Author Archives: suesspiciousminds

Mis-practice direction – how not to write a letter of instruction

Posted on September 10, 2012 by suesspiciousminds

It has been plain to me for a number of years that alongside the official Practice Direction on Instructing Experts http://www.familylaw.co.uk/system/uploads/attachments/0001/8873/FPR_PD25A.pdf

there must also be a secret set of rules to follow when constructing a letter of instruction that goes to at least half of the parties, in order to produce the monstrosities that we end up with,  but which is not otherwise available.

[Just like the secret special snooker words to Lady in Red…  “a cut as thin as a thong”]

After exhaustive digging and research, and aided by Indiana Jones, Batman the world’s greatest detective,  the Famous Five, Nicholas Cage’s character in that National Treasure film, and Chunk out of the Goonies, I have found it, and here it is.  Unselfishly, I am prepared to share it, so that we all understand how those masterful LOIs really come into being.

Now we all know…

Constructing a Letter of Instruction in Family Proceedings –

a Mis-Practice Direction

1. Make it long. If you’ve asked less than twelve questions, you are doing it wrong. If less than fifteen, you’re still a bit of a lightweight, frankly. Heck, I could do seven questions in a Letter of Instruction just asking for a DNA test, what’s wrong with you? Are you even trying?

2. Ensure that you have at least two nested questions, ideally with six or seven sub-clauses in each. Then you can confidently say that ‘well, we only added two questions’ and get fourteen different things asked

3. If there is a bush, make sure to beat around it.

4. On no account ask a straight question. If you ask a straight question (like, for example “can the parent provide this child with good enough care, now or in the next six months?” ) the expert might give a straight answer, and then where would we all be? Think of the poor mug who has to cross-examine the expert if there’s a straight question and a straight answer. The purpose of the Letter of Instruction is to obfuscate, not illuminate, and to ensure that you get a report which has something for everyone, rather than one clear conclusion.  Your role model here should be Sir Humphrey Appleby.

5. Don’t be afraid to ask the same question again, by subtly changing the words and having it two or three questions further down. If the expert answers them both the same, then you shrug and say “oh well”, but if there are two different items, well, then you have inconsistency, and have topics for cross-examination.

6. If you do encounter a bush, it is essential that you beat around it.

7. Make sure you put at least one question in that is outside the expert’s area. For example, when dealing with a psychiatrist ask them about the mother’s parenting ability or the quality of contact. If an independent social worker, ask them about post traumatic stress disorder. If they give you an answer you like, hooray – if they don’t, you can cross-examine about how they’ve strayed outside their expertise.     [A particular favourite was a draft LOI to a psychologist which contained only questions for a psychiatrist and none on topic. I actually did see this draft]

8. Ensure that the cost section is written at such length and in such impenetrable detail that even a forensic accountant married to a director of the LSC would only have a vague grasp on what is intended. On no account tell the expert the truth, that you don’t know how much they will get paid, or when, and that no amount of chasing or complaining will make the LSC stump up any cash. The cash will simply fall from a branch on the LSC money tree when it is ripe and ready to fall, and not before. You cannot shake that tree.

9. Always try to fundamentally misunderstand attachment theory – a particularly good way is to ask whether the child’s primary attachment is to an adult they don’t live with and haven’t done for over a year, or whether the parent is attached to the child.  In fact, just assume that attachment is in any way relevant to the decision the Court has to take, and you’re half way there.

10. If you have a question for the expert which is really just a rambling theory that you might potentially stick in submissions, but you can put a question mark on the end of it, put it in anyway.  Anything with a ? at the end of it must be a question, by definition. We don’t put ? at the end of long rambling assertions, do we?

11. Feel free to set out in mindbendingly tedious detail, everything that the expert is inevitably going to cover in their assessment, but spell it out for them as if they had never done an assessment before. This couples ideally with the requirement for a nested question.

12. Feel free to ignore the standard of proof that we work towards, and pepper the questions with “is it possible?” “can it be excluded that” or “can we be certain that?” .    In particular, don’t worry that something like Ehler Danloss syndrome affects only one in a hundred thousand people, if it potentially explains the injuries, then the child is bound to have it, and you must insist on the expert testing for it or ruling it out as a possibility. No matter how expensive, time-consuming or intrusive the testing, it has to be done, so that the remote possibility can be excluded.

13. Always end with “and any other matters you consider relevant and important”  because the expert would never, ever, ever tell you something earth-shatteringly important if it didn’t absolutely fall within your already sprawling list of questions.

[If anyone can lay their hands on the fake practice direction, I’m sure written by a judge, which sets out the unwritten laws that people must be following in order to produce  the court bundles that he was seeing – with stuff like “ensure that any individual document is stapled to another document unrelated to it, with a staple that will pierce the fingers of anyone who tries to remove it” , I’d be very grateful and I’ll stick a link to it here, as that was what inspired this]

Thank you to Chunk for his detective work. [Yes, that is just a gratuitous attempt to crowbar in a Goonies picture. You guys! Hey, you guys!]

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Was this the toughest day in court ever?

Posted on September 7, 2012 by suesspiciousminds

 

For an advocate at least.    This is not a family case, but a judicial review relating to the prosecution of a speeding offence.   It is by way of an entertainment, rather than any important legal principles.

 

Poor Mr D George of counsel  was appearing on behalf of the Applicant, and gets one of the most systematic dismantlings I’ve ever seen.  At various points, it is clear that he is no longer trying to win his case (which is a lost cause) but to try to limit damage as the Court seem hell-bent on finding that his instructing solicitor is guilty of  “sharp practice”    (I am only quoting the Court here, not reflective of any opinions I may or may not hold)  

 

(Of course, I make no comment whatsoever on this, and am just putting up the link to the transcript. There’s an interesting and lively exchange between counsel and bench as to the extent to which a defence solicitor is entitled to make use of the system to achieve a result for his client, even where this is stretching ‘fair play’ a little, and it is worth reading)

 

If you’ve had a rough day in Court as an advocate, or fear you are about to, this transcript will offer you a deal of comfort and solace that it won’t be half as bad as this.

http://http://crimeline.info/case/r-zafar-ali-v-mid-sussex-magistrates-court?CMP=EMCLAWEML1646 

 

This is the first substantive exchange, and one can see that poor Mr George is going to have a tough time of it

8. SIR JOHN THOMAS: He admitted he was travelling at 117 miles an hour in his Porsche, didn’t he?

9. MR GEORGE: At one stage, yes. The difficulty is that the plea that was entered was entered to a summons which appears to have been based upon incorrect ‑‑

10. SIR JOHN THOMAS: Surely he knew whether he was travelling at 117 miles an hour or not?

11. MR GEORGE: That’s only one ‑‑

12. SIR JOHN THOMAS: What injustice is there? At the moment, I wholly fail to understand what conceivable injustice there is in this case.

 

And the midway point

 

52. SIR JOHN THOMAS: All right. So he’s prosecuted on the basis of the ‑‑ let us look at the reality of the evidence, all right. Now, what is the difference between these two statements, apart from East Sussex and West Sussex which, quite frankly, is the most absurd point I have heard in a long time?

53. MR GEORGE: There are about 20 differences.

54. SIR JOHN THOMAS: Okay. Well, let us hope they are slightly better than that one.

 

apparently not

 

 

62. MR JUSTICE GLOBE: 2109 and 2110. That’s 1 minute.

63. MR GEORGE: That’s a 1 minute difference.

. SIR JOHN THOMAS: Now, you are not relying on that, are you?

65. MR GEORGE: No. It’s the totality of the statement.

66. SIR JOHN THOMAS: Well, let us have a look at them. A totality of points which are completely stupid, the result is a completely stupid one.

 

And then things really go awry

167. SIR JOHN THOMAS: It has not been abandoned. It’s nonsense, I suggest. Look, the reality of this case, in anything other than someone’s imagination, is that the officer made a simple mistake on his word processor. It’s perfectly clear that both statements say that the machine registered 117.9 miles per hour and your client pleaded guilty.

168. MR GEORGE: Yes.

169. SIR JOHN THOMAS: He had no defence to this. If there was something, for example, if the second statement said he was only travelling at 40 miles an hour, of course you would have a case, but this is absurd.

170. MR GEORGE: There is additional evidence in the first statement of course because it is suggested that the driver acknowledges the speeding in reply to the caution.

171. SIR JOHN THOMAS: If Mr Ali really believed he wasn’t travelling at this speed he could have pleaded not guilty. What you are doing is something that I find repugnant ‑‑ and not you personally ‑‑ but Mr Freeman’s conduct I find repugnant and improper conduct of the proceedings in that someone who has made a genuine error comes along, your client has pleaded guilty, knew all along what he was doing, and these nonsensical arguments are being used to waste the courts’ time. I am sorry to put it so brutally, but the single judge said this was a nonsense and it is a nonsense, this application.

