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What responsibility do CAFCASS have towards children who AREN’T the subjects of proceedings?

In this family case, an argument arose as to whether the father had committed a sexual act with a child, AB, who was not in the family and was not part of the proceedings. Consideration was given as to whether AB should give evidence in the family Court – the father disputed the allegations.

 

The Court gave directions to undertake a Re W exercise – the Court asks for evidence to be gathered about the merits and risks of the young person giving evidence. Where the young person is a child the subject of proceedings, it is the Guardian who speaks with the child and prepares a report about the ability of the child to give evidence and their views and the impact upon them. The Court then hears argument and decides whether the child should give evidence and if so whether any special arrangements are to be put in place.

 

Here, the Court made a direction for CAFCASS to do the work, and CAFCASS objected, so the Court then directed the social worker to do it.   (The Local Authority raised that this was an issue of public importance – Guardians are well placed to obtain the wishes of children and do the Re W assessment and are more neutral than the LA whose job it is to prove the allegations, and the case was listed for consideration before Keehan J in the High Court.

A County Council v Children and Family Court Advisory and Support Service (Cafcass) [2019] EWHC 2369 (Fam) (20 September 2019)

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2369.html

 

The Submissions of the Local Authority

  1. The local authority submitted that the court does have the power to make the direction given in this case in respect of a non-subject, non-party child and that Cafcass would not be acting outwith its statutory functions. The issue is a matter, it is said, of the statutory construction of s.12 of the 2000 Act and of the relevant rules in the FPR.
  2. In support of this submission the local authority rely on four aspects of the statutory and FPR provisions, namely:
    1. i) s.12(1)(b) provides that it is a function of Cafcass to “give advice to any court about any application made to it in [family] proceedings”;

ii) r.16.20(2) provides that “the children’s guardian must also provide the court with such other assistance as it may require”;

iii) paragraph 6.1(b) of PD16A provides “obtain such professional assistance as is available which the children’s guardian thinks appropriate or which the court directs must be obtained”; and

iv) paragraph 6.6(f) of PD16A provides the children’s guardian must advise the court on “any other matter on which the court seeks advice”.

and that in terms, the Court has the power to direct CAFCASS to do anything that would assist the Court or on which the Court wants advice.

The Submissions of Cafcass

  1. It was submitted that the opening words of s.12(1), “in respect of family proceedings in which the welfare of children…is or may be in question” confirm the parameters of the role of Cafcass is limited to the subject child or children. Further, it was submitted that the subsections of s.12 of the 2000 Act should not be read disjunctively. The reference in s.12(1)(c), “make provision for the children to be represented in such proceedings”, emphasises the point that the role of Cafcass is limited to the subject child of the proceedings.
  2. The point is forcefully made that it is the function of local authorities’ children services departments, and not Cafcass, to be responsible for the safeguarding of children generally. The duty of Cafcass to safeguard children is owed to those who are the subject of family proceedings.
  3. The general nature of the powers and duties of Cafcass was noted by the Court of Appeal in R and Others (Minors), R (ota) v The Child and Family Court Advisory and Support Service[2012] EWCA Civ 853. McFarlane LJ, as he then was, observed,
      1. “On its wording and in its immediate statutory context, the natural reading of s.12 is that it is concerned with establishing a general framework of operation for CAFCASS, not with creating duties owed to individuals. The purpose of the section is to lay down the principal functions of the body established by s.11. By s.78, those functions include both powers and duties. By paragraph 9 of schedule 2, they are to be performed in accordance with any directions given by the Lord Chancellor (for Lord Chancellor now read Secretary of State – see note at paragraph 28 above). All of this is very general in nature. So too is the wording of the functions themselves. That is true not only of the functions in subsection (1), to “safeguard and promote the welfare of children”, “give advice to any court …”, “make provision for the children to be represented …” and “provide information, advice and other support …”, but also of the duty in subsection (2) to “make provision for the performance of any functions conferred on officers of the Service …”. There is nothing in any of this to suggest a legislative intention that all or any of the duties created by s.12 are owed to the individuals for whose benefit the functions are to be performed. On the face of it, these are general public law powers and duties. Nor was our attention drawn to anything within the other parts of the CJCSA 2000 that might suggest a different view.”
  4. The Court of Appeal considered the approach of the court in undertaking a Re W assessment in Re E (A Child)[2016] EWCA Civ 473. At paragraph 61 McFarlane LJ, as he then was said,
      1. “It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.”
  5. As in the case of Re B, the court in Re E was not considering the position in respect of a non subject child nor the role of Cafcass, if any, in relation to such a child.

 

CAFCASS were arguing, in effect, that the powers of the Court to make directions for CAFCASS to do things were limited to the children who were the subjects of the proceedings.

 

I think you can tell from the first paragraph of the discussion that CAFCASS are going to win this, and indeed they do.   Cue every Local Authority lawyer falling off their chair in amazement.

 

Discussion

  1. The interpretation of s.12 of the 2000 Act and the relevant rules contended for by the local authority, see paragraph 23 above, would effectively place no limit on the work or the role a court could direct Cafcass or an officer of the Service to undertake. Counsel for the local authority conceded this point but submitted that ‘common sense’ must be applied to limit the scope of what a court may require of Cafcass. I do not find this, to put it mildly, to be an attractive nor a persuasive submission: rather it undermines the local authority’s contention. I cannot accept that Parliament intended to create a statutory national body to advise and assist the court in family proceedings, and to represent the children who are the subject of those proceedings, without any restriction or limit on its function and roles. Still less would Parliament have intended that the restrictions or limitations on the role of the service would be determined by applying common sense.
  2. The advocates were agreed, that according to the best of their respective researches, there is no reported authority on the interpretation of s.12 of the 2000 Act in respect of the scope of the function of Cafcass.
  3. In respect of whether the subsections of s.12 should or should not be read disjunctively, I note that:
    1. i) the words ‘or’ do not appear after subsections (a), (b) or (c); and

ii) neither does the word ‘and’ appear after subsection (c).

It is in my judgment, however, significant that s.12(1) reads “it is a function of the Service to” followed by subsections (a) to (d). If the subsections had been intended by Parliament to be read disjunctively, I would have expected the word ‘functions’ to appear in s.12(1). The use of the word ‘function’ in the singular leads me to conclude that subsections of s.12(1) are not to be read disjunctively but instead are to be read conjunctively. Since one part of that function is to ‘make provisions for the children to be represented in the proceedings’, I am persuaded that the function and role of Cafcass pursuant to s.12 of the 2000 Act is limited to the subject child or children of the proceedings.

  1. Furthermore, I agree with and accept the submission made on behalf of Cafcass that the opening words of s.12(1), “in respect of family proceedings in which the welfare of children…is or may be in question” should be interpreted to mean that the role of Cafcass is limited to the subject child or children of those proceedings.
  2. I am reinforced in coming to this conclusion by taking account of the following matters:
    1. i) the appointment of the children’s guardian in public law proceedings under Part IV of the 1989 Act (‘specified proceedings’ as defined by s.41(6)) and the assistance it may be required to give to a court are subject to rules of court (s.41(10) 1989 Act);

ii) the appointment of a children’s guardian in public law proceedings is limited to a child who is the subject of the proceedings and is a party to the same (r.16.3 FPR);

iii) similar provision is made in respect of the appointment in private law proceedings (r.16.4 FPR);

iv) the FPR make separate provision for a child who is not the subject of the proceedings but is a party to the proceedings, namely the appointment of a litigation friend (r.16.5 FPR); and

v) the powers and duties of a children’s guardian whether in public law or private law cases set out in rr.16.20 & 16.27 and paragraphs 6 & 7 of PD16A must be read in the context of and in the light of the requirements of rr.16.3 and 16.4 FPR, namely the appointment is made in respect of the subject child.

