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All at sea

 

Hi everyone.  It turns out we are all dead.

I’m not sure in our current political climate whether that is a shock or a blessed relief to us all. It certainly explains a lot.

Hayden J was dealing with an application under section 33 (and the inherent jurisdiction) for a Local Authority who held an interim care order to register the child’s birth, the father strenuously objecting to the birth to be registered.

 

Why?

Because we are dead, obviously.

That’s not fair. Some people aren’t dead, but those people are under seven and not reading my blog.

If you are over seven, you are legally dead *

 

(*is the argument being put forward in this case. It is NOT my opinion, and anyone contacting Norwich Union in the hope of getting their life insurance payout may be out of luck. Not least because they are Aviva now)

 

T (A child), Re [2019] EWHC 1572 (Fam) (12 June 2019)

https://www.bailii.org/ew/cases/EWHC/Fam/2019/1572.html

 

But before I even get into explaining why we are all legally dead, here’s a picture of Blue.  Which will also be skilfully woven into this delicious narrative.  Buckle up, buckaroo.

 

I rest my case

 

 

  1. F has strong beliefs surrounding the concept of “sovereignty”. This is a very particular concept for him. It has nothing at all to do with contemporary debate. It is essentially a personal ideology. F believes that central to the concept is the power and writ of the individual. ‘We are each…’, he says, ‘our own sovereign. We come from the Earth, we are the creations of the universe. We are governed by a Common Law but only to the extent that we depart from three principles. These three imperatives are: to do no harm; to cause no loss; to inflict no injury.’ In circumstances where they are proved to have occurred, to the criminal standard of proof, F asserts that what he calls the Common Law is then triggered.
  2. He places great emphasis on The Cestui Cue Vie Act 1666. In the 1666 Act Section 1, F tells me, there are provisions which state ‘that if a title or living being does not prove themselves alive after 7 years they are considered lost at sea. This is the means for government to take control of the dead entity’s property.’ F believes this to be the route by which the government ‘help themselves to money and property.’ We are in such circumstances considered ‘dead entity in the eyes of the law.’ In a graphic and powerful metaphor F states to me that we ‘come to life and are temporarily risen from the dead when summonsed to court’. The requirement to ‘all rise’ when the judge enters the court is symbolic of rising for the resurrection. These views may sound unusual and somewhat eccentric. They are, however, genuinely held and I have done my best to summarise them.
  3. It is in this context that when a birth is registered, F considers this to be the equivalent of an ‘entry into a ship’s manifest’, in which the child becomes ‘an asset to the country which has boarded a vessel to sail on the high seas.’ This facet of admiralty and maritime law is pervasive in F’s thinking. The essence of F’s objection is his belief that registration will cause his son to become controlled by a State which he perceives to be authoritarian and capricious.
  4. T has been given a name and surname but F strenuously resists registration. This is notwithstanding that a failure to do so is, in a variety of practical ways, likely to serve as an impediment to the promotion of T’s welfare as well as to have an adverse impact on F’s own legal status

 

And boy does researching The Cestui Cue Vie Act 1666 take you down some rabbit-holes.  It crops up quite a lot in the  ‘law only applies to me if I agree to it’ fallacy,  and my favourite bit was

 

“When a ship BERTHS, it is given a CERTIFICATE at a DOCK,  and the Government gives you a BIRTH CERTIFICATE from a DOC, so you’re just a ship owned by the Government”

That’s someone for whom rolls of  tin-foil (9)  is always in their Ocado basket.

 

Anyway, The Cestue Cue Vie Act 1666 does not assert that everyone is legally dead unless they prove every seven years that they are alive, of course not.  It says that if a person is missing without trace for seven years they can be pronounced legally dead without their creditors or heirs having to legally prove that they are dead.

 

The Judge kindly, but sadly for me, avoids getting into legal analysis of whether the father was right, and just decides that there are benefits for a child being registered as a citizen and getting those rights, and rules that the Local Authority can do it under section 33 of the Children Act 1989  (in doing so, considering one of my favourite cases where the mother tried to name her daughter Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/  )

 

The Judge also ruled that s33 was sufficient, and the inherent jurisdiction wouldn’t work here.

 

  1. It requires to be stated that such an order is inconsistent with my conclusion that Section 33 (3) CA 1989 is apt to address the requirement for registration. In London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam) I made it clear that the inherent jurisdiction of the High Court is not, as I termed it there, ‘a lawless void’ permitting judges to do all that which we consider to be right and helpful. Its power is only available through the gateway of Section 100 CA 1989. It is perhaps helpful to reiterate what I said in London Borough of Redbridge v SNA (supra):
    1. “33. The concept of the ‘inherent jurisdiction’ is by its nature illusive to definition.  Certainly, it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’.  But it is not ‘ubiquitous’ in the sense that it’s reach is all- pervasive or unlimited.  Precisely because it’s powers are not based either in statute or in the common law it requires to be used sparingly and in a way, that is faithful to its evolution.  It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.”
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Towards and untowards

 

This is a decision in an application for committal, and is a salutary lesson in the importance of precision in drafting.

 

London Borough of Wandsworth v Lennard [2019] EWHC 1552 (Fam) (14 June 2019)

http://www.bailii.org/ew/cases/EWHC/Fam/2019/1552.html

 

The father in the case was aggrieved at the social workers dealing with his child, and as a result of the way in which he expressed his feelings, an injunction was made.

It had this wording, which seems unexceptional and unproblematic and I make no criticism of the drafting here (but we shall see that it becomes very important)

“IT IS ORDERED THAT:

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour towards Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

I am now going to reprint that, with the critical word (for the purposes of this committal application) highlighted

“IT IS ORDERED THAT:

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour TOWARDS Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

 

 

What was alleged in this case (and please note it is important that the Court HAVE NOT gone on to determine whether these things are true) is that

 

 

  1. on 13 February 2019 Mr Lennard accepts that he attended Wandsworth Town Hall, whereat he “let his frustration get the better of me and I am truly sorry and remorseful about my behaviour towards the two staff members”. The behaviour to which Mr Lennard refers in his first, and in his second statements before this court, is alleged by the two staff members referred to, Gladys Etiobho, in an affidavit dated 28 March 2019, and Nathan Ojiekhudu, in a statement dated 9 May 2019. It can be summarised as follows:
  2. i) Mr Lennard barricaded Gladys Etiobho and Nathan Ojiekhudu in a room by using his body and refused to allow them to leave.

ii) Mr Lennard became verbally abusive and stated he would not permit Gladys Etiobho and Nathan Ojiekhudu to leave the room until he could see Grace Okoro-Anyaeche.

iii) Mr Lennard made threats of harm towards Grace Okoro-Anyaeche stating that he would “wait outside and snatch Grace because I want answers” and that he “would body snatch Grace at the car park and have a body map on the floor and going to burst her head open”.

iv) Mr Lennard is said to have made similar threats to Gladys Etiobho and Nathan Ojiekhudu.

v) When informed that the Police would be called, Mr Lennard himself called the Police and said he had “two hostage workers and if you don’t come now I don’t know what might happen” and proceeded to give the address of Wandsworth Town Hall.

vi) Mr Lennard then allowed Gladys Etiobho and Nathan Ojiekhudu to leave the room but made them wait in the reception area.

 

 

The father says that he did use foul language towards Gladys and Nathan, detained them in the room for ten minutes and regrets what he did.

 

But DID HE BREACH the injunction?

Well,  at first glance,  saying that he  “would body snatch Grace at the car park and have a body map on the floor and going to burst her head open”.  if proven  (and the Court would need to hear from the three people present, one who says it wasn’t said, two who say it was) would appear to be using threatening behaviour towards Grace. It is aimed very obviously at her.

But Grace was not present. She obviously now knows what has been said, and that must be frightening and distressing.  But the injunction doesn’t say “about”  or “aimed at” it says “towards”

 

Initially, one might think that there’s no real difference between those formulations, but actually, for it to be legally ‘towards’ someone, they have to hear it.

