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UNBREAKABLE

A Court of Protection case about whether one of the litigants was able to make their own tape-recordings, and what happens when the Court have finally had enough of volume and timbre of email correspondence.

Re TA Recording of hearings 2021

TA, Re (Recording of hearings; Communication with Court office) [2021] EWCOP 3 (22 January 2021) (bailii.org)

Cobb J dealt with this case, which involved more broadly a woman with Alzheimers and decisions about her future, but specifically with her son, TA, whom it would be fair to say had a difference of opinion with the local authority about these matters.

TA wished to tape record the Court hearings and sought permission to do so. (also raising within his application that he did not consider it reasonable for the Court to record him in the hearings if he were not able to do the same, thus raising the issue in law as to whether an individual has any powers under data protection legislation to prevent that without his consent)

  1. By a COP9 application dated 17 November 2020, TA seeks permission to record the court hearings concerning GA. He justifies this on the basis that he has a need, following each hearing, to be able to revisit the issues discussed in court, and that he cannot be expected to take handwritten notes alongside making full representation before the court as a litigant in person. In a further COP9 application purportedly issued on the morning of the hearing (15 January 2021), TA requested further and specific permission to audio and visually record the hearing before me. In the accompanying e-mail (15 January 2021), he said this:

“… under NO circumstances shall I be entering the jurisdiction of the Court and presenting myself before Mr Justice Cobb without making a private recording of the event.
Therefore, either permission is granted or I be prevented from entering the Court’s jurisdiction. I am under no legal obligation to enter the jurisdiction of the Court, unrepresented as a litigant in person, and to then have my voice recorded without my express permission and at the same time prevented from procuring a copy of said recording in clear contravention of the Data Protection Act 2018, and then forced to pay for a transcription of said recording, without access to the actual audio recording itself.
I will no longer be compromised on this matter.”

TA further developed an argument at the hearing based on the hearing being remote – in effect, he was not in the physical Court building, he was in his own home, and thus (a) he should be allowed to do what he wanted in his own home and (b) that the Court were in effect recording him in his own home, thus interfering with his article 8 rights.

At the hearing, and pending my decision on his application, TA advised me that he was not recording the hearing. He expanded his arguments on this application at some length during the hearing. He made the following points:
i) It is in breach of his human rights to be denied the right (“as a free person”) to record conversations; that he has a right to make recordings of anyone entering his “jurisdiction”, by which I understood he meant his home;

ii) He challenges the contention (see 10 below) that he has published recorded information relating to these proceedings in the past, and that by posting material from, or related to, these proceedings on to a private ‘YouTube’ channel he is not “publishing” information and the video clips are not therefore in the public domain;

iii) The Local Authority employees are “pathological liars”, and he has suffered “discrimination” from many judges (“bullied, intimidated and victimised”), and he needs the recordings in order to evidence this;

iv) He has experienced unnecessary delay in obtaining transcripts in the past; the transcripts have been costly, and in any event transcripts “do not capture the whole intonation and the silences in the court”;

v) There is an incongruity between the practices of different courts;

vi) Opposition to his application for the right to record has been driven by a wish to “censor” TA;

vii) He would wish the recording “for my own protection and benefit”.

In developing these points orally, at times TA appeared to suggest that as he was not ‘in court’ and was “outside the jurisdiction of the court”, he could record conversations as he wished. I reminded him that although he was not physically in a court building, he was every bit as much ‘in a court’ on the video platform.

At this point, whilst I can predict what the eventual answer might be, I’m not quite sure how the Judge is going to get there, but as it is a Cobb J judgment you know that we will get an explanation which is clear, succinct and right. Here we go:-

I would like to make three points about this application. First, as to the recording itself, the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 (‘the 2020 Act’) applies. The 2020 Act introduced new statutory provisions (sections 85A-85D) into the Courts Act 2003 which:
i) empower the court to direct that a recording of the proceedings be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings;

ii) create a criminal offence for a person to make, or attempt to make an unauthorised recording, or an unauthorised transmission, of an image or sound which is being broadcast in accordance with the law.

Nonetheless, as Hayden J, as Vice President of the Court of Protection, made clear in his guidance to which I have earlier referred (‘Remote Access to the Court of Protection’: 31.3.2020), the terms of the statutory criminal prohibitions (as adapted) were to be included in every standard order thereafter, accompanied by a penal notice and punishable by contempt proceedings. I have reviewed the orders made in this case since that time, and am satisfied that such orders have indeed from time to time been made and repeated. Furthermore, consistent with this approach, the Court Associate who called the case on before me, on 15 January 2021, made clear in her introduction to the hearing, that “under no circumstances” could the hearing be privately recorded.

Secondly, and in any event, (and as TA himself acknowledged at the hearing), it would be a contempt of court, punishable by imprisonment, for any party to record a hearing without the permission of the judge: see section 9 of the Contempt of Court Act 1981 (‘Use of Tape Recorders’). While I have a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526), I would need to be satisfied that the applicant had a reasonable need to make such a recording. I am far from persuaded that TA can demonstrate such a need; indeed, by contrast, I am wholly satisfied that TA has a very good (I would suggest an extraordinary), grasp of the procedures, the documents and the issues engaged in these proceedings.
I therefore advise, or more accurately remind, TA that while it may not be a statutory criminal offence to record the proceedings or any part of them unless he is authorised to do so, this would nonetheless be a civil contempt, punishable by imprisonment.

The application for TA to conduct his own tape recording was refused.

The secondary matter which arose was the nature and volume of TA’s email correspondence with the Court of Protection court office.

In the latter part of last year, it had come to the attention of HHJ Anderson (one of the two Regional Lead Court of Protection Judges in the North East, and previously the allocated judge for this case) that TA’s conduct towards, and correspondence with, the Court of Protection court office in Leeds had become excessive and may warrant some proscription. On 10 December 2020 HHJ Anderson directed of the court’s own motion that the issue of TA’s communication with the court office be considered specifically by the Court; she invited me to deal with this. HHJ Anderson made an order directing the preparation of a witness statement from the Operations Manager at the Court of Protection court office, and gave TA the opportunity to reply.
The Operations Manager has filed a statement (17.12.20); she records that the court received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month). Her statement goes on to reveal that the e-mail/correspondence traffic generated between TA, the judiciary, and the other parties, in a recent ‘snapshot’ of 3 months (September, October, November 2020) amounted to 392 separate pieces of mail/correspondence sent/received. This amounts to approx. 130 pieces of correspondence per month, or 4.5 per day.
The Operations Manager has further advised that TA has made 39 COP9 applications in the case over the 24-month period, 35 of these have been made in 2020 (i.e. approximately 3 per month in 2020). Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C. The Operations Manager goes on to report that TA telephones the court office regularly, usually when he issues an application (which he does regularly – see above), receives orders/replies from the court office or after a hearing; she estimates that the calls are made approximately twice per week and the staff report that the telephone calls average between 30 to 40 minutes in duration. The Operations Manager observes that TA routinely challenges the competence of HMCTS staff, and he is known often to accuse the staff of colluding with the Local Authority against him. She further observes, and from my reading of the material I agree, that his more abusive comments are primarily directed at the judiciary and the lawyers for the other parties to the litigation.
I have seen some of the e-mails which TA has sent to the court and the parties; his practice is to copy in many recipients of his e-mail (I counted well over 100 recipients to some of the recent e-mails sent to the Local Authority including his Member of Parliament). He signs himself off by his name, sometimes followed by an epithet including (from recent e-mails filed): “Diligent and persistent as ever”, “Not a Gentle Knight”, “WikiLeaks Wannabe”, “DPA [Data Protection Act] Pioneer”, or (in the case of his position statement – by e-mail – for the hearing before me) “Leviathan Terminator”. In e-mails sent following the 15 January 2021 hearing, “(a humble, disprivileged (sic.) persecuted informal carer. Mr Nobody)”, and in another “(UNBREAKABLE!)” (capitals in the original).
As mentioned above, since the hearing on 15 January 2021, TA has sent two further e-mails copied to the court (and again copying in significant number of others). The e-mail is addressed (as many of his e-mails are) to “Dear Coalition Of My Mother’s Persecutors (COMMP)”. In one, he states, and repeats a number of times, the following narrative:
“You can beat me to my knees, it only makes me stronger. I am unbreakable!! Did you hear me? DID YOU HEAR ME [Local Authority]! I am unbreakable. I am UNBREAKABLE, I AM UNBREAKABLE!!! The strength that lies in my heart is like no other. The determination that lives inside me is equal to no other. Every day, I wake up, I promise myself, I will make it, and I never break a promise I make to myself! I am unbreakable. I am Unbreakable.. I AM UNBREAKABLE!!!”
TA denies that his correspondence with the court has been excessive, inappropriate, or intemperate. He describes the Operations Manager’s written evidence as a “badly drafted pathetic attempt at a fraudulent witness statement”. He does not dispute the volume of his correspondence; he seeks to justify his correspondence, referring inter alia to the fact that there are five separate pieces of litigation in which he is involved, and specifically, further, that:
“HMCTS staff have deliberately destroyed my Court submitted evidence, of a year’s worth of unused medication is marginalised and ignored and refused to be addressed to date. This was a deliberate attempt by HMCTS staff to pervert the course of justice in collaboration with [the local authority] and the Official Solicitor and [the judge], and is a serious criminal offence in law of looking to pervert the course of justice, which no doubt [the Operations Manager] is looking to find ways to get out of by discredit my name in a scapegoating exercise”

