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“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

 

 

A tale of five silks, five months and a seven day order

As Bob Dylan sang ‘But they got a lot of forks and knives, and they got to cut something”

 

As far as I know, there has never been a reported case about a Child Assessment Order. In fact, up until this case, there had only been three reported cases that mention one in passing in a case where one was made, and another three that just mention them by way of illustration. In 26 years of practice, I’ve only applied for one ever.  They are so niche, I couldn’t even find how many have been made from the Family Court statistics.  (I was told, anecdotally, that the one I applied for 8 years ago was the 14th ever)

 

They are very rare. I’ve never heard of one being contested. But here we are with not only a contested one, but an appeal about a contested one, with five silks in it to boot.

 

I write this post therefore in the knowledge that it is extraordinarily unlikely that any of the issues in the case will ever emerge again, but hey, if they do, the answers are here.

 

 

Re  I (Children : Child Assessment Order) 2020

http://www.bailii.org/ew/cases/EWCA/Civ/2020/281.html

 

Quick info-dump, a Child Assessment Order is pretty much what the title suggests – it is an order by a Court authorising an assessment to be carried out on a child.  It covers a similar function to section 38(6) where the Court controls what assessments are carried out on children who are within court proceedings, but is a stand-alone application.

You might, for example, use it in a case where you want to do an X-ray of a child whose sibling has a suspicious fracture and you are wanting to check whether the other child has any injuries and the parents say no, but you don’t want at that point to seek an Emergency Protection Order or Interim Care Order.

 

Why was one sought here, why was it controversial, why on earth are five silks involved, in an application generally considered to be niche and fairly trivial ?  Note that the assessment lasts for seven days, the application was made in October 2019, decided in December 2019, and appealed by February 2019, so the court process lasted for five months, or approximately twenty times the duration of the order under dispute.   You’ll see why there are broader issues in a moment, assuming you are still here…

 

Lord Justice Peter Jackson sets it all out very clearly, but the tl;dr is “Suspicions of radicalisation”

Ah, you say, now I get why everyone got silked up.  And why the case has wider-ranging issues that warranted all of this furore.

 

  1. This appeal concerns the court’s power to make a child assessment order under s.43 of the Children Act 1989. It arises in relation to a family with five children. The children, whose ages range between 18 and 9, are making excellent progress and have impressed everyone who has met them. Why then are they the subject of proceedings? The answer lies in their father’s conviction under the Terrorism Act 2000, for which he received a substantial prison sentence. His offences consisted of addressing meetings to encourage support for or further the activities of Islamic State. He had for many years been associated with extremist beliefs and has a previous conviction for violent disorder arising from a sectarian assault, for which he served a term of imprisonment in 2014. In January 2015 he was made the subject of an ASBO arising from earlier violent demonstrations. In December 2015 he was arrested for the terrorist offences.
  2. Following the father’s arrest, there was concern about the impact of his beliefs and activities on the family. It was found that one or more of the children had been taken to meetings at which the father had spoken, and an image of a beheading was found on one of the children’s phones. More recently, evidence emerged showing one or more of the children holding placards at a demonstration in support of the Caliphate. In early 2017 the local authority in whose area the family lives therefore carried out an investigation under s.47. At that stage the mother was assessed as recognising the risks and acting protectively. There was no evidence of her being implicated in the father’s views and activities. The local authority’s plan was for further assessment when the father was due to be released from prison.
  3. The father was released on licence in late 2018, and was placed in a hostel. A further s.47 assessment was undertaken by the local authority. By contrast with the earlier assessment, this raised considerable concerns about the mother’s protectiveness. She said that the father had strong views but that they were not criminal. She referred to the undercover officer whose evidence had led to the father’s conviction as a “snitch”. The assessment, completed on 13 March 2019, concluded that: a Child in Need plan was required (as the father wanted to go home); the Probation risk assessment should be obtained to identify the father’s current view of his offending; the father should be interviewed; an Intervention Provider should be instructed to talk to the children; fuller work should be carried out to provide the children with clear information about their father’s offending; the father’s interaction with the children should be observed.
  4. The mother opposed these interventions, describing them as a collective punishment driven by religion and not genuine concern. The local authority convened a Child Protection Case Conference on 20 May and the children became subject to Child Protection Plans. A referral was made to Prevent so that the case could be discussed within the Channel Panel, a multi-agency panel designed to safeguard individuals at risk. In June, the parents consented to direct work being done with the children but later that month they withdrew that consent. The mother declined to meet a representative from Prevent or engage with a parenting assessment. As a result, the Probation Service advised that the father’s licence conditions had been changed so that the mother was no longer approved to supervise contact. At the Channel Panel meeting on 5 July it was decided that the children should be assessed by an Intervention Provider to establish whether they required mentoring with the aim of increasing theological understanding and challenging extremist ideas that may be used to legitimise terrorism. The parents declined to consent to this assessment.
  5. These events added to the local authority’s concerns. On 22 July, it initiated the process leading to public law proceedings (the PLO process) by sending formal letters to the parents, as a result of which they qualified for legal representation. Then, on 20 August, the father’s licence was revoked due to a breach of his licence conditions. He remains in custody and his release date is not known.
  6. A PLO meeting took place on 5 September. The mother attended on her own. She refused to consent to unannounced visits, a parenting assessment, direct work with the children, or to work being carried out by an Intervention Provider. Further details of the parenting assessment and the direct work proposed were provided to the mother by letter but on 23 September she responded by saying that she did not consent to any work being carried out.
  7. On 7 October, the local authority decided to apply for a child assessment order, with a view to an assessment being carried out by an Intervention Provider. It issued its application on 4 November. Directions were given by Newton J on 13 November and the final hearing took place on 4 December. The application was opposed by both parents and by the four older children, who were separately represented (the eldest has since turned 18 and is no longer the subject of proceedings). It was however supported by the Children’s Guardian. He considered that it is not known whether the children have been exposed to the risk of radicalisation by their father’s actions and beliefs, or whether their mother is fully protective. The family’s unwillingness to work with the local authority has prevented it from assessing either the level of risk or what support can be offered.

