Monthly Archives: September 2018

Separate representation of a child – a thorny problem

Posted on September 20, 2018 by suesspiciousminds

 

It is well-established that in care proceedings, if a child is capable of instructing a solicitor and disagrees with the recommendations or conclusions of the Guardian that they can be separately represented, and have their own lawyer, who takes instructions directly from them.

You don’t get many cases which describe what happens where there is a disagreement about whether the child SHOULD be separately represented  (in my experience, when the child’s solicitor says that the child has capacity and disagrees with the Guardian, it is accepted by everyone and the Court that the Child should be separately represented)

So this is a case where there was such a dispute, and the Court gave a decision, and also summed up some useful guidance. It is a CJ decision, so NOT BINDING, just informative.

 

Re Z (A Child – care proceedings – separate representation) 2018

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B57.html

First things first. It was VERY very clear that the child was extremely bright. He wrote a letter to the Court setting out a table of balancing factors in the case (a task which is beyond many of the other stakeholders in the family Courts…) and he absolutely had intellectual capacity to instruct a solicitor.  One of the barristers instructed in the case described the child as having a ‘fierce, analytical intelligence’ and that seems to me absolutely on the nose.

 

  1. To assist the experts, Z prepared a detailed ten-page statement setting out his account of what has happened in the past and his wishes and feelings so far as concerns his future.
  2. The first point to make about this letter is that it bears eloquent testimony to this young man’s considerable intellect. The quality of his writing and of his arguments suggest a maturity beyond his years.
  3. In his letter Z describes the years of abuse he suffered whilst in the care of his parents and the domestic abuse he observed between his parents. He talks about the impact all of this has had upon him, especially upon his emotional well-being. He says he finds it very difficult to understand his emotions and deal with them. He has self-harmed and explains why. He describes his mother’s mental health problems and the impact they have had on him. He says that he vividly remembers ‘trying to stop my mum from killing herself’.
  4. In his letter, Z makes it clear that the outcome he seeks is to return to the care of his parents whom he forgives for the past. He does not believe there would be a risk of further abuse if he returns home. Adopting a balance sheet approach, he analyses what he considers to be the risks and benefits of returning home. He adopts the same approach to analyse the risks and benefits of remaining with his grandparents. Finally, again adopting the same balance sheet approach, he analyses the risks and positives of him remaining either in long-term foster care or in a residential placement. So far as this last option is concerned, he argues that there are no positives. On the contrary, such a placement would damage both his mental health and his education. That could make him suicidal. He says he would run away from home.

 

It was also very clear that he disagreed with the Guardian and had his own case to run.

 

  1. Z has also written a much briefer letter to the guardian and to his solicitor, Kerry Boyes. He makes the same key points made in his letter to the experts. This, though, is a more emotional letter. He says,

‘I would like it to be known that I am going to do absolutely everything in my power to make sure that these recommendations do not happen and that I hopefully move back to my parents. If not then I stay with my grandparents…Because of the present situation, I am going to obtain proper legal advice as to what I should do next. I am going to fight to get back to my parents’ care, no matter what. Every child deserves the chance to get a proper education, feel safe and secure and feel loved and cared for. Therefore, I would think it is your duty to properly review these recommendations based upon this and really think about what is in my best interests. Is it really a good idea to take me kicking and screaming away from my grandparents’ house and into a house full of strangers.’

 

  1. After these letters, on 5 th June Z wrote a letter to me. In his letter he pleads not to be ‘kidnapped’ into foster care. If the court approves a placement in foster care or residential care, Z says,

‘I would categorically refuse to go. I would not get into the car…I would run away back to my grandparents as many times as would be needed for people to listen to me. Foster care or residential care is not the right environment for me to be in.’

 

  1. Z is particularly concerned about the possibility that a move into long-term foster care or residential care would mean that he would need to change school. He says that,

‘By moving my school, you would destroy my only support network. At school…I have the support of teachers, who at times have become like second parents, and what’s more, it is one of the only places that I can be truly happy…if you forced me to move school it would do catastrophic damage to me both emotionally, socially and developmentally.’

 

That seems, therefore, to meet the two criteria for separate representation.

The argument was whether Z had the emotional capacity to instruct a solicitor and be involved in the proceedings, and what caused particular anxiety was him having unfettered access to the court documents and papers.  I haven’t seen this argument being run, so it is interesting to see how it plays out.

