Note that this case is NOT authority for “one of these companies is the bestest” or “one of these companies is the suck” – it is notable that each of the three companies ended up lawyering up for the hearing, two of them silking up.

There’s a lot at stake with revenue and commercial reputation here for each of these companies and I’m not going to be damn foolish enough to draw any conclusions of my own, so I’ll stick to what the Court said.

Re H (A Child :Hair Strand Testing) 2017

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/64.html

The case was heard by Mr Justice Peter Jackson (I think it might be his last case as plain J. For the moment, he is LJ. Frankly, if and when our current Dali Lama moves on, I have my own views about a suitable replacement.)

3. The reason why this hearing has involved five days of evidence is because there is also an underlying factual issue. Has the mother been using drugs, albeit at a low level, during the past two years? She adamantly denies doing so and, with one significant exception, the other evidence supports her. The exception is a body of scientific information from hair strand tests taken over the two-year period, which are interpreted by the testing organisations as showing low-level cocaine use for at least some of the time. That has been challenged by the mother and I have heard from five expert witnesses: one from each of the three testing organisations, one on behalf of the mother, and one jointly instructed.

From my reading of the case, by the time of the final hearing, it was common ground that the child should be placed with the mother (although that only became common ground 2 days before the final hearing) and the only issue was whether that should be under a Care Order or a Supervision Order – so in this particular case, the outcome of the hearing was not hinging on the outcome of the drug tests, but there are of course many others where it does, so the good practice guidance is going to be helpful for those.

In summary, there is no doubt that the mother was in a dismal state two years ago, to the point where she was quite incapable of looking after any child. It is now accepted that she has turned her life around to the point that she is now capable of looking after one child with support. She says that she has achieved this by avoiding damaging relationships and by complete abstinence from drugs and alcohol. The local authority argues that the hair strand testing shows that complete abstinence has not been achieved, which raises the level of risk that Holly will get caught up in future drug use of the kind seen in the past. It also argues that the hair strand tests show that the mother has not been telling the truth and consequently that she cannot be fully trusted.

There were in all some 47 hair strand tests in this case. That’s not a typo. Forty. Seven. Forty-seven. 47. There was some variation in the tests, even when they were taken at similar times.

37. In relation to the variability of results, the tables provided by Mr Poulton at [C164z-164ac] illustrate that the range of results obtained by the different laboratories varies quite considerably. Notably, the DNA Legal results for 2016 were in some cases two or three times higher than those found by the other organisations. This is then reflected in the fact that DNA Legal reported findings in the low to medium range, while the others reported only low findings. However, direct comparison between the test results is to some extent confounded by the fact that hair was taken at different times, and that the assumed 1 cm growth rate may not be correct. It is also important to remember that the results may be affected by differences in laboratory equipment and differences in the way the hair is washed before analysis.

38. The testing carried out in July 2017, allows for the most direct comparison as the hair was all harvested at the same time. Even so, as an example of variability, two laboratories showed a cocaine result relating to the month of April at 0.11 and 0.17 (well below the cut-off), while the third showed it as 0.52 (just above the cut-off).

You can see that this is problematic. Courts, and social workers, and lawyers and parents need to know that when a hair strand test says that someone has taken cocaine (or hasn’t), that the test is accurate. Here, if a parent had done just one of those three tests on their own, a conclusion could have been drawn that they were clean, or that they had used cocaine depending on nothing more than which company did the test. That can’t be right.

And it doesn’t mean that one company is being too harsh, or that another is messing it up, it is just illustrative that there are limits, presently, to the science.

[I have already seen this morning triumphant press releases trumpeting that this High Court Judge has praised x company to the skies. I think that somewhat overstates things. That’s just my personal opinion, naturally. The Judge does clearly prefer, in this case, the evidence from the companies to that of the independent expert who was attacking their methodology, but it would be simplistic, in my view, to claim that the judgment strongly backs the science or an individual company or sets down a marker that hair strand test results are definitive always]

Yes, Cousin It, your hair strand test has come back positive for Creepy, Spooky and altogether Oooky.

