Author Archives: suesspiciousminds

Reversing the dilution of “homeopathic’ Guardians?

Posted on February 18, 2013 by suesspiciousminds

The Ministry of Justice have published a series of consultation documents, setting out the contribution they suggest various ‘stakeholders’  (yuck) should bring to the table in our brave new world.

{I do like, though it is not the thrust of this post, that the Her Majesty’s Court Service contribution is to (a) send out the orders that the lawyers type up and email to them within 5 days, which doesn’t sound that onerous and (b) to have Court rooms available and Judges to sit in them. The phrase ‘don’t go mad’ springs to mind } 

The CAFCASS one interested me, to see what the MoJ think CAFCASS ought to be doing on the ground. 

 Warning, I am going to be snarky about our current ‘homeopathic Guardian’ model, not because I think that Guardians on the ground are bad or lazy (though of course, there are some who are, but just as you don’t judge GPs by Dr Shipman, and in the words of the Osmonds, one bad apple don’t spoil the whole bunch), but rather because I think their organisation has sold representation of children and the vital role of check and balance of robust Guardians to a LA down the river. 

They have responded to an unprecedented increase in demand for the services by watering down the role of representing children to such an extent that there’s barely any actual representation of children by Guardians left, and what we have is a ‘view on the papers’,  and run the risk that eventually their services will be dispensed with.

 I have seen many cases over the last few years with Guardians who have never actually seen a parent outside of the Court building, and where two visits to see a child is something of a miracle and something to be grateful for rather than being scope for savage criticism.

 So, this is one of those rare documents which is actually worth reading in full – it is fairly short.  I’ll pick out the good stuff here

 Consultation ends a week on Thursday  (28th Feb)

 Here is the document:-

 http://www.justice.gov.uk/downloads/about/moj/advisory-groups/cafcass-care-proceedings.pdf 

By first hearing

 The children’s guardian will provide assistance to the court at the first hearing in relation to the threshold, and the adequacy of the assessment carried out, or proposed, by the local authority.

The children’s guardian will appraise the proposed plans for the interim and, to the extent set out by the local authority, for the longer-term care of the child – whether by parents, others with parental responsibility, and/or other adults – ensuring that the local authority has given the plans due consideration. The children’s guardian will also assesses whether the plan is optimal, within the resources available to the local authority taking account of the child’s timescale.

 

[“Appraise” the plans is a lofty goal, quite often these days, “reading them” is a bit beyond the homeopathic Guardian model.  See, I did warn you about incoming snark at the outset]

By the time of the CMC   [which, let’s not forget will probably be by week 2 of the proceedings in the new model]   – underlining is mine

5. By the time of the CMC the children’s guardian will independently evaluate the local authority case to differentiate between thorough local authority applications and those where the guardian considers further work is needed. For the latter type of case, the children’s guardian will be intensively involved in the case on behalf of the child. The advice of the children’s guardian at the CMC is intended to help shape the case, and to support judicial case management.

6. The children’s guardian will read relevant parts of the local authority case records in order to gain a thorough understanding of the impact of previous interventions by the local authority and others. The children’s guardian’s analysis presented to court will be informed by direct work with the child and/or by observation of contact between the child and his/her parent(s)/carer(s).

7. The children’s guardian will analyse the local authority’s assessments and investigations, both direct and commissioned from others, to establish if all that could have reasonably expected to have been done at the pre-proceedings stage was done. This will be supported through constructive dialogue with the child’s local authority social worker.

8. The children’s guardian should, by the time of the CMC, see, hear, and know enough about the child to offer a clear view to the court about the child’s ascertainable wishes and feelings and the issues in the case affecting the child’s current and future safety and welfare. This includes assessing the benefit to the child from particular additional assessments and bringing to the court’s attention the child development implications of any delay within the case.

 

 

You know what? I would bloody love it, if Guardians were back doing this. Seeing the child, seeing the family, reading the records, grilling the social worker about the case, testing the evidence out in the field. That’s how we used to do it, and that was a period where we didn’t end up with a plethora of independent experts because the Guardian came to the table with a meaningful contribution.  That also reads to me as though the MoJ envisage that we will actually get the Initial Analysis on paper that is a requirement of the PLO but is a ‘custom more honoured in the breach than the observance’

 

For IRH/final hearing  (and throughout) – again, underlining mine

 9. The children’s guardian will advise the court about the possibility of the child’s attendance at court, and about any matters that s/he considers that the court should be informed. This advice may be given orally or in writing.

10. The children’s guardian will ensure that any reunification plan for a child is likely to be viable and to provide stability and permanence, especially if the child is returning to a home environment that was previously abusive or neglectful.

11. A written report must be provided to the court by the children’s guardian unless directed otherwise. The children’s guardian will produce high quality reports that are focused, analytical and evidence based, utilising the Cafcass analytical writing template. This will support robust judicial decision making and case management. Reports will generally be 3-6 pages in length, though the examination of a disputed or contentious issue may result in a longer report. Cross referencing information held elsewhere within the case file, in accordance with the Cafcass reporting to court policy, will ensure reports are succinct. Reports and evidence given in court will be informed by evidence from research.

 

12. The children’s guardian will provide the court with an analysis of parental capacity to meet the subject child’s/children’s needs, taking account of the timescale within which the identified needs must be met.

 

13. The recommendations of the children’s guardian will reflect the child’s needs in terms of placement and contact arrangements, explaining how these arrangements are likely to safeguard and promote the child’s welfare

 Not 100% sure that the combination of robust analytical reports and a 3-6 page aspirational length really goes together, but I applaud the spirit of what is here.

In a practical sense, that sort of length will mean that our current theme of Guardians not doing their own welfare checklist, as a counterpoint/comparator to the LA version, is likely to continue.  I LIKED, even as an LA lawyer, having an alternative version of the key analytical checklist before the Court, and would like to see it come back.

Let us see whether this actually gets adopted by CAFCASS, even if it does come in. After all, the PLO is routinely ignored.

What might be different is that, given the tone and direction we are heading in, that parents representatives will be forced, if they want an independent assessment, to persuade the Court that the Guardian’s contribution isn’t a reason to refuse that, and comparing it to what the MoJ say the Guardian should be bringing to the party would be one way of doing that.

 

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“Finding” out the hard way

Posted on February 18, 2013 by suesspiciousminds

A discussion of the High Court decision of A London Borough v A and Others 2013, and what it tells us about coming to terms with difficult findings.

 The case does not contain much that is precedent or important for cases other than for these specific facts, but on a human level, it throws up some really interesting issues, which I felt were worthy of a closer look.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/96.html

In this case, the family had had four children and one of them died. A finding of fact hearing was conducted, and the Court concluded that the father had been responsible for the death of that child, having rejected the proposition that one of the other siblings, C, had caused the injuries and hence the death.

At the final hearing, the mother had not come to terms with this finding or accepted it, and the Court were faced with the stark choice of adoption or returning the three surviving children to her care with that risk in place.

The Judge decided, having heard the evidence, that if mother could be assisted, through provision of therapy to move to  “a substantial and genuine acknowledgement that the father may be dangerous, combined with a genuine emotional distancing from him, would be sufficiently protective.”   

And made as a finding that if, at final hearing, she could be demonstrated to have reached that point, this would be sufficient for the children to be placed with her. The Judge therefore adjourned the final hearing for five months, to give mother the chance to get to that point, with help. This was a real second chance, and it was of course imperative for her to grab it with both hands.

Therapy was provided for her, and she was seen again by the psychologist following that therapy, to see if there was any movement

Sadly for her, there was not.

  1. On 19 November 2012, the mother’s therapist reported to a professionals meeting within the limits of proper confidentiality. She said that the mother had been open about her reluctance to engage in therapeutic work but had shown commitment and was open to attending more sessions. The mother “is clear about what the judgment said and understands she will have to talk to the children about this later. [She] however feels she cannot say for sure what happened as she wasn’t there and feels this is true for anything that she has not been present for in life. [She] believes that ‘seeing is believing’ and this is where she is at and cannot go beyond this perception.” The therapist said that she had been working with the mother on her beliefs but that the possibility of change would take perhaps a year or more and without any certainty of a shift in her belief system.
  1. On 21 November, the mother met Dr Asen, who discussed her understanding and acceptance of the risk posed by the father with her. In his report at paragraph 3.1, he records what she said:

“I can’t know what happens if I wasn’t physically there … but I believe that he did not do it … there is nothing else apart from the Judgment that shows me what happened … Judges have the power to make a Judgment … but the coroner found something different … I wasn’t physically there, so I don’t know what happened.” She added, “it is not fair that I have to say what one person (i.e. the judge) has said”. She repeatedly stated that, as she had “not been there”, “I do not know” what had happened. When I put to her that none of the professionals involved in the case had been ‘there’ either, but had nevertheless arrived at different conclusions from her, she replied, with a smile on her face: “but you don’t know K… – they don’t know K…” She said she knew K… very well and therefore “I know he could not have done it.”

