RSS Feed

Author Archives: suesspiciousminds

Your very best friend

 

No, not this guy

 

I also hate that duck, and he is not my very best friend, despite what he claims in song form

I also hate that duck, and he is not my very best friend, despite what he claims in song form

 

I want to do a little thought experiment with you.

Step 1. Imagine your very best friend. Try to get them in your mind. For shorthand purposes, as I don’t know the name of the best friend of each and every one of you, I’m going to call this notional best friend Janice.  Imagine that friend, get them firmly in your head. I’m also going to assume that out of 100, you’re going to score this friend 80 or above – so it’s someone you like a lot, and someone you can count on.   (On this friendship scale, Bert and Ernie, or Joey and Chandler are 100, Ant and Dec high nineties.)

 

Step 2. Imagine that you feel like you might have put a little bit of weight on. Not a lot, just a bit. Christmas, orange matchmakers, a bit too cold for running. So you say this to Janice, and you also say “I want you to help me lose weight. I know I’ve got no willpower, but with your help, I can do it.”  Janice kindly agrees.

Step 3.  Janice suggests that you give up some of the things that you like. It’s not ideal, but you know it is for your own good, so you agree. Janice says “I know you’re weak-willed, so I think maybe I should pop in on a Tuesday, make sure you’re not eating that bad stuff, and sticking to salads and quinoa and whatnot.” You agree.

Step 4. Janice pops round every Tuesday. She watches what you eat, asks you about what you ate yesterday, maybe what you’re going to eat tomorrow. She says “Maybe I should just check in your cupboards, while I’m here. Make sure there’s no jaffa cakes in there.”

Step 5. You get home on a Thursday. There’s a note from Janice pushed through your letter-box. “Called round – disappointed you weren’t in. Decided it would be best if you didn’t always know which day I was going to come check up on you.”

 

How much, out of 100 are you scoring Janice on the friendship stakes now? Remember, this is your best friend, and you did ASK her to help you lose weight. And you do WANT to lose weight.  Still, though…

 

Maybe your friendship is becoming a bit more like this...

Maybe your friendship is becoming a bit more like this…

 

Let’s continue.

Step 6. Janice calls round on a Monday. She has some weighing scales and a measuring tape.

Step 7. Janice says that really, to find out why you’re fat, she wants to talk about what you used to eat when you were young, find out what the patterns were then.

Step 8. Janice wants to check your phone, make sure you haven’t been dialling for pizza or takeaways. She asks if you’ve got an itemised bill she can look at.

Step 9. Janice suggests that you join a group, weightwatchers to help you with your problem.

 

How are you feeling about Janice now?  Are you contemplating making a voodoo doll of her out of macaroni and pesto?

Step 10. You ask her to stop. You don’t want this any more. You regret ever involving her. You’re happy as you are. Janice says “I’m not going to stop, not until you’re slim enough”.  You ask her what “slim enough” means, and she says “I’ll tell you when you’re slim enough”

 

If you’re not hating Janice with a burning passion now, then hello Dalai Lama, it is a real honour to have you read my blog. Thank you. And “Free Tibet!”

 

I’m sure you’ve clocked what this piece is really about. But let’s see it through.

Now imagine that Janice ISN’T your best friend, who you scored 80 out of 100. She’s a complete stranger.

Now imagine that you DIDN’T ASK her for help, she came along uninvited.

Now imagine that you don’t even want to lose weight, you were already pretty happy with how you were.

Finally, imagine that we’re not talking about weight at all, we’re talking about how you parent your children.

 

How do you feel about Janice now? Worse, or better?

 

This one? Or THIS one?

This one? Or THIS one?

 

 

It is pretty hard to imagine, unless you’ve been on the receiving end of it, what it must be like to have a social worker come into your home. It hasn’t happened to me, so I can’t really capture it. I suspect it hasn’t happened to 75% of social workers.  So this heavy-handed metaphor is a way of capturing it.

All of us disliked Janice really early on in that chain of events, even though she started as our best friend and she was doing us a favour. We all wished her bodily harm by about step 8.  (Not you, obviously Mr Lama)

I’m not saying that social workers shouldn’t visit homes – sometimes it is necessary, and important to safeguard children. But we should always try to think about what it is like being on the other side of that doorstep, how it must feel, and to respect that. Because even when it is your best friend doing this sort of stuff, at your request, and when you wanted them there, it makes you bristle and get irritated.

 

What we ask of parents, even when it’s necessary, is no small thing.  It sometimes helps to pull back perspective and remember that.

Keep feeling Vaccination

 

And so the conversation turned, until the sun went down

 

This is a High Court case involving parents who were already in care proceedings, who did not want their child to be vaccinated.  (The decision not to vaccinate was not the reason for the care proceedings, and I think it’s unlikely that it would be considered threshold criteria.)

It helpfully gathers all of the other authorities and principles on vaccination, so although it is a case that turns on its facts (it is not authority for the Court always will or always won’t order vaccination to go ahead), it is useful if it comes up again. It also raises interesting philosophical questions about State intervention and parental autonomy.

 

Re SL (Permission to vaccinate) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/125.html

 

SL was seven months old, and one of four siblings within care proceedings. He was the subject of an Interim Care Order.

 

The local authority now applies under the inherent jurisdiction for a declaration that it is in SL’s best interests for the local authority to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine (hereafter, the ‘Hib’ vaccine) and the pneumococcal conjugate (PCV) vaccine (hereafter the ‘PCV’ vaccine) in circumstances where the mother objects to this course of action.

 

It is something of a law geek pleasure to see that the Dr in the case was a Dr De Keyser, and the advocates in the case would be made of stronger stuff than me if they avoided any temptation to fall into the ‘you say de keyser, I say de Geezer’ dialogue from the Supreme Court article 50 case.

 

The mother’s opposition to the vaccination was because she considered that her older children had suffered adverse reactions to their own vaccinations

 

 

  • The mother’s opposition to SL being given the Hib vaccine and the PCV vaccine is based primarily on adverse reactions to being so immunised that she states that her other children have undergone in the past. Professor Kroll was accordingly also asked to consider whether there is anything in the older children’s medical records that causes him concern regarding SL receiving the disputed immunisations. Professor Kroll, being careful to note that the abbreviated medical records provided to him may not be complete, makes clear that in none of the records he reviewed relating to SL’s siblings detail any significant adverse reaction to vaccination in general or to Hib or PCV vaccination in particular in any of the children. Professor Kroll further opines that even had there been evidence in the medical records of some reaction, this would not, in general, constitute a medical contraindication to vaccinating SL.
  • Within the foregoing context, Professor Kroll concludes that there is no medical reason why SL ought not to have the vaccinations in issue according to the UK immunisation schedule. He further concludes that withholding the Hib and PCV vaccines for SL would mean deliberately maintaining his vulnerability, which is at its maximum given his present age, to two very serious infections which are major causes of infection, including bacterial meningitis. Professor Kroll is clear that whilst not providing total protection, a full course of vaccination provides a “very substantial degree” of protection against these infections. He concludes that, in his expert medical opinion, SL needs to be immunised without delay and to receive booster immunisations at the appropriate time.

