Monthly Archives: July 2013

Crunchy numbers

Posted on July 11, 2013 by suesspiciousminds

Bob Cratchit qualifies as a solicitor, and goes to work for Tim Tiny and Co. He specialises in care proceedings. He does nothing other than representing parents in care proceedings, that’s his speciality. He doesn’t do any advocacy, he just sees parents, goes through the papers with them, listens to their problems, gives them advice, and prepares any statements for them.

One idle day, Bob wonders about his long-term future in care proceedings. He didn’t come into care law to make lots of money, but he, like most people has bills to pay and wants to be able to have some fun after the bills are paid. He is also aware that his firm is a business and that at some level, the business will be interested in whether it is making money by employing him, or losing money. If what he brings in by way of income doesn’t pay his wages, they will let him go.

So, what Bob wants to know is – to cover his wages, how many care cases does he need to have going at any one time? He realises that off the top of his head, he has no idea. Is it four? Fourteen? Forty?  

Given that the case is a fixed fee, there must be a point at which for each case, he begins losing money for each additional hour he works on it. But where is that? After twenty hours? Sixty? A hundred?

[It may sound nasty and vulgar and ugly to look at things in this way, but given that Tim Tiny and Co is ultimately a business and not a charity, they would want to have some idea of whether the work Bob is doing ultimately covers his wages. If Tim Tiny and Co were in the business of selling doughnuts, they wouldn’t do very well unless they had an idea how many doughnuts they had to sell to break even, and how much they made per doughnut after covering their costs. And if firm after firm of Tim Tiny and Co’s end up having to let their Bobs go, who will be representing parents?

 

I’m not sure that any care lawyer has ever sat down to do these sums. You will see when you read this whole thing, that care lawyers aren’t sitting around on thrones made of gold, lighting Romeo y Julietta cigars with fifty pound notes. If they were any good with numbers, they’d be doing ancillary relief with Fiona Shackleton, charging £500 per hour – allegedly]

Five key numbers or assumptions, from which the rest of this is derived.

(1)   The fixed fee cost for representing a parent in care proceedings is £2907 (it is actually less than that in the Midlands and the North – £2256 and £2193 respectively) 

 

(2)   The duration of cases post the new PLO going live will be 26 weeks

 

(3)   In order for a solicitor as an individual real person to earn £100, they need to bill at least £300   (the rule of thumb being that of every pound billed, 33p is for the wages of the solicitor, 33p for the overheads and 34 p for the partners of the firm)

 

(4)   The minimum hourly wage in the UK is £6.19  

 

(5)   The notional hours per week worked by a person in England is 37, though a lot of people work more.   [For the odd situation of a fixed fee, working more hours is actually a BAD thing, since it makes the effective hourly rate go DOWN]

If you didn’t know, we moved a few years back from a system where a solicitor representing parents billed for their work for each hour they spent at about £65 per hour (up to a certain limit) and instead to a fixed fee system, where every case, regardless of how much time is spent on it, gets billed at the same amount.    [There’s a  complication to that where if you are able to show that you spent TWICE the number of hours on a particular case than the Government predicted the average case would take, you can try to claim an additional fee, but that is high risk and beyond the scope of this article]

Deep breath, maths time. Let’s start by chopping out the bit of the fixed fee which goes to overheads and partners. The bit that is in effect left for Bob is 1/3rd.  

That makes the bit of the fixed fee that covers Bob’s wages £969 per case.   [£2907 divided by 3. He won’t necessarily get all of this, what we are doing is working out whether the firm can afford to pay him £x, given that they use at most one third of his generated income to pay his wages]

[We can do this next bit really quite simply as a rough estimate – if Bob earns just under £1000 in wages per care case, he’s going to roughly need 10 care cases a year to earn £10,000, 25 to earn £25,000 and so on. ]

 

The minimum wage of £6.19 an hour, multiplied by 37 hours, multiplied for 52 weeks, works out at £11,910 per year. That’s 12 and a bit per year, if Bob works in London or the South of England, so it needs to be 13 cases [since you can’t take on ‘a bit’ of a case].

National average salary is £26,500, so Bob needs to run 28 care cases per year  – this goes up a LOT if he doesn’t work in London.

Where is Bob and what does Bob himself get per care case

Number of care cases to earn minimum wage

Number of care cases to earn national average salary

Weekly income for Bob per care case and

Notional hourly rate per care case (on 26 week cases)

Weekly income for Bob per care case and Notional hourly rate per case case (on 40 week cases)

“Break-even point?”

