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Obtaining an expert report without court permission

 

A quirky case from the pen of Her Honour Judge Lazarus.  [We have previously seen Her Honour Judge Lazarus in the decision in the case about the foster carer who was abusive towards the mother who tape-recorded her, and in the s20 case where compensation of £40,000 was ordered, in both cases the Judge being very critical of the Local Authority.]

 

As a general principle, if you want an expert in family Court proceedings, you need to get the permission of the Court first. Showing an expert any documents before the Court has given you that permission is a contempt of Court and if you go by the back door and pay for a report without the Court’s permission, you may not be able to rely on it. So it would be  a waste of your money.

This particular case involved an expert called Dr Lowenstein, whose name rang a bell with me.

 

He was involved in the massive case where the Mail on Sunday tried to claim that they had an article 8 right to be friends with a 94 year old woman who had previously been the journalist’s source, where the Court of Protection had put a restriction in place on the Press talking to her until a determination of (a) her capacity and (b) whether that was in her best interests.

https://suesspiciousminds.com/2014/05/02/journalists-right-to-private-and-family-life-with-her-source/

 

These are the passages about Dr Lowenstein in that case, Re G (an adult) 2014

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

 

Well, you know, that could just be bad luck. Even Babe Ruth struck out once in a while, and if you were assessing whether he was a good baseball player when you only saw one of his off days…

 

But it isn’t inspirational stuff.  He hadn’t read the documents, didn’t understand the tests and principles to be applied, wasn’t an expert in the field of law he was ostensibly reporting in and didn’t take proper notes. And he hadn’t been instructed through the Court process, but through the back door.

 

The new case is MB (Expert’s Court Report) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B178.html

 

The mother in this case made an application to discharge Care Orders relating to a child who is now 8. She came to Court, bolstered by the expert report prepared on her behalf by Dr Lowenstein.

 

I’m just going to confine myself to exactly what the Judge had to say about Dr Lowenstein.

 

 