 

The Judge at first instance, declined to make the Child Assessment Order  AND ruled that he in fact had no jurisdiction to make one.

 

Here are the statutory provisions  (bits in red are mine for emphasis)

43 Child assessment orders.

(1) On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a) the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;

(b) an assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and

(c) it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.

(2) In this Act “a child assessment order” means an order under this section.

(3) A court may treat an application under this section as an application for an emergency protection order.

(4) No court shall make a child assessment order if it is satisfied—

(a) that there are grounds for making an emergency protection order with respect to the child; and

(b) that it ought to make such an order rather than a child assessment order.

(5) A child assessment order shall—

(a) specify the date by which the assessment is to begin; and

(b) have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order.

(6) Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child—

(a) to produce him to such person as may be named in the order; and

(b) to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.

(7) A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.

(8) Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.

(9) The child may only be kept away from home—

(a) in accordance with directions specified in the order;

(b) if it is necessary for the purposes of the assessment; and

(c) for such period or periods as may be specified in the order.

(10) Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.

(11) Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to—

(a) the child’s parents;

(b) any person who is not a parent of his but who has parental responsibility for him;

(c) any other person caring for the child;

(d) any person named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact;

(e) any person who is allowed to have contact with the child by virtue of an order under section 34; and

(f) the child,

before the hearing of the application.

 

 

Let’s deal with the jurisdiction point first, which might be classified as a ‘smarty-pants lawyer argument’.  I mean, I wouldn’t categorise it that way myself, but other less kind people might. Naughty other fictitious people.

 

The judge’s conclusion on jurisdiction

  1. The challenge to the court’s powers was pursued by both parents before the judge. However, on the appeal neither the mother (following a change of leading counsel) nor the children sought to uphold the judge’s decision in this respect and it was left to Mr Twomey QC and Mr Barnes to pursue it. The argument runs like this. The effect of ss. (1)(a) and (b) is that the local authority must have reasonable cause to suspect harm or likelihood of harm and the assessment must be required to enable it to determine whether harm or likelihood of harm exists. The local authority must, they say, demonstrate that it has “a suspicion (and no more)”. In this case, the local authority could only have decided to place the children on child protection plans and to activate the PLO process if it had already judged there to be the existence or likelihood of harm: Working Together to Safeguard Children 2018, page 45. Its state of mind was therefore one of belief, not suspicion, and accordingly the test under (a) is not satisfied. Nor, for the same reason, can the local authority meet the test under (b) because the assessment is not required to enable it to determine whether or not the children are suffering or likely to suffer significant harm: it already believes that they are. Even though as a matter of normal statutory interpretation, the greater includes the lesser (so here belief includes suspicion), that approach does not apply as this provision concerns the state of mind of the local authority.
  2. In oral argument, Mr Twomey asserted that as a matter of law the consequence of any one of local authority’s actions in calling the child protection conference, making child protection plans, or initiating the PLO process was to make an order under s.43 unavailable to the local authority and the court. It would not be open to the case conference to decide that an application under s.43 was an appropriate course to safeguard the children. Put another way, if the local authority wanted to seek an order under s.43, it was obliged to go to court before calling a child protection conference. Once it had reached the stage of ‘belief’ the only options open to it were (a) doing nothing, (b) continuing to seek the parents’ consent, or (c) issuing care proceedings. These outcomes are, he said, mandated by the plain words of ss.(1), but he was unable to suggest any good sense to this interpretation, either in terms of child welfare or good social work practice. In particular, he was unable to rebut the local authority’s argument that it would be fundamentally contrary to good social work practice and to statutory guidance for a local authority to apply for a court order before seeking to work with the parents by less interventionist means.
  3. The judge set out these and other arguments at some length, before stating his conclusion in a single paragraph:
    1. “36. Generally, as a matter of construction, the greater includes the lesser. In looking at the Act however, there is a gradual proportionate and cumulative incline in what is required to permit interference in a family’s life by the state. Section 43 is founded on a reasonable cause to suspect. Section 38(2) is founded on reasonable grounds for believing. Section 31(2) is founded on the court being satisfied. Each tier has available to it a raft of supporting powers proportionate to the level of inquiry and a possible conclusion. For that reason, it seems to me that the submissions made in respect of this point (the lesser not being included in the greater) are well founded, since I examining the local authority’s state of mind.”

 

In short – because the LA had held a case conference and registered the children, they had crossed a test of ‘reasonable grounds to believe they were at risk of significant harm’, whereas the test for a Child Assessment Order is ‘suspicion that they are at risk of significant harm’.   You may well be saying, but the test for a Child Assessment Order is LOWER, so if they met the former, the latter must be met too. And you would underestimate the smartness and ability of a silk to make what seems like a bad point into an argument.   The argument here is that in over-shooting the test, it is no longer a ‘suspicion’ but a ‘reasonable belief’ and thus it is not open to the LA to seek a Child Assessment Order because their evidence is TOO GOOD.

