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No comment

 

This rather leapt out at me in a Kent County Court case. No great legal significance. But. Well, no comment

http://www.bailii.org/ew/cases/EWFC/OJ/2017/B5.html

 

Kent County Council v B, W & S (Combined Judgment : Delay : Refusal to Split Siblings) [2017] EWFC B5

12.For completeness, I recall that matters were somewhat delayed by the revelation that the woman Solicitor representing Mr. S, the father of the youngest child, was having some sort of relationship with the mother’s brother, Mr. B, a witness and Intervener in the case which might have produced some sort of confusion and conflict. That Solicitor, perhaps unwisely, has attended both this Court Hearing and been seen in the public foyer, and also attended at the Crown Court, presumably to support Mr. B. It was necessary therefore for Mr Kenny, Mr. S’s Counsel, having properly notified the Court of this, to receive his professional instructions from a newly appointed Solicitor in order to ensure a scrupulously fair Article 6 complaint Hearing.

 

 

13.This matter was reported to the Designated Family Judge for Kent and also to this Court’s High Court Family Liaison Judge. I gather that some sort of complaint has now been made by the Local Authority about that Solicitor’s conduct.

 

 

14.Regrettably this is the third occasion to my own direct knowledge when an issue of conflict has arisen through this particular Solicitor’s potentially conflictual behaviour in becoming personally close to parties or witnesses. I do not need to spend any more time on that issue beyond reflecting that it causes delay by having to have a new Solicitor representing a client and also, no doubt, causes extra costs to the Legal Aid Fund.

 

 

Keehan as mustard ? Costs order against Lord Chancellor

 

Just when you think you’ve seen it all regarding Human Rights damages claims tacked onto care proceedings and costs, Keehan J delivers this curveball.

 

Re H (A minor) v Northamptonshire CC 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/282.html

 

And we’re now seeing two High Court Judges waving to each other from opposite sides of the Grand Canyon on this. On one side, Keehan J is doing everything possible to make sure that the parents get their damages un-gulped up by the Legal Aid Agency and the stat charge, and on the other, Cobb J is saying that Parliament set up the stat charge in this way and if they’d intended to make an exception for the stat charge applying on care proceedings so that all the damages got swallowed up, they’d have done that. And that damages aren’t always the answer anyhow.

(Keehan J is playing a Lord Denning type role here, in manipulating and coaxing the law into shapes like a Venetian glassblower to get to the morally right outcome. I think myself that Cobb J is right in law, but who knows until the Court of Appeal tell us?)

 

The stat charge is tricky to understand here, so here’s an analogy.

Larry goes to a restaurant. As he is leaving, he steps on a woman’s foot. He shouldn’t have done it, he was being careless. He apologises, and offers to buy the woman a drink. She’s happy with that solution. The restaurant manager, however, says  “This woman ate a 3 course meal here for free tonight because she had a voucher, but that cost me money. So if you want to pay for a drink for her, that’s fine, but you have to give me all of the money that her food would have cost. If you don’t want to do that, you can just give me the money for the drink, but she get no drink and no money”

 

(Parents get free legal aid in care proceedings, even if they are millionaires. But if they win any money from a ‘connected’ case – even if that is damages for being badly treated, that money goes FIRST to pay back the legal aid agency not just in the case where they won the money but ANY legal aid they’ve had. Even though it was ‘free’. Only if there’s anything left does the parent get anything.  Because the legal costs in the care proceedings will usually dwarf the damages (just as a 3 course meal is more expensive than a drink), the only way that the parent can get any money is if the costs are paid too. And that’s tricky, because the law on costs is very clear that there are limited circumstances in which that is possible.

 

(The Kirklees blog spells all of that out, but I thought people might welcome an easier solution)

 

In this case, the parents had encountered a breach of their human rights, relating to section 20 abuse (but even this now, may be overtaken by the Court of Appeal guidance in the Hackney case where they suggest that failure to follow the guidance on s20 isn’t automatically a human rights breach). The LA made an offer to settle, and the parents lawyers understandably wanted to know, before they accepted or refused it, whether the parents would get that money, or whether it would be swallowed up by the Legal Aid Agency.

