M (A Child)  EWHC 3225 (Fam) (01 December 2021)
For background “Special measures” is the blanket term given for a range of solutions which can be applied to assist a witness considered to be vulnerable, particularly in a case where there are allegations of abuse from one adult towards that witness. For example, giving evidence behind a screen or by some sort of video-link, ground rules about being able to communicate that a break is needed and so on.
This case was a private law case, involving arguments about where M who was two years old should live and how she should spend time with her parents. As part of that, allegations of very serious sexual abuse from the father towards the mother including an allegation of rape were made.
In this case, at the fact finding hearing, there were no preliminary applications for special measures, nor any consideration of the possibility that such measures might be required.
At the conclusion of the finding of fact hearing, the Judge found that some of the allegations made by the mother were not proven by her and thus (as the law is binary) did not occur.
The mother engaged a fresh junior barrister and Queen’s Counsel for her appeal. The appeal was on two limbs – that the judgment was flawed in its analysis and conclusions and that the Court had failed to consider whether special measures were required and that this failure rendered the process and hence the conclusions unfair. As part of that, they also argued that the extent to which mother’s sexual history was the subject of cross-examination was excessive and that a special measures hearing would have properly addressed that in advance.
The father opposed this, arguing that those representing the mother at the hearing had not raised with the Court any suggestion of special measures and they could not point to any evidence that the lack of them had been detrimental to the mother.
The Court looked at the rules in relation to vulnerable witnesses, and referred to the new statutory provisions which had not been in place at the time of the fact finding hearing
25. Since the hearing at first instance in this case, Parliament has passed the Domestic Abuse Act 2021, which includes s63 which provides that where a person ‘is, or is at risk of being, a victim of domestic abuse’, the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A
The High Court considered that these Rules had not been properly followed:-
It does not appear from any of the orders that the question of participation directions was considered or determined by the court. The provision that the mother and father should attend court on different days to give evidence appears from the wording to have been made in order to meet the restrictions on too many parties being in one room as a result of Covid. The provisions of rule 3A and PD3AA are mandatory. The word used is ‘must’ and the obligation is upon the court, even though the parties are required to cooperate. Rules 3A.4 and 3A.5 required the court to consider whether the mother’s participation in the proceedings was likely to be diminished by reason of vulnerability both when giving her evidence and otherwise. There can be no doubt that the mother came within the category of those who might be vulnerable, as someone who was alleging domestic and sexual abuse. The mother was fully represented throughout the proceedings, but the obligation to consider vulnerability is upon the court. I entirely accept Mr. Tyler’s submission that counsel for the mother (and possibly the father too) would be expected to remind the judge(s) of this, and that (as privilege has not been waived) we cannot know whether or not there was a conscious decision not to ask for special measures. These points do not, however, relieve the court of the responsibility it has been given under the rules. Whilst I also take note of the the dicta of May LJ in Jones v MBNA Bank  EWCA Civ 514, as cited to me, there is a fundamental difference between the situation there and this one. This was a very sensitive case where there were allegations of the utmost seriousness. They were of two rapes whilst the mother was under the influence of sedation and either drink or drugs respectively, and a third of anal rape when she was eight months pregnant. She also made overarching allegations of controlling, manipulative and intimidating behaviour on the part of the father. The mother produced some explicit videos in support of her allegations of rape. In response the fatherfiled a witness statement setting out detailed evidence of the mother’s sexual activities, including numerous screenshots of her naked and masturbating with him watching. He produced a large number of explicit videos of their consensual sexual activities, and argued that her activities as a ‘cam girl’ demonstrated that, far from being intimidated into sexual acts by him, (including being videoed) she was confident, adventurous and open about her body. The court bundle for the trial contained several large pornographic photographs of her and several more small ‘stills’ exhibiting videos. She was asked about these matters extensively as part of the father’s case that the sexual relationship between them was an equal one. Her case was that she was doing this to please him and keep him. There was evidence, that the judge referred to, that the mother had some long term underlying fragilities, and that she was anxious. In one of his statements the father said that he ended the relationship because the level of emotional and psychological support she needed was very frustrating and emotionally exhausting. It must be clear from the matters I have set out above that this was a case which cried out for participation directions and a ground rules hearing, not just for the sake of the mother, but for the integrity of the court process itself. The purpose of the rules and Practice Direction is to avoid the quality of the evidence being diminished. Here, the need for directions went beyond the need to consider whether the parties should not come into physical contact in the court room or building. Matters, such as whether the mother should be visually shielded from the father as she gave her evidence, and what topics should be covered in cross examination, were highly relevant.
The Court held that the appeal on both limbs should be granted and the case submitted for re-hearing.
It flags up the very important issue that even where a party does not apply for Special Measures or raise them as an issue, the Court must itself be alive to the issue and actively consider whether there are vulnerable witnesses and ask for the assistance of the advocates and parties in determining what special measures should be in place.
This was very obviously a case where special measures were likely to be appropriate and had they been applied for been likely to have been granted, but the failure or decision on behalf of the mother’s team not to do so did not prevent them from successfully appealing the findings of fact made as a result of a flawed process.
Whilst this arose in private law proceedings, the same principles will apply in public law proceedings and those advocates who are representing parties to those proceedings will need to ensure that the issues are properly ventilated and addressed, even if they do not materially affect their own client, to avoid the risk of an appeal.
Vaccinations have long been a sore point in family law litigation, and as soon as the Government decided that the Covid vaccine was safe and medically recommended to prescribe to children, it was always going to be the subject of litigation.
Where children are in care, can the child’s wish to have the vaccine override the parents opposition, can the Local Authority authorise the vaccination where the parent objects?
The High Court have given a very clear decision – one which may not be supported by everyone, but it is such a divisive topic there was never going to be a decision to please everyone.
C (Looked After Child) (Covid-19 Vaccination)  EWHC 2993 (Fam) (09 November 2021)
In short :-
a) For MOST cases, the LA can consent under s33 where the child is subject to a Care Order or Interim Care Order. There might be some cases where the child’s individual medical history means there might be risks over and above the general population which if ‘grave’ should be a case where the LA asks the Court to decide.
b) If the parent objects, they have the ability to make an application under the Inherent Jurisdiction to prevent the vaccination
c) The LA DO need to do an individual assessment for each child as to whether the vaccination should proceed under s33 or be the subject of a Court application
Accordingly, applying the principles articulated by the Court of Appeal in Re H, I am quite satisfied that under s.33(3)(b) of the Children Act 1989 a local authority with a care order can decide to arrange and consent to a child in its care being vaccinated for Covid-19 and/or the winter flu virus notwithstanding the objections of the child’s parents, when (i) such vaccinations are part of an ongoing national programme approved by the UK Health Security Agency, (ii) the child is either not Gillick competent or is Gillick competent and consents, and (iii) the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child’s welfare. There is no requirement for any application to be made for the court to authorise such a decision before it is acted upon. In those circumstances it is unnecessary for me to exercise the inherent jurisdiction, but had it been necessary I would have had no hesitation in concluding that it is in C’s best interests to have both vaccinations given all the circumstances including the balance of risks of having and not having the vaccinations, and C’s own wishes and feelings. S. 33(3) of the Children Act 1989 does not give a local authority carte blanche to proceed to arrange and consent to vaccinations in every case. Firstly, it is acknowledged that local authorities should not rely on s.33(3)(b) in relation to grave decisions with enduring or profound consequences for the child. I cannot discount the possibility that an individual child’s circumstances might make such a decision “grave”. Secondly, pursuant to s.33(4) a local authority must make what has been termed “an ‘individualised’ welfare decision in relation to the child in question prior to arranging his or her vaccination.” (per King LJ, Re H at ). Thirdly, as King LJ observed in Re H at  in the event that a local authority proposes to have a child vaccinated against the wishes of the parents, those parents can make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under section 8 Human Rights Act 1998 to prevent the child being vaccinated before the matter comes before a court for adjudication. Nevertheless, in the great majority of cases involving looked after children, no application will need to be made by the local authority to the court in respect of decisions to proceed with Covid-19 and/or flu virus vaccinations provided under a national programme, even when there is parental objection.
