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Author Archives: suesspiciousminds

Child refugees – section 20? Care proceedings? Either?

This is a case in which Mr Justice Peter Jackson was asked to decide whether to make a Care Order for two children aged 9 and 10 who had come to England as refugees from Afghanistan due to actions of the Taliban in their own country.
The Judge was also asked to give indications as to whether care proceedings or s20 were the right approach for other children and other Local Authorities.

Re J (child refugees) 2017
http://www.bailii.org/ew/cases/EWFC/HCJ/2017/44.html

On the critical issue of threshold (which has given me disquiet for a while, because the Act requires that the significant harm is as a result of the parents behaviour not being what it would be REASONABLE to expect a parent to provide, and if you are a parent in a war-torn country such as Syria and you can get your child to a place of safety can that really be said to be unreasonable?) the Judge decided this :-

15.The question first arises as to whether such children can properly be accommodated under section 20 of the Children Act, or whether the Local Authority is under an obligation to bring care proceedings. In this case, the threshold criteria have undoubtedly been crossed because the children have certainly faced the risk of significant harm and have, indeed, suffered significant harm at the time the proceedings were brought as a result of being sent across the world without any parental protection. Whether the children are to be described as abandoned or just sent out into the world makes no difference. It also seems to me that the fact that the children may have been sent out of Afghanistan for their own benefit does not prevent the threshold for care proceedings being met. That was a decision that was taken either by the parents or the parents were not in a position to exercise parental responsibility so that it was taken by others. The fact that the children might have suffered worse harm by staying does not mean they have not suffered significant harm and risked suffering significant harm by going.

(For my own part, I think that rather weakens the concept of a parent acting unreasonably from the statutory test, but we now have our pragmatic answer that sending a child overseas to become a child refugee is, in and of itself, sufficient to meet threshold. I can understand, however, why a Court would want to find threshold proven in this sort of situation, and why the formulation above was arrived at)

On the issue of whether or not care proceedings should always be preferred to s20 or vice versa, the Judge decided that it was a case specific decision rather than there being a universal preference. He helpfully outlined some of the factors to take into account when a Local Authority was making such a decision

18.Turning finally to the issue that faces many Local Authorities who are taking up responsibility for unaccompanied children, the submission made by Mr Jones is that the question of whether it is appropriate to apply for a care order will depend upon the facts of the individual case. I agree with that. This relatively short application is not the occasion to define when applications should be made to the court or not, to define the limits of accommodation under section 20, or to try to identify where the dividing line might fall. This is a case in which the Local Authority’s decision to take proceedings for the protection of children as young as ten and nine with no relatives whatever in this country so far as it was obviously correct. There may be many other cases, however, in which much older children fall into the hands of Local Authorities where accommodation under section 20 would be perfectly appropriate, because the arrangements in place for their support are relatively straightforward and need no oversight from the court or input from a litigation friend or children’s guardian.

19.I will, however, take advantage of the thought that has gone into the presentation of this case by referring to a schedule of the advantages and disadvantages of section 20 accommodation and care orders in so far as they might apply in cases of this sort. I do so in case, firstly, to carry forward the work and in case it should be useful to others.

20.Starting with accommodation under section 20, I the benefits that flow are: firstly, the provision of accommodation; secondly, the possibility of a child in need plan; thirdly, the availability of support under the leaving care legislation when the child reaches maturity; and fourthly the availability of looked after child reviews and an independent reviewing officer.

21.Turning then to the benefits that may arise under a care order, they are these: firstly, as above, the provision of accommodation; secondly, by distinction, support under a formal care plan that has been approved or at least considered by a children’s guardian and by a court; thirdly, again, the children would be entitled to leaving care legislation and support; fourthly, they would be entitled again to looked after reviews; fifthly, the children would have priority in relation to the obtaining of specialist therapy or medical care. They would undoubtedly be a first call on the Local Authority’s resources if subject to a care order and, depending upon the education legislation, quality for priority in the allegation of educational resources. Next, the Local Authority will have parental responsibility for the children, allowing it to make and carry through decisions about care, medical treatment, education and so forth. Next, if the children were to leave their placement, the Local Authority would be under a duty to find them with whatever measures were to hand. Next, the Local Authority holding a care order would be obliged to take an active role in relation to the asylum applications of such children, and finally, a care order would be most likely to provide the children with a plan for a permanent and established family life. Considering the benefits, it will easily be seen that the advantages of a care order may particularly apply to younger children or to children with unusual or particular needs.

22.The disadvantages of each option are to some degree the other sides of the coin of advantage, firstly as to section 20: (1) no one has parental responsibility or is able to exercise it; (2) there is a risk that the children will fall down the queue for such services as may be available; (3) although section 20 can be used in cases where children have been abandoned, that is not its core function; (4) living under section 20 throughout one’s middle and later childhood may lead to a lack of purpose in planning for the future and looser responsibilities should the children, for example, abscond. Without a care order or the presence of just section 20 accommodation, there may be more uncertainties than need be.

23.As against that, the disadvantages of a care order are few. It may potentially stigmatise the children to be accompanied by such an apparatus, and secondly, as a matter of principle it is a more interventionalist order that accordingly needs to be justified.

24.That is the balance sheet collected by Mr Jones, to whom I am grateful.

25.It will be apparent that cases of this kind, however, cannot be read alongside the very different class of case where Local Authorities harbour children under section 20 where they have, in effect, removed them from their parents for child protection purposes and where the parents are at hand and, in many cases, wanting the children back. In those cases, the instances of judicial and other guidance in favour of bringing care proceedings without delay are numerous, but they do not, I think, apply in circumstances of this kind. It is neither in the interests of individual children, nor, I think, in the wider public interest for Local Authorities to feel that they have to bring care proceedings to no good purpose, as would be the case if every unaccompanied asylum-seeking child was to be brought within care proceedings.

The last sentence is very significant, so I’ll repeat it

It is neither in the interests of individual children, nor, I think, in the wider public interest for Local Authorities to feel that they have to bring care proceedings to no good purpose, as would be the case if every unaccompanied asylum-seeking child was to be brought within care proceedings.

So a Local Authority, and the IRO, should be weighing up with such children which of the two options is the better option for the child, but the law is not that section 20 is always wrong or always right. There needs to be individual analysis of what’s best for that particular child.

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Ostriching and adverse inferences

The law in relation to decisions not to engage with assessments and the consequences that may flow from this

I ended up scratching my head about this issue about a month ago – where a parent doesn’t engage with assessments and doesn’t provide samples for drug testing, what can the Court do about it? It seemed a very obvious answer that the Court would be invited to draw adverse inferences from the failure to cooperate, but I couldn’t easily lay my hands on the authority for that proposition. It turned out to be more elusive than I had imagined, so having done the research and written it up, it was rather vexing to receive an email minutes later to say that the parent was now willing to engage rendering all my hard work pointless.

So, waste not want not. At the very least it might save someone else having to do all the legwork.

1. The starting point is that under the Children Act 1989 and civil proceedings generally, the burden of proof in any allegation falls upon the party making it, and the standard of proof is the balance of probability. Thus, in care proceedings, it will be the task of the Applicant to establish that it is more likely than not that the parent’s behaviour, history or failings amount to behaviour that it is not reasonable to expect a parent to provide and that it amounted to either causing the child significant harm or establishes a likelihood of significant harm in the future.

2. In a case where the allegation is, say, mental health instability or substance misuse, it is not a burden on the parent to demonstrate that their mental health is now fine, or that they are no longer using heroin. (This misapprehension works its way quite regularly into language used outside Court – “This mother needs to show me that she’s changed” and so on, but it is not a legal burden on the mother at all.)

3. If the Local Authority satisfy the Court that an assessment under Part 25 is necessary to establish the history and prognosis of mother’s mental health, or the current status of abstinence from or usage of substances in order to make confident predictions about the future, what happens where a parent declines to participate?

4. The Court of Appeal in S (Children) [2006] EWCA Civ 981 http://www.familylawweek.co.uk/site.aspx?i=ed1435 addressed particularly where the limits are in the family Court of compelling parents to produce evidence.

5. 23. I move, therefore, from the clear need for the court to receive the disputed evidence to the manner by which it should do so. I have no doubt that the submission is correctly made on behalf of the father, and today correctly conceded on behalf of the local authority, that the court cannot compel a party, against his will, to procure the evidence of a person not already a witness in proceedings. A party can be permitted to file evidence which he wishes to file; and, in civil proceedings, he can be compelled to file evidence from himself. He cannot, however, be compelled to file evidence to be collected by him from a third party; for he has no power to compel the third party to co-operate in enabling him to comply with the order against him. So, yes, the father is right: he should not have been subject to purported compulsion to file a report by his psychiatrist. The judge seems to have recognised as much when, in judgment, he observed “although it does not seem to me that the father can be forced to, the evidence from [the father’s psychiatrist] can be obtained now.” Notwithstanding his doubts the judge for some reason proceeded in his actual order to direct the father to file a report from the psychiatrist.