 

 

  1. In support of this submission, Mr Wauchope relies on the case of Atkin v Director of Public Prosecutions (1989) 89 Cr App R 199. That case concerned two Customs and Excise officers, accompanied by a bailiff, who attended the defendant’s farm to recover outstanding value added tax. Whilst two Customs officers conducted their business inside the farmhouse the bailiff waited outside in the car. The car was parked in the farmyard where the bailiff was unable to hear any of the conversation in the farmhouse. When the Customs officers ascertained from the defendant that he was unable to pay the VAT due they informed him that the bailiff would have to enter the farmhouse to distrain on his goods. The defendant replied that, “If the bailiff gets out of the car he’s a dead un.” No threats were made to the two officers. The bailiff did not hear the words spoken by the defendant. The defendant was convicted by the magistrates of using threatening words towards the bailiff and appealed by way of case stated.
  2. At p 204 the Divisional Court in Atkin recounted the submissions it heard in respect of the meaning of the “used towards another person threatening words”:
    1. “In this Court, Mr. Murray on behalf of the defendant, has highlighted the phrase in section 4(1)(a) ‘used towards another person threatening words.’ He submits that the plain and natural meaning of that phrase is that the threatening words have to be addressed directly to another person who is present and either in earshot or aimed at as being putatively in earshot. The phrase does not equate with ‘used in regard to another person’ or ‘used concerning another person.’ He submits that approached in that way the phrase here clearly related to the use of the words within the house to those who were in earshot.”

Later at p 204 the Divisional Court went on to observe as follows in light of the submissions made on behalf of the defendant:

“We were referred to decisions of different divisions of this Court in previous cases, Parkin v. Norman [1983] Q.B. 92 and Masterson v. Holden [1986] 1 W.L.R. 1017. We have not found those citations particularly helpful as they were both concerned with an earlier Act, the Public Order Act 1936. The 1986 Act in sections 4 and 5 supersedes section 5 of the 1936 Act. The wording in the new Act is quite different. The phrase ‘uses towards another person’ is entirely new and the construction of section 4 is therefore not assisted, in my judgment, by considering decisions of this Court in regard to the construction of an earlier statute. This statute has, we are told, not been construed by any court and the phrase “uses towards another person” has not been found by counsel in any other statutory provision which would give any helpful indication as to its true meaning in this context. So the exercise is one of purely looking at the wording of the section and deciding what the plain and natural meaning of the words is, bearing in mind that if there were any doubt that doubt would have to be resolved, since this is a penal provision, in favour of the appellant. In my judgment the submissions made by Mr. Murray are correct. The phrase “uses towards another person” means, in the context of section 4(1)(a) ‘uses in the presence of and in the direction of another person directly.’ I do not think, looking at the section as a whole, the words can bear the meaning ‘concerning another person’ or ‘in regard to another person.'”

  1. My attention was drawn to no other authorities or materials on the question of the meaning of “towards” in the context that is before this court.

 

 

[So here, the word ‘towards’ is significant, and for those reasons the application for committal was dismissed. It may seem a technical point, but for something as serious as committal the technical stuff matters and is essential. The benefit of the doubt, on something where someone might be sent to prison goes in the favour of that person. For ‘towards’ in an injunction, the person being protected needs to be present.  If the injunction instead said ‘shall not make in the presence of any person threats about’ then this would have been capable of being proved as a breach]

 

 

  1. Having given careful consideration to the matter, and in the context of the alleged breach in question being the use by Mr Lennard of verbal abuse, I conclude that I favour the narrow interpretation of the word “towards” in this context and take Parker J’s order to mean that Mr Lennard is prohibited from using offensive, foul, threatening words or behaviour in the presence of and in the direction of Grace Okoro-Anyaeche. Conduct such as, for example, Mr Lennard publishing his abuse on social media and Grace Okoro-Anyaeche thereafter reading the same, or posting a letter to her with the same result, would be caught in these circumstances. However, verbal abuse by Mr Lennard direct at Grace Okoro-Anyaeche when she is not present will not. On the local authority’s single pleaded allegation, the court here is concerned here with words spoken about, but in the absence of, Grace Okoro-Anyaeche.
  2. I take the view I do on the proper interpretation of the word “towards” in these circumstances primarily by reason of the fact that a breach of this injunction carries with it penal consequences. On the one hand, I must, of course, be conscious of the protective function of injunction, and that that protective function argues for a broad, purposive application of its terms. The court grants an injunction to provide protection and relief in circumstances where it is satisfied that such protection and relief is merited. However, against this, the injunction carries with it very serious penal consequences and can, within the current context, result in the imprisonment of the person bound by the injunction for a period of up to two years. The long list of procedural requirements that I set out at the beginning of this judgment further illuminates the strict approach the court takes to the examination of breaches that can result in a term of incarceration.
  3. Within this context, and again accepting I am not engaged in an exercise of statutory construction, I bear in mind the words of Lord Justice Taylor in Atkin at p 204 that where the exercise is one looking at wording and deciding what the plain and natural meaning of the words is, in circumstances where the provision in question is a penal provision any doubt is to be resolved in favour of the person subject to that penal provision. Once again, it is the meaning of a provision with penal consequences with which the court is here concerned, namely the order of Parker J dated 6 July 2018 with its attached penal notice.
  4. Within this context and having regard to the terms of the order made by Parker J, it seems to me that given the type of conduct alleged in the single allegation of contempt, namely verbal abuse, in order to find a breach, the conduct in question needs to have occurred in the presence of, and to have been directed at the person protected by the injunction. I accept this is a narrow interpretation rather a broad, purposive interpretation of the word “towards” and that this construction may be said to reduce the protective efficacy of the injunction. However, I am also clear that the penal consequences of the injunction argue against extending the effect of the injunction to words that were not spoken in the presence of the person protected by that order.
  5. I am reinforced in this view by examining the nature of the behaviour that caused Parker J to make the injunction of 6 July 2018 in the first place, namely the alleged behaviour of Mr Lennard directed towards those named in the injunction. Whilst it may be the case that spoken words will be passed on, once again given the penal consequences of the order there would be obvious difficulties in committing a person to prison on the basis of words that they had spoken being passed on by a third party to the person protected by the injunction who was not themselves present.

 

 

The Judge did go on to say that he would hear submissions about whether the injunction and the wording in it should be varied

 

  1. Given the conduct that has been admitted by Mr Lennard in his statements before the court, I will hear submissions on whether the terms of the current injunction should be extended either in their ambit, their duration or both.

County Lines and Magical Sparkle Powers

 

 

County Lines is the name that the police have given to the involvement of young adolescents in Organised Crime Gangs (OCG), usually transporting drugs from an urban centre where supply is readily available to rural areas where there is less supply and hence the price can be more lucrative for the OCG. Often there are competing OCGs in these areas, and hence there’s a degree of physical risk to the young adolescents as well as the criminal behaviour itself as the gangs compete for territory and access to those markets.

Magical sparkle powers is the pejorative nickname I have given to the inherent jurisdiction of the High Court, largely arising from the frequently cited quotation that the inherent jurisdiction of the High Court is theoretically limitless.

 

 

Fetch the bolt cutters Ryan

 

A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) (04 June 2019)

http://www.bailii.org/ew/cases/EWHC/Fam/2019/1384.html

 

6.The background can be shortly stated and is derived in the main from intelligence reports that have been communicated by the police to the local authority. KS lives with his mother in the south of the city. Since 2017 KS has been considered to be at risk of criminal exploitation. The police assessment is that KS is an active member of a named OCG. That OCG is believed to be involved in violent feuds grounded in attempts to take control of drug trafficking activity in identified areas of the city, further exaggerated by racial tensions. Police intelligence indicates that KS is presently in dispute with other members of the criminal community in the south of the city. The police consider that those ‘nominals’ he is in dispute with have the ability to use firearms and display a willingness to conduct retaliatory attacks and to seek violent acts of retribution.

