RSS Feed

Search Results for: wardship

The Ashya King wardship judgment

We have all been eagerly awaiting this, and it is now out.

 

This is the judgment given by Mr Justice Baker in the wardship proceedings, setting out the reasons why on Friday of last week a solution was reached that Ashya would be able to receive proton-beam therapy treatment in Prague. Ashya is no longer a ward of Court, and all decisions about him will be made by his parents.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2964.html

 

It is not one of those rambling long judgment that would be incomprehensible to non lawyers – it runs about four pages and most of it is in plain English. I don’t often suggest that normal human beings read a judgment, but in this case, I would. It is a very good piece of work by Baker J  (not surprisingly, he writes a good judgment)

 

[It doesn’t answer my law geek question of whether the parents received free legal representation – I hope that they did. They were certainly represented, and the firm they used does do legal aid work. And there’s no debate at the end about costs, so I hope they got legal aid. One suspects that even the Legal Aid Agency had enough common sense to not want to be seen to be saying that the family should spend their treatment fund on lawyers]

The judgment focuses rather more on treatment and the future than a forensic delve into the past and what has gone wrong (understandably, because a solution had been arrived at that would please everyone, and also because if there is to be any suing going on about what happened it is likely to focus on the issue of the European arrest warrant and the arrest and detention of the parents, which is outside of the scope of the family Court)

 

What the Judge does say about the application for wardship itself is this :-

 

32 When Mr and Mrs King took Ashya from hospital on 28th August, the medical staff were understandably very concerned that the boy would suffer significant harm by being removed from the specialist care they were providing. When the local authority was informed about what had happened, and that it was believed that the parents had left the country, the social workers understandably concluded that there were reasonable grounds for believing that Ashya was at risk of suffering significant harm by being driven across Europe without medical assistance at a time when he urgently required post-operative therapy. I therefore conclude that the local authority acted entirely correctly in applying to the High Court, and further that Judge Arthur was right, on the evidence before him, to make Ashya a ward of court. My comments are confined to the matters within the family jurisdiction. I make no comment as to whether or not it was appropriate to seek a European Arrest Warrant. I merely observe that one consequence of this course was that Ashya was separated from his parents and left alone for several days in the Spanish hospital. As I observed at the hearing on 2nd September, whatever the rights and wrongs of his parents’ actions, it was not in Ashya’s best interests to be separated from them in such circumstances.

  1. The steps taken by the local authority and Judge Arthur on 29th August were entirely justified on the evidence then available. As at that date, there were reasonable grounds for believing that Ashya was at risk of suffering significant harm. A week later, the picture had changed and the court was faced with a completely different decision.

 

 

I’m sure that there will be many who think otherwise, but this judgment is very helpful in setting out the facts of the case when there has been so much speculation.

 

I am pleased that Ashya is back with his parents and that he is receiving treatment, and whatever else we might feel about this case, I’m sure that all of us wish him and his parents all the very best for the future.

 

 

 

What is wardship?

 

I suspect that there will be a few people, including some journalists, who want to understand what Wardship is today.  (If it is okay, I’m going to try not to say too much about Aysha King specifically today, because the case is now before the Court and hasn’t been decided – the case is now in the High Court, a wardship order has been applied for and the Judge Mr Justice Baker has adjourned the case until Monday, to give the parents time to get lawyers and put their own position before the Court. But I will touch on what these things might mean for the King family at various points)

 

What is wardship?

 

If you aren’t a family lawyer, the only time you’ll have come across someone being a Ward is Dick Grayson being Bruce Wayne’s ward. (which seemed to involve very little in the form of care and nurture and much more in the form of dressing up garishly and fighting armed goons)

Wardship is quite an old phenomenon whereby a High Court Judge makes decisions about what is best for a child and no significant steps can be taken in relation to that child without the Court approving it. They were very common pre Children Act 1989 and were at that stage a creation of common law (i.e the law about Wardship was invented and adapted by Judges, rather than having been a law invented by Parliament and set down in an Act)

 

In fact, pre Children Act 1989 they were often a route for children being taken away from parents and placed into the care of a Local Authority.  (there was a power in the Family Reform Act 1969 to let them do just that, so the power kicked around for twenty years)

 

{Edit – am grateful to David Burrows for advising me that the child becomes a ward of Court on issue of the application, though the Court can of course decide whether that continues once they hear the case}

 

What are the powers of Wardship?

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

 

The Practice Direction 12 D is quite helpful in explaining Wardship

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12d
1.1
It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –

(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

 

[You can see that (c) and (e) are pretty relevant to Aysha’s case]

Let’s look at it this way – the Children Act is like Batman – there are all sorts of powers and tools and gadgets in there, but they are all prescribed and laid out. You know if you bump into Batman that he has fighting prowess and Batarangs and Shark Repellent. But he can’t suddenly fly or shoot laser beams from his eyes or lift up a train. There are limits to Batman’s capabilities and we know what they are.  The Inherent Jurisdiction is more like Superman –  he can do pretty much anything you can think of (including, if you rely on the movies, flying around the world backwards to turn back time…  LET IT GO, Suesspicious Minds, get over it)

 

And just like Superman, Inherent Jurisdiction has huge power, but it also has Kryptonite

 

What can’t be done under wardship?

 

When the Children Act 1989 was being devised, there were people who wanted to get rid of wardship altogether, but they were finally persuaded to keep it, but to put into the Children Act 1989 a limit to its power.

 

s100 Children Act 1989 Restrictions on use of wardship jurisdiction.

(1)Section 7 of the M1Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2)No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a)so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)so as to require a child to be accommodated by or on behalf of a local authority;

(c)so as to make a child who is the subject of a care order a ward of court; or

(d)for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3)No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4)The court may only grant leave if it is satisfied that—

(a)the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5)This subsection applies to any order—

(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).

 

 

English please?

 

(i) The Court can’t use wardship to put a child in the care of the Local Authority.  That is important because otherwise it would let Judges put children into care even where the threshold criteria for making Care Orders wasn’t met.    [For Aysha’s case, that means that even if the Court make a wardship order, that does not amount to the child coming into care]

(ii) The Court can’t make a wardship order and then say “Local Authority, you make the decisions, I’ll leave it to your discretion”  – if there’s a wardship order, the High Court have to make the individual decisions

(iii) The Court can’t use wardship to do something that could be achieved by any other power in the Children Act   (i.e if you can get the job with Batman, Superman won’t be able to show up and help even if you prefer Superman)

 

Also, although this is not spoken of very often, all of the Human Rights Act provisions apply to wardship cases – so there is the article 6 right to fair trial and the article 8 right to private and family life which means that wardship can only be made if it is PROPORTIONATE and NECESSARY.    [There’s an intriguing section of the Supreme Court judgment in Re B, where Lord Neuberger is talking about article 8’s “necessary” test and says that for those purposes he adopts Lady Hale’s formulation of “nothing else will do”   – that doesn’t seem to have been picked up on generally yet to the extent that it was picked up on for Adoption cases]

 

Who can apply for wardship?

 

As you can see from the Kryptonite section, the Local Authority can apply, but ONLY if they can satisfy the Court that there is reasonable cause to believe that failure to apply would be likely to cause significant harm to the child. That is not an easy hurdle to cross – particularly since if that test applies they would have remedies under the Children Act 1989  (Emergency Protection Order, Interim Care Order, Recovery Order)

They can also be issued by a connected person, generally a parent  – and that’s usually where there’s a fear of abduction of the child to another country or an attempt to get the child returned.

Wardship applications can, and have, been issued by hospital Trusts seeking a declaration from the Court about medical treatment for a child, and that’s probably what has happened in Aysha’s case.

It is theoretically possible that the police could apply, but I’ve never come across such a case.  They might be reluctant to do so, since making the child a ward of Court means that the child can’t be interviewed without approval of the Court.

 

When does wardship run out?

 

It runs for as long as the Court want it to last, but the longest it can last is until the child is no longer a child. There aren’t any formal applications to discharge or revoke a Wardship order, but in practice, a person would seek a hearing before the High Court to persuade the High Court that wardship was no longer needed.

 

What about getting free legal advice?

 

This is a tricky question. If there’s an application for care proceedings, then the parent automatically gets what is called “non means, non merit” public funding  – what does that mean? Well, it means that a parent gets free legal advice and representation to fight the case even if they are a millionaire  (non means) or even if someone looking at the case would think that their argument is poor (non merits)

The next tier of public funding is those matters set out in Schedule 1 of LASPO http://www.legislation.gov.uk/ukpga/2012/10/schedule/1/enacted  which can get public funding if they meet a means and merit assessment. Wardship is NOT in there.

Eep. What now?

Well, the final tier is Exceptional funding under s10* of LASPO.  If you are a lawyer, you are already wincing. This allows the Legal Aid Agency to grant free legal advice to exceptional cases where not having free legal advice would breach a person’s human rights.  Hardly ANY of these have been granted.

http://www.familylaw.co.uk/news_and_comment/four-family-law-applications-for-exceptional-case-funding-have-been-granted-between-april-and-june-2014#.VAXrAGOgktV

In the last year, of 821 applications, 8 were granted. And only 4 for family cases.

 

Even if you could get public funding on exceptional circumstances – well the bad news is that that is still means tested.  What does that mean? Well, it means that if you have capital over £8000, you can’t get free legal representation.

(If you are wondering, yes, the Legal Aid Agency would treat all of the King family’s savings, and any donations for the treatment fund as capital.  It is not money that they would disregard or ignore. At the moment, this case is a police/nhs scandal, but it is about to become a legal aid scandal too)

 

What are your options if you CAN’T get free legal advice?

 

You could represent yourself. Not ideal in the High Court, dealing with life-changing and complicated things.

You could arrange a McKenzie Friend. There are some good and helpful ones, but a stand-alone wardship case is really very difficult.

You could contact the bar pro bono unit  (there are lawyers who will represent you for free.  http://www.barprobono.org.uk/

Or you could instruct lawyers paying privately and hope to win the case and get a costs order against the applicant. Cost orders aren’t easy, since if the applicant made the application in good faith and has not behaved dreadfully, it isn’t as simple as just “If there’s no wardship order the other side will have to pay costs”   – having said that, in a case like this, where the parents would be spending money that they want to spend on treatment, there might well be a sympathetic consideration of any costs application.

 

 

 

*{corrected, from s11 LASPO, my mistake. Thanks to David Burrows for spotting it}

In which MacDonald J asks the question and answers it in paragraph 1 of the judgment

 

Which is something that I’d like to see more often.

 

The question before me is whether the High Court has power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid. I am satisfied that the answer to that question is ‘no’.

 

In essence, that question arose because the Local Authority had read some of the previous authorities on radicalisation or alleged radicalisation of children to suggest that they ought to be issued as wardship proceedings (which doesn’t get non-means, non-merits legal aid) rather than care proceedings (which do).  That doesn’t feel right, because parents in such cases really do need legal representation.

A scheme so cunning you could put a tail on it and call it a weasel was devised (either nobody invited the LA to simply issue an application for care proceedings so that there would be legal aid for the parents or they did and the LA refused, I don’t know), but anyway an intricate scheme was attempted instead.

As you can see, MacDonald J said no to that.

HB v A Local Authority & Another  (Wardship Costs funding order) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/524.html

 

However, MacDonald J clarified that in his mind, there was no obligation for an LA on a radicalisation case to issue solely in wardship and not in care proceedings.

In the circumstances, I am satisfied that, contrary to the view taken by the local authority, neither Hayden J nor the President have sought to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation.

 

MacDonald J shoots up in the league table of my estimation by also dissecting the much discussed homily that the ‘powers of the inherent jurisdiction/magical sparkle powers are theoretically limitless’

 

I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.

 

  • Whilst the inherent jurisdiction is theoretically unlimited, it is, in reality, constrained by proper limits. In London Borough of Redbridge v SA [2015] 3 WLR 1617 Hayden J observed as follows at [36]:

 

“The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.”

In R v Central Independent Television Plc [1994] Fam 192 at 207-208 Waite LJ noted:

“The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have nevertheless found it necessary to set self-imposed limits upon its exercise for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages.”

 

  • Within this context, I am satisfied that the limits that are properly imposed on the exercise of the inherent jurisdiction for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages in this case are those that must be applied when considering the nature and extent of the court’s jurisdiction to order a public authority to incur expenditure. As Lord Sumption pointed out in Prest v Petrodel Resources Ltd [2013] 2 AC 415 at [37], courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. Imposing the limits that I am satisfied must apply, I regret that I cannot accept the submission of Mr Hale and Mr Barnes that the inherent jurisdiction of this court is wide enough to encompass a power to order a public authority to incur expenditure in order to fund legal representation in wardship proceedings for a parent who does not qualify for legal aid because that parent does not satisfy the criteria for a grant of legal aid laid down by Parliament, notwithstanding the considerable benefits that would accrue to the parent, and to the child, from such funding.

 

 

 

 

 

Human rights, damages and costs – important case

Not sure this is the last nail in the coffin of HRA damages claims piggy-backing on care proceedings, but the bag of nails certainly isn’t full any more.

Be grateful it is nails. As the LA is Kirklees, I've been trying to think of a Shatner reference...

Be grateful it is nails. As the LA is Kirklees, I’ve been trying to think of a Shatner reference…

 

The High Court have given judgment in Re CZ (Human Rights Claim:Costs) 2017

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/11.html

 

The fact that there was a breach is impossible to deny and the LA accepted it. (Even looking at the recent steer from the Hackney authority that failure to follow guidance does not amount without more to an actionable claim, this one goes far beyond that)

12.CZ was born by emergency caesarean section at X Hospital on 6 November. It was a traumatic birth and CZ was for a short time placed on the Special Care Baby Unit (‘SCBU’). The baby was slow to feed, and showed temporary normal post-birth weight loss. That said, no child protection concerns were raised by the staff on SCBU nor on the ward to which he was discharged.

13.On 10 November 2015, the Local Authority received a referral from the X Hospital maternity ward; concerns were raised regarding the long-term parenting capacity of this mother and father. It was suggested that the mother had no family support, and that the father was expressing unorthodox views about the need for sterilisation of bottles, and the benefits of formula milk. It was nonetheless noted, in the referral, that the paternal grandmother of the baby was being supportive to the couple and was planning to move in with them at least in the short-term after discharge from hospital.