The LAA initially told them that the stat charge would bite and gobble up all of the damages. They then changed their mind, faced with being told that they’d be joined as a party to the High Court proceedings to fight that out.

It was submitted by the Lord Chancellor that HRA damages should be assessed without regard to the fact that the claimant is legally aided. I agree and accept that the assessment of the quantum of damages in a HRA claim should be made without regard to the fact that the claimant is legally aided. Where I part company with the Lord Chancellor is in respect of the submission that the impact of the statutory charge on the extent to which the claimant will receive any part of the damages awarded is irrelevant to a court assessing damages and then considering whether to make consequential orders for costs. I emphatically disagree.

 

(This is the exact opposite of Cobb J’s conclusion in the Kirklees case)

A very cunning scheme was devised, making use of CPR  rule 46.2  (That noise you hear is every family lawyer in the country shuddering at the mention of the Civil Procedure Rules. It gives us the same visceral reaction as the idea of standing up and addressing the Stade Francais in our schoolboy/girl French)

 

“46.2.— Costs orders in favour of or against non-parties

(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must—

(a) be added as a party to the proceedings for the purposes of costs only; and

(b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.

(2) This rule does not apply—

(a) where the court is considering whether to—

(i) make an order against the Lord Chancellor in proceedings in which the Lord Chancellor has provided legal aid to a party to the proceedings;

(ii) make a wasted costs order (as defined in rule 46.8); and

(b) in proceedings to which rule 46.1 applies (pre-commencement disclosure and orders for disclosure against a person who is not a party).”

 

 

And the scheme here was complex (and I don’t think anyone will ever get away with it again, so I’m not going to spell it out in detail) –  the parents get the damages, the LA pay the costs. The Court then ordered the Lord Chancellor to pay MOST of the LA’s costs, to compensate them for the fact that it is only the Lord Chancellor failing to waive the stat charge in this case (which she has the statutory power to do) that led to the LA having to pay the costs.

There’s very little in law that I enjoy more than the Lord Chancellor losing in Court – a pleasure I did not get tired of during Chris Grayling’s wondrous tenure, and though Liz Truss hasn’t been in post long, she hasn’t really done herself any favours, so this is a fun read (though very very technical)

But I don’t think it is an entirely safe decision.

 

Firstly,

 

  • The local authority is forcibly critical of the second email sent on behalf of the LAA by Mr Rimer on 22 December. Mr Tyler submitted that the position of the LAA as set out in that email, namely that the statutory charge would apply to any damages awarded to H in respect of costs incurred under his public funding certificate in respect of the care proceedings, was clear and unequivocal. In his and Mr Mansfield’s skeleton argument it is asserted:

 

“48. The LAA has inappropriately – almost certainly unlawfully – sought to recoup the cost of the provision of the ‘non-means, non-merits’ legal aid available for the claimant from the award of damages to which he is entitled due to the breaches of his human rights.

49. Only at the eleventh hour – and when faced with the prospect of a High Court trial on the issue – has it adopted an approach which is correct in law.

50. In so doing, it has caused the unnecessary attenuation of both the HRA and the care proceedings.”

 

 

Okay, those are submissions and not the judgment, but I don’t think you can properly conclude that the LAA was unlawful in following the LASPO provisions. The provisions are stupid and ugly and unkind and mean-spirited, but they are lawful provisions. There isn’t (yet) a section 6 challenge that the LASPO provisions in this regard are themselves incompatible with the HRA. It would be interesting to see the outcome if someone takes it that far – LASPO is far from beloved as a piece of legislation.

The point, I presume is making use of Keehan J’s previous side-step of the stat charge by claiming that the HRA proceedings ‘are not connected’ to the care proceedings.  I am afraid that I am with Cobb J on that – there may be occasions when the damages case is genuinely ‘not connected’ to the care proceedings, but these clearly were.