I honestly can’t improve on Sir James Munby’s opening in that judgment, so let’s crack into it
This is a most unusual case. Indeed, so far as I am aware, and the very experienced counsel who appear before me do not dispute this, the case is unprecedented. Certainly, the researches of counsel have identified no decision directly in point. The applicant’s own description is that his applications are “novel.” I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it. The cynic will recall the words of Diplock LJ in Robson and another v Hallett  2 QB 939, 953: “The points are so simple that the combined researches of counsel have not revealed any authority upon them. There is no authority because no one has thought it plausible up till now to question them.” But if at the end of the day the answer is clear, as in my judgment it is, the points are not so simple as one might at first suppose. Equally in point, is the observation of Thorpe LJ in Moses-Taiga v Taiga  EWCA Civ 1013,  1 FLR 1074, para 21, that:
“the absence of … authority … only illustrates the tendency for propositions of universal acceptance to be difficult to support by reference to authority.” But is the universal assumption correct? I leave the last word to Megarry J, who in Hampstead & Suburban Properties Ltd v Diomedous  1 Ch 248, 259, said with grim humour:
“It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is.”
The nub of the case is that Mr S is 41 years old. His parents are married to one another and live in Dubai. Mr S has a series of impressive qualifications- he has a First in Modern History, he is a qualified solicitor, he has a Masters in Taxation and is studying for Chartered Tax Advisory and Law School Admissions Test examinations. His parents have provided him with a rent-free flat in central London, and up until this litigation had been paying the utility bills.
Mr S was asking the Court to make an order that his parents financially support him.
Yes, you read that right.
I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it
Yep, that certainly describes my view.
I would certainly say that those representing him left no stone unturned in their efforts to find a legal basis for suggesting that the Court should have jurisdiction to make married parents pay maintenance for their 41 year old professionally qualified son.
“(1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) – (a) has failed to provide reasonable maintenance for the applicant, or (b) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.
I suspect it doesn’t take a Court of Appeal Judge, or even a lawyer to work out why s27 doesn’t work. Hint , a child is not a ‘party to a marriage’
Then Schedule 1 of the Children Act 1989, which does provide provision for a child to apply for financial support from a parent, and there are some breadcrumbs of this applying to children over 18 who are still in education (which Mr S sort of is), but the problem there is
Schedule 1 para 2 (4) No order shall be made under this paragraph at a time when the parents of the applicant are living with each other in the same household.
And Mr S’s parents clearly are.
The next attempt was the inherent jurisdiction, which sort of expanded into vulnerable adults who did not meet the tests of the Mental Capacity Act 2005.
The judge rejected this argument for three reasons. First, at , because the asserted claim “lies far outside the accepted parameters of the branch of the inherent jurisdiction prayed in aid by the applicant”. The basis of the jurisdiction was, at , “to protect and facilitate” a vulnerable adult’s exercise of autonomy. Secondly, at : “The second reason why the inherent jurisdiction is not available to assist the applicant is because of the fundamental principle that the inherent jurisdiction cannot be used to compel an unwilling third party to provide money or services”. In support of this reason, the judge cited from a number of authorities including N v A Commissioning Group and other  AC 549, a case concerning an application under the Mental Capacity Act 2005, in which Baroness Hale said, at : “the court only has power to take a decision that P himself could have taken. It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the ‘available options’. In this respect, the Court of Protection’s powers do resemble the family court’s powers in relation to children. The family court … cannot oblige an unwilling parent to have the child to live with him or even to have contact with him, any more than it can oblige an unwilling health service to provide a particular treatment for the child.” Thirdly, at : “The third reason why the inherent jurisdiction is not available to assist the applicant is because of the fundamental principle which I summarised in In re X (A Child) (Jurisdiction: Secure Accommodation)  EWHC 2271 (Fam);  Fam 80, where I referred at para 37 to: “the well known and long-established principle that the exercise of the prerogative – and the inherent jurisdiction is an exercise of the prerogative, albeit the prerogative vested in the judges rather in ministers – is pro tanto ousted by any relevant statutory scheme.” The judge set out, at , his assessment of the legislation: “Between them, the 1973 Act and the 1989 Act provide a comprehensive statutory scheme dealing, along with much else, with the circumstances in which a child, including, as here, an adult child, can make a financial claim against a living parent (I put the point this way to make clear that I have not overlooked section 1(1)(c) of the Inheritance (Provision for Family and Dependants) Act 1975). More specifically, the legislation, in its general reach, applies to the applicant, as to every adult child, and is comprehensive in relation to cases falling within its ambit. Furthermore, as Mr Warshaw and Mr Viney point out, the legislation deals explicitly with the very claims the applicant seeks to make; indeed, in the case of the 1989 Act it explicitly prohibits the claim he seeks to pursue. There is accordingly, in my judgment, no scope for recourse to the inherent jurisdiction.”
So that is also out.
Next, under the Human Rights Act that there is discrimination under article 14, a breach of Mr S’s article 6 rights and that the Court should read down the existing legislation to allow his application.
(Bear in mind, this is all litigation to decide whether the Court even has power to make the orders Mr S wants – no consideration yet of the merits if any of his application)
The argument here was that Mr S, as a child of parents who are not separated, is being treated differently to a child of parents who are (as he would be able to make a Schedule 1 Children Act application if his parents were separated.)
I am sure that Courts, particularly the Court of Appeal, do not have swear jars, but if they did I would greatly admire the forebearance of anyone who wasn’t chipping in quite heftily. For my part, I can’t read this judgment without muttering “For F***s sake”
110. In my view, it is clearly not. As Mr Warshaw submitted, not permitting an order to be made in favour of a child whose parents still live together does not run counter to the purposes of article 14 or the aim of the ECHR. I also agree with the judge, for the reasons he gave, when he said, at , that “the suggested analogy with ‘birth status’ is wholly false”. Apart from the fact that birth status is expressly included in article 14, describing or defining a child as “legitimate” or “illegitimate”, because of the marital status of their parents, is clearly an identifiable characteristic, or status, attributable to the child. There is no equivalence or correlation between a child’s status being defined by whether their parents are or are not married, as relied on by Mr Southey, and the Appellant’s position. Being the child of parents who are living together in the same household is not a personal or identifiable characteristic any more than being the child of parents who have divorced is a personal characteristic. It is not something the child has or which, in any way, defines the child. Being the child of parents who are not separated is simply a bar to the court making an order under paragraph 2 of Schedule 1. In essence, the Appellant’s complaint is, as Leggatt LJ said, “merely a description of the difference in treatment itself”. Analogous Situation I also do not consider that a child of parents who are living together is in a comparable or analogous situation to a child whose parents are separated. As set out in Clift v UK, at , “the requirement to demonstrate an ‘analogous position’ does not require the comparator groups to be identical”. What is required is that the “applicant must demonstrate that, having regard to the particular nature of his complaint, he was in a relevantly similar situation to others treated differently”. This is sometimes said to require a specific and contextual analysis. As set out in the judgment below, the whole history of the relevant statutory provisions show that they are giving the court powers to make financial orders “when the parents’ relationship has broken down”, as set out in the 1982 Report (para 6.31). That is their purpose and objective. They are not focused on needs, as Mr Southey submitted. Needs are clearly relevant to the court’s determination of what, if any, order should be made but only in the context of the parents’ relationship having broken down. The fact that the jurisdiction to make orders under sections 23 and 24 of the MCA 1973 depends on the parents’ relationship having broken down is self-evident. It is also clear from section 27 because it depends on the failure to provide reasonable maintenance. It is also clear from paragraph 2(4) of Schedule 1 which, as referred to above, was expressly included to ensure that orders could only be made in favour of children “over the age of 18 whose parents are separated”, as made clear by the 1982 Report and as stated by the Lord Chancellor. Mr Southey additionally submitted that the challenged provisions amount to indirect discrimination because, as set out in DH v Czech Republic at , “a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group”. The present case is far removed from the facts of DH v Czech Republic which concerned racial discrimination in education in that a disproportionate number of Roma children went to special schools. I do not consider that the principle or approach referred to in that case applies to the circumstances of the present case. All children whose parents are not divorced or separated cannot obtain an order and I do not consider that the challenged provisions can be said to have disproportionately prejudicial effects on a particular group as set out in DH v Czech Republic or as submitted by Mr Southey. Further, again, as set out in DH v Czech Republic, at , the difference in treatment must be between “persons in relevantly similar situations”. In the present case, as explained above, the Appellant is not in a relevantly similar situation to adult children whose parents have divorced or are not living together. As Lady Hale did in R (Stott), at , I would quote what Lord Nicholls said in R (Carson) v Secretary of State for Work and Pensions  1 AC 173 at : “There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous.” In my view, there is an obvious and relevant difference in the present case. The difference is obvious because the Appellant seeks to compare himself with children whose parents are divorced or separated. It is also relevant because, to repeat, the purpose of the legislation is specifically to address the consequences of parents either being divorced or separated or, to put it more broadly, the breakdown of the parents’ relationship. I would repeat that the Appellant is not treated differently because of his health status or disability. They are not relevant features in the context of this case. Further, as explained above, the Appellant does not have a status which engages article 14 at all.
