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“Fell far short of the promise foreshadowed in her CV” (radicalisation, Tower Hamlets)

This is the Hayden J judgment in the Tower Hamlets case involving the girl who had tried to go to Syria having been exposed to extremist videos and propaganda of the most alarming kind.

 

I wrote about the early stages of it here,   https://suesspiciousminds.com/2015/08/27/radicalisation-of-children-and-isis-jihadi-brides/    when Hayden J learned that the parents (who had been saying that they were shocked and appalled by what was happening to their daughter) seemed by the analysis by security services of what was being accessed in the home to be more implicated than one might imagine.

 

Part 2 is here : –  London Borough Tower Hamlets and B 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1707.html

 

It makes for extraordinary and shocking reading – and you will learn a LOT about radicalisation cases and how ISIS goes about manipulating and recruiting young people by reading this judgment. I could not recommend it more highly for any professional working within the field, any lawyer who thinks that radicalisation is a feature in one of their cases, or a concerned parent.

 

 

This is some of the material removed from the family home (bear in mind that by this stage, the girl had already made the attempt to go to Syria to become a jihadi bride)

 

 

  • The following material was removed from the household:

 

Document Title Device
“A Muhajid’s Guide to the West” this document contravenes section 58 TACT 2000
Chapter 1 “Hiding the extremist identity”

B’s SD card
“Miracles in Syria”
B’s SD card
“Hijrah to the Islamic State” B’s SD card
H’s Apple Mac Laptop
L’s hard-drive
“The Dust Will Never Settle Down” an audio lecture by Anwar Al-Awlaki est. 2008 B’s Sony Vaio Laptop
H’s Apple Mac Laptop
J’s Samsung Laptop
L’s hard-drive
“The Book of Jihad” an audio lecture by Anwar Al-Awlaki 2003 H’s Apple Mac Laptop
J’s Samsung laptop
L’s hard-drive
“44 ways to support jihad” by Anwar Al-Alwaki
B’s Sony Vaio Laptop
DABIQ and ISN publications H’s USB storage device
L’s hard-drive
Videos Exhibit IDK/36 ‘For the Sake of Allah – Fisabilillah’

Exhibit MAE/5 ‘Upon the Prophetic Methodology – AlFurqaan Media’

Video DSCN2418.AVI – Home video that shows an ALM march

 

  • Some of the material on these videos, all agree, depicts behaviour of appalling human depravity. It includes mass killings, sadistic torture (which I have been advised has symbolic significance and is not merely gratuitous), random killings by youths in a car by using AK47 machine guns, scenes of mass graves and bloodied lakes and killings videoed in such a manner as to create the impression that the viewer is the killer looking through the cross hairs of a telescopic sight attached to a rifle. The written material includes sinister polemics designed to rally ‘good Muslims’ to the cause of jihad. Some of these documents deliver sophisticated messages to the reader, advising them how best to create the impression of social compliance whilst participating in an anarchic agenda. I have personally read much of that material in order to try to equip myself to evaluate the evidence in an informed way, and to alert myself to any potential subterfuge. I cannot imagine how it is that the officers of the CTU manage to view the material I have described whilst remaining inured to it. I feel constrained to observe that which is obvious from the above, that the public owes them a debt of gratitude.

 

 

The girl’s own description of just one video.  (skip this if you are squeamish. In fact, just skip it. You don’t need to read it. You have my permission not to)

 

“I saw a video of men chained together one by one after what was said to have been a battle, who were said to be the prisoners they had taken. They took them to something like a dock/or a sea wall straight onto the sea. They unchained them one by one and shot them in the back of the head so they fell into the water. They sought to portray this like the story of Commander Khalid Bin Waleed who was fighting against the Jews and he made a promise that the river would run red with blood if he won. The water in this video by the end of it was red; they had killed so many people. I’m not sure they were even soldiers at all now, they may well just have been people, ordinary civilians, who didn’t agree with IS coming in and taking over. “

“I saw a lot of videos and scenes of violence. When I first started seeing them I was shocked at the violence. I didn’t like to watch it. I was also accessing a lot of video and other on line material that I now realise was just propaganda. “

 

 

 

First of all, the Court is scathing of the independent social worker who came with high recommendations to this field.  (I don’t want to wish any professional ill, so let’s say that she was perhaps out of her depth on this sort of case)

33.It was pressed upon me by all the advocates for the family, that Ms Rukhsana Thakrar should be appointed as an independent social worker. I was assured that she was well regarded and as a professional Muslim woman not associated with the Local Authority, or the Guardian for that matter, she seemed to me to be well placed to undertake what I identified in my earlier judgment as the need for an ‘intense, thorough and comprehensive assessment’. I must also admit to my aspiration that Ms Thakrar would provide an example to B of the opportunities open to independent Muslim women in the UK. Ms Thakrar has an LLB (Hons), a MA in social work, a CQSW and is an accredited social work practice teacher. She has also worked in the capacity of Guardian ad Litem, CAFCASS officer and asserts in her CV that she ‘specialises’ in ‘working with Muslim families’.

 

 

34.I very much regret to say that Ms Thakrar fell far short of the promise foreshadowed by her CV. In her very lengthy report, which is essentially simple reportage of what the family has said to her, Ms Thakrar missed the opportunity to confront them with my earlier findings and to challenge their various belief structures. Though I am satisfied that her instructions were clear and supplemented by a further set of instructions specifically directing her to the court’s concerns, she appeared to have very little understanding of the nature of the task she was engaged in. Her view of the family was expressed with fulsome positivity, though I have found it impossible to identify any analysis in her report upon which her optimism could be founded. More than that, within a report spanning over 130 pages I have struggled to identify any analysis of any issue in the case. Rather unusually despite the glowing conclusions she advanced, I had no sense that the family had forged any kind of constructive relationship with her either.

 

39.I am constrained to say that Ms Thakrar has fallen, by some distance, below the standard that this court is entitled to expect from an expert witness. In so doing she has failed the children (primarily), the parents and the other professionals in this case who have worked extremely hard to manage a very challenging situation. I have noted that Pauffley J made criticisms of equal magnitude and of similar complexion in Re A, B C & D [2009] EWHC 2136 (Fam) and Re S (A child) (Care Order) [2014] EWHC 529 (Fam).

 

 

(That case can be found here http://www.bailii.org/ew/cases/EWHC/Fam/2014/529.html    – some key extracts   It seemed to me that Ms Farooqi – Thakrar’s evidence was far from even handed and less than helpful.     

  • This aspect of Ms Farooqi – Thakrar’s recommendation seems to me to be extremely poorly thought through. There was a sense, as she gave her evidence, of her almost making it up as she went along

 

  • It was a further defect in the evidence of Ms Farooqi – Thakrar that she had failed to consider S’s considerable behavioural difficulties. When asked about that aspect, she simply said, `Well, all of this will just disappear when S has been reunited with her mother and I’ve seen it happen in other cases.’ I am surprised, even amazed, that Ms Farooqi – Thakrar was prepared to make forecasts about what would happen in this case relying exclusively upon her experiences in other cases. I do not share her optimism. Moreover I consider such an experiment would be thoroughly risky and altogether ill-advised at this juncture.

