Author Archives: suesspiciousminds

and said ‘oh oh, smother me mother’

Posted on October 3, 2012 by suesspiciousminds

Tasteless title, for which I apologise, but it is a Smiths song.  (the passing of time, and all of its sickening crimes, is making me sad again)

A consideration of AA (A Child) 2012 EWHC 2647 (Fam)  – especially for John Bolch, as I am now taking requests  (other than of the ‘why don’t you just eff off’ variety)

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2647.html

Firstly, either Justice Baker has had the most difficult caseload of all time, or (more likely) he’s had a pile of published judgments in his in-tray waiting to be signed off for a while and has done about six in a week, because this is him again.

Secondly, its another in the developing body of High Court caselaw where Judges who might have been accepting of medical evidence (particularly if it stood up to cross-examination) are now setting it in a broader judicial context of the totality of the evidence to be assessed, and recognition that today’s medical dogma might well be tomorrow’s “well, we USED to think”  – I have been told today of a very interesting judgment forthcoming on this topic where the conclusion is that an earlier fact finding on very serious injuries resulted in a miscarriage of justice.

But anyway, onto RE AA.

Here is the opening background, and one can tell immediately that the mother is going to be under pressure in the finding of fact hearing

    1. This is a tragic and extremely difficult case. On 6th January 2011, a little boy, whom I shall refer to as J, died while in the sole care of his mother. Twelve weeks later, on 1st April 2011, his older brother, whom I shall refer to as B, then aged four, was found in a state of acute collapse, also whilst in the sole care of his mother, and died three days later in hospital.

 

  1. Police began an extensive investigation, which is still ongoing, into the causes of those deaths. The local authority started care proceedings in respect of the surviving younger sister of the boys, whom I shall refer to as A, now aged two. The local authority contends that the threshold under section 31 of the Children Act for the making of care orders is crossed in this case and seeks findings, first, that the mother neglected her children and, secondly and more seriously, that she was responsible for the deaths of the two boys by asphyxiation. The proceedings were transferred to the High Court and listed before me for a fact-finding hearing held in Portsmouth. This judgment is delivered at the conclusion of that hearing.

Regardless of how things play out, it is plain to see that professionals are going to have high levels of anxiety about this case.  Particularly given the existence of a third child.

And here’s a warning that idle remarks, made without any malice, can take on horrible significance when looked at through the cold microscope of forensic analysis

On another occasion in November, the mother became drunk when caring for the children, who were taken round to DA’s house. There is evidence that on occasions the mother expressed frustration about the demands for caring for the children. She was a regular user of text-messaging and the internet MSN message service and, when chatting to friends by these means, she would on occasions grumble about the children. One example, on the evening prior to J’s death, contains the statement that she could have “fucking killed” B, because he had made J cry and been disobedient, and added an additional remark: “I wish I didn’t have fucking kids.”

The case sets out the detailed medical history, which I won’t go into – I couldn’t summarise it better than the Judge has already done, and if you want to read it, I would go to the source.

The Judge sets out the legal position on reliance on medical experts, with the Cannings case unsurprisingly looming large in that regard.

The approach to expert evidence

    1. It is particularly important to bear in mind the point just made above where, as is invariably the case in cases of suspected physical abuse, the evidence adduced includes the opinion of the medical experts. As Ryder J observed in A County Council v A Mother and others [2005] EWHC Fam. 31,

 

“A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”

    1. Whilst appropriate attention must be paid to the opinion of the medical experts, their opinions need to be considered in the context of all the circumstances. In A County Council v K D & L [2005] EWHC 144 (Fam) at paragraphs 39 and 44, Charles J observed,

 

“It is important to remember (1) that the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”

Later in the same judgment, Charles J added at paragraph 49,

“In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus  human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”

    1. In assessing the expert evidence, I bear in mind that cases involving an allegation of smothering involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others (see the observations of Mrs Justice Eleanor King in Re S [2009] EWHC 2115 (Fam).

 

    1. On behalf of the mother, Miss Judd and Miss Pine-Coffin invite me to bear in mind the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother’s two other children had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation.

 

    1. The impact of the Cannings decision on care proceedings was considered by the Court of Appeal in Re U, Re B, supra. Dame Elizabeth Butler-Sloss P identified the following considerations arising from the Cannings decision as being of direct application in care proceedings:

 

“(1) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

(2) Recurrence is not in itself prohibitive.

(3) Particular caution is necessary in any case where the medical experts disagree, one opinion declined to exclude a reasonable possibility of natural cause.

(4) The court must always be on the guard against the over-dogmatic expert, the expert whose reputation is at stake or the expert who has developed a scientific prejudice.

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

    1. Usually, it is unnecessary for the Family Court to go further into the analysis by the Court of Appeal in Cannings, but in this case Miss Judd invites the court to have regard to the whole of that decision. I remind myself that it was a criminal case involving the deaths of infants under the age of six months, whereas these are family proceedings involving the deaths of two children aged two and four. Nevertheless, I find the analysis by the Court of Appeal of what Judge LJ, as he then was, described as two critical problems, as relevant to the current case.

 

    1. First, I note the paragraphs specifically cited by Miss Judd, in particular paragraphs 10 to 13 of the judgment in Cannings, which amplify point 2 in Butler-Sloss P’s summary in Re U, Re B cited above.

 

“(10) It would probably be helpful at the outset to encapsulate different possible approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted, for example, indications of or admissions of violence or a pattern of ill-treatment. Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained and still, despite the known fact that some parents do smother their infant children, possible natural deaths.

(11) It would immediately be apparent that much depends on the starting point which is adopted. The first approach is, putting it colloquially, that lightning does not strike three times in the same place. If so, the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly or strangely or not in accordance with some theoretically “normal” way of behaving when faced with such a disaster, her behaviour might be thought to confirm the conclusion that lightning could not indeed have struck three times. If, however, the deaths were natural, virtually everything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief.”

Later at (13):

“Reverting to the two possible approaches to the problems posed in a case like this, in a criminal prosecution we have no doubt that what we have described as the second approach is correct. Whether there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition, as we shall see, at the very least, it appears to us to coincide with the views of a reputable body of expert medical opinion.”

    1. Secondly, in considering the Cannings judgment, I note the observations of Judge LJ at paragraph 22, which amplifies point 5 in Butler-Sloss P’s summary in Re U, Re B cited above.

 

“We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.”

    1. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1:

 

“Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.”

    1. In Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed,

 

“A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden

of proof is established on the balance of probabilities.”

    1. Later in the judgment, at paragraph 19, Hedley J added this observation:

 

“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 acknowledgment that we are fearfully and wonderfully made.”

Long term readers of this blog will know that I am a huge admirer of Hedley J, and this observation is very well made. I think on shaking cases we are getting very close, judicially speaking, to a conclusion that we simply cannot be sure until all of the evidence is tested forensically whether a child is likely to have been shaken or not, and as a result, I suspect that we may relatively soon get an appeal on an interlocutory decision to place in foster care,  a child suspected of having been shaken.

The Local Authority had run their threshold in parallel – on neglect, and on the far more serious allegations that the mother had smothered and killed two children. The Judge found that they had proved the neglect allegations.

    1. The local authority alleges that the mother is culpable of serious and repeated acts of neglect of her children and has set out this allegation in the schedule of findings filed in these proceedings. In their response on behalf of their client, the mother’s representatives have very substantially accepted the allegations. Some issues, however, remained and they have formed part of the hearing before me.

 

    1. Having considered the evidence, written and oral, I make the following findings on this aspect of the case:

 

(1) There is evidence that the mother struggled to cope with all of the children. In the early days after B was born, she was unable to cope with his care and often left him in the care of other people, including DA. On one occasion, feeling unable to manage, she left him at the social project where she was receiving support. Later she found it difficult to care for J and A together. As a result she did not always provide adequate attention, stimulation or boundaries for the children.

(2) The mother failed to prioritise her children’s physical and emotional needs, on occasions putting her own needs and interests first. She spent significant periods of time on the internet, including extensive periods communicating with friends via internet chat rooms. The children were expected to fit around the mother’s own wishes and needs. This was a particular concern for the experienced health visitor who gave evidence before me.

(3)On occasions the mother was emotionally neglectful towards the children. On one occasion she announced that she was placing the children in care and packed their bags before being talked out of this by support and social workers.

(4)The home conditions in which the children lived were frequently poor. The mother struggled to keep her home clean and tidy, despite repeated reminders from others, including DA. The home was often left cluttered with rubbish.

(5)On a number of occasions the mother failed to protect and supervise the children so that their safety was at risk. In September 2009, B covered himself in bleach. In October 2009, he was found sitting in bleach. In October 2009, J was taking to hospital having ingested Sudocrem. Stair-gates were fitted but on occasions left open. On other occasions dangerous items were left within the reach of the children, cans of spray, loose wall sockets, paracetamol, scissors, cleaning fluid and medication. On one occasion, J was observed by a health visitor to be in a position to turn a fire on and off. The mother failed on occasion to supervise the children in the street, on one occasion allowing J to walk so far ahead that he was able to cross a road by himself.

(6)The mother struggled to manage the care of the children so as to ensure that they were kept clean and had their nappies changed with sufficient regularity. J was noted on occasions to have a very dirty nappy and to be dressed in dirty, wet and sometimes inadequate clothing. As a result on occasions J and A had very sore bottoms and nappy rashes.

(7)The mother struggled to provide the children with appropriate food. She delayed starting B on solid food. She would give the children inappropriate food on occasions and rely excessively on junk food. J would be fed chocolate biscuits for breakfast. The mother struggled to manage A’s feeding regime as a baby and did not always follow advice on this topic. She told the health visitor that she could on occasions put J straight to bed without giving him any meal if they were late arriving home.

(8)The mother found it difficult to manage the children’s behaviour. She resorted on occasions to harsh chastisement of the children that was both inappropriate for their age and generally excessive. She would smack the children, perceiving their behaviour as “naughty,” not realising that it was often simple normal conduct to be expected of a lively, inquisitive toddler. She would shout at B when he was a baby in a vain effort to keep him quiet. She would resort to corporal punishment to an inappropriate and excessive extent. In October 2010 she was observed to slap B on the legs. She would threaten to smack the children by raising her hand. On occasions she put J in his room for excessive periods and sent him to bed at inappropriate times. On one occasion, as I find, she slapped B on the back of the head after he had run off.

(9)In November 2010 the mother was found drunk in charge of J and A. There is no evidence that this was anything other than an isolated incident; nonetheless it is a matter for considerable concern and jeopardised the safety of the children.

(10)The mother was provided with considerable support throughout the intervention of Social Services. Whilst there is some reason to question the level of support provided, the mother was not always as cooperative with the support workers who asked to assist her. The health visitor felt that her failure to take her advice was wilful. I bear in mind, however, that this mother suffers from a learning disability and I am unsure about the extent to which this was taken into account by the professionals who were trying to help her.

    1. There is a further allegation which concerns the father of the two younger children, GM. The mother reported that she had seen him poke J’s genitals with his finger. Despite her concern about this alleged behaviour, the mother continued to allow GM contact with the children. She states that she found it difficult to say no to him and still had feelings for him. The father has played no part in these proceedings. There has been no oral evidence about this matter and I am not in a position to make a finding about whether he did behave in a sexually inappropriate way towards J. I find however that the mother, knowing of the allegation that the father had behaved in that way, failed to protect J from further contact with him.

 

  1. Taken together, these findings about the mother’s treatment amount to serious and chronic neglect at a time when she was receiving considerable support through Social Services, as well as from her own mother, DA, and from friends and neighbours. Miss Davis and Miss Dewhurst, on behalf of the local authority, have rightly taken the view that it would be disproportionate to conduct an enquiry into each and every allegation about which there is documentary evidence that the mother was unable to cope, but I have heard enough to reach a clear conclusion. I conclude that this mother was simply unable to cope with the demands for caring for her children.

But on the major allegations, that the two children had been smothered (even in the context of those findings that the mother was unable to cope), the Judge did not agree that this was proven.

There were several clinical features which the experts explored . This is the passage of the judgment specifically on the expert evidence as to whether there was evidence of smothering (as opposed to any other possible cause of death)

Evidence of smothering

    1. So far as B is concerned, Dr Cartlidge found no evidence of any general health problems, nor any developmental problems. B was a previously healthy child who died suddenly and unexpectedly at the age of four and a half. Dr Cartlidge described this as “very unusual.” J died suddenly and unexpectedly, aged 28 months. Dr Cartlidge described this also as “very unusual.”