  1. The mother accepted that this note is accurate with the exception of the two passages I have underlined, which she denies saying. Dr Asen explained that he keeps a contemporaneous note during interviews such as this and he confirmed that the mother spoke in the way he records. I accept his evidence about this.
  1. In his report, Dr Asen concludes that nothing has changed with regard to the mother’s internal understanding and acceptance of the risks posed by the father to the children and herself. “Essentially her current position is no different from how she presented earlier this year when I first assessed her …”

 

This is something which professionals come across quite often with findings of fact hearing, that the findings are made, that there needs to be some movement towards accepting them, but that people remain of the position that the judgment is ‘one person’s opinion’,  ‘they weren’t there, so how can the judge know what really happened’ and ‘they don’t know him/her like I do’

 Those are all pretty natural, understandable, and human reactions; but against the background of a ticking clock (as decisions needs to be made for the children and they can’t wait for the parent who has been found to be not culpable to come to terms with the awful reality).  It is harsh, it is difficult, but from a legal perspective (if not a human one), once the Judge has given that finding of fact judgment, that is now the truth of what happened.  As hard as that must be, once the Judge has made the decision, the time for doubts or uncertainties about what has happened has gone, the truth is now what the Judge said happened.  

In this case, and adding a particular dimension, there was of course the issue that if the mother was not accepting that father caused the injuries, the only other candidate was the child, C.  And how would C growing up in her care, with that in mind, impact on C?

 

  1. He [Dr Asen] advises that the mother is able overall to provide a psychologically nurturing environment for children, but that in relation to C there is one major limitation in that, when he had the ability to understand, she would “tell him what the judge said …” When Dr A pointed out that C would in all likelihood pick up her own underlying views, namely that she does not believe that the father could have killed B, and that he will ask questions, leading to C and his siblings coming to the conclusion that his mother believes that he actually killed his brother (even though he was not legally or morally responsible), the mother replied that she would not be able to tell C that his father had caused B’s death, repeating: “I don’t know what happened — I wasn’t there.”
  1. Dr Asen concludes that this position is also unchanged and it is his opinion that the consequences for C and his welfare remain a major concern for the reasons set out in paragraph 5.5 of his first report. I will not repeat that passage, which lays out the implications for all the children of there being two conflicting stories about such an important part of the family history, and for C, who would pay a very heavy penalty for something the court had found he did not do.
  1. Dr Asen also discussed the mother’s support network with her. He gained the strong impression that she had not discussed the risks the father poses with her friends and that they could not at this stage contribute to the protective network that needs to be in place.
  1. Dr Asen’s opinion is that the changes made by the mother, if any, are not sufficient to reduce the risks posed to the children’s future welfare if returned to the mother’s full time care now or in the medium term future. Plans should be made for the children and the mother should continue to be offered therapy.

 On a human level it is deeply sad and tragic that mother wasn’t able to reach the stage that the Judge had wanted, even with the help, and although he had lowered the stage from one of total acceptance of the findings.  It is not terribly surprising with a lawyer hat on, that the case was going to conclude with decisions that were adverse to her.

 She wasn’t helped by a decision to file a letter of support from a leading light of her local community / religion, this being more of a nail in a coffin than a letter of support  

The mother was then asked about a letter circulated on 17 December 2012 by Dr O, who holds an honorary title and is the local co-ordinator of the Traditional Rulers Union of the parents’ community. This letter, entitled “Community Support” and running to three pages, was sent to the mother’s solicitor and copied to the therapist, to Ms Stephens, to the Guardian and to Dr Asen. In it, Dr O is highly critical of the judgment that the father was responsible for B’s death, and of many aspects of the proceedings. He refers to C as having been up and about “mischievously” on the night and he draws attention to the Coroner’s verdict. He states that “the couple have been made to separate” and that the process, including therapy, is “psychological warfare… professional blackmail” in that it attempts to persuade the mother that her husband killed the baby. He variously describes the process as prejudicial, racist and insulting, and says that the social workers are seeking to destroy the parents. Dr O then sets out a practical programme which he would coordinate for visits to be made by members of the community to the mother and children

The Judge’s consideration of the mother’s position was measured and careful, and was mindful of the difficult situation she found herself in

 

  1. Having listened carefully to the mother and being conscious of the intense difficulty of her position, I find that her views have not moved on in any meaningful way since she undertook therapy. I assess her as being deeply sceptical about the father’s responsibility for B’s death, and in my view it is this, and not only cultural or religious considerations, that explains her decision to remain married to him.
  1. The mother’s witnesses, most of whom do not form part of her immediate cultural and ethnic community, are clearly excellent people. They have an appreciation of the court’s findings and of the risks posed by the father, and I am sure they could be relied upon to do their best to support the mother and children. However, it is striking that even this body of opinion has not enabled the mother to move on in her own thinking. She did not involve them over the past months in planning the future with social services. I do not accept that this is because she did not want to trouble them: it is more likely that she did not involve them because their views do not coincide with her own.
  1. Instead, it is to her family and her community, including her church, and to Dr O, that the mother has turned. The view of the family and significant community members is that C was probably responsible for B’s death. The views contained in Dr O’s letter reflect this and it is to be noted that the mother has not chosen to call evidence from the people upon whom she most depends.
  1. Making all allowances, I cannot accept the mother’s evidence about her present beliefs. I do not believe that she has even reached the point where she has an open mind about what happened to B. Her nature is not militant, but I find that she has a quiet belief that the father is probably innocent. She was not frank about Dr O when first asked about him in evidence, and I was not persuaded by her attempt to dissociate herself from the views he expresses.
  1. Setting these conclusions against the many other factors in this case, and weighing up the children’s individual interests, I have concluded with real sadness that they cannot be returned to the care of their mother. The nature of the risk in this case is of the utmost gravity and there are no effective measures that could guarantee the children’s physical safety over time. Like Dr Asen, Ms Stephens and Ms Shepherd, I find that despite any current good intentions, the mother would not be reliably able to exclude the father from her life or the life of the children over the long period of years that would be necessary for their safety and wellbeing. She does not have the inner belief to enforce separation, and she would come under increasing pressure from her own thinking, from the father, from the community, and no doubt in time from the children themselves, to let him back into their lives once the intensity of the current professional interest was in the past. Moreover, even if the father was kept at a distance, I accept the evidence of Dr Asen about the likelihood of emotional harm to the children that would arise from being brought up in an environment in which the prevailing belief was that the father was innocent. The consequence is that C would learn that he was thought to have harmed B, and yet none of the children could see the father or be given a good reason why they could not.
  1. I accept the unanimous professional evidence and therefore approve the local authority’s plans for the three children’s future placements. I shall make care orders and, having considered the terms of the Adoption and Children Act 2002, make placement orders in relation to M and J. In M’s case, adoption is clearly in her interests, and in J’s case, a time-limited search for adopters is in my view right, while at the same time seeking a long term foster home. I dispense with the parents’ consent to making placement orders because the children’s welfare requires it. If an adoptive placement is not found, the placement order will have to be discharged in a timely fashion – the application can be made to me.

 

As we wind our clock ever more tightly and make the hands turn faster, how compressed will the time period for a parent to come to terms with an awful finding against their loved one be?  You can’t hurry love, as they say, but you can’t necessarily hurry dismantling that love in the light of an awful finding  either…

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Who benefits?

Posted on February 15, 2013 by suesspiciousminds

 

I have been aware for a while now of a pending problem as a result of benefit changes. The plans to cap benefits for families means that for some families, who live in areas of the country where rents are high, they will no longer have enough housing benefit to cover their rent.

 This is coming to a head in central London, as can be seen from this story in the Guardian.

http://www.guardian.co.uk/uk/2013/feb/13/london-council-relocation-benefits-cap

 Camden, for example, will have to be moving 700 families out of their area, unless they can find £90 a week to cover the brand new shortfall between their rent and their Housing Benefit. And they won’t be moving a tube stop or a long bus ride from their homes, but almost certainly out of London. The places being discussed are Bradford, Birmingham, and Leicester.   [As someone who has practised in Birmingham and knows about their housing waiting list this came as a hell of a surprise to me, that Birmingham suddenly apparently has housing to spare]

 Brent estimate that they might have 1,000 families who need to move, and have purchased housing in Luton and Slough.

 This all arises of course from the harsh reality that the cost of housing varies considerably across the country, and there are a lot of areas in the country where people on benefits are provided with housing where it would simply be impossible for an average working family to live.  That leads to costs to the public purse, of course, and we are in a climate of austerity.

 Politically speaking, the sell that it feels wrong for families on benefits to be in receipt of more money than an average working family, has made it possible for these changes to be pushed through.

 In reality, moving your children from a school in Camden to a school and home in Leicester, doesn’t come without an impact. We aren’t talking about moving from one posh street in a town to another rather less posh street, but moving many many miles away, away from your family, your social networks, your supports and your children’s social networks.

 What we can’t predict, of course, is how many families hovering on the brink of care proceedings might be tipped by this, as they try to manage disruption, unhappiness, profound feelings of dislocation, isolation and being moved from all their supports, both professional and family / friends.

From a legal point of view, assuming that being offered housing in Leicester and turning it down legitimately extinguishes the duty of the Housing department towards a parent  (I am not a housing lawyer, and will stand to be corrected if not)  causes a problem for a parent in that situation. They either accept the move or they are voluntarily homeless.  (And of course, there will be either limited or most likely no recourse at all to free legal advice to challenge housing)

 So, if the parent refuses to move to Leicester, and housing discharge their obligations and in due course serve eviction or notice to quit proceedings, what happens then?   