It happens from time to time that a Local Authority reach a point with a lay person where the correspondence becomes of a volume or nature where the LA make a decision to stop engaging in it. I’ve never seen this happen with the Court, although of course there is the list of Vexatious Litigants, who are not allowed to commence Court proceedings where there’s some degree of overlap. Occasionally one sees a judgment where a High Court Judge makes polite but clearly wearied reference to the degree of correspondence that they are beseiged with from a particular party to the proceedings.

In my finding, there is no justification for the volume or indeed the tone of much of the e-mail correspondence from TA to the Court which has been presented to me. It is easy to see how those working in the Court of Proceedings court office could have felt easily overwhelmed by the communications from TA. His contact with the court office is and has been wholly disproportionate to the issues in the linked cases; the time taken for the hard-pressed staff to manage this correspondence (and his phone calls) will doubtless have materially distracted them from dealing with the many other Court of Protection cases which require their attention.
I have reminded myself of what King LJ said, albeit obiter, in Agarwala v Agarwala [2016] EWCA Civ 1252; in that case, she was concerned with a business dispute which had been running for almost seven years. In a postscript to her judgment ([71]/[72]), she said this:
“It has taken up countless court and judge hours as both parties, incapable of compromise, have bombarded the court with endless applications, such that [counsel for the appellant] now tells the court the judge has had to make orders that neither party may make an application without the leave of the court. The refusal of either party to accept any ruling or decision of the court has meant that the court staff and judge have been inundated with emails, which they have had to deal with as best they could, with limited time and even more limited resources. The inevitable consequence has been that matters have been dealt with “on the hoof” on occasion without formal applications or subsequent decisions being converted into formal rulings or orders.”
She added:

“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.” (emphasis added).
It seems to me that I can and should adopt here the approach suggested by King LJ, by making orders specifically designed to protect the administrative processes of the Court of Protection generally and to prevent its procedure from being abused. Support for this course is further located in the Court of Appeal’s judgment in Attorney-General v Ebert [2002] 2 All ER 789 where Brooke LJ made the following observations as to the scope of this jurisdiction at [35]:
“…the court’s supervisory role now extends beyond the mere regulation of litigation and of litigants who have submitted themselves to the compulsory jurisdiction of the court. It includes the regulation of the manner in which the court process may in general be utilised. It is of course well established that the High Court may, in appropriate circumstances, grant an injunction to restrain an anticipated interference with the administration of justice, amounting to a contempt (Attorney-General v Times Newspapers Ltd [1974] AC 273, 293G-294A, 306B). The advent of the Civil Procedure Rules only serves to bolster the principle that in the exercise of its inherent jurisdiction the court has the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in a completely obsessive pursuit of their own litigation, taking it forward by one unmeritorious application after another and insisting that they should be afforded priority over other litigants.”
Taking my cue from these judgments, and for the reasons set out above, I propose to make an injunction, in the terms set out at the foot of this judgment, to restrain TA hereafter from communicating with the court office by e-mail and telephone. While this is undoubtedly an exceptional order, it is in my judgment entirely justified by the facts of the case; there is a substantial risk that the process of the court will continue to be seriously abused, and that the proper administration of justice in the future will be seriously impeded by TA unless I intervene now with appropriate injunctive relief. In my judgment the order represents a proportionate restriction on TA’s ability to communicate with the court office; he may continue (should he have the need to do so) by sending letters to the court office through the agency of Royal Mail. TA should note, however, my direction that he cannot expect a response from anyone in the court office (which may in fact be by e-mail from the court office if they choose) to his correspondence, if his correspondence with the court office is abusive. While Brooke LJ contemplated that this jurisdiction could or would be exercised by the High Court deploying its inherent jurisdiction, I propose to use the power invested in me by section 47(1) Mental Capacity Act 2005, given that the order is made “in connection with” the exercise of my wider jurisdiction within the Court of Protection. I propose to attach a penal notice to that injunction, so that it may be enforced, if a breach is proved to the required standard, by committal to prison if necessary.

Jolly hockey sticks, or “It’s not recusunal…”

I always love a case about recusal, it threw up for example the delicious joy that was a High Court Judge cross-examining counsel about the Judge’s own lost luggage Judicial baggage | suesspiciousminds

This one is private law. A District Judge (DJ Wylie) had conducted a finding of fact hearing (the mother had made allegations of violent behaviour against the father, the Court heard the evidence and made decisions about what had happened, called ‘findings of fact’)

W (Children: Reopening/recusal) [2020] EWCA Civ 1685 (15 December 2020) (bailii.org)

Two findings were made, and the other two allegations were not made out. The father was later convicted for one of the matters set out in the first finding made. The case would then move to evidence, arguments and decisions about contact and possibly where the children would live.

The father, however, made an application for a re-hearing. It was decided that this application for a re-hearing ought to be heard by District Judge Wylie, which would be the usual course of events.

What was less usual though, is that DJ Wylie recused herself from the hearing and it went before His Honour Judge Duggan

At that hearing, father was in person, and mother was represented (although she was paying privately for her lawyer, which becomes important later).

All that the mother and father knew of DJ Wylie’s situation was that she had recused herself for personal family reasons. It seemed, but one can’t be sure, that HHJ Duggan knew a little more than that.

The Judge raised the issue of recusal and its impact on the findings. There were two broad possibilities – one that DJ Wylie having had reason to recuse herself would not sit on the case in future, and the second that if there was something that meant that she shouldn’t or couldn’t hear the case in the FUTURE then didn’t it follow that the work she’d done up to that point should be redone?

The father’s application for a re-hearing had a very high legal bar to cross, but as the Judge explained to him, an application that DJ Wylie having recused herself from part 2 of the case ought not to have done part 1 and the case should be re-heard as a result of judicial bias was probably an easier argument to make and succeed with. For the mother’s part, counsel explained that having paid privately for her representation, she would be substantially financially affected by having to run the fact finding hearing all over again, and importantly that nobody really knew what DJ Wylie’s reasons were for withdrawing.

HHJ Duggan decided that there was no suggestion of actual bias, but that an independent observer would consider that if a Judge couldn’t hear part 2 of a case for some personal conflict, then what they had done at part 1 might also be under doubt, and that thus the finding of fact hearing should be re-heard before another Judge.

