Author Archives: suesspiciousminds

“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 :-

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 16^th October. The information withheld included a note of the 19^th September hearing, the letter of instruction to Professor Nussey, Professor Nussey’s report (which had been received on 3^rd October), the progress report sent by the parents’ solicitors to the Court of Appeal on 3^rd 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.

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.

In addition to the criticisms made of the litigation actions in the period between 19^th September and 1^st 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 19^th 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.

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.

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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Posted in case law, costs, experts, fact finding and tagged an unhelpful cocktail, cost hearings in court of appeal, Court of Appeal, fact-finding, fairness, instructing an overseas expert, instruction of an expert, instruction of overseas expert, mensa, Re A (A child) 2013, rickets, wasted costs. Bookmark the permalink.

“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 :-

That Romeo will not visit the home of Juliet.
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)
That all contact between Romeo and Rose will be supervised by the Local Authority
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.
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):-

Let mum and dad look after the child together and take that risk that the child will be harmed
Remove the child from harm and the mum and dad can live together but without the baby
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]

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Posted in assessment of risk and tagged can social services make me leave my girlfriend, can social services make me separate from my partner, clandestine relationship, do i have to split up to keep my child? can social services make me leave my boyfriend, find a convenient streetlight, having to split up for the children, laying everybody low, managing risk, risky partner, secret relationship, steps out of the shade, with the love song that he's made, written agreement. Bookmark the permalink.

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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Posted in case law, fact finding and tagged article 6, can i refuse to answer questions in care proceedings?, can i refuse to give evidence in care proceedings?, disclosure to the police, finding of fact hearing, making admissions in care proceedings, privilege against self-incrimination, refusal to answer questions, refusal to give evidence, right to a fair hearing, right to fair trial, right to silence, section 98(1) Children Act, section 98(2) Children Act, telling the truth in care proceedings. Bookmark the permalink.

“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. ]

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Posted in case law, fact finding, threshold criteria and tagged attempting to resolve an appeal, Court of Appeal, departing from schedule of findings, fact-finding, finding of fact, going off-menu, judge going further than findings sought, re J-L (Children) 2012, schedule of findings. Bookmark the permalink.

“Biological parent versus legal parents – OR Judge Fudge is far too busy being delicious”

Posted on February 1, 2013 by suesspiciousminds

A discussion of the High Court decision in Re S v D &E 2013, in which the High Court determined that a man who had donated sperm which led to the birth of a child could make an application under the Children Act 1989, although leave would be required. The case involved two separate families where the issues were similar (although of course the precise facts were different, and were bundled up together) – which becomes very important later on.

As promised, LO !

http://www.bailii.org/ew/cases/EWHC/Fam/2013/134.html

The issue really arises as a result of the provisions within the Human Fertilisation and Embryology Act 2008, to the effect that in this setting, where a man provides gametes in order to bring about a pregnancy, but that the biological mother of the child is in a civil partnership, the two women will be legal parents of the child and the donor will not be a legal parent.

The provisions of the 2008 Act relevant to these applications are ss.42(1), 45(1) and 48(1), (2) and (5). S.42(1) provides

“If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership, then … the other party to the civil partnership is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

S.45(1) provides, in so far as relevant to this application:

“Where a woman is treated by virtue of section 42 … as a parent of the child, no man is to be treated as the father of the child.”

S.48, so far as relevant to this case, provides:

“(1) Where by virtue of section … 42 … a person is to be treated as the … parent of a child, that person is to be treated in law as the … parent … of the child for all purposes.

(2) Where, by virtue of section … 45 … a person is not to be treated as a parent of the child, that person is to be treated in law as not being a parent of the child for any purpose.

….

(5) Where any of subsections (1) to (4) has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly.”

Therefore in this case, the donor is “not to be treated as the father of the child” and “is to be treated in law as not being a parent of the child for any purpose”

That prevents the donor from the ability to make an application for contact or residence as of right, as he is not a parent.

The more difficult question was whether the donor had the right to make an application to Court under s10(9) of the Children Act 1989 for LEAVE to make an application, or whether the provisions of the Human Fertilisation and Embryology Act 2008 were in effect a bar to such leave being given, as he is “not to be treated in law as being a parent of the child for any purpose”

The parents argument was the HFAE 2008 meant that the donor was not a parent of the child for any purpose, and that meant there was no connection to the child and so any application under s10(9) was doomed to failure, connection to the child being a key component.

It is a central feature of the argument advanced by Miss Russell on behalf of X and Y, and adopted and developed by Miss Fottrell on behalf of D and E, that the policy underpinning the reforms implemented in the 2008 Act is a material consideration for this court in determining the applications for leave under s.10(9).

It is manifestly clear that, by passing the 2008 Act, Parliament changed the law on donation to recognise lesbian parents as joint legal parents. Those provisions not only confer parenthood but also expressly eliminate the legal status of the man who is the biological father in such circumstances. Miss Russell submits that the provision that no man should be treated as the father ‘for any purpose’ affects the interpretation of every other legal enactment and private document and should be regarded as a fundamental and overriding provision. Miss Russell submits that Parliament could not have been more categorical about its intent to shelter recipient parents from any possible parental claim from a “donor”.

The respondents contend that, by providing that a man in the position of S and T is ‘not to be treated as the father for any purpose’, Parliament intended to protect families from precisely the type of conduct being demonstrated by the applicants in this case, which Miss Russell characterises as an “invasion of privacy and infringement of parental responsibility”. She argues that T’s application amounts to seeking a paternal role on the presumption that Z will benefit from the building of such a relationship with his biological father in addition to the relationship he has with his two existing legal parents. Miss Russell submits that the amendments to the law introduced by the 2008 Act represent a significant shift of policy away from the presumption that a child’s welfare is enhanced by the involvement of a father, towards an acknowledgment that alternative family forms without fathers are sufficient to meet a child’s needs.

Miss Russell submits that the effect of requiring “donors” in these circumstances to apply for leave is significant. Prior to the implementation of the 2008 Act, an applicant in the position of S and T was entitled to apply for contact as of right. Previous cases have been heard under a different legal framework in which the applicant man was the legal father and the welfare of the child was, from the outset, the court’s paramount consideration. In contrast, under the present application, the applicants are not legally the fathers of the children and welfare is not the paramount consideration of the court and the court is considering the section 10(9) criteria in the context of, and in conjunction with, the provisions of, and policy underpinning, the 2008 Act. Granting an applicant in these circumstances leave to apply for orders under s.8 would, she argues, seriously undermine that policy.

The donor’s argument was that s10(9) applied and he could make an application for leave, and that it would be for the Court to determine whether his application for leave should be granted, applying all of the usual tests.

In response to these submissions, Miss King deployed an extensive range of arguments, but her central submission can be simply summarised. She accepts that the effect of the reforms implemented by ss 45(1) and 48(2) of the 2008 Act was to remove the status of legal parent from a man who provides sperm for the artificial insemination of a woman in a civil partnership, but submits that this does not eradicate his status as a genetic parent who may, depending on the facts and whether or not he satisfies the criteria under s.10(9), be allowed by the court to apply for an order under s.8 of the Children Act in order to play a role in the life of the child. Although parental responsibility is vested exclusively in the mothers of the children, Miss King submits, relying on dicta of McFarlane LJ in Re W (Children) [2012] EWCA Civ 999, that with parental responsibility comes both authority and duty and argues that, as the legal parents to Z, part of the role assumed by X and Y involves making responsible decisions which meet the best interests of their child including permitting contact with his biological father. If they are unable to agree to do so, then, submits Miss King, the court must intervene on behalf of the child

Miss King submits that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood. In some circumstances, a legal parent may not have a day to day relationship with a child whereas a person with a significant social or psychological relationship may be a stable and constant presence whilst lacking the status of a legal parent. Miss King submits that to contend for the notion that a biological father has an inherently higher test to meet than would others who are not legal parents to the subject child is to ignore the fact that leave to apply is only ever required when the applicant is not the legal parent. No person is absolutely excluded from seeking redress, although, save in certain defined circumstances, an application for redress cannot be made without the court’s leave. Miss King reminds me that this is the position faced by biological fathers without parental responsibility in other circumstances(see Re H (illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214), and also by step-parents (Re H (Shared Residence: Parental responsibility)[1995] 2 FLR 883 and Re A (Joint residence/Parental responsibility)[2008] 2 FLR 1593) and same-sex partners who have no biological relationship with the subject child but are playing the role of the parent (G v F (Contact and Shared Residence: Application for Leave [1998] 2 FLR 799). Miss King submits that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently.

Miss King submits that, had Parliament intended that a person in the position of the respondents in this case should be entirely stripped of legal remedies, it would have expressly provided that a progenitor in these circumstances would be disqualified even from seeking the court’s leave. In the absence of such an express provision, the policy considerations advanced on behalf of the respondents should not be used to trump or outweigh the statutory criteria for granting leave under s.10(9).

In developing Miss King’s arguments on this point, Miss Reardon submits that the terms of s.42 of the 2008 Act do not limit a child’s parentage to the two mothers in anything but the strictest legal sense. Therefore, she argues, the Act cannot operate as a blanket ban on any application by a biological father. The fact that the terms of the 2008 Act require that a man in a position of S and T ‘is to be treated in law as not being a parent of the child for any purpose’ is a very different thing from excluding him from making an application for leave to apply for an order under s. 8 of the Children Act. In fact, she submits, biological parents who are not legal parents continue to be treated as the parents of their children for a number of purposes, for example in order to obtain information about a genetically-related medical condition, or to provide the child with an understanding of his biological heritage and identity.

The Court took pains to point out a number of times in the judgment that in dealing with cases where there were two legal parents and two biological ones and not necessarily a complete overlap between those two sets of “parents” most of the decisions were likely to turn on the facts specific to that case.

This was also the case advanced by the donors (there being two cases of similar type ‘bundled up’ and heard together)

Ultimately, the cases advanced on behalf of the applicants focus on the facts. Central to the case advanced on behalf of the applicants is the argument that each case is fact specific. They submit that the policy considerations underpinning the 2008 Act do not entitle or oblige the court to refuse an application for leave in every case. In some cases, it will be appropriate to grant a genetic or psychological parent leave to apply for contact, in others not. In support of this submission, Miss King relies on the decision of the Court of Appeal in A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285 [2012] 2 FLR 607. In that case, both Thorpe LJ and Black LJ (at paragraphs 23 and 39 respectively) stressed that decisions in disputes between two female parents and a male parent are “so fact specific’. As a result, Black LJ concluded that ‘this is an area of law in which generalise guidance is not possible’. Miss King acknowledges that A v B and C was a case in which the biological father was entitled to apply for contact as of right and the court was thus applying the paramountcy principle. She submits, however, that the observations of the Court of Appeal support the argument that the court should adopt a fact-specific approach to the application for leave in this case, rather than attaching any significant weight to the policy considerations identified by the respondents.

