Author Archives: suesspiciousminds

I have a warrant for your arrest… oh, no I don’t.

Posted on December 23, 2015 by suesspiciousminds

 

This must be every lawyer’s worst nightmare, to confidently tell a Judge that he has jurisdiction to do what you are asking for and be wrong, and worse yet to have that judgment published as precedent that others rely on and then have the Judge have to publish a retraction judgment.

 

Al-Baker v Al-Baker 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3725.html

 

From the much-loved by this site Mostyn J.

Here, where a husband in ancillary relief proceedings had been declared to be guilty of contempt of court and ordered that he be imprisoned for nine months as a result, but was in another European Country, counsel for the wife  (NOT Mr Todd QC who was representing her in this hearing, NOT him, someone else) had asked Mostyn J to issue a European arrest warrant, so that the husband could be arrested abroad and brought back to this country for punishment.

 

  1. On 27th October 2015 I gave a judgment in this case ([2015] EWHC 3229 (Fam)), where I found the husband to be guilty of contempt of court and sentenced him to nine months’ imprisonment. During the case counsel then appearing for the wife applied to me to back my committal order with the issue of a European arrest warrant.
  2. In para.10 of my judgment I said this:

    “The wife is proceeding on advice that this is a sensible way of advancing her claim and it is not for me to question that. It has been asserted that this being a sentence of nine months it would be open for this court to request that a European arrest warrant be issued. That would have the effect of detaining the respondent anywhere within the European Union and having him brought to this court if the European arrest warrant procedure is available. I confess that when I first read this I was surprised that it was being asserted that the arrest warrant procedure was available as it was my belief (it is fair to say not based on much education) that the European arrest warrant was confined only to what can strictly be described as criminal offences and a civil contempt was not in that category. However, Mr. Calhaem has placed before me the Council Framework Decision of 13th June 2002 on the European arrest warrant and Surrender Procedures between Member States of which Article 2.1 states:

    ‘A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’

    The use of language for “acts punishable by law” would certainly embrace a custodial penalty imposed for contempt of court and, recognising I have only heard only one side, I am satisfied in these circumstances that the sentence I have awarded is properly to be backed by a request for a European arrest warrant and I will complete the necessary annex form when the order is made.”

  3. That passage shows my initial surprise that it was suggested that the issue of the warrant was a legitimate course. As it happens, it was, in fact, a completely illegitimate course. The decision of the Supreme Court of R v O’Brien [2014] UKSC 23 confirms, first, that a European arrest warrant can only be sought by an appropriate person and that counsel for the wife would not constitute such an appropriate person and, secondly, that the scheme does not act to encompass civil contempts, even if they result in a sentence of imprisonment.
  4. It is a matter of some surprise to me that this recent decision from the highest court had not been alighted upon by those representing the wife when they made the application that they did. This has resulted in me giving a judgment which is legally incorrect and which, for all I know, may have led other people in other cases to have applied for a European arrest warrant following a finding of contempt. So I take the opportunity today to correct my previous judgment so as to delete para.10 and to confirm that the European arrest warrant procedure is not available in contempt proceedings.

 

We don’t really get to learn whether the European Arrest Warrant was ever acted upon, but if it had been, the Court could have been on the hook for a wrongful imprisonment claim.

 

The other thing of interest in this judgment was the long-time favourite issue of this blog – perjury.

 

In particular, whether a person who is found to have lied in their statement has committed perjury. Mostyn J thinks not.  [Unless it is an affidavit or sworn statement]

 

 

  1. In the skeleton argument produced for this hearing, at para.24, it is said this:

    “It is clear from H’s statement of 16th April 2015 (D45) that H has perjured himself in relation to his alleged business dealings in Dubai. He says within that statement (see paragraph 84 at D68) that he does not own property in the Emirates and, in correspondence, has never owned any. This is clearly incompatible with the evidence produced from the wife’s Dubai lawyers in their affidavit at D88. H has lied”.

  2. The material to which I am directed by that passage is contained in a statement made by the husband which was verified by a statement of truth under Part 17 of the Family Procedure Rules. The statement itself was not sworn. To make a false statement, as opposed to a false affidavit, is not perjury. This was by design of those who framed the Civil Procedure Rules which have been mirrored by the Family Procedure Rules. To file a false statement is a contempt of court but it is not perjury. To file a false statement can lead to an order for civil committal for up to two years, but it cannot lead to criminal proceedings for perjury. Arguably it could lead to criminal proceedings under the Fraud Act but it cannot lead to criminal proceedings for perjury.

 

 

I think that Mostyn J is quite right here, though I was slightly surprised when I first read it. The wording of the offence from the Perjury Act 1911 is here

 

If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

 

A statement which is signed, even with the Statement of Truth, is not a sworn statement, for the purposes of the Perjury Act 1911.

If the author of the statement repeats the lie during oral evidence, where they ARE giving SWORN evidence, the offence would be committed.

I am now pondering whether this is captured during the standard opening question in Evidence in Chief  “Can you confirm that the contents of your statement are true and accurate to the best of your knowledge and belief?”

If you say yes to this, and there is a lie in your statement, has that answer amounted to perjury, or does the offence only arise when the question about the particular matter is put to you and you lie in answer.

 

In any event everyone, lying to the Court is wrong, mmmm’kay?

 

mmmkay

 

 

 

The wife then made an allegation that the father had committed perjury in his Form E, which is of course a sworn statement and was asking that the police be notified of the offence of perjury. As Mostyn J pointed out, whether or not the father was lying in the Form E was a matter that was disputed and still to be litigated within the ancillary relief proceedings.  It would not be a Mostyn J judgment if we did not learn a new word in it, and here it is “pendency” – in the state of being pending and specificaially with litigation whilst it is still ongoing and not concluded .  (I’m not entirely sure myself what ‘in the pendency of the litigation’ adds to the alternative wording of ‘whilst the litigation is ongoing’ but such is life)

 

 

  1. However, it is the wife’s application, pursuant to what appears on the face of her notice of application, that at this stage, during the pendency of the case, there should now be a reference to the police of her allegation of perjury. This is, to my belief, wholly unprecedented. Mr. Todd is constrained to agree that he cannot identify any case in the ancillary relief field where there has been a reference to the police of perjury or fraud during the pendency of proceedings. Moreover, under the comparable jurisdiction which is incorporated in CPR 31.22(1), which requires the court’s permission to reveal disclosed documents to any third party, Mr. Todd has been unable to identify one case where there has been a reference to the police of fraud or perjury during the pendency of the proceedings, where the very allegation that is sought to be referred to the police is in issue in those proceedings.
  2. In my judgment, this application has been made prematurely. It seems to me that the motive is to replace the pressure of the European arrest warrant with a different kind of pressure to try and bring the husband, who is steadfastly not engaging in the proceedings (he is not negotiating, to my knowledge, or making proper disclosure), to heel in order that the case can be adjudicated fairly. But that is not a proper motive for seeking what, in my mind, is a premature reference to the police. In my judgment, it would be wholly wrong for this court to refer these matters to the police in advance of its judgment on those very matters and for these reasons the application is dismissed.
  3. However, I want to make it clear, when dismissing the application, that I am not in so doing preventing the wife from making a comparable application once judgment on her main claim has been rendered. No question will arise of issue estoppel or other abusive of conduct on her part. If, following the giving of judgment in this case and the making of findings, the wife nonetheless thinks it is appropriate to invoke the criminal justice procedures then it will be open to her to make a fresh application in the terms of her application of 4th November 2015.