The Judge, His Honour Judge Bellamy, set out the principles that he had derived from statute and authorities. (Selfishly, I think it is a shame that they are not annotated to show where each principle is derived from, but you can’t have everything)

(I have put some particular interesting elements in red for emphasis)

 

  1. In deciding whether Z has sufficient understanding to instruct his solicitor directly, the solicitor (or the judge if the issue is being decided by the court) will find guidance given by senior judges in previous cases. In particular, the solicitor must have in mind:

(1)           that the child has the right to express his views freely in all matters affecting him and the right to be heard in any judicial proceedings affecting him;

(2)           that the child has the right to respect for his private and family life;

(3)           that the decision to be made relates to this child;

(4)           that the fact that the child’s views are considered to be misguided in some way does not necessarily mean the child does not have sufficient understanding to instruct a solicitor;

(5)           that the fact that the child is unwilling to accept findings already made by the court does not mean that he does not have sufficient understanding to instruct his solicitor;

(6)           that the fact that a child disagrees with an independent professional assessment of what is good for him is not sufficient to lead to a conclusion that the child lacks sufficient understanding to instruct his solicitor;

(7)           that whether the child has the capacity to instruct his solicitor will depend, in part, upon the issues involved and the child’s capacity to give reasonable and consistent instructions on those issues;

(8)           that the child’s direct participation may pose a risk of harm to him and, if it does, the solicitor must consider whether the child is capable of understanding that risk;

(9)           that a child’s understanding increases with the passage of time;

(10)       that a child’s age is not the only relevant consideration;

(11)       that not allowing the child to participate directly in the proceedings by instructing his solicitor may itself cause the child emotional harm;

  1. If the solicitor decides that the child does not have sufficient understanding to instruct his solicitor direct, the court can be asked to review that decision. The judge will come to his own independent decision after taking into account the points just made.

 

 

Those bits in red are important – a person or young person can have capacity to instruct a solicitor and tell them what to fight for without having to be dispassionate or reasoned – you can make an emotional decision rather than a coldly logical one, as long as you have the capacity to understand the facts and that there are pros and cons to your decision. Just as a parent can decide not to follow their legal advice and to instruct their lawyer to present a different case (including one that their lawyer considers is foolish), so can a young person.

 

At the actual hearing, none of the parties were supporting Z being made a party. The LA and Guardian were against it, and the parents were essentially neutral – seeing that Z had capacity but being worried about the emotional impact on him.

 

The conclusions – red is mine for emphasis.

 