The mother appealed, and the case went before Jackson LJ.

In the meantime, the mother’s lawyers wrote to the Court asking three very proper questions:-

  1. What was the ‘family connection’?
  2. At the finding of fact hearing in February 2020, had the Judge been aware of it?
  3. If so, why wasn’t it raised with the parties?

The Court replied, though very very late in the day (The DJ gave the Court the reply in July, the Court sent it to the parties in NOVEMBER! just before the appeal)

  1. The Judge’s son, and the mother, are members of the same hockey club. On social media, the Judge’s son and the mother follow one another.
  2. The Judge had not realised this until June 2020, well after the finding of fact hearing
  3. if the Judge had realised, she would have raised it with the parties.

At the appeal, the mother’s case was that the process before HHJ Duggan was flawed (the mother and father had not known the reasons for recusal, or what had been known by DJ Wylie at the time) and that HHJ Duggan had applied the wrong test in law.

As to recusal for the appearance of bias, Ms Bentley submitted that the Judge framed the test wrongly. The question is not whether a reasonable observer would be concerned that justice has not been seen to be done; the question is whether the reasonable observer would conclude that there is a real possibility that the judge was biased

The Court of Appeal said this:-

n my view, once the District Judge decided to decline to hear the case on the basis of recusal, she should have ensured that the parties were formally notified of her reason for withdrawing from the case. This could have been done at the time of the hearing before the Recorder. Had he been in a position to inform the parties of the facts so that they were in a position to respond, they may well have been content for the case to continue in front of another judge, as had already been contemplated. But as it was, they were left in the dark and both parties asked the obvious question “Why?”, the father ahead of the hearing before the Judge and the mother afterwards.

t is understandable that the Judge was troubled by this odd position and clear that he was acting with the best of intentions. At the same time, it was necessary for him to approach the matter systematically. The starting point was that the listed application was the father’s application to reopen certain findings of fact. There had been no regular process of recusal by the District Judge and there was no appeal before the Judge. In these very unusual circumstances, the fact that a party had not appealed was not a bar to the Judge raising the issue himself, but in doing so he needed to acknowledge that a decision to set aside findings on the basis of apparent bias was one that could only be taken in an appellate capacity. Procedural steps could have been taken to achieve this, but the issue was not addressed and it is not clear what capacity the Judge was acting in.

That procedural difficulty might not be insuperable, but there are other reasons why the Judge’s unexpected decision to set aside all of the findings on the basis of apparent bias on the part of the District Judge was, I regret, both wrong and unfair:

(1) The Judge was not in a position to take a decision about apparent bias: the decision calls for an informed observer, which supposes knowledge of the basic facts. He should have put himself in a position to inform the parties about the District Judge’s reasons for wishing to recuse herself so that they were in a position to respond. He instead referred only to the existence of a family connection, which they were in no position to assess. Consequently, they were not only unable to put their case about the District Judge’s withdrawal but, more seriously, they had no meaningful way of addressing the new and radical proposal to set aside her findings altogether. This process was not fair to either party.

(2) As to the legal test for apparent bias, the Judge was right to say that one must put oneself in the position of a reasonable observer who is not involved in the case. However, he was mistaken in stating that the test is whether the observer would be concerned that justice had not been seen to be done, when the correct question is whether the observer would conclude that there was a real possibility that the judge was biased, which is a stronger thing

(3) Finally, the Judge’s conclusion that the District Judge’s findings were infected by apparent bias is not supported by any sound reasoning. This was the sort of happenstance community tie that should be disclosed to parties by a judge who is aware of it, but would not ordinarily lead the reasonable and informed observer to conclude that the judge could not try the case fairly. In this case the matter was put beyond argument by the fact that the District Judge did not discover that her son and the mother knew each other until months after she had made her decision.

HHJ Duggan’s decision was therefore overturned, and the findings made by DJ Wylie restored, father’s application to reopen them being refused.

Mayweather with the jab

Well, we all knew that the Covid vaccine would end up being litigated in the family Court, but I wasn’t expecting a published judgment on the issue a week after the first jabs were being given.

M v H (Private law : Vaccination) 2020

M v H (Private Law: Vaccination) [2020] EWFC 93 (15 December 2020) (bailii.org)

It seems that there was already litigation about whether two children should or should not have the MMR vaccine, and the Covid vaccine issue just got tacked on to it. Father said they should, mother said they should not.

The mother asserted that she had done six years of ‘extensive research’ into vaccination. However…

  1. As I have noted, the mother filed and served two detailed statements setting out in clear terms her objection to the father’s application. It is clear that those statements represent, in part, the product of what the mother described in evidence as six years’ worth of extensive “research” into the question of vaccination. In circumstances where the mother readily conceded during cross-examination by Mr Hunt that she had no scientific qualifications beyond school level biology, it was also clear that the mother used the term “research” to describe the process of information gathering online that had provided her with the material which underpinned her arguments against the vaccination of the children.
  2. The material relied on by the mother in her statements comprised a newspaper article, a document that purported to be the factsheet from an MMR vaccine, a flyer entitled “The Babies Aborted for Vaccines”, a list of papers which, and doctors who maintain that there is a link between the MMR vaccine and autism, a list entitled “Historical Data on Vaccines and Outbreaks” and, as I have mentioned, material from an American paediatrician called Larry Palevsky, who the mother described as “world renowned” but who also appears, from the information contained in the mother’s evidence and the online material she invited me to consider, to be a very vocal advocate against vaccination engaged in advancing a very specific anti-vaccine agenda. In her second statement the mother cited a paper said to demonstrate that refined sugar reduces a child’s immunity for up to five hours, a paper said to demonstrate the health outcomes for unvaccinated children are better than for vaccinated children and a YouTube link to a video from Dr Suzanne Humphries, an American nephrologist. Once again, it is apparent from this material that Dr Humphries is also very vocal advocate against vaccination engaged in advancing a very specific anti-vaccine agenda.

So whilst the mother was massively overqualified, having studied biology at school, to be an opinion writer on Covid 19 for the Daily Telegraph or the Spectator, she was somewhat underqualified to be giving expert evidence in the Court. (To stop being catty for a moment, the Court were very complimentary about the way that she presented her case, the questions she posed and how on top of the detail she was)

The Judge made it clear at the outset that it was premature to make any specific issue order about vaccination for Covid-19, but that this should NOT be taken to be an indication that the Court considered the vaccine unsafe or unwise or not in children’s interests, but that it was at such an early stage of the vaccination programme that it was impossible even to speculate as to when the NHS might begin making the vaccine available to children (and that of course at present, there are three approved vaccines and who knows which particular one might be administered in due course) :-

 I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact that, given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children. As I make clear at the conclusion of this judgment, having regard to the principles that I reiterate below it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidenced contraindication specific to that subject child. However, given a degree of uncertainty that remains as to the precise position of children with respect to one or more of the COVID-19 vaccines consequent upon the dispute in this case having arisen at a point very early in the COVID-19 vaccination programme, I am satisfied it would be premature to determine the dispute that has arisen in this case regarding that vaccine.

On the other vaccinations, the Court followed the authorities that are now clear , and helpfully set out and summarised for anyone who may need them.

