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What you hear’s a lethal style of conversation – can you sue or be sued for defamation during a child protection investigation

Or as MC Tunes famously sang, whilst mispronouncing the key word – “Don’t like what I say ? Then sue me for liable”

(He meant libel… Whilst he couldn’t pronounce libel, to be fair, he could pack jams like a party in a tin can. Is this alleged feat more or less impressive than cooking MCs like a pound of bacon? Discuss. )

We have established before that nothing that is said within a Court room can be used in an action for libel, slander or defamation – and that protection covers not only what a lawyer or witness says aloud, but to written documents and to conversations that were for the purpose of creating such documents.

(i.e Mr X can’t sue a social worker for saying in the witness box that “Mr X broke his son’s arm” even if that allegation is later found to be untrue. Nor can he sue the lawyer for saying “The threshold is met because Mr X broke his son’s arm” and nor can he sue the social worker for putting that in her Court statement or for saying such a thing to her lawyer outside the Court room in the preparation of the case. )

That’s all in Cutler v Dixon 1585
As the Courts have said in other cases

“The reasons why immunity is traditionally conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence”

But what about defamation during the INVESTIGATION process? This case deals with that very issue, and may be of interest

ABC (A Mother) v The Chief Constable of West Yorkshire Police [2017]

http://www.bailii.org/ew/cases/EWHC/QB/2017/1650.html

I will try to capture the basic facts as quickly as possible. A mother, ABC, became concerned that her son who was 4 was being sexually abused whilst in the care of his grandparents. This is largely because he told her that they had put talcum powder on his willy and she believed that they were also taking indecent photographs of the boy. She made this complaint to the police, and a DC Green investigated it. As part of the investigation, the police officer asked her what their motivation might be and in answer to this she explained that they were bankrupt and might have a financial motive. In a later written statement, she said that she had not said this.
As part of the investigation, DC Green spoke with a social worker, and mentioned this aspect, saying that ABC had ‘lied’ to him during the investigation and that he did not consider the allegations to have any substance. The social worker, during her investigation, spoke with the GP and a GP record was later made of that discussion.

This is the record that was complained of, and when ABC learned of it, she sued the police officer for defamation

60.It was on 24 April that Victoria Stennett wrote up the GP Record on which the slander claim is based. I shall set out the full entry below, putting the words complained of in bold for clarity and ease of reference. I shall interpose some numbering, to help explain the argument and my findings on the issue of meaning. These points aside, I set out the entry exactly as it appears in the records, with all typographical errors.

“24 Apr 2015 12:30 Mobile Working: Victoria Stennett (Admin/Clinical Sup Access Role) @Supporting Families Unit

Reason for encounter – telephone call from Elsa Newell

Verbal communication interventions

discussion with Elsa newell social care. She has seen [BCD] and mum regarding the concerns that mum has voiced regarding grandparents and dad and sexual abuse towards [BCD]. She has attended court 3 times to stop all contact with the family and has been granted an order to stop grandparents from having over night care however the judge has stated that there is no evidence of abuse at all. Grandparents have admitted that there have been photos taken of him in the bath but police have checked these and they are not abusive mum also states that as grandparents are drying him them put talc on his penis and rubs it. She has stated that this is abusive and she does not even bath him therefore this is not right. There again is no evidence that this is abnormal behaviour other than general bathing of a child of 4. [BCD] has reported that he woke up one night at grandparents house in bed with step sibling Theo and there was a man in his room the man jumped on his bed and then ran out [BCD] did not tell anyone a she is not allowed out of bed when in bed. Mum stated that that [BCD] is drawing pictures of this man and has senn him since however grandparents and dad deny that therehas been an unknown man in the property overnight, [BCD] has also stated to social care that he has never seen this man before or since. Mum has put in a complaint regarding 3 police officers asthey are not taking thisseriously a complaint to the judge for not stopping dads contact and as the gp will not state that dad should have no access she is complaining regarding them [1] the judge has also ordered her not to discuss this matter with [BCD] as there have been witnesses stating that they have heard her putting words into [BCD’s]mouth. [2] She has also lied about the statement she has provided to the police and who was present when the police interviewed [BCD]. she states that her mother overheard the conversation between [BCD] and the police however this happened at nursery.

Elsa has seen [BCD] who likes spending time with his dad and he has not reported any concerns regarding his care from anybody. Nursery have no concerns and he is developing well.

Elsa wanted to know if mum had a history of mental health issues however all her records are private. [3] Elsa intends to close the case as there is nothing to suggest that there issexual abuse however there are reservations regarding mums role in this.

Activity: Patient related activity (20 minutes) Administration with Patient Record

Activity: Patient related activity (20 minutes) Telephone with other Professional

Patient Contact: 0 minutes Total Contact 40 minutes.”

A lot of the judgment deals with whether the mother had established that DC Green had said any of this, because it was a non-verbatim note of a conversation between a GP and a social worker drawing on things that the social worker had been told by other professionals. That’s not terribly interesting for our purposes, so skipping to the conclusion


69.The claimant goes on to set out the specific words of which she complains, and she has produced a written record of them in the form of the GP Record. There is no dispute that those words referred to her. It is not unreasonable to rely on a case that DC Green and/or DC Ridge made slanderous statements about the claimant to social services. The evidence establishes that each of them did speak to social services on the dates alleged. The Chief Constable is responsible for what her officers do.

70.But the GP Record is not a record of any slanderous statement made by a detective constable to Elsa Newell on or about 22 April 2015. It is a record of what Elsa Newell said to health worker Victoria Stennett in a telephone conversation on 24 April 2015. The GP Record does not purport to be or to contain an account of what any police officer said to Elsa Newell. Both the officers concerned have given evidence in which they deny making the statements complained of. The person to whom they are alleged to have made those statements, Ms Newell, has not given any evidence at this trial. The evidence is that she has no independent recollection of what she said. For that among other reasons a witness summons that had been served on her was set aside. The person to whom Ms Newell spoke has not given evidence either. An email that is before me contains some evidence that Ms Stennett thinks she wrote down accurately what Ms Newell said to her. But the email is not from Ms Stennett, and it is dated nearly two years after the initial record was made. It would be unsafe to attach any great weight to it.

71.I therefore have to decide whether I should reject the officers’ evidence and accept the claimant’s case, that it can and should be inferred from the GP Record and the other evidence before me, that the words that the claimant complains of were spoken to Elsa Newell by one or other or both of DC Green and DC Ridge.

72.There is nothing wrong in principle with an inferential case of slander. But it is often going to be hard to prove such a case, and there are real difficulties with the inferences invited in this instance. Some of the more obvious problems are these:

(1) The GP Record does not set out any direct quotation from any police officer. Nor does it contain anything that appears to be an indirect quotation from anything an officer said.

(2) The most recent written accounts of what the detective constables involved had said to social services are dated 15 and 22 April 2015, that is to say 9 and 2 days respectively before the conversation recorded in the GP Record.

(3) The Social Services records of what was said by DC Green on 15 April and by DC Ridge on 22 April 2015 are not helpful to the claimant. None of the language in either those records corresponds with any part of the words complained of.

(4) The first of the three elements of the words complained of (the passage about witness stating they have heard her putting words into her son’s mouth) is in a sentence, which I have labelled [1] above, that appears on its face to be a report of something said by a judge, not a police officer.

(5) The second element of the words complained of (“She has also lied …”) appears rather garbled, which is not what one would expect from a detective constable. There is ample evidence that DC Green writes clearly. DC Ridge seems to do likewise. More significantly, perhaps, this part of the words complained of is not easy to reconcile with the facts that were known to DC Green. It seems to suggest that the only conversation between BCD and the police was at nursery, so that the mother could not have overheard it. DC Green was well aware that was not so. He knew at the relevant time what ABC and her mother was saying about the matter. It is hard to see why he might lie about this. It is hard to see why DC Ridge would say anything on this topic. Her only role in the matter was to interview the claimant. Moreover, Elsa Newell knew that there had been two conversations between the police and BCD, or at least the social services records made that clear.