You can see that the Court of Appeal were sceptical, because the natural end point of this is that the LA ought to dash into Court to seek an order rather than to seek to work with the parents under a PLO or a Case Conference, which flies in the face of the way things are supposed to work.

Fascinating though the suggestion that an examination of the local authority’s state of mind is needed is, the Court of Appeal were not convinced.

 

  1. With respect to the judge, I consider that he was wrong to reach this conclusion for these reasons:
  2. (1) Section 43 must be read in the context of the legislation as a whole. As Mr Samuels QC and Mr Lefteri submit, the scheme of the Act points to the child assessment order as forming part of the initial stages of investigation and assessment. As Ms Howe QC and Ms Chaudhry say, the purpose of the section is to enable proper assessment to establish whether there is a need and justification for any further action. This is also the effect of the statutory guidance quoted above.

(2) The condition at ss.(1)(a) provides a relatively low threshold of reasonable suspicion. This is a threshold to be crossed, not a target to be hit. The normal rule of statutory construction applies to this provision as to any other. The reason given for departing from it, namely that the court is examining the local authority’s state of mind, has no logical foundation.

(3) The only restriction on the use of s.43 where the threshold is crossed is that provided by ss.(4) which prevents the making of a child assessment order when an emergency protection order should instead be made.

(4) The condition in ss.(1)(b) plainly exists to ensure that an assessment can only be ordered if it is required, i.e. necessary. However, a determination of whether a child is suffering or likely to suffer harm is not confined to a ‘yes’ or ‘no’ answer. The assessment is designed to provide a range of information, identifying not only whether harm may exist, but also describing its nature and extent. Nothing less will allow the local authority to understand the child’s situation and determine how best to proceed. The narrow interpretation of the provision accepted by the judge overlooks the essential qualitative character of the assessment process. It also fails to connect with his own description of the underlying question as being “under what circumstances might the parents’ religious views and activities result in harm to the children’s physical and emotional health and wellbeing?” That was the question to which the assessment would be directed.

(5) The suggested interpretation does not provide “the sensible approach to child protection” spoken of by Baroness Hale. It conflicts with good social work practice and needlessly limits the flexibility with which the powers under the Act should be exercised. It is clear from the guidance that it is not the intention of the legislation to push the local authority into making an application under Part IV in order to obtain an assessment. That might then lead to substantial litigation and an application for the proceedings to be withdrawn, as happened in the radicalisation cases A Local Authority v A Mother and others [2017] EWHC 3741 (Fam) and In re A and others (Children)(Withdrawal of Care Proceedings: Costs) [2018] EWHC 1841 Fam; [2018] 4 WLR 146. This would fly in the face of the principle of proportionality and if it were correct it would effectively render s.43 redundant.

  1. For these reasons I would unhesitatingly conclude that as a matter of law the court had the power to make a child assessment order in this case.

 

Of course, the parents could make use of the argument in section 43(4) that the Court can’t make a Child Assessment Order if the Court considers that it should make an Emergency Protection Order instead, but you can easily see why that would not be an attractive argument to deploy on behalf of a parent.

 

So, having ruled that the Court COULD make a Child Assessment Order, the Court of Appeal then considered whether in the circumstances of the case, the Judge was wrong to decide not to make one.

 

 

  1. The judge then concluded:
    1. “48. The evidence and legal principle in this, as in other such cases, is complex and has to be considered on a case by case basis. Applying well established principles to the evidence that has been available to the Court, I am satisfied that the authority in this case has not satisfied the provisions of s.43.

49. Once the absent evidence has been obtained, even at this belated stage, further urgent decision making will be required about whether or not it is appropriate that there needs to be intervention and of what sort. The approach of the family will obviously be an important part of that analysis.”

  1. Because the judge did not express himself with reference to the terms of the statute, it is not easy to be precise about his reasons for refusing the local authority’s application, but they would seem to be these:
  2. (1) He had no power (as above).

(2) It is too late. There were probably reasonable grounds for suspicion in 2015, and the local authority should have acted then. After “4 uneventful years” now is not the time to assess the risk.

(3) (Though not said in terms) the local authority does not have reasonable grounds for suspicion. The application needed more than a “historic” foundation. The failure to gather available evidence about the father from the probation and prison service means that there is no current evidence of the children having been affected by their father’s views.

(4) Alternatively, and for the same reasons, the assessment is not required.

(5) In any case, an order would be disproportionate.

(6) It is unlikely that the older children will participate in an assessment. Endeavouring to compel them to be assessed would be heavy-handed, disproportionate and possibly unfair.

(7) Given the children’s stance, an assessment would not be likely to produce better information than is presently available.

(8) The local authority can think again once it has more information.

 

The Court of Appeal set out the arguments of the LA and Guardian urging a Child Assessment Order and the parents urging that the initial decision should stand.

Their conclusions

 

  1. This aspect of the appeal is from an evaluative decision of a trial judge and it can only succeed if the decision is one that the judge could not reasonably have reached on the evidence before him. That is a high hurdle, but I conclude that it has been cleared in this case for these reasons:
  2. (1) The judge’s approach to the two questions that faced him was inherently inconsistent. Having decided the question of law on the supposition that the local authority was overprovided with information, he based his evaluative decision on the conclusion that it had insufficient evidence for its concerns.