 [My use of Camden here is purely illustrative because they are the lead authority in the story, I don’t work for Camden, don’t represent them, and am sure that they are as utterly horrified as being put in this awful position as anyone else would be]

 Well, they probably approach Social Services and ask them to help with provision of housing, on the basis that the children will be in need of this.

 The Court of Appeal looked in the case of R V B LONDON BOROUGH COUNCIL, EX PARTE G (2001) [2001] EWCA Civ 540  at the issue of whether the Local Authorities duties under section 17 or section 20 of the Children Act 1989 extended to the duty to provide housing for a parent to keep them together with a child and found that it does not.

The LA can be obliged to offer accommodation under section 20 for the children, but not for the parent. So the children could be placed in care whilst the parents sleep rough.

In reality, it seems both unlikely and undesirable that a parent would agree to place their children in care purely as a result of housing difficulties.

 The duties to accommodate an adult arise from the National Assistance Act 1948, and it is unlikely (unless the parent has health or needs over and above destitution) for them to qualify for accommodation under those provisions.

So, a family with 3 children are evicted from their property in Camden, and refuse to go to Leicester.  Housing’s duties to them has ended. They won’t be able to get private rental accommodation, because housing benefit won’t be sufficient to pay the rent. They won’t be able to get Social Services to accommodate the family,  and their choices are therefore :- 

  1. Be homeless in Camden
  2. Put their children into foster care and be homeless themselves
  3. Move to Leicester

 

What if they call everyone’s bluff and go for option 1, being homeless in Camden with their children? Well, there is clearly then a risk of significant harm for the children, who would be living and sleeping rough.

 I can’t, for my part, envisage any family Judge that I have ever been before, entertaining positively an application for an Interim Care Order where the threshold was based solely on homelessness that has arisen through a parents legitimate desire not to be relocated to the other end of the country (this isn’t them being evicted for not paying rent or being anti-social, just that they happen to be poor in an area of the country where it is no longer okay to be poor).

 The grounds for an ICO might be met, but I can’t envisage a Court actually making the order.   [I can’t find the attribution, but the line  “I can believe in hell, I just can’t believe there’s anyone in there” struck me]  and that the Judge would probably be summonsing Directors of Housing and Directors of Social Services to come to Court to explain what the heck is going on with this.  [Not that they are called that anymore, they are probably called Chief of Envisioning and Chief of Commissioning or some god-awful thing now]

 So, a family who call the LA’s bluff are probably not going to find themselves in Court (probably – I emphasise that this is not my advice), and that leaves them and their 3 children sleeping rough in Camden.  Are Camden Social Services going to be okay about that? Or are they going to get somewhat fretful and think that regardless of whether they have a DUTY to accommodate, they might find some section 17 money to finance accommodation at least whilst the family make some transitional arrangements to get housing elsewhere?

 I know that if I were such a family, I would be settling my children down in a park, ideally in close proximity to tramps drinking Special Brew, and calling a journalist to come and take some photographs to illustrate the story.  I think the political fallout from that would lead to the Director of Housing and Director of Social Services being called in to see the Leader of the Council.

 One way or another, the big bosses of housing and social services are going to get shouted at by someone.

This is not merely theoretical, at some point, some family is going to say “no, I’m not moving to X, this is our home” and some really tough decisions are going to have to be taken.

 I was reminded, in writing this piece, of the Westminster “Homes for Votes” scandal, in which in certain key marginal wards, Westminster managed its housing stock in such a way that those who were considered demographically likely to vote Labour (the poor, the unemployed) ended up having to get housing outside of the area. 

I don’t claim that there is overt gerrymandering here [that would be a scandalous suggestion, that a Tory government might want poor people moved out of the home counties and into the midlands and the north], but a consequence, intended or not, of making public housing unaffordable in London to those on benefits and shipping them out to cheaper places in the country, is to further wider the divide between affluent and poor parts of the country?

Those affluent parts will have populations who are council tax payers rather than users of services, and the poor parts will have populations with a high proportion of users of services and low proportion of council tax payers.

 {I’m aware that I’ve been channelling Private Fraser from Dad’s Army this week “We’re all doomed”  but as this hasn’t been implemented yet, there is still a chance of public disquiet changing this course and I’d rather light a candle than curse the dark.  I will try, however,  to be more cheerful next week}

doomed!

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Jumping the gun

Posted on February 14, 2013 by suesspiciousminds

A consideration of the High Court decision in Re RCW v A Local Authority 2012 , and the need to be very careful when making decisions to remove a child from prospective adopters

 

 

There is an excellent summary and discussion of the case at Family Lore, and is actually so good that I nearly didn’t write this piece, but I thought I might be able to find something fresh to say, even if it won’t be so pithy.

 

http://www.familylore.co.uk/2013/02/rcw-v-local-authority-unusual-and.html

 

 

 

In essence, it related to a challenge by a woman who had been intending to adopt a child. The child had been with her for 10 weeks (this being the exact period of time that the child would need to be placed with prospective adopters before the formal adoption application could be lodged) and then the carer had an operation, having slightly earlier been diagnosed as having a brain tumour, and that operation tragically left her without sight.

 

The LA decided that they would wish to remove the child from her care. As a matter of strict law, prior to the prospective adopter making an application for adoption, they believed that they were able to do so.

 

The timing was very tight – the carer lodged her application for adoption, and on the same day received a letter from the LA indicating that they proposed to move the child.  (The LA decision therefore pre-dated, though only just, the carer applying for an adoption order)

 

 

[The removal is under s35(2) of the Adoption and Children Act 2002

 

  1. Section 35(2) of the ACA 2002 provides that:

“Where a child is placed for adoption by an adoption agency, and the agency –

(a) Is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion

The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency”.

 

 

And the provision which protects a carer who has LODGED an adoption application is s35(5) of the same Act

 

  1. Section 35(5) provides:

“Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order … was made in respect of the child, and

(c) the application (…) has not been disposed of

Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.”

 

And the timing here was so critical that it might be said that the adoption application was after the s35(2) decision to remove, so there was not necessarily protection under s35(5)

 

Hence the prospective adopter seeking an injunction under the Human Rights Act to prevent them removing the child, which was the only avenue open to her.

 

She had not been involved in any discussions or meetings with the Local Authority about this change of plan, which of course came at a god awful time for the woman; she learning of it on the day of her discharge from hospital.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/235.html

 

 

The Judge, Mr Justice Cobb, you will be pleased to hear (unless you are a reader from the LA in question, in which case sorry to rub salt in the wounds) granted the injunction, preventing the LA from removing the child, and was critical of the decision-making process.

 

 

The Judge concluded additionally, that the carer had the shield of section 35 (5) of the Adoption and Children Act 2002, principally because the notice has to be in writing, so although she had been told in a telephone call that the LA proposed to remove BEFORE her adoption application had been lodged, the written notice came AFTER.  Her prompt action in lodging the application got her that protection.

 

But the Judge went further, and said that regardless of the timing and sequence of events, the process by which the LA reached their decision to give notice of their intention to remove under s35(2) was flawed

 

 

  1. A decision to remove a child who has been placed with prospective adopters is a momentous one. It has to be a solidly welfare-based decision, and it must be reached fairly. LBX discussed its plans to remove SB from the care of RCW at two meetings referred to in the chronology above; the decision was made on 30 January 2013 and communicated to RCW shortly thereafter by telephone. I have not yet seen the minutes of the planning meetings at which the decision to remove SB was made (it has been indicated that Mr M’s notes can be made available forthwith, and they should be). But it is difficult to identify on what material LBX could truly contend that it had reached a proper welfare-based evaluation; there had been limited direct observation and assessment by that time, no apparent discussions with the friends and supporters, and little knowledge of RCW’s condition or, more pertinently, its likely prognosis.
  1. I do not believe that RCW was invited to either of the meetings at which the future placement of SB was discussed (indeed, she was still in hospital at the time of the first meeting). There is nothing in the statements before me which indicates that RCW’s specific views about her ability to care for SB for the future, her support network, or the impact of her condition on her life were sought or obtained; it does not appear that RCW was given any opportunity to make representations at the meeting.
  1. On the information before me I am satisfied that LBX failed to give RCW a full and informed opportunity to address its concerns about the future care arrangements for SB. In this respect, LBX had acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.
  1. LBX’s difficulties in defending its decision on fairness grounds are substantially compounded by its acknowledgement that when reaching its decision to remove SB it did not know (and does not know) whether RCW’s visual impairment is temporary or permanent. If the disability proves to be temporary, and RCW is able to resume her life as she led it prior to 8 January 2013, LBX would have no basis for intervening in the care arrangements.

 

 

 

The argument of course, would be that had the carer been involved in the process and her views and position taken into account, that she may well have been able to advance a plan for caring for the child which would meet the child’s needs, notwithstanding her visual impairment; and that the LA had effectively jumped the gun in just unilaterally deciding that if she was sightless she could not care for the child.