 

Glad you're back George

Glad you’re back George

 

 

But more importantly

 

  • Ms Stout’s principal submission was that the court had no power, on the facts of this case, to make an order for costs. She relied upon the provision of the CLA(C)R 2013 and in particular on Part 3 and regulations 9(1), 9(2) and 10. In a case where one party is legally aided (i.e. the claimant) and one party is not legally aided (i.e. the local authority) she contended that the effect of regulation 9(2) was that an order for costs could only be made against the Lord Chancellor if all the conditions set out in regulation 10 are satisfied.
  • It is common ground between the parties that the conditions of this regulation are not satisfied in this case.

 

So not possible to make the costs order against the Lord Chancellor, because the power to do so sets out a condition that has to apply and the condition doesn’t.

That wasn’t the end of it though

  • I regret I do not accept the submission that the court does not have the power to make a costs order against the Lord Chancellor in this case. I so decide for the following reasons.
  • The provisions of s.26 LASPO only apply where costs have been awarded against a legally aided party. In these circumstances the order for costs “must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances …”: s.26(1) LASPO. A s.26(1) costs order “means a costs order against a legally aided party where cost protection applies”: reg.2(1) CLA(C)R 2013. The phrase ‘cost protection’ means “the limit on costs awarded against a legally aided party in relevant civil proceedings, set out in section 26(1) and (2) of the Act: reg.2(1) CLA(C)R 2013. All of these provisions are based on a costs order having been made against a legally aided party. In this case, of course, no order for costs has been or will be made against the claimant.
  • The only possible basis on which the Lord Chancellor’s submissions on this issue could succeed is if I interpret s.26 LASPO and the CLA(C)R 2013 to mean that it applies if there is the ‘potential’ for a costs order being made against a legally aided party. The clear wording of the section and the regulations simply do not permit such an interpretation.
  • Regulation 9 of CLA(C)R 2013 is headed ‘Effect of this Part’. Regulation 9(1) provides that ‘This Part applies where cost protection applies’. If I insert the clause set out in Reg 2(1) for the definition of ‘cost protection’, reg.9(1) would read ‘This Part applies where the limit on costs awarded against a legally aided party in relevant civil proceedings set out in section 26(1) and (2) of [LASPO] applies’. Cost protection does not apply in this case and thus the provisions of Part 3 of the CLA(C)R 2013 do not apply in this case, most especially regulation 9(2).
  • It is plain that regulations 9 and 10 apply in respect of the Lord Chancellor as the funder of legal aid to a party to civil proceedings. Reg.10 only applies where ‘proceedings are finally decided in favour of a non-legally aided party’. It is designed to provide recompense to that party, in specified and limited circumstances, where there is a shortfall between the costs incurred by that party and the limited costs which the legally aided party is ordered to pay, in consequence of which the non legally aided party will suffer financial hardship. Once again those circumstances do not arise in this case.
  • I am completely satisfied that

 

(a) the CLA(C)R 2013 has no application or relevance to this case; and(b) they do not preclude the court from making a costs order against the Lord Chancellor in appropriate circumstances, still less do they provide the Lord Chancellor with a ‘blanket immunity’ against an order for costs as a third party or otherwise.

 

 

Keehan J summoned up the spirit of JPR Williams and  David Duckham and jinks and weaves to make his side-steps work. It is beautiful to watch.  But I think there’s a forward pass in there somewhere.

 

 

Human rights, damages and costs – important case

Not sure this is the last nail in the coffin of HRA damages claims piggy-backing on care proceedings, but the bag of nails certainly isn’t full any more.

Be grateful it is nails. As the LA is Kirklees, I've been trying to think of a Shatner reference...

Be grateful it is nails. As the LA is Kirklees, I’ve been trying to think of a Shatner reference…

 

The High Court have given judgment in Re CZ (Human Rights Claim:Costs) 2017

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/11.html

 

The fact that there was a breach is impossible to deny and the LA accepted it. (Even looking at the recent steer from the Hackney authority that failure to follow guidance does not amount without more to an actionable claim, this one goes far beyond that)

12.CZ was born by emergency caesarean section at X Hospital on 6 November. It was a traumatic birth and CZ was for a short time placed on the Special Care Baby Unit (‘SCBU’). The baby was slow to feed, and showed temporary normal post-birth weight loss. That said, no child protection concerns were raised by the staff on SCBU nor on the ward to which he was discharged.