(2) The circumstances of this case present a clear basis for serious concern about the welfare of these children, which their good progress alone could not dispel. Risk of this kind can never be regarded as “historic” until it has been positively shown not to exist, but the judge gave little or no weight to the obvious risks inherent in the father’s long-held views, which were only magnified by the family’s more recent withdrawal of cooperation. The alignment of position between the parents was a further troubling development.

(3) In contrast the judge gave disproportionate weight to his view of the local authority’s approach. In effect he substituted for the requirement for reasonable suspicion a test of whether the local authority had acted reasonably. And even if it was appropriate to criticise the decision to await the father’s release before refreshing its assessment (and for my part I can see no reason to regard that approach as unreasonable) the court was obliged to deal with the case on the facts as they were, not as they might have been.

(4) The judge was plainly unimpressed by the inter-agency working in this case. He considered that information about the father’s current mindset was necessary and should have been obtained before assessing the children. But even if dependable information about that could be obtained from other agencies, it would only fill in part of the picture and an assessment of the children was likely to be necessary in any event. The argument that an assessment should not be ordered because there are gaps in the evidence is circular.

(5) In any event, the judge appears to have accepted that all the information was needed (see paragraph 49 of his judgment). If he considered more information about the father was a precondition to an assessment of the children, he could have given directions for that information to be obtained. The absence of evidence from the parents is also something that should have been noted. Having taken the position that the judge did, the appropriate response was not to dismiss the application but to adjourn it.

(6) The level of past cooperation by the mother or children could not be of much significance if they have withdrawn cooperation before the local authority has the information that it needs to plan its child protection strategy.

(7) The proportionality exercise in this case went awry. The description of the assessment proposal as heavy-handed, disproportionate and overbearing cannot be sustained. High-performing, law-abiding children are not immune from the insidious lure of extremism. The proposed assessment was by no stretch of the imagination disproportionate to the risk in this case. The submission that the children would be left in a vulnerable position without legal representation or that they might be placed in a situation that was unfair is a misreading of the nature of the child protection and litigation processes. Social workers and intervention providers are not threats from whom the children must be protected, but public servants who are seeking to protect these children by means of the least intrusive intervention. The children’s committed lawyers (both those they instruct directly and those representing the Children’s Guardian) will surely not become unavailable to them at the moment the order is made, in the face of an imminent brief assessment.

(8) Even if the reasons for refusing an order in the case of the older children could be sustained on the basis of their views, that would not warrant a refusal to make an order with respect to the youngest child.

  1. A yet further argument was presented by Mr Twomey. He suggests that s.43 does not permit an assessment of the children’s religious faith as that is not a facet of their health, development or treatment by their parents. That argument is self-evidently unsound. What is being assessed is not the children’s religious faith but their vulnerability and resilience in the face of extremist propaganda masquerading as religious faith.
  2. I would however hold that the judge was right to find that the opposition of the older children was not an obstacle to the making of an order. In this respect, his approach is to be preferred to the dicta in Re Q (see paragraph 30 above). As can be seen from the statutory guidance, it is not strictly correct to characterise a child assessment order as an emergency intervention. Nor as a matter of principle is it unlikely that a child assessment order will be made with respect to a competent child who may refuse to submit to assessment: it will depend on the circumstances.

 

[Whilst the statute says that a competent child who says no, is not compelled to participate in the assessment, that does not stop the Court making an order, it just means that at the point of arranging the assessment itself, the objection of a competent child will stop the assessment of that child and override the order, pace section 43 (8)

  1. Drawing matters together, a child assessment order allows for a brief, focussed assessment of the state of a child’s health or development, or the way in which he or she has been treated, where that is required to enable the local authority to determine whether or not the child is suffering, or is likely to suffer, significant harm and to establish whether there is a need and justification for any further action. The purpose of the assessment is to provide a range of information, identifying not only whether harm may exist, but also describing its nature and extent. It is part of the process of gathering information so that any child protection measures can be appropriately calibrated. It is the least interventionist of the court’s child protection powers and is designed to enable information that cannot be obtained by other means to be gathered without the need to remove the child from home. It is not an emergency power and it may be particularly apt where the suspected harm to the child may be longer-term and cumulative rather than sudden and severe. The order is compulsory in relation to parents but not for a competent child who refuses to participate. The views of an older child are an important consideration when a decision is taken about making an order, but it cannot be said that opposition makes an order unlikely: it depends on the facts of the case and the nature of the risk and the assessment.
  2. Seen in this light, the circumstances of this case might be seen as a paradigm example of a case for which s.43 was intended. More than that, I would conclude that the evidence so clearly pointed to the making of a child assessment order that the judge’s contrary conclusion cannot stand. The outcome, by which the local authority was told to go away and think again after a process that had already hung over the family for a full year since the father’s release, fails to address obvious risks that now require careful assessment. The only remaining way in which the assessment can be made without the issuing of care proceedings is by means of a child assessment order. There is no purpose in remitting the decision, and I would therefore allow the appeal and make the child assessment order in the terms now helpfully drawn up by the parties.
  3. Finally, we would like to address the young people at centre of this case. We know that you will give the same serious attention to this order and the reasons for it that you showed when three of you, one now being an adult, attended the appeal hearing. Our order has only one purpose: to help to keep you safe. We know that the order is not what you wanted, but we believe that it is the very best way of resolving the present situation and of allowing you to get back to the things that you have been doing so well. Three of you have the right to say no, but we hope that you will allow the assessment to take place, as it will do for the youngest one of you, and that you will all do your best.