172. MR GEORGE: I can only go on the basis of the evidence I have before me.

 

And if poor Mr George didn’t take a much deserved drink of water at that point and feel that the ground was swaying a little beneath his feet then he deserves a letter about being made a Silk at the next tranche of appointments, because he’s made of stern stuff.

 

It gets worse still

 

203. SIR JOHN THOMAS: Why was this not drawn to the attention of the court? Are you seriously disputing that there was a ‑‑ the CPS say there was a DVD of the incident.

204. MR GEORGE: Yes, there must have been.

205. SIR JOHN THOMAS: We know, in these courts, that actually DVDs are extremely reliable. If there was a DVD of this incident and it showed your client driving, maybe we should call for it and call for why this case is before the court. Because if it is the same person, this court has been misled ‑‑

206. MR GEORGE: I don’t know ‑‑

207. SIR JOHN THOMAS: ‑‑ in a most serious manner. I think what we should do is call for that to be produced.

208. MR GEORGE: Can I just ‑‑

209. SIR JOHN THOMAS: No. Shouldn’t we do that?

210. MR GEORGE: No, my Lord.

211. SIR JOHN THOMAS: Because if that is the same DVD, these whole proceedings have been an abuse of the process of this court.

212. MR GEORGE: May I ‑‑

213. SIR JOHN THOMAS: Do you want to take some instructions while we deal with the next case?

214. MR GEORGE: I can, of course.

215. SIR JOHN THOMAS: You see the gravity of what I am saying?

216. MR GEORGE: I do appreciate that, my Lord. Can I just ‑‑

217. SIR JOHN THOMAS: Because we are not here ‑‑ we are here dealing with a judicial review of a decision. I have no idea whether the DVD is the same, but if it is, and Mr Freeman must have known this, this application is an abuse of the process of this court and it might contend further sanctions. We simply cannot have this happening.

218. MR GEORGE: It would appear that the issue as to ‑‑ I don’t know whether ‑‑

219. SIR JOHN THOMAS: Because if the DVD is the same, there was a DVD of this incident and it showed your client speeding, this case is an abuse of the process of this court.

220. MR GEORGE: I don’t invite your Lordship to call for the DVD.

 

 

If his attendance note began “Thank you for your instructions in this matter”  I would be profoundly surprised.

 

 

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has a point been spectacularly missed? (warning, contains some maths)

Posted on September 6, 2012 by suesspiciousminds

 

Or math, if you’re American, in which case “hello, and you really don’t need to read this”

 

The LSC have decided that from 1st October 2012, any application for Prior Authority on experts will be refused (unless it is a request which goes above the codified hourly rates).  They point out, unsurprisingly, that 70-90% of applications for psychologists are within the codified hourly rates and that it is a time-consuming and intensive process to deal with all of these requests.

 

So, we’re left with – if your expert is on or below the codified rate you are okay to instruct them, and can’t seek Prior Authority to make sure your costs will be paid. And if they’re above, well then you can ask if that’s okay (but they’re going to say no, so save your breath for blowing up balloons)

 

I know that even Stephen Hawkins was told before his book “The Brief History of Time” was completed, that every equation in it would cut sales figures in half, so he only included one, and that’s the one that everyone already knows, though they don’t understand it.  But we need a little bit of maths to show why this new procedure might be even worse than the last one.

 

Pre October example   – the parties want to instruct Dr Walter Bishop to undertake a psychological assessment. They get the quote, which is £150 an hour, for 40 hours.  There are four parties (which makes the maths easier, hooray!). The parties apply for prior authority, as each of them as liable for £1,500.  The LSC say “We agree the hourly rate, but want to halve the time, so you can all have £750”.   The parties then have to decide whether to (a) beat Dr Bishop down to 20 hours (b) get him to take less total money (c) pay the difference of £750 out of their own pockets (ha!) or (d) look for another expert.  All very time-consuming and far from child-centred, but what we avoid is Dr Bishop spending money that he won’t get paid for, or putting solicitors on the hook.

 

Post October example – the parties want to instruct Professor Farnsworth, and he says “good news everyone, I’m available.”  He gives a quote of £150 per hour for 40 hours. So each party is responsible for £1500.  But, the publicly funded parties can’t ask the LSC if they are happy with the 40 hours, and any application for prior authority will be refused (so the assessment couldn’t happen at all).  Now, somebody has to take a risk. If the expert produces a final bill of £6,000, the LA can stump up their share of £1,500, but who knows how much money the three publicly funded parties will get. If the LSC run true to form and arbitrarily slash the hours and here’s the nub – after those hours have been incurrred ,  there’s a risk that the expert will be £2,250 out of pocket, or three solicitors will be £750 out of pocket.

 

Without telling solicitors up front, how many hours are acceptable for an assessment  (even if it was  a generic figure for which exceptions could be sought),  there is now a risk that either the expert or the solicitors will be out of pocket.  The risk on the expert is obviously three-fold, since Professor Farnsworth stands to lose three times as much as any individual solicitor.

 

Professor Farnsworth’s horrified reaction to not getting his fee paid.

And there’s no way, any more of knowing up front, whether the LSC will pay for the hours the expert has spent on the case, because you can’t ask for Prior Authority.

A lovely little incidental from this is that for ISWs, who have been badly hosed by the whole codified rate thing, there is now far less risk for the solicitors  (because the hourly rate is so much less, the risk per hour spent that the LSC cut costs less) and instructing a psychologist with the hourly rate around the £150 plus mark becomes terribly risky.  [using the hours above, the ISW would be £30 x 40 hours -£300 each, and if the hours got cut in half, each solicitor would be short of £150, rather than £750]
But if I were an expert wanting to do public law family work, I’d want to know up front, if the LSC aren’t guaranteeing to pay my hours, who bears the risk in the event of shortfall? Because if you think it is me, I’m not going to do work for you, certainly not more than once.  And the solicitors can’t take a £750 hit on profit costs on fixed fee work, because it makes taking the case worse than not having been involved at all.

 

Easy fix, and maybe they intend to do this, or have done so, but tucked it away somewhere and not told us.   (See the Beware of the Leopard post about how public bodies tend to hide the important stuff away)

 

Type of assessment   – hours allowed     – additional hours allowed for each party being assessed

 

Or, but they’ll never do this – the LSC declare that they will honour all expert fees where the Court has approved the hours in the estimate  (the Court obviously being seized of the case and having a proper understanding of the issues, the papers, the complexity and how long it takes to do a proper assessment)

 

Fix please, because otherwise, your solution to the Prior Authority problem has unintentionally paralysed experts and solicitors by fear of capricious hour-slashing and the financial risk of who loses out.

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Barren sections, jelly orphans and ghost clauses

Posted on September 4, 2012 by suesspiciousminds

Nothing more than a ramble, I’m afraid.  In fact, candidly, if you’re pushed for time, I wouldn’t bother. It contains nothing you need to know.  In an age of information overload, at least I’m telling you up front that you can cheerfully skip this.

I had cause last week to look up some of the fine detail of section 22 of the Children Act, which is about the duty of the LA to safeguard the welfare of children they are looking after, to try to get them placed at home with parents, to promote education and to ascertain their wishes and feelings and give regard to them.  In looking at it, I found a peculiar enabling clause within it, that allowed the Secretary of State to pass Regulations.

s 22 (7) If the Secretary of State considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to a local authority with respect to the exercise of their powers with respect to a child whom they are looking after, he may give such direction to the authority

 

(and then s22(8) Where any such directions are given to an authority, they shall comply with them even though doing so is inconsistent with their duties under this section)

 What a peculiar power  – the Secretary of State in certain cases, having the power to tell the LA how to look after a particular child in a particular way and the LA have to follow that, even if it is acting in a way that doesn’t safeguard and promote the child’s welfare.

The mind boggles at the thought of a Secretary of State who had such a hand on the tiller that they considered they might one day want to micro-manage an individual child’s case.  My best guess is whatever the 1987-89 equivalent of ‘feral children’ was being some live political fear at the time.  

It is hard to imagine any situation where the power would ever be used  (my best guess would be, if for some reason the State had not dealt with Venables and Thompson in the criminal justice system and done so purely as welfare, the way Norway did in a similar case) and for that reason, my quick check to see if any directions had ever been given under s22(7) has shown no positive results.

(They wouldn’t be regulations, so it is theoretically possible that all manner of s22(7) directions have been made and are just not recorded anywhere, but I doubt it)

And that led my brain, which you may have spotted is not averse to tangents, to wonder about those clauses in legislation that enable Secretaries of State to bring about this or that Regulation, and sit there all shiny and proud alongside all of the other clauses in the Act, only they end up never ever being taken down and used, nor revoked and just wait there, enabling provisions that never enable anything.

I don’t know if there’s a formal Parliamentary draftsmen term for that, but the best I can think of is “barren clauses”   – ones that anticipate giving birth in due course to Regulations or guidance, but never produce anything.