(6) The third element of the words complained of appears on its face to be a report of Elsa Newell’s intentions, and her reasons for them. It is clear that DC Green did have reservations about ABC’s role in the investigation, but it does not follow that these words reflect or embody a statement he made to Elsa Newell.

(7) The overall impression gained from a reading of Ms Stennett’s record is that it reflects a 20 minute conversation in which, whoever initiated the conversation, Ms Newell was conveying to the health visitor her overall assessment of the case, drawing on a number of sources of information.
73.For the reasons that follow I find that the claimant has failed to prove publication of all but one of the words complained of. That word is “lied”.

The Judge decided that “She has also lied” was a statement that had come from DC Green, and that he had said it to the social worker. That was potentially slander, and had then gone on to be published in the records.

Why might the word ‘lied’ be potentially slanderous?

Here are the ingredients that someone bringing a slander claim has to prove to the Court

82.The requirements that are relevant in this case are these. A claimant in slander must, unless it is admitted, prove that the publication of which they complain (1) conveyed a meaning or imputation which is defamatory at common law (2) has caused special damage, or is actionable without proof of special damage and (3) has caused or is likely to cause serious harm to the reputation of the claimant

86.The word “lie” in the context of the conversation between DC Green and Elsa Newell bears the natural and ordinary meaning that in the course of a police investigation into possible child sex abuse the claimant told a deliberate falsehood to a police officer. That is a defamatory meaning. It is unnecessary to rule on what meaning would have been attached to words which the claimant has not proved were published by any officer of the defendant.

(2) Actionable in slander?
87.It is a general rule of the common law that spoken words are not actionable as slander unless it is proved that their publication has caused special damage. None is alleged in this case, so the statements complained of are only actionable if they fall within one or more of the recognised common law or statutory exceptions to the general rule. Only one such exception is relied on here. A slander which imputes that the claimant committed an imprisonable crime is actionable without proof of special damage: see Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB) [2016] QB 402 [8].

88.For the defendant it has been submitted that those who tell lies to police officers are not always prosecuted. That is no doubt true, but the question of law as to whether a statement is actionable as a slander does not depend on current charging standards or CPS policy. The question is not whether what was imputed would have led to a prosecution, but whether it amounted to a crime for which a sentence of imprisonment could (not would) be imposed.

89.For reasons that will appear, it is not necessary to decide this point, but I would be inclined to accept the claimant’s case on this issue. It may be that not all lies told to the police amount to a criminal offence. Here, though, the imputation of lying to the police that was published in this case might have amounted to the common law offence of perverting the course of public justice, but in any event would at least amount to wasting police time contrary to s 5 of the Criminal Law Act 1967. Both offences are punishable by imprisonment.

This is important – whilst a claimant normally needs to PROVE that the publication of the slander caused them special damage, that isn’t the case if the slanderous words suggest or imply that the claimant committed a crime for which they could be imprisoned.
(That’s probably going to be the case for any allegation of child abuse – it is difficult to think of an allegation that Mr X abused a child by doing Y, where Y would not be a crime for which Mr X might be imprisoned if he were prosecuted and convicted)

However, the claimant failed on the third ingredient, which was that she had to prove that the publication has caused or is likely to cause serious harm to her reputation


(3) Serious harm to reputation?
90.Here, the claimant’s case runs into difficulties. In my judgment she has failed to show that her case satisfies what I have called the “serious harm requirement.” This is contained in s 1(1) of the Defamation Act 2013 which provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

91.The meaning and effect of this provision were explored in Lachaux (above) but the principles have also been looked at in later cases. It is convenient to adopt the relevant parts of the summary which Dingemans J drew from the authorities in Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB), [2016] EMLR 12 at [46]-[50]:

“46. … first, a claimant must now establish in addition to the requirements of the common law relating to defamatory statements, that the statement complained of has in fact caused or is likely to cause serious harm to his reputation. Serious” is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant’s reputation. It should be noted that unless serious harm to reputation can be established injury to feelings alone, however grave, is not sufficient to establish serious harm.

47. Secondly it is open to the claimant to call evidence in support of his case on serious harm and it is open to the defendant to call evidence to demonstrate that no serious harm has occurred or is likely to do so. However a court determining the issue of serious harm is, as in all cases, entitled to draw inferences based on the admitted evidence. Mass media publications of very serious defamatory allegations are likely to render the need for evidence of serious harm unnecessary. This does not mean that the issue of serious harm is a “numbers game”. Reported cases have shown that very serious harm to a reputation can be caused by the publication of a defamatory statement to one person.

48. Thirdly, there are obvious difficulties in getting witnesses to say that they read the words and thought badly of the claimant… This is because the claimant will have an understandable desire not to spread the contents of the article complained of by asking persons if they have read it and what they think of the claimant, and because persons who think badly of the claimant are not likely to co-operate in providing evidence.

50. … as Bingham LJ stated in Slipper v BBC [1991] QB 283 at 300, the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity “to percolate through underground channels and contaminate hidden springs” through what has sometimes been called “the grapevine effect”. However, it must also be noted that Bingham LJ continued and said: “Usually, in fairness to a defendant, such effects must be discounted or ignored for lack of proof”, before going on to deal with further publications which had been proved to be natural, provable and perhaps even intentional results of the publication sued upon.”

[As Suesspicious Minds side-note – “Percolate through underground channels and contaminate hidden springs” is some dope imagery and one can only surmise at how much Bingham LJ would have wrecked the mic had he chosen to abandon the law and get into spitting dope rhymes with MC Tunes and Vanilla Ice instead…]

97.The allegation is not a trivial one. But allegations of a serious nature do not always or necessarily cause reputational harm that is serious. This is not a case in which inference can provide a satisfactory basis for a finding that serious harm to reputation has been caused. Nor do I accept the claimant’s case that it is proved that serious harm is likely in the future. I can see that a record has been made in the electronic database of GP information. Beyond that, I know and can infer little. The claimant has put forward a series of suggestions as to how the words complained of might affect her prospects of working with children, or adopting, fostering or having more children of her own in future. But that could only be the case if and to the extent that relevant part of the GP Record would be disseminated or made accessible to people making decisions of that kind, and taken seriously in that context. I cannot make assumptions about such matters. On the evidence before the Court this cannot be said to be likely, or anything more than speculative. That is true, whatever the point in time by reference to which the likelihood of future harm needs to be addressed.

So the defamation claim fails.

Of broader importance is that the Judge then went on to consider the defences and to rule on them. These are very important for everyone reading this who is busy sharpening pencils in readiness to issue a defamation claim against social workers and police officers and teachers for saying things at a case conference or for writing things in their records.

Qualified privilege

Qualified privilege is a category of defamation that means in effect that the law accepts that person A is able to say stuff to person B because of the job they are both doing, even if that ends up being slanderous of person C – AS LONG as it is not malicious.

If qualified privilege applies to child protection investigations, then a parent can only sue a professional for defamation if they are able to prove that the professional acted MALICIOUSLY
(which is as football commentator say “A big ask”)

Qualified privilege
116.The general principle of law is that there are circumstances in which, on grounds of public policy and convenience, a person may without incurring liability for defamation make statements of fact about another which are defamatory and untrue. The defence available where such circumstances exist is known as qualified privilege.