  1. All three parties accept that if the test to be applied were based solely on intellectual capacity then Z should be given permission to instruct his own solicitor. All three parties express concern about Z’s emotional capacity to be able to instruct his own solicitor and about what they perceive to be the risks of allowing him to do so. All three raise a particular concern about the likely harmful impact on Z’s emotional well-being of him having access to the court documents.
  2. Z clearly has the intellectual capacity necessary to give him the ‘understanding’ required by the rules, though I accept that intellectual capacity is not the only relevant factor the court must consider when deciding whether a child should be allowed to instruct his own solicitor.
  3. Z well understands that the ultimate welfare decision which the court must make is a decision that may have a profound impact on the future direction of his life. However, the reality is that even with the help of the best professional guidance available (and that is the position I am in) neither the professionals who give that advice nor the court can be absolutely certain of the impact decision-making today will have on the future course of Z’s life. Making decisions about Z’s future involves an element of risk. Z is as aware of the reality of that as I am.
  4. In making decisions the court will have in mind the approach required by the law that Z’s welfare must be the court’s paramount consideration. The court will also have in mind that Z has the right to respect for his private and family life
  5. Concern has been expressed in the experts’ report that Z’s wish to instruct a solicitor direct ‘is part of his bid to regain control in a system populated by adults he does not fully trust to represent his needs’. In my judgment the fact that an intelligent, articulate teenager wishes to have some control of decision-making that could have a profound effect on the future course of his life is hardly surprising. Z is astute enough to realise that as matters stand at the moment, although his Children’s Guardian will faithfully represent his views to the court she will also set out her own assessment of what the appropriate welfare outcome should be. She will make it plain that she does not agree that Z’s clearly expressed wishes and feelings accord with his best interests. She is likely, therefore, to recommend to the court that Z’s wishes and feelings should not be followed. Currently, Z does not have an advocate who will not only inform the court of his wishes and feelings but will seek to persuade the court that an outcome that accords with his wishes and feelings will meet his best welfare interests.
  6. One of the reasons why the experts do not agree that Z should be able to instruct his solicitor direct is because ‘it is our assessment that Z is profoundly confused about his own mind and about his best interest’. In my experience, that confusion and uncertainty is experienced by many adolescents who are the subject of care proceedings. I am doubtful that that is a factor which should be considered, of itself, to make it inappropriate for that young person to be given permission to instruct his own solicitor. In this case, I accept that Z himself has said that he finds it very difficult to understand his emotions and deal with them. In my judgment, that does not mean that he lacks the emotional ‘understanding’ to instruct his solicitor. On the contrary, it could be said that the fact that Z recognises his emotional challenges means that he would be able to engage in an open discussion with his solicitor about the case he wishes to put before the court.
  7. All three parties express concern about Z having access to court papers in the event that he is allowed to instruct his own solicitor. In my judgment, that concern is misconceived. Z is already a party. The decision I am called upon to make has nothing to do with the issue of party status. As a party, the rules already give him a conditional right to have access to the papers. As I noted earlier, the rules require the guardian to advise the child of the contents of any document received so long as the guardian is satisfied that the child has ‘sufficient understanding’. Whether the child should be allowed to see a particular document or simply be given a summary of that document is, for understandable reasons, a matter that is left to the discretion of the guardian. The rules impose a similar duty on the solicitor. In my judgment, that duty arises whether the solicitor receives his instructions through the guardian or direct from the child. In each case the solicitor is not under a duty to allow the child to see documents that have been served upon him but, rather, ‘if the child is of sufficient understanding [to] advise the child of the contents of any documents’ received. It is for the solicitor to come to a judgment about whether the child has ‘sufficient understanding’. If the solicitor is uncertain whether the child has ‘sufficient understanding’ and whether the child should be allowed to read a document or simply be given a summary of the contents of that document, the solicitor should seek guidance from the court. The ultimate responsibility for deciding whether a child or young person should have access to the court papers is, always, that of the court.
  8. As I noted earlier, in this case the experts have prepared for Z an excellent age-appropriate summary of its report. The authors are of the opinion that it would be detrimental to Z’s welfare for him to be allowed to read the full report. For the reasons I have already given, in my judgment, if the court were to allow Z to instruct his solicitor direct it does not follow, as a matter of law, that Z then becomes entitled to unfettered access to all of the documents placed before the court. Deciding precisely what Z should be allowed to see is a matter for the exercise of discretion and is a decision in which some regard must be had to his welfare.
  9. Mr Johal expresses concern ‘about the risk of full participation’ by Z. He submits that Z lacks the insight to fully appreciate the risks of participation. The risks he refers to are the risk arising from access to the court papers (to which I have just referred) and the risk that participation ‘has the potential to significantly contribute to Z’s documented emotional and psychological difficulties and limit the future success of any therapeutic treatment.’ He does not set out in what way there is a risk to the future of any therapeutic treatment. Z has made it very clear that he is willing to engage in therapy. I do not read the experts’ report as highlighting such a risk.
  10. Set against those risks, the decisions made by senior judges, to which I referred earlier, highlight the risk of emotional harm being caused to a young person by not allowing him to participate more fully by means of having his own solicitor. In this case, Z is very concerned indeed to ensure that his voice is heard and, in particular, to ensure that his wishes and feelings about his education are understood and respected. I am in no doubt that if he were not allowed to have his own solicitor there is a real risk that that decision would cause him emotional harm.

Conclusion

  1. I have come to the conclusion that in this case Z does have the ‘understanding’ required by the rules to enable him to instruct his own solicitor. There are no sufficient welfare reasons why that should not happen. I shall therefore order that Z has permission to instruct his own solicitor. It is important that the solicitor appointed is appropriately experienced and skilled for the task in hand. That is an issue I will return to when judgment is formally handed down.

 

 

A lot of useful content there, particularly for Guardians and children’s Solicitors.