And that it would therefore be a consideration by the Court of the facts in the particular case as to whether a donor should be granted leave under s10(9) rather than interpreting that the policy underpinning the provisions of the HFEA 2008 meant that as a matter of public policy such a s10(9) application for leave should be refused.

The Court, as you will see from the conclusion of the judgment, was in agreement with the applicant, that it was a case specific decision on the facts as to whether s10(9) leave should be granted, and went on to do so.

112. Discussion

I accept the submission put forward on behalf of the respondents to these applications that the reforms passed by the Human Fertilisation Embryology Act 2008, and the policy underpinning those reforms, are material considerations for this court in determining this application for leave under section 10 of the Children Act 1989. The effect of sections 42(1), 45(1) and 48 (2) of the 2008 Act is that S and T are not to be treated in law as the parents of, respectively, G and Z for any purpose. I endorse the submissions that the policy underpinning these reforms is an acknowledgement that alternative family forms without fathers are sufficient to meet a child’s need. It is now established beyond doubt that the relationship between a same-sex couple constitutes ‘family life’ for the purposes of article 8: see Schalk and Kopf v Austria[2010] ECHR 995. Thus, D, E, F and G have a family life together, as do X, Y and Z, that is entitled to respect under article 8. Thousands of children in this country are being brought up happily and successfully by same-sex couples. ‘As the usages of society alter, the law must adapt itself to the various situations of mankind’ (per Lord Mansfield in Barwell v Brooks (1784) 3 Doug. 371).

To my mind, the policy underpinning sections 42(1), 45(1) and 48(2) of the 2008 Act is simply to put lesbian couples and their children in exactly the same legal position as other types of parent and children. This is in my judgment the clear intention of Parliament. I do not see any ambiguity in the wording of the Act which, under the rule in Pepper (Inspector of Taxes) v Hart [1993] AC593, is required to justify the court considering reports of recordings in Parliament as an aid to statutory interpretation.

Any person who seeks a s.8 order in respect of that child against the wishes of such parents must obtain the leave of the court which will consider all relevant matters including the factors identified in s.10(9) as explained by Black LJ in Re B (Paternal Grandmother: Joinder as Party). As part of that analysis, the court will consider the rights of legal parents to family life including the right to make decisions about their children. Those rights are widely recognised both as a long standing principle of English law and under article 8. In this regard, the position of a lesbian couple who have been granted the status of legal parents by the 2008 Act is exactly the same as any other legal parent. Having taken those rights into account, however, it is still open to the court, after considering all relevant factors, to grant leave to other persons to apply for section 8 orders. In this regard, the position of biological fathers who have been deprived of the status of legal parent by the 2008 Act is the same as any other person.

As a matter of law, Miss Russell and Miss Fottrell are right to describe S and T as strangers to G and Z. But in another sense, they are not strangers. As a result of choices made by the respondents, both S and T had regular and frequent contact with G and Z respectively. D and E chose S, an old friend of D’s, who lived 100 yards or so away, to provide sperm to enable them to conceive a child. They involved him in preparations before the birth. They invited him to see the new baby, F, immediately after birth and thereafter on a regular basis. When they decided to try for another child, they asked him to provide sperm again. They wanted their second child to have the identical genetic background to their first. Again, they involved S in the preparations before the birth and allowed him regular and frequent contact thereafter. I acknowledge that D and E say that, in some respects, they were acting under a degree of pressure when they involved S in those preparations and arranged the regular and frequent contact with the children, but the fact remains that, for whatever reason, they did involve him in this preparation and did allow him contact. Equally, D and E challenge the quality of the contact S had with F and, in particular, G, saying that, when he visited the home, it was mainly to pay a social call on his old friend D. S does not accept their evidence on these points. Irrespective of the truth about these issues, which can only be resolved after a substantive fact-finding hearing, it is clear, on either version and irrespective of the legal position, that S was not as a matter of fact a stranger to the children. Furthermore, although again no finding on the point can be made without a substantive hearing, it is in my judgment arguable that the relationship that D and E allowed S to develop with the children was linked in some way to their biological relationship.

Equally, X and Y, having met T through D, E, and S, and being fully aware of the degree of involvement S had in F’s life, selected T to provide sperm to enable them to conceive a child, and subsequently allowed T frequent and regular contact on over 50 occasions in the first 18 months of Z’s life. Again, X and Y assert that they were to some extent put under pressure by T to allow that level of contact. They too challenge the quality of the contact. Again, T does not accept their arguments on these points. Again, irrespective of the truth of those issues, which can only be resolved by a substantive fact-finding hearing, and irrespective of the legal position, T is not a stranger to Z. Further, it is to my mind again arguable that the relationship that X and Y allowed T develop with Z was linked in some way to their biological relationship. In their case, it is also significant that they expressly wanted T to be a role model for Z. They could, of course, have chosen any of their relations or other friends to be a role model, but the fact is that they chose T, the biological father of their child, for that purpose. Although no finding can be made without a substantive hearing, it is at least arguable that their choice of T as a role model for Z was again linked to their biological relationship.

By choosing friends, S and T, to provide sperm to enable them to conceive children, and by allowing them to have regular and frequent contact and to place some role (albeit disputed) in the lives of their families, D and E in one case, and X and Y in the other, were exercising their parental responsibility to facilitate some sort of relationship between their children and their biological fathers. This illustrates the true effect of the reforms implemented in sections 42 (1), 45 (1) and 48 (2) of the 2008 Act. D and E, and X and Y, have been granted full and inclusive parental responsibility for G and Z, to the exclusion of the biological fathers. They consciously exercised that responsibility by allowing S and T regular contact with the children. The 2008 Act empowered them to take this course. It did not deny them the right to do so. No doubt there will be some lesbian couples who, after having children by artificial insemination, not only allowed the biological fathers to have contact with the children but also encouraged them to play a full parental role and be recognised as fathers. The 2008 Act denies the biological father the status of legal parent, but it does not prevent the lesbian couple, in whom legal parenthood is vested, from encouraging or enabling the biological father to become a psychological parent. On the contrary, it empowers the lesbian couple to take that course as the persons in whom parental responsibility is vested.

Accordingly, I reject the respondents’ submissions that granting leave to the applicants would have the effect of frustrating the legislative intention behind the 2008 reforms. I accept Miss King’s submissions that the potential importance of genetic and psychological parenthood is not automatically extinguished by the removal of the status of legal parenthood, and that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood. She is correct that no other person is absolutely excluded from seeking redress and I accept her submission that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently. Had Parliament intended that a person in a position of the applicants in this case should be entirely stripped of legal remedies, it would have expressly provided that a person in the position of S and T in these circumstances would be disqualified even from seeking the court’s leave.

Furthermore, whilst following the decision in Anayo v Germany, that a biological kinship between a natural parent and child alone will be insufficient to attract the protection of article 8 of ECHR, it is plainly arguable that the relationships which D and E allowed S to establish with G, and which X and Y allowed T to establish with Z, amount to ‘family life’, or alternatively fall within the scope of ‘private life’, so that a refusal to allow the applicants at least permission to apply for orders under section 8 of the Children Act would amount to a breach of their rights under article 6 and 8.

I further accept Miss King’s submission, supported by Miss Reardon, that this court must adopt a fact-specific approach to these applications for leave, by a careful scrutiny and application of the factors under section 10(9), and considering the merits of the proposed applications as required by case law. I therefore turn to consider the application of the criteria under section 10(9), starting with S’s application for leave to apply in respect of G.

And in terms of any general principles to be extracted

Conclusions

When considering an application by a biological father for leave to apply for an order under s.8 of the Children Act 1989 in respect of a child conceived using his sperm by a woman who, at the time of her artificial insemination, was party to a civil partnership, the reforms implemented in ss 42,45 and 48 of the Human Fertilisation and Embryology Act 2008, and the policy underpinning those reforms – to put lesbian couples and their children in exactly the same legal position as other types of parent and children – are relevant factors to be taken into account by the court, alongside all other relevant considerations, including the factors identified in s.10(9) of the Children Act. In some cases, the reforms, and the policy underpinning those reforms, will be decisive. Each case is, however, fact specific, and on the facts of these cases, having considered all submissions from all parties, I find that the most important factor is the connection that each applicant was allowed by the respondents to form with the child.

As has been commented by the solicitors who were advising and representing the legal parents of the child, it becomes therefore extremely important that a clear understanding is reached and ideally recorded, about what each of the three parties involved (the biological mother, father and the legal parent who is the partner of the biological mother) intend and propose about the involvement (if any) that the biological father should have in the child’s life.

Warning, next section for law geeks only

All of the above is potentially interesting to the lay person, and I am sure the case will hit the national press, containing as it does the nature of the modern family, battling parents and the chance to be partisan based on ones political persuasion.

The next bit is not interesting to the lay person, and may possibly only be interesting to about five people in the country. Sorry to be one of them.

The Judge had painted himself into a bit of a corner, since on the first case, he had granted s10(9) leave and then on hearing the more substantive public policy arguments deployed by the legal parents on the second case, wanted to bundle both up together and consider both arguments together. But the s10(9) leave had been given, and there is no scope in the Children Act 1989 to give that leave and then hear an application to remove it. So, it was either find the power to revoke the order, or the case would have to go upstairs to be appealed.

That led to a very odd but potentially significant sidebar discussion about whether a Court has the power to revoke its own order, or whether having made it, the Court was stuck with it, and the redress was limited to an appeal.

Rule 4.1(6) of the Family Procedure Rules 2010 (“FPR”) provides that ‘a power of the court under these Rules to make an order includes a power to vary or revoke the order’. Rule 4.1(6) is, of course, subject to the overriding objective of the FPR as set out in rule 1 “to deal with cases justly”, meaning inter alia so far as practical ensuring that parties are on an equal footing and that the case is dealt with expeditiously and fairly.

Which initially suggests that the Court does have a pretty sweeping power to revoke its own order, providing that it doesn’t put the Court in conflict with the overriding objective.

However,

No party drew to my attention any previous case in which the scope of rule 4.1(6) has been considered, but the rule is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, which has been considered in a number of cases in the context of civil claims. In Lloyd’s Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) Patten J (as he then was) considered this power on an application by a defendant for variation of an order made by a deputy judge setting aside an earlier judgment obtained in default of defence, on terms that the defendant should pay a sum into court within 28 day At paragraph 7, Patten J said of rule 3.1(7) :

‘Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.’

In Collier v Williams [2006] EWCA Civ 20, the Court of Appeal, (Waller, Dyson and Neuberger LJJ), considered the ambit of rule 3.1(7) amongst a number of provisions of the CPR. Giving the judgment of the Court, Dyson LJ at paragraphs 39-40 cited the passage quoted above from the judgment of Patten J in Ager-Hanssen and added:

‘We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).’