  • Within the recent history the mother and her partner Mr P have undergone a parenting assessment conducted by Mr Ian Scrivens and dated the 20th March 2015, initiated by the Local Authority, Mr Scrivens being an experienced social worker. And he undertook that assessment over a number of sessions with Ms MB and Mr P, and indeed met with H at his foster placement, and used the Department of Health guide for social workers undertaking a comprehensive assessment.
  • That assessment does not recommend that H is returned to his mother’s care and that, while there are some positives, there are ongoing concerns and, indeed, H’s enhanced needs would suggest that the couple would find it difficult to meet those needs in the light of their own difficulties.
  • Ms MB has told me today that, following receipt of that report, she and Mr P attempted to challenge this by seeking to dispute it with the Local Authority and to bring their concerns to the attention of the independent reviewing officer, presumably at looked after children review meetings for H.
  • She also tells me that she visited her former solicitor and was told that she could perhaps seek a further report from another expert, and she also tells me that she then approached Dr Lowenstein in an attempt to understand some of the issues and discussed the parenting assessment with him. She further tells me that Dr Lowenstein himself then suggested and, as she put it, offered to do a court report for them. And she confirmed, upon my careful enquiry, that it was he who had suggested this. I note of course that this report was obtained prior to the start of any of the proceedings that I have now before me, it being dated May 2015.
  • I note that Dr Lowenstein practices from Southern England Psychological Services based at Allington Manor, Eastleigh, Hampshire, and puts himself forward as, and I am reading from the third page of his report: a chartered psychologist and associate fellow of the British Psychological Society, as a qualified clinical and educational psychologist, and that he also works in the area of forensic psychology and he is registered with the health professional council, HCPC, practising in the areas of clinical, educational and forensic psychology, and having published widely in both clinical and educational psychology as well as forensic psychology. He sets out details in an extended profile in appendix 1 to his report.
  • He sets out his background training from an Australian university and a PhD from London University, that he has clinical training and a diploma in clinical and educational psychology from the Institute of Psychiatry at the Maudsley Hospital, which qualifications were obtained in the 1960s, and that he held a former post as the Principal of Allington Manor, a specialist unit for disturbed young people. He has formerly been Chief Educational Psychologist for Hampshire and has advised and lectured in various parts of the world on the subject of setting up such centres.
  • He has twice been elected to serve as Director of the International Council of Psychologists and was their President from July 2011 to 2013, and claims to be currently practising as an independent expert witness for the courts and to write reports in the areas of educational and forensic psychology as well as in personal injury and criminal cases. He claims to work and advise in the area of family problems such as parental alienation, and he also claims to have a private practice where he treats people for a variety of psychological problems.
  • There are a number of concerns that occurred immediately to the Local Authority, to the Children’s Guardian and indeed to the Court, evident from what he calls his ‘psychodiagnostic report’ on Ms MB.
  • The first such concern is that he claims, under the very first heading, that this report is for the court and is carried out by an independent expert witness of many years experience. However, there were no ongoing court proceedings at the time. I am very concerned that he suggested that a ‘court report’ should be obtained, and suggested it to the mother of a child in foster care, and a mother who evidently has ambitions for her child either to be returned to her care or to have contact with that child and, as such, is vulnerable to any suggestion that she might be assisted by these means, notwithstanding that there were no court proceedings on foot at the time.
  • A second concern is that he purported to carry out a ‘court report’ without being granted permission to see nor having sight of any of the previous court papers, without the required process of permission from a court within proceedings being sought, and without there being an agreed letter of instruction approved by the court setting out the factors upon which he ought to comment. This is in obvious contravention of the relevant provisions found in the Family Proceedings Rules 2010 r.25, Practice Direction 25A-F and the Children And Families Act 2014 s13, and falls foul of the very clear guidance provided in Re A (Family Proceedings: Expert Witness) [2001] 1 FLR 723. Experts should not accept instructions unless explicitly informed that the court has given them its permission and of the terms set out in the court order permitting their instruction.
  • And further that he did this when he either ought to have known or knows very well, given the claims he makes in relation to his expertise, his experience, his qualifications and his apparent provision of court reports, that there was a very grave risk that such a report, prepared in this way, would be wholly inappropriate for the purposes of court proceedings and would therefore risk not being admissible within those proceedings and/or of having very little weight that could be sensibly attached to it.
  • I further note that his report mentions, at paragraph 1.7, that the mother has been improved to a considerable degree as a result of the psychotherapeutic sessions she has had with her psychotherapist, and he goes on in his conclusions, at page 10, paragraph 3, and page 11, paragraph 9, to confirm his opinion that she has undoubtedly been helped considerably by her psychotherapy and has learned a great deal as a result of her psychotherapeutic sessions. However, he also states that unfortunately there is no report from the psychotherapist as to her view of how her client benefited or not from those psychotherapeutic sessions.
  • It is therefore evident on the face of this report that Dr Lowenstein is not only, in the same report, acknowledging the lack of information from the psychotherapist but also purporting to be able to come to conclusions in relation to its impact, notwithstanding the lack of that information, and also notwithstanding that he had no information as to how the mother presented prior to such sessions. It is, therefore, a report that within its own content betrays inconsistencies and internal contradiction, and an obvious lack of rigorous analysis.
  • Additionally, Dr Lowenstein appears to be primarily an educational and general psychologist as revealed by a close reading of his qualifications, posts and experience. As such his instruction would not have been supported by the Local Authority or the Children’s Guardian in any event for that reason, and the Court would be most unlikely to accept that he would be the appropriate expert to consider mother’s complex personality issues.
  • I find this report, and the mode by which it has been suggested to the mother and has come about, to be highly unsatisfactory, likely to be in breach of professional codes of conduct, certainly lacking in any observation of the rules that apply to obtaining court reports within family proceedings, and that it is not a ‘court report’ as Dr Lowenstein claims and would not be admissible. In the circumstances, I gain the very strong impression that the vulnerability of this mother may have been exploited by Dr Lowenstein, who charged her £550 for this report in the circumstances which I have just outlined.
  • I am also aware that Dr Lowenstein has been criticised in another Court by another judge in very similar circumstances.
  • It is for these reasons that I intend to obtain the transcript of this judgment, and I have asked the Children’s Guardian to ensure that the transcript is sent to Dr Lowenstein so that his attention is drawn to the significant concerns expressed by this Court about his failure to observe the rules and requirements of reporting for the court and the inappropriateness of the steps that he has taken in this case and, indeed, the inadequacies of his report’s content, even on a superficial reading, that are evident to all concerned.
  • I am also going to invite the Children’s Guardian to consider reporting this matter to the professional bodies that Dr Lowenstein claims to belong to, and I also intend, in an anonymised version of this judgment, to publish this judgment, albeit that the names of professionals involved, and Dr Lowenstein in particular, will not be anonymised in accordance with guidance and case law. And, as I say, I consider Dr Lowenstein’s approach to this Mother’s situation to have failed in any purported attempt to assist her but to have been inappropriate and potentially exploitative, and certainly of no help to her within her applications

 

 

To see if Dr Lowenstein has been involved in any reported family cases favourably, I did a search on Bailii.

 

This one, Re F (a child) 2014, he was involved tangentially, again, having reported outside of Court proceedings, but it isn’t a favourable mention.

http://www.bailii.org/ew/cases/EWCC/Fam/2014/12.html

Dr Adshead was asked about the past reports of Dr.  Lowenstein  and Dr. Holt. Dr. Adshead told me that where she disagrees with Dr  Lowenstein , is that he seems to have a rather “old-fashioned view” of personality disorder, namely that you either have it or you do not . In Dr. Adshead’s opinion, it is perfectly possible to have some degree of personality disorder and become better or worse and that there is a spectrum of symptoms.