 

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You would think this would go without saying… but it has been said

Posted on September 20, 2018 by suesspiciousminds

 

Section 91 of the Children Act 1989 says this

(1)The making of a child arrangements order with respect to the living arrangements of a child who is the subject of a care order discharges the care order.

 

and

 

(2)The making of a care order with respect to a child who is the subject of any section 8 order discharges that order.

 

(A child arrangements order with respect to living arrangements – residence in old money, ‘custody’ in Daily Mail/Eastenders parlance is a section 8 order)

 

So in plain language – if you have a residence order and you then make a care order, the residence order is discharged. If you have a care order and you make a residence order, the care order is discharged.  If one exists, the other dissolves into nothingness.  You can either have your cake, or you can eat it – you can’t both eat it and have it.

There is no Schroedinger’s Cat scenario where the child arrangements order and care order simultaneously exist *

 

(*theoretically this is POSSIBLE, but only in a universe where it is possible for a Judge to announce that there is a care order at exactly the same pico second as announcing there is a child arrangements order so they are both birthed at exactly the same instant and thus neither one of them predates the other or succeeds the other and thus neither one cancels the other out.  It will not astound you to know that the Court in this case did not manage to achieve pico second delivery of a decision. )

 

It’s therefore

(a) surprising that the Magistrates in this case made both a Care Order AND a child arrangements order

(b) not surprising that they were appealed

(c) blindingly obvious that the appeal was successful

 

This is such an obvious interpretation of section 91 that it is more than a little surprising that anyone even tried to defend the position, but such is sometimes the role of a lawyer instructed to oppose an appeal.

It was an attempt, based on the wording of section 9

 

9(1)No court shall make any section 8 order, other than a child arrangements order to which subsection (6B) applies, with respect to a child who is in the care of a local authority.

 

(section 6B being a live with order, or residence in old money)

 

Aha, argues dad’s lawyer, section 9 says that the Court CAN make a lives with child arrangements order whilst there’s a care order.

And indeed it can, and this is something that does happen.

You just then go to section 91 to see what the effect of that is, that the care order then dissolves. You can’t have both at the same time.  Can’t eat your cake and have it. One or the other.

 

A large part of me just thinks that this appeal is blindingly obvious and that nobody needed to know the answer to this question, because the Act is so clear, but obviously I’m wrong because the error was made. Hopefully nobody will do it again.

 

Re X and Y (appeal against care order) 2018

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B55.html

(I note also that whichever Judge heard this appeal from the Magistrates and published it, they didn’t choose to identify themselves…)

 

  1. Mr Powell argues that s 9 of the Children Act 1989 including the explanatory notes, makes no reference to s 91 impacting on its operation, and that s 9 does not say it is subject to s 91. He argues that s 9 (1) permits the two orders to sit alongside each other, as its terms are unambiguous and it carves out an exception to s 91. He points out that there is no explanatory note in the Family Court Practice 2018 that deals with this matter. He argues that the context of where s 9 sits in the scheme of the Children Act 1989 is important, as it is that it appears under the heading ‘Restrictions on making section 8 orders.’  Mr Powell argues: why have that if it is not to carve out an exception? He argues that this was a deliberate attempt by the legislature to carve out an exception to the general rule under the Children Act.

 

  1. Mr Laing supports the appeal. In his written submissions, he sets out the legal framework. I agree with his reasoning, both as to the correct statutory interpretation and its effect. It is a reading that is supported by the authors of Hershman and McFarlane and Clarke, Hall & Morrison . Mr Laing correctly sets out that: the only form of child arrangements order that can be made where a care order is in force is a “lives with” child arrangements order (s 9 (1) and (6B) of the Children Act 1989); the making of a “lives with” child arrangements order discharges a care order (s 91 (1)); and, the making of a care order discharges a “lives with” child arrangements order (s 91 (2)).

 

  1. Mr Laing also draws my attention to the ruling of in Booth J Hounslow Borough Council v A [1993] 1 FLR 702, where it was held,

 

“ A care order itself automatically discharges any residence order that might be existing in respect of the child at the time the order is made. As Miss Hudson submitted before me, a residence order and a care order are two orders which are incompatible. They cannot both stand together. A residence order is clearly inconsistent with a care order and vice versa” , at 706 .

