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Author Archives: suesspiciousminds

Reading the will

 

Of all of the various duties that one might imagine the President of the Family Division to have, being in charge of whether the late Princess Margaret’s will should be unsealed and opened to find out whether an individual is her illegitimate child (said individual having ABSOLUTELY NO evidence) is not one I had in mind.

Yet we learn today that it has happened not once, but twice.

 

Re Benmusa 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/494.html

 

This new judgment is short enough to set out in full

Sir James Munby, President of the Family Division :

 

  • I have before me, as President of the Family Division, an application by Malika Benmusa dated 6 March 2017 and received by the court on 9 March 2017.
  • The application was made on a Form N244. In answer to question 3 on the Form, What order are you asking the court to make and why? the applicant has said “To apply to unseal the will of the late Princess Margaret.” In answer to question 5, How do you want this application dealt with? she has placed a v against the words “without a hearing.” In answer to question 10, What information will you be relying on, in support of your application she has placed a v against the words “the evidence set out in the box below.” That reads as follows (I set out the manuscript exactly):

 

“My name was changed as a child as my date of birth, I belive around the age between 3 to 4 years old. My mother did not consent to this, but later on found out. I belive that both names are in the will. And it is explained. My father was in charge of my mother will, but failed to give me what is rightfully mine. So I belive this has been taken out of his hands and put back to the president of the Family Division (Sir James Munby.)”

Below that the applicant has signed the usual statement of truth.

 

  • The practice in relation to the sealing of royal wills, and the actual events surrounding the sealing of the will of HRH Princess Margaret, Countess of Snowdon, who died on 9 February 2002, were explained by the then President, Sir Mark Potter P, in Brown v HM Queen Elizabeth the Queen Mother and others [2007] EWHC 1607 (Fam), [2007] WTLR 1129, paras 6-10, and, on appeal, by Lord Phillips of Worth Matravers CJ, giving the judgment of the Court of Appeal, in Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others [2008] EWCA Civ 56, [2008] 1 WLR 2327, paras 4-8. The circumstances in which a royal will might be unsealed, and the process by which and the persons by whom such an application might be made, were considered by the Court of Appeal in Brown, paras 35-48.
  • The will of HRH Princess Margaret is contained in a sealed envelope which bears the following inscription:

 

“HRH PRINCESS MARGARET

(ORIGINAL WILL)

SEALED PURSUANT TO THE ORDER DATED 19th JUNE 2002

NOT TO BE OPENED WITHOUT LEAVE OF THE PRESIDENT”

I have personally examined the envelope, but I have not opened it. I have not read the will of HRH Princess Margaret nor do I have any idea as to its contents.

 

  • I have no hesitation in concluding that I should strike out the applicant’s claim. My reasons for doing so are shortly stated. The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor identify in any intelligible way either any link with HRH Princess Margaret or any link with her will. The applicant has not identified the grounds or the source or sources of the various beliefs upon which she relies. In short, her application is hopelessly defective.
  • The application is, accordingly, struck out.

 

 

 

The linked cases are more detailed, and set out the last time that this happened.

 

In that case, Mr Robert Brown alleged that he was the illegitimate son of Princess Margaret and that her will would prove it.  It was perhaps unfortunate that the only material evidence he had in this regard was his birth certificate, showing that the two people who brought him up were registered as his parents. If that proves it, then I myself am now ninth in line to the throne, I fancy.

 

  • In his affidavit of some 26 pages the Plaintiff states at the outset (at paras 1.1 and 1.2) that the purpose of his application is to identify whether the Royal wills make any provision for or concerning an illegitimate child, he having an interest in the matter because he claims that he is the illegitimate child of Princess Margaret.
  • As part of the matters relied on in support of that claim, he produces a Kenyan birth certificate signed by Cynthia Joan Brown (nee Lyall) in which she names herself as his mother and states that he was born in Nairobi in Kenya on 5 January 1955, his father being Douglas Richard Brown, a builder by occupation. The relevant Kenyan Ordinance (No 2 of 1928 dated 9 June 1928), exhibited to the affidavit of the executors’ solicitor, Mr Bridges, states its purpose as being “to Provide for the Notification and Registration of Births and Deaths and Other Matters Incidental Thereto”. It makes clear that the registration of the birth of a child in Kenya was compulsory (section 8(1)) and that the provision of false information or particulars was a criminal offence (section 20).
  • In law a birth certificate is prima facie evidence of all matters required by statute to be entered in the certificate: see re: Stollery [1926] Ch. 284 at 310 and Jackson v Jackson & Pavan [1964] P. 25 at 30. The birth certificate is thus prima facie evidence that the Plaintiff’s mother was Cynthia Brown. Furthermore, it is clear from the rest of his affidavit, that the Plaintiff accepts that Cynthia Brown, now deceased, recognised and brought him up as her own child. Curiously, he makes no reference to Douglas Richard Brown, named as his father in the birth certificate save, in passing, as follows. He states that he does not accept for the purposes of his application that his birth certificate is an accurate record on the grounds that such date is inconsistent with an entry in the ‘Births’ section of the Times of 7 January 1955 which gave his birthday as the 6 (not the 5) of January which, he adds, is also that recorded in the hand of “D R Brown” in his tax return for the year 1955. Nonetheless, in exhibited correspondence with the Treasury Solicitor, he refers to Douglas Brown as ‘the name of the gentleman that ‘raised’ me’; and in a letter addressed to Buckingham Palace in 2002 (see para 33 below) he makes reference to aspects of his upbringing by Douglas Brown. Thus it does appear that the Plaintiff was brought up by Cynthia and Douglas Brown (both now deceased) as their own child.
  • At paragraph 42 of his affidavit the Plaintiff states:

 

“I have not been told that I am the illegitimate child of Princess Margaret, or even that I was adopted. It is a conclusion I have arrived at be [sic] deduction.”

At paragraph 2, he explains that process of deduction as follows:

“[M]y conclusion that I am the illegitimate child of Princess Margaret is based upon a jigsaw of personal recollections, events, circumstantial evidence, conversations, reactions and extensive research.”

 

  • None of the matters subsequently set out at length remotely constitutes evidence supportive of the Plaintiff’s claim.
  • At paragraph 2.3 the Plaintiff asserts in respect of Princess Margaret that “there could have been a hidden pregnancy.” In support, he states that Princess Margaret was reported as ill with a “rattling cough” during the “early days of 1955” and that “photographs suggest a growing waistline compared with the elfin waist of 1954”. He also refers to the record of a Privy Council meeting held on 5 January 1955, ostensibly to discuss measures to be adopted in the face of a threatened rail strike, and states that “Examination of the reports and subsequent events of the rail strike left me unconvinced that the reason for the Council meeting was the strike.”
  • At paragraphs 4.1 to 4.4 of his affidavit he relies on his ‘Personal Outlook’ or ‘Instinct’ as being ‘the key element and driver’ of his claim, citing a sense of not belonging to the family environment in which he was brought up and refers to instances of members of his family in England having appeared reticent in responding to his enquiries about his origins. At paragraph 4.5 he describes the relationship of his ‘mother’ with his siblings as having been closer than with himself

 

 

 

The Court of Appeal (I think very kindly) had this to say about the foundation of his claim.