 

I always love that Mostyn J is not averse to using footnotes in his judgments, and there is one here which I’ve not encountered before [the second].

 

  1. LATER
  3. Mr. Todd applies for permission to appeal. Under FPR 30.3(7) permission to appeal may only be given where (a) a court considers the appeal would have a real prospect of success or (b) there was some other compelling reason why the appeal should be allowed. In my judgment, an appeal would not have a real prospect of success. It would have no prospect of success at all. Furthermore, I cannot identify any other compelling reason why the appeal should be heard. The fact that there has never before been a case in the annals where a reference has been made during the pendency of proceedings to my mind hardly supplies a compelling reason why an appeal should be heard. To my mind, the empirical evidence suggests quite the opposite, that this is an appeal which should not be heard. LATER STILL
  4. Although para 1 of this judgment makes it perfectly clear on a natural reading that counsel who “then” appeared on 27 October 2015 was not the same as counsel who appeared on this occasion, and although a reading of the first judgment referred to there would have confirmed this to be the case, Mr Todd QC is highly insistent that this is spelt out in this judgment. I am doubtful that the clarification procedure extends to requests for editorialisation for counsel’s personal reasons, but this additional paragraph has that effect.

 

 

7 Comments

Posted in case law and tagged , , , , , , , , . Bookmark the permalink.

Evidence from witnesses who do not speak English

Posted on December 18, 2015 by suesspiciousminds

 

As this is an issue which is cropping up more and more in recent years, it is helpful to have this clear and comprehensive guidance from the High Court, courtesy of Singer J   (actually echoing the guidance of Jackson J in 2013, NN v ZZ [2013] EWHC 2261 (Fam) but helpful to jog people’s memories – I had missed it first time around)

 

Re  A, B, C and F (children) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3663.html

 

 At my invitation, counsel made submissions about the way in which evidence from witnesses who do not speak English should be prepared. In the light of those submissions, I record the following basic principles:

(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness’s own language before being translated into English. This is implicit from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2 of which states that:

Where the affidavit/statement is in a foreign language –

(a) the party wishing to rely on it must –

(i) have it translated; and

(ii) must file the foreign language affidavit/statement with the court; and

(b) the translator must sign the translation to certify that it is accurate.

(2) There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness’s own language.

(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.

(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.

(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.

(6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.

(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator’s jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.

(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.

(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness’s own language and the English translation should be provided to them well in advance of the hearing.

(10) If a statement has been obtained and prepared abroad in compliance with the relevant country’s laws, a certified translation of that statement must be filed together with the original document.

4 Comments

Posted in case law, international and tagged , , , , , . Bookmark the permalink.

The ISIS flag is apparently not a red flag

Posted on December 18, 2015 by suesspiciousminds

 

 

The President has published his judgment in one of the “are parents taking children to join up with ISIS?” cases

 

This one he has previously given judgment on, and ruled that at an interim stage the children should return home to parents with the parents wearing electronic tags. The mother, and two other adult relatives, were arrested when attempting to board a flight to Turkey with their four children.

Syria, children and electronic tagging

 

This one is the fact finding hearing, as to what the mother’s motivation was.

Re X (Children) (No3) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2358.html

 

First, let me recount the mother’s position at previous hearings  (underlining mine for emphasis)

 

  1. The mother’s case
  2. An order made by Peter Jackson J on 22 April 2015 recorded the mother’s position as follows:

    “The mother disputes that the threshold criteria is crossed. She says that she was intending to travel to Turkey with the children for the purposes of a legitimate family holiday. She says that although she understands why the Local Authority has intervened, her wish is for the children to be returned to her care as quickly as possible or for them to be placed with a member of their family. Once the children have settled in their current placement, she would also like to have increased contact with them so that this takes place more than twice per week.”

  3. The mother disputed the local authority’s case as set out in the original Scott Schedule. Her position, as encapsulated in her response to the local authority’s allegation in paragraph 69 (paragraph 78 in the final Scott Schedule), was that “I am a practising Muslim. I do not regard myself as a radical fundamentalist and have no links or contacts with ISIS militants.”
  4. The finding of fact hearing was at that stage listed to start before me on 29 June 2015. Shortly before, the mother’s counsel, Mr Karl Rowley QC, circulated a position statement on her behalf. This set out her position in relation to the findings sought by the local authority as being that:

    “she does not seek to oppose the making of a finding that she was intending to attempt to enter Syria and live in territory governed by the Islamic State. That is not to say that she accepts the truth of the allegations but she does not wish to resist the making of findings on the balance of probability. In these circumstances she does not require cross examination of the local authority witnesses and does not wish to give evidence herself.”

  5. That radical shift in her position gave rise to a certain amount of discussion in court when the hearing began on 29 June 2015. It was left that she would prepare and file a statement. The statement was circulated the next day, 30 June 2015. It represented another radical shift in her position. She acknowledged that she had not been fully open with the court and professionals. Her case now, in short, was (judgment, para 13) that:

    “she had travelled to Turkey to meet up again with, and possibly marry, a man” – I shall refer to him as H – “she had met in this country collecting money for Syrian refugees and whom she understood to be a doctor in Turkey. She denied any intention of travelling to Syria and said “I do not agree with or support or favour anything ISIS do … and have no wish to be involved with ISIS in any way.””

  6. That remains her stance.

 

 

The Local Authority therefore had to seek findings  [again, underlining mine for emphasis]

 

  1. The local authority’s case
  2. As I have mentioned, the final version of the Scott Schedule is dated 17 October 2015 and now runs to 80 numbered paragraphs. Much of this sets out the “agreed context”. Paragraphs 13, 16-20, 22, 24-27, 32, 34b, 36-37, 39-44, 46-48, 51-53, 55, 57-76 and 78-80 contained the findings sought by the local authority which were disputed by the mother. In his final submissions, Mr Simon Crabtree on behalf of the local authority made clear that it no longer sought findings in relation to paragraphs 13-18.
  3. The local authority’s case has seven strands, which can be summarised as follows. In support of its overarching case, the local authority relies upon what it asserts were:

    i) The mother’s acquaintanceship with various individuals who, it is alleged, had travelled via Turkey to Syria in 2014 to take up arms with ISIS militants (paragraphs 19-27).

    ii) Lies the mother told the children’s schools on 27 February 2015 about the reasons for their forthcoming absence from school (paragraphs 28-33).

    iii) The fact that when stopped at the airport on 2 March 2015 the mother gave a false address (paragraphs 36-37).

    iv) The fact that the family’s luggage, when searched at the airport, was found to contain a number of suspect items (paragraphs 39-48); as it is put (paragraph 39), “a large number of items[1] not normally associated with any family holiday.”[2] It is asserted (paragraph 48) that “There is a striking similarity between the items contained in the … luggage and a list of items a known ISIS operative asked a British recruit to bring to Syria with him (and in connection with the same the said recruit was found guilty of possessing items of use to terrorists).”

    v) The fact that, when her house was searched, the items found included (paragraphs 76-77) “ISIS flags” and ‘to do’ lists, written by the mother, “which indicated that the writer of the list was moving and not intending to return.”

    vi) The fact that the mother lied to the police when being asked the purpose of their trip (paragraphs 49-55). She described (paragraph 51) “a multi-faceted trip involving a combination of an adventure holiday, culture, sight-seeing and relaxation.”[3]

    vii) The fact that the mother’s most recent account, as I have summarised it in paragraph 10 above, is a lie (paragraphs 56-65).