The Judge says this :-

40. In my view, the variability of findings from hair strand testing does not call into question the underlying science, but underlines the need to treat numerical data with proper caution. The extraction of chemicals from a solid matrix such as human hair is inevitably accompanied by margins of variability. No doubt our understanding will increase with developments in science but, as matters stand, the evidence in this case satisfies me that these testing organisations approach their task conscientiously. Also, as previous decisions remind us, a test result is only part of the evidence. A very high result may amount to compelling evidence, but in the lower range numerical information must be set alongside evidence of other kinds. Once this is appreciated, the significance of variability between one low figure and another falls into perspective

41. I must say something about the reporting of test results as being within the high/medium/low range. In fairness to the testing organisations, this practice has developed at the request of clients wishing to understand the results more easily. The danger is that the report is too easily taken to be conclusive proof of high/medium/low use, when in fact the actual level of use may be lower or higher than the description. You cannot read back from the result to the suspected use. Two people can consume the same amount of cocaine and give quite different test results. Two people can give the same test result and have consumed quite different amounts of cocaine. This is the consequence of physiology: there are variables in relation to hair colour, race, hair condition (bleaching and straightening damages hair), pregnancy and body size. Then there are the variables inherent in the testing process. Dr McKinnon explained that there is therefore only a broad correlation between the test results and the conclusions that can be drawn about likely use and that it should be recognised that in some cases (of which this is in his opinion, one) there will be scope for reasonable disagreement between experts.

42. Furthermore, the evidence in this case shows that even as between leading testing organisations, the descriptions are applied to different numerical values. DNA adopts the figures set out in the relevant studies, while the two other organisations divide their own historic positive laboratory results into thirds (Alere) or use the interquartile range for medium (Lextox).
43. So it can be seen that there is variability in descriptions that are intended only to assist. As a case in point, the DNA Legal high figure for 2016 (1.50), which was itself significantly higher than that reported by the other testers, would only be described as falling into the medium range by two of the three organisations.

(Again, that’s not to say that one company is better than the others, or that one is getting it wrong, but you can see that a helpful label of high, medium or low use, is only helpful if you know what high, medium or low means FOR THAT company. It won’t necessarily be the same as for another company)

Hair strand testing has been considered in several previous cases:

In Re F (Children)(DNA Evidence) [2008] 1 FLR 328, a case involving DNA testing, Mr Anthony Hayden QC said this, amongst other things, at paragraph 32:

“The reports prepared for the court by the… experts should bear in mind that they are addressing lay people. The report should strive to interpret their analysis in clear language. While it will usually be necessary to recite the tests undertaken and the likely ratios derived from them, care should be given to explain those results within the context of their identified conclusions.”

In London Borough of Richmond v B [2010] EWHC 2903 (Fam), a case about hair strand testing for alcohol, Moylan J said this at paragraph 10, referring to the practice direction that became PD12B:

“10. I have referred to the Practice Direction because some of the expert evidence which has been produced in this case appears to have been treated as though it was not expert evidence. It may well be that results obtained from chemical analysis are such as to constitute, essentially, factual rather than opinion evidence because they are not open to evaluative interpretation and opinion. Although I would add that it is common for such analysis to have margins of reliability. However, the Practice Direction applies to all expert evidence and it will be rare that the results themselves are not used and interpreted for the purposes of expert opinion evidence.”

And further, at paragraph 22:

“When used, hair tests should be used only as part of the evidential picture. Of course, at the very high levels which can be found (multiples of the agreed cut off levels) such results might form a significant part of the evidential picture. Subject to this however, both Professor Pragst and Mr O’Sullivan agreed that “You cannot put everything on the hair test”; in other words that the tests should not be used to reach evidential conclusions by themselves in isolation of other evidence. I sensed considerable unease on the part of Professor Pragst at the prospect of the results of the tests being used, other than merely as one part of the evidence, to justify significant child care decisions;”

Bristol City Council v The Mother and others [2012] EWHC 2548 (Fam), Baker J was concerned with testing for cocaine and opiates. In that case, an unidentified human error in the process led to a false positive report. At paragraph 25, Baker J endorsed these four propositions:

“(1) The science involved in hair strand testing for drug use is now well-established and not controversial.