14.On the following day, 12 November 2015, the maternity ward staff reported to the social worker that CZ had put on weight, but that they remained concerned about the feeding plan and wished to monitor him further. The social workers did not visit on this day.

 

15.On 13 November 2015, the social worker visited the hospital at about lunchtime and was advised by staff that CZ had again gained weight; the staff had no further concerns about the baby, who was reported to be well enough to be discharged. This was, indeed, planned for later that day.

The LA made an application on 13th November 2015 on short notice to Court for an ICO. The parents did not attend that hearing. The LA assured the District Judge three times that the parents had been informed of the hearing. They also assured the District Judge that the parents agreed with the plan for the child to be placed with grandparents. A Guardian did not attend (the LA emailing CAFCASS minutes after the hearing apologising for forgetting to notify them)

 

It turned out that the parents had NOT been informed of the hearing. They had been told by the social worker that the LA planned to start care proceedings but not that there was a hearing imminently and when it was. Whilst the mother had agreed s20 accommodation, the father had not.

At a hearing on 20th January 2016, the parents through their solicitors gave notice that they wanted to challenge the ICO. At a hearing on 27th January 2016, the LA attended and set out that they did not consider that the threshold criteria was met any longer and sought to withdraw their application. The proceedings ended and the child returned to the parents.

The HRA claim was made on the basis of breaches of article 6 and article 8.

33.The Local Authority concedes that I should make the following declarations:

  1. i) It breached the parents and child’s right to a fair trial, pursuant to Article 6 ECHR when it failed to inform them and/or Cafcass of the urgent hearing which was held at 3p.m. on Friday 13 November 2015; this breach is compounded by the fact that the Local Authority repeatedly informed the court that the parents had been so notified;
  2. ii) Between 13 November 2015, and, at the latest, 7 December 2015 (the next hearing date), the Local Authority breached the rights of those named above to a family life as enshrined in Article 8 ECHR. The parents did not live in the same household as their son for that period albeit they enjoyed extensive contact to one another. The child was placed with the paternal grandparents in their home.

These concessions were made at an early stage of the process, and were shared with the court on 14 July 2016,

 

Cobb J ruled that :-

41.In this case, I am satisfied that the breaches of the Claimants’ ECHR rights were serious, a view which I expressed in the presence of the lay parties at the hearing. This was plainly not an exceptional case justifying a ‘without notice’ application for removal of a baby from the care of his parents (see Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), and it is questionable whether there was a proper case for asserting that CZ’s immediate safety demanded separation from his parents at all: Re LA (Children) [2009] EWCA Civ 822. The failure of the Local Authority to notify the Claimants that the hearing was taking place on the afternoon of 13 November was particularly egregious; misleading the District Judge no fewer than three times that the parents knew of the hearing aggravates the culpability yet further. This infringement will rightly be subject of a declaration of unlawfulness (see above), and to a very great extent this represents the essential vindication of the right which they have asserted.

42.The separation of a baby from his parents represents a very substantial interference with family life, and requires significant justification. In this case, my assessment of the seriousness of the interference has been moderated by two facts: first, because the actual arrangement effected under the interim care order, with CZ living with the paternal grandmother for the period while the parents enjoyed virtually unrestricted contact, was a variation of a plan which the parents had formed with Health Professionals prior to and following the birth in any event, namely for the paternal grandmother to reside with them for that period, and secondly, because once the parents and Cafcass obtained legal representation and were able to consider the situation with legal advice, none of them sought to challenge the living arrangement immediately and did not in fact do so until 20 January 2016.

 

 

The fundamental issue here was that the damages sought amounted to just over £10,000 and because they arose out of care proceedings, in order for the parents and child to receive a penny of those damages those representing them also sought costs orders not only for the HRA claims but for the care proceedings.

 

That is because the statutory charge bites on the damages, not only for the HRA claim costs (which is sensible) but for the care proceedings (which is hard to explain, but it is clear that it does).

section 25 LASPO 2012; this statutory provision reads:

 

 

 

 

“25 Charges on property in connection with civil legal services

(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

(2) Those amounts are—

(a) amounts expended by the Lord Chancellor in securing the provision of the services (except to the extent that they are recovered by other means), and

(b) other amounts payable by the individual in connection with the services under section 23 or 24″.

 

The total costs were £120,000.   (To be fair, Cobb J has included the LA’s costs within that calculation, and the LA would be paying their own costs in any event. So the costs are really £80,000)

You do not have to be a hot-shot civil lawyer to suspect that spending £80,000 to recover £10,000 is not a viable proposition.

Cobb J considered this case in a very detailed way and said some very important things.

 

  1. The cunning solution in P v A Local Authority [2016] EWHC 2779 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html , a case in which Keehan J found a way of facilitating the grant of the award of damages to the Claimant in such a way that it was unaffected by the LAA’s statutory charge. On the facts of that case, the applications under the HRA 1998 and under the wardship were quite separate and unconnected; he said this: “P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings” [71] (emphasis added).

Did not work here, and would not work in the majority of the HRA claims that we are concerned with, since they did arise out of the care proceedings or a prelude to them (s20)

 

 

  1. The fact that s25 LASPO meant that the statutory charge swallows all the damages does not mean that the Court is pushed into HAVING to make an award of costs to ensure that the claimant gets something.58.I reject the Claimants’ arguments on this first basis for the following reasons:  i) I do not accept that the very wide discretion afforded to me under section 8(1) has to be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome under section 8(3);ii) If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not; iii) Most awards of damages would be likely to be reduced to some extent by the incidence of assessment/taxation of the litigant’s own bill. While this may not apply so harshly to publicly funded litigants, it seems to me that the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;iv) The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award. I would regard it as unprincipled to increase the award of damages by a significant sum (which on the instant facts could be approximately seven-fold) to reflect the costs of the proceedings. Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
  2.  
  3.  
  4.  
  5.  
  6.  
  7.  
  8. He tackles the principle of financial damages over and above the declaration of breach of human rights.  39.In deciding (i) whether to award damages, and/or (ii) the amount of an award, I must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention (Article 41, though not incorporated into English law, deals with ‘just satisfaction’). It is not necessary for me to review the significant European or domestic case-law on this point, more than to identify the following extracts from speeches and judgments on the point which have guided my views:  i) The Court of Appeal (Lord Woolf CJ, Lord Phillips MR and Auld LJ) in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, [52-53], and [57-58]: “The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages. … Where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance” [52/53].
  9.  
  10.  
  11.  
  12. 38.An award for damages for infringement of Convention Rights is warranted where the court concludes that it is “necessary to afford just satisfaction to the person in whose favour it is made” (section 8(3) HRA 1998). There is no specific formula or prescription for what amounts to “just satisfaction”, but in considering the issue, statute requires me to consider “all the circumstances of the case” including any other relief or remedy granted (including the grant of a declaration, and I suggest a formal apology) and the consequences of any decision of the court.

 

I interject here, to say that this is not the way that damages claims under the HRA in care proceedings has been developing, and it is a noteworthy reminder.

 

 

“Our approach to awarding damages in this jurisdiction should be no less liberal than those applied at Strasbourg or one of the purposes of the HRA will be defeated and claimants will still be put to the expense of having to go to Strasbourg to obtain just satisfaction. The difficulty lies in identifying from the Strasbourg jurisprudence clear and coherent principles governing the award of damages….”

 

 

And then quoting from the Law Commission:

 

 

“Perhaps the most striking feature of the Strasbourg case-law, … is the lack of clear principles as to when damages should be awarded and how they should be measured”. [57/58]

 

  1. ii) Lord Bingham in Regina v. Secretary of State for the Home Department (Respondent) ex parte Greenfield [2005] UKHL 14, [2005] 1 WLR 673 at [9] and [19],

 

 

“The routine treatment of a finding of violation as, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation.” [9]

 

 

“The Court [in Strasbourg] routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the Court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them.” [19]

 

iii) Lord Reed in R (o.t.a. Faulkner) v. Secretary of State for Justice [2013] UKSC 23 at [13](4)/(7):

 

 

“(4) [T]he quantum of awards under section 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living

 

 

(7) The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases”.

 

  1. iv) And in a passage which directly chimes with the facts of this case, Wilson LJ in Re C (Breach of Human Rights: Damages) [2007] EWCA Civ 2, [2007] 1 FLR 1957 at [64]

 

 

“… the European Court generally favours an award of damages in cases in which local authorities have infringed the right of parents under Article 8 to respect for their family life by shortcomings in the procedures by which they have taken children into care or kept them in care, whether temporarily or permanently” [64]

40.I further take account of the Practice Direction issued by the President of the European Court of Human Rights (2007; re-issued September 2016) on ‘just satisfaction’:

 

 

 

 

“The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting Party responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.” [9]

 

 

“It is in the nature of non-pecuniary damage that it does not lend itself to precise calculation. If the existence of such damage is established, and if the Court considers that a monetary award is necessary, it will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law.” [14]

 

 

“Applicants who wish to be compensated for non-pecuniary damage are invited to specify a sum which in their view would be equitable. Applicants who consider themselves victims of more than one violation may claim either a single lump sum covering all alleged violations or a separate sum in respect of each alleged violation”. [15]

 

It is convenient to cite here also what is said in the Practice Direction (at [17]) about costs and expenses (to which I make reference at [58(vi)] below):

 

 

“The Court will uphold claims for costs and expenses only in so far as they are referable to the violations it has found. It will reject them in so far as they relate to complaints that have not led to the finding of a violation, or to complaints declared inadmissible”.

 

And thus that damages are not a natural consequence of an identified breach – the claimant must specify what damages they seek and why they are sought. Why are the breaches such that only an award of damages will provide ‘just satisfaction’?

 

(I will return to this, because if the damages are just going to the LAA because of the stat charge, HOW CAN the claimant really argue that the award is to provide ‘just satisfaction’? On the face of it, all that is achieved is punishing the public body by making them write a cheque to the LAA, and that’s specifically ruled out by para 9 of the Practice Direction…)

 

Note however, what Wilson LJ said in Re C, quoted above, that the ECHR does make damages awards where the breaches have caused a parent to lose their child, “whether temporarily or permanently”

 

  1. Awarding costs of the care proceedings due to egregious conductCobb J ruled that the LA had conducted part of the proceedings in a way that triggered a justification for a costs order under the Supreme Court guidance in Re S and Re T, but not the whole of the proceedings, and the costs order should be limited to that.
  2. 67.In relation to the costs of the CA 1989 proceedings, the Claimants have failed to demonstrate in my judgment that the Local Authority behaved “reprehensibly” or “unreasonably” otherwise than in the circumstances in which it launched the proceedings and conducted the hearing on 13 November. This had ramifications (i.e. the placement of CZ away from the parents’ care) until 7 December. In my judgment, applying ordinary costs principles, the Claimants would be entitled to the costs of the CA 1989 proceedings for the limited period from 13 November to 7 December 2015.
  3. The Claimants litigation conduct had a bearing on the costs award in relation to the HRA claim – not making efforts to try to settle the case and not responding constructively to offers had a bearing on this.          
  4. On ordinary costs principles, I am of the view that the Claimants should be entitled to recovery of their costs of the HRA 1998 proceedings from the grant of certificates up to and including 14 July, but no further.
  5. vi) On the information available to me, the Claimants have not complied with the direction which I made (on 5 October 2016) to make open proposals for settlement in a timely way, or at all.
  6. v) So far as I can tell, there was no response to the offer made on 15 July 2016;
  7. iv) Further ‘without prejudice’ offers were made on the days either side of the Case Management hearing on 14 July, without any meaningful response. On the 14 July itself, at court, Ms. Irving QC made an open offer. On 15 July 2016, the offer was increased to £2,500 on an open basis, together with the HRA 1998 costs; the Local Authority proposed a further ’round table’ discussion but this fell on deaf ears;
  8. iii) The mother and Children’s Guardian did not respond positively to the request to provide costs schedules at an early stage or an order to the same effect, and none of the Claimants complied with my direction for the provision of open offers of settlement;
  9. ii) The Claimants were invited from 22 February 2016 to indicate a ‘settlement amount’ in relation to any prospective HRA 1998 claim, but they did not apparently (i.e. from the correspondence – including that marked ‘without prejudice’ – which I have now seen) do so;
  10. i) They failed to respond constructively to the Local Authority’s efforts to achieve a negotiated settlement; from an early stage (i.e. February 2016: see [45](i) above), through until July and beyond, the Local Authority was making appropriate overtures to sort out this dispute, but the Claimants were ostensibly unreceptive;
  11.  
  12. 66.On the facts of this case, the Claimants have succeeded in their HRA 1998 claim, and ordinarily therefore they could look to the “unsuccessful” party (Local Authority) to pay their costs under Part 44.2(2)(a); however, I consider that the Claimants’ litigation conduct is such that they have forfeited this entitlement. In particular:
  13.                 In any evaluation of costs whether under the CPR 1998 or the FPR 2010, I am obliged to have regard to the parties’ litigation conduct, and whether costs are reasonably or not reasonably incurred. The Claimants’ approach would require me to ignore or forgive any reckless, wasteful or profligate manufacture of costs in order to ensure that the Claimants receive their award; this cannot be right. In this case, as will be apparent from my comments below, the Claimants did not conscientiously attempt to settle their claims, whereas I am satisfied that the Local Authority did make genuine efforts to do so
  14. A suggestion was made to multiply the child’s damages by 3, and award the total damages to the child, so that only the Child’s public funding certificate had the stat charge arise, and thus make only costs order to cover the child’s certificate in full.

 

Mr. Taylor further submitted that I could award an aggregate damages award of £11,250 (£3750 x 3) to the child, and order the Local Authority to pay all of the costs of the Children’s Guardian; in that way, (i) this would reduce the financial outlay for the Local Authority than the alternative route contended for by the Claimants, and (ii) at least one of the parties would actually benefit from a damages award. Ms. Irving QC indicated that if the Court approved it, the Local Authority would not contest this approach. The LAA was, sensibly, consulted about this proposal, and rejected it for the contrivance which it undoubtedly is. I could not in any circumstances sanction this approach. I have awarded damages to each of the three Claimants; the figure awarded is what I regard as “necessary” to give “just satisfaction” to each of them. The proposal outlined undermines the principles on which I have resolved the claims.

