Monthly Archives: March 2014

Terminating parental responsibility – the appeal

Posted on March 28, 2014 by suesspiciousminds

Re D (A Child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/315.html

In this case, the Court of Appeal were hearing father’s appeal against Baker J’s decision to use the power in s4(2A) of the Children Act 1989 that a father’s parental responsibility can be removed from him by order of the Court.

John Bolch over at Family Lore has done a good piece on this.

http://www.familylore.co.uk/2014/03/d-child-fathers-appeal-against-order.html

The legal power is

4(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.

The father in this case was not the most edifying man. He is serving a prison sentence for sexual offences against women. The mother, having ended that relationship wanted nothing to do with him, but from prison the father was making applications for contact with their child.

There are two big arguments in this case (a) If that s4(2A) power exists, then there must be circumstances in which the Court can use that power, and why not in a case like this? OR (b) the power in the Act is draconian AND discriminatory, since it presently allows for a mother to ask the Court to discharge father’s PR for bad behaviour, but a father can never do the same against the mother.

[It is for the latter reason that I find myself on father’s side as a matter of law, although my sympathies in this case all lie with the mother]

The problem for dad’s team was that the nub of that argument, that s4(2A) is discriminatory to men has already been shot down by the European Court of Human Rights

The question of the differential treatment of married and unmarried fathers by the statutory scheme is not before this court for consideration. Neither mothers nor married fathers can have their parental responsibility removed. That was the issue in Smallwood v UK (29779/96) (1999) 27 EHRR CD 155, an admissibility decision of the Commission in which it was held that the difference in treatment between mothers, married and unmarried fathers in the context of the jurisdiction of the court to make an order which removes an unmarried father’s parental responsibility is not a violation of article 8 ECHR [the Convention] taken in conjunction with article 14. On that basis the father in this case was refused permission to appeal on the question of whether the differential treatment was proportionate and whether section 4(2A) CA 1989 was incompatible with the rights set out in articles 8 and 14 of the Convention.

Damn. So dad’s team had to take a different tack

The grounds of appeal upon which permission was granted are that:

i) the judge failed to distinguish Re P to have regard to the principles set out in the Human Rights Act 1998 [HRA 1998], the ACA 2002 and the changing social norms over the 18 years since Re P;

ii) the judge failed to consider whether the mother had discharged the burden of proof so as to establish the allegation that the father was “a sexual recidivist”; and

iii) the judge failed to make a proportionate order or take into account the asserted policy consideration that applications of this kind should not be allowed to become “a weapon in the hands of a dissatisfied mother”.

[i.e that “there might be some cases in which it is proportionate and necessary to terminate father’s PR but (a) they should be very very rare and (b) this isn’t it”]

Having had to fight, as a result of Smallwood v UK, with one hand tied behind their back, it is not surprising that dad’s team did not succeed.

On the final point, the ‘this could open the floodgates’ one, the Court of Appeal archly point out that two such orders in 25 years doesn’t suggest that the family Courts are about to be besieged by s4(2A) applications.

The burden of proof thing is an unusual and intricate argument – in effect it is that the burden of proof falls on the person making the allegation (they have to prove it, the subject of the allegations doesn’t have to disprove it – a concept that seems entirely lost in LASPO…).

These are the facts that Baker J found, having heard all of the evidence (the important thing here is that some of these findings were his own conclusion rather than mum making allegations and the Court finding them proven)

The second ground of appeal relates to the judge’s findings of fact and the value judgments he came to upon which he based his ultimate conclusion. So far as the former is concerned this court would have to be satisfied that the judge was plainly wrong in the factual determinations to which he came, that is that there is no objective basis for the same on the evidence that he heard and read, otherwise they will be immune from review. The judge had the benefit “of reading and hearing all of the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days …” (Re B above at [205]). This court will be very hesitant indeed to interfere in that process.

It is plain from the transcript that Baker J carefully considered the factual and opinion evidence in coming to his conclusions. It cannot be said that he was wrong to reject the expert evidence that he heard from the jointly instructed psychologist having found that his evidence was naive, complacent, unreliable and at times misleading. He made the following findings about the father:

i) the nature and extent of the facts associated with the father’s criminal convictions included penetrative sexual abuse, inciting a child to engage in penetrative sexual activity, engaging in sexual acts with a child, causing or inciting a child to engage in sexual activity and three sexual assaults;

ii) he had vacillated over the years between accepting the truth of those facts and asserting his innocence and was presently again asserting that he had been wrongly convicted;

iii) his account of what he called a false confession was wholly unconvincing with the consequence that he had not satisfied the burden under section 11(2) of the Civil Evidence Act 1968 of proving that he had not committed the offences for which he was convicted;

iv) his persistent denials of the validity of the convictions meant that he had repeatedly lied to professionals and to the court (and by implication to his family including his son as that was the factual basis upon which he presented himself to the court);

v) he had lied when he denied giving a previous account to the respondent when he told her that he had been abused in the past by his brother;

vi) having regard to the Lucas direction which the judge gave himself, the father’s lies called into question his reliability as a witness (see R v Lucas [1981] QB 720).

On the facts that he found, the judge was entitled to conclude (at [51]) that:

“as he continues to deny his culpability for the devastating acts of abuse he perpetrated on the family, I think it highly unlikely that he appreciates the damage he has caused to every member of the family, or the danger of further damage should he have any further involvement with the family”

In this case, it was Baker J who made the finding that father was a sexual recidivist, and the argument was thus that mum (who benefited from the finding) hadn’t had the burden of proof in establishing it. It would be fair to say that the Court of Appeal didn’t care for that submission.

It is superficial to say that in this case D’s father has not inflicted harm directly on his child and that therein lies a distinction with Re P which ought to have led to a different conclusion. D’s father inflicted devastating emotional harm on the whole family including D which he continues to deny. It is difficult to see how in that circumstance and in the absence of any other positive factors, the father can be said to be capable of exercising ‘with responsibility’ his parental rights, duties, powers, responsibilities and authority.

It is likewise wrong to say that the mother has failed to satisfy the burden of proof of facts relating to father’s alleged sexual recidivism. That is a submission that is becoming ever more prevalent in this court with the advent of parties who are not represented at first instance and who can be excused for not understanding the significance of either the burden or standard of proof. So the submission goes, if a party who has the benefit of a finding from the court has not been put to the obligation of proving it, what the court has done is to subtly reverse the burden of proof. I make it clear this is a distinct submission from one which calls into question whether someone has not had the benefit of procedural protections to which they are entitled.

Provided that procedural protections are identified and used by the court, the process of fact finding in family proceedings is quasi-inquisitorial. The welfare of a child may sometimes require a judge to make decisions about facts and/or value judgments that are not asked for by either party. A judge cannot shrink from doing so. That is his function. He must identify such questions and where necessary decide them. Although identified in relation to a different supervisory jurisdiction, the quasi-inquisitorial process to which I have referred was considered and approved in its use by the family courts in public law children proceedings and must as a matter of good practice be available to the same inquiry in private law children proceedings: In the Matter of W (A Child) [2013] EWCA Civ 1227 at [36]:

“Although it is conventional to speak of facts having to be proved on the balance of probabilities by the party who makes the allegation, proceedings under the 1989 Act are quasi-inquisitorial (quasi-inquisitorial in the classic sense that the court does not issue the process of its own motion). The judge has to decide whether sufficient facts exist to satisfy the threshold (the jurisdictional facts) whether or not the local authority or any other party agree. Furthermore, the basis upon which the threshold is satisfied is a matter for the judge, not the parties. To that end, if the judge directs that an issue be settled for determination, then absent an appeal, the issue will be tried whatever any party may think about that. As Pitchford LJ said in R (CJ) v Cardiff City Council [2012] 2 All ER:

[21] … The nature of the court’s enquiry under the 1989 Act was inquisitorial. To speak in terms of a burden of establishing precedent or jurisdictional fact was inappropriate.

[22] … I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong reason for departure from the common law rule which applies a burden to one or other of the parties … The court in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability.”

Interesting – the suggestion there is that if mum had alleged that father was a sexual recidivist, the burden of proof would be on her, but where as here, the Judge makes the finding of his own motion arising from the evidence heard, there is no burden of proof – it is just the STANDARD of proof that we are concerned with. Was it more likely than not to be the case, and the Court of Appeal saw no reason to deviate from this. [It is such a narrow technical point that I don’t see it coming up very often, but the Court of Appeal have slammed that door shut]

Of course, the sort of circumstances (Father injured a child, father is a sexual offender) found here in the two cases where PR was removed don’t come up all that often in private law, but they are rather more common in care proceedings – where of course the mother is represented, will have the powers of s4(2A) explained to her and might be under pressure from professionals to distance herself from father. Might we see that more often in care proceedings?

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Posted in case law, private law and tagged burden of proof, Court of Appeal, father losing parental responsibility, parental responsibility, re d a child 2014, terminating parental responsibility. Bookmark the permalink.

Go to Court on an egg

Posted on March 27, 2014 by suesspiciousminds

[with apologies to Tony Hancock and Fay Weldon for twisting their slogan]
Even by HFEA case standards, this one takes some following. Although as we know from the High Court we are all expected to be experts in the HFEA now.

It is Re G (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/336.html

Helpfully, even from the outset, we learn that although the case is called Re G, the children are referred to as “D” and “the twins” – nobody ever gets called “G” at any point.

We have a single-sex couple, A and R. They wanted to have some children. A donated her eggs, which were fertilised by an anonymous donor, and implanted into R, who gave birth in the usual way. Those children were the twins.

There were some fertilised embryos left over from the process, and A later used one of those to have her own pregnancy – that produced child D. [Quite a few years later]

Now, biologically, D and the twins have the same biological mother A, the same (anonymous) biological father and are full siblings.

However, legally, the mother of D is A. The legal mother of the twins is R.

Even though A and R were raising the children together, until they separated, the children (who were full biological siblings) had different legal mothers – A was the legal mother of D and had no legal status in relation to the twins, and R was the legal mother of the twins and had no legal status in relation to D. And although the twins and D were biological siblings, in law they were only half-siblings.

[This is reminding me of the beginning of SOAP, where the voiceover says “Confused? You will be” ]

All of this probably worked out okay, until A and R separated (they don’t even agree when they separated – R says they separated in 2008 but lived together as friends until 2012, A says they were in a relationship until 2012 and then separated)

It is to their credit, as the Court of Appeal observed, that when they came before Her Honour Judge Black, they had managed to resolve where the children would live, contact arrangements and were left with one single issue.

Should there be a joint residence order in relation to the twins, this being the only way that A, their biological mother, would have parental responsibility in relation to them.

Her Honour Judge Black considered that carefully, and it is fair to say that the case law provided very little in the way of guidance to resolve a difficult issue. She eventually refused the order, hence A appealing to the Court of Appeal.

