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Some interesting cases, but no judgments

I think now that the Court of Protection is open to the Press, we’re going to see more of this happening. There’s quite a wait for a Judgment to be transcribed, approved and put on Bailii, so the Press who are present are able to report the drama of a case without a judgment available to allow those who weren’t there to see the nuance or how the competing issues were balanced.

http://www.theguardian.com/law/2016/feb/12/allow-huntingtons-disease-sufferer-to-die-judge-rules

 

In which Hayden J dealt with a person lacking capacity, who was pulling feeding tubes out of his body, over a hundred times. Was it in his best interests to continue to insert the tube, or to discontinue it, even though that might lead to his death?  Hayden J ruled that it was in the person’s best interests to stop the treatment. Kudos to the Guardian for not labelling this a ‘right to die’ case, but boo for trotting out the stock and misleading phrase that the Court of Protection deals with ‘the sick and vulnerable’   (no, it deals with people who are believed to be lacking capacity to make their own decisions, who may ALSO be sick and vulnerable, but the overwhelming majority of sick people will never come anywhere near the Court of Protection and plenty of people are vulnerable without lacking capacity. )

Annoyingly for a lawyer, the Guardian piece doesn’t set out how Hayden J balanced the individual’s best interests (and one can infer from his actions what his wishes might be) against the article 2 right to life – since this isn’t a case like Tony Bland and others where there was no response (the evidence was that the man reacted to family mentioning Manchester United – by smiling)  or a Lady who sparkled case of someone with capacity rejecting treatment just as any of us can do.

So we need to see that. It is perhaps illustrative of something of a shift in Court of Protection away from the patrician and towards autonomy, but without a judgment, I can’t say.

 

There’s also a C-section case with social workers in the wings seeking to initiate care proceedings, and we know what a hot-button topic that is.

http://www.theguardian.com/law/2016/feb/11/judge-orders-caesarean-if-needed-for-mentally-ill-mother-to-be

And it would be handy to see the judgment in full, to assess whether this was proportionate, and whether the high tests for C-section without consent were applied.

 

Then in Children Act cases, there is

http://www.communitycare.co.uk/2016/02/15/child-given-placement-order-special-guardianship-arrangement-lasts-two-weeks/

 

In which it is said that a child was placed with Special Guardians and the placement lasted two weeks, with the Special Guardians spending their allowance on drugs, alcohol and gambling. Not perhaps the most robust of assessments, if it didn’t spot that they were assessing someone with all of those problems. [Even most TV cop shows would draw the line at their flawed hero having all THREE of those problems all at once]

 

And this one

 

http://www.communitycare.co.uk/2016/02/12/judge-criticises-independent-social-worker-face-value-assessment-abusive-father/

 

Where an ISW described a contact session as positive and enjoyable, whereas the Guardian described it as the worst she had ever seen  and horrifying.

 

I’d love to write about all four of these cases, but in the absence of judgments, I’ve got no source material.

My teeth are gnashed.  If I had an alligator to hand, I might well throw it through a window, to express my dissatisfaction.

Is an Alligator a “Deadly Weapon”?

 

I’ll leave you with Lowering the Bar, who report that the Court in Pennsylvania  (which I believe is staffed by little cute mice and bunnies and squirrels, or alternatively vampires – those are the two connotations of Sylvania that I hold in my head) have had to put up a notice to tell people attending Court not to wear pjyamas to Court (they are American and call that pajamas)

 

NOTE: Don’t Wear Pajamas to Court

I did once see a woman attend Court wearing a wedding dress (no, it was not actually her wedding day), and I represented lots of wealthy farmers back in my divorce days who would come along in their worst possible clothes (ragged, patched, gaping holes, egg-stains) to try to put in the Judge’s mind how poor they must be, but I have never seen anyone attend Court wearing PJs.