[Barren clauses reminded me of an old fact-oid that jelly babies had originally been named “jelly orphans” but that people had felt too sad to eat them, and thus they were rebranded, but although I distinctly recall coming across this fact somewhere, a quick check has just told me that they were initially called “peace babies” having been introduced by Bassets in 1918, and only when the concept of peace was either distant or bitterly ironic as yet another war loomed did they get rebranded.  

Shame, because I really wish the original story was true; but as ever, I find comfort in John Steinbeck  “There are people who will say that this whole account is a lie, but a thing isn’t necessarily a lie even if it didn’t necessarily happen” ]

 

 

And lo and behold, with a little more flipping, I came across another oddity in the Children Act. 

Clause 19.

Once upon a time, Parliament debated clause 19, and polished it to a fine glistening sheen, and the Lords peered at it and decided that it could live, and the Queen looked at what the Commons and the Lords had wrought and gave it her blessing.  I like to think that she touches the goatskin bound Bill with the blade of a sword and it becomes an Act, but I suspect in reality, her involvement in the process is delegated out and her contact with legislation is remote, tenuous and dull.  [* just as it is with Fish Royal, but that’s a digression too far for today]

And now, section 19 is blank. Repealed by s149(2) of the Education Act 2002.  And so it sits, a constitutional chasm, a legislative valley,  a blank space between clause 18 (7) and section 20; like the thirteenth floor in a superstitious hotel. 

And even with all the new bits and pieces that have been pushed into the Children Act since its introduction –  exclusion requirements (remember those?), care plans, leaving care provisions, inspection of boarding schools, the huge sweep of childminding (which turns s79 into quite the longest section in the Act, running from s79A right up to s79X at fourteen pages)  and special guardianship; nobody has thought to use  poor section 19 to bring in these shiny innovations. 

It has been there, ready to come to the aid of the legislators, but gets overlooked, in favour of abominations like s26ZB (which comes before s26A, if you can conceive of such nonsense)

Unless  a topic emerges that sits squarely between day care for children and provision for looked after children, section 19 is cursed, doomed forever to be a ghost clause, a space of infinite potential but no impact.

But still worse than poor ghost clause 19, is the fate which befell sections 71-78 of the Act, which vanished completely and without trace.  Worse even than that, is that together, those sections used to make up Part X of the Act, which no longer exists, although those cocksure newcomers s79A-s79X now have now seized all of that real-estate and rebranded it Part XA, the saucy beggars.   By all that is good and holy, why did we get rid of Part 10 and bring in a Part 10A?  

[Fish Royal, if you must know, is the legal term for whales, which like swans, all belong to the Queen, if they are on UK land. If a whale washes up ashore, it can’t be moved until the Queen gives permission. I once  had, amongst other peculiar roles, the responsibility of contacting the Queen if a whale washed up on the beach of our county which had a North Sea coastline. And there’s a lovely pretence, where you speak to an official and ask for the Queen’s consent for attempts to be made to save the whale, and the official pretends to go off and get instructions from the Queen before agreeing it.  They may even not actually leave the room and just do that fake footsteps on the floor thing that you do.  It was the most archaic, and yet charming,  thing  I ever did. By tacit agreement, none of us ever mentioned that whales aren’t even fish]

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finally, something to get our teeth into

Posted on September 4, 2012 by suesspiciousminds

The Government have published their proposed legislation to bring about the Family Justice Review.  It’s a lot shorter than one would envisage.

 

You can find it here

 

http://www.official-documents.gov.uk/document/cm84/8437/8437.pdf

 

 

 

I won’t deal with the private law aspects, since my interest is in the public law side of things.

 

 

Here are the major headlines :-

 

 

An importation of a test of it ‘being necessary to assist the Court to resolve the matter justly’ before commissioning an expert assessment, and some factors to take into account

 

 

 

The factors are:-

(a) any impact which giving permission would be likely to have on the

welfare of the children concerned, including in the case of permission

as mentioned in subsection (3) any impact which any examination or

other assessment would be likely to have on the welfare of the child

who would be examined or otherwise assessed,

(b) the issues to which the expert evidence would relate,

(c) the questions which the court would require the expert to answer,

(d) what other expert evidence is available (whether obtained before or

after the start of proceedings),

 (e) whether evidence could be given by another person on the matters on

which the expert would give evidence,

(f) the impact which giving permission would be likely to have on the

timetable, duration and conduct of the proceedings,

(g) the cost of the expert evidence, and

(h) any matters prescribed by Family Procedure Rules.

 

 

 

 

 

 

 

 

Time limits

 

We all knew this was coming.  They have tagged it into the original section 32 of the Act  (yes, that section 32 that everyone talks about all the time and that is at the forefront of everyone’s mind when doing care proceedings. To save you scrabbling for the Act, it is the Court’s duty to set a timetable to determine the case)

 

Here’s what the new provisions say :-

Amend s32 to include

 

 In subsection (1)(a) (timetable to dispose of application without delay) for

.application without delay; and. substitute .application.

(i) without delay, and

(ii) in any event within twenty-six weeks beginning with

the day on which the application was issued; and..

 

So that’s the hard cap, of twenty-six weeks – we then get into the fudging of that hard cap (to mix metaphors terribly)

 

 

Section 4.(3)

 

(Insert in section 32 of the Act, section 32(2) )

 

S32 (3) A court, when drawing up a timetable under subsection (1)(a), must in

particular have regard to.

(a) the impact which the timetable would have on the welfare of the

child to whom the application relates; and

(b) the impact which the timetable would have on the conduct of

the proceedings.

 

S32 (4) A court, when revising a timetable drawn up under subsection (1)(a) or

when making any decision which may give rise to a need to revise such

a timetable (which does not include a decision under subsection (5)),

must in particular have regard to.

 

(a) the impact which any revision would have on the welfare of the

child to whom the application relates; and

 

(b) the impact which any revision would have on the duration and

conduct of the proceedings.

 

S32 (5) A court in which an application under this Part is proceeding may

extend the period that is for the time being allowed under subsection

(1)(a)(ii) in the case of the application, but may do so only if the court

considers that the extension is necessary to enable the court to resolve

the proceedings justly.

 

S32 (6) When deciding whether to grant an extension under subsection (5), a

court is to take account of the following guidance: extensions are not to

be granted routinely, but are to be seen as exceptional and as requiring

specific justification.

 

S32 (7) Each separate extension under subsection (5) is to end no more than

eight weeks after the later of.

(a) the end of the period being extended; and

 

(b) the end of the day on which the extension is granted.

 

S32 (8) The Lord Chancellor may by regulations amend subsection (1)(a)(ii), or

the opening words of subsection (7), for the purpose of varying the

period for the time being specified in that provision.

 

 

 

 

 

 

 

(9) Rules of court may provide that a court.

(a) when deciding whether to exercise the power under subsection

(5), or

 

(b) when deciding how to exercise that power,

must, or may or may not, have regard to matters specified in the rules,

or must take account of any guidance set out in the rules..

(4) In subsection (1) (court.s duty, in the light of rules made by virtue of subsection

(2), to draw up timetable and give directions to implement it).

(a) for .hearing an application for an order under this Part. substitute .in

which an application for an order under this Part is proceeding., and

(b) for .rules made by virtue of subsection (2)). substitute .provision in

rules of court that is of the kind mentioned in subsection (2)(a) or (b))..

 

 

That’s less clear than one would hope, so I’ll break it down.

 

  • When setting a timetable, the Court is now obliged by statute to consider the impact on the welfare of the child and the impact on the proceedings of that timetable.  [They don’t deal with the elephant in the room that sometimes the article 6 right for the proceedings to be fair may clash with the welfare of the child for the decision to be taken in a timely fashion, but ho-hum]  

 

  • If the Court has to revise that timetable, they need to take into account the impact of that revision on the welfare of the child and the impact on the proceedings

 

  • The Court has the power to go beyond 26 weeks, but only if the extension is necessary to enable the Court to resolve the proceedings justly.   [This is the barn doors being flung wide and truly open, and is pretty much how we justify delay now by labelling it ‘constructive delay’]

 

  • Best try and close those barn doors, before all the horses get out, so if the Court is going beyond 26 weeks,  the Court must be aware that such extensions are not to be granted routinely but are to be seen as exceptional  and requiring specific justification       [Oh, we took off the barn doors, but it’s okay, because we have replaced them with doors made out of tissue paper, hooray!]

 

  • Each extension can only last 8 weeks, but the Court can make as many as are required, provided that the criteria for granting an extension are made out. [We’ve got more tissue-paper barn doors in the back, don’t worry]

 

  • The Lord Chancellor can revise the wording of s32 (1) (a) or the new s32(7) – which are the ‘it’s 26 weeks’ and ‘each separate extension is no more than 8 weeks’  and can amend these by Regulations.    [Hey, just in case you were planning to misuse those tissue paper doors, the Government is going to bring in more horrible regulations to stop you if the average case length doesn’t come down to something like 26 weeks]

 

  • And we can set Rules as to how the Court must make the decision about granting adjournments, in case you’re misusing them and applying them to nearly all cases, as the Court will inevitably be invited to do.