  1. I am in no doubt that a children’s guardian, appointed to represent a child in public or private law proceedings, may be required to advise the court on the subject child’s relationship with a non-subject child (eg a step-sibling) and the impact on the same depending upon the orders made by the court for the future placement of the subject child: see FPR r.16.20(2) & PD16A paras 6.6(f) & 7.7. Similarly, a children’s guardian may be required to enquire into and advise the court about a wide range of matters and about a diverse group of people (eg relatives, friends and connected persons etc). This could include advising the court on the benefits/disadvantages of a non-subject child being called to give evidence in the proceedings. What is key, however, is that the objective and focus of these enquiries and of the advice is, and must be, establishing the welfare best interests of the subject child.
  2. It is quite a different matter to seek to appoint an officer of Cafcass, whether a children’s guardian or otherwise, to work with and advise upon a non-subject, non-party child. I have not been referred to any statute nor to any relevant rule of court which makes provision for such an appointment in these circumstances. I am satisfied such an appointment is outwith the statutory function and role of Cafcass.
  3. Conclusion
  4. I, therefore, conclude that the court has no power to require Cafcass to appoint an officer of Cafcass, whether a children’s guardian or otherwise, to undertake any work with or play any role with AB.
  5. The preparatory work directed by the judge ought properly to have been undertaken by a social worker from the local authority and/or a social worker from A City Council or, as was ultimately directed, by an independent social worker. The young person, if called to give evidence, would have been the local authority’s witness on whose testimony it relied in seeking to prove relevant facts which, if found to be proved, would have satisfied the threshold criteria of s.31(2) of the 1989 Act.
  6. I have not taken account of the potential adverse consequences for Cafcass, in terms of workload, if I had concluded the court had the power to make directions in respect of a non-subject child. Given, however, the increase of the workloads for all concerned in the child protection and family justice systems, now is not the time to consider widening the scope of the functions of Cafcass with its current resources

Can and should a Local Authority facilitate the use of sex workers for a vulnerable adult?


This is an issue that comes up from time to time, and it provokes a lot of contentious debate on either side. On the one hand, there’s the argument that sex work is exploitative and in this country subject to criminal laws.  On the other, there’s the argument that there are certain vulnerable adults who have appetites and needs and are not able to have those needs met any other way.   I’m taking no moral stand either way on this argument, just reporting what the High Court, in this particular case before Keehan J, decided.

 

In this case, the Local Authority went to the Court of Protection to say that they did not feel that facilitating P’s use of sex workers either in this country where it would be illegal, or by facilitating his travel to the Netherlands where it would be, was in his interests and that they did not wish to do it, and sought a declaration from the Court to that effect.

https://www.bailii.org/ew/cases/EWCOP/2019/43.html

 

Lincolnshire County Council v AB [2019] EWCOP 43 (08 May 2019)

 

1.These proceedings in the Court of Protection are brought by Lincolnshire County Council in relation to a man, AB, whom I shall refer to as ‘P’ in this judgment. He is a 51-year-old man with a diagnosis of moderate learning disabilities, autistic spectrum disorder, harmful use of alcohol and psychosis due to solvent abuse. He suffered, sadly, a chaotic childhood. He had difficulties engaging in mainstream education and spent much of his childhood in boarding schools, due to concerns about his behaviour, which are recorded as having been inappropriately sexualised from a young age.

2.He was first detained under the Mental Health Act 1983 in 1985. Thereafter, he was detained on a further 10 occasions between 1985 and 2003, generally as a result of interpersonal conflicts, alcohol abuse or withdrawal hallucinations and seizures. In 2000, P moved into his own property and began a relationship with a woman, who was noted to have exerted significant influence over him. The pair are recorded as falling into a pattern of drinking and engaging in antisocial behaviour in public. In July 2003, P was evicted from his flat, having caused significant and substantial structural damage.

3.In October 2003, he was admitted to hospital. Thereafter, he was detained under section 3 of the Mental Health Act and he remained in various psychiatric facilities for the next seven years. On his discharge in October 2010, P moved to another placement. It was here that he developed a friendship with a local prostitute and thereafter, began his fascination with female sex workers. He has since lived at a number of residential properties and during this time he has been facilitated to access sex workers, and then on occasions, to travel to the Netherlands to have sex with prostitutes there. In November 2008, he moved to his new supported placement. In April 2018, Lincolnshire County Council made an application for the court to determine P’s capacity and best interests, specifically with regard to contact with sex workers.

4.Evidence was sought from Dr Lisa Rippon, who concluded that P lacked capacity in all relevant domains, save the capacity to consent to sex. On the issue of contact, and particularly contact with sex workers, she said as follows:

“P has limited insight into the risks that others might pose to him, including sex workers, and overestimated his ability to keep himself safe. He could not think through the potential consequences of visiting sex workers, including the possibility of financial exploitation or involvement with the criminal justice system. I believe that P failed to both understand the information necessary to make decisions about contact and was unable to weigh up the benefits and risks. It is therefore my opinion, that P lacks capacity in this area and this is as a result of his learning disability and autism.”

5.The position now, is that the local authority do not intend to facilitate P’s access to sex workers, whether in this country or abroad, in particular in the Netherlands. They set out their reasons in a detailed and helpful position statement. P’s litigation friend has visited him on a number of occasions in the recent past to gain his views. P, it is said by his litigation friend, has a high sex drive and finds the lack of access to sex workers frustrating. He has stated that self-pleasuring using pornography, sex dolls and toys, is not the same as having physical contact with a woman. He would wish to continue his past conduct of having and being permitted to have sexual relations with sex workers, here and in the Netherlands.

 

 

That sets up the background and the judgment then moves onto the decision

 

Conclusion
6.I have due regard to P’s wishes and desires. But I have come to the clear conclusion that the local authority have adopted the right decision and approach, in not seeking to facilitate his contact with sex workers either here or abroad.

7.In coming to that conclusion, I have had regard to s.2 of the Mental Capacity Act 2005. There has been no change in the P’s circumstances, namely that he lacks capacity as I had set out above. I have also had regard to ss.3 and 4 of the 2005 Act. I note that a care worker who causes or incites sexual activity by an individual for payment, with another person, commits a criminal offence, pursuant to ss. 39,42 and 53A of the Sexual Offences Act 2003.

8.If care workers who look after and support P, were to facilitate such activity, they would be committing a criminal offence and any declaration by me, would not alleviate their liability to be prosecuted. In the Netherlands, of course, prostitution and payment for sexual services are not illegal. But in my judgment, there is a very real risk that if a care worker here, supporting P, made arrangements for him to travel to the Netherlands for the purposes of having sexual activity with a woman for payment, they would be at risk of being prosecuted for a breach of the Sexual Offences Act 2003.

