Author Archives: suesspiciousminds

Barking up the wrong tree

Posted on November 17, 2015 by suesspiciousminds

 

Sometimes a case comes along that I just can’t resist, although it is not really family law.

 

Moosun and Others v HSBC (T/A First Direct) 2015

http://www.bailii.org/ew/cases/EWHC/Ch/2015/3308.html

 

This is a case where there had been a quarrel between Ms Moosun and her bank (or rather former bank) and just about every form of litigation that could be issued by her had been issued. The bank responded by asking for a civil restraint order to prevent her issuing any more hopeless litigation.

 

Why I am I writing about this? Well, because of these paragraphs.

 

  1. The second application is dated 19th October 2015 and seeks to strike out the claim in action HC-2015-004041 which was issued on 21 September 2015. That claim is sought to be brought by Mrs. Moosun, her two infant children, and two dogs who are identified as Goldie, aged 18 months, and Diamond, aged 2 years. Again, Miss Wilmot-Smith takes the point that the claims by the children should be struck out as they are brought in circumstances where no litigation friend has been appointed on behalf of the children and no order has been made permitting the children to bring proceedings. That is right, and for the same reasons as in relation to the first claim, I shall strike out the claims by the children.
  2. Miss Wilmot-Smith also makes the obvious point that dogs are not capable of bringing legal proceedings. Among other things, CPR Part 2.3(1) defines “claimant” as a person who makes a claim, and a dog is not a person. I also cannot see how a dog could give instructions for a claim to be brought on its behalf or be liable for any orders made against it. There are a whole host of other reasons why proceedings by dogs must be void, and accordingly I am satisfied that in so far as the claim purports to be made on behalf of the two dogs it should also be struck out.

 

Yes, the dogs were also suing the bank.

 

I also note that in previous litigation

 

For her part, Mrs. Moosun raised a considerable number of points concerning the actions by the bank, both as a matter of contract and in relation to an alleged denial of her rights under the European Human Rights Convention, among other things by reason of the fact that the original order made by District Judge Banks had been made in her absence. She also alleged that what was happening to her involved “satanic freemasons”.

 

Well, now we all definitively know (for those of us who had any doubt at all) that dogs cannot bring Court proceedings. That is merciful to me, because otherwise my dog would be bringing claims under the Canine Rights Act because I made him return from his holiday in Cornwall, where he was spending his days playing on beaches, swimming in the sea and eating Cornish pasties.

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Foster to adopt – two small but significant issues

Posted on November 17, 2015 by suesspiciousminds

 

As Foster to Adopt placements  (where a child is placed with foster carers who are also approved as adopters and might go on to adopt the child if the Court decides to make a Placement Order) become more prevalent, both as a result of the Children and Families Act 2014 and the political drive to have more such placements, this particular case resolves two issues that might be significant in the future.

 

Or at least, flags up what I’d consider to be the correct answer in law and we await a decision from the High Court or Court of Appeal in the future to definitively confirm it, as this is a case determined by a Circuit Judge and thus not binding on future cases.

 

[It is very well reasoned though, and I’d be rather surprised if a higher Court were to disagree. ]

 

Re B (A child :adoption) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B182.html

 

Question 1 – when is the child “placed” for adoption?

 

There are three possible answers generally – when the Match is made (i.e  an Adoption Panel agrees that little Richard Starkey can be adopted by Mr and Mrs Ringo), or, when Richard first meets Mr and Mrs Ringo, or when the child moves into the home of prospective adopters when a Placement Order has been made. The Courts spent quite some time wrangling about that, finally deciding in Coventry City Council v O (Adoption) [2011] 2 FLR 936  that “placed for adoption” began once Richard begins to live with Mr and Mrs Ringo  (in a practical sense, on the first night that he stays with them with no plan for him to be collected by the Local Authority from then on)

 

But with Foster to Adopt children, the move into the home can come much earlier than the Placement Order.  The child is already living with the prospective adopters.  Why is this relevant? Well, because “placement” with prospective adopters can limit the parents, who cannot for example make an application to revoke a Placement Order once the child is “placed” with prospective adopters, and have to wait until an Adoption Order application is made by the prospective adopters.

 

The Judge here, His Honour Judge Booth, confirmed that the child is not “placed with adopters” until the child is in a position to be adopted (a Placement Order made) and the match is approved AND the child is living with the adopters. So in a Foster to Adopt placement, the “placed with adopters” begins as soon as the Adoption Panel and Agency Decision Maker have approved that Mr and Mrs Ringo are to be the adoptive carers of Richard.

 

  1. The July 2014 statutory guidance for Early Permanence emphasises that the status of Section 22C(9B(c) placements changes when the court has made a placement order and the ADM has approved the adoptive placement:

    “Section 22C(9B)(c) placements are foster placements: the carers must be approved foster carers as well as approved prospective adopters before the child can be placed with them. The carers are entitled to the fostering allowances that the fostering provider would normally pay. When the local authority receives a placement order or parental consent and the ADM has approved the adoptive placement, the section 22C(9B)(c) placement will become an adoptive placement. At that point the carers will become eligible for adoption pay and leave and the fostering allowance ceases”.

  2. The local authority acting in its role as an adoption agency re-approved Mr and Mrs X as Lancashire County Council adopters on 6th May 2015 and they were linked as B’s prospective adopters at an Adoption Panel on 13th May 2015. The ADM approved the decision of the panel on 22nd May 2015. It was on this date, when the third and final stage identified by Thorpe LJ in Re S was accomplished and therefore B was placed for adoption. To employ Lord Wilson’s language in Coventry v O, 22nd May 2015 was the date when the adoption agency formally allowed B “to continue to live with the applicants in their fresh capacity as prospective adopters”.
  3. From the time the placement order was made on 31st March 2015 until B was placed for adoption with Mr and Mrs X there was an opportunity for his parents or anybody else to apply for leave to seek revocation of the placement order. That opportunity ended when B was placed for adoption by the decision of the ADM on 22nd May 2015. Such is the effect of section 24 (5)(b) of the Adoption and Children Act 2002. The closure of that opportunity is by operation of law rather than any physical movement of the child.

 

Thus, the window of opportunity for a parent to apply to revoke the Placement Order is limited to the period between the making of the Placement Order and the Agency Decision Maker (ADM) approving the match. In this case, that was between 31st March and 22nd May. About eight weeks. Bearing in mind that the test for granting leave to apply to revoke a Placement Order is that the parent must show a “change in circumstances” since the Placement Order was made, that’s not much time to bring about such a change.

 

Question 2  – for the purposes of making an application under the Adoption and Children Act 2002, when does the child start to “have his home” with the prospective adopters?

 

This is significant because the prospective adopters can’t make their application until the child has been in their home for ten weeks. Does that ten weeks start from the time that the child was “placed” as above? Or from when the child was actually physically living with them?  If the latter, then Foster to Adopt carers can technically make their application almost immediately after the match if they so desire.

 

The Judge  ruled that it is the latter. That ten week period can start to run from the moment that Richard begins to live with Mr and Mrs Ringo, and doesn’t have to wait until he is “placed” there.  So Foster to Adopt carers can lodge their adoption application seconds after the ADM approves the match and “places” the child, if they so wish.

 

  1. The adoption application
  2. The Adoption and Children Act 2002 sets out a number of adoption gateway requirements in s42 before an adoption order can be made. The relevant section for the purposes of Mr and Mrs X’s application is s.42(2) which states:

    “If —

    (a) the child was placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court, or

    (b) the applicant is a parent of the child

    the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.”

  3. B was ‘placed’ for the purposes of adoption on 22nd May 2015. The wording of the statute appears to deliberately avoid the terminology of a child being ‘placed’ when referring to the period of time that a child is required to live with the applicants prior to an application for an adoption order. Instead, the statute requires that the child “must have had his home” with the applicant(s) for 10 weeks preceding the application.
  4. There is no definition of ‘home’ in the Children Act 1989 or the Adoption and Children Act 2002, however it is clear from the observations of Sheldon J in Re Y (Minors) (Adoption: Jurisdiction) [1985] Fam 136, [1986] 1 FLR 152 at 140 and 157 that it has been considered to be a concept incapable of precise definition and that definition should not be attempted beyond the principal features a home should be expected to embody which, by reference to the OED definition, includes a “dwelling-place, house, abode; fixed residence of a family or household”. The Court in that case considered that the issue of whether something amounted to a home “must be a question of fact in any particular case”.
  5. This was endorsed more recently in the case of ECC v M and Others [2008] EWHC 332 (Fam) where Black J said at para [67]

    “I am entirely in agreement with Sheldon J that it is a question of fact in any particular case whether or not a home has been established here within the meaning of the 2002 Act”.