 

 

If you are unwrapping a brief tonight and underneath the pink tape is a part 25 application to instruct this ISW tomorrow, I’m sorry that I’ve just ruined your evening )

 

 

 

The Judge was, however, very complimentary about the social work evidence in the case

 

45.Ms Thelma Ukueku is the key social worker in the case, employed by Tower Hamlets. When the deficiencies in Ms Thakrar’s report came to light Ms Ukueku agreed, in the time remaining, to plan and undertake an assessment addressing the risk matrix referred to above. This report was undertaken with a Mr Brian Sharpe and a Ms Juliette Thompson. I heard from Ms Ukueku and Mr Sharpe in evidence. It is an unfortunate fact that Judges have, from time to time, to be critical, sometimes highly critical of social workers. Too often good social work goes without comment or commendation. This case provides some opportunity to remedy that. This family is extremely fortunate that Ms Ukueku was allocated to this case. She has shown unstinting commitment to them, she has been tireless in her determination to help them, she has unhesitatingly sacrificed her own personal time and displayed an impressive mix of intellectual rigour and compassion. Perhaps most importantly, whilst trying to work effectively with the family, she has not shied away from confronting them robustly and directly where she perceives there to be error or inappropriate behaviour. She has, in my view, ‘worked’ the case, in the sense that she has not merely recorded the attitudes or behaviours of the adults, rather she has actively intervened to try to change them where, in her assessment, they are contrary to the interests of the child.

 

 

46.I have mentioned above that I elected not to see the video material in this case. It is rarely necessary for the Judge or the lawyers to do so. It is probably desirable that we should not. The danger that we become inured to it is greater than might initially be thought. Some of the material here is, plainly profoundly shocking. Ms Ukueku took the view that if she were truly to understand what harm B had been subjected to she ought to look at some of the material herself. She told me that on reflection she wished she had not done so. It had caused her real, not merely superficial, distress. She told me how some of the images are lodged in her mind and have from time to time intruded unexpectedly into her thoughts. She twice needed to pause to maintain her composure, as she outlined this to the Court. She told me, at this point, slightly tearfully, that she had been terribly shocked and deeply upset that B had been regularly exposed to such images. It was a powerful and memorable moment in the hearing. I noted that it had some impact on B which seemed to me to be chiefly one of real surprise. I think this was both as to the effect the images had on Ms Ukueku as well as some realisation of the great effort made on her behalf.

 

Powerful stuff. You’ll note from the earlier portion that the Judge himself did not view the material – and I think that he was right not to. There were clear descriptions available from those brave souls in the police and counter-terrorism who did have to watch them. I myself would not feel the need to watch the videos, and if my social workers asked me whether they should, I would tell them not to. If they felt extremely strongly about it I would have asked the Court for an indication that they need not watch them and would not be criticised for failing to do it.  I say this not to make any criticism of anyone involved in this case – but to avoid the risk that because this social worker did so (and now regretting it) puts a benchmark up that others should be expected to do so. If there’s a description of the content of such material and that description is not disputed, I am with Hayden J that it is not necessary for professionals to see it and that it is desirable that we should not.

 

It became apparent during the hearing that the father, who had seen terrible attrocities in Gaza that had profoundly affected him, had shown his children images that they should not have seen.

 

  • It occurs to me that the reason that the father may be so eloquent in articulating the emotional harm caused by such images is that he sustained a similar kind of harm himself as a child. He told Ms Thakrar that as a Berber male from the Algerian community he held some negativity towards the French in their use of tanks in Algeria in the 1950’s. He explained that his family had shown him photographs of this period which he considered revealed French tactics to be ‘unjust and upsetting’ and which plainly had stayed in his memory. In evidence, he drew a comparison with these grainy, black and white photographs of a conflict which pre-dated his birth and the videos seen by B. The moving, ‘living’ pictures in colour and so much more clearly defined were, the father said, much more searing.
  • During the course of the Mother’s evidence the Local Authority applied for permission to produce material from social media. The application, which I granted, was made before the Father went into the witness box. The material included photographs of charred bodies and the cracked skull of a dead infant. These were produced into evidence, I think, during the course of the cross examination of the Father. In any event I did not look at them until the Father was asked to comment on them. I was not expecting to see the kind of images they contained, indeed it took me a moment or two, from the rather poor quality photocopies, to realise what I was looking at. I found them disturbing.
  • The Father told me that he was motivated by the photographs to participate in humanitarian work. I accept that he was. Nonetheless, I had the strong impression, as he responded to questions, that he too had, albeit in a different way to his daughter, become numbed to images of death. Such photographs may well have triggered moral outrage in him, an entirely different dynamic to B’s objectives in looking at the material I have considered above, but for all that I sensed that something of his own ‘pity’ and ‘mercy’, to use his expressions, had been compromised. I do not think that he contemplated that the image of the child might not merely shock people, but that it might provoke a simple human distress reaction for the child which eclipsed the underlying humanitarian objective that he intended. I consider that this resonates with something that he is reported as having told Ms Thakrar:

 

“He stated that when he was in Gaza he had watched what was going on in Gaza. This appears to have been a turning point for [the father]. He stated that he watched Aljazeera Arabic as he felt that Aljazeera gave an accurate picture of what was going on in the world. He also brought back videos and pictures of Muslims being killed and burnt alive. He stated that Palestines (sic) were being killed by Israelis. He found this very haunting and upsetting. He explained to me that his children saw these pictures and they were all upset and crying. It was very clear from his body language and how he spoke that these atrocities had left a deep and lasting impression on him. It also appears from his descriptions that all the children had been deeply moved and upset. Certainly they would have left a deep impression on [B].”

 

  • Once again the father challenges the accuracy of the ISW report, he denies that he told Ms Thakrar that he showed photographs or videos to his children, claiming that she has misreported him. I reject that. There is much in that passage which is plainly accurate. The father was fulsome in evidence about the atrocities in Gaza, as he sees them. He plainly, in my assessment, was affected by what he had seen. He confirmed that he watched Al Jazeera on the basis that he felt that was a reliable chronicler of world events and certainly accepted that he had brought back pictures. All of this is essentially accurately recorded. It is also very much of a piece with his evidence more generally. I may have been critical of Ms Thakrar’s lack of focus and forensic rigour but, as I have already said, I have no reason at all to doubt her integrity. Neither have I found evidence of regular misreporting, in what I remind myself were 84 hours of interviews.
  • I am satisfied that the father did indeed show these children videos or pictures of Muslims being killed and burnt alive. I consider that in the heat of his own outrage he was motivated to do so by what I have loosely referred to as humanitarian instincts. Having been shown disturbing photographs of death himself as a child I do not think that he has ever extrapolated from that, that it is entirely inappropriate to present children with such images. He does not appear to have absorbed that childhood innocence needs to be protected and that he as a father has that responsibility. His failure to rise to those obligations is, in my assessment of the evidence, critical to what has happened to B. I also consider that like B, he too has become desensitised, on a basic human level, to images of child and adult suffering. His response is ideological rather than visceral.

 

 

 

Hayden J also makes some important points about the standard of proof in these cases  (I think most readers know my views about the cases of radicalisation decided by other Judges, where admittedly the analysis and evidence done by the security services came nowhere near the amount of detail that Hayden J had available to him)

 

52.Cases involving allegations of radicalisation do not require any greater standard of proof than any other allegation in Family Law proceedings. Any impression to the contrary requires to be dispelled

 

 

 

56.In Re X (Children) (No 3) [2015] EWHC 3651 (Fam) the President said §110 ‘There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion.’

