Author Archives: suesspiciousminds

I’ve got twenty-six weeks to go, twenty six weeks to go (or have I?)

Posted on October 19, 2012 by suesspiciousminds

 

This from the Association of Lawyers for Children, reporting on Ryder J  and MacFarlane LJ at the NAGALRO conference recently.  This is short, but there’s a lot of content in there.

 

On Monday 15th October 2012, the NAGALRO conference was addressed by Mr Justice Ryder and Lord Justice McFarlane.

Practitioners from different parts of the country raised concerns about courts rigidly implementing the 26 week timetable. One child care lawyer asked Mr Justice Ryder if he was aware that in the experience of many lawyers, the 26 weeks requirement had been written “on tablets of stone” – even if it led to a denial of justice for children and parents. Ryder J responded that the 26 weeks was not written in stone, that it was aspirational, and that in his view it may be achieved in two years’ time.

Both he and McFarlane LJ were very clear that there was “no missive from on high”, and no direction given to impose 26 weeks. The family modernisation programme did not have the status of a practice direction. Ryder J went on to observe that early data being collected from courts showed that the 26 week timetable was only achievable in about 30% of cases.

 

I had this debate fairly early on with the Legal Advisors in my area, when I was aware that their new computer system was making them fill in explanations of why a case was taking longer than 26 weeks and that there was no legal basis yet for making case management decisions around a 26 week timetable rather than a 40 week timetable.  My fear was obviously that they would decline an appropriate expert assessment that took the case from say 25 weeks to 30. 

 

I will be interested to see what happens when the first such case management decision made in the County Court goes up to the Court of Appeal. I’m sure that there have been some made on these grounds. I’ve certainly seen orders that reflect that  “this case has not been possible to conclude within 26 weeks because…’

 

And I think their 30% figure is probably about right.  What we don’t yet know, and I’ve blogged about it in the past, is how many of the decisions we take at 26 weeks when this comes in, are going to be right.  Where they are been over-optimistic, we will know, because the case will come back to Court. Where they have been over-pessimistic, we will never know because the Placement Order will be made and we know already how hard they are to revoke for a parent.

4 Comments

Posted in family justice modernisation and tagged , , , , , , . Bookmark the permalink.

Last night a Re J saved my life… (I am so, so sorry)

Posted on October 16, 2012 by suesspiciousminds

 I could not resist, once it came into my mind. And those of you with a classical education are muttering, that the shabby pun doesn’t even work if you pronounce it “Ray J”  – so a double apologies to the Brothers of Boris.  

 

A discussion of the decision of the Court of Appeal in Re J (A child) 2012, and where the bright line falls in a Judge allowing a case to be put and curtailing cross-examination that they aren’t finding helpful.

 

The case can be found here:- http://www.bailii.org/ew/cases/EWCA/Civ/2012/1231.html

It is, sadly, once again, one of those private law cases that have gone on for nine years, without very much being resolved in any of that time.

 

I was counting the number of different judges that had dealt with interlocutory hearings, and reached ten.

It is little wonder, with such lack of judicial continuity, that the scale of the litigation and the need to grip it and reach a proper final conclusion wriggles away.

 

The point of appeal is interesting – the father’s case was in effect, that as we so often see, the pace of movement and progress on contact is dictated by the mother, who makes a series of objections that are never resolved in litigation but the case inches forward, bit by bit, always at the pace the mother is able to get away with. [I am not saying that this happens in all cases, or even a lot of cases, but I am certainly familiar with it happening in some. To avoid sexism, it is the person who has day to day care who tends to take this approach, I don’t think it is gender specific per se]

On cross-examining the mother about her various shifts in position and historical objections to contact – with a view to establishing that her current position was unreasonable, the father’s counsel was stopped by the Judge.

 

25. Realistically, if I may say so, Ms Thain did not press the first of the father’s two complaints on this part of his appeal. The key point, which she understandably put at the forefront of her submissions, was that the Recorder wrongly limited the ambit of the factual investigation upon which, as she would have it, Ms Holmes properly wished to embark in her cross-examination of the mother.

26. The matter arose in this way. In her application filed in October 2011 the mother, as we have seen, was opposed to anything other than supervised contact. By the time of the hearing in March 2011 the mother was expressing herself as being “happy” with unsupervised contact: this was the word she used (Transcript p 46) in answer to questions from the Recorder. Indeed, it seemed from her answers to the Recorder (see Transcript p 51) that she had no objection in principle to overnight contact. When Ms Holmes tried to put this change in her stance to the mother (Transcript p 61) she was stopped by the Recorder (Transcript p 62): “Do not answer this question … I say do not answer it because I do not see where it is going.”

When Ms Holmes tried to explain, the Recorder broke in: “do you really want the witness to rake over all her earlier concerns and worries?”

27. Ms Holmes persisted: “Your Honour the problem is … that repeatedly what the mother does is she makes allegations that stops contact, she then comes to court and makes … concessions in court that lead to a small step forward. The point I’m making is … that if we are going to have a stable regime of contact… that is going to last I think we need to get to the bottom of what the problems are because otherwise the worry the father has is we go away from here, two months down the line all the same allegations, and we come back to court again and we’re back to where we were, square one.”

The Recorder responded: “Well I think you will find that the court, at least this court, will want to move forward rather than to linger … I have to approach the case as it is today, the witness has said, and I am sure your client would want to move forward from where it is today rather than, as it were, have a kneejerk reaction … to kick it back to the order of District Judge Chandler in 2008.”

Ms Holmes then made a very pertinent point (Transcript p 63): “But Your Honour the reality is … that what she is proposing is that she dictates the way in which it moves forward. That she is saying it should move forward in this particular way only … when we have never actually established why the previous arrangements were wrong.”

She added: “But we’re now in a situation where the mother is determining that there should be a vast reduction from that level of contact. I’m trying to get to the bottom of why she feels that that is necessary.”

The Recorder then made his position very clear (Transcript p 62): “Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?”

28. Ms Holmes soldiered on for a while. As the short adjournment approached the Recorder said this (Transcript p 68): “I am going to curtail your cross-examination unless you want to investigate what would be more acceptable to [mother] otherwise we shall move straight to your client.”

Ms Holmes made clear (Transcript p 69) that: “if I am not able to explore [the allegations being made by the mother] then it does hamper my ability to be able to put my client’s case.” The Recorder was unmoved: “Well that may be but it seems to me we are where we are”.

29. In his judgment the Recorder acknowledged (Transcript para [3]) that he had not permitted cross-examination, as he put it, “going back into the mists of time”. He explained why: “it seemed to me … and it still seems to me, that the proper starting point for the hearing today is today.”

30. The point made by Ms Holmes in her skeleton argument and elaborated by Ms Thain in her oral submissions is simple and compelling. The Recorder concentrated on how things might move forward without questioning, or allowing counsel to question, how or why the current state of affairs had come about and whether the mother’s reasons for unilaterally varying the previous court order were justified. This, it is said, was particularly alarming given what Dr Little and Ms Coatalen had said in their earlier reports – material suggesting that there could be a pattern to the mother’s behaviour requiring investigation of the kind the Recorder refused to permit. In short, it is said, by restricting cross-examination of the mother the Recorder ensured that it would be impossible for him to carry out the task required of him and denied the father a fair hearing.

If I may say, I  very much like the cut of Ms Holmes’ jib here.

The Court of Appeal, unsurprisingly, took a dim view of the Judge’s view that the past was of no interest to him in making decisions about the future.

31. In my judgment the father’s appeal must be allowed on this ground alone.

32. The point is really quite short and simple. Of course the Recorder was right in saying that one had to look to the future: after all, his task was to determine J’s future living arrangements. And of course, in one sense, the Recorder was right to look at how matters stood on the day of the hearing: after all, things were as they were. But his error – and in my judgment he here fell into plain and obvious error – was in rejecting Ms Holmes’ entirely justified desire to explore the crucial question of why it was that things were as they were at the date of the hearing. The investigation – the cross-examination – that Ms Holmes wished to undertake was not something she wished to pursue Micawber-like in the speculative hope, absent any reason to believe so, that something might turn up. On the contrary, and as she explained to the Recorder, there were at least two things she wished to explore, and which in my judgment cried out for investigation: first, why the mother’s attitude had changed between October 2011 and March 2012; second, and even more important, why the arrangements agreed in January 2008 had not worked out and why the mother believed they needed to be changed.

 

33. The Recorder may have been right in doubting the utility of an investigation “back into the mists of time”, but this was not what Ms Holmes was suggesting and it was no answer to the need for a more focused investigation of the kind she wanted to undertake. As my analysis of the litigation shows, there was a very clear point in the past which was the obvious initial starting point for such an investigation: the order made by District Judge Chandler on 7 January 2008. Two things about that order are striking: first, it was made against the background of the concerning matters identified and considered by Dr Little and Ms Coatalen, and taking into account Ms Coatalen’s recommendations; second, it was an order made by consent and moreover, as the order itself makes clear, on an occasion when the mother was represented by counsel. Now of course in a case such as this a consent order does not have the same status as a consent order made in ordinary civil proceedings, but it was nevertheless entirely understandable that Ms Holmes should wish to probe with the mother why she no longer saw the order she had agreed to as being appropriate. Moreover, given what Dr Little and Ms Coatalen had said, Ms Holmes had every justification for wishing to explore whether the explanation for the mother’s change of view since January 2008 lay in those matters which had caused Dr Little and Ms Coatalen concern rather than in the explanations now being offered by the mother.

34. Whether it would have been appropriate for Ms Holmes to seek to push the investigation farther back into the past – even assuming she would have wanted to – was, I should add, not a matter calling for a ruling at the outset. It was a matter to be considered, if the need arose, in the light of how the preceding cross-examination had gone.

35. Of course, and even in a family case, a judge should stop irrelevant or time-wasting cross-examination. But a judge should always bear in mind that, however carefully he has read the papers beforehand, counsel is likely to have a better grasp of the inner forensic realities of the case. And a judge does well to think twice if, as here, his intervention is met by counsel standing her ground and carefully explaining why she wishes to cross-examine in a particular way, especially if, as here, counsel’s reasons have obviously been carefully considered and are not just ‘off-the-cuff’. Ms Holmes is to be congratulated for doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client’s case. It is a pity that the Recorder did not, even at that point, see any reason to change his mind.

36. In my judgment, the effect of this was indeed, as submitted to us, to disable the Recorder from carrying out the task required of him and to deny the father a fair hearing. But I go further. To deny the father a fair hearing and a proper opportunity to put his case was also, of course, to deny J a fair hearing. And for the reasons given by McFarlane LJ it may also have meant that the mother’s case was not properly considered.

37. There is no way in which we can remedy things except by allowing the appeal and directing a re-trial at which those matters which the Recorder refused to consider can be properly investigated. In the circumstances the re-trial must be in front of a different judge.

 

The telling point here is that father’s counsel was able to set out the purpose of her cross-examination and that it had a relevant and pertinent aim and intention, and was not just a string of questions in the hope that something good might come out of it. Judges wishing to curtail cross-examination will need, as a result, to hear what underpins the questions; and counsel faced with potentially irascible tribunals will need to have at their fingertips an explanation of the strategic thrust of the topic and why it goes to the live issues in the case. [If they are not able to produce an answer to that readily, they perhaps shouldn’t be embarking on that line of questioning…]

1 Comment

Posted in case law, private law and tagged , , , , . Bookmark the permalink.

A tapestry of justice

Posted on October 12, 2012 by suesspiciousminds

 

A discussion of London Borough of Sutton and Gray 2012   – in which the High Court determined that an earlier finding of fact that a father had shaken a child, causing injuries (and for which father went to prison) was wrong and had been in effect a miscarriage of justice.

 

The children had been placed with a relative (fortunately) who cared for them under Special Guardianship Orders. Had they been instead, adopted, then the Court would have been faced with the same issue as in Webster, that children had been wrongly removed and adopted, but that such a step cannot be unpicked.  The LA had been seeking a Placement Order for the younger child.

 

 

The Judge in this case, Mrs Justice Hogg, dealt with the case in a very measured and compassionate way – the other judgment, which I don’t include, which deals with the aftermath of this finding of fact and the reconciliation of the family is moving in the extreme.

 

 

[I am very grateful to Ms Troy who was junior counsel for the children in alerting me that this case was forthcoming and to watch for it.  Ms Troy is a very able advocate, a thoroughly decent person and someone blessed with good taste in football; an all-round good egg. The title is a malapropism from a gentleman who left Court and informed myself and counsel that this had been “a tapestry of justice”]

 

The judgment is here:-

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2604.html

 

 

You will notice the highly unusual step of the Court giving the full names of those involved, rather than anonymising them. That’s a marker of how important it is for this family to be exonerated, and the likelihood that there will be further media involvement – I note that journalists were present.