 

Again in this one, Dr Lowenstein’s report came before the Court despite him not having been instructed or given permission to see the papers

 

Re JC (Care Order) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B185.html

 

  On the 11th December 2012 the social worker received an e-mail from EL and that attached the report from a Dr.  Lowenstein .  The father indicated that he was referred to Dr.  Lowenstein  by his G.P.

28.              At the hearing on the 21st September 2012 father had initially requested that Dr.  Lowenstein  undertake the family assessment but Her Honour Judges Coates (sitting as a Deputy High Court Judge) directed that it was Dr. Van Rooyen who was to undertake the assessment.  Dr.  Lowenstein  was instructed without the prior sanction of the Court, and/or the agreement of the other parties, and it is clear that father had disclosed some of the case documents to him.  The matter was transferred back to the County Court.

29.              In the light of the NSPCC concluding that the case is unsuitable for their reunification programme, and in the light of Dr. Van Rooyen’s addendum report, the Local Authority now take the view that JC should be placed in long term foster care; that he needs to be placed there until father has made progress on his therapy, and parenting work, and at some stage in the future it may be appropriate to consider the issue of rehabilitation.

30.              The fact that Dr.  Lowenstein  had been instructed was discussed at the case management conference on the 12th December 2012 and father made an application for further assessment of him by Dr.  Lowenstein  because he did not accept the contents of Dr. Van Rooyen’s report.  That application was dealt with by Her Honour Judge Cameron. Having heard submissions from all parties she ruled against the Court reading the report of Dr.  Lowenstein  and ruled against the father’s application for a further assessment.

There is a 2006 Court of Appeal case where he was mentioned as a possible expert but the application wasn’t pursued (so in that one, he hadn’t reported outside of Court)

Re B ( a child) O (children) 2006

http://www.bailii.org/ew/cases/EWCA/Civ/2006/1199.html

  • Coleridge J begins his judgment by reference to the decision of this court on 28 April 2005. He then identifies the main relief sought by Mr. O’Connell, and in paragraphs 6 to 8 identifies the additional relief also sought, the reaction of the other parties to it, and what happened: –

 

“Ancillary to the main applications for residence and contact, the following applications are also before the Court now. Firstly, by the Father, that the Guardian should be removed. Secondly, that a psychologist should be appointed to assess the children, in particular, a Dr  Lowenstein , the American exponent of that much questioned theory ‘parental alienation syndrome’, and if not that expert then another. He also alluded to the possibility of seeking disclosure of further documents but that application never proceeded.

And in the Court of Appeal in 2003 – again, there’s no suggestion here that Dr Lowenstein did anything wrong, but it is an unusual order for a Court to have had to make

Re G a child 2003

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1055.html

  • There have been long running proceedings in the Manchester County Court between the parents of AG born on 3 July 1996. The central issue has always been contact, or rather lack of contact, between AG and her father Mr B. I will refer to him throughout this judgment as the father. His Honour Judge Hamilton has had charge of the case for some time. There was a major hearing commenced on 10 March 2003, in preparation for which Judge Hamilton had given directions in November 2002 and January 2003. At the conclusion of the March hearing Judge Hamilton reserved his decision, handing down a written judgment on 2 May 2003. Paragraph 3 of the resulting order reads as follows:

 

“The father is prohibited from disclosing in any manner any papers or documents filed in these proceedings or their content or any school reports he may obtain to either Dr Richard Gardner or Dr Ludwig  Lowenstein  or any other expert in parental alienation syndrome or any other agency or organisation such as Families Need Fathers without the specific permission of the court.”

And another Court of Appeal case in 2000 – here, Dr Lowenstein had been properly instructed as a Court appointed expert (I note here as a ‘forensic psychologist’ ) and the Court had rejected his evidence (which doesn’t mean that there’s anything wrong with it, just that the Court disagreed with his report in that particular case)

Re L  and Others (Children) 2000  http://www.bailii.org/ew/cases/EWCA/Civ/2000/194.html