13.On 10 November 2015, the Local Authority received a referral from the X Hospital maternity ward; concerns were raised regarding the long-term parenting capacity of this mother and father. It was suggested that the mother had no family support, and that the father was expressing unorthodox views about the need for sterilisation of bottles, and the benefits of formula milk. It was nonetheless noted, in the referral, that the paternal grandmother of the baby was being supportive to the couple and was planning to move in with them at least in the short-term after discharge from hospital.

14.On the following day, 12 November 2015, the maternity ward staff reported to the social worker that CZ had put on weight, but that they remained concerned about the feeding plan and wished to monitor him further. The social workers did not visit on this day.

 

15.On 13 November 2015, the social worker visited the hospital at about lunchtime and was advised by staff that CZ had again gained weight; the staff had no further concerns about the baby, who was reported to be well enough to be discharged. This was, indeed, planned for later that day.

The LA made an application on 13th November 2015 on short notice to Court for an ICO. The parents did not attend that hearing. The LA assured the District Judge three times that the parents had been informed of the hearing. They also assured the District Judge that the parents agreed with the plan for the child to be placed with grandparents. A Guardian did not attend (the LA emailing CAFCASS minutes after the hearing apologising for forgetting to notify them)

 

It turned out that the parents had NOT been informed of the hearing. They had been told by the social worker that the LA planned to start care proceedings but not that there was a hearing imminently and when it was. Whilst the mother had agreed s20 accommodation, the father had not.

At a hearing on 20th January 2016, the parents through their solicitors gave notice that they wanted to challenge the ICO. At a hearing on 27th January 2016, the LA attended and set out that they did not consider that the threshold criteria was met any longer and sought to withdraw their application. The proceedings ended and the child returned to the parents.

The HRA claim was made on the basis of breaches of article 6 and article 8.

33.The Local Authority concedes that I should make the following declarations:

  1. i) It breached the parents and child’s right to a fair trial, pursuant to Article 6 ECHR when it failed to inform them and/or Cafcass of the urgent hearing which was held at 3p.m. on Friday 13 November 2015; this breach is compounded by the fact that the Local Authority repeatedly informed the court that the parents had been so notified;
  2. ii) Between 13 November 2015, and, at the latest, 7 December 2015 (the next hearing date), the Local Authority breached the rights of those named above to a family life as enshrined in Article 8 ECHR. The parents did not live in the same household as their son for that period albeit they enjoyed extensive contact to one another. The child was placed with the paternal grandparents in their home.

These concessions were made at an early stage of the process, and were shared with the court on 14 July 2016,

 

Cobb J ruled that :-

41.In this case, I am satisfied that the breaches of the Claimants’ ECHR rights were serious, a view which I expressed in the presence of the lay parties at the hearing. This was plainly not an exceptional case justifying a ‘without notice’ application for removal of a baby from the care of his parents (see Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), and it is questionable whether there was a proper case for asserting that CZ’s immediate safety demanded separation from his parents at all: Re LA (Children) [2009] EWCA Civ 822. The failure of the Local Authority to notify the Claimants that the hearing was taking place on the afternoon of 13 November was particularly egregious; misleading the District Judge no fewer than three times that the parents knew of the hearing aggravates the culpability yet further. This infringement will rightly be subject of a declaration of unlawfulness (see above), and to a very great extent this represents the essential vindication of the right which they have asserted.

42.The separation of a baby from his parents represents a very substantial interference with family life, and requires significant justification. In this case, my assessment of the seriousness of the interference has been moderated by two facts: first, because the actual arrangement effected under the interim care order, with CZ living with the paternal grandmother for the period while the parents enjoyed virtually unrestricted contact, was a variation of a plan which the parents had formed with Health Professionals prior to and following the birth in any event, namely for the paternal grandmother to reside with them for that period, and secondly, because once the parents and Cafcass obtained legal representation and were able to consider the situation with legal advice, none of them sought to challenge the living arrangement immediately and did not in fact do so until 20 January 2016.