 

 

7.In August 2017, KS was found in the company of an OCG drug dealer and was deemed to be a victim of criminal exploitation. Police exercised their powers of protection pursuant to s 46 of the Children Act 1989. In September 2017 KS was said to have witnessed a gang related stabbing in the south of the city that took place that month when a young male was stabbed in the neck. Also in September 2017 KS was found to be carrying a baseball bat and a brick and was arrested for a racially aggravated assault having allegedly threatened a female with a baseball bat and thrown a brick at her. In October 2017, KS was made the subject of a child protection plan by the City Council.

 

 

8.In May 2018 KS was found in possession of a quantity of heroin and offensive weapons were found in the property in which he was arrested for conspiracy to supply Class A drugs. No charges were brought on that occasion. In July 2018 KS was arrested at a festival in possession of a quantity of cocaine on suspicion of selling drugs. Later in July police received intelligence that KS had been involved in a street altercation in which he wounded a person with a knife. In October 2018 KS was convicted of possessing an offensive weapon and assault occasioning actual bodily harm arising out of the incident in September 2017 and was made the subject of a Youth Rehabilitation Order for 18 months.

 

 

9.In late 2018 KS was attacked in the street by males wielding a machete and a knife. He was stabbed five times. He stated he did not know his attackers and would not make a complaint. A month later a male from a rival OCG suffered severe knife injuries following a window being broken at KS’s home address whilst his younger siblings were present. No complaints were made by any of the parties involved.

 

 

10.In February 2019 police intelligence suggested that KS had been involved in the discharge of a firearm. In March 2019 KS was arrested following a knife attack that Police intelligence indicated was a targeted attack by members of the named OCG. A search of the family home revealed two large knives, one under KS’s bed and one under the sofa. Following a strategy meeting, it was agreed that KS could return home on condition that the mother work openly with the local authority. In April 2019 KS was served with a ‘Gun Crime Nominal Notice’. This is a ‘disruption notice’ designed to alert a person that their activities have generated Police attention and that advice and support is available should they choose. The Police identified KS as a “Gold” gun crime nominal and as being one of “top six gun crime nominals in the police force area”.

 

 

11.Thereafter, KS was identified by Police as a suspect in the shooting of an adult male who had been shot in the leg in broad daylight in the presence of members of the public. KS was arrested on that date on suspicion of attempted murder and bailed. A search of his property recovered an axe. Within this context, the police considered that KS’s life was under threat from reprisals following the shooting. However, KS rejected advice that he leave the area and reside in alternate accommodation, and refused to accept that he was at risk. As the result of a Strategy Meeting, the mother was advised to leave the family home with KS’s two younger siblings and to stay outside the area. She has done so. A secure panel meeting concluded that the risks to KS and to other’s from KS were so high as to warrant an application for an order authorising his secure accommodation.

 

 

12.Within the foregoing context, in her statement dated 15 May 2019, the social worker summarises the risks to KS arising out of the circumstances outlined above as follows:

 

 

 

“The Local Authority feel that it is necessary for a continuation of deprivation of liberty in respect of KS. KS remains at risk of significant harm or harming someone else if he is to remain in the care of [the mother] and remain in [the south of the city] and immediate surrounding areas. It is known from police information that KS is in possession of a firearm and there is information to suggest that he has used this on more than one occasion. The risks to KS’s personal safety have been escalating since the beginning of the year and the police have indicated that there is a significant risk to his own safety and life due to potential reprisals as a consequence of the shooting incident…”

 

(KS disputed that any of those things were true)

 

In this case, the young person KS was 17.  (Too old for a Care Order to be made). His mother objected to him being accommodated in secure accommodation, so he could not be accommodated under section 20 of the Children Act, therefore there was no mechanism under the Children Act 1989 for him to be accommodated at all. And therefore, there was no legal basis for the LA to seek a section 25 Secure Accommodation Order

The Local Authority therefore asked the Court to authorise under the inherent jurisdiction of the High Court for authority to deprive KS of his liberty.

 

(There is talk in the judgment of it being a DOLS application – deprivation of liberty application, but it clearly can’t be, because there’s no medical evidence that KS met the test in the Mental Capacity Act 2005 for not having capacity to make decisions for himself. Many would say that he was making very BAD decisions, but people are allowed to make BAD decisions, as long as they have capacity)

 

 

Cutting to the chase of the decision

 

 

1.Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is ‘no’.

 

The judgment sets it out in more detail, of course, but that’s the nub of it.  So this is a case which adds a limit to those theoretically limitless powers, and the cases that do that are always significant.

 

DISCUSSION

45.Having considered carefully the evidence and submissions in this case, and accepting that the evidence presently before the court justifies the concerns of the professionals in this case who are endeavouring to keep KS safe, I am satisfied that this court is not permitted to use its inherent jurisdiction to authorise KS’s the placement in secure accommodation in the manner requested by the local authority. My reasons for so deciding are as follows.

 

 

46.There is no care order in force in respect of KS and an application for such an order cannot be made by virtue of his age (Children Act 1989 s 31(7)). KS has not been accommodated by the local authority for the purposes of the Children Act 1989 (whilst the order of HHJ Sharpe did result, briefly, in KS’s placement at the non-secure unit, in light of the conclusions set out in this judgment, that order was not capable of causing KS to be “accommodated” by the local authority for the purposes of the Children Act 1989). KS’s mother retains exclusive parental responsibility for him. She did not and does not consent to his accommodation and, accordingly, KS cannot be accommodated by the local authority for the purposes of the 1989 Act (Children Act 1989 s 20(7)). In the circumstances, KS is a child who is neither “in the care of” the local authority or “provided with accommodation” by the local authority. I am satisfied that this position has two key consequences.

 

 

47.First, KS is not a “looked after” child for the purposes of s 25 of the Children Act 1989 and does not therefore fall within the terms of that section. In the circumstances, this is not a case where a declaration under the inherent jurisdiction is sought by the local authority in order to render lawful a non-secure placement for a looked after child that amounts to a deprivation of liberty due to a lack of suitable secure beds preventing an application under s 25 of the Children Act 1989. Rather, in this case, the local authority seeks an order under the inherent jurisdiction because s 25 of the Children Act 1989 cannot apply to KS.

 

 

48.Second, and within this context, in circumstances where KS is not and (in circumstances where his mother objects to his accommodation and where KS cannot be made the subject of a care order by reason of his age) cannot be a looked after child, the order the local authority seeks under the inherent jurisdiction is one which would not only authorise the accommodation of KS in a secure placement, but would, a priori, have the effect of authorising his removal from his mother’s care without her consent for this purpose in circumstances where his mother, who retains exclusive parental responsibility for him, objects to this course of action. In the circumstances, I am satisfied that the effect of the order sought by the local authority under the inherent jurisdiction would be to require KS to be removed from his mother’s care and be accommodated by the local authority. This course of action is prohibited by s 100(2)(b) of the Children Act 1989.

 

 

49.The intention and effect of Section 100(2)(b) is to prevent the court in wardship or under the residual inherent jurisdiction making any order which has the effect of requiring a child to be accommodated by a local authority. That end can only be achieved by satisfying the requirements of the statutory regime for accommodating children provided by (amongst other provisions) s 20 of the Children Act 1989. For the reasons I have given that outcome cannot be achieved in this case under the statutory regime. In such circumstances, it is clearly established that the High Court cannot exercise its inherent jurisdiction to grant authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme (Re E (A Child) [2012] EWCA Civ 1773 at [16] and Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937 at [39]).

 

 

50.I am, of course, acutely conscious of the nature and extent of the risks to KS identified in the evidence before the court and of the duty of this court to act in a manner that is compatible with KS’s rights under Art 2, which duty includes a positive obligation on the court to protect the right to life. However, the authorities that articulate this positive obligation make clear that it is to be discharged by the relevant public authority through taking “measures within the scope of its power” (see Osman v United Kingdom). For the reasons I have given, the orders sought by the local authority lie outside the scope of the court’s power under the inherent jurisdiction.