 

  1. Mr Laing argues that the position has been the same since s 91 of the Children Act 1989 first came into force on 14 October 1991, and has remained the case throughout the eight iterations of section 91 since then.

 

  1. Mr Laing submits that there are good public policy reasons for that. [Generally], no order under s 8 of the Children Act 1989 can stand alongside a care order for a simple reason: once a care order is made, it is not for a court to interfere with a local authority’s exercise of parental responsibility, save for as permitted within the framework of public law proceedings.

 

  1. I agree. I find that, in error, the lay justices conflated the jurisdiction they had to make a “lives with” child arrangements order with the effect of the making of that order. Whilst they had jurisdiction to make the order, the effect is to discharge the care order, which they clearly did not intend.

 

  1. Their decision was therefore wrong. I allow the appeal and set aside para 16.2, i.e. the “lives with” component of the order d. 22 June 2018.

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Tense – nervous, headache

Posted on September 19, 2018 by suesspiciousminds

 

This is a case in which the Court of Appeal unpicked a decision of a Circuit Judge, where the tenses that were applicable to the threshold criteria became confused.

 

I don’t myself much care for the way that the constructors of section 31 brought tenses into the definition, particularly because they involve some semantic dancing on the head of a pin to the way that people actually consider the threshold in practice. I wrote earlier this year about the Court of Appeal decision that largely turned on the common conflation of ‘is suffering’ (which is what the statute says) and ‘has suffered’ (which is what everyone in Court always says, largely because you are talking about something that inevitably happened in the past but having to do so in the present tense) . In that case, having lectured everyone on the need to stick to the language of the statute ‘is suffering’, the Court of Appeal forgot its own advice and talked frequently about ‘has suffered’

 

Hence the title, and by now, you could probably do with an Anadin yourself

 

 

 

Re K (A child : Threshold findings) 2018

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2044.html

 

  1. On 18 May 2018 HHJ Tolson QC sitting at the Central Family Court dismissed an application for a care order and instead made a private law order that a little girl, then aged six months, to whom I shall refer as K, should live with her mother. The basis for this outcome was that the judge found that the threshold for intervention under section 31 of the Children Act 1989 had not been made out. This appeal by K’s children’s guardian, for which I gave permission on 17 July, is supported by the local authority but opposed by the mother.
  3. Events since the making of the judge’s order have led to this appeal becoming historic. The local authority issued further proceedings on 14 August, and on 23 August K was removed from her mother’s care and placed in foster care under an interim care order. The outcome of these earlier proceedings is nevertheless of some significance as providing a baseline for future decisions. In the circumstances I describe the background in only the broadest detail and avoid making any observations that might bear on welfare decisions yet to be taken by the Family Court.

 

One might well think that a Judge who had decided that there was no likelihood of future harm for a child is on thin ice before the Court of Appeal when the appeal arrives and the likelihood of future harm has developed into actual harm leading the child to have to be removed.  That could just be bad luck, of course.

 

  1. The evidence that the judge heard showed that the mother had done reasonably well in the foster placement and that no harm had come to K since her birth. Nonetheless, when the matter came before the court for final hearing on 23 April, all parties invited the judge to adjourn to allow for further expert evidence and the assessment of other potential carers. The judge refused this application as well as other adjournment applications made during the hearing. He said in effect that he would “see where we go”. His approach led to uncertainty in the minds of the parties as to what was and what was not within the scope of the hearing. That approach is challenged in the grounds of appeal, but the parties are agreed, rightly in my view, that it is no longer necessary to investigate that aspect of the matter.
  3. In the course of his judgment the judge described the mother as having been a deeply troubled teenager. He considered the report of an independent social worker who had acknowledged the mother’s ability to look after K’s basic care in a highly supported environment but gave the opinion that her volatility would prevent her from giving safe, consistent and nurturing care in the community. That was also the opinion of the allocated social worker and of the guardian, who advised that K would not be safe if placed in her mother’s independent care. The psychiatric expert initially expressed cautious optimism but tempered this when she received the other professional opinions. The judge however did not accept this evidence, essentially on the basis of the mother’s performance since K was born. He emphasised that the language of “risks” and “concerns” was not good enough. He was impressed by the mother’s presentation in court. The judge found and was entitled to find that the mother had not been volatile around or towards K. He posed this question to himself:
    1. “Accordingly in my judgment the question whether, when the mother was first placed in the mother and baby foster placement, she was likely to be volatile around her own child has to be judged in large manner by her actual behaviour around [K]. There is no evidence that she is anything other than calm when around [K]. There have been no incidents with the foster carer despite the latter’s, as the professionals say, too-intrusive approach.”

