Author Archives: suesspiciousminds

Application to dismiss a Guardian for bias

Posted on June 29, 2016 by suesspiciousminds

Very rare application this, and one that should interest both professionals and parents alike.  It also raises important issues about the fine detail in the construction of a Position Statement at an interim hearing, particularly for lawyers representing the child.

 

QS v RS & Another 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1443.html

 

This was a case in the High Court before MacDonald J  involving international adoption – two people had adopted a child in Nepal, the girl now being ten years old and her ‘parents’ were British citizens. (I’ll drop the air-quotes from here on to keep it simple).  Her parents moved with her to Dubai, and applied for British Citizenship and obtained that for her.  The parents later split up and there was an argument as to whether the child should stay in Dubai with father, or be in England with mother. So it isn’t a run-of-the-mill care case, but some of the general principles applied by the Court and the issues it throws up are relevant.

The Court appointed a Guardian to make enquiries into the case and to represent the child in the proceedings.

As part of the process, the Court had directed the Guardian (who was a replacement for the initial Guardian who left the service) to file and serve a Position Statement commenting on the outcome of a meeting with T, the child.  This wasn’t the final hearing, nor the final Guardian’s report.

The Guardian’s position statement included the following :-

 

“The children’s guardian takes the view from talking to T and interpreting her wishes and feelings captured in her ‘How it looks to me’ submission annexed as MH1 that her family life is firmly rooted in Dubai and up until now this appears to have worked for her, even in the absence of M for three years”

Now, not all of the evidence had been received by that point, and it seems that some of the material which had also been directed to be produced by the parents and their representatives had not yet made its way to the Guardian.  In fact, looking at the end of the judgment, it seems that the Guardian’s Position Statement was drafted and filed BEFORE the due date, and thus ahead of the father’s evidence.  The Judge criticised that decision to file early and hence out of sequence.

The mother took the view that the Guardian, who would be in a powerful position to make final recommendations, had by giving that clear view of the case reached a decision and conclusion before seeing all of the evidence and that there was a perception of bias.

 

[I must briefly comment that in a EVERY set of private law proceedings I ever did for parents, my client always told me without fail having met the CAFCASS officer that the CAFCASS officer had taken against them and was siding with the other parent. Fifty per cent of times, when we got the report and it didn’t recommend what my client wanted, they would say “See, told you?” – the other fifty per cent they would say either “well, that surprised me” or “It just goes to show how strong my case is that even a biased CAFCASS officer didn’t dare go against me”.   Sometimes, there are valid reasons for being unhappy with a CAFCASS report – but actual evidence of bias is pretty rare.  When it is flawed, it is more likely to be as a result of shoddiness, lack of care, failure to double-check assertions or being rushed. Those things absolutely do happen, I’m afraid. ]

 

So mother applied to the Court to discharge the Guardian on the grounds of bias or apparent bias.

What’s the application in those circumstances?

 

  • FPR 2010 r 16.25 provides as follows in respect of the power of the court to terminate the appointment of a children’s guardian appointed under FPR 2010 r 16.4:

 

16.25 Court’s power to change children’s guardian and prevent person acting as children’s guardian

(1) The court may –

(a) direct that a person may not act as a children’s guardian;

(b) terminate the appointment of a children’s guardian;

(c) appoint a new children’s guardian in substitution for an existing one.

(2) An application for an order or direction under paragraph (1) must be supported by evidence.

(3) Subject to rule 16.24(6), the court may not appoint a children’s guardian under this rule unless it is satisfied that the person to be appointed complies with the conditions specified in rule 16.24(5).

 

  • FPR 2010 PD16A para 7.17 makes clear that where an application is made for an order under FPR 2010 r 16.25 the applicant must set out the reasons for seeking it and that the application must be supported by evidence.

 

 

The FPR (Family Procedure Rules) don’t go on to advise the Court on what criteria to apply when considering the application.

 

The Court therefore looked for guidance in the case law, to see what principles if any could be drawn from cases where Courts HAD removed Guardian’s or refused such an application.

 

When examining the almost identical provision in CPR 1998 r 21.7 dealing with the power to terminate the appointment of a litigation friend, Foskett J observed in Bradbury v Paterson [2015] COPLR 425 at [31] that the court’s discretion is a full one

 

[That’s a posh way of saying “It’s basically up to you Judge. Use the Force…”]

.

 

  • There are few authorities concerning the termination of the appointment of the children’s guardian. In Oxfordshire County Council v P [1995] 1 WLR 543, [1995] 1 FLR 552 Ward J (as he then was) allowed the application to terminate the appointment of the children’s guardian in circumstances where the mother had disclosed to the guardian that she had caused injuries to the child and the guardian was thereafter interviewed by the Police to obtain a witness statement from her to prove criminal charges arising out of the injuries, during which interview she disclosed the mother’s admissions without the leave of the court. Ward J concluded in respect of the guardian that “To encourage frankness on the part of the parents, she must be replaced even though her work in all other respects has been wholly admirable and my criticism of her is technical not substantial.”
  • In Re J (Adoption: Appointment of Guardian ad Litem) [1999] 2 FLR 86 the Court of Appeal refused an application to terminate a guardian’s appointment (made within the context of an application for permission to appeal an order appointing a guardian in adoption proceedings) notwithstanding that at a meeting following the cessation of her appointment in the care proceedings, but prior to her appointment in the adoption proceedings the guardian had expressed agreement to the proposal that the child be placed for adoption. In Re J Ward LJ held that it is untenable to assert that there is bias or the appearance of bias based simply on adverse views expressed in the course of long proceedings.
  • Further, in Re J Ward LJ agreed with the observation of the judge at first instance that, frequently, a children’s guardian holding a certain view can be persuaded under cross-examination to change their minds, that the “flexibility, rigidity, competence, balance, wisdom or other aspects of her conduct of the case are matters which the court will be invited to take into account when deciding whether to accept her evidence or recommendations” and that “Only in very rare circumstances can such factors disqualify a Guardian from acting at all“. Within this context I also note the observation of Sir Nicholas Wall in A County Council v K, C and T [2011] 2 FLR 817 at [117] that:

 

“The reasoning of the Cafcass guardian, whether given orally or in writing is always open to challenge in cross-examination, which can always go to method. Added to which, of course, where the report is in writing, good practice requires the investigative and reasoning processes to be set out. Once again, the decision is for the court, which is heavily dependent upon the quality of the advice it receives.”

 

  • Finally, in respect of Re J, at 88 Ward LJ agreed with the observations of the judge at first instance that the guardian’s function is not a judicial function. In short, and once again, the court and not the children’s guardian is the final arbiter of what is in the child’s best interests. Within the context of this latter point, it is important, once again, to note the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 at [32] that the children’s guardian is a witness subject to the same judicial scrutiny as any other witness and starts with no special advantage in proceedings as compared with other witnesses.
  • Finally, in relation to the authorities, in Re A (Conjoined Twins: Medical Treatment)(No 2) [2001] 1 FLR 267 Ward LJ held that the court can terminate the appointment of a Children’s Guardian where he or she has acted manifestly contrary to the best interests of the child, observing as follows:

 

“It was not necessary for the President, in order to dispose of the application, to attempt any comprehensive statement of the circumstances in which it might be expedient to remove a guardian ad litem, and the President wisely did not embark on that course. Neither r 4.10(9) of the Family Proceedings Rules 1991 nor the corresponding provision of the Civil Procedure Rules 1998 (r 21.7(1)) specifies any limit on the court’s power to terminate the appointment of a guardian ad litem or litigation friend. The President focused on the particular situation in which the court is asked to replace a guardian ad litem because the guardian has in the conduct of litigation taken a course of action (in which we include an omission), or is about to take a course of action, which is manifestly contrary to the best interests of the child whose interests it is the guardian’s duty to safeguard. If the guardian (or litigation friend) does act manifestly contrary to the child’s best interests, the court will remove him even though neither his good faith nor his diligence is in issue.”

 

  • Overall, it would appear that whilst the court’s discretion to terminate the appointment of a children’s guardian under FPR 2010 r 16.25(1)(b) is a full one, it is nonetheless a discretion that should be exercised sparingly, taking into account the imperative of the overriding objective in FPR 2010 r 1.1 to deal with the case justly having regard to the welfare issues involved. Within this context, where the grounds relied on in support of an application to terminate the appointment of the children’s guardian concern the methodology adopted by the guardian, the court may terminate the appointment where the guardian acts manifestly contrary to the child’s best interests or, but only in very rare circumstances, where the guardian has engaged in conduct that the court would ordinarily be invited simply to take into account when deciding whether to accept or reject the guardian’s evidence or recommendations.

 

The Court also considered the authorities on judicial bias  (our old friend Porter v Magill)

 

 

  • Where an allegation of apparent bias is made the test set out in Porter v McGill [2002] 2 AC 357 falls to be considered, namely “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased“. There is there is no difference between the common law test of bias and the requirement for impartiality contained in Art 6 of the ECHR (Lawal v Northern Spirit [2003] ICR 856).
  • As the terminology used in the test in Porter v McGill suggests, the question of apparent bias is ordinarily considered in the context of the conduct of a person or persons occupying a judicial or quasi-judicial role. Where the person whose conduct is in question is not acting in a judicial or quasi-judicial capacity it is inappropriate for the case to be approached in the same way as one would approach a person performing a normal judicial role or quasi-judicial role; a situation where the person is making a determination (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 35). In such circumstances, the position of the person whose conduct is the subject of criticism is better considered by reference to whether the person in question was under a duty to act fairly, the ambit of that duty, and whether they have acted with the requisite degree of fairness, rather than by reference to the concept of apparent bias (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 34). I pause to note that, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, a children’s guardian appointed pursuant to FPR 2010 r 16.4 is required to conduct the proceedings on behalf of child fairly.
  • Art 6 of the ECHR enshrines the right to a fair hearing. When considering whether a hearing has been fair, the court will look at the proceedings as a whole as well as any alleged individual deficiencies (Barberá, Messegué and Jarbado v Spain (1988) 11 EHRR 360 at [68]). The right to a fair trial guaranteed by Art 6 is not confined to the ‘purely judicial’ part of the proceedings. Unfairness at any stage of the litigation process may involve a breach of Art 6 (Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730).
  • Where it is said that biased or unfair conduct on the part of person under a duty to advise the court will lead to bias or unfairness in the proceedings, such a causal link must be demonstrated. In R v Gough [1993] AC 646 at 664C the House of Lords held that it must be shown that by reason of the adviser participating in the decision making process there is a real likelihood that he or she would impose his or her influence on the tribunal (see also R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts and Another [2012] EWCA Civ 472 at [132]).
  • In this case the children’s guardian has been appointed pursuant to FPR 2010 r 16.4. Within this context, the role and duties of the children’s guardian are set out in FPR 2010 PD 16A. As I have already noted, pursuant to paragraph 7.6 of that Practice Direction it is the duty of a children’s guardian appointed under FPR 2010 r 16.4 to “fairly and competently to conduct proceedings on behalf of the child”. Further, pursuant to FPR 2010 PD 16A paragraph 7.7 the children’s guardian must advise the court on, inter alia, the child’s wishes and feelings and the options available to the court in respect of the child and the suitability of each such option, including what order should be made in determining the application. Pursuant to FPR 2010 PD 16A paragraph 6.1 the children’s guardian must make such investigations as are necessary to carry out his or her duties.
  • Within this context, it is important to note the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 (a case in which the children’s guardian was appointed pursuant to FPR 2010 r 16.3) at [21] and [32] respectively that the children’s guardian is not a “neutral” party or participant in proceedings and that the children’s guardian does not have a “special” status within proceedings. Whilst the children’s guardian is required to proffer advice to the court, in doing so the guardian becomes a witness subject to the same judicial scrutiny as any other witness. The children’s guardian starts with no special advantage in proceedings as compared with other witnesses.
  • When the court is reaching its decision with respect to the welfare of a child it must consider all the evidence in the case including, but not limited to, the evidence of the children’s guardian. The court is the decision maker and must reach its decision by reference to the matters set out in the Children Act 1989 s 1 having regard to the totality of the evidence before the court.