117.One well-established category of circumstance giving rise to such a privilege is where the person who makes the communication is under a legal, social or mora duty to communicate on the topic in question and the recipient has a duty to receive or a legitimate interest in receiving information on that topic. One classic formulation of this principle is that of Lord Atkinson in Adam v Ward [1917] QC 309, 334:

“A privileged occasion is … an occasion where the person who makes a communication has an interest, or a duty, legal social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”
118.Ms Hayward relies on this principle. She submits, and I agree, that this is a case in which (i) the police had a duty to communicate with social services about the investigation into the allegations that BCD had been abused, and (ii) social services had a corresponding duty to receive such information. The claimant had alleged that BCD’s grandmother’s partner had sexually touched him and taken indecent photographs of him. BCD stayed frequently at his grandmother’s house, sometimes without his father there, as did BCD’s stepbrother. If true, as Ms Hayward argues, these allegations plainly posed a risk of serious harm to the children concerned. It was clearly appropriate to take a multi-agency approach to such matters. As Ms Hayward points out, when the allegations were first passed to the police they made a safeguarding report to social services almost immediately, and thereafter, as set out in the social services log, ensured that social services were kept apprised of the investigation.

119.It was necessary, submits Ms Hayward, for social services to understand the nature of the allegations, the progress of the investigation and, pending a final decision on the outcome of the investigation, the views of the police (and in particular the investigating officer), as to the substance of the allegations and the reliability of the person making them. It was entirely appropriate for such information to be relayed to social services as it would help them better understand and assess whether there was any risk to BCD and, if so, to manage it.

120.Where a public authority such as this defendant seeks to rely on the defence of qualified privilege the Court must take account of human rights law. A public authority can have no duty to make a communication if it represents an unnecessary or disproportionate interference with the Article 8 rights of an individual: Clift v Slough Borough Council [2010] EWCA Civ 1171 [2011] 1 WLR 1774. Ms Hayward recognizes this. She argues that to the extent that the communication complained of engaged the claimant’s Article 8 rights, it was not more than necessary and proportionate, having regard to shared safeguarding functions of the police and social services. I agree.

121.These activities were taking place within a context governed by statute and well-known statutory guidance. The Children Act 2004 imposes duties on local authorities and the police with regard to the safeguarding and welfare of children. By s 11(2) of the 2004 Act, a local authority and a chief officer of police for a policing area “must make arrangements for ensuring that (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children.” By s 11(4), such bodies and persons must have regard to any guidance given to them by the Secretary of State. The guidance in force at the relevant times was “Working together to safeguard children – A guide to inter-agency working to safeguard and promote the welfare of children” dated March 2015. Relevant passages are to be found in paragraphs 12, 15, 18, 22 and 23. Paragraphs 22 and 23 appear under the heading “Information sharing”. Paragraph 22 makes the obvious point that “Effective sharing of information between professionals and local agencies is essential for effective identification, assessment and service provision.” It is unnecessary to cite these paragraphs more extensively. It is clear that the guidance encourages professionals involved with children to share information with a view to enhancing the prospects for effective safeguarding, or promoting welfare.

122.Of course, it is necessary to consider the particular information provided in the individual case, and whether there was a real need to provide that information to the particular individual(s) with whom it was shared. The statement that “she lied” was not made in order to save a child from abuse. But it was clearly highly relevant to the duties which social services had to perform. In contrast to the factual position in Clift, the statement was communicated to a single individual, Ms Newell, who was personally under a duty to acquire and assess information relating to the welfare of BCD. This was information of that nature. In my judgment it is plain that DC Green had a duty to provide Ms Newell with his assessment of the reliability of the claimant, who had made allegations that her son was the victim of abuse by adults within his family. As Ward LJ observed in Clift at [35] “it cannot be held to be disproportionate for a [public] authority to do what it is bound to do anyway”.

So it falls within qualified privilege for a police officer to share details of his investigation with a social worker AND to give his professional opinion as to whether he believed the allegations and his view of whether the individuals in the case were reliable witnesses.

The same would be true of things said in a case conference or core group. (Whilst it MIGHT be arguable that a father who makes a defamatory allegation about a mother in a Case Conference is not covered by qualified privilege – he has no legal duty to share such information – and it might be arguable that he doesn’t have a social or moral duty unless he genuinely believes it to be true, it is rather academic, because he won’t have any money to make him worth suing…)

The mother was not able to prove that when DC Green told the social worker that “she also lied” that he did so maliciously, rather than acting within his statutory duties.

That means that there is still a very high bar for a claimant to surmount if they do want to successfully sue a professional for defamation.

1. They must prove what was said (the records probably do that) and that it was published and that the words were defamatory
2. They must prove special damages (that they suffered loss as a result) OR that the case is actionable without proof of special damages (though if the words complained of imply that the claimant did something which they could be imprisoned for, that would tick that particular box)
3. They must prove that the words complained of caused serious harm to their reputation or are likely to do so
4. And if the words complained of happened within an investigation process qualified privilege will attach, so the claimant must prove MALICE – i.e not just sharing information but saying those things with malicious intention to cause the claimant harm, distress or embarrassment.

I can imagine a scenario in which a parent is exonerated of an allegation in care proceedings but a professional in the case doesn’t accept that, and subsequently goes on to record on a file or share with another professional “Mr X broke his son’s arm” – if that happens after a family Court has ruled that Mr X didn’t do that, then that is potentially malicious in nature. Saying it before the Court has dealt with it wouldn’t be. And “ Mr X was accused of breaking his son’s arm but the family Court decided he didn’t do it” is not defamatory, because it is true.

The golden rule with any email or letter or record is “Imagine that I am sitting in Court with everyone involved and listening to a Judge read this out loud” – if it says something that would make you squirm or that you cannot defend, don’t say it.

Committal to prison – making false accusations

Gibbs v Gibbs 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1700.html

This was an application by the father of a child (who by 2017 had turned 18) to commit the mother to prison for breaching court orders, notably about publishing allegations that mother had made within the private law proceedings but had never been found to be proven.

The private law proceedings have a dreadful history, set out by Hayden J, going back to 2001 and only ending in 2004.

A Consent Order was placed before the Court which was scrutinised by the Judge in a short judgment which has been transcribed and filed in this application. The preface to the order records that it was acknowledged specifically by the mother ‘that she was afforded the opportunity to pursue the allegations but did not seek to do so’. Secondly, it was recorded that the mother:

“accepts that by not raising any allegations of emotional, physical or sexual abuse against Mr Gibbs the contact between [B] and her father should proceed on the basis that all the allegations are unfounded”

6.Thirdly, the Order recorded that the mother ‘should not seek to raise any allegations of emotional, physical or sexual abuse against the Reverend Gibbs in any other forum with any other person or body and specifically including Mr Gibb’s employers’, the Methodist Church. Finally, it was expressly acknowledged that ‘contact between the younger child B and her father should proceed on the basis of the concessions made by the mother that day’.

7.Though the case had in effect settled, by the agreement of the parties, Mr Justice Munby nonetheless delivered a short judgment. Aspects of that judgment require to be highlighted:

“The advice which mother has received and the decision which the mother has taken seem to me to be entirely appropriate in the circumstances. These matters must now once and for all finally be laid to rest. That, as I understand it, is the basis on which I am being invited to approve this order. I am sure that I do not have to say this, but it is important for the parties to appreciate that this is intended to be a final order which maps out into the foreseeable future the pattern of father’s contact with B and, equally importantly, B’s contact with her father.”
8.Later the Judge recorded that both the mother and father:

“have taken a brave decision, and a decision which in many respects and for different reasons must have been difficult for each of them, [they] are to be congratulated and thanked for agreeing to this order. I hope that each of them will join with me in thanking the lawyers collectively, and indeed the other professionals involved, whose input and assistance I have little doubt has done much to bring this about. ”
9.There was therefore no doubt that the mother had received clear advice, that it was identifiably, on the available evidence, correct, and that the understanding of the parties as to the significance of the order was investigated and established to the satisfaction of the Judge.

At the end of the proceedings in 2004, Ryder J (as he then was) made a Prohibited Steps Order that prevented the mother publishing her allegations about the father (she having had ample opportunity to present those allegations before the Court and seek findings and having always declined to do so – almost certainly because they had no substance or merit and were utterly incapable of being proved) and attached a penal notice to them.