[I have to say, I would have pragmatically have made the order, but made it plain that the twins primary home was with R, and it was an order made to achieve the legal status that A warranted as their biological mother]

18. She began her judgment by explaining that she thought it appropriate that the order made by the court should recognise that only one of the parties was the twins’ mother and therefore she should have sole parental responsibility for them. In contrast, she remarked that the appellant is not a parent of the children and that her status should not be elevated in that way (§4). She considered that the contact arrangement, coupled with the agreement to provide information about education and medical issues and for a limited delegation of parental responsibility was sufficient to recognise the importance of the appellant’s involvement in the children’s lives (§9).
19. The judge thought it of significance that in relation to D, the parties had not taken advantage of the provisions of the Human Fertilisation and Embryology Act 2008 which would have enabled them both to be parents of D. From this, she inferred that there had not been an intention to bring D up as joint parents and, I think, drew the further inference that the same was true of their intentions in relation to the twins. This led to her saying that “there is no question at any point of [the respondent] sharing parental responsibility of [the appellant’s] child with her and, therefore, it would seem on that basis alone, to be wrong that she should expect to share responsibility for [the respondent’s] children” (§8).
20. A theme of the argument on behalf of the appellant was that without a shared residence order, she would be marginalised by the respondent. The judge said that she did not see from reading the parties’ statements that there had been inappropriate marginalisation of the appellant and she considered that the respondent had shown that she recognised the importance that the appellant has in relation to the children by her agreement in relation to contact and the provision of information.
21. In contrast, the judge said that she was concerned about how the appellant “may operate her parental responsibility if she were given it” (§5) and in fixing on a sole residence order as appropriate, she referred to “the risks which may be involved in [the appellant] sharing parental responsibility” (§9).The source of her concern appears to have been particularly the threat to take matters to the press, although I think I interpret her correctly (§5 of the judgment) as saying that it had not been suggested in submissions that this continued to be a problem. It seems she may also have been taking into account what she described as “a sad history to how things have developed over certainly the course of this year and last year”.

The Court of Appeal were aided in their decision-making by some recent authorities, and some lovely cut-and-thrust from the two counsel representing A and R (A is the applicant, R the Respondent)

23. Ms Campbell, who appeared on behalf of the appellant, argued that the judge had failed to give weight to some important features of the case, including that the appellant was the biological mother of the twins, that she had cared for them for four and a half years, and that she would be taking a parenting role in respect of them for the rest of their lives.
24. Ms Foulkes for the respondent argued that these matters were known to the judge but she was entitled to give weight to the fact that the respondent is, as she put it, drawing on the speech of Baroness Hale in In re G (Children)(Residence: Same-sex Partner) [2006] UKHL 43 [2006] 1 WLR 2305, “their gestational parent, their legal parent and their social and psychological parent”.
25. Ms Campbell argued that the judge had set too much store by the fact that, by virtue of the Human Fertilisation and Embryology Act 1990, the respondent was “the mother” and therefore overlooked the fact that the appellant was a “parent”. She submitted that the twins have regarded the appellant as their parent all their lives and, during the extensive contact that there will be in future, she would continue to take that role. She submitted that they would naturally expect her to be as involved in matters such as schooling as the respondent and, without parental responsibility, she would not be able to be.
26. Ms Foulkes responded that the law deliberately distinguishes between the genetic mother and the gestational mother. It is of note, she said, that it is the gestational mother who has automatic parental responsibility. The mere fact of genetic parentage is not sufficient, she said, to justify a shared residence order, and even if the judge did find that the appellant had played a parental role, that did not require her to make a shared residence order, see Re R (Parental Responsibility) [2011] EWHC 1535 (Fam) [2011] 2 FLR 1132 where Jackson J did not grant a free-standing parental responsibility order to a step-father who had been and continued to be a psychological parent to the child.
27. Ms Campbell complained that the judge had not identified the risks that she felt may be involved in sharing parental responsibility, submitting that there are no grounds to believe that the appellant would interfere with the respondent’s exercise of her parental responsibility. Ms Foulkes said that the judge’s reference to the threat of the press was enough and the judge could have cited many examples from the appellant’s statement of her referring to her own biological role, failing to recognise the importance of the respondent in the children’s lives, and criticising the respondent’s care of them.
28. Ms Campbell submitted that the judge was wrong to have been influenced by the fact that the respondent was to have no parental role in relation to D; that was irrelevant when considering what was in the interests of the twins. Ms Foulkes’ answer was that this was a relevant factor because it undermined the appellant’s case that the intention had been that she and the respondent would be joint parents of the twins and were intending, with the birth of D, to add to their family. On the contrary, it was said, the evidence showed that the intention had always been for the respondent to be the sole legal parent for the twins and the appellant the sole legal parent for D. It was also relevant, Ms Foulkes said, that the three children would be in different legal situations if a shared residence order was made and the twins would struggle to make sense of why they had two parents with parental responsibility and D did not.

(even though I would have made the shared residence order, I think Ms Foulkes points at para 26 which go in the opposite direction are compelling. It is harder to resolve this than you might think)
28. Discussion
29. It was common ground between the parties that a shared residence order could be made in order to confer parental responsibility. The question is whether the judge was wrong to take the view that it was not in the twins’ best interests to make such an order here.
30. Families are formed in different ways these days and the law must attempt to keep up and to respond to developments. To some extent, the judge was right to say that no decided authorities assisted her greatly. Certainly there is nothing which is precisely in point. It might, however, have been helpful if the parties had invited her to consider the legal framework, including some of the authorities dealing with the nature of parental responsibility and showing how the concept had been approached in new situations which were not centre stage when it first made its appearance. Because, for reasons I will give in due course, I would dispose of this appeal by overturning Judge Black’s order and remitting the matter for rehearing, I thought it might be of assistance to gather together some of the learning that is available even though, in order to do so, I have departed from the parties’ submissions and relied on my own research.
[The research here is excellently set out – it would make this piece rather too long to rehearse it all, but check it out in the judgment if you are interested]

I return to consider the issues arising in this appeal. It seems to me that the judge was put in a difficult position, albeit that this happened for the best of reasons. As the authorities show, a decision such as that which she was asked to take is heavily dependent on the particular facts of the case. Many of the facts here were hotly disputed and there was neither an agreed factual framework nor any factual findings made by a court. No judge wishes to put parties through more litigation, particularly not where, as here, they have at last managed to reach a sensible agreement on much that was in issue between them. Sometimes a judge has no choice but to do the best he or she can to ascertain the facts on the basis of the written material and submissions only; proceedings under the 1980 Hague Convention quite frequently have to proceed in this way. Sometimes the appropriate factual findings are sufficiently obvious for oral evidence not to be required. However, sometimes it is not at all clear on the papers where the balance of probability lies in relation to disputed facts which are central to the judge’s thinking. In those cases, notwithstanding an invitation from the parties to act on submissions only, it may not be realistically possible for a judge to make a determination without hearing some evidence. It seems to me that this case was such a case.
It may not be very surprising that the grounds of appeal did not include a complaint that the judge had made findings without hearing any evidence, as the parties had asked her to rule on the issue on submissions only. Looking back at the process however, I think that it resulted in the judge’s decision being built on foundations which were rather wobbly. This was compounded by her not having articulated, beyond the threat of the press which the appellant had abandoned, what led her to believe that the appellant would interfere with the care of the children if she had parental responsibility, why she thought that would continue to be a risk notwithstanding the appellant’s abandonment of her residence application, and the form she thought the interference would take.
The Court of Appeal felt that Her Honour Judge Black, though clearly faced with a very difficult decision, had given too little emphasis to the biological relationship between A and the twins, and that the decision had to be set aside. The Court of Appeal did not, however, think that they could simply substitute a joint residence order because the disputed facts went to the heart of that decision. Therefore, they decided that the case needed to be reheard, with either an agreed factual matrix or a Judge making findings on the essential disputed matters.

59. I would end with some words to the parties. I urge them to reach agreement about the issues that remain between them. One can well see that, subject to issues about interference and undermining, a judge might be inclined to recognise the distinctive features of this case by making a shared residence order to confer parental responsibility on the appellant, given her past and continuing involvement in the twins’ lives, her role as their genetic parent, and the fact that she is the mother of their sibling. Whether that turns out to be appropriate will depend very much upon what transpires in the new hearing and I express no concluded view about it. What I am, however, quite confident about is that a further hearing should be avoided if at all possible. I repeat what I said in T v T [2010] EWCA Civ 1366 at §49:
“Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in this way is likely to remain with the children into their own adult lives.”
I think the parties realised this when they reached the agreement that they did in front of Judge Black. I am sorry that the arrangements fixed that day cannot stand in their totality. But further agreement is still an option.

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Posted in case law and tagged biological parent, embryo, HFEA, joint residence order, legal parent, parental responsibility, re G (Children) 2014. Bookmark the permalink.

The Ofsted, and Action for Children research on neglect

Posted on March 27, 2014 by suesspiciousminds

You may have heard that Ofsted this week published some research on neglect, the over-arching theme being that some children are being left in neglectful situations for too long

http://www.ofsted.gov.uk/resources/childs-time-professional-responses-neglect

On the same day, Action for Children published their research into neglect

“Child Neglect : The Scandal that never breaks”

http://www.actionforchildren.org.uk/media/8678803/scandal2014.pdf

the over-arching theme there being that neglect is happening to far more children than you might expect – their headline figures being

73% of UK children know another child who is suffering from neglect. Urgent action is needed to help children and families get the help they need.

Since 2011, around a third (32% in 2013) of professionals have felt powerless to intervene when they have concerns about child neglect
35% of professionals say Government spending cuts have made it more difficult to intervene in cases of child neglect. In particular, 65% of social workers said cuts impeded their ability to intervene in cases
94% of the public agree people should do something when they are worried about a child but 45% want more information on where to get help

Of course, the big headline really depends on (a) how you define the term neglect and (b) whether you think children are the best people to identify neglect in other children that they know

Their major demand, that the Government ought to produce a national coherent strategy on child neglect, is a worthwhile one. Perhaps the one two punch of Ofsted and Action for Children saying similar things on the same day will have an impact. (I suspect that Ofsted have much more clout, because they don’t need to scare Government into action, they just have to scare Local Authorities that if they don’t have a Neglect Policy, they’ll get a bad Ofsted review)

There’s a bit in the Action for Children research that made me scratch my head. The researchers asked professionals what the barriers were that stopped them intervening on child neglect.

There are the usual suspects – lack of resources, gaps in services, the point at which intervention can take place being too high. But then there’s “It’s not my job to intervene”

10% of the social workers asked gave that as their answer. 10%….

That is very worrying to me. It’s at page 18 if you don’t believe me

The Ofsted research then. They looked at 124 cases, drawn from eleven local authorities. Those local authorities were a spread of inner-city and rural counties, from the North, the South, the East and the West (though the heaviest proportion was the North West – Liverpool, Manchester, Lancashire, Wigan). They looked at the records, spoke to professionals, to children, to parents and to carers.

The key findings :-

The quality of professional practice in cases of neglect overall was found to be too variable, although in some of the cases examined at this inspection, children were making progress.