 

 

57.I am confident that the President was there intending to emphasise the importance of evidential discipline and forensic rigour. He was not, for a moment, suggesting that in the application of the civil standard of proof the Court is in anyway prohibited from drawing reasonable inferences from ascertainable facts. There is plainly an important distinction between suspicion and inference, the two should not be conflated.

 

 

It is pleasing to hear that this girl is drawing back from the extremist position that she was once being seduced by and was showing some insight and reflection into what was wrong with the material that she was seeing  (that has to be hedged by the knowledge that material was being accessed in that house that taught how to lie, conceal, suppress your views and pacify those investigating them, but let us be optimists rather than gloomy pessimists)

 

The Judge had the unenviable task of deciding where B should live. He looked hard at all of the issues (this blog doesn’t have space to go into all of it, but if you are having a reaction to his conclusion I would suggest that you take the time to read the judgment itself) and how B had fared in care over the last nine months.

 

 

  • Unsurprisingly, B wants to go home, she is rather desperate to do so. She is sad and lonely and misses her siblings, particularly her younger brother. She is being phlegmatic about life with Mr and Mrs J but I think she senses a loneliness for her there too. So do I. Mr & Mrs J have their own interests and commitments, these are understandably not structured around a teenage girl and will require much renegotiation in their lives. I was told that their commitments do not enable them to allocate a great deal of time to helping B make the transition to their home over the summer months, were that to be the plan.
  • Many teenagers of this age, who find themselves in the care system, simply take matters into their own hands or to use the term frequently heard in these Courts ‘they vote with their feet’. For the duration of the Care Order i.e. until she is 18 (in just over 12 month’s time) I think it unlikely that B would do so. To some extent, her experience of the Court system has been salutary. After that I do not know. She will be beyond my remit and able to exercise her own adult autonomy. Should she return to her parents home at that point and there may be pressure for her to do so, she will once again interrupt her education and potentially damage her academic prospects. Though it may not seem the obvious solution, in the light of my findings above, I have come to the conclusion that the plan most likely to meet B’s needs is to return her home. I identify the following reasons:

 

i) The circumstances of B’s radicalisation involved a combination of factors and influences unique to her situation;

ii) B’s brothers and sisters do not share her beliefs and are likely to be resistant to them;

iii) B is most likely to rediscover her own intellectual autonomy in a home environment where she is happy and loved;

iv) I think it likely that the siblings will challenge B’s extremist beliefs, even without intending to do so;

v) B will enrol in a local college if she returns home;

vi) I think it likely that B will respond enthusiastically to a wider social group at college, holding inevitably different opinions and beliefs. Her lively intellect is likely to be stimulated by the exchange of ideas. It is worth emphasising that B has never attended school before;

vii) Whilst I consider that B’s admissions in this court are driven by her pragmatic evaluation of the evidence against her, as she herself volunteered, there is nonetheless an underlying sincerity to her own description of the numbing effect that these awful videos have had on her. This has the potential to be a breakthrough in combating what she has described as her ‘addiction’ to violent and death related images;

viii) In the last 9 months the Local Authority’s Care Plan has been able to provide a sustained period in which B has not seen the kind of images that have caused her such harm. This occurred at a crucial stage in her development and has enabled her to gain the tentative insights I have referred to above. (As I know B will read this judgment carefully, I wish her to appreciate a simple and unvarnished truth: those who do not empathise with human pain and suffering will never make effective doctors, it is intrinsic to the core motivation of the profession);

ix) The family has a proactive social worker who has demonstrated that she will not be naïve and will not be deflected by controlling or manipulative behaviour. The plans for all the children should enable them to get space from their mother. In particular, the mother should not attend the children’s Prevent sessions and neither should she collect the children from school;

x) Having recognised the impact of death related images on his daughter, I have some confidence that the father will restrain from sharing such images with her in the future. This he might like formally to undertake to the Court, knowing that he might be sent to prison should he breach his own undertaking;

xi) I also consider that this family can be more easily monitored when together rather than separated. I have no doubt that the police and the social services will be vigilant concerning the use of computers in this household;

She was therefore placed at home under a Care Order. All we can do now is wish her and her family well and hope that their lives take a different course than might have developed by exposure to such dreadful, graphic imagery which would give the most robust adult terrible nightmares.

At the very end of the judgment, the Judge records the general advice given by Professor Silke and Dr Brown in radicalisation cases, and that’s really something to be circulated to absolutely any professional working in this area – it contains invaluable information and guidance, in a very clear and easy to follow style and language.

Like I care – anonymous defamation on the internet

I don’t write about Queen Bench Division cases very often (not least because I usually can’t understand a single word of them), but this one seemed pertinent.

It relates to a McKenzie Friend operating in the family Court sphere,  who is also a blogger. And a satirical website that took a disliking to him.  It also relates to whether anonymity is a thick shield or a flimsy one in a defamation case.

Smith v Unknown Defendant Pseudonym ‘Likeicare’ and Others 2016

http://www.bailii.org/ew/cases/EWHC/QB/2016/1775.html

 

  • There is before the Court today an application for default and summary judgment against the Second Defendant. The Claimant is a former borough councillor in Welwyn, Hatfield. He is active as a McKenzie friend. The Defendants are, so the Claimant asserts, users and operators of the website EncyclopediaDramatica.se (ED). ED is a satirical website which uses the Wiki software. The site is, to put it mildly, controversial and it takes steps to anonymise itself. This enables the site administrators to hide the country in which the site operates from and the real IP address of the servers. Editors and staff use pseudonyms.
  • In his particulars of claim the Claimant states that whilst the website is satirical much of what ED publishes is accurate and this accounts for its widespread popularity. The site exposes genuine wrongdoing and other material of interest. Mr Smith, who appeared as a litigant-in-person before the Court upon this application, describes the site as “...a more vulgar online Private Eye magazine“.
  • For some time, the site has published articles about the Claimant calling him a “zealot” in child protection matters. The Claimant operates a blog which, from time to time, deals with child protection matters. The position of the Claimant is that the original publications about him were satirical but not objectionable.

 

 

That’s part of the deal with satire – if you’re in the public domain, you might have to develop a thick skin about what is said about you.

