Author Archives: suesspiciousminds

We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

Posted on July 23, 2012 by suesspiciousminds

 An analysis of the Government’s consultation on placement of siblings and contact post placement

 

The Government, as is their usual way, published consultation documents on a Saturday, and gave everyone just over a month to respond. [This is becoming closer and closer to Douglas Adam’s jaded viewpoint on planning consultations]

 

” But Mr Dent, the plans have been available in the local planning office for the last nine months.”

“Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn’t exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything.”

“But the plans were on display …”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard‘

 

But I digress…

The consultation on sibling placements can be found here:-

Click to access placing%20children%20in%20sibling%20groups%20for%20adoption%20a%20call%20for%20views.pdf

and the one on contact arrangements for children can be found here:-

Click to access contact%20arrangements%20for%20children%20a%20call%20for%20views.pdf

and Martin Narey’s interview about these consultations is here:-

http://media.education.gov.uk/assets/files/doc/m/martin%20narey%20transcript%20on%20adoption.doc

Now, if you were in two minds about whether you wanted to be involved in yet another consultation document, particularly where minds have probably already been made up, as is traditional with government consultations, let me take you to Martin Narey’s interview and his views about the benefits of contact :-

 

The evidence shows, actually, that contact does not necessarily encourage reconciliation with the birth family. More broadly, the evidence is mixed. I think the most famous piece of research is from Mackaskill, which showed that contact was of benefit to children in 12%, and had positive and negative aspects in more than 50% of cases, but had a very negative effect on the child in 25% of cases. In short, contact is more likely to be damaging than beneficial to a child. The key is to make a decision on each individual case. My view, and this is a view on which Ministers have yet to make a decision, is that we’ve got to look carefully at the presumption in the 1989 Children’s Act, which says that local authorities must endeavour to promote contact between a child in care and their birth family.

Now before people are alarmed, I am not suggesting that in the overwhelming number of cases when a child first comes into care that there won’t be contact. It would be ridiculous to suggest so. But we just need to make sure that on every occasion, we grant contact because it is in the interests of the child. That’s the absolute, exclusive priority we have and sometimes, practitioners have told me frequently, we make decisions on contact which aren’t in the interests of the child. Sometimes that’s about the amount of contact. I have met so many practitioners who are, the word I would use carefully, is ‘horrified’, they are horrified at the amount of contact that infants have to undergo. Sometimes having contact every day of the week, two or more hours, preceded and followed by a long journey across town, it’s traumatic for them.

If you disagree with that, and I suspect there may be people on every single side of the family justice system who DO disagree, you’re going to need to say so, otherwise some important things are going to flow from this.

[I have little doubt that for some children, contact is bloody awful, but I think it is incumbent on the LA and the Court to determine that with evidence contact is not in a particular child’s interests, rather than any shift about the general presumption that contact is a good thing]

I actually think, to let you know that I’m not just knee-jerk against any idea of change, that the consultation document on sibling placements talks a lot of sense.

Whilst in an ideal world, we might want to keep siblings together if they can’t go home (and I have blogged about this before), that simply isn’t the world we are living in. We are walking into a  McDonalds with a shiny pound coin in hand  and expecting to have a Michelin starred experience.

Julie Selwyn (2010)7 found that sibling groups of three or more children were placed, on average, a year later than most children who are placed for adoption in England.8 Analysis of prospective adopters and children on the national Adoption Register shows few adopters willing to consider adopting more than one child at a time. This means that children in sibling groups are less likely to find a secure future home quickly, and may suffer harm as a result.

And This is only part of the picture. It is also genuinely difficult to find adopters who will take sibling groups of three children or more. The British Association for Adoption and Fostering (BAAF) has indicated that as demand for potential adopters increases, some are pulling back from the more challenging children, including sibling groups. Data from the Adoption Register in 2011/12 shows that of the 2536 children referred to the Register from England, 1318 (52%) were single children placements; there were 349 groups of two siblings, 71 groups of three siblings, four groups of four siblings, and there was one group of five siblings. There were 270 people on the register able to adopt groups of 2 children and 21 able to consider groups of 3 children. Some adopters do go on to adopt a sibling born later thus achieving placement of siblings.

 

Yes, you read that right. There are 21 carers on the national register who have expressed an interest in adopting a sibling group of 3 or more. I think I could genuinely take half of those with just my current batch of cases; and I’m just a small portion of one Local Authority.

The consultation document wants to tackle it from both sides, what might be deemed ‘supply’ and ‘demand’ – how can we attract more potential carers who are amenable to sibling groups, how can we convert more people who want to adopt 1 child into adopting a larger group, and is it sensible to cut down the amount of cases that are coming into the system hoping for an adoptive placement of 3 siblings together when that is just unfeasible? And part of that is tackling the general assumption that sibling groups should always be placed together and getting into the nuts and bolts of whether that is right for this family.

Narey talks about the distance between the numbers of children looking for sibling placements and the number of placements available as ‘a gulf’ and I absolutely agree.

The document identifies the problems and throws the doors open to sensible solutions and practical proposals – it seems to me to be a genuine attempt at consultation and to ventilate this very difficult issue with a view to coming up with some ideas. It doesn’t seem to start with a fixed plan with which people are invited to enthusiastically agree or else shut the hell up.

The contact consultation document, I respectfully suggest, is a little further down the route of “we have already got a good idea what we want to do, but we’re obliged to consult with the great unwashed about it”

This is up front and centre at paragraph 3 of the consultation:-

The Government thinks that it is time to review practice and the law relating to contact to make sure that arrangements are always driven by a thorough assessment of what is in the child’s best interests. There is growing concern that contact arrangements are being made that are inappropriate for the child, badly planned and badly monitored. These are being driven by view that contact should take place, rather than on the basis of the individual needs, circumstances, views and wishes of the child. As the number of children in care rises, so the burden and negative impact of poor contact becomes more pressing.

 

Which even I, as a hard-bitten Local Authority hack, driven to distraction about fights over contact taking place five days a week when the parent then only turns up for two; think is somewhat less than neutral in a consultation document  and smacks of an opinion already being formed.

Contact for infants can be particularly problematic. There is pressing evidence that high intensity contact for this group can be stressful and disruptive. Of particular concern is the exposure to multiple carers and the constant disruption to a daily routine. Contact for infants may be arranged for several hours a day for three to five (or more) days a week. Kenrick (2009)14 studied the effect of contact on infants involved in Coram’s concurrent planning project. The study showed that the babies displayed distress before, during and following contact sessions, and that the requirement for frequent contact was experienced as disruptive by the child and carers. The concurrent carers who reported distress and anxiety, described the need for a resting or recovery time of 24 hours to “settle” the child, something which is impossible with such frequent contact arrangements. For infants who have been abused or neglected, the distress from frequent and unsatisfactory contact can make it more difficult for them to recover.

 

I don’t necessarily disagree with this; it’s been a schism between what the family justice system thinks is right level of contact for infants and what the research thinks is right for some time, and it is worth trying to thrash this out, to come to a sensible balance between preserving/building a relationship between child and parent and stability for the child. I think we have probably drifted too far one way on that, and I welcome an attempt to actually pull together the evidence and come to a proper conclusion about where the welfare paramountcy principle should stand on contact for infants (on the Justice Munby end of the scales – five times per week of four-five hours, or on the Kenrick end of the scales, or somewhere between). I just wish it had been couched as a debate, rather than a declaration of war.

Statutory guidance can be strengthened to ensure more consideration is particularly given to the purpose of contact for infants. Ensuring that arrangements are appropriate to their age and stage of development and they are not, for example, subject to long journeys. Each case will need to be decided on an individual basis, however we should like to propose that a good starting point might be that children under two are rarely exposed to contact more than 2 or 3 times a week and for sessions of no more than 2 hours

 

I wonder if the Government have thought through the inevitable consequence of this that there will be a far greater clamour from parents, Guardians and Courts for less separations (since the impact of separation appears far greater with 4-6 hours contact a week than it is with 20-25 hours contact per week) and thus a huge increase in risks being managed at home, parent and baby placements and residential assessments. I’ve spoken before about the law of unintended consequences and I think this is a massive one.

 

22. We also plan to look again at the duties on local authorities in primary legislation to allow children in care reasonable contact with their birth parents and to promote contact for looked after children. We think that these duties may encourage a focus on the existence and frequency of contact arrangements, rather than on whether they safeguard and promote the welfare of the child. This could remove the perceived presumption of contact in all cases and help local authorities to take a case-by-case decision about the best contact arrangements for the individual child. We recognise that these duties were introduced because some local authorities did not previously make adequate arrangements for contact, and we do not want to see a return to contact being exceptional rather than the norm.

23. Alternatively we could look at replacing the duties with a new requirement that local authorities consider contact arrangements that have a clear purpose documented in the child’s care plan and are in the child’s best interests. The intention would be to ensure that arrangements are made in the child’s best interests, taking account of views and wishes of all concerned, and aligned with the longer term plans for the child.

And on post-Placement contact

36. We need to ensure that contact arrangements change as a child’s circumstances change and that they are consistent with plans for the child’s future. We also want to discourage the practice of making informal arrangements or ‘deals’ outside of the court process. In order that contact arrangements are, and remain, fit for purpose, we could look at existing provisions for reviewing contact and ensure a formal review and decision making process takes place at each of the points set out above. We could look at existing guidance and regulations and consider where and how these can be strengthened.

37. There could be particular scope for this at the point of placement order. At present, there is no presumption for or against contact with the birth family at this stage. We could introduce a presumption of ‘no contact’ unless the local authority is satisfied that contact would be in the best interests of the child. For example, this might be the case where an older child, with the backing of his or her adoptive parents, expresses a wish to meet his or her birth parents.

And specifically on post-adoption contact

 

49. One option may be to provide that the court can on application for an adoption order make an order for no contact. This would give adoptive parents recourse where informal contact arrangements were causing difficulties, but this would only take effect once an adoption order has been made. Post-adoption contact should be exceptional but in a minority of cases it may be appropriate, for example in the case of an older child. What should govern such contact arrangements is what is in the best interests of the child.

50. In addition to introducing a “no contact” order, we could amend legislation to create a new more demanding ‘permission filter’. This would raise the bar for any birth parent to make an application for a contact order. Criteria for granting permission already exists therefore we could explore how this might be strengthened.

If you don’t speak up, you can’t complain and whinge when this agenda gets pushed through into legislation and binding guidance. You have until the 31st August. Good job nobody who will want to reply would be on holiday during any of that time…

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It was Professor Plum, in the kitchen with a candlestick – no, it was Professor Plum AND Miss Scarlett….

Posted on July 19, 2012 by suesspiciousminds

A discussion of  the Court of Appeal decision in Re L-B (Children) 2012 . Or ‘when is a judgment not a judgment?’

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/984.html 

 

 

If you’re going to read one case this year, you should probably be more ambitious in your reading, but in any event, if you want one that is not necessarily hugely important but a real shocker, this one would be a good start.

 

It seems a silly little thing, but actually raises some good (if quirky points) and cuts to the root of what judicial decisions are.

 

The facts are very simple (and I assure you that this is not one of my imaginary judgments, though I wish I’d thought of it)

 

A Judge heard a fact finding hearing about non-accidental injuries.  At the conclusion of the hearing, the Judge indicated that the full judgment would be provided in due course, but that she had determined that the injuries were non-accidental and had been caused by father.  That was in December 2012.  It is important to note that this finding was recorded within an order made at that time.

 

Counsel for father invited the Court to deal with, in the full judgment, the matters as to fact and law that had been set out in father’s written submissions.

 

The LA moved forward with plans to place the children in the care of maternal grandparents (there were other difficulties with the mother, outwith the physical injuries) .

 

 

 

The perfected judgment was handed down on 15th February, and it was with some surprise that the parties heard the following passage :-

 

The perfected judgment was not in fact distributed until the 15th February. In that judgment the judge stated that she had “reconsidered the matter carefully” and had reached the view that “to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard”.

 

In Lord Justice Thorpe’s beautifully understated prose,  “this was indeed a bombshell”

 

 

 

 

The judgment recorded the following:-

 

  1. 22.   However the decision I reached had to be reached on the balance of probabilities and when I considered the matter carefully I could not exclude the mother because I was not sufficiently satisfied that no time had arisen when she had not been alone with the child and might not have caused some injury.