 

This belief is without any foundation and is irrational. It is, however, held in good faith

 

If you listen closely, you can hear a thousand conspiracy theories fermenting about this sealing of the will.

I think best left sealed up, in case the will establishes that James Delaney has no legitimate claim on Nootka Sound. You don’t want to upset James Delaney…

 

“I have a use for you”

Now wash your hands

 

The thing that makes family law worthwhile is that every time you think you’ve seen everything, a case comes along and makes you go “nope, not yet.”

This is one of those.

 

 

East Sussex v AG (Finding of Fact) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/536.html

 

This involved an infant, now aged 13 months old, but only a couple of months old when the strange things occurred. He spent time at three different hospitals, and in each of these, he was observed to have very high levels of alcohol in his system – high enough to be potentially life-threatening, and also high levels of anti-histamine.

How did the alcohol get there?

Well, the defence deployed by the parents (chiefly the mother) is that it must have happened through the application of sterilising hand-wash, which contains alcohol. He was in a hospital, parents wanted to make sure he didn’t get any germs, so hand-wash was liberally applied. It must have been that.

 

Mother’s case ended up being that she was rubbing hand-sanitiser into the baby’s arms thirty or forty times per day. That sounds like a hell of a lot – could a baby end up with alcohol levels like these as a result?

Here’s what the expert had to say about it:-

 

  • Whilst considerable time was spent on the validity of Dr McKinnon’s calculations of the amount of alcohol by volume that would be required to cause the levels of alcohol that were found in AG’s system (he having undertaken such calculations in response to being requested to provide an opinion on the likely doses given to AG), the central point made by Dr McKinnon, both in his report and in his oral evidence, is that, absent any evidence to suggest that the analysis of AG’s samples was compromised (and Dr McKinnon was clear that he had no reason to believe that the tests had not been performed satisfactorily), the samples taken from AG showed that he had very high levels of alcohol in his system on three occasions and a level of antihistamine in his system on one occasion.
  • Within this context Dr McKinnon was at pains to emphasise that, with respect to alcohol, the actual readings from the samples taken from AG indicated clearly that AG had been administered significant amounts of alcohol independent of the calculations that attempted to work out the precise doses of alcohol in milligrams required to cause those readings. Dr McKinnon repeatedly emphasised that the alcohol readings obtained from the samples were “extremely” high and, on occasion, the highest he had ever seen, or heard of, in an infant. Indeed, he was aware of no reported cases in which the readings had been higher. Dr McKinnon was clear that this indicated AG had ingested a large amount of alcohol.
  • Dr McKinnon was pressed extensively on the mother’s contention that the explanation for the high levels of alcohol in AG’s system were the result of her alleged use of high levels of hand sanitiser on AG. Accepting that calculations can only be approximate in circumstances where the physiology of individuals varies and the physiology of adult skin is different to that of infant skin, Dr McKinnon was nonetheless very clear that even had the mother used the hand sanitiser at a higher level than she claims, this would still not have been enough to produce the levels of alcohol seen in AG, even assuming a generous level of absorption of alcohol through the skin of an infant of 10% (the level of absorption in adults being between 2.5% and 5%). Within this context, Dr McKinnon also emphasised that the mother states that she used the hand sanitiser over the course of a day and that, accordingly, any alcohol that was absorbed would have begun to be eliminated between applications, further negating the possibility of alcohol from the hand sanitiser accumulating in AG’s blood to the levels seen. Dr McKinnon further stated that for the blood alcohol levels to be caused by AG ingesting hand sanitiser he would have needed to have ingested the equivalent of 44 “squirts” of that substance to reach the highest blood alcohol concentrations seen, ruling out, in his view, accidental ingestion from hands or toys as cause of the levels seen.
  • With respect to the anti-histamine, whilst conceding that anti-histamine can be passed from mother to infant in breast milk, Dr McKinnon noted that the mother had not been breast feeding for a considerable period of time prior to the antihistamine being detected in AG’s system, negating as a possibility that route of administration.

 

 

 

Note the ‘ingested the equivalent of 44 squirts of the hand-sanitiser above” – that’s not had it put on him, that’s ingesting it – swallowing it or such.

 

The Judge considered that possibility very carefully

 

 

  • I am further satisfied that the alcohol and anti-histamine that I have concluded was present in AG’s system and that caused each of the then unexplained episodes was deliberately administered to AG on repeated occasions as opposed to entering his system by way of some species of accidental or inadvertent administration.

 

(i) Hand Sanitiser

 

  • By the conclusion of their oral evidence, both parents appeared to be moving towards accepting that the levels of alcohol found in AG could not have been caused by the application of hand sanitiser to his hands and arms, the father being, ultimately, perhaps more accepting of this than the mother. In any event, I am satisfied that the levels of alcohol found in AG’s system were not caused by the use of hand sanitiser containing alcohol. I have reached this conclusion for two reasons.
  • First, I am not satisfied that the mother is telling the truth in respect of the levels at which she used hand sanitiser on AG whilst he was an in-patient having regard to the following matters:

 

i) The use of hand sanitiser assumed no significance at all in either of the police interviews of the parents conducted immediately after their arrest in May 2016. The mother claims that this was because she was not aware at the time of the interview that the hand sanitiser contained alcohol.ii) The mother’s first statement, directed by the court specifically to address the question of hand sanitiser and dated 14 August 2016, details lower rates of application than those for which the mother now contends, she stating that she first used hand sanitiser on AG on 26 April 2016, using two doses. Specifically, the mother stated “I also put 2 pumps into my hand and wiped it over both of AG’s hands and arms” (my emphasis). She states that she did the same on 28 April 2016. At the Evelina Children’s hospital the mother states that she used hand sanitiser on AG 30 to 40 times per day “at the highest”. Dr McKinnon’s report ruling out the use of hand sanitiser as the cause of the levels of alcohol found in AG is dated 4 November 2016. The mother thereafter filed a second statement dated 25 January 2017 in which she said of her first statement “what I mean is that I used two pumps on the left hand and arm and two pumps on the right hand and arm”, amounting to between 120 and 160 pumps per day. The mother denied that she inflated her account in her second statement to match the emerging medical evidence. However, given the size of the discrepancy between the two descriptions and the fact that the second statement followed the report of Dr McKinnon, I am satisfied that this is evidence of the mother having changed her account of the level of use in response to the conclusions reached by Dr McKinnon.