However, things went quite a bit further than that

 

 

  • However, between 10th May 2016 and 12th May 2016 users of the site known as “KiwiDynastia” and “LikeICare” (an administrator) amended various articles to state that the Claimant was a paedophile and a child rapist. The website is accessible in the United Kingdom and has been viewed here. The Claimant has set out in particulars the specimen words complained of and what he alleges is the defamatory meanings to be imputed to them. These are, upon any view, vile allegations. The version of the material which was published on the website was copied and is in evidence before the Court. In this material the Claimant is accused of being a “KNOWN CHILD MOLESTOR”. It is said that “…his salivating lust for young ass is apparent”. It is said that he loves being able to have violent sex with his mother (the actual text uses more evocative language) which she forgets 5 minutes later. The heading to the article is “Samuel Collingwood Smith is a paedophile and child rapist”. The material has graphic mock-ups of the Claimant engaging in sexual activity. In his particulars of claim the Claimant denies the imputations which flow from these words. The Claimant denies having any criminal convictions, cautions or warnings which are remotely relevant to the words used.
  • The Claimant discovered these articles on 13th May 2016 and he, as he puts it, complained politely. The normal way to effect a complaint on a Wiki is to write on the talk pages of officials. The Claimant posted his complaint to several of the highest of the officials on the site, known as Bureaucrats. He received a prompt reply from an administrator “LikeICare” delivered on his own talk page which stated: “Fuck off LOL”. Another administrator “DarkLordTR” amplified stating that if the Claimant continued his course of action he would be banned and they would see to it that their article came higher up in the Google page rankings.
  • The Claimant responded by the service of a notice pursuant to section 5 of the Defamation Act 2013 and also a letter before claim which he posted, once again, to the talk pages of the Bureaucrats and to his own talk page. He received a response again delivered by the administrator “LikeICare”. The response was in the following terms:

 

“**** Official response from myself, and on behalf of KiwiDynastia and entirely of ED staff **** LOL Don’t care faggot, go for it”.

 

  • Subsequently, the Claimant was unable to respond to the site which displayed what the Claimant describes as “...a montage of revolting, gory and sexual images” which is, he understands, the response communicated to banned persons.

 

I think that most people would consider that satire and accusing someone of being a child rapist are not quite the same thing.

Mr Smith sued for defamation – obviously it was problematic that the website were not willing to communicate with him and were anonymous.

The Court set out the position with defendants who were anonymous

 

B. The availability of relief against unknown persons

 

  • The ability of the Court to provide protective injunctive relief against persons unknown has been acknowledged for a considerable period of time: see for example Bloomsbury Publishing Group Plc v News Group Newspapers Limited [2003] 1 WLR 1633. It is necessary, however, for the person unknown to be capable of identification by description in such a way as to identify with sufficient certainty those who are included within the order and those who are not. In Brett Wilson LLP v Persons Unknown, Responsible for Operation and Publication of the website http://www.solicitorsfromhelluk.com [2015] EWHC 2628 (QB) (“Brett Wilson“) Mr Justice Warby stated that it was sufficient to describe a defendant as “Persons Unknown Responsible for the Operation and Publication of the website […]” (cf ibid paragraph [8]). In that case, Mr Justice Warby pointed out that the Court had jurisdiction not only to grant interim relief but to grant final injunctive relief against persons unknown, including upon a summary judgment basis pursuant to CPR 24.2 (ibid paragraph [10]). The relevant procedural safeguards must, of course, be respected and this includes ensuring that the unknown defendants have been duly served with the proceedings and with any application for interim or final relief. In the present case, there can be no possible query or doubt as to the fact that service was effected since the administrators of the site not only responded to the pre-action documents but also published the same on the internet site itself. In my judgment, it is clear that the proceedings in the present case were duly served and brought to the attention of the relevant defendants. None of the Defendants have sought to file an acknowledgement of service or a defence by the deadline for so doing. Indeed, the Defendants have not formally responded in any way, shape or form to the threat of litigation. Their heads are well below the parapet.

 

So the fact that the architects of a website conceal their names and identities is not necessarily a protection against civil litigation

 

 

  • Pursuant to section 1(1) of the Defamation Act 2013 a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant. In the case of harm to the reputation of a body that trades for profit harm is not “serious” unless it causes or is likely to cause that body serious financial loss. The Claimant in the present case is someone who claims to trade for profit. He advances his case upon the basis that the website, which is widely read and enjoyed for its satirical comment, commands respect and attention. Accordingly, the fact that manifestly untrue and malicious content is directed at the Claimant is likely to cause him serious reputational harm and also make him less likely to receive fee-paying work. That harm will be exacerbated by the fact that the Claimant’s photograph is plastered all over the website. Indeed, false photographs of the Claimant, naked, engaging in sexual activity with multiple other males simultaneously were also included. There can be no doubt but that the Claimant’s reputation will have been substantially and deleteriously harmed by the publication of this material and that this was precisely the intention.
  • In my view, there is sufficient for me to make an order for judgment for damages. The Claimant’s application seeks summary disposal pursuant to sections 8 and 9 of the Defamation Act 1996. Section 8 empowers a Court to grant judgment to the Claimant in a defamation case and grant “summary relief” where it appears that there is no defence to a claim which has a realistic prospect of success and no other reason why the claim should be tried. Pursuant to section 9(1)(c) damages not exceeding £10,000 may be ordered by way of summary relief. In Brett Wilson Warby J observed that this was a relatively little-used procedure not least because summary judgment pursuant to CPR 24 was available in defamation cases and the damages recoverable pursuant to section 9 remained capped at £10,000. In that case Warby J observed that the procedure could be invoked in order to bring a swift end to a matter to avoid an assessment procedure which might be disproportionately expensive. He observed that the procedure had been used in similar circumstances in other cases, for example in Robins v Kordowski [2011] EWHC 1912 (QB). In Robins, Tugendhat J held that the jurisdiction to grant summary disposal was available after a Court had entered default judgment for damages to be assessed and on a summary basis he awarded the sum of £10,000. In Brett Wilson, Warby J also considered that a summary assessment at the maximum level was appropriate. The Judge in that case did not consider it necessary to undertake precise quantification of the loss. He was satisfied with general evidence that the firm in question would suffer financial loss but as he observed “quite apart from this, the award needs to serve the purpose of vindication“.
  • In my judgment, given the popularity of the website and the vile and offensive publications thereon, and the need for vindication, it is appropriate to make an order in the sum of £10,000. I will, however, in order to enable the Defendant to have a chance to put his side of the case on quantum, include as part of the order a liberty on the part of the Defendant to apply to vary the quantification if he considers that it is excessive or otherwise unjustified. The Defendant will have 14 days in which to lodge an application with the High Court for variation of that part of the order. If no such application is made within 14 days, then the sum of £10,000 will remain definitive. In this way, in my judgment, the interests of the Defendant are adequately protected. Any such application must however adhere to the normal procedural rules. It cannot be anonymous. The true name and address of the Defendant must be provided.
  • I am also satisfied that the pleaded allegations establish a case for the grant of injunctive relief against the Defendants. The Defendant has deliberately declined to participate in any process whereby the offending material was removed from the website. There is reason to believe that the Defendant would, unless enjoined, persist in the offensive campaign against the Claimant. In coming to this conclusion I have regard, as I have already observed, to section 12 of the Human Rights Act. The injunctions are prohibitory and mandatory. I have considered whether it is appropriate to grant relief in both forms. On the facts of this case I am satisfied that it is.

 

 

 

Banged up

I thought I’d write a little about the setting for In Secure, my book that you can pledge for here

https://unbound.com/books/in-secure

(Hope you enjoy – if you do, please visit and support, and share this with others. We are nearly half-way to the Pledge target – and this is week 3 of 13, so huge thanks to all of those who have helped)

 

My book is set in a Secure Accommodation Centre, called Saffron Park, which is located on Dartmoor. Secure Centres are a special sort of children’s home where children can be locked up – they aren’t the same as a juvenile prison or Borstal, in that a lot of the children there won’t have committed any crime – they are there because they run away from home generally. Sometimes their own home, sometimes foster homes or other children’s homes. And because when they run away they put themselves in danger, they hurt themselves or other people hurt them, or sometimes they hurt other people.