  4. This last part of the local authority’s case is further elaborated as follows:

    i) It is said that she met no man in the circumstances she described or at all (paragraph 62). She has (paragraph 63) “manifestly failed to provide any tangible evidence as to his existence and cannot even produce a photograph of him, any contact details or even one of the electronic communications which she claims passed between them.” Furthermore (paragraph 64), “In so far as that man is not a point of contact she had in Turkey for another reason, he is a figment of her imagination.”

    ii) As a separate point, it is said (paragraph 59) that, if her account was true, “it would reveal a mother who was unable to place her children’s needs before her own and that she was prepared to sacrifice her children’s stability, all they knew and their relationship with their father so that she could fulfil her own desire for a relationship with a man she hardly knew.” Furthermore (paragraph 60), if it was true “the extent of her intended folly is revealed by the fact that this man has literally disappeared without trace and left the mother unsupported at a time she needed it most.”

    iii) It is alleged (paragraph 65) that “She has in essence, weaved this account around the notes secreted in the children’s underwear to try to explain away the manifest inherent improbabilities in her first version of events at the eleventh hour and in the face of a growing realisation that no Judge would on the totality of the evidence believe that first account.”

  5. The local authority’s case is summarised as follows (paragraphs 66-74):

    “The reality is, the mother, her own mother and her brother had no intentions of remaining in Turkey.

    They intended to travel with the children from Istanbul to the Turkish border with Syria.

    Once they crossed the border into Syria, they intended to join up with ISIS militants and to supply them with items of use to the group’s combative activities.

    In all probability, they also intended to meet up with those … who had already travelled … to Syria via Turkey.

    In essence, the mother’s plan was to take these children to a war zone.

    As such, she knowingly and intended to place the children at risk of significant harm.

    The sole purpose and intention was … to cross the border into Syria and take up arms with ISIS militants and/or live in the Islamic caliphate ISIS claims to have established in the region for the foreseeable future.

    [Neither] she nor [her brother] had any intention of returning to [her house].

    That is why she suddenly found the money to buy the above electronic equipment which with one exception she financed on credit in February 2015 and why [her brother] paid for the trip using a £12,000.00 loan.”

  6. In conclusion, the local authority asserts (paragraphs 78-80) that:

    “In short, the mother is a radical fundamentalist with links and contacts with ISIS militants and those who seek to recruit others to their cause.

    Although she is arguably entitled to have whatever view she chooses, she is not however entitled to place her children at risk of significant harm or even death in furtherance of such a cause.

    In furtherance of her aims and objectives, [she] is and was prepared so to do and to lie with impunity to conceal her real intentions and motives.”

 

Bearing in mind the two underlined passages, you may be surprised to learn that the President ruled that the threshold was not met, and the children are now living with mother under no statutory orders at all.

 

I have to say that mum’s counsel did a blinding job, but it is still a surprising outcome, on my reading.

 

What about the ISIS flag though?

Thirdly, he submits that the local authority has failed to show that the material recovered from the mother’s home was indicative of her holding such views or being sympathetic to ISIS. The flag is one that has been adopted by ISIS, but it contains the shahada and seal of the Prophet Mohammed, both of which, he says, are important symbols which all Muslims share. The local authority, he correctly points out, has failed to adduce any evidence to disprove the proposition that the flag predated the al-Baghdadi Caliphate, and the mother’s case that she received it from a bookshop some 12 years ago as a gift has not been seriously challenged.

 

[See, I’m NOT a Neo-Nazi, I’m just a collector of flags designed by dentists…]

 

Although the President was not satisfied with mother’s account, the burden of proof was on the LA and he was not satisfied that they had made out their allegations

 

  1. The first point to be made is that, on her own admission, she is, even if she cavilled at the appropriateness of the label, a liar. The contrast between her original case, as I have summarised it in paragraph 7 above, and her revised case, set out in paragraph 10 above is obvious. If elements of her first story have been carried forward into the second, the two are nonetheless so fundamentally different that one or other must be essentially untrue. This is not mere suggestio falsi et suppressio veri; it is simply the telling of untruths, in plain terms lying. The notes to the schools were, on any basis, and wherever the ultimate truth in relation to the trip may lie, false to the mother’s knowledge. Mr Rowley characterises them (paragraph 66) as “ill-advised”. I cannot, with respect, agree. They involved the deliberate uttering of falsehoods. I am also satisfied, and find as a fact, that the mother did indeed give a false address when questioned by DS SH. And the allegations she made in the witness-box against the police were, in my judgment, and I so find, utterly groundless. On matters of fact I accept the evidence of each of the police officers. I cannot accept Mr Rowley’s submissions on the point (paragraph 68).
  2. As we have seen, the mother put herself forward at the hearing as now being completely open, honest and frank. Was she? I am not satisfied that she was. I am unable to accept what she is now saying merely because she is saying it. Some of it may be true. About much of it I am very suspicious. Some of it may well be, in some cases probably is, untrue. But the fact that I am not satisfied that the mother was telling the truth, the fact that I am very suspicious, does not mean that I find everything she said to be a lie. And, as I have already explained, the fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
  3. Be all that as it may, the plain fact is that the mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I am not satisfied that she is being now.

 

 

 

….

 

 

  1. So where, at the end of the day, am I left? There are four key matters, in my judgment, which preponderate when everything is weighed in the balance, as it must be:

    i) The mother is a proven liar. The mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I not satisfied that she is being now.

    ii) H (if that is his true name) is someone known to the mother and who has some connection with Turkey. The mother has wholly failed to persuade me, however, either that she met H in the circumstances she describes, or that their relationship was as she asserts, or that the role (if any) he was to play in Turkey was as she says. I am unable to accept her as being either a reliable or indeed a truthful witness. The mother, in my judgment, has not proved her case in relation to H.

    iii) The mother is an observant Muslim, but the local authority has been unable to prove either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist.

    iv) The luggage contained a significant number of items which cry out for explanation in circumstances where the only explanation proffered by the mother is tied to her story about H which, as I have already explained, I am unable to accept.

  2. It is for the local authority to prove its case. The fact that the mother has failed to persuade me of the truth of her case, in particular in relation to H, does not, as I have already explained, absolve the local authority of the requirement that it prove its case. And, for reasons I have explained and which Mr Rowley appropriately relied on, I must be careful to remember the Lucas point when I come to consider the inferences I can properly draw from the fact, to the extent I have found as a fact, that the mother has lied. The fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
  3. There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion. At the end of the day the question is whether in relation to each discrete part of its case, the local authority has established on a balance of probabilities, applying that concept with common sense, the proposition for which it contends.
  4. Standing back from all the detail, and all the arguments, there are, at the end of the day, two factors of particular importance and which, unhappily, point in opposite directions. The mother, for her part, has not proved her case in relation to H, with the consequence that the only explanation she has proffered for the presence of various significant items in her luggage falls away. The local authority, for its part, has not proved either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist. Weighing these and all the other matters I have referred to in the balance, I am left suspicious of what the mother was really up to but I am unable to conclude that the local authority has proved any part of its case as set out in paragraphs 66-73 and 78-80 of the Scott Schedule.