 

I will pause there. MW v Hertfordshire 2014 says something very important – that the Guardian is just a witness like any other, and their evidence can be tested by cross-examination and they don’t start with any additional Brownie Points or judicial weight given to their evidence over and above any other witness. To which I would say that that’s a very fine notion, and I believe that it ought to be true, but it absolutely isn’t true in practice.  I’ll give you all a specific counter to that.

In the form given for Facts and Reasons, which is what Magistrates have to fill out when they are making a decision about a child, there is a specific section that says “Views of the Guardian and the reasons for the Court departing from those views if they do so”.   There isn’t a similar specific section asking the Court to specifically justify why they didn’t do what the mother asked, or the father, or even the Local Authority.  Every single social worker will tell you stories of how they got to the end of a case with a happy outcome where the child remains at home with parents and the Court were all over the Guardian  “I’d like to thank the Guardian for all of her hard work in this case” and the social worker doesn’t get a mention.  If Guardians who were previously social workers are honest, they will tell you how the experience of Court moved from being looked at as though you were something nasty on the sole of a shoe to being more or less the next living incarnation of the Dali Lama when they just move offices and become a Guardian.  This isn’t me having a go at Guardians – I think there are very good ones, and very bad ones and most of them fall on a spectrum well between those points, just as social workers. But MW v Hertfordshire’s lofty claim that a Guardian has no preferential treatment from the Court is a crock, I’m afraid.

 

I wrote about the Hertfordshire case at the time, here   (it was a Court of Appeal judgment that had LOADS of important stuff in it. It was like a selection box for law geeks. I’m afraid that I see the ‘no special treatment for Guardians’ being the bar of Turkish Delight in said selection box, that doesn’t get eaten or even taken out of the box because it looks inedible. Well, here, MacDonald J takes it out of the box and tucks into it, proclaiming it to be delicious.)

 

Guardians are not a ‘neutral party’ and don’t get brownie points

 

The Court’s decision on this issue, looking at the test for judicial bias and considering whether a Guardian is in the same sort of position or whether (as MW v Hertforshire suggests) they are just  a witness like any other and any issues of bias are simply to be taken up in cross-examination was this :-

 

DISCUSSION

 

  • I have decided that the mother’s oral application for an order terminating the appointment of Mr Power as T’s children’s guardian should be dismissed. My reasons for so deciding are as follows.
  • The mother’s allegation of “apparent bias” against the children’s guardian (as distinct from the court) as a ground for terminating the appointment of the guardian is in my judgment misconceived. The question of apparent bias falls to be considered in the context of the conduct of a person or persons occupying a judicial or quasi-judicial role. The role of the children’s guardian is not a judicial or quasi-judicial role. Whilst he is under a statutory duty to advise the court he is not the decision maker in these proceedings. In the circumstances, it is inappropriate for the mother to seek to approach actions of the children’s guardian in the same way as one would approach a person performing a normal judicial role or quasi-judicial role (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 35 A-C).
  • Notwithstanding that the mother’s primary contended ground of termination is, in my judgment, misconceived, in circumstances where, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, the children’s guardian must conduct the proceedings on behalf of T fairly when, inter alia, advising the court on the T’s wishes and feelings, the options available to the court in respect of the T and the suitability of each such option, including what order should be made in determining the application, it is nonetheless necessary in my judgment to consider whether the children’s guardian has failed to act with the requisite degree of fairness such that the termination of his appointment is justified in accordance with the legal principles I have outlined above.
  • Turning first to the specific passages of the Position Statement in issue, I am not able to accept Mr Perkins’ submission that the passage in the Position Statement lodged on behalf of the children’s guardian set out at Paragraph 11(i) above setting out his analysis of T’s wishes and feelings evidences a lack of impartiality on the part of the guardian. The views of the guardian are plainly grounded in statements made to him by T. The missing statement of the father could only have acted reinforce the conclusion reached by the guardian. The matters which Ms Hamade has been asked to consider do not go to interpreting the nature or significance of T’s wishes and feelings. The child’s guardian makes clear in his report that he spoke to T after she had met with her mother specifically to check whether her views had changed.
  • The position in respect of the passage in the Position Statement lodged on behalf of the children’s guardian set out at Paragraph 11(ii) above is, I accept, of greater concern. It is clear that in coming to his views the children’s guardian considered the position of the mother, both in terms of the quality of T’s attachment to her and her travel difficulties with respect to the United Arab Emirates and appreciated that the matter remained subject to final determination by the court. However, statement that “The children’s guardian takes the view that T has suffered enough change and suggests a formula of arrangements that add, expand and compliment the advantages that accrue to her living with F in Dubai” does have the appearance of a recommendation regarding the final outcome of this matter and both parents appear to have taken it as such. Further, it is beyond dispute that the guardian reached his conclusion without seeing the totality of the evidence he had been directed to consider. Whilst, once again, the missing evidence of the father may well only have reinforced this conclusion, the report of Ms Hamade was potentially relevant to it in circumstances where it bore on the question of how easy ongoing contact between mother and daughter would be to maintain in light of the nature and extent of any continuing issues regarding the mother’s ability to enter and leave the United Arab Emirates.
  • In circumstances where, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, the children’s guardian must conduct the proceedings on behalf of T fairly, it is unfortunate that the Position Statement lodged on behalf of the children’s guardian is expressed what appeared to be a settled recommendation prior to the children’s guardian having had sight of all of the evidence and without the Position Statement making clear on its face that the children’s guardian acknowledged that his “suggested formula of arrangements” had been arrived at in that context. Whilst I accept that the Position Statement is a document drafted on behalf of the children’s guardian and not by him and that the document evidences his understanding that the matter remained subject to final determination by the court, I also accept that concern as to the impartiality of the guardian and, accordingly, the fairness of the proceedings has been generated in the mother in circumstances where the children’s guardian reached his conclusion without considering all of the evidence he was directed to.
  • However, having considered the position carefully and acknowledging the concerns of the mother, I am not able to accept, having regard to the respective roles of the Guardian and the court, that there is a real likelihood that the approach of the children’s guardian will lead to unfairness in the proceedings as a whole such that the criticisms of the methodology of the children’s guardian require the termination of his appointment pursuant to FPR 2010 r 16.25(1)(b).
  • As I have already noted, it is the court that is the decision maker in this case and not the children’s guardian. The court is required to consider fully and fairly all of the evidence before it when reaching its final decision on the welfare of T, having regard to the matters set out in the Children Act 1989 s 1. Within the context of that process, two matters are of particular importance when considering the mother’s application to terminate the appointment of the children’s guardian.
  • First, during the course of that process the children’s guardian enjoys no special status relative to other witnesses before the court (MW v Hertfordshire County Council [2014] EWCA Civ 405 at [21] and [32]). The fact that the children’s guardian is under a duty to advise the court the options available to it to make recommend what order should be made does not mean that the advice and recommendation of the children’s guardian carries with it preferential, let alone determinative weight in the proceedings. The views of guardian, even when set out in a final analysis and recommendations report, are not binding on the court. At all times it is the application of the principles and factors set out in the Children Act 1989 s 1 to the totality of the evidence before the court that drives the court’s conclusion as to what is in the child’s best interests. There would be more force in mother’s application if the court was bound to follow recommendations of the children’s guardian or if the recommendations of the guardian carried preferential weight in the proceedings. However, neither of these propositions is sound.
  • Second, within the context of this legal framework the evidence of the children’s guardian falls to be evaluated by the court in the same way as any other witness having regard to factors including its credibility, internal consistency and fairness, with the results of that evaluation being applied in reaching a final determination. Specifically, the evidence of the children’s guardian will be the subject to forensic scrutiny by the court through the medium of cross-examination. Within this context the mother will be able to test the aspects of the guardian’s methodology that concern her and make submissions to the court on the consequences of any challenges she makes good. In particular, she will be able to put to the children’s guardian that he has pre-judged the issue of T’s living arrangements and the court can consider whether the guardian’s recommendation is thereby undermined. The court is well used to hearing and considering challenges mounted in cross examination by way of an allegation of prejudgment against social workers and children’s guardians.
  • In the foregoing circumstances, and with these procedural protections in place, in my judgment the matters recorded in the Position Statement of the guardian that cause the mother concern do not amount to grounds for terminating the appointment of that guardian on the basis of unfairness. Whilst it is unfortunate that this position has arisen, I am satisfied that the trial process as a whole will allow the mother a fair opportunity at the final hearing to challenge the methodology and reasoning process of the children’s guardian, which challenges will be taken into account by the court when deciding what weight to attach to his views. Within this context, I am satisfied that the parties can remain on an equal footing and that the court can deal with the case fairly notwithstanding the statements included in the Position Statement drafted on behalf of the children’s guardian.
  • I of course acknowledge the principle that it is not only important that justice is done but that it is seen to be done. However, once again, I am satisfied that the fact that it is the court who is the decision maker in this case, coupled with the opportunity the mother has to challenge the methodology and conclusions of the children’s guardian prior to the court reaching its decision, meets the requirements of this cardinal principle. I also bear in mind that the children’s guardian has yet to file and serve his final analysis and recommendations report and that he will do so having had sight of all of the evidence that has been placed before the court.
  • In reaching my decision I have also had regard to the delay that will be engendered in these proceedings if the appointment of the current children’s guardian were to be terminated and the matter adjourned for a new guardian to commence work. I have also borne in mind that such a course of action would necessitate T having another meeting with a different professional to talk once again about her wishes and feelings. Having regard to the statutory principle that delay is ordinarily inimical to the welfare of the child, and whilst not determinative, this in my judgment is a further reason for refusing the application to terminate the appointment of the current children’s guardian.
  • Finally, and again whilst not determinative of my decision on the mother’s application, as I have already observed the mother made her application to terminate the appointment of the children’s guardian pursuant to FPR 2010 r 16.25(1)(b) orally (without even having given notice of the intention to make such an application in her Position Statement) and absent any written or oral evidence in support of that application, contrary to the requirements of FPR 2010 r 16.25(2). In the circumstances, I also note that the court has not been taken to evidence in support of the mother’s application as mandated by the rules of court when pursuing an application to terminate the appointment of the children’s guardian.

 

 

I don’t think that this was the strongest application on bias, it was fairly clear that the Guardian’s views about the child’s wishes and future were as a result of the Guardian’s discussions with the child, who was ten years old. The position statement was somewhat clumsy in not making the position more explicit that there was no final decision but rather an interim view.