London/South (£969 per case)

13

28

£37.00

£1.00

£24.05

65p

70 or less

Midlands (£752 per case)

16

36

 

£28.86

78p

£18.87

51p

55 or less

North of England (£731 per case)

17

37

£28.12

76p

£18.28

49p

53 or less
           

Break-even point is based on Bob needing to generate income out of that fixed fee to cover his hourly pay (which on national average is £13.77 per hour). The more hours he spends on the case, the less profitable he will be, but if he goes OVER those hours in the column, the work he is doing will not actually be covering his wages.  [So, in the North of England, on a 26 week case, if a lawyer spends an average of more than 2 hours per week on each care case, they aren’t covering their wages]

The notional hourly rate, if you want to check it is   (amount for Bob per case / number of weeks the case will be running (26 or 40) / 37 hours per week).  Given that you don’t get paid per hour that you work on the case, the notional hourly rate is a way of looking at what, per hour, you effectively earn from HOLDING the case, given that the fixed fee can be averaged out over the hours the case is active in Bob’s caseload).

 

Bear in mind that the notional £1 per hour per case isn’t just earned  WHILST you are working on the case, but just whilst the case is going on, it is a way of smoothing out those days when you do 4 hours on the case and other days where you don’t need to touch it at all. 

 

 [Of course, the 10% cut proposed by the Ministry of Justice in their consultation means that Bob will be only be  earning 90p per hour for each care case he holds, AND the minimum wage is going up to £6.31, so from that point he will need to hold more care cases per year to get paid minimum wage. ]

So, to pay a specialist care lawyer (who doesn’t do advocacy)  the national average salary, they need to be opening 28 care cases per year. If they can’t open 28 care cases each and every year, then either they need to change their working model to start doing advocacy (which is billed separately to the fixed fee) or Bob will be ending up out of a job. That means, given how long proceedings last, in the new regime, you’d be wanting to have 14 or more in your cabinet at any one time.

(If you are in private practice, and you have not just rolled your swivel chair back to your filing cabinet to count whether you currently have more than fourteen care proceeding files, you have nerves of steel…)

 

That’s all a bit depressing. So here’s a positive way of looking at it, says Suesspiciousminds weakly, the 26 week PLO timetable will be making you nearly 50% more profitable per case per hour, and will be making the partners 50% more profitable per case per hour too.  You can say to your partner, “look, once the PLO comes in, every care case I have will be earning me 50% more per hour”      [£1.00 v 65 p in the South, 78p v 51p in the Midlands, 76p v 49p in the North].  How often do you get the chance to improve your hourly earning figures by 50%?

“Hey boss, I’m going to be 50% more profitable per hour on care cases after August, how about a raise?”

 (If you ARE planning to use that as an argument for a 50% pay-rise, I suggest that you don’t use the earlier part of this article or let the managing partner see it. Also, if you ARE working for the MOJ, don’t use this as a basis for cutting the fixed fees down by 35% of their current level)

If you are a specialist care lawyer, either start grabbing some private family work, or start doing advocacy, as otherwise you’ll be struggling to stay afloat, is my advice.

Quick ballpark figure, if Bob did all the advocacy as well, on a new PLO case being dealt with in the Magistrates Court, say 3 ½ day hearings, 2 advocates meetings  and a 3 day final hearing, that would mean  £2425 for the firm of which one third, or  £808.50  goes into the potential pot for Bob’s wages. Which is quite a chunk compared to what Bob would get for running the case or what the firm itself would get, and one can see why family solicitors are doing more and more of their own advocacy, since it nearly doubles the income per case for the firm.

 

Working all of this out for barristers is harder, since there isn’t the 1/3 Bob, 1/3rd overheads, 1/3rd Tim Tiny and Co rule of thumb, but the figures are all there to be calculated. It would be ludicrous to imagine that a barrister could run five day hearings in the County Court every working week of the year, so that’s the ludicrous notional highest GROSS earnings per year for solely publicly funded work £557 per day x 5 days=  £2800 in a week x 48 working weeks of the year.

 

 

If Bob specialises in representing children, the table is a bit different, since the figures depend on whether it is one child or more than one – don’t represent a baby in the North of England, unless you are doing quite a bit of the advocacy yourself…

Bob works in which area, representing how many children?