 

 

51.Given my conclusions with respect to the determinative effect in this case of s 100(2)(b) of the 1989 Act, I do not consider it necessary to address the arguments advanced by Mr Bagchi regarding the existence of a statutory lacuna in respect of children in KS’s position and Mr Spencer’s competing submission that the use of the inherent jurisdiction to place KS in secure accommodation would be to cut across a statutory regime that excludes children in KS’s situation from the statutory scheme.

 

 

 

CONCLUSION

52.As Mr Spencer points out in his careful and comprehensive Skeleton Argument, any reader of the local authority documentation in this case would be struck by the immense seriousness of this case, involving as it does references to attempted murder, criminal gangs, firearms and ‘County lines’ drug dealing. Whilst this court has made no findings in respect of these matters, on its face it is a situation that embodies the seemingly increasing tragedy of vulnerable young people for whom involvement in Organised Criminal Groups is perceived as a means of protection, of belonging, of mattering to an apparently indifferent world and who, in consequence, grasp for these things on a path that ultimately offers nothing but futility, pain and sometimes even death. As I noted at the conclusion of the hearing, in these circumstances the local authority cannot be criticised for seeking to explore the outer boundaries of the court’s jurisdiction in an effort to protect KS from the risks it has identified.

 

 

53.Within this context, it may also be considered by some to be surprising that the High Court cannot simply invoke its inherent jurisdiction in the manner requested by the local authority to address KS’s situation. However, as Hayden J observed in London Borough of Redbridge v SA [2015] 3 WLR 1617 at [36]:

 

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

 

 

Therefore, if the adolescent is over 17, not subject to a Care Order, and the parent objects to section 20, there isn’t a family law solution to the problem. It would have to be a criminal remand to a secure unit. That’s quite an unusual set of circumstances, because with an adolescent under 17, the LA could have sought an Interim Care Order and then secured.

Disclosure

 

This is not a new topic, but it bears repeating.

 

Please don’t use the word ‘disclosure’ when the word ‘said’  or ‘alleged’ would do better.

AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) (11 March 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/532.html 

 

[33] … despite the fact that the use of the term ‘disclosure’ to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term ‘disclosure’ to describe what the children had said to them).

 

Disclose means to make known, to cause to appear, to allow to be seen.  It has the connotation of truth.  Whether you believe the allegation or not, until the Court has determined it, it is an allegation not a disclosure. I understand why social workers might feel uncomfortable about saying ‘alleged’ but ‘said’ or ‘told’ conveys perfectly well that the child SAID X, without giving a value judgment of ‘and X is true’

 

By way of concrete example, I can DISCLOSE to you that I think Natalie Portman is a fine looking woman.  If, however, I tell you that I had a relationship with Natalie Portman and that she initiated it, you can’t properly say that I DISCLOSED that to you.   That’s an allegation, not a disclosure.  It might be true, it might not be.  (It is not)

But if I tell you that, you’d be wrong to say I disclosed it to you.  Stick with ‘said’

 

Example pulled out of thin air.

 

If you want to do one small thing to improve your written work, a find/replace on disclose / disclosure is a good start.  Hint, if you are not using the word ‘disclosure’ in a Court document to mean ‘a bunch of documents provided by someone’ just find a replacement word.    This is not just social workers, a random trawl on Bailii found me a dozen examples of the very best and brightest of our judiciary using it in judgments. Old habits die hard.

 

For further reading, I recommend

 

Things children say – Disclosure, allegations and why language matters

 

 

and

 

https://dbfamilylaw.wordpress.com/2018/02/06/listening-to-children-and-disclosure/

Just when you thought it was safe to go back in the ordinary residence water….

 

Oh my flip.

 

Re S (A child) 2017

https://www.bailii.org/ew/cases/EWCA/Civ/2017/2695.html

 

2017, but only published recently.

 

In a nutshell.   Parents live in Leicester City (City) and mum is pregnant.  City propose to issue care proceedings. Parents move to a new town, in Leicestershire (County).  City write to County, and invite them to do something about the forthcoming baby. Discussions don’t resolve things, and so City say “we will issue care proceedings, and ask that you be designated as local authority”.  No response.

Child is born in a maternity hospital which falls in Leicester City (City) and City issue care proceedings. ICO is made, child placed in foster care (which happens to be in the City, but that doesn’t matter because of s105 stop the clock provisions).  Court designate County as the LA.

 

County appeal.

 

This is the fundamental question:-

 

  1. The question, therefore, arises as to whether, as is argued by Mr Kingerley on behalf of the respondent, a new-born child’s residence is derived solely from the mother’s place of residence, notwithstanding that the child has never been present at the place of the mother’s ordinary residence, and that there has been (and is) no intention that the child will ever be in the care of his mother.

 

At the appeal the two arguments are :-

 

City say it is County, because the child’s ordinary residence is with the mother in County.

 

  1. In C (A Child) v Plymouth County Council, whilst an interim care order was made in respect of the child in question immediately following her birth, that baby lived with her mother at various addresses in Liverpool and in Plymouth. The dispute centred around which of the two local authorities should be the designated local authority. It was in this context that, on the facts of that case, Thorpe LJ upheld the judge’s view that a new-born baby was incapable of having an ordinary residence apart from the mother, and that, therefore, the ordinary residence would be dependent upon the residence of the mother.
  2. This theme was picked up more recently by Ryder LJ in Medway v Kent [2016] EWCA Civ 366 at [21]:
      1. “In C (A Child) v Plymouth County Council [2000] 1 FLR 875 Thorpe LJ re-emphasised the basis of the Northampton decision which, he said, was to put an end to litigation of this kind between local authorities (see, for example at 878 and per Swinton Thomas LJ at 880). Thorpe LJ agreed with the first instance court that it was a reasonable inference of fact in the circumstances of that case that a new born baby would be unlikely to have an ordinary residence apart from her primary career and that for a child of such a tender age, the child’s ordinary residence would usually follow that of her carer.”

 

County say it is City, because the child’s physical presence in County is an essential ingredient of ordinary residence. The child never set foot in County, because the child was removed from hospital in City.  Whilst if the child had not been removed and had gone home with mum the child would have been living in County, that doesn’t apply because it never actually happened.  So the child has NO ordinary residence, and then the second limb applies, that the designated authority is the one with the background knowledge and where the circumstances that led to the care proceedings happening took place – in this case City.

 

[The Courts have found that habitual residence does REQUIRE physical presence at least at some point]

 

  1. The matter was thereafter heard by the Supreme Court- A v A and Another (Children: Habitual Residence) [2013] UKSC 60, [2014] AC1. Although there were extensive arguments before the court in relation to the requirement of presence before habitual residence can be established, the Supreme Court in fact decided the case, not on the issue of habitual residence, but upon nationality. The observations of the court in relation to presence were, therefore, strictly speaking, obiter, but, as Mr Roche rightly submits, of powerful influence upon this court. Mr Roche, therefore, relies on certain observations made in particular by Baroness Hale in her majority judgment (Lord Wilson, Lord Reed and Lord Toulson agreeing and Lord Hughes dissenting).
  2. Mr Roche highlights Baroness Hale’s reference to earlier cases where physical presence was assumed to be an integral ingredient of habitual residence and relies on Baroness Hale’s observations at paragraph [55]:
      1. “So which approach accords most closely with the factual situation of the child – an approach which holds that presence is a necessary pre-cursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child’s integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been”
  1. Mr Kingerley, for his part, also properly draws the court’s attention to the dissenting judgment of Lord Hughes in A v A, and, in particular, his observation at paragraph [90]:
      1. “The decision of the Court of Appeal in this case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a State which is the home of the family unit of which the infant is part, and is where he would be but for force majeure.”