Finally the Court said this :-

 

CONCLUSION

 

  • There will, in very rare circumstances, be cases where the court accedes to an application to terminate the appointment of the children’s guardian where the guardian has adopted a methodology that the court would ordinarily be invited simply to take into account at a final hearing when deciding what weight to attach to the guardian’s evidence or recommendations. This, however, is not such a case. For the reasons given above I am satisfied that the mother’s application to terminate the appointment of Mr Power should be dismissed, and I so dismiss it.
  • As I have already observed, in Re J Ward LJ endeavoured to reassure the mother that the judge in that case was confident about the impartiality of the children’s guardian, was alive to the issues in the case, and that it was the judge who would have the very difficult task of resolving those issues. I reassure the mother in the same terms in this case.
  • Finally, the need for the court to consider the issues set out in this judgment stems, in large part, from the failure by CAFCASS Legal to adhere to the directions made by this court on 5 April 2016. Mr Hinchliffe’s decision to complete his Position Statement on 2 June 2016 ahead of the receipt of evidence due to be filed on 10 May 2016 in respect of the report of Ms Hamade and on 3 June 2016 in respect of the statement of the father, which evidence the court required the guardian to consider before the lodging of a Position Statement, together with the terms in which the Position Statement was drafted in those circumstances, have caused the mother unnecessary worry and concern and the court additional work. That worry and work could have been avoided had CAFCASS Legal complied with the directions made by the court or applied to vary the same. I hope that CAFCASS Legal will reflect on this.
  • That is my judgment.

 

 

 

 

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Four books that I’ve really enjoyed

Posted on June 27, 2016 by suesspiciousminds

I’ve been meaning to write a review of some of the books that have most impressed or moved me in the last few months, and at a time when the news is filled with a lot of dark and troubling stuff, it seemed like a good time to write something positive.

So here are the four

  1. My name is Leon by Kit de Waal
  2. This is London by Ben Judah
  3. The Essex Serpent by Sarah Perry
  4. The Trouble with Goats and Sheep by Joanna Cannon

 

All four of these authors have also been super-nice when I’ve contacted them by Twitter to say how much I liked their work, which is one of the things that I most love about Twitter, and on days when it is exploding with loathing and angst and over-reactions, I remind myself that you can tell an artist that you liked their work and why, and very often they can say something back in a matter of minutes or hours.  That is really astonishing. If YOU have read something that you like, and the author is on Twitter, please tell them. It’s a nice thing to do.

 

  1. My name is Leon  by Kit de Waal

 

 

Right. I am a TOUGH, TOUGH audience for this book. Firstly, it is set in a world that I know a lot about and spend my days in – that is the world of children who are not living with their parents and who are in care. That means if it isn’t accurate, if it makes short-cuts for dramatic licence, if it isn’t properly researched, I’ll smell it. It is like when I lived in a house with four nurses and had to stop watching Casualty because they’d just be shouting all the time “You wouldn’t put a line in like that” or  “I think you’ll find that’s FORTY FIVE CC of meta-Phenylcosine Glucosate”.  Secondly, I don’t really like sad books, and because this was telling the story of a child in care and him being split up from his little brother, there are bits that are really sad.

So, I’m a tough audience. And I absolutely loved this book. It absolutely GOT the world that I spend my days in. It got the detail right, the sequences of events right, the way that people act right, the dialogue right. It then took this world that I know so well and made me look at it in a completely different way, by placing the reader in the child’s point of view. The child isn’t the narrator, but all of the action, all of the dialogue, all of the emotions are told as though the reader is looking just over Leon’s shoulder.  He’s a fascinating character – he’s very angry and very troubled, and he has every right to be, but he’s also warm and funny and passionate and loyal to his brother.  Many of the adults in his life let him down, and sometimes they do it without even realising and sometimes they are trying very hard not to and sometimes they are oblivious, and once in a while one of them connects with him in a way that takes your breath away and it just crackles on the page. The scene where social workers come to Leon’s foster home and try to explain something utterly unexplainable to him, that though he loves his brother, because his brother is a baby and has white skin, there will be a forever family for him, but not for Leon, is told SO well,  and in a way where the pain and confusion just pours out of the sentences.  It is told, from a child’s perspective, in a way that is totally vivid, totally plausible and immensely powerful.

The book is also a beautiful object – there are sketch illustrations at the start of each chapter – of something important to Leon or something that will play a part in the chapter, and a little illustration of a bike by each page number.

Could not recommend this more highly.  It is NOT like a busman’s holiday, even if you do this work, and it isn’t the Angela’s Ashes type of misery memoir. There’s a lot of spirit and things to be uplifted about in this book, but the author hasn’t shied away from the rawness of pain when it is called for.

 

2. This is London – Ben Judah

This book isn’t fiction. It is journalism – of the type that George Orwell used to do. Ben Judah wanted to write about London, and the immigrants living in London, and not in a hand-wringing way or a demonising way. He just wanted to go out and spend time with people – from all sorts of nationalities, whether they are working in shops, dealing drugs, being Russian millionaires, Philippino housekeepers, down and outs. And that’s what he did. I don’t mean that he spent a few hours interviewing them – he tried to live, for a while, the lives they were living. He sleeps rough with Romanian gypsies, lives in bed and breakfasts with Polish electricians and builders, soaks himself into the lives that they are living. Then he tells their stories. It is a fascinating book – many parts of it are deeply shocking – some, like the Philippino housekeepers where he writes about the underground organisation that rescues the ones who are being abused by their employers has a fairytale ending that would make a wonderful Neil Gaiman story.  You will absolutely NEVER look at one of those handwash dispensers the same way again after you read this.

 

3. The Essex Serpent – Sarah Perry

Back to fiction. This is set in Victoria times (which is normally a major turn off for me in a novel) and involves a woman named Cora who has just been widowed from an abusive relationship and sets out to live the life of her choosing.  As part of this, she descends on a small town in Essex where the villagers are being plagued by what was thought to be a mythical creature known as the Essex Serpent. Cora wants to find it, others want to destroy it, still others want to deny its existence. Sadly, she leaves a wake of broken hearts in her path and is a force of nature in the book who at various times I loved and adored and other times I wanted someone to shake her.  I always like books where there’s a close knit group of characters and where the reader’s loyalties shift between them at various points and this really delivers that. It is a love story, where sometimes you are desperate for the potential lovers to stay the hell away from each other, sometimes you are yearning for them to conjoin. The story is told with immense richness of language and huge passion and it is impossible to read this without wanting to pull on a pair of boots and go out into the country and get spectacularly muddy. Sarah Perry makes the experience of trying to pull a sheep out of some mud sound as exciting and enriching as flying on a magic carpet over Istanbul. It’s an extraordinary piece of work. Read a chapter of it in a bookshop and I’ll be amazed if you don’t end up at the till with it in your hand, wondering if you can read it as you walk down the street without doing yourself a mischief.

 

4. The Trouble with Goats and Sheep – Joanna Cannon

 

 

I REALLY like Joanna Cannon. She was a blogger just like me, and honed her writing muscles doing that before writing this piece of fiction. It is set in a small street in sububia in the 1970s and is narrated by a young girl, Grace who is fierce and determined and ever so slightly selfish. One of the neighbour’s wives disappears, and Grace makes it her mission to find her, thinking that she is investigating a crime. Everyone else thinks that this woman has just left her husband. At least that’s what they start off by thinking.  In her investigations, she visits all of the other neighbours and piece by piece we are building up to understanding the real mystery of this street, which isn’t what Grace is investigating at all.  The book is really rich in language and detail, and Grace is really well observed as a character. Just as with Leon in the first book, seeing the story unfold from the perspective of the child means that there are things that Grace sees and hears that go over her head but mean something very different to the adult reader. There are some genuine rug-pull shocks towards the end but not shocks for the sake of it, the author has been carefully laying these foundations all the way through, and on a second read the story absolutely stands up and even improves (which isn’t usually the case with twists)

There are some really funny lines and scenes in it too. The sequence where an Indian family move in, and in desperate attempt to make small talk and ingratiate themselves and not appear racist or ignorant, one of the men tries to make a cultural connection by telling the new man that he “loves Demis Roussos”.

By page 6, the author has deployed this beautiful line “My mother had spent most of 1974 having a little lie-down” and you just know that you are in the hands of someone who can make words dance on the page. It’s a lovely book, and it has a powerful message about modern times, which I can’t raise because [SPOILERS].

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My book, and how to get it !

Posted on June 22, 2016 by suesspiciousminds

 

I have written a book. A fiction book, not dry law stuff.

It is Harry Potter and Scum and the Devil Rides Out and Porridge, all stuck into a blender with ice, sugar and rum and turned up to the max power setting.

 

Not EXACTLY the way the writing process went

Not EXACTLY the way the writing process went

 

 

More like this, but with ideas and words!

More like this, but with ideas and words!

 

It is finished, and if everything goes well [WHICH IT WILL!] , you will be able to have it in your trembling beautiful and tender hands by around Christmas.

The good folks at http://www.unbound.com  are looking after me.  Their model is a Crowdfunding one and there are authors like Raymond Briggs and Tibor Fischer using it, so LEGIT!

 

Here is the page all about the book.

https://unbound.co.uk/books/in-secure

 

If the book can get sufficient pre-orders, then it will be published and available to read on your Kindle, Ipad, Iphone or other electrical device  (not kettles, or irons) around Christmas time.

What that means is that I would like you to visit the site, and have a look at the description of the book (and the sample chapter!)  and you can look at my photograph and watch a video of me talking about the book and asking nicely for your support.

If you are interested in it, you can pre-order – if the book doesn’t get published, you’ll get your money back, but let’s not be negative – I am super-confident that we can get this done and have me invading your iphone. There are all sorts of different levels of pledges you can make and all sorts of different rewards that you’ll get in return.

The main reward of course is that you will become A PATRON OF THE ARTS!  How cool is that? And you’ll get to read my feverish prose.

Here’s the link again

 

https://unbound.co.uk/books/in-secure

 

Also, please RT this piece to people, put it on your Facebook, forward it to people you know, nail copies of it to trees and roll it up into bottles and toss it into the ocean, that sort of thing. The more people who see it, the better.

Help me realise this dream, and I will love you forever

 

I actually legit have the song “I’m so excited, and I just can’t hide it” playing in my mind right now….

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“Blood on her hands”

Posted on June 21, 2016 by suesspiciousminds

 

Ben Butler convicted of the murder of his girlfriend’s daughter Ellie, in the criminal Court.

Ellie had been removed from the care of Ben and Ellie’s mother (who was convicted of child cruelty and perverting the course of justice) in 2007 by the family Courts with findings made that they had caused her a serious injury  and placed with Ellie’s grandparents.

In 2012, Mrs Justice Hogg overturned the previous findings and returned Ellie to the care of Ben and Jennie Gray. The Judge had said that fresh medical evidence showed that the previous findings were wrong, and that Ben and Jennie were exonerated and that it had been a miscarriage of justice and that it was a joy to be able to return Ellie to their care.

 

The case was widely reported as a miscarriage of justice in the family Courts, put right by Mrs Justice Hogg and the unusual step was taken to name the family in the judgment, so that everyone could see that their names were cleared.

 

A tapestry of justice

 

Eleven months later, Ellie was dead.

 

At the hearing before Mrs Justice Hogg, we now learn that Ellie’s grandfather warned Mrs Justice Hogg that she would have ‘blood on her hands’ if she returned Ellie to Jennie and Ben.

 

You can read about the murder trial here, and the guilty verdict. It was a vicious attack, cynically covered up by the couple, including arranging for Ellie’s sibling to find Ellie’s body 2 hours after the death.

https://www.theguardian.com/uk-news/2016/jun/21/ben-butler-found-guilty-of-murdering-six-year-old-daughter-ellie

 

One shudders now in retrospect (knowing what we know about both parties) about the detail that Ben and Jennie employed Max Clifford to run a PR campaign for them in their fight to get Ellie back.