These places really exist, and there are children much like the ten children that I write about in them.

I was interested in writing a book where, well, if you imagine the Harry Potter series but now imagine that Draco Malfoy would be considered the goody-two-shoes of the book. A lot of fiction for young people, the characters are heroic – sometimes with flaws, but nonetheless straight heroes. You know Katniss is going to stand up for the weak, you know Harry is going to fight evil, you know Cyril and Robert and Anthea are going to try to pay for the ginger beer they drank when they were stuck in the Church after their wings wore off.

I thought it would be more interesting to read about characters where you weren’t sure, perhaps could never be sure which way they might react in a given circumstance – because their circumstances mean that they aren’t heroic or noble. They might be capable of those things, but they each might be capable of out-Voldermorting Voldemort, if the opportunity arose.  Especially if wicked author that I am, I put tools and power and temptation in front of them.   (There were quite a few times when writing it that I wasn’t sure what particular characters might do, and when they did it, they’d faked me out too)

So, a set of children all with problems and worries and flaws and secrets – big secrets, all locked up together seemed like a good starting point.

And then I was thinking about two memories I had.

The first was being seven years old. My bathroom had a lock on it. A chubby silver lozenge of a lock that you would turn to the right and it would lock the door. Turn it back to the left, and it would unlock. Easy peasy, lemon squeezy.

I was always told not to lock the door – the lock was for grown-ups and I wasn’t to use it. I don’t really remember what was in my mind when I did lock it. I remember how scared I was when I tried to unlock it and the lozenge was too stiff and heavy to move back. I remember panic that went up through my feet, made my chest pound like something inside was knocking to get out and gave me the taste in my mouth I’d only ever got from accidentally eating a bit of Kit-Kat that had a shard of tinfoil still stuck to it.  (Michael Stipe was right – aluminium really does taste like fear).

I waited and waited. I tried the lock again. And again. I wrapped a towel round my hands, hoping that I’d get more leverage and the dampness of my hands would be counteracted. It didn’t work. I took off my shoes – trainers that were yellow and black and had pictures of jungle cats around the outside just above the sole (cheetah, lynx, puma, leopard), and hit the lock with those. What I didn’t do was shout for help, or bang on the door.

Because as scared as I was of being locked in that room, of never getting out, of being in there, I was just as scared as having to tell my parents that I’d turned the lock. Broken the rule, and not only that, been too weak to get away with it.

Eventually, it emerged that I was trapped in there. I think someone came to try to use the bathroom, found it locked and asked a series of questions that didn’t take away that tinfoil taste on my tongue one bit. None of the suggestions for how to get out worked.

And then my dad got his window-cleaning ladders and climbed up to the bathroom window, which I had to open. I was too scared to climb down the ladder so he had to climb in and open the lock.

I left that house 12 years later, and I still never wanted to look directly at the lock the whole time.

THEN the second memory. I was about 26, and starting out as a care lawyer. One of the things I had to do from time to time was advise on Secures – should such and such a child be locked up for their own good, were the tests met, was it the right thing to do. And my boss decided it would be a good thing for us all to visit a Secure home, to see what it was like. I really didn’t want to go. I knew I wouldn’t like it. Like I know without having to do it that I wouldn’t enjoy sword-swallowing.

I had to go. We got there, and a member of staff took us to the first door. She opened it up with two keys, and we went into a little vestibule. Ten of us in there, a rectangular room with that door at one end, and another door at the other. Nothing else there.  The member of staff locked the first door with those two keys and moved past us to the other door.

And I thought, “I can’t get out of here. I can only get out if that person wants me to get out.”

Obviously I crushed that down with “She’s going to open the door now, you’re not really locked in, she’s opening it right now with two different keys”

But really I was just that seven year old stuck in the bathroom again.

There are all sorts of fears to write about or think about – you can scare people with snakes, or falling, or men with hooks for hands hiding in the back seat of your car – my friend Matt is so afraid of sharks he can’t take a shower without putting the plug in (yes, because sharks can obviously come up through the plug hole, that’s exactly how sharks work). But I knew that I understood the fear of being locked in, and I think most other people can react to it too.

So, that’s why the book is set in something like a prison.

 

 

lock

The Hungarian Games

 

A peculiar case where the parents were agreeing to adopt their child and the fight was about whether that would be in the UK or Hungary.

Hence the title. And not by any stretch of the imagination, a cheap opportunity for a Jennifer Lawrence photo.  Goodness looking through those photos to find a decent one was a terrible hardship.

 

 

I mean, seriously, I had to research the heck out of J Law for this piece

I mean, seriously, I had to research the heck out of J Law for this piece

 

Re AO (Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/36.html

 

And yes, this Judge was setting me up for an A-O Let’s Go, Ramones * title, and I spurned it. I feel bad and all, but c’mon. J Law!

(*yes I lost my mind in first draft and put the Buzzocks)

In this case then, the parents were both Hungarian, but had been living in England for some time. They had a baby and didn’t feel able to care for the baby, so they contacted the Local Authority to say that they wanted to relinquish the baby for adoption. They understood what was involved and freely agreed to it.  The LA felt that the baby should really grow up in Hungary, to be in touch with the parents culture.  The parents were adamantly against this. That argument meant that the only way the baby could be adopted in Hungary would be if the LA obtained a Placement Order. And in order to do that, they would need to prove that the section 31 Children Act threshold criteria were met – that the child was suffering significant harm, or likely to do so.

Tricky to do.

Let us see how the LA argued that threshold was met.

 

 

  • In this case, the local authority’s case was that, by failing to care for AO themselves and by relinquishing her to be looked after by the local authority, the parents had caused her to suffer significant emotional harm and to be likely to suffer further such harm, that harm being attributable to the care given to her not being what it would be reasonable to expect a parent to provide. The local authority further contended that the fact that the parents said that they were content for AO to be placed for adoption in England did not reduce the harm in question because the harm and likelihood of harm arose from AO

 

(a) having to be permanently removed from her mother at birth;

(b) having to be cared for by a foster carer, however caring and competent, rather than her own parents;

(c) having in due course to be moved to another carer, whether in England or in Hungary;

(d) being deprived of any relationship with her birth parents and possibly with their extended family;

(e) being deprived in her early weeks and months of experiences consistent with her Hungarian culture and heritage;

(f) being likely to become an adopted person rather than being brought up by her birth family, and having in due course to learn that her parents chose not to bring her up themselves.

 

  • In oral submissions, Mr Stuart Fuller on behalf of the local authority conceded that not every case where a child is given up for adoption would satisfy the threshold criteria. He submitted that in this case, however, the parents’ actions in not only giving AO up but also insisting that she should not be placed in Hungary either with her birth family or with adoptive parents was unreasonable and was causing, or likely to cause, harm to AO in depriving her of the opportunity to live with her birth family and/or in her birth culture.

This position was supported by the children’s guardian. He submitted that neither parent had in fact provided AO with any care at all. He concluded that it was in her best interests to live in Hungary. The parents’ withholding of information concerning the family would prevent her having a complete understanding of her background and history and would impinge on her emotional welfare

 

I think this is skilfully put together, but it is nowhere near establishing threshold.