 

  1. Visual impairment does not of itself disqualify an adult from being a capable loving parent. In my judgment, the ability for RCW to provide good emotional care for SB (probably with support) needs to be properly assessed. It was not fairly assessed on 24 January 2013 when the social worker visited RCW’s home so soon after RCW’s discharge from hospital. LBX can only point to one example (from the visit on that day) where they maintain that SB’s needs were not being met.
  1. I do not accept that this observation necessarily supports the proposition that RCW is unable to meet SB’s needs; even if it did, it would be grossly unfair to make any judgment about the long-term ability of RCW to meet the needs of SB on the basis of an assessment made on the day on which RCW left hospital and returned home. One can only imagine the tumult of emotions which RCW must have been feeling on that day – joy and relief to be home and with SB; sickening anxiety and possibly despair at her new disability.
  1. In my judgment, LBX’s decision to remove SB was reached on an incomplete assessment of the current situation, and in a manner which was unfair to RCW. I stop short of finding that the assumptions which the authority has made about parenting by a carer who is blind are discriminatory, but in ruling RCW out as a prospective carer so summarily, LBX has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.

 

Of course, the very agency which was to provide this carer with support and assistance as a result of her new-found disability was the Local Authority, albeit under different legislation, and rather than getting together with such supportive provisions to see what could be done to preserve the situation and allow the carer to care for the child, the LA had reached the decision that the child could not remain there.

 

 

The Court referred to the earlier decision of Mr Justice Charles in DL and Another v London Borough of Newham 2011 

 http://www.bailii.org/ew/cases/EWHC/Admin/2011/1127.html  

 

in which the Court considered that before issuing a notice under s35(2) the LA ought properly to discuss their concerns and reasons for contemplating this with the carers.   

 

The Courts have also established that not only an article 6 right exists in relation to such decisions, but that the carer has an article 8 right to family life which must be taken into account.

 

 

I know that it is often said, and I sometimes say it myself (though more verbosely) that the law is an ass, but sometimes, as in this case, the law gets it very right, and prevents a terrible injustice happening.

 

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Court of appeal sweepstake

Posted on February 12, 2013 by suesspiciousminds

Yet more pondering about the 26 week timetable unofficial roll-out a year in advance of the projected Children and Families Bill becoming law, and whether there is a hint in the Family Modernisation second update?

 

 

This continues to trouble me, and I know others. I warned way back in April 2012 that the new Court computer system seemed to have implemented by stealth a presumption that a care case would finish in 26 weeks, and that reasons for not doing so would have to be recorded, and that this was inevitably going to have an impact on the timetabling of cases

 

 

https://suesspiciousminds.com/2012/04/13/gone-till-november-ill-be-gone-till-november/

 

 

 

And here I blogged  back in October about the issue being raised before MacFarlane LJ and Ryder J at the Nagalro conference, and whether or not it was said that there was no such policy of 26 weeks being the starting point and whether a Judge applying such a policy ought to be appealed. We have never got to the bottom of what was really said

 

https://suesspiciousminds.com/2012/10/19/ive-got-twenty-six-weeks-to-go-twenty-six-weeks-to-go-or-have-i/ 

 

 

I am aware that around the country, orders are being made, setting out whether a case should be concluded within 26 weeks or not   [not “This case does not require a 40 week timetable and can be concluded by week 26”, but the reverse “This case has issues that require that the proceedings go beyond week 26”].

 

And they are made at a very early stage of the proceedings.

 

Without a doubt, the Court has the power to determine when a case should be concluded, and set a timetable for the expeditious resolution of the case, and the fixing of that timetable is within the judicial discretion. Robust case management is a vital judicial function, and avoidance of drift and unnecessary delay is a commendable goal.

 

And without a doubt, although the law currently (through the Public Law Outline) works to a timetable of 40 weeks, the Court has the power and discretion to set a timetable that is less than 40 weeks, or indeed more, in accordance with the child’s welfare.

 

What troubles me is the importation of a presumption that the starting point is 26 weeks when there is no law to that effect.

 

 This is not a trivial matter. Decisions about whether pieces of evidence, including independent assessments, can be obtained, are made on the basis of whether they fit with the timetabling of the case, and there is a considerable difference between 26 weeks and 40 weeks  (which is our current ‘starting point’, that can, as I have said, be deviated from)

 

The other pivotal consequence of this is that setting a 26 week timetable as a starting point  (before any of the accompanying measures such as pre-proceedings work being improved and CAFCASS playing a larger role in the early stages of the proceedings have been formulated, never mind implemented) means that a parent simply has far less time to demonstrate change, or to accept the need for change.

 

Those 14 weeks, or 3 ½ months, are a period where the parent could attempt to evidence growth in insight and change, or evidence having tackled the problems. If we remove that, there are going to be cases when a parent who would have made use of it will not have that opportunity.

 

What worries me is NOT deciding the case quicker, it would clearly be better for children to have the decisions made for them promptly and that is in accordance with the often quoted but often ignored principle of no delay enshrined in the Act.  No, it is my underlying fear that cases will end up with different outcomes when they are decided in 26 weeks than if they had run for 40 weeks.

 

 

This is the latest glimmer on it, from the Family Modernisation second update. Bear in mind that this is not a statutory instrument, nor a practice direction, nor guidance, nor anything that could be relied on by law, but it is in a sense a marker.

 

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/family_implementation_newsletter2.pdf

 

 

This is the passage I am interested in :-

 

One of the key clauses in this Bill is that care or supervision orders should be determined without delay and in any event within 26 weeks beginning with the day on which the application was issued.

 

Although this 26-week time-limit will not be a legal requirement until the Act is enacted (probably in April 2014) the President is keen to encourage those involved in the family justice system to continue to use the interim period before implementation to develop their practices to prepare for commencement. Cases should be managed by judges to reach a just conclusion without unnecessary delay.

 

Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in up to 26 weeks or more dependent on the facts of the case

 

 

I would have preferred this to be far less ambiguous. The first two paragraphs I agree with entirely. The third I find to be unclear  – it doesn’t condemn the practice of setting 26 week timetables a year in advance of this becoming law. It doesn’t say, what one would have hoped, that there is no starting point of 26 weeks, and that whilst it might be appropriate in some cases, the timetabling exercise should not be carried out with that “starting point” in mind.

 

It is nowhere near as strong as the remarks which were reported to have been made by the senior judiciary at the Nagalro conference (though as we know, we shall never really get to the bottom of what precisely was said)

 It is perhaps interesting, and illustrative of the fact that the 26 week target  has indeed been secretly rolled out that the wording is not

Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in 40 weeks or less dependent on the facts of the case

 

but the reverse, that it may be 26 weeks or more.  Is this a tacit endorsement of Courts having in their mind 26 weeks as the goal to aspire to?

Given that we know that the Court computer system is recording the cases that finish beyond 26 weeks and reasons for this, are there performance indicator statistics being gathered from that computer system that shows how many cases ARE going beyond 26 weeks, and have targets been set for what those numbers or proportions should be?   Or am I Marvin the Paranoid Android?

 

We remain in limbo until someone whose client is materially disadvantaged by the mental “starting point” of 26 weeks takes the case management decision to appeal.  We also have, at this stage, no real sense of which way the Court of Appeal will go on that.

 

They could take the strict law approach of 26 weeks being a creature of the imagination and 40 weeks being the starting point set down in actual law, or they could go the judicial discretion, case management powers and avoiding delay approach.

 

 

So, place your bets – will the first appeal be from the North, South, East or West of England, and will the Court of Appeal back the Judge or back the PLO?  The Court of Appeal haven’t shown much love for the PLO to date, but generally in slapping Judges who tried to case manage in accordance with its principles where the Court of Appeal felt that led to unfairness. So on the body of their decisions, my gut is that they should be slapping this 26 week starting point. But I would not put money on it going that way.

 

[I’ll emphasise again for clarity, I see nothing wrong with a Court looking at the individual case and determining that this case should, on the issues and facts, be resolved in 26 weeks, or 19 weeks, or 52 weeks that seems to me to be a perfectly proper judicial decision. 

 

My issue is with an unwritten principle that ‘all things being equal, a care case should finish within 26 weeks, and there would need to be reasons to go beyond that’ when that is not currently the law.  Or even that this is a perception which is being allowed to persist, there not being a clear statement to the contrary. ]

 

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Pindown revisited?

Posted on February 11, 2013 by suesspiciousminds

 

The Court of Appeal decision in  The Childrens Rights Alliance v Secretary of State for Justice 2013

 

 

This was an appeal against refusal for judicial review of the Secretary of State’s refusal to provide the Childrens Rights Alliance (or the children concerned) with details of which children were the subjects of illegal restraint methods whilst held in Secure Training Centres in the UK.  That disclosure would obviously have been a prelude to advice about, consideration of, and possibly issue of civil claims on behalf of those children.

 

 

The case can be found here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/34.html

 

 

The Childrens Rights Alliance lost the appeal, and thus won’t get access to the information that is required. That may have been the right decision on a strict formulation of the law on judicial review, but on reading the case I felt that it is a state of affairs that deserved a bit more attention, and perhaps some of my readers might be in a position to do something.

 

 

At the Secure Training Centres, which “accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable.”