9.Accordingly, I would not be minded to make any declaration permitting care workers or the local authority to arrange for P to have sexual activity in exchange for payment with a woman, either in this country or in the Netherlands. Secondly, and in any event, I consider it would be wholly contrary to public policy for this court and for this local authority, to endorse and sanction P having sexual relations with a woman for payment. Thirdly, and in any event, notwithstanding P’s clearly expressed wishes and his clear desires to continue to meet prostitutes for sexual activity, I do not consider it is in his best interests to do so. I have well in mind, his expressed views that he does not consider that he would otherwise be able to have a relationship with a woman and therefore, he sees no alternative but to seek to use the services of prostitutes.

10.I have regard to the fact that he finds self-pleasuring is not of the same enjoyment or satisfaction as having sexual relations with a woman. In light of the opinion of Dr Rippon, however, it is clear that P does not understand all of the implications of having sexual relations with a woman for payment. He puts himself at risk to his health, his welfare and his safety and he puts himself at risk of exploitation: none of which he accepts or understands. In those circumstances, I am entirely satisfied that it is wholly contrary to his best interests for him to have sexual relations with prostitutes. Still less, is it appropriate for this court to sanction the same. On behalf of P, his litigation friend through counsel, Miss Twist, acknowledged those factors, not least the impact of the criminal law and did not seek to pursue an application for the court to grant such declarations. In my judgment, that was an entirely right and appropriate decision.

11.I have been asked to give this short extempore judgment, so that it may be transcribed and a copy given to P, so that he may know why the court has come to the above conclusions. I entirely accept that P will be, to put it mildly, disappointed by and he will undoubtedly not agree with my decision. Nevertheless, I am satisfied that the conclusions I have reached are in his best interests.

 

Ladds ladds ladds

 

The Court of Appeal give guidance on how to challenge findings of fact made where the ground to do so is as a result of fresh evidence.

 

Re E (Children :Reopening findings of fact) 2019

https://www.bailii.org/ew/cases/EWCA/Civ/2019/1447.html

I’ll dash through the facts of the case.  Child aged 10 months found to have 3 cigarette burns on her arm, variety of explanations given, rejected by expert in care proceedings, Court made findings of inflicted injury. Care Orders were made in relation to that child and two older siblings.   At  later criminal proceedings of mother, a medical expert accepted mother’s explanation of an accident and the criminal case was dropped.

 

Those representing the mother considered this to be fresh evidence, capable of satisfying the Ladd v Marshall guidance

  1. Ladd v Marshall [1954] 1 WLR 1489 remains powerful persuasive authority: see Sharab v Al-Saud [2009] EWCA Civ 353 and generally the discussion in the White Book 2019 at 52.21.3.
  2. Ladd v Marshall familiarly provides that:
        1. “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
  3. The durability of Ladd v Marshall shows that it encompasses most factors relevant to applications that are likely to arise in practice but as Hale LJ noted in Hertfordshire Investments Ltd. v Bubb [2000] EWCA Civ 3013 [37] the criteria are not rules but principles to be looked at with considerable care.

 

 

There has previously been judicial discussion as to whether the Ladd v Marshall provisions should be more generously interpreted in family cases, and the Court of Appeal clarify this

 

  1. It has been said that the Ladd v Marshall analysis is generally accepted as being less strictly applied in cases relating to children: Webster v Norfolk County Council [2009] EWCA Civ 59 per Wall LJ at [135]. At [138] he continued:
        1. “The rationale for the relaxation of the rule in children’s cases is explained by Waite LJ in Re S (Discharge of Care Order) [1995] 2 FLR 639 at 646, where he says:-

The willingness of the family jurisdiction to relax (at the appellate stage) the constraints of Ladd v Marshall upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstances whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances. In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined.”

  1. In Re G (to which I have already referred) Macur LJ made this observation about Webster:
        1. 16. For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in ‘children’s cases’. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.”
  2. A decision whether to admit further evidence on appeal will therefore be directed by the Ladd v Marshall analysis, but with a view to all relevant matters ultimately being considered. In cases involving children, the importance of welfare decisions being based on sound factual findings will inevitably be a relevant matter. Approaching matters in this way involves proper flexibility, not laxity.

 

 

Those representing the mother believed, reasonably, that the only route open was an appeal

When pursuing the route of an appeal out of time, those then advising the mother believed that it was the only course open to her. That belief was understandable, being based upon a statement now in the Red Book 2019 at p.2247 that the first instance court has no jurisdiction to re-open findings of fact once an order is sealed, a statement that reflects obiter observations made by this court in Re G (A Child) [2014] EWCA Civ 1365,

 

The Court of Appeal were looking, however, as to whether an alternative route of inviting the Court who made the findings to revisit them in the light of fresh evidence was available.

 

I think most of us believed that once the order was sealed, the Court was done, and it would have to be an appeal.

 

A case I wrote about years ago suggested this (it is the one where the Judge originally gave a judgment finding one parent responsible for the injuries but before the order was typed up and sealed changed her mind and found the other responsible.  This was permissible as long as the order were not sealed.  Permissable procedurally in any event, there are obvious appeal points about the forensic process.

 

  1. The case referred to (Re L and B) was an unusual one. A trial judge had given a short preliminary judgment at the end of a fact-finding hearing, determining that the father was the perpetrator of injuries to the child. A request for clarification was made and two months later a ‘perfected’ judgment was provided in which the judge stated that both parents may have been the perpetrator. The Supreme Court held that on the facts of that case the judge had been entitled to change her mind as the order in that case had not been sealed. These are the paragraphs referred to in Re G:
        1. “16. It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.

19. Thus there is jurisdiction to change one’s mind up until the order is drawn up and perfected. Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is now perfected by being sealed by the court. There is no jurisdiction to change one’s mind thereafter unless the court has an express power to vary its own previous order. The proper route of challenge is by appeal.

42. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.”

  1. These paragraphs are therefore particularly concerned with the circumstances in which a judge may or may not change his or her mind. They are not addressed to a situation in which the court is being asked to take account of further evidence, although that clearly could be one reason for a change of mind

 

 

It was clear in this case that the Care Orders had been made, and thus the orders sealed, so appeal seemed to be the only route to looking at the findings again in the light of the medical evidence obtained in the criminal proceedings.

 

BUT

  1. 40… more fundamentally, the statutory landscape had changed with the establishment of the family court. The court came into existence on 22 April 2014 by virtue of Part 4A of the Matrimonial and Family Proceedings Act 1984. This includes section 31F (‘Proceedings and Decisions’), comprising nine subsections of which two are relevant:
      1. “…

(3) Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties.

(6) The family court has power to vary, suspend, rescind or revive any order made by it, including—

(a) power to rescind an order and re-list the application on which it was made,

(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and

(c) power to vary an order with effect from when it was originally made.

