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A tale of two Telegraphs

 

Two recent stories in the Telegraph about Court cases.

 

The first, here

 

http://www.telegraph.co.uk/comment/11412971/Why-dont-the-family-courts-obey-the-law.htmlr

 

is from a writer that you all know Christopher Booker.

 

Mr Booker’s story here is that a mother in care proceedings lost her child at an interim stage because of ‘one small bruise’ and was not allowed into the Court room during most of the hearings, and that this was because of their lawyers.

 

On a court order, the two boys were taken into care, and over the following months, through several court hearings from which the parents were excluded by their lawyers

 

Last April, the couple were summoned to a final hearing to decide their sons’ future. The mother was represented by lawyers she had been given by Women’s Aid, which works closely with the local authority. As an intelligent woman, studying for a university degree, she and her partner arrived early at the court, for what was scheduled to be a five-day hearing. They were armed with files of evidence and a list of witnesses they wished to call, all of which they believed would demolish the local authority’s case.

But the mother describes how they were astonished to be told by their lawyers that again they would not be permitted to enter the court. Half an hour later, the barristers emerged to say that the judge had decided that their two boys should be placed for adoption. There was no judgment for them to see, and no possibility of any appeal against his decision. This Wednesday the couple will have a final “goodbye session” with their sons, never to see them again.

 

 

Mr Booker names His Honour Judge Jones as the judge behind this story. [He doesn’t quite give him that courtesy, instead assuming that he is on first name terms with a Judge who he’s about to rip apart in a national newspaper]

 

Now, there are two distinct possibilities here.

 

  1. Everything that Mr Booker reports here is true.
  2. What Mr Booker reports is not what happened and something has gotten lost in the telling of the story.

 

As ever with Mr Booker, he doesn’t make it explicit that there’s a single source for his story, but I can’t see a second source anywhere. Now, that doesn’t mean that it won’t turn out to be true, but I’d feel happier when dealing with extraordinary claims to see confirmation of the story from more than one source.

 

We simply don’t know until we see the judgment from His Honour Judge Jones. In fact, if the latter of those two possibilities is true, we may not even recognise the judgment as relating to this case at all.

 

It would be utterly wrong, and utterly appealable, for a Judge to make an Interim Care Order removing a child from parents without letting them into the court-room, and utterly wrong, and utterly appealable for a Judge to make a Care Order and Placement Order without allowing the parents into the Court room and allowing them to have their opportunity to fight the case if they wished to. If this happened, it would be tremendously wrong.

 

If what Mr Booker says is what actually happened, then he is utterly right to rage against it and I would join him in his rage. If I was a betting man, my money would be on the second possibility, and that he has not been given a full and complete account of what happened.

 

HOWEVER, and I will be absolutely fair to him, if he had told the story of the case before HH J Dodds where the parties attended the first hearing and the Judge made three Care Orders in a five minute hearing, I would not have believed that either, and Mr Booker would have been right and I would have been wrong.

 

I would have said so had that happened. He is also right to draw attention to that Court of Appeal decision about HH J Dodds, and it does highlight that sometimes things happen in Courts that fly in the face of everything you believe and that really unfair things can happen to people. If it happens to you, it is small consolation that it is rare and shouldn’t happen, it must be utterly devastating. Some of the people who come to Mr Booker, or any of the other campaigners, are coming with completely truthful accounts of dreadful injustice, and it is important that they have somewhere to turn, someone who will listen to them.

 

As George Orwell said – We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.

 

And although I’m not asserting that Mr Booker or any of the campaigning groups are either rough men, or would be willing to visit violence on anyone, you hopefully get the general thrust of the point. In being willing to listen to the stories of injustice that people tell them, they provide a mechanism for injustice to come to light, and that is an important thing.

 

I hope that Mr Booker is wrong here, but I accept that he could be right, and if he is, it is important that people hear of it.

 

Sometimes Judges do behave in appalling ways. Sometimes social workers do too. So sometimes, the sort of stuff that Mr Booker rages about does happen, and when it does, he is right to be bloody cross. Even if I think that sometimes Mr Booker is the boy who cries wolf, there are wolves in the world, and that boy was eventually right.

 

If and when I see a case from HH Judge Jones that relates to Care Orders, involving Denbighshire Social Services, two boys and a bruise, I will update you. Perhaps Mr Booker is right. If he is, it is a scandal and I will commend him for bringing it to light. If he is mistaken, then no doubt there will be a correction and an apology, not least to a Judge who has been accused of acting in a way that would make anyone reading it think much less of him.

 

 

[Here is an idea, which I’m sure won’t be taken up – if a parent comes to a journalist with a story that sounds extraordinary about the way they were treated in Court, get the parent to sign an authority allowing the journalist to approach the solicitor representing them, and for the solicitor to read the proposed article and tell the journalist whether that’s an accurate depiction of what really happened, or if the facts have got a bit mixed up]

 

 

Second case

 

http://www.telegraph.co.uk/news/health/news/11412861/Judge-refuses-mothers-plea-to-treat-terminally-ill-son-saying-he-should-be-allowed-to-die.html

 

In which Mrs Justice Hogg, sitting in the Court of Protection made a declaration that the hospital could lawfully stop treating an 18 year old with a brain tumour, even though that withdrawal of treatment would end his life and his parents were arguing that the treatment should continue.