 

 

It is very difficult to successfully appeal a finding of fact  (the Court of Appeal vacillate from time to time as to whether you even CAN – because technically you appeal an order, not a judgment. In this case, the President did make an order – because he made NO order on the care proceedings or Wardship application, so the LA can appeal that).  The Court of Appeal are very mindful that on a finding of fact hearing the Judge has the advantage of hearing all of the evidence and seeing the demeanour of the witnesses, so are reluctant to interfere.

 

Having said that, I’d appeal the hell out of this one.  The order (which one presumes would have the effect of removing the electronic tags) is stayed until 18th December (oh, today), so we will soon find out whether an appeal has been lodged.

 

 

There’s a lot in the judgment about the contents of the luggage – the President kindly sets out the matters in a footnote.  As indicated above, the President was not satisfied with either the mother’s account (of either a holiday, or that her new boyfirend H had wanted these things) or that the LA had proved that these matters amounted to evidence that mother intended to join up with ISIS

 

Note 1 Including, it is alleged, 9 battery powered or other powered torches, 4 hand-wound torches, 3 solar charger units or power-packs, 4 emergency blankets, 3 new and 2 used rucksacks, 5 mobile phones in excess of the 3 mobile phones chargers carried by the group as a whole, unused computer equipment comprising 6 machines (including 3 identical Samsung devices) and 5 chargers, 3 unused sim cards, 5 Multi-tools devices and power converters etc, what is described as “a large quantity of substantially if not entirely new size ‘large’ and ‘extra-large’ outdoor clothing including coats, waterproof bottoms, breathable t-shirts, gloves and so on”, what is described as “a large amount of medication and panty-liners and tampons”, and “telephone numbers, e-mail addresses and passwords … found on pieces of paper secreted in the children’s underwear in one of the suitcases.”

Note 2 It is further said (paragraph 42) that “By contrast, the luggage did not contain outdoor clothing of a sort which might have been associated with an adventure or camping holiday for (amongst others) 4 children”, (paragraph 43) that “Although there was a large quantity of large and extra-large outdoor clothing there was bar one piece, an absence of such clothing in sizes that would fit any of the children and in particular, X1”, and (paragraph 44) that “Those and most of the other supposedly camping equipment was or appears to be completely new.”

 

14 Comments

Posted in assessment of risk, case law, international and tagged , , , , , , , , . Bookmark the permalink.

Appeal due to ‘incompetent’ representation (appeal refused)

Posted on December 18, 2015 by suesspiciousminds

 

I think we’re all familiar from American movies and TV shows with the concept that you can overturn the result of a legal case if your representation was so poor that it resulted in a mistrial. It’s actually very rare in England. This is a criminal case where the person convicted of his wife’s murder sought to appeal on exactly that basis.

I’d best make it clear from the outset that the Court of Appeal decided that the representation was not sufficiently incompetent to make the conviction unsafe, but they did have quite a lot to say about it and suggested that the Bar Standards Board take a look at the case. I will absolutely stress that as a result, the Court of Appeal have made NO findings about Mr Wolkind QC’s conduct or competency, and the Bar Standards Board have not even considered the case yet. So I am simply reporting what was described in the case.

 

R v Ekaireb 2015

 

http://www.bailii.org/ew/cases/EWCA/Crim/2015/1936.html

 

Mr Ekaireb was convicted of his wife’s murder in 2006. His wife’s body was never found, nor did anyone find blood or a weapon. There were two possible accounts – either his wife left him extremely suddenly and nobody has ever seen her again, or he murdered her.  That’s a difficult murder trial to run, because it is going to be based on looking at every scrap of circumstantial evidence and building on it if you are the Prosecution, or knocking it down if you are the Defence.

 

The legal test on an appeal being allowed due to incompetence of representation is :-

 

  • It was agreed that the law relating to the basis upon which an appeal against conviction grounded upon the incompetence of the advocate should be considered was correctly stated by Buxton LJ in R v Day [2003] EWCA Crim 1060 at paragraph 15:

 

“While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.”

 

  • At paragraph 52 of the decision of this court in R v Bolivar & Lee [2003] EWCA Crim 1167 the then Vice President, Rose LJ, had expressed the test:

 

“Professionalism requires that a barrister should do his job properly, disregarding such matters. Of course, if his performance on behalf of a client is affected by such matters, different considerations apply. Hence, in our judgment, the test to be applied in relation to a barrister’s conduct, is: was it Wednesbury unreasonable and such as to affect the fairness of the trial?”

Both counsel submitted that the formulation was not apposite to the present case because that concerned advocacy affected by the personal circumstances of the barrister. We agree. In any event, the formulation by Buxton LJ is the more modern formulation. It is simpler to apply; it avoids consideration of how Wednesbury unreasonableness is to be applied to the conduct of an advocate; and it is more in accord with the formulation approved in a judgment of the Privy Council in Sankar v. State of Trinidad and Tobago [1995] 1 W.L.R. 194 at 200F–G.

 

 

It isn’t relevant that the client wasn’t impressed, or that he didn’t like the tactical decisions or style, or that another barrister might have done better – the performance has to be so flagrantly incompetent that it made the process unsafe , because of identifiable errors or irregularities in the trial.  As far as I’m aware, there isn’t a reported case in care proceedings of a decision being overturned on an application of incompetence of representation, but I’m fairly sure that the Court would make use of this high test if one were made.

 

It certainly wasn’t a great start for Mr Wolkind QC, who had been selected by the client as a result of reading his website http://www.topcriminalqc.co.uk/ rather than through chambers website.

 

  • The trial was originally scheduled to begin on 7/8 October 2013, but then moved back to 21 October 2013. On 10 October 2013 Mr Wolkind informed his solicitor and the appellant that the first conference would be on 14 October 2013. The conference was brought forward as a result of the reaction of the appellant and his solicitors. In an e-mail of 9 October 2013, Mr Kaye reported that he was very concerned that Mr Wolkind was, “far from up to speed and was not concerned about that being obvious”. There was nothing that called that assessment by an experienced solicitor into question.

 

 

 

What were the alleged irregularities here?

 

 

  • It was the submission made on behalf of the appellant that where the prosecution case was based entirely on circumstantial evidence, the defence depended on competent cross-examination of the witnesses called by the prosecution, competent advice on whether the defendant should give evidence, competent examination of the defendant and a very carefully prepared speech for the defence. We are satisfied that Mr Wolkind told Mr Skelley on a number of occasions that it was a closing speech case.
  • It was not suggested that Mr Wolkind was incompetent in the following respects:

 

i) His advice on tactics.

ii) His advice on calling witnesses, including the appellant.

iii) His challenge to the admissibility of evidence.

iv) His cross-examination of the witnesses called by the prosecution.

v) His preparation for calling the appellant and his examination in chief of the appellant.

vi) His agreement to the extensive agreed facts which were put before the jury and to the witness statements which were read to the jury.

 

  • The case for the appellant presented by Mr Orlando Pownall QC was that Mr Wolkind’s incompetence related to the final speech for the defence and fell into two categories:

 

i) a ‘severe criticism of style’ which itself amounted to incompetent representation in that he:

a) failed to present the defence in an appropriate and focused manner;

b) often resorted to patronising the jury, conducting personal attacks on counsel for the prosecution. He indulged in a number of inappropriate attempts at humour which were bound to alienate the jury;

ii) a failure to confront the matters advanced by the prosecution by displaying (as had been reflected in submissions of no case to answer and in his opening submissions), a reluctance fully to engage with the issues before the jury in stark contrast to the detailed way in which the prosecution had advanced the case.