He concluded that while there was reason to believe that the threshold was crossed at an interim stage when the proceedings began, “My judgment on this evidence is that there neither is nor was a likelihood of significant harm to this child”. He continued:

“The possibility, which I acknowledge exists, that the mother will be so volatile in future that he daughter suffers significant emotional harm is one in my judgment which can sensibly be ignored in the context of the threshold justifying state intervention. This, I emphasise, is not to say that the professionals are wrong. I can of course acknowledge that we may be back in court in months’ or even years’ time with the professionals telling me that I was the one who got it wrong. I hope I can profoundly respect their opinion. It is simply the case that on this evidence I cannot be satisfied that the ‘risks’ and ‘ concerns’ which they identify establish the necessary likelihood.”

 

 

The judicial conclusion that the case did not warrant or justify adoption or separation was not the subject of the appeal. The appeal focussed on whether the Judge was wrong in law to conclude that threshold was not crossed and whether he made two separate errors – the first, in considering the likelihood of significant harm to be based on the facts as they were at the time of the final hearing rather than at the date of issue/intervention, and second in tying together the issue of whether threshold was crossed and what the welfare decisions for the child should be.  (In effect, whilst a Judge HAS to take the harm into account when deciding the right order, he or she ought not to take into account what the plans for the child might be when making the factual decision as to whether threshold is met)

 

The first of these is interesting. It does seem to fly in the face of common sense – if a Court is deciding whether to make an order on the basis of future harm, surely they look at the facts as they present at the time of making the order? Well, yes and no.  That’s massively relevant when deciding whether to MAKE the order, but not at all relevant in deciding whether the threshold criteria were met at the time of issue.  The threshold issue is a purely factual analysis, and the welfare issue is balancing up all of the facts and deciding whether an order is proportionate, necessary and better for the child than making no order.

 

In bald terms – if a mother is misusing heroin before the baby is born, then that is a fact which can satisfy the threshold at the time of issue and meet the threshold criteria for making a final order. But the mother being abstinent for six months of the proceedings, having insight into the problems heroin caused her and working hard with support groups is a massive factor in whether an order is needed at all, and if so, what sort of order should be made.

 

(Think of threshold as being whether you get into a nightclub at all, and welfare as being the range of options available to you once you are in there – you can get drunk, dance, flirt with people, get into a quarrel, or leave having had an uneventful evening)

 