 

Interim care order – revision to the separation test

The Court of Appeal have decided a case called Re C (A Child: Interim Separation) 2020 and this adds an additional component to the test for separation, so all child protection lawyers, social workers and Guardians need to be aware of it.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2020/257.html

 

It builds upon another Court of Appeal case called Re C 2019 (I have not written about that one, because it was very difficult to ascertain whether it was intending to introduce new principles or was fact specific, this one is much clearer)

 

The test for interim separation (or continued separation) is now

“(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.

(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.

(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.

(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.

(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.”

For the purposes of his decision in this case, the judge summarised it this way:

“The test is whether the child’s safety is at risk and, if so, any removal should be proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation.”

 

The 5th point is the new addition – that the LA must be able to set out to the Court what available resources could be put in place which might remove the need for separation.

 

It doesn’t need to be in a full-blown alternative care plan like full Care Orders and Neath Port Talbot, but I have found a useful approach to be

 

Imagine that the Court don’t grant removal and the child stays with the parent – what would that look like?  (TM my friend Becca Carr-Hopkins).  What would be your ingredients of the protection plan or written agreement or contract of expectations.  Then, in relation to those, what resources could the LA reasonably put in place to assist with each of these?  Having done that, the social worker, the lawyers, and the Judge can consider – would those manage the risks that are present, in full or in part? Would the parents realistically be able to comply with those requirements?

 

So it becomes not only a useful piece of information for the Court, but an actively useful analytical and decision-making tool for the Local Authority.  It helps hone down on ‘do we really need separation, or could we manage this risk another way?’

 

 

Turns to dust – vaccinations and confusion

This is YET another judgment in the Cestui Cue Vie litigation, this time about vaccinations.  And it has made my head hurt.

http://www.bailii.org/ew/cases/EWHC/Fam/2020/220.html

 

T (A child), Re [2020] EWHC 220 (Fam) (07 February 2020)    

 

The previous law on vaccinations of children who are in care, where parents object, is  “Don’t do it under section 33 of the Children Act 1989, make an application and let the Court decide”

 

[Section 33 basically allows a Local Authority who hold an Interim Care Order or Care Order, to take actions that they think are necessary to safeguard or promote the welfare of the child. In effect a veto/overule to parental objection]

MacDonald J in Re SL (Permission to vaccinate) [2017] EWHC 125 (Fam):

 

 

33. In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order

 

 

Vaccination is a hot-button topic, though not QUITE as much as it is in America, but still something that some people hold very strong views on, particularly the MMR vaccine and the theory (well and truly debunked) that it causes autism or can cause autism.  Still, it is something that parents often feel very strongly about.

 

In this case, the LA made such an application

Hayden J says

 

I have no doubt at all that if the Local Authority had signalled its intention to have T vaccinated under the authority of s.33(3) CA, this would have led to an immediate application on behalf of the parents to invoke the inherent jurisdiction. Nonetheless, I, for my part, can see no reason why what are ultimately routine vaccinations should not fall within the scope of the interventions contemplated by s.33(3) CA. Indeed it strikes me as disproportionate to expect a Local Authority to be required to apply to a High Court Judge to initiate proceedings, the result of which has been in every reported case to authorise vaccination

and

I consider that this question of immunisation properly falls within the Local Authority’s remit, as prescribed by s.33(3) CA.

 

He considers the application anyway, because he identifies that if the LA had proposed to authorise vaccinations under s33, the parents would have made an application to block it under the inherent jurisdiction.

 

Why has this made my head hurt? Well, because we now have two High Court Judges, one who says ‘Oh, you HAVE to apply to Court, you can’t do it under s33’ and the second who says ‘you shouldn’t be bothering the Court with this, do it under s33’

 

So, if a parent in a case says  “I don’t want my child to have the MMR” and the child is subject to an ICO or a Care Order, what do you do?

 

I’m very grateful to Chris Barnes and David Burrows for helping me get this straight.  As best as I can tell, Hayden J’s decision that you should do it under s33 and NOT make an application binds Justices, District Judges, Circuit Judges. Court of Appeal or Supreme Court could overturn it.   And a High Court Judge should stick with Hayden J’s decision unless persuaded that a key binding or persuasive authority that should have been shown to Hayden J wasn’t.

If I had to guess at what would happen if the issue comes up before MacDonald J again, I imagine that he would agree that he is bound by Hayden J but without a deal of enthusiasm. I’d try to avoid it if possible.

(It is a bit like Referees and the FA Disciplinary Panel – if the Referee sees the scything tackle and gives a yellow card, the video panel can’t give a ban, but if the ref says he didn’t see it then the video panel can ban the naughty player.  Here, because Hayden J was taken to all of the relevant authorities, everyone else OUGHT to follow his decision. This arises from Colchester Estates v Carlton Industries 1984)

 

Where a decision at first instance has itself been considered by a second judge at first instance, I do not regard myself as free to depart from the second decision (unless persuaded that some binding or persuasive authority has been overlooked): Colchester Estates v Carlton Industries [1984] 2 All ER 601. 