And at [92]:

“If current physical presence is not essential, then so also can habitual residence exist without any physical presence yet having occurred, at least if it has only been prevented by some kind of unexpected force majeure.”

  1. Mr Kingerley goes on to submit that to adopt the approach in A v A would undermine the concept of “rapid and not over-sophisticated review”, such as is required in a designation case since the days of the Northamptonshire case. A v A would lead, he says, to the introduction of a more complex and sophisticated test which is both unnecessary and goes against the approach of the Northamptonshire case, as confirmed by the Plymouth case.
  2. I accept Mr Kingerley’s submission to the extent that it would undoubtedly undermine the well-established approach to the determination of which local authority is to be designated for the purposes of a care order, if the court was expected to engage with detailed questions of fact of the type which might have been anticipated by the Supreme Court in order to determine habitual residence. It would, in my view, be both inappropriate and unnecessary to treat an application of this type in the same way, and with the same level of detail and sophistication as is sometimes found in disputes in relation to a child’s habitual residence in international cases.
  3. However, it is not that aspect of the judgment upon which Mr Roche relies. Rather, he relies on the fact that four of the five Supreme Court justices doubted that a child could acquire habitual residence in a country in which he had never been present.
  4. Since the decision in the Supreme Court, the CJEU has considered the issue of physical presence in the context of habitual residence.
  5. In W and V v X (Case C-499/15) the court held, at [61]:
      1. “Thus, the determination of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State.”
  1. A few months later in OL v OP Case C-111/17 PPU, in the opinion of the Advocate General, the question was posed at paragraph [29] as was:
      1. “… is physical presence a necessary and self-evident prerequisite, in all circumstances, for establishing the habitual residence of a person, and in particular a new-born child?”
  2. The Advocate General had the benefit of oral argument presented to him by, amongst others, Mr Edward Devereux QC on behalf of the United Kingdom. The Advocate General’s opinion in relation to this aspect of the matter is found at paragraphs [81-83]:
      1. “81.…it is not inconceivable that there may be wholly exceptional circumstances in which it might be appropriate to disregard the criterion of physical presence. However, the present case, dealt with under the urgent procedure, does not lend itself to an in-depth examination of that question of principle. Given the circumstances of this case, an answer to such a question is not needed in order to provide a helpful answer to the question submitted by the referring court.

82. However, it seems timely to observe that, in such circumstances, and taking into consideration, in particular, that habitual residence is a question of fact, it is necessary that a tangible connection be established with a country other than that where the child is in fact living.

83. Such a connection would have to be based, in the best interests of the child, on concrete and substantial evidence that could thus take precedence over the physical presence of the child. Plainly, there would not be a sufficient connection if there were some prospect that a particular Member State might become, on an indefinite future date, the place where the child would be habitually resident, unless that prospect were reinforced by other tangible links of such a kind that the prerequisite of the child’s physical presence could be set aside.”

  1. When the matter came before the full court, the question previously put before the Advocate General was slightly rephrased to reflect the fact that the child in question had been born by agreement between the parties in a specific country and had thereafter remained in the care of the mother for a period of months. The full court, therefore, dealt with the matter only briefly saying at paragraph [42-43]:
      1. “According to that case law, the habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national courts taking into account all the circumstances of facts specific to each individual case… To that end, in addition to the physical presence of a child in a member state, other factors must also make it clear that presence is in not any way temporary or intermittent and that the child’s residence corresponds to the place which reflects such integration in a social and family environment.”
  1. What is clear from A v A, at both the Court of Appeal and Supreme Court level and in the European jurisprudence, is that, in order to establish habitual residence, there will be an expectation that the child will have been present in the area where it is suggested that he, or she, is habitually resident.

 

 

 

The Court of Appeal therefore had to consider whether those judicial pronouncements on HABITUAL RESIDENCE also applied to ORDINARY RESIDENCE (so the physical presence of the child overrides the principle that a child’s ordinary residence is with the parent)

 

  1. In my judgement, the requirement of physical presence must equally apply to a determination of ordinary residence. The majority of the Court of Appeal in A v A was robust in suggesting that presence may be an absolute requirement. The Supreme Court do not specifically deal with the issue, but favour “presence”. The Advocate General in OL v OP addressed the matter head-on, as already quoted at paragraph [81], although the Advocate General regarded it as “not inconceivable that there may be wholly exceptional circumstances in which physical presence will not be necessary”.

 

So the child, who had never been in the parents home in County, did not live in County.  The child had no ordinary residence, which left City both metaphorically and literally holding the baby.

 

Good news for LA’s who don’t have a maternity hospital in their area, bad news for those who do.  (If in this example, County had done pre-proceedings work, then they would have been the designated authority on the second limb, but as they hadn’t City kept it.  So it is not just ‘where was the baby physically before removal?’  but who is the authority under s31(1) (b) as you can’t rely on parents residence to establish ordinary residence with a child removed from hospital that isn’t in the same area.

 

s31 (1) (b) where the child does not reside in the area of the local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.

[I think it is still arguable that if there were ANY incidents that went to threshold in County, even a continuation of existing concerns, then ANY circumstances could still have caught County. If it isn’t obvious, my sympathies here, on the limited facts that are before me, are with City. Not least because in appealing this decision, County have introduced a brand new headache into what was already far too difficult]

The sooner we implement my Residence/Schmesidence Act the better

https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/

Tag -you’re it (or not)

 

 

This is a Court of Appeal decision in which the Court of Appeal were asked to find that the Judge had been wrong to make Interim Care Orders rather than the option of placing an electronic tag on father to keep him away from the children and also to give general guidance on the applicability of electronic tagging in care proceedings.

 

J-S (Children) [2019] EWCA Civ 894 (24 May 2019)    

https://www.bailii.org/ew/cases/EWCA/Civ/2019/894.html

 

  1. On 15 March 2019, Oxfordshire County Council removed five children from their mother under an emergency protection order. Interim care orders were then obtained and the case was listed for a contested hearing before Her Honour Judge Owens on 10 April. The threshold for interim orders was not disputed, but the local authority’s plan to keep the children in foster care was. The judge continued the interim care orders and listed a fact-finding hearing for three days on 29 May. The father of the youngest child challenges that outcome on two grounds. The first concerns the justification for making the orders: the judge refused permission to appeal, and this court’s permission is now sought. The second ground of appeal, for which the judge herself gave permission, concerns the power to order electronic tagging in a case of this kind.
  2. The background is that in 2009 the father (as I shall call the appellant) was found to have caused 17 fractures to a baby son by a previous relationship. In 2012, he was sentenced to 33 months imprisonment for inflicting grievous bodily harm on the child and for neglect. In mid-2017, he began a relationship with the mother of the older four children. The local authority told the mother about the father’s history and a written agreement was made which barred him from attending the family home. In January 2018, a psychiatric report advised that the father posed a serious risk to any child and that he is not treatable. In May 2018, the local authority issued proceedings in relation to the older four children on the basis of neglect and failure on the mother’s part to protect them from unsuitable adults. That summer, the youngest child was born. In October 2018, a social work report on the father referred to his “eruptive anger”. In December 2018, the court made a supervision order for 12 months on the basis that the children would remain with their mother. The parents and the local authority made a written agreement that the father would have no unsupervised contact.
  3. In March 2019, two of the children made statements that the father had been staying at the family home, and this was apparently corroborated by one of his former partners. The children were then removed under the emergency protection order. The parents accepted that the threshold for intervention was met because there were reasonable grounds for believing that the father had been at the home, but they denied that it had in fact happened. That issue, which is central to the current proceedings, will be resolved at the imminent fact-finding hearing.
  4. Ahead of the contested decision, both the mother and the father offered to be tagged so that their physical separation could be monitored, allowing the children to return to their mother. Information from Electronic Monitoring Services, the agency responsible for tagging, was gathered. The matter came before the judge on 5 April, when there was no time for it to be heard. It was appreciated that only a High Court judge could make a tagging order, but Judge Owens directed that at a hearing fixed for 10 April she would conduct the welfare evaluation and refer the making of a tagging order to a High Court judge if she concluded that such an order should be made in principle –a course of action that was in itself not without potential difficulties in my view. She also invited the Ministry of Justice to attend the hearing, or to provide written submissions on the question of who would bear the costs of tagging.
  5. By agreement, the hearing on 10 April was decided on submissions. The parents pressed the issue of tagging, saying that it would sufficiently mitigate the risk of what was accepted to be severe harm. The local authority argued that the risks were not manageable because, even with tagging, the father could lose his temper quickly and before help could be mobilised. A letter was received from HM Prison and Probation Service (part of the MoJ) explaining the parameters and procedures for tagging. The author stated that the MoJ would not be responsible for the costs of tagging and monitoring and expressed the view that the case was for a number of reasons unsuitable for a tagging arrangement.