The appeal was unanimously refused. The judgment doesn’t go on to say whether Mr S’s parents sought an order for costs, nor whether they were ceasing to allow Mr S to live in their London flat unless he starts paying his way. Or indeed whether they are writing a will that cuts Mr S off completely. If they don’t do any of that, they are kinder and better humans than I.
On the plus side, there’s a powerful incentive for Mr S’s parents to never ever separate, because the second they do, the Schedule 1 bar falls away and off we go again. I’ve heard of people staying together for the sake of the children, but this is a new wrinkle.
Parliament created in s25 Children Act 1989 a statutory mechanism for Court oversight and sanction of situations in which children who are looked after by Local Authorities have their liberty restricted (generally but not exclusively by locked doors). These are called ‘secure accommodation orders’. Children can only be placed in a s25 secure accommodation in a children’s home specifically approved by Ofsted for that purpose.
There’s a national crisis in secure accommodation beds. Demand is massively outstripping supply, and has been for many years. That led to weird situations where children in Southampton were being put in children’s homes in Scotland… If there’s not an available secure accommodation bed for a child, section 25 doesn’t solve the problem. What you need is more secure beds. BUT if you don’t have them, what then?
This led to a workaround whereby the inherent jurisdiction of the High Court (what some oafish commentators label ‘magical sparkle powers’) were used to authorise a child being placed somewhere where their liberty was restricted but NOT in a children’s home approved by Ofsted for that purpose.
That was a sticking plaster and the High Court has been publishing judgments for at least four years saying that this needs a better solution and shouting it from the rafters.
The issue went up to the Supreme Court, who ruled that the use of inherent jurisdiction for that purpose was lawful.
The Government made some new Regulations – unfortunately, these weren’t ‘we’re building 20 new secure children’s homes’ but instead ‘we’re closing down the bit of the old regulations that allowed Local Authorities to place children in these creative placements, so rather than solving the problem, they instead said “we don’t like the bandaid that the High Court is using as a last resort, so we’re going to make it unlawful for Local Authorities to use band-aids”
There’s now litigation as to whether the High Court can use their inherent jurisdiction to say that THEY the High Court can say that they approve the bandaid (even whilst knowing that this doesn’t allow the Local Authority to use it) – which the High Court has said yes sort of on, and now this particular case grapples with that in more detail. (I think the hope had been that Ofsted would be invited to grant a temporary approval for individual placements)
BEDS NOT BANDAIDS and DOWN WITH THIS SORT OF THING
The TL;DR is so long it needs its own TL;DR
Not enough secure beds, the loophole the High Court worked around was closed, the loophole to work around the closing of the loophole is being litigated about here.
Sorry, this is pretty dull for non-lawyers. Hopefully there will be a less technical case to write about soon.
Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1)  EWHC 2931 (Fam) (03 November 2021)
This judgment concerns a further question that has now arisen in three cases, including FD21P00578, concerning the range of circumstances in which the jurisdiction I found subsists may be applied. Namely, whether, given the central role accorded to the President’s Guidance by the Supreme Court in Re T and by this court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance. The spectrum of the submissions made to the court on this question has been bracketed at one end by the submission of each of the local authorities that the answer to this question is “yes”, and at the other by the submissions of the Secretary of State for Education and Ofsted that the answer to this question is “no”. Whilst each of the cases before the court concerns a child under the age of 16, the answer to the question posed in this case is applicable to all cases in which the Practice Guidance applies
Do you know, I sort of agree with both sides here. Without an injection of fresh beds, the use of inherent jurisdiction is the only way to find the most vulnerable children that we deal with beds that they need, so yes. But the use of inherent jurisdiction to workaround a bed shortage and sidestep the clear provisions of s25 is wholly wrong in my opinion, so no. Of course, the vexing thing is that the High Court’s middle ground of using inherent jurisdiction whilst shouting for help is the best course of action but the cries for help were heard and not ignored. The High Court were basically saying, “we’re shipwrecked and it is of course wrong to eat the ship’s cat, but if it keeps the crew alive until rescue comes, it is the best of a bad situation’ and the Government are saying ‘we’ve seen your flares and we’ve sent you some leaflets from the RSPCA and PETA rather than a rescue ship’
Anyway, I should also tell you that much like the film Dune, this case does not conclude matters, and there’s going to be a part 2. This Part 1 looks at whether the Court has the legal power to sanction a placement of a child under the inherent jurisdiction where the placement would be unlawful under the new Regulations. Part 2 will look at the circumstances of the individual four cases that have been joined together and what should happen in relation to each.
63. Having regard to the comprehensive submissions made by leading and junior counsel, and the legal provisions set out above, I am satisfied that an unwillingness or inability to comply with the terms of the President’s Practice Guidance does not act per se to oust the inherent jurisdiction of the High Court to authorise the deprivation of a child’s liberty in an unregistered placement confirmed in Re T.
64.However, I am equally satisfied that compliance with the Practice Guidance is central to the safe deployment of that jurisdiction and to its deployment in a manner consistent with the imperatives of Art 5. Within this context, whilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply for registration. My reasons for deciding are as follows.
65. The first point that the court must acknowledge at the outset is that there remains no entirely satisfactory child-centred answer to the question before the court in the absence of a concerted effort by those responsible to remedy the current acute shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, of secure placements and of registered placements. The Practice Guidance was promulgated by the President of the Family Division to assist in addressing an urgent and acute problem borne of this lack of resources. On the one hand, failure to follow the Practice Guidance will deprive children of the regulatory protection Parliament has deemed they should benefit from. But, in the context of the continuing and acute shortage of appropriate resources, following the Practice Guidance can risk a vulnerable looked after child having nowhere to go. The dilemma is eloquently described in the written submissions of Ms Morgan and Mr Paisley on behalf of QV:
“ There is a circularity which is, for the guardian as she contemplates the position for QV in this case and similarly placed young people in others, problematic. It is a circle which is impossible to square: the Guardian all things being equal would make the submission that the solution at which the Court should arrive if it concludes that the relevant body ‘won’t’ apply to register or is failing to comply or is dragging its corporate feet in relation to the President’s Guidance or is quite simply making use of the jurisdiction because it remains available to it and is the path of least resistance would be for the Court to say in effect ‘thus far and no further’ and to bring it to an end. That would be in all likelihood, a way in which the difficulties (which to return to the beginning are difficulties of resource above all else) move from the arena of the court where they should not be and into the province of others. Such an approach however comes at a cost; and the cost is paid by the cohort of vulnerable children and young people for whom there is then nothing in the way of a protective jurisdiction at all. So it is that the Guardian steps away from the otherwise obvious submission that the Court should stand firm; should pursue the reasoning at  in Wigan BC v Y to its logical conclusion; should refuse to sanction the jurisdiction. The welfare of this or another subject child is nowhere in that approach never mind paramount or primary.”