  1. In all the circumstances, holding P and T’s best interests as my paramount consideration and having regard to the matters I am required to consider under s. 1(3) of the Children Act 1989, I am satisfied that best interests of both P and T to be vaccinated in accordance with the NHS vaccination schedule. It is now clearly established on the basis of credible, peer reviewed scientific evidence that it is generally in the best interests of otherwise healthy children to be vaccinated with those vaccines recommended for children by Public Health England and set out in the routine immunisation schedule which is found in the Green Book published in 2013 and updated as necessary since. It is equally well established that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects. The mother has placed no evidence before the court to gainsay these conclusions in respect of P and T, either by way of a medical contra-indication specific to either child or new, credible evidence regarding the safety and efficacy of the vaccines set out in the NHS schedule of vaccinations. I am satisfied on the evidence before the court that there are no other welfare considerations that are contra-indicative to P and T to receiving those vaccinations having regard to s. 1(3) of the Children Act 1989.
  2. Having regard to the reasons set out above, I make a specific issue order pursuant to s. 8 of the Children Act 1989 requiring each of the children to be given each of the childhood vaccines that are currently specified on the NHS vaccination schedule with the father to be responsible for arranging the same and ensuring T and P are taken to the GP for scheduled immunisations for the remainder of their childhood. A copy of the order in this regard will be sent to the children’s GP by the solicitor for the children and placed on each of the children’s medical records. I will reserve to myself in the first instance any future applications with respect to vaccinations against the virus responsible for causing COVID-19 and vaccinations for the purposes of travel.
  3. Finally, whilst the Court of Appeal did not reach a definitive conclusion on the question of whether, in private law proceedings, the question of vaccination should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, the observations of the Court of Appeal in in Re H (A Child: Parental Responsibility: Vaccination) summarised at paragraph [40] of this judgment, whilst strictly obiter, make it very difficult now to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19, would not be endorsed by the court as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of the vaccine or a well evidenced medical contraindication specific to the subject child.

I’m sure this isn’t the last we will see of this sort of litigation and this case doesn’t provide a final answer, but it is a very helpful encapsulation of the key issues and the guidance provided by authorities.

Child-friendly judgment and end to alphabet soup?

I took a bit of time off the blog in the early part of lockdown, meaning to come back to writing once lockdown lifted, and it was only when I got an email from a friendly reader checking up on me that I realised it has been nearly nine months of radio silence. So sorry, and I’m back, sort of. Or at the very least, to quote both Mark Twain and Kerr Avon, “Rumours of my death have been much exagerrated”

I’ve long been a fan of Judges who produce child-friendly (and often adult-friendly) judgments. The sheer amount of “I must remind myself of” and “I take into account, as I must” that Re B-S forced us to insert into judgments purely to avoid appeal points has had the unintended consequence (another of this blog’s Grand Themes) of making them long and impenetrable to the people who most need to understand them.

This is a judgment that addresses the children directly, and in publishing it, the Judge allowed the children to select their own names. I think that’s an excellent idea, and so much better than the alphabet soup of “B” and “J”

As was pointed out to me on Twitter, you do presumably need some mechanism to prevent the more mischievous child from polluting Bailii with Boaty McBoatface and MySister Smellsofoldcheese 2020, but I’ll happily put that on the shoulders of the Guardian for now.

Anyway, here’s the judgment, which is written very nicely. It takes a lot of effort to speak plainly – back to Mark Twain again and apologising for the length of the letter because the author didn’t have enough time to make it shorter.

Take a bow Miss Recorder Henley, a judgment so nicely written that it forced me to shake off my torpor and scramble to find my log-in to the blog.

Robin-Simmers and Adrien (Children : Care Order) [2020] EWFC B52 (12 November 2020) (bailii.org)

Hope all of you are well, and I hope to see you on the other side of this most peculiar of years.

“But so what?” diplomatic immunity part 3 – smokey IS the bandit

 

You might remember, just before everyone’s world changed forever, that there was a case about alleged child abuse where the father had diplomatic immunity and the Court decided that the legal provisions in relation to that meant that an Interim Care Order to remove the children could not be made.

 

https://suesspiciousminds.com/2020/03/19/diplomatic-immunity-and-care-proceedings-take-2/

 

Well, things have developed.

 

A Local Authority v AG 2020

https://www.bailii.org/ew/cases/EWHC/Fam/2020/1346.html

 

The cast list in this is impressive. If you were doing a family law version of Kenneth Branagh’s Murder on the Orient Express, you couldn’t go far wrong with this list.  (A few honourable exceptions are missing, of course, but it is a sparkling list of extremely good lawyers.  If I’d been there, I’d have taken my autograph book…)

 

Basically, since the 20th March judgment, the Secretary of State invited the diplomats home country to withdraw his diplomatic status, they refused, but said that they all had to come home as soon as lockdown allowed it.

 

On 2 April 2020 D (18) sent an email to the local authority social worker attaching a photograph of a bloody wound to the back of his head. He explained that his father inflicted this with a shoe. He sent a further email attaching a video of the wound. In that video an adult can be heard shouting in the background.

iv) On 6 April 2020 the Secretary of State informed the foreign government that, in accordance with article 9(1) of the Vienna Convention on Diplomatic Relations (“VCDR”), the father and his dependent family members (including the mother and all of their six children) were personae non gratae and were required to leave the UK at the first opportunity. That first opportunity was on 18 April 2020 via the outbound leg of a charter flight arranged for the purpose of bringing British nationals home from the foreign country.

v) On 7 April 2020 the local authority social worker was able to speak to D who said that it was horrible living at home with his parents as they are both verbally and physically abusive; that he had decided to leave the home soon with his sister E; and that they planned to seek asylum.

vi) On 8 April 2020 I transferred the care proceedings and the claim for a declaration of incompatibility to the High Court and joined the Secretary of State as a party to the proceedings.

vii) On 9 April 2020 D and E (18) left the family home and sought asylum.

viii) On 11 April 2020 N (17) and A (14) also left the family home and sought asylum.

ix) On 14 April 2020 I held that by virtue of article 9(2) of the VCDR the family was to be given a reasonable period of time to leave the country; that period had not yet elapsed; and that accordingly diplomatic immunity continued to endure.

x) On 16 April 2020 a certificate pursuant to section 4 of the Diplomatic Privileges Act 1964 was issued by the Foreign & Commonwealth Office recording the diplomatic exchanges mentioned above.

xi) On 18 April 2020 the parents, together with G (9) and S (5), returned to their homeland on a repatriation flight.

xii) On 20 April 2020 I made an interim care order in respect of A and gave directions for the hearing of the permission issue.

xiii) On 18 May 2020 I heard the permission issue and reserved judgment. I granted the local authority permission to withdraw the care proceedings in respect of G and S. I gave directions for the final disposal of the care proceedings in respect of A.

 

The issues in this particular case were resolved – the children are all out and safe, but there was an application to declare the Diplomatic Privileges Act 1964 as incompatible with the Human Rights Act 1998 (in relation to the inability to protect children whose parents are diplomats).

 

This case doesn’t resolve that, but it does decide the pre-fight – should there even be a fight on the principle given that it isn’t necessary in the individual case.

 

It being a Mostyn J judgment, it gathers up the relevant law on ‘academic’ claims and sets it out clearly and briskly.  If you could afford him, Mostyn J would be a very good author for “Insane Legal Complexities Made Simple”

  1. Up until 1999 the law set its face against hearing any academic claim: see the decisions of the House of Lords in Sun Life Assurance Co. of Canada v Jervis [1944] AC 111, 113-114; and Ainsbury v Millington (Note) [1987] 1 WLR 379, 381. In the latter case Lord Bridge stated that it was a fundamental feature of the judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.
  2. However, in R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450, the House of Lords stipulated an exception to this absolute rule. Lord Slynn of Hadley stated at 456-457:
    1.  “My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in Rule 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

  1. Although I have had cited to me many subsequent authorities, all of them seem to me to be no more than illustrations of the Salem principle. This is straightforward. The court should exercise its discretion to hear an academic application in the public law field with caution. It should only hear such an application where there is a good reason in the public interest to do so.

 

  1. Lord Slynn gives as an example the situation where a discrete point of statutory interpretation arises which does not involve detailed consideration of facts and where a large number of similar cases are anticipated. In such circumstances there will be little difficulty in deciding that there is a good reason in the public interest to hear the academic claim. That seems obvious. However, I do not deduce from that illustration a rule that a good reason in the public interest for hearing the claim can only be shown if a large number of cases would be thereby affected. It all depends on the context.
  2. In this case it is certainly true that there have not been many reported cases of proceedings under Part IV of the Children Act 1989 involving the children of serving diplomats. But so what? If the resolution of the academic issue helps to protect even one such child in peril, then that surely is a good reason in the public interest to hear it.