How much for Bob per care case?

Number of cases to earn minimum wage

Number of cases to earn national average

On 26 weeks, the weekly income per case, and the notional hourly rate

On 40 weeks, the weekly income per case and the notional hourly rate

Break even point

South (1 child) £745.67

16

36

£28.68

78p

£18.64

50p

54 hours or less

South (more than 1 child)

£1118.33

11

 

24

£43.01

£1.16

£27.96

76p

81 hours or less

Midlands (1 child)

£649.67

19

 

41

£24.99

67p

£16.24

44p

47 hours or less

Midlands (more than one child)

£974

13

28

£37.46

£1.01

£24.35

66p

71 hours or less

North (1 child)

£532.67

23

50

£20.49

55p

£13.32

36p

39 hours or less

North (more than one child)

£798.67

15

34

£30.72

83p

£19.97

54p

58 hours or less
           

And one final bit of cheery news. If you are representing a parent, you can console yourself when in the first two weeks of care proceedings you have to:-

See the client

Read the papers

Decide what, if any additional disclosure you need

Brief counsel for the contested ICO hearing

Decide whether you want an expert

Identify expert, ask them to complete the practice direction material

Make an application for the expert

Draft a letter of instruction for the expert

See the client again and prepare a statement

Get them to sign the statement

Brief counsel for the Case Management Hearing

That you will have, in doing so, earned £200 towards your cost target.

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“World’s smallest violin”

Posted on July 8, 2013 by suesspiciousminds

Am going to pose a question today, and then answer it later on in the week.

Once we move to care proceedings concluding in 26 weeks, with the new PLO, how many care cases would a lawyer doing NOTHING but care cases for parents, and not doing the advocacy on the cases themself, have to hold in a year, in order to make minimum wage?

What about if they wanted to earn the national average wage?

Is there a viable economic future for care lawyers who don’t do their own advocacy? How full does their filing cabinet have to be to make that work?

“these ladies aren’t starving to death. They make minimum wage. You know, I used to work minimum wage and when I did I wasn’t lucky enough to have a job the society deemed tipworthy.”   – Mr Pink

 

 

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Doc, Doc,Doc Doc Doctor Beat

Posted on July 7, 2013 by suesspiciousminds

 

When Judges disagree with doctors  – I’ve been interested in this for a little while now, and another case of this type has just flitted across my screen, so,

 

a quick run down of the recent reported cases where the Courts have, in considering an NAI case, gone against the medical evidence (or at least some of the medical evidence)  to find that the parent had not caused the injury.

 

This is very unscientific, I have just gone to a well known caselaw database and looked for family cases under the topic “medical”, so some cases will not have come up. I’ve just looked over the last 3 years.

 

[I am not, in case you doubt, arguing that the Court was wrong to do so in any individual case.  There’s a wealth of strong law about it being a matter for the Judge, not the doctor and the other factors to be taken into account, but I had in mind that it seems to be an increasing trend for Courts to go beyond the medical evidence and to decline to make findings based on the wider evidence, including often entertaining the hypothesis that today’s medical certainty may be tomorrow’s grey area and I wanted to look at that. Again, whether that is a good or bad thing depends on the individual facts of the case and your viewpoint. It is overall, of course, the job of Courts in finding of fact cases to get as close to possible as they can to the truth after a forensic exercise marshalling as much information as possible.

 

All of these cases may be worth a look if you are representing a parent in an NAI case where the medical evidence is not promising]

 

 

This is the most recent one

 

 Re A (A child) 2013   – child of a year old, two rib fractures. Mother said caused by a fall on him by an older sibling, all medical evidence was that this was highly unlikely. Evidence in the case of mother having a loving relationship with the child, Judge found that the injuries had not been deliberately caused, Court of Appeal upheld this.

 

Re R 2013  – 14 month old boy suffered burns from scalding water in a bath. Mother said he had been left alone for a brief period with no water in the bath and had turned the taps on himself.  Judge found that mother’s explanation was not right and that the boy had not turned the taps on, but the water had been there due to mum’s actions, though could not explain why she would have done this.  An interesting one, as Court of Appeal were split. One of the Court of Appeal judges felt that the trial Judge was right to have made the findings (Thorpe, the family judge), the other two felt he was plainly wrong, and the decision overturned.