  6. My conclusion is that the time spent by B with the Mr and Mrs X amounts to him having had his home with them for the duration of the period he has lived with them. He has resided there continuously since 2nd December 2014 and they undertake all of his caring tasks. I am told that they have attached to him as their potential adoptive son and he has been treated as such within the immediate and wider family and that B identifies them as his primary attachment figures. They have acted as his parents since he was a day old and he has had his home with them since that date.
  7. There is no restriction in either statute or case law to the effect that the child cannot have their home with the Applicant prior to a placement order or, indeed, prior to his being ‘placed’ with the applicants for the purposes of adoption. For these purposes the clock began ticking in that respect from the moment B was physically placed with them on 2nd December 2014.
  8. This interpretation is consistent with the spirit of the Act and what it was intended to achieve in relation to adoptive placements prior to adoption orders being applied for. The purpose of the requirements set out in s.42 has been the subject of judicial consideration in Re A (Adoption: Removal) [2009] EWCA Civ 41, [2009] 2 FLR 597 when Moore-Bick LJ said at para 106:

    “The section … is concerned to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the Court to be satisfied they are sufficiently well-matched for the adoption to be likely to be successful”.

  9. This was endorsed by Theis J in Re X (Adoption Application: Gateway Requirements) [2014] 1 FLR 1281 at para [33].
  10. The question of where a child has had his home is a question of fact independent from his legal status within that home.

 

The very purpose of Foster to Adopt is to ensure that in cases where the Court approve adoption as the plan that there are shorter delays in the adoption order being made, and less moves for the child, so it does make sense that such carers are allowed to take the ten weeks as being the time that the child has been in their care, rather than making them wait for ten weeks after the match is formally approved.

 

Of course from the other side of the coin, and remembering that a parent needs to show that there has been a Change of Circumstances since the Placement Order was made if they are going to get leave to oppose the adoption order application, realising that there might be a very short window – more likely weeks than months between the Placement Order and adoption order application might make it virtually impossible to effect such change.

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They’re a page right out of history

Posted on November 17, 2015 by suesspiciousminds

 

The family Courts are now able to accept service of documents (like statements and applications) by email, thanks to the new change to the Family Procedures Rules

 

The Family Procedure (Amendment number 3) 2015

 

http://www.legislation.gov.uk/uksi/2015/1868/made

I’ll just point out that this amendment actually amends the Rules made in 2010, which the keen-eyed technophile will note was a time when email already actually existed. Email is not something that has only come into popular use in the last five years.

Why it wasn’t in the 2010 Rules is a complete mystery. I’m pretty sure that everyone involved in writing the Rules was actually aware of the existence of email at that time and were probably even sending emails from time to time.

The previous version of the Rules governing all of these things was drawn up in 1991,  so you can understand why there wasn’t a specific provision for emails, (although that was the same year that the first email was sent from space, it wasn’t the common everyday form of communication that it became later that decade). But in 2010, providing a series of Rules for the way Courts would be managed that completely ignored the existence of emails looks not just backward but downright contrary.

But nevermind, in 2015, we now can lawfully file documents with the Court by email, thanks to these new Rules.

Well, don’t get too excited yet, because all that the Rules say is that it is now permissable for Courts to issue a Practice Direction saying that they will accept documents sent in by email.

 

4. After rule 5.4 (where to start proceedings) insert

Filing documents with and sending documents to the court by e-mail

5.5.(1) A practice direction may make provision for documents to be filed with or sent to the court by e-mail.

(2) Any such practice direction may

(a)provide that only particular categories of documents may be filed with or sent to the court by such means;

(b)provide that particular provisions only apply in specified courts or court offices; and

(c)specify the requirements that must be fulfilled for any document filed with or sent to the court by such means.

 

So until the Practice Direction comes out, we really shouldn’t send stuff to the Court by email.

[In reality, most Courts have been doing this for several years or at least we’ve all been sending them stuff by email in the hope that something happens the other end, but there was no provision in the Rules to allow them to do it, and an ornery Court could have told its users at any time that it didn’t accept service by email]

 

Sadly, there aren’t other provisions within the Family Procedure (amendment no 3) Rules 2015 that allow the Courts to recognise the existence of things that first became widely known in the mid 90s. So to this day, it is still impermissable to make a reference in Court to “Rachel out of Friends”, or that  something “smells like teen spirit”, or that a person can play music on an “ipod”.

 

 

Under FPR rule 29.2(j) (b) these men are to be referred to as "PJ and Duncan"

Under FPR rule 29.2(j) (b) these men are to be referred to as “PJ and Duncan”

 

 

I was reading recently in Tom Holland’s marvellous book, Persian Fires, the story of how a Persian general Histiaeus in 499 BC who wanted to send messages but not have them intercepted, would shave the head of a slave, tattoo the message onto the slave’s head, wait for the slave’s hair to grow back, then send them to run to the intended recipient, who would know to shave the hair off and see the message.  This method of filing documents on the Court was, I think, finally removed in the Family Procedure Rules 2010.

 

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Bickering (or the ever decreasing circle of life continues)

Posted on November 14, 2015 by suesspiciousminds

[Grateful to @dilettantevoice for highlighting this case to me on Twitter]

 

You may recall the Court of Appeal taking Mostyn J to task for taking them to task for taking him to task.

Ever decreasing circles – Court of Appeal take Mostyn J to task for taking them to task for taking him to task…

 

Well, none of you thought that it would end there, did you?

Re CD 2015

http://www.bailii.org/ew/cases/EWCOP/2015/74.html

An exceptionally tricky case, and one absolutely can’t underestimate just how difficult a job High Court Judges have to do. This one involved a woman with very severe mental health problems, who after she stabbed herself in the stomach, the hospital found that she had tumours in her stomach that needed to be removed. Although the woman was detained under the Mental Health Act, the power to perform treatment against a person’s will under that Act is really confined to treatment for their mental health, and this was a physical treatment. As the woman would be under anesthetic at the time, the High Court has previously ruled that this would be a deprivation of liberty.

A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161

Additionally, there’s the complication of some wording in the Mental Capacity Act which suggests that a deprivation of liberty can only be dealt with under the Mental Health Act if the person is detained under the Mental Health Act.

 

 

  • he confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to. I recently have had to grapple with this in Re A [2015] EWCOP 71. Mr Justice Baker has given a characteristically exhaustive judgment on the subject in A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161 as has Judge Parry in A Local Health Board v AB [2015] EWCOP 31. The confusion arises from the highly ambiguous and double negative laden terms of para 3(2) of Schedule 1A to the MCA 2005. This states:

 

“P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes”

 

  • In this case CD is P. “Ineligible” means ineligible to be deprived of liberty by the 2005 Act. The “authorised course of action” is the surgical removal of the ovarian masses. The “relevant regime” is the MHA regime whereby CD is compulsorily detained in a mental hospital. So, for our purposes, para 3(2) reads:

 

“CD is ineligible to be deprived of liberty by the 2005 Act if the surgical removal of the ovarian masses is not in accordance with a requirement which the MHA regime whereby CD is compulsorily detained in a mental hospital imposes.”

 

  • Mr Auburn rightly says that there are two ways of reading this which give rise to directly contradictory results. The first is in a pitilessly literal way, as argued by Mr Matthewson. It is this: if the surgical removal of the ovarian masses is not in accordance with a requirement of the MHA regime whereby CD is compulsorily detained in a mental hospital then CD is ineligible to be deprived of liberty by the 2005 Act. It isn’t, he says, so she is ineligible and so the necessary orders have to be made under the inherent jurisdiction of the High Court. The problem with this interpretation is that it gives rise to a result directly contrary to the intention of the statute and to the express terms of the Code of Practice, as I explained in Re A at paras 10 – 14 (accepting the submissions not only of Ms Butler-Cole but also of Ms Dolan, on that occasion instructed by the Official Solicitor).
  • The alternative interpretation, which I adopted in Re A, and which I maintain to be correct is this: if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn’t (obviously) so she isn’t ineligible. As I said in Re A this is plainly what the scheme of section 16A and Schedule 1A intends and the matter is conclusively confirmed by paras 4.50 and 4.51 of the Code of Practice. In my judgment it would be ridiculous if the whole case had to leave the Court of Protection with its statutory powers and enter the High Court exercising common law inherent powers by virtue of a pedantically literal reading of para 3(2).
  • The orders which I make will be made by me sitting in the Court of Protection under powers granted by Parliament in the MCA.

 

 

Mostyn J is utterly and completely right here, the wording of this piece of the legislation is ghastly (double-negatives are really not something that you want in a piece of legislation anywhere, particularly about something so serious) and it has left a serious lacuna in the law.  And you know how High Court Judges tend to solve lacunas in the law – that’s right, the ‘theoreticaly limitless powers of the inherent jurisdiction’  [Though not here, Mostyn eschewing Baker J’s inherent jurisdiction solution to say instead that the power must really remain under the MCA]

 

A very tricky case, and almost all of what Mostyn J says in the judgment is careful, apposite and fair.

Unfortunately, this passage decides to resurrect the quarrel with both the Supreme Court in Cheshire West, and the Court of Appeal

 

In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated “even if Cheshire West is wrong, there is nothing confusing about it”. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court’s test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated “anyone who deals with this day by day knows this is confusing”. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that “there is nothing confusing” about the test. I do not accept the criticism that my approach to these cases is “distorted” by my “passionate” and “tenacious” belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court’s test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse

 

 

I think that there IS an argument about whether Baker J’s decision in Re A (that the surgical procedure amounts to a deprivation of liberty) actually meets the test in Cheshire West – I think that one can argue it either way and a strong case can be made for if a Court has declared that the procedure is in P’s best interests despite a lack of consent that the patient has had sufficient safeguards and an additional authorisation of a Deprivation of Liberty isn’t necessary.

It is also quite right that we now have a definition of deprivation of liberty which is utterly unworkable in practice due to resource implications (as we have seen, if every LA issued every deprivation of liberty application that they need to on the wording of Cheshire West, the Court would spend the next five years dealing with this years cases, and so on), and that the MCA on this particular issue is badly in need of reform. Such reform not likely to hit us until 2017 at best.

 

But the Rule of Law is the Rule of Law.  Whatever one might think of the Cheshire West test (and personal opinions and critiques of it are perfectly valid – it wasn’t a unanimous decision on all issues in the Supreme Court itself), the test has been set and it is now to be applied.  In the first of the two examples, it is really plain that the absence of resistance from P if they lack capacity is neither here nor there, that’s not a legitimate part of the test. After all, that was the very issue in Bournewood that led to the development of the MCA in  the first place. The latter question of whether you assess whether a person is being deprived of their liberty by looking at their physical characteristics has been squashed by the Supreme Court.

[There IS , I think an argument about whether someone who is physically prevented temporarily from getting up to leave – under anaesthetic for example, or that they have a broken leg that will heal, meets the Cheshire West test. But that’s for a Judge to determine when they are faced with an application of the test to those particular facts]

 

It is a fine line between a Judge being free to criticise the law when it is resulting in unfairness and staying out of politics and just applying the law as it is to the facts of the case.

I’m aware that I am being hypocritical here – because I do think that Judges can and should speak out when the law at present is unfair and makes unreasonable outcomes when it is applied.  Because when Mostyn J and others have attacked LASPO, I’ve supported and applauded them. That is a law whose application is currently unfair (particularly the Legal Aid Agency’s approach to granting exceptional funding where human rights require it, but ignoring when Judges tell them that this particular case would breach a person’s human rights if funding were not given).  I also disagree with LASPO itself, but I’m stuck with it unless and until Parliament changes it. So, am I just as unreasonable as Mostyn J considers the Court of Appeal to be – given that I’m happy for him to critique and attack the law when I agree with him, but criticise him when I think the law is right?

Damn, I’ve painted myself into a corner here.

 

Perhaps what we need is a case with the citation Mostyn J v Court of Appeal  (to be decided in the Supreme Court)

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Abuse by foster parents – can the Local Authority be sued?

Posted on November 12, 2015 by suesspiciousminds

 

Almost every case I write about is full of human tragedy and sadness, and this one particularly so. It involves a woman who when she was a child was placed in the care of foster parents, one presumes because it was decided that her own parents could not perform that task. That particular foster carer went on to physically and sexually abuse her. Dreadfully sad and unspeakably awful. I hope (but don’t know) that the foster carers have been convicted and punished.

The issue for this case was whether the woman could sue the Council who placed her there. They did not know of the abuse at the time, and there is no suggestion here that there was negligence on their part  (which would be either that the fostering checks hadn’t been carried out, or that they failed to make the visits and ongoing checks that were required by law at that time, or that they learned of the abuse and failed to act).  Councils can be sued for negligence, if any of those things were alleged and capable of being proven, but negligence is not the case pleaded here. The detail makes it plain that none of those failings were present.

 

Instead, it is something called “vicarious liability”, which in simple language means that an employer can be held legally responsible in some situations for things that its employees did. Vicarious liability can be a useful remedy where the organisation was not negligent, but where they have the necessary care and control over the employee’s actions. It is useful in particular because generally an employer (for example a Council) has more money (and insurance) than the wrong-doers themselves, who would not have the financial means to pay the compensation that the victim would really deserve.

So the fundamental question for the Court of Appeal here was “Can the Council be vicariously liable for criminal actions carried out by foster carers?”

 

NA v Nottingham County Council 2015   (It should be Nottinghamshire, but who am I to question the Court of Appeal?)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1139.html

 

Unpleasantly, a lot of the law around vicarious liability involves the sexual abuse of children, with the lead case being one about the Catholic Child Welfare Service Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1

 

“35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

 

In this case, the critical element was (v) whether the employee (the foster carers) to a greater or lesser degree was under the control of the employer (the Council)

 

The Court of Appeal ruled unanimously that there was no vicarious liability here

 

The provision of family life is not and by definition cannot be part of the activity of the local authority or of the enterprise upon which it is engaged. Family life is not capable of being so regarded, precisely because inherent in it is a complete absence of external control over the imposition or arrangement of day to day family routine, save insofar as is provided by the general law or by ordinary social conventions. The control retained by the local authority is at a higher or macro level. Micro management of the day to day family life of foster children, or of their foster parents in the manner in which they create the day to day family environment, would be inimical to that which fostering sets out to achieve, for the reasons expressed by McLachlin CJ at paragraph 24 of her judgment. The control retained by the local authority, over and above the proper selection of foster parents and adequate supervision of the placement which is here not in issue, is thus irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home. In the Catholic Child Welfare case Lord Phillips described the relationship between the Brothers and the Institute as “closer than that of an employer and its employees.” The manner in which the Brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. There is in my view not the remotest of analogies to be drawn between that situation and the relationship of local authority to foster parents.

 

 

and

 

For vicarious liability to exist, there would have to be (1) the necessary relationship between the foster parents and the local authority and (2) the requisite close connection between that relationship and the abuse that they committed (see paragraph 21of Lord Phillips’ judgment in Various Claimants v Catholic Church Welfare Society, supra, and also paragraph 88 where he proceeds to apply what he has distilled from the authorities in the preceding paragraphs). I do not consider that the relationship between the foster parents and the local authority was of the required nature. It was not, to my mind, sufficiently akin to employment. Although the significance of control in the relationship has changed over the years, it remains a relevant aspect of the assessment of whether there is vicarious liability. Certain aspects of the care of a child by foster parents are, and were at the relevant time, regulated and the local authority have a supervisory duty over the placement, which can be ended if they consider it appropriate. But the essence of the arrangement is, just as it was at the time with which we are concerned, that the child is placed with the foster parents to live with them as a member of their family. The child’s day to day life is in the charge of the foster parents, who are expected to give the child as normal an experience of family life as they can. The degree of independence that this gives the foster parents is not indicative, in my view, of a relationship giving rise to vicarious liability.

 

 

There was a second part of the claim which was that this was a “non-delegable duty”  – i.e that it was the Council’s job to provide a child whom they are looking after with a safe home and they could not delegate that duty to the foster carers. This is a much more technical argument, and beyond the scope of this blog to explore in detail, but the Court of Appeal ruled that there was not such a duty here. That possible remedy arises largely from a case called  Woodland v Swimming Teachers Association and others [2013] UKSC 66 [2014] AC 537, decided in the Supreme Court and setting out five ingredients.

The Court of Appeal did not think that this case met all of those Woodland ingredients, and were also cautious about viewing the Woodland ingredients in isolation.

 

 

  • I do not propose to take my discussion of this point any further because it seems to me that consideration of the five features set out in Lord Sumption’s paragraph 23 should not be undertaken in a limbo. This is because the question of liability for non-delegable duty has got to be approached having very much in mind what he said at paragraph 25 of the Woodland case:

 

“The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.”

Lord Sumption explained why he considered that no unreasonable burden would be imposed in that case. In this case, however, I am of the view that to impose a non-delegable duty on a local authority would be unreasonably burdensome and, in fact, contrary to the interests of the many children for whom they have to care.

 

  • I therefore find myself in agreement with Males J’s conclusion about this aspect of the case. I take into account the desirability of providing a remedy of substance for someone in the Appellant’s position. Nothing that I say here should be taken as suggesting that I am anything other than deeply conscious of the dreadful treatment she has suffered and sympathetic to the lasting impact that it must have had upon her. However, there are powerful reasons against the imposition of liability in circumstances such as the present ones.
  • It is a fundamental principle of social work practice that children are best placed in a family environment. If they cannot live with their parents, the majority of children are therefore likely to benefit most from a foster placement. Careful screening of prospective foster parents, training, supervision of the foster family, proper checks and balances in relation to the foster parents’ practice, and regular contact between social services and the child all play their part in ensuring that the child is safe with the foster parents. If, through the duty that it places upon the local authority, the law of negligence improves the chances of these safeguards being rigorously maintained, it is a very good thing. But, as this case demonstrates, even proper care on the part of the local authority cannot always prevent harm coming to the child from the foster parents. It seems to me that the imposition of liability for the actions of the foster parents by means of a non-delegable duty, operating in the absence of negligence on the part of the local authority, would be likely to provoke the channelling of even more of the local authorities’ scarce resources into attempting to ensure that nothing went wrong and, if such were possible, into insuring against potential liability (see paragraph 201 of Males J’s judgment). Particularly influential in my thinking is the fear that it would also lead to defensive practice in relation to the placement of children. Local authorities would inevitably become more cautious about taking the risk of placing children with foster parents and may possibly place some children who would otherwise have had the benefit of a foster home in local authority run homes instead, simply in order that the local authority can exert greater control over their day to day care. Males J dealt with this at paragraph 204 of his judgment. It was referred to also in the Canadian case of KLB v British Columbia [2001] SCR 404, in the context of vicarious liability, at paragraph 26.
  • The imposition of liability on the local authority might also give rise to another undesirable consequence for children. Important amongst the ways in which, under the statutes of the time, the local authority could discharge its duty to provide accommodation for the child was by allowing the child to live with a parent or relative (see section 21(2) of the Child Care Act 1980). If the local authority had a non-delegable duty towards a child in their care under a care order, making them liable for abusive actions on the part of a foster parent, there seems little principled basis for saying that they would not also be liable for such actions on the part of a parent with whom the child had been placed in this way. That sort of strict liability might well, it seems to me, affect the willingness of the local authority to take what would otherwise be seen as the manageable risk of allowing the child to live at home, thus reducing the chance of reuniting the child with his or her own family where that would, in fact, benefit the child. That is the point made by Males J at paragraph 206.
  • To these points, I would add that it is material, when considering a possible non-delegable duty rather than liability in negligence, to remember that the local authority has the powers and duties of a parent. I raised earlier my uncertainty as to what the precise implications of this are in the context of non-delegable duty. However, whatever they may be, I think it appropriate to bear in mind that a parent would not have a strict liability for harm caused by someone to whom he or she had entrusted the child’s care, for instance a nanny or, to take Burnett LJ’s examples, friends or relations. If the local authority’s powers and duties under statute are those of a parent, and where it is day to day care by a third party that is under consideration rather than strategic and management decisions on the part of the local authority, it is difficult to see why the local authority’s liability should be more onerous than a parent’s.
  • I acknowledge that although I am quite clear in my conclusion that the judge was right that the imposition of a non-delegable duty would not be fair, just and reasonable, I have not expressed firm views about the precise nature of the duty that should be considered to be at the heart of the non-delegable duty argument or about all of the five indicia of non-delegable duty. As Baroness Hale observed at paragraph 28 of the Woodland case, the common law is a dynamic instrument, but caution is needed in developing it. The law in relation to non-delegable duties is still evolving, as the Woodland case itself showed, and it seems to me preferable that I should only determine those matters which are essential to the determination of the appeal which, for the reasons that I hope appear from the preceding paragraphs, I would dismiss.

 

 

 

It does seem awful that this woman has no legal remedy for the awful things that were done to her – assuming that Criminal Injuries Compensation is not open to her (it may not be, due to the passage of time).  Nothing in this case affects a Local Authority’s liability under negligence – i.e if they had known of the abuse and failed to stop it, or it had been a foreseeable risk that they had failed to prevent through carelessness.

 

There are some hints in this judgment that it might go up to the Supreme Court – as it is largely interpretation of two distinct and recent Supreme Court authorities, that seems a distinct possibility.

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Obtaining an expert report without court permission

Posted on November 12, 2015 by suesspiciousminds

 

A quirky case from the pen of Her Honour Judge Lazarus.  [We have previously seen Her Honour Judge Lazarus in the decision in the case about the foster carer who was abusive towards the mother who tape-recorded her, and in the s20 case where compensation of £40,000 was ordered, in both cases the Judge being very critical of the Local Authority.]

 

As a general principle, if you want an expert in family Court proceedings, you need to get the permission of the Court first. Showing an expert any documents before the Court has given you that permission is a contempt of Court and if you go by the back door and pay for a report without the Court’s permission, you may not be able to rely on it. So it would be  a waste of your money.

This particular case involved an expert called Dr Lowenstein, whose name rang a bell with me.

 

He was involved in the massive case where the Mail on Sunday tried to claim that they had an article 8 right to be friends with a 94 year old woman who had previously been the journalist’s source, where the Court of Protection had put a restriction in place on the Press talking to her until a determination of (a) her capacity and (b) whether that was in her best interests.

journalist’s right to private and family life with her source

 

These are the passages about Dr Lowenstein in that case, Re G (an adult) 2014

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

 

Well, you know, that could just be bad luck. Even Babe Ruth struck out once in a while, and if you were assessing whether he was a good baseball player when you only saw one of his off days…

 

But it isn’t inspirational stuff.  He hadn’t read the documents, didn’t understand the tests and principles to be applied, wasn’t an expert in the field of law he was ostensibly reporting in and didn’t take proper notes. And he hadn’t been instructed through the Court process, but through the back door.

 

The new case is MB (Expert’s Court Report) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B178.html

 

The mother in this case made an application to discharge Care Orders relating to a child who is now 8. She came to Court, bolstered by the expert report prepared on her behalf by Dr Lowenstein.

 

I’m just going to confine myself to exactly what the Judge had to say about Dr Lowenstein.

 

 

  • Within the recent history the mother and her partner Mr P have undergone a parenting assessment conducted by Mr Ian Scrivens and dated the 20th March 2015, initiated by the Local Authority, Mr Scrivens being an experienced social worker. And he undertook that assessment over a number of sessions with Ms MB and Mr P, and indeed met with H at his foster placement, and used the Department of Health guide for social workers undertaking a comprehensive assessment.
  • That assessment does not recommend that H is returned to his mother’s care and that, while there are some positives, there are ongoing concerns and, indeed, H’s enhanced needs would suggest that the couple would find it difficult to meet those needs in the light of their own difficulties.
  • Ms MB has told me today that, following receipt of that report, she and Mr P attempted to challenge this by seeking to dispute it with the Local Authority and to bring their concerns to the attention of the independent reviewing officer, presumably at looked after children review meetings for H.
  • She also tells me that she visited her former solicitor and was told that she could perhaps seek a further report from another expert, and she also tells me that she then approached Dr Lowenstein in an attempt to understand some of the issues and discussed the parenting assessment with him. She further tells me that Dr Lowenstein himself then suggested and, as she put it, offered to do a court report for them. And she confirmed, upon my careful enquiry, that it was he who had suggested this. I note of course that this report was obtained prior to the start of any of the proceedings that I have now before me, it being dated May 2015.
  • I note that Dr Lowenstein practices from Southern England Psychological Services based at Allington Manor, Eastleigh, Hampshire, and puts himself forward as, and I am reading from the third page of his report: a chartered psychologist and associate fellow of the British Psychological Society, as a qualified clinical and educational psychologist, and that he also works in the area of forensic psychology and he is registered with the health professional council, HCPC, practising in the areas of clinical, educational and forensic psychology, and having published widely in both clinical and educational psychology as well as forensic psychology. He sets out details in an extended profile in appendix 1 to his report.
  • He sets out his background training from an Australian university and a PhD from London University, that he has clinical training and a diploma in clinical and educational psychology from the Institute of Psychiatry at the Maudsley Hospital, which qualifications were obtained in the 1960s, and that he held a former post as the Principal of Allington Manor, a specialist unit for disturbed young people. He has formerly been Chief Educational Psychologist for Hampshire and has advised and lectured in various parts of the world on the subject of setting up such centres.
  • He has twice been elected to serve as Director of the International Council of Psychologists and was their President from July 2011 to 2013, and claims to be currently practising as an independent expert witness for the courts and to write reports in the areas of educational and forensic psychology as well as in personal injury and criminal cases. He claims to work and advise in the area of family problems such as parental alienation, and he also claims to have a private practice where he treats people for a variety of psychological problems.
  • There are a number of concerns that occurred immediately to the Local Authority, to the Children’s Guardian and indeed to the Court, evident from what he calls his ‘psychodiagnostic report’ on Ms MB.
  • The first such concern is that he claims, under the very first heading, that this report is for the court and is carried out by an independent expert witness of many years experience. However, there were no ongoing court proceedings at the time. I am very concerned that he suggested that a ‘court report’ should be obtained, and suggested it to the mother of a child in foster care, and a mother who evidently has ambitions for her child either to be returned to her care or to have contact with that child and, as such, is vulnerable to any suggestion that she might be assisted by these means, notwithstanding that there were no court proceedings on foot at the time.
  • A second concern is that he purported to carry out a ‘court report’ without being granted permission to see nor having sight of any of the previous court papers, without the required process of permission from a court within proceedings being sought, and without there being an agreed letter of instruction approved by the court setting out the factors upon which he ought to comment. This is in obvious contravention of the relevant provisions found in the Family Proceedings Rules 2010 r.25, Practice Direction 25A-F and the Children And Families Act 2014 s13, and falls foul of the very clear guidance provided in Re A (Family Proceedings: Expert Witness) [2001] 1 FLR 723. Experts should not accept instructions unless explicitly informed that the court has given them its permission and of the terms set out in the court order permitting their instruction.
  • And further that he did this when he either ought to have known or knows very well, given the claims he makes in relation to his expertise, his experience, his qualifications and his apparent provision of court reports, that there was a very grave risk that such a report, prepared in this way, would be wholly inappropriate for the purposes of court proceedings and would therefore risk not being admissible within those proceedings and/or of having very little weight that could be sensibly attached to it.
  • I further note that his report mentions, at paragraph 1.7, that the mother has been improved to a considerable degree as a result of the psychotherapeutic sessions she has had with her psychotherapist, and he goes on in his conclusions, at page 10, paragraph 3, and page 11, paragraph 9, to confirm his opinion that she has undoubtedly been helped considerably by her psychotherapy and has learned a great deal as a result of her psychotherapeutic sessions. However, he also states that unfortunately there is no report from the psychotherapist as to her view of how her client benefited or not from those psychotherapeutic sessions.
  • It is therefore evident on the face of this report that Dr Lowenstein is not only, in the same report, acknowledging the lack of information from the psychotherapist but also purporting to be able to come to conclusions in relation to its impact, notwithstanding the lack of that information, and also notwithstanding that he had no information as to how the mother presented prior to such sessions. It is, therefore, a report that within its own content betrays inconsistencies and internal contradiction, and an obvious lack of rigorous analysis.
  • Additionally, Dr Lowenstein appears to be primarily an educational and general psychologist as revealed by a close reading of his qualifications, posts and experience. As such his instruction would not have been supported by the Local Authority or the Children’s Guardian in any event for that reason, and the Court would be most unlikely to accept that he would be the appropriate expert to consider mother’s complex personality issues.
  • I find this report, and the mode by which it has been suggested to the mother and has come about, to be highly unsatisfactory, likely to be in breach of professional codes of conduct, certainly lacking in any observation of the rules that apply to obtaining court reports within family proceedings, and that it is not a ‘court report’ as Dr Lowenstein claims and would not be admissible. In the circumstances, I gain the very strong impression that the vulnerability of this mother may have been exploited by Dr Lowenstein, who charged her £550 for this report in the circumstances which I have just outlined.
  • I am also aware that Dr Lowenstein has been criticised in another Court by another judge in very similar circumstances.
  • It is for these reasons that I intend to obtain the transcript of this judgment, and I have asked the Children’s Guardian to ensure that the transcript is sent to Dr Lowenstein so that his attention is drawn to the significant concerns expressed by this Court about his failure to observe the rules and requirements of reporting for the court and the inappropriateness of the steps that he has taken in this case and, indeed, the inadequacies of his report’s content, even on a superficial reading, that are evident to all concerned.
  • I am also going to invite the Children’s Guardian to consider reporting this matter to the professional bodies that Dr Lowenstein claims to belong to, and I also intend, in an anonymised version of this judgment, to publish this judgment, albeit that the names of professionals involved, and Dr Lowenstein in particular, will not be anonymised in accordance with guidance and case law. And, as I say, I consider Dr Lowenstein’s approach to this Mother’s situation to have failed in any purported attempt to assist her but to have been inappropriate and potentially exploitative, and certainly of no help to her within her applications

 

 

To see if Dr Lowenstein has been involved in any reported family cases favourably, I did a search on Bailii.

 

This one, Re F (a child) 2014, he was involved tangentially, again, having reported outside of Court proceedings, but it isn’t a favourable mention.

http://www.bailii.org/ew/cases/EWCC/Fam/2014/12.html

Dr Adshead was asked about the past reports of Dr.  Lowenstein  and Dr. Holt. Dr. Adshead told me that where she disagrees with Dr  Lowenstein , is that he seems to have a rather “old-fashioned view” of personality disorder, namely that you either have it or you do not . In Dr. Adshead’s opinion, it is perfectly possible to have some degree of personality disorder and become better or worse and that there is a spectrum of symptoms.

 

Again in this one, Dr Lowenstein’s report came before the Court despite him not having been instructed or given permission to see the papers

 

Re JC (Care Order) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B185.html

 

  On the 11th December 2012 the social worker received an e-mail from EL and that attached the report from a Dr.  Lowenstein .  The father indicated that he was referred to Dr.  Lowenstein  by his G.P.

28.              At the hearing on the 21st September 2012 father had initially requested that Dr.  Lowenstein  undertake the family assessment but Her Honour Judges Coates (sitting as a Deputy High Court Judge) directed that it was Dr. Van Rooyen who was to undertake the assessment.  Dr.  Lowenstein  was instructed without the prior sanction of the Court, and/or the agreement of the other parties, and it is clear that father had disclosed some of the case documents to him.  The matter was transferred back to the County Court.

29.              In the light of the NSPCC concluding that the case is unsuitable for their reunification programme, and in the light of Dr. Van Rooyen’s addendum report, the Local Authority now take the view that JC should be placed in long term foster care; that he needs to be placed there until father has made progress on his therapy, and parenting work, and at some stage in the future it may be appropriate to consider the issue of rehabilitation.

30.              The fact that Dr.  Lowenstein  had been instructed was discussed at the case management conference on the 12th December 2012 and father made an application for further assessment of him by Dr.  Lowenstein  because he did not accept the contents of Dr. Van Rooyen’s report.  That application was dealt with by Her Honour Judge Cameron. Having heard submissions from all parties she ruled against the Court reading the report of Dr.  Lowenstein  and ruled against the father’s application for a further assessment.

There is a 2006 Court of Appeal case where he was mentioned as a possible expert but the application wasn’t pursued (so in that one, he hadn’t reported outside of Court)

Re B ( a child) O (children) 2006

http://www.bailii.org/ew/cases/EWCA/Civ/2006/1199.html

  • Coleridge J begins his judgment by reference to the decision of this court on 28 April 2005. He then identifies the main relief sought by Mr. O’Connell, and in paragraphs 6 to 8 identifies the additional relief also sought, the reaction of the other parties to it, and what happened: –

 

“Ancillary to the main applications for residence and contact, the following applications are also before the Court now. Firstly, by the Father, that the Guardian should be removed. Secondly, that a psychologist should be appointed to assess the children, in particular, a Dr  Lowenstein , the American exponent of that much questioned theory ‘parental alienation syndrome’, and if not that expert then another. He also alluded to the possibility of seeking disclosure of further documents but that application never proceeded.

And in the Court of Appeal in 2003 – again, there’s no suggestion here that Dr Lowenstein did anything wrong, but it is an unusual order for a Court to have had to make

Re G a child 2003

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1055.html

  • There have been long running proceedings in the Manchester County Court between the parents of AG born on 3 July 1996. The central issue has always been contact, or rather lack of contact, between AG and her father Mr B. I will refer to him throughout this judgment as the father. His Honour Judge Hamilton has had charge of the case for some time. There was a major hearing commenced on 10 March 2003, in preparation for which Judge Hamilton had given directions in November 2002 and January 2003. At the conclusion of the March hearing Judge Hamilton reserved his decision, handing down a written judgment on 2 May 2003. Paragraph 3 of the resulting order reads as follows:

 

“The father is prohibited from disclosing in any manner any papers or documents filed in these proceedings or their content or any school reports he may obtain to either Dr Richard Gardner or Dr Ludwig  Lowenstein  or any other expert in parental alienation syndrome or any other agency or organisation such as Families Need Fathers without the specific permission of the court.”

And another Court of Appeal case in 2000 – here, Dr Lowenstein had been properly instructed as a Court appointed expert (I note here as a ‘forensic psychologist’ ) and the Court had rejected his evidence (which doesn’t mean that there’s anything wrong with it, just that the Court disagreed with his report in that particular case)

Re L  and Others (Children) 2000  http://www.bailii.org/ew/cases/EWCA/Civ/2000/194.html

The solicitors for the parties agreed that they should jointly instruct a child psychiatrist to advise on contact and His Honour Judge Milligan made the order. It appears that the parties´ solicitors had great difficulty in finding a child psychiatrist and eventually instructed Dr  Lowenstein  who made a report. He saw both parents and G and came to the conclusion that this was a typical case of parental alienation syndrome. As the judge said, Dr  Lowenstein  has been closely associated with recognition of this syndrome. He recommended therapy, at least 6 sessions to be conducted by himself, followed by a further report. Since it was therapy, there would be problems in financing the therapy and subsequent report. The judge did not accept the unsubstantiated assertion of the court welfare officer as to emotional abuse of G. He was equally unhappy about the findings and conclusions of Dr  Lowenstein . In the report of Dr Sturge and Dr Glaser, they indicated that parental alienation syndrome was not recognised in either the American classification of mental disorders or the international classification of disorders. It is not generally recognised in psychiatric or allied child mental health specialities. It would be fair to say that Dr  Lowenstein  is at one end of a broad spectrum of mental health practitioners and that the existence of parental alienation syndrome is not universally accepted. There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem. That unhappy state of affairs, well known in the family courts, is a long way from a recognised syndrome requiring mental health professionals to play an expert role. I am aware of the difficulties experienced in some areas in getting the appropriate medical or allied mental health expert to provide a report within a reasonable time. It was, however, unfortunate that the parents´ lawyers not only did not get the medical expert ordered by the judge, that is to say, a child psychiatrist, (although in many cases a psychologist would be appropriate), but, more serious, were unable to find an expert in the main stream of mental health expertise.
The judge, in my view, was entitled to reject the report and the oral evidence of Dr  Lowenstein , even though the psychologist was jointly instructed. Lord Goff of Chieveley said in re F (Mental Patient: Sterilisation) [1990] 2 AC1 at page 80 that experts were to be listened to with respect but their opinions must be weighed and judged by the court. The judge said
“I cannot accept the effect of what Dr  Lowenstein  has told me, namely that PAS is such a serious state that the child involved and the parent should be subjected to treatment by way of therapy with direct threats to the mother in the event of non-co-operation. It appears from the literature that some schools of PAS thought advocate the immediate removal of the child from the alienating parent and thereafter no contact with the alienating parent for a period. It also appears that ´long term psycho- analytically informed therapy in the order of years rather than months´ is the treatment of choice.”

I do not accept the submission of Mr Bates that the judge did not give reasons for rejecting the evidence of Dr  Lowenstein . The case for the father was largely based upon the suspect conclusions of the court welfare officer of emotional harm suffered by the child. The judge did give reasons and it was well within his judicial function not to accept that evidence.

And then yet another Court of Appeal case in 1999  – this time, the report having been obtained outside of Court proceedings and without the permission of the Court.

Clark v Clark and Another 1999

By a summons of 1st March the wife sought to admit fresh evidence consisting of a report from Dr  Lowenstein , a clinical psychologist, a statement from Detective Constable Shirley and her own affidavit. By a later summons she sought to introduce reports from Dr Mathews and Dr Fraser Anderson. It was agreed at the outset that all this additional evidence would be received by the court de bene esse and that any ruling on its admissibility would be deferred to final judgment. I will therefore deal straightaway with this additional evidence. The affidavit from Dr  Lowenstein  hardly meets any test for the admission of fresh evidence. He is a clinical psychologist who prepared a written report on the wife having spent several hours in her company on 8th February 1999. In a neat way this manoeuvre illustrates the extent to which the wife inhabits a world bounded by her egocentric and manipulative will unconstrained by any objective reality. Dr  Lowenstein  gave the opinion that he did because Mrs Clark restricted him to her version of events omitting to inform the psychologist that that version had been comprehensively rejected in High Court proceedings. The statement from the detective constable has greater validity in that it contradicts assertions made by the husband in letters to his solicitors in April and June 1995 to the effect that the detective constable had been obstructed by the wife in investigating a report from the husband of the theft of a picture from Wellow Park. There is perhaps just sufficient justification to permit the admission of that evidence for further investigation. As to the reports from Dr Anderson and Dr Mathews, in my opinion they fail to meet any test of admissibility. Dr Mathews’ undated report, but written in this month of April, only contains what was before the judge in her manuscript medical notes. The report from Dr Fraser Anderson simply relates to the husband’s condition in May 1997. It is dated 23rd November 1998 and it is admitted that it was requested prior to judgment. There is nothing within it which would in any way have expanded the judge’s knowledge or affected his conclusions. Consequently I would admit the statement from the detective constable and reject the three medical reports. I would add that even if admitted their contents would not have assisted her case

I will give  a caveat. There may well be many cases where Dr Lowenstein has provided a report in family Court proceedings where the Court found it useful and helpful and relied upon it, even thanking him for the valuable report. There may be hundreds of such cases. There just aren’t any reported ones. Not all cases get reported.

 

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Court of Appeal – section 20 abuse

Posted on November 2, 2015 by suesspiciousminds

 

There have been several reported cases about Local Authorities misusing section 20 now, to obtain “voluntary accommodation” of children in foster care where the ‘voluntary’ element doesn’t seem all that voluntary, and therefore it was only a matter of time before the Court of Appeal fell upon such a case and made an example of it.

 

Here it is:-

 

Re N (Children: Adoption : Jurisdiction) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html

 

As you can see from the title, it is also a case about adoption and the jurisdiction to make adoption orders about children who are born to foreign parents or who live overseas by the time the order is made.  I would really want more time to ponder those parts of the judgment before writing it up.

 

This particular sentence from Aitkens LJ is probably worthy of a piece on its own – raising the issue of ‘limping adoption orders’

 

There is one further comment I wish to make. Both the President and Black LJ have emphasised that when an English court is considering making a placement order or adoption order in respect of a foreign national child, it must consider, as part of the “welfare” exercise under section 1(4) of the 2002 Act, the possibility of the result being a “limping” adoption order. By that they mean an adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. There is a danger that natural parent(s) (or perhaps other parties) who oppose the adoption, will attempt to turn this factor into a major forensic battle by engaging foreign lawyers to give opinions on the effectiveness (or lack of it) of an English adoption order in other countries, in particular the state of the nationality of the natural parent(s). Those legal opinions might then be challenged and there is the danger of that issue becoming expensive and time consuming “satellite litigation”. I hope that this can be avoided by a robust application of the Family Procedure Rules relating to expert opinions.

 

So, focussing just on the section 20 issues  (If you want the background to what section 20 is, what drift is and why it is a problem, I’ll point you towards my most recent piece on it  https://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/)

 

This is what the Court of Appeal had to say  (and this is one of those judgments that the President has cascaded down – which is a posh way of saying “sent by email to all Courts saying that they must read it and follow it”)

 

  1. Other matters: section 20 of the 1989 Act
  2. The first relates to the use by the local authority – in my judgment the misuse by the local authority – of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013, yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.
  3. As I said in Re A (A Child), Darlington Borough Council v M [2015] EWFC 11, para 100:

    “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated.”

    I drew attention there, and I draw attention again, to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam). As Keehan J pointed out in the latter case (para 37), the accommodation of a child under a section 20 agreement deprives the child of the benefit of having an independent children’s guardian to represent and safeguard his interests and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay. In that case the local authority ended up having to pay substantial damages.

  4. Then there was the decision of Cobb J in Newcastle City Council v WM and ors [2015] EWFC 42. He described the local authority (paras 46, 49) as having acted unlawfully and in dereliction of its duty. We had occasion to return to the problem very recently in Re CB (A Child) [2015] EWCA Civ 888, para 86, a case involving the London Borough of Merton. Even more recent is the searing judgment of Sir Robert Francis QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division in Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), another case in which the local authority had to pay damages.
  5. Moreover, there has in recent months been a litany of judgments in which experienced judges of the Family Court have had occasion to condemn local authorities, often in necessarily strong, on occasions withering, language, for misuse, and in some cases plain abuse, of section 20: see, for example, Re P (A Child: Use of S.20 CA 1989) [2014] EWFC 775, a case involving the London Borough of Redbridge, Re N (Children) [2015] EWFC 37, a case involving South Tyneside Metropolitan Borough Council, Medway Council v A and ors (Learning Disability: Foster Placement) [2015] EWFC B66, Gloucestershire County Council v M and C [2015] EWFC B147, Gloucestershire County Council v S [2015] EWFC B149, Re AS (Unlawful Removal of a Child) [2015] EWFC B150, a case where damages were awarded against the London Borough of Brent, and Medway Council v M and T (By Her Children’s Guardian) [2015] EWFC B164, another case where substantial damages were awarded against a local authority. I need not yet further lengthen this judgment with an analysis of this melancholy litany but, if I may say so, Directors of Social Services and Local Authority Heads of Legal Services might be well advised to study all these cases, and all the other cases I have mentioned on the point, with a view to considering whether their authority’s current practices and procedures are satisfactory.
  6. The misuse of section 20 in a case, like this, with an international element, is particularly serious. I have already drawn attention (paragraphs 50-51 above) to the consequences of the delay in this case. In Leicester City Council v S & Ors [2014] EWHC 1575 (Fam), a Hungarian child born in this country on 26 March 2013 was accommodated by the local authority under section 20 on 12 April 2013 but the care proceedings were not commenced until 10 October 2013. Moylan J was extremely critical of the local authority. I have already set out (paragraph 115 above) his observations on the wider picture.
  7. What the recent case-law illustrates to an alarming degree are four separate problems, all too often seen in combination.
  8. The first relates to the failure of the local authority to obtain informed consent from the parent(s) at the outset. A local authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent. We dealt with the point in Re W (Children) [2014] EWCA Civ 1065, para 34:

    “as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.”

  9. In this connection local authorities and their employees must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 46:

    “(i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under s 20 to have their child accommodated by the local authority and every local authority has power under s 20(4) so to accommodate provided that it is consistent with the welfare of the child.

    (ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

    (iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by s 3 of the Mental Capacity Act 2005, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

    (iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

    (v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

    (a) Does the parent fully understand the consequences of giving such a consent?

    (b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

    (c) Is the parent in possession of all the facts and issues material to the giving of consent?

    (vi) If not satisfied that the answers to (a)–(c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

    (vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

    (viii) In considering that it may be necessary to ask:

    (a) What is the current physical and psychological state of the parent?

    (b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

    (c) Is it necessary for the safety of the child for her to be removed at this time?

    (d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

    (ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

    (x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of s 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.”

  10. I add that in cases where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.
  11. The second problem relates to the form in which the consent of the parent(s) is recorded. There is, in law, no requirement for the agreement to be in or evidenced by writing: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 53. But a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent’s signature.
  12. A feature of recent cases has been the serious deficiencies apparent in the drafting of too many section 20 agreements. In Re W (Children) [2014] EWCA Civ 1065, we expressed some pungent observations about the form of an agreement which in places was barely literate. Tomlinson LJ (para 41) described the agreement as “almost comical in the manner in which it apparently proclaims that it has been entered into under something approaching duress.” In Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), the Deputy Judge was exceedingly critical (para 65) both of the terms of the agreement and of the circumstances in which the parents’ ‘consent’ had been obtained. There had, he said, been “compulsion in disguise” and “such agreement or acquiescence as took place was not fairly obtained.”
  13. The third problem relates to the fact that, far too often, the arrangements under section 20 are allowed to continue for far too long. This needs no elaboration.
  14. This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

    “Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

    This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

  15. It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above: i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

    ii) The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

    iii) The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

    iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

    v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

  16. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

 

The marker is down then.  Any LA facing a challenge about misuse of section 20 is on notice that damages may follow, and certainly where the misuse begins after today’s judgment one would expect damages to play a part.

 

The President also tackles here something which has been on my mind for a month. The practice by which agreement is reached that an Interim Care Order is not needed, because the parent agrees (either in a section 20 written agreement) or in a preamble in the Court order that they “agree to section 20 accommodation and agree not to remove without giving seven days notice”   – that is a fairly common compromise which avoids the need for an ICO or to have a fight in Court about the child’s legal status where it is agreed by the parents that the child should stay in foster care whilst assessments are carried out.

 

As the President says here

 

para 169

 I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

 

and here

para 170

iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8)

 

I don’t think that this is legally permissable any longer. (The Court of Appeal could, of course, have said explicitly that such a fetter can only be made where the parent agrees after having had independent legal advice, but they didn’t)

That means that Courts up and down the country are going to be faced with arguments as to whether the right thing for a child is to make an Interim Care Order, OR to rely on a section 20 agreement that could be withdrawn at any time  (including the obvious nightmare scenarios of “twenty minutes after we leave Court” or “at five to five on a Friday night” or “at 5pm on Christmas Eve).

 

The other thrust of the President’s comments on section 20 (8) objections are that as a result, surely even a delay in return of the child to place the matter before the Court for an EPO hearing is going to be a breach unless the parents themselves agree to that course of action.  That in turn raises the spectre of an increase in children being taken into Police Protection, since a forseeable outcome of this case is:-

 

(A) Parent says at 4.55pm on Friday “I want little Johnny home now, I object to section 20”

(B) LA are in breach of the Act and may be committing a criminal offence if that child is not on his way home by 4.56pm

(C) Courts aren’t likely to be able to hear an EPO application on one minutes notice

(D) The police remove under Police Protection instead

 

  [I seriously don’t recommend that as an option as a result of the many cases which batter social workers and police officers for misuse of Police Protection, but I do wonder whether the current case law on Police Protection really works after Re N  – those cases making it plain that it should be the Court decision not a police decision only work if there is time to place the matter before the Court.  BUT until one of them is challenged and the law on Police Protection changes, almost any removal under Police Protection can be scrutinised and perhap[s condemned.  And of course the alternative to THAT, is that more and more cases will instead find their way into care proceedings.  I think that the decisions on Police Protection and section 20 are right, but if we have learned nothing else since the Family Justice Review it should be that fixing one problem often has substantial unintended consequences and causes another problem elsewhere]

 

So, LA lawyers up and down the country, get hold of the current section 20 agreement, and rewrite it to comply with this judgment.

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It would be difficult to find a more callous and calculating attorney

Posted on October 27, 2015 by suesspiciousminds

Yet another financial abuse case. Once again, one where the Deputy or Attorney would have benefited greatly from having one of my coffee mugs with “It’s not your Fucking Money” printed on it.

 

Re SF 2015

 

http://www.bailii.org/ew/cases/EWCOP/2015/68.html

 

In this case, Sheila who is now 87 had appointed her son Martin to manage her financial affairs through an Enduring Power of Attorney.

 

Martin had withdrawn from her funds, £117,289.45 for “out of pocket expenses”, whilst not paying his mother’s care home fees which had been mounting up and had reached £29,000 in arrears.

In justifying this, he stated that he had been ‘billing’ at a daily rate of £400 per day, which is what he would charge in his role as a consultant.  This then included billing his own mother for visiting her. Nice.

 

“In my first witness statement dated 30 March 2015 I stated … that Martin had claimed a total of £49,143.19 since the EPA was registered on 7 August 2009. In Martin’s witness statement he has stated that Hugh James Solicitors sent him a cheque for the amount of £68,146.26. Martin has stated he paid this into his own account in part payment for the costs he had incurred. This amount added to the £49,143.19 amounts to a total of £117,289.45. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses.

Martin states that he charged for the visits he made to Sheila when he would visit to check for signs of physical abuse due to her mistreatment at [her previous residential care home in Llandrindod Wells]. Martin is an attorney under the EPA, which covers property and financial affairs only. Therefore his visits to check for physical abuse, even if they were necessary to safeguard Sheila, were not part of his role as attorney. Therefore, the Public Guardian believes Martin was not entitled to claim expenses for these visits.”