 

 

The fundamental issue here was that the damages sought amounted to just over £10,000 and because they arose out of care proceedings, in order for the parents and child to receive a penny of those damages those representing them also sought costs orders not only for the HRA claims but for the care proceedings.

 

That is because the statutory charge bites on the damages, not only for the HRA claim costs (which is sensible) but for the care proceedings (which is hard to explain, but it is clear that it does).

section 25 LASPO 2012; this statutory provision reads:

 

 

 

 

“25 Charges on property in connection with civil legal services

(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

(2) Those amounts are—

(a) amounts expended by the Lord Chancellor in securing the provision of the services (except to the extent that they are recovered by other means), and

(b) other amounts payable by the individual in connection with the services under section 23 or 24″.

 

The total costs were £120,000.   (To be fair, Cobb J has included the LA’s costs within that calculation, and the LA would be paying their own costs in any event. So the costs are really £80,000)

You do not have to be a hot-shot civil lawyer to suspect that spending £80,000 to recover £10,000 is not a viable proposition.

Cobb J considered this case in a very detailed way and said some very important things.

 

  1. The cunning solution in P v A Local Authority [2016] EWHC 2779 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html , a case in which Keehan J found a way of facilitating the grant of the award of damages to the Claimant in such a way that it was unaffected by the LAA’s statutory charge. On the facts of that case, the applications under the HRA 1998 and under the wardship were quite separate and unconnected; he said this: “P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings” [71] (emphasis added).

Did not work here, and would not work in the majority of the HRA claims that we are concerned with, since they did arise out of the care proceedings or a prelude to them (s20)

 

 

  1. The fact that s25 LASPO meant that the statutory charge swallows all the damages does not mean that the Court is pushed into HAVING to make an award of costs to ensure that the claimant gets something.58.I reject the Claimants’ arguments on this first basis for the following reasons:  i) I do not accept that the very wide discretion afforded to me under section 8(1) has to be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome under section 8(3);ii) If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not; iii) Most awards of damages would be likely to be reduced to some extent by the incidence of assessment/taxation of the litigant’s own bill. While this may not apply so harshly to publicly funded litigants, it seems to me that the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;iv) The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award. I would regard it as unprincipled to increase the award of damages by a significant sum (which on the instant facts could be approximately seven-fold) to reflect the costs of the proceedings. Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
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  8. He tackles the principle of financial damages over and above the declaration of breach of human rights.  39.In deciding (i) whether to award damages, and/or (ii) the amount of an award, I must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention (Article 41, though not incorporated into English law, deals with ‘just satisfaction’). It is not necessary for me to review the significant European or domestic case-law on this point, more than to identify the following extracts from speeches and judgments on the point which have guided my views:  i) The Court of Appeal (Lord Woolf CJ, Lord Phillips MR and Auld LJ) in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, [52-53], and [57-58]: “The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages. … Where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance” [52/53].
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  12. 38.An award for damages for infringement of Convention Rights is warranted where the court concludes that it is “necessary to afford just satisfaction to the person in whose favour it is made” (section 8(3) HRA 1998). There is no specific formula or prescription for what amounts to “just satisfaction”, but in considering the issue, statute requires me to consider “all the circumstances of the case” including any other relief or remedy granted (including the grant of a declaration, and I suggest a formal apology) and the consequences of any decision of the court.

 

I interject here, to say that this is not the way that damages claims under the HRA in care proceedings has been developing, and it is a noteworthy reminder.

 

 

“Our approach to awarding damages in this jurisdiction should be no less liberal than those applied at Strasbourg or one of the purposes of the HRA will be defeated and claimants will still be put to the expense of having to go to Strasbourg to obtain just satisfaction. The difficulty lies in identifying from the Strasbourg jurisprudence clear and coherent principles governing the award of damages….”