 

Re ED and JD sub nom Devon County Council  – there was a comprehensive family medical history, including mother being a sufferer from Ehler-Danhloss syndrome   (I have heard it floated in almost every NAI case I’ve ever been in, but this is the first time I have read of anyone actually having it). There were nine rib fractures and subdural haemorrhages. The Court found that it would be surprising, given the evidence about the parents loving relationship with the children, if they had caused the injuries although it was possible, and concluded that  the LA had not proven the allegations of Non Accidental Injury

 

Re M (children) 2012     – I have blogged about this one before, it is the case where the child suffered what were described as ‘spectacular’ head injuries, to the point where the eminent experts involved could only pull up one point of comparison, being a man who had walked into moving helicopter rotor blades. The Court found that the head injuries, being inexplicable could not be said to have been caused by the parents, and thus that the rib fractures (where there was no medical doubt about them being NAI in causation) could not be safely said to have been caused by the parents.

 

 

Re M (A child) 2012  – 8 separate bruises on the arm of a child who was just weeks old. The medical opinion was NAI, the Court considered that the parents had also been dishonest in their evidence and made the findings. The Court of Appeal overturned this, considering that although the parents had not provided an explanation which the medical experts considered could be consistent with an accidental explanation, it would be a reversal of the burden of proof to then move to a conclusion that this meant the injury was non-accidental.

 

London Borough of Sutton v G 2012    – seven week old child collapsed, and had previously suffered burns. The Court had mixed medical evidence and accepted the conclusion of the experts who said that the collapse and injuries were due to an obstruction of airways rather than any non-accidental explanation and the parents were exonerated.

 

 

And on the flip-side, and this is the first one I have hit upon on this unscientific trawl of reported cases  – I know that there have been others, the other Ricket cases amongst them, so my trawl has been unscientific     

 

Re C (a Child) 2012 – where a Judge made findings, amidst competing medical evidence, that a mother had picked up her baby and shaken the baby in hospital following an admission for an earlier trauma. The Court of Appeal considered that the finding was ‘surprising’ but not plainly wrong.

 

 

Re A A 2012  – the Local Authority had not proved that a mother had killed two previous children, although did satisfy the Court that the threshold was met on chronic neglect. There was some medical evidence about a particular gene that the mother had which might have accounted for the death of the children.

 

Islington v Al Alas Wray 2012  – which you all know very well by now, the Court determining that the injuries were as a result of rickets brought about by Vitamin D deficiency.

 

 

Another one which made the findings despite contested medical evidence

 

Re L (Children) 2011   – the Judge made findings that the deaths of two children were due to deliberate actions by the mother, not to cardiac arrest, and although the medical evidence was mixed, the Court of Appeal upheld the decision. Where there was any uncertainty in the medical or scientific field a judge’s appraisal and confidence in the parent’s credibility was crucial to the outcome.

 

A County Council v Mother and Father 2011   (The Mostyn J case previously blogged about)   – the injuries were severe and peculiar, resulting in death to one child. The Judge was unhappy with both the medical explanations for the injuries and the parents account, and effectively found that neither were accurate but that the LA had thus not satisfied the burden of proof.   [Still not sure why that one didn’t get appealed]

 

Re LR (A Child) 2011  – cuts and burns to an 8 year old, the Court found that they were self-inflicted, despite medical evidence being doubtful that this was the case and that there had been no documented case of such injuries being self-inflicted by a child of this age, Court of Appeal upholding the decision of the initial judge.

 

Re R (A child) 2011  – Hedley J. [The ‘we are fearfully and wonderfully made’ case]

 

 Leg fracture to a seven month old child, following an admission aged 3 months to hospital for subdural haematomas. Judge heard the medical evidence that both were NAI, and determined that there might be an organic cause for the head injury that were not yet known to medical science. Hedley J then went on to say that notwithstanding the inherent unlikeliness of the leg fracture having been incurred accidentally, that is what he found to have happened.  [This is an interesting case to read, to see precisely how a Judge finds that something he considers inherently unlikely was on the balance of probabilities more likely than not to have happened…]

 

 

 

 

 

 

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Request for help

Posted on July 5, 2013 by suesspiciousminds

#Hello all,

Newfound spirit of PLO positivity.

As you know, the revised PLO is rushing at us all like a big happy ice-cream truck, an ice-cream truck that is fuelled by bubbles of fizzy lifting lemonade, and as part of that, LAs will need to be using the new special and beautiful Form C110a to issue their applications.

