Monthly Archives: March 2014

Midsomer night’s dream

[Just absolute nonsense – no law in it at all]

Ladies and gentlemen, this is my report on crime, and crime solving methodology within the last forty years. There will be surprising results for you within my research – it will challenge the way in which we fund and fight crime, and some of it may be unpalatable for you to hear.  I have been brought to this hotbed of crime to see if what can only be described as a tidal wave of slayings can be reversed. With my help, ladies and gentlemen of Midsomer, it can.

In the 1970s – there were two major types of crime. Murder, which was dealt with by what we think of as traditional police work – interviewing suspects, gathering evidence, following leads and eventual arrest. The second type of crime, equally prevalent, was committed by perpetrators disguising themselves as ghosts – usually in order to scare people away from visiting a funfair so that they could buy the land cheaply or to frighten people away from an abandoned mine so that the proceeds of a robbery could be recovered. Ghost-related crime proved extremely resistant to traditional policing methods.

In fact, during the entireity of the 1970s, not a single arrest was made by a uniformed police officer – either here, in the United States, or in England.

A different approach was required, and so investment was made into the assembly of unorthodox units – staffed not by trained investigators but by teenagers – one of whom would be very attractive but contribute little , and with the smartest person being rather plain. This group dyamic worked far better in practice than groups where all of the teenagers were bright and useful. The other key element in successful ghost-related crime-solving was that the group be accompanied  by some sort of animal.

Those results were startling. Arrest levels for ghost-related crime went through the roof. These teenagers and an animal sort of thing made in-roads into ghost crime that ordinary police forces simply weren’t able to deal with.

Their names will be known to many of you involved in criminology or law enforcement, usually by way of the animal-thing who tended to grab most of the media attention – Scooby Doo, Goober and the Ghost Grabbers, the New Smoo, Fangface – there are many more.  They were so successful that by the mid-80s, funding was withdrawn, it being believed that the ghost-crime menace had been defeated.

Now what we have, instead of teenagers and a goofy sidekick are crack teams of scientists or forensic psychologists, or criminal profilers – working in groups of six or seven, with no animal sidekicks. And what they end up dealing with are multiple murders with sick twisted elements, killers who have unfathomable motives and a methodology that always seems far more trouble than it is worth.  Invariably, these murders are solved by establishing that the killer is a short-order chef, who collects Lego, and whose mother was killed by a bee-sting, and then this data is put into a computer and a list of one suspect arrived at.

My research shows that these crimes are WORSE than scaring away people from a funfair by dressing as an old civil-war infantryman with luminous paint on your clothes. By re-establishing zero tolerance on ghost-crimes, which are a gateway to these more heinous crimes, we could substantially improve people’s quality of life and reduce the chance of them being butchered and then turned into a Lego Bee or something.

We know, it is tried and tested that maverick pairs of police officers – who have nothing in common, are almost opposites and who fight like cat and dog are many many times more effective than trained, thoughtful methodical officers working in harmony. This approach reaped huge dividends throughout the United States, but came to a halt following a little known, but deeply unsuccessful attempt to pair Robin Williams on coke, with Dustin Hoffman on Quaaludes as  “The Extrovert and the Introvert”  – although arrests were made, multiple lawsuits arose from suspects who claimed that they had been ‘deeply freaked out’ by the process.

We also know that whilst the average police investigation is slow and time-consuming, any maverick detective given twenty-four hours to solve the case will achieve that desired result. This “Twenty-four hours or you’re off the case” efficiency drive ended up being overused, with one Chicago police department issuing the demand for every case, including minor office stationery thefts and the entire police department was then left with nothing to do until crime built up again.

But as with so many of these bold initiatives – the baby is thrown out with the bathwater when the scheme is abandoned.

Why, I have learned that police in Baltimore recently spent FIVE years investigating some drug lords, making less than six arrests in that whole time. The entire case could have been wrapped up in twenty four hours, if only the simple “I’m taking you off the case” management technique had been deployed.