iii) In circumstances where the mother contends that her use of hand sanitiser on AG continued in the PICU the local authority sought confirmation as to whether members of staff saw the mother use hand sanitiser at the levels she claims whilst AG was on the PICU. By an email dated 25 August 2016, Professor Ian Murdoch, Professor of Paediatric Intensive Care at the Evelina confirmed that medical staff had not witnessed the mother use hand sanitiser on AG. Whilst that confirmation is in the form of an email rather than a statement in the proper form, it is corroborated to an extent by the evidence of the father who stated in his written and oral evidence that he saw the mother use hand sanitiser on only two occasions, stating in cross examination by Mr Bennett that he did not see the mother apply it with the frequency she claimed and did not himself see excessive use. In the circumstances, no person who came regularly into contact with the mother and AG whilst at hospital appears to have seen her using hand sanitiser on AG at the levels she claims.

iv) The clarification contained in her second statement is to the effect that the mother was using high levels of sanitiser from the outset, commencing that use on 26 April 2016. However, this appears to be at odds with a text exchange between the parents in respect of “hand gel” on 28 April 2016. On that date the father texted the mother stating “The reason I told you to use the gel stuff is cos there’s at least four kids in here with pneumonia including rose (sic) in front of us and her mum gave you a cuddle”). The mother replied “Oh ok I’ll make sure I use it a lot then”. In my judgment this exchange is inconsistent with the mother’s evidence to the effect that she was using between 120 and 160 doses a day on AG from 26 April 2016.

 

  • In the circumstances, I am satisfied that the evidence before the court suggests strongly that the mother has sought to construct, after the fact, an account of excessive use of hand sanitiser to seek to explain the high levels of alcohol found in AG’s system. This conclusion is of course also relevant to the question of whether the court can identify who administered alcohol to AG and I deal with this further later in this judgment.
  • Second, and in any event, I accept the expert evidence of Dr McKinnon that even on the revised figures for dosage provided by the mother in her second statement, the level of use suggested by the mother would not result in the levels of alcohol found in AG even if administered all at once and assuming a generous figure for absorption of ten percent to account for an infant’s skin being more porous than the skin of an adult. More importantly, I note again that Dr McKinnon was clear that the manner in which the mother contends she in fact administered the hand sanitiser, namely repeatedly over the course of the day, would not have been able to result in the levels seen because AG would have begun eliminating each dose over time after it was applied, meaning it could not accumulate to the levels seen. On this basis, even assuming a greater absorption than in adults, the use of hand sanitiser at the level contended for by the mother could not result in very high concentrations of alcohol seen. Dr McKinnon was equally clear that the father’s contention that AG might have ingested alcohol by means of hand sanitiser on his (AG’s) hands and toys was not a plausible explanation for the levels of alcohol seen in AG.
  • In the foregoing circumstances, I am satisfied that the high levels of alcohol in AG were not caused by the use of hand sanitiser on him

 

 

 

The Court found that the alcohol and anti-histamine at high levels in the baby’s test results were as a result of him having been administered those substances by one of his parents.

(ii) Human Agency

 

  • There is no evidence before the court of any other accidental or inadvertent mechanism for the administration of alcohol to AG whilst he was an in-patient. There is no suggestion of an organic cause for the levels of alcohol found in AG. In the circumstances, and being satisfied that the levels were not the result of the use of hand sanitiser, I am satisfied that there is no explanation for the administration of alcohol to AG other than human agency.
  • Whilst the father posits the possibility of negligent administration by medical staff or the use of antihistamine as part of AG’s treatment regime that medical staff subsequently failed to record, neither parent seeks to suggest that antihistamine came to be in AG’s system other than by way of the same being administered to him by somebody. On the evidence of Dr McKinnon, it is clear that fact that the mother in the past took antihistamine does not explain its presence in AG in May 2016 in circumstances where the mother had not been breast feeding for a month prior to the antihistamine being detected. There is no explanation before the court for the levels of antihistamine found in AG on 17 May 2016 beyond administration by human agency. I accept the evidence of Dr Ward that the presence of antihistamine in AG’s system indicates that someone administered that substance to him.

 

Perpetrator(s)

 

  • Satisfied as I am for the reasons set out in the foregoing paragraphs that the alcohol and antihistamine found in AG’s system whilst he was in hospital was administered to him at that time by human agency, I turn now to consider the question of who administered those substances to AG. In summary, I am satisfied that the alcohol and antihistamine were deliberately and covertly administered to AG by one or other of his parents or both of them.
  • There is no evidence before the court that alcohol and antihistamine were administered to AG by one of his treating doctors or nurses. As I have already observed, neither parent has sought to suggest explicitly that the alcohol and antihistamine found in AG’s system was administered by a member of medical staff. Further, in my judgment, there is evidence before the court that positively points away from a conclusion that it was one of AG’s treating doctors or nurses who was responsible. Namely, that AG suffered unexplained episodes that I am satisfied were caused by the administration of alcohol and/or antihistamine in three different medical locations that do not share common staff. In my judgment this undisputed fact militates against the possibility that a member of staff was responsible. This conclusion is in my judgment reinforced by the fact that AG’s unexplained episodes ceased immediately upon the parents being arrested notwithstanding that AG remained an in-patient in hospital for a period of time thereafter. Neither parent has sought to allege it was another family member who administered alcohol and anti-histamine to AG and there is no evidence to that effect before the court.

 

 

 

The Judge carefully explained to the parents that it would be in their best interests now to be honest about what had happened.

 

parents who fail to be frank with the court regarding how their child came to suffer harm may often believe that they thereby put themselves at an advantage. In fact, the very opposite is true. The family courts are not concerned with punishment but with the welfare of the child. An early and frank admission by a parent who has harmed their child allows the court to establish accurately what occurred, to direct a fully informed assessment of risk and, in an appropriate case, to formulate and approve a plan for the safe return of the child to the parent, if necessary with a tailored package of support to address the deficits that first led to the harm. Conversely, where a parent or parents make a conscious decision to hide the truth, the court is much more likely to be left in a position where it will be unable to conclude that the parent can safely parent the child in the future. This is especially the case where the court is compelled to conclude (as it is entitled to do) that the harm was caused by one or other or both of the parents but that it is not possible to tell which. In such a situation, additionally, the parent who did not inflict the harm is materially prejudiced by the failure to be frank of the parent who did.