 

That’s stirring stuff, and if my chair wasn’t a swivel one with wheels, I’d be climbing on it to punch the air and shout “Captain My Captain” like Dead Poets Society.

 

So, there will be a hearing about whether the provisions are incompatible with the HRA.  Nobody knows how that will go.  The Secretary of State has been joined, and there’s a significant Government interest in not futzing with the provisions of what diplomatic immunity mean  (they have to think about their own overseas diplomats, international relations and all sorts of things that I absolutely don’t think are as important as making sure children aren’t beaten, but we have different jobs and different hats)

 

Wait and see how the argument goes.

 

Vaccination

 

This is a Court of Appeal case which follows up from the Hayden J decision in the cestui que vie case (remember, all of us are legally dead because we’re all lost at sea) about vaccination.

As a super-quick bullet point, we had a MacDonald J decision that if a parent disagreed with the child being vaccinated then the LA should NOT use their powers under a Care Order to agree to it and should instead come to Court, and then this later decision from Hayden J that the LA SHOULD use their powers and should NOT come to Court.  (Legally up until this Court of Appeal hearing that meant legally that the LA SHOULD use their powers but any High Court Judge could overrule that)

Re H (A Child : Parental Responsibility : Vaccination) 2020

https://www.bailii.org/ew/cases/EWCA/Civ/2020/664.html

 

Whilst this decision was about the MMR vaccine (which in the minds of some people is controversial because of the now discredited Andrew Wakefield ‘research’ linking it to autism), it has wider application and of course it is entirely possible that whether or not children be given a vaccine for COVID-19 if one is found will become a very hot issue.

 

The Court of Appeal run through all of the relevant research and science on vaccinations and say definitively that the practice of getting an expert to report each and every time this arise is no longer needed – unless there are specific issues or vulnerabilities for the SPECIFIC child, the Court should approach the science as settled that vaccines are safe.

(On the one hand, oh god my comments on this are going to be lively, on the other, I might get Jenny McCarthy talking to me, which my 20 year old self would be very jealous about.  Let’s say, to keep it simple, that I have ABSOLUTELY NO views on this myself and have no interest in discussing the Wakefield stuff or anti-vaxx generally, I’m just reporting the case)

 

  1. It follows that, no matter what legitimate concerns parents may have had following the publication of Dr Wakefield’s discredited paper, there is now no evidence base for concerns about any connection between MMR and autism. On the contrary the evidence, as set out in the unchallenged report of Dr Douglas in this case, overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.
  2. I have, in (relatively) short form, rehearsed the history in relation to the MMR controversy and summarised Dr Douglas’ mainstream analysis in relation to the other vaccinations which are habitually given to children. I do so as it is my hope that it will serve to bring to an end the approach which seems to have grown up in every case concerning vaccinations, whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being “necessary to assist the court to resolve the proceedings” (FPR 2010 r.25.4(3)).
  3. In my judgment, subject to any credible development in medical science or peer-reviewed research to the opposite effect, the proper approach to be taken by a local authority or a court is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects. Any expert evidence should ordinarily, therefore, be limited to case where a child has an unusual medical history and to consideration of whether his or her own circumstances throw up any contra-indications, as was the case in relation to one specific vaccine in Re C and F (Children) [2003] EWHC 1376 (Fam) (Re C and F) (see paragraph [320]).
  4. I should be clear that I am here dealing with the purely medical issues which may arise in any specific case, and am not seeking to narrow the broader scope of a child’s welfare and of any other relevant considerations which it may be appropriate for a local authority or a court to take into account when considering his or her best interests when considering the question of vaccination.

 

 

On the issue of whether the LA should seek permission from the Court or use their s33 powers

 

  1. I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved.

 

(The Court of Appeal say that in private law cases – i.e mum says no vaccine, dad says vaccine or vice versa, there’s a place for the Court in resolving those disputes)

  1. Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, there is in my judgment a fundamental difference as between a private law case and a case concerning a child in care. In private law, by s.2(7) CA 1989, where more than one person has parental responsibility, each of them may act alone and without the other. Section 2(7) does not however give one party dominance or priority over the other in the exercise of parental responsibility. Each parent has equal parental responsibility, even though the day to day realities of life mean that each frequently acts alone. This applies particularly where the parties live in separate households and one parent is the primary carer. As Theis J put it in F v F at paragraph [21],in most circumstances [the way parental responsibility is exercised] is negotiated between the parents and their decision put into effect.”  As neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree.
  2. The situation is, in my view, different in the public law sphere when a care order is in place. A care order is only made if the welfare of a child requires such an order to be made, it having been determined or conceded that pursuant to s.31(2) CA 1989, the child has suffered or is likely to suffer significant harm attributable “to the care given to him or her not being what it would be reasonable to expect a parent to give him”. In other words, the child in question has suffered (or was likely to suffer) harm as a consequence of the care given to him or her by a person with parental responsibility. It is against that backdrop that the parent of a child in care holds parental responsibility. Parliament has specifically, and necessarily, given the local authority that holds the care order, the power under s.33(3)(b) to override the views of a parent holding parental responsibility. The local authority’s view prevails in respect of all matters save those found in the statutory exceptions or where, as I identified in Re C, the decision to be made is of such magnitude that it properly falls within the provisions of s.100.
  3. The situation of a child in care is therefore a far cry from those cases which arise in private law proceedings where parents who share parental responsibility cannot agree on what is best for their child.
  4. For these reasons, I prefer the judge’s analysis in the present case to the analysis in Re SL.
  5. Proportionality
  6. It has not been argued by Mr Bailey on behalf of the parents that allowing the local authority to consent to the immunisation would represent a disproportionate breach of their Article 8 ECHR rights. I merely say for completeness that if such an action on behalf of the local authority does represent an infringement of the parents’ or child’s rights under Art 8 ECHR, I am satisfied that, when considered through the prism of Bank Mellat v HM Treasury (No 2) [2013] 3 WLR 179 (as endorsed in a family context in Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 at paragraph [44]), any interference is proportionate.
  7. The position of parents
  8. It is axiomatic that any local authority must involve parents in decision-making and take their views into account. Section 33 CA 1989 is not an invitation to local authorities to ride roughshod over the wishes of parents whose children are in care. As was recognised by the judge at paragraph [17], in the event that a local authority proposes to have a child vaccinated against the wishes of the parents, those parents can make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under section 8 Human Rights Act 1998 to prevent the child being vaccinated before the matter comes before a court for adjudication.
  9. The conclusion I have reached in relation to routine immunisations does not in any way diminish the importance of parental views where there is a real issue about what decision will best serve the welfare of a child

 

The LA can use their powers under a Care Order to vaccinate, even if the parents object. If the parents feel strongly enough, they can make an application under the magical sparkle powers  – inherent jurisdiction.

 

The Court go on to say that deciding this doesn’t give cate blanchett (yeah, I just really want my comments to blow up today) to a Local Authority where the parents are objecting to more serious medical treatment and looks at a case involving whether a child should or should not have a liver transplant.

 

 

  1. The distinction drawn here between parental views that are inconsistent with the child’s welfare and highly problematic cases where there is genuine scope for a difference of view remains a valuable one. It is a reminder that, while the views of parents must always be taken into account, the weight that is given to them depends not upon the vehemence with which they are expressed but upon their substance.
  2. As must have become clear, I do not share the inhibition felt by the judges in some of the decided cases in expressing the view that the scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated. As Theis J said in F v F:
      1. “With due consideration for established contraindications to vaccination in an individual case, it is otherwise in every child’s interest to be protected’

It follows therefore that in my judgment, an application to invoke the inherent jurisdiction or to seek an injunction with a view to preventing the vaccination of a child in care is unlikely to succeed unless there is put before the court in support of that application cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations.