 

    1. Dr. Cartlidge considered that the evidence of a possible intentional airway obstruction in B’s case included: the fact that B was a healthy child; the fact that he had been well no more than half an hour before his collapse; the fact that he had collapsed suddenly without explanation; and the fact that his brother, J, had also collapsed and died suddenly without explanation. On the basis (which I have rejected above), that the petechiae were present on B on arrival at hospital, Dr Cartlidge concluded that they were consistent with, rather than diagnostic of asphyxiation, but stressed that his conclusion did not turn on the presence of the petechiae. Dr Cartlidge concluded that it is most likely that B died unnaturally and “smothering is probable.” He added, however, that “the medical evidence for smothering is not specific and relies quite heavily on the exclusion of other causes and an assessment of the case as a whole.”

 

    1. So far as J is concerned, again Dr Cartlidge found no evidence of any general health problems, nor any developmental problems. Like his brother, J was a previously healthy child who died suddenly and unexpectedly, in his case at the age of 28 months. Once again Dr Cartlidge described this as “very unusual.”

 

    1. Dr Cartlidge considered J’s earlier hospital admissions on two occasions to be significant. On 1st January, J had been well when he went to bed, but two hours later found unresponsive and jerky, with blue hands, feet and face. On admission to hospital some 50 minutes later, he was fully conscious and afebrile, but with petechiae over his chest and upper neck. In Dr Cartlidge’s opinion, this episode considered in isolation would support a diagnosis of a fit, although he noted that the evidence of a fever was weak and the temperature taken in hospital over 37.9 degrees Celsius was not usually sufficient to trigger a febrile fit. So far as J’s second admission to hospital was concerned on 3rd January, Dr Cartlidge noted that once again J had been well or reasonably well at the time he went to bed. Several hours later, he was found pale with staring eyes and possibly twitching of his hands. On admission to hospital, J was found to be suffering from chicken pox, but was very energetic and afebrile. In those circumstances, Dr Cartlidge ruled out the possibility that he had suffered from chicken pox encephalitis on this occasion. Once again Dr Cartlidge considered that this episode, taken in isolation, would not be of significance. However, when considered in the light of the later events, he considers that the admissions to hospital on 1st and 3rd January were concerning. The events that are said to have taken place on those occasions were similar to later events in J’s and B’s lives that resulted in their deaths. However, J’s clinical features on both 1st and 3rd January were not typical of a cardiac arrhythmia. Dr Cartlidge thought that smothering could have caused the clinical features in J on both 1st and 3rd January, as well as those described in both children immediately prior to their deaths. He therefore concluded that smothering was a plausible explanation for J’s death, but added again that medical evidence of smothering “is not specific and relies quite heavily on the exclusion of other causes and the assessment of the case as a whole.”

 

    1. In his oral evidence, Dr Cartlidge said that in his clinical practice he had only come across two cases of children of this age dying without any known cause. He had no experience of two children from the same family dying in such circumstances and he was unaware of any epidemiological study of childhood deaths involving this age group. He was asked to consider a paper produced by counsel for the mother entitled, “Smothering children older than one year of age, diagnostic significance of morphological findings,” by Banaschak and Others (2003) published by Forensic Science International. This paper led Dr Cartlidge to reflect on how B, at the age of four and a half, would have been expected to struggle quite vigorously if an attempt was made to smother him. Cross-examined by Miss Judd, he acknowledged that it was more surprising that there were no marks on the four-year-old child.

 

    1. In his oral evidence, Dr White said that the presence of physical signs of smothering would depend on the size and strength of the victim, the size and strength of the assailant and the method by which smothering was inflicted. In the case of child victims, the older the child, the more likely he or she was to struggle and the greater the likelihood of physical signs. Dr White considered that it was possible that B would have scratched himself in an attempt to prevent suffocation, but the fact that there were no scratch marks observed on B did not rule out suffocation as an explanation.

 

    1. In passing, I remind myself that Dr White noted two small marks, bruises, on the top of B’s head during his post-mortem examination. He did not, however, suggest that they were indicative of a physical assault. The local authority did not ask the mother about these bruises, nor did they feature at all in the local authority’s case.

 

    1. The striking picture provided by the consultant in emergency care, Dr Beardsall, was that B looked like he was sleeping, rather than suffering a life-threatening event.

 

  1. Having found, as explained above, that the petechiae on B’s face were not present when he was admitted to hospital, I conclude that there is no clinical evidence of asphyxiation other than the fact that two children died suddenly with cardiac failure, for which no cause had been identified.

So, the Judge concluded that although the deaths had unusual features, there was not clinical evidence to show that they had been asphyxiated, other than that the deaths had no identified cause.  He reminded himself of the other evidence, the number of genetic factors that were particular to this family and the mother’s evidence (particularly that her emphatic denials were convincing) and that whilst he had found her culpable of neglect such that the threshold was made out, there was still a marked difference between that neglect and deliberate murder of two children.

    1. Miss Judd rightly points out that, whilst the various experts have pointed to the lack of evidence of any disease or condition that could have caused the death of either J or B, there is equally no evidence of smothering. She submits that it is no more likely that this mother smothered each child without leaving any signs, than that the child died of an unknown, probably as yet unrecognised, cardiac cause.

 

    1. This mother has a variety of conditions which are likely to be genetic in origin. Dr Newbury-Ecob accepted that the new variant found in the KCNH2 gene, whilst not a cause of LQTS, might lead to a susceptibility or risk of arrhythmia in the presence of other factors, either genetic or environmental and might be associated with his death in some unknown way. Dr Martin noted that “there are quite possibly a whole host of genetic conditions we know nothing about.” The clear impression from his evidence is that the genetic understanding of cardiac disorders is still evolving.

 

    1. I recall again the observations of Judge LJ in Canningsquoted above, in particular that “where there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm” and that “a great deal about death in infancy and its causes remain as yet unknown and undiscovered.” I also have in mind the observation of Butler-Sloss P in Re U, Re B cited above: “The cause of an injury or episode that cannot be scientifically explained remains equivocal. Recurrence in itself is not prohibitive. The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw light into corners that are at present dark.” Finally, I remember the wise words of Hedley J in Re R, also quoted above: “there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown …. 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.”

 

    1. I have given extremely careful attention to the opinions of all the experts and Dr Cartlidge in particular. I acknowledge that there is a significant possibility that this mother was responsible for the deaths of the boys and my mind has fluctuated during the course of this hearing and in my subsequent deliberations. There may be in due course other evidence that bears upon this issue. Having considered all the evidence put before me, however, I find that the local authority has not proved on a balance of probabilities that this mother smothered either J or B.

 

  1. The consequence of my finding is that, for the purposes of these proceedings, the court and the parties will proceed on the basis that the mother did not smother the boys. For the reasons explained above, however, I have found that the mother was responsible for significant acts of neglect of all the children and on that basis the threshold conditions under Section 31 of the Children Act are satisfied.

This body of caselaw may very well be a watershed moment in care proceedings, where the Courts began taking a stance that the presentation of the parents in evidence can be as pivotal as the seemingly damning medical evidence laid against them, and that mere lack of an alternative plausible explanation than non-accidental injury does not necessarily equate to NAI.  It is liable to lead to the job of Local Authorities in such complex medical cases to be more akin to marshalling and testing the evidence rather than the quasi-prosecutor role that traditionally accompanies trying to prove threshold at a finding of fact hearing.  It is also liable to make senior figures in Local Authorities very nervous about fact finding hearings where the outcomes are now so hard to predict, and the costs so vast.

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Be my, be my baby

Posted on October 1, 2012 by suesspiciousminds

A discussion of the law on surrogacy, and the case of D and L (Surrogacy) 2012 EWHC 2631 Fam

A lot of new caselaw this week, and this one is a little off the beaten track. It involves the issue of surrogacy, which is something at the moment I’m interested in, as there’s a pending case of public interest  (reporting restrictions, upcoming criminal trial, can’t say anything more, sorry)

The case can be found here:-

http://www.familylawweek.co.uk/site.aspx?i=ed101209

The facts of the case are relatively straightforward  – a couple decided that they wanted to have a child and being a same-sex couple the traditional route wasn’t open to them. They entered into dialogue with an agency the Kiran clinic from Hydrabad, who found them a woman who was prepared to become a surrogate. That woman was from India.  A contract was signed. Twin babies were born and the couple were provided with those babies and returned to the UK with them.

In order to then obtain parental orders in the UK, they sought the mother’s consent to the making of such orders.

Because the UK provisions are that a consent given less than six weeks after the child is born is not valid  (in order to give a mother who has hormonal feelings of bonding and attachment or hormonal surges post-birth generally time to settle on her true feelings), the contract was not sufficient to demonstrate the mother’s consent.

The couple asked the agency to assist with this, and found them to be somewhat lacking in their willingness to assist.

11. At that stage, they had still to receive any signed consent from the surrogate mother. They made further requests to the director of the clinic, to no avail. On 13 September, the first Applicant emailed a long letter to the director, setting a deadline for the production of the signed consent, and warning that if the documents were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16th September, the Applicants received a DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture.

Yes, you did read that correctly.  I really hope that the single sheet of paper found its way into the court bundle.  (And I can’t help speculating what it was – my gut feeling is a v-sign, or the bird , but was it a sketch or a photograph?)

The couple had not wanted to contact the birth mother directly, wanting to respect her privacy, but had to instruct an enquiry agent, whose search was fruitless.

“I am sorry to inform you that I could not locate Miss B. The address provided by the clinic where Miss B should be residing…is not the place where she lives. Property is currently empty but is former residence of [the caretaker/arranger]. His old clinic is on ground floor. Nobody there had any knowledge of Miss B or where she is living now. I have shown neighbours [identity] card of Miss B and they did not recognise her. I could not find out where she lives now and so could not get her to sign the forms.”

It seemed very likely that the address that the couple had been provided with by the agency was not accurate (although one has no way of knowing whether this was of the agency’s making, or whether they themselves had been misinformed)

[By the way, ‘misinformed’  takes me on a tangent to one of my favourite exchanges in cinema, from Casablanca.

Rick: My health. I came to Casablanca for the waters.

Captain Renault: The waters? What waters? We’re in the desert.

Rick: I was misinformed     ]

As is often the way in the High Court, you get a nice pithy summary of the law, which is always a great starting point if you need to research the issue.

17. Before turning to the detailed provisions of section 54 of the 2008 Act, I remind myself of the important change to the law affected by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010. Regulation 2 provides:

“The provisions of the 2002 Act [that is to say, the Adoption and Children Act 2002] set out in column 1 of Schedule 1 have effect in relation to parental orders made in England and Wales and applications for such orders as they have effect in relation to adoption orders and applications for such orders, subject to the modifications set out in column 2 of that Schedule.”

The effect of this provision is, inter alia, that section 1 of the 2002 Act applies to the making of parental orders in the following terms:

“(1) This section applies whenever a court is coming to a decision relating to the making of a parental order in relation to a child.
(2) The paramount consideration of the court must be the child’s welfare, throughout his life.
(3) The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(6)   The Court must always consider the whole range of powers available to it in the child’s case (whether under section 54 of the Human Fertilisation and Embryology Act 2008, the Adoption and Children Act 2002 as applied by regulation 2 of and Schedule 1.2 The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 or the Children Act 1989) and the Court must not make an order under that section or under the 2002 Act so applied unless it considers that making the order would be better for the child than not doing so.

(7)  In this section, ‘coming to a decision relating to the making of a parental order in relation to a child’ the relation to a court includes

a)  coming to a decision in any proceedings where the orders that might be made by the court include a parental order (or the revocation of such an order) and 

b)  coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an individual under this Act but does not include coming to a decision about granting leaving in any other circumstances.

(8)  For the purposes of this section, 

a)  references to relationships are not confined to legal relationships,
b)  references to a relative, in relation to a child, include the child’s mother and father.”

19.  Those principles, in particular the paramountcy principle set out in subsection (2) and the checklist set out in subsection (4,) guide the court in exercising its powers to make parental orders under section 54 of the 2008 Act, which reads as follows:

“(1) On an application made by two people (‘the Applicants’) the court may make an order providing for a child to be treated in law as the child of the Applicants if

a) the child has been carried by a woman who is not one of the Applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

b) the gametes of at least one of the Applicants were used to bring about the creation of the embryo, and

c) the conditions in subsection (2) (8) are satisfied.