 

CONCLUSION

 

  • In conclusion, I make the findings set out in the Schedule appended to this judgment. I will allow a short period for the parents to consider the findings made by the court and to respond by way of a further statement to those findings. I will then give directions for the welfare stage of this hearing.
  • Finally, for the reasons I have set out, I am satisfied that neither of the parents has been entirely frank with the court. I am satisfied that they have each made a conscious choice to withhold certain matters rather than giving an account of all that they know about the circumstances in which AG came to have extremely high levels of alcohol and levels of antihistamine in his system. Within this context I have had to try and divine what happened to AG in circumstances where his parents have chosen not to assist the court fully with that task. This judgment represents my considered attempt to discharge the duty of the court in those circumstances on the evidence available to me at this hearing. In so far as the mother and the father consider that this judgment does not represent the full picture of what befell AG, the responsibility for that lies solely at their respective doors.
  • There now comes a very important decision for the parents. To adopt the words of Lord Nicholls of Birkenhead in Lancashire CC v B at 588, in the present case AG is proved to have sustained significant harm at the hands of one or other or both of his parents. Within this context, the parents have a choice. They can consider the findings of the court and choose now to provide the information that I am satisfied that they have thus far withheld from the court to ensure that the local authority assessment that will follow this hearing constitutes a fully informed assessment of risk and allows the court the best possible opportunity to determine whether AG can be safely returned to their care. Conversely, they can continue to withhold information from the court and from professionals and increase thereby the risk of the court of having ultimately to conclude that AG cannot be safely returned to their care.
  • That is my judgment.

 

SCHEDULE OF FINDINGS 

  • Whilst an in-patient at the local hospital and the Evelina Children’s Hospital in London, AG experienced repeated unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and ventilation.
  • No medical explanation for AG’s episodes was found despite extensive testing being undertaken.
  • Specialist blood tests undertaken on 17 May 2016 identified high levels of alcohol in samples of AG’s blood taken on 27 April 2016, 10 May 2016 and 17 May 2016.
  • Specialist urine analysis undertaken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in AG’s urine.
  • Analysis of a sample of AG’s gastric aspirate taken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in his gastric aspirate on that date.
  • The levels of alcohol found in the samples taken from AG were extremely high and would have caused serious toxicity and could have been potentially fatal to him but for the emergency treatment he received as an in-patient.
  • Each of the unexplained episodes experienced by AG at the local hospital and the Evelina Children’s Hospital in London were caused by AG being administered alcohol and / or antihistamine, including those episodes in respect of which blood and urine testing was not undertaken.
  • Each of the unexplained episodes was caused by the mother or the father or both of them deliberately and covertly administering alcohol and /or antihistamine to AG.
  • In deliberately and covertly administering alcohol and /or antihistamine to AG, the mother or the father or both of them caused AG to be subjected to extensive, unnecessary, uncomfortable and painful invasive tests to try and ascertain the cause of the episodes (including but not limited to MRI imaging, electrophysiology, two lumbar punctures, genetic and metabolic testing and video telemetry) and extensive, unnecessary uncomfortable and painful treatments (including, but not limited to, extensive blood testing, catheterisation, intravenous and arterial cannulation, intubation, mechanical ventilation and the administration of antibiotic, anticonvulsant and anti-reflux medication).

 

 

 

 

Extraordinary case – I’ve never come across anything like it.  Luckily, when it comes to matters of hand-washing within a hospital setting, we have the Marx Brothers to give us a visual demonstration.   (In this scene, Groucho has been pretending to be a physician, Dr Hackenbush. He is about to be unmasked by a real doctor, Dr Steinberg. What follows is a masterclass in stalling for time)

 

 

Jack Russell and lackadaisical assessments

In which a Judge describes family placement assessments as ‘lackadaisical’  and orders fresh assessments with the LA to pay for them. And in which I try, but fail, to avoid the pun of “ruff justice”

Cheshire East Borough Council v PN & Ors (Flawed Local Authority Assessments) [2017] EWFC 20 (03 March 2017)

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/20.html

 

it is a matter of very considerable dismay to the court that it has been necessary, on the second day of this final hearing and having heard the evidence presented by the local authority in support of its case, not only to grant the maternal aunt’s application for a further assessment of her and her partner by an independent social worker, but to direct a further assessment of the paternal great aunt and her husband by an independent social worker, in order to remedy patent defects in the local authority’s assessments caused by social work that has, at best, been lackadaisical and, at worst, is in plain contravention of the applicable statutory guidance and long established good practice.

 

Let us explore further

 

 

There were two assessments – one  was of maternal aunt and her partner, and one of paternal great aunt to care for a baby where there had been findings that the parents had caused him significant head injuries.

 

Problem 1  – although the assessment was of the aunt and her partner, the assessor hadn’t in fact met the partner – she had one short phone conversation with him, whilst he was at work.  AND she just ended the assessment once she knew of the findings, unilaterally.

 

 

 

 

 

19.The assessment conducted by Ms Fallows makes it plain that the assessment was intended to be of both the maternal aunt and her partner, CS (at times incorrectly referred, as I have already noted, to as ‘CN’ in the assessment). Notwithstanding this, Ms Fallows was forced to concede in cross-examination that, apart from a very brief conversation with him on the telephone whilst he was at work, she had not spoken to CS as part of her assessment. It would appear that whilst Ms Fallows had planned to speak to CS (and indeed had cancelled a number of appointments with him) she changed her mind after becoming aware of the outcome of the finding of fact hearing, apparently concluding without discussing the findings with CS (and possibly before she had discussed the findings with the maternal aunt) that the findings made by the court were simply fatal to any proposed placement of PN with the maternal aunt and CS.

 

 

20.Having listened to the evidence of Ms Fallows, I was left entirely unclear why she considered she was justified in drawing such a definitive conclusion without first speaking to CS to establish the extent to which he constituted a protective factor and, accordingly, the extent to which his presence in the household mitigated any concerns Ms Fallows had regarding the maternal aunt’s capacity to protect PN from the identified risk of harm presented by the mother and the father. Whilst it might be the case that CS does not constitute a protective factor, it might also be the case that he does. The point is that Ms Fallows made no professional effort whatsoever to assess the position before reaching her conclusion that the assessment of the maternal aunt and her partner was negative.

 

 

21.In particular, Ms Fallows took no time to explore with CS his understanding of the findings made by the court, his acceptance of those findings, his attitude towards those findings and, in light of the information provided by him, the nature and extent of his ability to protect PN from the identified risk of harm consequent upon the findings of the court, including those in respect of the maternal aunt. This despite the fact that Ms Fallows’ task was to assess the capacity of the maternal aunt and CS to protect PN from harm, including from any person who presents a risk of harm to her. In the circumstances, Ms Fallows assessment of the maternal aunt and her partner contains a patent lacuna and is fundamentally flawed.