It is really important here not to be wise after the event. The judgment given by Mrs Justice Hogg (which sadly has been taken down from Bailii so as not to prejudice the criminal trial, but which ought in the public interest to go back up) was one that I read at the time, as so many others did, of a case involving very complex medical evidence in a field (shaking injury) which is very medically controversial and with fresh evidence emerging which showed an organic cause for the injury which meant Ben and Jennie were blameless.  The case involved multiple medical experts, whose evidence was pored over by extremely able Silks and lawyers, in front of a very experienced High Court Judge who has always been conscientious and dedicated.

The Local Authority fought very hard to stop Ellie being moved from her grandparents, and her grandparents also resisted it. That meant that all of the evidence was gathered and tested – as fiercely as everyone involved was able to. This was not a rubber-stamp, or a rushed decision. It was a judgment that had all of the safeguards and protections that our system can muster  (a range of experts, all the documents obtained, the evidence tested and tested hard, and a Judge who knew her stuff)

There was nothing within that judgment to make one feel AT THE TIME, that this was a terrible tragic mistake.

But it was.

Even with all the protections of the system, the Court system on this occasion got a decision wrong. And as a result, a child who was safe, is now dead.

That doesn’t mean that we get to apply hindsight and seek to pass blame. The persons responsible for Ellie’s death were Ben and Jennie. Not this Judge. Not the experts who thought there was an innocent explanation for the earlier injury. Not the lawyers who fought fearlessly and to the best of their ability for Ben and Jennie. Certainly not the Local Authority, who fought to prove that Ben and Jennie had hurt Ellie before and would do so again.

Even when you pore over every scrap of paper, hear every shred of evidence, hear all of the arguments and can be sure of your conclusions, predicting the future is an uncertain business. And from time to time, we need to be honest and acknowledge that.

The EVIDENCE that Mrs Justice Hogg heard pointed her to a conclusion that Ben and Jennie had been wrongly accused and had paid for it with the loss of their child, and the EVIDENCE drove her to wanting to put that right. The EVIDENCE that we now have is that this was the wrong decision. But how can a Court decide any other way than on the EVIDENCE that it has at the time?

The system got it wrong here, in deciding what had happened in the past and what would happen in the future, and with awful consequences. The system in the past has got it wrong the other way and removed children that could and should have stayed at home. The system will continue to make mistakes, no matter how hard we try, because human beings are not built to predict the future.  We make all efforts to ensure that we get it right, but we can’t always.

I am very sure how the Press would have handled this case if it had been a social worker who had taken the child away from grandparents and put her back with Ben and Jennie.  The headlines write themselves. The clamour for sackings and heads must roll, and this must never happen again.

Seeing that even a High Court Judge, seized with all of the evidence, with the luxury of seeing that evidence tested as hard as evidence ever can be, can make a mistake reminds us that human beings are beautifully and fearfully made, and all of us have fragility.

 

Mrs Justice Hogg has retired now, and I am sure that the consequences of her decision will weigh heavily on her.

Perhaps this story shows us that sometimes, in assessing the EVIDENCE that one has at the time decisions can be made by very bright, very capable, very conscientious people wanting nothing more than to get things right and to be fair, but still be wrong, and that our knee-jerk Witch-Hunt blame culture doesn’t take account of that, and the inherent difficulty that child protection involves.

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Very tangled web and a very sad situation

Posted on June 21, 2016 by suesspiciousminds

 

This is a case in which a Judge had to consider very serious sexual abuse allegations and concluded that

The sad fact I have to record is that every female member of that extended family, with the exception of B, has, at some stage in their lifetime, been either sexually abused, or been the subject of inappropriate sexual behaviour, or been groomed for the purposes of sex.

 

The child B, had been placed with a man, Paul E, who was her uncle, but for five years she was brought up believing that he was her father and that Mary E (her aunt) was her mother.  In that household lived an older child A, who really was the daughter of Paul E and Mary E, and thus was B’s cousin, but A and B were told that they were siblings.

 

B’s actual mother Carol M, lived in the house with Paul E and Mary E, and B was brought up thinking that Carol (her real mother) was her sister.

As will be apparent from the description I have given of the relationships between the individuals involved, this is a large family with different familial connections. For reasons which I will deal with in due course, Mary E has, at all times, maintained a house full of children. There has in recent times at the heart of this household been a significant lie. B was led to believe by them that Mary E and Paul E were her parents. Her mother lived with her as her sister. The obviously difficulty created by a lie is that it encourages dishonesty from all affected by that lie. What is clear to me is that when Cafcass, and when Lancashire and Blackburn with Darwen Social Services have been involved in assessing this family in the past, they also have been lied to, as I will elaborate below. That has meant that the value of their assessments was completely undermined. There have been a number of investigations into this family, none of which have got close to the truth of what was going on.

 

The Judge raised that B had been placed there as a result of private law proceedings and that professionals had reported on the family circumstances, and had acquired a false sense of security about the family situation because of the previous involvement of the family Court and because reports and assessments had been written. That involvement gave what was a very risky and dangerous family set up a sense of legitimacy that was not warranted.

 

Legitimacy by court order

  1. One matter I should raise right at the outset. At the time these proceedings were commenced in 2015, A was living with Paul E, her father, and Mary E, his wife, pursuant to a court order made on 20th April 2012. B, at that time, was residing with Paul E and Mary E, neither of whom was her parent, as a result of a court order made on 26th September 2011.
  3. There have been previous proceedings in relation to A. Section J in the bundle was generated by proceedings in 2011 running into 2012, which include a Section 37 Report from Lancashire County Council, together with an addendum to that report, and a report from a Cafcass Officer appointed to assist the court in those proceedings.
  5. Documents relating to previous proceedings concerning B are in Section K in the bundle. Those include a Section 7 Report from Blackburn with Darwen Borough Council from September 2011, provided to the court immediately before the residence order was made to which I have already referred. There was a Cafcass report in addition, which was effectively a letter from the Early Intervention Team setting out what was known about the family.
  7. There have been Social Services and Police involvement with other members of the family in circumstances that I will set out in a little more detail in due course. None of those investigations, whether by the Police, by Cafcass, or by Lancashire, or Blackburn with Darwen Social Services had, in reality, got to the truth of what was going on in the lives of the children who were being cared for by Mary E and Paul E. The fact that there had been investigations and court orders made in favour of Mary E and Paul E gave them a false authority, false in the sense that it was based on a false premise, but authority in the sense that it gave them validation for the way they were bringing up the children, a validation made in ignorance of the truth. It has only been with the benefit of a full investigation into this family that what I am satisfied is the truth has, at last, emerged.

 

 

Paul E (father of A, and uncle of B but caring for her) was the subject of some very grave allegations and the Judge in due course made a series of very grave findings against him. After the Court had heard the evidence and submissions, concluding on a Friday, but before judgment could be given, Paul E took his own life. That must have been horrendous for everyone involved, and awful for the children  (no matter what he had done and what he had exposed them to )

 

The fact finding hearing began on 11th April 2016. By Friday of the second week, I had heard submissions from the advocates as they closed their cases. I had heard evidence from Paul E, and he had attended all of the hearings. On Sunday, 24th April, Paul E took his own life. He left a note maintaining his innocence, and I make it plain I had reached my conclusions on the factual matters in this case before his death. I do not regard his suicide as a tacit admission of his guilt of the matters alleged against him.

 

It emerged from the evidence, and the judgment, that Paul E had received a very serious head injury in 2005 having been assaulted in a pub and kicked in the head. The judgment reads as though this head injury had an impact on his personality, behaviour and possibly sexual functioning. That is not to excuse or condone the actions that the Judge found that he had undertaken, but it does to an extent provide a better understanding of it.

 

The Judge was also mindful of the effect of alcohol on Paul E

 

In fact the evidence I heard shows conclusively that throughout his adult life Paul E had drunk to excess and when under the influence of drink could be a very different man from the pleasant individual he could be when sober.

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Inordinate delay in issuing proceedings (£45K damages)

Posted on June 17, 2016 by suesspiciousminds

 

This is a Circuit Judge decision made in my local Court (it is not a case that I or any of my colleagues are involved in, so I can write about it) so I will try to avoid much comment and stick to the reported facts.

 

Re X, Y and Z  (Damages: Inordinate Delay in issuing proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B44.html

Three children had been s20 accommodated from January 2013 until July 2015 when an Interim Care Order was made. The Court determined that the s20 had been lawfully entered into and was valid, but of course on the authorities, a valid s20 does not prevent a human rights breach based on delay.  Whilst the mother in this case had never formally withdrawn her consent or lodged an objection, she had been asking for more contact with the children and saying from time to time that she would like them to come home.

 

  1. The mother clearly frequently stated that she would wish to care for the children and certainly to see them :
  3. i) 8.2.13 Letter from Z seeking to see the children.

ii) 1.3.13 Z asks for contact and to have the children back in her first meeting with a social worker

iii) 3.4.13 Z seeks fortnightly contact in a telephone call.

iv) 5.9.13 LAC review – stated that Z would like to be able to care for the children.

v) 14.1.14 Report for LAC review notes that Z would like to see the children and that she sometimes states she wants to care for the children and sometimes that she just wants to have contact with them.

vi) 8.4.14 Legal Planning Meeting Solicitor for Z stated that she had requested both children be returned to her care as soon as possible…if not returned to her care, would like increased contact.

vii) 26.11.14 LAC Review Z would like to be able to care for the children.

 

 

The Judge ruled that the children’s article 6 and  8 rights were breached in the following ways

 

  1. It follows from all that is set out above that I make the following declarations:
  3. i) West Sussex County Council acted unlawfully and in violation of the Convention Rights of X, Y and Z as follows:

a) Purported to exercise parental responsibility for X and Y for a period of almost two and a half years when they did not hold parental responsibility for the children.

b) Failed to promote contact between the children ,X and Y and their mother Z.

c) Failed to issue care proceedings for almost two and a half years causing the children to be without access to independent representation, failing to carry out adequate assessments and allowing the children’s permanence plan to drift.

d) The Independent Reviewing Officer failed to challenge the conduct of the Local Authority sufficiently robustly.

The judgment contains analysis of the relevant authorities on s20 breaches, s20 drift, human rights claims and calculating quantum.

The Judge concluded that each of the  children should receive the sum of £20,000 in damages  (*initially, with the case being called X, Y and Z, I’d assumed three children and hence £60k, but I am told two children. Still £45k is a lot of money)

 

  1. The factors to be considered for the children are substantially different to those for the mother and consequently must be assessed separately. The main factors in relation to quantum are :
  3. i) A failure to assess their needs for an inordinate period of time – over two years before any report was obtained;

ii) The fact that they were denied access to any independent legal representation for two and a half years – of particular importance when they had no relatives in the country who would be able to care for them and when they had been the subject of apparent abuse during their time in Jamaica;

iii) Little promotion of contact with their mother even though X indicated in February 2013 that he would like to go back to her – there was no contact for the next twelve months;

iv) No comprehensive assessment of their needs although it was indicated as early as March 2013 that such an assessment was required;

v) Frequent changes in placements without any input from anyone with parental responsibility

vi) Placement with W, the previous foster carer, without any such assessment or understanding of any abuse they had suffered in Jamaica;

vii) The fact that the children are now in separate long term foster placements with no contact with each other or any other relative and X is not in a culturally appropriate placement;

  1. It is apparent that the end result for these children is not a good one. It is not possible now to say that the outcome would have been any different if proceedings had been issued in early to mid-2013 which should have occurred. However, it is difficult to see how the outcome would have been much worse and the loss of a chance of a better conclusion must be reflected in any award that is made.
  3. This case appears to be at the upper end of the bracket that has been awarded in similar cases. The only aggravating feature which is not present in this case, which is present in the majority of other such cases, is the fact that I have found that the s.20 agreement is a valid one. I am not going to set out all of the possible comparators as they appear in the table in the Medway case but I would simply state that this case involves the longest period as well as a poor outcome which may not have been the case without the breaches. As a result due to all of the issues which have been highlighted I am satisfied that the children should be awarded the sum of £20,000 each for all of the breaches of their Article 6 and 8 rights.