6. A parent can be compelled to provide a statement from themselves within care proceedings (there is no “right to silence” as a result of s98(2) and failure to produce a statement as directed could be treated as contempt and breach of an order and punishable by committal Re LR (Children ) 2013 http://www.familylawweek.co.uk/site.aspx?i=ed117035 )

7. There is, however, a right to silence, when the application is for committal, and the parent must be informed by the Judge that he or she does not HAVE to go into the witness box and is entitled to decline the option of giving evidence. The Court of Appeal confirmed in Khawaja v Popat & Anor [2016] EWCA Civ 362 that the Court can draw adverse inferences from the parents decision to exercise that right to silence (this is NOT the case in criminal law, but is the case in civil law)

http://www.bailii.org/ew/cases/EWCA/Civ/2016/362.html

27.As the proceedings led potentially to a criminal penalty, the appellant could not be compelled to give evidence. He could have remained completely silent and could have addressed submissions as to the strength or weakness of the evidence adduced by the respondent. However, he took a half-way course. He provided two affidavits in explanation, but he declined (as was his right) to have that evidence put to the test in cross-examination.

28. It might have been unwise for the judge to say to the appellant so bluntly that “…the reality is that if you don’t go in the witness-box it is likely that I will infer that you won’t go in the witness-box because you know you are lying…”. However, it seems to me that his overall remarks to the appellant, at the end of Mr Roseman’s opening of the case for the respondents, were correctly in accord with the law and practice as reflected in paragraph 81.28.4 of Civil Procedure 2015 Vol. 1 (p.2460) as follows:

“A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent (Comet Products UK Ltd. v Hawkex Plastics Ltd. [1971] 2 QB 67, CA). It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence (Interplayer Ltd. v Thorogood [2014] EWCA Civ 1511, CA…)…”
29.It is entirely clear from the transcript of the judge’s exchanges with Mr Roseman that he recognised fully the burden of proof that was upon the respondents and the standard of proof required to discharge that burden. The judge pressed Mr Roseman closely upon the evidence adduced in support of the application. I do not accept Mr Hendron’s submission that the judge concluded that the appellant’s silence on its own proved his guilt (contrary to the principles emerging from R v Cowan [1996] 1 Cr App R 1 at 7). The judge was conspicuously aware of the burden resting upon the respondents throughout. In my judgment, it seems clear that the judge recognised that the respondents’ evidence produced a case for the appellant to answer; he found the explanations given in the appellant’s affidavit evidence unsatisfactory and in the absence of oral evidence he drew the inference open to him that the appellant’s explanations were untrue.

30.It seems to me further that the law and practice as briefly stated in Civil Procedure (Loc. Cit. supra), and applied by the judge, is entirely consistent with the jurisprudence of the European Court of Human Rights, as reflected (for example) by the following passage from the judgment in Murray v UK [1996] ECHR 18731/91 at paragraph 47:

“On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.”

“Wherever the line between these two extremes is to be drawn, it follows from this understanding of “the right to silence” that the question whether the right is absolute must be answered in the negative.”

“It cannot be said therefore that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him. In particular, as the Government have pointed out, established international standards in this area, while providing for the right to silence and the privilege against self-incrimination, are silent on this point.”

“Whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.”

8. If a parent has within their possession and control documents or evidence, this can also be ordered to be produced. But the thrust of the passage in Re S 2006 above is that a parent cannot be compelled to participate in a psychiatric assessment if they do not consent. The Court has no power to compel them to do so.

9. However, the Court of Appeal provided a recommendation for such a scenario :-


24. It must be remembered, however, that the request for an order that the father should file a report from the psychiatrist was only the fall-back application made on behalf of the local authority. Their primary application was for an order for the disclosure of the records held by the psychiatrist and the linked records held by the father’s GP. Granted the relevance of the father’s psychiatric condition, that application was in my view unanswerable. In the ordinary case, in which the medical records are held by the doctors, the appropriate direction would have been to grant leave to the local authority to issue what in the Division we still have to call subpoenas duces tecum and ad testificandum, returnable either at the outset of the substantive fact-finding hearing or, surely more conveniently, at a prior review hearing, at which the doctor or doctors can produce the records to the court and answer such questions as will enable the parties both to make sense of them and, more broadly, to collect from them the focussed information about the parent’s likely condition at the time of the event. In this case, however, we are given to understand that the medical records are already in the possession of the father; and so in my view there is no impediment to a straightforward order for his immediate disclosure of them to all other parties. To that order I would attach permission to the local authority and the guardian, if so minded, to show the records to a psychiatrist of their own choosing; and, having studied the records and perhaps having instructed a psychiatrist to educate them about their significance, the local authority and/or the guardian will be free at the next review hearing to ask for leave to issue a subpoena ad testificandum against the father’s psychiatrist. I have to say that, once the court in care proceedings has decided in principle that such information should be obtained and once the parent has had the benefit of legal advice, this cumbersome method of obtaining it is usually circumvented by his agreeing, as a recital to the order, to procure a report from the psychiatrist upon the matters ruled to be relevant. Perhaps, now that this appeal is reaching its end and now that he can be given further and clearer advice, the father will be amenable to that elementary level of co-operation. But we should not count on it. It follows that I propose that the local authority’s cross-appeal and, insofar as it relates to the direction that the father should file a psychiatric report, the father’s appeal should be allowed; and that the orders which I have indicated should be substituted for the direction made by the judge. In all other respects the father’s appeal should in my view be dismissed.

9. The Court does, therefore, have jurisdiction to compel production of the medical records and can, if a party has made an application under Part 25 for an expert, direct that the expert report on a paperwork basis, considering said records. (And the Court of Appeal express hope that given that scenario, a parent would reflect that a report might be more favourable and balanced and nuanced if the expert has the benefit of speaking to them about these issues and thus change their mind about participation)

10.However, such an option is not available with drug or alcohol testing. If the parent is not consenting to the production of samples, alternate methods of collecting the samples cannot be used.

11. The issue therefore is whether the Court is entitled to draw adverse inferences or conclusions (specifically – does the decision by a parent not to consent to providing a sample amount to evidence that the tests if undertaken would demonstrate something unfavourable to the parents case?)

12. The High Court in RE O (CARE PROCEEDINGS: EVIDENCE)
[2003] EWHC 2011 (Fam) considered the issue of adverse inferences where a parent declined to give evidence at all or refused to answer particular questions

13. As a general rule, and clearly every case will depend in its own
particular facts, where a parent declines to answer questions or, as here, give
evidence, the court ought usually to draw the inference that the allegations are
true.

13. A decision not to consent to provide samples for the purpose of alcohol or drug testing is not strictly a parent declining to give evidence, but rather a parent declining to provide additional evidence which might establish things one way or another.

14. It might be analogous to the refusal to submit to DNA testing in paternity cases. The Court in those cases are entitled to draw ‘such inferences, if any, from that fact as appear proper in the circumstances’ (s23(1) Family Law Reform Act 1969) – the Court of Appeal ruled in Re G (Parentage : Blood Sample) 1997 1 FLR 360 that where a putative father refused to submit to blood tests then a forensic inference should be drawn and since the forensic process was advanced by the truth being told in court, those who obstruct that process will have an adverse inference drawn against them.

15. Whilst this is a helpful illustration, as the statute in question specifically provides in s23(1) the Court’s power to draw inferences, and the Children Act 1989 does not, it does not provide a definitive answer.

16. The Supreme Court, dealing with an ancillary relief case, considered the issue more broadly, in Prest v Petrodel 2013 https://www.supremecourt.uk/cases/docs/uksc-2013-0004-judgment.pdf

44. In British Railways Board v Herrington [1972] AC 877, 930-931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said:
“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”

The courts have tended to recoil from some of the fiercer parts of this statement, which appear to convert open-ended speculation into findings of fact. There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it. For my part I would adopt, with a modification which I shall come to, the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283, 300:

In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”
Cf. Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340

17. It is suggested, therefore, that following the guidance in Prest v Petrodel (The ‘modification which I shall come to’ being very specific to ancillary relief cases and we can thus ignore it) , where the Local Authority have provided evidence which provides a reasonable basis for coming to a conclusion about substance misuse or alcohol misuse, a parent who chooses to be silent and not provide evidence by way of scientific testing (unless credibly explained) may have the Court determine that their silence turns a prima facie case into a strong or overwhelming one.