(2) A positive identification of a drug at a quantity above the cut-off level is reliable as evidence[1] that the donor has been exposed to the drug in question.

(3) Sequential testing of sections is a good guide to the pattern of use revealed.

(4) The quantity of drug in any given section is not proof of the quantity actually used in that period but is a good guide to the relative level of use (low, medium, high) over time.”

Baker J declined to go further, saying this at paragraph 25:

“The jurisdiction of the family courts is to determine specific disputes about specific families. It is not to conduct general inquiries into general issues. Occasionally, a specific case may demonstrate the need for general guidance, but the court must be circumspect about giving it, confining itself to instances where it is satisfied that the circumstances genuinely warrant the need for such guidance and, importantly, that is fully briefed and equipped to provide it.”

Most recently, Hayden J returned to the subject in London Borough of Islington v M & R [2017] EWHC 364 (Fam), a case of hair strand testing for drugs. He said this at paragraph 32:

“It is particularly important to emphasise that each of the three experts in this case confirmed that hair strand testing should never be regarded as determinative or conclusive. They agree, as do I, that expert evidence must be placed within the context of the broader picture, which includes e.g. social work evidence; medical reports; the evaluation of the donor’s reliability in her account etc. These are all ultimately matters for the Judge to evaluate.”

Peter Jackson J (as he then was) drew up 12 principles about hair strand testing (they are really useful). I hadn’t myself been aware of the principle that some hairs in a sample at any time won’t actually be growing (resting hairs – about 15%) which is why you can’t just test on a single hair, you need a large enough sample to make sure that you’ve accounted for hairs within the sample where there will not have been any growth. If you just tested one hair, that hair might be a resting growth hair, and would thus show you cocaine use from 4-6 months ago and fool you into thinking that it is a growing hair where that would mean recent cocaine use.

28. I next set out twelve propositions agreed between the expert witnesses from whom I have heard:

(1) Normal hair growth comprises a cycle of three stages: active growing (anagen), transition (catagen) and resting (telogen). In the telogen stage can remain on the scalp for 3-4 (or even 5 or 6) months before being shed. Approximately 15% of hair is not actively growing; this percentage can decrease during pregnancy.

(2) Human head hair grows at a relatively constant rate, ranging as between individuals from 0.6 cm (or, in extreme cases, as low as 0.5 cm) to 1.4 cm (or, in extreme cases, up to 2.2 cm) per month. If the donor has a growth rate significantly quicker or slower than this, there is scope both for inaccuracy in the approximate dates attributed to each 1 cm sample and for confusion if overlaying supposedly corresponding samples harvested significant periods apart.

(3) The hair follicle is located approximately 3-5 mm beneath the surface of the skin; hence it takes approximately 5-7 days the growing hair to appear above the scalp and can take approximately 2-3 weeks to have grown sufficiently to be included in a cut hair sample.

(4) After a drug enters the human body, it is metabolised into its derivative metabolites. The parent drug and the metabolites are present in the bloodstream, in sebaceous secretions and in sweat. These are thought to be three mechanisms whereby drugs and their metabolites are incorporated into human scalp.

(5) The fact that a portion of the hair is in a telogen stage means that even after achieving abstinence, a donor’s hair may continue to test positive for drugs and/or their metabolites for a 3-6 month period thereafter.

(6) Hair can become externally contaminated (e.g. through passive smoking or drug handling). Means of seeking to differentiate between drug ingestion and external contamination include:

(i) washing hair samples before testing to remove surface contamination

(ii) analysing the washes

(iii) testing for the presence of the relevant metabolites and establishing the ratio between the parent drug and the metabolite

(iv) setting threshold levels.

(7) Decontamination can produce variable results as it depends upon the decontamination solvent used.

(8) The SoHT has set recommended cut-offs of cocaine and its metabolites in hair to identify use:

(i) cocaine: 0.5 ng/mg

(ii) metabolites BE, AEME, CE and NCOC: 0.05 ng/mg

(9) Cocaine (COC) is metabolized into benzoylecgonine (BE or BZE), norcocaine (NCOC) and, if consumed, together with alcohol (ethanol), cocaethylene (CE). The presence of anydroecgonine methyl ester (AEME) in hair is indicative of the use of crack smoke cocaine.