 

 

Obviously if the MOJ aren’t paying the costs of tagging, you can’t conceive of the Legal Aid Agency agreeing that tagging constitutes an assessment so the legal aid certificates can’t pay for it.  That leaves everyone looking meaningfully at the Local Authority, who at that point slap Kent County Council v G 1996 on the table and say “well, if you think this is an assessment whose primary focus is the child, so it comes within s38(6) good luck with making that argument’

 

Anyway, the Court of Appeal decided that there was no question of the Judge having decided the ICO wrongly

 

Ground 1

  1. The first matter for decision is whether permission to appeal should be granted on ground one. As to that, Mr Devereux submits that the judge’s overall assessment of risk was flawed. She directed herself with reference to authority on the need to consider the gravity of the likely harm, the likelihood of harm occurring, and the availability of protective measures. She was entitled to find the gravity to be serious, but she did not properly consider the likelihood of it occurring. She placed too much weight on the threshold concession, and did not take account of the fact that the parents denied breaking the agreement. Nor did she properly weigh up the protective possibilities of tagging. Had she done so, she would have been bound to refuse the application for interim care orders. Instead, she was unduly influenced by expressions of opinion in the letter from the MoJ.
  2. In response, Mr Geekie and Ms Scriven argue that the judge was right about the risks and the inability to mitigate them.
  3. I am in no doubt that the judge was right to refuse permission to appeal and that we should do likewise. The judge approached the issue correctly in law in a case in which the threshold was crossed. Moving forward, she carefully evaluated the risks and was fully entitled to find that even if tagging could be put in place it would be insufficient to mitigate them. Reading the judgment as a whole, it is plain that she considered that there was a significant likelihood of unsupervised contact taking place in the future. The evidence for that was amply sufficient for a risk assessment at the interim stage. There is no sign that she placed undue weight on opinions expressed in the MoJ letter, as opposed to its basic factual contents. Furthermore, this court will rarely interfere with an interim order, all the more so where in this case the central disputed issue is just about to be resolved. There is no prospect of this court finding the interim care orders were wrongly made. We therefore informed the parties during the course of the hearing that permission to appeal on this ground would be refused.

 

On the issue of an appeal for the Court to give general guidance, i.e an academic appeal, the Court of Appeal say “mmmmm, no”   and tell us about a case called  “Popdog”, which is my new favourite case name – replacing     Wombles v Womble Skip Hire (skips for collecting rubbish branded Womble, injunction refused) [1975] FSR 488

 

https://suesspiciousminds.com/2015/01/23/rihanna-youre-a-womble/

 

Ground 2

  1. Turning then to the appeal on ground two, the local authority and the Guardian submit that the court should not entertain it as it is academic in the light of the judge’s core decision that she would not order tagging in any event. For his part, Mr Devereux advanced this ground of appeal with moderation in the light of the outcome on ground one.
  2. In relation to academic appeals, we have been referred to the statement of principle in Hutcheson v Popdog Ltd. (Practice Note) [2012] 1 WLR 782, where Lord Neuberger MR held that, save in exceptional circumstances, this court may only entertain an academic appeal where three conditions are met: (1) where the appeal raises a point of some general importance; (2) where the respondent agrees to it proceeding, or is at least completely indemnified on costs or is not otherwise inappropriately prejudiced; and (3) where the court is satisfied that both sides of the argument will be fully and properly ventilated.
  3. Here, none of the conditions for hearing an academic appeal is satisfied. In the first place, this court is not aware of any pressing request from judges or practitioners for further guidance at this stage on the availability of tagging in cases of the present kind. In Re X & Y (No. 1) [2015] 2 FLR 1487, Sir James Munby P reviewed the availability of tagging in a case involving feared travel to Syria. At paragraphs 80-85 and 100 he referred to previous authority and to the HMCTS guidance, which notes that orders may only be made in the High Court and that states the question usually arises where there is a real risk of abduction. He noted that cases raising the issue of tagging are infrequent. At this hearing, we were referred to just four reported cases since 2003 and an anecdotal account of one other case. I do not consider that there is a pressing need for guidance on electronic tagging from this court at the present time. Cases where the issue may arise will be unusual and the decision will be case-specific.
  4. As to Lord Neuberger’s second requirement, the local authority and the Guardian do not consent to the appeal going ahead and there is no realistic form of costs protection that could be devised. Mr Geekie argues with good reason that it would be particularly inappropriate for guidance to be formulated without a real-life context that raised the hard practical issues that would have to be confronted.
  5. Thirdly, for the issue to be fully argued out, the court would need to hear submissions from the Ministry of Justice and the Legal Aid Agency and possibly from other organisations as well. The expense and delay of an adjournment for this to happen would be disproportionate.
  6. Returning to the present case, the priority now must be to further the children’s welfare by conventional means, rather than digressing into subsidiary issues such as tagging.
  7. For all these reasons, as we informed the parties at the conclusion of the hearing, we decline to offer further guidance on electronic tagging and we dismiss this appeal.

 

If you are going to proffer electronic tagging as your solution in care proceedings, you’re going to need to show

 

(a) How you will get one and how you will pay for it

(b) How it will work – i.e who is up 24-7 monitoring it and sounding the alarm bells if the two tags begin beating with just one mind

 

 

Good luck.

 

 

[Quick edit- the Court of Appeal also remind the judiciary that whilst it is right and appropriate that the trial Judge is asked for permission to appeal, the Court of Appeal greatly prefer that they say ‘no’ and leave that up to the actual permissions judge at the Court of Appeal.

  1. Lastly, I note that after what was otherwise a very proper decision, the judge was persuaded to grant permission to appeal on the basis that there was a compelling reason for the appeal to be heard. The outcome of the appeal shows that it would have been preferable for the judge to have left the issue of permission to appeal on ground 2 to this court, as she did with ground 1.
  2. CPR r.52.3(2) and its equivalent for appeals within the Family Court, FPR 30.3(3), provide that an application for permission to appeal must be made to the lower court at the hearing at which the decision to be appealed was made or to the appeal court in an appeal notice. It is good practice to make the initial application to the lower court: Re T [2003] 1 FLR 531. Under CPR r.52.6(1) and FPR 30.3(7) permission to appeal can only be given where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason for the appeal to be heard. So there is no doubt that the father was right to apply to the judge and that she had the power to grant permission to appeal. However, permission is rarely granted by the trial judge in a family case and there are good reasons for that. As Thorpe LJ put it in Re O (Family Appeals: Management) [1998] 1 FLR 431:
        1. “Exceptionally, there are family appeals that raise a difficult point of law or principle. There the judge at first instance may well wish to grant leave himself. But if the proposed appeal seeks only to challenge the exercise of his judicial discretion in a family case, it would generally be helpful to this court if the judge at first instance was to leave to this court the decision as to whether or not the appeal should be entertained.”