 

I would point out in this case, that the miscarriage is not a result of bungling or bad faith on anyone’s part,  nor crookedness, nor incompetence, nor overly dogmatic experts. It just reflects what is becoming increasingly understood – that in complex medical cases involving injuries to children, sometimes our best working diagnosis on the balance of probabilities, can still be wrong.  As the Judge says late on, with reference to Mrs Justice Bracewell – in effect the Judge has to make the best conclusions they can from the evidence as it is presented, but being aware that today’s certainties can be tomorrow’s grey areas.

 

In a case such as this, we can see the stark impact of that on the family. It would not be an overstatement to say that they have been torn apart by these circumstances.

 

  1. From a very early stage the spectre of Non Accidental Injury was raised to explain Ellie’s collapse and the findings of intracranial and retinal bleedings. The parents, in particular the father, was unable to give a history of an accident or other explanation as to why she had suddenly become limp and in a collapsed state. The various tests performed did not reveal any medical explanation. Suspicion therefore arose that Ellie’s condition was a result of an inflicted injury. The fact she had been injured previously added to the suspicions. The Local Authority and police were informed of the position.
  1. As a result the parents were arrested on suspicion of causing grievous bodily harm to Ellie and interviewed by the police on 6 March 2007. Both denied causing injury to Ellie on or about 15 February, and have continued to do so ever since.
  1. In the meanwhile the Local Authority decided to issue care proceedings in respect of Ellie in which a care order was sought on the basis that she had suffered an inflicted head injury and burns whilst in the care of her parents.
  1. The application was issued on 5 March 2007 in the Croydon Family Proceedings Court. The first Interim Care Order in respect of Ellie was made on 15 March 2007, and thereafter renewed on a regular basis. On that date the proceedings were also transferred to the Croydon county Court.
  1. The fact-finding hearing took place in front of HHJ Atkins culminating in his Judgment dated 29 January 2008, in which he made findings against the father in that he:

(i) caused the burns on 7 February 2007 to Ellie deliberately or recklessly or negligently;

(ii) caused the head and eye injuries and the consequences sustained by Ellie on 15 February 2007;

(iii) the mother failed to protect Ellie by leaving her in the father’s sole care on 15 February.

  1. On 28 April 2008 the Learned Judge made further findings against the parents that:

(i) neither had accepted his Judgment and findings on 29 January 2008;

(ii) neither had been open and honest about the extent of their relationship, that “it has been more extensive than they said”;

(iii) both had intimidated and made various specific threats towards the maternal grandparents;

(iv) and the Learned Judge ruled the mother out as a long-term carer for Ellie.

  1. On 14 August 2008 the Learned Judge made the Special Guardianship Order to the maternal grandparents and the contact orders for the parents.
  1. The police charged the father with causing grievous bodily harm to Ellie on 15 February 2007 contrary to S.20 of the Offences against the Person Act 1861 and with cruelty contrary to S.1 of the Children and Young Persons Act 1933.
  1. On 24 March 2009 after a 4 week trial at Croydon Crown Court the father was convicted on both counts, and by majority verdict on the charge under S.20 and sentenced to concurrent terms of 18 months and 1 month imprisonment.
  1. Isabella was born on 7 September 2009 while the father was in prison.

 

 

It can easily be seen, that in relation to paragraph 45, those findings made that the parents had not accepted the finding of fact hearings are the only thing they could have done, and to criticise them for it is now evidently unfair.  Given that it was not true, how could they do anything other than continue to deny it?

But of course, the Court was proceeding on what was understood to be right at the time   [and from a legal point of view, what the Court FOUND to have happened at the hearing in January 2008 WAS what happened; although we now know that in reality, it was not what happened at all]

 

  1. The Injuries Ellie received
  1. Ellie collapsed in the father’s home. She suffered brain dysfunction or encephalopathy. She sustained subdural and retinal haemorrhages.
  1. Those three types of injuries are often referred to as The Triad and considered as a significant pointer towards a diagnosis of non-accidental head injury, particularly as in this case where there are no other signs, symptoms or marks of injury on the child. In this respect I am excluding the burns.
  1. It must not be assumed that because it seems ‘The Triad’ is present that it automatically and necessarily leads to a diagnosis of non-accidental head injury.
  1. Before concluding that The Triad exists and that a finding of non-accidental head injury is justified the Court must consider and examine the evidence in respect of each injury, its diagnosis, and its causative event(s) with care. It must also consider the clinical presentation of the child and the evidence of the parents, carer or other relevant witnesses.
  1. The findings in every case must depend on the specific individual facts to that case.
  1. At the end of the day it is always possible for a Judge to rule that the cause of an injury remains unknown. As Mr Justice Hedley said in Re R. 2011 EWHC 1715:

“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.”

 

 

I suspect, that this is a phrase, as it is both resonant and skilfully constructed, that we will see again and again  “We are fearfully and wonderfully made”

 

The Judge analysed the evidence in relation to each element of the ‘triad’  – those classic symptoms which suggest that the child has been the victim of a shaking injury.

 

  1. My Conclusions
  1. The conclusion I draw from the evidence of all three ophthalmologists are:

(a) This is an unusual case;

(b) It is unlikely that the injuries to the eyes were (i) birth related or (ii) caused by the seizures suffered by Ellie in hospital.

(c) The causative event(s) probably occurred shortly before Ellie’s admission to hospital;

(d) Ellie’s rapid and complete recovery was “remarkable” given the apparent severity of the haemorrhages when first seen;

(e) By just looking into the eye it is not possible to identify the cause of haemorrhaging;

(f) The haemorrhages do not have the hallmarks of a shaking injury, but such an injury cannot be excluded. In the event it was a shaking injury the severity of the force would be at the lower end of the spectrum;

(g) An airway obstruction giving rise to a sharp increase in intra cranial pressure could be an explanation for the haemorrhages, and would fit into the scenario resulting in a rapid and complete recovery without any residual damage;

(h) All three were prepared to consider an explanation other than that of shaking. The two experts were also specifically questioned about the possibility of an airway obstruction being the root cause as suggested by Professor Fleming. Both accepted the possibility;

(i) None were prepared to say on the balance of probabilities the injuries seen in Ellie’s eyes were caused by a shaking or inflicted mechanism. Mr Gregson and Professor Taylor were prepared to say they “did not know” or “could not be certain” what caused the injuries and “sat on the fence” when asked whether there was an innocent explanation or non-accidental explanation;

(j) The ophthalmic evidence is only one part of the picture, a piece of the jigsaw which is before the Court

 

 

 

  1. The conclusions I draw from the ENT doctors are as follows:

(i) All the doctors accepted that Ellie had abnormalities: the cyst, the cleft and laryngomalacia. They also accepted that there were indications she suffered from reflux and the cleft could contribute to possible aspiration of the gastric products.

(ii) They accepted that she had intermittent stridor, noisy breathing indicating an airway obstruction, which could have been caused by the cyst, and/or the laryngomalacia and positioning of the head, but that it was mild and there was no evidence that it was a moderate or severe obstruction.

(iii) None were aware of a link between airway obstruction whether severe or not and intracranial haemorrhages either in personal experience or in medical literature.

(iv) Mr Joseph alone indicated that a sudden reflux could cause a spasm and a closure of the airway which would be sudden and silent, but producing a floppy child.

(v) None of the doctors had examined or treated a child with the three physical abnormalities, nor had they read about such a case, even without the additional complication of reflux.

(vi) They agreed she was an unusual child

 

 

 

  1. The conclusions I draw from the radiological/neuroradiological evidence are as follows:-

(i) Any fluid seen in the subdural space is an abnormality and cause for concern. It has a pathological cause.

(ii) There are abnormalities seen on the scans and there was broad agreement as to what is visible. The differences lie in the interpretations; what the abnormalities represented;

(iii) There were darker areas of attenuation over the frontal areas and convexities containing small areas of brighter attenuation:

(a) It is agreed the small bright areas represent acute blood;

(b) The darker areas could either be:

(i) Chronic subdural haemorrhage, possible dating back to Ellie’s delivery; or

(ii) Acute traumatic effusions being cerebro-spinal fluid having leaked through damage to the arachnoid;

(iv) Acute blood is seen as brighter attenuation up to 7 to 10 days after bleeding;

(v) Chronic bleeds are seen as darker attenuation and are recognised between 2 to 3 weeks after the bleed. An upper age limited is not possible to assess from the scans;

(vi) Birth related subdural haemorrhages do occur, particularly after a Ventouse delivery. They are asymmetrical and usually resolve/disappear by 4 weeks: some may remain longer;

(vii) New bleeds creating acute subdural haemorrhages require a force which is beyond that of every day handling. An observer would know it was excessive and inappropriate and likely to cause injury to a child;

(viii) Re-bleeds are possible into chronic subdural haemorrhages either around damaged bridging veins or from membranes within the haemorrhages. Lesser force is required to trigger a re-bleed.

(ix) Subdural haemorrhages in themselves do not cause brain injury: but are markers of injury.

(x) Ellie suffered from encephalopathy, dysfunction of the brain which caused her collapse and presentation to hospital;

(xi) There was no evidence of hypoxic-ischaemic damage in the brain, but that did not exclude such injury being present, but not visible and thus very mild;

(xii) Ellie appears to have made a complete recovery from the neurological point of view;

(xiii) There was no evidence on the scans of scalp swelling, or skull fractures or other visible injury to the head. (I leave aside the injuries to the eyes).

(xiv) Whether there were re-bleeds into chronic subdural haemorrhages or an acute traumatic effusion there needed to be an incident of trauma: the degree of force required for such trauma depended upon whether it was a re-bleed or a bleed de novo;

(xv) The traumatic event would have occurred before her presentation to hospital, and most likely shortly, if not immediately before her collapse;

(xvi) The traumatic event could be one involving a shaking and/or impact, or if only enough to trigger a re-bleed a minor force or even the alleged bumpy buggy ride;

(xvii) In Dr Stoodley’s opinion the trauma sufficient to trigger re-bleed’s would not account for the acute bleeding at the back of the head and in the posterior fossa nor the encephalopathy.

 

 

  1. The conclusions to draw from the evidence of Mr Richards and Mr Jayamohan are:

(i) The two neurosurgeons were in broad agreement with the findings on the scans by the neuroradiologists. Like them Mr Richards and Mr Jayamahon could not agree as to the interpretation of the darker attenuation in the frontal areas. They both agreed there was fresh blood within the darker areas and at the back of the head and in the posterior fossa.

(ii) They agreed that an explanation was required for that fresh blood, and the blood at the back of the head and in the posterior fossa could not be accounted for by a re-bleed or movement between compartments and thus a lesser force. They agreed that the most likely explanation was that of trauma.

(iii) They also agreed that Ellie had suffered some brain dysfunction shortly before her presentation to hospital for which there was no obvious answer: the force required for a re-bleed would not suffice.

(iv) They were of the overall view that the encephalopathy and trauma occurred at about the same time and could have been caused by the same event.

(v) Both were presented with Professor Fleming’s evidence and proposition that Ellie suffered an airway obstruction causing cessation of breathing. In her struggle to breathe there was a sharp rise in intracranial pressure which caused her to collapse. They were both prepared to accept this as a possible cause for the brain dysfunction.

(vi) They were also both prepared to accept that the father unintentionally inflicted injury to Ellie in his panic to help her. Neither could say from the scans that the trauma Ellie sustained was accidental or non-accidental in motive. That was for the Court to decide.

(vii) Both acknowledged that the injuries could have been sustained as a result of an unknown cause.

 

 

 

A significant issue was the detection of a cyst in the child’s throat, with the mechanism being that the cyst had caused breathing difficulties, which in turned caused the child to enter into a fit, which caused the subdural haematoma and the retinal haemorrhaging.  This had potentially been compounded by the child travelling in a car seat, which if the child had (as in this case) weak neck muscles the head can tip forward and block the airway.

 

 

The Court was assisted by the paediatric overview from Dr Fleming

 

  1. Sometimes in cases of alleged abusively injured children a paediatric ‘overview’ adds little to the overall medical evidence. In this case Professor Fleming with his great interest and experience in airway obstruction and near life-threatening events in children was able to look at this case and its history in the light of recent medical thinking and with a very objective eye.
  1. He was cautious, fully aware that there is much to be learnt in medical science particularly with reference to life-threatening events in infants, and the many aspects of their physiology:

“The medical professionals are sometimes arrogant in thinking we know the answers, but our understanding is changing rapidly at present. There are things we know about now that we did not know about 3 or 4 years ago. That is why I am conscious that despite all the investigations we can do in children who have had such life-threatening episodes we don’t actually find an answer as to what’s caused them. Not finding an answer is not to me the same as saying somebody must have done it”.

  1. If I may say, wise comments from a very experienced practitioner and one of which doctors and lawyers alike should take heed.

 

 

 

 

And the Judge then pulled all of this together, and an analysis of the parents evidence.