It appears that in 2017, the mother realised that the Prohibited Steps Order and penal notice were no longer in force, as the child was now 18, and thus sent out thousands of emails making allegations about the father.

17.From early in 2017 and perhaps for a little time before that, the mother had begun to step up her campaign of vilification against the father. She issued a raft of emails to thousands of individuals all of which either accused the father directly of physical, sexual and emotional abuse or inferred in the most unsubtle of ways that he was an abuser. The father had undoubtedly become used to his character being traduced by the mother in this way but this bombardment against his reputation was, as the mother herself frankly acknowledges, beyond anything that she had undertaken before. She had, she told me, visited her lawyer ‘some time in approximately 2014’. She discovered that the prohibited steps order made in the Children Act proceedings was not life long, as she had understood it to be but in fact expired when B turned 18 years of age. This in part explains, in my view, the liberation she felt in being able to pursue her campaign more vigorously.

18.In contemporary society it is difficult to think of any allegation against a man or a woman which attracts greater public opprobrium than one of sexual abuse against a child. Where these allegations are proved that public censure is entirely understandable. Here allegations are not proved. The responsibility of mature adults is to take such complaints seriously, but to avoid rushing prematurely to judgement. The Reverend Gibbs believes that, faced with the onslaught of his ex wife’s allegations, his Church, his friends and his colleagues have done precisely that, moved ultimately to judgement against him. They have, he believes, succumbed to the openly malevolent objectives of his ex wife to discredit him publicly and to attack his position in the Church.

19.Mrs Gibbs does not deny any of this. She accepts that she sent the emails, she asserts, unequivocally that she does not think her husband should be part of the Church. She believes that there has been ‘perjury’ and ‘sexual abuse’ and she believe it is her bounden duty to expose that, notwithstanding the history of the litigation that I have taken time to set out.

20.Like DJ Hayes, now 16 years ago, I have no doubt that the mother has come to believe that what she asserts is true. Again, it requires to be said: neither of the party’s children, both well into adulthood, has ever made a complaint to the police or been subject to investigative ABE interview; neither has appeared before, or presented written evidence to a Court alleging abuse. There is no extraneous medical evidence pointing to abuse. Mrs Gibbs, when represented, as I have said, by experienced counsel before a judge of this division, readily accepted that the evidence before the court could not, even on the civil standard of proof, establish a finding. At risk of repeating myself: there has been no finding of sexual abuse; no finding of perjury against the father; no evidence produced either in 2003 or in the years that followed that would be likely to establish such findings.

The father made an application to the Family Court, both for permission for he himself to be able to produce material from the family Court proceedings to show that there had been no suspicion or findings that he had abused his children, and also to obtain an order to make the mother stop doing this.

Up to that point, the mother had cleverly exploited a loophole and could not be punished for her behaviour. But once the order was made, she had to then comply with it because the loophole had been closed. This is where mother made a dreadful error, because within 24 hours of Roberts J making an order to stop mother’s behaviour

On 19th June Mrs Gibbs appeared (in person) before Roberts J in response to the father’s application for permission to disclose material from the Children Act Proceeding into the public domain and to prohibit the mother from further defamatory publication. Paragraphs 10 and 11 of the Orders made that day, which were reinforced by penal notices, state:


10: Until further order, the Respondent must not disclose, disseminate, or publish any information about these proceedings concerning the Applicant, or any proceedings in the Family Court that have involved the parties, and any allegations made within the context of proceedings in the Family Court, whether by print, electronic form, or on the world wide web and should not instruct, encourage or in any way suggest that another person should do so.

11: Until further order, the Respondent shall not copy any third party into her correspondence with the Applicant’s solicitor, save her own legal advisor.

She had breached that order

22.These provisions make it clear that the respondent (mother) must not disclose or publish any information generated from any Family Court proceedings. The objective of the order was to disable Mrs Gibbs from further denigrating the father’s reputation. She is unapologetic about what happened thereafter. Within 24 hours of Roberts J’s order Mrs Gibbs was barraging rafts of individuals with her unsubstantiated allegations. There were, by 6.45am on 20th June, a hundred further recipients to her allegations. The schedule below sets out the breaches of the order, each of which is admitted by Mrs Gibbs.

In respect of paragraph 10

i) Email at 06:45 on 20.06.17 to circa 100 recipients (at C309-C310);

ii) Email at 07:08 on 20.06.17 to Rev Horton and copied to circa 100 others (at C311);

iii) Email at 20:11 on 20.06.17 to Mrs Poxon and copied to circa 100 others (at C332-C333);

iv) Email at 20:16 on 20.06.17 to President of Methodist Conference and copied to circa 100 others (at C334-C335);

v) Email at 06:56 on 21.06.17 to Prof Jay and copied to circa 100 others (at C324-C325);

vi) Email at 07:05 on 21.06.17 to George Freeman MP and copied to circa 100 others (at C326-C327);

vii) Email at 22:58 on 21.06.17 to President of the Methodist Conference and copied to circa 100 others (at C336-C337);

viii) Email at 08:43 on 22.06.17 to circa 100 recipients (at C338-C339);

ix) Email at 02:39 on 23.06.17to circa 100 recipients (at C340-C341);

x) Email at 03:00 on 23.06.17 to Mrs Poxon and copied to circa 100 others (at C342-C344);

xi) Email at 06:47 on 23.06.17 to Mrs Poxon and copied to circa 100 others (at C344-C345);

xii) Email at 11.23 on 24.06.17 to Rev Horton and copied to 100 others (at C346-C347);

xiii) Email at 16:45 on 24.06.17 to Mrs Poxon and copied to 100 others (at C348-C349);

xiv) Email at 05:57 PM on 24:06.17 to circa 100 recipients (at C329-C330);

xv) Email at 17:36 on 25.06.17 to circa 100 recipients (C355-C356);

xvi) Email at 17:43 on 25.06.17 to Mrs Poxon and circulated to circa 100 others (C357-C358);

xvii) Email at 18:42 on 25.06.17 to circa 100 recipients (C359-C360);

xviii) Email at 06:14 on 26.06.17 to circa 100 recipients (C352-C354).

In respect of paragraph 11

xix) Email at 20:00 on 20.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C321);

xx) Email at 06:41 on 21.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C322-C323);

xxi) Email at 07:36 on 22.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C328);

xxii) Email at 17:57 on 25.06.17 to Applicant’s solicitor and copied to 105 others (at C350-C351).

That put her at risk of a custodial sentence. Hayden J told her that she was entitled to free legal representation, and she declined it. He told her that he did not want to send her to prison and that an alternative would be for her to genuinely promise not to do this in the future and stick to it, she refused.

23.Mrs Gibbs appears before me today unrepresented. I have advised her at least twice that I have it within my power to order that criminal legal aid be provided so that she can be represented by counsel. She does not, she tells me, wish to be represented by counsel. She only wants to explain to me that it is her duty to stand up to what she perceives to be perjury. She has looked at the core material with me, she has been sent the bundle of documentation in advance, though she has not brought it with her to court. She tells me, she hardly needs it for she ‘has lived it’ and most of the documents relate to material drafted and sent by her.

24.This is an application to commit her to prison for breach of those orders. The breaches are not contested. Instinctively, the last thing I would want to do would be to send Mrs Gibbs to prison. I advised her of the options available to this court, one of which was to suspend a sentence of imprisonment on her undertaking that she would comply with Roberts J’s order. She declined to do so unless, as she put it, and I repeat verbatim, “This court could give assurance that it can require a judicial review of the background facts of the case.”