A similar point was made by Butler-Sloss LJ in Re R (A Minor) [1996] Lexis Citation 2264:

“This was undoubtedly a very difficult case. But in an impeccable judgment, the Judge was in error on one matter only. He should not have granted leave to appeal. … In this sort of case it is particularly important that leave to appeal should not be granted because it only gives to the appellant a false hope in a hopeless appeal.”

  1. Here, the judge gave permission under the “compelling reason” limb. In my view, there is a need for at least as much, and possibly more, caution on the part of a first instance family judge when deciding whether to grant permission to appeal under that limb as under the first limb, particularly where there is a possibility that the appeal may turn out to be academic. Overall, judges should not be deterred from exercising their power to grant permission to appeal in a proper case: where, for example, the decision has turned on a choice of conflicting authorities, or where for some reason it is likely that this court would grant permission to appeal itself, or where an immediate permission decision has clear advantages. But in most cases it would be better for a decision to grant permission be left to this court as, apart from anything else, significant and avoidable costs may be run up by the parties having to prepare for a full appeal.

 

ADMs apple

 

What happens when a Judge disagrees with an ADM?

 

Well, if the ADM decides the plan is adoption, the Judge just refuses the placement order, very simple.

 

What happens when the ADM decides the plan is NOT adoption and so there’s no placement order application, but the Judge thinks adoption is the right outcome? What then?

[There will be no apples in this post, I just needed a title.   I don’t believe anyone pronounces ADM as a word rather than three letters. Would love to hear from anyone who has been pronouncing it like “Adam” in Fonejacker style… But imagine the case really being about choice and temptation and consequences, if it makes you feel less tenuous]

The Court of Appeal in Re TS (Children)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/742.html

 

decided an appeal in which (bear with me)

 

The Judge wanted adoption

The Local Authority didn’t

By the time of the appeal hearing, the mother also preferred adoption to long-term fostering

The appeal was granted even though the Court of Appeal dismissed all five of the LA’s grounds

 

 

So, that’s something.

 

On 21st November 2018 at the ‘final’ hearing

 

 

 

 

4.In relation to the middle child, J, there was substantial dispute on the expert and professional evidence concerning his care plan. As is well known, the statutory scheme, to which I will turn shortly, requires a local authority to apply for a Placement for Adoption order if it is satisfied that the child ‘ought to be placed for adoption’ [ACA 2002, s 22(1)(d)]. The local authority cannot be so “satisfied” unless an agency decision-maker [“ADM”] has so determined.

 

 

5.During the course of the hearing the judge heard oral evidence from the ADM who had concluded that J’s welfare would best be served by a long-term fostering placement and had therefore not declared herself satisfied that J ought to be adopted. In reaching her decision the ADM had placed substantial weight upon the evidence of the local authority social worker which evaluated the attachment between J and his older brother B as being of importance.

 

 

6.The local authority, who sought to prioritise his relationship with the elder boy, B, who was his full sibling (in contrast to the younger child, K, who has a different father), favoured long-term fostering for J. In contrast, the evidence of an independent social worker who had been instructed to assess the children’s attachments to their parents and siblings, together with the children’s guardian, advised that J’s welfare required adoption, if possible with his younger half-sibling, K.

 

 

7.The judge, in a lengthy judgment, having reviewed all of the relevant evidence, moved on to conduct his welfare evaluation with respect to J. In doing so the judge applied the welfare checklist in CA 1989, s 1(3) together with the adoption welfare check-list in ACA 2002, s 1(4).

 

 

8.The judge concluded that the assessment of attachment conducted by the social worker was both superficial and “fatally flawed”. The judge stated that he “much preferred” the evidence of the independent social worker and the children’s guardian.

 

 

9.As the focus of this appeal is upon the consequences of the judge’s welfare determination, rather than its internal merits, and as the conclusion of this court is that the issues concerning J’s welfare now need to be re-determined by a different judge, it is neither necessary nor appropriate to descend to any greater detail.

 

 

10.Insofar as the ADM had based her assessment on the local authority social worker’s own assessment, which the judge had found to be flawed, for that reason, and for others identified by the judge, he concluded that the local authority should be invited to reconsider the care plan for J.

 

 

11.At the conclusion of his judgment, and following a full evaluation within the structure of the adoption welfare checklist in ACA 2002, s 1(4), the judge expressed his conclusion with respect to J (at paragraph 146) as follows:

 

 

 

“This has been the most difficult and most contentious part of this hearing. I am satisfied that J cannot be cared for within his birth family. The decision is then whether he should be placed in long-term foster care or given the opportunity of being placed for adoption. The local authority has not satisfied me that the current amended care plan for long-term fostering best meets his welfare needs throughout his life. Standing back, looking at the whole of the evidence and considering the arguments that have been advanced on each side, I reach the conclusion, that his lifelong welfare interest is best met by his being placed for adoption if possible and if that is managed with K, then that is the best outcome of all. It should be noted, that this was mother’s secondary position. I therefore invite the local authority, to reconsider their position in respect of J and to make a placement application. In the meantime, I will continue an interim care order with his remaining in the current foster placement until the case can be returned to me. I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent. If, the local authority do not take up that invitation, then the Guardian has already stated that she will consider the question of judicial review. That process is likely to cause further unwelcome delay for J’s plan for permanency. Therefore, care will need to be taken.”

12.The judge therefore extended the interim care order with respect to J for a short time to enable the local authority to reconsider its care plan for J

 

 

The ADM had been present for the judgment and was also provided with a note of it (the transcript hadn’t been obtained in time). The ADM still considered that adoption was not the right plan for the child and thus did not authorise a placement order application.  (There’s considerable complaint in the judgment that the revised ADM statement did not really grapple with the judicial criticism of the social work assessment and his conclusions about the sibling relationship, so hadn’t been a live reconsideration of the judgment, but just a  ‘we’ve thought about it, no’ response)

 

At the next hearing on 14th December 2018, which ought to have been a dialogue between Judge and parties as to “well, what next?” (i.e making the Care Order with plan of long-term fostering, or making further ICO to allow judicial review challenge, or asking ADM to think further about x y and z) instead the LA sought to appeal that judicial decision, and the Court granted permission, so nothing else really happened.

 

 

The LA submitted five grounds of appeal (which, spoiler, I already told you they lost on all of them but won the appeal)

23.In prosecuting the local authority’s appeal Miss Henke and Mr Rees rely upon five grounds:

 

 

 

i) That the judge erred in concluding that he was in a far better position than the ADM to determine the best outcome for J, rather than considering whether the ADM’s decision could be successfully challenged on public law grounds.

 

ii) That the judge erred in failing to reconsider his decision in the light of the ADM’s December witness statement which took account of the judge’s determination and which cannot be properly challenged on public law grounds.

 

iii) Parliament has given the decision to determine whether a child “ought to be placed for adoption” to the local authority rather than the Court.

 

iv) As the decision to apply for a Placement for Adoption order is one solely within the determination of the local authority, and as the ADM had reconsidered her decision in a manner that is not open to challenge on public law grounds, the judge was in error in continuing to refuse to endorse the care plan and make a final care order.

 

v) Given that the s 31 statutory threshold criteria were satisfied and the court determined that J could not return to the care of his family, the court should have made a final care order on 20 November 2018.

 

 

 

Broadly, the Court of Appeal say that the judicial decision that he wanted the LA to consider changing their care plan to adoption falls into line with the authorities on change of care plan generally or change of order to say, Care Order at home.