 

From Futter v Futter and Others 2010   paragraph 3 https://www.bailii.org/ew/cases/EWHC/Ch/2010/449.html

 

So, the state of play is, vaccines are now authorised under s33, and the Court will only get involved if the parent makes an application under the inherent jurisdiction to prevent it.

 

Moving away from the big picture, I always find that a Hayden J judgment contains at least one masterful piece of prose, and this doesn’t disappoint.  Poor counsel for mum is faced with making an anti-vaxx argument based on research that has clearly not quite stood up to rigorous scrutiny.

  1. In his position statement, Mr Bailey, on behalf of M, particularises her views, in relation to her other children, in order to establish what he terms to be “the potential impact on T“:
      1. (i) X (22) was in pain for many years after receiving the Gardasil vaccination (HPV), and also led to her being hospitalised for a week. No diagnosis was ever made and still suffers pain today. She was also given 5 doses due to a nurse telling us it was perfectly fine to have extra doses. The recommended dose is 3.

(ii) After receiving vaccinations Y’s (11) development was delayed which has led to him having to receive growth hormone replacement. It was ruled out that his condition was genetic and to this day it remains a mystery as to why this has happened.

(iii) U (18), F’s son, was in good health growing up but now has a condition called Russell-Silver syndrome (SRS-a congenital condition). This was diagnosed when he was 8 years old;

(iv) V (16), F’s son, began fitting a week after having the first set of MMR vaccinations. He was subsequently diagnosed with West syndrome (severe epilepsy). V’s IRO has informed the parents that V no longer has this condition and no other diagnoses have been made. Currently, V is in a wheelchair, cannot walk, talk, or do anything for himself. He wears nappies 24/7 and self-harms by punching and biting himself. He is said to have a developmental age of a 6 month-old baby.

(v) Research (undisclosed for the purposes of this Position Statement) indicates that a. some vaccinations contain aborted human foetus matter and b. some vaccines contain other ingredients that the mother objects to.

(vi) If T is to have vaccinations then the mother would want these to be given separately as research (undisclosed for the purpose of this Position Statement) shows that multiple vaccines at the same time shock the system and some children go on to develop autism and other conditions. The mother believes that it is safer for T to be given vaccinations separately.

(vii) T is now 10 months old and is in very good health. Apart from a few colds (in foster care) he has not had any childhood illnesses in spite of not being vaccinated and has a strong immune system. Research (undisclosed for the purposes of this Position Statement) shows that babies and children who have a good healthy balanced diet with the correct nutrition build a healthy immune system and do not need to be injected with viruses and heavy metals.

(viii) The Local Authority once informed M than T had contracted measles, but to date this has never been confirmed. If this was in fact the case then M will say that this shows that T’s immune system naturally fought of the virus and his immune system is strong.”

  1. Very properly, Mr Bailey highlights, at (v) and (vi) above, that the research said to support these submissions is “undisclosed for the purposes of this position statement.” By this, Mr Bailey was signalling, I think, that he had not seen any such research. In any event, he did not produce any during the course of his oral submissions. Though attractively presented, the submissions are both tenuous and tendentious. They were supported by F, who read from a document which purported to say that some of the vaccinations contained “MRC-5, the genetic code of a human male.” I pressed F on this, as to what it actually meant, and, in particular, I asked him whether this was the point raised on behalf of M to the effect that some vaccinations contained “aborted human foetus.” He agreed that it was.

 

 

The representations continued, with mother’s counsel arguing that the LA had just taken a pro-vaccination stance generally, and had not applied thought to whether it was necessary in the case of this individual child

 

  1. Mr Bailey argued that the Local Authority had advanced its application by supporting the principle of immunisation generally. That approach would be misconceived. It was deprecated in Re SL (supra); in Re C and F (supra); and in LCC v A and Ors (Minors By Their Children’s Guardian) [2011] EWHC 4033 (Fam). Mr Bailey queried whether Dr Douglas had seen T’s medical records. Whilst the inference of his report was that he had seen the records, it was certainly not explicit. This led Mr Bailey to submit that Dr Douglas and, by implication, the Local Authority itself had not approached the issue with the necessary “individuation.” By this he meant that the merits and demerits of vaccination had been considered theoretically rather than with specific focus on this child.
  2. With respect to Mr Bailey, this point turns to dust in the face of the adoption medical report, which reveals Dr Douglas, in my judgement, to have a detailed and empathetic understanding of his patient. The report highlights:
      1. 2. Growth and development. T was born with moderately low birth weight (between 2 and 2.5kg) which is probably due to maternal smoking in early pregnancy. Low birth weight can be associated with poor growth and delayed development although he has shown good catch-up growth since birth and his development is within normal limits at present. However, his growth and development need ongoing monitoring and recognition of any problems such as decreased growth velocity, motor delay or speech and language delay should prompt early referral for assessment

 

 

I’m sure that there have been many occasions when I have been striving to make what I hoped was a good point, or at least a point, and the Judge could have retorted that my point has turned to dust.  (I can think of a hearing I did last year where Mr Braithwaite of counsel helpfully pointed out that I’d got something wrapped entirely round my neck, but in his usual charming way).  I hope that I never have to hear that being said in a judgment.

 

Is this the end of the Cestui Cue Vie case? Surely not.