23. I would be reluctant to expand further than that. I hope that will, in fact, constitute the clarification which you seek and I am reluctant to take time now to produce something further in writing, given that I have already given you my decision twice, the second time changing direction, but, as I say, I do not view it as incompatible with what I said the first time; it is simply a reconsideration of the point I reached on the balance of probabilities led to my second expressed view.”

 

 

The issue before the Court of Appeal was twofold, in essence.  Was the Judge bound by her earlier decision that father was the perpetrator of the injuries or entitled to change her mind and make a Lancashire finding? (i.e her function in determing the fact finding ended when she gave a short judgment in December and made an order recording that father had been determined by the Court to be the perpetrator of the injuries)

 

  And if the Judge were not bound by her earlier decision, does the change of mind in any event render the judgment unsustainable?

 

 

Matters become worse – when trying to establish when the order in December was perfected and sealed, the following came to light:-

 

  1. The court seal on the order of 15th December is only partially legible and bears no date. When we asked for the date on which the court sealed the order no-one in court could answer the question. We accordingly proceeded on the common assumption that the order had been sealed prior to 15th February 2012. However, we required investigation over the lunch adjournment.
  1. At 2pm a further extraordinary story emerged. Manchester Civil Justice Centre does not keep a record of the date that orders are sealed. The order of 15th December was drafted by the Local Authority’s representative and circulated to other parties for approval. On the 6th January it was emailed to the judge for her approval. That email received no response.

 

31.The hearings on the 23rd January, 20th February and 23rd February all provided the obvious opportunity for the Local Authority, and other parties, to ask the judge either to approve or amend the draft submitted for her approval. However, it was not until the 24th February that the Local Authority noticed what was lacking and re-submitted the draft to the court. Seemingly the draft received the court’s stamp on that same day.

 

 

 

 

 

The Court of Appeal grasped the significance of this.

 

  1. This revelation altered the legal path. Had the judge a license to revise or reconsider on 15th February since the previously announced conclusion had never been made the subject of a perfected order: see for instance the judgment of Arden LJ in Re T (contact: alienation: permission to appeal) [2003] 1FLR 531 at paragraph 50 where he said:-

“It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order”

 

 

So, had the order made in Court in December naming father as sole perpetrator been sealed before the Judge had changed her view on the case and amended her judgment, that would have been outside the safety net of Re T, because the order would have been drawn.

 

 But in this case due to a catalogue of errors, the order was not sealed before the Judge changed her mind, and thus had the latitude to do so.

 

(A salutary lesson to us all, to record on the Court order on the fact finding hearing what findings were made AND to ensure that the Court seals them as soon as possible – though this issue is developed later, I still think it is good ‘belt and braces’ to do this)

 

The Local Authority, argued that in care proceedings, it is the final order as to Care Orders, Supervision Orders or no order that is  “the order” and that therefore the Judge can amend any judgment made at interlocutory stage providing that the “final order in the case has not been drawn up”

 

(That was an interesting argument in this case, but one which could wreak havoc in care proceedings generally if the judgment given in any fact finding was still ‘up for grabs’ at any stage thereafter until final disposal of the case, and I’m slightly surprised that the Local Authority wanted to set that particular hare running, given that the Re T point was already made about the legality of the Judge being able to change her judgment at any point before the order was drawn up (i.e sealed)  )

 

 

Thankfully for me, Lord Justice Thorpe determined:-

 

  1. It is important that we should not diminish the general importance of finality that judgment brings to human disputes. Judges appreciate that their findings as to disputed past fact and as to credibility are enduring and they are very conscious of the consequential burden and responsibility. The responsibility is magnified by the knowledge that once they have pronounced there is no opportunity for reconsideration or review.
  1. This principle is of particular importance in child protection litigation. This case well illustrates the havoc, the damage to the child and the family and the difficulties for the social work team caused by the judge’s departure from principal.
  1. Reverting to the question identified in paragraph 37 above, I do not draw from paragraph 21 of Munby J’s judgment, the conclusion that in the case of split hearings the principle articulated by Arden LJ and Rix LJ in Re T licenses a judge generally to amend his judgment as to past fact at any time before he has pronounced his judgment as to the future.
  1. In my opinion the purpose and objective of each of the preliminary hearings as to past events, and the welfare hearing to settle the future, are fundamentally different. The purpose and objective of the first trial would be jeopardised or lost if the judge at the second were free to re-write the history of past events

 

 

 

On the central issue of whether the Judge was entitled to change her judgment, Lord Justice Thorpe decided the following :-

 

  1. Furthermore, these skeletons reveal a tension between two lines of authority: the first establishing the principle that a judge is free to change the judgment until the resulting order is sealed (see Stewart v Engel [2000] 3 All ER 518), the second, that when an oral judgment is given, the winner is entitled to rely on its validity, only to be upset in most exceptional circumstances (in Re Barrell Enterprises [1973] 1WLR 19).
  1. I do not believe it necessary to consider these and other relevant authorities cited further, given the extraordinary facts of this case. I need only emphasise the clarity of conclusion announced on 15th December, the general assumption that the resulting order had been perfected in mid January, the general implementation of the judge’s conclusion, her adherence to that conclusion at the hearing on the 23rd January, the absence of any change of circumstance and the general slackness that left the December order unsealed until 28th February.
  1. Despite all the difficulties that were laid out in the supplemental skeletons I unhesitatingly conclude that the judge was bound to adhere to the conclusion of her December judgment and that her obligation to particularise it further did not permit her to enter a fresh and contrary conclusion. The result was not, as is submitted, merely to add back the mother: it was seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator. The effect of the judge’s shift is to remove the simplicity of a sole parent perpetrator. However the mother was not a placement option. That remains between father and maternal grandparents. Whether the father is viewed as a possible or a proven perpetrator there is still a risk to be assessed.

 

And effectively rejected the Re T argument that the Judge could change her judgment up until the order is perfected, saying in essence:-

 

If a judgment seems to be incomplete or deficient, counsel has the obligation to invite the judge to expand or supplement rather than to rely on the deficiency as grounds for an application for permission to appeal. But that practice allows the judge only to expand findings or reasons in further support of his stated conclusions. It certainly does not permit a judge to reverse a previously stated conclusion.

 

And thus that Re T effectively allows a Judge to refine, polish and improve a judgment, to perfect it and to take on board issues raised by the parties, but NOT to reverse it.  

 

 

 (That leads to an interesting tension with some recent Court of Appeal authorities suggesting that with a deficient finding of fact judgment, counsel should furnish the Judge with a list of areas that need to be addressed and a judgment perfected, because it implies that whilst the Judge can bolster the judgment against appeal, he or she can’t actually be swayed by those identified deficiencies to the point of changing their decision)

 

 

The second Judge, Lord Justice Rimer, took a contrary view, that having come to a fundamentally different conclusion, the Judge HAD to amend her judgment and be allowed to do so, otherwise how could she sensibly follow her judicial oath? Having determined that father was NOT the sole perpetrator, but a Lancashire one, and the case potentially progressing in a way that would conclude with him seeking to care for the child, it must be wrong for the Judge to HAVE to proceed on the basis of findings she had no confidence in.

 

One set all.   Sir Stephen Sedley to serve for the championship.

 

Sir Stephen Sedley is obviously not a great believer in preserving tension, because he makes it plain in his opening paragraphs where his judgment is going :-

 

  1.  The history of these proceedings has been fully set out in the other two judgments. I can therefore go directly to the issue: did Judge Penna have power to substitute her second judgment for her first?
  1. In my judgment she did not. I reach this view on both procedural and substantive grounds.

 

74. It seems to me to be of little or no consequence that the order recording the first judgment had not yet been sealed in the court office at the date of the second judgment; or that a final order in the case still remains to be made and sealed. Justice cannot depend on the functioning of an overworked and underfunded court office. Although the sealing of an order gives visible finality to a court’s decision, it is the delivery of judgment which constitutes the decision. The drawing up of the consequent order is not unimportant (and before the days of mechanical recording and word processing was often critical), but it is not what gives finality to a judgment. Nor can “deeming” a perfected judgment to have been handed down on the day of its distribution (as was purportedly done here) somehow postpone its finality.

 

 

And then gives this lovely quote, which I fully intend to steal and use at the earliest opportunity.

 

“Finality is a good thing,” said Lord Atkin in Ras Behari Lal v King-Emperor (1933) 60 IA 354, 361, “but justice is a better.”

 

 

 

 

 

And this is the paragraph which seems to settle things :-

 

Between 15 December 2011 and 15 February 2012, when she reversed her own decision, nothing had changed except the judge’s mind. I do not mean this dismissively. There can be few judges who have not worried about their more difficult decisions and sometimes have come to think that there was a better and different answer. But this by itself is not an objective reason why their original judgment should not have been right. Hence the need for some exceptional circumstance – something more than a change in the judge’s mind – to justify reversal of a judgment

 

 

 

It is always harder teasing out the principles from an Appeal case when the second and third judgments are not  “I agree” and particularly where one is a dissenting judgment, but I think the following :-

 

 

  1. In a fact finding hearing, a judgment is made when the Judge indicates the decision and NOT when the order is sealed.  And certainly it doesn’t hang over until the final order is being made.

 

  1. The detail of a judgment may be perfected and refined and a Judge is entitled to take supplementary requests for additions and clarifications into account.

 

  1. That refining process (post announcement of decision and pre perfected judgment being produced) can not produce a reversal of the DECISION or fundamental change of direction unless there are exceptional circumstances  (and those have to be more than the Judge’s mind having been changed)

 

 

Where the story goes next is harder to tell. The Court dealing with the welfare hearing have to proceed on the basis that father is identified as the sole perpetrator, even though the Judge who made that finding no longer believes it to be the case.  If it is the same Judge, how can her decision at analysis of ‘risk of harm’ and ‘ability of the parents’  limbs of the welfare checklist truly proceed on the basis of the father having caused the injuries, rather than merely paying lip-service to that being the position in law?

 

If that were to be the tipping point that prevented father caring for the child  (i.e all things being equal, if there was a Lancashire finding, the child would be in his care but not as a sole perpetrator) how can justice really be done?

 

I think that this decision is right in law, and from a moral standpoint, it is right for mother  (it can’t be right that a Judge hearing the case in December takes her out of the equation and then puts her back in two months later)  but wrong for father  (because the Judge no longer has confidence in the finding she made naming him as sole perpetrator)

 

 

See everyone, law CAN be interesting.

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I saw mummy kissing santa claus

Posted on July 18, 2012 by suesspiciousminds

 

An imaginary judgment, dealing with what happens when a key piece of evidence is found from an unwelcome source

 

 

This matter comes before me as an Appeal from a decision of the Family Proceedings Court to make Care Orders and Placement Orders in respect of three young children, who in time honoured fashion, I will label A, B, and C. The eldest is just four, the youngest is six months old, born within these proceedings. The mother of all three children is Miss X. The father of the older two children has played no part in these proceedings. The father of the youngest child is Mr Y.

 

The facts of the case before the Court were relatively straightforward and sadly not uncommon in the cases involving public law applications for children which are being heard throughout the land. The mother of the children was proceeding very well with her care of A and B until she formed a relationship with Mr Y.  Mr Y, although he seemed attractive, kind and attentive, had an unfortunate background, involving convictions for very serious sexual offences against children, he having only just been released from prison.  Understandably, the Local Authority concerned, once they became aware of Mr Y’s background and involvement with the family sought to provide mother with certain advice about the merits of this relationship continuing. Expert evidence was before the Court, and was unchallenged, that Mr Y’s history, psychological make-up and lack of empathy, insight and remorse for his proven past crimes meant that he was unsafe to be around children and that any timescales for treatment were well outside of the children’s timescales and the prognosis in any event was poor.

 

The mother and Mr Y separated, but of course, baby C had been conceived by then.

 

As often occurs in these cases, concerns arose as to whether the separation was genuine, or whether it was, in effect a placatory public gesture to satisfy professionals whilst clandestinely it continued apace. Allegations of this, together with such corroborating evidence as the Local Authority were able to assemble was placed before the Family Proceedings Court and tested appropriately in evidence.

 

Thus far, there is nothing exceptional about the case, and this Court would be exceedingly reluctant to interfere with any findings made by the Family Proceedings Court about the factual matrix of the case or whether the relationship was, or was not continuing.