 

 

 

 

Decision

 

75.I shall make the declarations proposed and conceded, set out in [33] above.

 

76.I shall award each of the three Claimants £3,750 by way of damages, to be paid by the Local Authority, under section 8(3) HRA 1998. It is, I acknowledge, regrettable that because of the costs order I propose to make, the Claimants are unlikely to receive these sums.

 

77.I shall make an order that the Local Authority makes a contribution to the publicly funded costs of the Claimants, limited to the following periods:

  1. a) 13.11.15-7.12.15 (all Claimants: CA 1989 proceedings);

 

  1. b) From the date on which the LAA granted extensions to the Claimants’ existing certificates (issued for the CA 1989 proceedings) for them to pursue HRA 1998 claims to 14.7.16, excluding the costs incurred by those who attended on behalf of the mother and the child at the meeting arranged by the Local Authority on 17 March 2016 (save as provided for herein, all Claimants: HRA 1998 proceedings).

78.That is my judgment.

 

Quantum-wise, a sum of damages of £3,750 per party, for the child being removed under an ICO hearing where the parents had not been given notice and the Court was misinformed that (a) they had and (b) they consented to the plans, where the LA withdrew the proceedings just months later because threshold was not met, compared to some of the very high s20 damages awards makes interesting reading. Cobb J was very specifically addressed on quantum and the principles to be applied and this case (together with the Hackney case) sets down a considerable marker that there is unlikely to be sufficient diamonds in the mine to justify the digging costs save in a highly exceptional case.

To escape the stat charge and ensure that the client receives any of the compensation, either the costs will need to be very small, or the damages very large, or a better case for a costs order than this one….

 

Keep feeling Vaccination

 

And so the conversation turned, until the sun went down

 

This is a High Court case involving parents who were already in care proceedings, who did not want their child to be vaccinated.  (The decision not to vaccinate was not the reason for the care proceedings, and I think it’s unlikely that it would be considered threshold criteria.)

It helpfully gathers all of the other authorities and principles on vaccination, so although it is a case that turns on its facts (it is not authority for the Court always will or always won’t order vaccination to go ahead), it is useful if it comes up again. It also raises interesting philosophical questions about State intervention and parental autonomy.

 

Re SL (Permission to vaccinate) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/125.html

 

SL was seven months old, and one of four siblings within care proceedings. He was the subject of an Interim Care Order.

 

The local authority now applies under the inherent jurisdiction for a declaration that it is in SL’s best interests for the local authority to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine (hereafter, the ‘Hib’ vaccine) and the pneumococcal conjugate (PCV) vaccine (hereafter the ‘PCV’ vaccine) in circumstances where the mother objects to this course of action.

 

It is something of a law geek pleasure to see that the Dr in the case was a Dr De Keyser, and the advocates in the case would be made of stronger stuff than me if they avoided any temptation to fall into the ‘you say de keyser, I say de Geezer’ dialogue from the Supreme Court article 50 case.

 

The mother’s opposition to the vaccination was because she considered that her older children had suffered adverse reactions to their own vaccinations

 

 

  • The mother’s opposition to SL being given the Hib vaccine and the PCV vaccine is based primarily on adverse reactions to being so immunised that she states that her other children have undergone in the past. Professor Kroll was accordingly also asked to consider whether there is anything in the older children’s medical records that causes him concern regarding SL receiving the disputed immunisations. Professor Kroll, being careful to note that the abbreviated medical records provided to him may not be complete, makes clear that in none of the records he reviewed relating to SL’s siblings detail any significant adverse reaction to vaccination in general or to Hib or PCV vaccination in particular in any of the children. Professor Kroll further opines that even had there been evidence in the medical records of some reaction, this would not, in general, constitute a medical contraindication to vaccinating SL.
  • Within the foregoing context, Professor Kroll concludes that there is no medical reason why SL ought not to have the vaccinations in issue according to the UK immunisation schedule. He further concludes that withholding the Hib and PCV vaccines for SL would mean deliberately maintaining his vulnerability, which is at its maximum given his present age, to two very serious infections which are major causes of infection, including bacterial meningitis. Professor Kroll is clear that whilst not providing total protection, a full course of vaccination provides a “very substantial degree” of protection against these infections. He concludes that, in his expert medical opinion, SL needs to be immunised without delay and to receive booster immunisations at the appropriate time.

 

 

The LA argued that the Court should use their inherent jurisdiction    but they meant “Magical Sparkle Powers TM” to direct that the child should have vaccinations

 

 

  • On behalf of the local authority, Ms Markham QC and Ms Georges submit that the local authority should be given permission to ensure that SL receives the Hib vaccine and the PCV vaccine, the administration of such vaccines being in his best interests. Developing this submission, in particular Ms Markham QC and Ms Georges argue that:

 

(a) The local authority acknowledges the mother’s views regarding the immunisation of SL. The local authority further recognises that the declaration it seeks trespasses on the mother’s Art 8 right to respect for her private and family life insofar as the decision whether or not to immunise a child is ordinarily a function of the exercise of parental responsibility.

(b) On the evidence before the court however, the balance of risk is clear. Namely, the expert evidence indicates clearly that the risk attendant on giving the vaccines to SL are outweighed by the risks of not giving them to him, in particular when regard is had to the likely gravity of the consequences of the former when compared to potential gravity of the consequences of the latter.

(c) Moreover, on the evidence before the court, the decision whether to immunise SL against Hib and pneumococcal infections is not a finely balanced one. Rather, it is plain on the evidence before the court that vaccination is in his best interests.

(d) Had the local authority received further information or evidence suggesting that there was some doubt, or a finer balance with respect to the question of whether SL should receive the vaccines in issue, the local authority may have changed its position. However, no such information or evidence has materialised notwithstanding the directions of the court.

 

The mother’s legal team made these submissions

 

 

  • Ms Connolly QC and Ms Gill made the following submissions on behalf of the mother:

 

(a) Applications for a declaration that it is in the child’s best interests to receive vaccinations are rare. In respect of the decision whether or not to vaccinate a child, parents are accorded a significant degree of autonomy by the State. Ordinarily, a parent in the position of the mother would get to decide whether to have a child immunised as a function of the exercise of that parent’s parental responsibility and would not be brought to court if the parental decision were that the vaccinations should not be given.

(b) The mother relies on three alleged instances of her older children attending hospital following what the mother contends were adverse reactions to immunisation. Whilst the mother has not produced the records associated with these attendances (or, it must be observed, evidence that such records were requested but unavailable), and whilst none of the asserted instances are referred to in the records reviewed by Professor Kroll, she asserts to the court that VL suffered a swollen leg, that DL suffered an ear infection and the CL developed a rash.

(c) The mother’s objections, and the extent to which they are reasonable, must be viewed in the context of the particular matters with which these proceedings are concerned, albeit matters wholly unrelated to the issue of immunisation, and in the context of the SL not being in her care, which factors heighten the mother’s concerns regarding the administration of the vaccines to SL in the context of the alleged adverse reactions experienced by SL’s siblings.

(d) Whilst the consequences of SL catching the diseases, which the respective vaccines are designed to protect against are potentially grave, risk of SL catching the diseases against which the vaccines protect is low, as is the risk that the diseases will have a grave outcome if SL were to catch them.

(e) Within this context, the mother’s considered decision with respect to the vaccination of SL should be respected by the court and the application of the local authority dismissed having regard to the legal principles applicable to that application.

 

On behalf of the child

 

  • On behalf of SL, Mr Tughan QC and Ms Piccos submit that it is plainly in SL’s best interests for the outstanding vaccinations to be given to him. As does the local authority, on behalf of SL Mr Tughan QC and Ms Piccos recognise that a parent is, ordinarily, accorded a significant degree of autonomy by the State in deciding in the exercise of their parental responsibility whether to vaccinate a child. However, in circumstances where there is a dispute between those holding parental responsibility for SL (namely, the mother and the local authority) such that the court is required to determine that dispute by reference to SL’ best interests, Mr Tughan QC and Ms Piccos submit that the evidence before the court indicates that the balance of risk falls firmly in favour of SL receiving the vaccinations on the UK Immunisation Schedule that he has not received to date.
  • With respect to the weight to be attached to the views of the mother, Mr Tughan QC and Ms Piccos submit that the court must consider these views through the prism of the aspects of the mother’s personality identified in the expert evidence in the 2014 proceedings, specifically an obsessive compulsive personality disorder with schizoid personality traits, paranoid personality features and narcissistic personality features.

 

 

I have an unusual position here. My position is that of course children should be vaccinated, and that the scare stories about vaccination lack any proper evidential rigour.  However, my position is also that parents have the capacity to make decisions about their children and their medical treatment even if those decisions are ones that others might consider reckless or stupid or foolhardy. I don’t see that the parent should lose that capacity and have it taken away from them at an INTERIM stage. It might be different if the Court conclude the care proceedings and make final orders meaning that the child will be cared for elsewhere during the remainder of their childhood. But I’d have said that here, autonomy trumps my view that vaccination benefits children, and society.  I would possibly draw a distinction where the child is being denied medical treatment by a parent’s decision which is causing the child pain, harm, suffering or puts their life in danger. But that wasn’t the case here – vaccination would protect the child from a possible future risk, but this child was in no imminent danger.  That’s just my own personal view, which is worth nothing at all, but just to let you know where I’m coming from.

 

The law

 

 

  • As Ms Connolly QC and Ms Gill point out, applications of this nature are rare and there are only a limited number of reported decisions concerning the issue of immunisation.
  • In Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1054, a case which considered a dispute between two parents with parental responsibility within the context of the framework provided by s 8 of the Children Act 1989, Sumner J held that the children concerned should receive immunisations appropriate to their age against the wishes of the mother but in line with the recommendation of the expert medical evidence before the court (which in that case included a report from Dr Kroll instructed by CAFCASS Legal). Sumner J’s decision was upheld on appeal. In in Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1095, Thorpe LJ rejected the repeated categorisation of the course of immunisation as non-essential invasive treatment and considered it to be more correctly categorised as preventative healthcare. Within this context, he observed that:

 

“[16] The apparent freedom of each [parent] to act alone is not, however, unfettered. As Dame Elizabeth Butler-Sloss P said in the case of Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571 at 577D:

‘There is, in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental responsibility, ought not to be carried out or arranged by one parent carer although she has parental responsibility under s 2(7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court. Sterilisation is one example. The change of a child’s surname is another.’

[17] In that case the court held that the circumcision of the child should only be carried out where the parents agree or where a court, in settling the dispute between them, decides that the operation is in the best interests of the child. In my opinion this appeal demonstrates that hotly contested issues of immunisation are to be added to that ‘small group of important decisions’.

[18] Of course where the obligation falls on the court to decide such an issue the court must apply the child’s welfare as its paramount consideration (s 1(1) of the Children Act 1989) and also have regard to the s 1(3) checklist.”

 

  • At first instance in Re C (Welfare of Child: Immunisation) Sumner J made clear that he had had regard to the wide scope for parental opposition to medical intervention in respect of a child, which he summarised as ranging from obvious cases where the objection would be widely regarded as having no validity in child welfare terms to cases where there is scope for genuine debate on the issue. Within this context, Sumner J acknowledged a parent’s right to choose whether they accepted medical advice to have their children immunised and that immunisation was a subject of genuine public debate. Sumner J further made clear that his decision should not be seen as a general approval of immunisation for children and that each case is fact specific.
  • In Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), Theis J considered the issue of vaccinations in the context of children who were the subject of final care orders, where the dispute was between the local authority, who shared parental responsibility under those orders, and the parents with parental responsibility as to whether the children should be vaccinated. Within this context, Theis J proceeded to determine the question under the auspice of the inherent jurisdiction of the High Court. She concluded the children in that case should be vaccinated. Theis J articulated the following applicable legal principles:

 

“[9] There is no dispute between the parties as to the law. Once the inherent jurisdiction is invoked the welfare of the child is the paramount consideration.

[10] The Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment) [1991] 1 FLR 366 considered the future medical management of a severely brain-damaged premature baby with a considerably shortened life expectancy. Lord Donaldson MR said at 370 ‘…The court, when exercising the parens patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless, in the end, the responsibility for the decision whether to give or to withhold consent is that of the court alone.’

[11] In this case the dispute is the exercise of parental responsibility as between the parents and the Local Authority. I have been referred to a number of cases that look at how the parent’s views should be considered by the court. In Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191 Sir Thomas Bingham MR said at 217 B-C:

‘I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can’.

In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502 Butler Sloss P said at 509 that

‘…it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court’s assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent’.

[12] The court also has to carefully consider Article 8 of the European Convention and, in particular, consider whether what is proposed is a justified and proportionate interference with family life.”

 

  • Within the context of the last point elucidated by Theis J concerning rights under Art 8 of the ECHR, Art 24 of the United Nations Convention on the Rights of the Child provides that States parties to that Convention recognise the right of the child to the enjoyment of the highest attainable standard of health and, within that context, imposes on States parties an obligation to pursue full implementation of that right, including the taking of appropriate measures to combat disease.
  • The most recent decision on immunisation appears to be a further decision of Theis J in the case of F v F (MMR Vaccine) [2014] 1 FLR 1328. In that case, Theis J made the following important observation in relation to cases of this nature at [21]:

 

“This is an issue concerning the exercise of parental responsibility that in most circumstances is negotiated between the parents and their decision put into effect. Parents often have to make decisions for children to meet their welfare needs, as Ms Vivian observed that is ‘what parenting is about’. As with many aspects of the exercise of parental responsibility, in particular as children get older, it will often require discussion and explanation by the parents of their decision to their children which may be against their wishes and feelings. This has not been possible in this case as the parents disagree and the court has been asked to step in to make the decision. The court can only make decisions on the evidence that it has in each particular case and by considering the welfare needs of each child. By doing so in this case the court does not in any way dictate how this issue should be decided in other situations; each case is fact specific. This case is only concerned with the welfare needs of these children.”