 

 

The LA argued that the Court should use their inherent jurisdiction    but they meant “Magical Sparkle Powers TM” to direct that the child should have vaccinations

 

 

  • On behalf of the local authority, Ms Markham QC and Ms Georges submit that the local authority should be given permission to ensure that SL receives the Hib vaccine and the PCV vaccine, the administration of such vaccines being in his best interests. Developing this submission, in particular Ms Markham QC and Ms Georges argue that:

 

(a) The local authority acknowledges the mother’s views regarding the immunisation of SL. The local authority further recognises that the declaration it seeks trespasses on the mother’s Art 8 right to respect for her private and family life insofar as the decision whether or not to immunise a child is ordinarily a function of the exercise of parental responsibility.

(b) On the evidence before the court however, the balance of risk is clear. Namely, the expert evidence indicates clearly that the risk attendant on giving the vaccines to SL are outweighed by the risks of not giving them to him, in particular when regard is had to the likely gravity of the consequences of the former when compared to potential gravity of the consequences of the latter.

(c) Moreover, on the evidence before the court, the decision whether to immunise SL against Hib and pneumococcal infections is not a finely balanced one. Rather, it is plain on the evidence before the court that vaccination is in his best interests.

(d) Had the local authority received further information or evidence suggesting that there was some doubt, or a finer balance with respect to the question of whether SL should receive the vaccines in issue, the local authority may have changed its position. However, no such information or evidence has materialised notwithstanding the directions of the court.

 

The mother’s legal team made these submissions

 

 

  • Ms Connolly QC and Ms Gill made the following submissions on behalf of the mother:

 

(a) Applications for a declaration that it is in the child’s best interests to receive vaccinations are rare. In respect of the decision whether or not to vaccinate a child, parents are accorded a significant degree of autonomy by the State. Ordinarily, a parent in the position of the mother would get to decide whether to have a child immunised as a function of the exercise of that parent’s parental responsibility and would not be brought to court if the parental decision were that the vaccinations should not be given.

(b) The mother relies on three alleged instances of her older children attending hospital following what the mother contends were adverse reactions to immunisation. Whilst the mother has not produced the records associated with these attendances (or, it must be observed, evidence that such records were requested but unavailable), and whilst none of the asserted instances are referred to in the records reviewed by Professor Kroll, she asserts to the court that VL suffered a swollen leg, that DL suffered an ear infection and the CL developed a rash.

(c) The mother’s objections, and the extent to which they are reasonable, must be viewed in the context of the particular matters with which these proceedings are concerned, albeit matters wholly unrelated to the issue of immunisation, and in the context of the SL not being in her care, which factors heighten the mother’s concerns regarding the administration of the vaccines to SL in the context of the alleged adverse reactions experienced by SL’s siblings.

(d) Whilst the consequences of SL catching the diseases, which the respective vaccines are designed to protect against are potentially grave, risk of SL catching the diseases against which the vaccines protect is low, as is the risk that the diseases will have a grave outcome if SL were to catch them.

(e) Within this context, the mother’s considered decision with respect to the vaccination of SL should be respected by the court and the application of the local authority dismissed having regard to the legal principles applicable to that application.

 

On behalf of the child

 

  • On behalf of SL, Mr Tughan QC and Ms Piccos submit that it is plainly in SL’s best interests for the outstanding vaccinations to be given to him. As does the local authority, on behalf of SL Mr Tughan QC and Ms Piccos recognise that a parent is, ordinarily, accorded a significant degree of autonomy by the State in deciding in the exercise of their parental responsibility whether to vaccinate a child. However, in circumstances where there is a dispute between those holding parental responsibility for SL (namely, the mother and the local authority) such that the court is required to determine that dispute by reference to SL’ best interests, Mr Tughan QC and Ms Piccos submit that the evidence before the court indicates that the balance of risk falls firmly in favour of SL receiving the vaccinations on the UK Immunisation Schedule that he has not received to date.
  • With respect to the weight to be attached to the views of the mother, Mr Tughan QC and Ms Piccos submit that the court must consider these views through the prism of the aspects of the mother’s personality identified in the expert evidence in the 2014 proceedings, specifically an obsessive compulsive personality disorder with schizoid personality traits, paranoid personality features and narcissistic personality features.

 

 

I have an unusual position here. My position is that of course children should be vaccinated, and that the scare stories about vaccination lack any proper evidential rigour.  However, my position is also that parents have the capacity to make decisions about their children and their medical treatment even if those decisions are ones that others might consider reckless or stupid or foolhardy. I don’t see that the parent should lose that capacity and have it taken away from them at an INTERIM stage. It might be different if the Court conclude the care proceedings and make final orders meaning that the child will be cared for elsewhere during the remainder of their childhood. But I’d have said that here, autonomy trumps my view that vaccination benefits children, and society.  I would possibly draw a distinction where the child is being denied medical treatment by a parent’s decision which is causing the child pain, harm, suffering or puts their life in danger. But that wasn’t the case here – vaccination would protect the child from a possible future risk, but this child was in no imminent danger.  That’s just my own personal view, which is worth nothing at all, but just to let you know where I’m coming from.

 

The law

 

 

  • As Ms Connolly QC and Ms Gill point out, applications of this nature are rare and there are only a limited number of reported decisions concerning the issue of immunisation.
  • In Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1054, a case which considered a dispute between two parents with parental responsibility within the context of the framework provided by s 8 of the Children Act 1989, Sumner J held that the children concerned should receive immunisations appropriate to their age against the wishes of the mother but in line with the recommendation of the expert medical evidence before the court (which in that case included a report from Dr Kroll instructed by CAFCASS Legal). Sumner J’s decision was upheld on appeal. In in Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1095, Thorpe LJ rejected the repeated categorisation of the course of immunisation as non-essential invasive treatment and considered it to be more correctly categorised as preventative healthcare. Within this context, he observed that:

 

“[16] The apparent freedom of each [parent] to act alone is not, however, unfettered. As Dame Elizabeth Butler-Sloss P said in the case of Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571 at 577D:

‘There is, in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental responsibility, ought not to be carried out or arranged by one parent carer although she has parental responsibility under s 2(7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court. Sterilisation is one example. The change of a child’s surname is another.’

[17] In that case the court held that the circumcision of the child should only be carried out where the parents agree or where a court, in settling the dispute between them, decides that the operation is in the best interests of the child. In my opinion this appeal demonstrates that hotly contested issues of immunisation are to be added to that ‘small group of important decisions’.

[18] Of course where the obligation falls on the court to decide such an issue the court must apply the child’s welfare as its paramount consideration (s 1(1) of the Children Act 1989) and also have regard to the s 1(3) checklist.”

 

  • At first instance in Re C (Welfare of Child: Immunisation) Sumner J made clear that he had had regard to the wide scope for parental opposition to medical intervention in respect of a child, which he summarised as ranging from obvious cases where the objection would be widely regarded as having no validity in child welfare terms to cases where there is scope for genuine debate on the issue. Within this context, Sumner J acknowledged a parent’s right to choose whether they accepted medical advice to have their children immunised and that immunisation was a subject of genuine public debate. Sumner J further made clear that his decision should not be seen as a general approval of immunisation for children and that each case is fact specific.
  • In Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), Theis J considered the issue of vaccinations in the context of children who were the subject of final care orders, where the dispute was between the local authority, who shared parental responsibility under those orders, and the parents with parental responsibility as to whether the children should be vaccinated. Within this context, Theis J proceeded to determine the question under the auspice of the inherent jurisdiction of the High Court. She concluded the children in that case should be vaccinated. Theis J articulated the following applicable legal principles:

 

“[9] There is no dispute between the parties as to the law. Once the inherent jurisdiction is invoked the welfare of the child is the paramount consideration.