 

 

I think this is pretty much what I suspected it would be, having been to the Mr Justice Ryder roadshow  – the judiciary had persuaded the Government to allow them to have discretion rather than a fixed hard cap, and the Government had allowed them that discretion, but made it plain that such discretion will be taken away from the judiciary by new Regs and Rules if it is misused.

 

I’m really struggling to see how any individual case being dealt with by the Court of Appeal where an adjournment is being sought for something that would currently be granted and is refused by Judges applying this new s32 will not be overturned.  Yes, looking at the vast sea of cases as a whole, the Court of Appeal will think that it is right that they are all dealt with expeditiously, but in this particular case, the delay is justifiable.

 

In short, I don’t think there is enough meat on the bones to show why the Court would be right to refuse an adjournment in this case and right to allow it in this other case.  Until we get some solid guidance from the Court of Appeal, there will just be a horrific log-jam of cases where adjournments are sought, refused and challenged (or allowed for fear of an appeal which would delay things further than the actual planned delay)

 

I see no other outcome from this than the Government looking at the stats after the new Act comes into force and saying “right, well you’re nowhere near 26 weeks, so that judicial discretion you wanted is going to have to be taken away, or locked down really tightly”

 

The guidance is interesting on the factors that might justify extension, and are far far far more limited than a reading of the legislation would suggest   

 

51.The factors which may be relevant when the court is considering whether to extend time beyond 26 weeks or beyond the end of a previous extension may include, for example, the disability or other impairment of a person involved in the proceedings, if that means that their involvement in the case requires more time than it otherwise would, or external factors beyond the court’s control, such as parallel criminal proceedings.

 

Interim Care Orders and Interim Supervision Orders to last as long as needed

 

As a Local Authority lawyer, the renewal of ICOs and ISOs in long-running proceedings where they are not being challenged is a dull and pointless process, and I’m glad they’re being got rid of; but losing the tool of ‘short order, until the matter can be litigated’ might be more problematic than the legislators realised.

 

I can also see that with the idea of a 26 week cap, contested ICOs will probably become more prevalent  (you need to have the child in your care at week 26 to have a good chance of a positive outcome since the Court won’t be granting adjournments and extensions to allow for a phased rehab or further work, hence it becomes much more critical where the child is at that 26 week cut-off)

 

 

Get your nose out of the care plan

 

 

The Court now has to look at the ‘permanence provisions’ of the care plan  (whether the child will live with parents, relatives or elsewhere) but nothing else.  But the legislation is worded that the Court is no longer required to consider the remainder of the care plan, and it seems to me that this is not likely to be sufficient to stop Judges who have become well-accustomed to inspecting, dissecting and tinkering with the fine detail of care plans, and counsel who wish them to do so, from abandoning that practice.   It’s a bit peculiar that the ‘permanence provisions’ don’t specifically include contact, but as they say ‘the long term plan for the upbringing of the child’  it is probably wide enough to include anything the Judge wants to take an interest in.

 

 

I think, on the whole, I rather prefer John Hemming’s proposals for reforms.

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I’ve got (section) thirty seven problems, but a ***** ain’t one

Posted on August 31, 2012 by suesspiciousminds

 A discussion about section 37 of the Children Act 1989 and the pending appeal on  Re K (Children) [2012] EWCA Civ 1169

 

 

The case is discussed over at Family Lore, here

 

http://www.familylore.co.uk/2012/08/re-k-children-how-not-to-conduct.html

 

 

and Family Lore’s focus is on how the parents nearly messed up their very valid argument by the manner in which they presented the case.  That is a very good analysis and discussion, and I recommend checking it out.

 

I come at this from a slightly different tack, which is the novel and interesting point of law that Mr and Mrs B included in their grounds for appeal, namely that a series of ICOs were made, without an application for such being made by the Local Authority, the Court effectively making them of their own motion by using the powers under s37 and s38(1)(b) to make ICOs of the Court’s own motion.

 

 

The judgment granting permission to appeal can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1169.html

 

 

The bare facts are these.  Mrs B is the mother of two children, who the Court named “Tok” and “Tun”   (which are the most unusual pseudonyms for children I have seen in a judgment).  Tok was 15, Tun 12 ½.    The father of the child is Dr K, mum and dad are estranged. Mum remarried, and Mr B is the stepfather.

 

There have been extensive private law proceedings over about six years and at the time in question, the children had been living with Mr and Mrs B.

 

On 10th December 2010, the Court made a section 37 direction, inviting the Local Authority to prepare a report on the circumstances of the case and specifically to report as to whether it would be appropriate to initiate care proceedings (and if not, to say why not). Alongside that, the Court made an Interim Care Order.

 

This is the only situation in which a Court can make an Interim Care Order without a formal application and arises from

 

Section 38 (1) of the Children Act 1989 

 

Where –

 

(a)   in any proceedings on an application for a Care Order or Supervision Order, the proceedings are adjourned; or

(b)   the Court gives a direction under section 37(1),

 

the Court may make an Interim Care Order or an Interim Supervision Order with respect to the child concerned.

 

The purpose of that power is to enable a Court faced with private law proceedings where it appears that the child is suffering or at risk of suffering significant harm if an ICO or ISO is not made, to make one, which would be for a period of 8 weeks, which coincidentally or by design, is the timescale for the Local Authority to supply their section 37 report.

 

Mr and Mrs B refused to work with the Local Authority, and as a result, five days after the making of the ICO, the children were removed from their care.

 

Now, remember, that in making the ICO, there was no formal application before the Court, and therefore the Local Authority had not laid out to the parents the threshold criteria  (or the facts that led to concerns about significant harm)  and nor had the Court held a hearing to determine whether the legal test for removal of the children under an ICO was made out.  (It being settled law now that sanctioning separation at interim stage is more than just deciding that an Interim Care Order is the right order)

 

By 28th January 2011, the LA had determined that matters had cooled and that the children could be returned to Mr and Mrs B, and did not make any formal application for a Care or Supervision Order.

 

The Judge considered otherwise, and made another section 37 direction for the LA to report, making alongside it a further Interim Care Order, pursuant to section 38 (1) (b).  He also said that alongside that ICO, he did not sanction the children being returned to Mr and Mrs B whilst it was in force.

 

Now, this will be the nub of the appeal decision for me. I am aware that there are two schools of thought on the powers of s38(1) (b).   One (my own) is that it goes far enough to allow a Court to make an ICO or ISO whilst awaiting the Local Authority’s report and decision as to whether to issue proceedings, “to hold the ring” as it were. The other  (and one that I have seen in various County Court case and a couple of High Court cases) is that faced with a Local Authority who don’t share the Judge’s view that a section 31 application for a Care Order should be made, the Court can simply make a second and subsequent directions for further reports and further ICOs until either matters resolve or the LA see sense and issue.

 

The LA, in this particular case, changed their view to reflect the Judge’s strong views, and subsequently made an application for an ICO. But the children remained out of their care for at least some period, on the basis of a second ICO having been made, without an application, using a second s38(1) (b) order, rather than the traditional s38(1) (a) ICO on application.

 

 

 

 

The precise wording of the Act, as set out earlier, says that the Court can make an ICO alongside a direction for a section 37 report, and does not say that this can only be once, or can only be done if the LA have not reported.

 

But the obvious risk here is that rather than the application for a Care Order being prosecuted by the Local Authority, opposed by the parents, and determined by the Court, the Court is actually driving the application that it is in the position of determining.

 

It seems to me that whilst the first ICO is justifiable  (although I think it would be worth remembering that s38(2) is clear that the order can’t be made unless there are reasonable grounds to believe the threshold criteria is made out, and the Court ought to, if making an order, give a judgment as to why that is the case and why in the circumstances of the welfare checklist making an ICO is better for the child than making no order)   making subsequent ones put the Court in a dual position of seeking an ICO whilst also being the arbiter of whether one should be made.

 

I also suspect that at the appeal hearing, the Court of Appeal may be troubled by the judicial indication that when making the second ICO (that was, remember, not sought by the Local Authority) the Judge informed the Local Authority that he did not sanction them returning the children to Mr and Mrs B during that order.  That seems to me, to be a step too far.  A Court might indicate that the risks before the Court were high and that the current circumstances suggested that managing the risks with the children with Mr and Mrs B would be very difficult to achieve, but the Court has fettered here the Local Authority power to do what their stated intention was, which was to rehabilitate the children to Mr and Mrs B.