Later, at paragraphs 119-120 he said:

‘this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion …. In short, therefore, the jurisdiction to vary or revoke an order under CPR 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.’

In Edward v Golding [2007] EWCA Civ 416, Buxton LJ (with whom Wilson and Moses LJJ agreed) cited the above passages from judgment of Patten J in Ager-Hanssen and the judgment of Dyson LJ in Collier v Williams and observed (at paragraph 24):

‘The basis of that jurisprudence is that the jurisdiction under rule 3.1(7) is not a substitute for an appeal. There must be additional material before the court in the form of evidence or, possibly, argument. I would reserve the issue of whether additional argument in itself is enough to attract the jurisdiction of rule 3.1(7), but the general thrust of Collier is that the case before the court before which rule 3.1(7) is moved must be essentially different from one of simple error that could be righted on appeal.’

In Roult v North-West Strategic Health Authority [2009] EWCA Civ 444 , the Court of Appeal rejected an argument that rule 3.1(7) could be utilised to vary or revoke an order approving a settlement in a personal injury case. Hughes LJ observed:

‘There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. …. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. …. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’

Giving some qualification to the power to revoke. And of course, granting leave under s10(9) could be argued to be a FINAL order in that application for leave. The application for leave is determined one way or another. If granted, then the Court then moves on to the application for residence or contact. As you can see from the above, it appears pretty plain that the ability to revoke an order is limited to interlocutory and not final orders. That all suggests then that the High Court couldn’t revoke its own order granting s10(9) leave and consider the case afresh in the light of these new public policy arguments.

But clearly, the High Court Judge wanted to hear both of these cases and reach a fair decision, and therefore wanted to be able to set aside or revoke his original order granting s10(9) leave, to start with a blank slate when considering the arguments. [You might think, when reading this argument, that you can detect the delicious taste of fudge]

At the hearing on 22^nd November, D and E, appearing in person, put forward only a limited range of arguments in opposition to S’s application for leave to apply for orders in respect of G. Those arguments focussed on the factual background, referring only briefly to s.42 of the 2008 Act. The skeleton argument prepared by Miss Russell QC on behalf of X and Y in the second case deploys a much wider range of arguments, based not only on the facts of that case, and, as one would expect, a closer analysis of the application of s.10(9) of the 1989 Act to those facts, but also on the policy considerations underpinning the reforms effected by the 2008 Act. The filing of that skeleton therefore gave rise to the prospect that, although the facts of the two cases were not only interlinked but also in many respects similar, the outcome of the applications for leave might be different if the court accepted the policy-based arguments deployed by leading counsel for the respondents in the second case but not cited by the self-represented respondents in the first.

Having regard to the overriding objective of FPR, I concluded that such an outcome would be potentially unfair to D and E, and therefore to G. In those circumstances, I decided that it would be an entirely appropriate use of the power under rule 4.1(6) to set aside the order of 22^nd November. To my mind it was unnecessary to analyse whether the new information which would be advanced on behalf of D and E was ‘fact’ or ‘argument’. It was, in my view, new material which the court had not considered at the previous hearing.

An order granting leave to apply for orders under s.8 of the Children Act is a case management order. It is not a “final” order in the sense of an order that determines the substantive outcome of the proceedings. The court is obliged under the rules to exercise its case management powers in accordance with the overriding objective. Setting aside the order allowed the court to consider the two linked applications together, and apply its conclusions on the policy-based arguments to both cases. Such a course would not be unfair to S. Only a few weeks would elapse between 22^nd November and the re-hearing of his application for leave. S would be able to deploy the same arguments based on the facts that had prevailed at the first hearing. He would in effect be in the same position as T.

Overall, I concluded that the interests of justice would be best served by a re-hearing at which the court had ample opportunity to consider all the relevant arguments on both applications, followed by a reserved judgment. I therefore set aside the order of 22^nd November, and as explained above the two applications were heard together.

I think that this is the right decision for the case and was the right thing to do, but there’s some squashing and stretching that had to be done. Mmmm, delicious Judge-made Fudge.

But there you are,

A Court can revoke any order it makes prior to the final order (and granting of leave doesn’t count as a final order) if there is evidence to show that it is the right thing to do, and doing so doesn’t conflict with the overriding objective to conduct a case justly and expeditiously.

If you did make it that far down, here is a picture of Drawn Together’s Judge Fudge, who is laid back and is always “far too busy, being delicious” [Drawn Together is magnificent, but really I cannot emphasise enough that it is Not Safe for Work, so do not watch it in your office]

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Posted in case law, private law and tagged biological parent, can a court revoke its own order, case about donor wanting contact, case about sperm donor, far too busy being delicious, human fertilisation and embryology act, Judge Fudge, legal parent, RE S v D and E 2013, revoking a court order, section 10 (9) Children Act, sperm donor, sperm donor can have contact. Bookmark the permalink.

Letters of Destruction

Posted on February 1, 2013 by suesspiciousminds

You may well have heard that the new guidance on the instruction of experts came into force today. If it is actually enforced, it will significantly reduce the number of experts and at the same time significantly increase the amount of preparatory work prior to requesting the involvement of an expert.

The Ministry of Justice published a jolly and triumphal press release about it, here

http://www.judiciary.gov.uk/media/media-releases/2013/tighter-rules-introduced-on-expert-evidence-family-cases

“New rules come into force today which will mean judges can streamline proceedings in family courts by reducing the number of expert witnesses who have to give evidence.

Up to now, evidence from experts including psychologists, doctors and others would be heard if it was “reasonably required”. Now the judge will apply a tougher test and only allow the evidence if it is “necessary”.

The President of the Family Division, Sir James Munby, said:

“There is no question of families being denied the chance to call evidence they need to support their case or being denied a fair hearing. But the new test gives judges more control over expert evidence in family proceedings. The rule change gives family judges the means to make robust case management decisions to make sure the expert evidence is focused and relevant.”

“ This change underlines the key role of the court in determining what expert evidence it requires to help it reach the decisions in a case.

“This change is a vital component of the active judicial case management that will be needed to prepare the ground for the new Single Family Court, due to come into being in April 2014.”

The rules substitute a new Part 25 (Experts and Assessors) into the Family Procedure Rules and will apply to existing proceedings as well as those started after today’s date.

In addition, controlling the use of expert evidence has been added to Rule 1.4 of the Family Procedure Rules governing active case management.

The key changes to the existing Part 25 include:

a change to the test for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary’.
a list of factors to which the court is to have regard in reaching a decision whether to give permission, including the impact on the timetable and conduct of the proceedings and the cost of the expert evidence. Additional factors are specified in proceedings involving children. These include what other expert evidence is available, including any obtained before the start of proceedings, and whether the evidence could be obtained from another source, such as one of the parties or professionals already involved in the case;
in proceedings involving children, an application for permission to instruct an expert should state the questions which the expert is required to answer and, where permission is granted, the court will give directions specifying the questions that are to be put to the expert.”

I was interested in the very last bit – the Court approving the questions and setting them out in the order approving the instruction, because I wasn’t entirely sure that this claim was actually delivered in the changes, so have pressed a little further, and found that it IS, if the practice direction is followed (yeah, right) :-

http://www.judiciary.gov.uk/Resources/JCO/Documents/Practice%20Directions/family-div-procedure-rules-2010-practice-directions-amendments-consolidated-04122012.pdf

Well, it does seem, that if the Practice Direction is followed (ha!) then rather than coming to Court with a name of an expert and some timescales, there should be a proper application, accompanied by a draft order [my underlining]

3.11 FPR 25.7(2)(b) provides that a draft of the order giving the court’s permission as mentioned in FPR 25.4 is to be attached to the application for the court’s permission. That draft order must set out the following matters—

a) the issues in the proceedings to which the expert evidence is to relate and which the court is to identify; b) the questions relating to the issues in the case which the expert is to answer and which the court is to approve ensuring that they

(i) are within the ambit of the expert’s area of expertise;

(ii) do not contain unnecessary or irrelevant detail;

(iii) are kept to a manageable number and are clear, focused and direct; c) the party who is responsible for drafting the letter of instruction and providing

the documents to the expert; d) the timetable within which the report is to be prepared, filed and served; e) the disclosure of the report to the parties and to any other expert; f) the organisation of, preparation for and conduct of any experts’ discussion

(see Practice Direction 25E – Discussions between Experts in Family Proceedings); g) the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion; h) making available to the court at an early opportunity the expert reports in electronic form;

i) the attendance of the expert at court to give oral evidence (alternatively, the expert giving his or her evidence in writing or remotely by video link), whether at or for the Final Hearing or another hearing; unless agreement about the opinions given by the expert is reached at or before the Issues Resolution Hearing (“IRH”) or, if no IRH is to be held, by a date specified by the court prior to the hearing at which the expert is to give oral evidence

And then also, it appear that the party seeking the instruction should send the draft order and questions in to the Court in advance of the hearing

Asking the court to settle the letter of instruction to a single joint expert

6.1 Where possible, the written request for the court to consider the letter of instruction referred to in rule 25.12(2) should be set out in an e-mail to the court and copied by e-mail to the other instructing parties. The request should be sent to the relevant court or (by prior arrangement only) directly to the judge dealing with the proceedings. In the magistrates’ court, the request should be sent to the relevant court or (by prior arrangement only) to any district judge (magistrates’ courts ) hearing the proceedings (and copied to the legal adviser) or to the legal adviser. The court will settle the letter of instruction, usually without a hearing to avoid delay; and will send (where practicable, by e-mail) the settled letter to the lead solicitor for transmission forthwith to the expert, and copy it to the other instructing parties for information.

Well, my first cynical take on this is that this simply won’t happen. There’s quite a lot of this that was already in the Practice Direction on Experts which everyone cheerfully ignored. It is that traditional Practice Direction stance of rather than making two or three solid suggestions that everyone can follow, that you introduce a blizzard of utterly unworkable schemes all at once to the point where everyone takes one look at it and concludes that it is best to just pretend the whole thing doesn’t exist.

If it IS going to happen, and that the Judge refuses any expert assessment where the request is not Practice Direction compliant [and that really depends on whether they are being sternly told behind the scenes that this is what they must do], then we are going to end up with an awful lot of adjourned CMCs, where we have to come back to Court and do it all again, only this time with reams of paperwork.

[If a party seeks an expert assessment, and doesn’t come with all of the paperwork and the CMC has to be adjourned, are they at risk of costs orders? Yet another reason for ducking being the lead on any assessment or proposed assessment]

If it IS going to happen, two major practice points arise. Firstly, the advocates meeting before the CMC would need to be happening much earlier than the two working days prior that it currently is (which in reality will just mean a later CMC). Secondly, whichever of the two parents lawyers decides to be the lead on the instruction of an expert, is going to have a huge amount of work in organising that instruction, far far more than at present, and their profitability (ha!) in the case probably immediately goes down the Swanee river.