[10] The Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment) [1991] 1 FLR 366 considered the future medical management of a severely brain-damaged premature baby with a considerably shortened life expectancy. Lord Donaldson MR said at 370 ‘…The court, when exercising the parens patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless, in the end, the responsibility for the decision whether to give or to withhold consent is that of the court alone.’

[11] In this case the dispute is the exercise of parental responsibility as between the parents and the Local Authority. I have been referred to a number of cases that look at how the parent’s views should be considered by the court. In Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191 Sir Thomas Bingham MR said at 217 B-C:

‘I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can’.

In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502 Butler Sloss P said at 509 that

‘…it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court’s assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent’.

[12] The court also has to carefully consider Article 8 of the European Convention and, in particular, consider whether what is proposed is a justified and proportionate interference with family life.”

 

  • Within the context of the last point elucidated by Theis J concerning rights under Art 8 of the ECHR, Art 24 of the United Nations Convention on the Rights of the Child provides that States parties to that Convention recognise the right of the child to the enjoyment of the highest attainable standard of health and, within that context, imposes on States parties an obligation to pursue full implementation of that right, including the taking of appropriate measures to combat disease.
  • The most recent decision on immunisation appears to be a further decision of Theis J in the case of F v F (MMR Vaccine) [2014] 1 FLR 1328. In that case, Theis J made the following important observation in relation to cases of this nature at [21]:

 

“This is an issue concerning the exercise of parental responsibility that in most circumstances is negotiated between the parents and their decision put into effect. Parents often have to make decisions for children to meet their welfare needs, as Ms Vivian observed that is ‘what parenting is about’. As with many aspects of the exercise of parental responsibility, in particular as children get older, it will often require discussion and explanation by the parents of their decision to their children which may be against their wishes and feelings. This has not been possible in this case as the parents disagree and the court has been asked to step in to make the decision. The court can only make decisions on the evidence that it has in each particular case and by considering the welfare needs of each child. By doing so in this case the court does not in any way dictate how this issue should be decided in other situations; each case is fact specific. This case is only concerned with the welfare needs of these children.”

 

  • Thus, where there is a dispute between those holding parental responsibility (whether as between parents or between parents and a local authority holding a care order) as to whether such a vaccination or vaccinations should take place the court has jurisdiction to determine the dispute. In determining the question before the court, the welfare of the child is the paramount consideration of the court. Within this context, the court must accord appropriate weight to the views of the parent or parents having assessed those views and must exercise an independent and objective judgment on the basis of the totality of the evidence before it, including, but not limited to, the expert evidence.
  • In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order (see A Local Authority v SB, AB & MB) [2010] 2 FLR 1203 and Re Jake (Withholding Medical Treatment) [2015] EWHC 2442 (Fam)).
  • In the circumstances, as in Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), and whilst the C2 application made by the local authority on 21 October 2016 is for an order in existing Children Act proceedings, the application the local authority pursues before this court must in fact be an application for relief under the inherent jurisdiction of the High Court. The local authority requires leave to make such an application, which application for leave is to be considered against the criteria set out in s 100(4) of the Children Act 1989. Being satisfied that the relief sought by the local authority does not contravene s 100(2) of the Children Act 1989 and that the criteria for granting leave to the local authority to make an application under the inherent jurisdiction set out in s 100(4) of the Act are met, I granted permission for the local authority to make an application for relief under the inherent jurisdiction of the High Court.

 

 

 

Decision

 

 

  • I acknowledge Ms Connolly QC and Ms Gill’s submission that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility. Whilst, historically, vaccination was compelled by law under the Vaccination Act 1853 and subsequent legislation, vaccination is not now compulsory in this jurisdiction, the Vaccination Act 1898 having introduced an exception allowing parents who did not believe vaccination was efficacious or safe to obtain a certificate of exemption (introducing the concept of the “conscientious objector” into English law) and the National Health Service Act 1946 having thereafter repealed the compulsory vaccination laws in their entirety. However, I cannot accept Ms Connolly QC and Ms Gill’s submission that, ordinarily, a parent in the position of the mother (my emphasis) would get to decide whether to have a child immunised as a function of the exercise of her parental responsibility.
  • The fact that this court is required to decide whether SL should be immunised is, in this case, a function of a dispute between those who hold of parental responsibility for SL, namely the mother and the local authority (the identity of SL’s father not being known). Where there is such a dispute the court is under an obligation to determine that dispute in accordance with the legal principles articulated above. That determination is not an example of overreaching by the State into an area of parental choice but, rather, is an example of the court discharging its obligation to ensure the welfare of the child is safeguarded in circumstances where those charged with meeting the child’s welfare needs cannot agree on how that end is best achieved. Again, as Theis J noted in Re A, B, C and D (Welfare of Children: Immunisation), in Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191 Sir Thomas Bingham MR said at 217 B-C:

 

“I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can”.

 

  • Thus, the fact that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute between them, and the fact that, accordingly, this issue rarely comes before the court, does not, in circumstances where there is in this case a frank disagreement between her and the local authority as to what is in SL’s best interests, mean that this mother is being somehow singled out as compared to other parents with respect to the issue of vaccination.
  • The fact that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute does, however, mean that when the issue has to come before the court, the court must accord proper weight to the views of the parent. I have of course given very careful consideration to the mother’s objections to vaccination. It is not difficult to see how the, albeit unrelated, events with which this court is concerned have focused her mind on the potential risks of vaccination to SL’s wellbeing. The mother has decided that those risks outweigh the risks of not vaccinating SL. A parent is fully entitled to make a decision based on their assessment of the likelihood of infection and how severe that infection might be in terms of outcome.
  • However, I must and do have regard to the fact that the mother’s evaluation does not accord with the expert medical evidence before the court. Indeed, that medical evaluation reaches a diametrically opposed view. Whilst welfare is a very wide concept, and whilst the principle of best interests means more than just medical best interests, the unchallenged conclusions of the expert instructed to assist the court on the question of immunisation are, necessarily, a powerful pointer towards what is in SL’s best interests on the question of immunisation. I must also have regard to the fact that, whilst the mother submits that her considered view is grounded in her direct experience of adverse reactions in her other children, she has not in any way evidenced the factual basis she contends grounds her reasoned evaluation of the risks on this basis, despite being given every opportunity to do so. These matters significantly reduce the weight I am able to attach to the mother’s views in respect of the vaccination of SL as against the evidence of the expert.
  • Lastly in respect of the mother’s views, whilst I note the submissions of Mr Tughan QC and Ms Piccos regarding the impact of the expert opinion in the 2014 proceedings regarding the mother’s personality traits, in circumstances where I have not heard evidence on how those matters may impact on the mother’s views on the subject matter presently before the court, I make clear that I have not taken account of those matters when evaluating the mother’s views and the weight to attach to them.
  • Within the foregoing context, having regard to all of the evidence before the court and evaluating the position by reference to the principle that SL’s welfare is the court’s paramount consideration, I am satisfied that it is in SL’s best interests to receive the outstanding Hib and PCV vaccines.
  • Finally, I have, as I must, paid careful regard to the Art 8 right of the mother to respect for her family life. A decision by the court (as a public authority pursuant to s 6(3)(a) of the Human Rights Act 1998) to authorise the immunisation of SL in the face of the mother’s objection, and in circumstances where parents are ordinarily accorded a significant degree of autonomy by the State when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute, constitutes an interference in the mother’s Art 8 right to respect for family life. For that interference to be lawful it must be justified by reference to the terms of Art 8(2). Having regard to the evidence set out above, I am satisfied that the interference in the mother’s right to respect for family life under Art 8 constituted by a decision of this court to authorise the immunisation of SL against her wishes is in accordance with the law and necessary in a democratic society in the interests protecting SL’s health and, accordingly, is a justified and proportionate interference. I am reinforced in this conclusion by the fact that a decision to authorise the immunisation of SL accords with his right to the enjoyment of the highest attainable standard of health under Art 24 of the UNCRC.