Nearly half of assessments in the cases seen either did not take sufficient account of the family history, or did not adequately convey or consider the impact of neglect on the child. Some assessments focused almost exclusively on the parents’ needs rather than analysing the impact of adult behaviours on children.In a small number of cases this delayed the action local agencies took to protect children from suffering further harm.

While the quality of written plans was found to be too variable, there was evidence of some very good support for children that was meeting the short-term needs of the family. However, there was very little evidence of longer-term support being provided to enable sustained change in the care given to the children.

Some authorities are using effective methods to map and measure the impact of neglect on children over time and to evaluate the effectiveness of interventions. This results in timely and improved decision-making in some cases. However, not all local authorities have such systems in place to support social workers in monitoring the impact of neglect on children and the effectiveness of their interventions.

Non-compliance and disguised compliance by parents were common features in cases reviewed. Although some multi-agency groups adopted clear strategies to manage such behaviour, this was not evident in all cases. Where parents were not engaging with plans, and outcomes for children were not improving, professionals did not consistently challenge parents.

Drift was identified at some stage in the child’s journey in a third of all long-term cases examined, delaying appropriate action to meet the needs of children and to protect them from further harm. Drift was caused by a range of factors, including inadequate assessments, poor planning, parents failing to engage and in a small number of cases, lack of understanding by professionals of the cumulative impact of neglect on children’s health and development. Drift and delay have serious consequences for children, resulting in them continuing to be exposed to neglect.

Front-line social workers and managers have access to research findings in relation to neglect, although the extent to which this is incorporated into practice varies. It is by exception that front-line social workers use specific research to support their work. The impact of training on professional practice with regard to neglect is neither systematically evident nor routinely evaluated.

Routine performance monitoring and reporting arrangements to LSCBs infrequently profile neglect. Therefore most boards do not receive or collect neglect data except in respect of the number of child protection plans where the category is recorded as neglect. Most boards were not able to provide robust evidence of their evaluation and challenge about the effectiveness of multi-agency working to tackle neglect.

Those local authorities providing the strongest evidence of the most comprehensive action to tackle neglect were more likely to have a neglect strategy and/or a systematic improvement programme across policy and practice, involving the development of specific approaches to neglect.

The challenge for local authorities and their partners is to ensure that best practice in cases of neglect is shared in order to drive improvement.

They make a series of recommendations for Government (to review social work training to have mandatory material on neglect, to require Local Safeguarding Children’s Boards to have a strategy on neglect for their local area) ,

for Local Safeguarding Children’s Boards (to gather data on neglect and assess and monitor it in their area, to ensure front-line training on neglect for professionals, to get agencies working together on the issues, to ensure that all staff know how to escalate concerns, to ensure that all training represents best practice and contemporary research)

and on Local Authorities (robust management oversight of neglect cases to avoid drift, better methods of assessment, proper child protection plans for neglect cases, specialist training in neglect, consistent levels of threshold for intervention, a shift in focus on written evidence presented to Courts so that it is clear, concise and explicitly describes the cumulative impact of neglect on the daily life of the child)

The last is interesting, as we brace ourselves for the standardised model of social work reports (having seen the version that went out to consultation, I have serious doubts that this model is going to deliver what Ofsted are recommending)

The body of the report picks up as a theme that social work reports and assessments focused on the adults and the parents issues rather than analysis of the impact of this on the children. “Are children getting lost in the assessment in the same way in which they are lost within their own families?”

and a later quotation (from a Director of Children’s Services)

“social workers and schools may become desensitised to neglect”

The headline that was grabbed by the Press (they toss a coin, I think, to decide on any individual day whether social workers are jackbooted child-snatching fascists, or clueless Mavis-Reilly-esque do-gooders who are hopelessly ineffectual) was that parents were given too many chances

66. In the cohort of cases where progress for children was not being achieved, a common feature was parental non-compliance or ‘disguised compliance’. Professionals did not consistently demonstrate clear strategies to manage this behaviour. For example in a small number of cases, the Public Law Outline (PLO) was used to address non-compliance and while this was effective in the majority of cases, where parents breached PLO agreements subsequent action was not always taken. This apparent reluctance by professionals to act assertively and in line with written agreements meant that cases were not escalated at the right time for children and there was a delay in action to protect them.

67. In some of the multi-agency meetings held during the thematic inspection professionals reflected on their practice and accepted, with hindsight, that they had been manipulated by parents. For example, in one case when a mother and father had a new baby, the child was made subject to a child protection plan because the parents both had a history of drug misuse and had had previous children removed due to neglect. When the mother tested positive for cocaine use and the father positive for heroin use, the case was escalated to PLO, but stepped down again very quickly when the parents appeared to cooperate with the plan. The child was removed from the parents some months later due to further evidence of parental drug misuse. The child protection chair told the inspector that they should have been more challenging of the lack of progress at a much earlier stage in the case, and described the parents as ‘very plausible’, ‘always coming up with a reason for not completing tasks that were required of them’.

68. In other cases parents were given too many chances because professionals had not fully recognised or assessed the level of non-compliance and were carrying on regardless. Overall, the evidence in these longer-term cases is of a failure by professionals and their managers to be consistent in identifying non-compliance and disguised compliance, and in some cases failing to assertively challenge parents who were not engaging with plans.

For local authority lawyers, Ofsted makes comments about their role in the process too (not particularly flattering comments)

74 . Further delays were apparent in some cases because of inconsistency in decisions about whether the threshold for proceedings had been met. A small minority of local authority legal advisers held the view that some courts were not giving enough consideration to the family history when making decisions as to whether the threshold for proceedings had been met. However, most legal advisers reported that the courts and Cafcass were well-informed about research findings and the significance of a history of parental neglect. In a further small minority of cases local authorities appeared too ready to accept legal advice that the threshold for proceedings had not been met. This suggests there was some lack of clarity as to who holds responsibility for making decisions to initiate court proceedings to protect children from significant harm.

75. The general view of legal representatives was that the quality of written and verbal evidence provided by childcare professionals in legal proceedings was not consistently robust. This resulted in some cases failing to progress to proceedings or, when cases did reach the court arena, not achieving the required outcome. Evidence needed to be gathered more effectively, risks and protective factors expressed more clearly, and the impact or potential impact of neglect on children identified. Partner agencies needed to collate evidence of the impact of neglect, including the impact on children’s behaviour and emotional development, from a very early stage.On the basis of this thematic inspection the lack of clarity around thresholds for legal proceedings is a signficiant concern, given that as a result of this some children remain in situations of neglect for too long

Of course, one of the issues on ‘threshold’ is that we are talking about two different things – the s38 or s31 ‘threshold’ of significant harm is very easy to identify, we all know that when we see it. But the ‘threshold’ of “If you go to Court and ask for these children to be removed will you succeed?” is much more dependent on local Courts, local Guardians, knowing how your Courts view neglect, knowing how bad it has to be before you would meet that test, knowing whether your social worker’s evidence will be compelling in the witness box or tentative. How old are the children, how will they be affected, are you going to find foster placements to meet their needs? Of course the answer to the second question varies greatly from case to case, there is never a one-size fits all answer.

It is, of course, very important not to conflate the two questions

Is the threshold met
Is the evidence strong enough to persuade a Court to do anything about it

Neglect is always the hardest type of case to make decisions about – almost always you have missed the right time to issue the proceedings. Neglect is very rarely a steady downward slope, it is more of an undulation, a series of peaks and troughs – little improvements as support is provided, dips as the family struggles. And it always feels that the impact on the children of neglect is viewed less significantly by Courts than a broken leg, an allegation of sexual abuse. Even though the long-term impact of neglect can be very corrosive, there’s a feeling that it isn’t that bad, or that it has to get very bad indeed before anyone is willing to draw a line and say “no more”

As local authorities come under pressure to drop their numbers of looked after children (and they are doing, and a large part of that pressure is from Ofsted themselves), neglect represents the soft target for that reduction.

Not many local authorities are going to increase their tolerance for physical abuse at home, or sexual abuse at home. Which leaves, if you want to raise your threshold and lower your number of court proceedings and looked after children, tolerating more neglect at home.

Unless you’re going to put in services and support to change neglectful care into good enough care, but that’s a big ask at a time of cuts and reduction in services.

[It might, of course, be a good thing that there’s a recalibration of what is ‘good enough’ care where the State should support but not intervene, and what requires care proceedings and separation – one can’t argue with the fact that the number of children coming into court proceedings has gone up massively over the last ten years, and how do we know whether we are now at the right number and we used to be leaving too many children at home, or whether we were right ten years ago and over-reacting now? ]

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What’s app Doc Crippen?

Posted on March 25, 2014 by suesspiciousminds

This is going to be a bit of a meander, I’m afraid.

What’s App, if you don’t know, is a communication device – it basically allows a subscriber to send many many messages to other users for a small annual fee (much much cheaper than text messaging). It has become very popular very fast, and as is traditional, Facebook has now swooped in to buy it for an obscene amount of money (even though the money they are willing to pay to own it would not be recouped on the current business model until the year 2525).

The case of London Borough of Tower Hamlets v Alli and Others

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Fam/2014/845.html&query=whatsapp&method=boolean

turns on the evidence having been obtained through Whatsapp.

That in turn, reminded me of the role that Dr Crippen played in the development of wireless telegraphy, hence the meander.

Marconi was the driving force behind the popularity of wireless telegraphy, although many said that his role in inventing it was rather less than his publicity would have you believe, that he had stolen significant elements from other inventors. That was what led Marconi to be the first example of hacking, well before Anonymous and Lulz-Sec and even well before Matthew Broderick in Wargames.

Marconi was holding a lecture at the Royal Institution in London, a centrepiece of which would be his receipt of a wireless telegraphy message from the Marconi station in Cornwall. Things didn’t go quite to plan, as the message that actually came through was a rude couplet about Marconi

There was a young fellow from Italy

Who diddled the public quite prettily

Sent by a magician named Maskelyne, who had been hired by the cable telegraphy companies (who obviously had a vested interest in embarassing or discrediting Marconi’s rival model) and he had set up a radio mast nearby and found the wave length that Marconi would be using.

What really popularised wireless telegraphy was the famous murder case, where Dr Crippen murdered his wife and before the body was found had fled on a transatlantic boat to Canada, with his mistress Ethel Le Neve ( a name which manages to be simultaneously glamourous and dowdy, but was at the time probably just purely glamorous). The Captain of the ship suspected that two of his passengers (Ethel dressed as a boy) were the suspects in the murder case and managed to send wireless telegraphs to that effect.

Because of the slow journey time in crossing the Atlantic, the public were able, on both sides of the Atlantic, to follow the story in the press, and knew that on disembarkation the lovers would be arrested, due to the wonders of wireless telegraphy.

Okay, back to the case

This was a committal application (we seem to be getting a lot of them) arising from the mother in care proceedings disappearing with two children, who were the subjects of Interim Supervision Orders and living at home with her. There was to be a five day final hearing in the case, and the parents were both legally represented.