Case study 1

In the 1980s, in Hawaii, a bold experiment was attempted. All police officers were laid off and the entire island’s crime prevention unit was placed in the hands – or rather, moustache of one man, Thomas Magnum. During the 1980s, every crime in Hawaii was solved by Mr Magnum – this covering murders, robberies and the fairly common kidnapping of foreign princesses or movie stars. The initial outlay of capital was heavy, yes. Multiple redundancy packages to existing police officers, huge increase in unemployment benefit, investment in a mansion, a Ferrari and a helicopter.

The start up costs are what made most other parts of America fail to take up the Magnum model  (although Los Angeles attempted a similar venture outsourcing all of their kidnapping of foreign princesses or movie star cases to a washed-up stuntman. His travel expenses eventually led to the suspension of the experiment) .  If they had carried on, however, that capital expenditure would have easily been recouped in the annual savings of not employing lots and lots of police man to do the work of one moustached detective.

Fact, ladies and gentlemen – since Thomas Magnum was laid off, there was a twenty year period where NO criminals were caught in Hawaii at all.  (This desperate pattern has been ended by the employment of Steve McGarratt’s grandson or something to form a crack Hawaii 5-0 investigation team – it is anticipated that this programme will be cancelled fairly soon. The lack of moustache makes it an inevitable failure)

Moustaches solve murders. FACT.

Case study 2

Again in the 1980s, five hundred and nine murders were solved by one single woman. Not a cop, not a private investigator. Just an old woman, a writer of mystery novels, who solved murders that happened at social events that she was invited too. The State did not have to pay her a dime for solving any of these crimes, making Jessica Fletcher by far and away the most cost-effective law enforcement operative in history. Some might say that although those 509 murders were solved, no convictions resulted – the jury returning not guilty pleas on the basis that they couldn’t understand how the accused was supposed to have done it.

Others might point to the book that Ms Fletcher published, entitled “If I did it” which explained that she was a psychopathic killer who had murdered all 509 people and set up other people for the crime without ever once having been suspected, but as Ms Fletcher said with a twinkle in her eye, this was merely a hypothetical and fictional account of how she could have done it rather than a confession.

Codgers crack cases. Demonstrable FACT.

Case study 3

The county of Midsomer in England currently accounts for 98% of homicides in the UK, yet their police force consists of just two officers and occasional input from a dog, Sykes.  Midsomer now has a higher murder per capita rate than Detroit, Washington DC – in fact the only place that has a higher murder per capita rate is a prison for Russian mobsters where there was a short-lived experiment to set the prisoners to work making knives. Property prices are dwindling – once a week, three houses become available because the owners have been killed, and nobody wants to move in because of the high probability that they will be murdered.

This cannot go on.

Solution

Part of the solution for Midsomer’s problems is already in place. I of course refer to Sykes the dog.  He will be the cornerstone of Midsomer’s new approach. A pretty teenage girl will be appointed to the investigation team. She will have a plain friend who will be a computer whizzkid, who will do internet searches for “Hang-gliding enthusiasts who are allergic to lamb bhuna and just bought some patio furniture” quicker than any ordinary human could actually type that sentence. The junior detective will grow a moustache or be replaced by someone else who will. The senior detective will rigorously enforce the “Twenty four hours or you’re off the case” technique.

There will be a zero-tolerance approach to ghost-related crime. The sale of luminous paint within Midsomer will be prohibited and the full force of the law will come down on any miscreant who dresses up as a haunted deep sea diver in order to get the biscuit factory for themselves.

The final piece of the puzzle will be to recruit a local pensioner, ideally one who talks too much and seems to ramble on and on about nothing and then look perplexed once an hour saying something like “Oh dear, an egg-whisk – how could I have been so foolish as to miss that?”

[In the event that the old woman HAS a moustache, the junior detective at Midsomer can be laid off. Therefore, sales of Immac or other hair-removal products is banned to anyone over sixty-five in Midsomer ]

If these methods do not work, we know that getting all of the suspects into a room* and having a long rambling conversation where each person is almost accused in turn has a high success rate. That should be what happens in the 24th hour, if the case is not solved by then.  [*none of these suspects will bring a lawyer, or give a no comment interview, or even decline to attend the gathering]

My apologies for  (a) nonsense (b) lack of the powerpoint style pie charts and bar graphs that were in my mind when I thought of this nonsense and  (c) that the lecturer can’t quite decide whether he is English or American with some of his turns of phrase.  In fact, I’m just sorry overall for the whole thing.