 

  1. 15 February
  1. I turn now to the 15 February. Should I make the finding sought that the father caused Ellie to suffer a non-accidental head injury by doing something, a shake, a shake with impact or other mechanism in a brief loss of temper or control?
  1. Do I accept the father’s evidence that something silently happened to her before in panic he scooped her out of the car seat?
  1. Do I accept that his actions of scooping her up, putting her onto the bed inadvertently caused her some injury, but only after she had collapsed?
  1. The father’s description of Ellie’s collapse, appearance and floppiness are descriptions of an encephalopathy or brain dysfunction.
  1. Her presentation to hospital and clinical observations are those seen typically in an infant who is suffering from an encephalopathic illness.
  1. It is accepted that the illness could have either an innocent explanation or a non-accidental one.
  1. The investigations undertaken have shown that she was not suffering from any illness or other disorder and unless there was an unknown cause, not impossible, the doctors effectively excluded an illness or disorder.
  1. The CT and MRI scans reveal subdural collections in the frontal area, and at the back of the head and in the posterior fossa. The frontal collections contain acute blood, and there is acute blood at the rear of the head. There is a dispute as between the neuroradiologists and neurosurgeons as to what the frontal collections represent; there is no dispute as to the presence of acute blood in the various areas. There is no dispute that the acute blood was caused by trauma, the exact nature of the mechanism and force required is disputed, subject to the individuals’ interpretations.
  1. The important blood to consider is that at the back of the head and in the posterior fossa and the possible mechanisms and forces required to cause it.
  1. Otherwise the neuroradiologists and neurosurgeons agree that on the scans there was no other evidence of hypoxic-ischaemic damage or injury to brain, and no evidence of an impact to the skull or scalp. The radiology revealed no other injury to Ellie’s body and other than the burns there were no other marks or bruises on Ellie.
  1. There were retinal haemorrhages present which were not typical of a shaking injury and which required explanation.
  1. Ellie was an unusual child with three abnormalities in the laryngeal area. The cyst and the cleft are rare features, the laryngomalacia more common. That combination with the cyst could have caused her intermittent stridor. No doctor appearing before me had ever encountered a child with all three abnormalities present.
  1. She also suffered from reflux.
  1. There was strong evidence from Professor Fleming that Ellie could have suffered from airway obstruction, either as a result of laryngo spasm triggered by reflux, or by her head dropping forward whilst asleep in her car seat. Either way she could have collapsed through an inability to breathe and consequential lack of oxygen. Either would give rise to rapid changes in intra thoracic and intra-cranial pressure which in turn could have caused the retinal haemorrhages.
  1. The experts, the neurosurgeons in particular and the ophthalmologists were able to accept this hypothesis as possible.
  1. Professor Fleming was not so certain about the acute blood at the rear of the head, and I felt the other evidence that indicated a trauma of some form was required to cause it was stronger.
  1. The neurosurgeons accepted that a swift arc like movement from the car seat and a bang onto the bed following a collapse induced by an airway obstruction was a possible explanation for the presence of the acute blood both at the back and in the frontal regions. Even Dr Stoodley who preferred an overall inflicted shaking causation could accept it as a possibility but an unlikely one.
  1. On the medical evidence alone there is no strong pointer that the injuries Ellie sustained were inflicted through a loss of control or temper by a perpetrator shortly before her collapse.
  1. I go further. On the medical evidence alone I think the Local Authority has difficulties. There are too many pointers which question a conclusion of inflicted injury. There is a strong pointer indicating an innocent explanation for the collapse, being the airway obstruction as propounded by Professor Fleming and accepted by the neurosurgeons as possible.
  1. The Local Authority has to prove its case. In my view on the medical evidence alone I do not think that it has established on the balance of probabilities that the injuries Ellie sustained were non-accidental in origin. There is too much strong evidence flowing the other way. I do not make the finding sought by the Local Authority that she was a victim of an abusive head injury.
  1. Where does that leave me? Am I in a position to take the matter further, or merely leave it as a case of no find of fact against the father?
  1. In fairness to all I should try to go further. Ellie and [OTHER CHILD] when they grown up need to know with as much clarity as possible what happened to Ellie in February 2007 and why they were separated from their parents while still infants.
  1. The parents have suffered enormous loss as a result of the findings. If I can exonerate them from wrongdoing in February 2007, the father in particular, I should do so. This family, all three generations, have suffered as a result of the findings made in January 2008. The grandparents’ planned quiet retirement was invaded by their granddaughter. It has been their pleasure and enjoyment to bring her up, but it has been at an enormous physical and emotional cost. Neither is in the first flush of youth or best of health. It could not have been easy for them to change gear and take on a toddler. They have done well. Ellie is thriving in their care. Without them she would have been adopted, but the additional cost is they have lost touch with their own daughter, and she with her siblings. The family circle has been shattered. I hope the damage can be repaired, and if it be possible any work might be assisted by all the adults knowing what I think probably happened to Ellie that February evening.
  1. I therefore ask myself: Do I accept the father’s account of the events of that early evening, that all was peace and calm before Ellie for some reason collapsed; and do I accept his now not clear account of his reaction to seeing his daughter lifeless?
  1. There is corroboration from the parents themselves describing intermittent noisy breathing and episodes of intense paleness. Professor Fleming accepts these could be symptoms of the underlying, and then unknown laryngeal abnormalities.
  1. There is corroboration from Dan the flat mate that all was quiet and he did not know Ellie was there until summoned by the father.
  1. There is corroboration from the 999 tape and transcript that the father was panicking.
  1. The incident took place more than 5 years ago. The father was panicking and frightened for his daughter and I accept it is likely in those circumstances he may not now recall the exact details of what he did after the collapse or what he said on the tape. Even nearer the time given his panicky state of mind he may not have recalled the precise details. Such corroborative evidence as is available supports his account.
  1. It is inherently unlikely that a ‘silent’ something happened which caused the father to silently lose control and silently inflict an injury upon Ellie. He is not someone who reacts silently, even in court when he disagreed with a piece of evidence he was muttering and overheard by others. If there had been an event which had caused him to lose his temper or control he would not have been silent, he would have been heard by Dan. There would have been some form of commotion.
  1. According to the neurosurgeons in particular his account of a collapse followed by a panicked reaction involving a swift arc-like movement onto the bed could have had the same effect in Ellie as if she has been shaken or shaken with an impact onto a soft surface.
  1. On the medical front there is an innocent explanation for all the injuries Ellie sustained having taken into account the father’s own evidence. It is a complex picture that involves two innocent events in quick succession.
  1. Overall, I felt both parents wanted to be open with me. I felt in this context the father was anxious to be truthful. He did not say he remembered it all; he did not try to provide new information. I accept his account. I do not think he inflicted an abusive injury to Ellie. It may well be that inadvertently he injured her, but only in a reactive way after she had collapsed. I wonder how many parents in a panic situation scooping up a lifeless infant from a car seat remember to protect the wobbly head. I am sure many parents would not.
  1. It may be in failing to do so and swinging her round too fast he mimicked a rotational shaking movement; maybe he banged her head too hard onto the bed. He was a new and inexperienced parent reacting to a very difficult and frightening event. He was seeking to revive his baby. He may well have acted in too much haste and with too much force but not intending to harm her in any way.
  1. I do not blame him for causing injury to Ellie, while I accept that he may have done so with all good intention to help her.
  1. I hope everyone will accept that I do not attach any culpability to him, and that in my Judgment he is exonerated from causing her any inflicted injury. If, in fact, he did cause her injury it was purely accidental.

 

 

 

 

There are some final conclusions, which are very important. One is the Judge’s firm views that the involvement of neurosurgeons in a case of this kind is vital, with which I completely agree. Another is that the role of the Guardian, and her representatives in this case was pro-active and assisting the Court in reaching the truth, rather than the passive ‘deckchair brief’ that it often becomes.

 

We have had three judgments this year, McFarlane LJ,  Justice Mostyn and now this one, and this is the strongest of the three.  I would say that this is, because it is a positive decision praising the Guardian and her representatives for being pro-active, that it is now authority for the principle that this is what a Guardian and his or her team should do in fact finding hearings.  Fold up the deck-chair and get stuck into the medical records.

 

If you are representing a Guardian in a fact-finding hearing, or if you are involved in a fact-finding hearing and think the Guardian is being entirely passive, these passages are vitally important.  [My underlining]

 

I could NOT agree more forcefully with these sentiments – it isn’t for the Guardian to prosecute or defend, or to take a side, but to ensure that the possibilities are properly explored and that the Court has the best chance of reaching the truth for the children concerned.

 

  1. And Finally
  1. The medical evidence which I heard is very distant from that heard by HHJ Atkins in January 2008.
  1. To begin with neither he nor the criminal trial, nor indeed the Court of Appeal had sight of the CT scan of 26 February. Its first appearance in Court was before me and before I heard any evidence. Why it was not produced to Judge Atkins I do not know. It is a most valuable document identifying the subdural collections, the acute blood in the subdural space, and the cyst in the larynx.
  1. The Learned Judge heard evidence from Dr Rich, the “treating” Consultant Neuroradiologist, and Dr McConachie, the expert Consultant Neuroradiologist, who declined any further instructions in these proceedings. I did not. He did not have the evidence of Dr Anslow or Dr Stoodley.
  1. He heard from Dr Salem, Dr Dutta, and had reports from Dr Shepherd, all being ‘treating’ doctors. He heard from Dr Lloyd who was jointly instructed, and Dr Harding instructed by the mother. I did not.
  1. He heard from Mr Richards who has never seen the whole medical evidence. He did not hear or see any report from Dr Jayamohan.
  1. He heard from Professor Proops and Mr Joseph, both Consultant Otolaryngologists and ‘expert’ witnesses. He also heard from Mr Daya, the treating Consultant ENT Surgeon. I did not.
  1. He heard from Miss Leitch the ‘treating’ Ophthalmic Surgeon and Mr Gregson and Professor Taylor who were instructed as expert Ophthalmologists. I did not hear Miss Leitch.
  1. He also heard from Dr Cussons, a Consultant in Burns and Plastic surgery. Although I have seen his report and views he was not required, and I preferred the more pragmatic view of Professor Fleming.
  1. The Learned Judge did not hear from Professor Fleming, who was particularly instructed by the parties for this hearing as an expert paediatrician with considerable experience and interest in treating infants with airway and breathing difficulties, and those who have suffered a life-threatening event.
  1. It was very fortunate that he was available. The issue of airway obstruction had been raised long ago, particularly by Dr Salem who called for an expert. Although Dr Harding accepted the proposition her evidence was not so strong. Professor Proops’ evidence discounted airway obstruction as did Dr Lloyd.
  1. I have not read HHJ Atkins’ Judgment of January 2008 or the summing up of HHJ Stow, and deliberately so as to ensure that I dealt with the ‘raw’ medical evidence only and not that as recorded or interpreted by another. I cannot and do not criticise Judge Atkins Judgment, and I make no comment upon Judge Stow’s summing up.
  1. I have come to different conclusions from Judge Atkins on different and more expansive evidence. In my view it is important for me to emphasise this so that the parents, the grandparents and the girls in time can appreciate this. It may also be of some value to the Local Authority.
  1. I wish only to add a few comments and thoughts.
  1. I add also that in many cases involving a fact-finding hearing of alleged abusive injury a Guardian plays little or no part in the proceedings at that stage.
  1. In this case although I gave leave that the Guardian personally need not attend every day she was most ably represented by experienced Queen’s Counsel and experienced Junior, newly drawn from the ranks of solicitors.
  1. The Guardian through them was kept closely informed of the medical evidence. She was able to reflect upon it, and give clear instructions. She came to hear the parents’ own evidence, which in itself is important if a case is to go further.
  1. She gave clear instructions for her written submissions.
  1. I appreciate that it is important to consider costs in such cases, but in this case the Guardian’s involvement and interventions have been of great assistance and significance in the final outcome.
  1. There is no reason why a Guardian should not play an active part in a fact-finding hearing. There are very good reasons why a Guardian should.
  1. A Guardian represents the interests of the child. It is in the interests of that child that the truth is ascertained with as much clarity as possible.
  1. It is the child’s right to know in later life what happened in his/her childhood, and why certain decisions were taken.
  1. In days gone by when I was still practising, and when some children were represented by a Guardian, then the Official Solicitor, the Guardian’s Counsel took an active part in the fact-finding part of the hearing and was expected to do by the Judge and other Counsel ensuring that the relevant and appropriate questions were asked and issues raised for the Judge.
  1. In the appropriate case a Guardian should not only be represented but personally attend parts if not all of a fact-finding hearing, and be prepared to play as full a part as is necessary in that hearing: only then can the child be properly represented.
  1. The instruction and evidence of Professor Fleming only emphasises in cases of alleged inflicted injury and difficult medical issues to resolve the need for all parties and their legal advisors and Courts to consider with care the type of expert required, and the particular expert’s expertise and experience.
  1. It was also important in this case to have the evidence of two experienced Consultant Neurosurgeons. The evidence of a neurosurgeon tends to be broader than that of a neuroradiologist. A consultant neurosurgeon is capable of viewing a scan and interpreting what he sees, he then on operating will see the real thing, and see in fact what he saw as an image on a screen. He also has the advantage of meeting the parents or carer of an injured child, and indeed has to meet with and console grieving adults. Whilst working with the neuroradiologists discussing cases both neurosurgeons said they could read the scans, but deferred to the neuroradiologists for subtleties on the scan.
  1. Again in some cases and with an eye to the costs of cases it may be appropriate to consider instructing an expert neurosurgeon rather than neuroradiologists. In many cases the evidence only of a neuroradiologist is adequate.
  1. It is also important to reflect that in the last 5 years further research has been carried out and papers published on head injuries to infants. There has been much debate on the medical and legal worlds as to how or why some injuries occurred. The debate has emphasised that there is still much that is not fully understood and much to learn. Professor Fleming put it so well, that there was a need to be cautious, not arrogant, and to know that medical science is still learning.
  1. I simply add: “we do not know it all”.
  1. The late Mrs Justice Bracewell once commented to me after a particularly difficult case that it was at the “very edge of medical science”, “she could only do her best in the light of the evidence put to her”.
  1. Mr Justice Hedley is right: “we are fearfully and wonderfully made”.