 

 

In relation to the mother

 

The Mother’s Award

  1. The mother is in a different position as she did have the benefit of legal advice from June 2013 onwards and as a result would have been able to withdraw her consent at any time thereafter. This must be of significance in considering damages as the inordinate delay in this case is the most troubling aspect and that delay could have been stopped at any time by the simple act of instructing her solicitor to withdraw her consent.
  3. It is argued on behalf of the Local Authority that this feature is of such significance that it should mean that the mother would receive ‘just satisfaction’ by way of a declaration alone. However that ignores the other crucial factors in her case which include :
  5. i) The frequent requests for contact to her children which were simply ignored by West Sussex although there was no legal basis to do so;

ii) If proceedings had been issued the Local Authority would have been obliged pursuant to s.34 Children Act 1989 to promote such contact;

iii) The failure to properly assess the mother due to the fact that she had been fully assessed in the previous proceedings some five years earlier.

  1. It seems unlikely that the children would have been placed with their mother if the proceedings would have been commenced in a timeous fashion and as such there does not need to be any award for the loss of that chance. However, the same cannot be said in relation to contact as that may have been very different if addressed much earlier. The children are now stating that they will not see their mother but that was not the position when they first arrived at Gatwick in January 2013. This loss is even more significant now that each child has no contact whatsoever with any member of their family.
  3. In these circumstance the appropriate level of damages for the mother must be far lower than for the children and I assess the figure of £5,000 as the correct amount to compensate her for her Article 6 and (more significantly) Article 8 rights.

 

 

Looking at the chronology given in the judgment,  there was involvement with lawyers as early as 24th June 2013, which was still 2 years before proceedings were issued.

 

The Judge was very critical of the  Independent Reviewing Officer (IRO), who would have been holding Looked After Child Reviews at regular intervals during the 2 1/2 years of s20. He found that they, too, had been responsible for breaches of both the mother and the children’s human rights.

 

  1. The Independent Reviewing Officer failed to challenge the conduct of West Sussex and did not promote care proceedings. The functions of the IRO are set out within s.25 Children Act 1989 and they include monitoring the performance of the Local Authority of their functions in relation to the child’s case. In the case of A and S v Lancashire CC [2012] EWHC 1689 at para 168 it was submitted (and Jackson J did not demur) that the task of the IRO was to “monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child”. Their roles are more fully set out within the “IRO Handbook” which provides the relevant statutory guidance. In the Lancashire Case it was found that the failures of the IRO amounted to a breach of the children’s rights.
  3. The actions of the IRO in this case are fully set out within the statement of Children’s Safeguarding Manager and which is referred to above, which concludes with a list of ‘Strengths’ and ‘Areas for Development’ and the latter included :
  5. i) “the Review minutes do not consistently contain sufficient specific evidence of IRO challenge, especially on issues in relation to progress towards permanence”

ii) “the decision specific to the permanence plan was not specific enough and did not contain any target dates”

iii) “would have expected more explicit detail in relation to the permanence plan of long term fostering and the need to seek legal advice”

  1. It does not seem to me that this adequately highlights the deficiencies of the IROs (there were two) in this case. There does not appear to be any note whatsoever of the IRO cajoling the Local Authority on timescales and this can be highlighted by two simple issues :
  3. i) There is a bald statement in the second review held in May 2013 that an SGO assessment is about to commence in relation to the paternal aunt. This is repeated in the fourth review in January 2014 which records that “an SGO assessment will be undertaken at the appropriate time”. It is noted at the fifth review in July 2014 that the paternal aunt still wished to have the children living with her under SGOs but the assessment is still not there some fourteen months after it was first raised. This is a simply appalling delay and does not seem to be criticised by the IRO – if there is not going to be criticism in such cases then one has to ask when would it ever occur?

ii) The IRO was aware in May 2013 that the mother wanted contact to the children but no decisions were made on this crucial point at the time. In September 2013 it was noted that indirect contact had happened and the next stage would be to consider re-introducing direct contact yet by the fourth review it is simply noted that they were “working towards direct contact”! The first face to face contact did not take place until February 2014, a full 13 months after the children had arrived in the UK with the mother saying that she wanted to see the children throughout and the eldest child, X, having said he would like to see his mother in February 2013. It is entirely possible that the contact would not have been successful (as has in fact occurred) but it must be the duty of the IRO to challenge this astonishing delay in attempting such contact in circumstances when the children had no involvement with any member of their birth family.

  1. The lack of urgency in the case is breath-taking and it is simply wrong to point out the failures of the IROs to force the issues as an “Area for Development”. It was a total failure to “monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child” as they should have been doing. This was clearly a case that should have come before the courts years before it actually did yet the IRO did not appear to put any pressure upon the Local Authority to ensure that this occurred. There is power within s.25B(3) Children Act 1989 for an IRO to refer the case to CAFCASS if it is considered it was appropriate to do so. It is difficult to understand why such action should not have been carried out in this case in order to ensure that the welfare needs of these children were fully protected.
  3. It follows that the failures of the IRO were sufficient in this case to amount to a breach of the children’s and the mother’s rights to family life and a fair trial.

 

 

If I were a betting man, and I am, I would expect an increase in care proceedings issued when the September set of CAFCASS stats come out.  And the volume of care proceedings issued is already at an all-time high.

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Lost suitcase Judge admonished by Court of Appeal (but not biased this time)

Posted on June 16, 2016 by suesspiciousminds

Some of you might remember the case where a High Court Judge, involved in a big money commercial trial where British Airways was a party started to conduct his own inquiries of BA’s Silk into what had happened to his suitcase which BA had lost on a flight.

 

If you haven’t, then I suggest you read it, because it is a cracker.  (It isn’t my writing that makes it funny, the situation is just ludicrous)

Judicial baggage

 

If you are unaware of the previous history with this Judge and the Court of Appeal, here is another to read

http://www.bailii.org/ew/cases/EWCA/Civ/2007/720.html

 

[The Judge had been involved in communication with partners of a law firm about an employment opportunity for himself, those communications had broken down and the Judge had sent an email to the Senior Partner expressing considerable disatisfaction and annoyance. When that firm next had a case before him, they invited him to recuse himself and he refused. The Court of Appeal decided

 

It may well be that the judge became somewhat carried away in the heat of the argument. But for the reasons I have given, I would hold that his attitude throughout, from the emails at the end of May, during the hearing on Friday and in his judgment show that the test for apparent bias is satisfied. As the reviewing court, this court is in a position to form its own view. I have concluded that in all the circumstances, a fair-minded and informed observer would conclude that the judge was biased against AG and its partners, including Mr Howell. It was for that reason that I concluded on Monday that the appeal should be allowed.

 

But if you can, read the judgment, because the transcript of the poor barrister trying to make the recusal application and the Judge getting crosser and crosser is quite remarkable]

 

Following the BA suitcase debacle , the Judge’s conduct attracted quite a bit of attention in the Press, including an article written by Lord Pannick of Blackstone Chambers. Lord Pannick has been involved in some very intriguing cases that I’ve written about on the blog – often involving overseas Royalty or diplomats, and has also been a trenchant critic of the legal aid reforms, so I like him a great deal.  [In fact, he was in this very case in this blog article https://suesspiciousminds.com/2014/06/09/a-court-may-look-at-a-king/  ]

 

 

  • On 3rd September 2015, an article (“the Article”) appeared in The Times newspaper with the headline “A case about luggage that carries a great deal of judicial baggage”. It was written by Lord Pannick QC (a member of Blackstone Chambers) who had, at an earlier stage of Mrs. Harb’s claim, represented the Prince on his CPR Part 11 (sovereign immunity) application. The Article stated:

 

“On July 22, 2015, Mr Justice Peter Smith stood down from hearing a complex commercial case in which British Airways is a defendant. The airline asked the judge to recuse himself after a dispute about what happened to the judicial luggage on a trip home from Florence. How we laughed. But the case raises serious issues about judicial conduct that need urgent consideration by the Lord Chief Justice. …

The judge sent a number of emails to the chairman of BA complaining about the incident. He said there was “plainly a deliberate decision to leave a whole flight’s luggage behind”. He suggested that lucrative commercial freight may have been loaded “at the expense of passengers who could go to hell at the expense of profits.” BA applied to the judge to recuse himself because the case against the airline that he was hearing raises allegations similar to those he was making, and conclusions similar to those he was asserting, in the correspondence.

The transcript of the recusal application is extraordinary. Jon Turner, QC, for the airline, began by politely stating his client’s concern. The judge intervened: “Right, Mr Turner, here is a question for you. What happened to the luggage?” Mr Turner responded that his clients would deal with such a personal complaint in the ordinary course of business and not in these proceedings. The judge was not satisfied: “In that case, do you want me to order your chief executive to appear before me today?”

Mr Turner patiently replied (his submissions were a model of courtesy and focus in very difficult circumstances) that if the judge would permit him to develop his argument he would contend “that that would be an inappropriate mixture of a personal dispute…”. The judge interrupted: “What is inappropriate is the continued failure of your clients to explain a simple question, namely what happened to the luggage?” After a lot more of this, the judge reluctantly agreed to stand down from the case. He said that there were no grounds for BA’s application but its “attitude” left him with no alternative.

There are a number of troubling features about this unhappy episode. First, the transcript repeatedly confirms what the judge refused to acknowledge: that his personal irritation (perhaps justified) was affecting his judicial responsibilities and made it impossible for him fairly to hear the BA proceedings. The judge said in his judgment that he wanted answers from BA simply because if there were an innocent explanation for the delayed luggage, then he could put the incident to one side and hear the case. But BA’s concern was the strong allegations and concluded views expressed by the judge on personal issues similar to those raised in the litigation. In any event, if BA had offered an explanation for his treatment, was the judge to rule on its adequacy?

Second, there is the inexcusably bullying manner and threats: “What has happened to the luggage? … I will rise until 12.45 and you can find out… Do I have to order you to do it, then?… I shouldn’t make any preparations for lunch because you are going to be sitting through.”

Third, there are the judge’s arrogant comments concerning the decision of the Court of Appeal in 2007 to remove him from an earlier case in which he had been unable to recognise that his personal interests made it inappropriate for him to sit in judgment. Mr Turner, QC, referred to the case for the legal principles. Mr Justice Peter Smith responded that he had “no regret” about his decision, but “plenty of regrets about the way in which the Court of Appeal went about their decision”, but he was “no longer surprised by what happens in the Court of Appeal”. That was a case where Sir Anthony Clarke, MR, described Mr Justice Peter Smith’s conduct of the proceedings as “somewhat extraordinary” and “intemperate”. Sir Igor Judge added that Mr Justice Peter Smith’s conduct of the hearing demonstrated that he “had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity.” Mr Justice Peter Smith was not listening.

On hearing about this latest episode, no one at the bar or on the bench would have said, “What, Mr Justice Peter Smith? Surely not?” Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long.”

After that article (which remember, was complaining about a Judge acting injudiciously, and blurring his judicial functions with his personal circumstances or views) appeared, the Judge wrote to the Head of Blackstone Chambers

  • By a letter dated 1st December 2015 (“the Letter”), the judge wrote to one of the two joint Heads of Blackstone Chambers, Mr. Antony Peto QC, in these terms:

“I refer to our conversation a couple of weeks ago. I am disappointed not to have heard from you.