25.This case has been exhaustively litigated. Three senior judges have reviewed the scope of the protective framework, and Mrs Gibbs has flagrantly undermined or actively disobeyed Court Orders. She tells me that she has come to Court expecting to go to prison and is ‘happy, proud, and completely at peace to be in contempt of court’. In an email directed to the President of the Family Division she states ‘short of killing me or having me killed, you will not silence me…’

Even after sentencing her to prison for 9 months, Hayden J explained to her that she could apply to purge her contempt (i.e say sorry, promise not to do it again and go free) and she declined
this. Hayden J says “I do not find it necessary to repeat her defiant response”


[I know that I’m going to get comments about ‘gagging’ and ‘free speech’ and that she was sent to prison for speaking ‘the truth’ and for trying to protect her children. I would have no love for father if he had done what mother accused him of. But he obviously hasn’t. IF HE HAD, there’s no way that the mother would have agreed over and over again to drop the allegations against him. Please read the portions of the judgment that make it really clear that this mother had had many opportunities to place evidence of abuse before the Court and failed to do so time after time. And imagine for a moment being in the shoes of a father who has done nothing wrong, but is finding thousands of poison pen letters circulating to almost everyone he has ever met accusing him of the most dreadful things you can contemplate. You can accuse anyone of anything in a Court hearing and be free of libel – make your allegations and have the evidence for them tested. But don’t pass up that opportunity and write poison pen letters]

Here come the Hofstetter

Extraordinary, juice like a strawberry

The Court of Appeal in Re S-F (A child) 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/964.html

Manage to go through the gears from – it might be helpful to see the Agency Decision Maker’s Hofstetter decision record as to how the decision as to adoption was reached to ‘it is good practice for the LA to provide that’ to ‘it is bad practice if they don’t provide it’ in the space of a single paragraph.

So from here on out, it is bad practice for a Local Authority not to file and serve the Hofstetter record when they lodge a placement order application.

Also, I’ve got this gold ring with writing on it that I need you to get rid of if you have a moment, the one that says “One ring to rule them all” – so if you could just dispose of that for me, that’d be just peachy. Thanks!

One does not simply walk into Mordor Family Proceedings Court…

(The Hofstetter document case http://www.bailii.org/ew/cases/EWHC/Admin/2009/3282.html Hofstetter and Another v London Borough of Barnet 2009

132.I appreciate that the Agency Decision Makers are very busy and the potential advantages both in saving time and resources, and in avoiding arguments based on differences of expression, that flow from them adopting the reasons for a recommendation. But in my view before that course is taken the Agency Decision Maker must consider with care, in the light if his or her role and the wider information he or she has, which of the reasons underlying the recommendations he or she is adopting and why this is the case.

133.Perhaps particularly when, as here, the recommendation for the qualifying determination and the decision in the case are the same, I suggest that, with a view to ensuring that the Agency Decision Masker approaches the making of the decision in the case, and thus a reconsideration of the case, with an open mind, and as the decision maker, it would be a good discipline and appropriate for him or her to:

i) list the material taken into account,

ii) identify the key arguments on both sides,

iii) ask whether he or she agrees with the process and approach of each of the relevant panels and is satisfied as to its fairness, and that both panels have properly addressed the arguments,

iv) consider whether any information he or she has that was not before a relevant panel has an impact on its reasons or recommendation,

v) identify the reasons given for the relevant recommendations that he or she does, or does not, wish to adopt, and

vi) state (a) the adopted reasons by cross reference, repetition or otherwise and (b) any further reasons for his or her decision, when informing the prospective adopters of that decision.

This is a fact and issue sensitive exercise. But in my view it, or a similar approach, should assist the Agency Decision Maker to identify the issues, the factors that have to be weighed and importantly his or her reasons (rather than those of others) for the decision that he or she is charged with making as the Agency Decision Maker )

Here is what the Court of Appeal say (in Re S-F) about it now being bad practice if the ADM minutes of the decision making process are not filed and served. Note the line about the record being ‘susceptible of cross-examination’


11. The permanence report and the agency decision maker’s record of decision contain the required analysis and reasoning which is necessary to support an application for a placement order. They are disclosable documents that should be scrutinised by the children’s guardian and are susceptible of cross examination. It is good practice to file them with the court in support of a placement order application. Given their importance, I would go further and say that it is poor practice not to file them with the court because this is the documentation that records in original form the pros and cons of each of the realistic care options and the social work reasoning behind the local authority’s decision to apply for a placement order.

Ryder LJ also reminded practitioners about Re B-S (in case anyone has forgotten it) but does so with punchy language

The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for a child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

And stresses that the evidence and analysis has to be centred around the particular child, not merely relying on general thinking for children of similar ages and characteristics. What is right for THIS child, and why is that said to be right?

In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.

The Court of Appeal also criticised the LA for stopping their family finding once they were aware that an appeal was pending – the appeal took ages to be heard, and therefore the Court didn’t have up to date evidence about the family finding process. (Candidly, I’d have done the same as this LA – you’re not going to find any matches for a child whilst there’s an appeal pending, and you can’t do anything with a potential match even if you find one. But don’t do that in the future – keep up the fruitless and time-consuming search for a match, just so you can tell the Court of Appeal that no prospective adopters want to be matched with a child whilst they know there is an appeal pending and that nobody knows how long the appeal process will take)

5. It is a matter of regret that in the six months that has intervened between the order complained of and the appeal hearing the local authority did not see fit to undertake concurrent planning in order that they might know about the success or likelihood of success of a search for an adoptive placement. The appeal after all is being heard at a time when the local authority would have abandoned its search for adoptive carers, the child having been with his foster carer for six months. The irony of that circumstance appeared to be lost on the local authority until it was pointed out. It is no good saying that appeals should not take so long. I am sure everyone would agree but local authorities have statutory care planning and review obligations and that includes consideration of the adverse impact on a child of delay. If it is the case that a welfare analysis necessitated a time limited search for adoption, the same analysis should inform the local authority’s planning process over the same time period

Watching the detectives

This is a quirky little case. I should tell you at the outset that we don’t get a conclusion and all of the answers. Half of the answer, with perhaps another half to come at a later stage.

The question arose in care proceedings. One of the issues in the case was whether the mother had genuinely separated from the father, or whether they were simply pretending to have done so and carrying on the relationship in secret. This happens from time to time in care proceedings.

The Local Authority paid a private investigator to watch the father, and the private investigator produced evidence that the father was staying overnight at the mother’s home, for about a week. (However, the evidence did not show whether or not the mother was also there, allowing the parents to run a defence that the father had been staying at that property but that mother and the children had not been)

Two legal issues arose in the case.

1. Whether the LA had obtained the proper consents under the Regulation of Investigatory Powers Act (RIPA) to conduct covert surveillance of a person, whether this was a breach of article 8 of the Human Rights Act and thus whether damages should flow from it. (which is the really interesting bit of the case and which SPOILERS doesn’t get answered)

and

2. If there was a failure to obtain the proper RIPA consents, is the evidence inadmissible?

The latter is of interest, because it may impact on other scenarios where evidence is improperly obtained (and of course, we are thinking here of clandestine recordings whether audio or video, done without the knowledge of those being filmed)

We DO get an answer to that.

This is a decision of a circuit Judge, so it is not binding case law, but it is an interesting overview of the law (and I agree with the conclusions)

Re E and N (no2) 2017

http://www.bailii.org/ew/cases/EWFC/OJ/2017/B27.html

2. In the course of the hearing before me the applicant local authority sought to rely on surveillance evidence which covered the period of 28 and 29 April 2017. The evidence showed that the father had stayed at the mother’s address in circumstances where the parents had maintained that they have been separated since November 2016. The local authority accepted that the evidence did not show that the mother was present during the aforementioned period. The local authority relied on this evidence as part of a wider canvas to prove an allegation that the parents have remained in a relationship despite their maintained assertion that they have separated.

3. Both parents agreed that due to the father’s difficult personal circumstances at that time, with the mother’s permission, he stayed at the mother’s address. The mother was staying at her own mother’s property and she was not present when the father stayed at her address.