18. A Local Authority could not simply ask for a drug test as a fishing expedition and ask the Court to draw adverse inferences if a parent refuses to give one – they need to establish an evidential basis for suspicion that a test is necessary. (Previous history, allegation by a credible witness, evidence of the parent acting in a way which is consistent with drug misuse or so on)

(Why Ostriching? It’s lawyer slang for when a client is burying their head in the sand and pretending that it will all just go away if they ignore it. Actually, ostriches don’t do this – though they do dig holes in the sand to bury their eggs, and occasionally put their heads in those holes to turn the eggs hence the myth.)

Octavia, looking for Hartley and Topov

And all through my coffee break time

This is trivial. And that’s coming from someone who wrote a whole piece this week just so he could use a play on words about “kayak”. So yes, I know it is trivial. I do have a piece planned on the President’s Blood on our hands case, but that needs time to percolate, so to speak.

This is about the HMCS new security policy, on a national level, that anyone bringing liquid into Court has to take a sip of it, to demonstrate to security staff that it isn’t acid or some sort of hazardous liquid. That’s been going on for a while with bottled liquid, but it is now being extended.

I’m not sure why the product placement for Costa

(I didn’t write this and I already know that the author has misused ‘effect’)

Obviously, there are times when tempers run high in Courts, and of course sometimes people are attending Court where there’s a history of domestic violence and such, and one would never ever want a cup of acid to be thrown in such circumstances. And of course, one can only imagine the Daily Mail take if such a thing were to happen in a Court building – handwringing and demanding that heads must roll for not having anticipated it.

So I see where it comes from, particularly in light of the recent lurid headlines about acid attacks (and our own Home Secretary having not the slightest clue about what the actual sentencing provisions are for such offences are whilst playing to the “something must be done” gallery)

On the other hand, a minute application of common sense says that the reason why I and my colleagues and opponents don’t go about disguising acid as coffee and throwing it around at Court is NOT for fear of it being confiscated by Security guards (because hitherto we’d have got away with it) but because we’re not maniacs.

As an individual carrying a cup of coffee, the new scheme just causes a mild inconvenience – just taking a sip a little earlier than you anticipated. Not the end of the world.

This, however, does effectively put paid to the practice of coffee runs – where one person kindly goes to fetch coffees for a few other people. (Whilst the author of the email, who is not me, thinks that only counsel ever do this, of course others do it too. Doing a coffee-run, whilst you wait for the hearing to start, or wait for the windbags who went in first to finish, or for facts and reasons, is actually one of the few nice and civilised parts of attending Court. It seems a shame to lose it. )

If you have fetched four coffees and have to take a sip of each to demonstrate their safety, that’s going to rule out people like me who are happy to buy and fetch coffees for others but can’t drink them (because coffee is disgusting), or indeed anyone who prefers to drink their coffee untouched by the lips of others. It also avoids the prospect of someone saying “Does anyone fancy a coffee?” and you saying “ooh, me please” and then changing your mind as you realise that it is Malcolm Halitosis or Tina Moustache offering to fetch them…

(I would also point out that as a way of preventing “Alcohol” being brought in clandestinely, that asking the person bringing it in to sip it contains something of an exploitable loophole. Rather akin to asking the suspected heroin smuggler at an airport to go into a cubicle and do their own cavity searches)

Also, I’m not convinced that cardboard cups are a dream vehicle for transporting corrosive acid.

Cardboard goods are extremely sensitive to contamination. They must in particular be stowed away from colorants, acids, chemicals and fats/oils and be protected from dust and dirt.

How about polystyrene cups?

In the lab,polystyrene is melted and damaged by nearly every solvent.

http://scs.illinois.edu/hpl/documents/MaterialsCompatability.pdf

I’m going to go out on a limb and say that anyone trying to transport corrosive liquid strong enough to injure a person is going to indeed injure a person with it if they try to do so in a coffee cup. That person will be themselves.

Glass bottles, and plastic bottles, possibly. And most Courts have been doing that at security for a long time, and it makes sense. Nobody is really going to object to that.

So if the coffee-cup sip test isn’t going to prevent alcohol (because the person bringing it is the person sipping it, and they will just stay silent) or corrosive liquids (because you’d detect that by the fact that the person’s shoes will be disintegrating) that only really leaves flammable liquids.

I think a sniff test would probably do the job there.

In the meantime, my loophole suggestion :- use a pen to write a message to the recipient under the lid, and assert your article 8 right to respect for private correspondence. (Suesspicious Mind note – this will not actually work, and will almost certainly make you late for Court whilst you argue Human Rights law with security guards, who will do their best to accidentally bang your shins with the metal detector wand and break the zips on your bag/suitcase every time they see you thereafter. So don’t do that)

“Oh my God, he’s got a pumpkin macchiato! Save yourselves! Get to cover” *(Not a coffee drinker, so is that even a thing?)

Benjamin Franklin, what do you want to tell us about whether the minute risk to our safety is worth sacrificing our freedoms?

If anyone wants to tell me in the comments section what the daftest thing they know has been confiscated by Court security, I’d love to hear it. I’ve been told this morning of peanut confiscation in case of nut allergy attack, and bike lights in case… you shine at the Judge??? Has anyone been asked to squirt perfume, or to apply spare lippy to make sure that’s really what it is?

You can’t have your kayak and eat it

(And yes, I did decide to write this one up because I couldn’t resist that joke)

Green v Adams 2017

This was a hearing following Mostyn J’s decision on mother’s application for financial provision for her child under Schedule 1 of the Children Act 1989. Mostyn J had made an order for such provision. The father appealed, unsuccessfully.

Subsequently, the father made an application to Court, aided by Dr Pelling (a name familiar to a lot of family practitioners he has actually had a lot of success as a MacKenzie Friend, including this somewhat pyrrhic victory but victory nonetheless of establishing that an assistant tipstaff assaulted him http://www.bailii.org/ew/cases/EWHC/QB/2004/492.html . I always enjoy a case with Dr Pelling in it – he really knows his way around the more obscure corridors of the law and when I refreshed my mind about the 57 cases that Bailli name-checks him in, he actually succeeds and is complimented for his manner and ability quite a lot of the time, and similarly, Mostyn J enjoys a good legal conundrum, so this had potential to be a fascinating judgment. Sadly, it disappoints, save for the kayak)

The father made an application that the Judge had in effect added things into the ‘pot’ that mother had not explicitly claimed for, that is the costs of a trip to China and the cost of a kayak. And that further, the figures that the Judge had calculated for these were too much, and that the lump sum father was ordered to pay was therefore too much.

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/52.html

These two further points were, first, that the true cost of the trip to China referred to in my judgment of paragraph 1(iii) was £2,300 (which he had established by an email from the school) and, second, that the true cost of a kayak was no more than £500 (which he had established by Internet research). Therefore, he argued that in respect of these two items my assessment had been overstated by £350 and £300 respectively, a total of £650.

16.Accordingly, Dr Pelling argued that my lump sum of £20,600 was overstated by a total of £2,450 (i.e. £1,800 plus £650).

The Judge reminded himself that he did have the power to make awards for more than a person had actually sought.

However, I agree with Dr Pelling that if I was minded to go outside the field of battle as defined by the parties then the father should certainly have been given notice of my intention to do so. In any event, after having examined my memory, and even allowing for the considerable passage of time, I am satisfied that I did not intend to award the mother the full amounts and that I made a minor mistake. It is right that my judgment should be amended to reflect what I intended. Therefore paragraphs 1(ii) and (v) will be corrected to provide that the mother’s claim was for half the sums mentioned, namely £1,500 and £300.

19.However, on 13 July 2017, after the hearing and at a time when this judgment was largely completed, I received an email from Mr Holden which stated that the parties’ son had changed his mind about going on the educational trip to Israel this summer. Therefore, the mother would no longer pursue this head of claim and will repay the sum awarded.

20.The position is very different in relation to the claims concerning the China trip and the kayak. Here, the mother gave her best estimate of the historic costs. It was open to the father to challenge those figures and to adduce competing evidence. He did not do so and now is arguing that the court made its award on a mistaken basis. In my decision of DB v DLJ [2016] EWHC 324 (Fam) at paragraph 57 I stated at (ii) and (iii) that the claimant (that is to say the father in this case) must show that the true facts would have led the court to have made a materially different order from the one it in fact made, and that the absence of the true facts must not have been his fault. In my judgment, a correction in respect of these two items of £650 does not satisfy the criterion of a material difference and in any event I am not satisfied that the true facts could not have been placed before me by the father. I do not allow these corrections.

21.My conclusion is that the mother must repay to the father £3,300 (i.e. the full amount of the Israel trip – £3,000, and half the cost of the computer – £300) against which I offset her award of costs made above of £857, leaving the sum of £2,443 to be repaid.