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About suesspiciousminds

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

20 responses

  1. I have seen a fair amount of Press and blogged articles of what seem quite important cases, most notably and recently is the ISW and the C Section cases, it seems the spirit of transparency is slipping further and further away,

    I have often written about cases and spoke briefly about some cases that are on going however the line is drawn before I will speak with conviction if the Judgment is not available,

    Presuming A and B led to C causes me serious uncertainty to the reported fiction and without the blue prints the house is often built from the roof down.

    One would think that we should have seen this sort of problem sign posted to the history book warts and all.

    Seeing the picture of Snappy there on the golf course reminded me of the late Mr Justice Scalia’s [SCOUS] Golf course case in which he dissented and found that walking IS NOT part of playing golf!

    The part of Scalia’s dissent that is most often quoted:

    “If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf — and if one assumes the correctness of all the other wrong turns the Court has made to get to this point — then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power ‘[t]o regulate Commerce with foreign Nations, and among the several States,’ to decide What Is Golf.

    “I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes.

    The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf.”

    In respects of not wearing Jerparma’s to court, it must have been some time since you graced the floors of some Northern Courts, it will not be long until we see a Judge sporting just a shower cap and a loofah in hand!

  2. The full judgment comes up if you click on the blue ‘in care proceedings case’ in the article, hope that helps. Diane Jackson

  3. I went to the Court of Protection today to observe the three cases that were listed. I arrived to find that all of them were closed to the public. There had been no hint of that on the list published online. Apparently there is a backlog of cases listed before the start of the transparency pilot. Only one case this week is in open court.

    A wasted journey, a wasted train ticket, and not a lot of open justice on show. I am not impressed.

    (I see tomorrow’s list does now say that the cases are not open to the public.)

  4. I just think we need a system where all judgements are published with relevant level of anonymity.

    • I think that stories of this type should not be reported without or until a published judgment are available

      • I suppose if you are letting reporters into Court, they have to be entitled to publish stories, otherwise why would their papers pay them to attend? I am thinking that really we need massive expedition of the publication of a judgment. In emergency applications, it is not reasonable to make the decision wait until a written judgment is handed down, but the tape ought to be transcribed as a matter of urgency and published within a week, ideally.

  5. Have you seen the Judgement in ZE15C00364- Re: P v The London Borough of Croydon? It deals with ‘beyond parental control’ and departs from Re:K.

  6. ashamedtobebritish

    I had to laugh as I do know someone who wore their pyjamas to court, there was a principle behind it.
    Strangely, this person has had many hearings, some assisted by Mr Lonsdale himself, yet every single one has been refused publication for no apparent reason (apart from the blatant stitch up behind them)

    • just left a reply direct now one to you. Blatant stitch up doesn’t describe it – its criminal. The Court is out to get you – nothing else matters.

    • We do of course have the naked rambler in England, who appears naked in Court, so far as I’m aware. There aren’t any clear rules in England about Court attire (though most Judges would decline to hear from a professional lawyer who was not wearing a dark jacket – and if male, a tie).

      There was a famous Judge in [location removed on legal advice – not the Court I currently practice in] who would ask female advocates to leave the room if they were wearing lipstick, and who would give you short shrift if your shirt/blouse was anything other than white or pale blue. Said Judge once sent us out at 10.30am to resolve a small point that was in issue (precise wording for Family Assistance Order) – we told the Usher we were ready to go back in ten minutes later. No other cases went in to the Court (we had been listed for a full day and had settled it), and we weren’t called back in until 2.30pm, when it was hard not to notice that the Judge had had a cut and blow-dry in the intervening period…

  7. They have been on BAILLI – EWFC B205 and EWFC B3

    • Oh yes. Many thanks.

      The Special Guardianship one is here

      http://www.bailii.org/ew/cases/EWFC/OJ/2016/B3.html

      Though the detail is extremely scant – it is all in paras 23 and 24

      here were positive assessments of two possible placements for R within his extended family, his Maternal Uncle and Aunt and his Paternal Aunt and Uncle. The Mother supported R being placed with the Maternal Uncle and Aunt and on 17 th August 2015, R moved to live with them. On 15 th September 2015 special guardianship orders were made in their favour in respect of R. Regrettably, on 1 st October 2015, R returned to his foster placement at the request of his Maternal Aunt following the breakdown of her marriage to the Maternal Uncle caused by his misuse of the special guardianship allowance to fund the purchase of drugs and alcohol and for gambling.