 

 

They cited the recent case of Re T 2018

 

46.More recently, in Re T (A Child) (Placement Order) [2018] EWCA Civ 650; [2018] 2 FLR 926, this court (McFarlane, Peter Jackson and Newey LJJ) considered a stand-off between a judge, who favoured placement of an 18 month old child with his grandmother, and a local authority which favoured placement for adoption. At the conclusion of the process in the Family Court, the judge had reluctantly concluded that a placement order should be made in the light of the local authority’s refusal to change its care plan. The grandmother appealed. The appeal was allowed and the case was remitted for re-hearing. After reviewing the authorities, and having noted that the judgment of Ryder LJ in Re W appears in ‘markedly more imperative’ terms than that of Thorpe LJ in Re CH 20 years earlier, Peter Jackson LJ, giving the leading judgment, continued:

 

 

 

“[42]     Although they touch upon the same subject, the decision of the Court of Appeal in Re CH (Care or Interim Care Order) [1998] 1 FLR 402 does not appear to have been cited in Re W. For my part, I would view the two decisions as seeking to make essentially the same point, though the tone in Re W is markedly more imperative. I particularly refer to the observations that it is not open to a local authority within proceedings to decline to accept the court’s evaluation of risk (para [81]) and that a local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision (para [83]). I would agree with these propositions to the extent that the court’s assessment of risk is sovereign within proceedings and that a local authority cannot refuse to provide a service if by doing so it would unlawfully breach the rights of the family concerned or if its decision-making process is unlawful on public law grounds. However, the family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be. What the court can, however, expect from a local authority is a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. For, as has been said before, any local authority that refused to act upon the court’s assessments would face an obvious risk of its underlying decisions being declared to be unlawful through judicial review. That must particularly be so where decisions fail to take account of the court’s assessments. Or where, as in this case, there is an impasse, there may have to be an appeal. But in the end, experience shows that the process of mutual respect spoken of by Thorpe LJ will almost inevitably lead to an acceptable outcome.

 

[43]     It is clear from these decisions that the court has both a power and a duty to assert its view of risk and welfare by whatever is the most effective means. I cannot agree with the submission made on the behalf of the guardian – ‘some judges might have pursued the matter further with the agency decision maker, but this judge cannot be said to have been wrong not to do so’. As McFarlane LJ remarked during argument, that amounts to a lottery, depending upon the inclinations of one judge as against another. The obligation upon the court is not merely to make its assessment, but to see it through. That is a matter of principle, and not one of individual judicial inclination.

 

[44]     The present case is somewhat more complicated than Re CH or Re W. Here, as Ms Fottrell notes, the judge’s preferred plan was dependent upon a separate step being taken by the local authority within a different statutory framework. Without the grandmother being approved as a foster carer, it would not be lawful to place Alan with her under a care order. I therefore examine the law as it applies to the approval of connected persons as foster carers.”

 

And decided

 

 

 

 

48.Firstly, the approach of a court to a potential impasse with a local authority on an important element in the care plan for a child has been well established for over 20 years. Insofar as there has been movement, it has been in the direction of emphasising the role of the court during proceedings (see Ryder LJ in Re W), but, in like manner to the approach taken by Peter Jackson LJ in Re T (with whom I agreed in that case), I consider that when, as here, the focus is upon the care plan after the proceedings are concluded, there is a need for mutual respect and engagement between the court and a local authority.

 

 

49.The key authority in the canon of cases on this point is, in my view, Re S and W; subsequent authorities have confirmed the clear statement of the law given in the judgment of the court given by Wall LJ. Of particular relevance to the present appeal is the passage at paragraph 34:

 

 

 

“Had the local authority (as it should have done) accepted his invitation to reconsider after reading his judgment and then restored the case to the judge’s list, it might well then have been the case that the judge was faced with either making the care order sought by the local authority with its unacceptable care plan or making no order. But the judge had not reached that point, and was – in our view wholly properly – striving to avoid it.”

 

And at paragraph 35:

 

“There needs to be mutual respect and understanding for the different role and perspective which each has in the process. We repeat: the shared objective should be to achieve a result which is in the best interests of the child.”

 

 

I have a difficulty with this. On the one hand, yes, a Judge deciding the case must be able to say “I don’t like any of the options that are before me and I want further discussions about whether there may be another way forward”.   On the other, what then is the point of the Agency Decision Maker?

 

We all know in cases that the involvement of an Agency Decision Maker in deciding whether or not a Local Authority can apply for a Placement Order and have adoption as the plan for the child adds 2-3 weeks to the timetable and requires production of a lengthy document in the form of a Child Permanence Report. That’s because the statute and regulations set up a system whereby social workers could not themselves decide that adoption was the plan, it needed to be a plan which was supported by the Agency Decision Maker (earlier after the Adoption Panel heard the case but that requirement was removed around the time 26 weeks came into our thinking).

 

Well once the Agency Decision Maker is not a gate-keeper who decides whether an application is put before a Judge or not, why not just have a social worker make an application for Placement Order, and the Judge decide it?  You either have separation of powers or you don’t.

But the Court of Appeal here basically say that the Judge can properly and legally invite the LA and ADM to reconsider and ask them to put in a Placement Order application.  What happens when and if the ADM says no still (currently) remains unknowable.  Judicial review isn’t an easy solution here. Particularly if the ADM is making a decision with which others might not agree, but is not for judicial review purposes a decision that no reasonable ADM could ever take.

I think in part, that’s why the LA were arguing that unless the ADM decision of long-term fostering was ‘wednesbury unreasonable’ (a decision that no reasonable ADM could come to), then the Court should move on and consider Care Order against Supervision Order and no order, and put adoption out of its minds. The Court of Appeal reject that, and say the Judge was entitled to ask the ADM to think again.

 

 

The Court of Appeal, as I said at the outset, granted the appeal, despite rejecting all five of the LA’s grounds of appeal. And it was, in part, because the Court on 18th December granted permission to appeal rather than continuing the process (which seems (a) harsh on the Judge and (b) a bit have your cake and eat it on the part of the LA, who win the appeal because they wrongly persuaded a Judge to give them permission)

 

 

 

 

56.Although this is not strictly how the Local Authority formulated its grounds of appeal, I am driven to the conclusion that the judge was in error in conducting the December hearing as he did. No objection was taken to the point being put in this way, and I am satisfied that it was fully ventilated at the appeal hearing. In stating that conclusion I do not intend to be critical of the judge, who plainly found himself in an unwelcome situation and who may have been bounced into a speedy decision when the oral application for permission to appeal was made at the beginning of the hearing. There was, however, as I have stated, no basis upon which permission to appeal the November determination could have been granted. Further, it was, in my view, premature for the judge to hold that there was an impasse between the court and the local authority before he had undertaken a further evaluation process in the light of the ADM’s statement. If, as may have been the case, following such an evaluation the court were to conclude that the ADM had failed to engage with the judge’s reasoning, a further adjournment for reconsideration by the local authority may have been justified. In short, difficult though the situation undoubtedly was, the December hearing should have run its course rather than being terminated before it had really commenced by the grant of permission to appeal the November order. In coming to this conclusion I have the words of Wall LJ in Re S and W very much in mind:

 

 

 

“[43]     As will be plainly apparent from what we have already said, the judge in the instant case had not reached the point identified by Balcombe LJ in Re S and D. The local authority’s reliance on this decision is accordingly, in our judgment, misplaced.”

 

But the other basis for granting the appeal was this

 

 

57.Fifthly, and separately from any of the grounds of appeal raised by the local authority, I am concerned by the clear statement that appears in the judge’s November judgment concerning his approach were a placement for adoption application to be made:

 

 

 

“I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent.”

58.I consider that the father has made good his appeal on the basis that the judge was in error in stating a clear predetermined conclusion on the question of whether the parents’ consent should be dispensed with under ACA 2002, s 52 in the event that, in future, the local authority applied for an order authorising placement for adoption. Although it is plain that the option of adoption was very much on the agenda for the November hearing, given the opinions of the independent social worker and the guardian, no formal application had been made and the father had not expressed a view with respect to consent or been called to give evidence on the issue. Further, it is apparent that no submissions were made to the judge that went beyond the concept of adoption and expressly addressed issues of consent or the formal making of a placement order.

 

 

And so the case has gone back for re-hearing, and all of us have now learned that even where the LA don’t make an application for a Placement Order the Court can still ask them to reconsider after giving judgment at final hearing but before making final orders. That may be music to the ears of some Guardians.