There was also an application that the judgment should be anonymised, but we can all deduce what the conclusion of that was from the name of the case.

22.I now turn to the father’s application for further anonymisation of the main judgment. He says that the extent of anonymity given by me to the properties in paragraph 14 of my judgment is not enough, and that fictitious numbers and initials should be given. He says that there is a risk of jigsaw identification and a real danger of the people who live at those addresses been targeted by criminals. I am slightly surprised that this submission should be made by the father through Dr Pelling having regard to their trenchant resistance to any form of anonymisation in the proceedings in the Upper Tribunal heard by Mr Justice Charles and reported publicly as Adams v SSWP and Green [2017] UKUT 0009 (AAC). However, I am not satisfied that any further anonymisation is necessary, and this request is rejected.

(Seriously, I really did select this case on the basis of the kayak pun. I’m here all week, try the chicken)

Will you sign my petition ?

Don’t panic, I am not asking you to sign a petition. Although if I was, it would be for someone to make me some artwork of Sweep as a Transformer. Fighting MeGrimlock. And He-Man. That would be epic. Sweep would kick He-Man to bits. Despite not having legs. That’s how rock Sweep is.

Snap back to reality, oh there goes gravity….

This one covers something that comes up from time to time. Can a parent put a petition about their case online (notably on Change.org) and what can they / can’t they say in it?

Mr Justice MacDonald explains it all

“Ferguson!” (google it, or ask someone older)

Southend Borough Council v CO 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1949.html

10.The mother’s petition on the Change.org website is entitled “Please help stop the adoption of my 2 beautiful children”. It is directed to the United Kingdom Parliament and to the Prime Minister. In its original form, the explanatory narrative for the petition set out details of the final hearing before the District Judge, details of the orders granted by the court, the names, ages and disabilities of the children. The explanatory narrative also alleged that the social worker “lied under oath” and that the case was heard “without evidence” of emotional harm or neglect. Whilst, as I have already noted, there is no indication in the papers before me that the decision of the District Judge has been the subject of an appeal, but that certain information provided by the mother since the hearing suggests an appeal is at least contemplated, the explanatory narrative on the petition states that the mother is “applying to appeal to a higher court” to “put evidence before a judge to prove the social worker has lied under oath”. In its original form, the petition also exhibited a photograph of N and T, T being dressed in her school uniform.

If you’re not familiar with Change.org, it is one of those government initiatives like the Cones Hotline, aimed at empowering the public. In effect, anyone can set up a petition online at Change.org asking for others to sign it. If you get enough signatures (100,000 I believe), Parliament will debate your question.

(My prior experience with Change.org, other than it hosting petitions on behalf of parents who have lost their children in Court hearings, was Dave Gorman’s piece on it. http://voxpoliticalonline.com/2014/10/09/dave-gorman-on-government-e-petitions-hilarious-and-perceptive/ )

The Council issued Court proceedings, and the parents agreed at an interim stage to take down the portions of the petitions that would identify the children (their names, surnames, the photographs) but wanted the petition itself to stay up.

The Council considered that the petition, given that the signatories were all members of the extended family, still identified the family and hence the children, and sought removal of it in its entireity. Some of the responders also used the children’s names in comments when adding their signatures.

It is very clear that a parent can’t name the children or put photographs of them on the petition (and if for some reason you doubted that before, MacDonald J makes it very plain in this judgment) but the more difficult area is whether the petition is legitimate once those readily identifying features have been removed.

Here’s what the petition looked like at the start of the final hearing on this issue

11.Following the consent order of 25 May 2017, it took a little time for the parents to comply fully with the terms of that order. On 30 May 2017, the children’s names had been removed from the main page of the petition but the photographs of N and T remained visible and the other details were unaltered. On 8 June 2017, the photographs of N and T had been replaced with a photograph of all four children with their faces partially obscured. Ms Duxbury has confirmed that the parents have now complied fully with the consent order of 25 May 2017 with respect to the pictures, names and ages of the children that had been published on the main page of the petition on the Change.org website. As I have noted, friends and acquaintances of the parents have, on a limited number of occasions, identified the children by their forenames when responding to the petition and those posts remain. The current front page of the Change.org petition, which names the mother, reads as follows:

“In May 2017 family court granted, a full care order and placement order on all 4 of my beautiful children, despite me having solid evidence and this case was heard without evidence of emotional harm, neglect so I am applying to appeal to higher court so I can put evidence before a judge to prove to them i have never neglected my children , nor would i ever put them at risk of any sort of harm (i love my children with all my heart ❤ my focus on life is them) Having my children is my greatest achievement, they are my saviour they switched my focus from the outside to the inside. My children are gifts, they remind me of what's important. please help by signing this petition to reunite my family.<3"

That’s made me all nostalgic for 1337, I haven’t seen a “less than three” for ages and ages. I thought emojis had seen off 1337-speak. Aw, readers, I less than three all of you.

(And she managed to get a heart emoji in, so the less than three at the end is deliberate. Perhaps this mother is an uber haxxor who is keen to bring leet-speak back ?)

However, first, MacDonald J invites the usher to bring out the Naughty Step for the Local Authority and the legal department specifically.

before turning to the substantive issue, I must make some observations about an unfortunate course of conduct by the local authority following the granting of the order by consent on 25 May 2017.

7.Following the hearing on 25 May 2017, the mother contacted the court to alert it to the fact that the local authority was writing to members of her family in a manner that suggested that those family members were bound by the order of 25 May 2017 and prohibited from adding their names and comments to the Change.org petition. Having seen a copy of the letter being circulated by the local authority, I was satisfied that it does indeed read in that way and I notified the local authority through my Clerk that I would require an explanation.

8.The local authority now accepts that the letter it sent to family members does, wrongly, intimate that the order of 25 May 2017 prohibited family members from responding to the petition. Whilst the letter in question was written and sent by the allocated social worker, it would be wrong to criticise her. The social worker, as one would expect, sent the letter to the legal department of the local authority for checking before sending it out and the legal department returned the letter to the social worker un-amended for dissemination. The actions of this local authority legal department in permitting a letter in the terms drafted by the social worker to be sent are strongly to be deprecated. It is a matter of very grave concern that a local authority would seek to pass off an order of this court as something that it is not. There must be no repeat of this.

“All your naughty step are belong to us <3"

The legal framework (if petition is anonymised) boils down to article 10 (right to free expression) versus article 8 (child’s right to privacy)

20.The nature and ambit of the balancing exercise is well established. In considering whether to grant an order with respect to the publication of information the judge must balance the competing rights engaged. In many cases these will be the rights under Art 8 (respect for private and family life) and Art 10 (freedom of expression), although other rights may also have to be placed in the balance when reaching a decision regarding the publication of information. When conducting a balancing exercise between Art 8 and Art 10 (and any other rights engaged), the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) at [17], namely:

i) First, no article has, as such, precedence over the other;

ii) Secondly, where the values under the articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary;

iii) Thirdly, the justifications for interfering with or restricting each right must be taken into account;

iv) Finally, the proportionality test must be applied to each, referred to by Lord Steyn as “the ultimate balancing test”.
21.In applying what Lord Steyn described as the “ultimate balancing test” of proportionality the court must consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve (JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96). This will involve an exacting analysis of the factual case advanced in defence of the measure in question (in this case the removal of the petition) to determine (a) whether the objective of the measure is sufficiently important to justify the limitation of a fundamental right, (b) whether the measure is rationally connected to the objective, (c) whether a less intrusive measure could be used and (d) whether having regard to these matters and to the severity of the consequences a fair balance has been struck between the rights of the individual and the needs of the community (Bank Mellat v HM Treasury (No 2) [2014] 2 AC 700 at [20]).

22.In A Local Authority v W, L, W, T and R (by the Children’s Guardian) [2006] 1 FLR 1 at [53], Sir Mark Potter P summarised the approach to the requisite balancing exercise as follows:

“The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity in that neither article has precedence over or ‘trumps’ the other. The exercise of parallel analysis requires the courts to examine the justification of interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test …”
23.Within the balancing exercise, the child’s best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations (Re J (Reporting Restriction) [2014] 1 FLR 531 at [22]).

24.In undertaking the requisite balancing exercises, the impact of publication on the child must be weighed by the court (Re S (A Child) (Identification: Restrictions on Publication) at [25]). Whilst in many cases it will be demonstrated that publication will have an adverse impact on the child, this will not be the position inevitably. In Clayton v Clayton at [51] Sir Mark Potter P said:

“…given the existence of section 12 of the Administration of Justice Act 1960 which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save in so far as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child’s family or private life.”
25.In the circumstances, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publication will be inevitably harmful to the child (see also R v Robert Jolleys, Ex Parte Press Association [2013] EWCA Crim 1135 at [16] and PGS (Appellant) v News Group Newspapers Ltd (Respondent) [2016] UKSC 26 at [73]).