 

 

 

 

I must confess I still believe

 

It is such a quintessential movie moment, the killer slinks into the confession box and breathlessly tells all to the priest on the other side who fumbles nervously at his rosary – he knows the truth, but can never tell…

This doesn’t come up very often in family law – insert your own withering remark about Catholic priests here if you wish. This, however, is a case that not only relates to it, but helpfully gives us a Victorian era criminal law authority for the legal sanctity of the confession box.

(It is also timely because I had to break off from House of Games last night for a short debate as to whether or not Reverends who appear on television HAVE to wear the dog collar even when they are on a game-show, so ecumenical matters are at the forefront of my mind this week)

 

Lancashire County Council v E & F [2020] EWHC 182 (Fam) (04 February 2020)
http://www.bailii.org/ew/cases/EWHC/Fam/2020/182.html

 

This arose from a case in which the mother spoke to the members of her Jehovah’s Witnesses Church about allegations that the father had sexually abused the children.  The Jehovah’s Witnesses Community also spoke with the father about these matters and it seems carried out their own investigation.

Within care proceedings, the Local Authority wished to see those notes.  The Jehovah’s Witnesses Community opposed that, and when a witness summons was issued sought to set it aside.  They were willing to provide the records relating to the conversations that they had had with the mother (who was consenting to the production) but not those with the father.

  1. Mr Achonu argues there is a duty of confidentiality by elders or Ministers of religion and they are unable to disclose information which has been communicated to them in the course of confidential “spiritual counselling” without the express consent of the individuals concerned. He says that that duty of confidentiality is protected by article 9 of the European Convention on Human Rights (ECHR). In the light of this argument he says that A and B are prepared to disclose information given to them by the Mother, because she has provided her consent, but not by the Father because he has not given consent. It is not at all clear how in practice this would work, given that much of the information sought relates to both of them. However, this issue is somewhat academic given the conclusions I have reached in this judgment.
  2. Mr Achonu argues that A and B are under a spiritual duty not to disclose confidential religious communications and that if such confidence is breached then individuals might no longer confide in their ministers.
  3. He relies by analogy on the approach in the Police and Criminal Evidence Act 1984 (PACE) Schedule 1, and the provisions therein, which protect confidential information, including that relating to spiritual counselling in s.12 (b), and a balancing exercise has to be undertaken under Schedule 1 of PACE when disclosure of such records is sought. He argues there is an analogy with the position in R v H 2019 1 WLR 3744 where the Court of Appeal refused to order the disclosure of discussions between an offender manager and an offender. The Court said that it would only order such confidential discussions to be disclosed if there was a very good reason, because it would be contrary to public policy to do so. I note that at [39] the boundaries of the confidentiality being asserted are expressly said to be “apart from child protection issues….“. Therefore this case is of no assistance to Mr Achonu on the facts of the present case.

 

Ouch.

  1. R v H at [53 states];
      1. Firstly, it would in our view be contrary to public policy to breach the confidentiality of discussions of the kind save for very good reason. Such discussions are not subject to privilege in the sense that something a defendant or appellant tells his lawyers would be; and the internal rules of Camden social services (or of any other local authority’s officers) are not binding in the courts; but we regard them as well drafted, sensible and worthy of respect. There is a distinction between disclosure necessary to avoid imminent future criminality (in particular a threat to someone’s life or safety) and the obtaining of admissions to past offences. It would be extremely unfortunate if convicted defendants (whether young or adult) were deterred from speaking to those charged with their supervision or rehabilitation until any appeal against conviction had been dealt with.
  2. Mr Achonu argues that the communications with A and B, and the documents sought under the witness summons, should be treated in the same way as a religious confession. He relies on R v Hay (1896) 2 F&F4, which is cited in Archbold at 12-21, as support for the proposition that; “the position of priest and penitent has not been authoritatively decided, but the tendency of judicial dicta is that, while in strict law the privilege does not exist, a minister of religion should not be required to give evidence as to a confession made to him.”

 

Well, if you don’t think we’re about to look at R v Hay and find out what it is all about, then you don’t know me very well.

 

In R v Hay, a priest was found to have a stolen watch, and had thus (unwittingly received stolen goods). The police wanted to know who had sold him the watch and the priest refused.  At a trial, the priest had to give evidence. He refused to answer questions as to who had sold him the watch.

The Judge said :-

I have already told you plainly I cannot enter into this question. All I can say is you are bound to answer. From whom did you receive that watch. On the ground I have stated to you, you are not asked to disclose anything that a penitent may have said to you in the confessional. That you are not asked to disclose; but you are asked to disclose from whom you received stolen property on the 25th of December last. Do you answer it or do you not?

When the priest continued to refuse to answer the Judge sent him to prison for contempt.

 

The decision of the Court was that whilst the priest could legitimately refuse to answer any question about what had or had not been said to him in the confessional, he could not extend that beyond it even if it were about a parishioner who came to confession. The watch had not been sold to him in the confession box, so the protection did not apply.

I’m afraid I can’t find a link to the judgment, but the Wikipedia page gives more detail for those who are interested.

https://en.wikipedia.org/wiki/R_v_Hay

 

It immediately seems to me that the church was on a sticky wicket trying to rely on R v Hay as authority for not disclosing the evidence, because the case is very specific that it applies only to evidence obtained in the confessional.

Mr Achonu argues that the duty of confidentiality is not limited to the confessional but can have a wider remit. He says that any information revealed during spiritual counselling is subject to the duty of confidentiality. It is not entirely clear to me what would be covered by spiritual counselling, but given that A and B are refusing to produce any information about what they knew or what investigations were made unless consent is given, it would appear to be being argued that all information relating to the alleged sexual abuse was related to spiritual counselling and thus confidential.