Now, I can only find this form in PDF format, which although is gorgeous and lovely and just peachy, doesn’t actually let you bloody type into it, and you know then save it, email it to other parties, and use it.  I am selfish like that, which is my fault, not the PLO. The PLO is perfect, the PLO is kind to badgers, the PLO helps the sun shine even more brightly.

If any of my readers happen to have the new form that we need to use for every new care application in the sort of format that allows people to make use of it, I’d be grateful for at least twenty minutes…

The PLO is good, the PLO is kind, the PLO is the moon over Mae West’s shoulder, the PLO is a Waldorf salad, the nimble tread of the feet of Fred Astaire, tower of Pisa, the smile on the Mona Lisa, and is certainly not in any way shape or form like rain on your wedding day, or a free ride when you’ve already paid.

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“All at sea”

Posted on July 4, 2013 by suesspiciousminds

 

An imaginary judgment, written in the fevered mind of Suesspicious Minds during a force 8 gale off the coast of Denmark.  (As ever, this is not legal advice, and I have no idea how such a case might develop in reality)

Before Mr Justice Snowater

Before I embark upon my judgment in this unusual and vexing case, I will take a brief detour  – by way of even a preliminary detour I will let you know that “tangent” is my middle name and I say this not by way of boast or hyperbolae but that it is literally true, and I pause for a moment to show the usher my driving licence, and you may take his nod as assurance, for he is a more honest man than even I.

 

Long ago, many scholars and intellectuals were fascinated by the notion that there was a pure language, beyond that of English, French or Flemish, which was the language of God and the Angels, called Enochian. They pondered as to whether a child, unburdened by our own clumsy imitations of this beautiful and radiant language, might naturally speak the language of Angels.

 

This thought experiment was carried out by King James IV of Scotland, who placed two twin babies on the Scottish island of Inchkieth, with a mute housekeeper to tend to their needs, to be visited years later to see what language they spoke. It is reported (perhaps not reliably) that they spoke pure Hebrew.

 

It is alleged by the applicant in this case, the maternal grandmother of the child, a Mrs Wasteland, that the child’s parents have embarked upon an experiment with their own child, not to deprive the child of language but to deprive the child of dry land and that the State should intervene to prevent it.

 

Mr and Mrs Pugwash were residents of England, until such time as they won a considerable sum on the lottery. At that stage, they began banking in Monaco, for reasons which would not be considered inexplicable. They also purchased themselves a luxury yacht and began sailing around the world. They developed a firm feeling amongst themselves that in effect a sailor’s life was for them, hoping perhaps that the mermaids who sang each to each might one day sing to them. They  therefore determined to try to live as much as humanly possible at sea. 

 

Having both considerable means, and staff who could come ashore and shop for them, they found that this was an achievable, rather than a merely fanciful ambition.

 

Bathed as they were both in happiness and the sunsets of the Azores, it is only natural that they became increasingly close, and a baby was conceived in the usual manner.

 

Midwives were brought on board the yacht, and the couple were delivered of a son, J Alfred.

 

That son J is now four years old and has never set foot upon dry land, having spent his entire life on board the yacht, or swimming just nearby.

Mrs Wasteland, his maternal grandmother, has sought to have contact with J, but the parents have declined to come ashore to allow this. She says that they are thwarting her relationship with J and subjecting him to emotional harm by not allowing him to live on land, or even to have a temporary visit on land. They in turn say that Mrs Wasteland is welcome to come aboard the yacht (for short periods) to visit J. She has declined, being a lady who suffers profoundly from sea-sickness.

 

Representing the grandmother, Mr Raymond Luxury QC, set out admirably the concerns that she holds about the unusual lifestyle for a boy being raised entirely at sea, and invites the Court to make a section 37 direction, compelling the responsible local authority to prepare a report setting out whether J is being harmed in any way and whether public law proceedings should be issued. He invites the Court to make some preliminary findings in relation to significant harm.