26.Within this context, the court will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation (Re W (Children)(Identification: Restrictions on Publication) [2006] 1 FLR 1) although there comes a point where evidence is not merely speculative but pure speculation (Birmingham City Council v Riaz and others [2014] EWHC 4247 (Fam)).

MacDonald J also raised (but sensibly ruled that he didn’t need to decide the point) an argument about the Bill of Rights 1689. This seems a tricky point for a later Court to resolve. Brrrr.


32.The right of the subject to petition the Crown for redress for personal grievances was recognised in Magna Carta (although it probably dates to the Anglo-Saxon monarchs of England) and, more explicitly, in an Act of 1406 (Rotuli Paliamentorium 7 & 8 Hen. IV, No 63). The Bill of Rights of 1689 (1 William & Mary, session 2, cap 2) restated the right to petition the Crown, and the protection afforded to that right, in clear and unambiguous terms, stipulating that “…it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.” The Bill of Rights continues to apply in England and Wales. The right of the citizen to petition Parliament or the Government in respect of a personal grievance has thus been, and remains a fundamental constitutional principle (within the context of the right to Petition the European Parliament under Art 44 of the European Charter of Fundamental rights, the right to petition has been described as a fundamental right (see C-261/13 P Schönberger v Parliament)). Within this context, the House of Commons has a comprehensive body of rules that make provision for the submission of public petitions (see HC Standing Orders (Public Business) (2009)).

33.I did not hear detailed submissions on the operation of the Bill of Rights in this case and, specifically, on the effect (if any) of the prohibition it contains on “commitments and prosecutions” with respect to petitions seeking redress. Given the answer produced by the balancing exercise in respect of the ECHR rights engaged in this case, it has not been necessary to consider the point further. However, in a case where the balancing exercise were to come down in favour of injuncting a parent from circulating online a petition aimed at seeking redress from Parliament, it may well be necessary to go on to consider whether the fact that “all commitments and prosecutions for such petitioning are illegal” under the Bill of Rights of 1689 renders such a course unlawful.

(i.e is a petition to Parliament the same as petitioning the King, and prosecution for such petitioning is illegal, or is it only petitions to the King/Queen? In which case, Her Majesty is going to get an increased post-bag. )

In this case, the LA raised several arguments to say that publication of the anonymised petition would cause harm to the children, MacDonald J recognised each of these as having POTENTIAL to cause harm generally, but held that the LA had not produced evidence about the harm to these particular children

44.Turning in detail to the contended for justifications for interfering with the Art 10 rights of the parents relied on by the local authority, Ms Duxbury essentially submits that it is a matter of common sense that if C and W see online that their mother does not accept the outcome of the proceedings nor the validity of the care orders, this will act to upset the two children and undermine the stability and security of their respective foster placements. However, aside from this assumption, the local authority provides no specific evidence to support its contention that the presence of the petition, and its contents will cause emotional harm to C and W by means of causing them upset and potentially de-stabilising their respective foster placements.

45.Whilst it is the case that W’s foster placement has recently broken down, and Ms Duxbury informs the court that the foster carers feel that the precipitating issue was a level of anger and frustration being generated in W resulting from conflicting information being received from his birth family, there is no evidence before the court demonstrating that the breakdown resulted from the petition on the Change.org website (as opposed to, for example, exchanges during contact). Further, the assumption inherent in Ms Duxbury’s submission itself must be interrogated by reference to the nature of the information contained in the petition. W is 15 years old and C is 14 years old. Both children are fully aware that they were the subject of care and placement proceedings, that their parents do not agree with the decision of the court and that the parents wish the boys to be returned to their care. Within this context, the information set out in the petition will not result in the children becoming aware of views held by their parents’ regarding their placements of which they were previously oblivious. Whilst it may be said that, if it is permitted to remain online, the fact of, and the information contained in the petition acts to reinforce in the children’s minds their parents lack of acceptance of their placements following the outcome of proceedings, once again there is no evidence before the court that this is in fact the case.

46.Likewise, the local authority provides no specific evidence to support its contention that the presence of the petition, and its contents will disrupt efforts to find adoptive placements for T and N, or make an already challenging home-finding task more difficult, by discouraging prospective adopters from putting themselves forward. The highest that Ms Duxbury can put that submission is to assert that the online petition “could create anxiety with potential adopters”. Once again, whilst it may be said that it is a common-sense proposition that prospective adopters will be more reluctant to consider children who are the subject of an active online campaign, each case turns on its own facts and the assumption must be interrogated by reference to the evidence before the court. Within this context it is again important to look at the nature of the information contained in the petition. The petition makes clear that the children were the subject of proceedings, that the parents opposed to the plan of adoption and that the parents do not accept, and continue to oppose the outcome of the proceedings. All this is information that will be known to any prospective adopters. Within this context, the information set out in the petition will not result in prospective adopters becoming aware of information they would not otherwise be privy to. Whilst it may be argued that the presence of a petition indicating continued, active opposition by a parent following the conclusion of proceedings may act in more subtle ways on an adopter’s willingness to consider the children, once again this is an assumption rather than an evidenced fact. Indeed, information communicated to the court by the mother following the hearing tends to suggest that the local authority has now located adopters for T notwithstanding the existence of the online petition.

47.Finally, the local authority offers no evidence at all to support the alleged risk that the material already in the public domain will cause ongoing embarrassment and, potentially, emotional harm to the children as they get older in circumstances where it will remain on the Internet indefinitely in an easily and repeatedly accessible form. I accept that the fact that information is already in the public domain does not prevent injunctive relief where it can be shown that the repetition of known facts about an individual amounts to an unjustified interference with the private life of that person (see JIH v News Group Newspapers Ltd [2010] EWHC 2818 (QB) at [59]). However, once again, in this case the nature of the information is important.

48.The information contained in the petition setting out the mother’s objections and assertions regarding the fairness of the proceedings is, as I have outlined, relatively innocuous (once again, it does not contain details of the evidence before the court or details of the harm the court was satisfied that the children have suffered and does not seek to discuss the children’s individual needs), particularly when compared to other information that the courts have permitted to remain online (see for example Re J (Reporting Restriction), where the information in question was a video of the execution of an emergency protection order showing the child being removed in circumstances that were distressing, which video the court permitted to remain online subject to an order requiring the anonymisation of the name of the child). Further, the local authority offers no evidence to suggest that a petition placed online in response to a judicial decision in 2016, to which 160 people signed up and which received its last signature two months ago, is likely to be accessed in future years by others to the extent that it will result in embarrassment to the children, much less emotional harm. Again, whilst it is possible to speculate that this might be the case, given the nature of the information and the relatively small number of people who have accessed it at a time when it is relatively current, the court needs more than mere speculation before such a conclusion can be drawn. I also again bear in mind that the Administration of Justice Act 1960 does not act to prevent child being identified as having been the subject of proceedings.

49.In the circumstances, I am satisfied that there is very little cogent evidence before the court that each of the children or any of them will suffer embarrassment, much less emotional harm if the petition on the Change.org website remains in place online. Within this context, once again, it must be remembered that what the court is examining is whether there is evidence which amounts to a justification for interfering with the cardinal right of freedom of expression for the purposes of Art 10(2). Whilst it is, of course, possible to formulate a number of common-sense assumptions with respect to the potential impact on each of the children of persons accessing the online petition, the reality is that the justifications on which the local authority seeks to rely for interfering with the parents’ right to freedom of expression under Art 8 are poorly evidenced and largely speculative in nature.

The Judge’s conclusions are very plain that his decision (to allow the anonymised petition to stay up) is not one about the merits or otherwise of petitions and not a template to be followed in all future cases, but about the merits of THIS case and that the LA needed to show evidence about the impact or potential impact on these particular children which would have justified an interference with article 10 and that they, in THIS case, had not done so. It doesn’t mean that a Local Authority in another case would not be able to produce such evidence that would justify the petition being removed.

60.Finally, in respect of the contended for justifications for interfering in the Art 8 right of the children for respect for private life, in this case one of the main factors driving the interference in the children’s Art 8 right is the fact that the mother’s name appears on the front page of the petition and the children are referred to by their forenames in a limited number of the responses to that petition. Against this, the ability of a parent to make clear who is speaking out or seeking to petition for redress is self-evidently very important, it being very difficult, if not impossible, to effectively protest a contended for injustice or petition for redress of a personal grievance if the protester or the petitioner must remain anonymous and prevented from providing any salient details of their grievance that may breach that anonymity.