(10) Cocaine is quickly metabolised in the body: therefore, in the bloodstream the concentration of cocaine is usually lower than that of BE. However, cocaine is incorporated into hair to a greater degree than BE: therefore, the concentration of cocaine in the hair typically exceeds that of BE. Norcocaine is a minor metabolite and its concentration in both blood and hair is usually much lower than either cocaine or BE.

(11) Some metabolites can be produced outside the human body. In particular, cocaine will hydrolyse to BE on exposure to moisture to variable degree, although high levels of BE as a proportion of cocaine would not be expected. It is very unlikely that NCOC will be found in the environment. The fact that cocaine metabolites can be produced outside the body raises the possibility that their presence is due to exposure: this is not the case with cannabis, whose metabolite is produced only inside the body.

(12) Having washed the hair before testing, analysis of the wash sample can allow for comparison with the hair testing results. There have been various studies aimed at creating formulae to assist in differentiating between active use and external contamination. In particular:

(i) Tsanaclis et al. propose that if the ratio of cocaine in the washing to that in the hair is less than 1:10, this indicates drug use.

(ii) Schaffer proposed “correcting” the hair level for cocaine concentration by subtracting five times the level detected in the wash.

The underlying fundamentals are that if external contamination has occurred (and therefore a risk of migration into the hair giving results that would appear to be positive) this is likely to be apparent from the amount of cocaine identified in the wash relative to that extracted from the hair.

An issue in the case was whether the existence of results that showed something, but below the cut-off levels, were evidence of anything

7. Having considered the evidence in this case, I arrive at the same conclusion as Hayden J in Re R, where (at paragraph 50) he preferred “a real engagement with the actual findings” to “a strong insistence on a ‘clear line’ principle of interpretation”. I accept the evidence of the witnesses for the testing companies that when one analyses thousands of tests, patterns can emerge that help when drawing conclusions. It would be artificial to require valid data to be struck from the record because it falls below a cut-off level when it may be significant in the context of other findings. That would elevate useful guidelines into iron rules and, as Dr McKinnon says, increase the number of false negative reports. What can, however, be said is that considerable caution must be used when taking into account results that fall below the cut-off level

The Court gave some practical guidance on the presentation of reports

Report writing and reading

57. The parties have made suggestions as to how the presentation of reports might be developed so as to be most useful to those working in the field of family justice. I will record some of these suggestions and some of my own. Before doing so, I note that each of the testing organisations already produces reports that contain much of the necessary information in one shape or another. It is also important to stress the responsibility for making proper use of scientific evidence falls both on the writer and the reader. The writer must make sure as far as possible that the true significance of the data is explained in a way that reduces the risk of it becoming lost in translation. The reader must take care to understand what is being read, and not jump to a conclusion about drug or alcohol use without understanding the significance of the data and its place in the overall evidence.

58. Comment was made during the evidence that certain courts, and in particular Family Drug and Alcohol Courts, are very familiar with the methodology of hair strand testing and the way in which reports are laid out. The objective must be for all participants in the system, professional and non-professional, to develop a similar competence, even though they do not read as many reports as the FDAC does.

59. There are currently nine accredited hair strand testing organisations working in the family law area. It is not for the court hearing one case to dictate the way reports are written by those who have intervened in this case or by others who have not taken part, but I include the following seven suggestions in case they are helpful.

(1) Use of high/medium/low descriptor:

This is in my view useful, provided it is accompanied by:

· A numerical description of the boundaries between high/medium/low, with an explanation of the manner in which the boundaries are set should be stated.

· A clear statement that the description is of the level of substance found and not of the level of use, though there may a broad correlation.

· A reminder that the finding from the test must always be set alongside other sources of information, particularly where the results are in the low range.

(2) Reporting of data below the cut-off range:

There is currently inconsistency as between organisations on reporting substances detected between the lower limit of detection (LLoD) and the lower limit of quantification (LLoQ), and those between the LLoQ and the cut-off point.