 

[See, I said we’d be seeing that line again.  It”s from the King James Bible, Psalm 139:14 if you’re interested]

 

2 Comments

Posted in case law, experts, fact finding and tagged , , , , , , , , . Bookmark the permalink.

“So he was all, like, Pride, and I was all, like – nuh-uh, Prejudice?

Posted on October 12, 2012 by suesspiciousminds

 

It’s totally true, right, and everyone like knows,  it’s like well obvious, that a bloke with  like loads of bling, like as if  he’s totally minted, needs fixing up with a girl?

 

If this bloke with loads of dollar, like, moves somewhere new,  even if he doesn’t know he needs to hook up with like, a girl, all the families in the area are all like, hello here’s a rich geezer we need to like get him to get off with our daughter before someone else like bags him first.  It’s all like, he belongs to us already, he’s like our property?

 

So, right, Mrs Bennett turns round to Mr Bennett and just goes “yeah, no, do you know what? NetherfieldPark has been snapped up”

 

And Mr Bennett is like, whatevs.

 

And then right, Mrs Bennett turns round and goes, “well yeah, it has been, and Mrs Long, she was all like, yeah Netherfield Park has been bought, and I was all, no way, and she was all like yes way, and I was all, not even, and she was like I totally mean it, and then I was all god, I must tell Mr Bennett”
And Mr Bennett is like, whatevs. Like he’s not really like into it, but Mrs Bennett can totally see through that, and she’s all, yeah right, like you’re really not bothered.

 

So she turns round and goes, “Don’t you, like, not even want to know who has bought it?”

 

And he’s all, “No,yeah, whatevs, you want to tell me, and I’m not even bothered either way, sup to you, innit?”

 

This was invitation enough.

 

 

[Clearly, I have reached the point of grumpy middle age, where the speech patterns of young people have ceased being fascinating and amusing and just annoy the hell out of me. It does worry me that the generation who have grown up talking  in this way will be addressing Judges and  like, have these horrible little verbal tics slip out?   I do already, I have to say, see a lot of advocates who are under the impression that if you read out a long assertion and then raise your intonation slightly at the end, that somehow constitutes a question… which is the opposite of the young people who give the inadvertent  impression that every statement is a question by doing the same thing]

1 Comment

Posted in stuff that isn't law at all and tagged , , , . Bookmark the permalink.

Can a person choose whether to be represented by the Official Solicitor?

Posted on October 12, 2012 by suesspiciousminds

A consideration of the ECHR decision in R.P and Others v The United Kingdom 2012 

You may remember this case from 2008 in the Court of Appeal  – it was an appeal brought on behalf of a woman who had been judged to lack litigation capacity, and who had been represented through the Official Solicitor in care proceedings. The Official Solicitor had eventually not contested the care order at final hearing, and the woman then contacted John Hemming MP, and an appeal was brought on the basis that :-

(a)   The assessment of her litigation capacity was wrong

(b)   The assessment of her litigation capacity was fundamentally flawed as it had been obtained by an expert report funded by all parties, and thus the expert had a financial interest in reaching a particular conclusion (i.e because the LA were paying some of the experts fees, the expert had a financial conflict of interest and delivered a verdict they wanted)

(c)   That the entire principle of a person being unable to fight a Care Order when they wished to do so, purely because they lacked capacity was unfair and discriminatory against the most vulnerable persons in society.

The Court of Appeal dismissed the appeal, and it is a judgment worth reading. I know that Mr Hemming disagrees with the conclusions, as he is entitled to, and I put that caveat in so that people know that there is a different perspective to that in the judgment.  [That judgment is at  http://www.bailii.org/ew/cases/EWCA/Civ/2008/462.html]

The case finally reached the ECHR and their judgment can be found at :-

http://www.bailii.org/eu/cases/ECHR/2012/1796.html

The Claimant was unsuccessful on all counts, but I still think that the case raises some important issues. It does feel uncomfortable that every parent, no matter the quality of their case has the right to be legally represented and challenge the recommendations of the State and to test that evidence UNLESS they lack litigation capacity and the Official Solicitor takes a view that the case should not be contested. 

It does seem to me that a person can lack litigation capacity to know what a care order is, or what a threshold criteria document is, or even to be taken through individual allegations and be able to respond to them, but I think fundamentally it is not difficult to judge whether the view of a parent in a care case is  “I want my child back” or “I don’t want my child to be adopted” and I think that case ought to be put.

What RP didn’t really get massively into was the ability of the Official Solicitor to effectively throw the towel in on behalf of a parent who lacks capacity to instruct a solicitor but still has firm views on that central question of ‘I want my child back’.  If the O/S always approached cases on the basis of ‘if the parent is saying they want the child back, that case must be put, but it will be for the O/S to instruct the solicitor on HOW to put the case’   I would be quite happy. Like John Hemming MP, I do feel uncomfortable when the O/S throws the towel in – even where the evidence is overwhelming. 

[After all, there were probably stages of Alas Al Wray where the evidence looked overwhelming…]

 

 

The ECHR accepted the view of the UK that where a person lacks litigation capacity, the Official Solicitor can be appointed and conduct the litigation and that the O/S has to do what they consider is in the child’s best interests.

 [Now, in my humble and trivial opinion,  sometimes what the parents consider to be the child’s best interest and what the child’s best interest is completely overlaps, sometimes they are diametrically opposed and more often than either, sometimes it takes a Court hearing and a determination of the evidence to see whether those two views overlap or are incompatible – that’s why we have Court hearings]

 

And of course, the need to conduct the ligitation with the child’s best interests at the forefront, rather than the parents wishes, is not a stipulation that applies to those receiving instructions directly from parents.   [With some caveats – a solicitor isn’t allowed to lie to a Court on your instructions,  or conceal child abuse,  but if a parent says ‘I want you to fight the case’ a solicitor isn’t obliged to decide whether fighting the case is good for the child, they let the Judge make that ultimate decision]

 

I think the submissions of the Equality and Human Rights Commission are interesting and worth reading.

  1. 58.                        3.  The submissions of the Third Party intervener

 

  1.   The Equality and Human Rights Commission (“the Commission”) submitted that learning-disabled parents in the United Kingdom were more likely to have their children removed from their care than other parents and frequently did not receive the support which they needed in order to retain custody of their children. Consequently, decisions about the removal of children from learning-disabled parents required very close scrutiny of the support offered to the parents.

 

  1.   The Commission further submitted that Articles 6, 8 or 14 could be breached if limitations were placed on a learning-disabled litigant’s right of access to a court which were not strictly necessary, or if a litigation friend did not take sufficient positive steps to ensure that the specific needs and interests of such a parent were properly taken into account. In particular, it was important that strong procedural safeguards existed to ensure that the parent’s views were properly, fully and fairly advanced before the court. In order for this to be the case, it was essential that decisions about the parent’s litigation capacity should not be taken on the basis of a joint report part-funded by an opposing party in family litigation; that the question of capacity be kept open, with a formal institutional/legal mechanism for it to be challenged by the learning-disabled person and reviewed if any evidence suggested it could be wrong or that the position had changed; and that the case put forward by the Official Solicitor or other litigation friend should be focused solely on the needs of the parent.

The ECHR were satisfied that the UK system has sufficient safeguards for establishing whether a person has litigation capacity and whether they are entitled to challenge such assessment, for the Official Solicitor role to operate properly and for this to be explained to the person, that the system did not discriminate against those with a disability, and that the system of jointly funding experts did not lead to a conflict of interest.

 

[Frankly, as a Local Authority lawyer who knows the financial budgetary problems, I’d have been delighted if the ECHR had decided that the LA could no longer share in the costs of instructing an expert]

Here is the reasoning on this element

  In cases involving those with disabilities the Court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned (see, for example, Shtukaturov v. Russia, no. 44009/05, § 68, 27 March 2008). This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the Court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Article 6 § 1 of the Convention. In assessing whether or not a particular measure was necessary, the Court will take into account all relevant factors, including the nature and complexity of the issue before the domestic courts and what was at stake for the applicant (see, for example, Shtukaturov v. Russia, cited above, § 68).

  It is clear that in the present case the proceedings were of the utmost importance to R.P., who stood to lose both custody of and access to her only child. Moreover, while the issue at stake was relatively straightforward – whether or not R.P. had the skills necessary to enable her successfully to parent K.P. – the evidence which would have to be considered before the issue could be addressed was not. In particular, the Court notes the significant quantity of expert reports, including expert medical and psychiatric reports, parenting assessment reports, and reports from contact sessions and observes the obvious difficulty an applicant with a learning disability would have in understanding both the content of these reports and the implications of the experts’ findings.

 

  In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the Court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that R.P.’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect R.P.’s interests might in itself have amounted to a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, T. v. the United Kingdom [GC], no. 24724/94, §§ 79 – 89, 16 December 1999).

 

  It falls to the Court to consider whether the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. In making this assessment, the Court will bear in mind the margin of appreciation afforded to Contracting States in making the necessary procedural arrangements to protect persons who lack litigation capacity (Shtukaturov v. Russia, cited above, § 68).

  With regard to the appointment of the Official Solicitor, the Court observes that he was only invited to act following the commissioning of an expert report by a consultant clinical psychologist. In assessing R.P., the psychologist applied the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70, namely whether R.P. was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which her consent or decision was likely to be necessary in the course of the proceedings. She concluded that R.P. would find it very difficult to understand the advice given by her solicitor and would not be able to make informed decisions on the basis of that advice, particularly when it involved anticipating possible outcomes. The psychologist produced two more reports in the course of the proceedings, the second of which contained a further assessment of R.P.’s litigation capacity. In that report she noted that R.P. did not have the capacity to give informed consent to a placement order as she could not really understand the proceedings, except at a very basic level. The Court is satisfied that the decision to appoint the Official Solicitor was not taken lightly. Rather, it was taken only after R.P. had been thoroughly assessed by a consultant clinical psychologist and, while there was no formal review procedure, in practice further assessments were made of R.P.’s litigation capacity in the course of the proceedings.

  The Court considers that in order to safeguard R.P.’s rights under Article 6 § 1 of the Convention, it was imperative that a means existed whereby it was possible for her to challenge the Official Solicitor’s appointment or the continuing need for his services. In this regard, the Court observes that the letter and leaflet which the Official Solicitor sent to R.P. informed her that if she was unhappy with the way her case was being conducted, she could speak to either S.C. or to the Official Solicitor, or she could contact a Complaint’s Officer. Moreover, in his statement to the Court of Appeal the Official Solicitor indicated that R.P. could have applied to the court at any time to have him discharged. Alternatively, he indicated that if it had come to his attention that R.P. was asserting capacity, then he would have invited her to undergo further assessment. While the Court observes that these procedures fall short of a formal right of appeal, in view of the finding that R.P. lacked litigation capacity, it considers that they would have afforded her an appropriate and effective means by which to challenge the appointment or the continued need for the appointment of the Official Solicitor.

  The Court does not consider that it would have been appropriate for the domestic courts to have carried out periodic reviews of R.P.’s litigation capacity, as such reviews would have caused unnecessary delay and would therefore have been prejudicial to the welfare of K.P. In any event, as noted above (see paragraph 69), assessments were in fact carried out of R.P.’s litigation capacity in the course of the proceedings. The Court would also reject R.P.’s assertion that she should have been encouraged to seek separate legal advice at this juncture. In view of the fact that she had been found to lack the capacity to instruct a solicitor the Court does not consider that this would have been a necessary or even an effective means by which to protect her interests.

  As stated in paragraph 61 above, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective and this is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (Airey v. Ireland, cited above, § 24). Consequently, any means of challenging the appointment of the Official Solicitor, however effective in theory, will only be effective in practice and thus satisfy the requirements of Article 6 § 1 of the Convention if the fact of his appointment, the implications of his appointment, the existence of a means of challenging his appointment and the procedure for exercising it are clearly explained to the protected person in language appropriate to his or her level of understanding.