A final hearing of the local authority’s application for orders in relation to the children has been listed for a date in May 2014 with a time estimate of five court days. I wish to emphasise that at that hearing both parents will have, or have had, the fullest opportunity to contest the local authority’s application and call evidence of their own. They are entitled to public funding so as to ensure that they are represented by family lawyers. Indeed, I note from the court bundle before me that they are so represented. I should also indicate that at the parents’ request within those proceedings a number of family members have been assessed as potential future carers for the children in the event that the court concludes that the parents cannot continue to care safely for the children.

I do not propose to rehearse the background history of the public law case. It is sufficient for me to record in this judgment that the local authority has significant concerns about the safety and wellbeing of these two children in the care of these parents or either of them individually. The mother is said to be, or have been, a heroin addict; the father has also been dependent on non-prescribed drugs. That said, the social workers have been attempting to work with the parents in order to maximise the prospects of the children being raised within their own family.

The Court made orders under the inherent jurisdiction for the location of the children. Part of that order was that anyone who knew of their whereabouts was to provide the information.

By the terms of that order any person served with the order – and I pause here to observe that the mother and the father were both named specifically in the order – must (a) inform the tipstaff of the whereabouts of the children if such are known to him or her, and (b) also in any event inform the tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the children. Later on the 11^th March the father telephoned Social Services to say that he had received a telephone call from, he believed, the mother, and had heard one of the children in the background.

On the 12^th March, in the morning, two Police officers acting on the instructions, and as agents, of the High Court tipstaff, attended at the parents’ address. After a short delay the father answered the door, indeed on their account only opening the door when they announced that they were Police officers. The officers asked where the mother was. The father claimed not to know. He told the Police officers that the children were “with their mother“. He told the officers that he had last seen the children and the mother on Sunday, the 9^th March, and that his wife had taken them to school on the morning of the 10^th March, though he had not in fact seen them leave. There is a discrepancy between the Police officers as to whether the father had actually said that he had seen his wife and the children on Monday, the 10^th. I do not find it necessary to make a determination on that discrepancy. When challenged by the officers with the fact that the children were missing he said, “They are not missing, they are with their mother“. He told the officers that he had been separated from the mother for two weeks. He said that although he had known that they were missing for, by now, 48 hours, he had not reported them missing to the Police. He said that he had telephoned family members to inquire specifically naming two brothers, but could not provide the relevant phone numbers of those brothers. I interpolate here to say that the father’s brother told me this morning on sworn oral evidence that he had not in fact spoken with the father on the telephone in this period. There was evidence of the children being in the flat, coats on coat hooks in the hallway, children’s toothbrushes in the bathroom. The father handed the Police officers his mobile phone. It is reported by the officers that the father generally appeared evasive. The officers contend that they had reasonable cause to believe that the father was in fact withholding information about the mother’s and children’s whereabouts. After a telephone call to the High Court tipstaff they arrested the father. The property was searched but the children’s passports were nowhere to be seen. The father said that he did not know where they were (this was of course different from the information he had given the social worker). When the father was arrested he is reported to have asked how long he would be in custody, “because I am supposed to be going on holiday“.

Now the What’s App stuff

he father was brought to court on the 13^th March, the following day, and at that hearing Russell J remanded the father in custody to today’s hearing. She made further orders requiring the attendance at court today of other family members. Pursuant to her order, the notice of committal was issued later that day and served on the father, as I have said, on the following day. This notice contains the following alleged breach of the location order:

“That the Respondent father has knowledge or information pertaining to the whereabouts of the children. He has given differing accounts to the local authority and tipstaff.”

At the outset of the hearing today I was advised that the father’s mobile telephone, seized by the Police on the 12^th March, as indicated above, contained a number of ‘whatsapp’ or text messages in Bangladeshi or Sylheti and in English, and a recently sent photograph of Samira. The dates of the text messages appear to span a number of weeks. I put the case back so that an interpreter could be located to translate the text messages for the court.

In the meantime I heard brief sworn oral evidence from the father’s brother. He told me that he had a “feeling” that the mother and children were in Bangladesh but advised me that this was not because he had been told this but simply that the mother had travelled there in the past.

The evidence laid before the court by the local authority now reveals the following, that mobile telephone text messages or ‘whatsapps’ had passed between the father and his nephew, a man called Shahed, in Bangladesh in a period which spans about six weeks. It now transpires that the father believes that the mother is having a relationship with Shahed. In that period it appears that on one occasion the father had sought to send Shahed some information or documents by email or text but had not been able to do so. On the 18^th February a number of pictures with typed text on them, possibly court orders, were exchanged by text. On the 8^th March, that is Saturday of last weekend, the father received a ‘whatsapp’ message from Shahed which reads:

“On the way Dacca … need more 6 hour.”

There is then a selection of photographs one of which is of Shahed in a car. On the following day, the 9^th March, the father sent a message to his nephew, Shahed, which includes this phrase, “Anyway, tell my sister-in-law [the word in Sylhet was Babi, and the father told me that he could not say that it was not a reference to his wife] to enjoy the sex I could not give“.

The father on the 11^th March at 0736 received three photographs from the mobile telephone of Shahed in Bangladesh. Two of those photographs are photographs of Samira. The local authority asserts, with considerable justification, that these text messages very strongly indicate that by the morning of Tuesday, the 11^th March, not only was Samira in Bangladesh but the father must have known that.

The father gave evidence before me this afternoon. He told me that he could not now recall when he had last seen the children. Possibly it was Saturday 8^th, or possibly Sunday 9^th March. He ascribed his loss of memory either to a 2008 head operation or alternatively the after-effects of a tooth operation which had been conducted some time on the 4^th March. He was now confused, he told me, whether the mother had taken the children to school on the Monday morning. If she had done so it would, on his case, have been during a time when he and the mother were in fact separated and she was living away from the home (though he did not know where). He believed that his wife and Shahed, his nephew living in Sylhet, Bangladesh, are engaged in a relationship. He had in the past seen messages from Shahed to his wife and had confronted Shahed and his wife about this in the past. She, Mrs. Khatun, had denied it, but the father went on to tell me that the mother had been to Bangladesh twice on her own to stay with Shahed, once in April 2012 and again in September 2012. Significantly, he told me that he first suspected that the mother and children had in fact fled abroad to Bangladesh sometime on Tuesday, the 11^th. He told me because he was calling her and when he called her mobile phone he heard a different ring tone. He told me that when she did not pick up the phone he sent her texts. These texts have been read to the court. In the early hours of the 11^th March he sent a text to the mother which includes these terms:

“I’m so stupid and naïve that everything was happening in front of my eyes but did not see. Anyway, I hope you are getting enough now because you have a lot of load to offload if you get my drift. Anyway, enjoy the passionate making out and don’t worry you get pregnant because I’ve taken the long-term precaution … Love you still.“

He goes on:

“Good luck with your new good looking husband and please don’t bullshit me that it was just a phase because I know that you got married to this guy.“

In the early hours of the following morning, the 12^th March, about eight or nine hours or so before the Police went to the father’s property, the father texted the mother again.

“I can’t believe you forgot. I went out begging for money because we didn’t have any after doing all this for you. You still deceive me. I hope it was worth it …“

And then two minutes later:

“Sorry for all the trouble I’ve caused you so forgive me, my love.”

As is apparent from my earlier account of the history, the father did not tell the Police on the 12^th March that he knew or suspected that the mother was with Shahed in Bangladesh. He told me that he did not tell anyone, he does not know why he did tell anyone, but he thought he may be able to sort it out. In relation to the text from his nephew, “On the way to Dacca“, the father unconvincingly told me that, “I thought he was on a trip or something“. The father told me that he did not see the 11^th March message from his nephew with the photographs of Samira even though these had been received by his phone for 24 hours or more before the Police went to his property and I know, as the father has accepted, that he used his phone and the ‘whatsapp’ facility on it to communicate with his wife at least twice since the arrival of those photographs.

With all that in mind, the evidence against father was damning. The Judge made his decision

Having regard to the totality of the evidence, I am satisfied beyond reasonable doubt that when served with the location order on the 12^th March the father had knowledge which might reasonably assist the tipstaff in locating the children. I so find for the following reasons:

(a) first, that the father has himself admitted to believing that the children and the mother were abroad in Bangladesh as early as Tuesday, the 11^th March. His text messages to the mother are clear evidence of this.

(b) In fact I find that the father, beyond reasonable doubt, suspected that they were in Bangladesh before that time.

(c) I further find that the father had received and seen the photograph of Samira (taken in Bangladesh) on the 11^th March shortly after it had arrived, certainly well before the Police attended at his home.

(d) I find that the father deliberately misled the Police in declining to assist in disclosing what was a high probability in his own mind that the children and the mother were in Bangladesh at the time that they questioned him about it.

The only issue that remained was what sentence would be passed

Mr. Ali, will you stand, please. Mr. Ali, it appears almost certain that your wife has left this country with your two children who are the subject of court proceedings. I suspect, but do not find, that if she has done so it has been to frustrate the due process of the law and specifically to avoid participation in the court hearing at which the Family Court would be considering the local authority’s concerns about the wellbeing of the children. You have said yourself you believe that the mother is a heroin addict yet you have failed, as I have found, to assist the court in attempting to locate these children, allowing the children to remain in the care of their heroin addict mother without supervision by authority.

On the 11^th March, Mr. Ali, I made orders designed to trace and locate these children, and once located to restrict their movement while decisions were made about their immediate futures. As you will have just heard, I did not make orders at that time permitting their immediate removal into foster care. However, you, Mr. Ali, have deliberately withheld and, in my judgment, continue to withhold information which could lead to the whereabouts of the children. You have obstructed the Police, you have obstructed Social Services, and you have obstructed this court in our joint endeavour to trace your missing children. It is your obstruction of the court order which provokes this application for committal.

Mr. Ali, untold damage is done to children who are spirited away from one home to another, let alone from one continent to another, without warning or preparation. Disruption to their routines, the predictability of their lives, their family relationships and social relationships and to their schooling is inevitable. Parents who remove children from their home environments in this way cannot, and should not, go unpunished. Parents who seek to protect those who remove children in these circumstances, who deliberately obstruct the due administration of justice, and knowingly breach court orders should also expect to be punished appropriately by the court.

I accept, Mr. Ali, that there is no evidence of your involvement in any preplanning of this trip to Bangladesh, but you have, in my finding, deliberately obstructed the due administration of justice and, by your lies to the court today, continue to do so.

I have taken into account your home circumstances, that you presently assist in caring for your elderly mother, but the sentence which I impose has to be a custodial sentence to reflect the gravity of your breach.

The sentence I impose is one of four months imprisonment. You will serve one-half of that sentence.

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Posted in case law, committal and tagged committal, contempt, doctor crippen, location order, prison sentence for not cooperating with tipstaff, tipstaff, tower hamlets v alli 2014, whats app. Bookmark the permalink.