 

  • Thus, where there is a dispute between those holding parental responsibility (whether as between parents or between parents and a local authority holding a care order) as to whether such a vaccination or vaccinations should take place the court has jurisdiction to determine the dispute. In determining the question before the court, the welfare of the child is the paramount consideration of the court. Within this context, the court must accord appropriate weight to the views of the parent or parents having assessed those views and must exercise an independent and objective judgment on the basis of the totality of the evidence before it, including, but not limited to, the expert evidence.
  • In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order (see A Local Authority v SB, AB & MB) [2010] 2 FLR 1203 and Re Jake (Withholding Medical Treatment) [2015] EWHC 2442 (Fam)).
  • In the circumstances, as in Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), and whilst the C2 application made by the local authority on 21 October 2016 is for an order in existing Children Act proceedings, the application the local authority pursues before this court must in fact be an application for relief under the inherent jurisdiction of the High Court. The local authority requires leave to make such an application, which application for leave is to be considered against the criteria set out in s 100(4) of the Children Act 1989. Being satisfied that the relief sought by the local authority does not contravene s 100(2) of the Children Act 1989 and that the criteria for granting leave to the local authority to make an application under the inherent jurisdiction set out in s 100(4) of the Act are met, I granted permission for the local authority to make an application for relief under the inherent jurisdiction of the High Court.

 

 

 

Decision

 

 

  • I acknowledge Ms Connolly QC and Ms Gill’s submission that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility. Whilst, historically, vaccination was compelled by law under the Vaccination Act 1853 and subsequent legislation, vaccination is not now compulsory in this jurisdiction, the Vaccination Act 1898 having introduced an exception allowing parents who did not believe vaccination was efficacious or safe to obtain a certificate of exemption (introducing the concept of the “conscientious objector” into English law) and the National Health Service Act 1946 having thereafter repealed the compulsory vaccination laws in their entirety. However, I cannot accept Ms Connolly QC and Ms Gill’s submission that, ordinarily, a parent in the position of the mother (my emphasis) would get to decide whether to have a child immunised as a function of the exercise of her parental responsibility.
  • The fact that this court is required to decide whether SL should be immunised is, in this case, a function of a dispute between those who hold of parental responsibility for SL, namely the mother and the local authority (the identity of SL’s father not being known). Where there is such a dispute the court is under an obligation to determine that dispute in accordance with the legal principles articulated above. That determination is not an example of overreaching by the State into an area of parental choice but, rather, is an example of the court discharging its obligation to ensure the welfare of the child is safeguarded in circumstances where those charged with meeting the child’s welfare needs cannot agree on how that end is best achieved. Again, as Theis J noted in Re A, B, C and D (Welfare of Children: Immunisation), in Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191 Sir Thomas Bingham MR said at 217 B-C:

 

“I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can”.

 

  • Thus, the fact that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute between them, and the fact that, accordingly, this issue rarely comes before the court, does not, in circumstances where there is in this case a frank disagreement between her and the local authority as to what is in SL’s best interests, mean that this mother is being somehow singled out as compared to other parents with respect to the issue of vaccination.
  • The fact that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute does, however, mean that when the issue has to come before the court, the court must accord proper weight to the views of the parent. I have of course given very careful consideration to the mother’s objections to vaccination. It is not difficult to see how the, albeit unrelated, events with which this court is concerned have focused her mind on the potential risks of vaccination to SL’s wellbeing. The mother has decided that those risks outweigh the risks of not vaccinating SL. A parent is fully entitled to make a decision based on their assessment of the likelihood of infection and how severe that infection might be in terms of outcome.
  • However, I must and do have regard to the fact that the mother’s evaluation does not accord with the expert medical evidence before the court. Indeed, that medical evaluation reaches a diametrically opposed view. Whilst welfare is a very wide concept, and whilst the principle of best interests means more than just medical best interests, the unchallenged conclusions of the expert instructed to assist the court on the question of immunisation are, necessarily, a powerful pointer towards what is in SL’s best interests on the question of immunisation. I must also have regard to the fact that, whilst the mother submits that her considered view is grounded in her direct experience of adverse reactions in her other children, she has not in any way evidenced the factual basis she contends grounds her reasoned evaluation of the risks on this basis, despite being given every opportunity to do so. These matters significantly reduce the weight I am able to attach to the mother’s views in respect of the vaccination of SL as against the evidence of the expert.
  • Lastly in respect of the mother’s views, whilst I note the submissions of Mr Tughan QC and Ms Piccos regarding the impact of the expert opinion in the 2014 proceedings regarding the mother’s personality traits, in circumstances where I have not heard evidence on how those matters may impact on the mother’s views on the subject matter presently before the court, I make clear that I have not taken account of those matters when evaluating the mother’s views and the weight to attach to them.
  • Within the foregoing context, having regard to all of the evidence before the court and evaluating the position by reference to the principle that SL’s welfare is the court’s paramount consideration, I am satisfied that it is in SL’s best interests to receive the outstanding Hib and PCV vaccines.
  • Finally, I have, as I must, paid careful regard to the Art 8 right of the mother to respect for her family life. A decision by the court (as a public authority pursuant to s 6(3)(a) of the Human Rights Act 1998) to authorise the immunisation of SL in the face of the mother’s objection, and in circumstances where parents are ordinarily accorded a significant degree of autonomy by the State when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute, constitutes an interference in the mother’s Art 8 right to respect for family life. For that interference to be lawful it must be justified by reference to the terms of Art 8(2). Having regard to the evidence set out above, I am satisfied that the interference in the mother’s right to respect for family life under Art 8 constituted by a decision of this court to authorise the immunisation of SL against her wishes is in accordance with the law and necessary in a democratic society in the interests protecting SL’s health and, accordingly, is a justified and proportionate interference. I am reinforced in this conclusion by the fact that a decision to authorise the immunisation of SL accords with his right to the enjoyment of the highest attainable standard of health under Art 24 of the UNCRC.

 

CONCLUSION

 

  • For the reasons I have given, I am satisfied that it is appropriate in this case to make a declaration under the inherent jurisdiction of the High Court that it is in SL’s best interests for the local authority to be given permission to arrange for him to receive the Hib vaccine and the PCV vaccine and I do so.
  • Finally, I make clear that the decision of the court is not a judgment on whether immunisation is a good thing or bad thing generally. Like Sumner J and Theis J before me, I emphasise that the court is not saying anything about the merits of vaccination more widely and does not in any way seek to dictate how this issue should be approached in other situations. This judgment is concerned solely with an evaluation of one child’s best interests based on the very particular circumstances of this case and on the evidence that is available to the court.
  • That is my judgment.

 

 

I think this case was rightly decided on the law as it stands. I’m not sure I’m happy with the law as it stands. Here we have a position where a parent who is not in care proceedings gets to say yay or nay to vaccinations and their decision will be sacrosanct, but a parent who is in care proceedings (perhaps with allegations of threshold which are not finally proven) does not have that same right.  I think the right thing for the child was to be vaccinated, but I think as ever with magical sparkle powers, the Court does things with the very best of intentions which end up being the foundation for the next step away from autonomy, and the next step becomes foundation for the one after.

 

Rock bands, impenetrable vocabulary and Peers of the realm making off with wards of Court

There’s a High Court case that I’m going to briefly write about, called Egeneonu v Egeneonu 2017 .  First though it needs an intro.

About eleven years ago, when I was younger and cooler, I had friends who were in a rock band. They were pretty good – it was sort of Swamp-rock before Kings of Leon got big, and they did some decent gigs. We went to a gig, and they were on third. So we got there early, because it was a venue we hadn’t been to before, to check it out and hear the other bands.  So, we all sort of thought we were fairly rock and roll – my friends were in a band, I was a friend of the band (I can’t play an instrument – I got demoted from triangle to ‘scrapey maraca thing’ in the school orchestra).   This venue made us think otherwise. The first clue was the amount of leather the people in the club were wearing , the second was that the only two drinks the bar was selling were Jack Daniels (straight up) and Heineken (in bottles, which were served with the caps still on – everyone else in the club was opening them with their teeth or they had knives). The first band came on, and immediately the lead singer stage-dived. Not that unusual a thing to see at a gig, but it is unusual to see someone do it when the front rows aren’t full of people to catch you, and the floor is concrete.  Once the lead singer got back up, they started their first song, which was called, without irony “I got f**d by Jesus”

 

This was a gig where Jim and William Reid might have thought , “Oh, this is a bit hardcore”

At that point, all of us looked at each other, and you could see that we were all thinking – “I thought I was pretty rock, but I’m out of my depth here”

This case of the President’s – I thought I was pretty law geek, but it was too much for me. I had to keep limping away and try to breathe non-geek air for a bit to recover – (watching You-Tube videos of lumberjacks, adverts for power-drills and such) – I didn’t think it was safe to go from this much geek to normal in one go, in case I got the geek-bends.

So I’m not going to talk about the case much – let’s just say that if you want to be able to distinguish what is a civil contempt of court and what is a criminal contempt of court, and particularly if you want to know THAT, and how that applies where you’re dealing with wardship, this case is (eventually) the answer.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2017/43.html

 

There were two bits that grabbed me though – and honestly, this might be the least geeky bits in the whole thing, the rest of it is way worse.

 

Firstly, this was a sentence that appeared without further explanation or clarification. To be fair, it’s an extract from a very old judgment, but it is a sentence in which I didn’t understand FOUR of the words. And not just didn’t understand them, had not an inkling or approximation or even a guess at them.

 

Here it is:-

The Court of King’s Bench held that the peerage and its privileges afforded no protection in such a case; and to make the authority more applicable, the Court illustrated the decision by referring to the writ of homine replegiando against which, if a peer was refractory, it was held to be clear that he must be committed; that is, if he eloigned the body of the villein or person sought to be replieved.

 

 

I particularly like that whatever was going on immediately prior to that, the Court felt that it could be ILLUSTRATED by referring to the writ of homine replegiando against which, if a peer was refractory, it was held to be clear that he must be committed; that is, if he eloigned the body of the villein or person sought to be replieved.   I.e this is an attempt at an explanation to make something simpler…

 

Let’s try and unpick it

 

Homine repligiando is a way of getting out of custody (like habeas corpus) but by upon giving bail. So a bit like bail.

If a peer was refractory – he would be stubborn or unmanageable, or resistant to some process.  (I like that, I might end up using it)

If he eloigned  –  to remove or carry away at a distance, or to move yourself a considerable distance away

Replieved –  to have recovered goods or property from their rightful owner.

 

So using an example of bail, if a peer was unmanageable, he must be committed, if he removed someone who ought to have been returned to his rightful place ?  I think.

 

You may need to do something ungeeky now to decompress – read some pages of Andy McNab’s Bravo Two Zero or something.

 

The next bit I liked was this case

 

  • For specific cases where these principles have actually been applied, they refer to two cases in particular which I need to consider in some detail: Wellesley v The Duke of Beaufort, Long Wellesley’s Case (1831) 2 Russ & M 639, (1831) 39 ER 538, and Re Crump [1963] Crim LR 666, 777, fuller report (1963) 107 SJ 682.
  • Long Wellesley was the father of a ward who, by order of the court, had been placed in the custody of third parties in Surrey; the order restrained Wellesley, although he was not a party to the suit, from removing her from their care or custody. Wellesley subsequently removed her from their house, took her to London and then arranged for her to be removed from the jurisdiction. Brought up before Lord Brougham LC, he professed not to know where she was and said that he would never bring her again within the jurisdiction of the court. He was committed to the Fleet for contempt, the order reciting that:

 

“His Lordship does declare the conduct of [Wellesley] in removing the said infant … and in concealing the present residence of the said infant to be a contempt of this Court; and his Lordship doth further declare the conduct of [Wellesley] in forcibly and without consent removing the infant ward of this Court, the king’s subject, beyond the realm, and his refusal now in person coram judice to inform the Lord Chancellor where the said infant is to be found, to be a gross and aggravated contempt of this Court.”

Wellesley sought his release, pleading privilege of Parliament as a Member of Parliament. Lord Brougham held, 665, that privilege protected against civil but not against criminal process. The question, therefore, was whether the contempt committed by Wellesley was criminal or merely civil. The Lord Chancellor held that the contempt was criminal, so Wellesley was returned to the Fleet.

 

  • In the course of his judgment, the Lord Chancellor, 669, posed a rhetorical question:

 

“Who are the persons most likely to be guilty of those very offences which this Court is most frequently called upon to visit with punishment in order to protect its wards? If other Courts have a certain proportion of their suitors in Parliament, this Court, from the importance of the matters brought before it, has a much larger proportion there; and if there be any cases in which members of Parliament – young commoners, and young lords – are more likely than others to become obnoxious to our jurisdiction, it is precisely in cases relating to the safety of heiresses and other wards.”

In which (I think) the Lord Chancellor gives a judgment in which he suggests that the most likely people to run off with young vulnerable female wards of Court are obviously MPs and members of the House of Lords, because that’s just the sortof thing that they do.   Perhaps he means that they were ‘rescuing’ said wards. (Also “to become obnoxious to our jurisdiction” is just lovely)

So there you go, you have learned a few new words, you have found that the President’s lung capacity for law-geekery greatly exceeds mine (by a factor of around fifty, I’d say) and that if you’d been doing wardship law in the 19th century, your biggest concern would have been wayward MPs and Peers scooping up the ward and making off with them.

I shall now eloign myself from your presence and I apologise for my refractory and indeed obnoxious behaviour in writing this piece.

 

Human Rights claims and statutory charge – an answer? Sort of

In the words of Erik B and Rakim

 

It’s been a long time, I shouldn’ta left you, without a strong rhyme to step to

 

But now, to paraphrase the one-hit wonder gangster rapper from Leicester,  “Return of the Pack – oh my god, Return of the Pack, here I am, Return of the Pack, once again, Return of the Pack, Pump up the world”

 

Which is a more heavy rap-related intro than intended, but basically, now I’m back, to show you…

 

P v a Local Authority 2016

High Court y’all.  Keehan J in da House.

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html

This one is actually a Keehan J shout out to the old skool, if by old skool, you mean (and I do),  the return of a case from March 2016

https://suesspiciousminds.com/2016/03/11/child-in-care-wanting-parents-to-have-no-information-or-involvement/

 

That was the case where the young person did not want his adoptive parents to know anything about the process of gender reassignment, and the LA went to Court to ascertain whether that was in conflict with their duties under the Children Act 1989 to consult with parents when they are looking after a child.