 

Until about July 2008, there was fairly widespread practice at the four Secure Training Centres, which held about 250 young people, of using restraint techniques that staff genuinely (but mistakenly) believed to be lawful

 

  1. it is first convenient to describe the nature of the techniques with which we are concerned. They took two forms. First there is restraint, or physical restraint, properly so called. This includes a number of holds (such as the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, and the Double Embrace Lift) designed to enable up to three members of staff to obtain physical control over an inmate; they were not intended to inflict pain. On 19 April 2004 a 15-year old trainee at Rainsbrook STC, Gareth Myatt, was asphyxiated while being restrained in one of these approved holds. Secondly, there are “distraction techniques”. The PCC Training Manual for 2005 (PCC stands for “physical control in care”) describes three such techniques: nose, thumb and rib distraction. These involve the measured application of pressure on those parts of the body in order to cause a short, controlled burst of pain administered to distract a trainee who is seriously misbehaving in order to bring the incident to a swift and safe conclusion. The nose distraction technique had been applied to a 14-year old called Adam Rickwood, who committed suicide at Hassockfield STC on 8 August 2004. His mother was the applicant in the Pounder case.
  1. At the core of this appeal is the fact that officers at the STCs who applied these various restraint techniques at the material time genuinely but mistakenly believed that the law entitled them to do so for the purpose of maintaining good order and discipline (GOAD). It was definitively established that there was no such entitlement only after the deaths of Adam Rickwood and Gareth Myatt: see paragraphs 14 and 35 of the judgment of the Divisional Court in C ([2008] EWHC Admin 171).

 

 

 

It was clear, and not disputed that these techniques were used on children who were very vulnerable.

 

 

  1. 9.       “It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people.”

 

 

And it was clear that this happened to a significant number of ‘trainees’ in these institutions

 

  1. 15.   “76… [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C.

77… [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques… were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose.

78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale…”

 

 

 

The telling and difficult thing for the Childrens Rights Alliance, which is why they invited the Secretary of State to take steps to inform the particular children that they had been illegally restrained and when, was that many of the individual children would not have known at the time that what was happening to them was illegal and would give rise to a claim now

 

  1. At the end of paragraph 91 Foskett J stated that very few, if any, of the trainees appreciated at the time that what was done to them was unlawful. Earlier he had said this:

“88… I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. Furthermore, at least during the period with which this case is concerned, it is likely that if a complaint had been made, the substantive answer to it would have been that the officers who used the restraint techniques were justified in using the force considered necessary at the time.”

 

 

 

Following through the judicial review principles (which is pretty dry and beyond my interest in this piece), the Court of Appeal concluded that there were no grounds for judicially reviewing the Secretary of State’s refusal to carry out this exercise and therefore the court at first instance had not been plainly wrong to refuse it.

 

 

Of course, and the Court hint at this – there is nothing within this judgment which prevents or would inhibit any individual child who had been detained at an STC in asking for information about their records and whether they had been subject to illegal restraint.  But what the Childrens Rights Alliance had wanted was not for the individual children to be obliged to “Pull” to get their rights, but for the Secretary of State to “Push” and be obliged to notify them that they had been treated illegally.

 

 

It is a sobering experience to read of these things happening to children in custody, and reminded me vividly of the Pindown crisis.

 

That might well be ancient history for some of my readers, so I will elaborate.

 

In the 1980s, in Staffordshire, a method of discipline was introduced in children’s homes for children in care who were being difficult or hard to manage, involving locking them in rooms on their own for periods at a time, this method of discipline being called Pindown. It lasted for various periods, but for one child, it lasted for 84 consecutive days. It caused a scandal when it came to light, with World in Action doing a documentary on it, and was the subject of a significant public enquiry.   (In large part, it led to the construction of the legal principles in the Children Act 1989 about “secure accommodation”)

 

 

Very sadly, I have struggled to find a copy of the Pindown report which was written by Allan LevyQC (sadly no longer with us) and even Amazon  say  “Currently unavailable. We don’t know when or if this item will be back in stock.”

 

 

Perhaps this is an example of George Santayana’s well worn remark that those who fail to learn from history are doomed to repeat it.  And for the modern era, those who hide away public enquiries and don’t ensure that access to them is easily found online shouldn’t be surprised that people don’t know the contents.

 

 

Of course I understand that staff on the ground in a Secure Training Centre are doing a difficult job, one that I wouldn’t want to do, and that the children detained there are not little Peter Pan figures full of cheeky (but ultimately harmless) mischief, but incredibly disturbed and challenging young people.  I do understand that managing them is hard and that if guidance was given to those staff that “figure four armlocks” were okay, they were going to follow that guidance.  It is the people who gave them that guidance who let the children down.

 

 [As an incidental detail, I note that in Russia, this armlock technique is known as the ‘militia’ armlock because it is used by the Russian militia and police…. ]

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“An unhelpful cocktail”

Posted on February 11, 2013 by suesspiciousminds

 

The interesting case of Re A (A Child) 2013.

 

The Court of Appeal dealt here with a case where some pretty appalling case management occurred with the appellants legal team, and whether a costs order should flow from that. They determined that in the absence of being able to show that costs had been incurred by the other parties for which they could be compensated, one could not make a wasted costs order purely as a punitive measure, no matter how awful the litigation conduct.

 

But it is worth looking at the litigation conduct, just because it is a dull day indeed when one isn’t interested when “I could a tale unfold whose lightest word would harrow up thy soul, freeze thy young blood, make thy two eyes like stars start from their spheres. Thy knotted and combined locks to part, and each particular hair to stand on end. Like quills upon the fretful porpentine…. “

 

 

Lo, the case is here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/43.html

 

 

The appeal related to a serious finding of fact hearing in care proceedings, a significant number of fractures on a very young baby, where the Judge found that these were caused non-accidentally.

 

Some time after those findings, the solicitors representing the parents became aware of the decision in London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam)    and legitimately considered the findings again in the light of that case, particularly whether there was an alternative medical explanation along the lines of vitamin D deficiency and rickets.

 

They sought leave to appeal from the trial judge, who refused.

 

They then applied to the Court of Appeal, primarily asking whether leave to instruct an expert to look at the case was required. The Court of Appeal considered the case, felt that a fresh expert assessment was desirable and granted that leave, then listing a Permission to Appeal hearing to take place after the expert assessment could be considered.

 

All of that is perfectly fine and proper.  

 

[I blogged about that appeal hearing HERE   https://suesspiciousminds.com/2012/11/22/more-on-vitamin-d-and-rickets/ 

 

In short, the Court of Appeal did not consider that the Judge at first instance was wrong, let alone plainly wrong, and that the medical evidence, including the fresh report came nowhere near substantiating a medical explanation for the fractures. ]

 

 

But this particular judgment comes about as a result of the Local Authority and Guardian feeling so aggrieved by the parents litigation conduct that they asked for a costs hearing.

 

This is why :-

 

 

  1. 6.       a) At the first, without notice, oral hearing the solicitors failed in their duty to provide the court with full and frank disclosure of all relevant material. In particular the bundle submitted did not include the original fact finding judgment or the section of the trial bundle that included the expert medical evidence;

b) The court was misled by an assertion in the grounds of appeal that the solicitors had had to prepare the case in a limited time period, whereas the reality was that they had the papers in the case for 18 weeks prior to filing their grounds of appeal;

c) After the September hearing the solicitors failed to disclose any relevant and necessary information to the Local Authority and the solicitors for the child until 16th October. The information withheld included a note of the 19th September hearing, the letter of instruction to Professor Nussey, Professor Nussey’s report (which had been received on 3rd October), the progress report sent by the parents’ solicitors to the Court of Appeal on 3rd October in accordance with my direction and any detail of the extensive supplementary questions and communications passing between the parents’ solicitors and Professor Nussey;

d) Professor Nussey was not instructed in a manner that would comply with the Family Procedure Rules 2010, Part 25 and the associated Practice Direction governing the instruction of experts. In particular, the Professor was not furnished with a copy of the 2010 fact finding judgment and/or the expert medical reports upon which the judge had relied. Instead the Professor was, for example, provided with the parents’ solicitors’ critique of that judgment setting out some 26 points which they said supported a benign medical explanation for the fractures that had been detected;

e) Once Professor Nussey’s report was available to the parents’ legal team, a clear view should have been taken that there was no longer any prospect of achieving permission to appeal. The decision to press on and mount arguments which this court ultimately found were unsustainable, went beyond the bounds of pursuing a hopeless case and amounted to an abuse of the court process.

  1. Ms Jo Delahunty QC, representing the child, supports the criticisms made by the Local Authority and seeks to stress the substantial degree to which, in her submission, the parents’ solicitors fell short of their duty to comply with the ordinary standards of transparency and co-operation required of those engaged in child protection proceedings in the Family Division. In particular, she points to the fact that the non-disclosure for nearly a month of information relating to the without notice hearing in September was not a result of inefficiency or incompetent administration, but arose from the deliberate assertion by the parents’ solicitors that the other parties were simply not entitled to any of this material unless and until permission to appeal is granted. She is also particularly critical of the way in which the expert was unilaterally lobbied by the parents’ legal team with, it is suggested, the aim of turning his initial adverse opinion into one which was more favourable to their case.
  1. In addition to the criticisms made of the litigation actions in the period between 19th September and 1st November, both counsel for the Local Authority and counsel for the child draw the court’s attention to the stance taken by the parents’ representatives at this hearing. Mr Prest drew attention to what he regarded was the startling difference between the world view in relation to these matters taken by the parents’ representatives and the reality of the approach required by the Family Justice System. In similar terms Ms Delahunty submitted that, in seeking to explain their behaviour and avoid adverse criticisms, counsel for the parents’ solicitors, Mr Michael Shrimpton, in his skeleton argument, was simply not speaking in the same language as the lawyers representing the Local Authority and the child. In particular Ms Delahunty points to the fact that, rather than offering an acceptance of poor case management and an apology to the court, Mr Shrimpton’s skeleton argument seeks to meet each of the matters raised head on and to question their validity. For example the case for the parents’ solicitors, who are a well known Birmingham firm of family specialists, questions the validity and legitimacy of FPR 2010 Part 25 insofar as it applies to Family Proceedings at first instance and asserts that, in any event, those provisions have absolutely no application to a pending appeal. They assert that the instruction of an expert in the course of an application for permission to appeal may be undertaken in total disregard of the Family Procedure Rules and the practice otherwise applicable to a family case.