 

In the analysis of all of the legal cases, the Court of Appeal note that for all the sound and fury expended on the MMR vaccine issue, there isn’t a reported case where the Court ruled against the vaccination.

Conclusion

  1. Pulling together the threads of this judgment, I have concluded that:
  2. i) Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra-indication in an individual case.

ii) Under s.33(3)(b) CA 1989 a local authority with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents.

iii) The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter. Except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be vaccinated, it is neither necessary nor appropriate for a local authority to refer the matter to the High Court in every case where a parent opposes the proposed vaccination of their child. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of High Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division.

iv) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.

  1. It follows that the appeal will be dismissed and that the declaration made by the judge that the local authority has lawful authority, pursuant to s.33(3) CA 1989, to consent to and make arrangements for the vaccination of T, notwithstanding the objection of the parents, will stand.

Court of Appeal two decisions about remote hearings

The Court of Appeal had decided two cases about remote hearings in light of the Covid 19 public health emergency.

 

The first is Re A (Children) (Remote Hearings) 2020

 

https://www.bailii.org/ew/cases/EWCA/Civ/2020/583.html

 

Where a Judge had decided that because the parents in the case could not really participate in a remote hearing, the parents should attend Court for the hearing in a physical building, whilst others attended via video-link  (what lawyers are calling a ‘hybrid’ hearing)

 

The Court of Appeal decided that on the facts of the case, the Judge was wrong to order a hybrid hearing and granted the appeal.  The Court of Appeal point out in painstaking detail that they do not intend in this case to give the impression that hearings in other cases should be remote, should be hybrid or should be adjourned, it is a fact specific case, not intending to give general guidance.

 

  1. It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors. The import of the decision in this case, in which we have held that the appeal must be allowed against a judge’s decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge’s decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific. Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.
  2. It also follows that the decision on this appeal must not be taken as an authority that is generically applicable to one or more category of children cases. We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.
  3. Finally, in addition to the need for there to be a fair and just process for all parties, there is a separate need, particularly where the plan is for adoption, for the child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing.

They do say this:-

Finally, and more generally, we would draw attention to, and endorse, the steer given in the LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the local authority, did. In such circumstances, when the applicant local authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.

 

 

The other appeal is, to my mind, more interesting. It deals with a remote hearing for an Interim Care Order and separation.  Those are hearings where the option of waiting for the end of lockdown isn’t necessarily available.

 

Re B (Children) (Remote Hearing : Interim Care Order) 2020

https://www.bailii.org/ew/cases/EWCA/Civ/2020/584.html

 

I have to say, even ignoring the fact that the hearing took place by telephone, this case is a breakfast that would be suitable for dogs.

 

It involved  a case where a boy Sam (not his real name) aged 9 was living with his grandmother. The LA made an application for a Care Order – on the papers they had filed they were not seeking removal.

  1. Accompanying the application was a substantial amount of documentation arising from the local authority’s knowledge of the family down the years, including a fully pleaded interim threshold document, a comprehensive chronology (16 pages) and a thorough template statement from the children’s social worker (34 pages). Of note, this described a close relationship between the children and their grandmother, with plenty of mutual love and affection being shown. Given the local authority’s position, the removal of Sam from home did not even feature in the social work analysis as a realistic option, let alone a preferred one. The case for an interim supervision order was put in this way:
    1. “Whilst [Sam] is not considered to be at immediate risk of physical harm, there have been historical allegations against his Maternal Uncle… who is known to still to be attending the home despite being prohibited by written agreements in place. [Sam] has suffered and remains at risk of suffering emotional harm due to the concerns [about] treatment of him by Maternal Uncle… and Maternal Grandmother.”

 

Lawyers will very quickly spot that the LA evidence was “Sam is not considered to be at immediate risk of harm”  (which is an essential ingredient if they are to seek and obtain an Interim Care Order.

The case was listed for hearing.   Just before the hearing began, the Guardian filed a position statement indicating that she thought Sam should come into care, and the LA changed their position to recommending that. There was no updating interim care plan, and no statement explaining the change in position.

Those representing the parents learned of the change in plan an hour before the hearing. Very understandably, they made an application for the case to be adjourned and set down for a proper contested ICO hearing with the parents having opportunity to respond to the LA case.

The Recorder dealing with the case was getting all of this evidence as a stream of updating emails, whilst wrestling with the other cases in his list. By the time this case came before him, he had been working all morning, and by the time he gave judgment he had been working for 10 1/2 hours, on hearings which were taking place by telephone.

Between 17.20 and 17.41 he gave an extempore judgment. At 17.52 he refused Mr Lue’s application for permission to appeal and scheduled a further hearing for 21 April. At 17.57 the hearing concluded. By that time the Recorder had been working, almost continuously and mainly on the telephone, for 10½ hours. Our observation is that, although we have found the decision in this case to have been unquestionably wrong, the nature of the workload faced by the Recorder, experienced as he is, was surely a contributory factor.

 

  1. We next mention the position of the Children’s Guardian. Her solicitor, having evidently carried out a lot of work in a short time, filed a six-page position statement at 10.49 that morning. We quote the concluding paragraphs in full because, as Mr Squire, who did not appear below, frankly asserted, “the Guardian has driven this in terms of immediacy” and because they represent the whole reason why an interim care order was made for Sam.
    1. “Guardian’s Position

25. The Guardian is very concerned with respect to the safety of both children given their cumulative previous experiences and the lack of emotional stability that they seemed to have experienced under a Special Guardianship Order. She is concerned that the maternal grandmother is prioritising the needs of the maternal uncle and aunt over that of the children, or is at least unable to protect them from abusive situations. Most concerningly, the children seem to be blamed when their behaviours are likely to be expression of the experiences they had, and/or additional needs that their care giver/s should be attuned to identify and respond to; [Samantha] being compared to her mother in derogatory manner and [Sam] being called names are particularly emotionally abusive behaviours in the context of the children’s own experiences.

26. There are concerns that maternal grandmother does not appear to be working openly and honestly with professionals since 2014 and it is noted that the written agreements have been breached on a number of occasions and allegedly the uncle reported that he was prompted by the grandmother to breach or ignore such agreements, and not talk to professionals. It appears as if the maternal uncle continues to be a frequent visitor to the family home and is reported to have been involved with the police 3 times this year in relation to drug offences [C25]. It is also not clear where the Mother is presently residing since her release from prison; the local authority statement refers to the children having had unsupervised contact with her.

27. The Guardian is concerned that both children are at risk of ongoing physical and emotional abuse. She is very concerned with the proposal by the Local Authority that [Sam] remain in the family home under an interim supervision order under the current circumstances, when there are severe limitations in what visits and intervention can be provided and uncertainty around how long pandemic-related measures will need to continue. It is not clear how his safety will be monitored as there are very little, if any, direct social work visits being undertaken at present; the presenting concerns cannot be effectively monitored via virtual visits. Schools often provide an oversight into a child’s wellbeing – however the schools are now closed and it is not known when they will re-open; they also often provide an outlet for both children and carers; being constantly at home can greatly escalate the current risks for [Sam], and limits his ability to reach out to professionals or safe adults outside the house for help. The Guardian is concerned that given these exceptional times it will be very difficult to monitor [Sam]’s safety.

28. It may be that [Sam] will be placed at more risk of emotional and physical harm if he is left alone in the family home. [Sam] has already stated that his family matters are confidential and it is therefore not clear whether he will actually disclose any concerns should they arise at the home; [Sam] may also internalise that violence is acceptable and risk perpetrating violence himself, or take matters in his own hands to protect himself or others, such as, for example, his grandmother if she is also subject to abuse from the uncle. The Guardian believes that both children need to be placed in a place of safety whilst assessments are ongoing.