I would suggest that reports record all findings, so that:

· a finding below the LLoQ is described as “detected, but so low that it is not quantifiable”

· A result falling below the cut-off level is given in numerical form

and that this data is accompanied by a clear explanation of the reason for the cut-off point and the need for particular caution in relation to data that falls below it.

(3) Terminology

Efforts to understand the significance of tests are hampered by the lack of a common vocabulary to describe results in the very low ranges, Descriptions such as “positive”, “negative”, “indicates that” and “not detected” can be used and understood vaguely or incorrectly. The creation of a common vocabulary across the industry could only be achieved by a body such as the SoHT. In the absence of uniformity, reporters should define their terms precisely so that they can be accurately understood.

(4) Expressions of probability:

The Family Court works on the civil standard of proof, namely the balance of probabilities. It would therefore help if opinions about testing results could be expressed in that way. For example:

“Taken in isolation, these findings are in my opinion more likely than not to indicate ingestion of [drug].”

“Taken in isolation, these findings are in my opinion more likely than not to indicate that [drug] has not been ingested because….”

“Taken in isolation, these findings are in my opinion more likely to indicate exposure to [drug] than ingestion.”

(5) Where there is reason to believe that environmental contamination may be an issue, this should be fully described, together with an analysis of any factors that may help the reader to distinguish between the possibilities.

(6) The FAQ sheet accompanying the report (which might better be described as “Essential Information”), might be tailored to give information relevant to the particular report, and thereby make it easier to assimilate.

(7) When it is known that testing has been carried out by more than one organisation, the report should explain that the findings may be variable as between organisations.

And I think this line is likely to appear in written submissions from time to time

61. The burden of proof is on the local authority, which must prove its allegations on the balance of probabilities. As Ms Markham QC and Miss Tompkins rightly say, the presence of an ostensibly positive hair strand test does not reverse the burden of proof.

Carbonara conundrums – what we do or don’t know about the “Muslim foster carer” case

 

Unless you’ve been living under a rock, or you’ve taken a year off from the news in the hope that when you come back everything will be okay (good luck with that), you’ll have heard about the child in foster care said to have been mistreated by Muslim foster carers.

The Times (paywall paywall paywall) and Mail have reported on it extensively this week, and most other papers have followed them.

This is the gist of the story – a white English child whose mother is a Christian, has been placed against mother’s wishes with Muslim carers. The child told the mother that they had not spoken English (the press reports were that the carers couldn’t speak English, we know now that this is not correct), that they had told her she couldn’t or shouldn’t celebrate Easter or Christmas, was forbidden from having her favourite meal spaghetti carbonara because it contains ham, had her crucifix taken/ripped off her, and was told that all English women are alcoholics. The child was reported to be distraught by this.

 

The Press reported that, and had the additional angle that it was wrong for white Christian children to be placed with Muslim carers.  The Times published a genuine (but pixelated) photograph of the female foster carer and the child, the Mail used a stock photograph and badly photoshopped in a veil for some reason on the adult female.

 

Han Solo was all, like “they’re going to put me in the Carbonara chamber? Bring it”

 

 

Imagine that I am more tech savvy and that this niqab is over the plate of carbonara. That would be much better.

 

Let’s very quickly deal with the first issue – the systemic one.  Should ethnic and cultural matches be the priority when placing children – well, sort of. Local Authorities do have duties to take into account the child’s cultural and religious heritage and make sure that those needs are met in foster care.  At the same time, the Government brought about law  (cough, at the behest of the same Press outlets who are screeching about this) to stop those factors being considered in adoptive placements  (that came about because the Press were appalled that white carers were being told they couldn’t adopt non-white children, of whom there was a surfeit – the system had more white carers than white children who needed carers, and more BAME children who needed carers than BAME carers. That’s true of foster carers too).

So whilst a Local Authority will try to match children to foster carers, it isn’t always possible to have an exact match – the amount of carers of particular types doesn’t equate to the amount of children who need such carers.  In general, it is more common to find BAME children placed with white carers than the reverse – which is what happened here, but it depends where you are in the country.  When I worked in the West Midlands, we did sometimes have to place white children with BAME carers, so it depends on local demographics as well as national ones.

 

So there is a systemic problem, but it is interesting that the Press have complained about it in two different directions, that white carers should be allowed to have BAME children and that white children shouldn’t be with BAME carers.  I think the Press might want to have a bit of a think about that.