 

 

 

Let me just flesh that out, because it may be so peculiar that it does not quite sink in – they obtained permission to appeal saying that they had had ‘limited time to prepare their case’ (when they had in fact had 18 weeks – some people, not me, but some other people, might actually go so far as to say that this is not a generous interpretation or disingenuous, or misleading, but a straight downright lie)

 

having obtained the permission of the Court of Appeal to instruct an expert, the parents solicitors then don’t give the expert the medical reports AND Judgment in the fact finding hearing, but instead a sprawling 26 point submission prepared by them as to why rickets is the cause of the injury, they don’t try to agree a letter of instruction or include any questions that the other sides would like asked, they don’t initially disclose the report of that expert to the other sides, they try to get the expert to change his mind after seeing his report, and when all of this is highlighted to them, they argue that the Family Proceedings Rules don’t apply to appeals in, erm family proceedings.

 

 

I also like this bit – the parents solicitors, in another case (oh my god) had gone off to get an overseas expert without leave of the court and then (once it was favourable to rely on it)

In January 2012 the parents’ solicitors acted for different parents in an application for permission to appeal which is now reported as Re McC (Care Proceedings: Fresh Evidence of Foreign Expert) [2012] EWCA Civ 165; [2012] 2 FLR 121. In that case, without the knowledge of, let alone the leave of, the Court of Appeal, the parents’ solicitors obtained a medical report from an American paediatrician and sought leave to adduce it as fresh evidence to support a proposed appeal. In his judgment refusing permission to adduce the evidence, with which the other two members of the court agreed, Thorpe LJ said:

 

“14. There are many reasons for refusing this application. It does not begin to satisfy the conditions identified in the well known case of Ladd v Marshall [1954] 1 WLR 1489. It is a report which is deeply flawed in the manner of its production. The respondents to these proceedings were given no notice of the intention to go elsewhere and to knock on another expert door. No permission was sought from this court either to instruct another expert or to release documents from the case to that expert and such documents as were released were not comprehensive and were apparently partisan.

15. I would have absolutely no hesitation in refusing this application but I do want to emphasise that there is, in my judgment, an obligation on an applicant for permission, or an appellant who has obtained permission, to seek leave from this court before instructing a fresh expert and releasing court papers to that expert for the purposes of the hearing of either an adjourned application for permission or an appeal.

16. I would also emphasise the importance of the Guidelines for the Instruction of Medical Experts from Overseas in Family Cases, endorsed by the President and published by the Family Justice Council last month. They must by extension apply to appellate proceedings although the guidelines are of course written specifically in contemplation of proceedings at first instance.”

 

  • Mr X submits that both he and his instructing solicitors were unclear as to the meaning of those passages from Thorpe LJ’s judgment in Re McC. He tells me that they did not understand whether or not it was incumbent upon them to apply for the leave of the Court of Appeal before seeking to instruct an expert to provide a report for use in support of their application for permission to appeal. In their minds, therefore, the purpose of the 19th September hearing was simply to seek the direction of the Court of Appeal on whether or not a full blown application for leave to instruct an expert, which Mr X tells me would have been on notice to the other parties, should be made. 
  • I confess that I am at a loss to understand that submission and ask, rhetorically, how Mr X and the Solicitors Firm could fail to understand the words “there is …. an obligation …. to seek leave from this court before instructing a fresh expert”. The account given in the Notice of Appeal to the effect that the Court of Appeal decision in Re McC, from which I have quoted, had simply ‘expressed some sympathy’ with the view that leave to instruct an expert was required and that the decision had not by that stage been reported is, on the facts, plainly unsustainable. 
  • The words of Lord Justice Thorpe are entirely plain and clear and, for the record, I regard his words as being entirely uncontroversial. The general approach, if not indeed the detailed requirements, of the Family Procedure Rules must, as Thorpe LJ holds, by extension apply to appellate proceedings.

 

So even though the firm of solicitors had been slapped by the Court of Appeal for getting a back door expert, and the Court of Appeal had given clear guidance on this exact point, they didn’t understand what it meant?

 

But all of that is okay, because the counsel representing them (although not a care lawyer, or indeed a family lawyer) is :-

 

 

a member of British Mensa and that he ‘by definition brings a Mensa-level intellect to the analysis of complex scientific and legal issues’

 

 

[If you are wondering, the quotation marks do indeed indicate that the Court of Appeal are quoting directly from counsel’s own skeleton argument. Yes, in a costs hearing in the Appeal Court, before Lord Justice McFarlane, this barrister put in writing that he was clever…. – not just in writing, but orally, and not just once, but “on a number of occasions”]

 

 

Oh. My. God.

 

If you aren’t cringing, writhing a tiny bit and dying a little bit inside on behalf of this man, you are a crueller person than even I am.

 

 

  1. Mr X’s approach to these proceedings readily supports the submissions that I have recorded from both of the opposing counsel to the effect that the case he presents comes from a totally different ‘world view’ and speaks in a ‘different language’ from that of the local authority and the child’s legal team. Mr X is a brave and confident advocate who gives the strong impression of believing the cause for which he advocates. These various factors, high intellect, a lack of understanding of the justification for the approach taken in family proceedings and the brave championing of a cause, are, in my view, the unhelpful cocktail of elements which have come together in counsel’s presentation of the parents’ case in these proceedings. The local authority seeks to hold the parents’ solicitors responsible for this on the basis that they selected the particular counsel for these hearings. That submission is, in my view, not sustainable when it is clear, as it is, that the argument that became the focus of the application and was then sustained on to the second hearing was crafted by counsel and not by the solicitors. Mr X told the court that, following receipt of Professor Nussey’s report, the solicitors sought his advice on the future viability of the application for permission and that as a result of that advice the case continued. An indication of counsel’s faith in his clients’ case at the second hearing was the very surprising information, as reported to me during the hearing, that Mr X had approach Ms Delahunty outside court to enquire if the children’s guardian was going to support the application for permission to appeal.
  1. My clear conclusion is that the manner in which the application for permission was pursued, after receipt of Professor Nussey’s report had removed from it any true validity, arose almost entirely from the wholly over optimistic judgment of counsel and not from any improper or unreasonable act or omission of the solicitors. By the end of the present hearing this understanding of events seemed to be shared by Mr Prest for the local authority when, after all of the submissions were complete, he made an application to include Mr X in the wasted costs application. I refused that application on the basis that the case had by then been heard and concluded on the basis that Mr X was not in the frame and that it would by that stage be oppressive to alter the focus of the application to include him.

 

 

Oh, I want to look at that again, let’s just do this one bit

 

Mr X is a brave and confident advocate who gives the strong impression of believing the cause for which he advocates. These various factors, high intellect, a lack of understanding of the justification for the approach taken in family proceedings and the brave championing of a cause, are, in my view, the unhelpful cocktail of elements which have come together in counsel’s presentation of the parents’ case in these proceedings

 

 

He was SO lucky to escape without a cost order.

 

 

It must have been fairly close as to whether the costs of the appeal hearing itself, were incurred as a result of advice which could not be sustained on the evidence.  It was in part, I think, the fact that it was counsel’s clear advice and driving of the process that absolved the solicitors from blame in not abandoning their appeal once the expert they had instructed (and attempted to nobble) hadn’t supported them.  If you can’t persuade an expert who you have blatantly tried to manipulate into supporting your case to support you, you really don’t  have a winnable case and that would be the time to abandon the appeal. They didn’t. They pressed on.  One can see from the previous blog and judgment just how much work went into that appeal hearing, particularly from leading counsel for the child, Ms Delahunty.

 

 

Of course, I could be wrong – perhaps the Mensa level intellect which counsel brought to bear in the case foresaw that as the Guardian and LA hadn’t included him in the wasted costs application, he could save his solicitors from a wasted costs order that was otherwise heading their way by convincing the Court that all of the faults were of his making. Perhaps he was nobly falling on his sword and was in reality blameless.

 

I would politely suggest that any counsel who are card-carrying members of Mensa to eschew the desire to flaunt this in front of the Court of Appeal in any future hearings.