 

CONCLUSION

 

  • For the reasons I have given, I am satisfied that it is appropriate in this case to make a declaration under the inherent jurisdiction of the High Court that it is in SL’s best interests for the local authority to be given permission to arrange for him to receive the Hib vaccine and the PCV vaccine and I do so.
  • Finally, I make clear that the decision of the court is not a judgment on whether immunisation is a good thing or bad thing generally. Like Sumner J and Theis J before me, I emphasise that the court is not saying anything about the merits of vaccination more widely and does not in any way seek to dictate how this issue should be approached in other situations. This judgment is concerned solely with an evaluation of one child’s best interests based on the very particular circumstances of this case and on the evidence that is available to the court.
  • That is my judgment.

 

 

I think this case was rightly decided on the law as it stands. I’m not sure I’m happy with the law as it stands. Here we have a position where a parent who is not in care proceedings gets to say yay or nay to vaccinations and their decision will be sacrosanct, but a parent who is in care proceedings (perhaps with allegations of threshold which are not finally proven) does not have that same right.  I think the right thing for the child was to be vaccinated, but I think as ever with magical sparkle powers, the Court does things with the very best of intentions which end up being the foundation for the next step away from autonomy, and the next step becomes foundation for the one after.

 

Structural edit

I received the structural edit over the weekend. That’s the big important phase of the book. This is where it goes into the arms of an editor who doesn’t know me, doesn’t have to sugar-coat anything, doesn’t have to look me in the eye and lie to me to save years of friendship. They just read the book cold, as a reader, and as an editor with a critical eye, and they then tell you what’s wrong with it.

It is a bit like a cross between getting a survey on a house that you’ve fallen crazily in love with, and singing on an X-Factor audition (only after you’ve finished singing, the Judge tells you in great detail about every note that you got right, and every note where you were a bit off key)

So it is important, because to make a book really work, you need someone who gives it to you straight. And if you don’t believe that an editor is hugely important, go and read some of the amazing Raymond Carver short stories (What we talk about when we talk about love would be a good start, or Cathedral – or Gazebo, or Menudo… damn, nearly all of it) and then go online and find the draft that Raymond Carver wrote before his editor helped him find the heart of the story. That draft is ugly. Painfully ugly. It took a collaborative effort to make the story so taut and elegant and spare that you can feel the words twang on the page like tweaking piano wire.

Or (and I’m not in any sense comparing my book to this sort of thing),  Leonard Cohen’s song “Hallelujah”, which you will have heard thousands of times, including on X-Factor.   Cohen told Bob Dylan he’d spent two full years working on the song (he was deliberately underestimating, perhaps because Dylan told him that it usually took him 15 minutes to write a song)

Cohen wrote 80 verses for that song. 80 verses. And he kept working on it, working on it, and it didn’t come off. He recorded a version, but it wasn’t right. And then he kept playing it live and kept fiddling with it, and then one day John Cale of the Velvet Underground came to a concert where Cohen played it, and Cale liked the song and he reworked it – more piano, restored some of the original biblical imagery, made it less dark and bitter and more sorrowfully uplifting.  And that song got onto an album of Cohen covers, which nobody really bought. But one person who bought it happened to be visiting a guy called Jeff Buckley, and Buckley happened to play the CD and liked it, and did a magnificant cover of Cale’s cover of Cohen’s song, and put it on an album. And nobody bought that either. Until Buckley died in tragic circumstances, and his work got re-evaluated, and in that process, Hallelujah became one of the most loved and well regarded songs around.  It just had to go through a hell of a process to find the song.

(I’ll cheerfully admit here that I stole that info about Hallelujah from Malcolm Gladwell’s wonderful podcast Revisionist History, which I highly recommend.  http://revisionisthistory.com/   I only just learned that Hallelujah wasn’t a song that the world loved straight away but one that had to be found out of the raw materials, and it is such a great metaphor for the creative process generally, that I’m using it and giving Gladwell full credit for coming up with it. )

I feel like the structural edit is helping me find the book, to bring it to where I want it to be. I can see the fixes and changes that are needed, and the good news is that the editor liked it – she hasn’t put red pen through loads of dialogue or told me that she hates the characters or that my world is flat.  I need to make some bits clearer to readers, I need to switch some stuff around with the ending, some things that I was keeping as mysteries are going to be more dramatic and tense if the reader knows what one particular character knows and is waiting to see when and if and how it all explodes, and I basically need to have more stuff happen in the first half of the book. I also need to rein back on the comic asides during moments of terror and drama…

So I’ve already reworked the first two chapters, for the better, I hope, and this rewriting phase will take about four weeks. I’ll keep you posted. Go and read some Raymond Carver while you’re waiting – he’s the best (or at least, with the help of a damn fine editor he became the best)

 

 

If you haven’t already checked out the book, please visit the site and have a look – ideally to pre-order yourself a copy, and if nothing else, to watch a video of a mouthy sarky lawyer get pelted with water bombs whilst trying to pitch what the book is about.

 

https://unbound.com/books/in-secure

Das reBoot – Court of Appeal find reverse gear (once again)

 

A major theme in family case law over the last 2-3 years has been misuse of section 20 – voluntary accommodation, with all sorts of guidance being provided, culminating in the President of the Family Division giving a decision in Re N 2015 which just invented huge new chunks of legal obligations on Local Authorities and threatening damages if they didn’t obey.

 

That in turn, quite coincidentally, led to the biggest increases in number of care proceedings issued that we have seen since the Baby P crisis hit. It is a complete coincidence, of course. I mean, over that same period of time, we haven’t actually seen the number of children in foster care go up at all, but we have seen the number of care proceedings go up by 35%, but the two things are utterly unrelated.

 

As I’ve said before, I do think that there was a genuine problem with section 20 misuse and it needed to be addressed – I just think we swapped one problem for three others – an increased demand which the system utterly couldn’t manage, an increased layer of complexity and time in dealing with claims being added into care proceedings which the system utterly couldn’t manage, and an insoluble problem about how to deal with the cost issues caused by the statutory charge which, you’ve guessed it…

(And also, as I’ve said before, I’d be entirely up for Parliament to review s20 and put in some stronger safeguards for parents – I think a very short limit on the initial s20 and it to be reviewed at a meeting to which parents have free legal advice would be a start)

Anyway, the Court of Appeal today have given judgment on an appeal from one of the early s20 damages cases – this was one where the police removed children after the father hit one of them with a belt, the police arrested the parents and gave them bail conditions not to live with the children, and the parents objected to s20.  The parents later sued the LA for breach of their human rights in continuing the s20 without their express consent.