 

Anyway, I’m more interested in the INDIVIDUAL issues.

Easiest question first.

 

  1. If the foster carer did this, is that okay?

 

Absolutely not. Local Authorities and foster carers have a duty to look after children in their care and treat them well. They have a duty to respect a child’s cultural and religious heritage and what is complained of here IF TRUE is appalling.  IF TRUE, that person would be unsuitable to foster and would probably be deregistered as a foster carer.

 

2. Are all foster carers perfect?

 

No. Foster carers are human beings, and all human beings have flaws and are capable of showing those flaws. Some foster carers have abused children in their care – some much more seriously than these allegations and have gone to prison for it. The Press don’t seem to give those convictions front page stories very often (though cases where foster carers murder children in their care do make the front page).  It’s a bit like a plane crash – plane crashes happen, and when they happen it is awful and dreadful and important that people try to learn from how it happened and stop it happening in the future, but you can’t assess whether plane travel is generally safe or generally dangerous by only thinking about the ones that crash. You have to have the context of there being a lot of planes flying every day with no problems.  (That doesn’t mean that abuse in foster homes is okay, any more than a plane crash is okay. Just that context is important)

3. So is this a story?

 

IF TRUE, yes, it is a story.  If it isn’t true and mother’s allegations are false, it’s not really a story at all.  Person lies in Court is not a news story. People do it all the time. That’s why we need Judges. If everyone who went to Court just told the truth always, we wouldn’t need a Judge and thousands of pieces of paper to work things out.

 

4. So is it TRUE ?

 

We don’t know.  There’s some stuff that we DO know.

 

The Court have published the order

https://www.judiciary.gov.uk/judgments/the-child-ab-case-management-order-no-7-anonymised/

 

From that, we do know some stuff. I’d suggest you read it at the end rather than now, because whilst it might make readers lean one way or the other on whether the story is true or not, the ultimate fact is that we don’t know.  We know that mother alleges this stuff, and that the Local Authority say it isn’t true.  The Court is gathering the evidence, but nobody has yet got into the witness box and answered questions and the Judge hasn’t decided anything.

If this child has given that account, it MUST have been in a supervised contact setting. So perhaps there is evidence that supports the mother’s allegations – of contact recordings showing that the child said that. Perhaps the contact recordings don’t show any such conversations. We don’t know.  The Times certainly didn’t apply to Court for permission to publish an anonymised version of the contact recordings that would support their story – that doesn’t necessarily mean they don’t exist, maybe the reporter didn’t know that they could ask. Maybe if they had asked, the Court would have said no. We don’t know.

Anyone who says now that they are SURE the foster carer has done this, is coming to that conclusion when we don’t know any of the facts or evidence. Equally, anyone who says this mother must be lying (because she is this, that and the other) is also jumping to a conclusion when we don’t know any of the facts or evidence.  Imagine for a moment this Press report being that a mother claimed the foster carer racially abused her, or that a psychologist made up quotes from her – we might speculate that the mother is bound to be making this up (but in two cases where those things were claimed, the mother was right and tape recording evidence proved it).   So don’t assume that either of them MUST be telling the truth. We don’t know.

5. Will we EVER know?

 

Tricky. The way that we will know whether the evidence, as tested in Court, by witnesses being asked evidence and the documents being considered, is when a judgment is published. That judgment would clearly be in the public interest and I’m sure it will be published. I would then write about it.  The Press may, if the Judge decides that the mother’s account was right. They may, if the Judge decides they were all fooled by a single source, publish that with an apology. They may publish a Christoper Booker-esque piece about how the secret family Courts have got this wrong and that they know best. We don’t know.

 

6. But will there be a judgment?

 

This is really my reason for contributing on this.  The family Courts are paid for by taxpayers. They are spending taxpayers money. They have a job to do in relation to each set of care proceedings they hear. The Court of Appeal has made it clear that they have to answer two questions.

 

(a) Has this child been significantly harmed or is the child at risk of significant harm with that harm being a result of the parents behaviour being unreasonable (and if not, that’s the end of it)

and

(b) What orders, if any, should the Court make?