…”

  1. In my judgment, s. 31F(6) gives the family court (but not the High Court) the power to reconsider findings of fact made within the same set of proceedings or at any time thereafter. While a finding of fact is not in a strict sense “an order”, it can comprise the determination of an issue that is crucial to the disposal of the proceedings and is susceptible to appeal: Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334 per Dame Elizabeth Butler-Sloss P at 336-337. Such a finding of fact is integral to the order on which it is based and accordingly comes within the scope and purpose of the section.
  2. My further assessment that s. 31F(6) continues to apply after the end of the individual set of proceedings is based firstly on the fact that the words of the section are not expressed to be limited in duration, but secondly and more fundamentally on the intrinsic nature of family proceedings. As I said at the outset, findings of fact can have longstanding consequences for children and families. Their effect is not only felt in the moment they are made, but persists over time. There is therefore no reason to limit the time within which the court can exercise its power to correct a flawed finding of fact that may have continuing legal or practical consequences.

 

Obviously if the original Judge does not do so, the route for an aggrieved parent then is appeal, but this opens the door to the original Judge being asked to reconsider as an alternative to an appeal.

 

  1. Having established that the family court has jurisdiction to review its findings of fact, the next question concerns the proper approach to the task. As with the approach of an appeal court to the admission of further evidence, the family court will give particular weight to the importance of getting it right for the sake of the child. As was said in Re L and B at [41]:
        1. “In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.”
  2. The test to be applied to applications for reopening has been established in a series of cases: Birmingham City Council v H (No. 1) [2005] EWHC 2885 (Fam) (Charles J); Birmingham City Council v H (No. 2) [2006] EWHC 3062 (Fam) (McFarlane J); and Re ZZ [2014] EWFC 9 (Sir James Munby P).
  3. These decisions establish that there are three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.
  4. In relation to the first stage, these decisions affirm the approach set out in Re B (see para. 28 above). That approach is now well understood and there is no reason to change it. A court faced with an application to reopen a previous finding of fact should approach matters in this way:
    1. (1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other.

(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.

(3) “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial.” There must be solid grounds for believing that the earlier findings require revisiting.

  1. I would also draw attention to the observations of Cobb J in Re AD & AM (Fact Finding Hearing: Application for Rehearing) [2016] EWHC 326 (Fam) about the care that must be taken when assessing the significance of further medical opinions at the first stage (para. 71) and as an example of the need to control the identification of issues and gathering of evidence at the second stage (paras. 86-89).
  2. Pausing at this point to compare the hurdles facing an applicant to the trial court and an applicant to this court, it can be seen that the processes are by their nature different. The gateway under CPR 52.21(2) and the Ladd v Marshall analysis concern the admissibility of evidence, while the first stage of an application for a review requires a consideration of the overall merits of the application. It cannot be ruled out that the different procedures might throw up different results in similar cases, but on the whole I think that this is unlikely. In both contexts, the balancing of the public interests is carried out with a strong inclination towards establishing the truth in cases where there is good reason for a reassessment, and as a result the outcomes will tend to converge.

 

The Court of Appeal note that there is presently a lacuna in that the Family Court can be asked to reconsider findings but not the High Court, and that this has been fixed in relation to ancillary relief by FPR 9.9a and that the Family Procedure Rules Committee may wish to consider doing the same for children cases in the High Court.

 

 

Paternity complexity

 

 

This is a pair of judgments in the High Court, relating to a child, a boy named C.  The judgment doesn’t specify his age, but he was born somewhere between 2006 and 2016  (reading between the lines, and I think he’s probably on the younger end of that spectrum )

AB v CD (No 1) 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/1695.html

 

and predictably

AB v CD (no 2) 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2244.html

 

C’s mother, CD was married in 2003 to AB.  They separated in 2017.  AB then heard rumours that CD had been having an affair (although he did not know with whom) at the time of C’s conception. He sought DNA paternity testing and was devastated to learn, after many years of believing C to be his son, that he was not C’s father.  The mother accepted that she had been having an affair with a man named X, who she did not wish to name

 

  1. AB was devastated by the news that he was not the biological father of C. It was a huge blow to him personally as well as to his pride and status. Following the revelation, relations between AB and CD have been at rock bottom. AB has issued a raft of proceedings against CD including:
  2. i) Proceedings in the Chancery Division for breach of confidence;

ii) Proceedings in the Queen’s Bench Division, claiming back from CD all the money that he has spent on C in the mistaken belief that C was his child and seeking also damages for his distress and for the difference between the sum that CD will receive at the determination of her claims for financial remedy orders and what she would have received if her claims were determined in 2011 as he says they would have been if she had admitted her adultery;

iii) Proceedings under Children Act 1989 for residence and these proceedings;

iv) Financial Remedy proceedings.

The scale of the litigation is immense, with huge teams of lawyers. The Queen’s Bench and financial remedy applications are listed before me for 20 days early next year

Within case number 1, the central issue was Should C be told that AB was not his father, and leading on from that that X was his father, and leading on from that, AB wanted to be told who X was.

  1. The arguments of the parties
    1. AB says that C needs to know who his father is as soon as possible. That means telling him not only that he, AB, is not the father, but that he also needs to know the identity of X. He says that only when he, AB, knows the identity of X can he sit down with X and ascertain exactly what role X is to play in C’s life. Bearing in mind the strength of AB’s feelings, it seems to me highly unlikely that he would be able to sit down with X and have the sort of calm and rational discussion that he envisages. But, whether or not a discussion takes place, it is understandable that he wants to know what role, if any, X would wish to play in C’s life.  
    2.   AB adopts the guardian’s proposal that he and the mother should with professional assistance agree a script and present to C the reality of his paternity. He is not willing to accept the mother’s word as to the identity of X, even if X admits it, and he would want X to undergo a DNA test.
    3. He says that C is bound to ask who his real father is when told that AB is not his biological father and that information should not be kept from him or delayed.
  2. He says further that C has a right to know the identity of his birth father. It is fundamental to his sense of identity and belonging and Articles 7 and 8 of the United Nations Convention on the Rights of the Child underline this point.
  3. AB makes the further point that the lack of knowledge of the identity of X sours his social life in the sense that he thinks it is likely, and I tend to agree, that X is someone who is known to AB and AB does not want to spend his time wondering which of his social circle is to blame and possibly pointing the finger at those who are blameless.
  4. He says that it is important for C to know the identity of X in case there are any hereditary medical problems. I give little weight to that. C is in good health. No problems have yet emerged and on any basis sooner or later C is likely to have to be told the identity of X.
  5. Mr Verdan QC on behalf of AB has sought to argue that since I will be bound (as he puts it) to order disclosure of X’s identity in the Queen’s Bench proceedings, I should not close my eyes to that fact in considering disclosure within the Children Act proceedings. I do not consider that this is an appropriate matter for me to take into account in the children proceedings which are governed by what is in C’s best interests.
  6. But, in any event, it is not a given that X’s identity will be ordered to be disclosed in the Queen’s Bench proceedings against CD or that I shall regard it as appropriate that any claim against X within such proceedings should be determined at the same time as the claim against the mother. I remind myself that there is an outstanding strike out application made by the mother in respect of this claim against her which I may need to consider and determine sooner than envisaged by the existing case management directions.
  7. The mother’s case is that C’s state of biological knowledge is that he simply will not understand what is meant by the concept of him having two fathers in his life. Far better, she says to wait for about two years by when he will understand the genetic process. In the meantime, C can get on and enjoy a full relationship with AB.
  8. She says that when C is told that AB is his psychological but not his biological father it is unlikely that C will, at least in the short term, question who X might be. If he did, she would seek to deflect the issue by saying that it is someone whom C has never met and who plays no part in his life. Only if C became insistent would she tell him. In an ideal world she would hope that the secret of X’s identity might remain in the background until C approaches adulthood.
  9. In particular, she stresses that now is not the right time to tell C anything. The parties are in the midst of an enormous amount of litigation and tensions are high. She would at least want to get past February by when it is hoped I will have determined the body of litigation that is listed before me then.
  10. If C is told who X is, it may lead to C being divided 3 ways. How, she asks, is C expected to cope with that. She has no desire to have X involved in C’s life or run the risk of his undermining the relationship that AB has with C.
  11. The parties live in a culturally conservative society. If the identity of X was revealed that would have a damaging impact on both her and X within their society but also would inevitably have a knock-on effect on C.
  12. She says that at the moment the only person who knows X’s identity other than her is her brother, who has kept the information to himself although in a pleading in the Queen’s Bench action she said that she has also told her parents.
  13. The guardian has provided a helpful report. Her evidence, which the mother and AB accept in this respect, is that the news that AB is not C’s biological father is widely known to family members, the staff in their various residences, and to those in their immediate social circle.
  14. In an ideal world, she says, C would be told by AB and CD together that AB was not C’s biological father. They would do so from a prepared script with which they would have had professional assistance. By then AB and CD would know what X’s views were and whether he wanted to play any part in C’s life, so that if C asks questions about him they would be in a position to answer them. As to when C should be told, she said this in her report:
    1. 26. It is my view that C should be informed of his paternity and that he has a right to this information, which constitutes a crucial tenet of his biological heritage and his identity. Drawing upon the research within adoption literature, there is increasing recognition of the unhealthy and damaging impact of keeping secrets within a family about such fundamental issues and the detrimental impact of children finding out inadvertently, or at a later stage, that such significant information was kept from them.