It was contended that Mr Wolkind had made the speech he did as the result of his failure before and during the trial to prepare himself properly for the trial and his lack of engagement in the trial and his doing of other work during the period he should have devoted himself to the defence of the appellant. He had substituted for proper preparation a speech that failed to rebut the case for the prosecution and relied instead on inappropriate diversions.

 

You can perhaps see that in a murder trial based on circumstantial evidence, that if the silk keeps telling the junior, solicitor and client that it is a “closing speech case” then you are probably leading them to expect that your closing speech is going to be great. In fact, the client sacked the silk after the closing speech was made (before the jury had retired to consider the case). It’s probably also not a great plan to turn up late on the day that you are going to be giving that closing speech. Also probably not great to have got other work in your diary on the day you are supposed to be delivering said speech – it sort of gives an impression that you are keen to get it done and dusted.

 

 

  • Before turning to the closing speech, it is necessary to refer to Mr Wolkind’s conduct during the summing up. Very little of the summing up was delivered on Friday 13 December 2013, as a juror became ill. When the judge resumed on Monday 16 December 2013, Mr Wolkind arrived part of the way through the morning and then left during the course of the afternoon. The appellant decided in those circumstances to terminate his instructions to Mr Wolkind and to continue with Mr Skelley alone. Mr Wolkind told us that he had been late because of a delay in a video conference he had arranged, according to his diary, for 10:00 for another case, where the defendant was held in prison. His diary showed that at 15:00 he had a meeting in another case. The consequence of Mr Wolkind’s dismissal was that he was not present on the following day when there was an exchange between Mr Altman and the judge about the answers of the defence to the detailed case made by the prosecution. We refer to this at paragraph 48 below.

 

 

 

 

The speech itself (and gosh, I wish they’d printed it in full). Mr Skelley is the entirely blameless junior (who had sent very detailed notes of suggestions for the speech on detailed points)

 

(d) An analysis of the speech

 

  • Mr Altman QC who appeared on the appeal for the prosecution helpfully provided us with a detailed analysis of Mr Wolkind’s closing speech. From that analysis and our detailed consideration of the closing speech, the following emerges:

 

i) There were six themes of criticism of the prosecution case that formed the basis of Mr Wolkind’s speech: (i) “random attacks”, (ii) “speculation”, (iii) “pet theories”, (iv) “prejudice”, (v) “distortion” and (vi) “mistakes”.

ii) The speech was developed round these themes. All the points that had been put forward by Mr Skelley in the three documents to which we have referred, were incorporated, sometimes with specific attribution to Mr Skelley, but there was little more.

 

  • We have asked ourselves the question, therefore, whether the speech can be described having reached a level of incompetence that called into question the safety of the conviction or the fairness of the trial. We cannot so describe it. Although it will be for others to consider wider issues, it was a speech that covered the points and it had a structure, however ill-judged the themes and the structure might have been. We accept as amply justified the criticism made by Mr Pownall that it was ill-judged, patronising and contained inappropriate attempts at humour. It also contained observations about prosecuting counsel which, as Mr Skelley told us, were completely unprofessional; no advocate should have put these observations into a speech, as we shall observe at paragraphs 59 and following below. However it did not reach a level of incompetence that called into question the fairness of the trial or safety of the conviction.
  • As we have reached that view, it would not be appropriate for us to make more general findings in relation to Mr Wolkind’s lack of preparation and conduct of the case. That must be a matter for the Bar Standards Board to which we direct the matter be referred.

 

 

 

 

The Court of Appeal were NOT satisfied that the case met the test for saying that the conviction was unsafe as a result of failures or irregularities in the process, but did, as I outlined at the beginning make some comments, set out below.

 

Concluding directions observations

(a) Websites

 

  • Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

 

(b) Carrying out other work

 

  • We have had to make some express findings in relation to other work that Mr Wolkind was carrying out during this very complex murder trial. The fact that Mr Wolkind was doing so plainly caused the appellant very considerable concern and led to his dismissal of Mr Wolkind. However, it would not be right for us to make any observations. The terms upon which any barrister, particularly one of Her Majesty’s counsel, is free to engage on other work during the conduct of a case is a matter for the Bar Standards Board, subject to an overriding duty to the court in respect of the case before the court. We therefore direct that general issue be referred to the Bar Standards Board for their consideration.

 

(c) Defence closing speeches

 

  • Unsurprisingly we were not referred to any decided case in which an incompetent defence speech has provided the grounds for a successful appeal. As was demonstrated in Farooqi the trial judge has the responsibility and ample scope to ensure that a defendant’s case is accurately before the jury. That task may involve correcting or amplifying a closing speech. Should that prove impossible it may, in an extreme case, be necessary to discharge the jury. In the present case no such criticism has or can be made.

 

(d) Personal criticism of opposing advocates in addresses to the jury

 

  • Finally, there is one feature of the conduct of this case which judges must ensure ceases immediately and not be repeated in any case. That conduct is making in an address to the jury personal criticism of opposing advocates in contradistinction to criticism of the prosecution case.
  • We were told that the practice of making personal criticism of prosecution advocates has become a feature of some addresses to the jury made by defence advocates. In this case the personal criticism of Mr Altman and Mr Little by Mr Wolkind should not have been made in his addresses to the jury.
  • If any advocate has a criticism of the personal conduct of an opposing advocate that is a matter that should be raised before the judge who will deal with it then and there, though, in what we hope would be the rarest of circumstances, it could be referred to the professional disciplinary body.
  • The conduct of a trial before a jury requires proper and professional conduct by all advocates in speeches to the jury. As any personal criticism of the conduct of an opposing advocate is a matter for the judge, it can form no proper part of an address to a jury. The regrettable departure from proper standards of advocacy by making personal criticisms of advocates of an opposing party in an address to the jury must therefore cease. No court will tolerate its continuance.

 

8 Comments

Posted in Uncategorized. Bookmark the permalink.

But Belgium says no thanks

Posted on December 17, 2015 by suesspiciousminds

 

This is decidedly weird.  The High Court were dealing with an application under the Hague Convention for an order to return the child to Belgium. The father alleged that the mother had abducted the child and that the child should be returned to Belgium, where the Belgian Courts could then make the decision about where the child should live.

 

The problem was, that before anyone started to get stuck into whether there had been an abduction, whether there were defences under the Hague Convention and Child Abduction Act that might mean that the child should not be returned and so forth, that Belgium would not let the mother and child into their country anyway.

 

Re NA (dismissal of application under Hague Convention) 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3686.html

 

The entire family had come from Iran. They left Iran in 2008, made their way to Belgium and made a claim for asylum. That claim was refused and there was substantial litigation about the appeals process. They tried again afresh in 2011, and again their claim was refused.

The mother and child came to England in 2013, and she applied for asylum here (she and her son have been given leave to remain in the UK for five years – this happened whilst these proceedings were taking place). Father applied two years later for an order compelling the child’s return to Belgium.