(2) The Applicants must be

a) husband and wife,
b) civil partners of each other, or
c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the Applicants must apply for the order during the period of six months beginning with the day in which the child is born.

(4) At the time of the application and the making of the order

a) the child’s home must be with the Applicants and
b) either or both of the Applicants must be domiciled in the United Kingdom or in the Channel Islands or in the Isle of Man. 

(5) At the time of the making of the order both the Applicants must have attained the age of 18.

(6)  The court must be satisfied that both

a) the woman who carried the child and
b) any other person who is a parent of the child but is not one of the Applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43)

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or who is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.

(8) The court must be satisfied that no money or other benefit (other than for the expenses reasonably incurred) have been given or received by either of the Applicants for or in consideration of

a) the making of the order,
b) any agreement required by subsection (6)
c) the handing over of the child to the Applicants or
d) the making of arrangements for the view to the making of the order unless authorised by the court. 

  …
(10) Subsection (1) (a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her  artificial insemination.
…”

So, very broadly, before making the parental order, the Court must be satisfied that the child was the subject of a surrogacy arrangement and be the product of a use of gametes from one of the applicants, and that the other party consented (in a meaningful and informed way) to the pregnancy and to the making of a parental order; although s19(7) gives a way out where the mother cannot be found, or would be incapable of giving agreement.

[That feels a bit weird to me, since it suggests that the whole s19(6) issue of the mother having to have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order could be sidestepped by finding a surrogate who doesn’t really have capacity to agree it, but I’m sure that must be covered elsewhere and prohibited.  Okay, relatively sure.  Okay, dimly hopeful]

In considering whether the mother’s consent could be dispensed with because she could not be found, the Court made this determination

  1. 28.     First, when it is said that the woman who gave birth to the child cannot be found, the court must carefully scrutinise the evidence as to the efforts which have been taken to find her. It is only when all reasonable steps have been taken to locate her without success that a court is likely to dispense with the need for valid consent. Half-hearted or token attempts to find the surrogate will not be enough. Furthermore, it will normally be prudent for the Applicants to lay the ground for satisfying these requirements at an early stage. Even where, as in this case, the Applicants do not meet the surrogate, they should establish clear lines of communication with her, preferably not simply through one person or agency, and should ensure that the surrogate is made aware during the pregnancy that she will be required to give consent six weeks after the birth.29.  Secondly, although a consent given before the expiry of six weeks after birth is not valid for the purposes of section 54, the court is entitled to take into account evidence that the woman did give consent at earlier times to giving up the baby. The weight attached to such earlier consent is, however, likely to be limited. The courts must be careful not to use such evidence to undermine the legal requirement that a consent is only valid if given after six weeks.30.  Thirdly, in the light of the changes affected by the 2010 regulations, the child’s welfare is now the paramount consideration when the court is ‘coming to a decision’ in relation to the making of a parental order. Mr Ford submits, and I accept, that this includes decisions about whether to make an order without the consent of the woman who gave birth in circumstances in which she cannot be found or is incapable of giving consent. It would, however, be wrong to utilise this provision as a means of avoiding the need to take all reasonable steps to attain the woman’s consent.31.  Applying these principles to this case, I accept that these Applicants have taken all reasonable steps to obtain the woman’s consent.

    32.  Through no fault of their own, they have been given a false address. If it is correct that she is living in the state of Andhra Pradesh, then she is one of many millions of women living in that state and there is in my judgment no realistic hope of finding her. I accept that it is not the Applicants’ fault that they found themselves in this position. I am satisfied that they reasonable believed that the clinic and its staff would behave responsibly. It seems that they and the twins have been badly let down.

    33.  I note that Miss B appears to have given her consent to the making of the parental orders at an earlier stage, although in the circumstances I treat all documents and information provided by the clinic with caution. The fact that Miss B appears to have given informal consent earlier is a factor to be taken into account but for the reasons set out above, it carries little weight in my decision. I do, however, take into account the fact that as a matter of law the children’s welfare is my paramount consideration, and I further take into account that any further delay in reaching a decision is likely to be prejudicial to their welfare. I also take into account as required by the welfare checklist to be applied by virtue of the 2010 regulations, that there is realistically no likelihood that the twins would have any relationship with the surrogate, gestational mother, or any member of her family.

    34.  In the circumstances of this case, therefore, I conclude that the agreement of the surrogate mother Miss B is not required on the grounds that she cannot be found.

 

 

 

The payments made were also retrospectively approved – the payments amounted to £17,000.

36.  As set out above, section 54 (8) provides a condition of making a parental order that no money or other benefit (other than for expenses reasonable incurred) has been given or received by either of the applicant for or in consideration of the making of the order, any agreement required by the Act, the handing over of the child to the Applicants or the making of arrangements with the view to the making of the order, unless authorised by the court. The Applicants accept they have paid twenty seven thousand US dollars (which is approximately seventeen thousand pounds at current exchange rates) to the clinic for the surrogacy programme, on the basis that the clinic would then pay ‘reasonable expenses’ to Miss B in the sum of three hundred and fifty thousand rupees, approximately four thousand pounds at current exchange rates. The Applicants accept that the sums paid exceed a level that could be described as ‘reasonable expenses’. They therefore invite the court to give retrospective authorisation for the payments made.

37.  Unlike the question of consent, the issue of payments for surrogacy, and the basis upon which retrospective authorisation may be given, has been considered by the courts at first instance on several occasions in recent years, notably by Hedley J, who has played a lead role in the development of the law surrounding surrogacy, in four cases- Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam) and Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) – and, the most recently, the President Sir Nicholas Wall inRe X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam). From these authorities the following principles emerge.

(1) The question whether a payment exceeds the level of ‘reasonable expenses’ is a matter of fact in each case. There is no conventionally- recognised quantum of expenses or capital sum: Re L, supra.

(2) The principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas: Re S, supra.

(3) On the other hand, as a result of the changes brought about by the 2010 Regulations, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the children’s welfare as the paramount consideration: Re L, supra, and Re X and Y (2011), supra, per the President.

(4) It is almost impossible to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: per Hedley J in Re X and Y (2008), approved by the President in Re X and Y (2011) at paragraph 40. It follows that : ‘it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making’, per Hedley J in Re L at paragraph 10.

(5) Where the Applicants for a parental order are acting in good faith, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate to give retrospective authorisation, having regard to the paramountcy of the children’s welfare.

38.  In this case, the twin’s welfare unquestionably will be enhanced by the making of parental orders. I am satisfied that these Applicants acted in good faith and have been entirely candid in all of their dealings with the Court and the other authorities. As I have set out above, the total sum paid equivalent to about £17,000. Although I remind myself that each case should be scrutinised on its own facts, I note that the total paid was somewhat less than that paid by the Applicants in the President’s case Re X and Y (2011), which also involved a surrogacy arranged by an Indian clinic. In that case the President ruled that the sum paid was not so disproportionate that the granting of a parental order  would be an affront to public policy.

39. I am therefore prepared to give retrospective authorisation for the payments made by the Applicants in respect of the surrogacy arranged in this case.

The Court suggested that it would essential in future cases to ensure that where a surrogacy arrangement was entered into that the applicants ensured that they had opened a line of communication with the birth mother so that her written consent could be obtained six weeks or later after the birth.

 

 

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Designation’s what you need (or how to duck your responsibilities)

Posted on October 1, 2012 by suesspiciousminds

A discussion of Derbyshire County Council v HM 2011, and why it is important for Local Authority lawyers.

http://www.familylawweek.co.uk/site.aspx?i=ed101199

It is a sad case – a mother of two children went into a coma. Southwark, who were the responsible authority at the time, tried to find family members to look after the children. They were looking at some relatives in America, but as a holding position, the children went to stay with a great-aunt Ms A in Derbyshire.

For one reason or another, the placement in America didn’t pan out, and Ms A kept the children, and subsequently sought a residence order. The mother, by this stage, had sadly passed on.

A section 37 report was directed, and then Southwark and Derbyshire had the time-honoured and traditional bust up about who was responsible.

21. There is no dispute as to the law which I must apply.   Pursuant to section 31(1) of the Children Act 1989, a care order (or an interim care order) must be made in favour of a “designated local authority”.   Section 31(8) deals with the principles to be applied.  The designated authority must be (a) the authority within whose area the child is ordinarily resident; or (b) where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made. 

22. Following the decision of the Court of Appeal in Northamptonshire CC v Islington LBC [1999] 3 FCR 385, the test under s31(8) is a two stage test.  I must first seek to identify if the children are ordinarily resident in any local authority area and, if so, designate that authority.  If, and only if, I am satisfied that the children are not resident in any local authority area, I must then consider the s31(8)(b) test. 

On that basis, the children hadn’t lived in Southwark for two years, and had lived in Derbyshire for that time. They had ordinary residence in Derbyshire.

But then, the ‘stop the clock provisions’ come into play. If the ordinary residence in Derbyshire came about because Southwark were looking after the children and placed them in Derbyshire, then Southwark would retain responsibility, even though the children were physically in Derbyshire.

And if you’re scratching your head and saying “eh?” that may explain why there’s so much law on this issue.  There are two methods by which the placement with Ms A could have come about.  (a) Southwark were looking after the children under 23 (2) and placed with Ms A, who would be a foster carer  (note, Southwark don’t have to mean to do this, it can come about by them inadvertently doing it)  or (b) Southwark used their duties and powers under s23(6) to find family members who could care for the children and thus avoid them being looked after.

25. The local authority had to discharge its duties in accordance with section 23.  At the time, there were two sections that were relevant.  Section 23(2) provided that “a local authority shall provide accommodation and maintenance for any child they are looking after by (a) placing him…with (i) a family; (ii) a relative of his; or (iii) any suitable person, on such terms as to payment and otherwise as the authority may determine…(f) making such other arrangements as (i) seem appropriate to them; and (ii) comply with any regulations made by the Secretary of State.”  Section 23(6), however, provided that “Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with – …. (b) a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare.”  

26. It is accepted that the court is bound by a line of authorities culminating in the Court of Appeal decision in R (SA; a child by SH as litigation friend) v Kent County Council [2011] EWCA Civ 1303; The Times 6th November 2011.  Section 23(2) and section 23(6) are two distinct routes by which the local authority can discharge its duties under section 20(1).  The court must determine whether the local authority was exercising its statutory powers under s23(2) or facilitating the making of private arrangements under s23(6).  If Southwark was acting pursuant to s23(6), the children ceased to be looked after children and s105(6) ceased to apply.  If, however, the placement was under s23(2), the children remained looked after by Southwark.

27. The decision is a factual question on the basis of the evidence before the court.  Smith LJ did, however, say in D v LB of Southwark [2007] EWCA Civ 182 at Paragraph 52 that, where a local authority seeks to divest itself of its obligation and requires someone else to do so (by placement under s23(6) rather than under s23(2)), it would need to be very clear that this was its intention

Or in short, the Court looks at whether something that might be a s23(2) or s23(6) placement to see if it looks like a duck and quacks like a duck (a s23(2) foster placement),  and if they are not to conclude that it is a duck, there must be reasons why not and the LA must be really clear and upfront with everyone involed that this WAS NOT A DUCK.

In this case, the Court concluded that Southwark had done enough to show that it had placed under s23(6) and was thus not responsible for the children; even though a lot of the evidence was self-serving  (i.e that it was Southwark saying loudly and often “This isn’t a duck, this isn’t a duck”)  and this is why the case is important – it shows a route map to protect yourself in a Southwark situation

28. Having considered the evidence in this case carefully, I am quite satisfied that Southwark was indeed facilitating the making of private arrangements under s23(6) rather than looking after the children pursuant to s23(2).  I have come to this conclusion for numerous reasons but it is clear to me that any reasonable bystander would undoubtedly have concluded that Southwark was shedding its legal responsibility (Paragraph 59 of D v Southwark).  Other than the original agreement, there is no respect in which it could be said that these were looked after children.  In particular:-

(a) After the placement with the As, Southwark played no role whatsoever in supervising the As or “looking after” the children;

(b) In a handwritten letter, the father authorised Mr and Mrs A to “take decisions relating to (the children’s) urgent medical and health needs and give consent to medical procedures…”;

(c) Southwark paid absolutely nothing to Mr and Mrs A (not even a “kinship allowance”);

(d) When the father approached Southwark on 1st March 2010 and 4th June 2010, Southwark said the children were not an open case;

(e) Southwark’s letter to the father’s solicitor on 31st March 2010, stated that this was a private family arrangement and Southwark had not been providing on-going services/intervention to the family;

(f)  On 26th August 2010, Southwark wrote to Derbyshire legal services stating that “this was a family placement between the respective maternal and paternal families”; although Southwark agreed to undertake an assessment of the father because he was living in its area, the letter is clear that as the children were in Derbyshire’s area, Derbyshire had a duty towards them as children in need;

(g) In Southwark’s letter to the As dated 25th October 2010, Southwark repeats that this was a family arrangement and a private family matter.