The solicitors for the parties agreed that they should jointly instruct a child psychiatrist to advise on contact and His Honour Judge Milligan made the order. It appears that the parties´ solicitors had great difficulty in finding a child psychiatrist and eventually instructed Dr  Lowenstein  who made a report. He saw both parents and G and came to the conclusion that this was a typical case of parental alienation syndrome. As the judge said, Dr  Lowenstein  has been closely associated with recognition of this syndrome. He recommended therapy, at least 6 sessions to be conducted by himself, followed by a further report. Since it was therapy, there would be problems in financing the therapy and subsequent report. The judge did not accept the unsubstantiated assertion of the court welfare officer as to emotional abuse of G. He was equally unhappy about the findings and conclusions of Dr  Lowenstein . In the report of Dr Sturge and Dr Glaser, they indicated that parental alienation syndrome was not recognised in either the American classification of mental disorders or the international classification of disorders. It is not generally recognised in psychiatric or allied child mental health specialities. It would be fair to say that Dr  Lowenstein  is at one end of a broad spectrum of mental health practitioners and that the existence of parental alienation syndrome is not universally accepted. There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem. That unhappy state of affairs, well known in the family courts, is a long way from a recognised syndrome requiring mental health professionals to play an expert role. I am aware of the difficulties experienced in some areas in getting the appropriate medical or allied mental health expert to provide a report within a reasonable time. It was, however, unfortunate that the parents´ lawyers not only did not get the medical expert ordered by the judge, that is to say, a child psychiatrist, (although in many cases a psychologist would be appropriate), but, more serious, were unable to find an expert in the main stream of mental health expertise.
The judge, in my view, was entitled to reject the report and the oral evidence of Dr  Lowenstein , even though the psychologist was jointly instructed. Lord Goff of Chieveley said in re F (Mental Patient: Sterilisation) [1990] 2 AC1 at page 80 that experts were to be listened to with respect but their opinions must be weighed and judged by the court. The judge said
“I cannot accept the effect of what Dr  Lowenstein  has told me, namely that PAS is such a serious state that the child involved and the parent should be subjected to treatment by way of therapy with direct threats to the mother in the event of non-co-operation. It appears from the literature that some schools of PAS thought advocate the immediate removal of the child from the alienating parent and thereafter no contact with the alienating parent for a period. It also appears that ´long term psycho- analytically informed therapy in the order of years rather than months´ is the treatment of choice.”

I do not accept the submission of Mr Bates that the judge did not give reasons for rejecting the evidence of Dr  Lowenstein . The case for the father was largely based upon the suspect conclusions of the court welfare officer of emotional harm suffered by the child. The judge did give reasons and it was well within his judicial function not to accept that evidence.

And then yet another Court of Appeal case in 1999  – this time, the report having been obtained outside of Court proceedings and without the permission of the Court.

Clark v Clark and Another 1999

By a summons of 1st March the wife sought to admit fresh evidence consisting of a report from Dr  Lowenstein , a clinical psychologist, a statement from Detective Constable Shirley and her own affidavit. By a later summons she sought to introduce reports from Dr Mathews and Dr Fraser Anderson. It was agreed at the outset that all this additional evidence would be received by the court de bene esse and that any ruling on its admissibility would be deferred to final judgment. I will therefore deal straightaway with this additional evidence. The affidavit from Dr  Lowenstein  hardly meets any test for the admission of fresh evidence. He is a clinical psychologist who prepared a written report on the wife having spent several hours in her company on 8th February 1999. In a neat way this manoeuvre illustrates the extent to which the wife inhabits a world bounded by her egocentric and manipulative will unconstrained by any objective reality. Dr  Lowenstein  gave the opinion that he did because Mrs Clark restricted him to her version of events omitting to inform the psychologist that that version had been comprehensively rejected in High Court proceedings. The statement from the detective constable has greater validity in that it contradicts assertions made by the husband in letters to his solicitors in April and June 1995 to the effect that the detective constable had been obstructed by the wife in investigating a report from the husband of the theft of a picture from Wellow Park. There is perhaps just sufficient justification to permit the admission of that evidence for further investigation. As to the reports from Dr Anderson and Dr Mathews, in my opinion they fail to meet any test of admissibility. Dr Mathews’ undated report, but written in this month of April, only contains what was before the judge in her manuscript medical notes. The report from Dr Fraser Anderson simply relates to the husband’s condition in May 1997. It is dated 23rd November 1998 and it is admitted that it was requested prior to judgment. There is nothing within it which would in any way have expanded the judge’s knowledge or affected his conclusions. Consequently I would admit the statement from the detective constable and reject the three medical reports. I would add that even if admitted their contents would not have assisted her case

I will give  a caveat. There may well be many cases where Dr Lowenstein has provided a report in family Court proceedings where the Court found it useful and helpful and relied upon it, even thanking him for the valuable report. There may be hundreds of such cases. There just aren’t any reported ones. Not all cases get reported.

 

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About suesspiciousminds

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

33 responses

  1. Another really great article with lots of detective back up work. Thanks. And , in sending this there’s no mistaken ID for credits : I know you aren’t Lucy 😉 ( you are both darned good btw)

    Jo Delahunty QC

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  2. i assisted on a case three years ago where Dr Lowenstein was used as an expert. He had to assess whether the client had querulous paranoia. He found that she didn’t and she avoided the CoP.

  3. In 1999 Dr Lowenstein provided a report for a stepfather who was alleged to have groomed and sexually abused his new wife’s two children. His methodology was severely criticised by the other experts not least the psychologists from the Lucy Faithful Foundation and was not accepted by the Court. There was more but I cannot remember the facts well enough to comment without risking a charge of being defamatory. Suffice it to say I have never felt able to condone his instruction in any subsequent case.