Another C-section case

I know that these Court of Protection decisions, authorising a hospital to undertake interventions / treatment without a patient’s consent are of interest to my readers, following on from the case with the Italian mother that attracted considerable notoriety in December 2013.

This one, Re P 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/4581.html

once again involved a mother said to have mental health problems (rather than say a learning difficulty) . The media were present, and save for being able to identify the mother or the Trust, the Judge was amenable to the details of the case being made public.

If you aren’t aware, there is broadly a two stage test – firstly does the patient have capacity to take the decision for themselves (and if they do, they are entitled to make a decision which flies in the face of medical advice or even common sense) – and secondly, if not, the Judge has to apply a best interests decision – taking into account all of the circumstances and what is known about their wishes, what is in the patient’s best interests.

As a matter of particular interest in this case, the Judge raised an issue which I have debated with people before. As you may be aware, the ‘best interests’ decision relates to the patient themselves, not in the health of the child. Unlike Children Act cases where the child’s welfare is paramount, the unborn child has no legal rights to take into account. The decided C-section cases have always been that the operation avoids a risk to the mother’s health as a result of her medical situation, and the fact that a C-section might be the safest way for the child to be born has not, thus far come into the decision-making process.

The debate therefore is whether, when taking into account the mother’s best interests, one can take into account that it would be in her best interests and in accordance with her wishes if the baby were to be delivered safely and well – this being something that any mother would want for her baby.

The Judge decided that it absolutely could be taken into account.

Next, there is no doubt at all that it would be in the best interests of Mrs. P for her baby to be safely delivered. The court cannot be concerned with the interests of the unborn child, but can, and does, have regard to the extremely adverse effect on Mrs. P if unnecessarily her child was not born safely or was born with some avoidable disability as a result of a lack of obstetric care which might have been given. Furthermore, the proposal that the Trust makes offers the best chance of a secure labour and delivery for Mrs. P if it is approached in a planned way rather than awaiting the chance moment.

 

Therefore, although this decision was taken primarily on health grounds for the mother, the door is possibly opened in another case for the decision to be primarily about safely delivering the child.

The other aspects of this case were 1) that the mother was not merely not consenting to the operation (although she did not have capacity to consent), but actively hostile to it. And that was a factor that had to be taken into account when deciding the best interests element and 2) that at the time of the application the mother was described as being calm and lucid, so the declaration sought was to ensure that if things deteriorated during labour, the hospital could take action.

  The current situation is that Mrs. P is in hospital awaiting the arrival of her baby. She is relatively calm and accepting of the idea of being induced as described. However, that may change if she was to become agitated during her labour, as she has been in the recent past. There is a good chance that she will be able to give birth by normal means. That is the outcome which everybody hopes for. However, if that does not happen it is said, and I so find, to be in her interests for emergency measures to be taken for the benefit of her physical and mental health by means, as a last resort, of a Caesarean section.

It might be helpful, given that the reported cases on C-section are somewhat slight on guidance over and above the standard Mental Capacity Act tests, and the St Georges case (suggesting that the patient also ought to be helped by the Hospital to develop understanding to make an informed decision) predates the Mental Capacity Act for one of these cases to be appealed in the future. There’s perhaps not enough weight at present in these judgments as to the nature of the act being authorised and its invasiveness and any sort of  guidance as to how serious the health risks ought to be before one performs the operation on a person who is not in a position to agree to it as a result of mental illness.

(Of course, the reality of these applications are that they are done swiftly, often as an emergency, and that after the C-section is performed, it can’t exactly be undone, so a later appeal is more academic than practical)

Warren v CARE 2014

In this case, the High Court decided that the right to private and family life, including the right to start a family in the future, for Ms Warren overrode the strict legal requirements of the Regulations governing freezing of gametes.

Click to access warren-judgment.pdf

It was a very sad case – Ms Warren’s partner, Mr Brewer became unwell in 2005 and a treatment of radiotherapy was decided upon. Because of the risks that this treatment could affect fertility, discussions took place and Mr Brewer and Ms Warren made the informed decision that they would both want Ms Warren to have the opportunity in the future, even if Mr Brewer were to die, to have the ability to have his child, and thus gamete samples were taken and frozen.