There is some corner of a foreign field that is forever not part of the Hague Convention

Posted on March 22, 2014 by suesspiciousminds

The quirky case of Leicester City Council v Chhatbar 2014 – which features without a doubt the best application for permission to appeal I’ve ever read

http://www.bailii.org/ew/cases/EWHC/Fam/2014/830.html

The parents names are reported in the case because they are freely available to view on the Interpol website (the Daily Mail attended the hearing and sought that permission to name the parent, which was granted)

On 12^th October 2013 at a time when Mr. Chhatbar and Miss Rahman frankly concede they knew that Abdul Rahman was the subject of protective measures, they left England and Wales and travelled to the Turkish Republic of Northern Cyprus. As is well known, the Turkish Republic of Northern Cyprus is recognised as an independent state only by Turkey. The rest of the world, and specifically the European Union, regard the Turkish Republic of Northern Cyprus as being a military occupation by Turkey of part of the Cypriot Republic. The Turkish Republic of Northern Cyprus is not a signatory to the 1980 Hague Convention on the Civil Effects of Child Abduction, nor does it subscribe to or apply the child abduction provisions of the Brussels II regulation.

The court can easily conclude that a motive for these parents taking this child to the Turkish Republic of Northern Cyprus is that, uniquely within Europe, it represents a safe haven from the provisions of the 1980 Hague Convention.

The reason I am being asked to determine that on 17^th October 2013 when Abdul Rahman was made a ward of court he was habitually resident in England and Wales is not in order to demonstrate that on 12^th October 2014 he was unlawfully removed from England and Wales within the terms of Art.3 of the Hague Convention. The reason I am being asked to determine this issue is in order that the local authority would be equipped to argue, should Abdul Rahman ever be taken to a Hague Convention country, that from 17^th October 2013 he was being unlawfully retained by the parents in Northern Cyprus. In order for an unlawful retention for the purposes of Art.3 to be proved, it has to be shown that on the relevant date Abdul Rahman was habitually resident here and that at that time rights of custody had been vested in this court. Plainly the latter criterion was satisfied because this court had made him a ward of court on that day. The question is whether on that day he was habitually resident here.

If you are going to do a runner then, the Turkish Republic of Northern Cyprus is a good destination. (though read the whole thing before booking your flight)

As it isn’t a signatory to the Hague Convention, there is no straightforward method in international law for compelling the return of the child (there MIGHT be in the law of the Turkish Republic of Northern Cyprus, but frankly who knows?).

The City Council asked the High Court to declare that the child had been unlawfully removed from England under article 3 of the Hague Convention, not so they could get the child back from Northern Cyprus, but rather so that if the family set foot in any other bit of Europe, the child COULD be recovered.

Mr. Downs frankly concedes that this exercise only becomes relevant if Abdul Rahman is taken by his parents to a Hague Convention country of which, of course, Turkey is one, the Republic of Cyprus is another, and Greece is yet another. He argues, as does the Council which he represents, that this is a reasonably foreseeable prospect. First, they say that the parents were, in fact, in Turkey as recently as December 2013. They say they went there in 2013 for a holiday. Secondly, they say that in order to be able lawfully to stay in the Turkish Republic of Northern Cyprus they need to leave the country every 90 days in order to re-enter and receive a new 90 day tourist visa.

The Judge heard from the parents by videolink, considered all of the relevant law and facts and reached this conclusion

In my judgment, on 17^th October 2013 both the parents and the child had their habitual residence in England and Wales. They had not severed their integration in this country. Their social and family environment was in England and Wales. Of that I have no doubt. I do not need to speculate further on the motives that drove them to leave to go to Northern Cyprus although pretty easy conclusions can be drawn.

I say nothing about the merits of the local authority’s case other than to observe that at the relevant time the father was under an order of probation awarded by a criminal court in relation to an offence of domestic violence. He was obliged under our law to be in this country in order to undergo the period of probation that had been awarded. Beyond that I say nothing about the merits of the steps taken by the local authority. Nor do I want to give anybody any indication of the likelihood of success, should these parents go to a Hague Convention country, of an application under the Hague Convention to such a country for the return of Abdul Rahman to this country. Of that I say nothing at all. I confine myself strictly to saying only that on 17^th October 2013 the child, Abdul Rahman Chhatbar was habitually resident in England and Wales.

What follows then, is the father’s application to appeal, which I’ll print in full

MR. CHHATBAR: Excuse me.

MR. JUSTICE MOSTYN: Yes.

MR. CHHATBAR: Can we appeal your decision?

MR. JUSTICE MOSTYN: I have given my decision. I have declared that Abdul Rahman was habitually resident in England and Wales on 17^th –

MR. CHHATBAR: Yes, I heard all that. We heard all that. We are asking you can we appeal your decision.

MR. JUSTICE MOSTYN: OK. So you need to ask me for permission to appeal.

MR. CHHATBAR: Yes, that is what we are asking.

MR. JUSTICE MOSTYN: I can only give permission if I am satisfied that you have got a real prospect of success or there is some other good reason why an appeal should be heard. Is there anything else you want to say about that?

MR. CHHATBAR: Yes, it is a joke, isn’t it? It is a fraud. It is a fraud mate. It is all a fucking fraud.

MR. JUSTICE MOSTYN: OK.

MR. CHHATBAR: Good luck in trying to find us. Good luck.

MR. JUSTICE MOSTYN: Thank you very much.

MR. CHHATBAR: The court has got no jurisdiction. We are never coming back to England. Good luck. See how powerful you are, yes. You are powerful sitting there in your chair. It is a fucking fraud.

MR. JUSTICE MOSTYN: Thank you very much, Mr. Chhatbar. It is a shame –

MR. CHHATBAR: See if you are a good parent sitting in that chair when your son takes cocaine. You are a joker, my friend, you are a joker.

The transcript doesn’t indicate whether there was any pause, and if not, hats off to Mostyn J for his response

MR. JUSTICE MOSTYN: All right. Mr. Chhatbar applies for permission to appeal. Under the Civil Procedure Rules Part 52 the permission can only be given if I am satisfied that there is a real prospect of success or there is some other compelling reason why the appeal should be heard. In as much as I can understand Mr. Chhatbar, he says that my decision is wrong because I have no jurisdiction and because it is fraudulent.

I consider that I have applied the law scrupulously to the facts of this case. I am completely satisfied that there is no prospect of success of an appeal, let alone a real one, and that there is no other compelling reason why the appeal should be heard. I therefore refuse permission. Mr. Chhatbar, of course, is entitled to renew his application for permission with the Court of Appeal. Thank you very much.

The Judge then goes on to address the Press in relation to accuracy of reporting (lets see if this makes any difference when they report the case)

On 3 March 2014 a report appeared in the Daily Mail authored by a journalist who had been in court^[2]. In the report it was stated “Financial adviser Mr Chhatbar and travel agent Miss Reheman, 19, fled after a relative made an allegation to Leicester city council social services that Mr Chhatbar had a violent past. It is a claim the couple vigorously deny, but social workers warned them to split up so Momo could live with Miss Reheman in safety or else they would seize the baby.” The report failed to mention what I had said in the first two sentences of para 17 concerning the father’s conviction for an offence of domestic violence. Further, to the best of my recollection, what was written was not mentioned in court. The President, Sir James Munby, has recently emphasised in Re P (A Child) [2013] EWHC 4048 (Fam) at paras 26 and 27^[3] that while the court will not exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish there is nonetheless, for obvious reasons, a premium on accurate press reporting of proceedings such as these.

[For the avoidance of doubt, this judgment, at which representatives of the Mail were present, WAS BEFORE that article was published, and the author of the article was in Court]

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Posted in case law, international, transparency and tagged hague convention, Leicester City Council v Chhatbar 2014, turkish republic of northern cyprus, unlawful removal of a child. Bookmark the permalink.

Foster to adopt

Posted on March 21, 2014 by suesspiciousminds

Another bite-sized nibble at the Children and Families Act 2014. [Warning, post contains both Minnie and Moaning]

The more I dig into this Act, the more troubled I become. It may be that an Act that tries to resolve family justice, educational special needs, granting licences for performing children, allowing the Chief Inspector to enter a home and seize documents and take photographs if he believes a person is unlawfully pretending to be a childminding agency, repeals the no-fault divorce provisions of the Family Justice Act that never got commenced, employment rights for parents, whether you can smoke in your car if children are present, legislates on the shape size and texture of cigarette packets (and how you might open them), and whether it should be unlawful to sell nicotine gum or e-cigarettes to children MIGHT, I only say MIGHT, have spread itself a little too thin.

[I’m not exaggerating, this stuff is genuinely in the Act. It’s a Children Act, an Education Act, an Employment Act, a Tax Act and a Health Act all squidged into one place]

Today I’m looking at section 2, which is a new provision in the Children and Families Act relating to the duty on Local Authorities to consider and prioritise “foster to adopt” placements for children.

A “foster to adopt” placement is a foster carer who takes on the care of a child as a foster carer, but who is approved as an adopter, and who thus could move on to adopt the child if the Court’s final decision is that adoption is the right solution for the child.

With anything, there are pros and cons. Here are some (list exhausting, but not exhaustive) :-

Pros – it means that if the child does need to be adopted, the child moves once and only once (from the parent into a permanent placement). It means that the child is not waiting and forming an attachment with the foster carer only to lose that relationship.

It avoids delay in a permanent placement being found. It gives the Court when making final decisions a degree of confidence that a placement has been found and tested and that it works for the child. It gets approved adopters practical experience with caring for the child before making that huge commitment. It might help parents to know that the child is with someone that the child knows rather than there being a big mystery about where the child will be placed and when.

Cons – It can produce a feeling of fait accompli, that before the Court makes any decisions about the case that the child is already in an ‘adoptive’ placement just waiting for the rubber stamp. It can lead to adopters (already a scarce resource) bonding and connecting to a child only for the child to be rehabilitated – which is after all, the starting point in all care proceedings – how big an emotional turmoil would that be? In turn, does this lead to the carer keeping the child at ‘arms-length’ until the Court’s decision is made?

Is this a proper “matching process” or do you end up with a very superficial matching process? Does that lead to increased risk of breakdowns later on? It could lead to a placement for foster-to-adopt being made before a viable family member comes forward and then the child not being placed with that family member. Is there a conflict of interest in evidential terms – i.e if the foster carer hopes to adopt the child, how confident can the Court be when the foster carer reports that the child has nightmares after contact or never talks about missing mummy? The risk of the address coming out is greatly increased, as during the care proceedings documents are produced and circulated and it only takes one slip for an address that should be redacted not to be.

Most importantly, does having a ready made adoptive placement for the child end up tempting the Court into making the wrong comparisons when making their final decision – rather than looking at whether the parent is good enough do professionals and the Court get seduced into comparing what the child’s life would be like with these adopters versus going home?

And of course in light of Re B-S, how confident can one be that the Court, even if approving that the child should live with these carers would want to do it under adoption rather than fostering or SGO – doesn’t that raise the spectre of the foster-to-adopt carer being asked that specific question in evidence?