Whether there had been an abduction of the child or not, can the Court order someone to return the child to Belgium when the Belgian authorities had ruled twice that the family had no legal right to be in Belgium ?  Nor could the Home Department of the UK remove the mother and child to Belgium – (prior to granting their leave to remain they could have removed them back to Iran, but not back to Belgium)

 

 

  1. There was indirect contact between the father and the child on occasions during 2014. In June 2015 the father issued an application for the return of his son to Belgium pursuant to the Hague Convention, thereby commencing the present proceedings. It is to be noted that that application was issued a little more than two years after the removal of the child from Belgium, and accordingly the application would in any event have raised a lively question as to whether it was “demonstrated that the child is now settled in its new environment” within the meaning of, and for the purpose of, Article 12 of the Convention. That issue and, indeed, any other “defences” under the Hague Convention has never been considered, nor determined, by the court; for in the meantime the question arose whether, even if ordered to return the child to Belgium, the mother could, in fact, lawfully do so, because it appeared that neither she nor the child would be permitted to enter Belgium. As I have indicated, that difficulty arose because the period within which the state of Belgium would have been required to take back the mother and child pursuant to the regulation Dublin II had long since elapsed. It appeared, therefore, that the mother herself could not lawfully voluntarily return with the child to Belgium. It appeared also that the Secretary of State for the Home Department could not now remove the mother and child to Belgium, although it might have been open to the Secretary of State to remove them to Iran, being the state of which they are both citizens.
  2. During the last few months there have been several brief hearings before the court, and most recently on two earlier occasions before myself, whilst efforts have been made fully to explore the immigration status of the mother and child here; the intentions of the Secretary of State with regard to removing them; and the question whether the mother and child could be forcibly removed to Belgium or, indeed, voluntarily return to that state. One possibility that was mooted was that, upon application to it, the state of Belgium might exercise a discretion to permit the mother and child to return to and enter Belgium on the basis of a “family reunion visa”. The difficulty with that particular suggestion was and is that there is no question of “family reunion”, because the mother makes crystal clear that she is not willing to return to live with, or in any way be “reunited” with, the father.
  3. Against that background I made an order dated 28th October 2015, which anyone with a proper interest in this matter could read for its full terms and effect. There were two recitals, which essentially recorded the position as it was or appeared to be at that date, namely:

    “1. Upon it now appearing from the reply from the Home Office dated 28th October 2015 to the request for information in Form EX660 that the mother and child cannot now be returned to Belgium pursuant to the Council Regulation Dublin II, and that the Home Office is now substantively considering the mother’s and child’s claim for asylum, which (it appears) are likely to result in the Home Office either granting asylum or seeking to return the mother and the child to Iran;

    2. And upon the present evidence from the Belgian authorities and in relation to Belgium appearing to indicate that the mother and child could be granted admission on a ‘family reunion visa’, but that there cannot be a ‘family reunion’ as the mother would not agree to living again with the father, and would not voluntarily agree to the child living with the father; but that it is possible (but speculative) that the Belgian authorities might permit the mother and the child lawfully to enter Belgium (without passports) on some alternative basis.”

  4. Upon the basis of those recitals, this case was further adjourned until today, and my order made plain, in summary and in effect, that the father had an opportunity meantime to obtain evidence and material from the state of Belgium to the effect that the mother and child would both be permitted lawfully to enter and remain in Belgium and that any fresh application by the mother and child for asylum in Belgium would be considered by that state. The order made clear that the documents and material required to be produced by the father would have to include an original authentic official actual laissez-passer or similar document in respect of each of the mother and the child, which would actually permit each of them lawfully to enter and remain in the state of Belgium.
  5. Over six weeks have elapsed since that order, and the father has not been able to obtain or produce any such material or documents and, quite frankly, it would seem that there is no realistic prospect now of the Belgian authorities permitting this mother and child to return to and enter Belgium on any basis.
  6. Meantime, there has been a further very significant development. By a decision letter dated 16th November 2015 the Home Office informed the mother and the child that they have been granted asylum in the United Kingdom for a period of five years, with leave to remain here until 12th November 2020. The letter makes clear that if they wish to remain after that date, they must make an application for further leave before the leave now granted expires.
  7. So, the position now is that the ability of the mother and child to remain here for the next five years is no longer tenuous but has been granted. There is, therefore, no further imminent possibility or prospect of the mother and child being forcibly removed by the Secretary of State to Iran. Equally, there is no longer the slightest scope for the application of Council Regulation Dublin II or the mother’s claim for asylum being considered in Belgium, since she and the child have been granted asylum here.
  8. In those somewhat unusual circumstances I simply dismiss this claim for a return of the child summarily to Belgium pursuant to the Hague Convention, on the short grounds that it is not practicable or possible for either the mother or the court or, indeed, anyone else to give lawful effect to an order if one was made for the return of this child to Belgium. As I have indicated, there may have been a range of other “defences” to the application, but in the circumstances I have not given any consideration to them and dismiss this application on the short basis that I have described.

 

All very peculiar.

 

 

5 Comments

Posted in international and tagged , , , , . Bookmark the permalink.

Lawyers who use hallucinogenic drugs – should we Panda to them?

Posted on December 14, 2015 by suesspiciousminds

 

 

Sorry, it continues to be a slow law December.  This came to my attention via http://www.loweringthebar.net  – as that website reports on chiefly American law weirdness he has so much material that he was able to throw this one away as a footnote in a round-up.  With the paucity of good stuff coming out of Bailii this month, I’m happy to spin an entire piece out of it.

 

‘I thought woman in bed was a giant panda,’ says homeless ex-lawyer dressed in fishnets and G-string who crept into bedroom

 

That’s the headline of the story in the Irish Independent. And the story below does not really disappoint.

 

A former lawyer charged with offences when he was found in a stranger’s house  (in Bayswater, London – not an area known for its dense population of Giant Pandas), when he was wearing fishnets and a purple g-string; deployed as his defence that he was so high on drugs at the time that he believed the woman was a giant panda and that he had just been looking for somewhere to fall asleep.

 

In his subsequent police interview, he claimed that he went into the block of flats to get a bed for the night.

‘I honestly didn’t see a woman on the bed, I didn’t see any children in the bed, I honestly thought it was a big panda bear in the bed, that’s what it looked like to me.

‘I had taken some drugs but I am pretty certain that’s what I saw, I didn’t see any woman, I didn’t see any kids… were they under the panda?’

 

The jury actually cleared him at the trial at Southwark Crown Court after just thirty minutes of deliberation. I can only think that it was so quick because all of the jurors were desperate to get to the pub and tell their mates about the day they’d just had.

 

In the event that the Judge’s summing up is available, I really would rather like to see it.

 

I am aware, of course, of a historical precedent for a man taking substances and believing himself to be the Lizard King , but Panda King is new to me.

 

 

As the spirit of Jim Morrison, even I have to say that this guy was taking too much

As the spirit of Jim Morrison, even I have to say that this guy was taking too much

 

[Frankly, the Spirit of Hunter S Thompson might be telling this guy that he needs to take a break and cut down. As a rule of thumb, if your substance use has got to a point where Morrison and Hunter S Thompson could be considered voices of reason, things are out of hand. ]

 

http://www.independent.ie/world-news/europe/i-thought-woman-in-bed-was-a-giant-panda-says-homeless-exlawyer-dressed-in-fishnets-and-gstring-who-crept-into-bedroom-34252199.html

 

 

If that was up your street, find out why a Turkish Court has authorised experts on Lord of the Rings to testify in a criminal trial about the character Gollum here

Gollum Experts to Testify, Says Court

 

 

 

5 Comments

Posted in Uncategorized. Bookmark the permalink.

Thursday daftness – the picture round

Posted on December 10, 2015 by suesspiciousminds

 

Can you guess the Judge from the picture of a celebrity with a similar-ish name?