4. At the conclusion of the hearing the parties made detailed submissions. This included submissions about the surveillance evidence and the local authority’s asserted overzealous approach to the parents in attempting to prove its case. The parents invited me to make a number of findings in this regard. I decided to give a separate judgment on these issues so as not to jeopardise an expeditious resolution to the last hearing before me.

5. The local authority in its written submissions dated 7 June 2017 and refined in its written replies to the parents’ submissions dated the same, invites me to;

a. Endorse the decision to conduct such surveillance as reasonable, or to make no findings in circumstances where the court has not received any evidence on this issue, or

b. Make no comment about it (given that it does not go to the central issue of the disputed findings), or

c. Find that it would be inappropriate to make any findings on the mother’s submissions that go to or are capable of going to the issues of alleged breaches of her Article 8 rights, or

d. Transfer the decision on this issue to a different tier of the judiciary, and

e. Confine my judgment to the issues arising out of the hearing.
6. The mother having taken the lead on these submissions and supported by the father, invites me to find that;

a. The actions of the local authority were misjudged and deeply unfortunate given the duty on the local authority to act in a fair way within litigation against individuals,

b. The authorisation for the surveillance (if any) and the surveillance itself were not fair, reasonable or proportionate,

c. The local authority has not complied with the terms of the Act (below),

d. The mother has been unlawfully subjected to surveillance;

e. This is an example of an over-zealous prosecution of the local authority’s case against her,

f. The directed surveillance is a breach of her rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950).

The father further submitted that there is no justifiable reason or purpose for the surveillance to have extended to following the father to the reception area at the contact centre and at the father’s solicitors’ offices.

The Judge looked at the safeguards about agencies of the State carrying out covert surveillance of members of the public, that are set out within RIPA – the surveillance needs to be properly authorised under s28, and the officer authorising it must be approved under s30 to do so. (Here, what seems to have happened is that a senior manager of Children’s Services authorised it, which is not RIPA compliant)

28 Authorisation of directed surveillance.

(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

(2)A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3); and

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;…

(4)The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

(a)consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and

(b)is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation

The real point of this is that the authorisation of covert surveillance is firstly not a rubber stamp, and secondly, the decision about whether or not to authorise is taken by a RIPA officer someone who is trained in the application of the Act and the principles within it and not have a stake in the outcome of the investigation – i.e to scrutinise whether cover surveillance is really appropriate and proportionate.

The Judge did not reach a conclusion on whether the LA had failed to comply with RIPA or whether the parents article 8 rights had been breached – they would have to issue a claim and have proper evidence about this issue before a Court could rule on it. However, from what is said, I don’t think that what the LA did complied with RIPA (That doesn’t mean that they DIDN’T – they may have got a RIPA authorisation and not put that before the Court – though that seems a strange decision if so…)

In addition to the surveillance report, the only direct evidence in this connection is a document entitled “REQUEST FOR AUTHORISATION TO COMMISSION A PRIVATE INVESTIGATOR”. This documents was signed on 26 April 2017 by the “Director of Children and Learning Skills”. It is far from clear if the signature is that of the person making the application or the person authorising the request. On the face of it, the form does not appear to be a form authorising surveillance. This illustrates the evidential difficulties in the relief that the parents are seeking. These are exacerbated by further fundamental difficulties which include the lack of any formal application and the consequential lack of any formal reply. Therefore, having regard to the guidance that I have detailed above and the evidential difficulties that I have identified, in my judgment it would be entirely inappropriate for me to make any findings in respect of the local authority’s conduct, decision making processes and any alleged breaches of the parents’ Article 8 rights. Similarly, in my judgment it would also be entirely inappropriate for me to endorse the local authority’s actions. If there is to be such an enquiry into these issues, it must be undertaken in accordance with the guidance that I have set out above and by way of a formal application following which the court will give the necessary directions. Inevitably this will include the filing and service of appropriate evidence.

Anyhow, that whole issue will have to wait for part 3, if there is to be a part 3.

What we are left with is whether evidence that may have been obtained improperly is capable of being admissible, or whether it should not even get before the Court if it was obtained improperly.

15. However it is clear that the surveillance evidence is relevant to the issues in the case. Goddard LJ in the Court of Appeal decision in Hollington v. F. Hewthorn and Company Limited, and Another [1943] KB 587, at 593 and 594 explained the test in the following terms;

“Before dealing with the authorities, let us consider the question in the light of modern law relating to evidence … We say “modern law” because in former days, it is fair to say, the law paid more attention to competency of the witnesses that to the relevance of testimony …

It was not till the Evidence Act. 1843, that interested witnesses, other than the parties, their husbands and wives were rendered competent, and by the Evidence Act, 1851, the parties, and by the Evidence Act, 1853, their spouses, were at last enabled to give evidence …

But, nowadays, it is relevance and not competency that is the main consideration, and, generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded”.

Furthermore, the test for deciding “relevance” was succinctly expressed in the House of Lords decision by Simon LJ Director of Public Prosecution v Kilbourne [1973] 1 All ER 440, at 460 J in the following terms;

“Your Lordships have been concerned with four concept in the law of evidence: (i) relevance; (ii) admissibility; (iii) corroboration; (iv) weight. The first two terms are frequently, and in many circumstances legitimately, used interchangeably; but I think it makes for clarity if they are kept separate, since some relevant evidence is inadmissible and some admissible evidence is irrelevant in the sense that I shall shortly submit). Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.”
16. Keeping the concepts of “relevance” and “admissibility” separate, I will first deal with the issue of relevance before turning to consider the issue of admissibility. The factual matters that the local authority sought to prove included an allegation that the parents remain in a relationship. Therefore on a cursory analysis of the facts that remained in issue and required the court’s determination, it is clear that the surveillance evidence was relevant to this allegation. Indeed no party has sought to submit that it was not.

17. As to the question of admissibility, I have made it clear earlier in this judgment I am not making any findings in respect of the local authority’s conduct or whether the surveillance is compliant with the provisions of the Act. However the questions of compliance and legality have a close connection to the question of admissibility. There is no automatic bar to admissibility of evidence that has been improperly or illegally obtained. In the context of family law, this was considered and illustrated in the Court of Appeal decision in Imerman v Tchenguiz and others [2011] 1 All ER 555where at paragraph 177 Lord Neuberger MR concluded that;

“Accordingly, we consider that, in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, and will take into account the importance of the evidence, “the conduct of the parties”, and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.”

A Local Authority v J [2008] EWHC 1484 (Fam) is an example where surveillance evidence was admitted by the court, although Hogg J in this case was not asked to consider the provisions of the Act.

Furthermore, Re DH (A MINOR) (CHILD ABUSE) [1994] 1 FLR 679 whilst predating the Act and concerning an individual, Wall J admitted the covert recording of a child by the child’s father.
18. In these circumstances I have assessed the surveillance evidence to be relevant and admissible. Accordingly I have admitted the same as evidence in the case. I made the relevant findings in my first judgment after considering the surveillance evidence together with a number of other pieces of evidence and have considered it in the context of the totality of the evidence that was before me. However the issue of admissibility of evidence is entirely separate to the requirements of public authorities and public bodies to comply with statutory provisions that regulate their conduct and their duties to the public. In circumstances where a public authority or public body has acted in breach of statutory provisions and where any evidence that is adduced as a consequences of those actions is admitted by the court, this will not absolve the public authority or body from its duties under any relevant enactment

Evidence, if it is relevant, can still be admissible even if it was obtained unlawfully. I have wondered for a long time whether Re DH’s principle survived the HRA. As this is not precedent, and of course, a Circuit Judge can’t overrule the principle that Wall J set down in a superior Court, but it is an interesting debate that might be had at a later stage.

The Judge draws the interesting distinction that whilst the evidence itself might be admissible, that doesn’t stop a Court taking action about the improper or unlawful conduct – just because they got to use the evidence, doesn’t mean that they get away scot-free if they behaved badly in obtaining it.