[I think you would need to be very transparent in recruiting foster-to-adopt carers that there is a very real possibility that the Court, even if the placement with them is sanctioned, might want to do this under SGO or Care Order rather than adoption, and that they might find themselves drawn into care proceedings]

Another difficult issue is what this means for sibling groups – if you have a group of children and one is aged 8 and one is aged 2, should the two year old be put in a foster-to-adopt placement and separated from the other, or is it more important for them to be together? [As we will see later on in this piece, if the s22 (9A) duty is triggered, that removes entirely the provisions in the Act that say that it is better for siblings to be together. That doesn’t feel right to me – if there’s a presumption about which is best “being in a placement where you might get adopted” or “being with your brother” I have a different view to the Act about which way the presumption should go]

It is hard to try to balance the pros and cons as an overall philosophy – it depends on your perspective and stance, and whether what is more important is justice and justice being seen to be done or minimising disruption and delay for a child. Perhaps it is the right solution for some cases, some children.

[I am not actually averse to concurrency placements and think that they represent a good option to have available for some cases, I am troubled by the clunkiness of how this has been rolled-out though]

I know that the Family Rights Group have been very concerned about the provisions, and I share some of their concerns – they did a great job in highlighting them, sadly they weren’t listened to- I’m not convinced that the ramifications of this legislation has been thought through

You can read Cathy Ashley’s piece in Community Care here.

http://www.communitycare.co.uk/2014/03/19/potential-injustices-likely-arise-children-families-act/

All of the complaints that Cathy makes in that piece are legitimate and she is right that interested groups were making these points when the draft legislation was published. The ills they identified have not been remedied.

But what I want to do in this piece is to consider WHEN the actual duty arises (and in turn, what happens when it does)

Children and Families Act 2014

2 Placement of looked after children with prospective adopters

(1) Section 22C of the Children Act 1989 is amended as follows.

(2) In subsection (7), after “subject to” insert “subsection (9B) and”.

(3) After subsection (9) insert—

“(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and—

(a) are considering adoption for C, or

(b) are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.

(9B) Where this subsection applies—

(a) subsections (7) to (9) do not apply to the local authority,

(b) the local authority must consider placing C with an individual within subsection (6)(a), and

(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.

(9C) Subsection (9B) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.”

That’s rather a mouthful, but in essence

Where the Local Authority are considering adoption for the child OR are satisfied that the child ought to be placed for adoption AND if they are not satisfied that a placement with a relative is the most appropriate placement for the child, they must consider a placement with a foster carer who has been approved as an adopter

That seems to me to be two separate circumstances

S22 (9A) (a) The Local Authority are considering adoption for the child

22 (9A) (b) The Local Authority are satisfied that the child ought to be placed for adoption

I’ll deal with 22 (9A) (b) first, because although it is more complicated it is also easier (if that makes sense) because there’s an answer to WHEN a Local Authority are satisfied that the child ought to be placed for adoption.

That comes from s22 of the Adoption and Children Act 2002, which says that when a Local Authority is satisfied that a child OUGHT to be placed for adoption they MUST make a Placement Order application.

We know that a Local Authority cannot make a Placement Order application until they have a decision from their Agency Decision Maker that adoption is the plan for the child AND that they are authorised to make an application for a Placement Order.

Deep breath – therefore 22 (9A)(b) Children Act 1989 can be a duty that is ONLY triggered once the Local Authority have permission from the Agency Decision Maker to apply for a Placement Order.

That would normally be at around the time that the Local Authority file their final evidence, and thus about 8 weeks away from a final hearing. I think it is extremely unlikely that a Court would endorse moving a child from an existing foster placement into a Foster to Adopt placement 8 weeks before a final hearing, unless the parents are in full agreement. So, I just don’t think that this will actually happen in practice.

HOWEVER

S22 (9A) (a) is a different matter. In effect, this means that if a Local Authority is considering adoption for the child and do not consider that placing with a relative is the most appropriate placement for the child, they must consider placing with a foster parent who is an approved adopter

Two distinct limbs of the test there

(1) Are the Local Authority considering adoption for the child

How do you decide whether the Local Authority is considering adoption for the child? Are they considering this once all of the evidence is in, or is the fact that they are considering it as a possibility mean that the first limb of the test is met? Are we getting into territory of whether they are REASONABLE in considering adoption for the child?

As the Family Rights Group have raised, this does create the spectre that a Local Authority who are fostering the child under a voluntary (s20) arrangement, long before the case goes to Court or the parents have legal advice, can say that they are “considering” adoption and thus have a duty to place in a foster to adopt placement.

(2) The LA do not consider that placing with a relative is the most appropriate placement for the child .

Okay, this is really important, because what this is a DIFFERENT test about placing a child with a relative.

The usual test

S22 C (7) Children Act 1989 means that a placement with a relative, friend or other person connected to the child MUST be given priority (and thus a child will only not get placed in a family placement if the circumstances in s22C (4) are made out – that the placement is not reasonably practicable or would not be consistent with the child’s welfare)

Won’t apply if the LA are ‘considering’ adoption under s22 (9A) In those circumstances, it seems that the LA can discount the placement with the relative if they think that it is “not the most appropriate placement for the child”

A different quality of test. S22C means that unless there are compelling reasons, the placement with the family member is better than foster care, and s22 9B (c) means that the LA don’t have to place with a relative unless they consider that this is the ‘most appropriate placement’ – that’s an entirely different character of test, and it is unlocked by the Jedi-hand-wave of “we’re considering adoption”

Also, WHEN is it that the LA “do not consider that placing with a relative is the most appropriate placement”? Is it at the outset of the case, when it might be that they want to conduct an assessment first and say they can’t place until that assessment is done? (Does THAT trigger the duty to place in a foster to adopt placement?) OR is it after that assessment is done?

At the moment, the wording is so loose that it appears that if the child is being placed away from the parent under voluntary accommodation, and the child is under six, the LA would be ‘considering adoption’ and can thus decide that a foster-to-adopt placement is more appropriate than placement with a relative, and also separate the child from a sibling. And not only CAN do it, but it appears that they have a duty to consider it.

I’m not suggesting that Local Authorities would do this willy-nilly or capriciously, but the point of legislation is to provide safeguards as well as powers, and this doesn’t have much. (It only takes one bad LA or one bad social worker)

IF a Local Authority were to do that, it can be argued that they are just following the duties pushed onto them by the Act.

[A simple solution to this would be for the LA to say that they have a duty to CONSIDER it, they have CONSIDERED it and are not going to do it as a result of the wider context of the case. That might be the angle that is taken in most cases, but it depends to an extent on whether the particular Local Authority is keen to push foster-to-adopt and has such carers available]

The other worrying thing is that if s229A (a) is met, s22C (7) –(9) do not apply.

(9B) Where this subsection applies—

(a) subsections (7) to (9) do not apply to the local authority,

What those cover are :-

That the placement should be within the Local Authority’s area

That the placement allows the child to live near their original home

That if the child is disabled the accommodation provided is suitable for the child’s needs

That the placement doesn’t disrupt the child’s education or training

That if the child has a sibling, it enables the child and the sibling to live together

The implication of this is, that if the LA are considering adoption and aren’t placing with a relative, their DUTY is to consider a foster to adopt placement EVEN though this would mean separating the siblings – the foster to adopt takes priority over siblings.

Given that ‘considering adoption’ triggers these duties (which can involve not placing with a relative because it is not the ‘most appropriate’ placement, and separating siblings) it seems a glaring omission that such a powerful test is not defined properly.

I also think that placing in foster to adopt is such an important issue that the Act ought to have said that this can be done only with either the permission of the existing holders of parental responsibility or the permission of the Court. That would have cut through most of the worries.

Without this provision, one is looking to the Court to be the safeguard check and balance. It will be the Court who would be endorsing the care plan put before them. The Court would be taking account of the fact that the Local Authority’s duty is to seek a foster to adopt placement even though that means separating brothers or sisters, but the Court is not bound to prioritise foster to adopt above siblings being together. (that priority setting bites on the Local Authority, not the Court)

I suspect that the Court would want to tell the Local Authority that their plan to place one child in a foster to adopt placement and another child in a separate foster placement (because one is young enough for them to be ‘considering’ adoption, and the other is not) is not approved and to change it if they want their Interim Care Order.

However, that then gets into territory of a wholly different kind, because the Children and Families Act 2014 also changes the role of the Court in scrutinising care plans

S15 Children and Families Act 2014

(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

“(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A

plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

The argument here, I think, would be that whilst the Court is not REQUIRED to consider in the care plan whether the siblings are together, they are not PROHIBITED from doing so.

[Or being very creative, saying that siblings are including within section 31 (3B) (a) since you are deciding whether the child can live with any member of the child’s family – it says ‘live with’ not ‘be cared for by’]

Finally, if you are interested, having a child placed with you in a foster-to-adopt placement doesn’t trigger any adoption leave entitlement that exists in other legislation, until the child is actually formally placed for adoption (that’s tucked away in s121 of the Children and Families Act 2014)

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Posted in adoption, children and families act 2014 and tagged children and families act, concurrency, duty to place with a relative, foster to adopt, placing siblings together, section 2 children and families act. Bookmark the permalink.

The Staying put arrangements (and a toast to not being a moaning minnie)

Posted on March 21, 2014 by suesspiciousminds

The more I look at the Children and Families Act 2014, the more I seem to be complaining about (I have a long piece on s2’s foster-to-adopt provisions coming a bit later), and sometimes I think that writing my blog pieces I am just complaining about everything and generally being a moaning minnie.

Well, it took a while, but I found two provisions in the new Act that I do like, and don’t want to complain about. One is the inclusion of Young Carers into s17 assessment of need and provision of services, which I think is long overdue and a damn fine thing.

And the other is the “Staying put arrangements” which enables a young person if they and their foster carer are up for it, to stay in the foster placement until the young person is 21.

[I know that campaigners want this extended to children in residential care, and maybe that will come in the future]

I think it is a good thing that young people will have this option – it won’t be forced on them or pushed on them, but it is a bit of a safety net from the State, and I commend it to the House (sorry, went off on a delusion of being Chancellor of the Exchequer then)

Not only is the central idea good, I think the drafting is pretty decent. It is understandable, does what it needs to, doesn’t end up with any weird gaps or new concepts that don’t get defined properly (cough, section 2, cough)

I think there are some details to be thrashed out on the logistical side of things (how much do the foster carers get paid, is that a sum of money they have to pay tax on? Are they in effect landlords to that young person?) but the core of it is there, and I have nothing to moan about.

[Well, maybe I don’t like that the Children Act is now up to a section 23CZA (2) (b) – that’s more nesting than those glass tables people used to have in the Seventies, section 23 currently runs to 10 pages, but where else could you put it?]

Staying put arrangements

98 Arrangements for living with former foster parents after reaching adulthood

(1) The Children Act 1989 is amended as follows.

(2) After section 23C (continuing functions in respect of former relevant children)

insert—

“23CZA Arrangements for certain former relevant children to continue to live with former foster parents

(1) Each local authority in England have the duties provided for in subsection (3) in relation to a staying put arrangement.