 

I wrote about the original case at the time, and if WordPress ever stops behaving like a four year old hopped up on Tartrazine, I’ll put a link in.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2017/26.html

 

London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017)

 

(you can skip right to the end if you just want the reboot paragraph, I’ve put it in super large font)

 

So this is an appeal from an award for £10,000 damages against Hackney, where the parents had been arrested and had bail conditions not to be with the children. The LA asked for s20, the parents refused to sign and the LA relied upon the statute that the parents were prevented (for whatever reason) from providing accommodation and thus s20 (1) (c)  was met, and that the parents objection had to be looked at in the context of s20(7) which states

 

(7) A local authority may not provide accommodation under this section for any child if any person who—

 

(a) has parental responsibility for him; and

 

(b) is willing and able to—

 

(i) provide accommodation for him; or

 

(ii) arrange for accommodation to be provided for him, objects.

 

 

The parents were objecting, but weren’t providing any alternative accommodation, and weren’t in fact able to provide their own accommodation (because they would have then been in breach of bail conditions, and arrested. So the LA view was that it wasn’t a legal objection because they weren’t able to meet (b) (i) or (ii)

 

 

This all happened, by the way, in 2007.

 

The High Court looked at it in  September 2015 , and decided that the bail conditions weren’t sufficient to defeat the objection under s20(7) and awarded the parents £10,000 compensation each, plus costs. The High Court were clear that the allegations that led to the arrest were largely true (the father had hit the child with a belt) but nonetheless the parents human rights had been breached by the LA s20ing the children without consent, rather than seeking consent or a court order.

 

This, 18 months later, reaches the Court of Appeal.

 

 

The Court of Appeal look at Sir Mark Hedley’s decision in Coventry City Council v C [2013] EWHC 2190 (Fam) ,  and the Court of Appeal decisions giving judicial guidance on s20 cases  Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

 

The Court of Appeal say that those cases didn’t have to specifically determine a s20 issue, so where they have made comments, they are obiter and not binding. Specifically, what the President says in Re N is not binding on the Court of Appeal in a case where argument has been specifically heard on the s20 and where s20 is a ratio issue.

 

 

59.In relation to item (d), after setting out the terms of s. 20(8), Sir James stated (at [169]):

 

‘This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.’

60.In conclusion, Sir James set out further requirements of good practice, in addition to those identified by Hedley J before stating [171]:

 

‘The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.’

 

72.Finally, in Re N, the judgment of Sir James Munby P does repeat his conclusion that parental consent is required by the statute; this can most conveniently be seen from two sentences (from [163]):

 A Local Authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent.”

73.In considering this passage in the President’s extensive judgment in Re N, it is necessary to be clear that any issues relating to s. 20 were very much at the periphery of that case, the focus of which was the jurisdiction of the English Family Court to make orders leading to adoption with respect to foreign nationals. It seems plain that the section of the judgment as to the working out of arrangements for s. 20 accommodation arose from concern, evidenced by a raft of recent first instance decisions, as to social work practice in general. No issue in the case of Re N turned on the interpretation of s. 20, or, indeed, on any matter with respect to s. 20. It is apparent that Sir James was using the opportunity provided by the fact that the children in Re N had been accommodated for eight months before the local authority issued care proceedings as a hook upon which to hang some, no doubt timely, firmly worded and important good practice guidance. Despite the respect that this court undoubtedly has for the opinion of a judge of such authority on these matters, the short judicial statement (in [163]) following a hearing at which the interpretation of s. 20 was not in issue cannot be binding upon this court where the focus is directly upon s. 20 and where there has been full argument.

 

 

 

Therefore, s20(7) does apply where the parent is not able to provide accommodation themselves, or is unable to provide alternative accommodation. In those circumstances, a parent’s objection does not defeat s20 – they need to be able to provide accommodation themselves or from third parties in order to satisfactorily object.

 That does NOT mean, and should not be interpreted to mean that in a scenario where the parent says “I object to s20, the child can come home with me’ that the LA can hide behind s20(7) and say that the home offered was unsuitable or dangerous, or they didn’t think it was a good idea. S20(7) goes only as far as the parent not being ABLE to have the child live with them (think bail conditions, homelessness, incarceration or detention in mental health hospital, that sort of thing) and where they aren’t able to provide any other accommodation.  It doesn’t cover “the child could live with my brother Mike” and the Social worker going “hell no”

 

 

74.I recognise that, in the context of the cases that he was then considering, it may well have been appropriate for Sir James to equate the obligation on a local authority not to use its powers under section 20 if a parent ‘objects’ as meaning, effectively, that when the parent is known and in contact with the authority, consent is required but, in my judgment, it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances. In this case, the parents had the benefit of solicitors experienced in both family and criminal law. Their ability to apply to remove the prohibition on contact with the children was well known and emphasised by the solicitors in correspondence. The local authority was not responsible for the bail condition and had no obligation to take proactive steps to have it removed. If the solicitors had wanted the local authority to express a view, an appropriate official could have been requested to do so by the court or been the subject of a witness summons to attend.

 

 

75.On any showing, it was not for the local authority to aid and abet the flouting of the bail condition and it is not sufficient to argue that the local authority should have sought to persuade the police to modify the condition. The only inference to be drawn from the fact that the condition remained in place was that the parents (no doubt on advice) were prepared to negotiate with the police rather than risk a conflict in court. In those circumstances, for the period that the bail condition remained in place, they were not in a position to provide accommodation for them within s. 20(7)(b)(ii) of the 1989 Act and were thus not in a position legally to object whether or not they formally consented.

 

 

76.Thus, the continued existence of the bail condition had the twin consequence that Mr and Mrs Williams, firstly, were ‘prevented … for whatever reason’ from providing suitable accommodation and care for their children (s 20(1) of the 1989 Act) and, secondly, were not ‘able’ to provide accommodation for them in order to trigger their statutory right to object (s 20(7) ibid

 

 

This is the really important bit, with wider implications than the bail conditions/parent in prison objecting to s20 though.

 

 

 

77.Before passing from the issue of s. 20 of the 1989 Act and consideration of the guidance given by Sir James Munby P, Hedley J and others in the Family Division cases to which I have referred, I wish to stress that nothing that is said in this judgment is intended to, or should be read as, altering the content and effect of that guidance in family cases. The focus of the court in the present appeal is on the bottom-line legal requirements that are established by s 20 and within which a local authority must act. The guidance given in the family court, which has built upon that bottom-line in the period since the Williams’ children were removed, identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed. For reasons of good administration, the practice guidance should continue to be followed, notwithstanding the limits of the underlying legal requirements in s 20 that I have identified but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.

 

I would expect to see that paragraph quoted by Local Authorities in response to any suggestion of HRA claims for s20 damages in the future.  There may be circumstances where this sort of breach does give rise to action, and we’ll have to wait to see that litigated, but it is going to need something more than just failure to comply with the guidance.   The Court of Appeal were also scathing about the proportionality of litigating this particular HRA claim – the damages were out of proportion to the costs and the Court also made it very clear that they considered the quantum of damages to be significantly more than they would have contemplated.

 

This brings me to another trend in family law – we had the raised test for interim care orders, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’, then the raised test for adoption, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’ and now the raised tests for s20, which caused all sorts of mayhem and has now been rolled back by the Court of Appeal saying ‘oh, they DID mean it, but they weren’t actually able to apply the teeth to it that they thought they were applying’

 

Perhaps when far-reaching judicial speeches that go further than the issue being litigated next arises, the Courts could hear full argument about the implications of what they are contemplating? Or, heaven forbid, just only tell us what the law means where it is the issue in the case and the law is unclear, rather than reworking the plain words of the Statute into what you happen to wish they said instead?