 

The unusual facet of the case, and the impetus behind this appeal, is that after the parents had given their evidence, but before the Guardian had given hers, the case concluded for the day, with the intention being to reassemble the next day.  One of the three Magistrates who had been hearing the case,  left the Court building and happened upon two adults locked in what can best be described as passionate and tender embrace. It was with some understandable embassment and chagrin that this Magistrate came to the opinion that these adults were Mr Y and Miss X, and that far from having been completely separated and with no intention to spend any time together, as had been their sworn evidence, there was a passion and intensity about the embrace that called that into question.

 

The next morning, the Magistrate concerned, who I will label Miss J, immediately notified the Legal Advisor of this. In that consultation, they resolved that Miss J should not discuss this in any way with the other two magistrates and that the issue should be put to the parties in order that representations could be made about the way forward. The Legal Advisor suggested to Miss J, who took this advice, that she could no longer sit as a Magistrate in resolving this particular case as she was now potentially a witness of fact.  Miss J prepared a short document setting out what she had observed.  It was very plain that Miss J was advised not to discuss the issue with the other Magistrates, and that no discussion of the issue other than the formal representations (and if necessary, evidence) given in Court should take place, to do ones utmost to preserve the integrity and impartiality of the other Magistrates.

 

If I may say so, I think that the Legal Advisor in this case acted very sagely in the most exceptional of circumstances. It is difficult to see what more she could have done.

 

When the document that Miss J had prepared was circulated to the parties, two camps effectively formed. As one might expect,  the mother and father sought an adjournment of the case with there to be a re-hearing at which Miss J could give evidence before a completely fresh bench, untainted by any association with Miss J.  The Local Authority and Guardian pointed out that the case could proceed with two magistrates and that Miss J could give evidence, which would be assessed by the bench with the same impartiality and scrutiny as any other witness and the parents recalled, adding that any other bench that could be assembled in due course to hear the case would be as likely as these two Magistrates to have sat with Miss J as some time or another, it being the nature of the Family Proceedings Court that rather than a fixed block of three Magistrates always working together, there is more of a ‘mix and match’ approach.   The decision was taken to continue, and the parents representatives quite properly registered their disquiet about the unusual situation and that they reserved the right to seek an appeal of any final adjudication, not least because of the wider public interest issues that the case had thrown up.

 

In relation to the way the Court approached the evidence of Miss J, I can find no fault with that.  A proof of evidence was available to the parties and all had seen it in advance of her giving evidence. It was made plain that she was giving her evidence as a member of the public who had witnessed something (she having left the curtilage of the Court, she was no longer effectively Miss J, Magistrate, at the time, but Miss J, person).  The Legal Advisor ensured that a Turnbull direction was given in Court before the evidence was heard.

I remind myself at this point that the Court of Appeal have previously given a decision in which it was made plain that Turnbull directions on the risks of misidentification of a person is not limited to criminal trials but applicable in a family case where there is eye witness evidence about a specific individual being alleged to do certain things. This particular Legal Advisor was familiar with that case. It is a shame that more people are not.   RE A (CHILDREN) sub nom EH v (1) X LONDON BOROUGH COUNCIL (2) AA (3) REA & RHA (BY THEIR GUARDIAN) (2010) [2010] 2 FLR 661

In all cases such as this, I consider that it is incumbent upon a judge to remind himself in judgment of the precise terms of the passages in R v Turnbull[1977] QB 224 in which Widgery CJ stated at 228:

First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear term the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special
reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a
material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them”. Finally, he should remind the jury of any specific weakness which has appeared in the identification evidence.
“Recognition may be more reliable then identification of a stranger but even then when the witness is purporting to recognise someone whom he knows,
the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. “

 

When the Family Proceedings Court, sitting as a bench of two, made their determination on this factual issue, they took considerable pains to analyse each and every point of the Turnbull principles in their determination. They made the finding that the evidence of Miss J was preferred, following that careful analysis to the evidence of Mr Y and Miss X, and that the couple on the day of their substantive evidence declaring effectively undying separation had been observed in the throes of considerable and lengthy passionate embrace. The Court made other findings about the relationship based on the allegations. I note, and it is of some significance, that two of the five allegations made by the Local Authority about occasions when the parents were suspected to be together were not made out because the Court felt that there was not sufficient evidence to be satisfied about them, and the Court did not make the mistake of conflating the likelihood of  (a), (b) and (c) having been true, just because they had found a significant (d) to be true.

 

In this appeal, no criticism is made of the way that the Magistrates drew up their reasons, nor that they took into account something that was irrelevant, or failed to give sufficient weight to something that was relevant. Clearly, with one eye on the likely appeal and the need in this case because of the circumstances to be rigorous, the Facts and Reasons are an exemplar of their kind.

 

Counsel for the appellant mother, makes effectively one point in this appeal and it is a compelling one. I am grateful that a ‘scattergun’ approach was not taken, but the issue confined to the one which is the crux of the case.  Does this decision satisfy the Sussex Justices case that justice must not only be done, it must be seen to be done.

 

Could the two Magistrates determining the case, no matter how much care and attention they gave the matter and no matter how hard they strove for neutrality and impartiality, really appropriately weigh and sift the evidence without giving a disproportionate weight to the fact that one witness of fact on a key disputed issue had previously been sitting by their side on the case as they heard live evidence?

 

Counsel for the appellant makes the strong case that if this were a criminal trial, and the witness of fact had been a member of the jury who perhaps overheard some material evidence being talked about by a defendant, the jury would be discharged and the case reheard.  The Joanne Frail case, where the juror had been in communication with the defendant on Facebook whilst the jury were still deliberating  was referred to

ATTORNEY GENERAL v (1) JOANNE FRAILL (2) JAMIE STEWART : R v KNOX (2011) [2011] EWHC 1629 (Admin)  as was the case where a juror had been flirting with a police officer giving evidence in the trial

R v (1) JOHN CORT (2) BRIAN FARRELL (2011) [2011] EWCA Crim 1597  and indeed the case where an officer of the Court involved in jury selection had been socialising with members of the jury

R v CHRISTOPHER JOHN BURCOMBE (2010) [2010] EWCA Crim 2818  and R v MICHAEL WILLIAM MCDONNELL (2010) [2010] EWCA Crim 2352 where the jury had searched for information about the defendants on the internet.

 

 

All of which chiefly made me very relieved that I no longer conduct criminal trials, as they seem to be a hot-bed of socialisation, fraternisation and social networking pitfalls, with the court and jury room being more akin to some form of speed-dating evening than the administration of justice.

 

I consider that it is right and proper to draw the distinction here between a juror who has set out to act inappropriately (whether through ignorance or sheer bloody-mindedness) and a Magistate who here happened to stumble into possession of material evidence which made her a witness. Had she endeavoured to follow Mr Y or Miss X and observe them, or visit their home to watch them, then I would be in no doubt whatsoever that her conduct would be reprehensible.  There is, in my judgment, a clear bright line when a person is sitting in a judicial capacity between hearing and testing the evidence that is presented in Court and endeavouring to find out more outside the Court. The latter is not acceptable. By way of illustration, it would be appropriate for a Judge to indicate to the parties that they seek to read a specific piece of research referred to in Dr Jinglebones report, but not to search on the internet for criticisms of Dr Jinglebones or photographs illustrating his vivid social life and partiality towards tequilla. There is a clear, bright line between hearing the evidence that is presented in court and making ones own enquiries, and a Magistrate or indeed Judge would step over that clear bright line at their own peril.

 

However, here it is different. Miss J had not desired or intended to gather evidence, rather it was a matter of happenstance  – in the altered words of Malvolio  “Some are born with evidence, some achieve evidence and some have evidence thrust upon them”.  She turned a corner and saw what she saw and could not unsee it.  Nor could she have ignored it. Nor could this information have rightly been set to one side or supressed. It was material evidence, and it was deeply unfortunate that it was Miss J who happened to fall upon it, rather than the social worker or the Guardian. It could have been worse – it could have been counsel for either of the parents, which certainly would have led to the need to a rehearing with fresh counsel.

 

The appellant makes the second point, arising from this, that even if there is no culpability, the impartiality of the Court is tainted inexorably by one of the tribunal giving evidence. They submit, wisely and correctly, that if this had been a County Court judge who had made the identification, mistaken or genuine, then it would have been impossible to continue the case, and that the parents should not be prejudiced by the mere happenstance that the Family Proceedings Court have three Magistrates allowing for an element of ‘redundancy’ whereby one can drop out and the hearing continue.

 

This is clearly a difficult case, and as the well known axiom has it  (though I have not found authority for it)  “hard cases make bad law”    – the closest authority I have identified arises here :-

 

R v National Insurance Comrs, Ex pp Hudson [1972] AC 944, 966, Lord Reid also observed,
at p 966: “It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think
that they act wrongly in so doing: they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one
can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that
overruling such a decision will promote and not impair the certainty of the law.”

 

I am certain that in this case, it was appropriate for the Court to consider the evidence of Miss J, that it was incumbent on them to consider the problems of eye witness identification evidence and give themselves a Turnbull direction, which they did. I am certain that Miss J could not play any part in the decision-making, being a witness of fact, and she did not. I am certain that had she discussed the case in any informal sense after becoming a material witness, the case should be reheard, and I am satisfied that this did not happen. I am satisfied that if Miss J had sought out this evidence deliberately, this would have indelibly tainted the entire bench and the case would need to be reheard, which she did not.  I am satisfied that the Court would have to give very careful and compelling reasons for accepting Miss J’s evidence to remove any lingering suggestion that her evidence was preferred because of her status, and I am satisfied that the Court did so.  I am completely satisfied that the Court were not biased, and that they did everything possible to remove any suggestion or impression of bias.

 

All things being equal, if one had a time machine and could revisit that hearing, I would myself have preferred a decision that the case be transferred to the County Court and for a circuit judge (who would be not associated with miss J) to hear all of the evidence and determine the case. But it is not, of course the role of the appeal court to substitute its own judgment for that of the Family Proceedings Court, but to analyse whether that decision was plainly wrong. It is my conclusion that a spectrum of possible decisions about the way forward existed for the Court – they decided to proceed with a raft of safeguards and in my determination they were not plainly wrong to do so.

 

Should a situation arise in the future where a Magistrate or Judge finds themselves in the unfortunate position of having to give evidence in the same case, however, I would not wish this case to be authority for any principle that they should not recuse themselves. With the benefit of hindsight, a recusal and rehearing would have been a better approach and more in keeping with the principles of R v Sussex Justices,  and one would hope that should this situation ever arise again, a rehearing with a fresh tribunal would be the outcome.

 

I therefore dismiss the appeal.

 

 

 

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An increasing probability gradually increasing to a certainty

Posted on July 14, 2012 by suesspiciousminds

 

A discussion of the judgment in A CITY COUNCIL v (1) M (2) F (3) C (BY HER CHILDREN’S GUARDIAN) (2012)  and how private law proceedings can go really badly wrong

 

I have for a long time held an informal belief that the longer a set of private law proceedings go on, the more inexorably they tend to progress towards the involvement of the State, in the form of social services.

 

This recent decision of the High Court deals with that very concept and is a sad case, and a salutory lesson to all of those who are involved in protracted private law proceedings. The first application was concluded in 2004, but as His Honour Judge Cleary   (who I have had the pleasure of appearing before, and who is the judge who very helpfully engineered the appeal on Re LA which led to the extinguishing of the widely-claimed concept that the “imminent risk of really serious harm” was the test for removal, for which I am if not eternally grateful it would certainly be a gratitude of some longevity) points out, that was not the end of the litigation.

 

13. Litigation was not concluded by that Judgement. To the contrary, that ruling was to be the first of, by my calculation, no less than seven Judgements of the court, delivered by the Recorder whom I have identified, two circuit Judges, a District Judge, and finally, the Court of Appeal. Judgements by His Honour Judge Bellamy were delivered on 16 July, 2006, 4 April 2008, and 11 September 2008. District Judge Jones, again at the A County Court, delivered his Judgement on 29 May 2009, and His Honour Judge Cardinal, on appeal from District Judge Jones, delivered Judgement on 5 November 2009. On 1 March 2010, Lord Justice Ward heard, and granted, an application for permission to appeal. That appeal came before a full Court of Appeal sometime later, on a date which, like the Judgement itself, is not before me. At irregular intervals throughout that depressing journey, which accompanied that which the child was, as she grew older, taking towards her teenage years, the court instructed the local authority to prepare reports pursuant to section 37 of the children act. Again, by my calculation, and including the report which was prepared in readiness for the hearing before Mr Recorder Scott, there have been no less than four such reports.

14.Each report, and each Judgement, recorded the turmoil being suffered by this little girl. The local authority commissioned reports by a number of experts, seeking to assess the child, but those endeavours were hindered by C herself, since the child presented with great reluctance to talk about her home life. What was becoming increasingly obvious, however, was that C’s emotional state was becoming increasingly fragile. I will return to the report of Dr Gillett in due course, but I remark at this stage that it seems to be generally accepted that the child had lost her primary attachment figure (that is, her mother) and had been unable to replace it with another.

 

It is a reflection of our familiarity with protracted private law disputes that the figure of seven judgments in a case is merely disappointing and somewhat unusual, rather than unfathomable.

 

The Judge went on to say very many kind things about both parents, both of whom clearly loved the child but that the battle over where the child should live, which began with their separation in 2002 had wreaked devastation on both their family life and the child herself; to the point where the expert evidence before the Court and the Court’s own conclusion was that the child now needed not just ‘good enough’ parenting but exceptional parenting.

 

58.Neither parent is capable of providing exceptional parenting of the kind so desperately needed by C. In the case of the mother, she did accept at the stand that she is in fact the carer for T. He, she insisted, is stable and, given the regular medication which he is taking, the need for her care is minimal. Yet on the final day of the hearing, the day following T coming to the stand, the mother reported that she had thought it wise to call the doctor to visit him, given that he was particularly stressed by his giving evidence the day before. It is perfectly plain that she either hides from or does not understand the likely impact of her vulnerable and confused daughter on the household and upon T. If the experience of some two hours in the witness box is enough to cause T to require medical attention, one can only imagine that he would experience similar and probably worse stress if, within the house, not receiving the exceptional parenting which is now required, C behaves as one can only imagine. Mother’s attention will of necessity be diverted from one or other of her charges. She appeared, under cross-examination, not have considered that likelihood. I am satisfied that that is an indication that the mother is unable to place her daughter’s needs before her own. In the case of the father, he accepts, no doubt with regret, that he cannot provide the exceptional parenting described by Dr Gillett.

 

The Judge was driven inexorably to the conclusion that the only appropriate order for this child was a Care Order and for her to be cared for in foster care.

 

Contact was a significant issue in the case, and there was a difference not only between that sought by the parents and that recommended by professionals, but also between the level that the child herself wanted and what others considered best for her. Bear in mind, that by this stage, the child is now 13 years old.

 

64.Contact, both past and future, was one of the two major issues before me (the other being section 91(14) ) and took up a significant part of the examination of all the witnesses. Dr Gillett is perfectly plain in her view. That C must be allowed to identify a placement where she is given unconditional love, support, and boundaries, and a nurture which he has missed, now, for some nine years, if not longer. This witness considers it is likely that the child was already showing signs of instability when she was a toddler, having experienced the mother’s distress even when she was being carried in her womb. It is entirely likely that the child will have detected that her mother’s attention was elsewhere and that she was experiencing significant distress and anxiety over the loss of her son (and the documents confirm that the mother was a leading campaigner and participant in attempts to have greater attention paid to the plight of abducted children and their parents).
65.When, at the age of five, she was removed quite abruptly from her mother’s care into that of her father, who was, in the event, ill-equipped to nurture her as a single parent, while fighting off the depredations of the mother, her ability to form an attachment with the primary caregiver suffered damage which escalated to the present day when, as we hear her almost beg the Guardian, as will be seen in his report, to reassure her that these proceedings are concluded by ‘a final final order’, the articulation of a desperate wish by a child who can hardly believe that such a thing exists.
66.The justification for this discussion is found in the evidence of Dr Gillett and indeed in the cross-examination of mother and by counsel for the Guardian.
67.C desperately needs a placement to be permanent and to be free of the conflict to which she has been exposed over the last nine years. She is ‘ over professionalised’, not, as mother complains, by the observation of contact but by the host of different clinicians, therapists and experts to whom she has been exposed over the last nine years, and by that I mean no less than three psychologists, a play therapist, the authors of the four section 37 reports, those of the core assessment, and no less than three successive children’s guardians.
68.There has to be a transition upon the making of this order, that being a transition into the permanence of long-term foster care. It has to be acknowledged by these parents that that is a transition which must not be accompanied by mixed messages. She must not be confused by substantial contact with either parent. She must not be diverted from the path of establishing a nurturing attachment to her caregiver. Dr Gillett considers that if she is to have the kind of contact that mother promotes, and if she senses that mother is embarking, again, on a wish to remove her into her care, she will withdraw from what appears, from the evidence which I have heard, to be a budding and loving relationship with her foster carer. I extract these crucial comments from her evidence: ‘The child is on the cusp of adolescence and her anxieties and concerns are such that she shouldn’t be presented with some sort of transitional plan… It is important that she be told that the Court has made a decision on contact and the cessation of proceedings – she needs a genuine understanding that this is now how it is going to be… If C identifies a desire by Mother to seek a rapid return that will undermine any attempt by C to invest … she would withdraw from any emerging connection with the foster carer – and [this] would likely be the last time she risks that engagement. The messages from the Court must be clear and unambiguous and supported by everyone… this is a long haul and C needs to know that it is worth the effort … There needs to be a noticeable difference – which is time associated – and stability.’

 

The Judge made the care orders, set a relatively low level of contact and made section 91(14) orders against both parents, seeking to insulate this child against any further litigation.

As I said at the outset, a desperately sad case. Had there not been so much conflict between the parents, or if the conflict could have been resolved with finality earlier, it appears that either of them would have been capable of caring for this child appropriately, but the conflict of the case became all-consuming.

There must be a better way of resolving even long-running and fraught cases than simply continuing them from one batch of litigation to another. It cannot be right that litigation about a child continues for over 8 years, nor that it takes ten years from the separation to finally resolve where the child lives. Some cases of course, take a long time for the evidence to be gathered and tested, and sometimes the issues are complex and difficult and take time, but it ought never to take eight years for a final resolution.  I commend this judgment as both an example of how a Court can finally grip a case and draw it to an end, and as a stark example of what can happen when a legitimate desire to have a Court resolve a dispute between parents as to residence and contact becomes conflict for its own sake and a fire that simply cannot be extinguished.

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Con-current bun-fight?

Posted on July 6, 2012 by suesspiciousminds

Apologies for dreadful punning title, bad even by the low standards I set myself.

A quick summary of the new Fostering for Adoption proposals.

 

As usual, with any government initiative, you can find dozens of links to the Minister announcing these brave new measures, and people commenting on whether they are any cop or not, but actually finding the damn thing takes an age.

 

So, here they are : –  http://media.education.gov.uk/assets/files/pdf/p/proposals%20for%20earlier%20placement%20of%20children%20with%20their%20potential%20adopters.pdf 

 

I must say, the first thing that struck me was that 50% of the babies taken into care ended up being adopted.  (I thought that figure was rather low, given the very very high test for removal of children, particularly babies, is these days; and I’d be interested to know whether of the remaining 50% how many went home to mum or dad and how many were placed with relatives) . I think the thing I was supposed to gasp at with this headline stat was that it took those who went on to be adopted 15 months to find a placement, but that wasn’t shocking at all.  If the average care case is taking 12-13 months to conclude at present, then it makes a degree of sense to me that those involving first time parents (where the information needs to be covered thoroughly, rather than just revisited) are almost certainly going to take longer.

 

So, concurrent planning – I couldn’t disagree with the principle that it is a good idea. The carer who takes on a baby in care proceedings does so with an open mind as to adopting the child if that ends up being the care plan for the child. It lets the bond develop, cuts down the drift, reduces the harm of moving placements. All jolly marvellous.

(Provided that the people putting themselves forward have no emotional feelings whatsoever and can release a child that they were hoping to adopt for over a year back to birth parents, and then move on to try to adopt the next one, oh and that they don’t work, so it is not a problem getting adoption leave to spend time with said baby, only to need to do it again with another one in a year. And who can cope with that first, second, or third attempt to adopt a child that doesn’t work out and keep coming back for another)

I think concurrent planning can certainly work, but if it is to work on a meaningful scale, then the barriers between fostering and adopting need to be broken down and I think that takes a lot of time.  There are undoubtedly some foster carers who are willing to adopt the right child (though that leaves you with the problem of bleeding out foster carers numbers) but I think there are very, very few adopters who are interested in fostering. The two things at present, tick very different boxes for people. One group are looking to help children for reasonably short periods of time and are emotionally and mentally prepared to let them go and take on another, and one are looking for someone to complete their family and to care for as a parent.

I don’t think concurrency doesn’t happen much at present because social workers are against it, or because parents feel it prejudges the outcome, but because there aren’t carers queuing up to do it. Maybe there will be in the future, as it becomes a genuine third option, rather than a genuine stark divide between those who foster and those who adopt.

 

Anyway, enough of my opinions, what are the conclusions of the report as to HOW we make concurrency work (taking it as read that because they are doing it, the thrust of the report is that more concurrency is a good thing)

We announced that we will change legislation to make it easier for prospective adopters to be approved as foster carers in appropriate cases, and these new draft regulations will be published for consultation in September. 

We therefore propose to introduce a new legal duty on local authorities to consider placing a child with carers who are likely to become their permanent carers, where the evidence available to the local authority clearly indicates that it is unlikely that he or she will be returning home

[I don’t want to ‘prejudge the outcome’ here, but that is EXACTLY the sort of criteria for going down the concurrency route that would ensure that parents solicitors fight against a concurrency placement in any case, because it involves a prejudgment that the case is likely to end in adoption. When are the LA supposed to make that decision? At the end of proceedings when the Court has determined it? Clearly not, as that’s what they try to do now. After the expert reports, but before the Court has heard the evidence? Or when the first ICO is made? I suspect the idea is the latter, but I can already hear the howls of outrage – how can you place this child in a concurrency placement, when the law states that you should do this when the LA have decided the child is unlikely to go home.  How can the social worker keep an open mind, when they’ve already decided the child is unlikely to go home?  This is exactly the sort of test  (poor prognosis) that destroyed concurrency in one Local Authority area that I know moderately well. Once you decide concurrency is for ‘hopeless cases’ no proper advocate for a parent can ever do anything but fight against their client being labelled as a hopeless case.  [So, far from encouraging and promoting concurrency, my initial view is that this strangles it at birth]

We will also fund Coram – the leading centre of practice in concurrent planning – to broaden their reach as a National Centre of Excellence in Adoption and Early Permanence. This will allow all local authorities and voluntary adoption agencies in England to access expertise in concurrent planning, and in the sorts of management practice that make for effective early permanence practice, including fostering by potential adopters.

Just so I’m not being purely curmudgeonly, I think that’s a good idea. Coram do bloody good work and are very experienced about this, and if anyone has valuable ideas and guidance to give, it will be them. (I note that there isn’t any figure on the funding)

The National Centre will give social workers and managers access to training and a set of tools to help them introduce concurrent planning and other early placement practice, working with the judiciary in their area. It will draw on the elements of effective practice already developed in a number of different local authorities and will give access to learning sets and collaboration to improve understanding of good practice. Working with local authorities and a range of national experts, the Centre will define and promote national standards approved by experts and will offer accreditation to local authorities and voluntary adoption agencies who sign up to its programme.

(A bit waffly, but still probably a good idea)

But wait, where is the stick? You can’t have a policy launch without a stick

Finally, we are proposing a small adjustment to the adoption scorecard to ensure it gives due credit to effective practice in early permanence by local authorities. Specifically, we will change the first scorecard indicator so that it measures the average time between a child becoming looked after and moving in with his or her eventual adopter, including in cases where he or she initially moves in on a foster care basis. This change will serve the additional purpose of removing some anomalies in the scorecard data that local authorities have raised with us.

 

Yes, we will achieve this through Adoption Scorecards. Because after all, scorecards and performance indicators have always solved every problem they’ve ever come into contact with. They’ve worked so well in education, and the NHS.  Cynicism aside, I think it is sensible to have the scorecards measure when the child WAS PLACED with prospective adopters, rather than when the adoption order was made, because that’s really what’s important for children who the Court have determined should be adopted, that they be placed.

 

I didn’t see much in this by way of encouraging and incentivising concurrency carers. It makes it easier for adopters to become foster carers, rather than the other way around. There isn’t anything that deals with the crippling financial gulf between being a foster carer (possibly even an agency one) on good, non-taxable reumneration, and moving to adoption where you’re broadly on your own in terms of financially supporting the child. Nor is there any suggestion of ‘concurrency leave’ to allow concurrent parents to get the masses of additional time off they would need.

 

As a concept, I like concurrency a great deal, but I think it would take a concerted four or five years to move to an entirely fresh and well resourced third strand of ‘non-family’ carers for children, to sit as a genuine option beside fostering and adoption.  But in the real world, I don’t know how this model encourages foster carers to give up their standard of living to adopt, or encourages adopters to put themselves through the emotional wringer / financial hardship of caring for a child that they have to hand back at the end of proceedings.

Having represented a lot of prospective adopters, the insecurity and fear of adoption proceedings that the child will be taken away from them and sent home is already overwhelming and massively stressful; and those are in cases where the Court has already ruled that adoption is the plan – that must multiply exponentially where the case is still all in the balance. 

 

I suspect in most cases where concurrency has worked, it has done so on the tacit assumption that ‘if you want to adopt a baby in our area, you’ll have to be a concurrency adopter’  and that people have played ball because they want a baby.

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If I had a photograph of you

Posted on July 3, 2012 by suesspiciousminds

An imaginary judgment   (is scanning documents in a court building illegal?)

The Court is today dealing with a matter of great trivia, which at the same time has a great deal of import for the legal community and for once not merely in the omphaloskepsis manner of mere curiousity in the law, but in the day to day practice of advocates who appear before the Court.

The facts of the case are simple. Miss Rose Record is a family law barrister, who appeared before me today in a relatively straightforward case. At the conclusion of the case, a manuscript set of directions was prepared, and Miss Record left the court room, entered the robing room and at the request of her counterparts, used an electronic device (known as an ipad) to electronically scan a copy of those directions, which could then be emailed to the other advocates. This allowed all of the advocates to have their own copy of the document without delay, or the expense to the public purse of them all traipsing down to the court office to request photocopies of the document.

And that would have been the end of the matter, were it not for these factors. Firstly, a legal issue arose as to the legality or otherwise of what Miss Record had done. Secondly, the advocates concerned disagreed about this issue. Thirdly, the remainder of my list had collapsed, and finally, when my clerk alerted me to the nature of the debate, my curiousity was piqued. For the benefit of the taxpayer, I shall declare at the outset that all of the advocates dealt with the matter pro bono, my list had collapsed and I took the day off as leave. Any public costs that have been incidentally incurred, I shall myself meet.

Why should the issue of scanning be potentially illegal at all? The answer lies in section 41 of the Criminal Justice Act 1925.

41 Prohibition on taking photographs, &c., in court.(1)No person shall—
(a)take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or
(b)publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;
and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding fifty pounds.
(2)For the purposes of this section—
(a)the expression “court” means any court of justice, including the court of a coroner:
(b)the expression “Judge” includes . . . F1, registrar, magistrate, justice and coroner:
(c)a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court–room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court–room or any such building or precincts as aforesaid.

We have had some lively debate in this Court about whether there is a distinction to be drawn between scanning and photography. For my part, I am drawn to the simple argument laid out in this manner. The first stage in the scanning process is for a photograph to be taken of a document, then that image is stored electronically in a format that can be communicated electronically to any number of users. Clearly, the first stage therefore involves photographing the document, and hence taking a photograph. The ipad device, I am quite satisfied, has a camera built into it, and the scanning takes place by way of this camera. If the camera lens of the ipad were covered, the scanning process would not work. Scanning requires, therefore, the taking of a photograph.

Even if I had not been so convinced, the case of R v Loveridge [2001] EWCA Crim 973 makes the matter plain, I think. In that case, the Court of Appeal were tackling a case in which the alleged perpetrators of a robbery had been identified by witnesses to that robbery being shown video footage surreptitiously filmed of the alleged perpetrators on a mobile telephone by a police officer. That filming had taken place at a magistrates court, though not in the court room itself. The Court of Appeal had to grapple with the issue of whether video footage constituted photography and decided the matter thus :-

Obviously when the Act was passed in 1925, video cameras were not in contemplation. However, we have no doubt that the section should be applied in a way which takes into account the modern developments in photography. Accordingly we have come to the conclusion that a filming which took place at the court contravened s41. The conduct was therefore unlawful

I can see no reason to deviate from this – scanning is a modern development in photography, and the act of scanning involves the taking of a photograph.

Next, we have the issue that the scanning took place in the robing room, rather than in the court room itself. I am quite satisfied that this is entirely dealt with by s41(2) (c) which makes it plain that the prohibition is not confined to the court room but covers the entire building in which the court is housed, together with its curtilage.

The final matter involves an analysis of the placement of the commas in section 41 – in essence, whether the prohibition is on taking any photograph, or whether what was intended to be prohibited was the photographing, sketching or portrait making of any person within the Court (including the building).  This was not the most gripping part of the case, commas are seldom fascinating. My conclusion is that the framing of the Act is such that photographing is grouped separately to the prohibition of sketching or portrait making of a person within the Court, and it is photography of any kind and any subject that is prohibited. We did digress at this point to the realisation that were someone able to bring in clay and other such materials, a model could be made of any person without being in breach of s41, or even a block of marble (though I have doubts about whether the requisite chisel would make it through security in this difficult times in which we now live)

That seemed, very much to be that. Scanning would fall foul of section 41 and thus be unlawful, no matter how useful or harmless it is. There is not a discretion within the Act for the Court to permit or direct photography, and the offence is a strict liability one. To be sure, the financial penalty itself is not significant, but for advocates who depend on having a blameless criminal record to practice, the risk (no matter how small) of prosecution is not one to be sniffed at.

That would have been that, had we not risen following submissions for a short comfort break. On our return, Miss Rose Record took the unorthodox step of asking to call a witness. This was unexpected to say the least. Nobody had anticipated that oral evidence would be heard in this test case, nor that it would be of any particular value. Nonetheless, I allowed it.  Even more unexpectedly, although the witness was an expert witness, he had not been commissioned, nor invited or requested to attend. Miss Record had happened upon him, quite by chance, hard at work in the court building.

He was a photocopier repair man.

He gave evidence before me, unchallenged, as to the nature of a photocopier, and broadly, how it worked. There is a camera within the device, which takes a photograph of the document, which is then duplicated.

We all instantly saw the point, and I am not ashamed to say that a small peal of applause broke out in the Court room and that it was led by me. There is no fundamental difference between scanning a document and photocopying it. Both are photographing it.  And if s41 is valid law, both are equally illegal if they take place in the Court. And Miss Record reminded me that this was not restricted to the court room itself, but to the entire building.Every time the “copy” button is pressed on a photocopying machine within the Court building, an offence is committed.

Any advocate, or member of the court staff (or even the judiciary, who have been known to press a button or two themselves, being not entirely helpless) is in breach of section 41 if they use a photocopier which is situated within the court building. The court could not carry out its basic functions if they were deprived of the use of a photocopier and the same would be true up and down the land. Nor could it be feasible for every advocate who has ever used a court photocopying machine, or every judge who has asked for a document to be copied, nor every employee of Her Majesty’s Court Service to be prosecuted for breach of section 41. This would manifestly and plainly intefere with the right to a fair trial of every user of the Court  (since they would have no advocate, no judge, no court staff, who could progress their case); and if all copying machines were removed from the Court, the delays and costs of having to go out of the building to get copies – particularly in the Royal Courts of Justice, would be immense.

Therefore, section 41 as currently drafted, simply must be incompatible with article 6 of the Human Rights Act and I would be driven (were this not a hypothetical case) to make such a declaration of incompatibility. Photographing a person would remain validly prohibited, but a restriction on using photography to make an image of a document simply cannot be legitimately prohibited without making criminals of us all.

(I really should just go to sleep – thank you to Lucy for raising the question in my mind, and the peculiar answer that came to me in the middle of the night)

Postscript  – whilst this seemed ridiculously trivial when I started, the additional concerns now arise :-

1. If photocopying in the court premises is an offence, how is it legitimate to charge for it, and how much revenue has been generated by the courts in doing this since 1925?

2. If filming in court is a breach of s25 (pace R v Loveridge) and there isn’t discretion for the judge to waive s41 (I haven’t found such discretion) then how is video-link evidence whereby the court is filmed so that the witness sitting elsewhere can see the judge and advocates not a breach of s41?

3. Are adopters who attend for an adoption ceremony, who routinely take photographs and are generally welcomed by the judiciary in doing so, inadvertently in breach of s41? If they are not, then the Judge must have power to waive s41, but there isn’t that power specified anywhere I can find.

4. The amendments to s41 proposed in the Crime and Courts Bill relate only to ‘recordings’  and don’t affect photography  (although s22 of the Crime and Courts Bill suggests that the draftsmen believe, perhaps mistakenly that the prohibition on photographs applies only to photographs of persons present at Court)

 

I’d suggest that an easy solution would be for s22 to be amended (given that it is going through a process of finessing and polishing in any event, may as well get it right now)  to make it plain that the prohibition in s41 is of photographing or filming persons attending Court UNLESS the Judge authorises such photography or filming.

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When is a duty not a duty ? (when it falls on CAFCASS, of course)

Posted on July 2, 2012 by suesspiciousminds

 

A brief analysis of the Court of Appeal decision in R & Others and CAFCASS 2012

 

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/853.html&query=cafcass&method=boolean

 

 

It may alarm and stagger you to learn that in some cases back in 2009, CAFCASS did not appoint a Guardian immediately to represent children in public law proceedings.  (It would probably alarm and stagger you still less to learn that this was also the case in some private law proceedings, and almost certainly still is)

 

 

There were four individual cases bundled together :-

 

R – care proceedings began 28th June 2009 and a Guardian was allocated by CAFCASS on 15th September 2009   (the risks were of physical harm, and he was in voluntary foster care at the outset of proceedings)

 

E – care proceedings began 22nd December 2009 – there was a finding of fact hearing relating to physical injuries alleged to have occurred when E was just an infant. There never seems to have been a Guardian appointed. This bit (a direct quote) is astonishing even to my jaded palate.

 

“Therefore, other than to inform E’s parents that he was the guardian he did not participate in the case at all. He forgot to inform the court that he was the allocated guardian.” 

 

 

In the words of the immortal P G Wodehouse , on reading that, I inspected my mind and found it to be boggled.

 

J – care proceedings began 30th October 2009  and a Guardian was appointed on 22nd March 2010  (3 weeks after a Letter Before Claim was sent by those representing the mother)

 

K – care proceedings began on 25th August 2009 – on 22nd March 2010 a Guardian was appointed. (Once again, 3 weeks after the Letter Before Claim was sent to CAFCASS)

 

 

 

The case really turns on whether CAFCASS’s duty to represent children and provide Guardians to represent children extends to a duty to do so in any one individual case, or whether it is more of an aspirational global mission statement which does not ensure that any individual child gets proper representation   (note, this sentence does not purport to be in any way neutral and is strictly the author’s rather than the words of any Judge either at first )

 

 

These passages from the Court of Appeal judgment (that of Lord Justice McFarlane) illustrate the sympathy that the Court had with the Claimants argument that appointment of a Guardian is pivotal to the progress of a care case and that doing so in the early stages  (when the issues are separation or not, the levels of interim contact and the shape and nature of assessments) is critical.

 

 

  1. I need absolutely no persuasion as to the essential merits of the complaint that lies behind the claims of each of the four children before this court or of the plea that is now made so forcefully and eloquently on their behalf. Whether one uses the words of the Inquiries that argued for the introduction of the guardian’s role, or the words of the Family Justice Review and the government’s response to it, or those of Charles J and the Divisional Court, the immense importance of the role of a children’s guardian both to the operation of the statutory scheme for protecting children from significant harm and to the quality of outcome for the individual child in each such case is hard to understate. Without, I hope, stretching the metaphor beyond its tolerance: in the tandem model it is the children’s guardian, rather than the child’s solicitor, who steers the course for the child’s representation in the proceedings. A guardian who is appointed promptly at the start of the proceedings can conduct an initial investigation of the circumstances, offer a preliminary analysis of the issues and, crucially, assist the court in crafting the case management directions which will, to a large extent, determine the course and timetable of the litigation.
  1. The great value to the child, the other parties and to the court of appointing a children’s guardian very promptly after the start of proceedings under CA 1989 Part IV has been readily accepted by both sides in this appeal and has, since April 2008, been a key expectation of the PLO (and now the FPR 2010, PD12A). Although  CAFCASS  has, understandably, carefully chosen the word ‘undesirable’ to describe the delay in appointment in the four appellants’ cases, Mr McCarthy has not in any manner sought to justify what occurred in positive terms. All are effectively agreed that the optimal outcome is for a children’s guardian to be appointed promptly in every public law child case. The points made about the importance of representation to any party, particularly one under a disability, are well made. The question raised in this appeal does not, however, concern the desirability of prompt or immediate appointment. The question for us is not one of desirability but one of statutory duty and it is whether  CAFCASS  has a statutory duty, owed to each individual child, to effect the prompt or immediate appointment of a children’s guardian in every such case.
  1. Despite the real sympathy that I have for the plea that lies behind the Appellant’s case, it is necessary to apply a legal, public law, analysis to the arguments raised and to the wording of the key statutory provisions. In doing so, where a choice of statutory construction arises, and a purposive interpretation is called for, I am plain that any purposive construction must point to the early or immediate appointment of a guardian.

 

 

 

But also highlight where this is going – in order to impose a duty on CAFCASS to appoint a Guardian in an individual case and do so promptly, the Court would have to find something within the statutes which creates such a duty in an individual case. If not, CAFCASS escape with the Jedi hand-wave of ‘we represent children in general, just not in this particular case, and at a time that suits us’

 

The Court did not find that such a statutory construction could be derived, and that the earlier decision of Mr Justice Charles in R v CAFCASS 2003

 

http://www.bailii.org/ew/cases/EWHC/Admin/2003/235.html  remained the correct expression of the law, that there was no duty on CAFCASS in any individual case to appoint a Guardian.

 

 

 

There was then an attempt to argue that the failure of CAFCASS to appoint a Guardian ‘immediately’ on the commencement of proceedings or on direction from the Court led to a breach of Human Rights, variously on articles 6 or 8.  This did not succeed either.

 

 

  1. It may well be that in one or more individual cases where there has been failure by  CAFCASS  to appoint a children’s guardian in a timely manner, or at all, it will be possible to conclude that there has been a breach of the Art 6 and/or Art 8 rights of the individual child before the court. Such a conclusion would, in my view, only be achievable after the completion of the trial process and after it had been evaluated as a whole so as to determine whether or not a violation of these Convention rights had taken place. We are not invited in respect of the four cases before the court to conclude that in any one of them there was an actual breach of Convention rights. It is of note that in none of the four cases did the trial court hold (or was, I suspect, invited to hold) that a breach of Arts 6 or 8 had occurred.
  1. To hold that, of itself, a failure to appoint a children’s guardian immediately upon being directed to do so amounts to a breach of Convention rights, would involve assuming that the judge, the other parties and, in particular, the solicitor for the child (who, we understand, is likely to have been appointed promptly) would have failed to act in a manner which, to some degree, accommodated the lack of guardian and protected the child’s rights. In proceedings under CA 1989, Part 4, the family court itself has a primary duty under the HRA 1998 to conduct its process in a manner which is compatible with the Convention. To hold, as Mr Geekie asks us to do, that a failure to appoint a guardian immediately is sufficient to establish that the proceedings as a whole are bound to be conducted in breach of Art 6 or 8 must involve the assumption that it will be beyond the capacity of the trial judge to ensure a fair trial in the absence of a guardian for any stages of the proceedings.
  1. The issues involved in public child care proceedings are often of the utmost importance to the parents, to the state and above all to the subject child. No one involved in these cases should be under any misapprehension that rights under ECHR Arts 6(1) and 8 will be ‘engaged’ at every stage of the process. There is a duty upon public bodies, of which  CAFCASS , the local authority and the court are three, to act at all times in a manner which is compatible with the convention (HRA 1998, s 6(1)). It is against that background that  CAFCASS  readily accepts the duty that Charles J found lay within s 12 of the 2000 Act to appoint a children’s guardian as soon as practicable after the request is made. Although not expressly argued before him, the ECHR arguments that we have heard support the conclusion to which Charles J arrived, just as they support the conclusion of the court below in the present case. It is, however, just not possible to hold that the Appellants’ human rights arguments support the conclusion for which Mr Geekie now argues which would involve holding that in every case a failure to appoint a guardian immediately upon request would inevitably amount to a breach of Convention rights. HRA 1998, s 3 will only give this court jurisdiction to read text into a provision where the provision is not otherwise compatible with the Convention rights. Nothing short of a finding on the level I have described would make it permissible for this court to ‘read in’ to s 12 of the 2000 Act a requirement for immediate appointment which, as Charles J has held, is not otherwise present.
  1. Even if, contrary to the foregoing, the effect of Arts. 6 and 8 were to require the immediate appointment of a guardian in every case, it would not justify the court adopting, pursuant to HRA 1998 s.3, a different interpretation of s.12 from that which otherwise be adopted in accordance with the normal principles of statutory construction under domestic law. That is because the CJCSA 2000 contains its own mechanism for the laying down of any appropriate time limits, by means of directions under paragraph 9 of schedule 2, and any requirement as to immediate appointment of a guardian could be imposed by such directions. Compatibility with the Convention could therefore be achieved within the terms of the Act without any need to adopt a different interpretation of s.12 in order to produce such a result. The fact that the statutory mechanism would call for action by the Lord Chancellor in making the relevant directions would not be a good reason for the court to adopt a different interpretation of s.12.
  1. Despite fully acknowledging the very real importance of achieving the appointment of a children’s guardian for a child who is the subject of care proceedings at an early stage in every case, I am entirely satisfied that the decisions of Charles J in R v  CAFCASS  and of the Divisional Court in the present case are sound and correctly describe the duty upon  CAFCASS  under CJCSA 2000, s 12.

 

 

The battle-weary amongst you may be saying, so what?  These cases were all 2009 and we know that CAFCASS were having huge problems now and that these are conquered.

 

I, however, am feeling uncomfortable that this case is a continuation of the green light for CAFCASS should workloads increase or staff numbers decrease in the future, to run what I’ve described in the past as a homeopathic Guardian service, where the active ingredient of a Guardian actually being involved in the case talking, reading, listening and observing becomes so dilute that there is barely any of it.  It imports the ability for CAFCASS to run a sort of ‘triage’ service where they determine which cases need a Guardian straight away, and which can potter along on their own until the work-load crisis ameliorates a little.

 

 

 

 

 

 

 

 

I also feel uncomfortable than in the last two months, the family Courts have decided that family Court judges have no sway, influence, or jurisdiction over :-

 

(a)  CAFCASS if they drag their heels appointing a Guardian, or

(b)  The Legal Services Commission if they decide they don’t want to pay the costs of an assessment or want to quibble over the bill to an extent where the proceedings are catastrophically delayed whilst that is resolved, and where it is apparently okay for them to tell the President of the Family Division that they don’t come to Court when they are ordered to and just ignore those orders.

 

And leaving the remedy for both being judicial review for Wednesbury unreasonable individual examples  (ignoring the difficulties in funding, proving, litigating and timely resolution of this, and that what is needed is general principles, not individual case resolution piece by piece, and that almost certainly the judicial review courts will quickly stamp on these sorts of cases because they are already swamped in ongoing JRs)

 

Although we haven’t had a case about whether the Court can make the Official Solicitor move more quickly in representing the most vulnerable in our society, I have little doubt that the outcome on that would be the same; we’re already inviting them in more and more courteous terms to do the job that they are charged with.

 

Whilst in the same broad period of time decided that their judicial muscles can be flexed in making LA’s pay the costs of intervenors who happen to triumph in their cases.

 

Is the LA now the only body who can be cheerfully pushed around by the Court? It begins to look that way.

 

And Justice Ryder’s recent speech on modernisation points that way too (my underlining)  :-

 

There is a place for independent social work and forensic experts to advise on discrete issues that are outside the skill and expertise of the court or to provide an overview of different professional elements in the most complex cases but regard must be had to why those who are already witnesses before the court have not provided the evidence that is necessary and who should pay for it when it is missing.

 

Who on earth could he mean? Are the Courts going to order CAFCASS to pay when a report needs to be commissioned because Guardians are no longer the independent active ‘Court’s eyes and ears on the ground’ that they used to be?   Or are they just going to make the LA pay for everything and blame it on poor quality social work reports? I wonder.

 

 

 

 

 

I suggest that the Government take half the money that is currently spent on psychologists and Independent Social Workers, and put the Guardian service back the way it was, with staff given caseloads and time to actually be the independent social work check and balance and voice of the child they were intended to be. The reason for the proliferation of experts is because we no longer allow Guardians to do the job they signed up to do and that very very many of them were extremely good at doing.

 

As a footnote on my snarky comments about mission statements, the best advice I ever read about them is to imagine that they say the opposite. If that becomes ridiculous then the mission statement is meaningless.  (i.e This Organisation wants to please its customers – the reverse is not something that would be true of any business, thus the mission statement is redundant nonsense. If nobody could possibly disagree with it, it isn’t meaningful. For example  “We’re against nuclear war” is meaningless, “We’re against nuclear power” is not – there’s a degree of choice and standpoint with the latter – you could agree or disagree, whereas really nobody is in favour of nuclear war)

 

 

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Definition of chutzpah

Posted on July 2, 2012 by suesspiciousminds

An analysis of the High Court decision in A, S and Others v Lancashire County Council 2012, and the human rights breaches identified therein.

I remember that Chutzpah was explained to me many years ago as being the quality that enables a person on trial for murdering both of his parents to plead in mitigation that he is an orphan. And this High Court decision is very much about orphans, or at least “statutory orphans”

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html

This is a category of children, who the Court initially decided should be adopted, but didn’t get adopted and end up being long term fostered, but with that significant change in care plan never having been ventilated in the Court.

There have been grumblings about this group of ‘statutory orphans’ for some time, but this is the first time that a Court has ruled that it is incumbent on both LAs and Independent Reviewing Officers to take these children out of ‘statutory orphanage’ and have the case back before the Court.

It emerges from litigation involving multiple children against Lancashire County Council. I do not pick on Lancashire in this analysis, save that they were unlucky enough to be the authority who ended up with this issue before the High Court.

It deals with the not entirely unusual, though sad, situation where a child having been made the subject of a Freeing Order (or now, a Placement Order) does not go on to have the adoptive placement that the Court felt was right for them, being found. This is not necessarily as a result of a lack of effort or desire or commitment.

It is the sad reality that all of the adoption scorecards and media rhetoric ignores – there are some children who need to have adoptive families found for them who simply won’t get that family. They are the wrong age, the wrong gender, the wrong ethnicity, or the damage that they have endured has simply been too much for any adoptive carer to countenance. Sometimes children with all of these ‘anchors’ weighing them down still manage to get an adoptive family – it is impossible to say what might strike a chord on a particular day with a particular set of adopters willing to take on a child when they see a range of details of possible children. Sometimes those children you thought impossible to place just find a set of carers who just fit. Sometimes, they don’t.

This case deals with the ones who don’t. Where the care plan of adoption can’t be delivered, and the child remains subject to a Freeing Order or Placement Order, they are in a peculiar sort of limbo, which this Judge describes as being a ‘statutory orphan’. The parents PR is circumscribed far more than it would be if the child were merely subject to a Care Order, and the primary body who exercise PR is the Adoption Agency, rather than the Local Authority. Now, for all practical purposes, the Adoption Agency and the LA are the same thing, but the demands on them where a child is subject to a Placement Order and where the child is merely subject to a Care Order are different, subtly so, but significantly so.

In this case, the Judge made the following declarations that the LA and the Independent Reviewing Officer had behaved in a way that breached the children and parents human rights.