 

 

This is the basis on which the Court of Appeal granted permission for the appeal to be heard in full, although the time for appealing the ICOs was clearly long gone  (as usual, my own underlining):-

 

  1. Without expressing any concluded view as to the ultimate merit or otherwise of these matters, the points that particularly justify a full hearing are as follows:

a) Given the importance of the decision made on 10th December 2010 to make an interim care order in private law proceedings, where the local authority had on at least two previous occasions, one less than a month prior to the hearing, indicated that there were no grounds for seeking a public law order, the judgment given on that day is extremely brief and amounts to little more than an assertion that there is “really no doubt at all” that the interim threshold criteria in s 38 are met on the basis of emotional abuse, principally arising from Mr B’s bullying and intimidating behaviour. The contrary stance of the local authority indicates ground for questioning if the s 38 threshold criteria were actually met.

b) The judge’s stated justification for making an interim care order in December 2010 was to gain Mr and Mrs B’s co-operation with the local authority assessment process. Once that had been achieved in January 2011 and in the light of the local authority’s sustained assertion that there were no grounds for a further interim care order, the judge’s decision to make two subsequent fresh s 37 directions, thereby maintaining the court’s jurisdiction to make interim care orders, must be open to question.

c) In his judgment of 12th April 2011, HHJ Tyzack give a detailed account of the history to date. It is of note that, at paragraph 9, the judge summarises the social work evidence as follows:

“…up until quite recently professionals from Leicestershire County Council have been able to work with Mr and Mrs B so far as the care of Tun is concerned. Indeed Ms S’s first two statements, which are comprehensive and thorough, attest to that fact, that, despite the difficulties that Leicester have had with Mr and Mrs B in achieving their co-operation, they have been able, up until recently, to work with them so far as Tun is concerned.”

The judge then goes on to record that “all that has fallen away” following the withdrawal of co-operation pursuant to the order of 4th March. Given the judge’s conclusion that the previous social work reports were favourable to Mr and Mrs B and were “comprehensive and thorough”, the court’s grounds for nevertheless making s 37 directions at earlier hearings, in part on the basis that the social work assessment was incomplete, falls to be questioned.

d) Insofar as the threshold criteria are concerned, the 12th April 2011 judgment, in like manner to that of December 2010, does not refer to the evidence prior to those dates which would establish a factual basis for holding that there are reasonable grounds for believing that Tun is suffering, or is likely to suffer, significant harm. At paragraph 18 the judge simply says “I should say that I find the threshold criteria met, so far as this application is concerned, on a s 38 basis….”

 

 

In the permission hearing, the Court of Appeal didn’t make comment as to the other two issues I have touched on here – that the making of the first ICO allowed the children to be removed without the Court ever having determined that the risks involved were proportionate to the children being removed from home at an interlocutory stage, and whether when making the second ICO the Judge went further than he was entitled to by telling the Local Authority that the Court did not sanction the children being returned by the LA to Mr and Mrs B during the course of that order.

 

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Adult safeguarding investigation

Posted on August 30, 2012 by suesspiciousminds

 

A discussion of Davis & Anor v West Sussex County Council 2012

 

I’m always mindful that I do much less blogging on adult social care than I would like. Child protection work is my day to day bread and butter, so that’s invariably my focus, but I do like to discuss adult social care when I can, and I’ve neglected it recently.

 

So, given a combination of insomnia and this interesting case, the opportunity arises.

 

http://www.bailii.org/ew/cases/EWHC/QB/2012/2152.html#para26

 

This was a judicial review brought by owners of an adult care home against the Local Authority’s decisions at a safeguarding case conference that 15 allegations made against staff were substantiated and 10 allegations made against staff were “inconclusive” and that the staff should be referred to the Independent Safeguarding Authority and the Nursing and Midwifery Council for possible disciplinary action. To cut to the chase, the claimants won the jr, and the decisions of that case conference were quashed.

 

So what went wrong, and how can that be avoided in the future?

The Claimants main objections to the process, all vigorously challenged by the Defendant, are that;

 

(a) They were not given adequate notice of the allegations made against them so as to allow them a fair opportunity to present their case at the Case Conference. They were only provided with a copy of the very substantial Investigation Report – which set out the allegations for the first time, albeit in unclear form – one working day before the Case Conference.(b) They were not shown the evidence against them.

(c) The Case Conference was not shown relevant evidence generated by the investigation, both for and against them.

(d) They were not permitted, or given an adequate opportunity, to produce relevant evidence to the Case Conference, whether through witnesses or otherwise.

 

and we can already see, by paragraph 3 of the judgment, that this is probably not going to end well for the Local Authority. If those objections are made out, the LA are going to lose, on the article 6 point if nothing else, but almost certainly it would be unreasonable to make determinations that affect the individual livelihoods and career of staff and the financial viability of the organisation as a whole without them having proper opportunity to defend themselves.  (I hasten to add that these claims were vigorously challenged by the Local Authority)

 

The case very helpfully sets out the statutory and binding guidance framework for conducting safeguarding investigations, and would be a useful starting point if one wanted to get to grips with what the duties and requirements are. (The joy of case law is that it often sets out all of the background knowledge in one neat place, saving you hours of leafing through separate sources or even locating what those sources might be)

 

What is interesting about this case is that of course there was a contract between the LA and the claimant for the provision of these services. The claimant ran their case largely on public law grounds  (i.e that this was an administrative decision of a public body which must be taken in a Wednesbury reasonable manner) and the LA largely on contractual grounds (i.e that the issue of investigations, cooperation with them, being bound by recommendations, dispute resolution etc were all contained in the contract, and this was a contract dispute  – and ultimately that the decision was about whether to renew the contract that existed between the Claimant and the LA)

This is interesting, at paragraph 26  (and was the part on @celticknottweet ‘s tweet that led me to dig a little deeper)

It is not the function of this court to decide whether or not abuse took place. The court is concerned with the process by which allegations were investigated. There is some disagreement about the long and complex dealings between the parties over a lengthy period and Mr McGuire QC for West Sussex places emphasis on what he describes as ‘the true factual context’.

 

So, it would not matter if the allegations had merit or substance, the JR court would not be looking at that – they would be looking at whether the process of investigation and opportunity to defend and decision-making process was fair, not whether or not the abuse alleged had taken place. The Court was not conducting a judicial determination of the allegations, merely the process.

 

On that very issue, here is the nub of the judgment  –  the case against the Claimants and their staff was produced in a 22 page report at 7pm on 8th December, for the conference on 10th December. The Claimants request for the conference to be adjourned to allow them time to consider the report and respond in writing was refused.  Two members of staff were refused admission to the conference (the Court accepted that there were legitimate reasons for this) but that decision made on the day, allowed there to be nobody present at the Conference who could speak to the day to day running of the home.  The meeting lasted for 8 hours, and there were “ten on one side and one on the other”  – the Claimant handed a solicitors letter to the Chair who declined to show it to anyone else.

    1. By the middle of 8 December nothing further had been heard from West Sussex about the conference set for 10 December and Mrs Hillary-Warnett sent a reminder to the Council which responded at 4pm confirming that the conference would proceed at 9.30 on 10 December and that a copy of the report would be hand delivered. This was received at 7pm on 8 December. It was 22 pages long alleging abuse against thirteen residents of Nyton House (five of whom had since died).

 

    1. The Claimants submit that the report is incoherent and unclear about what is being alleged against whom. The report referred to the investigations as having been ‘extensive and complex’ and it had taken seven and a half months to produce. However for much of that time the police had been the lead investigator and it had been difficult for West Sussex to carry out the necessary and important work. Of the thirteen residents identified in the report only one had been placed at Nyton House under the Contract. Every relative of a resident at Nyton House that had been questioned was positive about the quality of care provided.

 

    1. Mrs Davis’s evidence, unsurprisingly, is that she was quite unable to deal with the report in the very short time available. On 9 December the Claimants’ solicitors wrote to Mr Yong pointing out the difficulties of holding a Case Conference within the proposed timescale and proposing an adjournment for something over ten days so that Mrs Davis could consider the report and provide a written response within seven to ten days. The solicitors suggested as an alternative that ‘no expectation or pressure’ be put upon Mrs Davis at the next day’s Case Conference to respond and that she should be given the opportunity to provide a detailed written response within seven to ten days. The solicitor could not themselves have attended at such short notice.

 

    1. Mr Yong rejected both options by fax at about 6pm on 9 December.

 

    1. So Mrs Davis attended the Case Conference but took with her for support Mrs Hillary-Warnett, Ms Hillary who was the acting manager and, apparently, a Mr Fieldhouse the son of one of the residents. Mr Fieldhouse apparently soon left. Mrs Hillary-Warnett was refused admission on the basis that she was an alleged perpetrator, a decision understandable in the circumstances. Ms Hillary was also refused admission for similar reasons. So no one remained who was able to speak to day to day management issues at the home. Mrs Davis then attended the meeting alone. She was 77 years old and faced ten members of the safeguarding authorities, eight of whom were employees of West Sussex. Mrs Davis handed up her solicitors’ letter of 9 December but Ms Attwood, the chair declined to consider it or to show it to the others present.