29. I accept that the original agreement dated 28th August 2009 imposed obligations on the As but I consider that the factors that I outline in Paragraph 28 above make clear the real nature of the arrangement.  The terms of the agreement reached constituted the arrangements to enable the children to be cared for by the As pursuant to s23(6) rather than for the children to be placed by the Local Authority in accordance with s23(2). 

30. I recognise entirely that some of the evidence relied on by Southwark in support of this conclusion is self-serving.  It could be said that it is not particularly attractive for Southwark to rely on matters such as its own failure to pay allowances.  Nevertheless, this is the factual background and I find it impossible to say that s105(6) is engaged.

So, if you’re in a Southwark situation, you need to shout from the rooftops that this is a s23(6) placement and not a looked after child. Say it loud, say it proud.

If you’re in a Derbyshire position, you’d better shout just as loud that this is a looked after child, so that there’s something to weigh on the other side, and explore with the family exactly what they were told at the time.

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Hair we go again – or blip versus tip

Posted on September 28, 2012 by suesspiciousminds

 

What the heck do we do with hair strand tests following Bristol City Council v AA and Others 2012 ?

 

I’ve written before about my doubts and reservations that hair-strand testing, particularly for alcohol, is as reliable as those touting it would lead us to believe. (I’m sure that they genuinely believe it to be as accurate as it is claimed, I’m not suggesting any bad faith)

 

You can find the decision here:-   http://www.familylawweek.co.uk/site.aspx?i=ed101124

 

and this one focusses on the accuracy of drug tests. Let me quickly explain in a Sybil Fawlty (specialist subject the bleedin’ obvious) way, why this is important. If you have a parent in care proceedings (or maybe in private law proceedings arguing about residence and contact) who is suspected of using drugs, or has admitted it in the past and now says they are clean, the Court will be interested in whether these problems are largely behind them, or still to be surmounted. A drug test is done, by taking a sample of hair, and chemically analysed. Just as every person in prison is wrongly convicted of a crime they didn’t commit, so most (but not all) people who get a drug test showing they have used drugs says that the lab have made a mistake. But there are people wrongly in prison, and there are people whose lives have been ruined because a drug test got it wrong.

 

So anything that helps the Courts determine how much reliance can be put on those tests is a good thing.  (As a sidebar, if you’re interested in research at all, and how the headlines don’t tell you everything, Ben Goldacre’s two books Bad Science and Bad Pharma are very very helpful and useful)

 

There were two companies involved in this, Concateno, and Trimega. These are obviously competitors. And as so often happens, when a person disputes the results that company A provided, we don’t go back to company A to get them to do a fresh test but run off to company B, who test in slightly different ways, and then end up scratching our heads over what to do when the two tests reach different conclusions.

 

This one is particularly interesting, since the two companies ended up being Intervenors, and Trimega having concluded that there was a human error with their sampling on this occasion found themselves in a corporate bout of fisticuffs with its main competitor, taking place in a Court room.  Concateno’s case effectively being that Trimega’s error here needed to be ascribed to them and them alone and not to be considered a fault of the hair strand testing process generally if done properly and well (for example, by Concateno)

 

One can see (particularly if you go back to the sums I did in https://suesspiciousminds.com/2012/06/18/help-its-the-care-hair-bunch/    which my guesstimate was that about  three and three quarter million pounds was being spent on these tests per year (very back of envelope, I don’t claim them to be super-accurate)  )  that the reputation of hair strand testing as being accurate is commercially sensitive, and Concateno did not want to be ‘tarred with the same brush’ as Trimega  – in that particular case.

 

[Given that these two companies duked it out in Court over their reputations, I’m not about to start taking sides or making assertions – the questions raised are interesting and I still hope that some proper independent research and systematic analysis will tell the Court and professionals just how reliable hair strand testing is. Anything here is drawn from the case, or is my personal opinion]

 

Now for the purposes of the care case, once the Court had determined that in that particular instance Trimega had accepted a human error and the Concateno tests were to be preferred, that really concluded matters. But the Court had been worried about human error, and had asked Trimega to do a root and branch review of the process and whether such errors had occurred or could occur in other cases. This was the issue that the High Court were grappling with – whether the family Court was the correct forum for the argument that the two companies legimately wished to have.

 

They did agree, the two of them, this :-

(1) The science is now well-established and not controversial.
(2) A positive identification of a drug at a quantity above the cut-off level is reliable as evidence that the donor has been exposed to the drug in question.
(3) Sequential testing of sections is a good guide to the pattern of use revealed.
(4) The quantity of drug in any given section is not proof of the quantity actually used in that period but is a good guide to the relative level of use (low, medium, high) over time.

 

Concateno argued that proper scrutiny of Trimega’s processes and the root and branch review was necessary, in order for the Court to determine the state of hair strand testing. Trimega argued that Concateno’s interest in this root and branch review was in order to achieve commercial gain over a competitor and to effectively seek a judgment critical of Trimega which could be used to the benefit of Concateno.

 

Mr Justice Baker declined to embark on the separate hearing about the issue, thus

21. I accept Mr. Pressdee’s submission that the starting point is the overriding objective in para 1.2 of PD12A. The three specific questions which arise are whether the proposed hearing would (1) deal with the case justly, having regard to the welfare issues involved; (2) deal with the case in a way that is proportionate to the nature, importance and complexity of the issues and (3) allot to the case an appropriate share of the court’s resources.

22. As Mr Pressdee surmises, the reason for including the third issue on the agenda for consideration by the President, and for giving the two companies permission to intervene in the proceedings, was the possibility that the discrepancy between the test results provided by Trimega and Concateno was attributable to flaws in the science and therefore called into question the validity of hair testing for drugs. In the event, the reason for the discrepancy is now accepted as being human error on the part of one of the companies, Trimega. The integrity of the science, and the validity of hair strand testing for drugs, is unaffected by this case. There is, therefore, no proven need for a general inquiry into the matter, or for detailed guidance as to how such tests should be carried out or used in court proceedings.

23. Furthermore, I agree with Mr. Pressdee’s submission that this court is not the appropriate forum for any such inquiry. The jurisdiction of the family courts is to determine specific disputes about specific families. It is not to conduct general inquiries into general issues. Occasionally, a specific case may demonstrate the need for general guidance, but the court must be circumspect about giving it, confining itself to instances where it is satisfied that the circumstances genuinely warrant the need for such guidance and, importantly, that is fully briefed and equipped to provide it.

24. The arguments advanced in this case have been littered with references to commercial factors.  I have already referred to Mr. Pressdee’s frank assertion that Trimega had withheld an apology to the mother because it feared that its rival would exploit such an apology for commercial advantage. In this respect, Trimega’s attitude does no credit to an organisation entrusted with the responsibility of providing independent expert advice to the court on matters that will affect the lives of children and families. In his final document, Mr. Tolson on behalf of Concateno frankly acknowledged that “ultimately … both companies have commercial interests in this case which are entirely legitimate”. In circumstances where both interveners admit to commercial motivation, the court cannot be confident that would have all the information at its disposal to provide clear, detailed and objective guidance. Any process designed to provide such detailed guidance would have to allow other interested parties to make representations.

25. There is agreement amongst the interveners as to the four uncontroversial propositions advanced by Mr. Tolson. The court endorses those propositions which, for ease of reference, I repeat here:

(1) The science involved in hair strand testing for drug use is now well-established and not controversial.
(2) A positive identification of a drug at a quantity above the cut-off level is reliable as evidence that the donor has been exposed to the drug in question.
(3) Sequential testing of sections is a good guide to the pattern of use revealed.
(4) The quantity of drug in any given section is not proof of the quantity actually used in that period but is a good guide to the relative level of use (low, medium, high) over time.

26. For the reasons set out above, however, I decline to sanction any extension of this court process to lead to the promulgation of any more detailed guidance. Such a course would be unnecessary and disproportionate.

27. I am equally unpersuaded that it would be appropriate or proportionate to allow any further share of the court’s limited resources to continue the inquiry into the nature of Trimega’s error. Mr. Tolson describes the report prepared following the hearing before the President as a “whitewash” and accuses Trimega of falsely asserting that the error lay in the collection process to conceal more fundamental flaws in their systems. He sets out the justification for that assertion in considerable detail. Mr. Pressdee denies this allegation and goes into even more extensive detail as to the investigation carried out by Trimega into the cause of the human error in this case. In order to investigate those matters, fully and fairly, the court would in my judgment have to conduct a hearing lasting several days, summoning several witnesses from Trimega for oral evidence, and in all probability commissioning further independent expert evidence. At the conclusion of such a hearing, the court might give a judgment setting out its findings, but no order would follow.

28. I do not regard this court in these proceedings as the appropriate forum for the investigation of these matters. I accept Mr. Pressdee’s submission that the court must be guided by the overriding objective as set out in para 1.2 of PD12A. In my judgment a hearing for the purposes of giving guidance, or investigating the nature of Trimega’s error in this case, would be disproportionate and an inappropriate use of the court’s resources, given the enormous demands on the time of judges of the Family Division.

29. Each intervener makes representations that the other should meet a proportion of its costs in connection with the hearings since November 2011. Trimega were ordered by consent to pay Concateno’s costs up to and including that hearing. In my judgment, no further order for costs is appropriate. It was the court that, for reasons explained above, raised the question whether guidance should be given. The court has now concluded that no such guidance is needed beyond the agreed points set above. It was the court that directed Trimega to investigate and report on its error. Having read that report, the court has concluded that any further inquiry by this court would be disproportionate and inappropriate. Neither of these decisions warrants any further costs penalty.

30. Lest it be thought that this case diminishes the importance of expert evidence in family cases, I conclude by emphasising again that in appropriate circumstances the family justice system requires, and will continue to require, expert evidence to ensure that it makes the right decisions about the future of children. I repeat what I said in Re JS [2012] EWHC 1370 (Fam) at para 47:

“Whilst the courts always have to be vigilant to guard against the proliferation of experts in family proceedings, the court must, in my judgment, always have available to it the necessary expertise to make the right findings in these important and difficult cases.”

As Ryder J has recently observed in “Judicial Proposals for the Modernisation of Family Justice” (July 2012) (at para 41):

“In every case, the judge should be able to say: is your expert necessary i.e. to what issue does the evidence go, is it relevant to the ultimate decision, is it proportionate, is the expertise out with the skill and expertise of the court and those already involved as witnesses by reference to the published and accepted research upon which they can rely and of which the court has knowledge.”

Plainly hair strand testing for drugs satisfies all of these criteria. But as this case illustrates, a high degree of responsibility is entrusted to expert witnesses in family cases. Erroneous expert evidence may lead to the gravest miscarriage of justice imaginable – the wrongful removal of children from their families.

 

 

One can quite see why the Court did not want to embark, under the auspices of a family Court hearing, on an analysis of scientific method and rigour and involving two commercial entities, each of whom had fiduciary stake in the outcome of such analysis and interest in not having their major competitor having access to innermost details of process and working.

 

It does rather leave family practitioners, however, in doubt as to whether this was a ‘blip’ in a particular case, as Trimega claim, or whether it is the ‘tip’ of an iceberg about mistakes in Trimega’s process as is hinted at by Concateno.  We do not know.  We won’t know until this next becomes an issue in the case and the Court genuinely does have to determine it.  You can be fairly sure that in any case where both are involved, one of them will be claiming to be more accurate than the other.

 

And it will leave a family Court in difficulties in how to determine whether a parent who claims that the lab have got their case wrong is genuine or not.

 

As said earlier, some proper independent rigorous analysis of how accurate the process is – and particularly what the genuine stats for false positives and false negatives are, is vital, if the Court are going to rely on this evidence to make critical decisions about where a child lives.  It would not amaze me to see, over the next few weeks some negative advertising alluding to this case.

 

 

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an englishwoman’s home is her castle (unless she is 82) ?

Posted on September 28, 2012 by suesspiciousminds

A race through KK v STCC 2012 – on deprivation of liberty, capacity and Court of Protection.