 

 

Rock bands, impenetrable vocabulary and Peers of the realm making off with wards of Court

There’s a High Court case that I’m going to briefly write about, called Egeneonu v Egeneonu 2017 .  First though it needs an intro.

About eleven years ago, when I was younger and cooler, I had friends who were in a rock band. They were pretty good – it was sort of Swamp-rock before Kings of Leon got big, and they did some decent gigs. We went to a gig, and they were on third. So we got there early, because it was a venue we hadn’t been to before, to check it out and hear the other bands.  So, we all sort of thought we were fairly rock and roll – my friends were in a band, I was a friend of the band (I can’t play an instrument – I got demoted from triangle to ‘scrapey maraca thing’ in the school orchestra).   This venue made us think otherwise. The first clue was the amount of leather the people in the club were wearing , the second was that the only two drinks the bar was selling were Jack Daniels (straight up) and Heineken (in bottles, which were served with the caps still on – everyone else in the club was opening them with their teeth or they had knives). The first band came on, and immediately the lead singer stage-dived. Not that unusual a thing to see at a gig, but it is unusual to see someone do it when the front rows aren’t full of people to catch you, and the floor is concrete.  Once the lead singer got back up, they started their first song, which was called, without irony “I got f**d by Jesus”

 

This was a gig where Jim and William Reid might have thought , “Oh, this is a bit hardcore”

At that point, all of us looked at each other, and you could see that we were all thinking – “I thought I was pretty rock, but I’m out of my depth here”

This case of the President’s – I thought I was pretty law geek, but it was too much for me. I had to keep limping away and try to breathe non-geek air for a bit to recover – (watching You-Tube videos of lumberjacks, adverts for power-drills and such) – I didn’t think it was safe to go from this much geek to normal in one go, in case I got the geek-bends.

So I’m not going to talk about the case much – let’s just say that if you want to be able to distinguish what is a civil contempt of court and what is a criminal contempt of court, and particularly if you want to know THAT, and how that applies where you’re dealing with wardship, this case is (eventually) the answer.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2017/43.html

 

There were two bits that grabbed me though – and honestly, this might be the least geeky bits in the whole thing, the rest of it is way worse.

 

Firstly, this was a sentence that appeared without further explanation or clarification. To be fair, it’s an extract from a very old judgment, but it is a sentence in which I didn’t understand FOUR of the words. And not just didn’t understand them, had not an inkling or approximation or even a guess at them.

 

Here it is:-

The Court of King’s Bench held that the peerage and its privileges afforded no protection in such a case; and to make the authority more applicable, the Court illustrated the decision by referring to the writ of homine replegiando against which, if a peer was refractory, it was held to be clear that he must be committed; that is, if he eloigned the body of the villein or person sought to be replieved.

 

 

I particularly like that whatever was going on immediately prior to that, the Court felt that it could be ILLUSTRATED by referring to the writ of homine replegiando against which, if a peer was refractory, it was held to be clear that he must be committed; that is, if he eloigned the body of the villein or person sought to be replieved.   I.e this is an attempt at an explanation to make something simpler…

 

Let’s try and unpick it

 

Homine repligiando is a way of getting out of custody (like habeas corpus) but by upon giving bail. So a bit like bail.

If a peer was refractory – he would be stubborn or unmanageable, or resistant to some process.  (I like that, I might end up using it)

If he eloigned  –  to remove or carry away at a distance, or to move yourself a considerable distance away

Replieved –  to have recovered goods or property from their rightful owner.

 

So using an example of bail, if a peer was unmanageable, he must be committed, if he removed someone who ought to have been returned to his rightful place ?  I think.

 

You may need to do something ungeeky now to decompress – read some pages of Andy McNab’s Bravo Two Zero or something.

 

The next bit I liked was this case

 

  • For specific cases where these principles have actually been applied, they refer to two cases in particular which I need to consider in some detail: Wellesley v The Duke of Beaufort, Long Wellesley’s Case (1831) 2 Russ & M 639, (1831) 39 ER 538, and Re Crump [1963] Crim LR 666, 777, fuller report (1963) 107 SJ 682.
  • Long Wellesley was the father of a ward who, by order of the court, had been placed in the custody of third parties in Surrey; the order restrained Wellesley, although he was not a party to the suit, from removing her from their care or custody. Wellesley subsequently removed her from their house, took her to London and then arranged for her to be removed from the jurisdiction. Brought up before Lord Brougham LC, he professed not to know where she was and said that he would never bring her again within the jurisdiction of the court. He was committed to the Fleet for contempt, the order reciting that:

 

“His Lordship does declare the conduct of [Wellesley] in removing the said infant … and in concealing the present residence of the said infant to be a contempt of this Court; and his Lordship doth further declare the conduct of [Wellesley] in forcibly and without consent removing the infant ward of this Court, the king’s subject, beyond the realm, and his refusal now in person coram judice to inform the Lord Chancellor where the said infant is to be found, to be a gross and aggravated contempt of this Court.”

Wellesley sought his release, pleading privilege of Parliament as a Member of Parliament. Lord Brougham held, 665, that privilege protected against civil but not against criminal process. The question, therefore, was whether the contempt committed by Wellesley was criminal or merely civil. The Lord Chancellor held that the contempt was criminal, so Wellesley was returned to the Fleet.

 

  • In the course of his judgment, the Lord Chancellor, 669, posed a rhetorical question:

 

“Who are the persons most likely to be guilty of those very offences which this Court is most frequently called upon to visit with punishment in order to protect its wards? If other Courts have a certain proportion of their suitors in Parliament, this Court, from the importance of the matters brought before it, has a much larger proportion there; and if there be any cases in which members of Parliament – young commoners, and young lords – are more likely than others to become obnoxious to our jurisdiction, it is precisely in cases relating to the safety of heiresses and other wards.”

In which (I think) the Lord Chancellor gives a judgment in which he suggests that the most likely people to run off with young vulnerable female wards of Court are obviously MPs and members of the House of Lords, because that’s just the sortof thing that they do.   Perhaps he means that they were ‘rescuing’ said wards. (Also “to become obnoxious to our jurisdiction” is just lovely)

So there you go, you have learned a few new words, you have found that the President’s lung capacity for law-geekery greatly exceeds mine (by a factor of around fifty, I’d say) and that if you’d been doing wardship law in the 19th century, your biggest concern would have been wayward MPs and Peers scooping up the ward and making off with them.

I shall now eloign myself from your presence and I apologise for my refractory and indeed obnoxious behaviour in writing this piece.

 

Lions, bees and sundry peculiarities

 

Not law at all this one – there doesn’t seem to be much new good law at the moment, it is a dry January.  So I thought I’d share with you this little bit of weirdness, which I went from never having heard of at all to hearing from three separate sources in six weeks (Dave Gorman, No Such Thing as a Fish and a book called Forgotten Science)

Each of them had a slightly different take on it, and as I was taken by the story, I thought I’d like to share it with you.