(2) A “staying put arrangement” is an arrangement under which—

(a) a person who is a former relevant child by virtue of section

23C(1)(b), and

(b) a person (a “former foster parent”) who was the former relevant child’s local authority foster parent immediately before the former relevant child ceased to be looked after by the local authority, continue to live together after the former relevant child has ceased to be looked after.

(3) It is the duty of the local authority (in discharging the duties in section 23C(3) and by other means)—

(a) to monitor the staying put arrangement, and

(b) to provide advice, assistance and support to the former relevant child and the former foster parent with a view to maintaining the staying put arrangement.

(4) Support provided to the former foster parent under subsection (3)(b) must include financial support.

(5) Subsection (3)(b) does not apply if the local authority consider that the staying put arrangement is not consistent with the welfare of the former relevant child.

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Posted in children and families act 2014 and tagged children allowed to stay in foster care until 21, children and families act, foster care, foster carer, staying put arrangements. Bookmark the permalink.

An air of indifference

Posted on March 20, 2014 by suesspiciousminds

The High Court kicking ass and taking names in Re A (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/604.html

This involved a set of care proceedings in which the father was Latvian. For one reason or another, he did not get served with notice of the proceedings or get told that his child was in care or that he was entitled to be represented for FIVE months. That despite a series of orders being made that he was to be located and served.

The High Court understandably took a dim view of this

As far as I can establish orders made were not complied with. When the matter first came before me in September, I am afraid to say that there was an air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders.

The High Court gave some guidance on cases where one parent lives abroad, this being a more common feature in care proceedings

In cases such as this, where one or both of the parents lives abroad, the following action should be taken:

(1) At an early stage every effort should be made to locate, contact and engage a parent who lives abroad. If that other country is one of the signatories to B2R information as to the parent’s whereabouts can be obtained through an Article 55 request via the Central Authority. My experience is they respond effectively and efficiently to focused requests made;

(2) Once contacted the parties and, if necessary, the court should take active steps to secure legal representation for such parents. In this case nothing effective was done for five months. It took less than five hours at the hearing in September to contact the father and secure representation. Most solicitors who do this sort of work have a wealth of experience in undertaking work where one of the parties resides abroad. It is now a much more regular feature of this type of case;

(3) The court must effectively timetable any issues as to jurisdiction to avoid the delays that occurred in this case. This includes early consideration regarding transfer to the High Court. A party seeking written expert legal advice about the extent of this court’s jurisdiction as to habitual residence is not likely to be a helpful step. The question of jurisdiction is a matter to be determined by the court following submissions from the party’s legal representatives.

(4) There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking.

Ignore those at your peril. I imagine if you happen to be before this particular judge and haven’t followed these guidelines if the issue arises, that it might turn out to be a difficult day in Court. The retired manager of Manchester United was often described, when shouting at his players, to have given them ‘the hairdryer treatment’ – I suspect that would be putting it mildly. *

(* I note Charles J’s comments to the House of Lords committee looking at the Mental Capacity Act 2005 that writing a judgment on a deprivation of liberty case left him feeling like he had been in a washing machine on spin cycle)

At any rate, I don’t think that the judicial approach would be indifference.

Returning to the case itself, once the father was served, his application was that the case should be dealt with in Latvia.

His starting point was that the child was not habitually resident in England, but in Latvia when the proceedings started, so the English Court has no jurisdiction. His fallback position was that even if the English Court had jurisdiction, Latvia should be preferred under Brussels II

The father’s case was that the mother had taken the child out of Latvia and come to England without his consent, and that having not consented to that removal, it was an unlawful one

It is agreed in those circumstances that the removal of A was wrongful pursuant to Articles 3 and 5 of the Hague Convention, because he was habitually resident in Latvia prior to the removal. The father had rights of custody in respect of him under Latvian law under Articles 177 and 178, the father did not consent to his removal and the removal was in breach of his rights of custody which he was exercising or would have done but for the removal.

The mother claimed that the father had acquiesced in the removal

In determining acquiescence the House of Lords decision Re H (Abduction: Acquiescence) [1997] 1 FLR 872 is the leading authority setting out the factors that the court should take into account. They are summarised as follows: firstly, the question of whether the wronged parent has acquiesced in the removal or retention of a child depends on his actual state of mind; secondly, the subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent; thirdly, the trial judge in reaching his decision on that question of fact will, no doubt, be inclined to attach more weight to the contemporaneous words or actions of the wronged parent than to his bare assertions in evidence of his intentions; fourthly, the court should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted children and; fifthly, where the words or actions of the wronged parent had clearly and unequivocally shown or had led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and is inconsistent with such a return, justice requires that the wronged parent be held to have acquiesced.

The Court was satisfied that the father had been making efforts to locate the mother and the child, and had made applications to Courts in Latvia, this being compelling reasons to discount a suggestion that he had acquiesced to the removal.

The Court then looked at whether mother had demonstrated a defence to the abduction that would make it justifiable, and concluded that she had not, or whether there was now ‘settlement in England; and that there was not. (If you are fascinated about the law on abduction, there’s a lot of meaty information in this judgment, but it probably lies outside of the scope of non-specialists)

Thus, the child was wrongly removed from Latvia, that removal did not change residence, and the English Court had to order return of the child to Latvia, and any future proceedings would be in Latvia rather than England. The child had legally been habitually resident in Latvia (although was physically in England) at the time the proceedings began

For the reasons that I have already set out, I do not consider the father has acquiesced to the retention by the mother of A here and in the same way I do not consider he has acquiesced to A’s habitual residence here and in those circumstances Article 10 B2R applies and A’s habitual residence remains in Latvia.

So for those very brief reasons I am clear that at the time the proceedings were commenced in this jurisdiction A’s habitual residence was in Latvia and so this court, other than for the limited purposes under Article 20 B2R, does not have jurisdiction to determine the care proceedings.

In those circumstances A should be returned to Latvia and I will hear submissions from the parties as to the practical arrangements that need to be made.

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Posted in case law, international and tagged abduction, acquiesence to abduction, Article 15 of Brussels II, brussels ii, care proceedings with a parent who lives abroad, habitual residence, latvia, parent who lives abroad, re a 2014. Bookmark the permalink.

A gilded cage is still a cage (Lady Hale finally wins one!)

Posted on March 19, 2014 by suesspiciousminds

If you do Court of Protection work, you have probably been waiting for the Supreme Court’s decision in Cheshire West and Chester, which is here

http://www.bailii.org/uk/cases/UKSC/2014/19.html

The Supreme Court decided unanimously that P’s liberty was being deprived, and on a 4-3 split that MIG and MEG’s liberty was being deprived. [Yes, a 4-3 split in which Lady Hale finished on the winning side. A 4-3 split does, however indicate that the issues are difficult and that it wasn’t an easy decision or foregone conclusion – they also overturned the Court of Appeal on these two linked cases]

At the same time, they dismantled the Court of Appeal’s notion that a factual determination of whether someone’s liberty was being deprived was a subjective comparison with what would be reasonable to do for someone of similar characteristics. This is also, as far as I know, the first finalised deprivation of liberty decision applying to a person living in a foster placement rather than a care home or hospital.

If you do only care or children work, you’ve probably never heard of Cheshire West, or MIG and MEG, or possibly even DoLs; but just in case you think you can cheerfully ignore all of them, give me one paragraph of your time, to convince you that you ought to learn a bit about this case.

The President has issued guidance saying that Deprivation of Liberty applications don’t apply to children under 17 (he is right), and that if there is in a child’s case a deprivation of liberty issue then the mechanism is either detention under the Mental Health Act or an application for a Secure Accommodation Order. The Supreme Court here decided, on a 4-3 split, that what was happening to two young women (formerly children) in a foster care / residential home setting WAS a deprivation of liberty. And therefore, if this was happening to children in other cases, those other cases ought to be the subject of a Secure Accommodation application, or Mental Health Act intervention.

Children have historically been the subject of Secure Accommodation applications if they are absconding, or taking deliberate actions, but this case raises that if their liberty is being deprived as a result of their vulnerabilities or medical situation or functioning, that can still equate to a deprivation of liberty which needs to be sanctioned by the Court.

That is only the case if it is the State, or a limb of the State that is restricting the child’s liberty.

54. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

I come back to this at the very end of the piece, so if you really don’t care about Court of Protection work, you can skip to the bottom.

What sort of restrictions were being applied to those young women, and why? (I’ll call them MIG and MEG, as they were initially dubbed. This is interchanged in the judgment with P and Q, but because the Supreme Court were dealing with two cases interlinked “P” and “MIG and MEG” / “P and Q” I think it is confusing to have two separate “P” cases in the same discussion)

11. MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sister’s and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour.

At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her “mummy”). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication.

MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister.

The original Court of Protection hearing decided that what was happening was NOT a deprivation of liberty, and that any restrictions were for the best interests of MIG and MEG and were justified.

The Court of Appeal agreed: [2011] EWCA Civ 190 [2012] Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the “relative normality” of the sisters’ lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the “greater fulfilment in an environment more free than they had previously had” (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that “what may be a deprivation of liberty for one person may not be for another” (para 40).

That sentence lays at the heart of the two appeals to the Supreme Court. In the other case, involving an adult named P, the Supreme Court were unanimous that his liberty had been deprived.

P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Down’s syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the local authority.

Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to P’s family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one “waking” member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a “body suit” of all-in-one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication.

By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance” (para 59). Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty” (para 60). Nevertheless it was in his best interests for those arrangements to continue: [2011] EWHC 1330 (Fam).

That decision was reversed by the Court of Appeal

The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: [2011] EWCA Civ 1257, [2012] PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of “relative normality” adopted in P and Q, and considered it appropriate to compare P’s life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P” (para 120).

This concept of ‘relative normality’ or ‘what might be a deprivation of liberty for one person might not be for another’ really lays at the heart of these appeals to the Supreme Court. In essence, is whether someone is deprived of liberty an OBJECTIVE test, or a SUBJECTIVE test?

There is an excellent history of how the “deprivation of liberty” legislation came about in Lady Hale’s judgment, well worth a read.

There were a category of people who weren’t detained under the Mental Health Act, or under criminal legislation, but who were being effectively detained because they lacked the capacity to say “I want to leave” or that if they tried to leave weren’t allowed to do so.

This came to a head with a man named L, who took his case up to the House of Lords. R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458. He had been living with foster carers, became agitated one day at a day care centre and was taken off to hospital, and the carers were not able to get him out. If he HAD been detained under any legislation, then the carers would have had access to legal routes to challenge the decision, but were left in a grey area where they and L seemed to have no rights at all.

The majority decision of the House of Lords was that he had not been detained, and if he had been, it had been under the doctrine of necessity.

Lord Steyn disagreed, forcefully and said

“Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale.”

When the case went to the European Court of Human Rights, Lord Steyn was shown to be right, and went about his day without egg on his face.