 

 

And then quoting from the Law Commission:

 

 

“Perhaps the most striking feature of the Strasbourg case-law, … is the lack of clear principles as to when damages should be awarded and how they should be measured”. [57/58]

 

  1. ii) Lord Bingham in Regina v. Secretary of State for the Home Department (Respondent) ex parte Greenfield [2005] UKHL 14, [2005] 1 WLR 673 at [9] and [19],

 

 

“The routine treatment of a finding of violation as, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation.” [9]

 

 

“The Court [in Strasbourg] routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the Court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them.” [19]

 

iii) Lord Reed in R (o.t.a. Faulkner) v. Secretary of State for Justice [2013] UKSC 23 at [13](4)/(7):

 

 

“(4) [T]he quantum of awards under section 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living

 

 

(7) The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases”.

 

  1. iv) And in a passage which directly chimes with the facts of this case, Wilson LJ in Re C (Breach of Human Rights: Damages) [2007] EWCA Civ 2, [2007] 1 FLR 1957 at [64]

 

 

“… the European Court generally favours an award of damages in cases in which local authorities have infringed the right of parents under Article 8 to respect for their family life by shortcomings in the procedures by which they have taken children into care or kept them in care, whether temporarily or permanently” [64]

40.I further take account of the Practice Direction issued by the President of the European Court of Human Rights (2007; re-issued September 2016) on ‘just satisfaction’:

 

 

 

 

“The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting Party responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.” [9]

 

 

“It is in the nature of non-pecuniary damage that it does not lend itself to precise calculation. If the existence of such damage is established, and if the Court considers that a monetary award is necessary, it will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law.” [14]

 

 

“Applicants who wish to be compensated for non-pecuniary damage are invited to specify a sum which in their view would be equitable. Applicants who consider themselves victims of more than one violation may claim either a single lump sum covering all alleged violations or a separate sum in respect of each alleged violation”. [15]

 

It is convenient to cite here also what is said in the Practice Direction (at [17]) about costs and expenses (to which I make reference at [58(vi)] below):

 

 

“The Court will uphold claims for costs and expenses only in so far as they are referable to the violations it has found. It will reject them in so far as they relate to complaints that have not led to the finding of a violation, or to complaints declared inadmissible”.

 

And thus that damages are not a natural consequence of an identified breach – the claimant must specify what damages they seek and why they are sought. Why are the breaches such that only an award of damages will provide ‘just satisfaction’?

 

(I will return to this, because if the damages are just going to the LAA because of the stat charge, HOW CAN the claimant really argue that the award is to provide ‘just satisfaction’? On the face of it, all that is achieved is punishing the public body by making them write a cheque to the LAA, and that’s specifically ruled out by para 9 of the Practice Direction…)

 

Note however, what Wilson LJ said in Re C, quoted above, that the ECHR does make damages awards where the breaches have caused a parent to lose their child, “whether temporarily or permanently”

 