The quite outrageous article of Pannick caused me a lot of grief and a lot of trouble. I will be taking that up with the requisite authorities in due course.

You said that you would get back to me and you have not. This has meant even more trouble for me because his article has been used as the basis for several lay people to make complaints about me. Fortunately he has never appeared in front of me so his opinion is not worth the paper it is printed on. It has caused me great difficulties in challenging it but fortunately again I have letters of support from no less than 24 Silks, 4 High Court Judges and 1 Court of Appeal Judge all of whom appeared in front of me and do not share his views of my abilities and the way I perform in Court. Some of the letters have been extremely critical of Pannick’s article. Others have commented adversely in terms I would not wish to print.

The article has been extremely damaging to Blackstone Chambers within the Chancery Division.

I am extremely disappointed about it because I have strongly supported your Chambers over the years especially in Silk Applications. Your own application was supported by me and was strongly supported by me to overcome doubts expressed to me by brother Judges concerning you. I have supported other people. It is obvious that Blackstone takes but does not give.

I will no longer support your Chambers please make that clear to members of your Chambers. I do not wish to be associated with Chambers that have people like Pannick in it.”

Unfortunately for the Judge, although Lord Pannick has yet to appear before him post article, other members of his chambers did, on this case. The letter emerged as part of the appeal.

Joshua Rozenberg’s piece about Lord Pannick’s article and the Judge’s response are very worth reading.

http://www.lawgazette.co.uk/analysis/comment-and-opinion/a-judge-needs-judgement/5050805.fullarticle

Anyway, the case has now come before the Court of Appeal, who were no doubt sharpening their pencils and rolling up their sleeves in readiness for this one.

Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 (16 June 2016)

http://www.bailii.org/ew/cases/EWCA/Civ/2016/556.html

 

The Court of Appeal granted the appeal for other reasons, so did not technically have to give a judgment on the bias point that had been raised, but in the unusual circumstances of this case, you can see why they would. They say that the Judge’s behaviour was regrettable, but did not satisfy the test of bias.  (some readers might find that surprising, so I will include the totality of their judgment in this regard)

 

 

  • There is no dispute as to the test for appearance of bias. In Porter v Magill [2002] 2 AC 357, Lord Hope said at para 103:

 

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

 

  • The Letter has assumed significance in this appeal because the Prince was represented at the trial by Mr. Ian Mill QC and Ms. Shaheed Fatima QC, both of whom were (and still are) members of Blackstone Chambers. It led to the Prince amending his grounds of appeal to add a fifth ground alleging apparent bias.
  • The following particulars of alleged apparent bias are relied on. First, a fair-minded and informed observer would conclude that there was a real possibility that the judge became biased against the Prince after the publication of the Article because it was critical of him and he knew that the Prince had been represented by Lord Pannick and was continuing to be represented by Mr. Mill and Ms. Fatima. Secondly, the content of the Letter would cause such an observer to conclude that there was a real possibility that the judge harboured a personal animus against all members of Blackstone Chambers. Thirdly, the observer would conclude that there was a real possibility that the judge’s apparent bias against Blackstone Chambers might have affected his decisions in relation to this claim because, as a matter of timing, the Article preceded (a) the date on which the draft judgment was sent to the parties (21st October 2015), (b) the date on which the judgment was handed down in its final form (3rd November), and (c) the date on which the judge determined costs (9th December). Fourthly, the observer would conclude that there was a real possibility that the judge was biased because he refused to correct a material inaccuracy in the draft judgment even after it had been drawn to his attention. The particular inaccuracy relied on is the judge’s failure to correct the statement at para 106 of the judgment that “it was not put to the claimant” that she had been aware of the Prince’s capacity as the agent of his father, King Fahd. Fifthly, the observer would conclude that there was a real possibility that the judge had been biased against the Prince because his judgment is in key respects inconsistent with the evidence, the inherent probabilities and, in particular, his questions and observations during the trial. There was a change of stance by the judge after the hearing which it is impossible to explain except by attributing bias to the judge. This submission is founded on a detailed analysis of the judge’s interventions during Mrs. Harb’s evidence. These are said to demonstrate hostility by the judge towards her and incredulity about her evidence at that time. Sixthly, the observer would conclude that there was a real possibility that the judge became biased against the Prince in view of his change of mind regarding the explanation given by the Prince during the trial for not attending to give oral evidence. This is the subject of the fourth ground of appeal.
  • It is necessary to have in mind some key aspects of the chronology. The starting point is that on 23rd July, after the conclusion of the evidence, the judge asked the parties whether they wished him to give an indication of his provisional views. In response to their request that he should do so, he said:

 

“on the evidence at the moment I am of the provisional view that there was an agreement as the claimant alleges. However, the question of the capacity of the agent I find very troubling at the moment, the capacity of the agreement. I suspect, I have not looked into it, there is some law about whether or not an agent, [where there] is an undisclosed principal, can assume personal liability under the contract.”

 

  • The parties then made their closing submissions and the judge reserved judgment. He dictated his judgment during the last week of July and first week of August. On 5th August, a written note was submitted on behalf of the Prince commenting on the authorities relied on by Mrs. Harb in relation to the agency issue. The judge says that he dictated a short addendum to the relevant section of the draft judgment relating to the agency issue, but that the draft was not otherwise materially altered.
  • He handed the tapes to his clerk for typing later in August. On 21st August, there was a further hearing before the judge to purge the Prince’s contempt for failing to attend the hearing. The judge said that he had hoped to release his judgment in draft form that day. He was on leave between 2nd and 16th September. As we have already stated, the Article was published on 3rd September. The judge’s clerk started typing the judgment on 6th October. She believes that she completed transcribing the tapes on 14th October. She says that she printed off a hard copy of the judgment for the judge to check and approve and that she made the amendments required by him on 19th October. The draft judgment was circulated to the parties on 21st October. It was handed down on 3rd November.
  • The judge spoke to Mr. Peto QC in about mid-November and complained about the Article. Having not received an answer from him, he wrote the Letter on 1st December.
  • To meet the point that the judge had indicated a provisional view in favour of the claimant before the parties made their closing submissions and before he drafted his judgment, Lord Grabiner says that the judge made some amendments to his draft judgment after reading the Article and before handing down the judgment. We do not know the nature of the amendments. We do not know what the judge’s thinking was in relation to this case after the publication of the Article. In short, he submits, the fair-minded observer would consider that there was a real possibility that the final judgment was influenced by the Article, if only by the judge’s refraining from making changes that he might otherwise have made.
  • More broadly, in his oral submissions Lord Grabiner illustrated his case in this way:

 

“If I were a client and I was using a Blackstone Chambers barrister to argue a case for me and these facts were drawn to my attention, I would be very concerned indeed about who the trial judge was going to be. If I were told the whole of this story, my reaction to that—and I am simply saying that as a reasonable client, given the knowledge of all the facts—the question for this court is: what would be the reaction of that reasonable client?

In my submission that is susceptible of only one answer. He would say—particularly if he were a foreign client who the reason that he comes here in the first place is because he holds the English court system in such high regard. To be given this story, he would be astonished and he would say ‘Well I must say I hope there’s some other judge who can hear my case’, and he would be right” (Transcript 1/107-108).

 

  • In response to Lord Grabiner’s submissions, Mr. Hollander makes a number of points. First, although he accepts that it is possible for a bias for or against an advocate to be sufficient to give rise to a case of apparent bias against the client, of its nature this is likely to be exceptional. It should be borne in mind that the judge has sworn a judicial oath.
  • Secondly, the Letter was a complaint in relation to an article by Lord Pannick, and not against Mr. Mill or Ms. Fatima. These are two of 100 self-employed barristers practising at Blackstone Chambers. They are not in partnership. Nor is there any suggestion that Mr. Mill or Ms. Fatima had any involvement in the writing of the Article. If the appellant’s argument were accepted, it would follow that in any case at any time in which any of the 100 barristers of Blackstone Chambers appeared before Peter Smith J, the fair-minded and informed observer would take the view that the client could not expect a fair trial because of the prejudice of the judge through the advocate’s membership of Blackstone Chambers. That would be the case irrespective of the advocate’s lack of involvement in the Article or the date of his or her joining those Chambers. The fair-minded observer would not take such an extreme view.

 

 

[I am obviously not a fair-minded observer, because I did take that view…]

 

  • Thirdly, what irked the judge and provoked him into writing the Letter was the failure of Mr. Peto to provide a considered response to his oral complaint some two weeks earlier rather than the Article itself.
  • Fourthly, there was no change of mind by the judge in his assessment of Mrs. Harb’s evidence. The informal indication at the close of the evidence that, subject to the agency issue, he was minded to accept that there was an agreement “as the claimant alleges” is a complete answer to the allegation of change of mind.
  • In summary, Mr. Hollander submits that it is fanciful to suppose that, in these circumstances, the fair-minded observer would consider that there was a real possibility that the judgment that was handed down on 3rd November was infected by bias as a result of the Article.
  • In his letter to the claimant’s solicitors dated 12th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.

 

Shocking and disgraceful is very strong stuff to say about a Judge’s behaviour.

 

  • As we have said, the legal test is not in doubt: see para 54 above. We would, however, emphasise two important points. First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The “real possibility” test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias: see Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 at para 2 per Lord Hope. As Lord Hope also said in Porter v Magill at para 103, the “real possibility of bias” test “is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias” (emphasis added). We mention this because it demonstrates that the approach urged on the court by Lord Grabiner is incorrect. The court does not ask whether a litigant who is being represented by a member of Blackstone Chambers and knows of the Article would be content to have his case heard by Peter Smith J. We have little doubt that most, if not all, litigants represented by a member of Blackstone Chambers, knowing of the Article, would prefer to have their case heard by another judge. We are prepared to accept that some, indeed many, might have very strong feelings on the subject. But the litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.
  • The facts of Helow illustrate the point well. The petitioner was a Palestinian refugee living in Lebanon. She claimed asylum in the UK on the ground that she feared that, if she were returned to Lebanon, she would be attacked by Lebanese and Israeli agents on account of her Palestinian ethnicity and political opinions. Her claim was refused by the Secretary of State, whose decision was upheld by an adjudicator sitting in Glasgow. Her petition to the Court of Session was dismissed by the Lord Ordinary, who was a member of the International Association of Jewish Lawyers and Jurists, whose magazine had carried a number of extreme pro-Israeli articles. The petitioner sought to set aside the Lord Ordinary’s decision on the ground that a fair-minded and informed observer would have concluded that there was a real possibility that she was biased by reason of her membership of an association which was actively antipathetic to the interests with which the petitioner was identified. The House of Lords dismissed the appeal. In doing so, it conducted a detailed examination of the facts to ascertain the nature and significance of the Lord Ordinary’s membership of the association and its published aims and objectives. The House also said that it could be assumed (and took into account) that the judge was able to discount material that she had read and reach an impartial decision according to the law. We expect that the petitioner would have been very unhappy that her petition had been determined by the Lord Ordinary. No doubt she would have preferred a judge who had no involvement with a body like the association. From her subjective point of view, it might have appeared that there was a real possibility that the judge had been biased. But the test is an objective one and the focus is on the fair-minded informed observer. The approach advocated by Lord Grabiner fails to draw that critical distinction.
  • It also fails to take account of the important point that, even if a judge is irritated by or shows hostility towards an advocate, it does not follow that there is a real possibility that it will affect his approach to the parties and jeopardise the fairness of the proceedings. From time to time, the patience of judges can be sorely tested by the behaviour of advocates. Sometimes, a judge will overreact and unwisely make an intemperate comment. But judges are expected to be true to their judicial oaths and not allow their feelings about an advocate to affect their determination of the case they are hearing. The informed and fair-minded observer is to be assumed to know this.
  • Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances and it is for the court to make an assessment of these: see Competition Commission v BAA Ltd and Ryanair Ltd [2010] EWCA Civ 1097 per Maurice Kay LJ at paras 11 to 13 and the authorities cited there. It is common ground before us that the relevant circumstances in this case include all the facts set out at paras 57 to 59 above, although some of these were not in the public domain. It was held in Virdi v Law Society [2010] EWCA Civ 100 that the hypothetical fair-minded observer is to be treated as if in possession of all the relevant facts and not only those that are publicly available. Stanley Burnton LJ gave a number of reasons for this conclusion at paras 43 to 48 of his judgment. This reasoning is binding on this court. In any event, we are satisfied that it is correct.
  • With these introductory comments in mind, we can now deal with the allegation of apparent bias in this case quite shortly. We start by saying that we do not accept the submission of Mr. Hollander that the Letter was merely a complaint about Mr. Peto’s failure to respond to the judge’s earlier oral complaint. It is true that the third paragraph complains that Mr. Peto “said that you would get back to me and you have not”. But the rest of the letter is about the “outrageous” Article and his reaction to that. It is impossible to describe the Letter as confined to a complaint about Mr. Peto’s failure to respond.
  • We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.