27. That the information about C’s paternity is so widely known, amongst his extended family, the family and extended family’s staff members and reportedly, within wider society renders it impossible that C would not at some stage, come to learn the truth. It also increases the risk of him inadvertently finding out, or hearing the information from a third party, which would be hugely damaging to him. Further, there is also the potential that C could be told in a moment of anger or hurt, rather than in a way that is managed to be as safe and least harmful way as possible.

28. It is partly for this reason that I consider that ideally, it would be better for C to be told about his paternity now, rather than waiting until he is older and thus increasing the risks of him finding out via alternate means.

29. However, it is C’s current age and stage of development that leads me to consider that he is best told now, rather than as he enters the pre-teen phase and puberty. At this age, C is still a young child, and whilst he is developing an increased understanding of the world and is more able to understand more complex information, his thinking remains relatively uncomplicated. Children are better at dealing with life events at this age, because they have a lesser sense of permanency as they tend to live in the moment. From a cognitive standpoint, the information shared is likely to have less of a devastating impact that if C were older. He is more likely to overcome initial feelings of shock and distress than if he were entering the pre-teen or teenage stage of development, where the advance of puberty can bring about real emotional turbulence, that would compound any initial emotional response. Further, an older child is increasingly likely to experience a sense of loss of trust in a parent at not having been told sooner.

  1. She says that the idea of telling C soon, as she recommends, that AB is not his genetic father but leaving it until later to tell him who X is, runs two particular risks:
  2. i) The risk of C feeling that information is being kept from him;

ii) Doubling the pain by having to tackle two related issues at times that are chronologically apart.

Much better, she says, to tell him it all in one go and combine it with the reassurance that nothing will change in his life and that AB is still his psychological and social father.

  1. She says that the parties have done well in limiting C’s awareness of the animosity between them and the extent of the legal proceedings. She says that mitigates the danger of him being damaged by the continuation of proceedings if C’s paternity and X’s identity are revealed sooner rather than later.
  2. The guardian accepts that it may be that C will not want to know the identity of X. In that case she says, he should not be told until he wants to know

Those are some very tricky competing issues.

  1. The law
    1. Perhaps surprisingly, there appears to be no reported case where these particular issues have arisen before. There are, however, a number of cases which have clearly established that it is in a child’s interest to know the truth of his paternity. As Hedley J said in Re D (paternity) [2007] 2FLR 26 at paragraph 22

The general approach is that it is best for everyone for the truth about a disputed paternity to be known. The classic statement that is to be found in the judgment in the Court of Appeal in Re H and A (children) [2002] 1FLR 1145. I acknowledge once that that should be the guiding principle in all cases with which the court deals. It has obvious merit, not least the general proposition that truth, at the end of the day is easier to handle than fiction and also it is designed to avoid information coming to a young person’s attention in a haphazard, unorganised and indeed sometimes malicious context and a court should not depart from that approach unless the best interests of the child compel it so to do.

  1. I apply the provisions of s.1 Children Act 1989 and C’s welfare is my paramount consideration.
  2. The parties
    1. I need say little about AB and CD. They are both plainly highly intelligent. Each accepts that the other is a devoted and committed parent to C. The mother says that she is devastated and full of remorse for the situation that she has brought about and I accept that her remorse is genuine.
  3. AB has been put in a dreadful position. He is beginning to reconcile himself to his position but in my judgement he remains full of controlled anger.
  4. The guardian gave thoughtful and helpful evidence. It is no criticism of her to say that I think she had not foreseen the range of difficulties that this case presents and that to some extent her evidence was given on the hoof as she was made to confront problems in the witness box which she had not previously thought through. The same can be said of the other parties whose positions evolved throughout the case.
  5. My approach
    1. This is an acutely difficult matter and I approach it with humility, aware that different tribunals might reach different decisions on this matter of such importance to the parties.
  6. The starting point is that C must be told sooner rather than later that AB is not his biological father. I agree with the guardian that he is at an age when it will be easier for him to accept than it will be when he is older. I agree also that the risk of him hearing rumours from others is a real risk which needs to be avoided if possible.
  7. The much harder issue is that relating to the disclosure of X’s identity. The guardian says that in an ideal world the two issues would be dealt with in one go and I entirely see the logic of that. The difficulty is that X is completely unaware of these proceedings and what is going on in them. It is not possible to know how X will react and thus no one can tell C whether X will want to play any role in his life or even meet him. There are all sorts of possibilities; to name a few obvious ones:
  8. i) He might deny paternity;

ii) He might decline a DNA test. The court has no power to compel him to have one;

iii) He may want nothing whatsoever to do with these proceedings. Indeed, he may not even reply to any communication that is sent to him;

iv) He might on the other hand wish to play a role in C’s life;

v) He may have very strong feelings himself as to whether his identity should be disclosed.

His reaction will impact on what is told to C.