 

  In this regard, the Court recalls that the letter sent to R.P. indicated that the Official Solicitor would act as her guardian ad litem and would instruct her solicitor for her. It further indicated that S.C. would tell the Official Solicitor how R.P. felt about things and that he would consider her wishes and views before he filed a statement on her behalf. He would do his best to protect her interests but also had to bear in mind what was best for K.P. The leaflet accompanying the letter informed R.P. that the Official Solicitor made decisions about court cases, such as whether to bring, defend or settle a claim. Under the heading “Will the client be consulted” R.P. was informed that “the instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager”. If she was dissatisfied with the way her case was being conducted, she was informed that she should discuss the matter either with S.C. or the Official Solicitor’s Office. If she remained dissatisfied she could write to the Complaint’s Officer. While the Court accepts that R.P. might not have fully understood, on the basis of this information alone, that the Official Solicitor could consent to the making of a placement order regardless of her own personal wishes, it cannot ignore the fact that she was at all times represented by S.C. and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the implications of his appointment.  Indeed, in this regard the Court recalls that S.C.’s conduct of the case was commended by the Court of Appeal which found, in its judgment of 8 May 2008, that R.P. had been fully informed of the involvement of the Official Solicitor and the nature of his role. Nevertheless, she did not seek to complain until ten months after his appointment and two days before the final hearing.

74.                         Consequently, the Court considers that adequate safeguards were in place to ensure that the nature of the proceedings was fully explained to the applicant and, had she sought to challenge the appointment of the Official Solicitor, procedures were in place to enable her to do so (cf. Stanev v. Bulgaria, [GC], no. 36760/06, 17 January 2012, where no direct access to court was open to the applicant to have his status as a partially incapacitated person reviewed by a court).

 

  1. 75.                          With regard to the role of the Official Solicitor in the legal proceedings, the Court recalls that he was to act “for the benefit of the protected party”. The Court has taken note of R.P.’s concerns about his focus in the present case on “what was best for K.P.”. However, the Court accepts that the best interests of K.P. were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests. Consequently, the Court does not consider that the fact the Official Solicitor “bore in mind” what was best for K.P. in deciding how to act amounted to a violation of R.P.’s rights under Article 6 § 1 of the Convention.

 

  1. 76.                          Moreover, the Court does not consider that “acting in R.P.’s best interests” required the Official Solicitor to advance any argument R.P. wished. On the contrary, it would not have been in R.P.’s – or in any party’s – best interests for the Official Solicitor to have delayed proceedings by advancing an unarguable case. Nevertheless, in view of what was at stake for R.P., the Court considers that in order to safeguard her rights under Article 6 § 1 of the Convention, it was imperative that her views regarding K.P.’s future be made known to the domestic court. It is clear that this did, in fact, occur as R.P.’s views were referenced both by the Official Solicitor in his statement to the court and by R.P.’s counsel at the hearing itself.

 

  1. 77.                          Moreover, the Court recalls that R.P. was able to appeal to the Court of Appeal. Although she was not legally represented in the appeal proceedings, this was through choice as she refused the assistance of pro bono counsel which the Official Solicitor had secured for her. Nevertheless, the Court notes that in the course of the appeal proceedings she was afforded ample opportunity to put her views before the court, and her arguments were fully addressed in the court’s judgment.

[If you have read the Court of Appeal decision, you will be aware that whether this letter was sent was a matter of great factual dispute, with it being alleged that it had been falsely inserted into the file by the solicitor as a ‘back covering exercise’ after the event  but never actually sent. The Court of Appeal rejected that allegation fairly forcefully, but one can see the critical importance of proper documentation prepared in a way that the client can comprehend being provided in a timely fashion]

 

All of this seems to go away, of course, now that the Practice Direction suggesting that the Official Solicitor may cheerfully refuse to act on behalf of someone lacking litigation capacity and that the solicitor should take instructions from the client’s friends, family, neighbour,  friendly milkman,  local newsagent et al instead.

 

I am adding in the comment made by @thesmallplaces on the UK Human Rights blog post about this, because I think it raises some really important points and in an excellent way – so none of these are my words that follow, but I do agree with an awful lot of it, particularly the fine final paragraph.

I think it’s a real shame that this case has become overshadowed by the antics of John Hemming MP. Although it raised very serious Article 6 issues, every time these issues are raised they get swept aside by a discussion of Hemming’s behaviour. Valid as many of those criticisms are, this misses the point entirely. I’m really pleased to see that serious lawyers like Rosalind English and Richard Stein are talking about these issues.

My feeling is that the ECtHR gave a very superficial analysis of the situation. Prior to RP bringing the case in the Court of Appeal, it wasn’t even clear that a person who had been found to lack capacity to litigate had standing to (see paragraph 36 where Sir Nicholas Wall ‘says no more about it’ as neither the OS nor the LA raised a challenge on these grounds). I suppose the ECtHR ruling has at least made clear that people in RP’s position must have standing to apply to the court to displace their litigation friend. But there are several problems here. How is a person who may have borderline capacity, who is unlikely in the extreme to be familiar with CPR 21 or Court of Protection Rule 147, supposed to do so without being able to instruct a solicitor? These are precisely the circumstances which drive people into the arms of McKenzie friends like Hemming in the first place. Secondly, if they do wish to challenge the appointment of a litigation friend in court – is there public funding for them to do so? How are they supposed to secure and fund any expert reports they might need?

The ECtHR placed great store by the OS’s complaints mechanism. There is very little evidence that the complaints mechanism has ever been used in this way. Certainly none of the OS’s annual reports for the last four years suggests that he has withdrawn from a case on the basis of a complaint. The ECtHR also said that RP should have raised her challenge to his appointment earlier. There is very little discussion as to precisely what RP was told about the OS’s appointment at the outset. The role of a litigation friend seems baffling to most people outside the legal world. To be told that somebody has been appointed who will act in your best interests is very different to being told that somebody has been appointed who might argue a case which conflicts entirely with what you want. Surely that latter point is what must be pressed home to a person in order for them to fully understand the significance of being found to lack litigation capacity. Yet neither the CoA nor the ECtHR report that this is what RP was told.

One of the core principles of the MCA is that people should be offered support to promote their capacity in the relevant respect. If you look at the correspondence between RP and her solicitor quote in the CoA ruling, it’s very hard to see how this is geared towards supporting a young mother with learning disabilities who is extremely distressed. For somebody in RP’s position, the first stage should be to provide support for her to understand and make the requisite decisions herself. For people with learning disabilities, it may require skills which mainstream solicitors don’t have – yet there is very little provision of advocacy services or similar which could help people with litigation matters.

There is a wider question about whether it is even appropriate for a person’s ‘objective’ – as opposed to ‘subjective’ – best interests to be represented in court. There are cases where there is a danger that a person might run up excessive costs or settle for trifling amounts without the intervention of litigation friends – they often have a very valuable role in such cases. Likewise in cases where a person’s wishes and preferences cannot be discerned. But in cases like this, or cases in the Court of Protection, where the courts are already bound to give effect to the best interests of the child or the person themselves, what is the danger in pressing as hard as possible for what the person actually wants? To do otherwise distorts the case that is presented before the court so that a person’s rights to self-determination are never fully adversarially tested. What is tested instead, is other people’s views of what they should want.”

2 Comments

Posted in case law and tagged , , , , , , , . Bookmark the permalink.

Ultra Orthodox or Orthodox – which is best? Only one way to find out…

Posted on October 10, 2012 by suesspiciousminds

 

The case of Re G (Children) 2012 has attracted quite a bit of press attention, and it touches on some interesting issues; particularly on the role of the Courts in determining religious disputes and how deeply the Court will roll up its sleeves and plunge arms into those murky waters.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1233.html

 

 

The thrust of the case is fairly simple – the parents separated. The mother diverted from her previous religious beliefs, which were ‘ultra-orthodox’ Jewish specifically Chareidi  and now described herself as ‘orthodox’. The father remained of the ‘ultra-orthodox’ Chareidi faith.

 

They could not resolve between themselves which school their children would be attending  (the youngest child was 3, so for him it was an issue for the future).     The father wanted the children to attend a Chareidi school, and the mother a Modern Orthodox school.

 

The Court was therefore faced with a Specific Issue Order application, arising within an application for a Residence order.   It was very clear from the evidence that it was not a simple narrow ‘which school is better’ approach, but that the selection of the school would effectively be a determination of whether the children would have an ‘orthodox’ or ‘ultra orthodox’ way of life.  It was central to the children’s lives in a way that it would not necessarily be where the religious principles were so intertwined with educational provision.

 

[Given that orthodox means ‘true belief’ or ‘having the right opinion’  loosely, being orthodox is good, and perhaps etymologically speaking being  ‘ultra orthodox’ is either better, or a tautology]

 

The judgment in the Court of Appeal would be a very good start for distilling the essential principles of how the Court is to approach matters of religious difference.

 

It is not the place of the Court to weigh one religion against the other, not to comment or criticise religious practices (although they are entitled to look at the impact of those practices on the child), and all religions are entitled to equal respect as long as they are legally and socially acceptable.  The Court would have a view on religious practices such as forced marriage or female circumcision on that basis.

 

  1. Religion – whatever the particular believer’s faith – is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual’s or family’s religious principles. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, after all, demands no less. The starting point of the common law is thus respect for an individual’s religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity.
  1. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are “legally and socially acceptable” (Purchas LJ in Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, 171) and not “immoral or socially obnoxious” (Scarman LJ in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, 244) or “pernicious” (Latey J in Re B and G (Minors) (Custody) [1985] FLR 134, 157, referring to scientology).
  1. The Strasbourg jurisprudence is to the same effect. Article 9 of the European Convention provides as follows:

“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The protection of Article 9 is qualified in two ways. In the first place, the Convention protects only religions and philosophies which are “worthy of respect in a ‘democratic society’ and are not incompatible with human dignity”: see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293, [36]. I mention the point only for completeness; it plainly does not arise in this case, because the parents’ beliefs are in each case clearly worthy of respect. Secondly, whilst religious belief and thought are (subject to that overriding qualification) given absolute protection by Article 9(1), the “manifestation” of one’s religion in “worship, teaching, practice and observance” is subject to the qualifications referred to in Article 9(2).

  1. The important point for present purposes is that the Convention forbids the State to determine the validity of religious beliefs and in that respect imposes on the State a duty of what the Strasbourg court has called neutrality and impartiality: see, for example, Moscow Branch of the Salvation Army v Russia(2007) 44 EHRR 46, [58], where the court said that:

“The State’s duty of neutrality and impartiality … is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.”

  1. Within limits the law – our family law – will tolerate things which society as a whole may find undesirable. A child’s best interests have to be assessed by reference to general community standards, making due allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very divergent views about the religious, moral, social and secular objectives they wish to pursue for themselves and for their children. We have moreover to have regard to the realities of the human condition, described by Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, [50]:

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

  1. Where precisely the limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition.
  1. Some things are nevertheless beyond the pale: forced marriages (always to be distinguished of course from arranged marriages to which the parties consent), female genital mutilation and so-called, if grotesquely misnamed, ‘honour-based’ domestic violence. Plainly, as I wish to emphasise, we are not here in that territory.
  1. Some aspects of even mainstream religious belief may fall foul of public policy. A recent striking example is Westminster City Council v C and others [2008] EWCA Civ 198, [2009] Fam 11, where this court held on grounds of public policy that a ‘marriage’ valid under both Sharia law and the lex loci celebrationis, despite the manifest incapacity of one of the parties, was not entitled to recognition in English law. Again, I emphasise, we are not here in that territory.
  1. Some manifestations of religious practice may be regulated if contrary to a child’s welfare. Although a parent’s views and wishes as to the child’s religious upbringing are of great importance, and will always be seriously regarded by the court, just as the court will always pay great attention to the wishes of a child old enough to be able to express sensible views on the subject of religion, even if not old enough to take a mature decision, they will be given effect to by the court only if and so far as and in such manner as is in accordance with the child’s best interests. In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.
  1. There are many examples of the working out of these principles in the family courts. Sometimes, as in the cases involving blood transfusions for the children of Jehovah’s Witnesses, the issue is literally one of life or death (using those words in the secular sense). The tenets and faith of Jehovah’s Witnesses will not prevent the court ordering a child to receive a blood transfusion, even though both the parents and the child vehemently object: see, for example, Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386.
  1. But the clash between a parent’s religious beliefs and a loved child’s welfare may arise in many other contexts. Consider, for example, the wrenchingly sad case of Re S; Newcastle City Council v Z [2005] EWHC 1490 (Fam), [2007] 1 FLR 861, where the question was whether, within the meaning of section 16(2)(b) of the Adoption Act 1976, a mother was unreasonably withholding her consent to the adoption of her son on the basis of religious beliefs that were reasonable and genuinely held. I adjudged that she was. As I said [56]:

“Religious belief is no more determinative of whether a parent is acting reasonably than it is of whether something is in a child’s best interests. Whilst the court will no doubt be slow to conclude that a parent faithfully striving to follow the teachings of one of the great religions of the world is acting unreasonably, there is nothing to prevent the court coming to that conclusion in an appropriate case. Everything must depend upon the facts and the context. In this, as in so many other areas of family law, context is everything.”