 

The judgment is on Baiili, here:-  http://www.bailii.org/ew/cases/EWHC/COP/2012/2136.html

 

It is a High Court decision, dealing with an 82 year old woman, KK, who had found herself in a nursing home STCC. It was, by all accounts a good nursing home, and meeting her needs. But KK wanted to go back to her home. The case obviously therefore grapples with interesting issues of capacity and where the State can or should assume responsibility for making decisions about a person’s life.

 

KK developed Parkinson’s disease and also had an admission to hospital following a fall. This left her disoriented and muddled and a psychiatrist who assessed her decided that she lacked capacity to make decisions. A best interests meeting (and I can already hear many of you saying “best interests? whose best interests?”) decided that she could not return home and should move to a nursing home. She made some improvements there and went back to her bungalow.  There was an out of hours emergency support line, and the LA report KK having used it over a thousand times in a six month period, leading them to review whether she could remain at home.

 

(This has interesting echoes of the Supreme Court case involving the woman who was incontinent at night and wanted workers to help get her out of bed, but was instead given effectively adult nappies – leading to the debate about whether provision of social care services ought to involve a duty of dignity, as opposed to just meeting the needs in the most cost-effective way.

R (on the application of ELAINE MCDONALD) v KENSINGTON & CHELSEA ROYAL LONDON BOROUGH COUNCIL (2011)[2011] UKSC 33  – it was one where the Court were split, and fervently so, but finally ruled that this method of meeting her needs did not violate her human rights.  Frankly, although the budgetary implications of the decision going the other way, and there being a right to be treated in a dignified way were enshrined in law would be a massive change, I wish personally that the decision had gone the other way. I don’t feel comfortable with the idea that this is not a breach of human rights – and this is something that the mainstream press completely overlooked in all their human rights bashing – denying people in their old age proper humane treatment is far worse than all the ‘not deported because he had a cat’ nonsense)

 

The STCC made a DOLS decision that KK was being deprived of her liberty, and followed the correct legal process. The case found itself in Court and to be challenged.

 

There is a nice summary of the law on capacity, which I’ll quote in full, as it is a good starting point for grappling with these issues

 

Capacity – the law

    1. A person may be deprived of their liberty under the DOLS if the six qualifying requirements under Schedule A1 of the 2005 Act are satisfied. In those circumstances, the supervisory body, (in this case CC), may, on the application of the managing authority (in this case STCC), issue a standard authorisation for the deprivation of liberty, and, prior to the determination of an application for a standard authorisation, the managing authority may issue an urgent authorisation. The six qualifying requirements include, under paragraph 12(1)(c) of the schedule, the “mental capacity requirement”. Paragraph 15 of the schedule provides that: “the relevant person meets the mental capacity requirement if he lacks capacity in relation to the question of whether or not he should be accommodated in the relevant… care home for the purpose of being given the relevant care or treatment”.

 

    1. When a standard authorisation has been made by a supervisory body, s. 21A(2) empowers the Court of Protection to determine any questions relating to, inter alia, whether P meets one or more of the qualifying requirements. In particular, once the court determines the question, it may make an order varying or terminating the standard authorisation: s. 21A(3)(a). But once an application is made to the Court under s. 21A, the Court’s powers are not confined simply to determining that question. Once its jurisdiction is invoked, the court has a discretionary power under s. 15 to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Where P lacks capacity, the court has wide powers under s. 16 to make decisions on P’s behalf in relation to matters concerning his personal welfare or property or affairs.

 

    1. When addressing questions of capacity, the Court must apply the following principles.

 

    1. First, a person must be assumed to have capacity unless it is established that she lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on CC to prove that KK lacks capacity. The standard of proof is the balance of probabilities: s. 2(4).

 

    1. Secondly, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for capacity involves two stages. The first stage, sometimes called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, sometimes known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means. Important guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in section 4 of the Mental Capacity Act 2005 Code of Practice.

 

    1. Third, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question whether the person lacks capacity in question, in this case to make decisions as to her residence and care.

 

    1. Fourthly, a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s. 1(3). The Code of Practice stresses that “it is important not to assess someone’s understanding before they have been given relevant information about a decision” (para 4.16). “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.

 

    1. Fifth, I bear in mind and adopt the important observations of Macur J in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), that “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” At paragraph 58 of the judgment, Macur J identified the question as being whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made”. A further point – to my mind of particular importance in the present case – was also made by Macur J at paragraph 24 in that judgment: “…it is recognised that different individuals may give different weight to different factors.”

 

    1. Sixth, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice states: “It is important to acknowledge the difference between

 

  • unwise decisions … and
  • decisions based on a lack of understanding of risks or inability to weigh up the information about a decision.

Information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment – particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else.”

    1. Finally, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other clinicians and professionals who have experience of treating and working with P, the subject of the proceedings. Often there will be evidence from family and friends of P. Occasionally, as in this case, there will be direct evidence from P herself. In A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, Charles J observed “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. That case concerned an application for a care order under Part IV of the Children Act 1989, but the principles plainly apply to proceedings under the Mental Capacity Act in general and the assessment of the functional test under s. 2 in particular. In other words, when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion. When taking evidence from P herself, the court must plainly be careful about assessing the capacity to understand, retain and use and weigh up information, but, whilst acknowledging the important role for expert evidence, the assessment is ultimately a matter for the court.

 

  1. There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam). In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW [2007] EWHC136 (Fam) [2007] 2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the “child protection imperative”, meaning “the need to protect a vulnerable child” that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.

 

 

Very nicely put, in my humble opinion, and it identifies one of the main pitfalls in this area – that of the State taking a very paternalistic approach of ‘we know best’.

 

KK gave evidence herself in Court, and the summary again is set out in full – there’s one particularly telling line at the end, when she was asked what would happen if at home in her bungalow, she were to fall and be unable to get up. She said, that if she fell on the floor and died on the floor, she would rather die in her own home than live somewhere else.

 

KK’s evidence

    1. Unusually, although not uniquely, this court received evidence from KK herself to assist in determining the question of capacity, not only in a written statement but also orally in court.

 

    1. In her oral evidence KK repeated that she wanted to live in her bungalow. She said: “Everything I’ve got is in that bungalow. My whole life. Everything there is familiar to me. I’ve got my hobbies. I’ve got all sorts of things. I am doing a model village. It is in my bedroom in the bungalow.” I asked KK how she got to her bungalow from the court. In reply, she correctly said that you have to go over a bridge, but gave the wrong name for the bridge. When I asked how long it would take to get there, she immediately replied “it depends on the traffic – a good half hour”. She told me that she could see everything in the village from her bungalow window – the church and the tower, the whole village. She collects porcelain dolls. She goes to the bungalow every day and spends several hours there before returning to STCC for the afternoon where she tends to sit in her room. Taxis take her to and from the bungalow. She has a special taxi, able to take the wheelchair. She now goes home three hours everyday.

 

    1. Turning to nutrition and hydration, KK gave the following evidence in her statement:

 

“When left at my bungalow with food I have struggled in being able to reach the food that is left on my table as my table has been filled with lots of different things and often the food gets pushed nearer the back. I have also struggled to drink some of the drinks left out as it has been difficult lifting the drink and moving the straw as my right hand has a tremor. If I was to return to my bungalow I would look forward to planning my meals and writing a shopping list with carers. The cooks at STCC try hard to make meals which I will enjoy, whilst I appreciate their efforts I generally do not like what they cook. I drink “Ensure” nutrition drinks to supplement my diet. I like the taste of these drinks and have asked to be put back on to them. … I get frustrated that STCC’s staff mash my food up and give me a spoon to eat it with. I do not need my food mashed up or a spoon to eat with. I do not think that my diet would be any worse if I returned to the bungalow as I would have meals of choice prepared for me and carers present to assist me with eating.”

    1. I asked her about her food intake during her oral evidence. She said that she could have what she liked for breakfast but usually just had a glass of milk. She repeated in oral evidence that the food was not very good at STCC – “like baby food”. She said that her favourite food was salad. She said that she could make a cup of tea for herself but she does not do so because her legs “are not too good”.

 

    1. As to her future care needs, KK observed as follows in her statement:

 

“I have considered what level of care that I would need whilst at home. I acknowledge that I need assistance in washing including myself, toileting, preparation of food and day-today chores. I anticipate that this could be adequately provided for with four, one hour care visits a day. It may be considered that I need an increased package. I am willing to discuss a suitable package with care professionals. I get on well with my social worker JL and respect his view and opinions. I do not believe that I would need care overnight. Usually I go to bed at 1900hrs and wake at 6 o’clock. Prior to my transfer to STCC I was put to bed by carers at approximately 1900hrs and was visited again at approximately 6 o’clock at which time they would wash and dress me and put me in my recliner chair. This worked well. This routine is similar to that which is in place at STCC.”

In her oral evidence, KK repeated that she would need four visits a day from two carers.

    1. In cross-examination Mr. Dooley asked KK about the cases when she had declined to go on the home visits. She said that on a couple of occasions she had not fancied going back because of the weather. There is a long path up to the bungalow. She was concerned that it might be slippery and that she might be blown over in her wheelchair.

 

  1. In her statement, KK acknowledged that whilst at the bungalow she used the lifeline alarm excessively. She adds: “I understand why this was inappropriate and consider my behaviour in using it so much to have been silly.” In oral evidence, she reiterated that she accepted that she had been using the lifeline in a wrong way. She said “I was nervous”. She added, however, “but I have learnt my lesson.” She was asked what would happen if she fell over. She replied: “If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.”

 

The opinion of all of the professionals was that KK did not have capacity to make decisions – however, the Court rightly identified that it is a factual matter that falls to be determined by the Court and those opinions (even if significant weight must attach) are not determinative.

 

The Court (and I find myself cheering a little as I type this) determined that KK did have capacity, and that therefore the State did not have the power to make her stay in the nursing home if she did not wish to do so.

    1. When considering KK’s capacity to weigh up the options for her future residence, I adopt the approach of Macur J in LBJ v RYJ (supra), namely that it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. In this case, KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is “superficial”. She understands that she needs carers four times a day and that is dependent on them for supporting all activities in daily living. She understands that she needs to eat and drink, although she has views about what she likes and dislikes, and sometimes needs to be prompted. She understands that she may be lonely at home and that it would not be appropriate to use the lifeline merely to have a chat with someone. She understands that if she is on her own at night there may be a greater risk to her physical safety.

 

    1. In weighing up the options, she is taking account of her needs and her vulnerabilities. On the other side of the scales, however, there is the immeasurable benefit of being in her own home. There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated. When KK speaks disparagingly of the food in the nursing home, she is expressing a reasonable preference for the personalised care that she receives at home. When she talks of being disturbed by the noise from a distressed resident in an adjoining room, she is reasonably contrasting it with the peace and quiet of her own home.

 

    1. The local authority has attached considerable importance to KK’s excessive use of the lifeline in the first half of 2011. I infer that this was an important factor in the decision to move her back to STCC. It remains a significant factor in the professionals’ assessment of her capacity. To my mind, however, the local authority has not demonstrated that it has fully considered ways in which this issue could be addressed, for example by written notes or reminders, or even by employing night sitters in the initial stage of a return home. I also note that during KK’s daily home visits it has not been reported that she has used the telephone in ways similar to her previous use of the lifeline, although in the latter stages of her period at home prior to admission to care in July 2011 she was apparently using the lifeline excessively during the day as well as at night. Ultimately, however, I am not persuaded that calling an emergency service because one feels the need to speak to someone in the middle of the night, without fully understanding that one has that need or the full implications of making the call, is indicative of a lack of capacity to decide where one lives.

 

    1. Another factor which features strongly in the local authority’s thinking is KK’s failure to eat and drink. Here again, however, I conclude that more could be done to address this issue by written notes and reminders, and by paying greater attention to KK’s likes and dislikes. KK is not the only older person who is fussy about what she eats and drinks.

 

    1. I do not consider the fact that KK needs to be helped about overusing the lifeline, or reminded to eat and drink regularly, carry much weight in the assessment of her capacity. Overall, I found in her oral testimony clear evidence that she has a degree of discernment and that she is not simply saying that she wants to go home without thinking about the consequences. I note in particular that for a period earlier this year she elected not to go on her daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence that she has the capacity to understand and weigh up information and make a decision. Likewise, I consider her frank observation that “if I fall over and die on the floor, then I die on the floor” demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. I venture to think that many and probably most people in her position would take a similar view. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.