Unfortunately, this happened

 

Background

 

  • In September 2015 P moved to a local authority unit for semi-independent living. Although there were concerns about his mental well being and general welfare, P settled in to this accommodation. He was and is a vulnerable young person with a history of repeated episodes of self harm, taking overdoses and extremely poor mental health.
  • On 11 January 2016 an employee of the local authority disclosed personal information about P, including his forename and transgender status, to third parties who are friends of P’s adoptive parents. P was originally told that the address of the unit where he was living had also been disclosed: this later appears not to have been the case.
  • The impact of this wrongful disclosure on P was immediate and dramatic. He felt unsafe at the unit and left. He first stayed with his girlfriend and then at a number of residential units provided by the local authority. P’s mental health was very severely compromised: he made a number of suicide attempts and there were several episodes of self harm.
  • In more recent months P’s mental health has stabilised. I was very pleased that he was well enough to attend the last court hearing on 26 August 2016.
  • Although the local authority promptly told P of the disclosure of his personal information, I regret that it was slow in (a) giving P a full account of what had happened and (b) giving P a full and unreserved apology. In February the then Director of Children and Family Services wrote a letter of apology to P and offered to meet with him to answer any questions he may have had. P did not take up the offer of a meeting.
  • The member of staff who made the wrongful disclosure was suspended by the local authority and a formal investigation was undertaken pursuant to the council’s disciplinary policy. I do not know the outcome of that process.
  • Regrettably, and notwithstanding that P is a ward of this court, the local authority did not bring this breach of P’s privacy to the attention of this court. The matter was raised with the court by P’s lawyers.
  • The local authority, very sensible and rightly, decided to concede it had, by the inexcusable actions of one of its employees, breached P’s Article 8 rights to respect for his family and private life. They agreed to pay P damages in the sum of £4750. I am satisfied that in light of the very considerable distress suffered by P and the immediate adverse impact on his mental health, this appears to be an appropriate level of damages to be awarded to P.

 

That all seems straightforward. The LA messed up, and they agreed a sum of compensation to pay to P and P was content with that sum, and the Judge felt it was the right amount.

So why is this even a thing?

Well, it is because the Legal Aid Agency (having by the way refused to give P funding to make a claim for damages) wanted to take that £4750 and use it to repay the legal aid that P had had in the original wardship proceedings. This is called the Statutory Charge, and it comes up most often in divorce cases about money. The point there is that if you get legal aid (or ‘free’ legal representation paid by the taxpayer and you win money out of the case, you have to pay the legal aid back out of that money. ) That makes sense with divorce. It doesn’t make a lot of sense here.

It was P’s legal rights that were breached, and the £4,750 is compensation for that breach. Obviously he should get the money.

 

But no, the statutory charge bites on the compensation and P would get nothing.

That’s because of our dear old friend LASPO, the Statute that keeps on giving (if by giving you mean stealing pennies from the eyes of corpses)

 

  • Its current statutory basis is set out in s. 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) which provides:

 

“Charges on property in connection with civil legal services

(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

 

And the killer words her are “in connection with”  – basically the Legal Aid Agency position is that the statutory charge bites (and thus they can take the compensation and take all of the legal aid costs spent on other stuff and P just gets anything left over) if there’s a connection between the cases at all.

There’s one exception in the LASPO Act (none of which apply to compensation from Human Rights claims) and the Lord Chancellor has power to exempt the statutory charge in certain cases

 

 

  • The Lord Chancellor has authority to waive the statutory charge, in whole or in part, where she considers it equitable to do so and two conditions are met.

 

Those conditions are:

(a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and

(b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings:

see regulation 9 of the CLA(SC)R 2013.

 

  • The phrase ‘significant wider public interest’ is defined as being a case where the Director of the LAA is satisfied that the case is an appropriate case to realise real benefits to the public at large, other than those which normally flow from cases of the type in question, and benefits to an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual’s family: see regulation 6 of the Civil Legal Aid (Merits Criteria) Regulation 2013 (the ‘LA(MC)R 2013’).
  • The LAA asserts that the two conditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the application for funding is made and the Director makes the determination that the application qualifies for funding. The purpose of the waiver is to allow legal aid to be granted for a single test case without disadvantaging the applicant should he or she fail to secure damages and/or all of their costs.

 

 

The Lord Chancellor and the Legal Aid Agency were both represented in these proceedings and were clear that Reg 9 had not been sought at the time the application for funding was made (of course it hadn’t, because the breach hadn’t happened at that point)  and so it couldn’t now be applied.

Their very reasonable solution was that P would get his damages, provided that his solicitors, silk and junior counsel agreed to waive all of their fees from the wardship case (i.e having represented P in a very complex and legally difficult case and got everything that he wanted and advanced the law in a way that will help others in similar circumstances, they should not get paid for any of it)

 

 

  • In taking a broad and pragmatic approach leading counsel for the local authority submits that the adverse consequence of the statutory charge, that P will receive not a penny in damages, is unfair and makes no sense. I have a very considerable degree of sympathy with those sentiments.
  • In this context I deprecate the stance taken by the LAA that the issue of P receiving any of the awarded HRA damages would be alleviated if his leading counsel, junior counsel and solicitor simply waived their professional fees for acting in this matter.

 

 

The Judge mooted the idea that if there was a break between the two cases (this is my solution so I’m interested in it)  i.e

  1. The solicitors and counsel deal with the wardship or care proceedings on legal aid

2. Separately and without charging for it, they write to the LA about human rights breach and ask for compensation

3. LA settles the HRA claim (and possibly pays the costs of step 2 into the bargain)

 

Then why is the money recovered as a result of step 2 ‘in connection with’ step 1?  And why should the LAA get their money back from step 1 if step 2 is nothing to do with it, and no legal aid money was spent in getting step 2 achieved?

I think this is a damn good point (immodestly, because I’ve been saying it for ages). The LAA unsurprisingly disagree

 

 

  • The principal supplementary submissions of the LAA may be distilled into the following 10 points:

 

(a) it was common ground between the parties at the hearing on 26 August 2016 that any damages recovered in relation to the breach of P’s Article 8 rights (the ‘HRA claim’) would be damages recovered in the wardship proceedings;(b) the creation of new proceedings avowedly for the purpose of avoiding the statutory charge would not be an appropriate use of the court’s powers. It would be wrong to seek to bring about the disapplication of the statutory charge by changing the previously contemplated approach to the scope of this judgment or disapplying certain rules of civil procedure.

(c) The issues raised by the court about the application of the statutory charge cannot be resolved in a factual vacuum.

(d) Even if P’s damages were awarded in freestanding proceedings which were not funded by the LAA, the statutory charge would still apply to those damages if they were recovered in “proceedings in connection with which the [civil legal] services were provided.” The language of ‘in connection with’ is obviously very wide. I was referred to the case of Cassidy v. Stephenson [2009] EWHC 1562 (QB) where Holman J. held that money recovered from the settlement of professional negligence proceedings brought as a result of a failed clinical negligence (which was funded) was not property recovered in a dispute “in connection with which” the legal services for the clinical negligence claims were provided.

(e) The propositions set out in paragraphs 7 to 10 of the email of 20 October 2016 are correct, save that the LAA is not privy to the full background to this case (eg the local authority’s response to P’s letter before action).

(f) The HRA claim cannot be said to be ‘wholly unconnected’ to the subject matter of the wardship proceedings. The LAA asserts that:

“As the LAA understands the position, the Court considered P’s circumstances and the extent to which information about him and his whereabouts should be disclosed in the inherent jurisdiction proceedings. The HRA Claim arose, as the LAA understands it, as a result of conduct by the LCC that was not consistent with the way in which that issue was resolved, with the Court’s assistance, in these proceedings. It was therefore reliant on matters determined in RA’s favour in the wardship proceedings, for which funding for civil legal services was provided.

Civil legal services were provided for the wardship proceedings, in which RA was made a ward of the Court, and restrictions were imposed on disclosure of information in relation to RA. It was the fact that LCC acted contrary to the resolved position that has given rise to the HRA Claim. The LAA funded the wardship proceedings, including for a declaration that there had been a breach of the injunction imposed by the Court. “

(g) It would be artificial to say than any recovery of damages was not made in the wardship proceedings.

(h) Even if the award of damages was made or approved outwith the wardship proceedings, the damages were still recovered in proceedings in connection with which “legal services were provided” (i.e. the wardship proceedings). The LAA relies on the assertion by P’s counsel that the authorities state that HRA claims should be brought within wardship proceedings viz. Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160.

(i) The answer to the question posed in paragraph 15 of the email of 20 October 2016 is “yes” there are reasons why the court should not permit the issue of a freestanding HRA claim. Such a device would be inappropriate and would not result in the disapplication of the statutory charge because, as asserted above, the damages would be recovered in (unfunded) proceedings which were “in connection with” the (funded) wardship proceedings.

 

 

The Judge decided otherwise and ruled that in this case steps 1 and 2 were not ‘connected with’ each other and the statutory charge did not arise on the compensation payable to P. Hooray!

 

 

 

  • It is appropriate for me to deal with each of those points in turn. First, the court is neither bound nor fettered in its determination of the legal issues or the factual matrix of a case by the submission of counsel. In any event counsel were afforded the opportunity to agree or disagree with the alternative analysis proposed by the court and to make submissions. P and the local authority have decided to agree with my propositions and questions. The LAA have had a full opportunity to respond and I can discern no procedural or substantive unfairness in the course I have adopted.
  • Second, to characterise the alternative analysis the court has suggested is ‘avowedly for the purpose of avoiding the statutory charge’ is quite wrong. Rather my objective is to secure, if at all possible, by any legitimate and lawful route P’s receipt of the damages he maybe awarded for the breach of his Article 8 Rights by an organ of the state.
  • Third the factual matrix of this case should be well known to all parties including the LAA. The same is comprehensively set out in the parties’ written submissions and in a detailed chronology prepared on behalf of P. I do not accept the court is considering the legal issues in this case in a factual vacuum.
  • Fourth, with reference to paragraph 64(d) above, I accept the phrase “in connection with which the [civil legal] services were provided” can be given a very wide interpretation. I was not referred to any authority to support a submission that I must give it a very wide interpretation.
  • Fifth, with reference to paragraph 64(e) above, I do not understand the submission that the “LAA is not privy to the full background to this case.” For the purposes of this judgment I have not taken account of nor have I been furnished with material not available to all counsel, save perhaps for one matter which I refer to in the next paragraph.
  • Sixth, with reference to paragraphs 64(f) and (g) above, the LAA appears to have proceeded and proceeds on the basis of a fundamental misunderstanding of the order I made in August 2015: see paragraph 46 above. I did not make an injunction or other order prohibiting the local authority from disclosing personal or private details about P to other persons, save against the local authority disclosing information to P’s adoptive parents: see paragraph 8 above. I made a declaratory order that the local authority was relieved of its statutory duty to give information about P to or to consult with P’s adoptive parents about P or his welfare. The LAA has proceeded and proceeds on the following assumptions:

 

(a) that I made an injunctive order against the local authority;(b) that the employee of the local authority breached the terms of that injunction;

(c) and that P’s claim against the local authority was based on a breach of that injunction.

None of the foregoing assumptions are factually correct. The LAA’s mistake does explain the funding decision of 8 February 2016, set out at paragraph 38 above, to permit P to bring a claim for a declaration for breach of an injunction.

 

  • P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings. This court was not notified of that alleged breach (now admitted) by an employee of the local authority which it should have been because P is a ward of this court and because of the adverse consequences of the wrongful disclosure on P. Furthermore the wrongful disclosure, insofar as it is relevant, was made to third parties and not to P’s adoptive parents. The local authority asserts that the third parties did not, in fact, pass on the disclosed information to P’s adoptive parents.
  • Seventh, with reference to paragraphs 64(h) and (i) above, in light of the correct factual matrix set out above I am not satisfied that the (unfunded) HRA claim in which damages are sought could be said to be “recovered in proceedings in connection with which legal services were provided” (i.e. the funded wardship proceedings). I go further, I am wholly satisfied that the damages resulting from the HRA claim are not “recovered in proceedings in connection with which legal services were provided”. There is no legal or factual connection between the wardship proceedings and P’s HRA claim.
  • The mere fact that P’s counsel in submission referred to the case of Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 which advises that HRA claims may or should be made in existing proceedings, does not require this court to conclude that P must or may only make a HRA claim in ongoing wardship proceedings. No claim form was issued. The HRA claim and the quantum of damages were settled before a claim was issued. As referred to in paragraphs 58 and 59 above, rr. 21.10 and 8 of the CPR set out the appropriate procedure when a settlement is reached concerning a child or young person prior to the issue of proceedings.
  • I can discern no legal impediment or other reason why I should not permit P by his solicitor to issue a claim form as required by r. 8.2 of the CPR and upon that basis, in due course, proceed to approve the agreed award of damages to P in respect of his HRA claim in those proceedings. The approval of damages can be submitted by email and be dealt on the papers without the need for a hearing. I am confident that the local authority would agree to pay the costs of that process incurred by P’s legal team.

 

Conclusions

 

  • I am bound to find that the Lord Chancellor, by the director of the LAA, has no discretion or power to waive the statutory charge, if applicable, in this case. The preconditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the determination of funding is made and a decision to waive the statutory charge must be made at the same time. That did not happen in this case and thus the preconditions are not satisfied.
  • I do not understand why the CLA(SC)R 2013 regulations placed that limitation on the time when a decision whether to waive the statutory charge must be made. I am not aware of any public interest or policy reasons for the same. It is regrettable that the discretion to waive the statutory charge is so fettered.
  • The manner in which the LAA has made determinations on public funding in these proceedings is extremely unfortunate. In some aspects the decisions are plainly wrong and/or unreasonable and in others the reasoning of the LAA is difficult to understand, if not incomprehensible.
  • In my view it would be extremely regrettable if P were to be denied the benefit of the damages awarded to him as a result of the considerable emotional distress and harm to his mental well being he has suffered as a result of the wrongful conduct of an organ of the state.
  • In light of the fact, however, that the LAA refused to fund a HRA claim for damages it appears me that the damages to be awarded to P under the Part 8 procedure were recovered in a claim that did not have the benefit of a public funding certificate. Further I am wholly satisfied that any damages awarded to P in Part 8 proceedings were not recovered “in proceedings in connection with which [civil legal] services were provided.” Accordingly, however erroneous or muddled the LAA’s decision making was on this issue, in my view, for the reasons I have given above the statutory charge is not and cannot be applicable to P’s award of damages.