  1. Often issues of this kind arise, as in the present case, following the breakdown of the parental relationship in a situation where the parents have different religious beliefs or follow different religious observances. Examples to which we were referred are Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, affirmed Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, where there was a dispute between a Muslim father and a Christian mother as to the circumcision of their 5-year old son, and Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236, where a similar dispute arose between a Muslim mother and a Hindu (Jain) father. We were also taken, and appropriately in some detail, to Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, where custody was in dispute between a father who was a member of the Church of England and a mother who was a Jehovah’s Witness, and to Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, where residence and contact were in issue because the father was a member of the Exclusive Brethren.
  1. None of this is at all controversial but it requires to be clearly understood because it is the essential legal landscape against which the issue in the present case falls to be determined.
  1. In the present context I can do no better than to set out what Scarman LJ (as he then was) said in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, 244-245, in a passage understandably much relied upon by Miss Platt. It is a long passage but it demands citation in full as a powerful and compelling statement of principle by one of the greatest and most socially sensitive judges of his generation. He was speaking in 1975, although for some reason the case was not reported until 1981, but his words remain as true today as then:

“We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practice of Jehovah’s Witnesses. It is conceded that there is nothing immoral or socially obnoxious in the beliefs and practice of this sect. Indeed, I would echo the words of Stamp LJ in T v T (1974) 4 Fam Law 190 in which he said this of the Jehovah’s Witnesses – and what he said is, indeed, borne out by such evidence as we have in this case:

“Many families bring up their children as Jehovah’s Witnesses and the children are good members of the community, although perhaps a little isolated from other children in certain respects. They are different but the same thing could be said of Presbyterians, Catholics and indeed any other religious faith.”

It is as reasonable on the part of the mother that she should wish to teach her children the beliefs and practice of the Jehovah’s Witnesses as it is reasonable on the part of the father that they should not be taught those practices and beliefs.

It is not for this court, in society as at present constituted, to pass any judgment on the beliefs of the mother or on the beliefs of the father. It is sufficient for this court that it should recognize that each is entitled to his or her own beliefs and way of life, and that the two opposing ways of life considered in this case are both socially acceptable and certainly consistent with a decent and respectable life. What follows from that? It follows, in my judgment, that there is a great risk, merely because we are dealing with an unpopular minority sect, in overplaying the dangers to the welfare of these children inherent in the possibility that they may follow their mother and become Jehovah’s Witnesses. Of course, most of us like to play games on Saturdays, to go out to children’s parties and to have a quiet Sunday – some of us will go to church, and some of us will not. This appears to be the normal and happy, even though somewhat materialistic, way of life, accepted by the majority of people in our society. It does not follow, however, that it is wrong, or contrary to the welfare of children, that life should be in a narrower sphere, subject to a stricter religious discipline, and without the parties on birthdays and Christmas that seem so important to the rest of us. These are factors that must be considered, but I think it is essential in a case of this sort to appreciate that the mother’s teaching, once it is accepted as reasonable, is teaching that has got to be considered against the whole background of the case and not as in itself so full of danger for the children that it alone could justify making an order which otherwise the court would not make.”

  1. How then is the court to decide in such a case? I quote again from Scarman LJ (at 248):

“… when one has, as we have here, two good parents, indeed, two unimpeachable parents, each of them following very different ways of life, which have led to the matrimonial breakdown, it does not follow that, because one parent’s way of life is more acceptable to most of us, it is contrary to the welfare of the children that they should adopt the way of life of the other parent that is acceptable only to a minority, and a tiny minority at that.”

 

 

 

 

So, in essence, both of the religious practices espoused by the parents were legal and legitimate and the Court had no basis for determining that one was in any way inferior or less proper than the other.  Equally, it was not right to consider that one was more socially common than the other, and to prefer the one which seemed to our eyes more usual.  Or even that one seemed more normal than the other to secular eyes.

 

How then, were the Court to resolve a problem between two parents, each with Parental Responsibility, and each with a valid and legitimate viewpoint and desire?

 

Lord Justice Munby goes on a digression here which was fascinating to a law geek like me; and explains exactly why the historical starting point in English law that it was for the father to decide what happens with his children is no longer how the Courts settle things.  [And an interesting side note for those who consider that mothers have the upper hand  in family courts – there’s 1925 statute law, still in force, to say otherwise. Whether that is followed, or indeed known, much I could not say]

 

  1. Time was when the solution to a case such as this would have been simple. The court would have declined to become involved and deferred to parental authority, that authority being of course exclusively the father’s. According to Sir William Balliol Brett MR, the court could not interfere with “the sacred right of a father over his own children.” A father had a legal right to control and direct the education and bringing up of his children, and the court would not interfere with him in the exercise of his paternal authority, unless by his gross moral turpitude he forfeited his rights or had by his conduct abdicated his paternal authority: In re Agar-Ellis, Agar-Ellis v Lascelles (1883) 24 ChD 317. That was, to quote the words of Lord Upjohn in J v C [1970] AC 668, 721, the dreadful case where the Court of Appeal permitted a monstrously unreasonable father to impose upon his daughter of 17 much unnecessary hardship in the name of his religious faith.
  1. The retreat from that high water mark of judicial abstention is traced in the speeches of the Law Lords in J v C and subsequently in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The speech of Lord Scarman in the latter case demands particular attention. For present purposes there are two centrally important developments to be noted.
  1. The first was the eventual realisation that the child’s welfare as judicially determined is paramount. In 1924 Lord Cave LC could treat this as established principle: Ward v Laverty [1925] AC 101, 108. The principle was put on a statutory basis in section 1 of the Guardianship of Infants Act 1925. It has been part of our statute law ever since, now enshrined in section 1(a) of the Children Act 1989 which provides that:

“When a court determines any question with respect to … the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.”

  1. The other equally important development was the dethroning of the father from his privileged position vis-à-vis the mother. The Guardianship of Infants Act 1886 marked an important step in that direction, but the 1925 Act put the matter beyond all argument. The preamble to the 1925 Act read as follows:

“Whereas Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby:”

The second limb of section 1 was in the following terms:

“the court … shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, … is superior to that of the mother, or the claim of the mother is superior to that of the father.”

  1. Ever since then, men and women, husbands and wives, fathers and mothers have come before the family courts, as they come today, on an exactly equal footing. The voice of the father carries no more weight because he is the father, nor does the mother’s because she is the mother. The weight to be attached to their views, if opposed, is to be determined on the basis of the merits or otherwise of the views being expressed, not on the basis of the gender of the person propounding them. The second limb of section 1 of the 1925 Act finds no place in section 1 of the 1989 Act, though it still appeared in section 1 of the Guardianship of Minors Act 1971, no doubt because by the late 1980s Parliament thought that it went without saying. And no doubt for that reason the true significance and importance of section 1 of the 1925 Act is sometimes forgotten. But it was, and remains, fundamental.

 

 

 

So, it was for the Court to determine what was in the children’s best interests (given that the parents could not agree and had asked the Court to resolve it – Munby LJ was at pains to make clear that this was not the State interfering uninvited with the parents religious arrangements and preferences, but that the Court had been asked to determine the dispute and could not decline to do so).   That’s quite a long route to decide that it is a welfare checklist issue, but it was necessary to take the route in this case, to clear out what was important and relevant and what perhaps only appeared to be.

 

The trial judge had heard evidence about the two schools and the two ways of life, and the impact on the children of following either educational course. In the end, he made the determination that the children would have better opportunities in life by attending the ‘Orthodox’ school as mother desired, rather than the ‘ultra-Orthodox’ school that father wished.

 

There was then an issue about whether that was too narrow a construction and whether the trial judge had placed far too much emphasis on the ‘pure’ educational component and not enough weight on the ‘entire way of life’ component.

 

 

The Court of Appeal dismissed the father’s appeal and did not feel that the Judge had been plainly wrong  (indeed, they indicate that they would have been likely to reach the same decision, had they heard the case in its entireity)

 

  1. In the first place, he had to take into account the present reality that, following the parental separation in October 2010, the children had not been following an exclusively Chareidi way of life. When with their mother they were inevitably exposed to her significantly less strict form of observance. So already, and in significant part, what the father would have wanted for his children, was simply not possible. But the father’s case was, of course, and correctly, that one must not overstate the significance of what had happened. If the children continued within the Chareidi educational system they would have less – very much less – exposure to the non-Chareidi way of life than if they were educated in the way the mother wanted. Judge Copley, as we have seen, was acutely aware of this reality.
  1. At this point a fundamental issue has to be grappled with. What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a ‘judicial reasonable parent’ and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives? These are questions which, in the forensic forum, do not often need to be asked or answered. But in a case such as this they are perhaps unavoidable.
  1. In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child’s own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child’s opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a ‘judicial parent’, is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future.
  1. The point arises in its most obvious and extreme form where the issue before the court is whether to require a teenager to submit against their wishes to life-saving medical treatment. There, as Nolan LJ once observed (In Re W. (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 94), the duty of the court is to ensure so far as it can that children survive to attain the age of 18 at which an individual is free to do with his life what he wishes. A poignant example is provided by the aftermath of Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386, where Ward J (as he then was) had required a 15¾ year old Jehovah’s Witness to have a blood transfusion despite his, and his parents’, vehemently expressed religious objections. A few years later, not long after he had attained his majority, E’s leukaemia returned. He refused a blood transfusion, going bravely to his death steadfast in his religious faith.
  1. But the point arises equally, if in less extreme form, in the kind of case with which we are here concerned. So, in my judgment, Judge Copley was entitled to proceed as he did, just as he was entitled to accept Miss Adams’ analysis. To repeat:

“Whilst it is evident that either decision regarding schooling will result in losses, I have viewed this dilemma as one where I have tried to assess in which situation the children will have the most choices about relationship with both parents in the future, and the most choice about how they wish to live in the future.”

  1. Applying that approach to the particular facts of the present case, and bearing in mind his acceptance of Mrs Adams’ analysis, it seems to me that there were four key strands in Judge Copley’s reasoning.
  1. The first focused on educational opportunity. Here the evidence was clear and the choice stark. Whatever may be the practice in relation to education down to the point when children takes GCSEs, it is clear that, even for boys, the educational options narrow drastically thereafter in the Chareidi system and that tertiary education as generally understood hardly features at all. Career opportunities for boys in professions such as medicine and the law are very limited indeed, for girls virtually non-existent. The contrast with the wider community could hardly be greater. It is hard to imagine how either law or medicine could operate today without the women who at every level and in such large numbers enjoy careers which they find fulfilling and from which society as a whole derives so much benefit. Take the law: when I was called to the Bar in 1971 there were 2,714 barristers in practice at the independent bar of whom only 167 (some 6%) were women; by 2011 there were 12,673 of whom 4,106 (some 32%) were women. That is a measure of just how far society has moved in the last 40 years. And that, in my judgment, is the kind of societal reality to which a family judge must have regard in a case such as this. It is, after all, the reality which is daily on display in our family courts. The present case, as it happens, is typical of many: all three counsel who appeared before us were women, so too were the two solicitors, and so too was the CAFCASS officer. Judge Copley, in my judgment, was plainly entitled to conclude, as he did, that:

“the schools to which she wishes to send them will provide infinitely superior opportunities for these children to gain a much fuller and wider education, not only at secondary level but also at tertiary level should they choose that – the father’s own evidence and that of his witnesses bears this out – and thereafter they will have much greater job opportunities”,

just as he was entitled to accept Mrs Adams’ view that it was:

“more likely that the children will achieve greater economic success if they are given aspirations in relation to careers that exist outside the Jewish community.”

  1. The second strand in Judge Copley’s reasoning was his acceptance of Mrs Adams’ analysis of the emotional impacts on the children:

“If the children were to go to the schools of [father’s] choosing, I think there is a high risk that their relationship with their mother would become problematic … Conversely, if the children go to a school of [mother’s] choosing, there will be considerable losses also … I also think that there is some merit in the observation that a more accepting community composed of children from a variety of backgrounds will make it easier for the children to adjust to being children of a separated family … I think it will be easier for them to make the transition at a younger age, when children are often more adaptable in terms of peer groups.”

In relation to this Mrs Adams made a particularly powerful point:

“It would cause emotional confusion for them to depend upon their mother for love and care, yet have her choices presented as undesirable, and maybe feel that they should not listen to her.”

In my judgment, Judge Copley was plainly entitled to proceed on this basis.

  1. The third strand in Judge Copley’s reasoning was his acceptance of a very important point made by Mrs Adams:

“I am concerned that the children would have difficulty making a decision to embrace their mother’s lifestyle when they are older as they would be fearful of leaving behind everything they had grown up with … On the other hand, within the sort of community their mother proposes, they would be able to return to their religious roots when older.”

Again, in my judgment, Judge Copley was plainly entitled to proceed on this basis.