  1. By the end of the case AB and the guardian both argued that the two issues of disclosure of AB’s non-paternity and the identification of X should not be split. If that meant a delay before C was told anything so that X’s stance could be ascertained, then so be it, although the delay should not be excessive. Only with a knowledge of X’s stance could a full picture be given to C. The mother remained of the view that the two issues could and should be split.
  2. It seems to me that it must be wrong to disclose X’s identity until answers to the questions that I have mentioned above are known. I have therefore drafted a letter to X which will be sent to X seeking answers. The contents of the letter have been provided to counsel for their comments and will be the subject of amendment.
  3. CD and the guardian both say that X must be told of the existence of the Queen’s Bench proceedings. It would be wrong to hide from him that he may be catapulted into such proceedings. I regard it as unfortunate for C that X’s attitude to C might be influenced by this threat and I hope that AB will give further thought to the value of those proceedings in the context of their effect on C.
  4. The consequence of the delay in imparting information to C is that the parties may lose the advantage of the imminent approach of the summer school holidays which would permit C to be told but then be able to experience for himself that nothing had changed in his relationship with AB with whom he would be spending three periods of about one week each during the holidays. It would give an opportunity for C to realise that AB will not suddenly disappear from his life or his role be diminished. In term-time AB will be less available.
  5. AB suggests that I should require X to reply to the letter sent to him by the end of this week. That is completely unrealistic, especially as the terms of the letter have not even been finalised. X must have the chance to assimilate what he is being told which may come as a total shock to him. He is entitled to give a considered view and to take advice.
  6. I therefore propose to list the matter before me in about 5-6 weeks’ time by when I expect X to have responded. AB accepts that a further delay may be needed, depending on X’s reply. The delay is the inevitable consequence of dealing with matters holistically, rather than decoupling the two issues.
  7. I have at times been attracted to the mother’s proposal that the two issues should be separated but I am persuaded that it is more in C’s interest for the parties to be better equipped to answer such questions as he might ask.
  8. How the news is broken to C must be very sensitively handled. The parents think that they might be able to do it together. The guardian is less optimistic. Her proposal is that CD should tell C the news by reference to the agreed script and that later the same day AB should reinforce it. I think that is probably right but further guidance should be taken from the expert who will be assisting them through this process and who will be able to gauge their reaction to it.
  9. Each party has made suggestions as to what C’s wishes might be. The only certainty is that the news will be unwelcome. It is not possible to surmise beyond that.
  10. It is essential that the orders that I make are buttressed in a number of ways. First, AB’s position is to be strengthened by the grant of parental responsibility to him and a “spend time” order. I am pleased that this is agreed.
  11. Steps need to be taken to mitigate the lack of communication which exists between the wider family. It is very bad for C that arrangements for him to see his paternal cousins who live just a few doors away are made through staff rather than directly between family members. Likewise, steps should be taken to try to obtain some form of working relationship between the parents as to the arrangements for C. They have agreed to use an app and to accept mediation.
  12. I have little doubt that in so far as the fact that C is not the genetic child of AB has reached the public arena that has happened through disclosure from AB or those he has told. Both his sense of anger and the mother’s sense of shame make it far more likely that he or his side is the source.
  13. If the time comes that I direct that X’s identity should be disclosed I will have to consider carefully how the information is to be used and to whom it will be given. I will wish to restrict its circulation as far as possible. I am anxious that the information is used for C’s benefit and not for any gratification of a desire for revenge.
  14. I therefore order as follows
    1. a) CD shall forthwith disclose to her solicitors the name and contact details of X.

b) The solicitors shall by 5 July write to X a letter in agreed terms which shall require a reply by 2 August 2019.

c) The matter shall be listed for a 2 hour hearing before me no later than 16 August 2019.

d) In the event that the parties agree that the hearing cannot be effective it shall be vacated and relisted.

e) At the next hearing or on paper in the event that the hearing in August is vacated consideration will be given to giving directions for the hearing of the mother’s strike-out claim in the Queen’s Bench proceedings.

And so to part 2,  X’s identity having been given by mother to her solicitors, and X having been written to about what was happening.

ii) X has responded to the letter sent to him at my direction. To put it shortly, his response has been that he does not recognise the jurisdiction of the courts of England and Wales to deal with this matter and says that the allegations “have no iota of truth whatsoever”. He says he is shocked that there are proceedings that involve his identity and reputation and reserves his rights in this regard.

  1. This response was one of the possible answers that I predicted at paragraph 40 of my earlier judgment.
  2. In determining the issues in relation to the disclosure of paternity I at all times have as my paramount consideration C’s best interests.
  3. In the light of X’s denial of paternity the mother asks me to revisit my decision as to the disclosure that H is not C’s father. I decline to do so. All the reasons that I set out in my first judgment still pertain. It is only a matter of time, probably fairly short time, before somebody says to C that H is not his father. Too many people know for the matter to be kept hushed up. There is no prospect of this issue being smoothed over and it remains far better that it is managed so as to minimise the potential damage to C.
  4. X’s answer has not eased my task. It means that if C was to be told the whole truth he must be told that whilst his mother has named X as his father, X denies it. This brings with it the scope for C to feel abandoned and rejected. Those feelings may or may not be mitigated by the fact that H has, since June, reached the decision that he still wishes to remain in all senses C’s psychological father.

 

With that in mind, the Court made this decision  (Ms Ware was an independent social worker instructed to assist in the case)

 

  1. I have decided that the best answer is to say that the mother must reveal the identity of X as and when Ms Ware says to the mother that C should now be told the identity of X. At that time, and not before, H must also be told of X’s identification. I make it clear to the parties and Ms Ware, who will receive a copy of this judgment, that the time at which C should be told of X’s name is one that cannot be predicted. It may be a very short time or it may be years. It will all depend on C’s reactions and needs.
  2. I share the guardian’s view that C must not feel that information is being kept from him and that to do so would be harmful to him. But, what is known now and was not known before, is that X denies paternity and wants nothing to do with C. Matters must be approached at C’s pace.

 

AB at this hearing, having decided that he wanted to play a continuing part in C’s life as his father, had withdrawn his financial claim for recompense from CD for the sums paid to maintain C when the couple were together, although deceit would still be a part of the ancillary relief claims.

Is a link a publication?

 

In the case of Medway Council v Root 2019, a mother was found to be in contempt of Court orders prohibiting her from publishing certain items about the care proceedings and her children, and having previously been given suspended sentences for earlier breaches, was given a nine month custodial sentence.

 

The eldest child had written to the Court expressing unhappiness as to the information the mother was placing about them and the siblings on the internet.

The point of law arose on one alleged breach – the judgments are published and on Bailii and anonymised.

 

The Reporting Restriction Order said this:-

AND it is permissible to publish the [five judgments of 17/07/2017, 18/07/2017, 30/08/2017, 15/03/2018 and 11/05/2018] save that the judgments are not to be published:

in conjunction with any other material that names the children or identifies them by photograph or any other image; or

on any online page containing any other material that names the children or identifies them by photograph or any other image where the existence of that material is known to the publisher.

 

The mother was said to have published material identifying herself and the children, with a hyperlink to the judgment.

Was that publishing the judgment?  (Mr Elliott was for Medway, Mr Dean was for Ms Root)

 

 

  1. In relation to the issue of the hyperlink both counsel agree there is no binding authority on this issue in this jurisdiction in the context of contempt. Mr Dean’s assiduous researches have produced two cases from other jurisdictions; a decision of the Canadian Supreme Court (Crookes v Newton [2011] 3 S.C.R. 269) and an Australian decision of the Supreme Court in NSW (Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350). They both involved defamation actions. Crookes concerned an action against the person who owned and operated a website which posted an article which contained shallow and deep hyperlinks to other websites which in turn contained information about the applicant, two of which the applicant alleged connected to defamatory material. In Visscher the applicant sued the owner and operator of a website that contained information on the website and a link to an article, both of which the applicant alleged was defamatory.
  2. In Crookes the majority judgment was given by Abella J. Justice Abella considered that hyperlinks bear the same relationship to the content of the impugned publication as references in that
    ‘[30]…both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.’