Morocco Mole too…. inspired by my trip to Marrakech

Superman or Green Lantern ain’t got nothing on me

 

 

This is just an update about the book. And if you don’t know that I’ve written a book, then you now have that valuable piece of information. Want to get a copy?

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

 

Exciting bit. Every last i has been dotted and t crossed. The copy edit has come back and I’ve made all the necessary adjustments and signed the text of the book off.

Having not been through this process before, it was an eye opener – as well as just checking spelling and grammar, the copy editor goes through each line and scene to make sure it is consistent and working. They keep track of which characters are in each location during a scene and make sure that someone who I said a page earlier was in the kitchen isn’t saying anything in the breakout area unless I’ve shown them come back in. That’s really easy to lose when writing, especially when you are making changes and don’t spot that moving someone around on page 19 has ripples on page 24. Same with props – if I haven’t said that someone is holding a deck of cards on page 36, they can’t start shuffling it to pass the time on page 38.  Continuity, basically. Important.

 

I’m really happy with the way the book reads now. It isn’t perfect, because I’m not actually F Scott Fitzgerald (and even then, frankly, he didn’t hit home runs every time) but the flaws in it are my flaws and I’m content with how it is. Really looking forward to you all reading it.

In my acknowledgments at the end, I talk about the fact that you can’t use songs in a book without clearing the use of lyrics with the band/artist, which is time consuming and expensive, so I just haven’t done it. I then said that if anyone wanted to get in touch I’d give them a playlist.

Then I thought, what the hell, I’ll do a playlist for the book anyway (it is spoiler-free, I haven’t picked songs like “Turns out the Cuckoo Clock WAS the key, the whole time” or “Oh, so they’re SISTERS” – fake spoilers those)

If you have Spotify, this should take you to the playlist where you can listen to it.

If you don’t, here’s a track list – so they are songs that make me think about the characters and scenes and mood of the book – honestly, there aren’t any spoilers, and the track-listing is not a chronological order of the book, so you can listen without ruining everything. And yes, I cheated by having a Pixies cover of a Jesus and Mary Chain song so I could get JAMC in twice…

Enjoy

1. Sunshine Superman – Donovan

2. Superstition – Stevie Wonder

3. Opportunities – Pet Shop Boys

4. Work Bitch – Britney Spears

5. Sour Times – Portishead

6. Baby Driver – Simon and Garfunkel

7. Hurt – Johnny Cash

8. Head On – Pixies

9. Still Ill – The Smiths

10. Jailbreak – Thin Lizzy

11. Monster – Imagine Dragons

12. Boom! Shake the Room – Fresh Prince

13. Elastic Heart – Sia

14. I’m Coming Out – Diana Ross

15. Sometimes Always – Jesus and Mary Chain

16. Chillout tent – Hold Steady

 

 

You know what I’m saying dog
Like cats and dogs
It was raining
It wasn’t raining
We were raving

Fasting for Ramadan and Court of Protection

 

An interesting Court of Protection case which might prove useful for other professionals.

 

IH (Observance of Muslim Practice) 2017

http://www.bailii.org/ew/cases/EWCOP/2017/9.html

 

Cobb J was presented with an application by the Official Solicitor on behalf of IH, a man of Muslim background who lacked capacity, for a declaration that IH should not have to fast during the period of Ramadan as would be culturally usual for Muslims who had capacity.

At the same time, IH’s family sought a direction that IH’s body hair should be trimmed.

 

 

  • There is no dispute that IH lacks capacity to make the decisions which are the focus of these applications; the diagnostic and functional criteria contained in, respectively, sections 2 and section 3 MCA 2005 are clearly established on the evidence. Specifically, to have capacity to make the decision to fast for Ramadan, a person would be expected to understand (section 3(1)(a)):

 

i) What fasting is; the lack of food and liquid, eating and drinking;

ii) The length of the fast;

iii) If for religion, for custom (family or otherwise), for health-associated reasons, or for other reasons;

iv) If for religion reasons, which religion and why;

v) The effect of fasting on the body;

vi) What the consequences would be of making a choice to fast and the risks of choosing to not fast or of postponing the decision.

 

  • Dr. Carpenter is clear that IH is not able to understand any of the six points listed in [20] above. It is further agreed between the parties, having received Dr. Carpenter’s advice, that, given the nature of his disability, IH will not ever acquire capacity to make such decisions (section 4(3)).
  • To have the capacity to make a decision in relation to the trimming or removal of pubic or axillary hair for religious or cultural reasons, a person would be expected to be able to understand:

 

i) Which parts of the hair are being removed – pubic, axillary, perianal, trunk, beard, leg, torso, or head;

ii) Whether the reason for the hair trimming/removal is religious, for the maintenance of good hygiene, custom, or some other;

iii) If for a religious reason, which religion and why;

iv) What the consequences would be of making a choice to have hair trimmed/removed, and of not trimming/removing the hair.

 

  • Dr. Carpenter is clear that IH is not able to understand any of the four points listed in [22] above. He opined that while IH may give the superficial appearance of engaging in prayer, by responding to the familiar practice of the adults in the family turning to prayer (he holds his hands up, or places them behind his ears), he has no understanding of the purpose or higher meaning of the act of prayer. It is further agreed between the parties, having received Dr. Carpenter’s advice, that, given the nature of his disability, IH will not ever acquire capacity to make such decisions (section 4(3)).

 

 

Cobb J outlined the religious principles involved in these issues, and in particular that the Islamic faith already has provision for those who lack the ability to make their own decisions and who are therefore exempt from obligations that might be placed upon others.

Islamic religious observance for those without capacity.

 

  • The Five Pillars of Islam (‘shahada‘ [faith], ‘salat‘ [prayer], ‘zakat‘ [charity], ‘sawm‘ [fasting] and ‘hajj‘ [pilgrimage]) are the foundation and framework of Muslim life, and are regarded as obligatory for Muslims. Not all actions or observances within Islam, however, are obligatory; some are recommended, others optional, some actions are reprehensible, and others prohibited. In Islam, a Muslim will commit a sin if he/she violates something which is obligatory or prohibited, will be rewarded for carrying out something which is recommended; a minor sin is committed for not doing something which is recommended, and for doing something which is reprehensible.
  • Significantly for present purposes, Islam stipulates different arrangements for those who lack ‘legal competence’. ‘Legal competence’ in Islamic terms is defined by Dr. Ali as “a capacity or a potential for mental functioning, required in a decision-specific manner, to understand and carry out decision-making. Competence is always presumed; its absence or inactivity has to be affirmed by a court.” It is normal (per Dr. Ali) to defer to medical practitioners or experts on the issue of legal (mental) competence; their opinion would be likely to be deemed valid and authoritative in the Shari’a. The evidence filed in these proceedings, most notably from Dr. Carpenter, would be sufficient, I was advised, to form the basis in Islamic law to declare IH to be “legally incompetent”; all parties agree that IH is not legally competent under Islamic law.
  • Dr. Ali advises that the legally incompetent person (along with the terminally ill, the disabled and minors) is perpetually in a heightened state of spirituality, hence he or she is exempt from practising the major rituals of Islam including adherence to the Five Pillars.
  • On the specific issues engaged in this application, Dr. Ali advises as follows:

 

Fasting in Ramadan

i) Fasting during the daylight hours of Ramadan is one of the Qur’anically mandated obligations for all Muslims who are legally competent, and who are not exempt. Certain groups are exempt from fasting; they include the incapacitous, minors, the ill, pregnant women, those who are travelling. Those who are exempt are not morally culpable for not keeping the daylight fast.