 

Now, this is a story which feels much more solid. It is easier to believe when reading it that what it says happens is what happened. (Booker’s story may well turn out to be true, but it has question marks over it that this one does not)

 

The hearing was in public, which makes it a lot easier for a reporter to put out a strong story with sources – in this case, there are quotations from the judgment and comments from both sides, and the report gives the sense of what a difficult decision this must be either way. It also has the sense of being the sort of thing that happens in the Court of Protection – these are the sort of decisions that have to be taken, the evidence heard and issues raised are consistent with the way one might imagine such a hearing to take place.

 

Again, until we get the judgment, it is difficult to analyse whether the Judge was right or wrong in making that decision – we simply don’t have enough of the key pieces of information or to see how the Judge balanced the competing arguments. So when it comes up, I will share it with you, and we can have the debate – hopefully it won’t be long.

 

It is hard not to have an emotional response however, and my sympathies on an emotional level are with the parents. I don’t think there tend to be many such decisions that go with the heart rather than the head (or with the parents rather than the medics) and I tend to think that the wishes of the family ought to carry rather more weight than they often seem to at the moment, as an overall criticism of these decisions rather than saying that the Judge in this particular case got it wrong.

 

It will be interesting to see how the Judge dealt with the right to life issue, article 2 being something that binds the Court as a public body, and that being an unqualified right. There are previous decisions which do sanction this withdrawal of treatment, largely connected to the right to die with dignity

 

It does make me somewhat uncomfortable that where a family want that for a person it is generally resisted, but when the medics want it and the family oppose it, it generally happens. Is the judiciary too deferential to the views of medical professionals? That’s a much wider debate.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

14 responses

  1. Like you, I await with interest further details on the first case. However, I remember going to court with a client who expected to be called to give evidence. Her solicitor returned after a short time with the information that a decision had been made, and our client had been present at none of the hearing. – she told me that this had happened before. I have been told by various sources that this was not unusual in that particular court. Does this happen more in some courts than others? How often does it happen? Does anyone know?

  2. A case very similar came in to me last night. Two children under care orders and mum has another baby taken at birth and then hears nothing she says. Suddenly now she gets a Leave to Oppose form from the court. All the solicitor will say is that her baby is adopted.

    I have had similar situations over the years. However unlikely it seems, it could be plausible.

  3. But nobody is blaming the judge who seems to have been been excellent in the other case mentioned by Christopher Booker.The blame rests entirely with the devious lawyers who blocked their clients from the court! (maybe to avoid the parents meeting judge jones who seems to havve been sympathetic to parents in the other case mentioned) You are right Suespicious to say judges will very very rarely exclude parents but solicitors and barristers cooperating with their opposite numbers acting for the local authority do this very frequently . I have had several cases where this has happened but to date I have never once come across a case where a judge has blocked parents from the court.

  4. Regarding your comments about the possible imbalance between doctors and patients-or their relatives- in decisions about care: I recently commented on this on the ‘forced caesarean’ cases. You may be interested in the much earlier case of a woman who became tetraplegic as a result of devastating illness. She did not wish to live, and sued the Hospital Trust because of its refusal to remove her from the ventilator: the judgement has some rather hair raising passages (see, in particular para 98) about how well-meaning and dedicated clinicians can blind themselves to the needs of the patient, and prioritise their own feelings to the extent where they would propose to inflict suffering on her to make themselves feel better. The patient won her case:

    http://www.bailii.org/ew/cases/EWHC/Fam/2002/429.html

    That was 13 years ago: I should balance this by noting that hospitals do now in general tackle things much better; ethics are part of every doctor’s training, and an essential part of good practise. The sort of paternalism demonstrated in Ms B’s case is no longer endemic in the medical profession.

    Fortunately, and unfortunately, science has moved on; it’s possible to keep patients alive who certainly would have died 5 years ago. What most people do not realise that life in a modern ICU is not a benign process; it’s an exaggeration to call it hell, but it’s not far off. The infliction of such suffering can only be morally justified where there is a realistic prospect of the patient regaining some quality of life at the end of it. Equally, cardiopulmonary resuscitation is a brutal process; I should, perhaps, explain that my daughter is a Medical Registrar whose duties include leading the resuscitation team. I’m drawing on her experience; it isn’t the way it looks on TV, and research shows it’s rarely successful

    The teenager referred to in the Telegraph article has undergone repeated neurosurgery and courses of chemotherapy, which in itself is a horrendous experience, and his surgeons and doctors now believe that enough is enough, and that they should concentrate on easing his suffering; his parents are clinging to hope and want them to continue.

    It might be helpful to bear in mind that neurosurgeons frequently refuse to operate; one did so today, to me. Having emerged from hospital following intravenous therapy for an incurable lung disease, less than a week later I found myself in the A&E in very considerable pain; the MRI scan showed two discs in my spine have been displaced. The neurosurgeon explained that I would be very likely to die if she operated, for reasons she explained, and I agreed that it was a very bad idea.