 

The Court did, however, and this is illustrative of the problem I have blogged about before, of what the heck a deprivation of liberty really is, determine that KK’s liberty had not been deprived. So even though she did not want to stay at STCC and had had to do so, her liberty was not being deprived.  I echo what’s previously been said by the Courts on the DOLS issue, that it is extremely unfortunate that a law intended to help the most vulnerable in society has now become so impenetrable that no lay person (or indeed many lawyers) can really look at a set of circumstances and call correctly whether there has been a deprivation of liberty or not.

    1. This case illustrates the importance of the fundamental principle enshrined in s. 1(2) of the 2005 Act – that a person must be assumed to have capacity unless it is demonstrated that she lacks it. The burden lies on the local authority to prove that KK lacks capacity to make decisions as to where she lives. A disabled person, and a person with a degenerative condition, is as entitled as anyone else to the protection of this presumption of capacity. The assessment is issue-specific and time specific. In due course, her capacity may deteriorate. Indeed that is likely to happen given her diagnosis. At this hearing, however, the local authority has failed to prove that KK lacks capacity to make decisions as to where she should live.

 

  1. It will now be for the local authority and KK to discuss what happens next. It is not a matter for me to determine or even advise. One course may be for the local authority to put together a proposal for a series of trial overnight visits, with all necessary support, to enable KK to experience being back in the bungalow at night so that she can reach a decision whether she in fact wishes to move back. During that process, the local authority would doubtless be monitoring her capacity, and may of course return to this Court if it concludes that she no longer meets the functional test. But before doing so, it must be careful to ensure that it complies fully with the statute and Code of Practice, taking all practicable steps to enable KK to make decisions for herself.

 

 

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An Emperor and an Empress

Posted on September 24, 2012 by suesspiciousminds

(Nonsense, unrelated to law)

 I did declare, when I started this blog, that the subjects would be “law, nonsense and the nonsense of the law”,   and I’ve got stuck into the first and third, but have entirely neglected the second. 

 Luckily, my head is full of nonsense, which I am more than happy to share.

So, this is a little essay of nonsense, about an Emperor who wasn’t, and an Empress who was (but who didn’t do it well).

Honestly, no law in this at all, so don’t feel cheated to get to the end and find no legal information, nor any skilfully drawn parable pertaining to law. I tell these stories because I like them, and for no other reason.

Emperor Norton I of America

Joshua Norton was an inhabitant of San Francisco. He had been a successful businessman, having by the end of 1843 amassed a fortune of nearly a quarter of a million dollars.   (and that’s an incredible amount of money for those days).   He sadly lost it all in an attempt to corner the rice market, buying up every bit of rice that came in, with a view to then being able to sell it later at a profit, but two completely unexpected loads came in, and went on sale at a regular price, leaving him with far too much rice to be able to sell.

(As the late Mitch Hedberg once said “I love rice – any time you’ve got to eat a thousand of something, I’d go for rice”)

In 1859, Joshua Norton decided that he was in fact, the Emperor of the United States of America, and made this proclamation

At the peremptory request and desire of a large majority of the citizens of these United States, I, Joshua Norton, formerly of Algoa Bay, Cape of Good Hope, and now for the last 9 years and 10 months past of S. F., Cal., declare and proclaim myself Emperor of these U. S.; and in virtue of the authority thereby in me vested, do hereby order and direct the representatives of the different States of the Union to assemble in Musical Hall, of this city, on the 1st day of Feb. next, then and there to make such alterations in the existing laws of the Union as may ameliorate the evils under which the country is laboring, and thereby cause confidence to exist, both at home and abroad, in our stability and integrity

NORTON I,
Emperor of the United States.

17th September, 1859.

 

He later became the Protector of Mexico too. 

What I most like about the Emperor of America story is that rather than being ignored, or sectioned, or mocked, the people of San Francisco embraced Norton’s belief and allowed him to continue as though he were indeed the Emperor. 

He wanted for very little, was much beloved and had the freedom of every restaurant in the city. The inhabitants provided him with regal garments, including a fetching beaver-skin hat, and he lived at the Eureka Lodging House, in not terribly palatial surroundings.

 

He gave proclamations, collected taxes, attended sessions of government, and when in need of money obtained it by selling his own currency.

He only once found himself challenged about his authority, when a newly appointed and over-zealous deputy arrested him and took him before the Commissioner of Lunacy.   (commissioner as in ‘in charge of it’ rather than the modern local government meaning of ‘in charge of going out and procuring it’  – that would be a whole different story)

The Evening Bulletin wrote: “In what can only be described as the most dastardly of errors, Joshua A. Norton was arrested today. He is being held on the ludicrous charge of ‘Lunacy.’ Known and loved by all true San Franciscan’s as Emperor Norton, this kindly Monarch of Montgomery Street is less a lunatic than those who have engineered these trumped up charges. As they will learn, His Majesty’s loyal subjects are fully apprised of this outrage. Perhaps a return to the methods of the Vigilance Committees is in order.

“This newspaper urges all right-thinking citizens to be in attendance tomorrow at the public hearing to be held before the Commissioner of Lunacy, Wingate Jones. The blot on the record of San Francisco must be removed.”

He was immediately released, with perhaps the most beautiful judgment I’ve ever seen  (okay, there is some mild law geekery here)

‘that he had shed no blood; robbed no one; and despoiled no country; which is more than can be said of his fellows in that line.”

In the 1870 census, Joshua Norton is logged as a resident of San Francisco, and the handwritten entry shows his occupation as “Emperor”

Ten thousand people attended his funeral, and there’s a lovely plaque in his honour on the Golden Gate bridge.

(For more on Emperor Norton, I recommend heartily Neil Gaiman’s short story “Three Septembers and a January”   in Fables and Reflections.  He tells it, obviously, far better than I have, and if you don’t have a tear in your eye at the end, then you’re made of stern stuff.  Also, Mark Twain wrote about him in newspaper columns, so in merely attempting to retell his story, I’ve gone up against two proper titans of literature)

The Empress Dowager Cixi

Unlike Norton,  Cixi, really was an Empress, an Empress of China, who ruled for about 50 years, dying in 1908.  She died the day after her bitter enemy, who would have become the Emperor died of terrible stomach pains (which we now know to have been massive arsenic poisoning. She remains a hot suspect for that).  She was the last Empress of China, and was suceeded by the Last Emperor.

Her dying words were “never again allow a woman to hold the supreme power in the State”  

(I suspect Dowager Cixi is not a feminist icon, as a result of that not-too-sisterly final sentence. As last words go, it is not quite up there with Oscar Wilde’s  “My wallpaper and I are fighting a duel to the death, one or other of us has got to go”   but it was clearly heartfelt, and not self-aggrandising)

One of the more interesting decisions that Dowager Cixi made, and the reason I’ve heard of her at all, was that when weighing up how to spend the naval budget, given that China was at the time in a running conflict with Japan and had lost almost its entire navy in the 1894 first Sino-Japanese war, instead of opting for spending the money on boats or sailors, decided to spend it all on refurbishing a summer palace.

Let’s imagine that meeting.

“Here’s the naval budget. Our navy has been largely wiped out by a superior force. We need a new navy. The money has all been spent on a summer house.  Well, that will really help when Japan’s navy comes back for round two.  I think that may, perhaps, have been a bad decision…”

 “Who’s Empress?”  

“Ah, you are, your worshipfulness majesty. I love the summer palace. A masterstroke, if I may humbly suggest so”

To be fair, she did make the palace LOOK like a boat.   (and the Chinese navy put a sign on the Marble Palace saying that it was a Chinese naval training academy)

 not actually a boat, incapable of participating in a naval battle

 You will note that, this, the only vaguely naval thing that the Empress spent the entire naval budget on, is a boat made out of marble. Marble has many fine qualities – seaworthiness, is not amongst them.

This was an unpopular move at the time, and became even more so a few years later, when Japan’s navy kicked the living heck out of China’s beleaguered navy.

To be fair, many historians now believe that if Dowager Cixi had spent the money on battleships, they would have all just been sunk by the Japanese Navy anyway, countless more lives would have been lost, and there wouldn’t now be the fantastic marble palace boat to look at, so maybe she was not the worst military planner in history, but simply ahead of the curve.

The cost of running her Court was $6.5 million per year  (which is reported as being an ‘astronomical amount at the time’ )  and each of her birthdays was celebrated with the release of 10,000 caged birds. She is reputed to have once eaten a 150 course meal at a banquet. 

This made me feel rather sorry for her – after her death, her tomb was raided  (probably that Lara Croft) and the pearl that had been placed in her mouth to prevent evil spirits from getting in was stolen.

But gosh, the Empress wasn’t the last person to try to build ships out of manifestly unsuitable material. 

The US navy decided during World War I, to build 12 battleships out of concrete. Yes, concrete, that notably buoyant substance.  How did that experiment go?

The SS Atlantus is pictured below.  Apparently, the experimental material “proved impractical due to weight”    [astonishingly, this happened after ‘several transatlantic voyages’]

Undaunted by this, the US Navy had another crack at it in WWII.  Rather than build 12, they went for 24.  Well, why not, as they worked so well first time.

[Sad geeky fact – you can build a boat out of concrete, provided it is the right shape – it just has to displace more weight of water than the weight of the ship. Steel isn’t exactly light, but steel battleships can float]

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Is there truly such a thing as an ‘anonymous’ referral?

Posted on September 24, 2012 by suesspiciousminds

 

 A discussion of Re J (A Child:Disclosure) 2012

The case can be found here :-

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1204.html

 

 

This was an appeal arising from private law proceedings, but the principles are likely to apply (if not be even more apposite) to public law proceedings.

 

Effectively, within the time that private law proceedings were going on, an allegation of sexual misconduct was raised against the father.  The allegations were made to the Local Authority, who then alerted the mother that allegations of a serious kind, that they had some confidence in, had been made.

 

The referrer had requested anonymity.

 

(We go back here to D v NSPCC 1978 AC 171  which established that a principle called  Public Interest Immunity applied to information provided to a child protection agency – like NSPCC or Social Services,  and that there was a broad public interest in individuals being able to know that they could make those referrals in confidence.    In particular that they wouldn’t face threats, violence or harassment as a result of having made that referral.

 

There’s a larger public debate here, which can easily be understood if you switch the word ‘referral’ with ‘allegation’   – it’s appropriate for someone to be able to make a referral in confidence, but if you put yourself in the place of a parent who is the subject of an anonymous allegation, you would feel entirely differently)

 

 

As the father, understandably, was disputing that he had behaved in a sexually inappropriate way, and the issue was going to the heart of whether he was a risky person to have contact with his children, or a safe person, the Court had to have a finding of fact hearing to determine the allegations.

 

Given that the referrer, who wished to remain anonymous, had become known to the mother, the issue then became twofold :-

 

  1. Should her identity be formally revealed and the detail of the referral be made known by disclosing the documents
  2. At the finding of fact hearing, should the referrer attend Court and be available to be cross-examined?

 

 

The Judge at first instance, who was Mr Justice Peter Jackson  analysed the issue in this way :-

 

  1. a. The father denied sexually abusing anybody. He had not been informed of X’s identity and knew nothing of the substance of her allegations. He asserted that the mother had colluded with X to generate these allegations for the purpose of obstructing contact with his daughter. He argued that for the court not to insist on testing the allegations would be fundamentally unjust and the situation would effectively encourage mothers to make outrageous allegations as a means of alienating fathers and children from each other. The interests of A must come first and there must be a trial attended by X.

b. The mother described herself being torn between the need to protect A and the reluctance to add to the pressure on X. She supported disclosure if it is the only means by which A can be protected, but is concerned about the consequences for X if disclosure takes place.

c. X strongly resisted disclosure of her identity and of the substance of her allegations. She would oppose any attempt to summons her as a witness and would not be able to speak about her allegations if she were brought to court. She was acutely distressed by the effect of the proceedings on her already fragile state of health.

d. A’s guardian asserted that she was unable to represent A’s interests in the proceedings without knowing the detail of the allegations and forming an assessment of them. She submitted that the issue of disclosure was a discrete issue and should be determined separately from any question of X being compelled to attend court to give evidence.

e. The local authority took a neutral stance, but assisted the court by presenting arguments for and against disclosure.