 

    1. The meeting lasted more than 8 hours. It is unclear what documents were available to the panel. Mr McGuire emphasises the extent of the discussion at Mrs Hillary-Warnett’s interview with the police, at which all matters complained of were apparently covered. However there is nothing to suggest that the record of the interview was disclosed or discussed with the panel despite the fact that it must have been one of the factors leading the police to decide to take no action. It does not appear from the record that notes of other interviews were available to the panel either. West Sussex, surprisingly, relies on the fact that Mrs Davis did not herself at the conference ask to have the matter adjourned. But it was or should have been obvious that she wanted it adjourned because her solicitors had written to say so and Mrs Davis had reminded the meeting of the letter. Ms Attwood points to the fact that Mrs Davis started by making it clear that she was going to follow her solicitors’ advice to make no comment but then chose to go on and comment on a number of occasions. There was no indication that West Sussex saw anything amiss in relying on what this elderly lady went on to say, despite knowing of her solicitors’ advice. During the lunch break which according to Ms Attwood was ‘relaxed’ Mrs Davis made a remark to her informally. Ms Attwood “suggested … that she share these comments with other attendees when the meeting reconvened and she agreed and … repeated this statement towards the end of the meeting”. This was unfair.

 

    1. West Sussex was aware of Mrs Davis’s limited role as owner not manager of Nyton House. The chair refused an adjournment, gave Mrs Davis no proper opportunity to prepare for the meeting, refused even to consider her solicitors’ letter, continued for eight hours knowing that she was an elderly lady, where the meeting was ten on one side and one on the other and where even the informality of a brief lunch break was abused. Nevertheless conclusions were drawn about Mrs Davis’s credibility and her fitness to own a care home. These were in part based on detailed matters relating to individual carers and patients (see paragraph 18 of Ms Attwood’s statement) which West Sussex knew or should have known were outside Mrs Davis’s knowledge given the impossibility of looking into all these allegations in such an absurdly short time and its decision (for reasons which were of themselves legitimate ) to exclude from the meeting those who would have had the answers . West Sussex, as Mr McGuire put it, considered that Mrs Davis had ‘made a long series of admissions’.

 

    1. I again remind myself that the prime object of the investigation was to protect vulnerable adults and to prevent abuse not to give particular consideration to Mrs Davis. But her treatment at and around the meeting was deplorable.

 

    1. The Case Conference concluded that fourteen allegations of abuse were substantiated and ten were ‘inconclusive’. An allegation of ‘institutional abuse’ was found to substantiated based amongst other things on an ‘incestuous management and ownership structure’, an odd description of a family business. The conference imposed 45 ‘actions’ mainly on Nyton House. They also, referred, with potentially devastating professional and personal consequences, Ms Hillary, Ms Bidwell and Ms Hillary-Warnett to the ISA and NMC.

 

    1. The policy required minutes of the Case Conference and its outcomes to be sent to the Claimants within five days but these were not received within that time but delivered to the Claimants thirteen days later on 23 December with a request to respond within seven days (which would have been 31 December) shorter than the ten days permitted by the policy.

 

  1. It is not necessary for my decision for me to evaluate the quality of the decisions taken at the Case Conference but, having looked at the relevant material it seems to me that the submissions that there were serious flaws in the Defendants’ approach, for the reasons set out in paragraph 89 of Mr Purchase’s written argument, are well-founded. The object of the Case Conference was primarily to investigate allegations in the interests of protecting vulnerable adults, not to make determinations about Mrs Davis or the Case Conference and so it is understandable to a degree that West Sussex did not see the vulnerability of Mrs Davies as a concern.

 

and then this

 

52. West Sussex had started to investigate the allegations in April 2010 and, partly as a result of the police intervention, had not reached or communicated its conclusion orally until 10 December. It had not communicated its conclusions in writing until 22 December. It is hard to see how a responsible council genuinely seeking the views of the Claimants could have expected them to respond within a ludicrously short timescale set to expire on 31 December in the middle of what, for so many, is the Christmas and New Year break. In the event the council extended the deadline to 21 January 2011 and on 24 January the Claimants’ solicitors submitted a response running to 45 pages with a further eleven pages of attachments.

 

[This is the bit in the judgment, where if you’re for the Local Authority, you know beyond any doubt that you have lost on the public law case, your only hope is that the Judge agrees with your primary case that this is a contractual dispute, not a public law dispute. You are probably not optimistic about the prospects of that, at this point]

 

    1. Mr Purchase contends that the decisions of the Case Conference were made in the exercise of a public function. It was attended and conducted by members of public bodies carrying out their various statutory functions and to protect residents of care homes from abuse. Those functions are controlled by governmental guidance and published local policy and do not derive from contract. The point is starkly illustrated by the fact that only one of the residents who are alleged to have been abused was placed at Nyton House by the local authority under the Contract. He submits that while there is a contractual dispute following on from the allegations of abuse and the action taken by West Sussex following the decisions at the Case Conference there is no challenge to the Defendant’s exercise of its contractual rights in stark contrast with the facts in Caerphilly (a case in which Weaver was not cited and, which Mr Purchase argues, is wrong).

 

    1. I follow the guidance given by the Court of Appeal in Supportways and Weaver. In Supportways the question was whether a review which led to the decision not to renew a contract was a public law matter. As I read the judgments an applicant for a judicial review who has a contract with the body sued must establish a relevant and sufficient nexus between the matters complained of and the alleged unlawful exercise of public law powers. The caution about permitting a public law remedy does not apply to the same extent if the issue is not, as Neuburger LJ put it, ‘fundamentally contractual in nature’. The issues here are not fundamentally contractual or, to borrow the words of Elias LJ, ‘in the nature of a private act’.

 

    1. West Sussex responded to allegations by starting an investigation under its regulatory powers which was to lead to findings of abuse of thirteen residents at Nyton House only one of whom was there under a contract with West Sussex. The original complaint led swiftly to the exercise of the contractual power of suspension about which the Claimants’ solicitors corresponded. At different points in the investigation notices were given under the Contract. The Claimants’ solicitors’ letters referred to contractual rights, as well as to those under public law but there are also letters from West Sussex indicating that the two are seen as separate matters. When the decisions now challenged were taken at the Case Conference in December 2010 Default Notices under the Contract were soon given and one of the West Sussex employees present at the conference Mr Ian McCarthney attended because his responsibilities were for management of contractual matters. But it is plain that the investigation would have been carried out whether or not a contract had been in place between the parties as would the process of conference and decision-although the actions to be taken as a result would have differed. West Sussex issued Default Notices under the contract following the case conference but this was one of a series of steps consequent upon the decisions. It seems to me that West Sussex was rightly and primarily concerned with investigating allegations of abuse under its legal powers.

 

    1. The contractual issues were ancillary. There is no direct challenge to the contract in this case. The Claimants originally sought to quash the Default Notice, a grievance for which a private law remedy was available. Their other complaints are some distance from the contract. The contractual remedies would have been inadequate because these are essentially public law claims. The decisions were not about whether or not to continue a contract or to change its terms, they were about whether or not abuse had been established and if so what the consequences would be in a number of areas, only one of which was the contract. The Claimants are trying to clear their names from what they see as unfair findings of abuse by West Sussex (but not by the other public agencies concerned) and protect their staff from what they see as unfair referrals to professional bodies. In essence these are public law not contractual concerns.

 

  1. When taken together the factors cumulatively establish sufficient public flavour, as it was put in Weaver, to make the process of investigation and decision a public function distinct from the contractual relationship. So this defence fails.

 

These investigations are hard for a Local Authority. They have a duty of care to the people placed in these homes, and once the police conclude their investigation, there is obviously a time pressure to take appropriate safeguarding action. But in a case such as this, where the police were investigating from April to December, having a meeting with only one working day for the organisation under investigation to respond to the report was always going to be problematic.  I suspect in retrospect  (a place where wisdom comes easily) there is regret in not having accepted the request to adjourn for 10 days.

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With the greatest possible respect…

Posted on August 30, 2012 by suesspiciousminds

 

Musings on section 12 of the Contempt of Court Act 1981.

 

In the traditional down-time whilst in the Family Proceedings Court today, I was sitting near a sign. I like signs. I like to read them, and they often send my tiny brain skittering off in odd directions.

 

This one said “It is a contempt of court to wilfully insult the justices or any witness before the court, or any solicitor or counsel having business in the court, during his or her sitting or attendance in court or going to or returning from the court”

Now, obviously, I knew about it being contempt to wilfully insult the justices  (though I gratefully suppose that wilfully insulting their intelligence with some of the propositions one has to put to them as part of a case doesn’t count), but it was news to me that we advocates had this protection too.

 

So, I looked it up.  (and yes, I do have insomnia, and yes, it is 5.00am)

s12 Contempt of Court Act 1981

(1)A magistrates’ court has jurisdiction under this section to deal with any person who—
(a)wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or
(b)wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2)In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding [F5£2,500], or both.