 

Ms Warren had a series of awful life events, culminating in Mr Brewer’s death in 2012. She had, very understandably, not elected to become pregnant whilst all of these awful events were occurring.

As a result of a chain of paperwork and consents, the situation arises where in accordance with the Regulations governing the freezing of gametes, the gametes would need to be destroyed by April 2015. Ms Warren wanted to keep them for longer, to have the time to grieve properly before starting a family.

This is why the law is problematic

s14 HFEA 1990 states that gametes shall not be kept in storage for longer than the statutory storage period and if stored at the end of that period shall be allowed to perish – the statuory storage period s14(3) is ten years OR a shorter period OR if specified by Regulations a longer period.

The Human Fertilisation and Embryology (Statutory Storage Period for  Embryos and Gametes) Regulations 2009 give the circumstances in which that period can be longer, and one of the requirements is that the donor has consented in writing to the storage period being longer than ten years  (the maximum is fifty five years).

Although Mr Brewer had signed oodles of paperwork consenting to the storage of his gametes what he had NOT been asked to sign was anything indicating that he was consenting to them being kept for longer than ten years. There is very little doubt, and the Judge was comfortably satisfied that if he HAD been asked to sign such a consent he would have done so – it was an omission, but not his fault. It just wasn’t an option he was asked or invited to consider in the Clinic’s paperwork.

So, what was left was either strict adherence to the law and the Regulations – or, as Ms Warren urged, the Court to determine that in this situation the Regulations were not compatible with her right to private and family life and in interpreting the law to do so in a way that WAS compatible with those rights.

It was plain that allowing the sample to be kept had no adverse effect on anyone, but strict adherence to the Regulations would rob Ms Warren of the chance to have the child that she and Mr Brewer had wanted.  The Judge was also satisfied that the Clinic had taken steps to ensure that their paperwork for any future cases had remedied the deficiency and that this was not a floodgate case but either a unique or very rare situation and that declaring that the Clinic could and should keep the samples for a total of 55 years was the right thing to do.

A tip of the hat also to Miss Jenni Richards QC and Catherine Dobson, junior counsel, who both represented Ms Warren and supported her through this difficult process, doing so entirely free of charge.

 

Concessions and fact-finding

The High Court dealt with these issues in a case called Re AS (A child) 2014.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/606.html

There was to have been an 8 day finding of fact hearing. The central allegation was that the child who was six, had been given excessive doses of insulin, causing him to become very unwell.  Although he had diabetes, his condition and situation had been made worse by this over-medication, and therefore this was a case of Fabricated or Induced Illness.

It was also noteworthy that the mother had told the child, and many other people, that she herself had cancer, when it was clear from her medical records that she did not.

Before the finding of fact hearing began, mother’s legal team talked to her – what is said is obviously confidential, but the end result is that the Judge was told that mother did not make any admissions that she had administered the excessive doses of insulin to her son, but accepted that it was inevitable that at the conclusion of the finding of fact hearing that those adverse findings would be made against her, and thus if certain amendments were made to the Local Authority threshold document, there would be no challenge to the Judge making findings in accordance with that threshold document.

That’s quite a nuanced position, since mother was not making any admissions but simply accepting that the findings were inevitable and not wanting to put everyone through an 8 day process to end up at that result. It is also quite a smart way of avoiding the self-incrimination issue that I’ve previously blogged about, whereby if there were any criminal proceedings being considered the admissions if any made might end up being used in criminal trial as inconsistent statements.

The Judge obviously mulled over this position – on the one hand,mother was making no admissions , on the other there was the need to be proportionate given that the threshold was not actually challenged.

(a) I have read the papers in this case in great detail. I have formed exactly the same view as Ms Henke and Ms Japheth, namely that it was inevitable that I would find, on the balance of probabilities,, that the threshold criteria were established for the reasons given by the Local Authority and, in particular, that I would have concluded that there was induced illness in relation to AS by the Mother secretly giving AS excessive dosages of insulin. At this stage, I do not know why she did so. This will be a matter for the welfare hearing that is fixed for May.