So, if you are only looking for one expert, expect to see some quarrels at the advocates meeting about whether mother or father’s team should be the lead; as neither of them will really want to take on this burden.

[I also expect that counsel attending these advocates meetings will regularly find in their brief “under no circumstances agree to us being the lead on the expert” – we squabble about ‘who has to be the lead’ now, when very little is involved, but this is now a massive volume of work]

This may, cynically, be the way that the Government intend to reduce the number of experts – it hasn’t been possible to get the Courts to refuse assessments (being that they tend to follow the line of the Court of Appeal, which has been very pro-second-opinion), so they will just make it very very unattractive for those representing parents to actually make the applications.

So, watch this space for the first appeal from a Court who refuse an expert assessment because this Practice Direction has not been complied with.

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Posted in costs, experts, family justice modernisation and tagged expert, experts in care proceedings, instruction of experts, lead solicitor, letter of instruction, practice direction. Bookmark the permalink.

Would we want The Truth to be out there?

Posted on January 29, 2013 by suesspiciousminds

A bit of a thought experiment / debate about ethics, and whether finding the truth is the be all and end all of Court cases.

In Douglas Adams series of “Hitchhiker’s Guide to the Galaxy” books [which also contains the immortal line “the ships hung in the sky in much the same way that bricks don’t”] there is a minor character named Prax. Prax is about to give evidence in a trial which is interrupted by an attack, just as Prax is being administered a dose of truth serum. As a consequence, he is given too much, much too much, just before he is told to “tell the truth, the whole truth, and nothing but the truth”

This leads to him telling the Court everything about the universe (on the same sort of basis of Neil Gaiman’s theory that we all know how to fly, and in dreams we just remember how to do it, but we always forget on waking) and sending everyone in the vicinity completely insane. A lot of it turns out to be about frogs.

So, here is my thought experiment.

If a new chemical is invented, which does this: – “Absolute 100% guarantee, clinically tested, incontrovertible evidence, that it compels a person to answer questions truthfully, it lasts for one hour, it has no side-effects either during or afterwards, it causes no pain or discomfort and is completely safe”

Would it be okay to give that truth chemical to a parent in care proceedings who is suspected of having caused very serious physical injuries to a child, before you hear their evidence?

You can go on, if you like, to consider whether the truth chemical should be administered to social workers and Guardians – I’m happy to be an equal opportunity administer of Truth Drugs, I was just starting with the strongest case I could think of in a family Court setting.

[This obviously has similarities to the ‘you’ve captured a terrorist, and he knows where a bomb is, would you torture him?’ debate, but my answer to that is always unequivocally no, I wouldn’t; so I tried to capture something where the process itself was (a) guaranteed to produce a truthful answer and (b) harmless to the recipient]

Assume for this thought experiment that the Truth Drug is administered by a trained professional and that the Judge has rigorous control over the questions that are asked, to keep them pertinent and on point and not into other prurient areas. And that section 98(2) utterly applies and that no evidence given in the care proceedings would be admissible for any criminal offence [The only one it is admissible for is perjury, and that then becomes an impossible offence to commit]

On the plus side of administering the Truth Serum would be this:-

The Court want to get to the absolute truth of what happened to the child.
Our current process allows us to get an approximation of the truth, often very close, but never to get a definitive version.
It would be able to absolutely exonerate either the witness or other people under suspicion
If there really was an assault on the child, knowing the exact circumstances and the triggers allow for much greater protection in the future, and probably increase the chances that the child could be in the care of the parent and the risks safely managed.
It dramatically cuts down on the time delay of obtaining all of the records, expert reports, waiting for a hearing, and gets the Truth of the case established quickly, so that things can move on.
If the parent is exonerated, because they did nothing wrong, all lingering doubt and suspicion goes, and there’s no residual worry. And it gets resolved quickly.
Judge time is spent effectively hearing a proper truthful account of the events in question, rather than a forensic dissection of reams of paperwork and conflicting accounts.
If one parent did cause the injury, the other hears that ‘from the horses mouth’ and has no doubt whatsoever about what happened, as opposed to the present situation where sometimes a Judge’s findings are not really accepted.
We clearly WANT a person to tell the truth in evidence, that’s why the offence of perjury exists, that’s why they are given an oath and promise to tell the truth, if this is harmless, you’re not asking the person to do anything more than they are expected and asked to do when giving evidence anyway
We would never end up getting it wrong about serious allegations of physical abuse or sexual abuse, the Court would never have to make an informed deduction and risk getting it wrong. No miscarriage of justice about the facts any longer.

On the negative side :-

1. Free will (this is a big one, and goes to the heart of it really). It is akin to Anthony Burgess’ debate in “A Clockwork Orange” about Ludovico’s Technique – if you could MAKE people behave properly and remove the choice for them to behave in appalling ways, is that worse than having the free will to behave awfully and exercising it?

I.e is giving people the power to lie, even about the things that would absolutely be unequivocally better to know the truth about such as how a child came to have a broken leg, more important than always knowing the Pure truth?

2. The risk that someone might, potentially, feel guilty and feel that they had caused the injury, and thus confess to something they genuinely believed to be true, but that wasn’t objectively true.

3. The risk that an off-topic question gets blurted out and answered – for example, a father is in the midst of giving evidence and the mother shouts “Did you have sex with Miriam Margolyes?” and the father answers, or “Do you still love me?”

4. That in some way it reverses the burden of proof – it is suddenly up to the parents evidence to exonerate them, not up to the Local Authority to prove what happened.

5. It takes the need for lawyers out of finding of fact hearing cases (you wouldn’t need lawyers to ask the questions, the Judge could just ask what she wanted to know). Some might, I know, consider that not to be a negative but a positive.

I’m struggling to think of other negatives, and that’s not because I’m wanting to stack the deck in favour of Truth Serum. I actually feel, in my heart, that I would be against Truth Serum, even though I absolutely believe in the advantages of getting to the real truth, rather than the fumbling in the dark that we have to do, even with all the best forensic scrutiny we can, asking questions aimed at deducing the truth is nowhere near as good as asking questions and KNOWING that the answers given are truthful.

I’d be very interested to know if others feel the same, or if the Truth Serum really had the certainties and safety features I’ve speculated about in the thought experiment, whether others would prefer to just have it administered and get to the absolute Pure truth and not our judicial approximation of it.

[Digression alert!]

That has now led me to a quick exploration of our existing “truth serum drug”, which is sodium pentothal.

There’s clearly such a huge political/military/law enforcement interest in a Truth Serum which works in the sort of way I have described that it is not necessarily merely a thought experiment. If it is possible for a chemical to do this – and sodium pentothal gives a glimpse that it might conceivably be, there’s huge money involved in anyone who can make it. Maybe in a hundred years time, the concept that you just asked people questions and they promised on a book they didn’t believe in that the answers would be true, will seem utterly ridiculous.

The developer of sodium pentothal Dr Robert House, was originally using it in sedation on women in the midst of childbirth, and when he noted that they became not only voluble but responded to any question in a frank manner, he started thinking of other applications. [I do want to know what he was asking them, other than “does this really hurt?”]

His original thought was to use it in the exoneration of wrongly accused criminals. It then became used in a therapeutic treatment of shell shocked soldiers, allowing them to talk about their feelings and fears without shame or worry, and to ventilate those locked-down emotions. [It got badly tangled up in the Flora multiple personality case, where the girl undertaking therapy was just reflecting back everything the therapist was putting to her and embroidering it]

It can also be used to treat phobias, and still is.

The chemical has been much beloved by the CIA [allegedly] and spy novelists alike.

However, one of the problems with it as it currently works, is not that it gets people to talk, but that it has the sort of problem Douglas Adams touched on at the beginning – it gets people to talk about far too much, and makes them so suggestible and amenable to what is being put to them that sorting out fact from fiction is impossible. You can get someone on Sodium Pentothal to be loquacious and cooperative, but what you don’t know is whether anything they are telling you is the truth, or whether they are just telling the questioner what they want to hear.

Sodium Pentothal is not so much the Truth Serum of the spy novels, but more of a “Talkative Agreeableness Serum”. Which is not much use to us at all, either in our thought experiment or in using it to get certainties. Nor is it a very snappy title.

So, to be abundantly clear, I am not for a second advocating using Sodium Pentothal on witnesses – it would have exactly the opposite effect than we desire, they would just be putty in the hands of a skilful cross-examiner who could lead them down the garden path of their choosing.

And as I say, I’m actually even opposed to using my wonder Truth Serum that actually works and does no harm, because at the end of the day, Free Will is more important to me than Truth. I don’t claim that this is the only answer or the right answer, it is just my answer.

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Posted in fact finding, stuff that isn't law at all and tagged could you use truth serum in courts?, does truth serum work?, establishing the truth in court proceedings, free will, getting to the truth, serious allegations, sodium pentothal, truth serum, what if you lie in court?. Bookmark the permalink.

In England, justice is open to all, like the Ritz Hotel

Posted on January 28, 2013 by suesspiciousminds

Is there a difference in family justice provided to middle-class parents? A discussiony paranoidy rant…

As you may know, the title of this piece is drawn from a remark by an English Judge, Sir James Mathew and was made in the Victorian era. It is intentionally barbed.

It had quite a flurry of revival in popularity last year, as the Government debated and then implemented legal aid cuts that removed free legal advice from large chunks of the most vulnerable in society.

Private law

In terms of private law dispute, my initial question is likely to be true, sadly, as we go past April 2013. After that time, a parent who is denied contact is going to struggle to get their case off the ground and into court unless they are (a) literate (b) articulate or (c) a person of financial means. One might be cynical and say that the three things are interwoven, and that having three possibilities isn’t much use if they mostly capture the same group.

Of course, a person can represent themselves in court proceedings and a great many people do very well at it. (I’d recommend Lucy Reed’s book “Family Courts without a lawyer” for anyone who wants to do this http://www.amazon.co.uk/Family-Courts-without-Lawyer-Litigants/dp/0956777406/ref=sr_1_1?ie=UTF8&qid=1359383824&sr=8-1 )

But even then, the litigant in person will either need to pay the Court fee for a contact application, which will be £200, or (if they are of limited means) navigate the byzantine system by which you can avoid paying the Court fee if you can satisfy an unsatisfiable bureaucracy of your entitlement to do so, a task which exhausts many private law solicitors who are well accustomed to trying.