 

Mr Luxury says, inter alia

 

(i)            There will be consequences in socialisation, education and physical fitness

 

(ii)          The unknown health implications of spending ones entire childhood at sea , impact on sleep patterns, balance, inner ear development and what he describes loosely as ‘seafarers fatigue’  http://occmed.oxfordjournals.org/content/58/3/198.full      He accepts that the risk of scurvy is fairly low, given the parents wealth and resources

 

(iii)         The unknown psychological effects, such as lack of space, monotony, living in close proximity to others http://pvs.kcc.hawaii.edu/ike/canoe_living/effects.html

 

(iv)         The risk of mal de debarquement    (which candidly, I suspect Mr Luxury QC snuck into his submissions purely to pique my interest, but is a form of long-term illness with the effects that one encounters in the days following leaving a cruise, long airflight or other sustained motion event, but that do not subside)

 

(v)          The inevitable adjustment that J would have to make to a life ashore in adulthood, which may impair his opportunities in life.

 

In broad terms on threshold, Mr Mangrove for the parents, says, with some merit, that if growing up on your millionaire parents luxury yacht is deprivation and neglect, our court rooms are going to be very busy indeed.

 

For the parents part however, the substantial case is one of jurisdiction.

 

Mr Mangrove, representing them, says that before any issues of significant harm can properly be dissected, there are issues of jurisdiction to consider.

 

These are the broad facts :-

 

  1. The parents reside entirely on their yacht, as does J.
  2. The parents have a firm intention to continue to do so.
  3. They have no intention to reside in any town, village or hamlet of the British Isles.
  4. The yacht moves around frequently, it is around Britain for just under three months of the year. The Captain’s log makes that clear.
  5. On the occasions when the yacht is moored in England, it does so in different ports or harbours and has not, during the entireity of J’s life, been moored in the same Local Authority area for longer than one consecutive night.

 

Mr Mangrove therefore pleads :-

 

1. Using the guidance in Shah   [Barnet LBC v Shah 1983 2 AC 309]  ordinary residence refers to a person’s “abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration”.

 

2. The ordinary residence of a child is that of his parents In Re: J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, 579:

“… where a child of J.’s age [about 3 years old] is in the sole lawful custody of her mother, his situation with regard to habitual residence will necessarily be the same as hers.”

3.    These parents have no settled intention to live in England, and do not do so. Even the dreaded taxman has accepted that the parents do not live in England.

4.    It is accepted by Mr Mangrove that were the parents to be living in their yacht, moored more or less permanently in one location, they would be rightly said to be ordinarily resident there pace John Reeves v Randy Northrop [2013] EWCA Civ 362  [which, going off at yet another tangent, is a beautiful judgment ending very poetically  http://www.bailii.org/ew/cases/EWCA/Civ/2013/362.html  ]

5.    Mr Mangrove thus says, with considerable force, that if J does not live in England or Wales, and I must be driven to that conclusion on the evidence, then the Children Act 1989 has as much application to him as it does a child living in Swaziland, and thus the application for a section 8 contact order, and the request for a section 37 direction, and the proceedings themselves, should be dismissed.

 

I sought further clarification on this point.

It arises from section 2 of the Family Law Act 1986

The English Court has jurisdiction under the Children Act 1989 in respect of a child IF 

 

(a)  Brussels II applies

(b)  If on the ‘relevant date’  (when the application was made) the child was habitually resident in England and Wales OR has no habitual residence in England or Wales BUT was present in England or Wales

 

From the ships log, I ascertain that on the date when Mrs Wasteland made her application, the yacht was in Helsinki, which unless Mr Raymond Luxury QC has the benefit of some very old (but still standing) treaties following wars which makes Helsinki a territory of the UK, is not in England or Wales.

Although Mr Pugwash has reluctantly come ashore to deal with these matters, the yacht itself and J, are not in English waters at present.

Brussels II makes it plain that the presence of the child must not be in any way temporary or intermittent  {Re A (Area of Freedom Security and Justice 2009 2 FLR 1}   and if I had been in any doubt, that would have settled the matter.

Given that Brussels II deals with habitual residence in the member state or presence in the member state, and I find that on the facts of this case, J Alfred Pugwash was neither, it must therefore be the case that I have no jurisdiction to make a section 8 order, or a section 37 direction, or to continue hearing this case, as delightful as it would be to maintain a hold on it.

 

By way of consolation, with this judgment, I am handing to Mr Raymond Luxury QC two items to be passed to his client. The first is a sachet of Dramamine, which I understood is very good for sea-sickness. The second is a copy of Italo Calvino’s novella, The Baron in the Trees, a particular favourite of mine, involving a tenacious young lad, Cosimo, who vows to live his entire life in trees and to never set foot upon the ground again. As I recall, it worked out rather pleasantly for all concerned.