    • I was a bit iffy about it, but it did the job thank God. When Justice for Families had the conference in Birmingham in 2012 we had a speaker from the Ireland Report who told me privately about Dr Lowenstein’s methodology issues. I was since under the impression that that had been sorted out and he was using a standardised methodology.

  4. On a serious note I do wonder how at an early stage prospective parties are to obtain objective evidence which might pre empt or make proceedings unnecessary.
    On a less than serious note – is it Rex Bob Lowenstein? If so he needs to go before thev DJ

  5. I was the culprit who recommended Dr LOWENSTEIN to the 94 year old lady ;Speaking to her on the phone myself it seemed to me that she had “all her marbles” and considerably more capacity to speak for herself than the cleaner who first answered the phone ! She expressed herself well but told me indignantly that the official solicitor and the court had blocked her bank account and then taken her life savings of around £78,000 earned as a midwife to pay their own fees !!This turned out sadly to be quite true!

    For a judge to refuse a qualified expert to testify must breach the human rights to call witnesses in pursuit of their civil rights (article 6) of anyone appearing in a court defending their position , their sanity or their children.That is why DrLowenstein relied on a personal interview rather than highly biased reports from social workers.Surely you should judge a person’s sanity by seeing and talking to them not relying on bits of paper written by persons described my professor Jane Ireland in her government survey as “hired guns” who sometimes never even meet the subject of the enquiry;

    In a recent and very highly publicised case Marie Black was prevented from giving evidence in her own defence and her counsel was forbidden to call a leading world authority on “false memory syndrome” resulting in what I and many others regard as an unsafe conviction for sexually abusing her own very young 5 children;I emphasise that I do not attempt to presume “guilty or not guilty” I and many others simply regard the trial procedure as flawed,contrary to human rights article 6 (to call witnesses) and deserving of a fair and just rehearing.

    All this seems to prove that judges should NOT be allowed to refuse to hear witnesses unless their testimong is either entirely irrelevant or perhaps tiresomely repetitive;
    In neither of the two cases above did this apply.

    • It is a shame that the final judgments on Re G are not out yet. I would be very interested to see the final outcome.

      Anyone else, if you were on the fence about Dr L, I suspect you are no longer. Whether you agree with Ian, or this Judge, is entirely up to you.

      • No that is part 2 I think. Part 3 was the huge rigmarole about the Mail on Sunday wanting to choose the expert who was assessing this woman. What we haven’t seen yet is the Court’s settled decision after the expert report as to (a) whether she has capacity to give interviews to the Press and if not whether it is in her best interests to do so and (b) Ultimately what the case is about, whether her former carers should be in charge of her money. [And in before Ian, what there is left of it now, as sadly all of this litigation has been burning through her savings – this is one of the rare things that Ian and I agree on, that arguments about whether or not a vulnerable person is being financially abused ought not to spend said vulnerable person’s money on finding out)

  6. The main point I want to make about the two cases above is that Article 6 clearly gives those before a court the right to call witnesses in pusuit of their civil rights.Judges in the above two cases and in many many others in family courts or the Court of Protection refuse to allow witnesses to be called,usually those who might contradict (God forbid) the testimony of social workers and their “experts”
    What is the point of passing laws if judges flagrantly and repeatedly disregard them ?

    • I’m afraid, politely, Ian, that Judges have a clearer understanding of both Article 6 and the rules and procedures governing trials than you do.

      • Easy to say Andrew but difficult for you to demonstrate or to justify judges who exclude vital witnesses requested by parents,or defendants in flagrant contradiction to article 6;
        Nanny knows best? Come on Andrew you can do better than that…………..

      • If a Judge is wrong in excluding a material witness, there’s the Court of Appeal. Judges have the power to determine how the case is to proceed, and set timescales and decide which witnesses are vital and necessary. If they make that decsion in a way that is unfair or wrong, the Court of Appeal is the place to establish that.

        [Oh, and I would have rather more confidence in Dr L’s views about whether a person had capacity if he had been able to show to the Court that he understood the tests for capacity that the legislation sets down. Something of a fatal weakness in his evidence, that]

      • They presumed she had no capacity by blocking her bank account before she saw any psychologist so in her case she had to prove her sanity by avoiding the hired guns and going to Dr Lowenstein who said she had capacity to speak for herself but was disregarded despite the fact that when two professionals disagree their evidence should be regarded with suspicion ;
        They were so scared of her capacity to give them bad publicity the put a gagging order on her for the rest of her life with jail if she talked publicly .
        What happenerd to free speech ?????????