29. The Guardian therefore supports interim care orders for both children. If the Court agrees that an interim care order is appropriate for both children, the Guardian would strongly prefer for both children to be placed in the same foster placement, if possible. A together and apart assessment to look at the sibling relationship and potential split arrangements for them in the longer term needs to be considered. There are also indication of severely distressed behaviours from the children, emotional regulation and ongoing attachment difficulties, which may require psychological assessment to ensure that the parenting they need to meet their individual needs is fully considered in care planning.”

  1. Once a Children’s Guardian has been appointed, he or she is obliged to exercise professional judgment, whatever the circumstances of the appointment. The court relies on Guardians to be independent in promoting and protecting the interests of the children in the litigation, and they may take, and not infrequently do take, a different position to that of the local authority. We acknowledge that, as commonly happens when an interim application is made at the outset of proceedings, this Guardian was having to absorb a mass of information at very short notice. She had no time to make inquiries, beyond reading the papers and having one conversation with the social worker at about 9 am. In cases of real urgency that may be unavoidable, but in this case it is, to put it at its lowest, surprising that she and the children’s solicitor felt it appropriate to make such a bold recommendation from such a low knowledge base. Neither of them had met or spoken to Sam or to his grandmother or his grandmother’s solicitor, nor did they have any information at all coming from that quarter. We also note that the Guardian was not available for the hearing in the afternoon. Her solicitor was said to be fully instructed, but the Guardian’s absence left her unaware of such arguments as Mr Lue was able to put to the court in response to her recommendation and deprived her of the opportunity to reflect.
  2. We are also troubled by the lack of any balanced analysis in the case for removal that was put by the Guardian, and also by the local authority. There is no reference to the emotional detriment to Sam in being removed from his only parental figure without notice or preparation. There was no reference to Sam’s wishes and feelings about immediate removal, nor any reminder to the court that these were not known. There was no credible explanation for why there had to be an emergency decision. Mr Squire fairly accepted at no less than three points in his appeal skeleton argument that the outcome was “harsh”, though he defended it as not being unfair or unjust. When we asked him about the above matters he described them as a consequence of this being “an emergency application” in which child protection imperatives had to prevail. We reject that argument. The pressured way in which the proceedings developed may have felt like an emergency to the professionals, but it was not an emergency for Sam. We also firmly dismiss the proposition that the current ‘lockdown’ provides a reason for the removal of a child where none would otherwise exist. It is possible to envisage a case at the margins where face-to-face supervision is so important that a child would not be safe without it, but this case and most others like it fall nowhere near that category. Our overall observation in this respect is that unfortunately Sam’s voice was not heard at a critical moment in the proceedings and his interests were not protected by his Guardian, whose recommendation set in train the sequence of events that followed.
  3. The local authority had in our view taken a sensible position in seeking an interim supervision order, as reflected in its position statement at 10.37. Yet within the hour it had moved to seeking Sam’s immediate removal. Nothing relevant had happened to Sam in the fortnight between Samantha’s departure and the hearing. The only basis for the volte-face was the intervention of the Guardian. We asked Mr Melsa, for the local authority, about the process leading to the changed decision, which came to him in an email instruction when he was in the middle of an advocates’ meeting. We learned that the decision was undocumented and the change of plan unreasoned. There was no evidence about it and no care plan to underpin it. Not surprisingly that led to confusion. At 12.48 the other parties were informed that removal would not take place until Monday 6 April because Sam had a cough that might be virus-related. The social workers then tried to investigate testing, but were unsuccessful. Despite that, at 13.43 the local authority announced that its plan was again one for immediate removal.
  4. Our observation is that it is hard to describe this process as anything other than arbitrary. A local authority must always be responsive to the stance of a Children’s Guardian, but there was no good reason for the plan to have been changed in this case. The consequence was to wrong-foot the grandmother, with whom it was going to share parental responsibility for Samantha, at least in the short term, without any discussion with her. Mr Lue was, as he put it, unable to understand the decision-making process and was having to take instructions by telephone on a constantly moving picture. He gave us examples of matters concerning Sam in the social work statement and the Guardian’s position statement that he has since the hearing been able to establish that the grandmother simply did not accept (for example concerning the arrival of the uncle on 20 March). We were entirely convinced by his account of feeling, in his words, hopelessly unable to represent his client in the way he would normally be able to do. It says a lot that throughout the whole process not one page emanating from the grandmother could be placed before the court. She had no opportunity to file evidence in relation to this serious matter, nor was Mr Lue in a position to marshal a position statement. In cases of exceptional urgency that may be unavoidable, but here it was unfair.

 

 

In terms of the remote nature of the hearing itself

 

  1. The Recorder made some reference to these principles but he did not apply them. Our observation is that this was a case where the central concern related to emotional harm stretching back for years. On the information then before the court it could not in our view be plausibly argued that something had now happened to make Sam’s removal that evening necessary. The circumstances in which Samantha had been taken into foster care showed the need for Sam’s situation to be carefully assessed. The evidence did not remotely justify his peremptory removal and there is nothing in the judgment that is capable of persuading us that it did. Our further observation is that, no doubt partly because of the exigencies of the remote process, there was a loss of perspective in relation to the need for an immediate decision about Sam. This was a classic case for an adjournment so that a considered decision could be taken about removal, if indeed that option was going to be pursued after reflection. An adjournment would have enabled the parties and the court to have all the necessary information. As it was, crucial information was lacking and its absence was overlooked by the court.
  2. There is a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform. If the application for an interim care order for Sam had been adjourned, it may well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which, in our view, plainly was not so urgent that it needed to be determined on 3 April. Whilst it may have been the case that the provision of video facilities was limited at the particular court at the time of the hearing, it is now the case that the option of using a video link is much more widely available. Where that is the case, a video link is likely at this time to be the default option in urgent cases.

 

Guidance for how to conduct remote hearings in Family Court

Very grateful to Gordon Exall of Civil Litigation blog for bringing this to my attention, and obviously a huge amount of work has gone into it by Mostyn J and MacDonald J.

 

Telephone hearings we are aware of and for short and reasonably non-contentious matters they are working well, but the issue facing us presently is how we do hearings where seeing the parties and assessing witnesses are to be done.

 

This document is not an ‘off-the-shelf’ solution, but it outlines the various challenges and solutions so that Courts can, with their local practitioners work out a scheme that works for them.  This probably is not going to be of interest to my non-lawyer non-Judge readers, its a long document and it is really getting into the nuts and bolts of how you make a hearing conducted electronically work.

 

But it is a piece of guidance that is going to save hundreds of hours of duplication over the country as individual LAs and local bar and Courts try to work out what is best for their area, and I’m extremely grateful for the work that has gone into it.

 

If you are ill, I wish you well, and if you are well, I hope you stay that way.  We are living through unprecedented times.

 

Click to access The-Remote-Access-Family-Court.pdf

 

Diplomatic immunity and care proceedings take 2

 

I have previously written about the intersection of diplomatic immunity and care proceedings here.  (I mean, it is just nice to write the word ‘immunity’ without the word ‘herd’ in front of it this week…)

 

https://suesspiciousminds.com/2018/04/24/care-proceedings-and-diplomatic-immunity/

 

In that case

A Local Authority v X and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/874.html 

 

an allegation that a woman who worked for X High Commission had hit a child 40 times and shaved the head of another.  Knowles J decided in short that:-

  1. Diplomatic immunity ends 31 days after the position ends
  2. If there is diplomatic immunity, it means that there can’t be an arrest or prosecution
  3. But if the behaviour is outside of the diplomats professional functions, a civil case (such as care proceedings can be brought)
  4. Making of an ICO is not a breach of the child’s diplomatic immunity in relation to detention
  5. It isn’t possible, however, to commit a parent with diplomatic immunity to prison for breach of a Court order

 

 

In this case, Mostyn J was deciding a case in which the allegation was that the father, who was a diplomat, and the mother, had assaulted their six children with a belt and in relation to one child had hit her with a broken chair leg and that child had partially lost sight in one eye.   This being a Mostyn J judgment, it is carefully reasoned and gives a very interesting potted history as to diplomatic immunity, including this very specific recital to the first statute on the point

 

“Whereas several turbulent and disorderly persons having in a most outrageous manner insulted the person of his excellency Andrew Artemonowitz Mattueoff, ambassador extraordinary of his Czarish Majesty, Emperor of Great Russia, her Majesty’s good friend and ally, by arresting him, and taking him by violence out of his coach in the publick street, and detaining him in custody for several hours, in contempt of the protection granted by her Majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambassadors and other publick ministers, authorized and received as such, have at all times been thereby possessed of, and ought to be kept sacred and inviolable.”