61.Having regard to the foregoing parallel analysis of the importance of the rights engaged in this case and the respective justifications for interfering with the same set out above, in which I have considered each of the children’s best interests as a primary consideration, and applying the ultimate balancing test of proportionality, I am satisfied that the local authority’s application for an injunction compelling the parents to take down their online petition must be dismissed.

62.Balancing the Art 10 right to freedom of expression of the parents (in the context of the importance of that right, the importance of parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress) against the Art 8 right of the children to respect for their private and family life (in the context of the importance of that the right for the psychological integrity, personal development, development of social relationships and physical and social identity of the children and the court not being satisfied, having regard to the nature of the information and the children’s prior knowledge of it, that the evidence establishes that publication will cause emotional harm to C and W and potentially de-stabilising their respective foster placements, disrupt efforts to find adoptive placements for T and N or cause ongoing embarrassment to the children as they get older) leads me to conclude in this case the Art 10 right to freedom of expression outweighs the Art 8 right to respect for private and family life when it comes to the question of the online petition being taken down. Applying the ultimate balancing test of proportionality, in my judgment it cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother’s name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains.

63.For all the reasons I have given, the application of the local authority for an order compelling the parents to take down their petition on the Change.org website is accordingly dismissed. The order made by agreement on 25 May 2016 will continue in force.

CONCLUSION
64.I recognise that my decision will leave online a limited amount of information concerning the children in a format that has the potential to identify them as having been the subject of proceedings. However, cases dealing with the publication of information concerning children must be decided by the careful and rigorous application of the well-established legal principles articulated earlier in this judgment. As the President observed in Re J (Reporting Restriction), in the face of the challenges presented by the Internet we cannot simply abandon basic legal principles, as Lord Sumption observed in Prest v Petrodel Resources Ltd [2013] 2 AC 415, courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different and as Hayden J observed in Re J (A Minor) [2016] EWHC 2595 (Fam), with respect to the balancing exercise required in cases of this nature, in a mature family justice system the weight afforded to the right to freedom of expression must be recognised and engaged with.

65.Within this context, cases dealing with the publication of information concerning children who are, or who have been the subject of family proceedings will necessarily involve competing interests. The court is required to balance a right that is important to the individual subject children, children who will often have been exposed to significant personal trauma, against a cardinal right that is important to parents, to children and to society as a whole. Where the court is required to strike this balance, a solution that comprehensively satisfies all interests is not possible.

66.Finally, I emphasise that this is a decision that turns on its own facts. It is not a judgment on the merits or demerits of online petitions generally, whether in the context of family proceedings or otherwise. Rather, it represents only the product of applying the required balancing exercise to the very particular circumstances of this case.

67.That is my judgment.

My cousin Vinny – or a model for how, in a better world, we could do things

 

I’m going to take the unusual step of publishing a judgment in full, because, well, you will see why.  It is written by Mr Justice Peter Jackson, who I think is as absolutely good as it gets.   (there’s a short preamble that explains that this was a private law hearing, both parents representing themselves, and that the young person met with the Judge before the decision was made)

 

There’s a lot that is wrong with family law, and I write about that all of the time. And people write comments telling me other things that are wrong with family law, and sometimes they are right.  Family law hurts. If you have a decision in family law that doesn’t go your way, it hurts you, for a long long time – maybe even forever, and that’s genuinely an awful thing.  We forget that, sometimes. Or perhaps we have got good at pretending that all that matters is that the Judge makes the right decision (forgetting that there are real people on the wrong side of those decisions, even when we think they are right)

Every family law case involves people who are hurting and being hurt, and this one is no exception. But this is one of those better times when I get to say that this, right here,  is something right about family law, and it is how it could be.

 

Re A (Letter to a Young Person) 2017

13 July 2017

Dear Sam,

It was a pleasure to meet you on Monday and I hope your camp this week went well.

This case is about you and your future, so I writing this letter as a way of giving my decision to you and to your parents.

When a case like this comes before the court, the judge has to apply the law as found in the Children Act 1989, and particularly in Section 1. You may have looked at this already, but if you Google it, you will see that when making my decision, your welfare is my paramount consideration – more important than anything else. If you look at s.1(3), there is also a list of factors I have to consider, to make sure that everything is taken into account.

The information I have comes from a variety of sources. There are the papers from the old proceedings years ago. There are more papers from the proceedings this year, especially your own statements, your mum and Paul’s statements, your dad’s statements, and the report of Gemma, the Cafcass officer. Then there is the evidence each of you gave at court. I have taken all this into account.

When I was appointed as a judge, I took the oath that every judge takes to apply the law in a way that is fair to everybody. Some people will say that this or that decision isn’t fair, but that’s usually their way of saying that they don’t like the decision. People who like decisions don’t usually say they are unfair. Here, your father loudly says that Cafcass is biased against fathers and during the hearing it became clear that he doesn’t have much confidence in me either. He is entitled to his view, but I can tell you that I found no sign of bias on Gemma’s part; on the contrary, I found her someone who had thought very carefully about you and your situation and used her professional experience of many, many family cases to reach an honest view of what would be for the best.

The decisions that I have to take are these: (1) should you go and live in Scandinavia? (2) should you become a citizen there? (3) if all your parents are living in England, should you spend more time with your dad? (4) if your dad goes to Scandinavia, and you stay here, how often should you see him?

Here are the main matters that I take into account:

 