Trimming or shaving of pubic and axillary hair

ii) Cleaning pubic or axillary hair is a religiously sanctioned practice deemed in Islam to be a normal human ‘right’ (‘fitrah‘);

iii) The rationale is founded in a quest for ritual purity and cleanliness; (the aphorism ‘cleanliness is next to godliness’ is of course familiar to many religions);

iv) The removal of pubic and axillary hair for the legally competent Muslim is ‘mustahab‘ or ‘recommended practice’; while it is not obligatory (‘wajib‘) it would be viewed as a ‘minor sin’ if unattended (see [26] above);

v) As IH does not have ‘legal competence’ it is not even recommended practice for him (see [28] above); there is no obligation on his carers to carry out the removal of IH’s pubic or axillary hair, and his religious rights are not being violated by not attending to this;

vi) It is highly recommended and praiseworthy for carers (of whatever religion) to shave or shorten a patient’s pubic or axillary hair, in the same way as it is for them to assist the incapacitous in other routine care tasks;

vii) There are differences of opinion between Islamic commentators as to the preferred manner of hair removal; any method would be deemed acceptable;

viii) The time limit within which the hair needs to be cleaned or trimmed or removed is also a matter of assorted opinion, though the majority of commentators favour a 40-day limit;

ix) While it would be not permissible for a competent Muslim to expose their genitals, it would not be contrary to the Shari’a for a Muslim without capacity who requires assistance with his care, for his carers to clean his genitals or shave them; that said, “carers must be sensitive that the client’s dignity is not violated”;

x) ‘No hurt no harm’ is a cardinal principle of Islamic bioethics; avoidance of harm has priority over the pursuit of a benefit of equal or lesser worth. Therefore it would be wrong to create a situation in which observance of Islamic custom would, or would be likely to, cause harm to the person (i.e. IH) or his carers; if there is a risk of harm, then this principle would absolve even the capacitated person from performing an obligatory requirement.

Is it in IH’s best interests to be relieved of his obligation to fast during Ramadan?

 

  • As indicated above ([29](i)) there is no Islamic obligation on IH to fast given his lack of capacity. IH has never been required to fast by his family, and has not fasted while in their care. He has not, thus far, fasted while in the care of the Local Authority.
  • If this had been a case in which IH had some appreciation of the religious significance of fasting in Ramadan (as a means to attaining taqwa, i.e. the essence of piety, protecting one’s self from evil) there may be said to be some benefit in him doing so. But he has no such appreciation.
  • IH, I am satisfied, would not in fact understand why food and water was being withheld for the daylight hours in the month of Ramadan; the absence of food/water would be likely to cause him stress, or distress; this may cause him to become irritable and/or aggressive in the ways described above ([13]) increasing the risks to staff and himself. There is some minor anxiety that fasting and/or mild dehydration would increase the side effects of any one of his multiple medications. It is plainly not in his interests that he should fast, and the declaration will be granted.

 

Is it in IH’s best interests for his pubic and axillary hair to be trimmed?

 

  • Health or social care bodies who make the arrangements for the care for adults who lack capacity owe an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of the religion of P, and to facilitate P’s access to, or observance of religious custom and ritual. All forms of liturgy should, where practicable, be accessible to persons with disabilities. This view is consistent with Article 9 of the European Convention on Human Rights, and the right enjoyed by those who lack capacity as for those who have capacity, to freedom of religion and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. While no specific protection in this regard appears to be offered by the UNHR Convention on the Rights of Persons with Disability, the rights enshrined in the ECHR (above) “are for everyone, including the most disabled members of our community” (Baroness Hale in P (by his Litigation Friend, OS) v Cheshire West & Others [2014] UKSC 19).
  • The duty outlined above is consistent with the expectation that in best interests decision-making for someone who lacks capacity, the court will take account, so far as is reasonably ascertainable “the beliefs and values” of that person which would be likely to influence his decision if he had capacity (section 4(6)(b)); these must include, where relevant, religious beliefs and values. This is illustrated in the instant case by the fact that the Local Authority provides IH with a Halal diet even though IH himself would not know that the food he ate was Halal, or the significance of the source and/or preparation of the food. The Local Authority recognise the need to respect IH’s religion.
  • Of the “relevant circumstances” which require consideration in deciding on this issue, TH has placed the religious significance of the proposed procedure at the centre of the decision-making, and I turn to this first.
  • The frame of reference for consideration of the issue has altered since the start of the litigation. At a best interests meeting on 9 September 2016, TH advanced the proposition that there was a religious “duty” to remove or shave IH’s pubic and axillary hair. In the same manner, his early written evidence (see [14]) referred to the “very essential” and “compulsory” nature of the activity, a view pronounced apparently on the authority of an Imam. This indeed is how Roderic Wood J characterised the issue, in passing, in the case of A Local Authority v ED & others [2013] EWCOP 3069, in which he referred (at [12]) to a “duty” to remove the pubic hair of a Muslim woman (albeit recognising the exemption for the incapacitous). Dr. Ali’s evidence, on which he was not challenged, was to different effect.
  • In short, as is clear from [29](v) above, there is simply no religious duty, or obligation on a person who lacks capacity (‘legal competence’ in Islam) to trim or shave his or her pubic and axillary hair, or on his carer to do so for them. IH does not need to acquire this state of ritual cleanliness in order to derive spiritual benefit as he already occupies an elevated status by virtue of his incapacity. Moreover, I am satisfied that IH himself derives no religious ‘benefit’ by having the procedure undertaken, as he would not understand its religious significance. It is of no consequence to me, in the consideration of these facts, that the carers may be blessed in the eyes of Islam in undertaking a ‘praiseworthy’ activity by trimming the hair; their interests are not my concern.
  • I agree with TH, and with Mr. Jarrod, when they separately expressed the view that if IH had capacity he probably would have observed this custom.

 

And in conclusion

Conclusion

 

  • I have faithfully endeavoured to consider these issues from IH’s point of view, while ultimately applying a best interests evaluation. IH has a life-long developmental condition and has never had the capacity to understand the tenets of Islam; the benefits of adherence to such rituals do not obtain for him, but for others. The fact is that by reason of his disability IH is absolved of the expectation of performing this recommended procedure, and there is no other clear benefit to him. The trimming of the pubic and axillary hair would serve no other purpose. I am anxious that IH should be spared additional stresses in his life, and wish to protect him and the staff from the risk of harm – an approach which itself has the endorsement of Islamic teaching (see [29](x) above).
  • For those reasons, and having reviewed the circumstances extensively above, I have reached the conclusion that:

 

i) The parties are right in agreeing, and I confirm, that IH should be relieved of the obligation to fast during Ramadan;

ii) It is not in IH’s best interests that his pubic and/or axillary hair be trimmed in accordance with Islamic custom for capacitous followers of Islam.

 

 

 

 

Request for support

Quick trigger warning – if you’ve been through painful experiences yourself recently, then this post may be too raw and painful, and as it is not my intention to make life harder for anyone who is working through such trauma, the warning is here to suggest that you close this one down, and come back to the next post, which will probably be about 80s pop, or Mary Mungo and Midge or whatever.

Some of you may have read @SurviveCourts blog, Surviving Safeguarding, where she talks about her experiences of being on the hard end of the social work experience, rather putting all our gripes of trolleys with knackered wheels, or endless frustration with laptops and workloads into perspective. Some of you may have had the pleasure of seeing her speak, which is truly an inspirational experience.

I find myself lucky enough to have got to know her a little, and I’m proud and honoured to think of her as a friend. Though she be but little, she is fierce.

So it was a huge shock to learn that she’d gone through a recent tragedy, and like most of those who have come to know her and hold her in high regard, I wanted to do something, even a tiny something, to help.

Louise Tickle (or as we should now all call her “The Mail on Sunday’s Louise Tickle” as apparently they now own her, in some sort of Jonathan Pryce East India Company style arrangement) got the ball rolling on this, and she says everything that I wanted to say, but better. Because she’s a proper grown up writer, and not a hack like me.

If you can visit the link and help out at all, even in a small way, it would mean a lot to us all.

https://www.justgiving.com/crowdfunding/survivingsafeguarding