 

 

Is this the end of it? Not really. Whilst the Judge here paints a route-map for others to follow, there are two major differences from other HRA cases notably the s20 damages cases.

 

  1. The HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all. P’s rights would have been breached by what the rogue member of staff did, whether or not there had been a Court hearing. (The Court hearing made it sharper and more vivid and allowed P to easily tap into legal advice from his legal team whom he already knew, but the breach was a breach regardless. It was  a breach of his article 8 rights, NOT as the LAA mistakenly thought a breach of a Court injunction)
  2. The LAA had been asked to fund a damages claim and had refused. That is a material factor in the Judge being able to rule that there was no connection between the two cases.

 

(On the plus side for children and parents, this case probably makes it more likely that the LAA will STOP refusing to fund such damages cases, since if they do, they leave the door open to not being able to recover their original costs out of any winnings, but that in turn means that they will argue that this case doesn’t have broader application)

 

I suspect this is an issue that only the Court of Appeal or Parliament can resolve. It simply can’t be right that where a child or parent has their human rights breached by the State and compensation is paid that they will not get a penny of it. Equally it can’t be right that where the HRA claim is accepted and settled swiftly, that the LA get hit with costs of care proceedings which would be massively more than the legal costs of dealing with the HRA claim itself (and that is a collision course with Supreme Court decisions in Re S and Re T about where costs orders can be made in care proceedings)

Not for the first or last time, the answer is that LASPO is badly drafted and poorly constructed and unfair to real people, and it needs to be reworked.

 

Disclosure to the security services

 

Well, applications for disclosure of care proceedings to the police is something that we are used to, but an application to disclose papers in care proceedings to the Security Services is something rather new – even if with radicalisation we should have seen it coming.

 

X, Y and Z (Disclosure to the Security Service) [2016]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2400.html

 

In this case which involved not only allegations of radicalisation but also allegations that one of the parents might have deliberately adminstered a harmful drug to the child by way of an intravenous cannula, the Security Services and the police were taking an interest.  There were materials within the care proceedings which were of interest to them and might have assisted in their investigations.

The complicating wrinkle is that whilst we know exactly what happens with documents that are disclosed to the police (the officers in the case read them, they are shared with the CPS and possibly with trial counsel to decide whether there needs to be an application to USE them in the criminal trial), we’re not at all sure what the internal processes of the Security Services are.

And understandably, the Security Services aren’t keen on walking us through their processes and what is involved, particularly to reveal those matters to people they are investigating under terrorism legislation.

The Security Services therefore wanted effective Cate Blanchett to have the documents and make such use of them as they saw fit including sharing them on a ‘need to know’ basis whereas the Court was being urged to not allow such unfettered access.

The compromise that was reached – and the judgment is very helpful on the detail for anyone in this position, was that the papers could be disclosed to the police, the CPS and the Security Services but any onward disclosure by those agencies would have to be with the Court’s permission following an application.

 

The Court set out the principles about how such an application by the Security Services might work (notably whether the parents would be served with it and allowed to attend and make representations)

 

 

  • My decision raises the possibility of the Security Service needing to make an application to this court for permission to disclose the material outside the Service. Whilst such applications are ordinarily straightforward, as set out above, given the nature of the Security Service and its manner of operation, an application in this context presents specific potential difficulties. In particular, the practice of neither confirming nor denying an interest or involvement means that it is unlikely that the Security Service will wish to give notice of such an application in circumstances where, in some situations, simply confirming or denying that an agency is interested in information or seeks information will result in risk that that agency will disclose its interest in, or alert suspects. In addition, the nature of the disclosure sought means that it is likely the Security Service will thereafter wish to adopt a closed procedure. Given the impact of these contentions on the Art 6 rights of the parties, they will need to be the subject of rigorous examination by the court. Within this context, I note that The President’s Guidance recognises that in cases in the family court concerning the issue of radicalisation the court may need to consider the use of closed hearings or special advocates. The Guidance further recognises the need to ensure that the Art 6 rights of all the parties are protected.
  • In seeking to ensure that the Art 6 rights that are engaged are properly protected, as well as fidelity to the common law principles of fairness and natural justice, I further note that both the domestic and European Courts have recognised that proceedings in relation to the intelligence services inevitably raise special problems and might not be capable of being dealt with in the same way as other claims (see Regina (A) v Director of Establishments of the Security Service [2010] 2 AC 1). In the case of R v Shayler [2003] 1 AC 247 Lord Bingham noted as follows in this respect:

 

“The need to preserve the secrecy of information relating to intelligence and military operations in order to counter terrorism, criminal activity, hostile activity and subversion has been recognised by the European Commission and the court in relation to complaints made under article 10 and other articles under the Convention: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100–103; Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48; Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1992) 16 EHRR 219, paras 45–47; Esbester v United Kingdom (1994) 18 EHRR CD72, 74; Brind v United Kingdom (1994) 18 EHRR CD76, 83–-84; Murray v United Kingdom (1994) 19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question. The acid test is whether, in all the circumstances, the interference with the individual’s Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context.”

 

  • There is in my judgment no need to set up any new or elaborate procedure to account for the particular difficulties raised by any permission application that may be made by the Security Service. Rather, it is a question of adapting the existing, well established procedure for such permission applications. The key adaptations will be the need to recognise the greater likelihood that the initial hearing will need to be without notice to the parties to the proceedings (although it will remain incumbent on the Security Service in each instance to justify a without notice application by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412) and the possible use thereafter of some species of closed procedure involving the deployment of special advocates when determining the application for permission.
  • As to the applicable principles for determining whether a closed procedure should be adopted (if requested), the Justice and Security Act 2013 s 6(11) provides for the making of a declaration in any proceedings (other than proceedings in a criminal cause or matter) before the High Court that the proceedings are proceedings in which a closed material application may be made to the court. No such provision is made however, in respect of proceedings in the Family Court. Further, the rules of court which govern the determination of an application for such a declaration, and any subsequent closed material application are those set out in the CPR Part 82. By CPR r 2.1(2), CPR Part 82 does not apply to family proceedings and CPR Part 82 is not otherwise incorporated into the FPR 2010.
  • In the circumstances, whilst it would appear possible to transfer family proceedings to the High Court in order to secure for the court a statutory jurisdiction to consider an application for a declaration pursuant to the Justice and Security Act 2013 s 6 that those family proceedings are proceedings in which a closed material application may be made, absent the incorporation of CPR Part 82 into the FPR 2010 there are at present no procedural rules for determining that application or any subsequent closed material application in the context of family proceedings.
  • Historically however, and notwithstanding it being seemingly well-established that the fundamental principle that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party can only be qualified or overridden by statute, and even then only expressly and not by implication (see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 132 and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at [45]), it is clear that special advocates have been utilised on a limited number of occasions in family proceedings to deal with issues of disclosure of sensitive material (see Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048 at [31]-[34] and [112] and BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974 at [13] to [48]). In A Chief Constable v YK and Others [2011] 1 FLR 1493 at [112], whilst declining the use of special advocates in that case, Sir Nicholas Wall observed that “there will be undoubtedly be circumstances in family proceedings in which they are appropriate”. The President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016 contemplates the use of closed hearings and special advocates in family proceedings.
  • In the circumstances (and whilst there may remain an argument to be had as to whether the use of some species of closed procedure in the Family Court is permissible absent express statutory provision for the same, or in family proceedings in the High Court pursuant to the Justice and Security Act 2013 absent any rules of procedure governing the same having been promulgated) at any initial hearing of an application by the Security Service for permission to disclose the court will need to consider, inter alia, the following matters:

 

i) Whether the application for permission is properly made without notice in the first instance. The application should contain brief reasons for seeking to pursue the application initially without notice to the parties by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412;

ii) Whether the Security Service invite the court to determine the application for permission on the basis of a closed procedure utilising special advocates;

iii) Whether the application is appropriate to be dealt with by means of the use of a closed procedure utilising special advocates having regard to the guidance set out in Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048, A Chief Constable v YK and Others [2011] 1 FLR 1493 BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974, the President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016.

iv) Any further directions for the hearing having regard to the court’s decision in respect of the foregoing matters, again having regard the guidance in the authorities and Practice Guidance enumerated at (iii).

 

 

And here’s a photo of Rupert Penry Jones for Spooks fans  (gratuitous, yes, but I’m sure that a Margot Robbie tenuous connection will come up soon enough to balance it out)

 

Richard Armitage was good, but Rupert was THE GUY

Richard Armitage was good, but Rupert was THE GUY

Revoking adoption and IVF mistakes (again)

 

 

 

The President of the Family Division has been at the forefront of the litigation about IVF clinics that managed to make a mess of the paperwork such that people who fully intended to both be legal parents of a child conceived in that way have ended up not being legal parents and having to go through cost and emotional turmoil. Purely due to failures in using the correct forms. It is a trivial mistake, but one (as you can see from this piece) has huge emotional consequences and cost for those involved.

Case O (Human Fertilisation and Embryology Act 2008) [2016] EWHC 2273 (Fam) (13 September 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2273.html

 

The President notes that there are approximately 90 cases of such anomalies, where due to failure with forms and paperwork parents who intended in good faith to become legal parents of the child they were conceiving with help of the clinic did not actually become the legal parent.

 

In this case, when the parents were told of the mistake, the child had not yet been born.

 

 

 

 

17.When told by the clinic of the mistake which had been made, X and Y were, to use X’s word, “devastated.” Y was at home – in fact she was far advanced in her pregnancy with C2 – when Barts telephoned:

 

 

 

“They told me that I was not [C1’s] legal parent … I rang [X], instantly, I was sobbing. I could not believe what I had been told. Fortunately [she] was very close to home. When I received that telephone call I felt like my whole world had been ripped apart. I was no longer [C1’s] mummy. This still remains very raw.”

 

X remembers Y telephoning:

 

“[She] called me, [she] was sobbing and I could barely make out what she was saying.”

 

The legal advice they got at the time (which was probably right at the time – or at least what most lawyers would have said was the only answer) , before Theis J found the alternative route) was that there would have to be an adoption.

 

 

18.X and Y were told both by the clinic and by the solicitors they instructed – not those involved in the present proceedings – that the only solution was for Y to adopt C1. I have referred on previous occasions to how utterly inappropriate adoption is as a remedy in cases like this: see In re A, para 71(vii), and Case I, para 24. However, as I observed in Case I, para 23, my impression is that this erroneous view, shared at the time both by the HFEA and by the clinics whose actions I have had to consider, and, I might add, by many family lawyers, was based on assumptions, derived from Cobb J’s judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, which were widespread until, in February 2015, Theis J gave judgment in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13, [2016] PTSR 1.

 

 

19.Y accordingly made an application to the Family Court to adopt C1. X and Y found the adoption process – and I can well understand why – very intrusive, very hurtful and a total invasion of their privacy. Y’s account is telling: “I felt I was stared at and judged. I felt that everyone analysed us.” But more fundamentally, as X put it, “the whole adoption process felt wrong.” Y’s anguished words are heart-breaking:

 

 

 

“I feel like a piece of me has been taken away from me. I cannot even start to explain the pain it has brought to us all. We tried our hardest to do things properly and yet it’s like I no longer feel like I am [C1’s] mummy. I was [C1’s] mummy but now I am [C1’s] adoptive mummy. We do not want [C1] to be different to [C2] … We feel disappointed and let down by Barts. We planned our family carefully. We want [C1’s] parenthood to be what it should have been. Adoption is not what we wanted.”

 

X’s words are equally raw:

 

“It broke my heart when I had to hand in [C1’s] original birth certificate. I am so upset that [C1] now has a different status as an adopted child. [C1] is now different to [C2], when [this] should not have been.”

20.The report of the adoption social worker prepared for the adoption proceedings contains this important passage:

 

 

 

“This application is quite unique.” After setting out the circumstances, the writer continued: “The couple have sought legal advice and have been advised that the only way to remedy this is for [Y] to formally adopt [C1]. The couple have found this situation extremely distressing and in all honesty do not want this process. However they want everything for [C1] to be proper and legal and for [Y] to be recognised legally as [C1’s] parent, as was always intended.”

21.In due course – this was all in 2014, before Theis J had given her important judgment – the District Judge made an adoption order. It was not a happy occasion for X and Y. In her report prepared for the present proceedings, C1’s guardian records their feelings:

 

 

 

“The description of that day was very emotional. “There were lots of other couples there celebrating. It was a special day for those families. It was a miserable day for us, a defeat, a horrible occasion.””

 

Having learned of the newer approach of the Family Courts, to fix the deficiencies in the process and make declarations of parentage which would achieve the legal status as the child’s parents without adoption, the couple sought advice and made an application to revoke the adoption order.

 

As readers of the blog will know, that’s a very rare application, and less than a handful of such cases have ever succeeded. Most reported attempts have failed.

 

 

22.The guardian’s report is insightful, empathetic and humane. It is a powerful and moving exploration of what has gone wrong:

 

 

 

“[The adoption] was an unwelcome, unwanted and intrusive process but one in which [Y] and [X] felt compelled to participate for they wanted legal certainty for [C1] and were told they had no other options. They are now, understandably, further distressed to learn that other remedies may have been available to them. They are seeking a Declaration of Parentage and a revocation of the adoption order. I unequivocally support their applications.

 

… The adoption application was made with great reluctance. Particularly cruel was having to hand in the original, and very precious, birth certificate. “We are private people. It was horrible having to talk to strangers about such a personal part of our lives. It was like being public property.” [Y] talked about being asked to leave the room by the Cafcass Reporting Officer who witnessed [X’s] consent. She described sitting in the kitchen and crying.”