 


Call me old-school, but it is rather tricky to assess someone without meeting them.

 

Problem 2  – the key issue in the assessment of great aunt was obviously going to be her  ability to keep the baby safe from the parents. That wasn’t covered in the assessment at all.  The section on risk dealt solely with stair guards, the green cross code and a Jack Russell.   (I am not even kidding)

 

22.The assessment of the paternal great aunt and her partner by Mr Twigger gives the court even more cause for concern and is of extremely poor quality. It comprises little more than a collection of bare statements of fact with virtually no evaluation or analysis, leading to conclusions that are so simplistic and anodyne as to be little more than a statement that the paternal great aunt and her husband have successfully raised children before and would be able to promote PN’s identity.

 

 

23.However, of most concern is the manner in which the purported assessment deals with the key issue when assessing the viability of the placement, namely the ability of the paternal great aunt and her partner to protect PN against the identified risk of harm presented by the mother and the father. In this respect, the relevant part of the initial assessment in November 2016 and the same part of the updated assessment completed following the finding of fact hearing read in the following identical terms:

 

 

 

“Ensuring safety (Describe the applicant’s capacity to protect the child from harm and danger, including any person who presents a risk to them.)

 

[NM] and [HM] would wish to ensure that PN is taught age appropriate life and safety skills as she grows older and matures in their care. From an early age this would include issues such as safety around the home and they would of course ensure that they had the necessary safety equipment in place once PN became mobile. This would incorporate such items as stair gates and plug guards etc. As PN grows older she would be taught basic road safety and personal safety e.g. not talking to strangers and always telling someone where she is going which is what the couple have taught their own children and then grandchildren.

 

The couple have a dog that is a Jack Russell dog. As stated elsewhere in this report [NM] and [HM] have stated that they are aware that PN becomes alarmed by sudden noises and for this reason if their application were to be successful they have suggested that they would be willing to re-home the dog to their nephew who also has a Jack Russell”

 

24.Despite the Form C prompting the need to include harm and danger from any person who presents a risk to them, there is no reference at all in the updated assessment to the plainly identified risk of harm presented by the parents or to any engagement with the paternal great aunt and her husband regarding their response to that identified risk of harm and the manner in which they would propose to ensure PN is protected from such risk. Indeed, the courts detailed findings of fact do not appear to be set out anywhere within the body of the updated assessment.

 

 

25.Of further concern is that the relevant part of the initial assessment in November 2016 and the same part of the updated assessment completed following the finding of fact hearing are in identical terms. Indeed, it is plain that the latter has simply been ‘cut and pasted’ from the former. Within this context, the concern engendered by Mr Twigger’s assessment is heightened still further by Mr Bolt confirming during his oral evidence that the paternal aunt and her husband have not been shown the finding of fact judgment of this court, are not aware of the precise terms of the court’s findings against the mother and the father and that the same have not been discussed with them by the local authority.

 

 

26.In the circumstances, Mr Twigger’s assessment of the paternal great aunt and her husband is wholly inadequate and fundamentally flawed. Whilst Mr Twigger deals with road safety, stairgates and a loud Jack Russell, there is no assessment or evaluation whatsoever of the central question of the ability of the paternal great aunt and her husband to protect PN against the clearly identified risk of harm presented by the mother and the father, nor does any attempt at all appear to have been made to undertake such an assessment. The inevitable result is that there is no assessment of this cardinal issue before the court in relation to those proposed carers.

 

 

See, I told you I wasn’t kidding…

An unmanageable risk

 

 

27.Finally, there were also very real difficulties with the evidence of Mr Bolt when it came to the question of the capacity of the paternal great aunt and her husband to protect PN against the identified risk of harm presented by the mother and the father.

 

 

28.Despite the fact that he claimed to have considered the assessments of both Ms Fallows and Mr Twigger when arriving at his final care plan, Mr Bolt demonstrated a marked inability to recall even basic elements of the contents of those assessments relevant to the question of capacity to protect. In particular, he had apparently not identified the patent and obvious deficiencies in each of those assessments that I have outlined above. Further, he was not able to assist the court with even the most basic information concerning other matters highly relevant to the question of the capacity of the paternal aunt and her husband to protect PN from harm. For example, having revealed that the father had, between his release from a recent custodial sentence and until last Thursday, been permitted by the paternal great aunt and her husband to sleep at their property because the paternal great aunt was not prepared to see the father sleep on the streets, and that the father had not disclosed this information, Mr Bolt was unable to assist the court with answers to the very obvious questions that flowed from that information and which the court would have expected an allocated social worker to investigate.

 

 

29.In particular, Mr Bolt was entirely unable to assist the court with how long the father had stayed with the paternal great aunt and her husband for, whether the paternal great aunt and her husband had volunteered the information that the father had been staying with them or had been discovered allowing him to do so and whether the paternal great aunt and her husband considered it appropriate to allow the father to reside with them when they were putting themselves forward as carers for PN. Mr Bolt’s evidence reached a remarkable nadir when he claimed, in answer to questions put by the maternal aunt regarding number of contacts the paternal great aunt had had with PN (in the context of the paternal great aunt having only recently commenced contact with PN and her husband having had only one contact with PN despite the fact he is retired and does not have work commitments), that it was “not necessary” for him to know the details of how many times the paternal great aunt had had contact with PN since the very recent commencement of that contact.

 

 

30.Accepted good practice in respect of assessments is plainly established by statutory guidance and longstanding good practice. The statutory guidance Working Together to Safeguard Children (HM Government March 2015) sets out at [35] the principles and parameters of good assessment.

 

 

31.These principles and parameters include the need for such assessments to be rooted in child development and informed by evidence, to involve children and families, to adopt an integrated approach, to be a continuing process and not an event and to be transparent and open to challenge. It is self-evident that the need for the assessment to involve children and families and to be informed by evidence will require information to be gathered from all of those adults in the child’s household or in the household it is proposed the child should live.

 

 

32.The three domains of the assessment specified at paragraph [36] of the guidance should be the child’s developmental needs, the parents’ or carers’ capacity to respond to those needs and the impact and influence of wider family, community and environmental circumstances. Once again, it must be self-evident that an assessment of the carers capacity to respond to the child’s needs (including their capacity to respond to the child’s need for protection against an identified risk of harm) must involve contact and communication with each of the carers who are, or it is proposed will be, responsible for meeting the child’s needs.

 

 

33.At [37] the guidance makes clear that the interaction of these domains requires careful investigation during the assessment and that it is important that (a) information is gathered and recorded systematically, (b) information is checked and discussed with the child and their parents/carers where appropriate, (c) differences in views about information are recorded and (d) the impact of what is happening to the child is clearly identified. With respect to the assessment and management of risk, at [47] the guidance further provides that in order to manage risks, social workers and other professionals should make decisions with the best interests of the child in mind, informed by the evidence available and underpinned by knowledge of child development. Overall, Working Together makes clear that the aim of an assessment is to use all the information to identify difficulties and risk factors as well as developing a picture of strengths and protective factors.