Compliance or non-compliance with Practice Guidance is not determinative of the existence of the court’s substantive jurisdiction. This is, I am satisfied, the plain position as a matter of law. The President’s Practice Guidance is non-statutory guidance. The Practice Guidance is not a Practice Direction, and even if it were, the authorities are clear that a Practice Direction cannot change the law. Further, as Lieven J made clear in Birmingham City Council v R & Ors at , the President cannot create law by way of issuing guidance. Within this context, I am satisfied that failure to comply with judicial practice guidance cannot oust the inherent jurisdiction of the High Court. The existence of the protective jurisdiction of the court does turn on conformity with a procedural requirement or requirements set out in practice guidance. The question for the court in such circumstances is whether that jurisdiction should be exercised where there has been non-compliance with the Practice Guidance. It is important at this point to reiterate, as Mr Auburn sought to remind the court at a number of points during the course of his submissions on behalf of the Secretary of State, the question that is before the court. Namely, whether it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance. As I have already noted, I am satisfied for the following reasons that, ordinarily, the answer to this question should be ‘no’. There is of course a further question of what is meant by ‘will not or cannot’. I deal with that question in more detail below.
There’s a lot of text here, but the answer to the question
“where the placement proposed is one which will not or cannot comply with the Regulations, can the High Court use their inherent jurisdiction and place there?”
is “ORDINARILY NO”
There’s quite a bit of text on ‘will not or cannot’ – MacDonald J says that it turns on its own facts, but makes some general observations.
80. An unwillingness or inability to apply for registration in accordance with the Practice Guidance does not act to extinguish the court’s inherent jurisdiction. Rather, it borders and curtails the circumstances in which that jurisdiction can be deployed. Within this context, and having regard to the judgment of the Supreme Court in Re T and the matters to which I have referred above, I am satisfied that whilst an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, the court should not ordinarily countenance the exercise of the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration. 81. As noted above, my conclusion invites the question what does “cannot or will not” mean in this context? It is not helpful or appropriate in my judgment to set out an exhaustive list of cases that will fall into one or other of these categories. Each case will turn on its own facts. However, some general observations can be made. 82. A provider that will not apply for registration, in the sense of refusing to do so, notwithstanding the terms of the Practice Guidance is unlikely to be a viable option for meeting the subject child’s best interests. Such a refusal by a provider is, in reality, a statement of intent not to comply with the law put in place by Parliament to safeguard and promote the welfare of the subject child through the imposition of a comprehensive and wide ranging regulatory regime. Given the burden placed on providers by an application for registration, such a position on the part of the provider may be understandable if the provider does not ordinarily make such provision, for example a private landlord, the owner of a holiday park or other venue not ordinarily involved in social care. However, it is placements in this category that are most likely to result in a wholly unsuitable placement for obvious reasons. Within this context, a refusal by a provider to apply for registration immediately following a placement deprives the child for the duration of that placement of regulatory oversight where it is arguably most needed. In the context of the cases before the court, the local authority considers that the placement for QV, a holiday park, will not consent to an application being made to Ofsted for registration. In the circumstances, and whilst each case falls to be considered on its own facts, it is unlikely in the context of a refusal by a provider to apply for registration that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child with that provider is in the child’s best interests. In such circumstances, the court may be required to make a very short order (measured in hours or days and not weeks) to hold the ring whilst alternative arrangements are put in place. This will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this (referred to as ‘in the moment cases’ in by Fordham J in R (on the application of Matthew Richards) v Environment Agency and Walleys Quarry Limited  EWHC 2501 (Admin) at ). The operational duty of the court in such circumstances is to keep the child safe, however any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term. I accept that the Practice Guidance contemplates at  that registration may be refused following an application being made or that an application for registration may be withdrawn, and that the Guidance does not expressly prohibit the continuation of an unregistered placement in such circumstances. However, in my judgment, this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration. A person carrying on or managing a children’s home must apply for registration as a matter of law. Within this context, there is in my judgment a stark difference between a provider who makes an application and fails in the first instance (the chances of which can be significantly reduced by working in partnership with and taking advice from Ofsted once the application has been submitted) and the provider who refuses to apply or cannot apply. In the former situation, an attempt has been made to bring the child back within the regulatory regime mandated by Parliament, albeit that attempt has been unsuccessful. In such circumstances, the regulator has had a chance to consider the placement and the court must factor in the result when determining for the purposes of the Practice Guidance whether the placement of the child in the unregistered children’s home or unregistered care home service continues to be in the child’s best interests, and in particular whether, on the advice of the regulator, changes can be made to ensure a successful registration application in due course. In the latter situation, there has not even been an attempt to bring the child within the statutory regulatory regime, notwithstanding that that is what the law requires, with no opportunity for the independent regulator to consider the placement (because no application is made) and with the result that the child remains outside the statutory regulatory regime for the duration of the placement. I also accept that, in light of the acute resource issues that have been the subject of other judgments handed down by this court and by other judges of the Family Division, cases may arise where an unregistered placement will not comply with the Practice Guidance with respect to an application for registration but no alternative placement is immediately available. Again, I am satisfied that this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration under the statutory regime. Again, it is important to remember that a person carrying on or managing a children’s home must apply for registration as a matter of law. In such circumstances, not to insist on compliance with the Practice Guidance would be to permit the providers who are unwilling to comply with the law to benefit from the lack of resources. Further, a child’s best interests falls to be evaluated taking into account all relevant circumstances. Whilst the absence of a placement may place the child at risk, the court must also take account of the fact that it is likely to be antithetic to a child’s best interests to be deprived of the protections of the statutory regulatory regime mandated by Parliament. Within this context, in the experience of this court, the providers that are unwilling to apply for registration of those offering placements that are the most problematic for vulnerable children in respect of which the court most regularly encounters a refusal to apply for registration, examples including holiday parks, private Air B&B properties, caravans and canal boats. These expose the child to a double deficit in the form of a sub-optimal placement that is also outwith the statutory regulatory regime designed to safeguard him or her. In such circumstances, for the court to acquiesce in the face of a refusal of a provider even to seek registration is to heighten significantly the risk to the highly vulnerable subject child. Again, whilst each case turns on its own facts, it is unlikely in such circumstances that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child in that placement is in the child’s best interests. Rather, in such cases and accepting the difficulties created by resource issues, after hearing the matter the court is likely to indicate its intention to refuse the application for authorisation and invite the local authority to present alternative proposals (as this court did in Wigan MBC v W, N & Y  EWHC 1982 (Fam)). Again, in such circumstances, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place. Again, this will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this in an ‘in the moment’ case. Again, any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term. With respect to providers that “cannot” apply for registration, on behalf of Ofsted Ms Clement submitted that Ofsted does not recognise such a category, any person carrying on or managing a children’s home being required to apply for registration and any other placement not requiring registration because it is not a children’s home. Within this context, Ofsted contend that there is no such category of placements that “cannot” apply for registration. There is considerable force in that submission. However, in so far as a provider determines not to apply for registration because it could, for example, never meet the requirements to successfully apply, the court will be left in a similar position to that it finds itself in in respect of providers that will not apply. Once again, the child would be left outside the statutory regulatory regime for the duration of the placement as an application to Ofsted would never be made. Once again, this is not likely to be in the subject child’s best interests for the reasons set out above. If there are no steps being taken to regularise the position by applying for registration contrary to the Practice Guidance, the placement cannot be brought back at any point within the regulatory regime that Parliament has determined is required to meet the child’s needs. The inherent jurisdiction should not be used in circumstances which lead to the perpetuation of such an outcome. Again, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place, particularly where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe. Providers who are in the process of an application obviously fall into a different category. The Practice Guidance makes clear that it accommodates the process of seeking registration and the possibility that registration may be refused or the application withdrawn. But where there is a continued failure to prosecute an application for registration despite a stated intent to do so, once again the court may find itself in a position where it cannot extend the authorisation depriving the child of his or her liberty in circumstances where the placement continues to be outside the regulatory regime. That the Practice Guidance sets out timescales in respect of the application for registration (which timescales I shall return to in more detail below) indicates that the effort to secure registration, and thus an order authorising under the inherent jurisdiction the deprivation of the child’s liberty in an unregistered placement, cannot be open ended. The requirement to make an application for registration and the timescale for doing so serves to ensure that deployment of the inherent jurisdiction in association with unregistered placements departs from the statutory scheme’s requirement of a registration to the minimal extent necessary. Within this context, the greater the delay beyond the timescales set by the Practice Guidance the greater the risk that the statutory scheme ensuring the welfare of vulnerable child is undermined.