She concluded that

‘[42] …making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should the content be considered to be ‘published’ by the hyperlinker.’

  1. Whilst McLachlin C.J. and Fish J agreed with the majority ‘substantially’ they considered a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a web site is not enough to find publication. Deschamps J observed that excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet. The blanket exclusion exaggerates the difference between references and other acts of publication, and treats all references, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.
  2. In Visscher there was reference to the judgments in Crookes but Beech-Jones J considered that decision was not consistent with Australian authority and that the approach of McLachlin C.J. and Fish J in Crookes ‘[29]…can be readily adopted to circumstances in which a person is alleged to the publisher of material by inserting a hyperlink directing viewers to its web location. In particular, the question is whether, by the inclusion of the hyperlink, the defendant accepted responsibility for the publication of the hyperlinked material. This could be answered in the affirmative if, amongst other ways, it was concluded that there was an approval, adoption, promotion or some other form of ratification of the content of the hyperlinked material’
  3. Mr Elliott relies on the Visscher case submitting that the court can, if the circumstances of the case permit, find that the hyperlink equates with publication of the judgment. Mr Dean prefers the analysis in Crookes which he submits is more clearly reasoned and was not bound by any domestic authority.
  4. Whilst acknowledging both of these cases have to be viewed in the context of the proceedings they were concerned with, namely defamation, and, in any event, are not binding on this court I prefer the approach taken in Crookes in that making reference to the existence of something by hyperlink, without more, is not publication of that content. As Abella J observed the hyperlink communicates something exists but a further act is required before access is gained to it. In Visscher the factual position was different in that the website contained an article on the website as well as the hyperlink (indicating some adoption or promotion of the content of the hyperlinked material) and there was previous Australian authority that reached an analogous conclusion. That previous Australian authority cited an English Court of Appeal decision (Hird v Wood (1894) 38 Sol J 234) which was said in Visscher to be an example of a person approving, adopting or promoting a defamatory statement of another and thereby accepting responsibility for it. Mr Dean rightly referred the court to this decision but it does not assist in the situation this court is dealing with, as the context was limited to what facts could be left to a jury in a defamation action. I accept it could be said that the publication of the judgment citation together with the hyperlink is sufficient but, in my judgment, that does not equate with publishing the full judgment in connection with any identifying information relating to the children. It comes very close, but in the circumstances where this court is dealing with in proceedings involving contempt the position needs to be unambiguous.
  5. In the future when considering orders such as those made in this case it may be sensible for the court to actively consider whether there should be an express prohibition of publication of hyperlinks.

 

 

Allegation 1 – on 27/6/18 Ms Root published a link to the judgment of Mrs Justice Theis from 15.3.18

  1. This is based on the screenshot of a Facebook page with Ms Root’s name on it, with her photo (which is one of the profile pictures) on a page which contains other material featuring Ms Root (such as a video posted on 6 December 2017).
  2. Even if the court accepts this is Ms Root’s Facebook page the issue in relation to this allegation is does the posting of the hyperlink amount to a breach of the restriction in the injunction order and the RRO to ‘publish’ the judgment in conjunction with material that names X or Y (which the Facebook page does).
  3. Mr Elliott submits this is sufficient, when taken with everything else, for the court to conclude, if the court is satisfied Ms Root put the hyperlink there, she was publishing the judgment in circumstances where there was material identifying the children. That is how it is set out in the committal application why that amounted to a breach; in paragraph 1 (c) he nails his colours to the mast of the second part of paragraph 16 of the RRO. In his written and oral submissions, he sought to submit that Ms Root can’t have it both ways in that if it did not amount to publication, it was caught by the first part of paragraph 16 of the RRO as being ‘any information or details’ in relation to the hearing on 15.3.18.
  4. Mr Dean submits that the requirements of rule 37.3 make it clear there is a mandatory requirement on the applicant in committal applications to set out separately each alleged act of contempt. It is not appropriate or fair for the applicant to put the case in a way that is not set out in the application. Mr Elliott prays in aid the guidance given by Lord Woolf MR in Nicholls that the court should consider what prejudice there is to Ms Root when the position had been made clear in the skeleton argument.
  5. I am satisfied this breach is not proved to the required standard, for the following reasons:
    (1) It is clear the applicant’s case is founded on the hyperlink being a breach of the prohibition to publish, in both the injunction order and RRO. It says in terms under the reasons for this amounting to a breach Ms Root was ‘expressly forbidden from publishing this judgment’ (para 1A) and similar in para 1C. There is no mention or reference in the relevant part of the application to being prohibited from ‘publishing…any information or details’ and Mr Elliott did not apply to amend his grounds.

(2) Whilst there may be an argument that publishing a hyperlink does equate to publishing the judgment that has not been decided before in this jurisdiction. I consider there is some force to the argument (as accepted by the Supreme Court of Canada in Crookes) that a hyperlink is a reference to the existence and/or location of the content, rather than publication of that content. To get to the content, a further step needs to be taken, namely, to click on the link. It is arguable that without clicking on the link there is no publication of it.

(3) I agree with Mr Dean, that if there are competing arguments in an, as yet, undecided area of the law Ms Root should be given the benefit of that uncertainty.

 

As there is doubt, in a committal hearing the benefit of the doubt goes to the person who is alleged to be in contempt, so Ms Root was not in breach of the order prohibiting ‘publication’ of the judgments in connecting to the family.

 

As Theis J says, the orders will need to be drafted with precision if it is intended that someone cannot describe their case and link to a published judgment.

 

The case also sets out the detailed history and sentencing remarks.

https://www.bailii.org/ew/cases/EWHC/Fam/2019/669.html

 

Hounds of justice

 

 

 

I was momentarily tempted to headline this piece

 

Qui odoratus Isacus, de qua n eam

But then I remembered that I didn't do Latin at school, so I've no way of checking whether 
Google translate is right when it claims that this is the Latin for "He who smelt it, dealt it". And I knew the comments would be full of corrections to it.


This is a curious little case, involving a flawed ABE interview.  Not that unusual, it is more startling to find a judgment which commends the ABE for good practice than castigates it for bad.

This one though involves both anatomically correct dolls being used by the intermediary (The 1980s faxed and said "hi") and a dog being brought in. 

Yes, a dog. 

A real one. 

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B36.html

Re J and K (Flawed ABE interview) 2019

 I don't think His Honour Judge Hayes QC was too enamoured with this process. 