    Even if I had thought it was a wonderful idea I could not have forced her, or any other neurosurgeon, to operate when objectively it is not in my best interests; fighting my corner is not the same as imposing my will on my doctors. Equally, my doctors cannot impose their will on me; provided I have capacity I can decline treatment for any, or no, reason.

    So, whilst I continue to have reservations about the imbalance of influence on the Courts, I think we need to ground it on comparisons of outcome. It would be an interesting research project for some enthusiastic person…

  5. Further to my comments above about I recall an end of life case of a very little boy:

    “These proceedings arise from a disagreement between the NHS Trust who are responsible for treating EF and the parents about what is in his best interests. He has an incurable neurodevelopmental disorder, the cause of which is unknown, despite extensive investigation, and has been in hospital since birth.

    http://www.bailii.org/ew/cases/EWHC/Fam/2014/1031.html

    Mrs Justice Theis disagreed with part of the plan, based on the evidence of the parents:

    “The area that has caused me the most concern is the suggestion put forward by Ms R for there to be bagging available during the first 24 hours. This is based on the experience of the parents of previous extubations and respiratory difficulties EF has experienced within the first 24 hour period. Whilst bagging is invasive and carries risks it is less invasive than reintubation. The question is does that tip the balance the other way for that short time limited period?
    On balance I consider it does. I have reached that conclusion for the following reasons:
    (1) The benefits EF may enjoy in the 24 hour period after extubation by being stabilised through bagging outweigh in that time limited period the additional burdens on him of ventilation by those means.
    (2) It is on the basis that it is done at the discretion of the treating team in consultation with the parents, so far as is practicable
    (3) Whilst I accept Dr W’s relative optimism about the prospects of a successful extubation, I also accept the evidence from the father about their previous experiences in the immediate period following extubations. The views of the parents in this context carry some weight.
    (4) I have considered the point made on behalf of the Trust that it may hinder planning as it creates some uncertainty and an artificial time period during which this ventilation support can be given. However, the time period is based in part on the experience of the parents about EF’s reactions previously, which I have no reason to doubt. It carries with it the benefits of possibly extending his life in the short term to spend time with his family which would undoubtedly be for his benefit.
    (5) I am confident, based on the way the parents and the medical team have managed difficult decisions in the past that they will work together in EF’s best interests.
    (6) Following this limited time period his care will be managed by the Emergency Care Plan and Symptom Management Plan.”

    I do feel that Mrs Justice Theis considered the case very carefully, and that her evaluation of the parents as witnesses, in considering their evidence, personified the the maxim ‘experts advise, judges decide’. It’s a rather more cheerful thought to take to sleep with one!

    • Thank you very much for those comments – that maxim is a very good one. I think in care proceedings, Judges have become more and more willing to depart from the views of the expert over the last few years, but I’m not quite so sure that the Court of Protection is yet at the same place. I enjoyed reading those comments, which added a lot to my thinking, thank you.

  6. The comment I sent in about our clients also having been excluded from court hearings, seems to have been excluded by suspicious!
    Jean Robinson

    • Dear Jean, I don’t have a comment from you on that topic. I don’t spike your comments, and I only censor very very rarely – when the response would break the Comment Rules. You’ve never come anywhere close to that. Please send it again. If, as Ian and Christopher Booker allege, parents are being excluded from court rooms by their lawyers or by Judges, that is wrong and I have no problem with people highlighting that this illegal practice is occurring. (as long as names of children or parents not given)

      • Ah, it was hiding in the spam filter. I don’t know why, there’s nothing in it I can see that would trigger that. That’s an automated WordPress thing that prevents you all having to read the comments that are “This is an excellent post – buy cheap Chanel sunglasses here…” and the even weirder adverts that read like William Burroughs on a particularly bad trip.

        [For example, one of todays just said “I realised you needed a foundation for your moulding of the deer” I have no idea what that is intended to convey…]

        Comment fished out and put up.

  7. Excluded can also mean exclusion by virtue of papers not being served as in the case that I have , though why mum didn’t try to find information on her baby is beyond me. Still I have to get to grips with it all.

  8. Pingback: A tale of two Telegraphs | Children In Law | S...

  9. Pingback: A tale of One Telegraph – follow up | suesspiciousminds

  10. This Justice Theiss is a prejudical, inhumane and disgraceful Judge. How do you know what you read in her Judgment is TRUE?? If she has taken the route opf the LA or the OS/CAFCASS.. wouldn’t everything that they have fabricated {false Assessments, hear-say, lies during cross exanmination} sound REAL?? Then when one read the scandalous Judgment.. it sounds real and true whilst. it is all LIES to mislead the Public while the Family is not gutted to have lost their loved and she {Theiss J} sends Ms. Maddocks to JAIL simply because CARED FOR HER AGEING DAD. She also stitched me up and wants to JAIL me badly.

    [Although this comment breaches the comment rules by being a personal attack on a Judge, I have allowed it in this case – the naming of the woman is also not a breach because her name is in the public domain. Obviously, and with any comment on the site, just because I publish it does not imply agreement or endorsement. Suesspicious Minds]

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