 

It’s not quite as niche as Handel’s Naturalisation Act 1727 which applied to just one individual, but that is still a niche introduction

https://en.wikipedia.org/wiki/Handel%27s_Naturalisation_Act_1727

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2020/18.html

A Local Authority v AG 2020

The Local Authority sought Interim Care Orders, and the parents argued (without getting into the facts of the case that diplomatic immunity meant that civil proceedings could not be brought)

Mostyn J disagreed with the decision of the former President Lady Elizabeth Butler-Sloss in Re B 2003 and Knowles J in Re A Local Authority v X 2018 and that the diplomatic immunity did prevent civil proceedings being brought.  He cited the decision of the Supreme Court in In Reyes v Al-Malki & Anor [2017] UKSC 61, [2019] AC 735   (a case dealing with alleged race discrimination and employment law of a staff member of a Saudi diplomat. )

 

 

In essence, the only thing that could be done was to write to the FCO and ask them to liaise with the relevant country.

As discussed recently in the case about vaccinations, where a High Court Judge refers to an authority by another High Court Judge and disagrees with it, the law then shifts to be the latest decision  (unless and until another High Court Judge or a more senior Court disagrees with it).

Therefore, at the time of writing, diplomatic immunity means that child protection proceedings cannot be brought and the issue of whether or not the conduct occurred within the course of those professional duties does not arise.

 

I would anticipate an appeal in this case.  I don’t know which of Knowles J or Mostyn J is right   – I might possibly have my own view (legally, as indicated Mostyn J is now right and the relevant authority on the point) but it needs a Court of Appeal decision to let us know.

Collar me, don’t collar me – I’ve got my spine, I’ve got my orange crush

 

 

I know that I say a lot ‘this is an odd one’, but yep, this is an odd one.

Committal proceedings arising out of private law proceedings (where a mother and father are disputing arrangements for the children between themselves).  There were allegations that the father was misusing drugs.

There were further allegations that the father was thwarting drug testing of his urine samples by

running the tap and placing the testing strip in hot water, stockpiling negative tests, or by carrying an orange squash solution which he would pour into the sample pot pretending it to be his urine.

 

Which reminds me both of Withnail’s cunning plan to procure a child’s urine so that he could drink drive and escape justice and of the Wire where Bubbles comes up with a similar plan to obtain a clean urine test from someone else for Johnny who was having to submit clean samples to escape prison, thwarted when Johnny reminds him ‘yo, Bubs, who the hell do we know who has clean urine?’

 

Anyway, within the proceedings, a hair strand test was directed.  What happens next is a little odd.

 

 

13                As I indicated earlier, the father was due to file and serve the results of hair strand testing on 1 September 2019.  That did not happen and there was a suspicion about that in terms of the lapse of time.  Suspicions were heightened when father’s solicitor indicated in a telephone call that father himself was due to send him the report in short order.

 

14                It is unusual for a represented party to arrange the hair strand test themselves and, ordinarily, the results would be sent directly from the service, provided to the solicitor for onward circulation to the court and the parties.  It came to be that the statement from Cellmark was eventually circulated by the father’s solicitors on 20 September 2019 and that statement was authorised by one Alistair Derrick, a forensic scientist employed by Cellmark.  The statement is dated 10 September 2019 and outlined that the father provided a sample of hair on 6 September 2019 of 3.6cm in length.  The result suggested that no substances were detected.

 

It’s a little odd, because normally the report comes TO the solicitor, who then sends it out to their client, rather than vice versa.

The mum, in full-on Wagatha Christie mode, spotted that the length of the hair sample was longer than dad’s hair….

15                There are a number of curious features about that report: namely indicating that the father’s hair samples were 3.6cm and that did not accord with observations by the mother in relation to his hair length at contact handovers.  It was also odd that the father’s statement, circulated on 24 September 2019, made no reference whatsoever to the drug test results, which is a peculiar omission given that his progress of contact largely depended on whether he could provide evidence that he was drug-free.

 

16                Those suspicions, coupled with the mother’s knowledge of the father’s historical untruthfulness, led the mother to requesting that her solicitor contact Cellmark to establish whether the report they received was legitimate.  To her dismay, and subsequently it became a substantial matter of concern to the Family Proceedings Court, the report circulated by the father was not the report prepared by them.  The report they prepared, in fact dated 26 July 2019, related to a sample taken on 12 July 2019.  The hair length was reported to be 1.5cm and the report confirmed that the result was positive for cocaine for the period covering the end of May 2019 to the end of June 2019.

 

 

In the words of Alexander O’Neal  – you’re a fake baby, you can’t conceal it – know how I know? Cos I can feel it

 

  It became apparent therefore, beyond doubt, that the father had resorted to the most extreme lengths by falsifying evidence for his own gain without any regard to the safety and welfare of Z.  I observe, so far as the court is concerned, that this type of deception undermines the system and devalues and seriously undermines the court’s ability to protect children in these circumstances.  It is a very serious issue.

 

18                There were a number of reports filed, and evidence filed subsequently, and it came to be that the father subsequently admitted that he did, in fact, change the witness statement of Alistair Derrick, and has described it as a serious error of judgment, and in these committal proceedings throughout has not tried to minimise his actions in any way and has been open in terms of what he has done and has shown true contrition and, furthermore, paid the mother’s legal costs throughout.

 

 

 

20                Matters came before the Family Proceedings Court on 1 October 2019 and there was an application to adjourn, and further directions were made for Cellmark to file their correct report of 26 July 2019, for a statement to be prepared by Alistair Derrick of Cellmark, and another statement from Cellmark in terms of the date of collection of the sample.

 

21                When the directions had been agreed in correspondence in advance of the hearing on 1 October 2019, the father subsequently admitted he had falsified the evidence and there was an attempt by him to retain the hearing as a final hearing, requesting that the lay justices consider this issue as part of their overall judgment.  This application was, to all intents and purposes, a complete waste of time and the justices were sufficiently concerned about the matter to refer the matter to a Judge for the consideration of contempt proceedings.

 

22                So it came to be, as is made plain from the recitals of the Magistrates’ order of 1 October 2019, that the matter came before me, and father was directed to provide a statement.  There was some difficulty, it was provided in manuscript; it should not have been.  I put that to one side, it is a minor aggravation considering the serious issues in relation to this case.

 

23                Crucially, and this is the matter of public interest to which I alluded earlier; within his statement the father confirms that he amended the report using a programme called Adobe Acrobat Pro.  He claims to have procrastinated for two months about what to do about the positive tests, yet he later suggested that he had acted suddenly.  It matters not, because the fact of the matter is that he used this programme and altered the results.

 

 

The Judge found, and the father admitted, that he had committed contempt by falsifying these results. The Judge gave him a twelve month sentence, suspended for 12 months.

Z (A Child : committal proceeding) [2020] EWFC B5 (24 January 2020)    

http://www.bailii.org/ew/cases/EWFC/OJ/2020/B5.html