 

Let me just quickly try to count the number of angels dancing on the head of this pin. An informed and fair-minded observed would conclude there was a real possibility that the Judge was biased against all members of Blackstone Chambers, but NOT that this would affect the outcome of any hearing in which they were involved. Okay….

 

  • But there is a further reason why this ground of appeal must fail. The assessment of whether an informed and fair-minded observer, having considered the facts, would conclude that there was a real possibility of bias depends on an examination of all the relevant facts. It is fact sensitive. In our view, the facts in the present case show that the possibility that Peter Smith J was actuated by bias against the Prince is unrealistic. We accept the submission of Mr. Hollander that the chronology of events is very powerful. The judge indicated in open court immediately after the conclusion of the evidence that he was of the provisional view that “there was an agreement as the claimant alleges”. This was despite his (at times) aggressive questioning of Mrs. Harb. The only caveat he entered was in relation to the agency issue. But his concern in relation to that issue seems to have had nothing to do with the credibility of the witnesses. Rather, at that stage it concerned a question of law as to whether an agent may be liable where there is an undisclosed principal. That may be an elementary question (as Lord Grabiner suggested), but that is neither here nor there.
  • The critical point is that the question whether a binding agreement was concluded at the meeting on 20 June 2003 was at the heart of the case. It turned to a large extent on the credibility of the oral evidence of Mrs. Harb and Mrs. Mustafa-Hasan and the witness statement of the Prince. We are not persuaded that there is a real possibility that the judge changed his mind about their evidence after reading the Article. It is true that the judge could have amended his draft judgment after reading the Article so as to make findings favourable to Mrs. Harb which were not contained in the original draft. But the judge said that the only amendments that he made were to deal with the note on the agency authorities and otherwise the amendments were not material. We see no reason to disbelieve this and we did not understand Lord Grabiner to submit that we should do so. More fundamentally, we think it fanciful to suppose that the judge made major changes to his assessment of the evidence simply as a reaction to the Article or that his decision on the agency issue owed anything to a bias against the Prince. There is no evidence to suggest that he did so. In our view, the informed and fair-minded observer would not conclude that there was a real possibility that the judge behaved in this way.
  • For all these reasons, regrettable though the judge’s conduct was in writing the Letter, we reject the allegation of apparent bias.

 

 

Whilst Judges can get things wrong and make mistakes, we do have a system that allows those mistakes to be put right on appeal.  (Even then, we probably don’t get everything right, and not every mistake is corrected and not every appeal succeeds)

 

 

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Pre-flight checklist

Posted on June 15, 2016 by suesspiciousminds

 

I found quite a lot of Re F (Children) 2016 to be fairly stodgy porridge, eaten in the Scottish style with salt rather than sugar. That is to say, that whilst it would no doubt have been very good for me, I didn’t enjoy it much and spent most of my time with it pushing it around rather than actually consuming it.

It was Hague Convention proceedings, and I can’t actually face discussing the facts or the decision, which I’ll provide a link to if you are keen to read it.

There were two diamonds in it though, and as they were delivered by the President, expect to see him quoting them in future judgments approvingly and building upon them.

The first was in relation to criticisms about what was missing from the judgment of the original trial Judge. One might expect that the President, who after all authored Re B-S and the call to arms for judgments to show their working and be robust and leave no stone unturned, might get vexed by things being missed out of a judgment, but that of course was BEFORE the Court of Appeal got drowned in appeals and sick to the back teeth of appeals where the decision itself seemed okay but the judgment didn’t tick all of the boxes.

So we have a Court of Appeal shift in emphasis (this has been building over the last two years, but this really does put down a marker.  Don’t come to us on the basis of absence of ‘show your working’ unless the sums are also clearly wrong). I mean, it isn’t often that the Court of Appeal (still less the President) leans on a quotation from Mostyn J to demonstrate a point.

 

Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.”

 

 

Fuel? Check. Landing Gear? Check. Rudder? Check. Likely effect on the plane of any change of circumstances?

Fuel? Check. Landing Gear? Check. Rudder? Check. Likely effect on the plane of any change of circumstances?

 

I’m totally in favour of judgments focussing on a robust analysis of the evidence and laying that evidence alongside the law, and setting out how the decision is reached, rather than the current model I see SO often in the Bailii reports of “If I namecheck and quote from every relevant authority, it will be assumed that I had those principles in mind, so I don’t actually need to show how I applied them, I just need to put in 10 pages of boilerplate that will bore the parties to tears, just to be a boilerplate bullet-proof vest against an appeal”

[I only started seeing those AFTER the Re B-S guidance, but correlation is not causation 😉 ]

 

And thus on appeals, Piglowska is back in favour, as opposed to the ‘can I find fault with the judgment’ approach that we had for a year or so post Re B-S

 

 

  • The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

 

“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann’s phrase, the court must be wary of becoming embroiled in “narrow textual analysis”.

 

 

The next point, touching on the recent case of Re E, where the Court of Appeal flagged up that the Supreme Court’s decision that there was no presumption, rebuttable or otherwise, that a child ought not to give evidence, did not seem to have filtered through to Courts and lawyers on the ground.

 

As the appeal had already been rejected, the President acknowledged that nothing turned on what he was about to say, but the word “Obiter” is not carved into his heart in Times New Roman 12 point font for nothing…

 

Because, as I have said, nothing ultimately turns on any of this, I can take matters fairly shortly, in large part merely identifying the relevant authorities without any elaborate citation.

 

And then

 

 

  • The starting point is, of course, Article 12(2) of the United Nations Convention on the Rights of the Child and Article 11(2) of Council Regulation (EC) No 2201/2003, commonly referred to as BIIA, both of which identify the obligation on the court to ensure that the child is given the opportunity to be “heard”. Next I refer to the well-known passage in the characteristically prescient judgment of Thorpe LJ in Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011, paras 28-29, culminating in his observation that “judges have to be … alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings.” Thorpe LJ returned to the same theme in Re G (Abduction: Children’s Objections) [2010] EWCA Civ 1232, [2011] 1 FLR 1645, para 15, a case where (see paras 20-21) Thorpe and Smith LJJ themselves met the child, a 13-year old girl, and again in Re J (Abduction: Children’s Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457, paras 33, 42.
  • Well before then, in In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, paras 57-61, the House of Lords had indicated that merely enabling the child to meet the judge might not be sufficient. Having observed (para 59) that “children should be heard far more frequently in Hague Convention cases than has been the practice hitherto. The only question is how this should be done”, Baroness Hale of Richmond continued (para 60):

 

“There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face-to-face interview with the judge.”

I add another possibility, the child giving evidence but without being joined as a party: see Cambra v Jones (Contempt Proceedings: Child joined as party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, paras 10, 14.

 

  • The Supreme Court returned to the topic, this time in the context of care proceedings, in In re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12, [2010] 1 WLR 701, holding that there is no longer a presumption, or even a starting point, against children giving evidence in family proceedings. In In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038, the Supreme Court considered whether a 13-year old girl, T, should be joined as a party to Hague proceedings. Reversing this court, it held that she should.
  • Next, I should refer to In re M and others (Children) (Abduction: Child’s Objections) [2015] EWCA Civ 26, [2016] Fam 1, para 155, and, more particularly, to In re D (A Child) (International Recognition) [2016] EWCA Civ 12, paras 41, 44, 47, 48, where the obligation of the court to ensure that the child is given the opportunity to be heard and “the right of the child to participate in the process that is about him or her” were said to be fundamental principles of universal application, “reflected in our legislation, our rules and practice directions and our jurisprudence” and where it was said that “the theme of the case law is an emphasis on the ‘right’ of participation of those ‘affected’ by proceedings.”
  • Finally, I refer to the very recent decision of this court in Re E A Child) [2016] EWCA Civ 473, paras 46-48, 56-63, and, in particular, McFarlane LJ’s acid observation (paras 48, 56) that Baroness Hale’s judgment in In re W “would seem to have gone unheeded in the five or more years since it was given” and that “the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact.”
  • It is apparent that in relation to all these matters there has been a sea-change in attitudes over the last decade and more, even if on occasion practitioners and the courts have been and still are too slow to recognise the need for change or to acknowledge the pace of change. Moreover, and I wish to emphasise this, the process of change continues apace.
  • In April 2010, “Guidelines for Judges Meeting Children who are Subject to Family Proceedings” were issued by the Family Justice Council with the approval of Sir Nicholas Wall P: [2010] 2 FLR 1872. In December 2011, and following the decision of the Supreme Court in In re W, the Family Justice Council issued Guidelines, endorsed by Sir Nicholas Wall P, on “Children Giving Evidence in Family Proceedings:” [2012] Fam Law 79. More recently, the whole topic, with other related matters, has been considered by the Children and Vulnerable Witnesses Working Group which I established under the Chairmanship of Russell and Hayden JJ in May 2014. Their interim report was published in July 2014 (see [2014] Family Law 1217) and the final report in February 2015 (see [2015] Family Law 443). The Family Procedure Rules Committee is currently considering the extent to which, given limited resources, the recommendations of the Working Group can be fully implemented. Whatever the outcome of that discussion, it is plain that the further changes in our approach to these matters which are now widely acknowledged require to be implemented, and sooner rather than later.
  • One thing is quite clear: that proper adherence to the principles laid down in In re W will see ever increasing numbers of children giving evidence in family proceedings.
  • One of the drivers for this is the point which this court emphasised in In re KP (A Child) (Abduction: Rights of Custody) [2014] EWCA Civ 554, [2014] 1 WLR 4326, paras 53, 56, namely, that a meeting between the child and the judge is “an opportunity: (i) for the judge to hear what the child may wish to say; and (ii) for the child to hear the judge explain the nature of the process;” that the “purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say;” and that if “the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.” The corollary of this is that, quite apart from all the other drivers for change, there are likely for this reason alone to be more cases in future than hitherto where the child either gives evidence, without being joined as a party, or is joined as a party.

 

 

Heavy hint being dropped there that the Court of Appeal are itching to get their hands on an appeal where a Judge has refused to hear from a child, and that there’s a judicial speech already drawn up to deliver on it. Consider yourselves warned.