 

To the parents, and to young J, I bid them good luck on their voyages, and that they continue to dare to disturb the universe.

 

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You be frank, I’ll be earnest

Posted on July 3, 2013 by suesspiciousminds

 

Another judgment from Mr Justice Baker, who I’m becoming increasingly fond of (although I think his decision about termination of parental responsibility probably will get overturned by the Court of Appeal).

This is Re L and M (Children) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1569.html

 

It is, sadly, not a terribly unusual case – unusual in society in general but not in the field I practice in. There were multiple and serious injuries to the child, and the medical opinion as to how these had been caused was at variance with how the parents said the injuries had been caused. The Judge carefully considered all of the evidence, and the judgment is a perfect analysis of the caselaw and the competing factors that the Judge has to consider, not least of course the well-known quotation from Dame Butler-Sloss   “The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.” 

 

The findings against the parents, including that they had not been honest in their account, were made by the Judge. So far, so commonplace, but there are two features in the case which lift it, and make it worthy of discussion.

 

Firstly, the judicial approach towards the instruction of experts in the case.  (It will not surprise you to learn that I completely agree with the Judge here, and commend him for saying these things. I have grave doubts that a case like Al Alas Wray would reach the same outcome, were we to try it again next year, because getting to the truth required the Court to be amenable to the instruction of multiple experts and no doubt delays were incurred in getting to the truth, which was that the parents were not responsible for the dreadful injuries and that there was a medical cause, allowing them to be reunited with a child rather than that child being adopted. It is simply, but ghastly, to imagine, how that case would have developed if the Court had simply heard evidence from the (very eminent) treating medical professionals.

We don’t hear, for my mind, enough about Al Alas Wray. We have set off upon a path, in family justice, of child rescue dominating over family preservation, no doubt in part due to the rightful sense that what happened to Baby P should never happen again. But what happened to the Al Alas Wray family ought not to happen to other families, and what could have been far worse (that their child was wrongly permanently separated from them) is equally something to be avoided if at all possible.  It worries me deeply that such cases might slip by us in the future.

    1. At this point, before turning to the parents’ evidence, I mention some points of wider importance that emerged from the medical evidence in this case.

 

    1. As mentioned above, no MRI was carried out on M in August 2011. Dr. Stoodley reminded the court of the recommendation of the Royal College of Radiologists and the Royal College of Paediatrics and Child Health (“Standards for Radiological Investigations of Suspected Non-accidental Injury”, March 2008) that an MRI scan should be performed if an initial CT scan of a child is abnormal (para 15.3). He informed the court that there have been a number of recent cases in which such MRI has not been performed in these circumstances. Plainly from a forensic point of view, the absence of an MRI contemporaneous to the other imaging is a lacuna in the evidence. All the experts in this case agreed that an MRI should have been carried out at the time. I recognise, of course, that there may be clinical reasons why the treating physicians choose not to carry out imaging. I also note Mr. Richards’ observation that resources for MR imaging are scarce. I share Dr. Stoodley’s view, however, that “whilst the lack of an MRI scan at the time of M’s acute admission will not have affected her clinical care, an opportunity was potentially lost to gain useful forensic information”. It may therefore be appropriate for the professional bodies to review this issue to establish the extent to which the Royal Colleges’ recommendations are being followed

 

    1. There is, in addition, a more fundamental point of general importance. This case demonstrates yet again the invaluable role played by medical experts in cases of alleged non-accidental injury. There is rightly a renewed scrutiny on the use of experts in family proceedings, and some potent arguments have been advanced against what is perceived as the misuse and overuse of experts. In response, the Family Procedure Rules have been amended so as to impose more stringent regulation of the instruction of experts. Henceforth, under the amended rule 25.1, “expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”.

 

    1. In difficult cases of non-accidental injury, it will continue to be the case that expert evidence from a variety of disciplines will be necessary to assist the court to resolve the proceedings. In the recent case of Devon CC v EB and others cited above, I observed at para 156

 

“Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings.”

    1. This case provides a further example. The medical picture presented to Judge Marshall created what she thought, and Munby LJ in the CA agreed, was a conundrum. In directing a retrial, Munby LJ, whilst leaving the scope of the retrial to be decided by the judge conducting it, suggested that there should include a more exhaustive search of the literature. The instruction of Dr. Stoodley, a further search of the literature by the experts, and the process of the retrial in which the experts have each made an important contribution, have enabled this court to resolve the conundrum.