[A bit like the Groucho Marx line that banks will lend money to people who can prove beyond doubt that they don’t need it]

Moving beyond that, you will as a wealthy or moderately wealthy person, have an option, a choice, which is denied to the non-middle class. You can decide whether to represent yourself or have a specialist used to navigating the courts, who speaks the same language as the judge, who can advise you. That’s a choice that won’t be open to someone who is not middle-class. [using middle-class as shorthand for someone who has a professional job which pays them average or better income, regardless of family background and such – of course there are plenty of plasterers who earn more than bank clerks. Perhaps the class debate is better expressed as ‘haves or have nots’ but is a shorthand for this piece]

If you are faced with allegations of violence or abuse, you won’t get a lawyer to represent you and defend you against them unless you have money. The other parent, the one making them, might well get a lawyer, even if the allegations are false.

More and more private law cases these days are descending into these sorts of allegations, and probably more and more will in the future, as the funding system says that making them gets you a lawyer, whereas defending yourself against allegations that you say are false, doesn’t.

Care proceedings

What about care proceedings though? The law says that if you are a parent and the State might be intervening in the way you bring up your child and might be contemplating your child no longer living with you, you would be entitled to free legal advice.

Everyone is on a level playing field then. Family justice is like the Ritz, it is open to everyone.

But how true is that, really?

Here are some names that you will have seen in care proceedings, often many times, if you work in this field – Zac, Jordan, Chantelle, Destiny.

Here are some names you have probably NEVER seen in care proceedings, Oliver, Crispin, Sophia, Harriet.

You might well say, and you’d be partially right, that a large tranche of care proceedings relate to neglect, and neglect in part springs from poverty. So, a middle-class family don’t face the same social problems as a poor family, since they have choices and options.

A middle-class parent who struggles with managing household tasks has an option to get a cleaner, or to have someone do the ironing, they don’t have to prioritise between food and electricity, or gas or a toy for their child.

I would argue that not all poor families end up neglecting their children, and that it is possible, and indeed the vast majority of poor families do it, to get their children brought up in clean, safe and loving environments despite a lack of resources.

But it is certainly true that you’re at far greater risk of living in neglect if money is very tight than if you are affluent.

[Subsequent to writing this, I came across an excellent blog post in Community Care on why more poverty does not mean more neglect :- http://www.communitycare.co.uk/blogs/childrens-services-blog/2013/01/poverty-does-not-equal-neglect-benefit-cuts-will-not-see-more-children-taken-into-care.html and is an interesting counterpoint to this debate. I don’t think we are miles apart, though I think if you increase the basic numbers of families in poverty, you may well increase the numbers of those families who don’t manage that sort of poverty well enough]

[This is reminding me of one of my favourite books, George Orwell’s “Down and Out in Paris and London”

It is altogether curious, your first contact with poverty. You have
thought so much about poverty–it is the thing you have feared all your
life, the thing you knew would happen to you sooner or later; and it, is
all so utterly and prosaically different. You thought it would be quite
simple; it is extraordinarily complicated. You thought it would be
terrible; it is merely squalid and boring. It is the peculiar LOWNESS of
poverty that you discover first; the shifts that it puts you to, the
complicated meanness, the crust-wiping….

And there is another feeling that is a great consolation in poverty. I
believe everyone who has been hard up has experienced it. It is a feeling
of relief, almost of pleasure, at knowing yourself at last genuinely down
and out. You have talked so often of going to the dogs–and well, here
are the dogs, and you have reached them, and you can stand it. It takes off
a lot of anxiety.

I have been, in case you doubt, exceedingly poor, as both a child, and as an adult, and recognise what Orwell says, particularly in his passages about how when you are truly truly hungry, nothing else in the world much exists than that hunger, that preoccupation with food and filling your belly with something.

So, perhaps the care proceedings net doesn’t cast over the “Haves” because neglect isn’t much of an issue in the “Haves” world.

But what about violence, what about sexual abuse, what about alcohol abuse?

I’m fairly certain that the disease of alcoholism, and the effect that it has on parenting, is not a class issue – it can take anyone. In fact, I have worked, in the past, with people who drank a bottle of wine a night or more, and who would on that basis fail the sort of psychiatric examinations that we were sending parents to.

I have also encountered paedophiles from all walks of life – yes, very many were from damaged and impoverished backgrounds, but many others were teachers, professionals, doctors.

And I fail to believe that it is only poor people, only ‘common’ people, only ‘rough’ people, who reach the end of their tether, lose control and do something to a child that they should never have done.

There’s sort of a feeling, an unspoken one, in the Court rooms of this country, that child abuse is not done by people like us, that it belongs to a different world, another one, that we can look at, and judge, but not one that we truly belong in. There’s very little “there but for the grace of god” in child abuse cases.

As we know, and must remind ourselves, “The plural of anecdote is not data” and therefore it is of only limited (or indeed no) evidential value that most of the times I have seen parents with middle-class jobs, accents, bearing and relations, facing allegations of physical mistreatment of children, a reason has been found as to why the medical evidence is wrong, and why they can be exonerated.

Efforts seem, again anecdotally to me, to be found by a mixture of professionals (and again, I don’t claim that this is a conscious or deliberate action) to be more amenable to accepting that people like us couldn’t have done these dreadful things, than when similar things are alleged of people who live in a different sort of world to our own.

I don’t know how one could do the research on whether the outcomes for middle class parents are better for them than those for other parents – there’s no box on the application form for “Is the parent a bit posh?” or “Do they shop at Asda or Waitrose?” “Do they say napkin or serviette?” but I’d like to see some, if someone wants to set out to do it.

So there is at least the possibility of an unconscious bias of favouring or being more amenable to accepting the evidence given by people like us.

Can it go even further than that? To the overt stage, where actual cash, actual financial resources buys you a greater opportunity in a family case?

I don’t mind bribery, obviously. I don’t think that bribery plays any part in English justice. Call me naive if you want, I just honestly don’t believe that.

I had recently a conversation which prompted me to think about this piece, about a case (not one I was involved in, even tangentially and not necessarily a recent one) of suspected non-accidental injury, where the parents wanted to get a further piece of medical evidence, a fresh report. The Judge refused it, for good reasons about delay and proportionality.

The parents then pipe up that they could pay for the report themselves, rather than through legal aid, and lo and behold, there’s a reconsideration and the report is directed.

The justification, perhaps not unreasonably, is that the report is likely to be accelerated, expedited, on-time, if the expert knows that people are paying for it privately. So the delay might not be so long, and the expert report will probably not hold the case up so much. And of course, in the world we operate in, the Judge knows that the parents writing a cheque saves at least 2-3 weeks of messing around with the Legal Services Commission and prior authority, so the report probably will get done quicker.

Is that okay, or does that feel wrong?

It feels wrong to me that a person gets the chance to have a report not because of the merits of their case or the circumstances of the case, but because they, unlike someone else, can write a cheque and get it done.

[I couch all of this with the caveat that it wasn’t my case, I wasn’t there, I don’t know the detail – there may well have been very compelling reasons I am unaware of to have taken that course of action, but even just looking at it in the theoretical sense, would it be right in this hypothetical case below to allow the report?

Doctor says “I can do the report in 12 weeks, on public funding, but if it is paid for at my private rates, which are higher, I can do it in 5”

If the Judge was going to refuse the report on basis that 12 weeks delay was too long, should she allow it in 5, if the parents are able to pay for it privately? Or, is refusing it, if 5 weeks is considered reasonable delay, unfair just to preserve equality with some notional other parents who couldn’t pay the private fees?]

Can you go off and pay for your own expert without the Court’s permission?

Well, there have been some important decisions about that. Firstly, you need leave of the Court to give the papers to the expert, and then if you get leave of the court to instruct an expert, you have to cough up the report even if it is not favourable to you (unlike in crime) [Re L : A Minor : Police Investigation : Privilege 1996 1 FLR 731 and then Re V (Care Proceedings : Human Rights Claims 2004 1 FLR 944]

If you don’t get leave of the Court and go off and get the report anyway, it still has to be disclosed.

[If there are ongoing criminal proceedings, the parent can keep those reports secret and even refuse to say if there are any expert reports and who has written them, and can keep legal privilege when discussing those reports with their care lawyer S County Council v B 2000 2 FLR 161]

One clever way around this was tried in RE J (Application for shadow expert) 2008 1 FLR 1501

Where the applicant sought permission not to obtain a report that would have to be disclosed whether it was positive or negative, but instead an expert to basically advise the lawyer and formulate good questions for cross-examination and be a sounding board for the barrister’s theories.

The Court felt that this was not appropriate and would not be granted. And of course, it would only have been a course open to someone paying for the report privately.

Can you get a better barrister by paying money?

A parent relying on a barrister who is being paid with public funding (or what all sane people call “Legal Aid”) will get proper advice, from someone who works hard and does their best and is bright. All barristers who have experience in care proceedings do legal aid work, so you can’t get some better barrister, better advice by paying privately. There’s not a Premier League of barristers who know about care but don’t do legal aid work.

I would NOT, for a second, suggest that the average barrister works harder or better on a case that they are earning more money on, I don’t think money comes into it. Honestly, I don’t.

But what you can get, potentially, is a QC. If you are willing to pay for it, you can get a QC in a case that the LSC (legal services commission, or what sane people call the legal aid board) would not let you have one for free.

That QC is the best of the best, and may give you an edge in the case. Though some barristers who don’t have QC after their name are better advocates than some QCs, in general, a QC is going to be better.

It may well send a subliminal message to the Court about your case and the quality of it. Certainly there’s always an impression that the Court treats a QC with more respect than a run of the mill advocate.

Or you may not even need to go that far. Suppose you think about your barrister doing your case for public funding – they will work hard at your case, and put in effort. But they have another case the week before where they are doing that, and another the week after.

Might you get better representation from the same barrister, if you were willing to pay them to take two or three days off the week before your case to prepare?

We can’t know for certain, but I’d suggest that we all work better when we’re not shattered.

That’s an option available to those who have money that doesn’t exist for those who don’t.

Ring your solicitor up and say “I think my barrister should really only work on my case and nothing else the week before the hearing”, and you’ll get this answer if you have no money “That’s a nice idea, but I’m afraid it doesn’t work like that” – and if you have lots of money, this answer “They don’t normally do that, but we could see if they would – it would be very expensive though, you’d be paying for seven days of their time instead of five. Do you want me to speak to them about it?”

So, is English family justice really like the Ritz, or am I just crackers?

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Posted in costs, experts, research and tagged alcoholism, can you get an expert without permission? Can you pay for your own expert in care proceedings?, can you keep an expert report secret, child abuse, do people with money get treated better in care proceedings? can you buy better barristers with money? shadow expert, down and out in paris and london, fairness, instructing an expert in secret, middle class parents and child abuse, neglect, poverty. Bookmark the permalink.

Eagle-eyed Action Plan – now with kung-fu grip

Posted on January 28, 2013 by suesspiciousminds

The Family Justice Board have published their Action Plan for implementing the proposals of the Family Justice Review. It is a scorching, searing rollercoaster (TM) of an Action Plan, blending as it does dizzying arrays of key performance indicators, tiresome management-speak, gobbledegook and claims that things have already been ‘actioned’ that come as a complete shock to those who are working in the field and have seen no such things being even contemplated, never mind “actioned”.

As a summary of it (and for God’s sake, don’t read the whole thing, it is deathly dull – and I say that as a lawyer, and thus someone who has a pretty high tolerance for dull stuff, I had to read land law and stuff about trusts to pass exams, and one might scathingly add, my idea of fun is to write law blogs) you can’t do better than John Bolch’s article on Family Lore.

http://www.familylore.co.uk/2013/01/family-justice-board-action-plan.html

That’s really it in a nutshell, but if you’re the sort of busy high-pressure, multi-tasking, Type A personality sort (you know, the ones who the idea of a cereal bar sounds like a good way to combine eating breakfast with walking or travelling so as to not waste five minutes eating some Coco Pops), who laughs in the face of nutshells and wants something altogether shorter, here goes :-

They will still be having meetings about “stuff” all the way through 2014 and won’t really be doing anything until 2015 (and the “stuff” they are finally getting round to doing in 2015 all sounds to be PR and focus-group nonsense)

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Posted in family justice modernisation and tagged Family Justice Board, family justice review, Key Performance Indicators, Norgrove, type a personality. Bookmark the permalink.

“The purifying ordeal of skilled argument on the specific facts of a contested case”

Posted on January 24, 2013 by suesspiciousminds

A discussion of the Court of Appeal decision in Re TG (A Child) 2013, and using that recherche Victorian novelist style of chapter heading “In which the Court of Appeal discuss physics, experts, fairness, and bouncy chairs, the art of advocacy is considered, our attention is drawn to the spectre of separate representation without conflict, and in which we say goodbye to a magnificent Judge”

The case can be found here:-

http://www.bailii.org/ew/cases/EWCA/Civ/2013/5.html

[Note to self :- I have realised that I use that formulation far too much, so next time I will just say “Lo” and give the link]

This is a great case, and a judgment packed full of goodness and crunch for the family law geek – it is resonant of the old 1970s advertising jingle for “Topic” – it has a hazelnut in every bite, so to speak.

Firstly, the issues are about a finding of fact, and interesting medical issues. Secondly, it involves a sexy science of biomechanical engineering, and all sorts of interesting theoretical experiments and whether they should be carried out in practice. Then we have the fact that the cost of proposed expert assessment is pretty eye-watering, then a dissection of where the judicial discretion is on allowing or refusing experts, and then a discussion of whether our system is inquisitorial or adversarial (and regular readers will know that I have certain views on that). The Court of Appeal finish up with some words about parties with common interests being separately represented which have the chime of a broader warning than just in Appeal cases, and then say goodbye to Lord Justice Hedley who retired after delivering this judgment.

So much stuff, I am going to break up the chunks, with the proclamation:-

“Topic!”

TG was born in June 2012. When he was just twelve days old he was found to have sustained four left rib fractures, two right rib fractures, two skull fractures and a number of subdural and intraretinal haemorrhages. The latter, we were told, were not as serious as are sometime seen and did not exhibit all the features of the so-called triad.

Care proceedings were commenced in relation to TG and his two older siblings, MG born in May 2011 and CJ born in July 2007. The case was transferred to the High Court, where it has been case-managed by His Honour Judge Bellamy, a very experienced family judge who is the Designated Family Judge for Leicester. The present application arises out of the refusal of Judge Bellamy on 5 December 2012, following a hearing on 3 December 2012, to give the father permission to adduce expert evidence from a biomechanical engineer.

At this point I should interpose the father’s account of an incident which the parents believe may have caused some at least of TG’s injuries. I understand the local authority to point to what are said to be various discrepancies in the parents’ accounts which it will wish to probe at the finding of fact hearing, but for present purposes it suffices to set out the central core of the father’s account. Having explained how he had put TG in his bouncy chair on the floor of the kitchen near the patio doors and then returned to the lounge, he continued:

“I heard a banging noise in the kitchen … I heard TG cry and immediately went into the kitchen to investigate and was horrified to see [his] chair upside down and MG sitting with his back against the patio door facing into the room with his bottom and legs effectively on top of TG.

I can only assume that TG’s chair had tipped forward towards the window obviously with TG in it … He was strapped by the waist into the chair and effectively his bottom area was secured into the upside down chair. MG was in a sitting position with his back against the patio door facing into the room with his bottom and legs on the chair on top of TG’s head and chest area.”

We were shown a photograph of the bouncy chair. It is of a type that will be familiar to many parents. It consists of two metal uprights, each of which, when viewed in vertical section, looks like a V lying on its side. One side of the V rests on the floor, the other reclines backwards at a slope. The two uprights are in fact part of a continuous metal frame, the other parts of which join the outer ends of the two Vs. The baby lies sloping backwards strapped into the fabric seat stretched between the two uprights. Because of the springy nature of the metal frame, the baby can bounce gently backwards and forwards in the seat, either by its own exertions or if someone is rocking the frame. In principle the chair can tip over, either sideways or forwards, but given a baby’s comparatively low centre of gravity and the fact that the baby’s bottom is not very high off the floor the chair is stable when placed on the floor.

At an earlier case management hearing Judge Bellamy had given directions for five medical experts to be instructed: Dr Joanna Fairhurst, a Consultant Paediatric Radiologist, Dr Nicholas Shaw, a Consultant Paediatric Endocrinologist, Dr Philip Anslow, a Consultant Neuro-radiologist, Dr Patrick Cartlidge, a Consultant Paediatrician, and Professor David Taylor, Professor Emeritus of Paediatric Ophthalmology. By the time of the hearing on 3 December 2012, Drs Fairhurst and Shaw had reported. The reports of the other experts were due to be filed shortly before Christmas. Arrangements were in hand for a conference of the medical experts during the week beginning 7 January 2013, the finding of fact hearing having previously been fixed to commence on 28 January 2013 with a time estimate of seven days.

The Appeal then hinged on the case management decisions of H H Judge Bellamy not to allow the father to instruct an expert biomechanical engineer, Dr Van Ee, who gave some evidence in the Al Alas Wray case. [I find myself fascinated by how to pronounce the last element of Dr Van Ee’s name, but that’s by the by]

Father’s counsel was eventually able to persuade the trial judge to permit an interim report from Dr Van Ee, effectively setting out what a biomechanical engineer could bring to this particular table

“Biomechanics: the level of force caused by the baby bouncer incident as described is a biomechanical question, what forces would have been generated and how do they compare to the alternative posited by the Local Authority? – the biomechanical evidence in London Borough of Islington v Al Alas [2012] EWHC 865 (Fam), Theis J at para 186 was that shaking is unlikely to result in the angular accelerations necessary to tear cranial blood vessels resulting in intradural haemorrhage but may result in neck and torso injuries and that trauma is associated with Subdural Haemorrhage.”

In an interim report dated 3 November 2012, Dr Van Ee set out details of his experience and expertise, including his co-authorship of what he describes as “the only peer reviewed publication (Prange at al 2004) in which the infant head mechanical response to impact was directly measured experimentally and compared to the CRABI-6 infant crash dummy response”; and his authorship, with others, of two papers published in the proceedings of the 2009 ASME International Mechanical Engineering Congress & Exposition, Van Ee, Moroski-Browne, Raymond, Thibault, Hardy and Plunkett, ‘Evaluation and Refinement of the CRABI-6 Anthropomorphic Test Device Injury Criteria for Skull Fracture’, and Van Ee, Raymond, Thibault, Hardy and Plunkett, ‘Child ATD Reconstruction of a Fatal Pediatric Fall,’ which he says “further refine head injury tolerance for skull fracture and intracranial trauma.” He set out his understanding of the incident described by the father and of the various injuries recorded as having been suffered by TG. He recorded the mother’s suspicion that “MG may have tried to sit in the bouncy chair bending the chair backwards resulting in contact to the back of TG’s head … when MG tried to get off, the chair flipped forward 180 degrees”. He set out a ‘Suggested Plan for Further Analysis’ which I reproduce as an Appendix.

As will be seen, this included experiments using a CRABI-6 infant crash dummy placed in the bouncy chair and fitted with head accelerometers:

“Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee et al 2009 and published injury reference values associated with subdural hemorrhage.”

Dr Van Ee also contemplated experiments using a number of children of MG’s age “sitting down rambunctiously” to determine whether they can exert sufficient force – have the strength – to overturn the appropriately loaded bouncy chair.

Man, those sound like a great set of experiments – getting a group of toddlers to sit down rambunctiously to see if they can tip a crash test dummy baby out of a bouncy chair…

The next line may well suggest why the trial judge baulked at commissioning an expert based in America to do this experiment

Dr Van Ee ended his interim report with an estimate of the cost – between $18,500 and $22,000

[Even if the video footage of rambunctious toddlers attacking bouncy chairs could be sold to “You’ve been framed” that’s still a high cost left on the taxpayer]

Before the Court of Appeal started their systematic root and branch overview of the role of biomechanics in reported cases (which is in itself great, and hopefully I will get to later), they make this observation

The father’s application was supported by the mother. It was opposed by the local authority. The most important point made by Mr William Tyler for the local authority was that the tests which Dr Van Ee proposed to undertake amount to a reconstruction in a case where it is impossible to arrange for a meaningful reconstruction given that no-one – not even the father – witnessed the incident he described. The ‘reconstruction’ would therefore be based upon speculation as to what actually happened. At best, he submitted, biomechanical engineering evidence in this case would be of no more than tangential relevance, so to allow it would offend against the principle of proportionality

And this was pretty pivotal – as whilst a detailed explanation of an observed injury could be unpicked by a biomechanical engineer to see if the forces involved were sufficient and the mechanism itself physically possible, with no observation of the incident itself, all that could be done was a wide range of the possibilities.

On the central issue Mr Tyler has three submissions. The first is that there is no witnessed incident to reconstruct. Even on the father’s account he did not witness it. Moreover, says Mr Tyler, the father’s account has varied over time. So the crucial question is: what is a biomechanical engineer here to recreate? What, he asks, is being tested? Whether a toddler could overturn the bouncy chair and in doing so create the requisite forces? If so, how: forwards, backwards, sideways? In one movement, or a number? And so on. Thus, even were biomechanics an established and tested scientific discipline with a track record of assisting the family courts, this is not, he says, a case in which any assistance could be gleaned. He also asks rhetorically, what is the purpose of biomechanical testing in relation to the rib fractures, as proposed by Dr Van Ee, when the radiological evidence dates them as having occurred earlier than the incident recounted by the father?