  1. The fourth and final strand in Judge Copley’s reasoning was his view, shared with Mrs Adams, that on balance the children’s interests were best served by what the mother was proposing. He was, in my judgment, plainly entitled to come to that conclusion.
  1. It follows that the father’s appeal must in my judgment be dismissed. This court can interfere only if it can be shown that Judge Copley was plainly wrong. He was not. I would, however, go further. Far from being plainly wrong Judge Copley was, as it seems to me, in all probability right in the decision to which he came. I suspect that, had I been in his position, having heard all the evidence he heard, I would have come to precisely the same conclusion.

 

1 Comment

Posted in case law, private law and tagged , , , , , , . Bookmark the permalink.

The Great Starvation Experiment

Posted on October 5, 2012 by suesspiciousminds

(not law, but it is something that I found to be interesting, and wanted to share)

In 1944, towards the latter part of the Second World War, Nazi scientists wanted to know what the physical and psychological impact of starvation on human beings was. They devised an experiment in which conscientious objectors who did not want to fight in the war were given a diet in which their calories were cut to a level of 1800 kCalories per day, consisting of potatoes, turnips, dark bread and macaroni. This starvation diet lasted for 24 weeks. The idea was that the subjects would lose, over that period, one quarter of their body weight. These conscientious objectors were also made to exert themselves, so that they were burning 3000 KCalories per day, walking 22 miles per week.

The effects of this were dramatic – one of the subjects cut off three of his fingers with an axe – it is not certain whether that was deliberate, or an accident brought about by the effects of hunger. Another began having violent dreams of cannibalism and suffered a full nervous breakdown.

Right now, you are thinking how awful it was for the Nazi’s to do this.

Only that’s not what happened. That’s not what happened at all.

The experiment was exactly as I have described, except that the scientists were from Minnesota, America, and the conscientious objectors had volunteered.

There’s an excellent article about it here  http://jn.nutrition.org/content/135/6/1347.full.pdf+html

The experiment came about not from any desire to inflict horrors on people to see what would happen out of sick curiousity, but because the US Government was aware that as Europe was being liberated, that there were hundreds of thousands, if not millions of people, who had been under-nourished, and who would struggle to get food. What would be the impact on them, what was the best way of restoring them to health, what would be the long-standing consequences for them?

Nobody knew the answers to any of these questions, which were going to become massively important in the real world.  Ancel Keys therefore devised an experiment in which volunteers would undergo a period of starvation, and then a variety of methods be used to assess the impact on them and a variety of approaches aimed to nurse them back to health to see which worked well and which didn’t.

One of the greatest killers of World War II wasn’t bullets or bombs, it was hunger. During just one battle, the Siege of Leningrad, a thousand people a day died of hunger. So finding out how starvation could be remedied, what you would need to do to save the victims of it was desperately important.

Obviously, you can’t do a starvation experiment, even on volunteers, on children or people who are already ill, so they needed healthy fit men to undergo it. But during a war, almost all healthy fit men were already in the Army, so the supply was short.

Conscientious objectors, who were fit and healthy but were not willing to take up arms and kill other human beings, were undertaking a variety of public services. Many of them wanted to do their part, short of taking a life, to help the war effort   (there’s an obvious difference between not wanting to shoot Germans and being opposed to the war against Nazi Germany, and many conscientious objectors wanted to help the war effort, just not by shooting guns).

Some were therefore recruited.  4000 volunteered, and 36 were chosen. It was made very plain to them that the process was going to be horrible, that the scientists had no idea what impact the process would have on them, and that nobody knew if there might be long lasting adverse consequences.

They explained what was going to happen. There was nothing held back. They explained that they could not assure me that there would be no permanent damage . . . They did not know what would happen. This is what they were trying to find out . . . really they emphasized the discomfort . . . this was not going to be an easy task down the road

I think it is already pretty brave to stand by your principles and refuse to join the army in a time of war (especially if you can see that the war is about freedom and oppression rather than land and wealth and self-aggrandisement as is traditionally the case), but these volunteers went beyond even that.

Here’s a quote from the study where those volunteers who were still alive talked about their experiences sixty years later.

Participants were supposed to lose _2.5 lb (1.1 kg)/wk to reach the desired 25% weight reduction by the end of the semi-starvation period.

 

The amount of food each man received at mealtimes depended on how well he was progressing toward his weekly goal. Usually reductions and additions were made in the form of slices of bread. Daniel Peacock remembered that emotions could run quite high in the cafeteria when one man received even just a little bit more food: “We were given our food along a cafeteria line and if the guy ahead of you is given five slices of bread, that’s pretty hard to conceal. And if you’re only getting three, that’s pretty touchy.”

 

He also spoke of the anxiety that accompanied the Friday night posting of the upcoming week’s rations: “. . . every Friday late in the day . . . they would post a list of all our names and what our rations would be for the following week . . . [the] calories . . . either minus or plus . . . Some of us . . . we’d go off to a movie. In other words, we delayed seeing that list; we dreaded seeing that list for fear that it was certainly going to reduce our rations . . . It’s pretty darn certain that it’s going to be bad news because we’re supposed to be descending.

 

 

Food became an obsession for the participants. Robert Willoughby remembered the often complex processes the men developed for eating the little food that was provided: “. . . eating became a ritual . . . Some people diluted their food with water to make it seem like more. Others would put each little bite and hold it in their mouth a long time to savor it. So eating took a long time.” Carlyle Frederick was one of several men who collected cookbooks and recipes; he reported owning nearly 100 by the time the experiment was over.

 

Harold Blickenstaff recalled the frustration of constantly thinking about food:

“I don’t know many other things in my life that I looked forward to being over with any more than this experiment. And it wasn’t so much . . . because of the physical discomfort, but because it made food the most important thing in one’s life- . . . food became the one central and only thing really in one’s life. And life is pretty dull if that’s the only thing. I mean, if you went to a movie, you weren’t particularly interested in the love scenes, but you noticed every time they ate and what they ate.”

 

 

 

Whatever one thinks of the ethics of the experiment, and I have to say that I lurch quite a bit from it being an inspirational testament to human spirit that healthy people would undergo such deprivations purely in order to inform scientists to be better able to help the starving masses, and it being something I find quite ethically uncomfortable, the experiment did produce meaningful results.

Ancel Keys found that when treating people who had been the victims of starvation, putting them on a normal calorific intake  (say 2,000 kCalories per day) would do no good at all, and that they really needed 4000 kCalories per day for several months, and that the nutritious quality of the food – mineral and vitamins etc, made relatively little difference unless there was that sheer volume of calories accompanying it. This was dramatically different to what had been predicted, which was that nutritious food and at a normal level would be what would be needed.   [It is obviously massively important, since the immediate consequence is that on liberating any city, you would need twice as much food as you thought you were going to need, in order to restore the starving citizens to health]

A great deal was also learned about the psychological impact – most of the subjects suffered periods of extreme emotional distress and depression during the experiment.

There are some interesting results which have pertinence for anorexia and bulimia, for example that many of the psychological effects associated with those conditions are actually a result of the lack of calorific intake rather than the condition per se, and that work on addressing those problems can only really stick if the calories are consumed. Many of the men, although they were painfully thin, with their bones protruding, thought that they were not thin, but that others around them were sickeningly fat. They began to view their own physiques as normal, rather than thin.

Many of the subjects found the recovery portion of the experiment, where the calories were built back up to be even harder than the starvation period – many continued to lose weight and that psychologically there was no release from the constant feelings of hunger.

Some of the men were kept on after the recovery period, and were allowed to consume what they wanted. Some consumed up to 11,500 kCalories in a single day, reporting that nothing could satisfy their hunger.

At times, the men seemed almost apologetic about the relative medical safety, wanting to make clear that they distinguished their hunger from that of those starving in unmonitored environments. Samuel Legg’s concluding comment related to this issue: “The difference between us and the people we were trying to serve: they probably had less food than we did. We were starving under the best possible medical conditions. And most of all, we knew the exact day on which our torture was going to end. None of that was true of people in Belgium, the Netherlands, or whatever.”

 

 

I found that incredibly moving and courageous, frankly.

Many of the subjects went on to continue in public service, devoting their lives to helping others and all of them report that they consider the Great Starvation Experiment to be the most important and meaningful things they ever did in their lives.

Comments Off on The Great Starvation Experiment

Posted in stuff that isn't law at all and tagged , , . Bookmark the permalink.

Practice directions make perfect?

Posted on October 5, 2012 by suesspiciousminds

 

Gosh, this is an insanely bloggy week.  Some consultation documents for new family law practice directions have flitted across my inbox today. I read them, so you don’t have to…

 

There are three big ones

 

One on experts pre-proceedings, which is obviously going to become more and more pertinent as the Government move the goalposts to artificially reduce the timescales for Court proceedings , sorry ‘shift the assessment process to pre-proceedings’.   It seems to me eminently sensible – there should be a proper LOI, documents shown to the expert should be particularised, and the expert should be told that they are to treat themselves and the assessment in exactly the same way as if it were being done within proceedings. 

 

 

One on the Official Solicitor, which is jawdropping.

 

1.1             The court will investigate as soon as possible any issue as to whether an adult party or intended party to family proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings. An adult who lacks capacity to act as a party to the proceedings is a protected party and must have a litigation friend to conduct the proceedings on their behalf. The expectation of the Official Solicitor is that the Official Solicitor will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act.

1.2    Any issue as to the capacity of an adult to conduct the proceedings must be determined before the court gives any directions relevant to that adult’s role in the proceedings.

 

We all know that this has been the direction of travel for the Official Solicitor for some time – they simply can’t cope with the volume of cases that have come their way. But this is a recognition in a Practice Direction that for most cases, a person lacking capacity will have to instruct solicitors through a friend or member of their family.

 

No prospect for difficulties there.  There’s never anything massively sensitive within care proceedings about an adult that might not be appropriate to share with their family member. There’s never any conflict between family members and any shifting allegiances or falling out. And there’s never any conflict of interest between say a mother who wants to fight for her child, and the grandmother who is now instructing the mother’s representatives but who actually wants the child to live with her (grandmother) rather than the mother.

 

I can see that in some quarters, John Hemming MP for one, it might be thought desirable to take the Official Solicitor out of the picture, and have the family help the parent to give instructions to a solicitor, rather than have some remote figure of the State make those decisions.  I have some sympathy with that, and think that it is a perfectly legitimate subject for debate and if it is after scrutiny found to be BETTER to have the family do it than the State, then make the change.

 

 But what’s happening here is a dramatic shift in public policy from “where a person is incapable of instructing a solicitor, someone independent should represent their best interests” to  “anyone suitable in the family can instruct a solicitor on the parents behalf”,   not as a result of debate, or research, or analysis, but because the current workload is too much.

 

Just as we massively scaled down the role of Guardians because CAFCASS was overstretched  (and look what that did – ushered in an era of getting three or four experts on every case, delaying and obfuscating and costing the country), we’re making the same error here.  Instead of properly resourcing the Official Solicitor, we’re just abandoning the principle.

 

 

I am mystified as to what a parent’s representative is supposed to do, faced with a capacity certificate saying the parent can’t give instructions, and two competing people who want to be the litigation friend.  The solicitor can’t chose, the client can’t chose. How do you resolve that?  What if the papers you’ve seen show that the person being put forward as the litigation friend failed to protect the client as a child and is largely responsible for the mess the client now finds themselves in as an adult?

 

 

 

The third one is on the instruction of experts within proceedings. Everyone follows the current practice direction on experts slavishly, as we know, so a fresh one is bound to fix any problems.

 

Here’s the gist of it – try to go for single jointly agreed experts rather than going off to get one each, as if we were in 1980s civil litigation.

 

 Well, we already do. Ah, but now they have an acronym  SJE  (Single Joint Expert) so that is going to make all the difference.

 

The Practice Direction does clarify that telling a prospective expert something at all about the case so that they can (a) tell you whether it is the sort of thing they can do (b) when they can do it by and (c) how much they would like to be paid for it, knowing full well that the estimate they give is subject to the whim of the LSC, is definitely not a contempt of Court.

 

[That is of course, helpful – but given that the Practice Direction is not in force yet, raises the unfortunate spectre that if it is necessary to have a change in law to make sure that doing that WON’T be a contempt of court in the future, that it sort of is now?]

 

And then what will be necessary in the application for an expert – underlining is mine.

 

an application or the court’s permission to call an expert or put in evidence an expert’s report, for an expert to be instructed or for the child to be medically or psychiatrically examined or otherwise assessed for the purpose of obtaining expert evidence for use in the proceedings must state-—

(a)    the discipline, qualifications and expertise of the expert (by way of C.V. where possible);

(b)    the expert’s availability to undertake the work;

(c)     the timetable for the report;

(d)    the responsibility for instruction;

(e)    whether the expert evidence can properly be obtained by only one party (for example, on behalf of the child);

(f)      why the expert evidence proposed cannot properlybe given by an officer of the service, Welsh family proceedings officer  or the local authority (social services undertaking a core assessment) in accordance with their respective statutory duties or any other party to the proceedings or an expert already instructed in the proceedings;

(g)    the likely cost of the report on an hourly or other charging basis;

(h)    the proposed apportionment (at least in the first instance) of any jointly instructed expert’s fee; when it is to be paid;  and, if applicable, whether public funding has been approved.