  7. Gagged by the secret courts: Spinster, 94, banned from speaking publicly about her legal battle with social workers after judge rules she’s not mentally well enough
    94-year-old spinster wants to live in her own home against the advice of social workers
    Council say couple she lives with are ‘controlling her life’

    Has been banned from speaking to the press about her plight

    Gagging order was made by secretive Court of Protection

    By Sue Reid for The Mail on Sunday

    Published: 00:40 GMT, 3 May 2014 | Updated: 14:03 GMT, 3 May 2014

    Miss G, whose identity cannot be revealed after a ruling by the Court of Protection

    A frail 94-year-old spinster fighting council social workers for the right to live in her own home without their interference has been banned from talking publicly about her plight.

    In what is thought to be an unprecedented move by the secretive Court of Protection, the former NHS midwife – who can be identified only as Miss G – has been told she does not have the mental capacity to communicate with journalists and that it is in her ‘best interests’ not to do so.

    The gagging ruling – which could last for the rest of her life – was made yesterday by a High Court judge who sent a message via a clerk to the Daily Mail, which has highlighted Miss G’s case, warning: ‘This means the press cannot speak to Miss G any more.’

    The draconian attack on freedom of speech flies in the face of recent demands by the top family court judge, Sir James Munby, for more openness in the shadowy court, allowing those appearing there to speak publicly about their experiences.

    The Mail has campaigned against secrecy in the Court of Protection, which takes sweeping decisions on behalf of the old, infirm, and disabled over where they live, with whom, and even whether their life-support machine should be switched off in the event of severe illness or if they should be allowed or forced to take contraception.

    Miss G has fought a six-month battle with social workers in Redbridge, north east London, who say a couple who live with her at her £350,000 house are controlling her life and decision-making.

    The council hopes to send in its own carers, with Miss G footing the bill. They have argued that the couple, known as Mrs C and Mr F and from the same Caribbean island as Miss G, should be thrown out of the house.

    Miss G has already been told by the Court of Protection that she does not have the mental capacity to make decisions about her care, financial affairs, legal representation, or where she lives.

    The gagging order was made by the judge granting a special ‘declaration’ that she should not ‘communicate with the Press’. Miss G and the couple who care for her face a prison sentence or stiff financial penalty if she does so.

    Earlier this year, Miss G signed a petition in Parliament highlighting her plight and staged a public protest in her home borough. At one court hearing, she handed a letter to judges saying she wanted to use her own name when she spoke to the Press.

    Miss G has already been told by the Court of Protection that she does not have the mental capacity to make decisions about her care, financial affairs, legal representation

    In previous interviews with the Mail, Miss G described her experience as ‘being like a fly in a web, with me being the fly and the social workers the spiders’. She said: ‘I do not want the council people in my life. In the past, when they provided carers from an agency, they did not look after me. I was left in a dirty house alone for hours at a time when they cut short their twice-a-day-visits.

    ‘They did not shower me often enough and there were foxes in the garden and insects in my bed.’

    Miss G said it was only when she cancelled her council care plan that ‘Redbridge began to persecute me and the private carers I chose, who look after me so well’.

    In court yesterday, she told the judge: ‘They [the social workers] think I am a stupid old woman but I am not. They have made false accusations and think they can do what they like. I want them out of my life and to live in peace.’

    Lib Dem MP John Hemming, who campaigns for Court of Protection openness, said: ‘This gag appears to be totally unprecedented

    The court also heard that an independent social worker’s report has recommended that Mrs C and Mr F should be allowed to stay and that Miss G is well looked after by them.

    Redbridge has now said it needs time to consider that report before the final long-term plans for Miss G are put in place. During previous hearings, the court was told that social workers, accompanied by police, had turned up at Miss G’s house 12 times in nine months after Mrs C and Mr F moved in.

    ‘The visits were frightening and it was to try and get rid of this couple who are like my family and look after me perfectly’, Miss G has said.

    Redbridge – which the court has allowed to be named following a request from the Mail – refuses to comment on details of the case.

    However, Lib Dem MP John Hemming, who campaigns for Court of Protection openness, said last night: ‘This gag appears to be totally unprecedented.

    ‘It is difficult to see who it is protecting if not the local council social workers from public criticism. It is certainly not Miss G who is protected.

    ‘The worry is other social workers may now use the same tactics to stop press scrutiny of their actions and that cannot be right.’