  1. In analysing the competing factors, the judge referred to the following articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘ECHR’) as being relevant:

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  1. Having considered the decision of this court in A Local Authority v A [2009] EWCA Civ 1057; [2010] 2 FLR 1757, the judge concluded that the fundamental objective of the balancing exercise is to strike a fair balance between the various rights and interests within the context of achieving a fair trial. In this context he held (at paragraph 29) the following ECHR articles were engaged so far as the court and the local authority as public bodies are concerned:
    • Article 6, entitling A and her parents to a fair hearing of X’s allegations;
    • Article 8, guaranteeing respect for the family life of A and her parents;
    • Article 8, guaranteeing respect for the private life of X; and
    • Article 3, prohibiting inhuman or degrading treatment of A and of X.
  1. Peter Jackson J concluded (paragraph 34) that X’s wish not to speak further about her alleged experience of sexual abuse and the risks to her mental and physical health were each aspects of her ‘private life’ within Article 8.
  1. Within the Article 3 considerations fell not only the protection of vulnerable individuals such as A and X, in particular from sexual abuse, but also the protection of X from inhuman treatment by forcing her to give evidence about these matters in the context of her precarious state of health.

 

The Judge at first instance decided that balancing those competing interests meant that it was right, in the circumstances of this particular case, not to compel X to give evidence, or to disclose the information  (he approached it in that order, which becomes relevant later)

 

48. I have nevertheless concluded that in this highly unusual situation it is not possible for information about X’s identity and allegations to be disclosed to the parties. My reasons are these:

1) I accept the medical evidence about the potentially serious effect of disclosure on X’s health.

2) The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.

3) X’s identity and her allegations are inextricably intertwined.

4) For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.

5) The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.

 

49. I realise that the existence of this unresolved allegation creates real difficulties in relation to future contact between A and her father. Once the parties have considered this judgment, there will be a short hearing to identify the issues that now arise. For the present, I will only repeat the observation that I made during the Guardian’s submissions, namely that this outcome will not automatically lead to the court making an order for unsupervised contact. That question must be resolved taking account of all factors bearing on A’s welfare

The father’s case, again understandably was, that without having the opportunity to properly test the very grave allegations that had been made against him  (and not even knowing who it was he was alleged to have abused)  would make it impossible to conduct a finding of fact hearing, and even if the allegations were effectively set to one side with a decision that they couldn’t be proved, they would hang over him and inevitably colour any later decision about his contact.  

 

(The Judge seemed to be saying that X’s allegations wouldn’t be the subject of a finding of fact hearing, but that on its own did not mean that father’s contact would automatically revert to pre-allegation position. And a strand that emerged was that without the allegations being determined one way or another, was it reasonable for mother – who believed them – to be opposed to direct contact?)

 

The Court of Appeal considered the issue of the trial judge having seen the source material which was not disclosed to the parties , with the long and the short of it being that a Judge who saw such pertinent evidence and decided it was not to be disclosed was really in a position where he had to recuse himself from determining the matter, no matter how hard he would strive to put it out of his mind, ‘justice must not only be done, it must be seen to be done’ :-

 

 

  1. Having now had the benefit of looking at these potentially ambiguous passages with the assistance of counsel’s submissions, I am fully satisfied that the judge has no intention of relying directly upon the undisclosed material to support some form of finding on the issue of sexual abuse. His latter comment about the outcome not automatically leading to unsupervised contact would seem simply to be a sensible and proper judicial indication that all substantive welfare options remain open and that all he has dealt with thus far is the application for disclosure.
  1. Despite accepting that the judge’s indication is, within its own context, unremarkable, there is a need to step back to consider how a fair final hearing can be seen to take place if it is conducted by a judge who has read the detail of X’s undisclosed allegations. This is not a topic that is addressed expressly in the judgment, yet to my mind it justifies careful consideration. From the perspective of an insider within the family justice system, I have no difficulty in accepting that any judge of the High Court Family Division would have the necessary intellectual and professional rigour to conduct the final hearing by putting the undisclosed material out of his or her contemplation when considering A’s welfare. That, however, is not the test, or, at least, not the complete test. Justice not only has to be done, but it must be manifestly and undoubtedly seen to be done. How is the final hearing to be viewed by the father if his contact to A is reduced from its pre-2010 level or terminated, when he knows that the judge who has determined the case has read details of serious, but untried and untested allegations against him? The father has already referred to ‘a kangaroo court’ and such a characterisation could only gain prominence in his mind were the case to proceed in the manner contemplated by the current orders.
  1. Often when Public Interest Immunity (‘PII’) is raised the matter to which the PII relates may not be directly relevant to the primary issue in the case and there can be a fair trial of the central issue notwithstanding the fact that material known to the judge remains undisclosed to some or all of the parties. Here the undisclosed information is at the core of the case and represents the entirety of the material relating to the only issue that has generated the mother’s application to vary the contact regime. The father, or an impartial bystander, is entitled to question how there could be a fair trial of the contact issue when the judge is privy to this core material yet the father and those representing A are not. I stress again that I readily accept that if Peter Jackson J were the trial judge he would have approached the matters before him with intellectual and judicial rigour; my concern relates to how matters are, or may be, perceived by the parties and others.
  1. Drawing these observations together, in my view an outcome on the facts of this case whereby the key material has been read in full by the judge but is not to be disclosed to the parties, yet the same judge is going on to preside over the welfare determination is an untenable one in terms of justice being seen to be done. In failing both to consider this aspect of the case and in arriving at that outcome the judge was plainly wrong

 

 

There is, as always with Lord Justice MacFarlane’s judgments, a helpful drawing together of the history of decisions on both Public Interest Immunity and balancing of competing Human Rights, and it would be a good starting point for any research on these issues.

 

 

The Court of Appeal then determined whether the Court at first instance had gone awry in balancing those matters, and specifically whether in determining that X was not going to give evidence and thus disclosure was of no purpose, that decision had been made the wrong way around (i.e that disclosure was a separate issue to X giving live evidence)

 

  1. Moving from legal principle to the circumstances of this case, whilst the judge’s characterisation of the probative value of X’s allegations as being unlikely to lead to a resolution of the issue that they raise may be correct on our present state of knowledge, that state of knowledge is based entirely on what X is reported to have said. Because of X’s stipulation that no person is to be told of her allegations, the local authority has not undertaken any investigation of them whatsoever. In so far as X may give a factual context which places X and the father together and within which the alleged abusive behaviour took place, it has not been possible to ask any of the adults who were then responsible for X’s care whether or not that factual context has validity. A’s mother knows only of the label attached to the alleged behaviour, she too may readily be able to validate or challenge what is said about the factual context and the father’s opportunity to interact abusively with X as X alleges. Plainly the father too will be able to give his own account of matters if disclosure takes place. I do not therefore accept Peter Jackson J’s assertion that ‘the nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources’; the position is that, unless or until the relevant adults are told of the allegations, it is simply too early to come to a conclusion on that issue. There is merit in the disclosure of this core material, so that it may properly be evaluated by A’s mother, A’s father and A’s professional representatives, that merit is freestanding and has value irrespective of whether or not in due course X could be called to give oral evidence.
  1. For the reasons I have given, I conclude that the judge was in error in conflating the issues of disclosure and X being required to give oral evidence in due course. In turning to the latter issue first, and concluding that compelling X to give evidence would be oppressive and wrong, the judge unfortunately allowed that conclusion to dominate his consideration of the disclosure question in a manner which is unsupported by authority. The judge was further in error in failing to identify the freestanding value of disclosure which would enable the key adults to understand and give their own factual account of the circumstances within which X alleges that the abusive behaviour took place

And then moved on to make the decision about disclosure :-

 

  1. In answer to the questions posed within structure established by Lord Mustill in Re D:

a) there is a real possibility that disclosure will cause significant harm to X’s mental and physical health;

b) the interests of X would benefit from non-disclosure, but the interests of A favour disclosure. It is in A’s interests that the material is known to her parents and is properly tested. There is a balance to be struck between the adverse impact on X’s interest and the benefit to be gained by A;

c) If that balance favoured non-disclosure, I would in any event evaluate the importance of the undisclosed material as being central to the whole issue of contact and the life-long structure of the relationships within A’s family. In fact, X’s allegations represent the entirety of the ‘issue’ in the family proceedings. There is therefore a high priority to be put upon both parents having the opportunity to see and respond to this material.

  1. For the reasons that I have given, and approaching the matter in way that I have described, I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A’s children’s guardian.

 

 

The Court of Appeal did make it plain during the judgment, that they were considering this on the basis of the individual case and the individual judgment, rather than attempting to pull out some general principles for all cases, and say so explicitly here:-

 

40         I repeat and stress that this conclusion is specific to the facts of this case where the PII material relates entirely to the core issue in the case. It is not my intention to lay down a blanket approach to all cases, which will fall to be determined by the application of general principles to the individual facts that are in play.

 

And of course, the key issue in this case is that the referrer X, was not someone who was saying  “I have seen father do such and such to a child” or “I believe father has done such and such to a child”  but that “when I was a child, this man did such and such to me”     (i.e that the referrer was not claiming to have witnessed abuse, but to have been a victim of it)

 

But the principle remains – in the light of this authority, and the ones cited within the judgment  (notably Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593)  )   http://www.bailii.org/uk/cases/UKHL/1995/17.html  

 

Can someone who makes a referral or allegation to a Local Authority, who wishes to remain anonymous, have confidence that they would remain so?

 

The reality is, that if the referral or allegation is relied upon – i.e that a party to the case seeks to convert that allegation into proven fact (as opposed to ‘it is true that an anonymous referrer said this, but the Court is not asked to determine that what was alleged is true’)   then it is hard to see a Court being persuaded that the parents article 6 rights to see the allegation and challenge it are outweighed by the interests of confidentiality to the anonymous referrer.

 

The deck was stacked pretty heavily in favour of the referrer here  –  she had been a ‘child victim’, there was psychological evidence about the consequences of disclosure being very detrimental to her, and still the material was disclosed.

 

There’s the possibility, perhaps long-distant, of a referrer who was told by the Local Authority when they rang up and asked if they could remain anonymous that they could, bringing a claim against the LA when their details were disclosed. 

 

It might well be the case that the only true way to make an anonymous referral is the obvious one – don’t give your name to anyone.  If you tell the person on the other end of the phone your real name, they might well have to cough it up at some point in the future.

 

[If it hasn’t been clear in the discussion above, I am very sympathetic to both sides of the debate – I think it is important that people are able to genuinely alert the right authorities to suspected child abuse without having to have fear of reprisals, but I can also see that where there is suspicion and doubt that such referrals are genuine and might instead be false malicious allegations, there’s a serious interest in the victim of such allegations being able to properly contest them.  

 

It is one of those difficult areas where the overarching public interest in cases generally might well be anonymity, but in any particular case the right thing is more likely to be transparency]

 

 

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Psychometric, qu’est-ce que c’est

Posted on September 21, 2012 by suesspiciousminds

 

(or “Raw Shark? Why would I be interested in Raw Shark?”)

A discussion about psychometric tests, and their clandestine nature.

 

I happened to stumble upon something which piqued my interest the other day. 

 

Psychometric tests are standardised tests sometimes administered by psychologists and sometimes used within reports used for Court proceedings. The tests themselves are confidential, and I learned that the questions posed within those are not to be disclosed by anyone, including if asked for by a lawyer.

 

This, from the British Psychological Society guidance :-

 

 

Confidentiality and security of tests

 

Psychologists should be mindful at all times of the confidential nature of test materials. Many tests are invalidated by prior knowledge of the specific content of tests and their objectives. Psychologists who use tests are required to respect the confidentiality of test materials and to avoid release of test materials into the public domain (unless this is explicitly allowed in the nature of the test and by the test publisher). A court, though, can legally request test materials and such disclosure is allowed within the Data Protection Act. Psychologists, however, should take reasonable steps to prevent misuse of test data and materials by others. Misuse includes release of such data and materials to unqualified individuals (although see later with regard to legal release), which may result in harm to the client and/or release of data and materials without an adequate explanation with regard to how they are to be interpreted or used.

 

Legal scrutiny of tests

 

Some court proceedings are open to the general public and most are ultimately a matter of public record. In those cases where the practitioner has used standard test materials such as psychometric tests, he or she will need to be careful to ensure that all parties are aware of the possible dangers of discussing the content of standard test materials in open court. It may give rise to a leaking of confidential information and may put information into the public arena, which would damage the integrity of subsequent testing using those standard materials. Most courts, which are open to the public, will be sympathetic to a request that the details of such tests remain confidential or are restricted to a small group of participants in the case, allowing the practitioner to make reference to the tests in a general way, which will not affect their usefulness after the proceedings. Psychologists should not engage in detailed presentation and discussion of the content of test materials in open court.