  • Your stated views. You told me that you have long wanted to live in Scandinavia and that you could see yourself living there with your dad. If that doesn’t happen, you want to go back to having week on/week off. It worked in the past and you enjoyed it. You feel that your father helps you more with your education. If your dad goes to Scandinavia without you, you would be extremely unhappy. Your mum and Paul are very against you seeing more of your dad.
  • I believe that your feelings are that you love everyone in your family very much, just as they love you. The fact that your parents don’t agree is naturally very stressful for you, and indeed for them. Gemma could see that when she met you, and so could I when you briefly gave evidence. Normally, even when parents are separated, they manage to agree on the best arrangements for their children. If they can’t, the court is there as a last resort. Unfortunately, in your case, there have been court orders since you were one year old: 2004, 2005, 2006, 2009, 2010 – and now again in 2017. What this shows is how very difficult your parents have found it to reach agreements. This is unusual, but it how you have grown up. The danger is you get used to it.
  • I was impressed with the way you gave evidence. You are of an age where your views carry a lot of weight with me, and I consider them in the light of your understanding of what has made things as they are. As to that, I don’t think anyone of your age in your situation could understand it better than you do, but nor could they fully understand the influences that you are under and the effect that has on you.
  • Your parents have very different personalities. There is nothing wrong with that, it’s one of the joys of life that people are different. One of your homes is quite conventional, the other very unconventional. There’s nothing wrong with that either. What is of concern to me is this. I see your mother and Paul as being content with the life they lead, but I don’t see that in your father. He is a man with some great qualities. When he is relaxed, he has charm and intelligence. But underneath that, I see someone who is troubled, not happy. He has not achieved his goals in life – apart of course from having you. Because of his personality style, and the love you feel for him, he has a lot of influence over you. All fathers influence their sons, but your father goes a lot further than that. I’m quite clear that if he was happy with the present arrangements, you probably would be too. Because he isn’t, you aren’t.
  • So I have a view on the question of whether the idea of these proceedings comes from you or from your dad. My view is that you brought the proceedings mainly as a way of showing your dad how much you love him. It was mainly to meet his needs, and not yours. I have seen the self-centred way that he behaves, even in the courtroom, and how he makes sure everybody knows how little respect he has for anybody who disagrees with him. Even as a judge, I found it hard work stopping him from insulting the other witnesses. Your mother certainly finds his behaviour difficult, so difficult that she avoids contact with him whenever possible. I don’t think you yet realise the influence that your father has over you. It leads you to side with him and praise him whenever you can. You don’t do the same for your mother. Why is that? Is it because you sense that he needs it and she doesn’t? Also, I may be wrong, but when you gave your evidence I didn’t get the feeling that you actually see your future in Scandinavia at all. Instead, what I saw was you doing your duty by your dad while trying not to be too unfair to your mum. But you still felt you had to boost your dad wherever you could. That’s how subtle and not-so-subtle pressure works. So I respect your views, but I don’t take them at face value because I think they are significantly formed by your loyalty to your father.
  • And it is not just that. I believe your father has in some ways lost sight of what is best for you. He told me that he felt absolutely no responsibility for the state of the relationship between him and your mother. Nor did he satisfy me about his decision to emigrate without you (something he first mentioned in May), and why he would want do something that would so obviously cause you such unhappiness. On Monday, he told me it was 95% likely that he would go alone. On Wednesday, he told me it was 100% certain. Today, Thursday, he said it was 99.9997% certain but in his closing remarks a short while ago he said “If I go to Scandinavia…” before correcting “if” to “when”. My conclusion about all this, I’m afraid, is that, whether he knows it or not, your father has a manipulative side. I don’t believe he has any real idea whether he will go to Scandinavia or not, so nor do I. I can see that for him personally, Scandinavia may have some attractions, but I don’t believe he will find it at all easy to stop seeing you. I very much hope he will stay for your sake, even if it is at a cost to himself.
  • Sam, the evidence shows that you are doing well in life at the moment. You have your school, your friends, your music, and two homes. You’ve lived in England all your life. All your friends and most of your family are here. I have to consider the effect of any change in the arrangements and any harm that might come from it. In any case where parents don’t agree about a move overseas, the parent wanting to move has at least to show that they have a realistic plan. That plan can then be compared with other plans to see which is best. That has not been possible here. You will remember that at the earlier hearing in May, I made very clear to your father that if he was going to seriously put forward a move to Scandinavia, he had to give the court proper information about where you would be living and going to school, where the money would be coming from, and what the arrangements would be for you to keep in touch with family and friends in England. At this hearing, no information at all has been given. Your father described the move to Scandinavia as an adventure and said that once the court had given the green light, he would arrange everything. That is not good enough. In over 30 years of doing family law cases, I have never come across a parent who thought it might be, and no court could possibly accept it. What it means is that I have no confidence at all that a move to Scandinavia would work. Your dad thinks he would find a good life and good work there, but I have seen nothing to back that up – he hasn’t made a single enquiry about houses, schools or jobs. You don’t speak the language and you haven’t been there since before you were 5. Even your dad hasn’t been there for over 10 years. I also doubt his ability to provide you with a secure home and a reasonable standard of living if you lived with him full-time. I would worry about how it would be for you if things started to go wrong. I think you would find it exciting at first, but when reality set in, you might become sad and isolated. I also don’t think it is good for you to be with your father 24/7. In some ways, he would expand your vision of the world, but in many more ways he would narrow it, because he holds such very strong views himself, and because I believe that (maybe sincerely and without realising it) he needs you to fall in with his way of thinking. I also think it would be very harmful to be living so far away from your mum, from young Edward (who needs you too), and from Paul.
  • So I very much see you completing your schooling here. If, when you finish your A levels, you want to move to Scandinavia, you will be 18 and an adult – it will be up to you. Until then, I agree with Gemma, and with your mum and Paul, that you should make the most of the many opportunities that life here has to offer you. Although your dad is not that impressed with your school, most kids across the country would give a lot to have the life chances you already have. You don’t need more chances, or changes, but rather to make to most of what you have already.
  • As you will not be living in Scandinavia, I also don’t think that it would be in your interests to apply for citizenship there at this stage. I agree with Gemma that it would be a distraction. If you decide to do that when you’re 18, all well and good.
  • I have thought carefully about your request to spend more time with your father. I’m afraid that I think that the idea of spending week on/week off would be disastrous. It may have worked, with some difficulty, when you were a primary school, but it will not help your development to share your time between two homes with such different philosophies. In the end, not without some hesitation, and only if your father decides to remain living in England, I’m going to follow something like the arrangement that Gemma recommends. It will give you some more time with your dad, and more independence in getting to and from school. It won’t surprise you to hear that your dad told me that any outcome like this would be totally unacceptable to him and to you: can I suggest that you do your own thinking and don’t let his views drown out yours?
  • There needs to be an end to proceedings of this sort. They have been extremely stressful for everyone. This is the fifth case there has been about you and, unless something pretty extraordinary happens, it should be the last.

 

So, coming to the orders I am going to make:

A. I dismiss your dad’s applications to take you to live in Scandinavia and for you to apply for citizenship there.

B. You will have a holiday of a week in the second half of August this year with your dad, to be spent at his home unless he and your mother agree that it is going to be spent somewhere else.

C. I shall direct your father to write to your mother no later than 1 September to inform her whether or not he will be moving to Scandinavia and, if so, when.

D. If he writes that he is going to be moving (or does not write at all), contact will remain as it is: i.e. alternate weekends from Friday evening to Sunday evening. After he goes, contact (face-to-face and by phone/Skype etc) will be as agreed between your parents.

E. If your father writes to your mother that he is not going to be moving, contact will take place as follows: From the beginning of September, alternate weekends from Friday direct from school to Monday direct to school, until the end of the year. From the beginning of 2018, it will be alternate weekends from Thursday direct from school to Monday direct to school. I have not followed Gemma’s suggestion exactly because I think it is harder on you going backwards and forwards between the two homes every week. I think it would be better if you did that once a fortnight and that the increase is phased in.

F. I will make an order under s.91(14) of the Children Act that no further applications concerning you can be brought before the court by anyone, including yourself, without the Designated Family Judge giving permission. This order will run until 1 September 2019, so after your GCSEs. I do not think it need run for longer than that. The court will always give permission if someone wants to bring a reasonable application, but it gives the court control before any fresh proceedings are started.

Sam, I realise that this order is not the one that you said you wanted me to make, but I am confident that it is the right order for you in the long run. Whatever each of your parents might think about it, I hope they have the dignity not to impose their views on you, so that you can work things out for yourself. I know that as you get older, you will do this increasingly and I hope that you will come to see why I have made these decisions. I wish you every success with your future and if you want to reply to this letter, I know that your solicitor will make sure that your reply reaches me.

Lastly, I wanted to tell you that your dad and I enjoyed finding out that we both love the film My Cousin Vinny, even if it might be for different reasons. He mentioned it as an example of a miscarriage of justice, while I remember it for the best courtroom scenes in any film, and the fact that justice was done in the end.

Kind regards

Picture 1

Mr Justice Peter Jackson

 

 

 

Eleven plus and Spycatcher

 

 

This one is a little outside our normal remit, but it covers Education, and hence children, and it is a bit unusual. In fact, even though it is a question about the legal implications of leaking exam questions it would actually make a perfect legal exam question – which I’m sort of leaking in advance of anyone actually doing it.

 

Matalia v Warwickshire County Council 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/991.html

 

Mr Matalia owned a website. I’m not sure what else he was doing on the website, but one of the things that he did in 2013 was post some information about the contents of the 11 plus exam being used in Warwickshire after it had taken place.

He was able to learn what the contents were by making some enquiries of children who had sat the exam (I believe his nephew was one of said children)

So what? What earthly use is knowing the contents of an exam AFTER the event? That’s like someone running up to you with a hot tip for the Grand National and telling you that Red Rum won it three times in the Seventies. It’s not inaccurate, but it isn’t useful.

Well, except that not everyone who sits the 11 plus exam in Warwickshire does so at the same time  (which I personally think is something of a flaw in the security of their system, which Mr Matalia has exposed). There are three separate examination sitting dates, all using the same paper. So if you are taking the test on the third of those sitting dates and you know what is in the test because someone who was in sitting date one tells you, you have an advantage.

(Assuming there’s a grade curve, rather than a hard pass mark, it is utterly disdvantageous to people who sat the exam on the first date to help out people sitting later on, and actually if it were me, I’d tell them the questions were largely about the role of crocodiles in Egyptian mythology so they’d crash and burn, but that’s by the by)

 

Here’s what went onto Mr Matalia’s website

 

 

“A. Comprehension regarding Lemurs in Madagascar. Around 2 pages of text and perhaps 20 questions. Easy enough to finish.

A. Longer maths. 4 long questions with subsections (perhaps 15 minutes).

i) A question relating to luggage dimensions and time differences: London and Hong Kong.

ii) Cinema tickets, time calculations and prices.

iii) Prices of items in a sale, including original prices. E.g price was £4.85 after a 75% discount. What was the original price?

iv) Swimming suggestions – swimming lengths in a certain time. Required conversions and ratio/proportion knowledge.

Some questions were difficult and many may not complete the questions.

B. Synonyms (words included thrifty, frugal, insolent). Enough time to complete the questions.”

 

  • The relevant test included a comprehension question on a passage concerning lemurs in Madagascar with a total of 23 questions. The “Matching Words” section required candidates to give “thrifty” as a synonym for “frugal”. The judge found that the section on the website headed “Longer maths” also “contained truth”. He referred to an email dated 10 September 2013 in which the University told the Council that there were “4 maths Qs (6 marks) where day 2 candidates may be at an advantage – although the exact Qs are not revealed”.

 

 

It doesn’t sound as though Mr Matalia’s nephew was some sort of super-spy, taking detailed notes of the exam questions as part of a well designed scheme, but rather that those were just the bits he happened to remember when asked about them.  I mean, knowing that the Comprehension question was based on an article about lemurs doesn’t help you in the slightest. It isn’t going to be beneficial to cram the Wikipedia entry on lemurs to give you an edge. Also ‘cinema tickets, time calculations and prices’  is, when you boil it down ‘some questions involving maths’ – which I think most children sitting an Eleven Plus exam would probably anticipate.