Mr Tyler’s second submission is that in any event biomechanics is not yet established as being of any use in a case such as this. Properly read, he says, the authorities relied upon by Mr Vine do not establish what he seeks to derive from them. He concludes a careful analysis of the cases with the submission that, whilst it is certainly true that various courts have allowed the instruction of experts in the field of biomechanics (including, as we have seen, Dr Van Ee), it is rather less clear that any court has derived any significant assistance from such evidence. Mr Tyler accepts that in a case where there is a single, witnessed and reconstructable incident said to have caused the totality of the suspect injuries there may be a place for such expertise – a proposition which, he suggests, will probably require some degree of ‘case by case’ evaluation in the Family Division over time. But this, he says, is simply not such a case.

Mr Tyler’s third submission is that the court, informed as it will be by the other five experts, has no need of such evidence or assistance as could be obtained by biomechanical reconstruction. This is not, he says, a particularly unusual case, whether as suggested by Mr Vine or otherwise. Given that there are already five other experts, the assertion that the refusal to allow the father to adduce evidence from Dr Van Ee would involve a breach of Article 6 is, he says, simply wrong. He points to the fact that, in contrast to Dr Anslow, Drs Shaw and Cartlidge and Professor Taylor have each, with varying degrees of emphasis, expressed scepticism as to the utility of biomechanical evidence. He ends with a floodgates argument: if biomechanical evidence is permitted in this case, where an unwitnessed incident is said to account for injuries some of which in any event pre-date the incident, then, he says, it is hard to see how such evidence could be disallowed in many, many routine care cases up and down the country.

But on the other side of the coin

Mr Vine asserts that the appeal raises a point of law of general importance, namely the admissibility of biomechanical evidence in suspected non-accidental head injury cases. He says that the question of the forces generated by the bouncy chair overturning will be a central issue; it is a question of physics and biomechanical engineering; and one outside the direct experience and expertise of the various medical experts already instructed. He points to the authorities I have referred to as showing, as he would have it, that the criminal division of the Court of Appeal has recognised the importance of biomechanical engineering in this context and that biomechanical evidence has been permitted in both the criminal and the family jurisdictions. He took us to R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, [2008] 2 FLR 412, [2006] 1 Cr App R 5, [2005] All ER (D) 298 (Jul), para [148], where Gage LJ referred to “the growing science of biomechanics” as having “had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries.”

And

The judge will need to consider the nature of the particular expert evidence the admission of which is in issue. The evidence of an expert in one discipline may be of marginal use; the evidence of an expert in another discipline may be crucial. The judge will also need to be sensitive to the forensic context. The argument for an expert in a care case where permanent removal is threatened may be significantly stronger than in a case where the stakes are not so high. We strive to avoid miscarriages of justice, but human justice is inevitably fallible and case management judges need to be alert to the risks. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: see W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. But although the case management judge must be alert to the risks, the potential for such tragedies does not entitle a parent in care proceedings to an expert for the asking: see Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90, paras [15]-[18]. Nor does it relieve the case management judge of the duty to exercise his or her discretion in accordance with the various provisions of the Family Procedure Rules to which I have drawn attention.

In every care case, as indeed in every case, the case management judge will need to assess and evaluate the degree of likelihood that a particular expert’s evidence, or the evidence of an expert in a particular discipline, will or will not be of assistance to the parties in exploring, and to the judge in determining, the issues to which the evidence in question is proposed to be directed. It is vital that the case management judge keeps an open mind when deciding whether or not to permit expert evidence. The judge will need to be alert to the risks posed by what may turn out to be ‘bad science’. On the other hand, the judge must always be alert to the possibility that some forensically unfamiliar or even novel expert discipline may provide the key to explaining what at first blush appears to be a familiar type of case: consider, for example, what happened in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378.

In this connection the case management judge will also need to bear in mind what Hedley J said in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384, para [10]:

“there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown.”

My Lord elaborated the point in an important passage (para [19]) which merits quotation in full:

“I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”

Sometimes what has happened is medically inexplicable. A striking example is provided by Re M (Children) [2012] EWCA Civ 1710, in which, by coincidence, judgment was handed down on the day we heard the present appeal.

As against all this, we must never forgot the point made by Dame Elizabeth Butler-Sloss P in In re U (A Child) (Department for Education and Skills intervening), In re B (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, para [23]:

“The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.”

[I suspect that these passages might well be snipped into submissions and skeletons on applications for assessments of a medical nature over the next few months – they are pretty impressive arguments]

So, a lot potentially at stake – on the one hand, risks of injustice which could be cleared up by a biomechanical engineer, on the other, the risk of floodgates being opened (if you need a biomechanical engineer in this case, why not in every case of unexplained physical injury?)

“Topic!”

The Court of Appeal remind themselves also that the bar for expert assessments is about to be raised, though they were deciding on the previous test. [And they confirm that judicially speaking, the bar has been significantly raised – my underlining]

(3) Third, the court has particular case management responsibilities in relation to experts. Rule 25.4(1) provides that:

“No party may call an expert or put in evidence an expert’s report without the court’s permission.”

Rule 25.1 provides that:

“Expert evidence will be restricted to that which is reasonably required to resolve the proceedings.”

Thus the Family Procedure Rules as they are today and as they were when Judge Bellamy had to decide what was to happen in the present case. But they are very shortly to be modified. With effect from 31 January 2013 the amendments made by The Family Procedure (Amendment) (No 5) Rules 2012 come into force. Rule 1.4(2) is re-cast to provide (paragraph (e)) that active case management includes “controlling the use of expert evidence.” Rule 25.4(1) is also re-cast, to provide that:

“In any proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.”

Rule 25.1 is significantly amended, to provide that:

“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”

It is a matter for another day to determine what exactly is meant in this context by the word “necessary”, but clearly the new test is intended to be significantly more stringent than the old. The text of what is “necessary” sets a hurdle which is on any view significantly higher that the old test of what is “reasonably required.”

“Topic!”

The consideration of how useful biomechanical engineering is as a discipline to the family Courts is a good one. It is all set out in paragraphs 39-44, and if you are seeking such an expert, or opposing it, that is a good place to start.

If you want something more pithy, here it is:-

44. During the course of argument in the present case, Hedley J asked Mr Vine whether he was aware of any case, criminal or family, in which biomechanical evidence had been found to be of any significant assistance to the court. My Lord added that he was not aware of any such case. No such case was identified at the Bar and we are not aware of one.

That was clearly a moment when poor Mr Vine for the father felt this case had probably slipped away from him.

“Topic!”

The Court stressed that they were not making any decisions as to whether the field of biomechanical engineering was admissible evidence, and it was accepted by all that it was – the issue was whether it was ‘reasonably required’ on the test as it was then, and whether article 6 could be construed as meaning that father was entitled to call the evidence that he was advised was needed to run his case.

At the outset I should clear two matters out of the way. Mr Vine, as we have seen, suggests that the present appeal raises a point of law of general importance, namely, as he identifies it, the admissibility of biomechanical evidence. With all respect to Mr Vine, it raises no such question. The local authority does not challenge the admissibility of Dr Van Ee’s evidence, any more than it challenges his expert credentials. And in any event the question of admissibility is not determinative, because rule 22.1(2) empowers the court to exclude evidence that would otherwise be admissible. The issue before Judge Bellamy was rather, in accordance with rule 25.1, whether Dr Van Ee’s evidence was “reasonably required” – and it was to that question that Mr Tyler appropriately directed his submissions both here and below.

Mr Vine also mounted an argument based on Article 6. Plainly, Article 6 is engaged, as are the principles set out in the two Strasbourg authorities to which he took us. But this does not, in my judgment, take him anywhere. The relevant statutory scheme, including the relevant provisions of the Family Procedure Rules, is Convention compliant. No-one has suggested the contrary. And a case management judge who properly applies the statutory scheme and the Rules will be acting in a Convention compliant way. There is nothing in the Strasbourg jurisprudence to entitle a litigant to demand that he be permitted to call whatever evidence he wishes. So far as material for present purposes what the Convention requires is a ‘full merits’ investigation by a court and a procedure which ‘taken as a whole’ is fair. The fact finding hearing will involve a ‘full merits’ investigation by the High Court. The refusal to permit the father to adduce evidence from Dr Van Ee involves no unfairness and breaches neither of the principles upon which Mr Vine relies.

“Topic!”

So, on the issue of whether biomechanical engineering had something to offer in this case, the Court of Appeal concluded that it did not.

What I love here is that we start with science and quite carefully argued science

In the present case the hypothesis is that the bouncy chair tipped over forwards, rotating, with TG strapped in, about the fulcrum represented by the two points of the V at floor level. Although no doubt the actual analysis and calculations are more complex, the basic principles of the mathematics and physics which are here engaged will be familiar to many. Simple geometry demonstrates that on this hypothesis TG’s head will have travelled through the arc of a circle, the radius of which is the distance between his head and the points of the V. The first part of the arc is that part of the trajectory as the chair is tipping forwards until the head is vertically above the fulcrum; the second part of the arc is that part of the trajectory where the head rotates forwards through 90º from the vertical until it hits the floor.

It will be appreciated that in a case such as this there are two questions of particular importance. (1) What is the amount of force required to pull (or push) the bouncy chair forwards until it reaches the tipping point at which, if unsupported, it falls forward under the force of gravity until the baby’s head hits the floor? Alternatively, on the mother’s hypothesis, what is the amount of force required to pull the chair backwards as far as it will go before it is released, springs forwards and (assuming this is even possible) reaches the tipping point? (2) What are the forces exerted on the baby’s head and upper body as it hits the floor? In principle, one would expect well known principles of Newtonian physics to be capable of providing at least approximately accurate answers to both these questions once one has fed into the relevant calculations factors such as the radius of the notional circle, the baby’s weight and the location of the baby’s centre of gravity.

But the answer to the second question will depend upon a number of other factors: What is the rotational speed of the baby’s head as it passes the tipping point? This will in turn depend upon the mechanism by which the baby’s head reached that point. On the mother’s hypothesis, the bouncy chair will have acted as a spring, projecting TG forward, potentially at some speed, as MG released his weight from behind. If, on the other hand, the bouncy chair was pulled forwards from the front, then the rotational speed at the tipping point may have been less, possibly much less or even zero. What, if any, forces, other than gravity, were operating once the baby’s head had passed the tipping point? This again will depend upon the mechanism. On the mother’s hypothesis the only forces would seem to be (i) the forces reflecting the rotational speed as TG’s head passed the tipping point and (ii) gravity. If, on the other hand, the bouncy chair was pulled forwards from the front, then there may have been additional forces, either pulling the baby forwards and downwards or, possibly, working in the other direction to restrain its free fall.