 

 

34.Within this context, when undertaking an assessment concerned with establishing capacity to protect against an established risk of harm, in addition to ensuring that an assessment of the carers capacity to respond to the child’s need for protection against an identified risk of harm involves discussions with each of the carers who are, or it is proposed will be, involved in meeting the child’s needs, it is also surely self-evident that the assessment must include a process that ensures that those who are the subject of the assessment of their capacity to protect from risk of harm are aware of what the precise nature of the risk of harm is. Further, it must likewise be self-evident that having been made aware of the precise nature of the risk of harm, each of those being assessed must be the subject of a comprehensive evaluation of their understanding of and attitude towards that risk in order to establish the extent to which they have, or do not have, that capacity.

 

 

35.Having regard to the summary of the deficiencies set out above in respect of each of the assessments, and to the summary of the applicable statutory guidance also set out above, I am entirely satisfied that the assessments completed by Ms Fallows and by Mr Twigger are inadequate and fundamentally flawed. I am further satisfied that, in the circumstances, the assessments do not permit the court to reach a properly informed or fair decision at this final hearing as to which of the placement options before the court best meets PN’s identified welfare needs or, indeed, whether either is capable of doing do. The patent deficiencies in the assessments are such that, the court having heard Ms Fallows and Mr Bolt give evidence and be cross-examined, Mr Haggis on behalf of the local authority has been compelled to concede that the assessments were each insufficient to allow the court to reach a properly informed and fair decision. Notwithstanding the concession made by the local authority I make clear that this is my conclusion in any event having read the assessments and heard the oral evidence to which I have referred.

 

 

36.With respect to the assessment of the paternal aunt and her partner it is plain that the local authority simply decided, unilaterally, that the finding of fact judgment justified it terminating the assessment notwithstanding that that assessment of the couple was plainly incomplete and failed properly to address the key issue with which the court would be concerned at the final hearing. With respect to the assessment of the paternal great aunt and her husband, the assessment is entirely cursory and fails to engage in any meaningful way with the key issue that the court is required to resolve in determining whether the placement can meet PN’s identified welfare needs. It is apparent that, following the outcome of the fact finding hearing, the local authority felt that it could simply take a short cut by terminating prematurely the assessment of the maternal aunt and her partner and by undertaking the most cursory of updating assessments of the paternal great aunt and her partner. That is an entirely impermissible approach in circumstances where the process of assessment must not only constitute a comprehensive assessment of the child’s identified welfare needs and how those needs are best met in accordance with the statutory guidance, but also must be fair and be seen to be fair.

 

 

37.Before the court takes a final decision as to the welfare of a child it must be astute to ensure that the case has been fully and properly investigated and that all the relevant evidence necessary for the decision is in place, both to ensure that the court makes a fully informed decision as to the child’s welfare and to ensure that the proceedings are fair, the former being an aspect of the latter. Having regard to the matters set out above, I am wholly satisfied that the court is not in a position to conclude that the central question of respective capacities of the maternal aunt and her partner and of the paternal great aunt and her husband to protect PN from the identified risk of harm from the mother and father has been full and properly investigated and that all relevant evidence necessary to determine that issue is in place before the court.

 

 

38.Within this context, and with much regret, I am entirely satisfied that it is not possible to conclude the final hearing fairly without further assessment of the maternal aunt and her partner and the paternal great aunt and her husband, in particular as to the central question of their respective capacities to protect PN from the identified risk of harm from the mother and father. In the circumstances I have set out above, those additional assessments are plainly necessary for the court to deal with this case justly. I am further satisfied that the additional assessments should be conducted by an Independent Social Worker and should be funded by the local authority. In light of the patent omissions in the assessments of the local authority as identified above, those who are to again be assessed cannot reasonably be expected to have any confidence in a further local authority assessment. Further, in circumstances where the further assessments are required solely by reason of the local authority having comprehensively failed to discharge its duties I am entirely satisfied that it should pay for the additional assessments that are require in consequence of that default.

 

No comment

 

This rather leapt out at me in a Kent County Court case. No great legal significance. But. Well, no comment

http://www.bailii.org/ew/cases/EWFC/OJ/2017/B5.html

 

Kent County Council v B, W & S (Combined Judgment : Delay : Refusal to Split Siblings) [2017] EWFC B5

12.For completeness, I recall that matters were somewhat delayed by the revelation that the woman Solicitor representing Mr. S, the father of the youngest child, was having some sort of relationship with the mother’s brother, Mr. B, a witness and Intervener in the case which might have produced some sort of confusion and conflict. That Solicitor, perhaps unwisely, has attended both this Court Hearing and been seen in the public foyer, and also attended at the Crown Court, presumably to support Mr. B. It was necessary therefore for Mr Kenny, Mr. S’s Counsel, having properly notified the Court of this, to receive his professional instructions from a newly appointed Solicitor in order to ensure a scrupulously fair Article 6 complaint Hearing.

 

 

13.This matter was reported to the Designated Family Judge for Kent and also to this Court’s High Court Family Liaison Judge. I gather that some sort of complaint has now been made by the Local Authority about that Solicitor’s conduct.

 

 

14.Regrettably this is the third occasion to my own direct knowledge when an issue of conflict has arisen through this particular Solicitor’s potentially conflictual behaviour in becoming personally close to parties or witnesses. I do not need to spend any more time on that issue beyond reflecting that it causes delay by having to have a new Solicitor representing a client and also, no doubt, causes extra costs to the Legal Aid Fund.

 

 

Keehan as mustard ? Costs order against Lord Chancellor

 

Just when you think you’ve seen it all regarding Human Rights damages claims tacked onto care proceedings and costs, Keehan J delivers this curveball.

 

Re H (A minor) v Northamptonshire CC 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/282.html

 

And we’re now seeing two High Court Judges waving to each other from opposite sides of the Grand Canyon on this. On one side, Keehan J is doing everything possible to make sure that the parents get their damages un-gulped up by the Legal Aid Agency and the stat charge, and on the other, Cobb J is saying that Parliament set up the stat charge in this way and if they’d intended to make an exception for the stat charge applying on care proceedings so that all the damages got swallowed up, they’d have done that. And that damages aren’t always the answer anyhow.

(Keehan J is playing a Lord Denning type role here, in manipulating and coaxing the law into shapes like a Venetian glassblower to get to the morally right outcome. I think myself that Cobb J is right in law, but who knows until the Court of Appeal tell us?)