  1. As to the presence of B the dog in the interview room, I have never before seen a dog present during an ABE interview. There was no good reason to have a dog in the room and I find that it was misguided to have the dog present.  What took place during the video (summarised below) amply demonstrates why I say this.
  2. The purpose of the video was to speak to and elicit a free narrative from J.  And yet there were frequent times during the video when the dog took centre stage and attention / comments were directed to the dog rather than J. At one point, the dog took up a position on one of the chairs. The chair was there for child J, not the dog.
  3. On more than one occasion, the dog licked J on the face and on her hand.  J was distracted by this.  The adults were enamoured by it.  I was left asking myself why it was happening at all during an ABE interview of a young child


At one stage, after a vitally important (and pretty leading)question had been asked, the whole interview then forgets itself because of a certain doggy odour 

J Because he said, “Don’t ever tell anybody and we’ll do it, er, when mummy isn’t here and when mummy is here we’ll cover them up”
Officer Okay.  Do you smell a little smell in the room?  Do you think B has [done] a little trump?
J Yeah.
Intermediary Has she?
Officer I’m not sure.  I think so.
Intermediary Oh no.
Officer That’s okay.  She’s okay. Can you smell it or it is just me?
Intermediary I can’t smell anything.
J I can.
Intermediary Can you? Oh no, it’s probably going to reach me in a minute.
Officer That’s okay.
Intermediary Sometimes she gets a bit of wind.
Officer That’s okay.  That’s what animals do isn’t it?
J And we do.
Intermediary Yes, and we do.


So it was that what J said at the start of the above exchange about what her father had said to her (clearly a worrying account) was not developed any further.  The smell made by the dog distracted the attention of the officer, the intermediary and the child. The conversation turned from what J said to a discussion about the dog breaking wind.  It is simply unacceptable that that this happened.

 

[65]  As I have said, the observations that I have made do not, in the circumstances of this case, have any bearing on my findings of fact.  But the errors that were made could – in other circumstances – have had serious evidential consequences. A poorly conducted ABE interview has some parallels with a police officer (or some other person) trampling over a potential crime scene rather than adhering to essential forensic guidelines.

 

[66]  The video interview of J on 22 November 2016 regrettably strayed from its objective of “achieving best evidence” from the child.  It would be helpful for my observations to be fed back to the officer and the intermediary and, subject to considering any representations to the contrary by the parties, I will give permission for them to see this Judgment (or part thereof) for that purpose.  My observations are intended to be constructive criticism .  I hope that they are read in that spirit and that those involved will reflect on what went wrong and avoid making the same mistakes in the future.



Maybe I should have called it Never Work with Children AND animals...

That, frankly, hit me like a dart

 

This is an ancillary relief case, in which Holman J was dealing with a disputed application for enforcement of financial orders made by Baker J. The case had run up costs of around £2.2 million.  At the hearing, the wife had given her evidence, and the husband had completed almost all of his evidence in chief.

 

And then, something happened that led Holman J to say the title of this piece.

This morning, the husband was in the course of giving his oral evidence-in-chief. I happened to comment to him how regrettable it was that these parties had not been able to resolve their differences by agreement long ago, before so much costs were incurred, which neither of them can apparently afford to pay. The husband then observed that it was I who had conducted the FDR. That, frankly, hit me like a dart. 

 

Holman J stopped the evidence, to take stock

 

I do not know what the husband might have been planning on going on to say with regard to the course or content of the FDR, for, of course, I immediately stopped him from saying any more. I broke off his evidence altogether whilst I and Mr Chandler, in particular, could take stock of the situation.

 

It was nobody’s fault that this had not been spotted.  The wife was in person, and husband’s counsel had been recently engaged and had huge amounts to deal with. Holman J had not himself spotted it, explaining of course that he had dealt with a huge number of cases in the intervening period.

 

  1. If any of the counsel who had appeared at the FDR were still engaged and appearing at this hearing, I have no doubt that any one or more of them would have flagged up at once that I had conducted the FDR and, accordingly, that I could not conduct this hearing. It also goes without saying that if I, personally, had had the least recollection or appreciation before this case began yesterday morning or, indeed, in its early stages yesterday morning, that I had conducted the FDR, I would have said unhesitatingly and without more ado that I was disqualified from conducting the present hearing and that another judge would have to be identified.
  2. I do not accept any personal responsibility for what has happened. So far as I am aware, there is nothing in any of the highly selective documents that have been prepared for the present hearing which identifies me as having conducted the FDR. As I commented earlier today, in the 18 months or so between the FDR on 15 December 2017 and late July 2019, I have probably conducted hearings in at least 500 cases, some of them long, some of them very short, and not including in that figure the very large number of cases that I consider and adjudicate upon on paper, in particular when sitting in the Administrative Court. So it did not impact upon me for one moment when I embarked upon this hearing that I had conducted the FDR. Frankly, it did not occur to me to enquire whether I had done so, because one is so accustomed to the lawyers for the parties, or the court administration, ensuring, in advance, that cases are not listed before the judge who conducted the FDR.

 

Having taken stock, both the husband and wife were prepared for Holman J, who was nearly half-way through the case to continue and see it through, despite the usual provisions that a Judge who dealt with the FDR plays no part in the later case.

 

(For those who don’t do money cases, an FDR is a Financial Dispute Resolution hearing, and the Judge at that hearing basically gives a steer as to what he or she would do, being able to speak freely because they would not be the Judge at a contested hearing. Sometimes that steer leads to one side or another being willing to compromise and the case settle. Sometimes, as here, it doesn’t and the case still goes on to a fight.   It is a bit like a Settlement Conference. So imagine a Settlement Conference, not working, and then a Care Order is made by another Judge and then later there’s an application for a Recovery Order that accidentally goes before the Judge who does the settlement conference, but it is only mid way through the evidence that this gets discovered )

 

However, Holman J looked carefully at the rules and found that rather than it being the Judge “should” not be involved in any further decisions, the wording was ‘must not’ and that he could not find a basis for allowing it, even with consent, although there was skilful argument that the overriding objective in the Family Procedure Rules might allow such a thing where both sides consented.

 

  1. I have, in the limited time available to me, given very careful and anxious consideration to whether, building upon what Lawrence Collins LJ had said at paragraph 35 and 36 and Goldring LJ had said at paragraph 61, I might hold that the requirement of the rule can be waived by the parties. Whilst in some circumstances at some future date it may be open to the Court of Appeal to develop the jurisprudence in that way, it currently seems to me that it is not open to me to do so. Those observations in those paragraphs are entirely obiter. As I have said, it seems to me that the policy as described by Thorpe LJ in paragraph 26 and his very clear statements in the last two sentences of paragraph 28 simply preclude waiver.
  2. For those reasons, and as it has now emerged (and has been checked and verified) that I did hear the FDR between these two parties on 15 December 2017, I conclude that the mandatory effect of rule 19.7(2) is simply that, as the rule says, I must have no further involvement with this matter at all. Judges have many powers and discretions under rules of court to relax, or even waive altogether, the impact of many rules upon a party or parties. But where a rule says, without discretion, that a judge must not do something, he must not do it. In a sentence, he must obey the law.
  3. For that reason, I propose to bring this hearing now to a complete halt. Anything that I have said during the course of the hearing, including indications that I gave as to the manner in which I intended to deal with some of the applications, are, in my view, complete nullities. This will have to go back to be heard from scratch before another judge on a date just as soon as it can be fixed.

 

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2135.html

 

Shokrollah-Babaee v Shokrollah-Babae [2019] EWHC 2135 (Fam) (25 July 2019)