    Read more: http://www.dailymail.co.uk/news/article-2619263/Gagged-secret-courts-Spinster-94-banned-speaking-publicly-legal-battle-social-workers-judge-rules-shes-not-mentally-enough.html#ixzz3rNWuDys5
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  8. There should be a presumption that anyone appearing in court has the capacity to either represent themselves or instruct a solicitor;I doubts are raised through the way they behave in court then they should be free to consult a psychiatrist of their choice to certify (unbiased by reports from social workers) whether they are competent or not.
    Miss G was wrongfully gagged especially when after a visit from the official solicitor saying he could no longer represent her because all her £78,000 life savings had been exhausted to pay his fees she was somewhat indignant at the highway robbery (£400/hour to represent her in court saying the exact opposite of what she wished) and being silenced whenever she asked the judge to be able to speak for herself.
    This woman was saner than anyone else in that mockery of a court and Dr Lowenstein said so ,quite apart from all those who knew her and spoke to her ( including myself)
    Her “instructions were clear as a bell and often uttered clearly from the well of the court where she was permitted to sit “Le

  9. There should be a presumption that anyone appearing in court has the capacity to either represent themselves or instruct a solicitor;If doubts are raised through the way they behave in court then they should be free to consult a psychiatrist of their choice to certify (unbiased by reports from social workers) whether they are competent or not.
    Miss G was wrongfully gagged especially when after a visit from the official solicitor saying he could no longer represent her because all her £78,000 life savings had been exhausted to pay his fees she was somewhat indignant at this highway robbery (£400/hour to represent her in court saying the exact opposite of what she wished) and being silenced whenever she asked the judge to be able to speak for herself.
    This woman was saner than anyone else in that mockery of a court and Dr Lowenstein said so ,quite apart from all those who knew her and spoke to her ( including myself)
    Her “instructions were clear as a bell and often uttered clearly from the well of the court where she was permitted to sit “Leave me alone and leave my bank account alone !” but having robbed her they then gagged her and threatened her with jail if she went to the press or spoke out publicly;

    • I agree with you that there should be such a presumption. As does the Mental Capacity Act, which is why there is such a presumption. It is a rebuttable presumption, with the burden of proof being on those who say that the person does not have capacity to prove it.

      • They presumed she had no capacity by blocking her bank account before she saw any psychologist so in her case she had to prove her sanity by avoiding the hired guns and going to Dr Lowenstein who said she had capacity to speak for herself but was disregarded despite the fact that when two professionals disagree their evidence should be regarded with suspicion ;
        They were so scared of her capacity to give them bad publicity the put a gagging order on her for the rest of her life with jail if she talked publicly .
        What happenerd to free speech ?????????

  10. ANY JUDGE THAT EXCLUDES A WITNESS CLAIMED TO BE VITAL BY THE DEFENDANT OR PARENT DEFENDING THEMSELVES BREACHES ARTICLE 6 ;
    DO YOU SERIOUSLY SAY IT’S OK FOR THE JUDGES TO BREAK THE LAW AS PARENTS MIGHT subsequently BE ABLE TO GET THEIR LEGAL AID SOLICITORS THEN TO APPEAL,,?
    Sorry about capitals I did not mean to shout !

    • No Ian, I am saying that a Judge making a decision about which witnesses to hear evidence from is acting within the law. Every Judge makes case management decisions about how to run the hearing. In a case where a parent considers that this case management decision has genuinely prejudiced their right to a fair trial, they can consider an appeal. If the Court of Appeal viewed such an appeal and concluded that the case management decision was wrong so as to make the trial or hearing unfair, the hearing would be overturned.

      You are thinking that article 6 is an absolute unqualified right for a person to conduct their litigation in exactly the manner that they want and the Court is there to acquiesce to their desires in how they want to run the case, and that is simply not how article 6 operates.

      • Yes Andrew you express it very well ! Article 6 does of course give anyone appearing on a criminal charge the right to call witnesses with no qualification at all.
        That of course is not running the case it is just exercising human rights article 6 as it is written.Unfortunately as you put it so well “That is simply NOT how article 6 operates” in the family courts or the Court of Protection.
        Judges flagrantly refuse parents and other defendants the right to call witnesses that might help them in defiance of article 6 that gives defendants and those pursuing their civil rights to call witnesses.
        If judges break the law their victims can appeal you say ! Well family court judges usually conclude by refusing leave to appeal so victims they think it’s all over ;But of course as you imply they can ask for permission to appeal …..
        Well that’s alright then, except they don’t know they can or don’t know how to do it

  11. Given that the Ireland report found that 2/3rds of expert psychological reports were poor or very poor, there is clearly a big question about the foundations of much care proceedings.

    I cannot comment on Lowenstein even though I met the mother who was alleged to have querolous paranoia and also met Miss G when she came to petition parliament.

    Going back to the old chestnut of RP v the UK etc. (which fell apart at the grand chamber because she lives in Nottingham and we could not make contact to get it to the GC) The nub of this was that she did a good job of presenting her case for appeal in the Court of Appeal, but the court decided she did not have capacity.

    My degree is not in law. I have an MA in Physics specialising in atomic, nuclear and theoretical physics from Magdalen College, Oxford – where I had a scholarship in Natural Sciences.

    I take a view (perhaps driven by my scientific background) that reality exists and it not in itself a matter of opinion. Hence when an expert says someone does not have capacity, but they clearly do then the expert is wrong. When you understand the conflict of interests the experts are affected by (ie being on a retainer to the LA) then you can see why it all goes very wrong.