And then the President returns to the non-maths planet most people live on

Now one does not, I think, need the expertise of a biomechanical engineer to demonstrate what every parent will know, that an eleven-day old baby strapped into a bouncy chair is simply incapable of generating the forces required to tip the chair over

And that if what one is instead doing is trying to establish whether the rambunctious toddler, MG, could have tipped the chair over whilst poor TG was in it…

entirely accept that a biomechanical engineer will, in principle, be able to obtain values, whether by theoretical calculations and/or by experimental measurements, and in relation to a variety of postulated factual scenarios, for (a) the forces required to tip the bouncy chair over with TG in it (what I will call the ‘tipping forces’) and (b) the forces applied to TG as his body and head hit the floor (what I will call the ‘impact forces’). But that information of itself is of very limited value in the present case. There are three problems.

First, we simply do not know, even on the father’s case, what actually happened. Was the bouncy chair pulled from in front or pushed from behind? Or was it, as the mother hypothesises, pulled back and released like a spring? Was MG’s weight part of the load on the bouncy chair as TG hit the ground, and if so where about on the bouncy chair was his weight operating? Did MG land on top of TG? These different scenarios (and they are not necessarily an exhaustive list) are likely to provide a range of very different values for both the tipping forces and the impact forces. Second, and in the nature of things, we do not know whether MG was capable of exerting the required tipping forces. Dr Van Ee proposes practical experiments using toddlers of the same age, but such experiments, even if feasible, are unlikely to provide compelling answers, given the number of different scenarios that would have to be tested and, not least, the near impossibility of comparing the actual physical strength and other characteristics of the experimental 13-month old subjects with the characteristics at that age of the now 20-month old MG. Third, and even assuming all these difficulties have been overcome, there remains the fundamental problem that, in the nature of things, we have only a very imperfect understanding of how a baby’s body works and, in particular, of how much force is required to produce a particular form of injury in a baby. Let us assume that Dr Van Ee is able to produce values for the impact forces on different scenarios of, let us say, x, y and z. How do we know whether x, y, or z is sufficient to cause any of TG’s injuries? Mr Vine suggested that the answer is to be found in the ‘risk probability curve’ referred to by Dr Van Ee, but he did not explain why, nor does Dr Van Ee in his interim report. Indeed, we were not even shown the curve or the paper in which it was published.

In these circumstances it seems to me that the prospect of Dr Van Ee’s work producing any useful evidence in this particular case is sufficiently slight as to fall well short of the “reasonably required” test. The fundamental problem, as Mr Tyler correctly identifies it, is that there is no witnessed incident to reconstruct. So, as he puts it, what is Dr Van Ee to recreate? The reality is that we are, factually, too far into the realm of speculation in this case for biomechanical engineering to be capable of providing the court with any significant assistance

So, in this case, biomechanical engineering had nothing of value to add, and the trial judge had been within his judicial discretion to refuse to commission the report.

What about cases generally? Does biomechanical engineering have something to offer generally? Here the President, in stylish language to be sure, gives an answer which is pretty similar to that of a parent when asked by a six year old “Mum, can we have a rabbit?”

That leaves the more general question of whether, in other cases, biomechanical evidence might in future satisfy the “necessary” test. I would not wish to rule out the possibility, though I suspect that in the present state of the relevant science such cases will be at best infrequent in the family courts. As of today, it remains the fact that there is no case of which we are aware where such evidence has been found to be of any significant assistance. But I emphasise the qualifying words I have just used. We can only operate on the best and most up-to-date science available to us today. But we must always bear in mind that tomorrow may bring about a transformation of scientific knowledge so that, to use Dame Elizabeth Butler-Sloss P’s words, new scientific research will throw light into corners that are at present dark. Whether and if so when this will come about in relation to this particular scientific discipline we cannot say. That is why, as I have already emphasised, case management judges must always keep an open mind when deciding whether or not to permit expert evidence particularly where, as here, the science is both complex and developing.

Translation “We’ll see”

“Topic!”

The Court then go on to talk about adversarial v inquisitorial, and produce the lovely line which titled this piece.

It is a truism that family proceedings are essentially inquisitorial. But in certain respects they are inevitably and necessarily adversarial. Human nature being what it is, parents will fight for their children; so in care cases where the State is threatening to remove children permanently from the care of their parents, the process will inevitably be highly charged. But care cases are not merely adversarial in the colloquial sense; since the local authority has to establish ‘threshold’ they are also necessarily adversarial in the technical sense. If, as typically, the local authority seeks to establish threshold on the basis of what it asserts are events which happened in the past, then the burden is on the local authority to prove on a balance of probability that those events did indeed happen. And if it cannot do so, then its case will fail and must be dismissed.

The process of determining whether the local authority has or has not proved its case on threshold takes place under the vigilant eye of the judge. But in our adversarial system the ultimate safeguard for the parent faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. There are some principles that ring down the centuries, and the efficacy of the adversarial process is one of them. It is over 600 years since Hankford J is reported as having said in 1409 (YB 11 Hen 4, Mich fo 37) that:

“Home ne scaveroit de quel metal un campane fuit, si ceo ne fuit bien batu, quasi dicerit, le ley per bon disputacion serra bien conus [one does not know of what metal a bell was made if it has not been well hit, in other words, by good disputation will the law be well known].”

In a world inconceivable to Hankford J and in a forensic context he would find baffling, the point remains as true today as then, and it surely applies as much to the facts as to the law.

In an arresting phrase, Megarry J (to whom I am indebted for the reference to Hankford J), once referred to the aid afforded to the judge by “the purifying ordeal of skilled argument on the specific facts of a contested case”: Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9, 16. The context there was very different, but the same goes for cases in the family courts. Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel. So the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. As Wall LJ said in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [197], “the system provides a remedy. It requires determined lawyers and determined parties.” May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work.

Translation :- “hooray, lawyers are great!”

But we move on

Yet this is all funded out of the public purse, as it must be if there is to be equality of arms between the citizen and the State. And the public purse is not limitless, least of all in these times of financial stringency. We cannot allow scarce public resources to be frittered away and squandered. Every £100 of public money spent paying for the separate representation of litigants in family cases who do not require to be separately represented is £100 unavailable to pay for representation which is required. If money is allowed to leach away in this way, the consequence will inevitably be, sooner or later, a reduction in the levels of remuneration. That cannot be in the interests of those, often frightened and disadvantaged in so many ways, who find themselves in an unfamiliar situation, critically dependent upon their advocates and other legal representatives.

Not for the first time this court was dismayed by what appeared to be the separate representation of parties who, whatever the position below, in this court stood together in the same interest. The question for us was simple and binary: Should the appeal against Judge Bellamy’s order be allowed, or should his order stand? On that issue, as we have seen, the mother stood behind the father’s appeal and the children’s guardian supported the local authority in resisting the appeal. In each instance, so far as could be seen, the position before us of the supporter was indistinguishable from that of the main protagonist. Yet we had before us four counsel, and no doubt four solicitors, when it might be thought that two of each would have sufficed – and all this at public expense. Included amongst the directions I gave on 14 December 2012 was this:

“The court will be much assisted by submissions from the children’s guardian but does not require the CG to be present or represented if the CG takes the view that filing a skeleton argument will suffice.”

Very often, all that will be needed in such a case is a skeleton argument or even a letter, which may be appropriately brief, setting out the absent party’s stance. Was this not such a case?

This is not a matter which we raise for the first time. Almost twenty years ago, in Birmingham City Council v H (A Minor) [1994] 2 AC 212, 217, the House of Lords made some very pointed comments which seem to have had little effect. More recently, it is a matter on which the then Master of the Rolls expressed himself strongly in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, [2011] 1 FLR 272, paras [44]-[50]. I draw the attention of the profession to what Lord Neuberger of Abbotsbury MR said in a passage which is too long to quote but which should be required reading for every family practitioner. Included in what the Master of the Rolls said was this (para [45]):

“We take this opportunity to emphasise in the strongest possible terms that it is only where it is clear that there is an unavoidable conflict of interest, as a matter of law, between two parties in the same interest that they should have separate legal representation, especially where public money is involved.”

He went on (para [48]) to refer to the possibility of parties confining themselves to written representations and (paras [47], [50]) to warn of the adverse costs consequences that might follow in cases where legal representation is unnecessarily duplicated.

That was said in May 2010. Experience since then suggests that the warning has, too often, fallen on deaf ears. This must stop. The profession must take heed. So too, if I may say so, should the relevant professional bodies.

In fairness to those who appeared before us I should make clear that we did not explore this issue at the hearing. Accordingly, it would be unfair if what we have said was seen as any adverse comment on the lawyers involved in this particular appeal. But in future those in such a situation may find themselves having to explain their position.

Translation :- “What are you doing here? Aren’t you saying the same as that bloke next to you?”

The passage I have underlined is something which has potential consequences for all cases, not just appeal hearings.

I do recall, quite vividly, when the Protocol came out, a fleeting moment of crackdown, where tribunals were quizzing advocates on why the mother and father were separately represented when they sought to care for the child together, and the view being that this would be the exception rather than the norm.

But this was pretty quickly resolved, advocates worked out that there was a formula of words, along the lines of “potential for conflict to arise at a later stage, and the need for parents to have continuity and for them to have independent advice” was enough to defuse that, and keep two of them in each case.

[There are, I know, very very many cases where there is genuine potential for conflict, and it is perfectly right and proper for mother and father to be separately represented, but I do also go to many final hearings where you could not put a cigarette paper between the case of the mother and the father, yet they have separate counsel making the same points for each of them, and handing up two forms, resulting in due course in two bills being paid from the public purse. . The Court of Appeal are dropping a pretty heavy hint here that in a time of austerity, that might have to be addressed, and probably that if it is not self-policed, the consequences will be financial squeezes in other areas affecting the professionals]

All in all a fascinating judgment, and as it is effectively the President’s first, and Lord Justice Hedley’s last, the two of them being very stylish constructors of judgments, I think it is well worth a read.

[And if you’re my age, you have been wanting throughout this piece to hear the Topic jingle, so I will put you out of your misery. Next week, Ordinary Residence and “Nuts, Wh-oh-oh-le Hazelnuts, Cadbury’s take them and they cover them with chocolate!” ]

http://www.youtube.com/watch?v=ksxdrMPUAwk

3 Comments

Posted in case law, experts, fact finding and tagged adversarial, advocacy, and don't forget the hazelnut in every bite, biomechanical engineer, biomechanical engineering, biomechanics, child abuse cases, Court of Appeal, determination of injuries, dr van ee, expert evidence, inquisitorial, medical uncertainty in child abuse cases, non-accidental injury, pure milk chocolate for your delight, Re TG (a child), separate representation of parents, shining a light into dark corners. Bookmark the permalink.

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