 

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Once more unto the breach, Hodgson style

Posted on June 12, 2016 by suesspiciousminds 
Once more unto the breach, dear friends, once more;
Or bring on James Milner, to shore things up!
In peace there’s nothing so becomes a man,
As rubbing your face furiously on the bench;
But when the blast of war blows in our ears,
Then bring on James Milner to shore things up:
Stiffen the sinews, conjure up the blood,
Leave Jamie Vardy frustrated in a tabard:
Then lend the eye a terrible aspect;
Let it pry through the portage of the head,
Like the brass cannon; let the brow o’erwhelm it
As fearfully as watching Raheem Sterling
Scuttle crablike into blind alley,
Swill’d with the wild and wasteful opportunity.
Now set the teeth and stretch the nostril wide;
Hold hard the breath and bend up every spirit
To his full height. On, on, you noblest English,
I think I might bring on James Milner to shore things up!
Fathers that, like so many Alexanders, 
Have in these parts from morn till even fought,
And sheathed their swords for lack of argument.
Dishonour not your mothers: now attest,
That those whom you call’d fathers did beget you.
Be copy now to men of grosser blood,
And teach them how to bloody cross a ball.

And you, good yeoman,
Whose limbs were made in England, show us here
The mettle of your pasture: let us swear
That you are worth your breeding; which I doubt not;
For there is none of you so mean and base,
That hath not noble lustre in your eyes.

I see you stand like greyhounds in the slips,
Straining upon the start.
Yet sit you down, Vardy, I seek dour industry instead
The game’s afoot:
Follow your spirit; and upon this charge,
Cry ‘God why is Harry taking the corners? England! and Saint George!'

 

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Trying to get child back after adoption order made

Posted on June 12, 2016 by suesspiciousminds

This case made quite a lot of news last year – parents of a boy born in 2012, who suffered significant fractures. Within care proceedings, there was a finding of fact that the parents had caused these injuries and in 2013, a Care Order and Placement Order was made. In 2014, the child was placed with prospective adopters and an adoption order was made. In late 2015 (3 years after the injuries, and a year after the adoption order was made) the parents were acquitted at the criminal trial.  In fact, the Judge at the criminal trial directed the jury to acquit as there was no case to answer.  (That’s obviously a lot stronger than the case going before a jury and the Jury not reaching a 12 or 10 juror verdict that they were sure the parents were guilty. This was a criminal Judge saying that the evidence showed no case to answer)

Understandably, there’s a lot of public disquiet about whether there’s been a miscarriage of justice here, and what would happen.

 

The law isn’t very helpful to the parents in terms of their ultimate aim to get their child back. An adoption order being overturned after it has been made is very very unusual. I’ve found only 2 reported cases where that happened. One was a step-parent adoption which the birth father had agreed to and later learned that the mother had lied to him, concealing the fact that she had a terminal illness and he would never have agreed to the adoption. The other was

PK v Mr and Mrs K 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2316.html

 

Where the child had been adopted by family members who had physically abused the child, who later left them and went back to live with mother. Everyone in the case was supportive of the adoption order being revoked.  I wrote about the difficulties here:-

Revocation of adoption order

 

The lead case on ‘oh, maybe we got this wrong, but the adoption orders have been made now’ is  Webster, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C.  The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/59.html

 

“Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

 

 

Anyway, in this case

Re X (A Child) 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1342.html

 

the parents went to the Court of Appeal, and all parties there *  supported a hearing taking place to DECIDE whether there should be a re-hearing of the finding of facts taking place, for the benefit of the child having the truth about their life and childhood and the public confidence in fairness of the justice system.

 

(* I add the asterisk, because as you can see from Re X, the adopters – who were at that point the child’s legal parents and had been for over a year, were not told about the circumstances or the litigation and were not parties to the proceedings. I’m not at all sure how that is fair or compliant with their article 6 rights. They were and are in law, the legal parents of the child, and it clearly had an impact on their family life.

Ms Fottrell QC made that same point, and I absolutely agree with her. The President bravely ducks the issue.

At the adjourned hearing, Ms Fottrell set out her clients’ position as being that they “appreciate and accept that in the interests of fairness the birth family are entitled to have a hearing on the facts following on from the outcome of the criminal trial”, but opposing any application to set aside the adoption order. Although making clear that her clients made no point against any of the parties, Ms Fottrell submitted that the decision to exclude the adoptive parents – X’s legal parents – from the appeal process and the permission hearing in the Court of Appeal was wrong and in breach of both Article 6 and Article 8 of the Convention. I record Ms Fottrell’s submission on the point; it is not a matter on which it would be proper for me to comment.)

 

The case has now come before the President, and he has published this judgment.   Bear in mind that the re-hearing has not taken place, so at this stage the family Court hasn’t decided whether the threshold criteria was wrongly found in 2013, or even whether it was right then on what was known at the time, but on what we know now it can’t stand.  The parents have been cleared and pretty comprehensively in a criminal Court, but the standard of proof is higher there, so it doesn’t automatically follow that any re-hearing would be bound to clear them. It very well might, but it might not.

 

As a matter of law, there isn’t really an easy legal framework for this to operate in. The parents aren’t able at this stage to apply to revoke the adoption application, because the findings in the care proceedings still stand, it isn’t an appeal out of time. So we of course use the Court’s magical sparkle powers of the inherent jurisdiction to have a decision as to whether to have a re-hearing. That’s not automatic legal aid, but it doesn’t say in the judgment that the parents  lawyers are acting pro-bono (for free) so they must have been one of those rare cases where the Legal Aid Agency grant exceptional funding under s10 LASPO.

 

The President reminded everyone that if there was a re-hearing and the findings were overturned, that would not automatically lead to the return of the child, and that the Court are not dealing with that application at all (yet), but of course, it is a prelude to the parents making such an application if the re-hearing vindicates them.

 

 

  • I am not concerned today with any application which may hereafter be made by the birth parents seeking to challenge the adoption order. That is a matter for another day and, in all probability, for another court. It is relevant only because Ms Cover has made it clear on instructions, both in her position statement and again orally, that the present application before me is, at least in part, what might be called the springboard for such a further application. However, as I observed in In re C, paras 44-46:

 

“44 The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: In re W (Children), para 149. In that case, the adoption orders “were made in good faith on the evidence then available” (para 177) and therefore stood, even though the natural parents had suffered a “serious injustice”: para 148. In re W (Children) can be contrasted with In re K (A Minor) (Adoption: Foreign Child) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (p 227) “inept handling by the county court of the entire adoption process” and (p 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application”. Butler-Sloss LJ held (p 228) that: “there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

45 Whether the natural father would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.

46 In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.”

 

  • Likewise here I express no view on a point of no little difficulty and which is, as I have said, a matter for anther day. The significance of it for present purposes is simply that, as Ms Fottrell correctly submitted, success by the birth parents (if they are successful) on the re-hearing of the facts by no means assures them of success in seeking to have the adoption order set aside.

 

 

 

In terms of whether there should be a re-hearing, the President summed up the arguments

 

 

  • The case put forward by the birth parents is simple and compelling. They have been, they say, just like the parents in Webster, the victims of a miscarriage of justice. They seek to clear their names, both so that they may be vindicated and also so that there is no risk of the judge’s findings being held against them in future, whether in a forensic or in any other context.
  • For different reasons, their desire for there to be a re-hearing is supported by X’s guardian, who submits that it is in X’s best interests that he should know the truth about his birth parents and about what did or did not happen to him.
  • I agree with the guardian. X has a right (I put the matter descriptively rather than definitively) to know the truth about his past and about his birth parents. This has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W [1972] AC 24, 57, Lord Hodson, in the context of disputed paternity, said that:

 

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth.”

In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ said, apropos paternity:

“every child has a right to know the truth unless his welfare clearly justifies the cover-up.”

To the same effect, in Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, [2002] 1 FLR 1145, para 29, Thorpe LJ identified one of the principles to be drawn from the cases as being:

“that the interests of justice are best served by the ascertainment of the truth.”

 

  • But this principle is not confined to issues of paternity, as is clear from Strasbourg law, which recognises it as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, and Mikulic v Croatia (2002) 11 BHRC 689, [2002] 1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.
  • The wide impact of the principle that, from a child’s perspective, their interests are best served by the ascertainment of the truth, whatever that truth may be, is illustrated by Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, para 13(vii):

 

“the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out.”

 

  • There is also, however, a wider and very important public interest which, in my judgment, is here in play. I make no apologies for repeating in this context what I said in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2394 (Fam), [2014] 1 FLR 523, paras 29-30:

 

“29 … We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [[2007] EWHC 136 (Fam), [2007] 2 FLR 597] and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], ‘the system provides a remedy. It requires determined lawyers and determined parties’. So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

[30] Almost 10 years ago I said this (Re B (A Child) (Disclosure), para [103]):

‘… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.’

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.”

 

  • In my judgment, and giving appropriate weight to the terrible burden which what is proposed will inevitably impose on the adoptive parents, although bravely and responsibly they do not oppose what is proposed, the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.

 

 

 

The law on re-opening a case is Re Z, and the President quickly skates through that (having already decided above that there is going to BE a re-hearing)

 

The re-hearing is going to take place in October 2016. That will be four years after the injury, three years after the Care Order, two years after the Adoption Order, and a year after the parents were exonerated at the criminal trial.  If nothing else, this case has not shown that the legal process can react swiftly. The President has also indicated that there may be before then a hearing about how the Press can report the re-hearing (thinking of the Poppi Worthington case, and the press interest there is going to be in this, it might for example include almost-live reporting and tweeting)

https://www.theguardian.com/uk-news/2015/oct/09/parents-cleared-of-abuse-launch-legal-battle-to-win-custody-of-adopted-baby

 

IF the findings are overturned at that re-hearing, there’s still a massive legal mountain to climb for the parents. The guidance in Webster is from the Supreme Court, so it isn’t open to the President to simply ignore it. It does however, give the small chink of light  An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”:

So a Court could potentially find that these ARE highly exceptional and very particular circumstances.  (though showing why very similar circumstances in Webster didn’t meet the test but this one does is going to require some particularly skilful footwork.)

 

I appreciate that people’s FEELINGS about this will be very strong, and many of you will strongly support the parents getting the child back. If I was doing the odds, based on the Webster decision, it is at best a 20% chance, even if they overturn the findings.  The Webster decision, in law, is a really high mountain to climb.  That test, as a Supreme Court decision, is a test that really only Parliament or the ECHR could change. So it is not hopeless for these parents, but legally they have a mountain to climb.

It is certainly true that the public debate and the judicial position on adoption is rather different than it was in 2008 when Webster was decided. It is possible that this will have an impact.

 

A dreadful set of circumstances for everyone involved – if the parents are found both to the criminal AND civil standard of proof to have not injured their child then what has happened to them has been the most awful thing one can imagine. They will have been completely let down by the British justice system.

It is almost impossible to understand how the child would make sense of it. The child’s adopters, who have had this child in their home for two years and who are now the legal parents of that child and consider him as part of the family, and who went into that process in complete good faith have to face months of doubt and anxiety about the future.  It would be nice if whatever the Court finally decide about the adoption order, both his adoptive parents and his birth parents get to play a strong part in his future life, but that in itself would be a brand new arrangement, never tried before in England, and litigation doesn’t often foster that spirit of all parties wanting to work together to do what is best for the child.

 

One thing is for sure, we are going to have a huge public debate about adoption in October 2016 when this case is decided, and an even bigger one if the parents are cleared but the adoption order still stands  (as the precedents suggest that it would)

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