    I have seen lots of people who clearly have capacity, but the court has decided that they don’t.

    • Very interesting philosophical points, Mr Hemming. I agree that reality exists and is not a matter of opinion. But to borrow from your example of atomic physics, an ounce of chemicals is not radioactive on the basis of whether or not someone thinks that it is, but rather because analysis shows that it is emitting radiation. The law has a test for whether or not someone has capacity – like a geiger counter, in a way. [Although I would accept that is is less of an objective test than one sees in hard science – uranium will be radiocative regardless of who is holding the geiger counter and taking the readings]

      Someone talking to that person and deciding that they feel the person has capacity is interesting, but unless you actually apply the test, it is just like deciding whether uranium is radioactive on the basis of whether you feel something peculiar when you are nearby.

      [You may well consider that the legal test for capacity is set too high, and many might agree with you, and also that the application of the test is not always producing sensible answers and that it needs revisiting. Also whether the test could be made completely objective and “scientific” so that any person applying the test would reach the same conclusions. I’m not sure whether it could be, but it is always an important thing to aspire towards if at all possible.

      I would tend to agree that if someone is able to present their case in the Court of Appeal and do a good job, it does seem peculiar that she would be lacking capacity to instruct a solicitor to carry out the case on her behalf and that a Court should examine the capacity assessment very closely and consider very hard whether the presumption of capacity really is rebutted in an individual case. I share many of your views that the Official Solicitor does not always defend the person’s interests sufficiently vigorously, and indeed whether the absence of capacity sometimes means that the person’s strongly held and expressed wishes are too routinely disregarded or overridden]

  12. A daft debate ! Anyone who is coherent enough to express their wishes must have capacity to either instruct a solicitor or to represent themselves.Too often clients who refuse the advice of their solicitors are judged to lack capacity. A device to shut up the awkward squad that was applied to Miss G (age 94) for example even though she clearly expressed her wish from the well of the court to be left alo,ne to live in her own flat and for her £78,000 savings NOT to be used to pay the Official solicitor to represent her in a way opposite to her wishes. They still stole her life savings to pay themselves;Greedy weren’t they?

  13. In the Louise Woodward case when a British au pair girl was accused of shaking a baby to death the two most distinguished experts on babyshaking in the country gave evidence .Surprise surprise the prosecution witness said the baby had been shaken and the defence witness said it had not ! This does demonstrate the unreliability of experts.
    More importantly when the family courts trot out some tired old hire gun (relying heavily on reports from social workers) to say an injury to a child was non accidental the parents are routinely denied a second opinion in flagrant breach of Article 6 (the right to call witnesses);
    If they call one without permission the court is outraged especially if that expert contradicts the court appointed puppet. Article 6 is broken by judges flagantly with no scruples whatever.
    Article 6 is clear enough
    3(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    No exceptions are made above that could permit judges to pick and choose witnesses or favour one side’s rights over the other’s……………

    In the Marie Black case the defendants were not allowed to call their vital expert witness on false memory syndrome so she got 30 years in prison.
    I am NOT saying she was guilty or not guilty just that the judge broke the law by excluding the most vital witness that the defence had. That judge was a law breaker………

    • You seem to start by saying that in criminal courts, people get to call whatever witnesses they like, unlike the unfair Family Courts, and then give me an example of a criminal court refusing to allow an expert witness in a criminal case… Article 6 simply does not work in the way that you think, where people get to present whatever they like – a Judge has to rule whether the evidence is material. And if a Judge gets that decision wrong, the remedy is an appeal.

      • Usually in criminal courts defendants can call their witnesses except when social workers are involved altering 268 vital court documents etc (police evidence) Then our reporter was forbidden to take notes (but luckily she had a good memory) and a vital expert witness was refused not because the judge considered his evidence immaterial;far from it ! He was refused because the judge ruled that by giving his expert opinion he would be usurping the function of the jury and so excluded him and no experts or medical testimonies of any kind were presented in this case involving alleged sexual abuse of children.
        Yes , Once a clearly biased judge can exclude any witnesses that could help the defence Article six is breached beyond any shadow of legal doubt.Just read what it says because it specifically states that defendants have the right to call witnesses and does NOT say “unless the judge diapproves” or any words to that effect.
        All you say is that article 6 is breached by custom in the family courts and even criminal courts involving social workers so that’s all right then ! The law as stated is CLEAR,CLEAR,CLEAR!
        and the fact that her majesty’s judges disregard it habitually does not excuse such practices by flagrant judicial law breakers.

      • Again, we’re going round in circles. What I am saying to you is that your understanding of article 6 and the way that article 6 actually operates are not the same.

  14. NO circles I just point out that the way Article 6 actually operates in UK family courts and any court involving social services is ILLEGAL and one day may (hopefully) be successfully challenged.

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