 

The stat charge is tricky to understand here, so here’s an analogy.

Larry goes to a restaurant. As he is leaving, he steps on a woman’s foot. He shouldn’t have done it, he was being careless. He apologises, and offers to buy the woman a drink. She’s happy with that solution. The restaurant manager, however, says  “This woman ate a 3 course meal here for free tonight because she had a voucher, but that cost me money. So if you want to pay for a drink for her, that’s fine, but you have to give me all of the money that her food would have cost. If you don’t want to do that, you can just give me the money for the drink, but she get no drink and no money”

 

(Parents get free legal aid in care proceedings, even if they are millionaires. But if they win any money from a ‘connected’ case – even if that is damages for being badly treated, that money goes FIRST to pay back the legal aid agency not just in the case where they won the money but ANY legal aid they’ve had. Even though it was ‘free’. Only if there’s anything left does the parent get anything.  Because the legal costs in the care proceedings will usually dwarf the damages (just as a 3 course meal is more expensive than a drink), the only way that the parent can get any money is if the costs are paid too. And that’s tricky, because the law on costs is very clear that there are limited circumstances in which that is possible.

 

(The Kirklees blog spells all of that out, but I thought people might welcome an easier solution)

 

In this case, the parents had encountered a breach of their human rights, relating to section 20 abuse (but even this now, may be overtaken by the Court of Appeal guidance in the Hackney case where they suggest that failure to follow the guidance on s20 isn’t automatically a human rights breach). The LA made an offer to settle, and the parents lawyers understandably wanted to know, before they accepted or refused it, whether the parents would get that money, or whether it would be swallowed up by the Legal Aid Agency.

The LAA initially told them that the stat charge would bite and gobble up all of the damages. They then changed their mind, faced with being told that they’d be joined as a party to the High Court proceedings to fight that out.

It was submitted by the Lord Chancellor that HRA damages should be assessed without regard to the fact that the claimant is legally aided. I agree and accept that the assessment of the quantum of damages in a HRA claim should be made without regard to the fact that the claimant is legally aided. Where I part company with the Lord Chancellor is in respect of the submission that the impact of the statutory charge on the extent to which the claimant will receive any part of the damages awarded is irrelevant to a court assessing damages and then considering whether to make consequential orders for costs. I emphatically disagree.

 

(This is the exact opposite of Cobb J’s conclusion in the Kirklees case)

A very cunning scheme was devised, making use of CPR  rule 46.2  (That noise you hear is every family lawyer in the country shuddering at the mention of the Civil Procedure Rules. It gives us the same visceral reaction as the idea of standing up and addressing the Stade Francais in our schoolboy/girl French)

 

“46.2.— Costs orders in favour of or against non-parties

(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must—

(a) be added as a party to the proceedings for the purposes of costs only; and

(b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.

(2) This rule does not apply—

(a) where the court is considering whether to—

(i) make an order against the Lord Chancellor in proceedings in which the Lord Chancellor has provided legal aid to a party to the proceedings;

(ii) make a wasted costs order (as defined in rule 46.8); and

(b) in proceedings to which rule 46.1 applies (pre-commencement disclosure and orders for disclosure against a person who is not a party).”

 

 

And the scheme here was complex (and I don’t think anyone will ever get away with it again, so I’m not going to spell it out in detail) –  the parents get the damages, the LA pay the costs. The Court then ordered the Lord Chancellor to pay MOST of the LA’s costs, to compensate them for the fact that it is only the Lord Chancellor failing to waive the stat charge in this case (which she has the statutory power to do) that led to the LA having to pay the costs.

There’s very little in law that I enjoy more than the Lord Chancellor losing in Court – a pleasure I did not get tired of during Chris Grayling’s wondrous tenure, and though Liz Truss hasn’t been in post long, she hasn’t really done herself any favours, so this is a fun read (though very very technical)

But I don’t think it is an entirely safe decision.

 

Firstly,

 

  • The local authority is forcibly critical of the second email sent on behalf of the LAA by Mr Rimer on 22 December. Mr Tyler submitted that the position of the LAA as set out in that email, namely that the statutory charge would apply to any damages awarded to H in respect of costs incurred under his public funding certificate in respect of the care proceedings, was clear and unequivocal. In his and Mr Mansfield’s skeleton argument it is asserted:

 

“48. The LAA has inappropriately – almost certainly unlawfully – sought to recoup the cost of the provision of the ‘non-means, non-merits’ legal aid available for the claimant from the award of damages to which he is entitled due to the breaches of his human rights.

49. Only at the eleventh hour – and when faced with the prospect of a High Court trial on the issue – has it adopted an approach which is correct in law.

50. In so doing, it has caused the unnecessary attenuation of both the HRA and the care proceedings.”

 

 

Okay, those are submissions and not the judgment, but I don’t think you can properly conclude that the LAA was unlawful in following the LASPO provisions. The provisions are stupid and ugly and unkind and mean-spirited, but they are lawful provisions. There isn’t (yet) a section 6 challenge that the LASPO provisions in this regard are themselves incompatible with the HRA. It would be interesting to see the outcome if someone takes it that far – LASPO is far from beloved as a piece of legislation.

The point, I presume is making use of Keehan J’s previous side-step of the stat charge by claiming that the HRA proceedings ‘are not connected’ to the care proceedings.  I am afraid that I am with Cobb J on that – there may be occasions when the damages case is genuinely ‘not connected’ to the care proceedings, but these clearly were.

 

Glad you're back George

Glad you’re back George

 

 

But more importantly

 

  • Ms Stout’s principal submission was that the court had no power, on the facts of this case, to make an order for costs. She relied upon the provision of the CLA(C)R 2013 and in particular on Part 3 and regulations 9(1), 9(2) and 10. In a case where one party is legally aided (i.e. the claimant) and one party is not legally aided (i.e. the local authority) she contended that the effect of regulation 9(2) was that an order for costs could only be made against the Lord Chancellor if all the conditions set out in regulation 10 are satisfied.
  • It is common ground between the parties that the conditions of this regulation are not satisfied in this case.

 

So not possible to make the costs order against the Lord Chancellor, because the power to do so sets out a condition that has to apply and the condition doesn’t.