 

(Many people wrongly conflate b with – decide where the child should live. Although there’s often quite a bit of overlap, the Court is not deciding where the child should live, but what order if any to make)

 

Now, from reading the order, this mother is undertaking drug tests and alcohol tests, and is also facing criminal charges for something (some of the Press reports specify it, but it isn’t in the order) and the criminal proceedings papers are being produced.  I think those things are probably relevant to (a) – it may be proved, or it may not. But whether or not  the foster carer did or didn’t do these things doesn’t come into it.

The foster carer isn’t being considered as a permanent carer for the child, so there’s no need to assess her for (b). It is a straight shoot-out between Special Guardianship Order to grandmother (with possibly a string of other orders about placing the child in a foreign country, as that’s her intention) or no order/Supervision Order with the child being with mother.  That’s going to hinge on whether the Court considers that mother can provide good enough care for the child. These allegations don’t come into it.

But, surely if the Court decides that mother was wronged about the foster placement, they’d have to put that right by returning the child to her care? No, the Court’s paramount consideration is the child, not mother.   But surely, if the Court decides mum lied about these allegations, they couldn’t return the child to her care? No, because the Court’s paramount consideration is the child, not whether mother lied.  But surely if mother lied about this, the Court could take that into account as to whether she’s lying about other stuff?  Well, not really. The Court have to follow a principle from a case called Lucas  – the Court must remind itself that just because a person told lies about A that doesn’t mean that they are lying about B, C or D too – people can tell lies for a number of reasons and lying about one thing, even if you are caught out doesn’t mean you are lying about everything.

 

SO – I think there is a considerable prospect of the Court not actually litigating this argument at all.  If the assessments of mother are that she can provide good enough care, there won’t be a contested final hearing at all. If there is a final hearing about SGO with grandmother versus no order/ Supervision Order with mum, then this aspect doesn’t help the Court make that decision in any way.

 

It is possible that the Court will deal with it and make findings one way or the other, as a result of the public interest – but it is worth remembering that the Court isn’t a public inquiry – it isn’t there to give me, or you or the Daily Mail answers – it is there to decide what orders to make for the child.  If the Court hears evidence about these allegations, they would need to hear from the foster carer (s), the contact supervisor(s) and mother – that probably amounts to adding an extra day to the hearing to satisfy my curiousity. And if the Judge spends an extra day doing this case than another case, another child, has to wait for their decisions.

 

It’s a bit of a downbeat answer – we may never know from the family Court what really happened.

 

 

BUT BUT BUT

 

What about other Court hearings?

Well, it is theoretically possible that mother might make a claim under the Human Rights Act for damages for these allegations, and then the Court would have to hear evidence and make the decision.  Or for damages as a result of the Local Authority failing to comply with their statutory duty to promote and respect the child’s cultural and religious heritage. That sounds a bit thin.  Firstly, the claim even if everything is proved is a bit thin for a HRA claim and secondly mother would have to get that litigation funded somehow – which means persuading either the Legal Aid Agency that this is an exceptional case which justifies it or persuading a lawyer to do it for free.

And there isn’t an automatic guidance that all judgments like that are published (I think it would be in this case due to the public interest).

 

What else?

Well, an investigative route would be Fostering Panel. Foster carers do have their registration reviewed, and Fostering Panel can consider revoking registration. They aren’t massively set up for hearing evidence on contentious issues and making determinations as to disputed facts – I also don’t think they’d do a long ‘judgment’  – it would be more likely to be a short decision. And they don’t have to publish that. And even a cunningly-worded FOI request to Tower Hamlets would probably be knocked out on the basis that the foster carer has rights under the Data Protection Act about their sensitive and personal data.

 

A Serious Case Review? Don’t think it meets the criteria – the child hasn’t been seriously injured.

 

So either this Judge will go out on a limb to deal with the allegations as part of a contested final hearing and publish a judgment, or we will never know. At this point, I’d say it is 70-30 on us never knowing.

 

ANYONE CURRENTLY saying  “This is definitely what happened in this case” does not know what they are talking about.  It is a guess. It might turn out to be a good guess, but it is a guess.