As you’ll know, lots of products use illustrations of animals to sell their products – from glossy-coated labradors on pet food to comedic chickens on pengest wings to inappropriately friendly tigers selling you over-sugared breakfast cereals originally devised to stop people masturbating.  But here is a question (which will be a bit marred if the image that you see is the product in question, so I’ll put a filler image in)

 

What food product decided to advertise its wares with a picture of a dead lion – and not just any dead lion, but a dead lion surrounded by bees?  (and more importantly WHY?)

 

I don't know about you, but I've never trusted Tony the Tiger - he always had that 70s DJ vibe to him. Operation Yewtree for sure

I don’t know about you, but I’ve never trusted Tony the Tiger – he always had that 70s DJ vibe to him. Operation Yewtree for sure

 

 

Okay, enough padding.  Anyone seen a food product that uses on its packaging a corpse of a lion surrounded by bees? You probably think that you haven’t, but I bet you have and just never noticed it. I bet there’s a tin of it in your house now. Here it is

Lyle's Golden Syrup. Now with more bees than you knew about, and 100% more lion corpse

Lyle’s Golden Syrup. Now with more bees than you knew about, and 100% more lion corpse

 

 

What the actual flipping heck, Tate and Lyle? Who puts a dead lion on their product?  And Golden Syrup has no connection to bees.  Golden Syrup  (insert your own Donald Trump joke here) is just made out of sugar, not honey.

You may have spotted the wording too (not just ‘partially inverted refiners syrup’ which is less appetising than something you want on the front of your tin) but  “out of the strong came forth sweetness”

That’s a Biblical reference, and the explanation as to the tin is just that like most well-known products, it was invented a long time ago, and like most extremely successful businessmen in olden times – paying nuff respect to God for the privilege and wealth you had gotten is just something that went down at that time.

This was a riddle told by Samson (yep, the guy with the hair and the strength and the murderous rages) at a wedding – he told the riddle and said that if anyone guessed it he would give them lots of linen, but if anyone didn’t, they would have to give him linen. They all tried to solve the riddle, which was this

 

“Out of the eater, came forth meat, and out of the strong came forth sweetness – what is it?”

(Now, even though you already KNOW that the answer is a dead lion and bees related, you still can’t get it, so it is no surprise that Samson soon stood with a smile and said “Stop your grinnin’ and drop your linen”  – thus predating Hudson out of Aliens by thousands of years)

Samson had come across the corpse of a lion on his way to the wedding  (when I say ‘come across’ I mean, having earlier killed the lion on a previous walk, he saw the body, because Samson) , and seeing bees around it, had observed honeycomb within the lion and eaten it and he saw that it was sweet. This is not a fair riddle, because it involves not so much solving something with logic, lateral thinking and knowledge of the world and the facts given, but just having to have been within Samson’s mind. This is the sort of solution that Mark Gattis and Stephen Moffat would have rejected as being too unfair and stupid for the finale of Sherlock.  Oh also by ‘meat’ he meant ‘food’, so that’s also cheating along the lines of having had character centred flashbacks where the character somehow confuses a red setter with a ginger schoolboy…

The wedding guests don’t react well to the riddle, what with it not being a riddle, and this leads to an awful lot of murdering and revenge murdering and revenge revenge murdering. It’s not a heartwarming tale, to be honest.

 

Then this is the bit I got from Forgotten Science, which added a whole new layer to things, frankly.  People in the past did genuinely believe that bees spontaneously emerged from dead creatures, and lions were as good as any.

Here’s the poet Virgil

A portent they espy: through the oxen’s flesh,
Waxed soft in dissolution, hark! there hum
Bees from the belly; the rent ribs overboil
In endless clouds they spread them, till at last
On yon tree-top together fused they cling,
And drop their cluster from the bending boughs

 

And here’s Shakespeare

 

“‘Tis seldom when the bee doth leave her comb/In the dead carrion.” (2 Henry IV; iv. 4. 79-80.)

 

So by past, I don’t mean just Biblical times, but for ages and ages after that – in fact, the bees creation story of them emerging spontaneously out of dead animals wasn’t debunked until 1894

 

(1894 to find out that bees are made by bees having sex with other bees is a bit shocking, but elsewhere in the book I learned that it wasn’t until the mid 1600s that anyone proved that women don’t have testicles. It is somewhat weird that the expression we use to simplify sex education to young people is to ‘tell them about the birds and bees’ when the sex life of bees was so totally mysterious)

In essence, nobody ever saw bees having sex, so they must have magically appeared (the same sort of thing happened with geese – nobody ever saw geese mating, or baby geese or goose eggs, so they assumed that geese were hatched at sea, and from that deduction obviously that they hatched from barnacles on the side of ships, hence barnacle geese.

http://sercblog.si.edu/?p=3069

If you were watching early 19th century Sherlock the plots would have been even weirder than today’s outlandish stupidity)

Added to that, people had seen bees come out of corpses of animals, hence proof.  In 1894 a Russian entemologist named Osten-Sacken posited that what people thought were bees were actually a simila-looking insect called drone flies and yes, flies do come out of the corpses of animals, but not by magic, but by flies laying their eggs in rotting meat.  Weirdly, even after people dissected male bees and found their penis, they still persisted with the emerging spontaneously out of lions account. We had to rely on a blind beekeeper named Francois Huber to find the body of a Queen bee with many many snapped off male bee penises inside her (yes, the male bee dies after it is snapped off, which may be a mercy) to solve this mystery.

 

I also learned from Forgotten Science that one of the first clamours for a film to be banned in Britain was for a 1930s film called “The Cheese Mites” which involved nothing more racy than a man examining a lump of cheese with a powerful magnifying glass – which sounds ridiculous, but I never want to watch that film and am happy to consume cheddar in blind ignorance.

 

So not only was Samson’s riddle unfair, but it wasn’t even accurate. He might have seen some insects emerge from a lion corpse and mistaken them for bees, but there would have been no honey.

Who would have thought that that tin with the rather sticky lid in your larder held so many digressing stories?

 

(I’m also reminded that one of the first bits of blogging I did, many years ago (elsewhere)  was about the belief that Vipers made treacle, so there’s a strong correlation between sweet sticky stuff that comes in tins and rampant oddness – see also the Boston Molasses Disaster)

Cloak and dagger threshold

 

The word Kafka-esque crops up a lot when you talk about the family Courts, but here’s one where it is actually apt. Whatever the evidence was against the parents, not only could they not see it, but the social worker wasn’t able to see it either. And nor was the Judge.

 

Re C a child 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3171.html

S015,  Counter Terrorism Command notified the Local Authority that a man who was a father of children was considered to be a significant risk of terrorism activities, radicalisation and possible flight to Syria (possibly with his children).  The Local Authority issued care proceedings.  To make this perfectly plain, if it had not been for the notification from S015, the Local Authority would not have issued care proceedings. They had no evidence, concerns or suspicions of their own. They were reacting to that notification from an organisation who they understood to have credible evidence for that belief.

 

 

"You can't TAKE Command. Command takes YOU"   Okay, so this is B6-13 not SO-15, but you get the idea

“You can’t TAKE Command. Command takes YOU” Okay, so this is B6-13 not SO-15, but you get the idea

This is what S015 told them

 

 

  • Two pieces of material led to the initiation of the application for a care order. The first stemmed from the assessment of HM Passport Office that the father is “an Islamist extremist who has previously travelled to Syria and engaged in terrorism-related activities” and that he is “likely to travel overseas to Syria in the near future … to engage in further terrorism-related activity, including fighting alongside an Islamist terrorist group.”
  • A very similar form of words was provided to the local authority on behalf of SO15 – “information suggests that (the father) holds an Islamist extremist mind-set. Information suggests that (the father) travelled to Syria in 2013 and 2015 where, it is assessed, he was fighting with an Islamist extremist group.