23.The guardian comments that at no point in the process did anyone raise any queries about the unusual background circumstances or ask whether there might be a different route to securing parenthood for C1. She continues:

 

 

 

“[C1] now has a new birth certificate and a new status as an adopted child – something [Y] and [X] now know to be completely unnecessary, having been made aware that an alternative could have been made available to them … [They] feel a level of stigma about the adoption and an acute awareness of [C1’s] difference to [C2]. They are concerned that [C1] will worry about why [C1] was adopted and [C2] is not. They are concerned about how to explain this … They are upset and angry on [C1’s] behalf – and anyone hearing their account cannot help but be moved. “We are honourable, honest people. We believed the system and we did what we were told.” They are disappointed that other professionals at the time did not question the adoption process or suggest they seek alternative advice. They feel as if the adoption was entered into under false pretences. I consider their sentiments are both understandable and entirely justified and that [C1] should not have been adopted.”

24.Recognising that revocation of an adoption order is “a most unusual step”, the guardian is nonetheless unequivocal in her recommendations:

 

 

 

“However, from [C1’s] perspective, I can identify absolutely no need or justification for an adoption order, given that a realistic alternative would certainly have been pursued at the time had the parents received different legal advice … On [C1’s] behalf, I have no hesitation in recommending that the court revoke the adoption order and replace it with a Declaration of Parentage – the latter order being one that will equally meet [C1’s] welfare needs and interests. It will afford [C1] the permanence and security that all children should have, and will give effect to the legal relationship that had always been intended when the parents had the fertility treatment. It will remove the unnecessary stigma of [C1’s] status as an adopted child and afford [C1] parity with [C2].”

 

The guardian concludes with the hope that the original birth certificate be returned, this document having, as she says, “enormous significance” for X, Y and C1.

25.I wholeheartedly agree with the guardian’s observations and unequivocally accept her recommendations. For all the reasons she gives, C1’s welfare demands that the adoption order be revoked. Common humanity to X and Y demands the same. They have suffered very greatly from failings in the ‘system’. In the circumstances I have described, to deny them the relief they seek would seem an affront to justice. But does the law enable me to make the desired order? In my judgment, it does.

 

 

26.I have been taken to the authorities: see In re F(R) (An Infant) [1970] 1 QB 385, Re RA (Minors) (1974) 4 Fam Law 182, In re F (Infants) (Adoption Order: Validity) [1977] Fam 165, Re M (Minors) (Adoption) [1991] 1 FLR 458, In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 (affirming Re B (Adoption: Setting Aside) [1995] 1 FLR 1), Re K (Adoption and Wardship) [1997] 2 FLR 221, Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, Re PW (Adoption) [2013] 1 FLR 96, Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, and PK v Mr and Mrs K [2015] EWHC 2316 (Fam). See also, in relation to the revocation of a parental order made under section 54 of the 2008 Act, G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286.

 

 

27.There is no need for me to embark upon any detailed analysis of the case-law. For present purposes it is enough to draw attention to a few key propositions:

 

 

 

  1. i) Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 4, to the contrary view of Parker J in Re PW (Adoption) [2013] 1 FLR 96, para 1.

 

  1. ii) The effect of revoking an adoption order is to restore the status quo ante: see Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, paras 11-12.

 

iii) However, “The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances””: Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 14, “public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so.”

 

  1. iv) An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239) or even if there has been a miscarriage of justice (Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378).

 

  1. v) The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, is highly exceptional, yet the attempt to have the adoption order set aside in that case failed.

 

 

 

28.I bear in mind, also, two important observations that appear in the authorities. The first is the observation of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, page 251:

 

 

 

“The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.”

 

The other is that of Hedley J in G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, para 33:

 

“the adoption authorities show that the feelings of an injured party are not germane necessarily to consideration of an application to set aside. The hurt of the applicants in both In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 … and Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, was immeasurably greater than here and it availed them nothing.”

29.The present case is unprecedented, indeed far removed on its facts from any of the previously reported cases. The central fact, even if no-one recognised it at the time, is that when Y applied for the adoption order she was already, not merely in fact but also in law, C1’s mother. It follows that the entire adoption process was carried on while everyone, including the District Judge, was labouring under a fundamental mistake, not, as in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, a mistake of fact but a mistake of law, and, moreover, a mistake of law which went to the very root of the adoptive process; indeed, a mistake of law which went to the very root of the need for an adoption order at all. The entire adoption proceeded upon what, in law, was a fundamentally false basis.

 

 

30.Flowing also from this is that the consequence of an order revoking the adoption order will in this case be fundamentally different from in any of the other cases. There will be no uprooting of C1 from one set of parents and return to another set of parents; C1 will remain, as hitherto ever since birth, with the same people, the people who, to C1, as also to X and Y, are and always have been C1’s parents in every sense of the word, parents emotionally, psychologically, socially and legally. X and Y always intended to be, and in law always were, C1’s parents.

 

 

31.To make an order revoking the adoption order, as I propose to do, will not merely right a wrong; it will recognise a legal and factual reality and put an end to a legal and factual fiction, what Ms Fottrell rightly described as a wholly contrived position. And it will avoid for the future – and this can only be for C1’s welfare, now, into the future and, indeed throughout life – all the damaging consequences to which X, Y and the guardian have drawn attention. As Ms Fottrell put it, C1’s welfare will be better served by restoring the status quo ante and setting aside the adoption order. I agree. I can detect no convincing argument of public policy pointing in the other direction; on the contrary, in this most unusual and highly exceptional case public policy marches in step with justice to X, Y and C1; public policy demands that I make the order which so manifestly is required in C1’s best interests.

The Court’s Magical Sparkle Powers (TM) – can you take a DNA paternity test from a dead man?

In Spencer V Anderson 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/851.html

a Mr David Spencer, now 20 years old, wanted to establish whether the late William Anderson, who had died intestate (without making a will), was his father. William Anderson had provided tissue samples as part of his medical treatment. Could those tissue samples be used to extract DNA, and thus undertake a paternity test? And presumably establish a form of claim against Mr Anderson’s estate.

It is a judgment by Mr Justice Peter Jackson, so it is highly informative and elegant.

 

  • The application under s.55A was issued on 18 September 2015. His Honour Judge Duggan made a series of directions, giving the respondents and the hospital the opportunity to make representations, and listing the DNA testing issue for decision. He identified the following questions:

 

(1) Does the phrase “bodily samples” in section 20(1)(b) Family Law Reform Act 1969 extend to DNA material already extracted?

(2) Alternatively, does the inherent jurisdiction of the High Court extend beyond the ambit of the Family Law Reform Act 1969 to permit comparison of the DNA of an applicant with samples of DNA already extracted from bodily samples of the deceased and kept in storage?

(3) What is the legal basis of paragraph 66 of Mrs Justice Thirlwall’s judgment of Goncharova v Zolotova [2015] EWHC 3061 (QB)?

(4) Does the testing of the DNA already extracted from a deceased person require consent and if so from whom?

(5) Is the refusal of consent by the deceased’s estate capable of creating an adverse inference whether under the Family Law Reform Act 1969 or the inherent jurisdiction of the High Court?

 

  • I will consider each of these questions in the course of this judgment.

 

Damn good set of questions, those.

 

D FIRST ISSUE: DOES THE FLRA 1969 APPLY?

    • On behalf of Mr Spencer, Mr Kemp initially sought to argue that a direction might be given under the FLRA. However, in the course of the argument he conceded that this argument could not succeed. In my view, the concession was rightly made for the reasons analysed above, which can be summarised by saying that the FLRA:
  • governs the taking of samples from living people
  • makes no provision for samples being taken after death
  • does not contemplate separate directions for sampling and testing
  • does not provide for the testing of existing samples
  • does not provide for the testing of samples that had been taken for reasons other than establishing parentage
  • requires samples to be collected in accordance with regulations
  • does not provide for the testing of DNA itself.

 

  • Mr Kemp rightly described the difficulties as being insurmountable and accepted that in the circumstances of this case a direction under s.20 is not available to his client.
  • There being no other legislation in point, I therefore conclude that there is no statutory power to direct post-mortem scientific testing to establish a person’s biological relationships and consequently no statutory power to make a direction for the testing of Mr Anderson’s stored DNA

 

E SECOND ISSUE: DOES THE HIGH COURT HAVE AN INHERENT POWER TO ORDER TESTING?

 

  • On behalf of Mr Spencer, it is argued that there are two possible sources of such a power: Civil Procedure Rules r.25.1 (or its equivalent, Family Procedure Rules r.20.2) or the inherent jurisdiction.

 

(By “Inherent Jurisdiction” here, everyone means the Court’s “Magical Sparkle Power” (TM), which I have decided should be used from now on, to illustrate just how much of a legal sleight of hand the whole thing is)

The inherent jurisdiction

 

  • The inherent jurisdiction of the High Court is a description of the court’s common law powers insofar as they have not been removed or supplanted by statute. In the Court of Appeal in Re F (above) Lord Donaldson MR described the common law as

 

“… the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.”

 

  • The inherent jurisdiction is therefore a jurisdiction of long-standing that nowadays exists in a number of important contexts. With regard to children, it has been used in a wide variety of creative ways to supplement statutory powers, both through the medium of wardship and otherwise. As recorded in FPR PD 12D, the court can, for example, make orders to restrain publicity, to prevent an undesirable association, to endorse medical treatment, to protect children abducted from abroad and to recover children from abroad. These orders not only affect the individual family members but are also directed towards third parties, either as orders or requests.
  • More recently, the jurisdiction has been developed to provide remedies for the protection of vulnerable but not legally incapable adults. In Re SK [2004] EWHC 3202 (Fam), Singer J said:

 

“I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values.”

That manifestation of the jurisdiction was cemented by Munby J in Re SA [2005] EWHC 2942 (Fam) and the Court of Appeal has confirmed that it has survived the enactment of the Mental Capacity Act 2005: see DL v A Local Authority [2012] EWCA Civ 253.

 

  • These cases and others concerned the protection of vulnerable individuals at risk of coercion or abuse. At the other end of the scale, the inherent jurisdiction can relate to the court’s power to control its own procedures, as in Bremer Vulkan v. South India Shipping [1981] 1 AC 909, where Lord Diplock said this at 977:

 

“The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. … The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is within the “inherent jurisdiction” of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.”

 

  • The inherent jurisdiction is plainly a valuable asset, mending holes in the legal fabric that would otherwise leave individuals bereft of a necessary remedy. The present case (DNA testing) might be said to fall between the above examples of the court’s inherent powers (protection of the vulnerable, striking out).
  • At the same time, the need for predictability in the law speaks for caution to be exercised before the inherent jurisdiction is deployed in new ways. The court is bound to be cautious, weighing up whether the existence of a remedy is imperative or merely desirable, and seeking to discern the wider consequences of any development in the law.

 

That is the problem with the Court’s Magical Sparkle Power – because it isn’t set down properly in statute what the powers are, and the limitations of those powers, and the constraints for using those powers, it ends up being built on with case after case – extending its reach outwards and upwards, and then each case thereafter says “Well, if Munby J was able to use the Court’s Magical Sparkle Powers to do X, then I can use them to do Y” and the next Judge says “Well, if Colombo J was able to use the Court’s Magical Sparkle Powers to do Y, then I can use them to do Z” and so it goes.

There’s a neat argument against the Court’s Magical Sparkle Power here, which rather appealed to me

Submissions on behalf of Mrs Anderson

 

  • Mr Mylonas QC and Ms Street advance the following propositions in relation to the existence of an inherent jurisdiction:

 

(1) The High Court does not have the power to make any order it wishes; see Hayden J in Redbridge London Borough Council v A [2015] Fam 335:

“The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right…”

(2) The court’s powers are limited by s.19(2) of the Senior Courts Act 1981:

“Subject to the provisions of this Act, there shall be exercisable by the High Court—

(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and

(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act (including jurisdiction conferred on a judge of the High Court by any statutory provision).”

So, the applicant must, but cannot, show that there was jurisdiction to make an order of this kind before the coming into force of the Senior Courts Act.

(3) Paternity testing within litigation is regulated by Part III of the 1969 Act. Any power to make a direction for scientific testing to establish paternity under the inherent jurisdiction was ousted by the Act: Re O (A Minor)(Blood Tests: Constraint) [2000] Fam 139.

In that case, two men had each obtained directions for the testing of a child to establish paternity, but the mothers, with care and control of the child, refused to consent to the testing. Wall J accepted with reluctance that there was no power to compel the mothers to allow testing when the statute required their consent: this soon led to the enactment of s.21(3). At page 151, he stated:

“In my judgment, unattractive as the proposition remains, both the inherent jurisdiction to direct the testing of a child’s blood for the purpose of determining paternity and any consequential power to enforce that direction is entirely overridden by the statutory scheme under Part III of the Family Law Act 1969. If the remedy is to be provided it is, accordingly, for Parliament to provide it.”

It is said that the present position is on all fours with that facing the court in Re O. Although the decision was given nine months before the Human Rights Act came into effect in October 2000, the court showed itself well aware of the rights engaged on all sides.

(4) There are sound policy reasons for the absence of any statutory power to permit testing in the circumstances of this case. DNA testing is an interference of the highest order with the subject’s right to confidentiality and the privacy of their known family members whose genetic relationships will also be revealed by such testing. If the court allows post-mortem DNA testing in the absence of consent, this is likely to discourage patients from providing DNA during medical treatment and encourage those in Mr Spencer’s position to defer making applications until after the death of the alleged father so as to circumvent the absence of consent. If testing in a case such as the present were to be permitted, it ought to be by way of a scheme (i) devised following the kind of consideration, consultation and scrutiny which Parliament but not the High Court can carry out; (ii) which provides for regulation (eg guaranteeing the integrity of samples and testing); and (iii) which provides clear rules which can be easily understood by healthcare professionals, patients, their family members and those who seek testing.

(5) At present, the law is clear: you cannot test samples taken for one purpose for a different purpose without consent. That clarity would be lost if an inherent power was found to exist. The law must be accessible and sufficiently precise to enable the individual to understand its scope and foresee the consequences of his actions: R v Purdy [2010] AC 345 at 390. In the present case, Mr Anderson was deprived of the opportunity to require his samples to be destroyed or of making a will excluding Mr Spencer.