The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL.

Key passages from the judgment are these:

“89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.

90. . . . . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . . . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.

91. . . . the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. . . .

Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court’s view, fairly described by Lord Steyn as ‘stretching credulity to breaking point’ and as a ‘fairy tale’.”

As a result, it became necessary for the UK to introduce a statutory mechanism to deal with people like L, and that mechanism was the deprivation of liberty powers within the Mental Capacity Act 2005

Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the person’s condition while a case is pending before the court.

Lady Hale goes on to say that the safeguards have the appearance of bewildering complexity (only the appearance?) and a few High Court Judges, notably Peter Jackson J have remarked in judgments that the law on deprivation of liberty has become so complex that nobody can understand it, least of all the relatives or carers of the vulnerable people who need to be safeguarded by it.

Let’s get on with the central argument

The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in P’s case appears to have thought that it is not, for he criticised the trial judge for failing to grapple with the

“question whether the limitations and restrictions on P’s life at Z house are anything more than the inevitable corollary of his various disabilities. The truth, surely, is they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. P’s life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker J’s phrase…, dictated by his disabilities and difficulties” (para 110).

This view has been confirmed by the rejection in Austin v United Kingdom (2012) 55 EHRR 14, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania (2013) 56 EHRR 11).

The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty.

To be honest, you can just assume that I am saying “hear hear” at most paragraph breaks from here on in. But hell yeah.

Allied to the “inevitable corollary” argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.

The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present-day conditions and continued:

“It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008).”

So, there isn’t a different test about whether someone’s liberty is being deprived because of the circumstances of that individual (that might go to the later question of whether the deprivation is justified or justifiable, but it is a straight factual decision – EVERYONE has the right not to be deprived of their liberty, and you don’t lose that right just because you are autistic or vulnerable in other ways. We certainly don’t compare sedating a vulnerable person and preventing them from leaving with putting a seatbelt on a wriggling child in the back of a car. (Or at least, we don’t any more, that comparison was made in one of these Deprivation of Liberty – DoLS cases)

Second question then, if deprivation of liberty is a factual question, what are the characteristics that decides whether someone is, or is not being deprived of their liberty?

The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.

…

In none of the more recent cases was the purpose of the confinement – which may well have been for the benefit of the person confined – considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46:

“I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . . . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified?”

ie, something doesn’t cease to be a deprivation of liberty just because there are good reasons for it – what you have there is a deprivation of liberty which is justified, and the Court can sanction it.

In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

For that reason, I would reject the “relative normality” approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading

P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their “concrete situation” on which we need to focus?

The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave” (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.

The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach

You are looking for – is a person under continuous supervision and control, are they free to leave.

It is NOT relevant that the person is complying or not objecting.

It is NOT relevant that a person in similar circumstances to this person would have the same sort of placement or restrictions

It is NOT relevant that the reason for the restrictions is to protect the person or that it is for their own good (that comes into the second stage – is the deprivation justifiable)

54. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

And on P

In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that “a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person’s care and movements” (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the person’s life, which in my view are not relevant factors. But when he considered the circumstances of P’s life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that P’s life was as normal as possible, but continued (para 59):

“On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.”

In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that “looked at overall, P is being deprived of his liberty” (para 60) should be restored.

And in conclusion Lady Hale says

Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.

As I said at the outset, the Supreme Court was unanimous that P’s liberty had been deprived, but were 4-3 split on MIG and MEG, the majority agreeing with Lady Hale that their liberty had been deprived.

The dissenting views were in very broad terms based on agreement with this proposition by Parker J in the original decision on MIG and MEG

107. “225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made.

226. In my view it is necessary to analyse what specific measures or restraints are in fact required. …”

And that

nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIG’s liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG.

I am aware, in conclusion, that I have devoted far more time to the majority judgment and lead judgment of Lady Hale than to the dissent; an analysis of the nuances between them is probably beyond the scope of this blog and I’ll leave it to specialists like Lucy Series over at The Small Places blog.

[Lucy hasn’t written on it yet, but can I refer you to this brilliant, stirring and beautiful piece on the House of Lords dissection of the MCA http://thesmallplaces.wordpress.com/2014/03/14/democracy-in-action/

I wish that I could write with an ounce of Lucy’s passion – she’s the sort of writer that makes me want to man the barricades. If, as the House of Lords hint, there should be some sort of monitoring/oversight/scrutiny/guidance body other than the Courts overseeing the MCA, Lucy should be on it ]

Plus, as I have not even attempted to disguise during this piece, I wholly agree with Lady Hale’s determination.

It may well be that there are far more people than the current 11,800 DoLs applications as a result of this decision. Well, so be it. For me, that is more people whose liberty is being deprived having the opportunity to challenge and test that before the Courts, rather than workers on the ground deciding that they aren’t being deprived of their liberty because the restrictions are right for ‘that sort of person’ and ‘for their own good’

Maybe the number of applications will break the system. Well, then the system needs to be broken and rebuilt. Because of the extreme vulnerability of people like P and MIG and MEG, we should err on the side of extreme caution when protecting their rights.

As to the children and secure accommodation orders approach, it might be worth noting Lord Kerr’s observations (this one of the majority judgments)

The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.

All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.

Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.

So in order to ascertain whether a deprivation of liberty is occurring you are looking at whether the restrictions being put on THIS child are comparable to that of another child of similar age – of course carers and parents put different restrictions on an 8 year old than a 15 year old, and it is nonsense to say that the 8 year old’s liberty is being deprived as a result of not having the same freedoms as a 15 year old. But if a particular 15 year old is having restrictions that are over and above what an average 15 year old might be allowed, then the question might arise. It is important to note that whilst Lord Kerr is tolerating a degree of subjectivity, he is not saying that the test is completely subjective – the comparator is an average child of this age, not a child who has the same sort of problems, or behaviours, or vulnerabilities of this child.

For example

Most 14 year olds wouldn’t be allowed to leave their home at 2.00am, so a foster carer doing the same won’t be depriving the child of their liberty.

Most 14 year olds have had the experience of being ‘grounded’ for bad behaviour and having a period of time in which they aren’t able to go out with their friends, or use the computer or similar, so a foster carer doing the same isn’t depriving a child of their liberty

However, most 14 year olds aren’t told that they can never leave the home except under adult supervision, or have their door locked at night, so that would be a deprivation of liberty if it happened to a child in foster care.

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Posted in case law, court of protection and tagged cheshire west, deprivation of liberty, lady hale, meg, mig, mig and meg, supreme court, what is the test for deprivation of liberty. Bookmark the permalink.

If you can’t do what you’re told, the Minister will take your role away from you

Posted on March 18, 2014 by suesspiciousminds

A bit more dissection of the Children and Families Act 2014 (or perhaps autopsy is a better word)

This is the provision in the Act, brought in without much fanfare, without pickets or protests, but it might end up being significant

section 4 of the CFA 2014 makes an amendment to the Adoption and Children Act 2002, giving the Secretary of State (that would be the Education Minister, i.e Michael Gove at present) the power to take the functions of the adoption agency away from a particular Local Authority and give those functions to another adoption agency. These powers kick in from 1st March 2015.

Well, that’s the stick to beat Local Authorities with when the adoption targets get published and they are not doing what Michael Gove wanted them to do. Given the upheaval in adoption law in 2013 which is still rippling through the system, it would be rather a surprise if the next batch of figures weren’t full of delays because of the volume of appeals and cases being adjourned and evidence resubmitted to avoid appeals. I think most people were expecting that at some point after the legal tables were publised, a Local Authority would be singled out and have their adoption agency functions taken off them.

What is rather more surprising is the next power, which will be a new section 3A (2) of the Adoption and Children Act 2002

The Secretary of State may by order require all local authorities in England to make arrangements for all or any of their functions within subsection (3) to be carried out on their behalf by one or more other adoption agencies.

(Subsection 3 set out that those functions are recuitment of adopters, assessment and approval of adopters, and matching of adopters to children. Please, anti-adoption campaigners, don’t get over excited and think that this means that the bit you really have a problem with – social workers being able to RECOMMEND adoption for a child and seek orders to achieve that, is going to be taken off social workers, it doesn’t mean that at all. This is about the bit that happens AFTER the Courts have made the orders, and relates to finding the right people to provide permanent homes for children)

If you have missed the significant word in s3A(2) it is ALL. The Secretary of State can, at any time after March 2015, with no parliamentary scrutiny or approval, decide that the assessment of adopters and matching of children with adopters won’t be done by Local Authorities any more, take it off all of them and give it to other adoption agencies.

That would be, presumably to independent Voluntary Adoption Agencies. There are around fifty of those in England – some are Catholic societies, some regional agencies and of course agencies like Barnardos. These organisations do a great job and fill a valuable role, and I am not knocking them or the quality of their work. But doing what they do, and doing it well, doesn’t mean that they are in a position to take ALL of the adoption work that is being done by individual Local Authorities at present.

And what do you do if you move it all over, disband all of the Local Authorities teams and staff and local knowledge and expertise, to deliver better stats, and the stats don’t get any better ?

(not that this would happen of course, because the private sector has a flawless record of taking over public sector functions and delivering them on time, to budget, with no loss of quality. IT projects, cleaning hospitals without incubating MRSA, building schools, private prisons, security for the Olympics, consultancy that states the bleeding obvious. I could name the companies who do such sterling work, but you can read about them for yourself in almost every edition of Private Eye)

There’s nothing said about the circumstances in which Michael Gove or his successors might exercise this massive power. Luckily we can take it as read that no Government Minister ever has, or ever would, take measures for political gain without serious regard for the consequences.

There’s nothing in the section about TUPE either – the general provision of TUPE is that if the functions transfer, so do the staff (this in very broad terms, I’m not an employment lawyer and would not attempt to give employment law advice). Not sure how that works if the Voluntary Adoption Agency (a term that I can already sense is making blood boil over in Monaco) is based three hundred miles away. There’s also nothing in there about procurement – if the Government is going to dish out juicy contracts for public sector work to a variety of private sector agencies, there has to be a proper tendering process for the distribution of those contracts, in line with European procurement rules.

Seems a bit odd to me that the Government boast in the press releases to the Act that it will speed up justice for children and allow decisions to be reached faster, but are only prepared to wait a year to see how those changes bed in and affect the pace at which children who the Courts have approved for adoption are being found places. Also slightly odd that the assessment of adoption support plans and management of those budgets isn’t included in the functions that would transfer over.

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Posted in adoption, children and families act 2014. Bookmark the permalink.

suesspiciousminds

Monthly Archives: March 2014

Terminating parental responsibility – the appeal

Go to Court on an egg

The Ofsted, and Action for Children research on neglect

What’s app Doc Crippen?

There is some corner of a foreign field that is forever not part of the Hague Convention

Foster to adopt

The Staying put arrangements (and a toast to not being a moaning minnie)

An air of indifference

A gilded cage is still a cage (Lady Hale finally wins one!)

If you can’t do what you’re told, the Minister will take your role away from you

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