(b) The binary system adopted in this jurisdiction means that my findings become a fact. In other words, it would no longer be open to the Mother to challenge those findings. The case would proceed on the basis that this is what happened. The assessment I have already ordered by Professor A Mortimer, Consultant Adult Psychiatrist will be conducted on the basis that the Mother has indeed induced illness in AS, which was, of course, extremely serious and potentially life threatening. The Mother understands and accepts this.

(c) I have already noted that the Mother has not been able to bring herself to admit to me that she did this. I wondered for a time whether it was therefore necessary for me to conduct a fact finding after all but I concluded that counsel were right when they said I did not need to do so. The Mother is prepared to accept today that I will make the same findings as I would have made if I had heard evidence over eight days. There seems absolutely no purpose therefore in doing so. I have to remember the overriding objective of dealing with cases justly. This includes ensuring that the case is dealt with expeditiously and fairly in a way that is proportionate. I must also consider the need to save expense. I cannot see that it would have served any useful purpose to proceed with a very emotionally draining hearing, which would inevitably have caused immense unnecessary distress to the Mother. I am quite sure there would be no material advantage in doing so as the findings of fact I would have made after a contested hearing would have been exactly the same as the ones I make now. I therefore approve unreservedly the course of action urged upon me.

(d) The fact that the Local Authority has proved its threshold document does not mean that there will inevitably be a final care order. I will have to consider that issue in May, acting on the basis of what is in the best interests of AS.

(e) Finally, I do accept that it has taken considerable courage for the Mother to accept the inevitability of my finding of induced illness. I have already indicated that I am sure she was right to do so. It follows that I commend her for the position she has adopted and confirm that the advice she has received was undoubtedly correct. She is to be praised for having accepted it and taken what I entirely accept will have been a very difficult decision for her.

surrogacy – be warned, charging to draw up an agreement is a crime

 

Re JP v LP and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/595.html

in which the High Court deal with a surrogacy arrangement that went wrong. As I’ve suggested in the past how important it is, if you are creating a baby in a slightly unorthodox way that all adults involved are clear about what they all intend, and ideally get it down in writing.

In this case, the adults HAD done that, and had a surrogacy arrangement reduced into a legal document intended to be binding. Mrs Justice King points out that in charging for that document to be drawn up, the solicitor was committing a criminal offence.

    1. The parties agreed and an agreement was prepared by a firm of Birmingham solicitors. The solicitors were in fact committing a criminal offence as, whilst such agreements can lawfully be drawn up free of charge, the solicitors in preparing and charging for the preparation of the agreement were negotiating surrogacy arrangements on a commercial basis‘ in contravention of section 2 of the Surrogacy Arrangements Act 1985 which says :

 

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;

and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

(2) A person who contravenes subsection (1) above is guilty of an offence;

Worse than that (for the adults, not the solicitor) was the fact that under s36(1) Surrogacy Arrangements Act 1985 surrogacy arrangements are not enforceable by law. So a document was drawn up and charged for that had no legal status, and the solicitor doing it was unwittingly committing a crime.

So, lesson number one is that if you are a solicitor and someone seeks advice about a surrogacy agreement, you’re either doing it pro-bono or you’re potentially committing a crime.  And if you are doing it pro-bono, then the document is only really going to be any use as a statement of people’s intentions BEFORE the birth. Once the baby is born, all bets are off.  The fact that a biological mother agrees to have a baby and hand it over and puts that in writing doesn’t mean that she can’t when the baby is born just say “Sorry, changed my mind, I’m keeping the baby – and the ‘expenses’ that you gave me”

    1. Notwithstanding that a surrogacy arrangement may have taken place outside the structure of the HFEA 2008, The act itself nevertheless spells out the legal effect of such an informal arrangement:

 

(i) The surrogate mother having carried a child following assisted reproduction ‘and no other woman’, is the child’s legal mother s33(1) HFEA 2008. This remains the case unless the child is subsequently adopted or parenthood transferred through a parental order. Absent adoption or a parental order she has and retains parental responsibility.