  1. Awarding costs of the care proceedings due to egregious conductCobb J ruled that the LA had conducted part of the proceedings in a way that triggered a justification for a costs order under the Supreme Court guidance in Re S and Re T, but not the whole of the proceedings, and the costs order should be limited to that.
  2. 67.In relation to the costs of the CA 1989 proceedings, the Claimants have failed to demonstrate in my judgment that the Local Authority behaved “reprehensibly” or “unreasonably” otherwise than in the circumstances in which it launched the proceedings and conducted the hearing on 13 November. This had ramifications (i.e. the placement of CZ away from the parents’ care) until 7 December. In my judgment, applying ordinary costs principles, the Claimants would be entitled to the costs of the CA 1989 proceedings for the limited period from 13 November to 7 December 2015.
  3. The Claimants litigation conduct had a bearing on the costs award in relation to the HRA claim – not making efforts to try to settle the case and not responding constructively to offers had a bearing on this.          
  4. On ordinary costs principles, I am of the view that the Claimants should be entitled to recovery of their costs of the HRA 1998 proceedings from the grant of certificates up to and including 14 July, but no further.
  5. vi) On the information available to me, the Claimants have not complied with the direction which I made (on 5 October 2016) to make open proposals for settlement in a timely way, or at all.
  6. v) So far as I can tell, there was no response to the offer made on 15 July 2016;
  7. iv) Further ‘without prejudice’ offers were made on the days either side of the Case Management hearing on 14 July, without any meaningful response. On the 14 July itself, at court, Ms. Irving QC made an open offer. On 15 July 2016, the offer was increased to £2,500 on an open basis, together with the HRA 1998 costs; the Local Authority proposed a further ’round table’ discussion but this fell on deaf ears;
  8. iii) The mother and Children’s Guardian did not respond positively to the request to provide costs schedules at an early stage or an order to the same effect, and none of the Claimants complied with my direction for the provision of open offers of settlement;
  9. ii) The Claimants were invited from 22 February 2016 to indicate a ‘settlement amount’ in relation to any prospective HRA 1998 claim, but they did not apparently (i.e. from the correspondence – including that marked ‘without prejudice’ – which I have now seen) do so;
  10. i) They failed to respond constructively to the Local Authority’s efforts to achieve a negotiated settlement; from an early stage (i.e. February 2016: see [45](i) above), through until July and beyond, the Local Authority was making appropriate overtures to sort out this dispute, but the Claimants were ostensibly unreceptive;
  11.  
  12. 66.On the facts of this case, the Claimants have succeeded in their HRA 1998 claim, and ordinarily therefore they could look to the “unsuccessful” party (Local Authority) to pay their costs under Part 44.2(2)(a); however, I consider that the Claimants’ litigation conduct is such that they have forfeited this entitlement. In particular:
  13.                 In any evaluation of costs whether under the CPR 1998 or the FPR 2010, I am obliged to have regard to the parties’ litigation conduct, and whether costs are reasonably or not reasonably incurred. The Claimants’ approach would require me to ignore or forgive any reckless, wasteful or profligate manufacture of costs in order to ensure that the Claimants receive their award; this cannot be right. In this case, as will be apparent from my comments below, the Claimants did not conscientiously attempt to settle their claims, whereas I am satisfied that the Local Authority did make genuine efforts to do so
  14. A suggestion was made to multiply the child’s damages by 3, and award the total damages to the child, so that only the Child’s public funding certificate had the stat charge arise, and thus make only costs order to cover the child’s certificate in full.

 

Mr. Taylor further submitted that I could award an aggregate damages award of £11,250 (£3750 x 3) to the child, and order the Local Authority to pay all of the costs of the Children’s Guardian; in that way, (i) this would reduce the financial outlay for the Local Authority than the alternative route contended for by the Claimants, and (ii) at least one of the parties would actually benefit from a damages award. Ms. Irving QC indicated that if the Court approved it, the Local Authority would not contest this approach. The LAA was, sensibly, consulted about this proposal, and rejected it for the contrivance which it undoubtedly is. I could not in any circumstances sanction this approach. I have awarded damages to each of the three Claimants; the figure awarded is what I regard as “necessary” to give “just satisfaction” to each of them. The proposal outlined undermines the principles on which I have resolved the claims.

 

 

 

 

Decision

 

75.I shall make the declarations proposed and conceded, set out in [33] above.

 

76.I shall award each of the three Claimants £3,750 by way of damages, to be paid by the Local Authority, under section 8(3) HRA 1998. It is, I acknowledge, regrettable that because of the costs order I propose to make, the Claimants are unlikely to receive these sums.

 

77.I shall make an order that the Local Authority makes a contribution to the publicly funded costs of the Claimants, limited to the following periods:

  1. a) 13.11.15-7.12.15 (all Claimants: CA 1989 proceedings);

 

  1. b) From the date on which the LAA granted extensions to the Claimants’ existing certificates (issued for the CA 1989 proceedings) for them to pursue HRA 1998 claims to 14.7.16, excluding the costs incurred by those who attended on behalf of the mother and the child at the meeting arranged by the Local Authority on 17 March 2016 (save as provided for herein, all Claimants: HRA 1998 proceedings).

78.That is my judgment.

 

Quantum-wise, a sum of damages of £3,750 per party, for the child being removed under an ICO hearing where the parents had not been given notice and the Court was misinformed that (a) they had and (b) they consented to the plans, where the LA withdrew the proceedings just months later because threshold was not met, compared to some of the very high s20 damages awards makes interesting reading. Cobb J was very specifically addressed on quantum and the principles to be applied and this case (together with the Hackney case) sets down a considerable marker that there is unlikely to be sufficient diamonds in the mine to justify the digging costs save in a highly exceptional case.