 

 

And then what is to go into the order – note that it is going to be necessary to append the questions so that the Court can determine that they are kept to a manageable number and are clear and focussed.  That’s good news for solicitors, since it means an end to the interminable tedium of back and forth emailing about questions and the questions being settled by counsel at Court.

 

I think that this is a GOOD thing.  It will mean that CMC’s will take substantially more court time than previously, as the questions will have to be drafted before an order can be lodged.

 

The terms of the draft order to be attached to the application for the court’s permission

3.8    FPR 25.7 provides that a draft of the order giving the court’s permission 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.

 

 

 

I think the two on experts are fine, and the one on the representation of vulnerable adults who lack capacity is awful.

 

It looks as though the plan is for these Practice Directions to come in some time before the end of this year. Sadly, the consultation process is over before I ever saw the documents, such is life. I doubt my snarky mutterings would have made any difference anyway.

 

And in the words of Meat Loaf – two out of three ain’t bad.

1 Comment

Posted in consultation, costs, experts, family justice modernisation and tagged , , , , , , . Bookmark the permalink.

White papering over the cracks?

Posted on October 4, 2012 by suesspiciousminds

 

A very brief look at the draft Care and Support Bill.

 

 

There’s a consultation going on (isn’t there always?)  this time on Safeguarding for adults, and whether some new powers should be introduced.

Firstly, it recommends removing s47 of the 1948 National Assistance Act, which was the power to remove someone from their home. They say, and I tend to agree, that  “Enacted in a very different era, its language and intentions are not compatible with our current approach to community-based support that promotes and protects people’s human rights “

 

I completely agree that it is a dangling remnant of a bygone era when doctors always knew best, and I’m not sure it is deeply compatible with Human Rights and probably should be scrubbed from the statute books.

 

Having said that, I’m not sure that s47 is an active problem – I can recall having only even looked at it as a possibility (and then discounting it) in one case.  I’ve never heard of anyone ever applying for such an order.   [It is interesting, for example, that on the bible on community care law  – Luke Clements and Pauline Thompson’s  “Community Care and the Law”, the section on s47 removal powers is just under a page long and cites no case law about it at all. ]

 

In case you want to know, here is verse, and also chapter

 

47 Removal to suitable premises of persons in need of care and attention. E+W

(1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who—

(a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

(2)If the medical officer of health certifies in writing to the appropriate authority that he is satisfied after thorough inquiry and consideration that in the interests of any such person as aforesaid residing in the area of the authority, or for preventing injury to the health of, or serious nuisance to, other persons, it is necessary to remove any such person as aforesaid from the premises in which he is residing, the appropriate authority may apply to a court of summary jurisdiction having jurisdiction in the place where the premises are situated for an order the next following subsection.

(3)On any such application the court may, if satisfied on oral evidence of the allegations in the certificate, and that it is expedient so to do, order the removal of the person to whom the application relates, by such officer of the appropriate authority as may be specified in the order, to a suitable hospital or other place in, or within convenient distance of, the area of the appropriate authority, and his detention 5and maintenance therein:

Provided that the court shall not order the removal of a person to any premises, unless either the person managing the premises has been heard in the proceedings or seven clear days’ notice has been given to him of the intended application and of the time and place at which it is proposed to be made.

(4)An order under the last foregoing subsection may be made so as to authorise a person’s detention for any period not exceeding three months, and the court may from time to time by order extend that period for such further period, not exceeding three months, as the court may determine.

 

 

So, I would agree that s47 be terminated with extreme prejudice, but it isn’t going to transform the world we live in.

 

The other big proposal is that there should be statutory principles about adult social care and safeguarding  (along the lines of the principles enshrined in the Children Act) , and to put it right at the beginning  – s1 the general duty of a local authority in exercising any powers under this Act with regard to an adult is to promote that adult’s well-being.

 

Again, I see no problem with that.

 

Then to give clear legal principles as to entitlement to support, including entitlement for carers and the right to insist on this being made by direct payments.   I remain sceptical that direct payments, or personalisation, is quite the magic wand that the Government believe it to be. I can see the concept that an individual should have the resources given to them to decide how they want to spend it on meeting their needs rather than having a paternalistic state decide, but I think in practice, it massively overlooks that adult social care tends to be given to the very most vulnerable members of society who may not be in quite the same position as a Local Authority bulk purchaser of services to achieve such good value for money. Nonetheless, direct payments and personalisation are the miracle cure, and thus we’re going to have them enshrined in legislation until such time as Government decides that passing the buck to vulnerable people to meet their own needs with a small amount of cash doesn’t really work.

 

 

This is a particularly interesting bit – clauses 31-33   – a person receiving a package of support will be entitled to the same package of support if they move to another area [at least until fresh assessments are done].  That is good for the person, certainly.

 

Very bad for the receiving local authority if the first LA realise that the person is planning a move and decides to offer them a ‘moon on a stick’ package of support which is Rolls Royce, knowing that they will only have to provide it for a week before the new LA gets lumbered with it for much longer.

 

It may well be a chance for festering scores to be settled between LA’s – it’s practically a statutory “griefing” mechanism.  [But maybe I am being too cynical, and neighbouring authorities will work together to achieve good outcomes for vulnerable adults moving between their authorities, just as they always endeavour to do now]

 

I do very much like the provision that where a person is placed in area B by Local Authority A, it will be Local Authority A who remain responsible for that person, and that will hopefully resolve a lot of inter-authority bickering.

 

 

There will be for the first time in statute, provisions about adult safeguarding, setting out the duty to carry out enquiries into suspected abuse, and there is discussion about whether the State should be able to apply for a warrant to gain access to a vulnerable person if it is believed they are being abused in order to investigate.

 

 

The consultation on that runs until 12th October, so if you have firm views about whether or not the State should have the ability to seek a warrant to enter the home of someone believed to be a vulnerable adult being abused, and the circumstances that would trigger such a warrant being granted, speak up quickly.

 

There are also interesting ‘smoothing’ provisions aimed at meeting the gap where a young person receives support and assistance from the LA under Children Act legislation until they reach 18, then get nothing at all whilst they wait for a community care assessment of their adult needs. The new proposals will ensure that the package of support they are getting as a child continue up until the community care assessment is done and a fresh package of support put in place.  I have to commend that, as being a gap that needed to be filled and a good proposal for filling it.  

 

All in all, I think this is a decent piece of draft legislation, and doesn’t contain anything that I consider to be outrageous or ill-conceived  (my personal anxieties about personalisation aside, that’s a direction we’ve been travelling in for a long while now)

 

 

Comments Off on White papering over the cracks?

Posted in adult social care, consultation and tagged , , , , , . Bookmark the permalink.

Passing the prior authority parcel

Posted on October 4, 2012 by suesspiciousminds

I’ve talked before about the new decision of the LSC to not grant prior authority for cases any more, and why that is actually worse that the already awful situation we had pre October   (as they won’t now tell anyone what they consider to be a reasonable amount of hours for the assessment, and there’s no mechanism for finding that out before the costs are refused, we are all in the dark)

I’ve been sent this proposal via ALC  – Association of Lawyers for Children   (and will print it in full – I commend them for trying to tackle the problem, but there’s no way in hell anyone representing my Local Authority will be instructed to agree to an order in those terms.  I don’t blame the ALC for advising their members that they can’t put themselves on the financial hook for the shortfall in fees, and I understand that they don’t want the proceedings delayed whilst we work out what the hell to do with the expert, but there’s no way that I am agreeing for my authority to be on that financial hook because the LSC have difficulties in arranging a beverage-consuming party in a beverage-manufacturing facility)

Anyway, without further ado – here’s the ALC’s letter and proposal. Perhaps the LA in your area are more flush, or kinder than I am. (The former certainly not, the latter, possibly)

As members will be aware from the LSC’s announcement on its website headed “Prior authorities for civil experts – revision to processing”, posted 30th August 2012, the LSC are no longer willing to concern themselves, in considering the grant of prior authority, with the number of hours work to be carried out by an expert, unless the number of hours requested is “unusually large”.  Since the MoJ/LSC decline, pending completion of research they are presently engaged upon, to formulate what constitutes a usual number of hours, it is probable that, in practice, they will decline to deal with most, if not all requests regarding approval for number of hours.  These will be at risk, in effect, and the standard letter clause approved by the ALC and other representative bodies indeed covers that.

Almost all prior authority requests are accordingly only to be made now in respect of hourly rates (where necessary, having regard to relevant SI schedule and criteria).

Further discussions are being held between representative bodies and the LSC on 8th October 2012, in an attempt to speed up the process of obtaining clarity as to what are considered to be appropriate numbers of hours, and filling in the blanks as to hourly rates for various expertises.   However, the MoJ has already indicated that it prefers to deal with amendments by way of statutory instrument, rather than guidance, and it may well be the spring of 2013 before we have any clearer picture.

We continue to hear of cases in which the LSC take an inordinate amount of time to process applications for prior authority for experts to be instructed at a rate higher than the standard rate, so that the prior authority is not available for a hearing at which it is intended to obtain authority to instruct,  or decline altogether to grant such authority, despite solicitors having used the guidance and recited the terms set out by the President at paragraph 54 of his judgment in A Local Authority v DS,DI,DS, 31st May 2012,  [2012]EWHC 1442 (Fam).

In such circumstances it is important for practitioners to bear in mind that their firms are at risk in respect of any excess fees.

It is clearly unsafe  to agree to instruct, or be a party to instruction of an expert at an hourly rate which exceeds the standard rate for the expert, unless and until prior authority is in place for that hourly rate, and you have seen a copy.   If you proceed nevertheless, you risk making your firm liable for the relevant proportion of the shortfall between the hourly rate you are agreeing to, and the standard rate, multiplied by the relevant proportion of the hours worked by the expert.  This could be quite a lot of money   – e.g. agreeing in advance to a half share of a psychological report involving 25 hours work and an excess fee of £33 per hour [150 instead of 117 e.g.] could cost your firm over £400.

It seems that at present we can expect little assistance from the judiciary in rectifying matters after the event. The standard position of any hard pressed local authority will be that they are unwilling to pick up the difference and will resist an order being made on the basis that “all this ought to have been sorted out before by the respondent’s solicitors”.

The only safe way, we think, for members to protect their firms is to decline to proceed with the instruction of an expert until prior authority has either been granted, or refused by the LSC.

Of course this means delay.  It is almost certainly going to be inimical to the interests of the child and also of any parent/relative for whom we act.

However, we cannot help it if the government on the one hand wants everyone to cooperate in speeding up proceedings, but on the other will not permit the LSC to operate a system which assists in that process.  Judges need to understand the problem, and to realise that, until the issue is sorted out by the MoJ/LSC, they really have no choice but to adjourn the issue of instruction of that expert until the prior authority is through. The case of A Local Authority v DS,DI,DS cannot be relied upon to protect the solicitors for publicly funded parties.   Further, if prior authority is refused, courts  will then have to deal with how the shortfall is to be met, provisionally at least.   It will help if you draw to the court’s attention that the court’s own case management information system, in place now for some 6 months or so, known as CMS, specifically includes, as a reason which can be entered on the system to explain the need for an adjournment,  “Prior authority from LSC not available” – this is in the section of the CMS record headed “Case Management”.

You may want to use/adapt the following template (drafted earlier this week) for cases where prior authority has been refused, but the instruction of the expert must, in the parties’ interest nevertheless go ahead if at all possible, and so must be underwritten by the local authority – it includes the possibility that, at the conclusion of the case, the LSC will in fact pay the fee either at the requested hourly rate or at an intermediate rate:

[by way of recital]  “The court being advised that the Legal Services Commission has declined to give prior authority for the instruction of []  at the hourly rate referred to, and approved by the court in the order of [] dated [] at paragraph []

[by way of order]    “In respect of the fees of [] for preparation of reports in these proceedings, attendance at any experts’ meeting and attendance at court to give oral evidence the local authority shall, in respect of the []shares directed to be paid by the Respondents under their public funding certificates, pay to each of the Respondent’s solicitors a sum equivalent to the number of hours work attributable to their []share multiplied by £[],  [“the local authority’s excess contribution”].  These payments shall fall due upon delivery of the relevant fee notes, so as to enable the Respondents’ solicitors to make payments on account to the expert.   In the event that the Legal Services Commission assesses the experts fees, following conclusion of the case, at the hourly rates approved by the court in its order of [], or at a rate higher than the hourly rates set out in the Community Legal Service (Funding)(Amendment No 2) Order 2011, then the Respondents’ solicitors shall forthwith repay to the local authority’s solicitors the local authority’s excess contribution or the appropriate rateable proportion.”

We consider the present position to be deeply unsatisfactory, but pending clarification through judicial review or otherwise,  we need to draw members’ attention to the need to stand firm on this issue – most practitioners’ margins have been squeezed quite enough this year without the need to expose themselves to these risks.

Alan Bean and Martha Cover
Co-Chairs

Comments Off on Passing the prior authority parcel

Posted in costs, experts, Uncategorized and tagged , , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →