Author Archives: suesspiciousminds

A County Council v M and F 2011

Posted on May 4, 2012 by suesspiciousminds

Although judgment was given in this case in 2011, following a finding of fact hearing in the summer of that year, the judgment has only recently been published. I would preface all of this by saying that the case, and this blog will deal with injuries to a young child which resulted in the child’s death, and it is quite likely that some readers might find this blog entry distressing and upsetting. I don’t want anyone to read this without having that in mind.

I am likely to want to return to this and blog on it in more detail, as the judgment is significant, and very detailed. Mr Justice Mostyn conducted the finding of fact hearing, and the structure and methodology with which the Judge deals with the judgment is exceptional. It would be worth reading in its entireity

http://www.bailii.org/ew/cases/EWHC/Fam/2011/1804.html

Much like the recent case involving subdural haematomas, which I have already blogged about, this case involved the Court being asked to make a binary choice about whether a child in question was killed by his parents, or whether there was an accidental/organic explanation. It is the most serious type of finding of fact hearing which can ever occur. The parents have either suffered the tragic loss of a child through organic reasons, or perhaps by an action which they could not have suspected would lead to harm and are safe around other children, or they have killed a child and concealed this and lied about it throughout a family court finding of fact exercise. There is either no risk at all, or a very high risk.

As indicated earlier, I think any reader who has an interest in finding of fact cases should read the entire judgment, as the entire thought processes, the analysis of the medical and other evidence and the law as it relates to each discrete point is mapped out with extreme care and skill by the Judge (notwithstanding that my gut reaction is one of some disquiet)

The child in question suffered injuries and died during attempts to resuscitate him. The parents explanation was that the father, a cyclist, had a small trailer or bike buggy which went behind his bicycle, which the child would sit in, and that whilst riding the bicycle at speed,the child may have suffered injuries as a result of going over bumps in the road, bouncing over tree roots and stones. There obviously questions about whether any of the injuries to the child could have been sustained during the resuscitative process. (There is substantially more to the parental defence than this, and obviously if I could reduce the complexity of the case down to a page, it would not have taken 20 days of High Court time, nor required 13 bundles of evidence, so I apologise for the fact that this summary is by its nature not thorough)

Here are the injuries identified on the child :-

RECENT INJURIES

Of the Head Neck

1. On the right side of the occiput, there was a scabbed abrasion 1 mm in diameter.

2. On the right forehead, 45mm above the outer angle of the right eyebrow, there was a purple bruise 4mm in diameter.

3. A similar bruise was present approximately 45mm above the outer canthus of the left eyebrow.

4. There were two purple bruises on the outer aspect of the inferior margin of the left orbit measuring 5mm and 4mm.

5. There was scabbing of the posterior margin of the right nostril.

6. There was a recent tear of the frenulum of the upper lip which was associated with a little erythema but no significant haemorrhage.

7. There was a red mark 2mm in diameter posteriorily in the midline of the hard palate.

8. Within the upper helix of the right ear, there was a purple nodule 7mm in diameter which on sectioning showed a little haemorrhage.

9. There was a fluctuant swelling 25 x 20 x 7mm with overlying purple discoloration of the skin within the left upper pinna. Sectioning revealed an organising cystic haematoma containing some liquid blood.

10. There was a well circumscribed area of superficial haemorrhage in the middle lower left lip measuring 3 x 2mm in the midline.

Of the Right Upper Limb

11. There were two purple bruises on the ventral aspect of the lower right forearm just above the wrist measuring 3mm and 5 x 3mm.

12. There were scattered blue bruises up to 7mm over the dorsum of the right hand and over the back of the index, middle and ring fingers of the right hand

13. On the centre of the right palm and the palmar aspects of the index, middle and ring fingers, there were similar blue bruises up to 7mm in diameter.

14. There were scattered abrasions on the back of the index finger 3 x 2mm and overlying the proximal interphalangeal joint of the ring finger measuring up to 2mm.

15. There was a red/purple bruise over the metacarpophalangeal joint of the middle finger of the right hand measuring 10 x 5mm.

Of the Left Upper Limb

16. At the centre of the left palm, there were similar blue bruises up to 7mm in diameter with at the base of the index finger, there was a transverse apparently post-mortem skin split.

17. On the back of the left hand and on the back of the left index, middle and ring fingers, there were similar blue bruises up to 7mm.

18. Over the metacarpophalangeal joint of the middle finger, there were small scabbed abrasions.

19. Over the proximal interphalangeal joint of the ring finger, there was an abrasion up to 2mm in diameter.

20. An abrasion 2mm in diameter was present over the proximal phalanx of the index finger.

21. There was a red mark on the proximal phalanx of the index finger.

22. There were two purple/brown bruises on the medial aspect of the left forearm measuring 12 x 9mm and 13 x 9mm separated by 10mm. The bruises showed yellowing at the edges.

Of the Lower Limbs

23. Over the 5th metatarsal of the left foot on the dorsal aspect, there was a purple bruise 5mm in diameter.

There was a great deal of consideration about the medical evidence. It appears to me that the Judicial conclusion is that speaking from a purely medical perspective, the medics are in agreement that the injuries were non-accidental in nature.

[It is worth noting Justice Mostyn’s comments about the Guardian’s stance – I believe that similar reservations have recently been expressed by Lord Justice McFarlane, though I am still waiting to read the transcript on that authority. I could not agree more with what Justice Mostyn says here]

The argument on behalf of the guardian of D and S2

Ms D QC and Ms R represent the litigation guardian of D and S2, Ms S. In her written final submissions Ms D QC wrote:

“In this hearing the Children’s Guardian takes a neutral and objective position. It is not her role to argue for or against any of the other parties.

Ms S has had the benefit of hearing most although not all of the evidence throughout the hearing. She has had the benefit of the transcripts of the experts and medical witnesses provided. She was represented throughout. She has had the benefit of reading the documentary evidence filed and she has met with and had discussions with the parties. She has met the children. If the Court makes any findings against M or F the Children’s Guardian will be in a good position to consider and formulate her recommendations to the Court for the welfare of the children.

To that end the Children’s Guardian has considered the oral evidence heard, the written evidence submitted and the expert opinion received in the context of the LA’s Schedule of Findings.”

I was surprised to read that. Given that the outcome of this hearing could have a most far-reaching effect on her clients D and S2 I would have thought that I would be offered at least a steer as to what findings I should make. But no, I was firmly told that this is not the practice, and with my slender experience of this kind of work I am not in a position to argue. That said, approaching the matter with an open mind uncluttered by years of experience of this kind of work I would have thought that at the very least the role of the Guardian and those representing her should be akin to Counsel to a Statutory Inquiry, assisting the court in exploring complex scientific evidence and making suggestions to the court as to what findings should properly and tenably be made. The practice of sitting with an assessor has fallen into disuse (notwithstanding that the procedure for appointing an assessor has recently been reiterated in FPR 2010 r25.14), and thus the role of the representative of the Guardian in a case such as this cannot be overstated.

Having heard all of the evidence, the Judge sets out how he proposes to deal with the decision, and sets out this framework

Conclusions

The business of judging in this case is peculiarly difficult.

Yet, if I accept Mr S’s submission that there is little, if any, scope for me to gainsay the histological evidence, which must lead me inexorably to find that in the early hours of the morning these parents, acting together, meted out the most extreme sadistic violence to S which involved thrashing his little hands and punching him in the face with sufficient force to snap his fraenulum.

The same point is to be made in relation to the allegations in respect of S when the photograph at Exhibit 7 was taken. Standing alone all the allegations suffer from obvious evidential weaknesses, but when viewed through the prism of the histological evidence they present an altogether different image.

But I do not believe that I should judge the histological evidence in isolation. It is part of a wider canvas. This is a recurrent theme from the authorities. I must weigh it against my assessment of the credibility of M and F and the (im)probability, judged from a non-scientific stance, that this ghastly event actually took place. So as regards the components of the evidence the court is, up to a point, in a chicken and egg situation.

What I therefore propose to do is to make judicial observations on:

i) The credibility, character and personality of M and F.

ii) The use of generalised empirical statistical paediatric evidence.

iii) The use of photographic evidence.

iv) The reliability of ageing bruises by visual observation.

v) The reliability of the lay evidence from the neighbours.

vi) The histological evidence.

I shall then stand back and pull all the threads together and make my findings applying the law as I have set it out above.

Respectfully, this appears to me to be an entirely sensible and solid approach, taking into account all of the relevant matters and not taking into account anything that is not relevant.

What really appeared to trouble the Judge was that on the binary version of events, either the medics were right and these parents had inflicted horrific injuries on their child resulting in the child dying, and had concealed it and had faked a 999 call; or the medics were not right and that the injuries were caused in a way that could not be medically explained but was not a deliberate or violent act.

In judging the truthfulness of the parents as to the events of the night one has to reflect on the implausibility of what the LA seeks to prove. Although the LA did not explicitly challenge all the elements of the parents’ account as set out by me above, it should not be taken as accepting any of it, save where it is incontrovertible. Its case is that for the crucial period only M and F can say what actually happened, and they say that they should not be believed. However, stripped to its core elements the sequence that they posit is this:

i) At about 3 a.m. one of the parents inflicted extreme injury to S’s palms by repeatedly thrashing them in some way with some weapon. S was also punched in the face with such force that his fraenulum snapped. This would have caused S to suffer extreme pain, and he would have been screaming very loudly. The other parent, if not participating in this awful act, was present and complicit.

ii) D either heard all this, but never mentioned anything to anybody, or slept through the whole thing, even though her bedroom is next to S’s in a very compact area.

iii) None of the neighbours heard anything in this compact estate.

iv) At 7 a.m., as I have found, S died. Either one or both of the parents smothered him, or, by an extraordinary coincidence, he died a cot death.

v) At 8.50 a.m. M dialled 999 and seemingly in great distress told the emergency operator that her baby was dead in his cot.

Obviously, improbable things do happen, but this sequence of events seems very unlikely. It is against this unlikelihood that I have to judge the truthfulness or falsity of the parents’ denials.

[The one element in this that I find problematic, or potentially problematic, is that of course it is very unlikely that parents would do such a thing, but one has to take into account that it becomes less unlikely when faced with a child who HAS those injuries. As the House of Lords considered in Re H and R and Re B, it may well be inherently unlikely that a parent would abuse a child and the average parent would not, but the unlikeliness of it reduces if the Court is faced with a child who has been abused. I am as certain as anyone could be, however, that Justice Mostyn gave every facet of the case a great deal of care and attention, and it is likely that it is my reading here that is at fault]

His comments on the injuries to the palms show as much

The injuries to the palms, which are the most serious of all, and which can be regarded as a touchstone, are shrouded in mystery. The surface area of the palm of a seven month old infant is very small indeed. No-one, apart from Professor H has ever seen anything like these bruises. He has only seen them twice in people with bleeding disorders. Although Dr L posited that they might have been inflicted by a ruler or cane he admitted that their appearance did not really fit with that hypothesis. In argument I pressed Mr S to advance a likely mechanism but he just fell back on “repeated application of significant blunt force trauma” and declined to be drawn into specificity. So I am being asked to conclude that the parents inflicted with some mystery weapon, which no-one can visualise, repeated beatings on these tiny palms causing bruising the like of which none of these experts, Professor H aside, has ever seen before.

In summarising the medical evidence :-

This evidence leads the four experts to conclude, as confidently as they can, that, by reference to the telos of this science as set out by me at para 40 above:

i) All of these injuries were caused in life and not after death;

ii) The injuries to the ears and knuckle were caused about 3 days before death; and

iii) The injuries to the palms and fraenulum were caused about 4 – 12 hours before death (most likely around 4 hours).

In judging these powerful conclusions, at this stage without reference to the wider body of evidence I have sought to set out and comment on above, I would make the following general observations:

i) This science is forensically untested. The reason that I have not been given any medico-legal papers detailing the results of legal cases where responsibility for injuries has been found based on this science is because there have not been any, apparently anywhere.

ii) The science is based largely on research conducted on animals. There is almost no published scientific research in this field performed on humans, and none at all on babies. While it is said that the cellular and vascular features of all mammals are identical, this is mere assertion. I do not have any scientific evidence that tells me that neutrophil and macrophage migration is the same in mice, sheep, human adults and human infants.

iii) Biological science is not nearly as certain or predictable as the science of physics or the laws of mathematics. As Dr L accepted “we have biological systems and so therefore you cannot automatically assume that every one of us in this room will have exactly the same rate of accumulation of polymorphs at the site of inflammation – it doesn’t work that way, and there are other factors that may influence that”.

iv) Science is always moving on. Scientific certainties of a past age are often proved conclusively wrong by later generations. In an address to the British Association for the Advancement of Science in 1900 Lord Kelvin, one of the greatest of all scientists, stated that “there is nothing new to be discovered in physics now. All that remains is more and more precise measurement” and in a 1902 newspaper interview he predicted that “no balloon and no aeroplane will ever be practically successful.”^[5]. Thus the warning of the President in Re U, Re B at para 23(v) that “the judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark”.

And the final conclusions – I recommend reading these three or four times, to really let them soak in

My very final conclusions

I conclude:

i) Based on my survey of the lay and psychological evidence it is extremely improbable that these parents have ever deliberately inflicted injury on either of these children. It is, however, possible. I do not accept the neighbours’ evidence as to observations of marks or bruises save as to the marks seen by N2 to the backs of S’s hands on the week-end before he died.

ii) However, I believe that injuries to S, were caused by F recklessly taking both children out in the buggy in disregard of plain safety warnings. M would have been complicit in this, up to a point. There was nothing malign in this. It was just stupidity born of an over-enthusiastic and over-energetic immaturity on the part of F, and, up to a point, M. Obviously, it must never happen again, and I do not believe that it ever will.

iii) Based on my survey of the scientific evidence it is extremely improbable that an innocent explanation for S’s injuries is furnished by the eventuation of those things mentioned above. It is, however, possible.

iv) The paediatric evidence from Professor S does not alter my conclusion in (i) above. Nor does the photographic evidence. It is consistent with my conclusion in (ii). The forensic evidence of FS does not alter my primary conclusion. There are perfectly innocent explanations for blood on the sheet, bib and grow-bag. We know that S suffered from nose-bleeds, that he had an erupting tooth, and had bleeding feet.

v) Although the orthodox histological evidence is powerful I am not prepared to rely on it to displace my conclusion in (i) above for the reasons set out by me above. I would venture to suggest that there needs to be consideration within the medico-legal community as to reliance on histological evidence such as this in the forensic process where there is such a dearth of research on humans, and, particularly, babies.

vi) I am not prepared to find that the parents neglected S in relation to his feet. They sought appropriate medical advice for what was certainly a fungal and possibly also a bacterial infection. It is clear to me that there had been a significant postmortem degeneration in S’s feet by the time the photographs of them were taken at the autopsy.

I am therefore left with two improbable explanations namely that S was brutalised and murdered by his parents; alternatively, that he suffered a sequence of pathologically unlikely events that gave rise to his injuries and overwhelmed him. This is a Popi M case. Just as the decision of the House of Lords left no-one knowing why the vessel plunged to the bottom of the Mediterranean Sea, so we are left here with no explanations for the injuries and death of S, other than those I believe were caused in the bike buggy. This is one of those very rare cases where the burden of proof comes (as Baroness Hale put it) to my rescue and so the parents are entitled to the return of Lord Hoffmann’s value of zero, namely that they will be treated in law as if they did not deliberately inflict violence on and to these children.

This is not to say that there is not the possibility, even the real possibility (to use the language of Lord Nicholls in Re H and R when discussing the test under the second limb of s31(2) Children Act 1989), that these parents did indeed so grossly mistreat their children. But a suspicion or a risk is not enough on a fact-finding hearing, as the House of Lords so emphatically confirmed in Re B.

I appreciate that the parents, and indeed the LA, want definite answers and I am sorry not to be able to supply them. I am only prepared to find on the 51% balance of probability test, having surveyed all the evidence holistically as the authorities mandate I must do, that I am not satisfied that these parents deliberately abused their children (as opposed to treating them recklessly in the buggy), or neglected or murdered S. Thus far I am prepared to go, but no farther.

That is as close as I think one will ever come to seeing a Judge accept that there are limitations to what even the most exhaustive consideration of the situation, with the assistance of extremely able counsel and experts drawn from a range of disciplines can achieve. This was one of those cases where the Court simply has to say that it is impossible to say what happened – whether the medics are right and a child was effectively violently assaulted and died as a result, or whether there is some other cause for the injuries which exonerates the parents. Being unable to decide, the Judge went back to first principles – the balance of proof falls on the LA, and as they could not prove that the parents HAD deliberately abused their children or neglected or murdered one of them, he had to find that they HAD NOT done so (the test being binary now – mere suspicion falls away – if it is not proved that a person did X following a finding of fact hearing, then it is proved that a person did NOT do X in the eyes of the law)

Read it again – the Judge is essentially saying that both possible versions – the deliberate harm and the accidental explanation are both highly improbable, but not impossible. He is unable, on that basis, to find that either is more likely than not to have happened, and as a consequence, has to resort to the burden of proof to resolve matters. I can’t ever recall seeing a judgment like this – we bandy around the phrase ‘finely balanced’ all the time (and often use it as a substitute for ‘arguable’ or ‘with some merit’ or ‘not utterly hopeless’, but this really is the finely balanced case.

As I hope I’ve made plain throughout, whilst this conclusion left me very uneasy, I have nothing but admiration for the careful, logical, structured, considered and exhaustive way in which the Judge tackled this exercise. But it does leave huge question marks for the future of really serious injury cases. There has been a tendency over recent years (and this may well be right considering how badly we now know that cases like Cannings were approached in terms of accepting medical assertions that have since fallen away) to question the medical opinion; not just as to the confidence of diagnosis and differential diagnosis, but that additional step of ‘what you say is consistent with what you currently believe, but it may not always be the case and in time to come, we may find that this medical opinion as to causation of injuries is wrong’

I don’t know what the answer is here – a Court choosing between two (or more) competing medical hypotheses each supported by a medical report is a tough situation and perhaps not the best way for a medical controversy to be resolved (scientific fact isn’t resolved by cross-examination but by science and testing and Poppers falsifiability principles ) but a Court being driven to speculate about the current boundaries of what science believes to be the case is even more difficult.

A fascinating case, which must have been immensely emotionally draining for all concerned.

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Posted in case law, experts, fact finding and tagged finding of fact, medical evidence, where now?. Bookmark the permalink.

The problem of the hanged man

Posted on May 3, 2012 by suesspiciousminds

Bear with me, this is going somewhere.

So, a man is sentenced to be hanged to death for a crime. He hears the verdict and the sentence, and then addresses the Court. He explains that he knows he has done wrong and that he must pay for it, but that what he wants is to sleep in peace on his last night on earth, and asks if the Judge would agree that he should not know, for certain, when he goes to sleep that he will be hanged the next day. The Judge agrees. He will be hanged sometime in the next week, the Judge tells him, and this is all put down carefully into an official order. He cannot be hanged if he knows for certain the night before that the next day is the day he will be hanged.

And at the end of the week, he is not hanged, and goes free.

Answer at the end.

Now, as some of you may know, the 26 week time cap for new proceedings has been brought in, without fanfare, hullaballoo, announcement or even legislation. None of the new arrangements which will make it possible for the proceedings to conclude in 26 weeks (best interest adoption decision being removed, no more argument about care plans, greater respect for social work evidence, less experts) have come in, but there’s a new computer system that says all new proceedings will end in 26 weeks and the Courts have to give reasons why.

So, let’s look at 26 weeks, which might sound initially like quite a long time (it’s more than twice what the original inventors of the Children Act envisaged would be needed to crack all but the most difficult cases)

By week 26, we need to have a final hearing. So, let’s work on the basis of a 5 day hearing, at which the Guardian, social worker, allocated judge (since we’re going to get judicial continuity now) and any experts can attend. Let’s be optimistic and say that the Court listing will be able to magic that availability for us with no more than 2 weeks notice.

So, by week 24, we need to have our IRH and tell the Court that we need a final hearing and 5 days of Court time. Let’s also, for the sake of argument, have the Guardian file on the same week as the IRH.

So, by week 23, giving the Guardian only a week to see the parents evidence, which won’t be late, because it never, ever is, we need the parents to file.

By week 21, we need the LA evidence (I squeezed the Guardian down from the usual 10-14 days to seven, but really, the parents do need two weeks to see the LA evidence). If it is an adoption case, the Agency Decision Maker will need to have authorised the Placement Order application the same week. Let’s pretend that can be issued and not lost or misplaced by the Court and served on everyone in a week, just for giggles.

So, by week 20, Panel need to have considered the case and made a recommendation to the Agency Decision Maker – there has to be a seven day period for that, until the law gets changed.

Let’s be more ruthless and say that the time that Panel members get to see the expert report is cut from the current 3 weeks, to 2 (because the Social worker has to submit a Child Permanence Report to Panel and needs to know what the expert says before that can be finalised. And the law that says Panel have to read the expert report is still law (I hesitate to say ‘good law’)

Thus, by week 18, the expert report needs to be completed.

Now, let’s work from the other end, and see how long the expert gets to do their report, because 18 weeks looks like AGES.Four and a half months.

The proceedings are issued and the clock starts. The first hearing is at the end of week 1.

Assuming everyone moves quickly, let’s have a CMC in week 2. Unlikely, but let’s assume we do. And let’s assume that in that week, the parties have considered all of the papers and agreed not only what sort of experts they need, but who they should be, and found out timescales.

Lets go further crazy, and assume that the Letter of Instruction is agreed and finalised in Week 3, and that the LOI and papers go off to the expert in Week 4. There’s no hold-up in getting any additional disclosure, or medical records, or documents from past proceedings or other local authorities, or private law proceedings, or police disclosure. Hooray for simplicity.

The expert then has from week 4 to week 18 to do a report. Fourteen weeks. Three and a half months.

But don’t forget, that the expert can’t see anyone until the parties all have their Prior Authority for public funding in place. Let’s be wildly optimistic and say that that takes a fortnight.

So, by week 6, the expert is ready to go, and has 12 weeks to do the report. Don’t forget, that the expert has to be available in weeks 25 or 26 for any contested final hearing.

I just don’t think that this is feasible. Worse than that, it means that when the parent sees the expert to demonstrate that they have changed sufficiently to justify a positive care plan, they have not had 26 weeks to make that change, but probably 14-15 weeks, just over half the time. If they are someone with substance misuse problems, or anger issues, they’ve probably just started with any intervention – if they need therapy, they might have got a GP to make the referral but won’t have had any counselling.

My point is – you can’t roll out the timescales independently of the new way of working which is going to make cases achieveable in those timescales. Even with a case where nothing goes wrong, you can’t do it on the PLO model and just say “do it in half the time it currently takes”. The new 26 week cap is going to head slap-bang into “we need this expert, and he can’t report till week 22, so the timetable won’t work, expert instruction refused,Court of Appeal”

You can’t have a 26 week system where parents need to be able to demonstrate change by week 18 unless there’s something in place for them to help them make those changes. You could try a model where we divert all the money that’s currently spent on diagnosis onto treatment – task-centred and swift interventions and supports that are ready to roll out and begin once the referral is made, but they don’t currently exist and the funds aren’t there for them. So, if you roll out a 26 week cap without any sea change as to the way proceedings are done, you’re going to end up with a shed-load more cases in the Court of Appeal and a shed-load more cases that end with children in Care, since you haven’t given any ability for the parents to change from the low-point that generally exists when proceedings are issued.

And back to the hanged man – he knows he can’t be hanged on Sunday, the seventh day, because if he goes to bed on Saturday, he knows for certain that he’ll be hanged the next day, and that’s prohibited by the order. So, they can’t hang him on Sunday. Which means the latest they can hang him is Saturday. But now he knows that, and so if he goes to bed on FRIDAY, he knows for certain that he’ll be hanged the next day, because there’s only Saturday and Sunday left, and they can’t hang him on Sunday. And so on.

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Posted in experts, family justice modernisation, timescales and tagged 26 weeks, experts, family justice. Bookmark the permalink.

“Returning home from care” – an analysis of the NSPCC research on rehabilitation of looked after children

Posted on April 30, 2012 by suesspiciousminds

The NSPCC have published their research into outcomes for looked after children who are rehabilitated to the care of their parents. The report can be found here: –

http://www.nspcc.org.uk/Inform/resourcesforprofessionals/lookedafterchildren/returning-home-from-care_wdf88986.pdf

Their big headline figure is that over 70% of the children in that situation they surveyed said that they weren’t ready to go home.

That initially made me blink, and wonder why the children had said that to the NSPCC but hadn’t said it to their Guardians, but then I realised that the pool of children concerned were probably the older children who were going home from s20 care rather than care proceedings.

There are still some startling figures in the report, however. In 2011, 90,000 children were looked after in England. 39% returned home (about 10,000 children, compared to the 3,050 who were adopted) Of the children who return home, between a third and a half come back into local authority care because the rehab breaks down, and around half suffer further abuse at home.

The NSPCC suggest that variance in Local Authority practice plays more of a part in whether a child is rehabilitated and whether that rehabilitation is successful than the child’s needs.

The report is quite critical of whether the family Courts have skewed the protection of children as against parental rights and article 6 too much in favour of parents.

“For children on care orders, family courts play a central role in assessing whether a child should return home. Their involvement can lead to improved planning and service provision26. However, courts have been shown to favour parents’ rights over those of the child27,28. Interviewees told the NSPCC that courts often instructed reunification, even when it was not in the best interests of the child, with decision making tipped in favour of the parents rather than the child.”

The tiny footnote there is referring to the Farmer research published in 2011, which is also worth a read.

The NSPCC recommendation in this regard is :-

Action must be taken to ensure that court decisions are always based on the child’s best interests. The new Family Justice Service must ensure that members of the judiciary specialising in family law receive training in child development and the implications of returning home from care. Information made available to the courts must enable members of the judiciary to receive better feedback on the outcome of their decisions.

To an extent, this strikes a chord with the Justice Ryder modernisation campaign, with its suggestion that the Family justice system should commission and take notice of some agreed research, rather than operating in a vacuum. I have to say, that for many years, my default reaction to seeing research quoted in a social work report is to reach for the red pen (or now, the ‘strikethrough’ button) as I know how unpopular it can be with the bench or judiciary to have a lot of research spouted to them -it tends to be either a statement of the bleeding obvious, in which case, why bother, or something which supports a proposition which is controversial (such as – the odds are that this child you’re thinking of sending home is 50-50 to suffer abuse at home as a result, or having five sessions of contact with a parent per week isn’t actually good for a baby) in which case nobody trusts it.

But you know, if all of the time and money we spend in trying to reach the right outcomes for children is resulting in half of the children we send home after that exhaustive process being abused, then we might want to recalibrate.

(of course, from the other side of the coin, there’s something of a paucity of research as to the number of children who get long-term fostered or adopted when the Court and professionals were wrong and they could successfully have gone home – that’s probably a harder piece of research to work out – probably working on the parents who go onto have another child and successfully care for that later child)

It is a bit hard to totally trust research commissioned by the NSPCC – I’m not questioning their integrity in the slightest, but when it comes down to working out where they stand on the “Keep children safe at all costs” versus “keep families together at all costs” spectrum (or the Cleveland-Haringey axis, if one is being unkind) it doesn’t take long to spot that they come with an agenda.

(Not necessarily a bad agenda – I wouldn’t claim to be precisely on the fulcrum of that particular see-saw myself – but it makes it harder to rely on their research as probative. It’s like seeing a report from Benson and Hedges about passive smoking – you sort of suspect there’s a starting point there)

I liked this quote from a senior social work manager, though :- “Support is crucial. [But] we have to take a pragmatic approach as often the support that has been suggested by the courts or experts is simply not available.”

Very true – an awful lot of expert reports which recommend that the door to rehab is not shut do so in complete absence of context about just how feasible it is that the parents GP will commission six months of therapy for them, and that that can start without delay.

The first bit of this next quote is blindingly obvious, the second part much less so.

Poor parenting, drug or alcohol misuse, domestic violence, and parental mental health problems, all increase the chance of harm when the child returns home. Farmer et al found that 78 per cent of substance-misusing parents abused or neglected their children after they returned from care, compared to 29 per cent of parents without substance misuse problems29

78% of rehabs involving substance-misusing parents result in further abuse or neglect. Being a maths guy, that suggests to me that rehab to parents who misuse substances is more likely than not to result in the child being abused or neglected if rehabilitated to their care. (of course, what you argue in any individual case is that for this particular parent, these are the factors that mean the Court can be confident that they are one of the 22% who won’t abuse their child; but that context of how prevalent the risks are to that subject-group remains important.)

The challenge of rehab to a substance-misusing parent is significant – on the one hand, if you can resolve the drug problems there’s often a good parent underneath, but on the other it is so easy to be over-optimistic about an upward curve on a graph of peaks and troughs being a sign of a genuine change – being too close to the graph to see the pattern as being anything other than up, up and up)

From a bit more of a parental perspective, I think this is probably a valid and fair criticism of LA support.

Where support is provided it is often removed after a short period of time, before a problem has been sustainably addressed. Alongside resource constraints, support can be removed due to a belief that parents need to be able to shoulder their responsibilities and not become dependent on services33. Support is often discontinued once a child returns home without any assessment of whether the families’ problems have diminished. This results in further instability and an increased risk of harm to the child. Parents also report concerns about the short-term nature of interventions designed to support them.

Some more recommendations – all of which make sense to me

Decisions about whether a child should return home must always be led by what is in their best interests. [Of course, it already is, it is just that what one body thinks is in the child’s best interests isn’t necessarily the same as what another body thinks]

Support for children and their families prior to and following reunification must improve.

The government should ensure there is sufficient support for parents who abuse drugs and alcohol, who are victims of domestic violence, who have mental health difficulties or who have other issues which could affect their ability to parent effectively when their child returns from care. Local services must be incentivised to provide sufficient support for these parents.

Local authorities must ensure that the support provided to children and families matches the needs identified in a child’s risk assessment. This information should be used to inform local commissioning and investment decisions. •

Local authorities must ensure that foster carers and residential care workers are involved in the process of a child returning home from care and are supported to help the child prepare for a return home, where that is in their best interests.

Guidance on designated teachers for looked after children should be revised to include children who return home from care, even if they cease to be looked after on their return. The support provided by the school can play an effective part in successful returns home.

The very last bit of the report sets out a new method of classifying risk, which the NSPCC are working with 8 local authorities on. To my cynical eye, it looks somewhat simplistic given how complex the variables are in child protection cases, but it’s not bad as a benchmarking exercise. I’m not sure I’d place quite as much weight on them as the child’s wish to return home being an element that allows you to consider the risk is lower. (It seems to be about a third of the factors in weighing the risk, which appears to my untrained eye to be far, far, far, far, too high)

Classifying the risk of reunification – a tool to support decision making about children returning home from care, adapted from Safeguarding Babies and Very Young Children from Abuse and Neglect (Ward, Brown and Westlake, 2012)

Severe risk

• Risk factors apparent and not being addressed, no protective factors apparent.

• No evidence of parental capacity to change and ambivalence or opposition to return home by child or parent.

High risk

• Risk factors apparent, and not being addressed. At least one protective factor apparent.

• No or limited evidence of parental capacity to change and ambivalence or opposition to return home by child or parent.

Medium risk

• Risk factors apparent or not all risk factors addressed. At least one protective factor apparent.

• Evidence of parental capacity to sustain change. Parents and child both want return home to take place.

Low risk

• No risk factors apparent, or previous risk factors fully addressed, and protective factors apparent.

• Evidence of parental capacity to sustain change. Parents and child both want return home to take place.

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subdural haematomas, fractures and rickets

Posted on April 24, 2012 by suesspiciousminds

This is a case which has been in the news lately. I was tempted to write a blog on it, but I have to be frank and say that the summary prepared by Leading Counsel in the case which appears here :-

http://www.familylawweek.co.uk/site.aspx?i=ed97208

would be hard to be bettered.

I think that Islington were in an extremely difficult spot here. On the one hand, the case did not go before a Jury in the criminal trial because the trial Judge did not consider that it would be possible given the medical evidence for the criminal standard of proof to be met. (It may have gone higher than that, since it wasn’t even put before the jury with a direction to acquit, and it may have been that the criminal summing up went very close to saying that the defence were right)

But Islington were faced with medical professionals in their area saying that the injuries were as serious as it is possible to be, and were on the balance of probabilities caused non-accidentally, and faced with another child of the family.

They had a tough decision to make – either no intervention at all (since if the American experts were right, the parents had done nothing wrong and suffered a huge tragedy AND had that compounded by a criminal trial) or place the issue before the Court to establish whether it was more likely than not that the younger child was at risk.

It is of course, awful, that the parents had to go through not only their loss, but two sets of legal proceedings to defend themselves and reach the truth, and that this process was no doubt gruelling, distressing, arduous and all consuming.

But I think those who criticise Islington for bringing the case perhaps misunderstand the position that they were in – it wasn’t a second bite of the cherry, but an untenable position that was only capable of being resolved by either the Local Authority taking a gamble that the American experts had been right and there was no risk to this child (and who would have been defending them had they taken that gamble and been wrong) or saying to a Court – this is beyond our scope to decide which set of medics is right, and that’s what you’re there for.

The Court could have taken a very robust view of the case at a really early stage and said, having viewed the criminal papers, it is understandable that the Local Authority have brought this case but there is no need for a finding of fact hearing and the Court is satisfied that the threshold isn’t met. That would effectively have taken that burden of managing an unknown risk off the shoulders of the Local Authority. The Court did not do that. The fact that the Court decided that the issues in the case had to be resolved by a four week finding of fact hearing meant that the issues were difficult and needed careful thought and resolution.

It might be, I know not, that when the evidence was heard, it was all blindingly obvious what the correct version of events was, but it wasn’t blindingly obvious until that process began, and I think that everyone involved in this process was just in a really difficult situation.

[Caveat – there’s obviously a large range of nuance that can be applied by a Local Authority in this situation, from the extremes of “We don’t believe that these parents did anything wrong, and invite the Court to give a brief judgment to that effect” to “the LA firmly believe in the medical views expressed by the Great Ormond Street medics, and seek the highest findings” and where this LA positioned themselves on that wide scale is probably critical]

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“ISW this a dagger I see before me?”

Posted on April 23, 2012 by suesspiciousminds

(Sorry, there’s not much scope for puns around Independent Social Workers. Most of the humour in ISW work at present is in the LSCs idea that they are worth only ¼ of the fees a psychologist can charge for doing a similar task)

The independent research into the quality and efficacy of Independent Social Work reports is now available. The report was carried out by Dr Julia Brophy.

The report can be found here: –

http://www.ciswa-uk.org/wp-content/uploads/2012/04/PDF-FINAL-REPORT-EVALUATION-OF-ISW-ASSESSMENTS-FOR-CARE-PROCEEDINGS-FINAL-18-Apr-2012.pdf

The keen-eyed will note that Dr Brophy is a different person to Dr Ireland, who did the same task on psychologists.

One might think that it would have been helpful, if you were carrying out research into court experts in two disciplines, to have the same team carry out both assessments, but that would involve introducing common sense into the equation. (Perhaps we have a third report in the wings on psychiatrists)

One might also think that if you were doing research into whether psychological assessments and ISW assessments were useful and fit for purpose that you might look at the outcome of that research before deciding that one group could have their hourly rates cut down to £30 per hour, whilst the other group get hourly rates of £130 per hour.

But heck, what’s wrong with Red Queen justice – sentence first, verdict later!

Pink Tape has done a very good article on this report, written by Noel Arnold (getting in first, whilst I have been busy puppy-wrangling) :-

Use of Independent Social Workers in Care Proceedings

I think the report does get some important stuff wrong – deciding that because a Local Authority is a joint party to the instruction of the ISW that means that they are supportive of the instruction is not necessarily right. Being party to the instruction means that you were told you had to pay for a share of it. Sometimes that will mean the LA were champing at the bit to get an ISW involved, sometimes it will meant that they have bowed to the inevitable that it is better to have a report that won’t be accused of bias and prejudging the outcome, sometimes the ISW can do it quicker than the LA can do in-house and sometimes the LA will protest with varying degrees of success about instruction of another expert and the protest will fall on deaf ears.

So, it did slightly trouble me that the report considered that because the LA were involved in the instruction of the ISW in 65% of cases and were the sole instructing party in 15% that there is something to be drawn from that in terms of whether the LA was a driving force behind the assessment.

(Which is not to say that all LAs at all times oppose all ISW instructions – rather that sometimes they are the right thing on a case, and sometimes they are not)

So, what are the headlines?

Concern has been expressed that ISWs simply duplicate existing parenting assessments, that they cause delay and that there is a high use by parents seeking ‘second opinion’ evidence based solely on claims under Article 6 under the ECHR. Findings from this study do not support those concerns.

It was found that ISW reports mostly provided new evidence not already available to the court. This is already in line with recommendation 3.132 of the FJR.

In the absence of changes within cases and purposeful delay, ISW reports were almost always delivered to the date specified in the LOI. There was no evidence that reports delayed scheduled hearings.

There was no evidence of high use of ISWs by parents seeking second opinion evidence based solely on Article 6 claims under the ECHR – indeed as a ‘stand- alone’ application in this sample this was rare. Perhaps Article 6 is used in a ‘make weight’ argument but arguably it would be unlikely to succeed unless there were real weaknesses in an existing assessment or clear evidence of bias.

Findings indicate that courts would be severely hampered in the absence of access to the body of expertise and the evidence provided by ISWs – not least in case managing to meet the 6 month deadline for care cases recommended in the FJR90 and accepted in the Government’s response to it.91 Any legislative changes and adjustment to the Family Procedure Rules and Guidance would need to reflect an understanding of that finding.

Moreover as expert witnesses for the court the evaluation identified that ISWs have ‘added value’. They are able to engage with difficult and disaffected parents where, for whatever reason, relationships with the local authority are frequently at an impasse, where parents and children face a powerful state agency and where certain child welfare questions remain outstanding. While the independence and status afforded by the court process cannot be underestimated, that alone does not explain the ISW’s success in this regard.

Alongside considerable skills and experience in assessing vulnerable parents and children within care proceedings, other values follow from the ISW’s role and responsibilities as an expert for the court:

Independence (from all parties but with an overriding duty to the court to observe the paramountcy of the best interests of the child)

 Demonstration of ‘balance’ in reporting the outcome of the assessment process and key findings

 Ability to spend sufficient time with parents and engage in reflective practice

 Skills in observation, interpretation and analysis of information

 Clear specification of what is needed from parents and others to demonstrate capacity for change – and what they might have achieved so far

 Use of research in presenting issues and opinions

 Provision of a report which is evidence-based and forensic in method

 Ability to work to instructions posed by parties and by the court and for the most part, answering all the questions posed

 Ability to draw out key hypotheses in a list/hierarchy of questions posed

 Delivery of reports on time

 Provision of skills and expertise tailored to the specific needs of the case (e.g. in assessing parents with a learning disability, where there are allegations of sexual abuse, domestic abuse etc).

 There has been something of a misconception in the debate about independent social work practitioners in care proceedings: their work has been portrayed as simply doing what social workers do (i.e. fulfilling the welfare task). That is not correct: whilst they undertake a welfare task providing high quality welfare reports, they also have an additional role. It arises from their duties and responsibilities to the court as an expert witness and permits them to undertake tasks for the court which a social worker – as a professional witness for the local authority – cannot. Moreover the work of the ISW can move cases forward in a way not achievable by local authorities or children’s guardians.

Those all seem, at first blush, to be pretty positive conclusions (so positive in fact that I spent time scouring the report to make sure it wasn’t just a PR-puff commissioned by a group of ISWs to promote their services) ; and not terribly in keeping with the twin attacks of the FJR (ISWs are just telling us stuff we already know and should be frozen out) and the LSC (ISWs aren’t as good as psychologists and should be starved out)

I think both the LSC and the FJR have fundamentally misunderstood how difficult it will be on the ground to run cases if Independent Social Workers disappeared from the landscape.

They are under the impression that they will have cut costs and cut out a tranche of experts and thus reduced delay and saved money. Hurrah!

They have fundamentally misunderstood that all they have achieved is greatly increasing the number of parents who will be seeking psychological assessments in care proceedings. And those assessments already cost more, and take longer. (I shall remain silent, if not neutral, on whether they are better or worse in quality). That situation will not improve as the demand for them goes up.

If what you want to know, genuinely, is whether a parent has a psychological condition or barrier that is interfering with their ability to parent, and whether that can be overcome, and if so how and in what timescales, you want a psychologist.

If what you want to know is, genuinely, has the social work in this case been proper, rigorous and fair, and might there be another way forward in the case than that promoted by the Local Authority, then frankly, you want an Independent Social Worker (or an old-school Guardian, but that’s an entirely different debate).

If what you want to know is, is there a rent-a-mouth expert who will give me something to fight with at a final hearing because I have a hopeless case, then perhaps you should consider moving into Civil law (and probably also getting a time machine back to the 1980s)

I hope that BASW and NAGALRO are going to mount the challenge to the LSC about fees that I have heard whispers of, since it seems to me that the different treatment meted out to two groups of professionals who both have degrees and both have professional expertise and experience is capricious and unreasonable.

I am encountering cases at present where I cannot get the ISWs I want to do cases, because they won’t get paid £63 per hour, so I will be ending up having psychologists to do the work at £130 per hour. I am struggling to see the savings here. I will have a report which is twice as expensive, takes months longer, and is less on point.

What we have is a situation akin to the NHS providing free smoking materials to all, and wanting to cut down on costs by deciding that you can’t get free cigarettes any more, but still letting everyone get free cigars. We will all just smoke the free cigars, I’m afraid.

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“A labyrinth of DoLs”

Posted on April 16, 2012 by suesspiciousminds

An imaginary judgment

(I am extremely grateful in the construction of the legal framework of this judgment to Lord Justice Wilson’s careful and precise analysis of the law in RE P and Q 2010 – often known as the MIG and MEG case. Almost everything in this that you think is well-written was written by Lord Justice Wilson, and everything shabby and feeble is my own)

The Court is today dealing with an application by those representing the parents of a young man named L, to the effect that his accommodation in the Minos Taurus care facility amounts to a Deprivation of Liberty under the Mental Capacity Act 2005, and that as this has been done without authority, the facility, and the Local Authority who placed him there are in breach of Article 5 of the Human Rights Act 1998 in that his liberty is being restricted without lawful excuse.

The Local Authority and the owners of Minos Taurus – Mr Ian K Harris and his dad, Ellis, contend that there is no restriction on L’s liberty and that there is an open door that L can leave by at any time and a path that can be followed to the outside world should he wish to leave at any time; and that thus L is effectively remaining in the placement of his own wish.

Matters are complicated when the Court looks, as I am strenuously urged to, beyond the face value of that statement and at the reality of the layout of the Minos Taurus care home. The care home has a front door, which is locked at all times. Staff members have a key, and visitors will be admitted, but residents are not able to freely enter or exit through that door. That much is common ground between the parties.

The rear door is indeed, unlocked at all times and any resident is free to go through it and staff would not attempt to prevent or discourage a resident from doing so.

However, emerging from that back door does not grant the resident immediate access to the public highway or the world at large, but rather to the grounds of the Minos Taurus home, which are over two acres in size. I have been shown aerial photography taken by the applicants of those grounds and it is plain that what has been constructed is an array of hedges, constructed in such a way that only one path moves from the entrance to the exit.

The hedges themselves are impenetrable, and could not be scaled without considerable difficulty, being both prickly and twelve feet in height.

In short, what lies at the rear of Minos Taurus can best be described as a labyrinth. The entrance to this labyrinth is the back door of the physical Minos Taurus building and the exit is to the public footpath that runs outside the rear of the property. There is no physical gate, or barrier to that exit.

Minos Taurus therefore contend that L, or any other resident, would simply have to walk a path between the entrance and the exit. If they walked that path, which they are free to do at any time of the day or night, nothing would prevent them from reaching the footpath and thus leaving the land owned by Minos Taurus. Thus, there is no deprivation of liberty.

I note that they contend that describing their grounds as a labyrinth is pejorative and that it is, in reality ‘a restful and soothing arrangement of hedges in a classical form’.

They are to be admired for their chutzpah in that submission, but I find that quite the simplest of this entire tangled and byzantine case to unpick. The grounds are laid out in the form of a maze (I note in passing that whilst I may, as counsel did throughout, flit between the term maze and labyrinth, that what we are dealing with here is a maze – since it has an entrance and exit and branching paths, whereas a labyrinth leads to the centre and is not intended to be difficult or puzzling to navigate).

I am satisfied that the applicant’s claim that the grounds of Minos Taurus are intentionally laid out as a maze, and that it is not a merely coincidental happenstance or an intention to create a geometrically and horticulturally pleasing arrangement which simply happened to also take the form of a maze. Nor is it a homage to Hampden Court, or the many other notable horticultural efforts that are set out in glossy photographs in Section J of the bundle. Whilst those photographs have indeed been soothing to consider and admire, they have not assisted me as Minos Taurus had hoped they might.

The grounds are laid out in the form of a maze and this has been a deliberate intention on the part of Minos Taurus.

L’s family contend, that L, being a person who lacks capacity to make decisions in his own regard, is incapable of navigating a maze or labyrinth, and that whilst theoretically, he is free to leave at any time, in reality he is imprisoned by this maze and his liberty is just as restricted as if he were blocked by a locked and barred door.

They state that it is of significance that their Freedom of Information request gleaned that :-

(a) Since the construction of the maze, no member of staff has chosen to enter by the back door rather than the front

(b) Since the construction of the maze, no resident has left the home by way of the back door.

Turning now to the law, which one might rightly muse is almost as impenetrable as the hedge and with as many twists and turns as the construction in question. The issue whether the arrangements for L amount to a deprivation of his liberty and whether the arrangements engage Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Article 5 provides: “1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law – … (e) the lawful detention … of persons of unsound mind …; … 4 Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The practical effect of a conclusion that the arrangements for L amount to a deprivation of his liberty is to be found in the valuable right provided by paragraph 4 of Article 5. For in that event his right would be to take court proceedings for a decision in relation to the lawfulness of their detention The paragraph would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive him of his liberty, albeit perhaps only on paper unless requested otherwise: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at [26] – [28]. The court’s review would probably again require independent representation of him.

It is not, therefore, a merely academic question, but one which goes to the heart of L’s rights. I shall not go into details of the nature of L’s problems, suffice to say that his day to day functioning is approximately that of a five year old child and that it is beyond dispute and accepted by all parties to these proceedings that he lacks capacity to make decisions for all matters relevant to these proceedings pursuant to section 2 of the Mental Capacity Act 2005. There is expert evidence, undisputed, to that effect.

L came into the Minos Taurus care home as a voluntary patient, his family having brought him there for a period of respite. They say that they had no idea that having taken him there, they did not have the power to discharge him. Although he is free to leave whenever he wishes, he is, they say, prevented from doing so by the practical barriers that have been put in place.

As indicated earlier, Minos Taurus and the Local Authority who are assisting in the funding of L’s placement there, and supporting his remaining in that placement, are of the view that L can leave the placement at any time and that there is a route or path which can be followed which is completely unimpeded to L, if he chose to follow it. Minos Taurus have indicated that if the Local Authority determined that L should leave the home by the front door, or were to cease funding the placement, they would facilitate L leaving by the front door.

The European Court of Human Rights (“the ECtHR”) has made clear that a deprivation of liberty has three elements:

(a) “the objective element of a person’s confinement to a certain limited place for a not negligible length of time”: Storck v. Germany (2005) 43 EHRR 96, at [74];

(b) the “additional subjective element [that] they have not validly consented to the confinement in question”: the Storck case, also at [74]; and

(c) the confinement must be “imputable to the State”: the Storck case, at [89].

That is not disputed by any of the parties. The critical issue that is in dispute is whether, as a matter of fact, L is confined to a certain limited place, or whether he is not. I am invited by L’s family to reword the test as being whether L is confined to a certain limited place or whether he is free to come and go as he chooses, but I decline to replace the construction that has been carefully arrived at by the ECtHR in Storck with a different formulation. It is not incumbent on the State to demonstrate that L is free to come and go as he chooses, but to refute the claim that he is confined to a certain limited place for a not negligible length of time. The classic exposition of the nature of the enquiry into the objective element, on which no doubt has been cast for 30 years, is that of the ECtHR in Guzzardi v. Italy (1981) EHRR 333, at [92] – [93], as follows: “… the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion …”

These are prescient words indeed and ones that have survived the last three decades better than tastes in literature, music, art or fashion. It certainly is no easy task to determine the clear bright line that separates a restriction of liberty from a deprivation of liberty. One is reminded of the philosophical debate about a pile of stones, and one stone being removed at a time, and at what point there ceases to be a pile.

To the layperson it would seem a relatively easy task to determine whether objectively someone is deprived of their liberty. They would probably begin with asking the question “What’s stopping them from leaving?” , but there is no question no matter how simple or blindingly obvious the answer that cannot be obfuscated by the combined efforts of Parliament, the judiciary and the focussed minds of the Bar.

In relation to the objective element there are two more recent decisions of the ECtHR of great importance.

The first decision is HL v. UK (2005) 81 BMLR 131; Mr HL was an incapable 48-year-old man who was autistic, unable to speak and had a history of self-harm. For 30 years prior to 1994 he had been an inpatient in Bournewood Hospital; and for the final seven of them he had been in its Intensive Behavioural Unit. Then, in 1994, without being formally discharged, he was moved into the home of paid carers. In July 1997, following an incident of self-harm at a day-care centre, he was readmitted to the unit at the hospital and he remained there for four months, whereupon he was returned to the carers. For the first three of those months he was an informal patient, i.e. not compulsorily detained there under the Mental Health Act 1983; and such was the period during which, so the ECtHR held, he had been deprived of his liberty in breach of Article 5. Thus did the court identify “the Bournewood gap” in our legal framework for control over the deprivation of liberty in the case of an incapable person effected otherwise than pursuant to the Act of 1983; and Parliament sought to fill the gap by making insertions into the Mental Capacity Act 2005 which, by s.4A(5) and Schedule A1, set up a framework for such control in the case of a person receiving care or treatment in a hospital or a care home and which, by s.4A(1) and (3), rendered any other such deprivation lawful only if made pursuant to a court order that such was in her (or his) best interests. In its submissions in the case of HL the UK government had laid considerable emphasis on the fact that Mr HL had been compliant with his return to live in the unit and had never attempted to leave it nor expressed the wish to do so. But the court held, at [90], that, in that Mr HL was incapable, his compliance was not of central importance. The fact was that, irrespective of whether his ward was locked or lockable, he had not been free to leave the unit: [91] and [92]. The court said, at [91]: “the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained.”

The second decision is the case of Storck cited above. A young woman aged 18 was placed by her father in a locked ward of a private psychiatric clinic and she remained there for 20 months. Very strong medication was administered to her, at times by force. On a number of occasions she attempted to flee from the clinic and was prevented from doing so by being fettered. Once she succeeded in escaping and the police forcibly returned her there. She was unable to maintain regular social contact with persons outside the clinic. The ECtHR held that all three elements of a deprivation of liberty were present and that, in respect of the objective element, the case was a fortiori that of HL.

In the case of RE P (known as MIG) and Q (known as MEG) 2010, the Court of Appeal determined that there were some important factors to be considered when determining whether there was objectively a deprivation of liberty.

1. A person’s happiness, as such, is not relevant in determining whether there has been a deprivation of liberty.

2. However, an objection is relevant, even where a person lacks capacity. If they do not want to be in a place and they object, there will be conflict. At the very least there will be arguments and they will suffer the stress of having their argument overruled. This would be a factor which could be properly taken into account when determining if a person’s liberty were being deprived, rather than restricted.

3. From the relevance of objections and also of the lack of them, it is logical to move to the relevance of medication and also of the lack of it . The administration to a person of medication, at any rate of antipsychotic drugs and other tranquilisers, is always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish. Indeed, if the administration of it is attended by force, its relevance is increased. Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.

4. The purpose of the arrangements under scrutiny can be relevant.

5. the relative normality, or otherwise of the arrangements under scrutiny can be relevant

6. an enquiry into the residential arrangements and the degree of outside social contact. “Whether a certain situation constitutes a deprivation of liberty may depend on the living conditions of the person concerned and the degree of freedom he or she enjoyed otherwise”: “The European System for the Protection of Human Rights,” by Macdonald, Matscher and Petzold, 1993, 289.

I propose to analyse the case on the basis of those principles, to form an objective view of whether, as a preliminary issue the first of the three limbs of Starck are made out. Has there been the objective element of a person’s confinement to a certain limited place for a not negligible length of time ?

I am however, before conducting that exercise, mindful of the following authorities , and indeed that the Court of Appeal in Re P and Q determined that there was NO deprivation of liberty in that case and this body of caselaw strives to convince me that there is far more to the objective question that considering the commonsense formulation that an ordinary person would use “What’s stopping them from leaving?” , in that these cases illustrate that locked doors, tranquiliser medication and physical restraint can all, in certain circumstances be deployed to stop a person leaving somewhere without his liberty being deprived.

(I wonder, in an idle moment, whether a Judge in a civil trial to determine a tort of False Imprisonment, would wrestle for even a moment with the issue of whether someone who was drugged, locked up or sat on was being prevented from leaving, but that is by the by)

RE C (BY THE OFFICIAL SOLICITOR) v (1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) A CARE HOME (3) BLACKBURN WITH DARWEN TEACHING CARE TRUST (2011) [2011] EWHC 3321 (Fam) Where an individual who was living in a care home with locked doors was not considered by the High Court to be deprived of his liberty.

The Honourable Mr Justice Peter Jackson commented here, and they are sentiments which I would not only echo, but shout into the Grand Canyon via a megaphone and perhaps even go so far as to embark upon a process of chiselling these words into Mount Rushmore:-

It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

Bravo.

I wish that my own meagre contribution to the law in this regard could add illumination, but I fear it is likely to do little other than complicate matters still further.

I am also referred to the case of CHESHIRE WEST & CHESTER COUNCIL v P (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) (2011) [2011] EWCA Civ 1257 In which the Court of Appeal determined that restrictive measures taken in relation to a man who lacked capacity did not amount to a deprivation of his liberty.

HELD: (1) After reviewing the relevant authorities, the court identified the following factors which were likely to be significant in the type of deprivation of liberty cases coming before the Court of Protection: (a) the starting point was the “concrete situation”, taking account of a range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see paras 32-33, 188, 102 of judgment); (b) deprivation of liberty had to be distinguished from restraint because restraint alone was not deprivation of liberty (paras 23, 102); (c) account had to be taken of the individual’s whole situation and context was crucial, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333 and Engel v Netherlands (A/22) (1979-80) 1 E.H.R.R. 647 applied, Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 A.C. 385 followed (paras 32-35, 102); (d) mere lack of capacity to consent to living arrangements could not in itself create a deprivation of liberty and the fact that a domestic setting could involve a deprivation of liberty did not mean that it often would, Surrey CC v CA [2010] EWHC 785 (Fam), [2011] M.H.L.R. 108 approved (paras 27-28, 41-59, 102-103); (e) it was legitimate to have regard both to the objective “reason” for a placement and treatment and also the objective “purpose”, Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 A.C. 564 followed (paras 60-75, 102); (f) subjective motives or intentions had only limited relevance since an improper motive or intention might have the effect that what would otherwise not be a deprivation of liberty was, for that very reason, a deprivation whilst a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty (paras 74-77, 102); (g) it was always relevant to evaluate and assess the ‘relative normality’ of the situation, Secretary of State for the Home Department v JJ and others followed (paras 78-97, 102); (h) the assessment had to take account of the particular capabilities of the person concerned since what might be a deprivation of liberty for one person may not be for another (paras 92, 97, 102); (i) in most contexts the relevant comparator was the ordinary able bodied adult but not in the kind of cases that came before the Family Division and the Court of Protection, concerning children and adults with disabilities whose lives were dictated by their own cognitive and other limitations (paras 86, 102); (j) in such cases, the comparator was an adult of similar age with the same capabilities as the adult concerned, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. In the case of a child, the comparator was a child of the same age and development, Surrey CC v CA [2011] EWCA Civ 190, [2011] 2 F.L.R. 583 applied (paras 86-97, 102). (2) In the instant case, the judge had not compared P’s situation with the kind of life he would have been leading as someone with his disabilities and difficulties in a normal family setting. There was nothing to show that the life he was living there was significantly different from the kind of life that anyone with those difficulties could normally expect to lead, whatever kind of setting they were living in. On the contrary, there was a strong degree of normality in his life, assessed by reference to the relevant comparator (paras 105-112). The judge’s reasoning in relation to the measures applied to P from time to time was equally problematic. The measures involved the kind of occasional restraint that anyone caring for P in any setting would have to adopt from time to time. The finger sweep was obviously intrusive but had to be looked at in context. It was little different from what any properly attentive parent would do if a young child was chewing something unpleasant or potentially harmful. It involved a degree of restraint but that was far removed from anything approaching a deprivation of liberty. P’s care plan did not involve a deprivation of his liberty (paras 113-117).

The Minos Taurus unit, and the Local Authority urge that I exercise caution before determining that the arrangements for L amount to a deprivation of his liberty. They contend that :-

1. There is an unlocked door through which L may leave at any time.

2. L’s needs are being met in the unit

3. L is not making attempts to leave through the unlocked door. Setting aside whether he could navigate the maze (about which they make no concessions) he has not attempted to step out of the physical building and into the grounds at the rear of the building.

4. L does attend social functions and some educational/play facilities outside of the unit and has a quality of life comparable to that which persisted before his admission

5. L is not on any medication

6. L has not been the subject of any restraint

7. There are no entries in any of the records of L objecting to the placement, or of wishing to leave. It is plain that he is asking for his family and making positive comments about them and his time with them.

On the evidence that has been placed before me, there is nothing to counteract these facts and I have to find that these contentions are all made out.

Set against that, I am satisfied that the purpose of the arrangements, in having a maze built in the grounds of the building and there being an open door leading into that maze is in order to provide the illusion of a person being free to leave. This illusion does not sit well with me, leaving as it does, an indelible impression of an attempt to circumvent the need to make the application to detain a person using the Mental Capacity Act, which application could be challenged.

I am also satisfied that none of the residents at Minos Taurus, who are there on a “voluntary” basis are capable of negotiating or navigating that maze successfully and that within a few short minutes of being in the maze unaccompanied they would become fearful, lost and no doubt calling for staff to help them. That is not an indication of them consenting to be in the home or wishing to remain there, but the reality of them being simply incapable of negotiating the obstacle that has been placed in their path by Mr Ian K Harris and his father, Ellis.

This, however, is the only matter that I can set against the 7 positive factors listed above to indicate that there might be a degree of deprivation of liberty rather than restriction of it. I do not feel able to imbue that matter, grave as it is, with sufficient weight to tip the scales against those 7 positive factors.

Much as this conclusion might leave a bad taste in my mouth, the construction of the maze being a clear device to circumvent suggestion that L and his fellow residents are deprived of their liberty, I am in difficulties on the authorities to reach the objective conclusion that L’s family invite me to make. Given that some of the authorities find that locked doors and physical restraint need not amount to an objective deprivation of liberty, and that those factors are not present in this case, I am driven by the authorities and an analysis of the law to find that there is no such deprivation of liberty.

However, my conclusion is that L would like to have a member of his family to visit him in the unit and to walk with him in the grounds. Should they happen to wish to wander in the maze, and should they happen to find their way out (perhaps with the benefit of the aerial photography that can be found at G42 of the Court bundle) then that might be a coincident outcome.

If the unit were to refuse to allow L to be visited by his family and to walk with them in the grounds, or to refuse to allow L to leave by the exit of the maze, should he find his way there, then I would be minded to find that a deprivation of liberty had occurred at that point. Indeed, I determine that if they were minded to do so, they should make the relevant application to give them authority to deprive L of his liberty to walk in the garden with his family.

The same would be true of any of the other residents of Minos Taurus, and I am happy for this judgment to be published and made available to the family members of all other residents of the unit.

I apologise that my solution and judgment in this case is more akin to the Gordian Knot than Ariadne’s ball of thread, but I trust that it will meet with some satisfaction in at least some of the participants of this fascinating piece of litigation.

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Posted in adult social care, imaginary judgment and tagged article 5, deprivation of liberty, DoLS, imaginary judgment, mazes, mig and meg, poetic justice?. Bookmark the permalink.

Is more Hedley than the Mail *

Posted on April 16, 2012 by suesspiciousminds

My ongoing and ever growing brain-crush on the Honourable Mr Justice Hedley continues apace, in K (Children) 2012 – which can be found here :-

http://www.familylawweek.co.uk/site.aspx?i=ed97030

*(apologies for the title, the story has nothing whatsoever to do with the Daily Mail)

This case is not particularly remarkable for its grappling with complex legal issues or because it resolves a matter of grave national import. The facts of the case are incredibly sad and the matters of huge importance to the family and those working with them, but the case is of interest and significance for the way that the Judge approached matters. I hope that in years from now, we will see this case as one of those times when fish climbed out of the sea with stubby fins onto the land and gulped pure clean air. (Probably not, but I am, despite eighteen years in child protection law, an incurable optimist and a hopeless romantic)

I would urge you to read these short extracts, but effectively, this is exactly what I had in mind when I wrote about an inquisitorial approach (actually well beyond, in the right direction).

The Judge was dealing with a case with three children with profound special needs as a result of their disabilities, and the dispute that the family were having with the Local Authority about services for the children; culminating in the issue of care proceedings and there being considerable conflict in the papers as to where the children should live and whether the threshold was met. It could very easily have been approached as a classic adversarial case and the parties spending two weeks in the High Court tearing one another to pieces and seeing who was limping least at the conclusion of the case.

Instead, a very different approach was adopted.

16. Because all this seemed to me both unusual and difficult, I have gone about its resolution in an unusual manner, albeit with the consent throughout of the parties. The fundamental purpose has been to see if a way forward can be found in partnership, which, as I have said, must happen indefinitely into the future, without the need for a damaging trial over the question of whether the threshold criteria have been satisfied. I regarded this approach as all the more urgent in this case because of the deeply conflictual tone of almost all the statements, not just of the parties towards each other, but of the Local Authority towards some experts and, of course, a letter from Simon suggesting, unsurprisingly no doubt, that he has been drawn up to his ears into this dispute. It is the fact that some two years have passed since a Local Authority social worker was admitted to the house and it is the fact that, until this hearing began, the parents had not spoken to the current social work team. It was a matter of relief that on one matter all parties were agreed. This could not go on and change had to occur. It is also worthy of note that, as a matter of fact, the combined work of the parents and the professionals to date has in fact succeeded in promoting and safeguarding the welfare of the children in very substantial part. Despite the ongoing conflict with the family, the Local Authority social workers have managed to negotiate substantial investment in the family, including procuring the two places at H, and there is no reason to doubt that the parents have secured the children’s emotional welfare throughout.

17. I have pursued this aim by making my provisional views about the case and my suggested possible route to solution much more readily available than would necessarily be right were I hearing an arm’s length trial. I have allowed considerable amounts of court time over the last seven days to be used outside the court room. From those discussions have emerged four agreements: one between the Local Authority and the parents, one between H and the parents, and a tri-partite agreement between them all, and a further agreement between the Local Authority, the parents and the proposed coordinator or case manager in this case. There are two issues of disagreement remaining and all agree that they can be considered in this judgment and then acted on by the parties.

18. Moreover, on the second day of the hearing we adjourned to H, who kindly made their boardroom available to us. During the course of discussions, the parents met constructively with the social work team under the aegis of the guardian, though of course this must only be the start of what needs to be a regular pattern of meetings. I had a chance to see the premises and speak informally with the general manager and the chief executive. I also had the chance to see the family together, of which more in a moment. At the request of the parties, I also went to the special school (F) attended by Alec, Alice and now Zac, and spoke informally with the headteacher and a member of the medical staff. I wish to record my gratitude both to H and F for their tolerant hospitality, and I have written personally to the general manager and the headteacher to express that. In a case in which, as I have said, context is everything, I found this second day particularly valuable. In short, this case, being unique, has received unique treatment.

And here :-

43. I greatly appreciate the effort of all – family, professionals, Local Authority, H, guardian, as well as the legal teams who have given clear advice and have been willing to adopt both an unconventional and a non-confrontational approach, all of which have served to secure this end. I want only finally to say this. Whatever the disputes of the past, this remains an intact family in which the best interests of the children are paramount. I hope this case has given the parents the confidence to continue the task that compels the admiration of all. I hope, too, that in that renewed confidence they will feel less anxious, will feel that they do not always need to be right on everything or in control of every issue, but will learn to trust others and to respect and consider contrary views; in short, that all will come to recognise that that which will unite this family, and H and the Local Authority in the future, is not the written agreements, important though they are, but their shared commitment to promoting the welfare of these children, especially Alec, Alice and Zac, who of course have nowhere else to turn.

Now, all of this may have come in the context of a unique family (I nearly said very unique, but of course that concept is a nonsense), and I note that the school provision for the children is costing £246,000 in 2012 and will increase year by year; and that in those circumstances one can understand that there is more willingness to be flexible and supple and try a different approach, but I really would like to see much more of this.

At the risk of getting into private law, which is no longer my cup of tea, I have thought for some years that an approach in private law where the Judge indicates really early on what a desirable final outcome for the children would be [that they see both parents, spend lots of time with both, know that each parent loves them very much and that whilst they don’t love each other any more, that doesn’t stop mum being mum, and dad being dad, that new relationships for mum or dad don’t change that at all] would be, and directs the parties as to how to get from this awful starting point to that desirable finishing point, is worth considering…. sorry to keep people waiting for that unexciting ending…

Comments Off on Is more Hedley than the Mail *

Posted in case law, family justice modernisation and tagged disability, fresh approach, got my spine I've got my orange crush, inquisitorial. Bookmark the permalink.

“Gone till November, I’ll be gone till November” *

Posted on April 13, 2012 by suesspiciousminds

Has the 26 week target been snuck in by the back door?

There’s a new computer system for care proceedings in the Courts which tracks a variety of useful pieces of information, and is worth reading, because it has come in for all new cases issued after 2^nd April.

The Courts have been given some guidance, which I set out below, and can also be found here :-

http://www.familylaw.co.uk/system/uploads/attachments/0004/3875/Care_monitoring_system_guidance_for_practitioners_April_2012.pdf

Look specifically at the passages about Timetable for the Child, which is all calculated on the basis that the timetable for the child (in which the proceedings should be resolved) is 26 weeks from issue. This is in readiness for the change to the law to make that a hard cap. (but of course we don’t yet have such a cap)

Obviously, this is just guidance to the Court staff on the new system and not legal authority for 26 weeks, but I do suspect that some resistance will be encountered when listing IRHs on new cases that go outside the 26 week period that the computer is setting as a maximum, and it appears that where the Court decide that the case will go over 26 weeks they have to make a formal decision about this and record it on the face of the order.

It’s always nice, when introducing new principles about timing of care proceedings, to bury them in some guidance to court staff as to how to use their new computer system…

THE NEW CARE MONITORING SYSTEM:

GUIDANCE FOR PRACTITIONERS

The new care monitoring system (CMS) is a judicially led management information programme intended to provide accurate ongoing information about case volumes, case progress and allocation. The system will provide the case management information necessary to enable leadership judges and the administration to oversee and manage public law caseloads and the allocation of individual cases in their Care Centres. The programme will also assist judges, legal advisers and magistrates to focus on avoiding delay for children and will help identify the real causes of delay. CMS has been jointly developed by the judiciary and HMCTS and has been written to a judicial specification which looks at both the real progress of a case through the court and the DFJ’s and JC’s responsibilities for all cases within their courts.

The system is being piloted nationwide from the 2nd April 2012 from when all new care and supervision cases will be entered on to the system.

The CMS case summary will provide judges/legal advisers/benches with ongoing information updated for every hearing about the ages of the child or children they are dealing with, the length of time a case has been running (measured in weeks), the number of hearings which there have been, any adjournments of hearings and applications for experts.

TRACKING THE AGE OF THE CASE BY REFERENCE TO THE TIMETABLE FOR THE CHILD

In preparation for the reforms which are contemplated in the family modernisation programme, and for the purpose of this trial, all cases will be given a standard 26 week timetable on issue. The system will keep track of where the case is in the process and whether it is on time to be completed within the 26 week period.

If, at any point, the court decides that the timetable for the child is such that the proceedings will not be completed within 26 weeks of issue then it will make a decision about this. The determination of the timetable for the child must be done at the CMC. This must be done in court in the presence of the parties based on the evidence and information available and what it is necessary to do to conclude the proceedings. The timetable should then be expressed as the expected number of weeks which are necessary to conclude the proceedings. This must then be recorded on the face of the order (usually in the form of a recital). Staff will use that order to input the data onto the CMS.

The timetable for two or more children involved in the same proceedings may be different. Once the expected conclusion date has been set as being outside 26 weeks, it cannot be reset; however this does not preclude the case being completed earlier than the expected conclusion date.

* Re November – it doesn’t quite work out, because 26 weeks is mid-October, but I didn’t think “October, the trees are all bare’ works as well, and also, it reminded me of the brilliant Vic and Bob sketch, where Vic is Craig David, working in a garage shop, and Bob is his manager, rollicking him for not turning up on Monday, Tuesday, Wednesday, etc and then Chilling on Sunday. Craig David quits, and is replaced by Wyclef, who cheerfully tells poor Bob that he’ll be “gone till November”

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Posted in family justice modernisation, timescales and tagged 26 weeks, computers, craiig david, meaningless buzzwords, modernisation, timetable for the child, wyclef. Bookmark the permalink.

Nobody expects the English (and Welsh) Inquisition

Posted on April 13, 2012 by suesspiciousminds

(their chief weapons are delay, their devasting deployment of working parties and committees, and more delay)

This post arises from Mr Justice Ryder’s fourth tranche of Modernisation updates.

You can see an excellent analysis of this update over at Family Lore here:-

http://www.familylore.co.uk/2012/04/family-justice-modernisation-programme.html

and the actual source document is here :-

http://www.judiciary.gov.uk/Resources/JCO/Documents/family_newsletter4.pdf

The bit that has really struck a chord with me is the recognition that what we have at present is not the “inquisitorial” system that it is often labelled, but at best “quasi-inquisitorial” and in reality “adversarial”

This is not a quasi-inquisitorial approach. It is a full inquisitorial approach with the

court in the driving seat in relation to the issues to be tried and the evidence which is necessary for that hearing to be conducted fairly.

Recently, every time anyone has said to me that we have an inquisitorial system and not an adversarial one, my response has been “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”

Short of ducking-stools for witnesses, I’m struggling with a suggestion to make our process more adversarial.

[Not that this is necessarily de facto wrong – you might well argue that when the State and Courts are deciding what should happen inside a family, that this is just as worthy of an adversarial system as crime, or personal injury; but rather that the illusion of it being an inquisitorial system is a nonsense. If it is a good thing to have an adversarial system in family law, then let’s say so and be transparent about it, but if we think an inquisitorial system is the right way to do it, then let’s genuinely have one]

So, how could we make the system an inquisitorial one?

The Family Drug and Alcohol Court is a reasonable model – though it takes longer and no doubt costs more, the outcomes – in terms of keeping families together and having rehabilitations that work, are far superior to other Courts.

My imaginary version of an inquisitorial system would work like this (and I don’t claim it is without flaws) :-

The Local Authority file their threshold document, outlining what has gone wrong in the past, and also outline the areas that they would want to change in the future. Where there are practical steps that the parent could take to address the concerns, they should be set out.
The parents with the assistance of their representatives produce a response to threshold, outlining what is accepted and what is not, and outlining where they accept a need to change, and whether they will take the practical steps put forward.
If there is agreement, the heads of that agreement will be approved by a Judge, who will make it plain that progress in relation to the areas of concern will be necessary by the time the 26 week period is up, and that the parents will be measured against what they do (moving away from the psychological bent of what a parent is theoretically capable of with the right support and towards what they actually do]
If there is a dispute, the Court will consider matters and give a judgment that sets out clearly where the LA concerns are justified, and where they are not, and what has to be done between now and the final hearing, by all concerned.

[In essence, this would be similar to the written agreement that is attempted at Letter Before Action stage, but this time, it would have the force of the Court behind it. If the Court rule that the level of drinking these parents do isn’t problematic, then we knock that issue on the head and waste no further time on it unless matters deteriorate. If the Court feels that these parents would need to stop using heroin in order to parent to a good enough standard, then the parents can hear that from the Court, rather than from the social worker they’ve no time for…]

It would be the Judge, at that stage, who would decide what expert evidence they require to allow a fair outcome in the case and what information needs to be gathered. Of course, representations can be made, to ensure that the Judge has considered matters from a variety of perspectives, but rather than the Court being asked to approve the instruction of experts, the Court drive the process and decide what expert evidence THEY need to make the right decision. And they set the questions (again, with some input to ensure that if there’s a critical issue that might be overlooked it is drawn to their attention, but getting away from the Letter of Instruction being a document produced by committee with the questions being pulled this way and that so that they end up being sprawling, voluminous and anodyne, and instead, focus on the questions that the Judge needs the expert to give guidance on)
The Issue Resolution Hearing becomes the sort of hearing we were promised when the PLO launched, conducted by a Judge who has (a) judicial continuity (b) time to consider the papers and embrace the issues, and with advocates who are prepared to set out what issues are agreed and which are controversial, and what the proportionate way of dealing with the controversial issues are.
At the final hearing, if less than fifty per cent of the questions asked of the professional witnesses don’t come from the Judge, something has gone wrong.

Now, of course, you can’t do any of that whilst Judges have the time pressures that they currently have. Anyone who comes to family courts will have noticed how the lists have swollen over the years, and tackling a directions day must now be something akin to trench warfare for a family judge – just getting through the day is a triumph, never mind the overarching strategic objectives.

It might well be that this sort of inquisitorial approach would free up space at the other end of the spectrum – having Judges spend far less time on cases where no stone is left unturned, no bad point left untaken, and no contact record unthumbed. But I suspect that those savings would take time to come through, and that poor Judges would find themselves in an unenviable interlocutory position of having to be continuing trench warfare in the old style cases and having to be Field-Marshal Montgomery in the new style.

As a sidebar, here’s a little theory – I would wager that an astronomically greater proportion of collective brainpower and prep (in terms of Judges, solicitors, counsel and professionals) goes into each minute of a final hearing compared to a Case Management Conference, but if you put that same degree of focus and thought into a CMC, you’d reap substantial rewards at the end of the case, by getting things right at the beginning.

And of course, the listings stick the CMCs right in the middle of that trench warfare directions day, when a Judge is listening to the fourteenth set of people who have ‘helpfully agreed some directions for your approval’ and with a portion of their mind turning to the next nine cases that are waiting outside…

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Posted in family justice modernisation and tagged adversarial, I'm Sean William Ryder, inquisitorial, modernisation. Bookmark the permalink.

“Whatever happened to the likely harm?”

Posted on April 6, 2012 by suesspiciousminds

The Court of Appeal gave judgment this week in an interesting case where they attempted to cut through the thicket of authorities on whether having identified a parent as one of a pool of possible perpetrators in an earlier case, the Court should approach a future case involving the parent as either a sole parent or in a new relationship. Is there a likelihood of future harm made out as a result of the first finding, or is the likelihood only applicable where the Court found that the parent HAD caused the injuries and the previous finding be completely ignored if it is a ‘pool of perpetrators’ finding, or does each case turn on its individual facts?

It has been settled law for some time that a Court faced with a non-accidental injury (or indeed sexual allegation) can find that the threshold is met even if it is not possible to identify which of the parents is the perpetrator of the abuse, and this was extended still further with the parents AND a third party being the potential perpetrators and the Court being unable to exclude the parents from being the perpetrator of the harm/abuse ( which is commonly called a “Lancashire” finding – I wonder if they call it that in Lancashire, or if like French kissing and Brussel sprouts, they have an entirely different term for it in the eponymous locale)

Indeed, there are authorities to indicate that where it is not possible for a Judge to exclude on the balance of probabilities one of the parents, the Court should not ‘dance on the head of a pin’ to try to decide, for example that the injury was 60% likely to have been committed by mum, and 40% by dad, so that dad is not ‘more likely than not’ to have caused the injury. (Re SB)

But there is a conflict between various authorities as to whether, when a parent is the subject of a “Lancashire” finding and goes on to separate from the other subject of that finding and go on to found a new family, that finding has any evidential weight in establishing the threshold with the new child, or whether it should be ignored completely.

RE J (CHILDREN) (2012)

[2012] EWCA Civ 380

All of my quotations here are taken from the lead judgment of Lord Justice McFarlane, who has again done most of the heavy lifting, in a case which has required a great deal of it.

The Court identify, with the succinctness that is their hallmark, the issues of judicial importance in the appeal here :-

16. Put shortly the point raised by this appeal is as follows:

a) Where a previous court has found that there is a ‘real possibility’ that one or other or both of two or more carers have perpetrated significant harm on a child in his/her care;

b) Is that ‘finding’ a ‘finding of fact’ that may be relied upon in subsequent proceedings relating only to one of the potential perpetrators in support of a conclusion that there is a ‘real possibility’ or likelihood of a subsequent child in a new family unit of which he/she

is part suffering significant harm or is it a ‘finding’ that must be totally ignored in the subsequent proceedings?

17. There have been authoritative statements in judgments of the Court of Appeal and the

Supreme Court which assert that the previous adverse ‘finding’ must be totally

ignored in any subsequent proceedings involving a new family unit, on the basis that a

‘finding’ that there is a ‘real possibility’ is not a ‘finding of fact’ at all as, by

definition, it falls short of a finding on the balance of probabilities. Despite these

apparently clear authoritative statements, the appellant argues that such statements

are, or may well be, at odds with the fully reasoned analysis of the approach to be

taken to the statutory threshold criteria in Children Act 1989, s 31 as set out by Lord

Nicholls of Birkenhead in a trilogy of cases in the House of Lords.

The particularly troubling authority, is the Supreme Court authority of Re SB, and this passage in Baroness Hale’s judgment :-

“49 There is a further reason to remit the case. The judge found the threshold crossed in relation to William on the basis that there was a real possibility that the mother had injured Jason.That, as already explained, is not a permissible approach to a finding of likelihood of future harm. It was established in In re

H [1996] AC 563 and confirmed in In re O [2004] 1 AC 523 , that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities. It is only once those facts have been found that the degree of likelihood of future events becomes the “real possibility” test adopted in In re H. It might have been open to the judge to find the threshold crossed in relation to William on a different basis, but she did not do so.”

And the assertion therefore is that in allocating a pool of perpetrators, the Court has not said in relation to any particular one of them that they HAD caused the injury, but rather that an injury HAS been caused and that there is a real possibility that it was caused by A or B. That is sufficient for THAT particular child, but on moving onto another child born to A or B at a later stage, it does not satisfy the threshold criteria for the younger child.

As a Local Authority hack, it would greatly trouble me for the Court to conduct a fact-finding hearing, and decide that the injury was caused by either A or B, and neither could be excluded, but for A and B to then part company and have new families, and the finding to be completely excluded from consideration (rather than an approach where there is a historical risk to be assessed and considered by the Court and the parents change in circumstances, passage of time, any reflection or admissions etc be taken into account as to what action, if any is required in relation to the new child)

You will spot immediately, that the Court of Appeal are in difficulties, since they can’t over-rule what Baroness Hale said in Re SB (though if they consider that the interpretation of what Baroness Hale said has been misconstrued, they can provide some clarification)

The next problematic authority is Re F (Interim Care Order) 2011, and the facts of that case are set out below :-

The second recent authority which has been at the forefront of our consideration is ReF (Interim Care Order) [2011] EWCA Civ 258. Re F involved a father in respect of whom there had been a previous finding of fact relating to his eldest child who had suffered two leg fractures. In care proceedings relating to that child the finding as to the perpetrator of the fractures was that both of that child’s parents were in the pool of possible perpetrators. Time then moved on, the father separated from that child’s mother and he became a parent for a second time when a baby was born to his new partner. The local authority issued care proceedings with respect to the new baby on the basis that the previous finding of the father being a possible perpetrator was sufficient to cross the threshold criteria on the basis that the new baby was likely to suffer significant harm. The trial judge dismissed the care proceedings on the basis that the previous finding was insufficient to support a ‘likelihood’ threshold finding in relation to the new baby. The trial judge did, however, grant the local authority permission to appeal to the Court of Appeal.

The Court of Appeal, when hearing Re F, grappled with the Re SB issue here (my bolding):-

Mr Heaton contends, and Mr Hayden concedes, that the reasoning so clearly set out in In Re S-B, at [49], has caused great consternation among local authorities, among other professionals who work in the area of public law and among academic commentators. Mr Heaton’s aspiration is to persuade the Supreme Court to modify its demand for proven factual foundation in uncertain perpetrator cases. Take, says he to us this morning, a case of two parents who are consigned to a pool of possible perpetrators of non-accidental injuries to their child; and who then separate; and who each, with other partners, produce a further child, who together become the subject of conjoined care proceedings. Are both those applications for care orders required to be dismissed even though before the court is, on any view, a perpetrator of injuries to that older child? No doubt there are hard and worrying cases. But the requirement of proven factual foundation is a bulwark against the state’s removal of a child from his family, which I consider very precious. I also applaud the Supreme Court’s regular acknowledgement of the fact that, although it can depart from its previous decisions, the exercise of departure is highly unsettling for the law and should be undertaken only with great caution.

For those reasons I would not wish us to foist upon the Supreme Court a full appeal in circumstances in which it had not itself had the opportunity to consider whether to accept it.”

As luck, for good or ill, would have it, the parents in Re F made some other admissions which were capable of resolving the threshold, and therefore the issue of whether threshold was met fell by the wayside, but the problem as outlined by Mr Heaton above, remained a live one, hence the Court of Appeal revisiting it in this case of RE J.

In a nutshell, here are the counter arguments deployed by the parties :-

76. Mr Cobb’s attractive presentation of his case leads the judicial listener

through the words of Lord Nicholls endorsing, as he does, the earlier utterances of Wall J and Hale LJ. The Local Authority’s ultimate submission is that the court should adopt theapproach of Lord Nicholls in Re O and N to the determination of the “likely to suffer” threshold criteria in a later case, with the result that an uncertain perpetrator from anearlier determination is regarded as equally likely to have been the cause of past significant harm, and that that established “fact” is a sufficient vehicle to satisfy the threshold in the later case.

77. Attractive though that argument is, Mr Paul Storey QC on behalf of JJ and Miss Rowe QC on behalf of DJ argue that it is untenable. They submit that to compare the stage of proceedings being described by Lord Nicholls in Re O and N with the stage of proceedings being undertaken by HHJ Hallam in the present case is not to compare like with like. In the former the threshold was crossed and there was no strict evidential yardstick to be deployed by the court in exercising its jurisdiction in affording the child’s welfare paramount consideration in deciding what, if any, order to make in the concluding “welfare stage” of the proceedings. Judge Hallam, on the other hand, was required to operate within a strict evidential context, only relying on past facts which had been established on the balance of probabilities.

78. The opposing counsel submit that Mr Cobb’s argument falls down because a finding that someone is in the pool of perpetrators is no more than a finding on the basis that there is “a real possibility” that they perpetrated past injuries, a finding which by definition falls short of the balance of probabilities. To use that finding as the basis for holding that there is a further “a real possibility” (that is a likelihood) of that person causing significant harm in the future, is to find the threshold crossed on the basis of two successive findings of “real possibility” and no finding at all of fact on the balance of probabilities in relation to the one, now separated, parent. Mr Storey submits that such an outcome, on the present law, would be impermissible and that parents and children would risk permanent separation by the State in circumstances where absolutely nothing adverse about the parental care had been established on the balance of probabilities.

In weighing matters up, the Court of Appeal warned against the risk of artificially limiting or restricting the issues and evidence available to the Court and gave this helpful guidance (again, bolding is mine)

81. Pausing there, I would question the desirability of artificially limiting the judicial consideration to just one, albeit important, aspect of the case. A judge hearing a fresh s 31 application, some years later, about a new family unit which involves a parent about whom adverse findings have previously been made in another family context, should be exposed to the full detail of the available evidence and be permitted to come to her own overview and determination taking into account all of the material insofar as she considers it to be relevant and giving it such weight as she may see fit at the time of her determination. Artificially to limit the judicial exercise in a manner which invites the court to ignore part of the evidence in the case, might well set up the legal point for determination in a clinically clear and legally accessible manner, but it cannot, in my view, represent a proper exercise of the judicial task. In determining whether the threshold criteria are satisfied in relation to each of these three children as at 3rd March 2011 a judge must be under a duty to acquaint herself with all of the available evidence and then bring it to bear on the ultimate question of whether, in the context of this case, each or any of these three children can be said to be “likely to suffer significant harm” attributable to failures in parental care likely to be given to him as at that date.

82.I would go further and criticise the decision to tee up the preliminary issue for

determination within an otherwise entirely empty evidential context. By the relevant date seven years had passed between the death of T-L and the commencement of child protection procedures in relation to the new family unit. JJ was seventeen when T-L died and she is now twenty five. Much has no doubt happened in her life in the intervening period, some of it has continued to involve SW. On the positive side it is apparently the case that she had lived with these three children as DJ’s partner for well over two years prior to the implementation of protective measures and without apparently causing any degree of concern to child protection professionals.

83. When a local authority issues a s 31 application seeking the court’s determination that the threshold criteria is crossed at the present time in relation to a child or children, the court must be under a duty to ensure that it has before it not only evidence of what may have happened in one of the parent’s lives years before, but also some account of the events in that parent’s life during the following years and the current circumstances in the family unit which is now being brought before the court within the proceedings. The extent, quality and character of the evidence that a judge may need will of course vary from case to case. But in the present case it would seem to me that, in addition to social work evidence as to what, if any, social work and other professional contact there has been with the mother and/or the new family over the intervening period, together with a basic social work assessment of the children’s current circumstances within the home, there should be an expectation for the mother to file evidence which should include an up to date statement of what she now says with respect to her care of T-L and the matters that had been the subject of HHJ Masterman’s findings.

84. A judge in care proceedings at the threshold stage has the important responsibility of determining whether or not he or she is satisfied that, at the relevant date, that is therefore in the current period of time, the threshold criteria are or are not satisfied with respect to a particular child. Artificially to limit the judicial exercise to the consideration of facts relating to a period seven years earlier and, further, to limit consideration to only some of those facts, seems to me to fall well short of the required evaluation of the circumstances of the new child before the court in the current time period.

85. Despite making these negative observations about the process adopted in this case, I have nothing but professional sympathy for HHJ Hallam who was presented with the task of determining the preliminary issue in accordance with ground rules chosen by the parties. The Local Authority chose not to file any additional evidence. A direction for the mother to file a statement was made but produced no more than a position statement. The Local Authority expressly elected not to rely upon any of the negative findings made by HHJ Masterman other than those relating to the perpetrators of physical injury. Having been presented with the case within this restricted compass, HHJ Hallam was further handicapped by the fact that she was not HHJ Masterman, who had plainly regarded the aspects of the case that fell short of the direct physical injury of T-L as being of an equal standard of concern with the infliction of those injuries.

86. It is sometimes convenient, efficient and realistic for local authorities to make concessions as to aspects of the evidence. Indeed, such no doubt is the stuff of every day experience in courts conducting care proceedings. There is, however, a danger of such matters being elevated to the status, as would be the case in civil proceedings, of points of pleading, thereby removing from the judge’s consideration evidence which may, despite the view of the local authority, be of some importance

I think that this paragraph, during the Court of Appeal’s analysis of the authorities and the issue at hand, demonstrates the Court’s willingness to approach this with child protection being at the forefront :-

92. Standing back from these cases, there is, I would suggest, a qualitative difference, in terms of the need for child protection, between a situation where absolutely no adverse findings have been made as to past child abuse, and a situation where serious findings of child abuse have been made in relation to a child in the joint care of her parents either one or both of whom were the perpetrator(s).

I am, of course, biased, but that seems to me an entirely sensible approach. Of course there is a difference in the risks to be considered where one parent has been found to be a potential perpetrator of really serious injuries as opposed to a parent who has never come to the attention of the Local Authority, and pretending otherwise does not address the issues. (That doesn’t mean that the previous finding automatically damns the parent, but it must be right that there is a risk to be weighed and assessed in relation to whether there is a risk of future harm arising from it)

108. With respect, I do not consider the very narrow evaluation of this issue which it is said the short judicial statements in Re S-B and Re F require is supportable on the basis of the earlier authorities, the principal one in this context being the Court of Appeal judgment of Robert Walker LJ in Lancashire County Council v B which allowed the appeal in relation to the child minder’s child, B. In my view the Lancashire case can be readily distinguished from the present case. The only culpable matter that could have been established against the child minder was that she had caused the injuries to child A. The evidence was insufficient to establish, on the balance of probability, that she was the perpetrator. There was no suggestion that she would in the future be part of a group of carers with the parents (about whom, collectively, there was a finding). There was therefore no proven fact upon which the risk of future harm could be established.

110. The Lancashire case in the Court of Appeal is undoubtedly authority for the proposition that where there is absolutely no adverse finding of fact against a parent, the likelihood threshold cannot be established. It is not, however, authority for the obverse proposition that you can only establish the likelihood threshold if you can identify the perpetrator irrespective of any other adverse findings that have been made.

111. Likewise Re S-B is not authority for the proposition ‘if you cannot identify the past perpetrator, you cannot establish future likelihood’. In that case, which was of a oneoff (‘whodunit’) injury, there was no question of failure to protect and no finding of collusion. Thus when, in paragraph 49, Baroness Hale describes as it as impermissible to hold that the likelihood threshold in relation to the non-injured child, William, was established on the basis only that there was ‘a real possibility’ that the mother had caused the injury, she does so in the context of there being no other adverse findings against that mother.

And here is the conclusion:-

114. At paragraphs 79 to 87 I criticised the narrow and legalistic approach adopted before HHJ Hallam in the present case. In my view, where there are significant adverse findings made on the balance of probability against a parent in previous proceedings, irrespective of the previous court having been unable to identify a perpetrator, a court seized of an application under s 31 has a duty to look at all of the available material including those adverse findings. Each case will no doubt differ from each other both on the question of whether in the new circumstances the s 31 threshold is actually established and on the question, if it is, whether the welfare of the child requires protection under a s 31 order. These are matters for courts to evaluate on a case by case basis and are not the stuff of a blanket policy based on the single point that,irrespective of what else has been found, if the past perpetrator has not been provedthe threshold cannot be crossed.

Given that the Supreme Court in RE SB weren’t deciding this issue, but the principle has been derived from authority building on judicial decisions made within the SB case, it would seem to now be the law, unless and until the point comes before the Supreme Court, that :-

A Court is not obliged to ignore a previous finding purely because it was made on a “Lancashire” type basis (that a parent is one of a pool of perpetrators), but has to look at all of the available material to consider whether the threshold is made out.

That appears to me to be a very good compromise between the polar opposites of ‘A past finding of harm equals likelihood of future harm always’ and ‘if you were only identified as one of a pool of perpetrators rather than the actual perpetrator, that must be ignored when determining future risk to other children’

The future

130. The difficulties that have arisen in this case, in Re F and no doubt elsewhere, originate from the Lancashire case in the Court of Appeal and have been given additional focus and emphasis by Baroness Hale’s words in paragraph 49 of Re S-B. We were told, and I readily accept, that the situation is a cause for concern amongst child protection agencies.

131. Given the importance of the point in terms of its impact on the ground for families and for those charged with protecting children, there is a pressing need for the issue to be determined by the Supreme Court so that a clear and full statement of the applicable law is achieved.

I am not sure whether any of the parties to the case intend to appeal the Court of Appeal decision, but I read that sentence to mean that they might be pushing at an open door in such an application for leave to appeal.

I’m reminded that of the three most crucial case-law arguments / decisions which could be categorised as a debate between a narrow construction of the law and the Court’s ability to make the orders that they consider in the best interests of children, all three have now been ruled on and gone against the narrow legal construction.

(the previous two being the debate that certain remarks in RE H &R meant that the standard of proof with serious allegations was higher and that the difference with such serious allegations between the civil standard and the criminal standard was largely illusory, and the ‘imminent risk of really serious harm’ being the soundbite test for ICOs where the care plan was separation)

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