But a visitor to the site who would be sitting the exam on one of the two later sitting dates would gain a slight edge (and on at least the thrifty/frugal question would pick up a free mark)

The Council asked Mr Matalia to take the exam spoilers down.  He refused and the Council applied for an injunction. They asked him to take the spoilers down before the trial. He refused.

 

Before the trial, Mr Matalia refused to give any undertakings, saying in an email to the Council that, quite apart from expecting to win, “it is financially advantageous for me to go to trial and the publicity and media details will be invaluable for my sites.” He also stated that he understood that “there is a surprise waiting for [the Council] for this year’s 11+ exams. I won’t spoil the fun….I did not ask for help, have no involvement, direct or indirect and no contact numbers. I understand the content on my site last year will be insignificant in comparison.”

 

Without trying to be unkind, and avoiding any feelings about whether eleven plus exams are a good thing, bad thing, indifferent thing, it does feel from the outside something of an unusual thing for a grown man to do, to post spoilers about an exam to be undertaken by eleven year olds.  I really don’t know what else was going on his website, or how that content fitted into the general scope of the site…  (It would make more sense to me if he were publishing the full questions and answers and charging for access. I don’t really understand the motivation here. It doesn’t seem like a political protest against grammar schools or trying to subvert the system, nor does it actually seem like a monetarised plan. I guess it was simply for the lulz)

 

 

Anyway, the Council got their injunction, banning Mr Matalia from posting on his website any information about Eleven Plus examinations in 2013, 2014 or 2015.  This was Mr Matalia’s appeal.

 

The case was decided on the principle of ‘breach of confidence’  – this has three limbs

 

 

  • three limbs of the test to establish a breach of confidence set out by Megarry J in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 was satisfied. It is Mr Matalia’s case that none was satisfied.
  • The test formulated by Megarry J at p.47 of the report, and subsequently approved and applied many times, is:

 

“In my judgment, three elements are normally required, if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

 

Mr Matalia argued at his appeal (and I think it is a decent lawyer argument, though I suspect any normal human being would reject it immediately) – how can the information in an exam paper handed out to 1,600 children have a ‘quality of confidence’ about it? And when the paper was handed out to his nephew, how was there an obligation of confidence imported to him? Of course children talk about exams after they’ve taken them. And these days, they probably do so on social media, thus publishing their conversations.  With that in mind, how can the exam papers have that ‘necessary quality of confidence’?

He doesn’t argue, though it seems blindingly obvious to me – why don’t Warwickshire do their 11 plus exams all on the same day, then they don’t have to worry about this?

 

 

  • Ground 2 is as follows:

 

“2. The judge erred in concluding that the Appellant had committed a breach of confidence, given that

2.1 the relevant information which the Appellant had published on his website (“the Information”) was (as was accepted by the Judge, in paragraph 35 of his judgment (“the judgment”)) communicated to him by one or more pupils who themselves were under no duty of confidence in relation to the Information;

2.2 the Information was, in the context (see paragraph 34 of the Judgment, and paragraph 2.4 below), trivial;

2.3 the Information concerned a test about which the deviser of the test (Durham University) said to the Respondent (only 3 days after the 11+ examination from which the Information was believed by the Appellant to be drawn)

2.3.1 “the testing process as a whole would not seem to have been compromised” and

2.3.2 “If there are issues [i.e there was a possibility of late sitters having any “particular advantage” where the Respondent “had concerns”, the Respondent had] the option of excluding these questions from the results”;

2.4 the Respondent had written to the Appellant in April 2011 that

“it would be very very difficult for a child to remember any of the questions in enough detail to pass on to children who are yet to take the test in order for that child to be at any significant advantage” (see paragraph 34 of the judgment);

2.5 websites other than that of the Appellant had revealed and continued to reveal similar information about the content of the 11+ examinations set by the Respondent;

2.6 there was evidence before the Court that persons who acted (for financial reward) as tutors for the 11+ examinations set by the Respondent appeared surreptitiously to use information comparable to the Information in preparing their tutees to take the 11+ examinations administered by the Respondent (see paragraph 6 of the Appellant’s witness statement of 8 December 2014); and

2.7 there was evidence before the Court that children who had taken the 11+ examinations were giving to their friends and relatives who were about to sit the same examination at a later date information which was at least comparable to the Information (see also paragraph 6 of the Appellant’s witness statement of 8 December 2014).”

 

  • Apart from sub-paragraph 2.1 of Ground 2, which clearly relates to the second limb of Megarry J’s test, the other sub-paragraphs appear to relate both to whether the information disclosed by Mr Matalia on his website had the necessary quality of confidentiality about it (limb 1) and to whether its disclosure was to the detriment of the Council (limb 3). As to the other part of limb 3, that the disclosure was unauthorised, it is clear that neither the Council nor any other person authorised the disclosure.

 

Ground 2.1: chain of confidentiality

 

  • Mr Matalia submits that because he received the information from one or more pupils who were themselves under no duty of confidence in relation to it, he was not himself under any obligation of confidence and was free to publish it as he saw fit. He submits that the candidates were free to disclose the contents of the test and could therefore transmit the contents to others without any duty of confidentiality being imposed on the recipients.
  • Although Lewison LJ subsequently clarified that he gave permission to appeal on the entirety of Ground 2, he focussed on this issue in his reasons:

 

“1. Although the evidence is not entirely clear, it seems to be the case that the pupils taking the test were not told that it was confidential or that they should not discuss the contents of the test with others.

2. If that factual premise is correct then it is arguable that the judge was wrong to find that all three limbs of the test in Coco v Clark were satisfied.”

 

  • Despite this, Mr Bragiel’s skeleton argument made very little of Ground 2.1. He made even less of it in his oral submissions and, in answer to a question from Lindblom LJ, accepted that the issue was whether the information was confidential in nature and whether Mr Matalia realised or should have realised that it was confidential. However, in a note sent to the court after the hearing, Mr Bragiel stated that he had not abandoned reliance on the fact that the children taking the test were not told that the test was confidential or that they should not discuss it with others. He said this was the fundamental factor relied on and was relevant to each of the three limbs of Megarry L’s test.

 

This is the nub of it – if the nephew wasn’t told, or it wasn’t written on the exam papers ‘this is confidential’ or ‘you must not talk to other people about what is in this test’ or words to that effect, was the test in Coco v Clark satisfied?

 

This is, however, where we get into law exam territory – literally.  The reference that the Court of Appeal give here is in relation to the Spycatcher trial (a case where a former employee of UK Security Services wrote a book about his experiences, published it in Australia and it was serialised by the Sunday Times with excerpts appearing in other newspapers) and the SPECIFIC reference is

. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”

 

Come on, how meta is that? A law case about exam papers is decided by reference to a law case that was giving a hypothetical scenario beloved of law teachers.

 

The Court of Appeal liked this so much that they went back to it

 

It seems highly improbable that a 10 or 11-year old child would be prohibited from discussing the test with their parents, but that gets Mr Matalia nowhere. First, it does not follow that candidates owe no duty of confidentiality. If the Council became aware that a candidate was proposing to publish questions on social media, I do not see why it could not take steps to restrain it, assuming that the candidate knew that there were to be further sittings of the test. If, by virtue of their age, the candidates were not susceptible to injunctive relief, communication by them would be analogous to the example given by Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) of the confidential document being wafted into the street by an electric fan and picked up by a passer-by.

 

Secondly, and in any event, it does not follow that because a child can tell his or her parents about questions in the test they have taken, the parents are free to publish that information, knowing that other candidates are yet to take the test. The communication is made by the child in very particular circumstances, as part of the child-parent relationship. Given the confidential character of the information, as will or should be apparent to the parents, it would in my judgment be entirely consistent with principle to impose the duty of confidentiality on the parents, and quite contrary to principle to treat the parents as free to publish the information as they saw fit.

 

The appeal was refused and the onward secrecy of Warwickshire’s Eleven Plus exams is secured. Hooray. (or Boo, depending on how you feel politically about grammar schools)

 

(Dragging us back to family law, I’ve written before about how just like Rorschach tests, many of the psychometric tests applied by psychologists in assessment of parents aren’t available online – to stop people deciding in advance how to answer them, or being coached. So I guess this would apply to an enterprising parent who photographed the test paper and tried to publish it. Don’t do that, obviously. That would be a breach of confidence, and you would be made to take it down.)

 

And just to make us all feel super thick, here’s an O Level Geometry paper from 1957.

 

Belinda blinked. How on earth was she supposed to answer these questions?