(ii) The father is the genetic and social father of CP

The surrogate mother was not married section 35 HFEA 2008) and was neither treated in a UK Licensed clinic, she was not in the category of relationship which would satisfy the so called ‘Fathership’ conditions’ (s37 HFEA 2008) which relationships could otherwise have the effect of making the husband/partner of the surrogate mother the legal father in place of the genetic father.

(iii) The mother, absent legal intervention, has no status other than the emotional and social status of being CP’s psychological mother. Crucially she does not have parental responsibility, she cannot therefore give consent to medical treatment, register CP for a school or take a myriad of decisions in relation to CP which parents routinely do without a thought as to whether or not they have the authority so to do.

Little boxes and the ark of the covenant

As part of the continuing desire to standardise everything, and a belief that any problem can be solved if only there is enough written guidance, practice directions, policy frameworks and standard documents, there is a proposed model for the initial social work statement.

I am not sure why it is that there is a belief that one can collapse the diversity and detail of families into one standardised little-boxes pro-forma, as though all parents and children were Lego figures rather than individuals with hopes and fears, dreams and disappointments, struggles and triumphs.  If you have read any of the cases in my blog over the last two years, you will see that the Family Courts deal with surprising and intricate things, that people can end up in situations or predicaments that no person could anticpate and cater for in a standard document.  Structure, yes, guidance to avoid jargon and verbosity and sloppy attention to the difference between evidence and assertion – all good things. But don’t try to make a pro-forma that fits every case. It just isn’t do-able.

[I’m not entirely neutral on this point, I have to confess]

This one has been put together by the Association of Directors of Children’s Services.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/279212/Annexes_to_statutory_guidance.docx

I don’t want to be unkind.  (I should just end the blog there to be honest). Apologies if you, or your friend, or your cousin was one of those people. I’m afraid that I don’t like it. Others may differ from my opinion – I may just be one loud-mouthed jerk, after all. Don’t take it to heart.  Honestly, stop reading right now. There is a really nice you-tube thing of ducklings on a waterslide – go and find that, it will cheer your heart.

In a Solution-Focused-Therapy style, let’s try to say something nice  “What were you pleased with?”

Well, people have clearly worked very hard on it.

Not necessarily the right people, but people have obviously worked very hard on it.

This version is actually worse than the first version of it, which takes some doing. It is also worse than the standardised model laid out in the revised PLO. A sentence I never thought that I’d type – I prefer the version in the new PLO document.

It is packed full of everything that is worse about design by committee – it is little boxes galore, it is reductionist, it assumes that everyone who will be writing the document is a moron incapable of independent thought without being led by the nose to the next little box to complete. The process of reading it is offensive to your eyes. It doesn’t include a Welfare Checklist. (I mean, the Act gives everyone a specific tool for analysis, is it too much to ask that this tool would be a centrepiece of the evidence produced?) It makes the Core Assessment look gorgeous and inspirational (this is some feat)

My actual reaction to this, when I opened it up and read it was…. well, do you remember the bit at the end of Raiders of the Lost Ark, where the nazi’s open the ark and one of the chief bad guys has his face melt off whilst screaming? Sort of that.

It’s the sort of thing that when you read it, you wonder who it is supposed to help? The workers writing it? Clearly not. The parents reading it? No way. The Judges? I’d be amazed if any Judge would prefer this cumbersome little-box form (that at one point tries to encapsulate all of the issues and thought processes around contact into a six column table) to a considered narrative document.  So, other than the designers of whatever computer programme will standardise this onto every social work computer in England, who is it FOR?

I think, comparing it to Lucy Reed’s suggested pro-forma for social work assessment, which was intended to be a nasty satire – I think Lucy’s is more rigorous as a document.

Family Justice Modernisation Programme Update No. Nine and Three Quarters

 

This document, however, it at the moment still just a consultation (which means that it is inevitable unless people who will be writing them, reading them, trying to explain them to parents speak out and say how ghastly and unfit for purpose it is – OR of course if you disagree with me, you should tell them that too)

https://www.education.gov.uk/consultations/index.cfm?action=consultationDetails&consultationId=1949&external=no&menu=1

Consultation ends 26th March.

If you can’t manage a long and detailed response, just send them this link.