[Some of these may be purely case-specific, but there are more important general principles, which I have put in italics]

1. Lancashire County Council has acted incompatibly with the rights of A and S, as guaranteed by Articles 8, 6 and 3 of the European Convention of Human Rights and Fundamental Freedoms 1950, in that it:

(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life. (Art. 8)

(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of: (a) The protection afforded to children under the Children Act 1989; (b) Contact with their mother and/or other members of their family; (c) Access to the Court and the procedural protection of a Guardian. (Arts. 6 & 8)

(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health (Arts. 3 and 8).

(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers. (Art. 8)

(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews. (Art 8.)

(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)

(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B. (Art. 6)

2. Mr H, the Independent Reviewing Officer for A and S, has acted incompatibly with the rights of A and S, as guaranteed by Articles 8 and 6 of the European Convention of Human Rights and Fundamental Freedoms 1950, in that he:

 (1) Failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8) (2) Failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews. (Art. 8) (3) Failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)

It must, as a result of this case, be at the very least arguable, that any child who is the subject of a Placement Order, but for whom the adoption agency have now ceased searching for an adoptive placement, has a potential claim for breach of human rights against the LA (if they don’t act to change their legal status and revoke the Placement Order, or at the very least, ensure that the practical differences that exist between a child subject to a Placement Order and Care Order in terms of LA obligations towards them disappear in this situation) and the IRO (if the IRO does not push the LA towards remedying the situation, or failing that, notify CAFCASS of the problem)

Now, it is important to note that whilst this Judge made it plain that children remaining on Freeing Orders should have that remedied, he did draw a distinction between Freeing Orders and Placement Orders and it is at least arguable that this judgment does not go so far as to say that a Local Authority or IRO is in breach of human rights by not applying to revoke Placement Orders where it is clear that the plan is no longer adoption. But the door is at the very least, ajar on that point for a future claim.

 

There are relatively few Freeing Order cases now  (since they stopped being made in 2002, and most of the children who were made subject to them will have been placed, or reached adulthood by now), but there are substantially more cases of children subject to Placement Orders who will never be placed.  I would not be surprised if the national total was somewhere between 1,000 and 2,000 such children.  Are revocation applications to be made on each?

 

And are each of those going to be swiftly resolved – with the parents and Guardian simply accepting that the Placement Order be revoked and the Care Order (made at the time, but simply ‘frozen’ whilst the Placement Order is in effect) revived? Or are some of them / most of them going to result in a root and branch review of placement, contact, the possibility of rehabilitation, fresh assessments etc?

Without saying too much, I suspect that most authorities will slavishly follow this judgment in exactly the same way as they slavishly follow the Supreme Court’s judgment about the provision of section 20 accommodation to teenagers. Or, as always, Shakespeare puts it best “A custom more honoured in the breach, than the observance”

*Cautious note – I in no way speak for my own or any LA here, this is just my own personal cynicism.

The IRO point is an interesting one, and I would be interested to know where (if orders for damages/costs orders are made) any costs arising from such a claim would be funded.

The Court have not yet dealt with that aspect at all, but I suspect some financial penalties will ensue. Is the IRO at any personal risk from this, or are any damages ordered against them falling on them as part of their profession and met by the LA? (This would be quite straightforward in relation to the social workers on the case, as the LA would have to fund the costs, but IROs occupy a peculiar position both being simultaneously inside and outside of the LA)

The Judge in this case helpfully recounts exactly why the IRO role was beefed up following the House of Lords (as it then was) politely thanking the Court of Appeal for their creativity in inventing ‘starred care plans’ but saying the legal equivalent of ‘it’s not you, it’s me’ and ending that ‘ill-starred’ relationship at an early stage.

I have spoken before on this blog about how rarely the IRO provision to legally whistle-blow to CAFCASS about failure of a Local Authority to implement a care plan is used, and how the power for CAFCASS to actually make an application to Court in that event has never been used. (If you want to know the numbers – 8 total referrals to CAFCASS, 0 total applications arising from them)

CAFCASS weren’t dragged into this one, but I can’t see why, in a theoretical situation where the LA hadn’t revoked, the IRO had made the referral and CAFCASS had not made an application, that CAFCASS would not be added to the list of breaches.

(Of course, Parliament could have addressed this all very simply by ensuring that a Placement Order had a “Mission Impossible” clause, where it would self-destruct after two years – unless an adoption application had been placed before a Court and not yet resolved.)

 

 I don’t think that the Judge was asked to address whether the law itself was incompatible with Human Rights, and I think it would not be, because there is provision for the LA to make an application to revoke; but the law could easily have placed on the LA a duty to make such an application to revoke where the plan is no longer adoption and the order no longer appropriate – which is effectively the position now following this case)

I suspect the attitude of LA’s and the volume of revocation of Placement Order applications will be informed once the level of costs and damages Lancashire endured are known and more to the point, whether the principles in this case are confined to Freeing Orders or have that broader construction.

 (And if I were a journalist, an FOIA request to HMCS for the numbers of revocation applications over say the last 3 years and the next 18 months would be interesting – if it isn’t spiking considerably, then statutory orphans are still in the position that the High Court felt was wholly unacceptable and causing them irreparable harm)

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Aunts aren’t gentlemen

Posted on June 20, 2012 by suesspiciousminds

 

New High Court decision ordering the LA to pay 50% of the aunt’s costs in care proceedings.  Beware, or be happy (depending on whether you’re representing a Local Authority, or a relative putting themselves forward as a carer)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1637.html

 

The case was decided by Justice Peter Jackson, who I have had the fortune of observing in a very difficult case and have a very high regard for.

 

The very bald facts are that the child’s parents were deemed to present a very high level of risk. An aunt came forward to care for the child. The LA and Guardian considered that it would be too dangerous for the child, because of the risks from the parents, to live with any family member (and thus that whatever positive qualities the aunt may have had as a carer were outweighed by that) . The Court felt otherwise and an arrangement was struck whereby the Court effectively sanctioned the placement (in line with Mr Justice Munby – as he then was, decision in Cardiff) under an Interim Care Order.

 

The aunt was represented, but being ineligible for public funding, her representatives did the work pro-bono. Their costs amounted to just under £23,000.  There was to be a five day trial, but it concluded much quicker than that, and the Judge recognised the valuable role in that that had been played by the aunt being represented, rather than a litigant in person. The LA had offered an ex gratia payment of £2,000 to the aunt to assist with her costs.

 

This hearing was then to deal with the issue of whether the Court should make a costs order against the LA, as the aunt had effectively secured what she wanted at the hearing and her solicitors had not been recompensed.

 

The LA manfully attempted to resist this, on the basis that the authorities are fairly plain that making costs orders in family cases is exceptional rather than the norm that it would be in say a civil case, and that making a cost order should essentially be reserved for the ‘wasted costs’ scenario, where the costs have been incurred as a result of bungling, ineptitude or bad faith of some kind. Had the aunt been funded through the LSC, there would have been no question of the Court making an order for costs against the LA, and this was arising purely as a result of the State (in the form of the LSC) having a cut-off point above which the aunt fell.

 

Essentially, that there are two situations in which the Court can make costs orders in family cases :-

    1. It is unusual to order costs in children cases. This proposition was stated by Butler-Sloss LJ in Gojkovic v Gojkovic (No 2) [1992] Fam 40 at p 57C, and by Wilson J in Sutton London Borough Council v Davis [1994] 2 FLR 569. In fact, the proposition applied in neither case, the first being a financial case and the second concerning the registration of a child-minder, but the unusual nature of costs orders is well-known to those practising in public or private law children proceedings.

 

    1. “The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party. Thus, even when a local authority’s application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties.” (Sutton). Wilson J is there referring to the corrosive effect of an order for costs as between family members in private law proceedings, a consideration that does not apply in care proceedings.

 

    1. There are established exceptions to the general proposition. The first, as stated in Sutton is that “the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable.” A recent example of an order being made against a local authority that had failed in its duty of disclosure is Kent County Council v A Mother, F and X, Y and Z (IR Intervener) (Costs in Care Proceedings) [2011] EWHC 1267 (Fam) [2011] 2 FLR 1088 (Fam), a decision in which Baker J emphasised the exceptional nature of such orders.

 

    1. The second exception is where the costs are referable to a distinct issue that has been decided in favour of one party, such as at a fact-finding hearing. Instances are Re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350, [2010] 1 FLR 1893 and Kent County Council v A Mother (above).

 

  1. A further instance of this kind is Re T (A child) [2010] EWCA Civ 1585. Grandparents who did not qualify for public funding applied for their costs of a fact finding hearing at which they were exonerated. The Court of Appeal, reversing the judge, made an order that the local authority should pay their costs. It said that the judge should have started with “a clean sheet” and not with the general proposition in favour of no order as to costs. That local authority has obtained permission to appeal and the matter will be heard in the Supreme Court later this year. The local authority will argue that it was bound to have pursued the fact-finding as part of its child protection duties and that it was not criticised for its decision to do so.

 

Until this case, that was the position in terms of the authorities. However, Mr Justice Jackson reminded himself of the broad powers within the Family Procedure Rules 2010 and the need to ensure justice,

    1. I do not consider that the circumstances in which an order for costs may be made are limited to the two exceptions mentioned above. That would improperly hinder the court in its duty to make an order that is just. Nor do the rules speak of such a limit: on the contrary, they require the court to take account of all the circumstances, and not just the conduct of the parties. Likewise, in Sutton, Wilson J specifically refers to unreasonable conduct as an example of circumstances in which the proposition will not apply.

 

  1. The present case has been a welfare inquiry into C’s future, and I therefore start from the proposition that there will normally be no order for costs. To succeed in her application, the aunt must demonstrate that there are unusual or exceptional circumstances that justify departure from that proposition

 

He then determined that there were such exceptional circumstances : –

 

    1. I find that this is an exceptional case that justifies an order requiring the local authority to contribute towards the aunt’s costs. The combination of the following unusual features, elaborated upon above, takes the case outside the norm:

 

      • The extreme history surrounding C’s placement with her aunt (#4-5)
      • The importance for C of the placement succeeding (#12)
      • The exceptional challenge faced by the aunt in caring for C (#20)
      • The need for the aunt to be a party (#21) and to have legal representation (#22)
      • The risk to the placement from the poor relationship between the aunt and social services (#23)
      • The stance of the local authority, leading to uncertainty about the outcome until a very late stage (#25)
      • The reduction in the length of the final hearing as a result of the aunt being represented (#24)
    1. In this case, departure from the usual outcome is warranted by the need for some degree of equality of arms between a state body and an unrepresented litigant who is of cardinal importance to the welfare of the child in question, and where the local authority has elected to put her to the test over a protracted period.

 

  1. Also, while costs do not follow the event, the court is entitled to have some regard to the trajectory of the proceedings. In November 2010, the local authority strongly opposed placement with the aunt: in May 2012, she was granted an adoption order. To note this outcome is not to be critical of the local authority but to recognise how much the aunt has achieved.

 

This is obviously an important authority (at least until such time as the Supreme Court address Re T, which I understand will be on 25th June 2012, and might dramatically alter matters) because it establishes that (a) the need for equality of arms can be a relevant factor in making a costs order and (b) that a cost order can be made without being unduly critical of the LA but in recognition of progress that the unfunded party has made.

 

(*My heading by the way, is a tribute to P G Wodehouse and not any attempt to besmirch the aunt in this case, who sounds like a jolly nice person, or aunts in general. They have, as a body of people, been traditionally very kind to me what with gift tokens and scottish pound notes at birthday times and such)

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The Boy under the stairs – an imaginary judgment

Posted on June 19, 2012 by suesspiciousminds

 

(Another one of my imaginary judgments – the facts may be familiar to some readers)

 

I am dealing with an application by X Local Authority for a Care Order in relation to a child who I shall name Harry, for the very good reason that this is not only his name, but that his first name is already well known to the public at large through the media interest in his case, he being “The Boy under the Stairs” of public notoriety.

 

His surname, and that of his carers, his aunt and uncle, are not known. I shall refer in this judgment to the aunt as P, the uncle as V, and their son, coincidentally the same age as Harry as D.

 

A reporting restriction order has been made, which will ensure that the surnames and any other identifying characteristics will not be published.

 

 

Harry is now fourteen years old. He had the most difficult start in life, his birth parents being murdered when he was literally a babe in arms. P, who is his maternal aunt, took him in and have cared for him since then.  I have heard and read evidence that this arrangement was certainly not entered into in good heart, nor even the sense of making the best of a fraught situation, but with a deal of truculence;  I heard V describe it as a “grudging arrangement” and that is sadly an accurate version of events.