 

    1. Court-appointed experts play a vital role in difficult cases of non-accidental injury. As this case demonstrates, it will ordinarily not be sufficient to rely on the opinion of the treating physicians in this type of case. In respect of M’s rib fractures, the court-appointed experts provided insights that would not otherwise have been available to the court. The radiologists who initially reported on the X-rays, but who were not called to give evidence in the hearing, identified evidence further possible ten rib fractures. Neither Dr. Chapman nor Dr. Halliday identified any fractures at these points, and the local authority has not pursued this issue. As Mr. Kirk pointed out in closing submissions, the consequence is that this case looks somewhat different from how it appeared initially to the treating physicians. Had the case been presented purely on the basis of their interpretations, the focus of the court would have been significantly different. In respect of the skull fractures, as both Dr. Stoodley and Mr. Richards recognised, it is possible that in the past lucencies that had been routinely but wrongly diagnosed as fractures in spite of the fact that it was recognised that fissures and other abnormalities existed. Both experts had been involved in a case in which they had diagnosed a fracture but a bone pathologist had identified a traumatised suture. As Mr. Richards said in evidence, “we are beginning to get pathological evidence coming out to make us re-think our thoughts about fissures and fractures in the same way [as] a few years ago we got more evidence about birth causing subdural haemorrhages.” This is another example of how medical opinion about non-accidental head injury is continuing to evolve.

 

  1. This case provides further illustration of the important role of court-instructed experts in these difficult cases where the medical evidence is unusual and therefore outwith the experience of many hospital doctors. In the circumstances, it goes without saying that it is vital that experts of sufficient calibre and experience should continue to be available where the court considers their instruction necessary to resolve the proceedings. In the course of this trial, I have been informed that a number of doctors commonly instructed in these difficult cases are not at present accepting instructions. Any impediment to the instruction of experts in these difficult cases will make it much harder for the court to achieve a just and timely outcome for the child.

 

And secondly, as this was just a finding of fact hearing, there would then be a phase two, where assessments took place as to the future risk of harm that the parents might pose. The Judge reinforced this :

 

    1. I make these findings only after prolonged thought and with regret and reluctance. I know these parents have endured a great deal of hardship over the past few years, in particular the tragic loss of C and now these protracted proceedings leading to these findings. I accept that in many other ways the mother and father have been good parents to L and M. I accept that they are devoted to their children. I accept that they are desperate to care for them again.

 

  1. All children should wherever possible be brought up by their parents. That is as true of L and M as of any other children. I do not regard these findings as the end of the story. All the professionals in the case – the social workers, the guardian and the court – must do what we can to see if L and M can be safely returned to their parents. But the primary responsibility now lies with the parents themselves. I urge them, even at this late stage, to be more frank with the court so that we can all understand what happened to M and work together to ensure that she and her brother are safe in the future.

Nothing terribly new or controversial there, but a warning between the lines about how such cases will be dealt with in our brave new world.

The President has indicated that cases involving non-accidental injuries will only go beyond the 26 week limit in exceptional cases, and the mere fact of a finding of fact hearing being required won’t be sufficient to warrant a delay. Well, that’s all well and good, but what it will mean in practice is that where now, these parents would have something like a 10-14 week period to reflect on the judicial findings, perhaps accept them, perhaps partially move towards them, perhaps put some practical or therapeutic arrangements in place, they will from autumn of this year, probably get a 2-3 week period to do so.  The consequence of findings in a case like this, might be that a mother and father need to separate from one another, and it seems to me inhumane to expect them to make decisions of such gravity so quickly. Additionally, that assessment of future risk would probably have been undertaken by an independent expert, whereas from autumn of this year, it almost certainly will be undertaken by the social worker, who just 2-3 weeks earlier was effectively prosecuting those findings. It isn’t much time to turn around the parents views, and still less for the parents to be able to turn around the view of the social worker.

 

We shall see. The revised PLO is nearly upon us, and it will be happening, so all that we in the system can do is to try our best to make it work fairly for all involved. I’ll try to stop carping from the sidelines and try to come up with positive solutions as to how we make this system work fairly, but my fundamental thought is that it WILL require WORK to make it fair and that approaching the new regime as “like the old one but faster” won’t be sufficient, people in the system will have to be more alive to the need for us to get decisions that are not only swift but RIGHT.

 

 

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