To escape the stat charge and ensure that the client receives any of the compensation, either the costs will need to be very small, or the damages very large, or a better case for a costs order than this one….

 

Happy birthday to me

 

 

The blog is five years old today.  My goodness

 

 

During those five years, you’ve been exposed to more 80s pop culture references than Stuart Maconie’s diary, we’ve had adoption explained via passive aggressive notes on a student fridge, learned about how difficult it is to get contact with your child if you are Edward Scissorhands, watched me lose and win an award (winning feels better, no matter what all my hippy teachers tried to tell me), compared our child protection system to nuclear warheads, considered a man who sold bleach as a cancer cure  (also the case where the parents sought advice from a man whose website claims he “Turned Hawaii into a verb”),  watched and winced as policemen, social workers, guardians, lawyers and even Judges got told off for doing things it is hard to believe, attempted to replace the phase “inherent jurisdiction” with “magical sparkle powers” to better reflect its use, had His Honour Judge Wildblood QC favourably compared to Rowdy Roddy Piper, inspected the threshold criteria in Harry Potter and a written agreement from Romeo and Juliet, conducted a retrospective on Tolkein’s short-lived career as a court reporter,  translated Pride and Prejudice into teenager speak, toldyou all how NOT to write a letter of instruction,  examined a Nigerian fertility clinic that managed to deliver babies to people who weren’t actually pregnant,  pondered abut what would happen if we used Truth Serum in Court, found out why it’s best to have your case on just after lunch rather than just before AND deep breath

 

written a bloody book!

 

https://suesspiciousminds.com/ive-written-a-book-find-out-more/

 

If you haven’t already ordered the book, please do. I really want as many people as possible to read it.

 

I’ve written 906 blog posts, and the above is a tiny sample of them (I forgot Kate Bush’s non-molestation order, just for one)

I doubt very much that there’s anyone who agrees with every word I’ve said over the last five years (I don’t think that I actually agree with all of it), but I hope that over those five years I’ve made some of you smile, some of you take heart, some of you reflect, some of you frantically copy and paste into a case summary and some of you feel slightly less miserable on a Monday morning.

I should say that I hope you’ve enjoyed reading it as much as I’ve enjoyed writing it, but I know that you haven’t, because I’ve had an absolute blast.

 

Not retiring, just reflecting.  If you missed any of the highlights (my description, not necessarily that of others) then there’s a link to them below

 

https://suesspiciousminds.com/2016/12/10/adoption-law-illustrated-by-way-of-passive-aggressive-post-it-notes-on-a-student-fridge/

https://suesspiciousminds.com/2013/04/12/scissorhands-versus-scissorhands/

 

https://suesspiciousminds.com/2013/10/08/the-award-losing-family-law-blog/

https://suesspiciousminds.com/2014/10/10/a-big-thank-you-to-lots-of-people/

https://suesspiciousminds.com/2013/09/29/alwaysnever/

 

https://suesspiciousminds.com/2016/07/26/woo-woo-woo-you-know-it/

 

https://suesspiciousminds.com/2015/09/15/and-im-all-outta-bubblegum/

https://suesspiciousminds.com/2012/06/19/the-boy-under-the-stairs-an-imaginary-judgment/

 

https://suesspiciousminds.com/2013/02/05/a-pair-of-star-crossd-lovers/

 

https://suesspiciousminds.com/2014/12/29/why-tolkien-never-made-it-as-a-court-reporter/

https://suesspiciousminds.com/2012/10/12/so-he-was-all-like-pride-and-i-was-all-like-nuh-uh-prejudice/

https://suesspiciousminds.com/2012/09/10/317/

https://suesspiciousminds.com/2012/10/29/one-of-these-nights-youre-gonna-get-caught-itll-give-you-a-pregnant-pause-for-thought/

 

https://suesspiciousminds.com/2013/01/29/would-we-want-the-truth-to-be-out-there/

 

https://suesspiciousminds.com/2013/09/30/your-honour-may-i-hand-up-my-case-summary-and-a-pastrami-on-rye/

 

 

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