 

 

Many of the Judges are regulars in these blogs for their excellent and interesting judgments and no offence of any kind is intended. All of the Judges in question are far more photogenic than these images  (well, possibly not the first one)

 

If you are upset that I’ve missed your favourite out, it is because my mind went numb after looking at pictures for number 9….  And heck, if you can find a celebrity soundalike for Mrs Justice Pauffley, good luck to you.

 

 

  1.   celeb 1

 

 

 

 

2.   celeb2

 

 

3.

What? This isn't a celebrity!!! Outrage.

What? This isn’t a celebrity!!! Outrage.

 

 

4. celeb4

 

 

5.

This one is a bit obscure, so the logos behind are a clue...

This one is a bit obscure, so the logos behind are a clue…

 

6.

Cham-on!

Cham-on!

 

7. celeb7

 

8.

Only one of them. And no, I don't know which is which...

Only one of them. And no, I don’t know which is which…

 

9.

Yes reader, for your benefit, I looked at Google images of this woman... this is the only good photo of her

Yes reader, for your benefit, I looked at Google images of this woman… this is the only good photo of her

 

 

I hope I can remember all of the answers tomorrow….  If anyone is guessing, don’t do it in the comments in case anyone else is trying.

2 Comments

Posted in Uncategorized. Bookmark the permalink.

Speeding up of adoptions – a counterpoint to the political direction of travel

Posted on December 10, 2015 by suesspiciousminds

 

 

It has been a hot theme on the blog ever since I started, forced (or non-consensual) adoptions.  This article is by some people whose views I have a lot of time for-  Brid Featherstone, Professor Sue White, Kate Morris, June Thoburn and Anna Gupta.

 

Although you can see from the sidebar on the piece that many of them have Labour connections, I don’t read this as purely a piece of party political polemic.  The politicising of adoption began before our current Prime Minister (though it is accelerating) and it is a clear theme of Brid and Sue’s bloody marvellous book  “Re-imagining child protection : Towards humane social work with families”   http://www.amazon.co.uk/Re-imagining-child-protection-Towards-families/dp/1447308018/ref=sr_1_1?ie=UTF8&qid=1449769831&sr=8-1&keywords=brid+featherstone   that many of the seeds of the current problems were sown in the early days of New Labour – a reduction of parents to a set of problems to be solved and the idea that parents role in society was simply to deliver parenting to children rather than remembering that they were also people.

 

This piece is well worth  a read.

 

There is one paragraph that really struck a chord, and it is a theme that comes up over and over in our discussions here.  Before I started writing the blog, it would have been really easy to dismiss all those who complained about family justice and social workers as conspiracy nuts or people who couldn’t face up to their own shortcomings and found it easier to blame a corrupt system than to accept their own part in the sad outcome.  Having spent four years now listening to their stories, there’s more to it than that.  There are people who have had genuinely dreadful experiences in the system, there are individual cases that have gone badly wrong.  That doesn’t mean that one can assume blindly that the experience for everyone is the same and that nobody gets fair treatment, but equally we shouldn’t write off those experiences as bad luck or crackpots.

 

 

With services increasingly focused on protection rather than support, families fear rather than seek professional help when struggling in adverse social circumstances. The promotion of adoption sets up an adversarial dynamic that can seriously undermine social workers’ ability to develop trusting relationships with families needing help, as distrust and suspicion permeate the system.

I’ve spent twenty years working with social workers – sometimes on the same team, sometimes against them. I’ve seen good ones, great ones, mediocre ones, a few downright bad ones,  new and terrified ones, jaded and stressed ones, ones that went the extra mile,  ones that had a bad day and made a mistake, ones that pulled something amazing out of a family situation that looked hopeless, ones that were cold, ones who shouldn’t have been doing the job. I really haven’t seen ones who came into the career to make people frightened of them.  We have to look at the system, if that’s the dynamic that is existing between social workers and parents – because social workers by and large come into the job to help people, that’s what they want to do. But that’s certainly not the public perception, and it isn’t the practical experience of many people who share their stories with me.

 

Can something be done to lessen or remove this adversarial dynamic, because it isn’t good for anyone involved.  It stresses parents, it makes social workers miserable and it inhibits children from getting the improvements or help or support that might be needed.

 

https://theconversation.com/by-rushing-to-speed-up-forced-adoptions-we-are-letting-children-down-51609

 

 

 

 

129 Comments

Posted in adoption and tagged , , . Bookmark the permalink.

Guidance on foreign surrogacy

Posted on December 10, 2015 by suesspiciousminds

 

Yet another High Court decision about international surrogacy.

 

Re Z (Foreign Surrogacy:Allocation of work: Guidance on parental order reports) 2015

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/90.html

 

This one throws up a lot of the issues that can go wrong with international surrogacy. The arrangements were all made, properly and legally in India. The commissioning ‘parents’ then found it impossible to come back to England with the twins until they had a Parental Order. But they in turn found it difficult to get a Parental Order, because there was uncertainty about whether the applicants needed to be present in England at the time of the application, whether the child’s ‘home’ had to be in England, and whether the parental order reporter had to go to India to observe the ‘parents’ with the child. In fact the parents had to leave the twins in India, deal with matters in Court and then get the twins from India, a sorry state of affairs.

 

Ms Justice Russell cuts through a lot of this with the guidance that applications for Parental Orders with an international element (where child is born outside of England and Wales) should henceforth be heard only in the High Court. They are also to be heard in London, where possible by Pauffley J, Theis J or Russell J, all of whom have been at the forefront of the most challenging cases of this nature and are well placed to resolve difficult issues.

 

 

  • Guidance In respect of the allocation of parental order applications there will be the following guidelines applied in keeping with the practice and procedure as set out in Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, rule13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 which have been in force from 22 April 2014 on the formation of the Family Court (as referred to above).

 

i) All proceedings for parental orders will commence in the Family Court where they will remain. They should not be transferred to the High Court.

ii) All proceedings pursuant to s 54 of the HFEA 2008 where the child’s place of birth was outside of England and Wales should be allocated to be heard by a Judge of the Family Division.

iii) In London all cases should, if possible, be allocated to Mrs Justice Pauffley, Mrs Justice Theis or Ms Justice Russell.

iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a Judge of the Family Division identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs Justice Theis).

v) Allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order reporter is a matter for Cafcass (subject to their own guidance and the guidance below).

 

  • The President has seen paragraph [73] and has approved it.

 

 

On the particular issues that arose in this case :-

 

  1. Do the parents need to be physically present in the UK to apply?    No, they just need to be domiciled here.
  2. Does the ‘home’ with the child need to be in the UK?  No, and also it does not matter that the time the children were in a home with the applicants was not continuous. It needs to be at the time the application is made and again at the time that the order is made.

 

The child’s home must be with applicants at the time they made the application (Section 54(4) (a) HFEA 2008) and at the time the court is considering making the order. Although the twins had remained in India and at times were not being cared for there by the Applicants there was no issue in this case as the place the children were living was a home that was entirely arranged and provided for by the Applicants; moreover the commissioning father had returned to India in February and remained with the children until the whole family came to the UK in May 2015. Either or both the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man (sub-section (4) (b)). Domicile can be problematic in some cases as it is a peculiarity of English and Welsh law which is often confused with residence by applicants acting in person (and others). This was the matter with which the court was concerned in the case of Re G referred to paragraph 2 above. In the instant case, however, there was no such problem as both Applicants were born in England to fathers domiciled here and there was no evidence to suggest that they had not retained their domicile of origin. They were both over eighteen years old at the time the order was made and so meeting the requirements of s 54(5) HFEA 2008.

 

3. Does the parental order reporter, who carries out an investigation and reports to the Court need to see the applicants WITH the child?  This seems obvious, but of course in a situation like this that would have involved the reporter (who no doubt has a heavy workload and an organisation not flush with cash) flying out to India.   The answer is longer than the other two, but ultimately ‘yes’

 

 

Parental Order Report

 

  • The children’s guardian was prepared to consider making recommendations without having seen the children in the care of the Applicants in the UK in the exceptional circumstances of this case. She made it plain to the court that this was not her preferred option and it was her assumption that she needed to see the children at home with the Applicants. The only reason that Ms Dawe felt able to consider such a course was because there was what she described as “wealth of material” about the Applicants’ ability to parent K and the support that was available to the Applicants from their wider families. Ms Dawe accepted that parenting three children is different to one but was so concerned about the welfare of the babies stranded in India that she felt that it was an appropriate course for her to take. The role of the Cafcass officer/Cafcass Cymru/Parental Order Reporter and the extent and nature of their investigations was one issue in this case that I specifically sought assistance upon from Cafcass Legal and I am grateful to them for that assistance.
  • A specific issue raised in this case was whether it was necessary for the child or children who are subjects of applications for parental orders under s54 of the HFEA to be seen by the Parental Order Reporter for the welfare report to be properly prepared. The Human Fertilization and Embryology (Parental Orders) Regulations 2010 does not incorporate section 42(7) of the ACA 2002 which require a privately placed child to be seen by the Local Authority together with their adopter in their home, and the Explanatory Memorandum to the Regulations makes no reference to any such requirement. For the purpose of cases of international surrogacy it sets down the following about the acquisition of nationality or citizenship:

 

“Nationality

8.7. As a result of responses to the consultation, and to ensure parity with adoption legislation, the Parental Order Regulations 2010 now ensure that where a parental order is made in the United Kingdom and one or both of the commissioning couple are British citizens, the child – if not already so – will become a British citizen.”

 

  • The Court was referred to the Cafcass Guidance issued to Parental Order Reporters at the hearing on 18th May 2015. This guidance did not require in terms that the parental order reporter sees the child, but since that guidance was issued, further work was undertaken within Cafcass as a result of which fact-sheets were produced for commissioning parents who are applying for parental orders and in the fact-sheet entitled “Parental Order Reporters” intended applicants are told that they will be seen by the parental order reporter with their child (my emphasis). These documents or fact-sheets were only just published within a few weeks of the final hearing of this case on 7th July 2015.
  • Ms Penny Logan of Cafcass Legal, who appeared before me and Ms Lakin, counsel on behalf of the children, both told the court that they were unaware of a case that had been reported where the parental order reporter has not seen the child. This was accepted by Ms Cronin on behalf of the Applicants. Ms Logan pointed out, and as this court is well aware, members of Cafcass Legal routinely act for High Court team guardians in cases where the children are parties. The court was reminded of the fact, well known to it, which is that the High Court team undertakes a large proportion of the parental order cases in the High Court and most of the international ones. Ms Logan told the court that she was unaware, through Cafcass, of any case reported or unreported, where the parental order reporter has not seen the child. Although this court is aware of one such instance in a reported case (see the reference in [86] below) it is difficult to imagine circumstances in which a parental order reporter could properly report on welfare without having seen the child with the Applicants. Ms Logan went on to inform the court she was, at that time, involved in another surrogacy case where determination of the application hade been delayed for a year for similar reasons.
  • It is accepted that it was never the preferred option of the guardian in this case that she would make recommendations in the absence of seeing the children with the Applicants in the UK. It is the experience of this court that applications for parental orders are made by commissioning parents who do not presently reside in this country (when one or both have a UK domicile). In such cases parental order reporters see children with commissioning parents/applicants when they visit this jurisdiction as in the case of CC v DD (supra) [2014] EWHC 1307.
  • In the instant case the guardian’s report amply demonstrates both the value and necessity of such observations in terms of the analysis of the welfare checklist set out in s.1 ACA 2002. While it would have been a matter for the court as to whether it would have made the order in the absence of this work in the circumstances of this case; I took the view that the parental order reporter had to have seen the children with the Applicants before the court could be satisfied about their welfare.

 

 

 

 

2 Comments

Posted in cafcass, case law and tagged , , , , , , . Bookmark the permalink.

The lady who wanted to sparkle – follow up

Posted on December 6, 2015 by suesspiciousminds

 

You have probably heard that C, the lady I wrote about on Wednesday, where a Judge had decided that she had capacity to make her own decision to refuse treatment, that decision being in keeping with her unusual approach to life rather than being a sign that she lacked capacity to make the rational decision that almost all of us would have made, died this week.

 

The Press made an application to be able to name her.  That’s a very tricky one.  On the one hand there is transparency and this case has certainly attracted a lot of media interest (and frankly given the biographical details in the story, I’m sure that the Daily Mail with their resources can find out who C was in about 30 minutes of investigation).  I don’t think this is prurient, I think there is some genuine public interest in the story and the issues, and of course a piece in a paper works far better when it is a real person not the letter C.

On the other, this case threw up very personal details in order to uphold C’s right enshrined in the Mental Capacity Act 2005 that everyone is assumed to have capacity unless proved otherwise and thus to refuse treatment unless proved they lack capacity – C did not bring the case to Court, she was brought into Court by the Trust and she won the case. So why should she be named when she did nothing whatsoever wrong in law? There are also the children to think of, one of whom is 15.

 

The final decision is not made yet, but an interim Reporting Restriction Order was made, preventing publication of the name until the matter can be properly litigated.

 

http://www.bailii.org/ew/cases/EWCOP/2015/83.html

 

I read in the week, sadly with bad timing on the day that I learned that C had died, the article in the Guardian by Zoe Williams. That article attacked the Judge and linked his decision with other very controversial outbursts by Judges – arguing that the Judge’s setting out of the history showed an inherent sexism.  I felt that the article was ill-concieved and had missed all of the real substance of the case.  I normally rate Zoe as a writer, so the tone of the piece, particularly the attack on C’s children surprised me.

http://www.theguardian.com/commentisfree/2015/dec/02/slur-woman-who-lost-sparkle-c-right-to-die-judgment-femininity-marriage

 

I then saw the piece by Lucy Series from The Small Places blog, that made me look at it in another way. I think this is the best piece of writing on C’s case and the issues that it throws up of ‘who are judgments written for in a transparency climate?’  and ‘should they be written in the same way as they used to be’?

 

The stories we tell

I wish I could write like Lucy does. I dash stuff off the way that Kerouac wrote “On the Road”  – typing furiously, getting all of my thoughts on the page  – Kerouac wrote so fast that he taped paper into one giant sheet to save him the distraction of having to stop and put a fresh sheet into the Hermes  (and I’m reminded that Truman Capote famously said of his method “That’s not writing, that’s typing”).  Lucy is much more the Truman Capote style of constructing the piece, making the words all do their share of the work, not having a sentence in that doesn’t say something important and say it in just the right way, and it being more like inspecting a gorgeous diamond from a variety of angles rather than listening to someone excitedly blurt out what’s on their mind.   Hopefully, there’s a place for both Kerouac and Capote in legal blogging.

 

4 Comments

Posted in case law, transparency and tagged , , , . Bookmark the permalink.
← Older Posts
Newer Posts →