That wasn’t the end of it though

  • I regret I do not accept the submission that the court does not have the power to make a costs order against the Lord Chancellor in this case. I so decide for the following reasons.
  • The provisions of s.26 LASPO only apply where costs have been awarded against a legally aided party. In these circumstances the order for costs “must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances …”: s.26(1) LASPO. A s.26(1) costs order “means a costs order against a legally aided party where cost protection applies”: reg.2(1) CLA(C)R 2013. The phrase ‘cost protection’ means “the limit on costs awarded against a legally aided party in relevant civil proceedings, set out in section 26(1) and (2) of the Act: reg.2(1) CLA(C)R 2013. All of these provisions are based on a costs order having been made against a legally aided party. In this case, of course, no order for costs has been or will be made against the claimant.
  • The only possible basis on which the Lord Chancellor’s submissions on this issue could succeed is if I interpret s.26 LASPO and the CLA(C)R 2013 to mean that it applies if there is the ‘potential’ for a costs order being made against a legally aided party. The clear wording of the section and the regulations simply do not permit such an interpretation.
  • Regulation 9 of CLA(C)R 2013 is headed ‘Effect of this Part’. Regulation 9(1) provides that ‘This Part applies where cost protection applies’. If I insert the clause set out in Reg 2(1) for the definition of ‘cost protection’, reg.9(1) would read ‘This Part applies where the limit on costs awarded against a legally aided party in relevant civil proceedings set out in section 26(1) and (2) of [LASPO] applies’. Cost protection does not apply in this case and thus the provisions of Part 3 of the CLA(C)R 2013 do not apply in this case, most especially regulation 9(2).
  • It is plain that regulations 9 and 10 apply in respect of the Lord Chancellor as the funder of legal aid to a party to civil proceedings. Reg.10 only applies where ‘proceedings are finally decided in favour of a non-legally aided party’. It is designed to provide recompense to that party, in specified and limited circumstances, where there is a shortfall between the costs incurred by that party and the limited costs which the legally aided party is ordered to pay, in consequence of which the non legally aided party will suffer financial hardship. Once again those circumstances do not arise in this case.
  • I am completely satisfied that

 

(a) the CLA(C)R 2013 has no application or relevance to this case; and(b) they do not preclude the court from making a costs order against the Lord Chancellor in appropriate circumstances, still less do they provide the Lord Chancellor with a ‘blanket immunity’ against an order for costs as a third party or otherwise.

 

 

Keehan J summoned up the spirit of JPR Williams and  David Duckham and jinks and weaves to make his side-steps work. It is beautiful to watch.  But I think there’s a forward pass in there somewhere.

 

 

Human rights, damages and costs – important case

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

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

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

 

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

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

 

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

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

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

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

 

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

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

 

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

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

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

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

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

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

 

Cobb J ruled that :-

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

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

 

 

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

 

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

section 25 LASPO 2012; this statutory provision reads:

 

 

 

 

“25 Charges on property in connection with civil legal services

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

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

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

(2) Those amounts are—

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

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

 

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

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

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

 

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

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

 

 

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

 

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

 

 

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

 

 

And then quoting from the Law Commission:

 

 

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

 

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

 

 

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

 

 

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

 

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

 

 

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

 

 

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

 

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

 

 

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

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

 

 

 

 

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

 

 

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

 

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

Decision

 

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

 

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

 

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

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

 

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

78.That is my judgment.

 

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

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

 

Happy birthday to me

 

 

The blog is five years old today.  My goodness

 

 

During those five years, you’ve been exposed to more 80s pop culture references than Stuart Maconie’s diary, we’ve had adoption explained via passive aggressive notes on a student fridge, learned about how difficult it is to get contact with your child if you are Edward Scissorhands, watched me lose and win an award (winning feels better, no matter what all my hippy teachers tried to tell me), compared our child protection system to nuclear warheads, considered a man who sold bleach as a cancer cure  (also the case where the parents sought advice from a man whose website claims he “Turned Hawaii into a verb”),  watched and winced as policemen, social workers, guardians, lawyers and even Judges got told off for doing things it is hard to believe, attempted to replace the phase “inherent jurisdiction” with “magical sparkle powers” to better reflect its use, had His Honour Judge Wildblood QC favourably compared to Rowdy Roddy Piper, inspected the threshold criteria in Harry Potter and a written agreement from Romeo and Juliet, conducted a retrospective on Tolkein’s short-lived career as a court reporter,  translated Pride and Prejudice into teenager speak, toldyou all how NOT to write a letter of instruction,  examined a Nigerian fertility clinic that managed to deliver babies to people who weren’t actually pregnant,  pondered abut what would happen if we used Truth Serum in Court, found out why it’s best to have your case on just after lunch rather than just before AND deep breath

 

written a bloody book!

 

https://suesspiciousminds.com/ive-written-a-book-find-out-more/

 

If you haven’t already ordered the book, please do. I really want as many people as possible to read it.

 

I’ve written 906 blog posts, and the above is a tiny sample of them (I forgot Kate Bush’s non-molestation order, just for one)

I doubt very much that there’s anyone who agrees with every word I’ve said over the last five years (I don’t think that I actually agree with all of it), but I hope that over those five years I’ve made some of you smile, some of you take heart, some of you reflect, some of you frantically copy and paste into a case summary and some of you feel slightly less miserable on a Monday morning.

I should say that I hope you’ve enjoyed reading it as much as I’ve enjoyed writing it, but I know that you haven’t, because I’ve had an absolute blast.

 

Not retiring, just reflecting.  If you missed any of the highlights (my description, not necessarily that of others) then there’s a link to them below

 

https://suesspiciousminds.com/2016/12/10/adoption-law-illustrated-by-way-of-passive-aggressive-post-it-notes-on-a-student-fridge/

https://suesspiciousminds.com/2013/04/12/scissorhands-versus-scissorhands/

 

https://suesspiciousminds.com/2013/10/08/the-award-losing-family-law-blog/

https://suesspiciousminds.com/2014/10/10/a-big-thank-you-to-lots-of-people/

https://suesspiciousminds.com/2013/09/29/alwaysnever/

 

https://suesspiciousminds.com/2016/07/26/woo-woo-woo-you-know-it/

 

https://suesspiciousminds.com/2015/09/15/and-im-all-outta-bubblegum/

https://suesspiciousminds.com/2012/06/19/the-boy-under-the-stairs-an-imaginary-judgment/

 

https://suesspiciousminds.com/2013/02/05/a-pair-of-star-crossd-lovers/

 

https://suesspiciousminds.com/2014/12/29/why-tolkien-never-made-it-as-a-court-reporter/

https://suesspiciousminds.com/2012/10/12/so-he-was-all-like-pride-and-i-was-all-like-nuh-uh-prejudice/

https://suesspiciousminds.com/2012/09/10/317/

https://suesspiciousminds.com/2012/10/29/one-of-these-nights-youre-gonna-get-caught-itll-give-you-a-pregnant-pause-for-thought/

 

https://suesspiciousminds.com/2013/01/29/would-we-want-the-truth-to-be-out-there/

 

https://suesspiciousminds.com/2013/09/30/your-honour-may-i-hand-up-my-case-summary-and-a-pastrami-on-rye/