 

Up until Harry was eleven years old, he had a relatively unremarkable life. His teachers noted that his clothes were not particularly kempt, that he was somewhat shy and quiet; it was noted that his cousin D (who attended the same school and lived in the same house as Harry) displayed a conspicuously higher standard of living and of money clearly being spent on D when it was not on Harry.  One school teacher produced a essay written by Harry entitled “What I did in the summer holidays” which described Harry living in a cupboard under the stairs and eating his meals in that cupboard whilst his aunt, uncle and D enjoyed a fine time in the family home without him. This was put down to a vivid imagination, and dismissed as fiction. We now of course, know this not to be the case. No blame can be attributed to his school teacher – I had the clear sense in hearing her evidence that this teacher who was a good, caring, kind and professional person has reproached herself more or less constantly since “The Boy under the Stairs” case broke, and whilst this may be of scant consolation to her my own conclusion is that she has no need to do so, and that any objective person in the same situation would have reached the same conclusion as she did.

 

 

I turn now to the findings of harm that I am invited to make. This has been a rather unorthodox hearing, since P and V were not seeking to care for Harry or seeking his return to their care, in fact they were adamant that he should remain in care and have no contact with them, but instead devoted all of their efforts into ensuring that the criticisms made of their care of Harry did not result in any consequences for their care of D.

 

I was invited at the outset of this case by those representing P and V to find that the threshold criteria was made out on the basis that Harry was beyond parental control, and not to make any of the other findings sought by the Local Authority.

 

I manifestly reject that invitation, which was certainly a bold submission.  The matters contained within the threshold are significant allegations and it would be of considerable assistance in the long-term care of Harry to establish which allegations are proven and which are not; they are of such consequence to Harry that it is appropriate in my view, for the Court to go beyond the concessions given by P and V (which effectively seek to place the blame for all matters upon the child himself).

 

In broad terms, the findings sought by the Local Authority were :-

 

  1. That from the age of 11, Harry has not attended school at all. He is now 14.
  2. That this lack of education has resulted in a boy who was bright and capable (even though he was never a high-flyer, he was certainly not dull) now having no grasp of basic matters that would be known to any child of his age.
  3. That he was made to live and  sleep in a cupboard under the stairs for his entire life with P and V until his removal. That the conditions of this accommodation were manifestly unsuitable, compounded by the fact that he shared this cramped, dark accommodation with an owl.
  4. That the scar on his head was the result of a non-accidental injury, perpetrated by either P or V.

 

I add, though this is not threshold per se, but an aggravating factor, that V had an extremely well-paid job and was perfectly in position to care for Harry and meet his needs, as can be seen by the high ‘standard of living’ enjoyed by D. It is an astonishing detail of the case, and one understandably embraced by the tabloid press, that whilst living in this cupboard under the stairs, Harry’s pockets were full of gold coins which could have afforded him a life of luxury if surrendered.

 

That gaping chasm in the quality of life enjoyed by D and the abject misery endured by Harry is said by the Local Authority to be an additional element of emotional harm. I shall turn to that aspect at a later stage.

 

The position of P and V  (though as indicated, they were clear from the outset that they had no desire to resume the care of Harry and described themselves as being “well shot of him”) in relation to these allegations was : –

 

 

  1. That Harry had been attending a private boarding school from the age of 11.
  2. That having arranged the private boarding school, they are not responsible for any gaps in Harry’s education as a result of paucity in the quality of the schooling he received.
  3. That Harry did live and sleep in a cupboard under the stairs, but only in the school holidays. The presence of the owl in said cupboard was Harry’s own choice.   [Parenthetically, I will add that in twenty years of sitting in the family courts, one gains a high threshold for what is surprising, but these two arguments in tandem were amongst the most surprising I have ever seen deployed, and one has to congratulate begrudgingly counsel for P and V for the chutzpah with which they made the most unpromising of arguments]
  4. The allegation that P and V caused the scar was strenuously denied, they stating that the scar had taken place on the same night that Harry’s parents were murdered and by the same assailant.

 

 

The private school


P and V were unable to provide the address of the alleged private school that Harry was attending, nor any school report, nor any correspondence, or any evidence from any teacher at this school. Their bank statements did not show any payment of private school fees. The private school they named is not known to the Department of Education, nor Ofsted, nor has frankly anyone ever heard of it. The fact that P and V could not even hazard a guess as to which county this school is in raises further doubt.

 

It would be fair for me to say that this was not the most difficult factual issue I have ever had to wrestle with. It is established beyond doubt that Harry did not attend any local school from the age of eleven, and the account of P and V that he attended a private school whose details they cannot provide, and who apparently provided this private education, including boarding , entirely free of charge, is utterly without merit.

 

I find that P and V did not send Harry to school for three years when he was in their care. Those three years are some of the most critical in his education, and emotional development and any proper parent (or relative acting in a parenting role) would have known that Harry should have been at school. Their lack of this most basic of parenting functions caused him significant harm.

 

The lack of education


Harry was assessed by a Child and Adolescent Psychiatrist, Miss Gale Terns, and the findings were astonishing.  His grasp of chemistry bore no relation to the science as practised since the Middle Ages and was closer to alchemy than genuine chemistry, biology restricted to non-existent plants, his understanding of the basic laws of physics was diametrically opposed to how they in fact operate,  he had no idea of history or geography other than that of fanciful creations of his own. Even on a less academic level, he had no idea of football, which is astonishing in a boy of his age, even a bookish one.  I have studied carefully Harry’s account of the sport he does claim to follow, and I am afraid that even making allowances for a young boy’s imagination and the psychological damage he has clearly sustained, this sport makes absolutely no sense.

 

He had devised his own intricate fantasy world, with its own rich internal rules and customs. Miss Terns concludes that this is by way of being a fugue state, the boy being so unhappy and living such a dreadful life that he had to fashion an escape from reality by creating something more appealing and satisfying. It is for that reason, that although he is fourteen, he is adjudged by the Court to not have capacity to instruct solicitors on his own behalf, and has been represented through his helpful Children’s Guardian.

His imagination is without doubt vivid, and the consistency of his own account (while utterly amazing) makes it easy to recognise that there is a keen if misdirected intelligence at work here. Had he been given mainstream education, there is much he could have achieved.

I agree with Miss Terns, the failure of P and V to provide Harry with mainstream education has been immensely damaging to him. The internal fantasies he created about having attended a school where wondrous things were taught as a substitute for having a genuine education means that there is much work ahead for those who are going to have to teach this young man genuine skills to be able to cope in the real world in which he will sadly have to live.  I am sure I speak for all of us that in glimpsing into the world Harry imagined himself living in, it sounds markedly more pleasant and entertaining than our own, and it is a harsh but necessary task to unpeel him from that one and bring him into ours.

The psychological damage that has been done to Harry through the poor quality care he has received at the hands of P and V is considerable, and the Court is grateful that Miss Terns has agreed to take on the long-standing reparative work that is required, and indeed for the Local Authority for funding such work.

 

The cupboard under the stairs


 

This was barely disputed. Given that the Court has already found that the account of P and V that Harry attended a private boarding school is a wild fantasy, their account that he only lived and slept in the cupboard under the stairs during the school holiday is rejected. The fact that they admitted that much is considerably damning.

 

The Court has seen the photographs of this small, dingy and cramped space in which a growing adolescent spent his days and nights. I  have heard from the neighbours that for months on end they never saw Harry, and that he was not even having the benefit of attending school or even seeing the light of day for long periods – weeks and months, rather than  minutes or hours.

 

I am satisfied that P and V provided Harry with accommodation and a standard of basic care which would have been woefully inadequate had they been living in an Elizabethan slum, let alone in a suburban home that many middle-class parents might aspire to live in. He was made by them to live and sleep in a cupboard under the stairs for his entire life. This is utterly unacceptable, and caused him significant harm. These were not parents of meagre means, doing the best that they could but that best not being enough. It is woefully apparent, from the lavish care and attention and material provision for D, that P  and V were more than capable of providing a child with much better than good enough care, and they deliberately chose to treat their own biological child far, far better than they did Harry, who was their kin and deserved so much better. The other harm I have identified in this judgment is compounded by the fact that Harry was faced on a daily basis with D who was being loved, and indulged and even spoiled. That in itself must have been hurtful and harmful to him.

 

 

The miserable day to day existence for Harry in such an unsuitable physical accommodation  was compounded by an owl being kept in this wretched accommodation with him. The smell was reported by those who removed Harry to be unspeakable. It is hard to fathom, even for this jaded Court who are faced on a day to day basis of new, creative and barbaric ways to mistreat children and let them down, to imagine what was going through the mind of P and V when they brought this situation about.

 

I completely reject their attempt to mitigate this situation by claiming that the owl was a pet and that it was Harry’s own desire to share his accommodation with the owl.

 

The scar


The Court has had the benefit of paediatric evidence from Dr Malcolm Foy, who was clear that there was no likely accidental explanation for the lightening shaped scar on Harry’s head. He gave clear evidence that the injury had been caused non-accidentally – the mechanism was unclear, but the only conceivable one was that a hot object, in the shape of a lightening bolt had been pressed against Harry’s head. No parent or carer could do this by accident.

 

P and V had provided no explanation for an accident that had caused it.  They had been the carers for Harry for every day since the death of his parents. There had been no hospital admission or medical attention for any accidental injury to Harry.

Counsel for P and V have urged me to take into account the strenuous and vehement manner in which P and V denied this allegation, and compare this to the very serious allegation that they kept Harry under the stairs which they instantly admitted at least in part.  This is probably the best of a bad bunch of arguments that P and V have deployed during this hearing.

 

But it does not hold water, when one considers the alternative. Either this scar was caused by P and V, who have behaved disgracefully towards Harry for 14 years, or it was inflicted on him by his birth parents when he was a mere infant.

 

The Court must find, therefore either that Harry’s birth parents deliberately inflicted this injury on Harry BEFORE P and V began caring for him.  [I should add, for the benefit of the transcribers and those taking a careful note, that when I use the term “caring” in relation to what P and V provided for Harry, I am using inverted commas] ,  OR that P and/or V inflicted this injury on Harry after they began caring for him.

 

Given the findings that have already been made, I must consider that whether it is substantially more likely that P and V (who I have found to have systematically abused this young boy for 14 years in appalling ways) injured him or that his birth parents, about whom no criticisms or allegations have been made, caused the injury and scarring. This young man had the worst start in life imaginable, and has grown up with no memories of his parents. This Court is not going to leave him with any residual doubt that his parents might have deliberately harmed him. It is inconcievable to this Court that the injury was caused by anyone other than P or V, and the Court makes that finding, that the injury was caused deliberately by either P or V and neither can be excluded.

 

The threshold is crossed, overwhelmingly so.

The Court is grateful for the active role that Harry’s Guardian played within that enquiry,  Mr Thomas Riddle has been a stalwart Guardian throughout, ensuring that matters were properly ventilated. The Court entirely agree with his conclusions, and adopt his formuation that it is impossible that anyone other than P or V caused the scar to Harry’s forehead.

 

I have considered, following those findings, the Welfare Checklist. I have no doubt whatsoever that the appropriate order to be made in relation to Harry is a Care Order.  The Guardian’s suggestion, in combination with the expert, Miss Gale Terns, that Harry be cared for by the Imperius academy for damaged children, is an excellent one and I am pleased that the Local Authority saw fit to put that forward as the care plan. The Court endorse that care plan as being the best thing for Harry. He will attend a mainstream school, and there will be no more of his life wasted thinking about “Hogwarts”

 

The Local Authority will need to consider, in the light of this judgment, whether to seek an order in respect of D.  He has, as I have acknowledged, had a markedly different life to Harry, but I suspect that witnessing all of this mistreatment must have had some detrimental impact on him.  It is hoped that he and Harry will preserve some ongoing contact.

 

The Court once again thanks Mr Riddle, for his efforts in representing Harry, which have gone above and beyond. I am even told today that Mr Riddle has kindly arranged to take the owl with whom Harry shared so much of his life, and to provide the owl with a home. This shows how much Mr Riddle thinks about Harry and wants to take care of him.  Harry is very lucky to have had Mr Riddle take an interest in him.

 

 

 

 

 

 

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