(6) The decision in CM v EJ does not take matters further forward. It was not a case about paternity testing, no arguments were made against the existence of an inherent jurisdiction, and the use of the jurisdiction was consistent with the relevant statutory scheme, not inconsistent with it.

(7) Re H and A is a case in which the power to order testing was not in question. Likewise, the decision in Jaggi concerned the failure to exercise a power that existed, not the question of whether a power existed in the first place.

(8) As Re O demonstrates, the interests of justice alone do not provide a basis for ordering testing where no power to do so has been identified.

(9) Similarly, a series of cases in the analogous field of assisted reproduction show the reluctance of the courts to subvert a carefully-devised statutory scheme.

 

I happen to agree with all of that, but good luck in ever persuading a Judge that they should make a decision limiting the use of Magical Sparkle Power. You may have picked up from time to time, that I don’t much like the Jedi hand-wave that is Magical Sparkle Power, with Judge’s deciding that they can conjure powers out of thin air to solve a problem. It doesn’t sit well with me in terms of checks and balances.

 

Anyway, the important thing is that Mr Justice Peter Jackson did not agree with me, or the estate of Mr Anderson (and I don’t think on the law as it stands that was a wrong decision – the problem is, as I alluded to earlier, that the law in relation to Magical Sparkle Power is developing as a series of stepping stone cases, each relying on the one before it to extend the power further, and with no real tackling of the foundations of the earliest stepping stones and whether the Courts were ever given quite the scope of Magical Sparkle Power that they are now using)

 

Conclusion as to inherent jurisdiction

 

  • In my view, the following features are relevant to the existence or non-existence of an inherent power:

 

(1) Statutory interpretation

Before the enactment of the FLRA, the preponderant judicial opinion was that there was power to direct the taking of blood to establish a child’s paternity, and such orders were on occasion made: see In re L (An Infant) [1968] P 119 and B (BR) v B (J) [1968] P 466.

The FLRA is the only statute concerned with testing for evidence of biological relationships. It is comprehensive in relation to cases falling within its scope: Re O. In that case, the issue that had arisen lay squarely within the scheme of the Act. It fell under what Wall J referred to at 150 as the “rug” of the legislation, or what Hale LJ referred to as the “footprint” in the Court of Appeal in Re R (see paragraph 39 of the House of Lords’ opinions). In contrast, the testing of DNA post-mortem falls distinctly outside the scope of the legislation. The FLRA cannot be read purposively or convention-compliantly so as to cover cases of the present kind. I therefore do not accept that a power to give directions for post-mortem DNA testing has been ousted by the Act.

Nor do I accept that the court’s powers are limited by s.19(2) Senior Courts Act 1981. This formal, descriptive subsection cannot be taken to have defined or circumscribed the powers of the High Court, or to have frozen them as at the date of the legislation. Were it otherwise, the vulnerable adult jurisdiction could not have existed.

There is a legislative void, both in relation to post-mortem paternity testing and in relation to paternity testing using extracted DNA. I accept that in an area of this kind, policy considerations arise which would be better regulated by Parliament than by individual decisions of the court. In one sense, this speaks for judicial reticence. However, there is no indication that Parliament has turned its attention to the situation that arises in the present case, or that it is likely to do so at any early date. This gives rise to the possibility of an indefinite period during which individuals would be left without a remedy.

(2) Consent

Both the FLRA and the HTA (and the HFEA 1990 and 2008, insofar as they may be analogous) regard consent as the central component of lawfulness.

It is necessary, when considering the availability of a remedy after death, to consider the situation that would have arisen in life. The person concerned would have had the right to decide whether or not to participate in paternity testing and to allow his human tissue to be used for that purpose.

Although neither the FLRA nor the HTA apply to extracted DNA as opposed to human tissue, the use of human tissue is a necessary forerunner to the extraction of DNA and similar considerations and sensitivities must apply when DNA testing is being considered.

If the issue related to the post-mortem testing of human tissue (as opposed to DNA), the terms of the HTA would apply. For testing to be lawful, there would have to have been consent from the individual in life or by a relative after death. Or there would have to be a court order.

(3) The public interest

An intervention of the kind suggested in this case might give rise to uncertainty and concern within the medical world and beyond at the possibility that such orders might be made in other cases, or that in effect the door was being opened to post-mortem paternity testing on demand. Although it does not arise in the present case, the prospect of applications for exhumation cannot be regarded as fanciful when one recalls the circumstances in Mortensen and Jaggi, or indeed those of Richard III.

Against this, there is no sign that the present application has caused alarm to the major hospital involved in the present case (indeed it appears to welcome the court’s assistance), or that applications of this kind are likely to be at all numerous, particularly if they could only be heard in the High Court, and thereby be subject to very close scrutiny. The prospect of this limited development in the law affecting the behaviour of the patient population as a whole is likely to be more imaginary than real.

(4) Identity

Knowledge of our biological identity is a central component of our existence. The issue can have consequences of the most far-reaching kind, perhaps above all for those who do not know or are not sure of their parentage. Within our lifetimes, DNA testing has made the truth available. At the same time, it has made all other kinds of evidence almost irrelevant. While it remains possible to reach a conclusion about paternity without scientific tests, the practical and psychological consequences are different. A declaration made without testing is a finding, while the result of a test is a fact.

The contrast can be found in the opinion of Lord Wilberforce in The Ampthill Peerage Case [1977] 1 AC 547 at 569:

“Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.”

While at 573 he said:

“One need not perhaps, on this occasion, face the question whether, when technology or science makes an advance, so as to enable to be known with certainty that which previously was doubtful, such evidence ought to be admitted in order to destroy the binding force of a judgment or of a declaration with statutory force. It may be that within the limits within which a new trial may be ordered and, on the precedents, those limits are comparatively short, such evidence could be admitted for that purpose.”

The European Convention, as interpreted in Jaggi, underscores the importance of the opportunity to discover one’s parentage. Although the Convention cannot on its own create a remedy, it is desirable that our law is consistent with the approach taken in other jurisdictions if that is possible.

(5) The interests of others

It is a peculiar feature of genetic testing that it inescapably has the potential to affect not only the individual being tested but also those to whom he is closely related. Depending on the facts, the rights of surviving relatives may be engaged, but it is difficult to envisage a situation in which the establishment of the truth about biological relationships could amount to an unlawful interference with those rights; at the very least any interference may be necessary and proportionate. The rights of third parties certainly cannot represent an absolute bar to the existence of an inherent power.

(6) The interests of justice

When all is said and done, the court is faced with a civil dispute that must be resolved. In cases where a power exists, it has long been emphasised that the establishment of the truth is both a goal in itself and a process that serves the interests of justice. As noted above, where a court makes findings of fact based upon witness and documentary testimony, there is always the possibility of error. Evidence will be incomplete because (by definition in a case of the present kind) people will have died and memories may have faded. When dealing with matters as important as parentage, the need to reach the right conclusion is obvious. The prospect of a court trying to ascertain the truth to the best of its ability when the truth is in effect there for the asking is a troubling one. Account must also be taken of the needless waste of resources that would accompany a trial involving narrative evidence.

(7) The range of circumstances

The existence of a power cannot depend upon the circumstances of the particular case. What is relevant is the range of cases that might arise. It is possible to envisage opportunistic and unmeritorious applications, but there might equally be applications, perhaps concerning young children, where the need to know the truth about parentage is compelling. The answer cannot be that the court can consider an application in the second case but not in the first: jurisdiction cannot depend on merits.

 

  • Reflecting the complexity of the legal and ethical issues, the above features pull in a number of different directions. If the only considerations related to the interests of the deceased and the public interest, the arguments against the existence of an inherent power would surely prevail. However, the interests of the living and the interests of justice must also be brought into consideration.
  • Taking all these matters into account, my conclusion is that the High Court does possess an inherent jurisdiction that it can properly deploy to direct scientific testing to provide evidence of parentage in circumstances falling outside the scope of the FLRA. If the court was unable to obtain evidence of this kind, severe and avoidable injustice might result. Awareness of the implications of ordering testing without consent and of the wider public interest does not lead to the conclusion that the jurisdiction does not exist, but rather to the realisation that it should be exercised sparingly in cases where the absence of a remedy would lead to injustice.

 

This is not a surprising conclusion. Magical Sparkle Power continues to be most efficacious in evey case. The remedy for all ills.

 

Having established that the Court COULD use Magical Sparkle Power to compel a DNA test from a deceased person’s tissue samples, given for another reason, the Court then had to decide whether they SHOULD in this case.   (This of course raises the issue as to whether someone who is terminally ill should make legal arrangements for the destruction of any tissue samples on death, or whether that should be part of a formal consent procedure when the samples are taken, but that’s a bit beyond our scope)

 

F THIRD ISSUE: SHOULD TESTING BE DIRECTED IN THIS CASE?

 

  • The following factors are relied upon in support of testing:

 

(1) Mr Spencer’s natural desire/right to know his parentage.

(2) Combined with this, the value that knowledge of paternity will have in clarifying his medical status and the need (or not) for intrusive investigations.

(3) The interests of justice and the need for the best available evidence: cf Re H and A.

 

  • In response, it is said on behalf of Mrs Anderson that:

 

(1) An order for testing would be an unjustified interference with her own Art. 8 rights by compounding a distressing situation and creating a risk that a genetic relationship would be identified between herself and a person who has caused her stress and anxiety.

(2) Human DNA is intensely personal and very strong justification is therefore required if it is to be used for any purpose without that person’s consent. The sample was provided by Mr Anderson for his own benefit during the course of medical treatment. He was entitled to a high expectation of confidentiality.

(3) Testing could not have taken place in Mr Anderson’s lifetime without his consent. This statutory bar has been given greater weight than any other rights, including those of a supposed child. Mr Anderson’s option to consent or withhold consent during his lifetime (and to explain his decision) was circumvented by Mr Spencer’s choice not to raise the issue until after his death. It would be unjust if his extensive delay allowed Mr Spencer to achieve testing without consent.

(4) To allow testing in this case would be against the public interest by undermining patient confidence in the confidentiality of providing samples for medical treatment.

(5) Mr Spencer’s delay deprived Mr Anderson of the opportunity to make decisions about his private life and his property.

(6) Mr Spencer’s interest weighs less heavily in the balance than that of Mr Anderson, Mrs Anderson and the public interest because:

(i) His lack of interest in testing until after Mr Anderson’s death shows that he had no interest in testing for paternity in order to satisfy himself of that relationship for its own sake. The court is not obliged to take positive steps to uphold his rights in these circumstances.

(ii) If the request is now motivated by inheritance reasons, his delay denied the deceased the opportunity to manage his estate in the light of relevant knowledge.

(iii) If the request is now motivated by medical reasons, on Mr Spencer’s own case, a test would merely serve to confirm what he already believes to be the case; if no testing is carried out he will continue to benefit from low-risk screening which will reduce his chance of cancer.

(7) Making no order for testing in this case would not exclude the possibility of an order for testing of a DNA sample being made on different facts, for example, where national security or the life of a child was at stake.

 

  • Weighing these matters up with appropriate caution, and seeking to strike a fair balance between the competing private and public interests, I have reached the conclusion that scientific testing should take place to seek to establish the paternity of Mr Spencer by using the stored DNA sample of the late Mr Anderson. These are my reasons:

 

(1) If the application for a declaration of parentage had appeared to be speculative or opportunistic, the request for scientific testing would probably not have succeeded. However, the overall evidence here raises the real possibility that Mr Anderson was Mr Spencer’s father, he having undeniably been in a relationship with Mr Spencer’s mother at the time of conception.

(2) It is common ground between the parties that there is a significant medical issue that turns on the possibility of a biological relationship between Mr Anderson and Mr Spencer. It is of course possible for Mr Spencer to be tested periodically by colonoscopy, but that is only a partial solution because he is surely entitled to know the reason why he should undergo those procedures, or to be relieved of the need to do so. As recently as February 2015, Mrs Anderson regarded it as “essential” that Mr Spencer’s paternity should be established. It does not now lie easily in her mouth to say the opposite.

(3) Although it is possible that the late Mr Anderson (like the alleged father in Jaggi) might have refused to consent to testing during his lifetime, there is no particular reason to regard that as likely. Whether or not he would have welcomed the possibility that he was a father, it may not do justice to his memory to assume that he would have withheld his support from a young man who might have inherited a serious medical condition from him.

(4) The information, in the form of the DNA sample, is readily available and does not require physically intrusive investigations. In particular, it does not require exhumation, as to which particular considerations would undoubtedly arise.

(5) There is no objection on behalf of the hospital, which might be seen as being a nominal representative of the public interest in this case.

(6) The interests of third parties, and in particular those of Mrs Anderson to the extent that they may be engaged, are, with all respect, of lesser significance. There is no indication of any real risk of harm and the establishment of the truth carries greater weight than the question of whether it is palatable.

 

  • I accordingly find that Mr Spencer’s interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court’s inherent jurisdiction to secure this outcome.
  • For completeness I would add that, had testing not been directed, the court would have heard the evidence in the normal way. Statutory inferences could not be drawn in a case where the statute did not apply, but this would not have prevented the court from drawing whatever inferences seemed proper from the evidence before it.
  • I pay tribute to the considerable help that I have received from counsel and invite them to submit a draft order that reflects this decision and replicates so far as possible the protections that would accompany a direction for testing under the FLRA.

 

Magical Sparkle Power, eh. Amazing. For me, it’s a bit like Superman. If you’re writing a Superman comic or film, you know the powers that Superman has been given. It’s a broad spectrum – he has super strength, he has flight, he has X-ray vision, he has heat rays, he has extraordinary speed. That’s a lot to work with, it should cover most of what you need in any given scenario. If you start adding to that with the power to kiss people and make them forget things, to peel his logo off his chest and throw it as a super weapon, to fly so fast round the earth backwards that he can turn back time, then you’re CHEATING.  Superman does have super powers, yes, but he has particular and specified superpowers. He can’t just suddenly produce claws out of his fists because Krypton, or have control over metal because “Superman”.  So “Magical Sparkle Power” is my little way of reminding myself and others that there are consequences to using the inherent jurisdiction to do wholly new and imaginative things that aren’t written down anywhere, because every time you do, it is stepping stone that others will stand on to go a little bit further.  Some of these stepping stones are now just floating in thin air.