 

 

[I’m sure 95% of Mensa members are witty, suave, urbane, good company, romantically successful, essentially happy, well-balanced, productive, helpful and fascinating, and that I have just been very  unlucky in meeting the small proportion who spoil it for them….   I did also remove an “a bit like the American Express advert – it’s four letters too long”  joke from this piece, but I’m sure you can work it out for yourselves]

 

 

If you are interested in instructing an overseas expert in care proceedings – perhaps you like paperwork, perhaps you enjoy the game of Russian Roulette that is incurring costs that the LSC might or might not underwrite, perhaps you just enjoy having telephone calls at 4.00am, there’s some guidance about how to do it, here :-

http://www.judiciary.gov.uk/JCO%2FDocuments%2FFJC%2Ffjc_guidelines_for_overseas_experts_Dec2011.pdf

 

 

 

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“A pair of star-cross’d lovers…”

Posted on February 5, 2013 by suesspiciousminds

 

Written agreements, love and difficult choices in care proceedings.

 

 This written agreement is prepared and entered into by the parents of Rose Smellsweet Capulet

 

 

It is accepted that the father of Rose,  Romeo Montague, will live apart from Rose and the mother, Juliet Capulet, whilst assessments are undertaken of him.

 

It is accepted that there is a need to undertake such assessments based on these three factors :-

 

(i)                 The age of Juliet when the relationship began, she being thirteen(nearly fourteen) at the time

(ii)                The conflict and tension between the paternal and maternal family

(iii)             The incident where Romeo is alleged to have stabbed Juliet’s cousin Tybalt

(iv)             The incident where it is alleged that both parents planned to commit suicide

 

 

The parents agree :-

 

 

  1. That Romeo will not visit the home of Juliet.
  2. That he will not visit the immediate boundaries of Juliet’s home (this having been added due to incidents where he was singing up at her balcony)
  3. That all contact between Romeo and Rose will be supervised by the Local Authority
  4. That Romeo and Juliet will not have communication face to face, or by letter, text message, email, instant messaging, , Lutebook or through intermediaries such as Nurse or Benvolio.
  5. That this written agreement will be reviewed once Dr Falstaff’s risk assessment has been received.

 

 

 

 

Ridiculous, of course, but some serious points emerge.

 

 

Within care proceedings, it is often the case that one parent is asked to separate, either temporarily or permanently , from another parent who they love, as a result of a risk posed by that parent to the safety of a child.

 

It is hoped that once assessments are in, or factual allegations determined, that the parents will be able to resume that relationship, with either there being no risk or the risk being determined as one which can be safely managed or reduced with specialist help.  But that doesn’t always happen.

 

Sometimes the care proceedings and decisions about the future turn on whether a parent can stick to their word and stay away from the risky partner. 

[I am trying hard within this piece not to fall into the stereotypical pitfall of implying that it is always safe mums and risky dads, although that is the more common category we see, I have had significant numbers of safe dads and risky mums too, and of course risky dads and risky mums in the same case]

 

 

There are really only three options where one parent is found to be a risk (and where the risk is determined to be substantial):-

 

  1. Let mum and dad look after the child together and take that risk that the child will be harmed
  2. Remove the child from harm and the mum and dad can live together but without the baby
  3. Ask the parents to live apart and for the child to live with the safe parent and manage the contact with the risky parent

 

 

Frankly, none of these are ideal, and the third one is the compromise position that is often reached, not as the best, but the least worst of the three.

 

 

Now, onto the points the fake written agreement is trying to touch on by using Romeo and Juliet as the particular example.

 

 

I think most people in the Western world would agree that Romeo and Juliet is one of our touchstones of romantic love and what it means to be in love. It means intensity, it means passion, it means one person in the entire world who is the one for you.   It means not being kept apart, no matter how much external forces try to split you up. It means being bound together being unable to live if not with the person you love.  It may even mean that if the world says you can’t be together you must keep your love a secret.

 The way the world sees and sells love, it is that consuming passion, the fire that burns within us.

 

All of which are really bad for option 3 above.

 

How realistic is it, really, to ask two people who are genuinely in love to be apart for the sake of a child when neither of them really wants to end the relationship? No matter what someone external might see as inherent crappiness of their relationship or how one partner “could do so much better” the truth of the matter is that for THOSE people, that love is real and vivid and powerful and emotional and painful as it is for any one of us who has ever been in love.

 

 

The point of using Romeo and Juliet is to remind ourselves that these parents in any particular case that we are looking at,  are in love, bound up with another person, with all that this means. It is easy enough to look at it purely from  the outside and say “of course he should leave this woman, she is awful to him and so dangerous to the child, it’s a no-brainer”   but you have to remind yourself that love and logic are strange bedfellows, and that for these people, their feelings and emotions and pain are just the same as yours would be, if you found yourself in that awful dilemma.

 

It is very hard to countenance, if you try to put yourself in these parents shoes for a moment, ending that relationship because someone else tells you that you should.  It is hard to end a relationship when you really want to, harder still when the other person ends it and you weren’t at that same place.  It is almost inconceivable to think of ending a relationship when the flames in both your hearts haven’t gone out.

 

That’s not to say that it is the wrong thing to do – looking at the three options above, the third is the least damaging for the child, who gets to live safely with one parent.

 

Just that really, what we ask of parents in this situation, whether we be social workers, experts, lawyers, family members or even the Courts, is HARD.  It might actually be the hardest thing that the parent will ever have to do in their life, and for that reason, it is not surprising that often these imposed separations don’t work out.

 

They crumble, or sometimes the risky parent (who after all has lost their lover but not gained a child) applies pressure for the relationship to continue, or attempts are made to keep the relationship going in secret. 

 

The temptation to introduce an option 4 to that unappealing list

 

4. The child lives with the safe parent, and so far as social services and the court are concerned, the relationship is over, but we keep it going and don’t get caught

 

Must be a massive one.

 

 

[Actually, I think the word “clandestine” is probably used more in care proceedings than any other walk of life, for exactly that reason.  ]

 

The other, slightly cheap shot, reason for using Romeo and Juliet to illustrate this piece, is that our greatest imagery of love and passion, our Platonic ideal of it if you like,  is involving a young man pursuing a 13 year old girl….

 

 

[There’s probably a whole other piece on looking at the examples people would give of “famous or inspiring lovers”    – Romeo and Juliet,  Anthony and Cleopatra, Richard Burton and Elizabeth Taylor, Heathcliffe and Cathy, Scarlett O’Hara and Rhett Butler, whoever the heck the couple are in Les Miserables,  Peter Venkman and Dana Barratt, Jane Eyre and Mr Rochester,  Lancelot and Guinevere, Juliet Roberts and Richard Gere in Pretty Woman, Elizabeth Bennett and Mr Darcy….  They are all pretty dysfunctional couples and a heck of a lot of hearts get broken or even stopped along the way]

 

 

i bet this ends well 

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Is there a meaningful right to silence in care cases?

Posted on February 4, 2013 by suesspiciousminds

We have all seen the sequence on television, the police arrest their suspect, snap the cuffs on and lead them away (probably pushing down on their head as they get them into the panda car) saying  “You do not have to say anything, but it may harm your defence if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence”

And the right to silence is enshrined in English law in the Police and Criminal Evidence Act 1984.  A person may be interviewed by the police and say nothing, or say “no comment” in relation to every matter put to them.

 

The jury would be directed that no inferences should be drawn about that, unless there is something that they later rely on and there was no good reason for them not to have said it in interview.

So, how do we square that with care proceedings, where the onus is on a parent to be open and honest, and they have to meet with professionals and talk to experts and have to give evidence, often in advance of the criminal trial?

Well, the primary protection is (or was intended to be)

 

Children Act 1989, section 98(1):

“In any proceedings in which a court is hearing an application for an order under

Part IV or V, no person shall be excused from—

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving

evidence,

on the ground that doing so might incriminate him or his spouse of an offence.”

 

 

And

 

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [or civil partner] in proceedings for an offence other than perjury.

 

 

 

So, ostensibly, a parent in care proceedings can give their evidence, either in a statement, or in oral evidence, knowing that it cannot be used against them  or their spouse for any offence other than perjury. 

[Note that there is no protection of it being used in prosecutions against your boyfriend or girlfriend, or cohabitee, or the father of your children, if you are not married to them]

 

There is no right to ‘plead the Fifth’ and “refuse to answer questions on the grounds that it may incriminate me”

 

The Court of Appeal clarified this in Re Y and K (Children) 2003

 

35. We are glad, therefore, to have the opportunity today of clarifying the situation. Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.

 

 

And then in Re O (Care Proceedings: Evidence) [2004] 1 FLR 161 the High Court ruled that where a parent was giving evidence and flatly refused to answer a particular question, the Court would be entitled to, and usually should, draw inferences that the allegations being put are true.

 

 

As a matter of public policy, it is vitally important that parents give evidence in care proceedings and set out their version of events, in order for the Court to best arrive at both the truth of disputed matters and a determination of what is in the child’s interests in the future. Candour is an extremely important feature of care proceedings, particularly where an allegation of physical abuse is being investigated, and one often hears that an admission, even at a late stage would be more desirable than an adverse finding being made after denials.   That is why there is no ‘right to silence’ imported into the Children Act 1989, but that does not mean that this should impinge on your right to silence in the criminal proceedings.

 

That places the parent in care proceedings, and most particularly in care proceedings involving a serious allegation which is also the subject of a police investigation, in a difficult situation.

 

They cannot refuse to give evidence, nor can they during their evidence, refuse to answer questions, and if they attempt to do so, the door is wide open for the Judge to make adverse findings against them.

 

Their protection then, such as it is, is the provision of s98(2) that in giving their account, this will not be used against them for any other proceedings other than perjury.