Unusually, the parents here shared the same silk, Frank Feehan QC, but each had their own junior counsel. I haven’t ever come across that before. But if you think that Frank Feehan QC (of Re B fame) was going to swallow that threshold, you haven’t been paying attention.

 

 

  • On behalf of the parents, Mr Frank Feehan QC, leading Ms Grainne Mellon for the mother and Ms Katherine Dunseath for the father, submitted that the threshold criteria were not satisfied in this case. They reminded me of the definition of “harm” in section 31 (9), and also reminded me of the provisions of section 31(10):

 

“where the question of whether harm suffered by a child is significant turns on the chart’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child”.

Mr Feehan and the juniors representing the parents further cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 70:

“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

 

  • The core submission made on behalf of the parents was that the factual assertions made by the local authority and accepted by the mother did not amount to a finding of significant harm. It was submitted that to find that, as a relinquished child born in this country and now highly adoptable, AO would suffer significant harm as a result of growing up English rather than Hungarian would be a distortion of the statutory criteria. These parents took a decision as to the future of their child which many do not take: that they are simply not ready and not able to care for her and others should do so. They were in early contact with the authorities and fully cooperated with arrangements to ensure more than adequate care. In addition, it was submitted that, contrary to the suggestion that no information had been given by the parents as to AO’s background, the parents had in fact given brief but full details of their own families and background and upbringing.

 

 

 

The Judge, Mr Justice Baker, was also mindful of public policy issues – if you make it too difficult and too onerous and too intrusive for a parent who wants to give their child up for adoption to do so, well then you’ll return to the days of children being left in wicker baskets on the doorsteps of hospitals and police stations. There has to be a balance

 

 

  • In my earlier judgement, I considered earlier reported cases in which a child had been given up by parents for adoption. In particular, I cited the observations of Holman J in Z County Council v R [2001] 1 FLR 365 :

 

“Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”

I observed (at para 47 of Re JL, Re AO)):

“It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best opportunity to grow up in a loving home.”

 

  • As I pointed out in the earlier judgment, very few babies nowadays are given up for adoption at birth. In the first half of the 20th century, when illegitimacy still carried great social stigma, the numbers of babies adopted at birth were very much greater. As the stigma has evaporated, so the numbers of deduction so the numbers of babies relinquished for adoption have dwindled. New techniques for reproduction have provided different ways of meeting the requirements of couples who are unable to have children themselves. But there remain a few isolated cases where a mother concludes that she is unable to look after her child. It may be because her past history demonstrates that she is incapable of caring for a child. Or it may be that she feels that she cannot keep the baby for other reasons. A civilised society must accommodate such feelings and decisions, as societies always have. These feelings and decisions come within the range of diverse parenting to which Hedley J was referring in Re L. If society does not tolerate and facilitate such decisions, mothers who feel that they cannot keep them babies will be driven to take other measures.
  • It follows, therefore, that the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.
  • The local authority argued that, in this case, the relinquishment has been accompanied by an insistence on the baby being placed in England, and a reluctance to co-operate with attempts to contact the Hungarian extended family or place the child in that country. As a result, A had suffered harm through being deprived of links with her extended family and culture. I agree that on one view this could be considered detrimental, but it is doubtful that it can be regarded as significant harm and, even if it can, I do not consider that the parents can be said to be acting unreasonably. It is not unreasonable for them to want the baby to be placed for adoption in this country. Such views also fall within the range of diverse parenting identified by Hedley J. Unless society tolerates and facilitates such decisions, mothers who want their children to be placed in this country will be driven to take other steps.
  • Accordingly, I concluded that the local authority has failed to prove the threshold criteria for making a care order under section 31 in this case.

 

 

 

As it was not possible to make a Placement Order without either parental consent or satisfying the threshold criteria, it wasn’t NECESSARY for the Judge to rule whether it might be better for the child to grow up in Hungary rather than England  – but Baker J made it plain that he would not have done so in any event

 

Welfare

 

  • In the light of my decision as to the threshold criteria, it was strictly speaking unnecessary to determine whether the local authority plan for placing AO in Hungary would be the best outcome for her welfare, having regard to the provisions of section 1 of the Children Act. As I indicated at the conclusion of the hearing, however, it is my view, having considered the arguments, that such a plan would not be in AO’s overall interests, and I here set out the brief reasons for so concluding.
  • The local authority’s consistent view throughout these proceedings was that it was in AO’s interests to be brought up in Hungary. She is a Hungarian citizen whose heritage is Hungarian. Other than the place of her birth and placement with her foster carer for the last six months, she has no connection with this country. She has no extended family here. In addition, the local authority submitted that, were she to be adopted here, she would in due course be told of her background and would learn that she has Hungarian parents and extended family. It was argued that, were she then to learn that she had been “turned into” an English child because that was what her Hungarian parents wanted, she would be likely to suffer identity confusion which in turn could lead to emotional harm and stress within her adoptive family. In addition, if she is brought up in England, by the time she learns of a Hungarian background it will be extremely difficult if not impossible for her to make any meaningful connection with her heritage.
  • In reply, the parents’ consistent view throughout these proceedings has been that it would be better for AO to be brought up in this country. In addition, she was by the date of the hearing nearly seven months old and settled with her English carer. If she was moved to Hungary, she would move to a country where she is unfamiliar with the surroundings and language. In addition, if placed in Hungary, she would be subjected to at least two further moves of family – an initial preliminary foster placement to be followed by a move to a permanent family. In contrast, if she remained in this country, she would stay with the current carers until such time as an adoptive placement has been found.
  • The children’s guardian supported the local authority’s plan for moving AO to Hungary. He attached particular importance to her cultural heritage which would not be sustained if she was placed with an English family. A further concern highlighted by the guardian was that Hungary would be unlikely to recognise the adoption in England of a Hungarian child. This could create difficulties were AO to visit Hungary. Her ability to get to know Hungarian culture and background would therefore be impeded. The guardian feared that this might impinge adversely on her ability to gain a true sense of her identity, which in turn could lead to a sense of injustice with adverse consequences for her self-esteem, development and behaviour.
  • Set against that, however, the guardian expressed concern that with every passing week AO was becoming more attached to her current placement. He also pointed out that, if she was to be adopted here, a transition plan would be formulated involving both carers offering reassurance to help her with the change of primary care. In contrast, if she were to be placed in Hungary, the transition timespan would inevitably be much shorter which might cause difficulties in adjustment. Although it had been agreed that her carer and social worker would take AO to Hungary and take part in the transition arrangements, that process would, as the guardian identified, inevitably take place over a shorter period of time than in England. While supporting the local authority’s plan, the guardian was concerned that the details of how a Hungarian adoption would be arranged remained unclear, in contrast to the clarity of the process by which an adoption would be arranged in this country.
  • I accept that, other things being equal, it would be in AO’s advantage to grow up in her own culture. However, other things are not equal. AO is settled with her English foster carer and a move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets AO’s needs. It is, of course, very important that AO should be brought up with an awareness of her cultural background, but in my judgment this can be addressed by carefully selecting adopters who are able and willing to accept that she has such needs which they as her permanent parents will have to meet. I acknowledge the potential difficulties if Hungary refuses to recognise an English adoption of a child that it regards as Hungarian, but in my judgment this factor, and the others identified by the local authority, do not outweigh the clear benefits of proceeding to place her for adoption in this country. Accordingly, had I been required to do so, I would not have accepted the local authority care plan as being the right option to meet AO’s needs.

 

 

 

A good decision, in my book. And it clarifies the position for other Local Authorities, and indeed parents.

 

Sometimes the law can be fair and kind, despite all the complex language and mystique.

Oh boy, did someone say “Mystique?”

 

Yes, these images are completely necessary to convey the legal niceties of the case

Yes, these images are completely necessary to convey the legal niceties of the case

Plugging away

plug

 

 

I believe that people who have pledged to my book have probably received an email from Unbound that contains a code voucher allowing them a free £10 to another book.

There’s lots of good stuff on Unbound, and that’s basically a FREE book, as well as making another author’s day.

So please visit and use your voucher, which is valid till the end of July.

May I suggest please

All the Perverse Angels by Sarah Marr   https://unbound.co.uk/books/all-the-perverse-angels

Which sounds deliciously gothic and has got lovely rich language that made me feel like I was taking a warm bath whilst opening thick perfumed envelopes with a letter opener. And her video is really gorgeous.

 

Or

 

Slow Motion by Jennifer Pierce https://unbound.co.uk/books/slow-motion  a story of friendships and secrets that intrigued me

 

Or  A Murder to Die For by Stevyn Colgan  https://unbound.co.uk/books/a-murder-to-die-for who is like a machine at this crowd-funded book thing, and whose books and talks about intelligent policing are inspiring and make you think about the world in different and better ways.

 

If you have pledged to me,  It is FREE to help one of these authors out, just look in your emails for ones sent by Unbound and the voucher code will be in there.  And if you haven’t, then a pledge to me gets you one of these books too if you use the voucher once it arrives. Billy bargain.

https://unbound.co.uk/books/in-secure

Settlement Conferences

Settlement Conferences are a new idea in English (and Welsh) family law, though they have been used in other jurisidictions, including Northern Ireland. The thinking is rather like the Financial Dispute Resolution in ancillary relief – you get all of the evidence together, the parties go in front of a Judge who will NOT be hearing any contested hearing and together as a group they try to see if there is a way of agreeing the case that everyone can live with. If they really can’t agree, everything discussed at that hearing is locked away and isn’t used by anyone at the final hearing which will be before an entirely different Judge and all they will know is that agreement wasn’t reached (they won’t be told what the first Judge suggested or indicated, or who gave ground and who didn’t, or what the sticking points were)

The idea is to settle the case by agreement, instead of having the stressful, time-consuming and (for the State/taxpayer) expensive final hearing.

In a money case, that’s always a live possibility – since going to a final hearing costs each side money (even if they are legally aided, their legal costs have to be paid back at some point out of the money they recover) and you know, money has loads of different ways of being divided and some of those ways can result in each side getting something they are happy with.  In a Children Act case where the social work plan is adoption and the parents want the child home, there’s rather less room for compromise – it’s not easy to come up with a way where everyone leaves happy. So it can feel a bit more like a Settlement Conference is one side being told that they are LIKELY to lose at final hearing and to give up.

 

Sarah Philimore sums it all up very well here

 

Guidance from the Ministry of Justice about ‘Settlement Conferences’

 

The Association of Lawyers for Children have published guidance to their members and it is strong, punchy stuff

 

http://alc.org.uk/uploads/ALC_Guidance_to_Members_on_Settlement_Conferences_July_1st_2016.pdf

 

For example

Care and adoption proceedings are a grave interference in family life by a public authority. They can have consequences for several generations.
We believe the scheme may be in breach of the ECHR Article 6 and 8 rights of both parents and children.
The right of individuals to communicate privately with their legal representatives is a cornerstone of access to justice.
The right to professional advocacy is wholly undermined if lawyers are expected to remain silent.
A child cannot have a fair hearing if his parents have not.

 

and

 

5…. The essential difference between a conventional IRH and the settlement conference lies in the judge seeking directly to persuade the parties to agree
with his or her view of the likely outcome , and expecting the parent or other parties to speak directly to the judge, without the protection of professional
advocacy and legally privileged advice.
6. The judge taking the settlement conference will not be the allocated judge,and therefore the scheme undermines judicial continuity, which has been a central
aim of the family justice system for many years. The settlement conference judge will not have the depth of knowledge and nuance of the case and may
therefore arrive at the wrong conclusion about the merits.
Apart from the issue of further delay, there is a risk, particularly in the smaller court centres, that the judge who deemed the case suitable for a settlement conference will
communicate their disappointment to the trial judge if the conference fails to produce a settlement.
7.Lawyers are to be present at settlement conferences, but they are discouraged from speaking, and therefore their presence provides only a semblance
of legal representation and due process.
The judge may ask a question directly of the lay client which the lawyer objects to, but the client may answer before the objection
can be made. The judge may attempt to restrict the lawyer’s interventions as an undermining of the process.
The passive presence of lawyers will not best serve the parents’ or child’s interests, but will serve to make appeals from “consent” decisions more difficult
to launch. We believe it will be very difficult if not impossible for our members to discharge their overriding professional duty to
promote the interests of their clients in such an environment.
8.The parents in care cases are usually vulnerable and disadvantaged individuals, a disproportionate number of who have learning disabilities and mental
health problems. They find it difficult to articulate their experiences and present their views effectively in a court room setting. They are inevitably under considerable
emotional stress when attending court about their children. Being directly addressed by the judge and expected to reply is likely to be experienced by the
parent as a form of pressure to make concessions, no matter how tactful and skilled the judge may be. The scheme is intended to produce settlement by
bypassing lawyers and using the judge’s authority and personality toproduce concessions. If it were not, it is difficult to see why the settlement
conference should produce a better rate of settlement than a properly conducted IRH.
9.The scheme will seriously undermine public confidence in the fairness and transparency of judicial decision-making in the family courts.Public confidence in the
“secret” family justice system is shaky.
Final decisions for the permanent removal of children from their parents made “by consent”, without parents having the benefit of legal representation and
privileged advice, will be highly suspect.
This will further damage public trust in family justice.
It would be fair to say that there are still some kinks to work out. Shame that there wasn’t a consultation and dialogue before launch of the pilot to let these issues be ventilated. Whilst the pilot only covers a few local authorities, these are real families and real children who are undergoing a pilot scheme to make these life-changing decisions in a way that is critiqued as savagely as this.
Perhaps the pilots should cease whilst the MOJ get round a table with the ALC to discuss things.
I’d say the ALC response is a takedown that Brock Lesnar would be proud of.
Who is Brock Lesnar?
Only The Beast Incarnate, that’s who.
"My client, BRRRROCK Lesnar"

“My client, BRRRROCK Lesnar”

Judgment on Reporting Restriction on the Butler/Gray case

This was the request of the Press to be able to have access to material from the family Courts relating to Ellie Butler, Ben Butler and Jennie Gray and to be able to report it. They made the application following the conviction of Mr Butler for murder and the conviction of Ms Gray (having pleaded guilty) to lesser counts

 

London Borough of Sutton v Gray and Others 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1608.html

 

It is worth noting that at the start of the hearing, the Local Authority and Guardian were in support of release of materials and publication (subject to some minor redactions for anonymity) but during the course of the hearing became concerned, as the Judge was, that publication might result, if an appeal were lodged, in a mistrial claim for any criminal re-hearing

 

“It would be horrific if these parents were to avoid a retrial on the basis of publication at this stage”

 

[Despite everyone’s desire for transparency and information and a proper public debate, I think all of us can agree that we would not want Mr Butler to be freed on a technicality – as opposed to convincing a fresh jury of his innocence]

 

The Press application was put in this way

 

  • A number of principles are, as Mr Bunting suggests, applicable. Open justice is at the heart of our system of justice and vital to the rule of law. It promotes the rule of law by letting in the light and allowing the public to scrutinise the workings of the law for better or for worse. There is a particular need, I altogether accept, for the media to act as a public watchdog in care proceedings in the Family Court because of the intrusion or potential intrusion into the family lives of those concerned and what could be a serious interference by the state in family life.
  • Accordingly, while there is no presumption in favour of open justice, in private proceedings concerning the welfare of children there is a fundamental need for the press to play a scrutiny role in family proceedings. That is a matter enshrined within the President’s Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230. All of that I altogether accept.
  • The foundation of the jurisdiction to restrain publicity in a case such as this is derived from rights enshrined within the European Convention on Human Rights. A balancing exercise is required between competing rights. The balancing exercise as between Articles 8 and 10 has been addressed in a number of authorities; they are well described within paragraph 17 of the application. There is no need for me to read them into this judgment. I accept Mr Bunting’s analysis.
  • It is suggested that the proceedings before Eleanor King J are of the utmost public interest. There should therefore be, it is said, a strong presumption in favour of publication. There is an important public interest in the press being able to follow and understand those proceedings for the reasons described by Mr. Bunting; and there is a profound public interest in the press being able to investigate and, as necessary, report the varying approaches of the Family Court to the care proceedings relating to Mr. Butler and Miss Gray. These care proceedings, it is said, and I accept, place the Family Court under a particular spotlight and cry out for public exploration.
  • Mr. Bunting then goes on to say that in so far as the judgment and order of 30th June 2014 have been withheld from the press to protect against injustice in the criminal proceedings, this justification falls away upon the verdict given yesterday at the Old Bailey by the jury.

 

 

The Judge, Mrs Justice Pauffley, was rightly concerned with the prospect of an appeal being lodged and if successful it being argued that disclosure of material which a jury would not ordinarily see being used as a technical argument for that Mr Butler could not get a fair trial at any such re-hearing.

 

    1. My starting point is the President’s guidance of 16 January 2014 – ‘Transparency in the Family Courts: Publication of Judgments’ and particularly paragraph 19 where he makes clear that in deciding whether and, if so, when to publish a judgment, a judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention, particularly Article 6, respect for private and family life, Article 8 and Article 10 freedom of expression. The guidance then, materially, continues thus, “And the effect of publication upon any current or potential criminal proceedings”.
    2. All the signs are that the criminal processes involving Ben Butler are not yet over. Yesterday, as is reported on the BBC website, after the guilty verdict, Mr. Butler shouted out, “I’ll fight for the rest of my life. Unbelievable” before adding, “I want to be sentenced now so I can fight in the appeal court”. He added, “I’ll fight for ever to prove this wrong. My daughter was jumping in the house. I am 100% not guilty.” Miss Gray added, “Big mistake. Spend another ten years proving you wrong”. Those expressions of view, albeit uttered in the heat of the moment and immediately after the verdict, give some solid indication that the criminal proceedings are likely to extend to the making of an application for permission to appeal and to a submission that his conviction should be overturned.
    3. The reporting of King J’s judgment, were I to give permission to release it to the media, is likely to be very extensive indeed. It will be, if I am able to forecast anything, front page news. I am fully aware of the extent of public interest in the circumstances of this case, the background, the extent to which the Family Court has been involved as well as to the many legal processes leading to yesterday’s verdict.
    4. It is instructive, to my mind, to recall the manner in which there was reporting of the very sad circumstances of Khyra Ishaq’s pitiful life and terrible death in the aftermath of her mother’s conviction for causing that child’s death in about February 2010. There was, in the immediate aftermath of the criminal trial widespread front page, very prominent and extensive references to the judgment given many months, even perhaps years, previously by Eleanor King J.
    5. There is a very high likelihood, indeed it is inevitable, in my assessment, that there would be the most widespread and extensive reporting of the content of King J’s judgment in this instance. Would there be repercussions for the criminal appeal’s process? Mr. Bunting invites me to significantly doubt that there would be prejudice. He says there is a long way to go before any retrial. It is unclear as to whether one would be ordered. There may be a slender prospect, he argues, and it may be in the distant future and it is insufficient to outweigh the public interest in favour of publication.
    6. I would suppose that three options exist for the appeal which Ben Butler made clear yesterday he is intent on pursuing: firstly, that it is dismissed; second, that it is allowed and the conviction quashed; and, third, that the appeal is allowed to the extent that a retrial is ordered. I have no means of forecasting, no one has any means of predicting with any degree of accuracy, or at all, what will happen in connection with the proposed appeal. If there is any potential for a retrial then it seems to me that for exactly the same reasons as underpinned the decision of Eleanor King J not to release her judgment in 2014, I must do likewise.
    7. It is useful to reflect upon the words of Mr. Justice MacDonald in the case of H v A No. 2 [2015] EWHC 2630 when he said, albeit in a slightly different context:

“In the age of the Internet, … today’s news story no longer becomes tomorrow’s discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms …”.

  1. We are, I would observe, in a very different environment to that which existed even ten years ago. There is the potential for prejudice to, even the derailing of, the criminal process. That, to my mind, is manifest. The risk may be, as Mr. Bunting suggests, small but the consequences for the criminal process could be incalculable.
  2. One scenario, quite obviously, is that Mr. Butler might seek to argue that consequent upon the publicity accompanying the publication of Eleanor King J’s judgment, which is bound to contain a great deal more material than is currently in the public domain, he could not be assured of a fair trial. That possibility, the potential for that eventuality, inevitably compels me to dismiss this application.
  3. One thing though should emerge and be made abundantly clear. The arguments in favour of the release of King J’s judgment are powerful and strong. They will remain so. I fully expect that so soon as the criminal appeals’ process is at an end a full, suitably redacted version of the 30th June 2014 judgment will be published. That is my judgment.

 

 

Unless an appeal is brought on fresh evidence, a criminal appeal must be lodged within 28 days of conviction (if appealing against conviction) or 28 days of sentence (if appealing on sentence), so the appeal window expires at the end of July.  If Mr Butler does not lodge such an appeal, I would expect the Press to revive their request to see the judgments and to be able to publish stories that provide detail from them.  If an appeal IS lodged, then the publication and release of the material will have to wait until that appeal runs its course, which could be many months.

Frustrating, particularly given how much material came into the public domain after conviction (for example Mr Butler’s previous convictions, which a jury would not normally see or hear about) but absolutely nobody would want this case to be determined on a technicality. If Mr Butler does appeal and gets a re-hearing, it must be decided on the facts of the case and its merits, not by a technicality.

 

 

 

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