 

Now, frankly, I have never, ever, wilfully insulted justices or witnesses, but I’ll be damned if I would plead with clear conscience that I’ve never wilfully insulted any solicitor or counsel in the course of a court day or going back and forth from court.  Never with any malice, or intent to cause distress or harm, but that’s not a mens rea which is in the Act.  So, careful with that banter, folks. Even banter on the train journey can be contempt.

 

And that led me, in a flying leap, to the traditional legal insult of choice, which is to say that you respect someone. There’s little ruder than saying “with respect”, unless it is “with great respect” or “with the greatest possible respect to my learned friend”   – all of these things, if translated into what is intended would be the sort of language that would get you thrown out of the roughest tavern, and would be frowned on with a bunch of 14 year olds playing Call of Duty on the X-box and calling each other Noobs and Losers.

 

It’s like a little secret legal code, if not a very good one, since we all know. I don’t think anyone has ever used the ‘with respect’ card to mean what it actually appears to on its face, rather than the unspoken bristling hostility if not loathing.

 

And that leads me to the other little secret legal code that I can’t stand. Sorry if this is breaking some Magic Circle style rule, but when a lawyer says to the Court,  “I am instructed that”, or even stronger  “I am firmly instructed that”  , they are telling the Court that everything that follows is not their own view of the case, but that the client has not listened to their very sensible advice. It is a device to allow them to communicate to the Court and the other parties that the idiot is their client, not them.  A rough translation would be “I know this is crackers, but my client has ignored my advice, and I’m stuck with this case”

 

Now, the irony of communicating it in the phrase “I am instructed that”  when that is the last thing in the world that your client would actually want you to convey to the Court (and you’re sort of breaching his legal privilege there, in hinting that you’ve given him advice which he has refused) is telling.  If you leaned over to you client and said to her (or him) “I’m going to tell the Judge now that I tried to get you to see sense, but you are unreasonable and everything that follows after that is your own daft opinion and not my view, is that alright?”  do you think for a second that they would be okay with that?  I think they’d justifiably sack you.

 

If you said that sentence in French or Latin, it wouldn’t be any more reasonable, just because the client wouldn’t understand, and nor, I ‘respectfully’ suggest is it any more reasonable because you’ve put it in code that the client doesn’t understand but the other listeners do.

 

I know it is done, I know that our credibility with the Court is a valuable currency and one that we don’t want to give away lightly, but I don’t like the phrase. I’d be a liar if I said I’d never said it, but it did leave a bad taste in my mouth, and I haven’t said it for about ten years, for that reason.  Are you wilfully insulting your own client, just in code?

 

Now, can someone help me off this horse, it’s higher than I imagined?

 

 

 

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On wednesdays he goes shopping, and has buttered scones for tea

Posted on August 28, 2012 by suesspiciousminds

A short post about C (A Child) [2012] EWCA Civ 1144 , the child who nearly but not quite went to Canada.  (yes, the title is immensely remotely linked to the story, sorry) . Title two (which will make sense in a minute), was Dylan’s “You don’t need a weather vane to know which way the child goes”

Changes of heart seem to be becoming a bit of a theme in recent weeks, with this case and the Re LB, where the Judge changed her mind after delivering a finding of fact judgment.

 https://suesspiciousminds.com/2012/07/19/it-was-professor-plum-in-the-kitchen-with-a-candlestick-no-it-was-professor-plum-and-miss-scarlett/

This one is a private law case, and with an international (if not actually any lumberjacking) element.

http://www.familylawweek.co.uk/site.aspx?i=ed99950

A fairly easy one at first instance. Child is nearly 15, dad wants her to be returned to Canada, child wants to go, mum acquiesces, and a consent order is made. The child then decides, actually, no I don’t want to go to Canada. You can’t, as we all know, appeal a consent order, so this creates a bit of a problem. [Though see http://www.bailii.org/ew/cases/EWHC/Fam/2012/55.html for the door being opened to appeal consent orders made on fallacious grounds]

There was also, of course, the problem that there was the distinct possibility of litigation within the Canadian jurisdiction.

But it is clear that having consented on the basis that the child wanted to go, when she decided she didn’t, it caused a problem. I like this line from the judgment, and will be stealing it  “The entire foundation of the order evaporated”

The Judge at first instance was worried, when the case came back before him, considering that he lacked jurisdiction to make an order which in terms would reverse the order already made.  As was submitted, the child’s wishes and feelings were no longer cut and dried, and although there was an argument that conducting further investigation into her wishes and feelings and the right course of action might itself compound the emotional turmoil she was in, it might not be as simple as saying that she had decided not to go.

“What are Nicole’s real wishes and feelings?  Might she not shift again?  Is she perhaps something of a weather vane in relation to her future country of choice? “

The Court of Appeal effectively decided that if father was committed to pursuing his application to have the child returned to Canada, the Court could not bar that application being heard, but judicial shoulders were leaning hard on him and the mother to engage in some mediation and thrash out the issues themselves.

The Court of Appeal do seem to be adopting this course in recent months of trying to make parents take some responsibility for the impact of litigation on their children. One might cynically suggest that the Court is passing the buck in asking parents who are in litigation to sort things out themselves, but it appears to be a phenomenon which is catching on.

MacFarlane LJ – “I would particularly endorse what my Lord has said about the need for the two parents to share the decision about Nicole rather than expect a rather blunt legal process to be deployed and come up with an answer which they as parents have responsibility for taking.  The father, in particular, would be wise to step back and look at the situation that now confronts the family with the potential for contested proceedings.  Accepting, as I do for the present, Mr Turner QC’s characterisation of Nicole as being a young girl in her mid-teens who changes her mind from time to time and accepting that that might well be the case, I suspect that now that she has made her position plain as it currently is, it is not the moment for it to be met by the robust deployment of an application pursued in legal proceedings. There is surely a need for the father to consider whether that course will do more damage than good to his relationship with Nicole.  A better course may be for the parents to agree arrangements and allow Nicole, as she develops in maturity, to make up her own mind as to where she goes and if that is to Canada no doubt the father will be very pleased to renew his relationship with her there on that voluntary basis.”

On a more self-centred topic, I’m about to hit 2,000 reads for the month of August, which is very pleasing for me, and smacks my previous best month. Thank you to all of you for reading. If you do read this blog, and find it anything other than impenetrable legal waffle, I’d be enormously grateful if you could inflict it on a couple of other people you know.

Just like the underpant-stealing gnomes from South Park, I have a three stage plan.     http://en.wikipedia.org/wiki/Gnomes_%28South_Park%29

Stage 1 – write blog

Stage 2 ????

Stage 3 profit

 

[Edit  – I’ve realised that if you don’t know that three stage internet meme, you might well think I literally meant that there’s a business plan for the blog and an aspiration to profit, whereas the metaphor was intended to mean the exact opposite  – there never is a stage 2 in the gnomes plan, and nor is there in mine. I write this blog because I like writing it. I’d be lying if I didn’t say that it makes me happy to know that people are reading it]

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I wish I was Special, you’re so very Special (Guardians)

Posted on August 24, 2012 by suesspiciousminds

 

 Some musings on Special Guardianship, and particularly what the ‘character’ of such placements are when it comes to working out level of contact

 

 

I did an SGO hearing this week, and two things struck me on it. 

 

The first, is quite simple, but struck me for really the first time. We did the hearing, which involved broad agreement and ample praise about the placement itself and the making of an SGO, but then quite a bit of to-and-fro and drawing up preambles about contact. We then had a very short hearing, the orders made as drafted, and as I left, and thanked the Special Guardians, they remarked “is that it? What happens now?” and I told them about the order, and keeping it safe and whatnot.

 

But it really did strike me, that we are making an order for a child to live permanently with a family member, and there’s nothing like the ‘celebration’ hearing that there is for an adoption hearing, when the system has a hearing that isn’t about detail, or wrangling, or dispute, and is just a simple hearing which the child and the carers attend to just formally recognise that this is important and should be a sense of occasion. Should SGOs end, as they do now, with a whimper, rather than a bang?

 

 

The second, is more complex, and potentially more interesting (if you are a geek), and I would thank counsel for the mother for raising it.  [I won’t name her, but it was a fascinating issue – well, to me at least]

 

The question, in simple terms, is this :-

 

When determining the level of ongoing contact, do SGO placements have a particular character, or is the contact just determined on a case by case basis?

 

 

To illustrate – here are three possible outcomes for children who are subject to care proceedings if they don’t go home, and three possible levels of contact.  From the relatively narrow cross-section I have done, I can readily match them up, but is that just a result of a narrow cross-section, or local practice, or is it reflective of the placements having a particular character which produces a particular contact regime

 

Adoption with a stranger

SGO with a relative / foster carer

Long-term fostering with a foster carer

 

 and three possible contact quantums

 

Six times per year

Two or three times per year

No direct contact or once per year

 

 

Maybe you haven’t matched them the same way I did, based on my narrow experience; but it does seem to me that there’s something of a spectrum of character (and frequency of contact) which starts with Adoption (and low contact at one end) and Long-term fostering (and six or so sessions of contact at the other).