  1. On behalf of K’s guardian, Ms Porter argues that the judge was wrong to limit his consideration of the threshold to the mother’s direct behaviour towards K. Instead he should have looked at the wider context, as required by section 31. She next argues that he paid insufficient attention to the relevant date for consideration of the threshold, namely the time when protective action was taken. Lastly, he allowed the issues of threshold and welfare outcome to become entangled, repeatedly referring while considering the issue of threshold to the need for rigorous scrutiny of the option of what he described as “state-sponsored adoption”. These submissions are echoed by Ms Rahman for the local authority. In response, Ms Hibbard, who appeared below for the mother also, argues that the judge did not misdirect himself in any way. She points out that he gave reasons for disagreeing with the professional assessments of risk based upon the mother’s actual care for K.
  3. We are grateful for the clear and precise way in which the arguments have been presented. Having considered them, I am in no doubt that the judge’s decision that the threshold for the making of a public law order was not met in this case was wrong for the following reasons.
  5. Firstly, the case put by the local authority and the guardian was based on the whole of the history, which covered not only events during K’s short lifetime but all the evidence, including incontrovertible evidence concerning events that took place before she was born and while her mother was pregnant with her. By limiting his consideration to the way in which the mother had behaved with K, the judge excluded from his consideration the solid wall of evidence relating to the mother and father’s personal histories. Had he taken a full overview of the matter, it would have been overwhelmingly apparent that at the time proceedings were taken in November 2017, there was a likelihood of harm to K as a result of her being born to two very young and volatile parents. The professional evidence did not consist of expressions of “risks” and “concerns” with no basis in fact. Here the facts were plain, and the likelihood of harm arose from them. Those facts undoubtedly disclosed risks of significant harm that could not sensibly be ignored. In this case the threshold under section 31(2) of the Children Act 1989 was not only met, it was obviously met.
  7. Secondly, the judge misdirected himself by failing to focus on the relevant date of his assessment, namely whether, at the time when protective measures were put in place and using the statutory tense, K “is likely” to suffer significant harm. Instead he became distracted by the mother’s performance in the mother and baby foster placement. That evidence could only influence the assessment of whether the threshold had been crossed insofar as it might shed light on the significance of the evidence as it stood at the relevant date: see G (Children) [2001] EWCA Civ 968 at paragraph 23. Here, however, there was no suggestion that the later evidence cast new light on the earlier evidence in a way that lessened its significance, and that is certainly not how the judge approached the matter. Had he asked himself the right question – was the threshold satisfied at the date proceedings were issued? – there could only have been one answer.
  9. Thirdly, the judge entangled questions relating to the welfare outcome with the question of whether the threshold had been met. The judge’s role is to find the facts, apply the threshold test to them and, where appropriate, make welfare and proportionality evaluations. These are separate exercises, one leading to the next. It is quite possible to reason that the threshold has been crossed but that welfare does not require separation of parent and child. It is not possible to reason that, because the child and parent should not be separated, the threshold has not been crossed.
  11. For these reasons, if my Lord agrees, this appeal must be allowed to the extent that the judge’s finding that the threshold of likelihood of significant harm had not been crossed must be set aside

 

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You’ll find us all, doing the Lambeth Walk (oy!)

Posted on September 10, 2018 by suesspiciousminds

 

Gosh, it’s been ages.  Not been any juicy cases to write about, as the big beasts of the High Court are all on holiday, but this is an odd one.

 

It is a Court of Protection case, involving a woman who lacked capacity and whether she should be transported back to her home country of Colombia, interminable wrangling about the costs of transporting a wheelchair, a Court hearing where nobody shows up much to the Judge’s chagrin, and an eventual description of the approach of the public bodies as ‘verging on petulant’  with costs orders following.

London Borough of Lambeth v MCS & Anor [2018] EWCOP 14 (31 August 2018)    

http://www.bailii.org/ew/cases/EWCOP/2018/14.html

 

  1. The documents do not reveal a clear picture, but it appears at least likely that P may have been ready for discharge in 2014; self evidently by the date of P’s assessment on 9 January 2017 P was clinically stable and ready for discharge. In fact I am certain that those conditions arose much, much earlier. It should be recalled that the original application to the Court (made by P’s RPR) was itself an application dated 20 December 2016, challenging P’s deprivation of liberty, pursuant to section 21A of the Mental Capacity Act 2005, made out of frustration because, despite the local authority and the Lambeth CCG supporting P’s wish and desire to return to Columbia, they had simply failed to progress it. “Support” has always been offered, and is still, but when something concrete had to be done, they have been found wanting. Even with the institution of proceedings, it has taken a year to achieve what should have been organised much, much earlier, and significantly, proceedings should have been, and were, unnecessary; all of this could and should have been achieved outside any application.

 

Bear in mind that this woman was ready for discharge in 2014 and the unit she was in was costing £2,000 per week, there ought to have been at the very least a financial incentive to move this along and get her back to Colombia where she wanted to be.   It has cost nearly a third of a million pounds to keep someone in a place where she didn’t want to be, when she could have gone back to her home country.

(Having been rebuked on Twitter during the World Cup for conflating Columbia – the city, with Colombia the country, I am spelling it correctly during this piece, although the judgment does not)

 

The Judge captures the human misery of this awful situation very well.

 

  1. There has never been any formal provision supporting P’s need for Spanish speaking staff, which at best has been provided on an ad hoc basis. P is distressed by receiving care from people who cannot speak Spanish, this has happened almost every day, several times a day, for over 3 years. It takes very little imagination to consider how additionally miserable and isolated she must have felt. Reports describe her as distressed, feeling like she is drowning, feeling scared, complaining of pain, each impacting severely on her everyday wellbeing.

 

  1. Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.