 

That’s sufficient to meet threshold – it is a good concluding paragraph to a threshold document on radicalisation.  The issue of course is that it works as a concluding paragraph, after the preceding paragraphs set out WHY those things are true and WHAT the evidence is to prove it.

 

However, SO15 didn’t provide that. And they didn’t provide it after the Court made an order for disclosure.   They applied to discharge the disclosure orders. At first they said that the order hadn’t been particular enough or that it was necessary to disclose anything at all.  That was a bold claim, given that the Judge who made the order was the one hearing that argument.

 

The arguments advanced on behalf of the SSHD

1. Failure to adhere to the Guidance – inappropriately wide request; insufficient notification as to issues; order made without notice

 

  • Ms Wheeler seeks to argue that the local authority’s approach to disclosure does not accord with the President’s Guidance, particularly paragraphs 10 – 12. She suggests there has been insufficient regard to the highly sensitive nature of the material sought and a failure to respect the differing roles of the public bodies identified within the Guidance. Ms Wheeler submits that the local authority should have informed the body from whom information is sought about the proceedings, including the matters in issue and what material it is minded to seek. In the first instance there should be discussion and if a hearing is required it should be on notice. Here, says Ms Wheeler, there would appear to have been no sound reason why the hearing was not on notice.
  • In relation to the last point, it would have been better, obviously, if the SSHD had been represented at the hearing on 4 October. But, as the terms of the order reflected, there was a need to make progress in the proceedings; and over the following 4 weeks there was no application to discharge or vary the order. At the hearing on 2 November, the indications were that consideration was being given to an application for a closed material procedure.
  • Ms Wheeler emphasises the need for a “coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved” – see paragraph 10 of the Guidance.
  • I pause to reiterate that had it not been for information properly conveyed to the local authority by SO15, the strong likelihood is that local authority would have had no basis for instituting proceedings of any kind. For the SSHD to now contend that the local authority should have identified in discussions what the proceedings were about, the matters in issue and the information it was minded to seek, defies logic. It is a circular argument of the most bewildering kind.
  • In any event, read as a whole the order of 4 October is transparently clear and amply substantiates the requirement for disclosure. Recital 3 identifies that the court is faced with “an application for a care or supervision order;” and the reason the disclosure order has been sought is to “assist the court in determining (that) application.” Critically, recital 4 states that “(t)he court needs information about any extremist or radicalised conduct by adults in the family.” To suggest that the issues in the proceedings were imperfectly or inadequately defined is simply wrong.
  • The local authority was in no position to specify precisely what information is sought (beyond the provisions of paragraph 1 of the order) for the obvious reason that it does not know what is held. Whilst I quite accept that requests for disclosure should be approached with, as Ms Wheeler suggests, “particular care and circumspection” it is difficult to identify what more this local authority could have done in terms of specificity or definition. Whether in this instance it would have been of real benefit to the SSHD to have case summaries and draft threshold documents is extremely dubious. Once more I reiterate that had it not been for the “tip off” from SO15, there would have been no reason for this local authority to initiate proceedings. The notion that the SSHD has insufficient information to respond, other than by seeking discharge of the disclosure order, is to my mind fallacious.

 

2. Failure to comply with FPR r.21.2(3) or have regard to the Guidance – necessity

 

  • The second complaint made on behalf of the SSHD about the disclosure order of 4 October 2016 is closely related to the first. Ms Wheeler relies upon the terms of r.21.2(3) of the Family Procedure Rules 1991 – “disclosure against a third party is only permitted where it is necessary in order to dispose of the proceedings fairly” and paragraph 7(e) of the President’s Guidance – “the need (for judges) to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which would damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is ‘necessary to enable the court to resolve the proceedings justly’.”
  • Ms Wheeler contends that the SSHD and the Passport Office “are almost entirely in the dark about the nature of the local authority’s case and the allegations of significant harm.” She maintains that disclosure was sought on an erroneous basis, namely that it would “assist” the court.
  • I cannot accept that the wrong test was applied to the disclosure request. The face of the 4 October order (recital 4) records that the court “needs” the information. I reject the suggestion that I would have sanctioned a disclosure order against the SSHD, or any other third party, unless satisfied there was a genuine necessity.

 

 

However, SO15, and the SSHD (Secretary of State for the Home Department, or the Home Secretary) had an ace up their sleeve. Counsel representing the SSHD made it clear that if the Court wanted to press ahead with an order for disclosure, the Home Secretary would sign a Public Interest Immunity certificate which would prevent the disclosure of any material.  There’s a process for the PII certificate to be reviewed by the Court, but none of the parties would see the basis on which it was asserted that disclosure would be against the national interest.

 

Rock, I’d like you to meet Hardplace, Hardplace, this is the Rock.  I’ll just stand between the both of you.

 

In a game of Rock Paper Scissors, the Rock wins every round

In a game of Rock Paper Scissors, the Rock wins every round

 

Obviously the family Court don’t want to trample on national security and of course security services don’t want to cough up in detail why they happen to be watching the father and what led them to do so and what they have found out about who he is talking to, because that could jeopardise all sorts of other important and sensitive and possibly life-threatening/life-saving operations.   And given that the family Courts have so far ended all of the radicalisation cases with the children remaining with the parents, one can see why SO15 don’t consider that it is worth taking those risks with sensitive information given the likely final resolution of any individual case.   (At present it rather seems as though you are better off  in care proceedings as a parent being in contact with ISIS members than letting your ten year old child shoot terrorists on Call of Duty, but that’s just my cynical jaded take on it)

On the other hand, there are children here and the Local Authority can’t obtain orders to protect them without having evidence to show why they need to be protected and the parents can’t refute the allegations about them without knowing what they are.

 

The Judge left the disclosure orders in place, indicating that when and if the Home Secretary issued a PII certificate, that would be the time for consideration of whether the reasons on the PII certificate outweighed the need for disclosure.  If there is no disclosure, presumably the application will have to be withdrawn, as the LA have no evidence that could prove threshold.

 

This was always going to be the difficult issue in radicalisation cases and whilst the President’s guidance works very hard to find a solution, I’m just not sure that there is one. If you are a Local Authority who receives that sort of tip-off, what the hell are you supposed to do with it?  If you issue, you’ll hit this road-block and the proceedings will be dropped, and if you don’t and something happens, the Daily Mail will be eating you alive.  It’s a complete hospital pass by the Security Services.

 

What’s the alternative? Amend the Children Act 1989 to allow SO15 to issue care proceedings of their own? Run a family Court equivalent of the Closed Material Procedure Courts that operate in alleged terrorism offences in the criminal Courts?  They are hugely controversial in crime  (and if you’re interested in more about them I recommend Ian Cobain’s book “The History Thieves”  where he describes the AB and CD case, with the jury being told that if they ever discussed any of the evidence in the case they could themselves be punished by two years imprisonment and the incredible stipulations on journalists whose notebooks were taken each day, were prohibited from writing notes outside the Courtroom after hearing the evidence and not being able to tell their readers any of the important details in the case)

 

I certainly can’t claim to have a solution, but it is an obvious problem.