 

Hard to be sure when you can’t see the documents to see what was and wasn’t spiritual counselling, but it seems a thin argument. The thinness of the argument is emphasised when Canadian authorities are produced in aid. Unless Lancashire is suddenly transplanted to Quebec, it is going to be of limited value.

  1. Mr Achonu relies on a Canadian Supreme Court case R v Gruenke [1991] 3 RCS 263. The issue was whether the communications between the Defendant, who was accused of murder, and her pastor were protected by common law privilege or under the Canadian Bill of Rights. The approach of the Court was not to apply a strict approach to what was a confession, see [291], but to look at all the relevant circumstances and apply what is known in Canada as the Wigmore criteria. These are set out at p.284 as follows;
      1. 1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered.

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

  1. These criteria are very similar to the approach taken in article 9(1) and (2). The communications must fall within the said religious duty of confidentiality and if they do so any order to disclose must meet a proportionality test.

 

Given that the purpose of disclosure is to assist the Court in deciding what harm, if any, the children suffered and thereafter to make decisions about their welfare, it is hard to see proportionality coming to the aid of the Church here.

 

 

Conclusions

  1. There are a whole series of reasons, some overlapping, as to why the witness summons should be upheld and disclosure ordered and why I reject Mr Achonu’s submissions.
  2. Firstly, there is no evidence that the material sought through the witness summons was in any sense a confession or akin to a confession. It appears that the allegation of sexual abuse came to the elders’ attention because the Mother reported it, not because the Father confessed to the elders, or sought spiritual counselling. The elders then carried out some form of investigation and met with the Father, probably on more than one occasion. It is possible that at some point the Father “confessed”, but I have no evidence this was the case. In any event, the investigation cannot itself amount to a confession. Therefore, to the degree that there is a duty of confidentiality in relation to a confession, which I am prepared to assume on the basis of R v Hay, but not decide, it would not arise here.
  3. Secondly, the material that the Council seeks also does not, on the evidence, amount to “spiritual counselling”. There was an investigation into E’s allegations. The whole focus of Mr Achonu’s submissions on this point appears to me to be misconceived. To describe the material sought as being the product of spiritual counselling is to focus on the Father and concerns about his religious confidentiality, rather than on the child. The elders appear to have been neither carrying out an investigation into the child’s allegations and how she could be protected, nor providing spiritual counselling to the Father. Mr Achonu’s submission in my view provides a plain example of his clients, with or without the agreement of the Congregation more widely, putting the Father’s interests above those of the child.
  4. Thirdly, and in any event, the Congregation’s own policy, certainly that of 2013 and probably the 2018 version, indicate that where a conversation amounts to spiritual counselling but indicates that a child may be at risk of harm, then it “will be conveyed to the extent necessary to ensure that the policies and procedures herein expressed shall be properly followed so as to safeguard children.” In the 2018 policy at para 5, it says that the elders will be told to report the matter if the child is still at risk of abuse. It seems highly likely that E was still at risk of abuse up to July 2019, yet the elders did not report the allegations.
  5. The stance that Mr Achonu has taken in this case, namely that the material will only be disclosed when the individual consents, is not reflected in either of the policy documents and he could give me no support for that approach.
  6. There does appear to be a strong suspicion that the Congregation’s own published guidance, both 2013 and 2018 was not followed, not just by A and B, but also by more senior figures in the Congregation. From a child safeguarding viewpoint this is deeply troubling, not least because the policy documents are ones which seem to be produced for public consumption but not to be effective to protect children.
  7. To the degree it is argued that although there might have been a requirement under the policy to report the allegations earlier, that does not mean that the information should now be disclosed, I reject that suggestion. The information held by the Congregation has the potential to be highly relevant both for the future protection and wellbeing of E and F, but also of other children. The information is likely relevant to three key questions for the Court – whether the threshold findings of fact in respect of the Father are made out; whether the Mother failed to protect E; and what future risk the Father poses to E if she lives with her Mother. It is also potentially highly relevant to whether the Father poses a risk to other children. This is a situation which is concerned with future child protection, and not simply past criminality, it therefore falls on the other side of the line applying the approach in R v H at [53].
  8. Fourthly, Mr Achonu accepted that whether the duty of religious confidentiality is examined through the common law or article 9 it is not an absolute duty. This is clear from the caselaw, R v H, R v Hay and the words of article 9(2). Respect for A and B’s religious beliefs is given by article 9(1), but that is qualified by article 9(2) including in the interests of public safety, the protection of health and morals, and the protection of the rights and freedom of others. It could not be more obvious that a freedom to manifest ones religious beliefs must give way to the need to protect a child from sexual abuse. That balance is to some degree reflected in the two policy documents, but has not been reflected in A and B’s approach to this case. The evidence points inexorably to A and B having protected their and the Father’s religious beliefs at the expense of the protection of the child.
  9. Fifthly, it therefore follows that the witness summons and the requirement for full statements from A and B, together with the documents sought are a proportionate interference in A and B’s right to manifest their religion. The interference in their religious rights is in my view relatively slight, given the terms of the two policy documents and the fact that the information does not appear to have been given in a confession or in any real sense as spiritual counselling. The other side of the proportionality balance is that the need for the protection of E and F, as well as other children is a highly weighty if not overriding factor.