This restriction may be less important in cases not routinely open to the public; nevertheless, it is still wise for the practitioner to guard the integrity of the materials in this way.

 

The practitioner should raise this matter with the solicitor who instructs him or her, or with the lead solicitor in the case of joint instructions to provide reports.

However, although these materials will be protected where appropriate by the court, practitioners can be expected to be examined, sometimes in detail, about the results of the tests and about all aspects of the report filed, including the interviews undertaken and any background to the conclusions reached. In answering questions of this nature it is likely that the court will require answers to be full and accurate and will be less concerned to guard what would otherwise be confidential material.

 

http://www.bps.org.uk/sites/default/files/documents/statement-_psychometric_evidence.pdf 

I know that this is also how psychiatrists treat the Rorschach inkblot tests. You will have seen facsimiles of Rorschach tests in magazines or in films or TV, but you should  never have  seen an actual Rorschach inkblot unless you’re a psychiatrist or undertaking the test.  The actual inkblot cards that they use are intended to be kept secret and can’t be reproduced.  

 

     (this is not a real one)

 

That makes sense, to be honest, because if you could look at the inkblot and see what various interpretations meant, you would avoid saying “that looks like a crab”  if you knew in advance that crab = serial killer.

 

[Of course, the internet being the internet, you can see them with pretty minimal effort – the most obvious place you would go to find out about a subject has all of the card images and the broad interpretations.  Don’t take a long time answering if the card has any red ink on it, is a top tip, if you find yourself in a Hollywood movie.]

 

And the same principle applies to psychometric testing.  If you could say to your client in advance of the psychological session, “by the way, if they ask you which you would rather be, a crab or a clown, don’t say crab” it would invalidate the tests.  

 

 

But here’s my interest.  One of the psychometric tests that I see (and frankly, the only one that I’m interested in) deals with the validity of the other answers.

 

What they do, is amongst all of the other questions, is put some questions that anybody who was being honest would answer in a particular way.

 

For example  (not a real one)  : “Do you ever lose patience with other people sometimes?” 

 

Now, of course, everyone in the real world says yes to that, of course we do. I lose patience at least nine times a day (more if I go shopping).  So, that’s a control question to see if the person doing the test is being truthful, or trying to create a favourable impression.  If the person says “no, I never lose patience” to that question, then they might well be trying to make the test come out in a favourable way, rather than answering all of the questions truthful.  It’s something called ‘faking good’.

 

And it isn’t done on one question, but multiple ones, and they are probably not as transparent as that.  (because that one alone, you might just be the Dalai Lama, although he doesn’t crop up that often in care proceedings)

 

Now, if you get a psychological report with a psychometric test which shows that the person being assessed was ‘faking good’  it undermines the rest of the test because the person is deliberately trying to appear better than they really are.  And it is an alarm bell for not just the test, but makes you question what the assessment as a whole says, because if you know or believe that someone ‘faked good’ in the test, you start to disbelieve what they say in the narrative parts of the assessment, where they are having a conversation with the expert and giving answers. Were they ‘faking good’ in those bits too?

 

 

So, the consequence of your client having been identified as someone who was ‘faking good’ in a psychometric test is possibly serious. Even if the expert is careful not to say that the psychometric test can be relied on to show that the client is a liar, is that not still an impression that is left?

 

And when did the expert do the interviews? After the tests were known, and they thought there was a considerable chance that the client was ‘faking good’? did that colour the interview.

 

It does feel a little peculiar to me that if you wanted to challenge a psychologist on whether that ‘faking good’ indicator was robust, you wouldn’t be able to get under the bonnet at all, and see the questions or the answers.

 

For example, there is a debate about whether ‘faking good’ responses are a conscious or unconscious process, and therefore, seeing the specific questions and answers that led to the validity of the test being questioned might turn out to be very important.  There might be something particular about that question for that client that meant that the answer was actually genuine, rather than an attempt at ‘impression management’

 

 

 

This is the final piece of guidance from the BPS, about what to do if the expert finds themselves in the position of a lawyer wanting to get under the bonnet, and not taking no for an answer

 

What action should be taken if a court or other legal entity requires the psychologist to release detailed test data?

Very rarely, a psychologist may be required by a court to disclose information regarding test materials or test data so that it comes into the public domain. If the psychologist believes that such disclosure may invalidate or damage the integrity of the test, then he or she should inform the court of the consequences of compliance. The psychologist should make the court and any relevant lawyer aware of the British Psychological Society’s policy concerning the security of test materials and the psychologist’s obligations under this and other ethical and professional codes, including the Society’s Code of Good Practice for Psychological Testing. In many cases, those concerned will be able to negotiate an accommodation which minimises the degree to which the psychologist’s professional standards are compromised by his/her overriding obligation to the court. An example of such an accommodation may be to allow a scoring sheet to be observed in court by the advocates but not for this to leave the court or for any copies to be made. Judges will generally be open to such compromises and will not seek to deliberately invalidate tests by allowing unguarded or full public disclosure.

When conflicts in reaching negotiated accommodation do arise, psychologists should identify the relevant issues, make known their commitment to relevant standards, and attempt to resolve them in a way that conforms both to professional practice and the law. In rare cases where, following such negotiations, a psychologist finds that the court’s demands have nevertheless compromised his/her position in relation to these issues, he or she should notify the Society’s Ethics Committee and the Steering Committee on Test Standards.

 

 

[I have to say that I have never actually seen a psychologist refuse to answer a question in order to preserve the sanctity of the tests, but that is what their professional body advises them to do.  In fact, the only time I’ve ever seen anyone try to unpick the questions, I do recall one of the questions that was revealed (not a faking good one)  being  – well, in the light of this article, I can’t say, but save to say that there was intense debate outside Court amongst the advocates as to what the ‘right’  or ‘good’  answer to the question should have been. And not on partisan grounds, just on the basis that it felt a bit like a ‘and when did you stop beating your wife?’ question]

 

The first time I was exposed to the ‘and when did you stop beating your wife’ question was in a Bugs Bunny cartoon, and it made an impression on me as being simultaneously very clever and very unfair, so I guess I was always going to end up being a family lawyer.

 

 

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Liberace, losing and Lou Gehrig

Posted on September 20, 2012 by suesspiciousminds

Some thoughts arising from the Evidence in Child Abuse Cases  #ECAC course I attended today.

 

Firstly, it was an excellent course, and had a lot of fresh and useful material.  It was a genuine pleasure to hear Jo Delahunty QC  (who is like the most charming intelligent surgical scalpel you will ever meet) speak on the Al Alas Wray case  (which I’ve blogged about before – here : –   https://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/                as she was leading counsel for one of the parents, and so had a wealth of useful insights and tactics to put forward.

 

Secondly, there was a paediatric neuroradiologist sitting in front of me who is DEFINITELY going to get instructed next time I need one. Likewise the paediatric neurosurgeon. And no, I’m not sharing names, because I want them to be available when I call them.

 

One slightly awkward moment when an entirely different barrister responded, during the Panel session, to a barbed question from a doctor about whether Court is the best place to resolve complex medical issues with the R-bomb  (With the greatest possible respect).  Kudos to the questioner, for not responding, as I might have with “you know what, I’ll see your ‘crusader for justice’ and raise you ‘I save children’s lives for a living’ , so keep your Respect to yourself”  and instead just said “with all due respect”  which was even better)

 

Anyway, Liberace.  You may not know, if you are younger, who Liberace is. So he was a flamboyant singer, who looked like this :-

 

 

In 1956, the Daily Mirror printed a story saying that he was gay.  It was the Fifties, perhaps people needed to be told the bleeding obvious back then, and perhaps for some reason it was any of a newspaper’s business what a celebrities sex life was like  (thank goodness times have changed)

 

Liberace sued them for libel. (he couldn’t, presumably, sue them for being homophobic jerks, because this was the Fifties).

 

He won his case,won about £15,000  (which in those days was at least several houses) and coined his expression “I cried all the way to the bank”.

Now, as you probably know, truth is a defence to libel. So, someone, representing the Mirror, went to Court, and tried to persuade the Court that it was true that Liberace was gay. And failed.

 

Feel free to look back at the photograph, which would have been my exhibit one.

 

I suspect whoever had that brief for the Mirror put on a tie with a smile on his face, and walked to Court with a spring in his step that day. They didn’t know much about basketball in those days, so the phrase “slam dunk” was meaningless to them, but if there was ever a slam dunk, that was it.

 

So I occasionally like to ponder the mixed feelings of the two counsel on that case – one with a mountain to climb who did so, and one with what looked like a molehill to step over, who fell over it.

 

The Al Alas Wray case is of course, not in that same league. For one thing (and I am sorry if this crushes any illusions) , Liberace really was gay, so shouldn’t have won; and the odds weren’t quite so slanted, but still, one is expected to think as counsel seeking the findings with the great and the good of Britain’s medicine lined up behind you, that you will see off these fancy American experts with their crazy theories, but it was not to be.

 

But the reason it was not to be, and this really came home today, listening to Jo Delahunty QC, is that people involved put in huge amounts of work. Medical reports weren’t just obtained and copied, or read through, they were digested and tough questions formulated arising out of them. The truth came out, but it wasn’t like finding a doorkey under a doormat – just a quick bit of lifting and there it is – this was truth obtained by painstaking forensic analysis.

 

And what was clear to everyone in the course was that Al Alas Wray might well represent the high watermark of when English family justice meant just that, that a person wrongly accused has the weight and resources of the law behind them and has the chance at a fair trial.  A similar case in two years time, is not going to get the experts that are needed, the time that each expert needs to read the source material, the ability to call and test that evidence  (it seems pretty clear that cross-examining experts will be a rarity even when you do get to instruct one) and certainly isn’t going to have the period of time it takes to do a case like that properly.

 

There was some interesting discussion about head injuries, and the medical research on lucidity.  A key piece of research, which offsets the previous position of Chadwick 1997 that “If a history purports a lucid interval that history is likely false and the injury is likely inflicted”   was Denton and Mileusnic 2003 where the child suffered a witnessed fall backwards 3 feet onto vinyl floor, was fine and tragically died 3 days later.

 

It’s a telling example of how even though any particular case might have to make medical history for the explanation given to be correct, medical history can be made by a single case.   (And the one of those that leapt to my mind was Lou Gehrig, the baseball player, who died of Lou Gehrig’s disease. Plus, it started with an L, so it fitted.  And was referenced by Bill-Hicks-rip-off-merchant Dennis Leary  with the tasteless aside  “How’d he not see that coming?”.    )

 

Frankly, Phineas Gage is a better example particularly as we’re talking head injuries, and his story is fascinating if you haven’t already read it.  He was a railway worker, who suffered a serious head injury, destroying his left frontal lobe  which changed his entire personality, and is pretty much the beginnings of neuroscience, and moved us from reading bumps on people’s heads to finding out which bits of the brain do what.

http://en.wikipedia.org/wiki/Phineas_Gage

 

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Family preservation versus child rescue

Posted on September 11, 2012 by suesspiciousminds

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

 

I blogged about those consultations here :-

 

https://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/ 

 

 

Anyway, here is Dr Dale’s response.

 

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

 

 

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things.  This document did that, and for that reason, I commend it to you.

 

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working. 

 

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

 

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

 

 

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

 

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

 

I think that most people in the UK would agree that children should not be sexually abused  (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers),  but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse  (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

 

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm?  Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’  against ‘this child can’t stay at home’

 

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

 

I would like to hope that if you pulled out a random judgment from any care case decided by any  Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst  “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”  

 

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300.  We have no way of knowing.  I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe.  But either of us could be wrong. We might both be (and probably are)

 

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in  a family justice system that results in Care Orders being made.

 

Anyway, enough about me, on with Dr Dale.

 

He opens with this :-

 

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

 

 

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

 

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland.   I’m sure it has never been as overt as that]

 

 

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

 

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

 

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation” (http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

 

It is always worth a reality check, and this whole section is one.  Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

 

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now.  I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

 

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system?  How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

 

 

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

 

 

Some more on compulsory adoption here :-

 

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

 

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

 

 

 

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at.   I can see an argument that can’t be dismissed out of hand  that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

 

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of  “Is the system actually getting the right answers now?”

 

 

As Billy the Kid once said  “Speed’s fine, partner, but accuracy’s final”  

 

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

 

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

 

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

 

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

 

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)].  Which I have blogged about here    

 

 

https://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’    and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point.  Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

 

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

 

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

 

 

 

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’   – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

 

 

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

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