So it may be that where the home where the child is to be placed (or has been placed) is making an application to be approved by Ofsted under the President”s guidance, the Court might say that this is NOT a placement which WILL NOT OR CANNOT be approved under the Regulations, and thus the inherent jurisdiction MIGHT be used. But where the application has not been made in good time, or been refused, the inherent jurisdiction isn’t going to work.
Basically, we’re not eating the ship’s cat unless the cat itself asks the RSPCA whether it would be okay, but there’s no rations or rescue boat coming.
In practice what this means is that the supply increase that the High Court had jury-rigged as a solution to an out-of-control crisis in bed supply has been almost completely shut down, so now the bed supply which was already nowhere near enough has just got a whole lot smaller. Luckily for everyone, solving supply chain shortages is the number one success story of this Parliament, so no need to worry..
This is a judgment from care proceedings, but it may also be of interest to Court of Protection practitioners. It does not reach binding precedent, or even guidance, but it does set out how in a particular case a different approach paid dividends.
W (A Child), Re  EWHC 2844 (Fam) (25 October 2021)
The Judge is Mr Justice Hayden, who is always worth reading.
It relates to a child who was very ill
W has serious disabilities arising from a genetic defect. He requires the use of a wheelchair at all times. He has several diagnoses which include epilepsy and a condition known as Aerophagia, a swallowing disorder. W has been known to self-harm and occasionally to hold his breath to the point where he loses consciousness. This raft of disabilities necessitates W having one to one care at all times during the day and two to one care for moving and handling. P’s breath holding sometimes causes hypoxic episodes. He also has a Mic-key button device (gastrostomy feeding tube) to his abdomen.
And over a period of time there had been conflict between the parents and the medical professionals over W’s treatment.
“There are certain features of the system around [W] which make it more, rather than less, likely that problems will arise in it. First, it is a very complicated system. Second, the stakes are very high. Ultimately, this is about keeping a child alive and ensuring his best possible quality of life. Third, commissioners face what many would consider to be impossible decisions about resource allocation. Fourth, care work is intrinsically stressful, and the pressures on health professionals and care staff have been vastly increased by the Covid-19 pandemic. These factors all affect the emotional climate of the system around [W] and the relationships between those components of the system. The system around [W] has become sensitised and inflamed. Feelings have run high and perspectives have become polarised and entrenched. [M] and [F], individual professional staff and their organisations have become stuck in polarised beliefs about each other. It has become difficult for the parents and for professionals to respond moderately in ways that sooth rather than exacerbate the dynamic tensions between the different parts of the system. I hope it will be apparent that this analysis does not apportion blame. The family, commissioners and health and social care providers are all affected by the dynamic context in which they are trying to do their best. Rather than looking to change the parents, I recommend a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory. The intervention would assist all agencies and the parents to understand the dynamic processes that have led to the current difficulties, to step back from mutual blame and recrimination, to establish working practices which will contain and diminish sensitivities and optimise collaboration between the different parts of the system. (my emphasis) I recommend that an organisational or a systemic supervisor/consultant is employed to work with the system and facilitate systemic meetings within which the aims set out in the paragraph above would be addressed. The involvement of the Court has radically shifted the dynamics of this system. The involvement of their legal representatives and of the Court, a neutral authority, has diluted the emotional intensity of the polarised “them and us” dynamic which previously existed between the parents and the health/care providers.”
As I said at the outset, this case doesn’t purport to tell other Courts that this is the approach to be adopted or that a one-size-fits-all approach would be right – it is dealing with the particular circumstances of this individual case, but it is certainly an approach that is interesting and may be worth people thinking about.
I don’t think that this reported judgment does anything earth-shattering or makes any vital new legal points, but I felt it was interesting to see what’s a known direction of travel regarding pressure on Court time play out in a real case, and one where I think the outcome would have been very different not long ago.
The case involves Lincolnshire County Council, who were the very wise / very foolish Local Authority who took a chance on a wet behind the ears young lad in 1994 and rescued him from being an office finance manager and turned him into a child protection lawyer… So I will always have fond thoughts of Lincolnshire.
Lincolnshire County Council v CB & Ors  EWHC 2813 (Fam) (21 October 2021)
The case involves the death of an 11 year old, and what is to happen with his three siblings, aged 10 1/2, 5 1/2 and 3 . At this stage of the proceedings, those three siblings were living with the grandparents.
The central issue, although there are others, is whether the death of the 11 year old XE was a tragic accident, or caused by a parent. The stakes could not be higher in a case of this kind.
There are four possibilities of truth and outcome (obviously everyone involved works very hard to help the Court be in the best possible position of getting to the truth and that the finding made by the Court about XE is what really happened. But the process is not perfect. So here are the four possibilities
a) This was a genuine accident and the Court find that it was – which reunites the family and is safe
b) This was a genuine accident, but the Court find that it was intentional, which keeps the family apart and is also wrong
c) That this was intentional and the Court find that it was – which probably keeps the family apart and keeps the children safe
d) That this was intentional, but the Court find that it was an accident – which probably reunites the family and puts the children in danger
Each of those are really important for everyone involved, particularly the children. The stakes are high.
The LA and Guardian in this case argued that the case should be listed for a 5 day final hearing, dealing with findings on XE and welfare decisions for the other children at the same hearing, the parents argued for a separate finding of fact hearing and that the time estimate for this was 20 days.
I’m not going to attempt here to analyse who I think was right or wrong – I don’t have enough material or knowledge to do that from just the judgment, but historically, I’d say that a case where the allegation was effectively murder of a child would generally take closer to the parents estimate than the LA estimate. It of course depends on what the evidence and disputed evidence is.
In very broad terms, we are nationally short of Judge time. That was the case pre Covid, and is even more pronounced now. There was a period of time in which it was very hard to conclude proceedings and have final hearings whilst all of the technical issues were happening, so delay in those cases had domino effects on the time other cases took. The Government and statute expects cases to conclude within 26 weeks. Pre Covid we were sort of around that figure, with some more complex cases taking longer. In December 2019, the average length of a case was 33 weeks. March 2021 was an average of 43 weeks.
So a 20 day case has two significant issues – One is that it takes a lot longer to find 20 days of Court time than 5 – for the obvious reason that you need to find a Judge who had nothing to do for a month, and there’s not a lot of that going around. The longer you wait for the hearing, the longer the children have to wait for a decision. The second is that if you allocate 20 days to one case, that’s probably 3 other cases that could possibly have used 5 of those days to conclude their own case, and that makes those 3 cases all need to wait longer. The other side of that coin, as I’ve already indicated is that the four possible outcomes in this case are all really serious for the children and rushing it might make some of the worst options (that the truth and the finding are not the same thing and the children are either kept away unnecessarily or returned to danger with optimism that they are safe) more likely.
So I don’t know which, in this case was the right call. I’d probably have gone for the classic compromise of 10 days.
I’ll instead set out the judicial conclusions, and let the readers come to their own views, particularly in the light of this sort of benchmark how difficult it may be to seek a final hearing time estimate of more than 5 days generally.
The Court’s consideration starts with the welfare of the children, but this is not paramount, see DP at . The inevitable consequence of ordering a lengthy fact finding hearing is that there will be considerable delay in the case and that will be severely to the detriment of the children. I accept Ms Hunt’s submission that in very many public law family cases there will be an adverse impact on the children from delay, and that factor alone cannot lead to refusing a fact finding hearing. However, the importance of achieving an appropriately speedy outcome for the children remains an important consideration and that factor here is particularly weighty. It is not merely that delay will mean longer without a permanent and stable placement, but also that the children, and especially A and B, will have to wait longer for the counselling to deal with the extreme trauma they have been through. This counselling cannot meaningfully commence until they are in a long term placement, whether with the Mother or elsewhere. I therefore consider that the delay to the children is a very weighty factor in this case. It is apparent from Re H-D-H that the impact on court resources and on other cases is a relevant consideration when making a case management decision such as this, see . The true question is whether the fact finding is truly “necessary” for the ultimate welfare decision that the Court has to make. If it is not necessary for that decision, then a fact finding hearing should not be undertaken. As the President of the Family Division set out in The Road Ahead (both 2020 and Addendum in 2021), in current circumstances the Family Courts do not have the resources to undertake hearings which do not meet the test of strict necessity. It is therefore essential that this test is properly applied, with appropriate scrutiny by the Court, even if the parties themselves do not argue against a fact finding hearing. The Court must be careful to ensure that there is a proportionate and effective use of court time. It is well known that the family justice system has come under very severe pressure during the Covid pandemic. Delays in the hearing of cases have become very much more lengthy and only through more rigorous case management will the delays be materially reduced. The outcome in the present case is in my view clear cut. The factual dispute between the parents in relation to XE’s death is a very narrow one, namely what DE said in the kitchen to the Mother and who left the taps on. Only the parents were witnesses to thesetwo events, save possibly for A, and none of the other witnesses who the parents seek to call can give direct evidence on the matters in dispute. There is body worn camera footage and recordings of the 999 calls so the Judge will have the direct, and thus best, evidence of the Mother and DE’s immediate responses at the time of the incident. In any event, the demeanour of the parents, including what they said immediately after XE’s death, as seen by the other witnesses, carries relatively little forensic weight. It is well known that people react in very different ways to tragic events, and whether the Mother seemed extremely distressed or relatively unconcerned will be of little assistance to a judge seeking either to determine precisely what happened to XE or the quality of the Mother’s wider parenting of the children. The evidence of the 20 or so other witnesses, whether police, ambulance service staff, or clinicians is therefore not necessary for the determination of facts by the Judge. In respect to whether the Court orders a separate fact finding, such hearings will relatively rarely be necessary or proportionate. They necessarily build in a great deal of delay in the system and lead to a significant degree of frequently wasted resources. In a case such as this where the threshold findings sought go well beyond the area of factual dispute between the parents over what happened on the night of XE’s death, I consider it unnecessary to have a separate fact finding hearing. The LA will have to consider alternative scenarios and prepare its evidence on that basis. That may involve a more complicated situation than if there was a separate fact finding hearing, but it will save a large amount of delay and duplication of effort. I also do not consider that the case warrants a listing of more than 5 days. Again, I refer to the President’s Guidance in The Road Ahead. It is essential that the Family Court uses the time available more effectively, and individual hearings take less time. In practice this means more focused cross examination, less repetition and careful scrutiny of witness templates in advance of hearings. This will put more pressure on advocates, and the Court, but that is the only way to achieve the President’s intention of individual cases taking less time. If that is done in the present case, I see no reason why the hearing cannot be completed in 5 days.
There’s been debate in the legal community and in the social work community for a long time about the desire of some parents to make recordings of their interactions with social workers.
There’s a feeling among some professionals that it feels like it should be illegal, but when you drill down into it, it’s hard to find an actual law that prohibits it. (The Human Rights Act, which would protect interference with private and family life works for individuals who are owed duties by the State, and not vice versa)
There’s very good guidance from the Transparency Project here
The grey area has been whether there might be arguments about whether the making and keeping of audio or video recordings might constitute data processing for the purposes of data protection legislation – and if it does, then all sorts of duties arise, including very strict restrictions on the purpose and transparency on the person processing that data. But data protection legislation makes an exemption where the information is being handled for ‘household use’ (understandably , if you are keeping a diary, your friends / neighbours don’t have the right to see any entries you’ve made about them in the same way they would if say an Electricity Company was keeping records about them)
s21 (3) Data Protection Act 2018 This Chapter does not apply to the processing of personal data by an individual in the course of a purely personal or household activity.
So, what’s household use and what’s not?
This case throws up some interesting new questions – and it t like the national press are quite interested in it, so I’ll share my early thoughts.
The national press for example, the Daily Mail doing their usual Betteridge’s Law headline
Spoiler – this case does not provide a definitive answer to our issue.
Two important things to note
This is a decision by a Circuit Judge so it is not an authority that would bind any other Courts – they might be referred to it as a matter of interest in how another Judge decided the issue but they are not obliged to follow it.
The behaviour complained of here is pretty exceptional, and it may be hard to draw parallels with cases that aren’t so extreme.
That being said, let’s dive into it.
In this case, Dr Fairhurst sued a neighbour, Mr Woodward, for harassment nuisance and breach of data protection legislation about security cameras that Mr Woodward had installed. One of which was one of those high-tech doorbell security cameras , the particular model being “Ring” (which is the angle that the National Press are super interested in, and hence the title of this post)
In tests done for the purposes of the litigation, the Ring doorbell camera would routinely trigger when a person passed within 17 feet of the front door, and begin recording. It would record video footage and also make audio recordings of anyone having conversations within that distance, which is longer than the boundaries of the property and covers the street outside. (I think from later entries, the audio recording operates at a higher distance – i.e you wouldn’t get video footage of someone standing 17 feet away but you would get audio recording)
131.The Claimant’s pleaded case is that: images and audio files of the Claimant are personal data within the meaning of Article 4(1) of the General Data Protection Regulation 2016/679 (“the Regulations”); that the Cameras collected such personal data, that the transmission to the Defendant’s phone or computer or other device, the retention of any such images or sound on such a device and their onward transmission to others (whether neighbours, the police, or the cloud for storage) are processing of personal data within the meaning of Article 4(2) of the Regulations; that the Defendant as the person determining the purpose and means of that personal data is, and was at all material times a data controller within the meaning of Article 4(3) of the Regulations, and accordingly must comply with the principles set out in Article 5(1) of the Regulations.
I don’t think any of that analysis is disputed, and I so find. The question is whether the Defendant has processed such personal data lawfully and in accordance with the principles
I note that the Information Commissioner has provided Guidance on the meaning of ‘transparently’ in which she says that “Transparent processing is about being clear, open and honest with people from the start about who you are, and how and why you use their personal data”. Given the extensive findings that I have made relating to the manner in which the Defendant sought to actively mislead the Claimant about how and whether the Cameras operated and what they captured I am satisfied that the Defendant has breached: the first principle as he cannot be said to have processed data fairly or in a transparent manner
That would seem, subject to the caveats I started with, to be quite significant in terms of covert recording. The action of making and keeping the recordings was considered by the Court to be data processing, and doing so covertly would be in breach of the duty under the General Data Protection Regulations that the processing must be transparent.
What about the ‘household use’ element?
Annoyingly for my purposes, the judgment doesn’t really get stuck into s21 (3) and if it applies – although given that the Court found that there were breaches under the DPA 2018, it must be implicit that the Court did not consider that it did (although i always prefer it to be explicit)
Here’s as close as we get, which is more an argument about whether the processing was legitimate rather than s21(3). (Growls to himself – I really would have liked the s21(3) issue to be properly ventilated and ruled on, even though this isn’t a binding authority. I’ve looked carefully and done a couple of searches and I can’t find s21 (3) mentioned – it isn’t in the summary of the relevant DPA law or as a defence. Could it really have been overlooked by everyone???)
134…..I consider that the balance between the legitimate interests of the Defendant and the right of the Claimant to privacy and a home life are met in relation to the processing of video personal data from the Ring Doorbell, and I am so satisfied. That is because any video personal data of the Claimant is likely to be collected only incidentally as she walks past, unless the Claimant stands on the Defendant’s door and rings his doorbell, and I consider that his legitimate interest in protecting his home whether he is there or not are not overridden by her right to avoid such incidental collection on a public street, albeit in the vicinity of her home. However I consider the processing of audio personal data from the Ring Doorbell to be problematic and I will return to that
So the video data from the doorbell was okay, because unless the Claimant was actively on his property ringing his doorbell or walking past his home, you wouldn’t get video footage, and the Defendant’s interest in protecting his home outweighs that of the Claimant’s wish not to be filmed.
The driveway camera footage to protect his car from damage or theft was not.
I135. I consider that such interests are overridden by the Claimant’s right to privacy in her own home, to leave from and return to her house and entertain visitors without her video personal data being captured. Again, the audio personal data collected and processed by means of this Driveway Camera is even more problematic and detrimental than video data in my opinion. For those reasons I am satisfied that the Defendant’s processing of the Claimant’s personal data by means of the Driveway Camera is not lawful
On the Ring doorbell audio footage
138…I am satisfied that the processing of such audio data by the Defendant as data controller is not lawful. The extent of the range means that personal data may be captured from people who are not even aware that the device is there, or that it records and processes audio personal data, or that it can do so from such a distance away, in breach of the first principle. The Claimant has fallen into each of these categories during the relevant time. The living individuals whose conversation it captures may well be identifiable from the data itself or from other information which can be obtained from the data controller particularly in a case such as this where the Defendant knows and is familiar with his neighbours and can probably identify many of them by voice alone, and certainly identify them with both the audio and video data that these devices capture.
The Court made orders for the removal of the cameras and ring doorbell, though asked for enquiries to be made as to whether the Ring doorbell could be installed in such a way to prevent audio recording. Damages are yet to be determined.
So no definitive answer I’m afraid, but I am aware that more specialist GDPR lawyers are looking at this case and talking about it and if I learn more, I’ll let you know.
There are some other gems in this judgment
I found the Defendant Mr Woodard to be a very poor witness. He admitted that some of his evidence was incorrect. Different accounts given at different times contradicted each other. Some of it he changed in oral evidence as he went along, as difficulties with his evidence were revealed by Mr Phipps’ questioning. Much of his evidence was exaggerated. Some of it is contradicted by contemporaneous documentation or correspondence. Some of it was simply unbelievable. In several ways, I found him to be untruthful. I can believe almost nothing that he tells the Court unless it is supported by other evidence which is both credible and reliable, or the inherent probabilities. Where his evidence is in direct conflict with that of the Claimant and Dr Franich, I prefer their evidence
and a beautiful typo
34…He eventually accepted in cross-examination that the Driveway Camera was in wife range, which makes the story he told about draping a wire from one house to the other for the purposes only of set up, in my judgment, entirely concocted to attempt to support his position that it was never a functioning camera
VERY GRATEFUL TO JOHN GOSS on Twitter, who explained to me very nicely that s21(3) has been repealed and the appropriate law on household usage is now Article 2(2) GDPR (UK)
2. This Regulation does not apply to— (a) the processing of personal data by an individual in the course of a purely personal or household activity;
So the substance is the same, the reference I gave was wrong.
Once in a while, you read a case and think “well, I’ve never seen THAT before” and this is one of them.
It is an international family law case, which isn’t really my bag, but basically a family broke up in Poland, mum came to UK with the children, dad applied to Court here to ask for her to be made to return to Poland. There are some specific factors which the Court can apply to say “no, not in this case”
So the argument was whether Article 13 of the Convention applied
The Court is not bound to return of the child if the person, institution or other body which opposes its return establishes that –
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’
I’m being coy about the name of the case, because it rather gives away what is alleged to have happened. I’ll give it at the end.
There are all sorts of allegations of mistreatment and abuse within the case, but the stellar allegation is this one:-
On 28 July 2020 there was a serious incident in which the father crashed his car into an Opel Vivaro minibus in which the mother, the maternal grandmother and the children were travelling. His motive for acting in this way was, he says, to prevent the mother from removing the children from him without his consent.
Okay, you possibly weren’t expecting that. Let’s expand.
The mother’s case is that by the summer (when the twins were aged 4 and the older children will have been 10 and 8), against a background of abusive behaviour by the father, she realised that she needed to get out of the family home ‘for all our sakes’ even if just for a holiday. She sought help from her mother who hired a minibus with a driver and came to collect them while the father was at work. The mother says that she did not at that stage intend to leave permanently. The father was alerted to the mother’s plans by his grandmother. He immediately left work and drove towards the home in his Audi car. While he was en route, he spotted the minibus and recognised that his family were inside it. Based upon an account given by him the day after the incident [F267], he then diverted his car via ‘a field closed to traffic’ (I assume this to be a grass area separating the two carriageways) and crashed his car into the minibus which was traveling in the opposite direction to him. In his account given on 29 July 2020 he maintained that his manoeuvre had been aimed at blocking the path of the minibus, not actually crashing into it (an explanation he continues to advance); he suggested that the driver of the minibus had increased his speed (an assertion not supported by any other evidence) and said that he had been acting under the influence of emotion and strong agitation as he feared losing contact with his children. Included within the police disclosure is what appears to be a forensic analysis of the circumstances of the collision. It was estimated that at the time of the collision the father’s Audi was travelling at a speed of approximately 36 km/h (c.22.5 mph); the Opel minibus was travelling at a speed of approximately 54-58 km/h (c.34-36 mph). It was virtually a head-on collision. The front left part of the Audi (the driver’s side) collided with the front left part of the minibus. The minibus was caused to spin round to the right whereupon it crashed into a pillar on its other side. It sustained significant damage on both sides. The Audi, heavily damaged, spun round to the left following the collision.
Goodness. Well, after you crash your Audi into a minibus which your children were travelling in, you probably get a moment of clarity where the realisation of what you did comes into sharp focus.
In the immediate aftermath of the crash, the father left his vehicle and made his way towards the minibus. After unsuccessfully attempting to open a damaged door on one side of the bus, he made his way to the other side and proceeded to open the opposite door. The mother recounts (and the father has not denied this) that the father then grabbed the mother by the arms and attempted to drag her out of the minibus. The occupants of the bus were all screaming, in a state of considerable distress as a result of the father’s actions. According to the father, he opened the door in the immediate aftermath of the incident as he could hear one of the children shouting ‘Dad’ and wanted to check that he was ok. The father accepts that having opened the door he said to the mother words to the effect of ‘I will not let you steal my kids’. In a witness statement provided to the police, the driver of the minibus stated that the father was shouting at the two women in the bus; he could not hear what he was shouting as the children started to cry loudly. Another witness reported to the police that in the aftermath of the incident he spoke to the father who stated that ‘he had caused the traffic incident deliberately because his wife had once again tried to take his children’.
Insert gif of blonde-haired slowly blinking man here.
The minibus and the Audi both sustained serious damage in the incident. The mother and the children suffered scratches and bruises from the crash. The mother’s arms were also bruised from the father’s attempts to drag her out. Z suffered a sore neck which was placed in a collar by the firefighters who attended the scene. One of the twins had bruises to his chest from the seatbelt. F had bruising under his eye and on his eye as a result of hitting the seat in front of him. The extent of F’s distress was such that, according to the mother, he had to see a psychologist for therapy. The maternal grandmother had a loss of feeling in a right arm caused by the airbag opening. None of the family, however, required hospital treatment. The mother recalls being so shaken that initially she could not speak. She was given pills by a doctor to help her calm down. The results of a toxicology report later revealed that the father had been under the influence of amphetamines at the time of the crash. The incident led to the father’s arrest and detention in prison. He was charged initially with an offence that did not include any reference to drug misuse. Following receipt of the toxicology report the charge was amended to include that as an ingredient of the offence. The full charge is set out at [F186] and is expressed in fairly lengthy terms. It includes that: ‘[the father], intentionally, foreseeing the possibility of a catastrophy (sic) in land traffic and consenting to its committing, brought about a catastrophy (sic) in land traffic endangering the life and health of numerous persons…’
The charge also refers to the father having ‘intentionally violated’ the traffic rules by driving under the influence of amphetamine, having caused an ‘intentional collision’ with minibus and having ‘intentionally damaged’ it.
The father remained in prison for approximately six months and was released on 21 January 2021. He did not challenge his conviction, only the sentence.
The father sought to persuade the Court that this was not a situation to which Article 13 applies, to which I can only say, it is somewhat difficult to imagine what would if this didn’t.
In my judgment, the July 2020 incident (and its aftermath) considered against the background of seriousabuse which preceded it, results in the mother’s case satisfying Article 13(b) by some margin. I agree with Ms Jones’s submission that there are no protective measures which can be put in place which will sufficiently mitigate the risks. In entirely endorse Ms Demery’s characterisation of the mother and the children having experienced a ‘terrifying ordeal’ as a result of the incident. As Ms Demery says, it is only through good fortune that the incident did not result in serious injuries to any of the passengers. The charge which the father faces (or, on Ms Guha’s case, of which he has been convicted) is that he acted intentionally, having forseen the possibility of a catastrophe, and that by his actions he endangered the life and health of his children. He continues to deny that he acted intentionally, but for these purposes I must assume that this was indeed the case. It is difficult, in my view, to fathom how any father could have acted with such reckless disregard for the safety of his own children knowing (as he did) that they were travelling in the minibus at the time; indeed, notwithstanding his use of amphetamines, it is difficult to understand how he could have overcome the ordinary human instinct to press on a brake pedal and/or steer away from danger, but instead use his vehicle as a battering ram against the oncoming minibus. In my judgment (assuming that the charge he faces is established in full), the father’s actions in crashing into the minibus represent an act of coercive control at the top end of the scale. He was delivering a message to the mother that no matter what she attempted she could not leave his home with the children. If the father’s priority had been, as he asserts, to prevent the abduction of his children he could have turned his car around and followed the mother to her destination. A desire to prevent his children from being taken to stay with his mother-in-law does not, in my view, begin to explain his actions let alone justify them. His mindset at the time is demonstrated by his reaction to the crash: he expressed no remorse and no concern for the state of health of any of the occupants of the minibus; instead he proceeded to attempt to drag the mother from the vehicle, causing her further injury, shouting at her and making a remark which, in my view, was in the nature of a threat. I entirely accept Ms Demery’s view that the incident has had a lasting impact upon the older children. In my judgment, it is likely also to have had a lasting impact upon the other occupants of the vehicle including the mother and the two younger children (one of whom sustained a seatbelt injury).
In addition to the risks that the father would perpetrate physical and psychological harm against the mother and the children (which I have described above), requiring the children to return to Poland at thisjuncture would, in my judgment, be highly destabilising for the family. I accept the mother’s description of the father as ‘a dangerous man who feels entitled to do just what he wants’, on the assumption that her account of events is true. I consider that the fears she expressed on 4 November 2020, prior to her departure from Poland, were justified and that were she now to return – in the run up to the December hearing – she would once again, be consumed by fear which she would be unable to conceal from the children. As Ms Demery has noted, for F, returning to Poland would mean “I would have to go back to the country where I have endured so much and experienced so much because of my stepfather”. Both of the older children have memories of the abuse they suffered in Poland; I agree with Ms Demery that F’s reasons for wanting to remain in England are ‘cogent’. The July incident, Ms Demery notes, has had a lasting impact upon the older children and in my view the same is likely to be true for the mother and the younger children. In my judgment it would be intolerable for the children to have to return to Poland in circumstances where the family would be living in a state of fear for their safety. The children are very vulnerable and have had disrupted upbringings in which they have been exposed to abuse on multiple occasions. They should not now be expected to tolerate being required to return to Poland in the circumstances I have described. In all the circumstances, I have reached the conclusion that magnitude of the risks which the children would face upon a return coupled with the potential consequences for them were those risks to materialise are of such severity that they can be characterised as ‘grave’ within the meaning of Article 13(b). In my judgment, there is a grave risk that they would be exposed to both physical and psychological harm and that they would be placed in an intolerable situation.
I’m very grateful that nobody was more seriously harmed in the crash, and what a truly dreadful experience to have gone through.
An NHS Trust v D (A Minor : Out of Hours Application) 2021
D is 16 years old and living in Local Authority care. The Judge describes D as being ‘looked after’ and then in the same paragraph says that the Local Authority have parental responsibility for D. So we have to assume that the Local Authority have a Care Order or Interim Care Order for D, although that is not made explicit. D’s parents are not involved in her life (and to pre-empt questions, I don’t know from this judgment why this is or why D does not live with them)
“She reportedly took 16 tablets of 500mg of paracetamol at her care home at 0400am on the 4th October 2021. There was a long delay in presentation and she arrived in the department at 15:32. She refused investigations and she refused the antidote treatment for paracetamol toxicity. She was seen by the CAMHS team and was deemed to have capacity but they wanted to keep her in overnight to “cool off” and to reassess in the morning. The patient left the department at 20:00 and is back at her children’s home with her key worker and is refusing to come back.”
The NHS Trust made an application at 2.50am for D’s liberty to be restricted in that she would be taken to hospital and given treatment for this overdose.
We obviously don’t know whether the LA would dispute that, but it does seem extraordinary.
Looking at it just from the facts that we have, if the LA have a Care Order, they could use their powers under s33 to authorise the treatment, which would potentially be life-saving, without parental consent. It is clearly an emergency.
However, it becomes a little more complicated when dealing with a 16 year old who has refused treatment. If D had been unconscious, and the doctors wanted consent to treat her, then I would consider it wholly reasonable for the LA to have given that consent under section 33 of the Children Act 1989 in the emergency circumstances of the case.
Would section 33 allow the Local Authority to authorise the medical treatment where the 16 year old was not consenting and objecting to it, and where it would involve the 16 year old being forcibly taken to the hospital for treatment? On the wording of section 33, possibly. But of course, the action to be taken is a deprivation of the child’s liberty, and Local Authorities are only able to do that under the secure accommodation provisions of s25 of the Children Act 1989 or where the High Court has authorised it under the inherent jurisdiction. s25 doesn’t feel like a good fit here. This is not about the ACCOMMODATION being the only suitable place for D, it is about D being admitted to hospital for treatment.
So my gut feeling would be that the LA could not have consented to D being forcibly removed and moved to hospital for treatment, although they could have consented to the treatment itself. (Although they have duties to take D’s views into account on the latter, it would be possible to override them)
I think what I would probably have done is explained that to the Trust and lawyered up to get to the hearing to either support the Trust’s application or make my own application under the inherent jurisdiction for authorisation to deprive D of her liberty so that the treatment could be undertaken.
Having said that, an adult with capacity could in D’s position have refused treatment and discharged herself from hospital just as D has done, and the hospital/Court would need to have evidence to dislodge the presumption of capacity under the Mental Capacity Act 2005. The MCA doesn’t apply to people under 16, but D is OVER 16. And the MCA says specifically :-
(3)A lack of capacity cannot be established merely by reference to—
(a)a person’s age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
Which means that you cannot determine that D lacks capacity to make the decision that she does not want treatment even if that might mean pain, suffering or ultimately death BASED merely on her being 16 rather than older, OR that she’s taken what objectively seems like an unwise decision in taking so many paracetomol.
So I don’t think it is straightforward. I can perfectly see why the Court would make the decision authorising the forcible treatment of D, and I can also perfectly see why with a ticking clock and the Court dealing with it at 2.50am D ended up with nobody arguing against this action or the intrusion into her autonomy that it represents. The Court clearly considered it carefully. I can’t really imagine any Judge deciding the case any other way. If the time factor hadn’t been such an issue and if D had been represented and was giving cogent instructions that she did not want the treatment, it might have been a more difficult scenario but I think that the outcome would have been the same.
Really sadly, within the psychiatric unit, LT is by far the youngest patient and because of her huge needs she is being taunted by other patients as a result of the attention she gets from staff.
The Local Authority found a resource for her, which was an empty registered children’s home. They did not have staff with psychiatric training to staff it, so have had to hire and train staff specifically to care for LT.
They have done remarkably well to put this together, but it is a shameful state of affairs that in our country we don’t have something proper in place for all of the children like LT, and bespoke placements are having to be put together out of thin air. I don’t know what the solution is, but a starting point would be building units staffed by medically trained professionals aimed at managing and alleviating the problems of young people like LT – at present, they don’t fit well into adult psychiatric units or into children’s homes – we need specialised resources dedicated to helping these most troubled children.
Sadly, the way the news cycle and political attention work, I’m afraid that it will take a real tragedy to open eyes to the desperate need for an urgent solution to these cases. Everyone involved in these cases is working tirelessly and under huge pressure to make sure that the tragedy does not involve the case they are working on, but it is no way to run a system.