 

Some of the hearings in this case were just a debacle

 

 

  1. At the hearing on 16 November 2017, very distinct progress towards repatriation had finally been achieved. Frustratingly, there were however, still significant details missing, not just an interim plan if there was a delay, but there was no detailed transition plan. I have seen some of the documents in relation to this and they are depressingly scant; frankly, they are unedifying. I entertained the hope, since the remaining matters seemed really very straightforward, that it might even have been possible to agree a draft order encompassing the transfer to Columbia and the deprivation of liberty involved in that move. Accordingly I felt able to make qualified declarations (including being transported to Columbia). But a detailed and realistic transfer plan was obviously still necessary. A proposed draft transfer schedule was provided for that hearing, but it was a poor document lacking any detail, proposing transfer on 20 December 2017.
  3. In view of the history, the shocking history, I made provision for a “long stop” hearing on 13 December 2017 whilst sitting on circuit (hoping still to retain the transfer date of 20 December 2017). I do not think I ever received a position statement from the applicants, who attended by new counsel, who had been inadequately instructed. No one from the applicants, CCG or solicitors had the courtesy to attend. To say this was unfortunate (leaving aside any other issues) is an understatement. No transfer plan had been filed, and important missing detail prevented any progress being achieved. No one appeared to be qualified to make what in some instances were trifling decisions involving a few hundred pounds, e.g. innumerable communications occurred over the provision of, cost of, source of, import duty on, or who should pay for the transport of a wheelchair so urgently required by P, far, far exceeding the cost of the chair itself. Information was given to the Court in relation to, for example, the air ambulance, which subsequently appeared to be wholly misleading and totally without foundation. The approach taken was unhelpful and, at times, verging on petulant. Despite my best efforts it appeared to reflect a deeper, most unfortunate perspective that has, from time to time, permeated these proceedings. In any event, as I say, no one had the courtesy to turn up, so nothing constructive could be achieved at all. Yet again the case was listed for hearing on 19 December 2017, making detailed and contingent directions.
  5. At that hearing, absolutely astonishingly, I was told that, whilst the CCG had approved funding for P’s flight to Columbia, it had arranged its meeting inter alia in relation to the cost of transporting the wheelchair and any import duty in Columbia (see above) for 20 December 2017, the following day – apparently those concerned were rather busy with other meetings. An additional issue concerned the provision for the cost of any care if P was taken ill on the flight; who would pay, was it possible to obtain insurance? The authority, in common with its actions before and since the institution of proceedings, conducted itself without regard to anything else, certainly not the welfare of P, and yet further evidence that the institution of proceedings had had no effect. They have had no regard to Court orders, or the involvement of the Court. This hearing occurred just a day short of the first anniversary of the issue of proceedings, and still the simple goal seemed a mile away.

 

Bear in mind that the unit was costing £2000 per week, and that the hold-up was the cost of flying a wheelchair that she needed out with her, this is just crazy.  Even if you paid for the wheelchair to go first class, that’s just 2-3 weeks of the unit. And as the Judge rightly noted, it would surely have been cheaper (even ignoring legal costs) to have just bought a wheelchair in Colombia and avoided the flight costs.

 

  1. Finally, on 15 January 2018, it was possible to approve a final order. Contrary to previous occasions when either no one attended, or those present had not obtained delegated financial responsibility, on this occasion, what should have occurred much, much earlier, probably years ago, was obtainable, and significant assurances and undertakings were forthcoming for the provision of care in the unlikely event P was taken ill in transit and required hospitalisation en route. All that should have occurred several months earlier and it is entirely symptomatic of the malaise which has beset these proceedings from the outset. For which P has been the unhappy victim, and the Applicant entirely responsible.
  3. P left the UK on 25 January 2018 by air ambulance. Her move is described thus:
    1. “The move went very well. There were no health concerns en route. P remained calm, restful and slept during the journey. The ambulance crew were extremely impressive and efficient. The doctor could speak Spanish. Upon arrival P “recognised many of her relatives and smiled all over her face.””

Finally, a happy ending to a tragic story.

  1. I set out a summary of these unhappy proceedings, not just because they should not have been necessary, but to highlight the very deeply frustrating and disorganised thinking, planning and management within the authority. As a result a vulnerable adult has been kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary. In my best estimate, for 3 years.

 

 

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