      24. On his return to foster care, it was clear that R had suffered neglect in the care of his Maternal Uncle and Aunt

      On the ISW case, that’s here.

      http://www.bailii.org/ew/cases/EWFC/OJ/2015/B205.html

      Again, the detail of the ISW is tucked away very near the end of the judgment, though it is a little longer

      Because of E’s position in the previous proceedings, authority was given for an independent social worker to be instructed to carry out an assessment of him. That independent social worker was Andrew Slade, a man who has also had a number of years’ experience as a children’s guardian. He concluded that E was able to meet the needs of all the three children. He based that on a contact which he observed and his discussions with E.

      Both the local authority and the guardian challenged that report and Mr. Slade’s evidence. Their position is that he failed to take into account the history, the nature of the relationship between the mother and E (in particular that it was viewed as controlling and abusive by the mother) and the years of exposure to conflict that the children have suffered.

      Mr. Slade gave oral evidence. It was very clearly in conflict with the contact reports of the guardian and the social worker. He said that the contact he observed was very positive and enjoyable. I take that very seriously into account. There was a very stark difference between that description and the description by the guardian. It goes without saying that children do not behave in exactly the same way on every occasion when they see their parents, whether it is in supervised contact or otherwise. Some allowance has to be made for good days, bad days and so on.

      It may be, as was suggested, that E made a special effort on the day that the independent social worker he had asked for attended. However, the evidence of the social worker and the guardian was that the majority of the contacts were not like that, that when J’s behaviour was difficult (which is more the norm) E chose to sit back and do nothing. I found that position to be confirmed by E’s own evidence before me.

      In considering Mr. Slade’s answers to questions in cross-examination, it became clear that his report had been based very much upon E’s own self-reporting. There seemed to be no attempt to go behind that. What E said to him seemed to be taken at face value and the observations were not analysed or put into the context of the history of the very concerning background. For reasons which were not ascertained from the questions that Mr. Slade was asked, he seemed to feel himself unable to go beyond the face value of the denials by E of the various problems that were reported by others.

      I sadly conclude that the report and evidence from Mr. Slade did not properly fulfil the role of an expert witness. It was concerning that Mr. Slade was not even sure which of the documents he had read.

  8. Why shouldn’t I come to Court in my pyjamas, if I chose to. From the moment I set foot in the CoP I was treated as inferior, and the judge would certainly used the pyjamas as yet another point against me as a lousy mother. What is involved – lack of respect for the Court? For an Act that is not fit for purpose, and discriminatory? I dont think any of you have any idea what it is like for an ordinary law abiding (but believing in the freedom of speech) citizen to appear in the family court, or the Court of Protection. I was treated as a criminal from the first affedavit from Surrey SS, which was accompanied by 485 pages of allegations against me which were all hearsay. As for judgments, it is only because I am extremely competent, and know how to deal with burocracy, and could pay, that I got a copy of Charles’ second judgment (which isn’t on Bailii) Have you ever tried to chase a document through the CoP? And this is just incidental, Martin and I both wanted the judgments to be in the public domain, and that took months of in fighting. Id like to talk to the person who wore pyjamas to court of course there was a principle behind it – good on him or her.

    • ashamedtobebritish

      I think you’ve talked to her if I remember correctly.
      I hear you completely on not being able to obtain judgements, I’m currently struggling with the rcj who refuse to accept an appeal due to there being no bundle … I’m struggling to put one together without the judgement that is being refused to the parents.

      • How do they get away with it. I have a personal apolgy from Mr Justice Charles re the incompetency of the whole proceedings, but of course not his fault

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