SGOs come somewhere on that spectrum, but are they (as I was arguing), closer to Adoption, being a form of permanence, or as the parents were legitimately arguing, closer to long-term fostering?

 

On the one hand, one can see the parents perspective that it feels peculiar to have a higher level of contact if your child is placed with a stranger than if the child were placed with a member of your family; on the other that managing contact where the child is in the care of the State is different than when the child is permanently cared for by an individual who has legal responsibility for them. 

 

 

So, does an SGO placement have a particular form of character, which makes it Permanence, and this has an impact on the right sort of contact for that child?

 

Or, is the character of the type of placement completely irrelevant in SGOs and the right level of contact falls completely on an analysis of the particular case?

The original White Paper is interesting here – look at this bit (my underlining):-

 

“5.10 The Government will legislate to create this new option,

which could be called “special guardianship”. It will only be

used to provide permanence for those children for whom

adoption is not appropriate, and where the court decides it is in

the best interests of the child or young person. It will:−

give the carer clear responsibility for all aspects of caring for

the child or young person, and for making the decisions to

do with their upbringing. The child or young person will no

longer be looked after by the Council; provide a firm foundation on

which to build a life−long permanent relationship between the

carer and the child or young person; preserve the legal link

between the child or young person

and their birth family; be accompanied by a proper access to a full

range of support services including, where appropriate, financial

support.”

 

 

Now, I’m not at all sure that SGOs are ‘only used to provide permanence for those children for whom adoption is not appropriate’  but that does suggest that “Permanence” was in the mind of those who constructed the Act and concept.

What we do know, in terms of character, is that SGOs are not just a family member version of Adoption. The Court of Appeal made that plain in RE AJ (A CHILD) (2007) [2007] EWCA Civ 55  and also RE S (A CHILD) (2007) [2007] EWCA Civ 54

 

Special guardianship orders did not effectively replace adoption orders in cases where children were to be placed permanently within their wider families. No doubt there were many cases in which a special guardianship order would be the appropriate order, but each case had to be decided on what was in the best interests of the particular child on the particular facts of the case

And in terms of contact, certainly the Court treat the views of adopters and SGOs differently.

 

Compare RE L  (A CHILD) (2007) [2007] EWCA Civ 196 which dealt with Special Guardians who were appealing a contact order being made that they had opposed and the Court of Appeal upheld the original contact order

 

With  RE R (A CHILD) (2005) [2005] EWCA Civ 1128  where the Court of Appeal held that making contact orders in the teeth of opposition from adopters was highly unusual, and effectively wouldn’t be done unless the Court considered the adopters were objectively and subjectively unreasonable.

 

In Re L – the contact order and various conditions, had been at the behest of the Local Authority,  and the grandparents were deeply unhappy about it. They sought to argue that, in terms, if the Court were making an SGO they ought really to let the Special Guardians get on with it, and not fetter their exercise of parental responsibility.

 

This is what the Court of Appeal said about that  (underlining mine)

 

33. There is in my mind no doubt that GP are correct in their understanding that the SGO confers parental responsibility upon them to a greater extent than they enjoyed under the residence order. It is apparent to me that the special guardian can trump the exercise of parental responsibility by a parent. The Local Authority have no parental authority and never have had in this case. Often a SGO will replace an existing care order and then by virtue of s. 91(5A) of the Children Act 1989 the SGO discharges the care order. All of this sits comfortably with the philosophy which lies behind the introduction of this new form of order. It is intended to promote and secure stability for the child cemented into this new family relationship. Links with the natural family are not severed as in adoption but the purpose undoubtedly is to give freedom to the special guardians to exercise parental responsibility in the best interests of the child. That, however, does not mean that the special guardians are free from the exercise of judicial oversight.

 

34. S. 14B(1) requires the court when making the SGO to consider whether a contact order should also be made. The obvious beneficiaries of that contact order are the natural parents who have been sidelined but not totally displaced by the making of this order. If a contact order is made then it can be hedged about with conditions see s. 11(7) and s 14E(5) of the Act. S. 14B(2) also permits the court to give leave (and by implication, therefore, to refuse to give leave) for the child to be known by a new surname. It follows as night follows day that the court has the jurisdiction to make the orders set out in paragraphs 2, 3, 4 and 5 of the judge’s order and GP’s attack has, therefore, to be one directed at the manner in which the judge exercised the discretion she so clearly had.

 

 

What the Court effectively decided here was that the views of the SGO about contact were not binding or final, and where it was appropriate to make a contact order in the teeth of opposition from the SGOs (or prospective SGOs), the Court could do so.

 

Wilson L.J did express a measure of disquiet about contact being imposed in the face of such opposition, before concluding that it had been a matter for the trial judge, not the appellate Court :-

 

67. I have however felt some, if transient, hesitation about the proper approach to the only other substantial part of the grandparents’ appeal, namely their objection to the order for supervised contact, outside the home and in their absence, between E and the mother. For example I have asked myself whether the judge sufficiently factored into her reasoning either the profundity of the grandparents’ opposition to such contact; or their sense of outrage in the event that their conviction as to where E’s interests lie were to be overruled; or their apparent state of emotional exhaustion; or the importance for E that the pressures upon them should not become insupportable.

Would I (so I have wondered) have made an order, in the teeth of opposition of that character, that, in accordance with the detailed provisions of the “Package of FamilySupport” annexed to the order, a child then less than four years old should, on 5November 2006, i.e. only two months after the date of the order, be collected by a”contact supervisor”, whom the child will be likely to have met only twice, and takenaway for four hours to meet the mother for the first of the six occasions of contact?

68. But, almost as quickly as they have crept into my mind, I have had to remind myself that such questions are not aptly posed to himself by an appellate judge. The essence of our system for such determinations of issues as depend upon the exercise of a discretion is that it is for the trial judge to conduct the exercise by evaluation of the rival arguments following full exposure to the evidence by sight and sound. The role of the appellate court is limited to an enquiry into whether the judge’s reasoning betrays error in the manner of her or his conduct of the exercise or whether the determination must be the product of such error in that it is plainly wrong.

 

 

What is left unsaid, is how much weight, if any, ought to be given to the views of the prospective carer.

 

The views of the prospective SGOs (and equally, the views of the parents) don’t expressly come within the Welfare Checklist that the Court must consider, but it would be hard to imagine that a Judge would not take into account, say, that the SGO was willing to countenance contact three times per year and the parent wanted twelve. Both of those views must form some part of the decision-making process.

 

It is interesting*, of course, that in Re L, the Court of Appeal decided that the legal powers to make a contact order alongside SGO existed, ergo it was a judicial discretion to make them in the teeth of opposition, whereas in Re R, the Court of Appeal acknowledged that the legal tools were there to make a contact order alongside adoption but imported a rule of thumb that to do so in the face of genuine opposition from the adopters would be highly unusual  (not quite a rebuttable presumption against contact orders in adoption cases, but not a great distance from that)

 

[*to me, not necessarily universally]

 

So, it is plain that there is some distance on the spectrum between Adoption and SGO, and in the way the Court will treat such placements when considering contact.  But how much distance remains uncertain.

 

[I know that there are some Family Placement folk who read this blog, and I would really welcome some views on it.  I’m mindful that SGOs have been legal for about eight years now – I think the Adoption and Children Act 2002 that introduced them got phased in, in 2004; and that probably the majority of children who have been made subject to SGOs remain so, being still children. I wonder how much, if any, research has been done to examine children’s experiences of SGOs, and where that research might take us.  Is there some part of the contact process which differs in a case of Permanence  (where the child’s needs are being met, legally and on the ground, by individuals, rather than by the State?) ]

 

 

 

 

Post-script

 

I was wrong, in a discussion with my wonderful significant other this week, about how hard it is for a parent to over-turn an SGO once made. I said it was relatively easy, and she thought it would be very hard.

 

I’d thought that the application would just be a straightforward section 10(9) leave application  (i.e that if you had a good enough case to argue about the Court discharging the SGO, you’d be able to argue it) but I see now from  RE G (A CHILD) (2010) [2010] EWCA Civ 300  that the Court of Appeal have ruled that it is appropriate to use the Warwickshire  test   from WARWICKSHIRE COUNTY COUNCIL (Appellant) v M (Respondent) & (1) M (2) L (BY THEIR CHILDREN’S GUARDIAN) (Interveners) (2007) [2007] EWCA Civ 1084  that test being  (I’m paraphrasing, but not by much)  “the law says you have to have a mechanism that lets you challenge this order at a later point and there’s a hurdle to get over, but the Courts are blowed if they are going to set you a hurdle that any actual human being could ever get over, in order to use that mechanism”

 

Using the Warwickshire test makes it very hard, without question.  

So, my wonderful significant other was right, and I was wrong. Not for the first, nor I fear the last time.

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