 

But how true is that, in reality?  

 

 

There were a swathe of cases in the mid 1990’s  about which statements were covered by s98(2) and which were not, and earlier decisions that any admissions or statements made to a social worker during the course of the proceedings WERE COVERED by s98(2) were then overruled by the Court of Appeal in Re G (Social Worker Disclosure) [1996] 1 FLR 276  who distinguished between admissions made to a Guardian (which WOULD BE covered by s98(2)  since the Guardian’s was a creature of the proceedings only) and to a social worker (who had a role and function outside of the court proceedings).

 

So, if you, as a parent are going to confess all, but don’t want to waive your right to silence in the criminal trial, it is best to do it to a Guardian and not to a social worker.  (Of course, the bigger problem for you will be getting any actual face-time with a Guardian to make your confession, since these days you’ll be lucky if they ever speak to you after the very first hearing)

 

 

The Courts have also ruled that statements or remarks you make to an expert during an assessment ARE covered by s98(2)  Re AB (Care Proceedings: Disclosure of Medical Evidence to the Police) [2003] 1LR 161

 

 

 

But in practice, what do the provisions of s98(2) mean? They are after all,  your bulwark against losing your right to silence in the criminal proceedings by virtue of the State having decided that transparency and candour in care proceedings is vital.

 

 

In Re EC (Disclosure of Material) [1996] 2 FLR 725  the Court held that the police could apply for, and be provided with, transcripts of a parents evidence, which would include their admissions, and that the police could use these to shape their investigation, including framing their questions for interview.

 

The transcript could not be produced as evidence in criminal proceedings for anything other than perjury, but the fact that their use for this purpose has become increasingly common  (you will often see the police making applications for disclosure following a finding of fact hearing) is troubling for s98(2)

 

 

In the course of writing this article, I came across a very splendid article on a similar topic, written by Sarah Cooper, a barrister at Thomas More Chambers. It is a good read, and it is only my chance to publicise it further that led me to not abandon my own post halfway through, Ms Cooper having done it so well in the first place.

 

http://www.familylawweek.co.uk/site.aspx?i=ed60575 

 

 

Ms Cooper makes the excellent point, which I would not in all likelihood have found, but which is incredibly important, that where a person in a criminal trial makes an inconsistent statement

 

“The Criminal Justice Act 2003 s119  provides that a previous, inconsistent statement by a witness which is put to him in criminal proceedings is now admissible as evidence of any matter stated of which oral evidence by him would be admissible.”

 

Raising the spectre of at least a debate or legal argument in the criminal proceedings as to whether the document the police have got their hands on through the care proceedings is admissable, to refute an inconsistent statement made by the defendant.   So whilst the admission made in Court may not be evidence ITSELF as to what it says, it may end up being imported as evidence that a statement made by the defendant to the contrary is untrue or at least in doubt.   As Ms Cooper suggests   “section 98(2) is a very leaky sieve indeed”

 

 

I have to say, that I don’t like any of the law on this that sprang up in the mid nineties.   I think that the Court tried to square a public interest in parents being free to make admissions in care proceedings whilst retaining their right to silence as against a public interest in the prosecution and detection of crime, and for me, they got the balance wrong.  I’m sure they genuinely felt that they had been able to do both, but it was a classic slippery slope. Once the police got a foot inside the door of the family court, it was only going to erode the intention of s98(2) over time to a point where it is now nearly meaningless.

 

For me there is a huge  and overriding public policy interest in openness and where a person makes an admission, that being recognised as a good thing, rather than a person running the risk that candour in care proceedings might well be punished in criminal proceedings.

 

I would like to see the law reset to s98(2)’s original intent, that a person could give their evidence freely within care proceedings without fear of external consequences, and to be able to be honest and open with social workers, guardians and the Court.

 

 [I think that the fact that the cases that pushed the door ajar pre-dated the Human Rights Act and particularly article 6, and particularly the inconsistent statement provision of the Criminal Justice Act 2003 means that the time might be right for them to be challenged]

 

 

Of course, the negative side of such a reset is that the police would no longer have access to this potentially valuable material collected within care proceedings, and that valuable police time might be spent chasing a red herring, or spending hours in trying to prove something which has already been admitted. 

 

I think it would be legitimate, where it is known that the police have charged X with an offence, for them to be formally notified, with a form of wording agreed by all parties and approved by the Judge, that the Court in the care proceedings determined that X DID NOT do this thing. 

 

That would avoid or reduce the risk that someone would be wrongly charged or prosecuted for an offence that has already been scrutinized in detail by the family Court.

 

 

 

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“A Judge too far”

Posted on February 4, 2013 by suesspiciousminds

 

 

A quick discussion on the Court of Appeal decision in Re J-L (Children) 2012

 

 

 

The Court of Appeal sat in a very short hearing to determine a case where a Judge, when dealing with a fact-finding hearing in care proceedings, made a particular set of findings that deviated from the schedule of proposed findings drawn up by the Local Authority and found that the children had witnessed inappropriate sexual behaviour whilst in the care of their mother.

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed111465

 

 

 

I blogged about this one prior to the full transcript being up, here:-

 

https://suesspiciousminds.com/2012/12/05/i-still-havent-found-what-im-looking-for-or-going-off-menu/  

 

 

based on the family law week summary that suggested that the Court of Appeal had ruled that it was not open to a Judge to make findings that were not on the menu / schedule of findings placed before him.

 

Reading the full transcript, I don’t think the Court of Appeal go that far at all. There is not, in my view, such a principle established by this case.

 

 In fact, although it is a short one page judgment, I can’t find a single sentence that hints at the Court of Appeal determining whether or not a Judge can go “off-menu”  – it simply didn’t fall to be determined as a result of matters I set out below.   

 

 [What they do say is that on the EVIDENCE before the Court, the particular finding made wasn’t one open to the Judge to find. 

 

It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property

 

[It being fairly pertinent that there was no material or allegation or disclosure before the Court that the children had witnessed this sort of thing. There is nothing unusual about the Court of Appeal saying that a Judge couldn’t make findings on the evidence before them, nothing new to see there.  But wait around, because the next bit is good]

 

 

 

By the time of the hearing, each of the parties had reached a decision that the finding the Judge made in relation to those matters was a step too far, and that it would be appropriate for that particular finding to be struck out. Indeed, the Local Authority had been in liaison with the other parties to try to formulate some wording which would be acceptable to all.

 

The Court of Appeal were rightly pretty irascible about  the need for an Appeal hearing at all, given that all parties were of the view that the findings needed to be adjusted and the offending paragraphs struck out

 

6. The outcome of that is that there is effectively no opposition to the appeal and I, having read the judgment and the documents that have been filed, readily accede to that position.  It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property. 

7. Why is it, I would ask rhetorically, that the court has had to sit this morning and counsel and those who attend them for the mother and the local authority have come from the north of England to London for a hearing which has taken a very short time and which is effectively not contested?  We were told that attempts were made to find an alternative form of words that all parties would accept in place of the words that this order from this court will now strike out.  That has not been possible and we were told by Mrs Clark for the local authority that the principal hurdle preventing that being accomplished was that the father’s legal team had failed to engage in the process in a way that either indicated total opposition or came up with a formula that they would have agreed to.  I understand what is said.  It is regrettable that nobody communicated with this court at an earlier stage to identify the fact that the appeal was not contested.  This court could have directed compliance if necessary from the other parties in a process of drawing up an agreed order.

8. That said, it seems to me that if any words are now to be put back into the gap that has opened up through the excision of the quoted words we are going to delete today, that is a matter for the parties and the lower court and not for the Court of Appeal, in the absence of any agreement.

 

 

 

I think it would be a risk, in any future appeal where some of the parties are seeking to avoid the need for an appeal by reaching a consensus to be the one lone wolf not engaging in that process.   (Of course, it is different if the party has a different view to the attempted consensus and there is a chasm which can’t be bridged, even following attempts, but here, it seems as though father’s team just sat out those discussions)

 

 

The Court of Appeal don’t really address what would actually happen in this situation on the ground.  There’s almost an implication that an appeal hearing isn’t needed if all of the parties could agree a form of wording on the finding in dispute.

Now, imagine that the Judge makes a string of findings, lets say 8 in all, and the parties then write to her after the Judgment and say  “None of us agree with you on finding 7, and we think you should say X”

 

 

There’s a bit of a difference in the parties doing that of their own accord, and the Court of Appeal having approved that. In the latter case, the Judge has been told that finding 7 won’t wash, and needs to be sorted out.

 

In the former, I can think of many Judges who would say “Well, thank you for your kind interest in my judgment, and contribution to it after the event”,  and then in tones similar to Miranda Richardson in Blackadder, add  “Who’s Judge?”

 

[If the Court of Appeal instead mean that the parties in this sort of situation in the future could have lodged their revised wording to finding 7 and the Court of Appeal could have just agreed it without a hearing, that also seems iffy to me.  A Judge wasn’t necessarily wrong, let alone plainly wrong, just because all four advocates think they were, and a determination as to whether they were ought to be for the Appeal Court, not just to rubber stamp an agreeement between the parties as to what the judgment OUGHT to have said. But I am, perhaps, old-fashioned in that regard. ]

 

Who's Queen?

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