 

 

  1. As regards the amount of remuneration he has paid himself, Martin said in his witness statement dated 1 October 2015 that:

    “In my view these are not excessive, considering I have been fighting this battle with Powys LHB since 2004. If I had not spent the large amounts of time on this case, then my mother’s estate would still be illegally paying the full costs of care, and the 2013 compensation would never have been forthcoming. Finally, I have not taken any gifts from the estate (which could have been in the region of £33,000 from 2004 to 2015).

  2. At the hearing Martin said that he had charged his mother a daily rate of £400 for visiting her and for the work he put into the claims against Powys Local Health Board. This was his usual daily charging rate when he was a self-employed independent consultant prior to his retirement.
  3. In response to the Public Guardian’s application generally, Martin said:

    “I see no need to replace myself. I am the sole heir and because of my mother’s dementia and current poor health, there is no need to protect the estate’s financial interests, which are effectively mine.The OPG have now recommended that [a deputy] is appointed from their own panel. I would expect any appointed deputy from the OPG to seek to assist the Police in bringing criminal charges against Powys LHB, and to recover the monies owed from Powys LHB. If this is not part of the remit then appointing will be a waste of time and any costs incurred will be to the detriment of my mother’s estate and my own financial interest in my mother’s estate. However, it is apparent that the OPG do not want to pursue the recovery of monies owed from the Powys LHB. The OPG appears to be acting on behalf of Powys CC and Powys LHB, and as such is effectively colluding in their fraudulent behaviour. Consequently I believe that the OPG is not a fit or proper organisation to protect the interest of my mother’s estate.

    On the face of it, the OPG’s desire for me to repay money from my mother’s estate makes little sense. I am the sole beneficiary of the estate and any restitution I made would come straight back to me on my mother’s death, which considering her present state of health, is likely to be sooner rather than later. “

 

Once again, we have a Deputy or Attorney mistakenly thinking that becoming a Deputy or Attorney is actually Cate Blanchett for early access to an inheritance that they expect to acquire.  Nor is it, as he claimed, the purpose of the role to safeguard his own inheritance.

 

All of this led the Judge, Senior Judge Lush to conclude this :-

 

 

  1. One would be hard pressed to find a more callous and calculating attorney, who has so flagrantly abused his position of trust.
  2. Martin hasn’t paid his mother a personal allowance since June 2014 because toiletries were free in her previous residential care home and he resents having to pay for them now in the nursing home in which she has been living since February 2013. He even begrudges her having her hair tinted.
  3. The assertion that he hasn’t taken “any gifts from the estate” adds nothing to his credibility. If anything, it highlights his lack of it. He was referring to the £3,000 annual exemption for inheritance tax (‘IHT’) purposes, but Sheila’s estate is well below the threshold at which IHT becomes chargeable and no one is entitled, as of right, to receive a gift of £3,000 each year.
  4. As regards the non-payment of Sheila’s care fees, I agree with the Public Guardian’s stance that “whilst Martin attempts to resolve the dispute (with Powys Local Health Board), it would be in Sheila’s best interests that he continues to pay her care fees.”
  5. There is no evidence to support Martin’s suggestion that “if my mother’s care fees are paid from now onwards, Powys LHB will seek to avoid refunding monies owed.” The letter from Powys Local Health Board to the OPG, dated 12 March 2015, to which I referred in paragraph 21 above, shows that the Health Board has acted in good faith and reimbursed any fees that were overpaid in the past. Martin, on the other hand, has persistently acted in bad faith.
  6. As for his claim for reimbursement of out-of-pocket expenses for acting as his mother’s attorney, paragraph 6 of Part A of the prescribed form of Enduring Power of Attorney, which he and his mother signed on 23 October 2004, stated that:

    “Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). If your attorney(s) are professional people, for example solicitors or accountants, they may be able to charge for their professional services as well. You may wish to provide expressly for remuneration of your attorney(s).”

  7. Sheila did not expressly provide for Martin to be remunerated and if he intended to charge a daily rate of £400 for acting as her attorney, he should have applied to the court for authorisation pursuant to paragraph 16(2)(b)(iii) of Schedule 4 to the Mental Capacity Act 2005. By not doing so, he behaved in a way that contravened his authority and was not in the donor’s best interests.
  8. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses. I would put it more strongly than that. I believe that charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant.
  9. Martin suggested that the appointment of a panel deputy would be a waste of time and money because his mother’s estate is effectively already his. I disagree. The panel deputy will, for the first time in eleven years, place Sheila at the centre of the decision-making process, rather than view the preservation and enhancement of Martin’s inheritance as the paramount consideration.
  10. Having regard to all the circumstances, therefore, I am satisfied that Martin is unsuitable to be Sheila’s attorney, and I shall revoke the EPA and direct the Public Guardian to cancel its registration. I shall also direct an officer of the court to invite a panel deputy to apply to be appointed as Sheila’s deputy for property and affairs.

 

 

Is he the most callous attorney ever?

 

Well, in trying to think of a worse one, I can only come up with Harvey Dent from the Batman universe,  the District Attorney who later became a gangster named Two-Face.   [And to be honest, that may be slightly unfair on Harvey  – though possibly not as unfair as Tommy Lee Jones portrayal of him in Batman Forever, in which he was so hammy he needed a bodyguard to protect him from David Cameron between takes ]

 

Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

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Ever decreasing circles – Court of Appeal take Mostyn J to task for taking them to task for taking him to task…

Posted on October 22, 2015 by suesspiciousminds

 

Readers of the blog may be familiar with Mostyn J’s continuing battle to have the Supreme Court change their mind about the deprivation of liberty test set down in Cheshire West, and failing that to simply disagree with their decision at every opportunity.

In this particular case, Rochdale had asked Mostyn J to authorise a care plan for a person lacking capacity that clearly amounted, on the Cheshire West test to a deprivation of liberty.

At the first hearing, Mostyn J told everyone that Cheshire West was nonsense (politely and judicially and intellectually, but that was the gist) and that the person was not being deprived of their liberty and thus there was no need to authorise it.

The case was appealed, and rather unusually, by the time that it got to the Court of Appeal EVERYONE agreed that the Mostyn J judgment should be overturned and that the person was being deprived of their liberty. The Court of Appeal approved a consent order to that effect but did not give a judgment explaining why Mostyn J had been wrong  (perhaps wrongly thinking that where everyone agreed the Judge was wrong and that he had gone against a clear Supreme Court decision with which he did not agree but was not able to distinguish the instant case from, that it was somewhat plain)

 

 

It went back to Mostyn J to authorise or not, the deprivation of liberty. However, he declined and took everyone, including the Court of Appeal to task and said that a consent order without a judgment was not binding on him. And thus did not reach the point of authorising the deprivation, but instead set down a hearing to be conducted by himself as to whether there was a deprivation of liberty at all.

Incredibly bravely (but rightly), the parties appealed THAT, and the Court of Appeal determined it.

[Previous blog on Round 3 of this peculiar litigation is here   https://suesspiciousminds.com/2015/03/16/mostyn-powers/  ]

 

So, by way of catch-up here, in this one case, Mostyn J disagreed with the Supreme Court, then when the Court of Appeal disagreed with him, he disagreed with them. And now the Court of Appeal disagree with him again.

In the midst of all of this, are some real people with real problems to resolve, and a lot of taxpayers money being spent.

KW and Others v Rochdale MBC 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1054.html

 

The Court of Appeal pull no punches whatsoever. In fact I understand that this was very much what it looked like when the Master of the Rolls removed his gloves after the judgment

 

 

The Master of the Rolls does not have to go through the metal detectors en route to the Court room

The Master of the Rolls does not have to go through the metal detectors en route to the Court room

 

But first, the technical part of the appeal – if the Court of Appeal approve a consent order overturning the decision of the original Judge but don’t give a judgment, is the case actually overturned? (I understand that this is actually one of the lesser known and unpopular Zen koans)

 

The grounds of appeal from the second judgment

 

  • The principal ground of appeal is that the judge misinterpreted the consent order when he said that the Court of Appeal had not decided that KW was being deprived of her liberty.
  • We accept that (i) nowhere does the order explicitly state that there was a deprivation of liberty; and (ii) the use in para 2 of the order of the words “to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such liberty is hereby authorised” might suggest that the court was not deciding that the restrictions were in fact a deprivation of liberty. But read in their context, that is clearly not the correct interpretation for at least two reasons. First, para 2 must be read in the light of para 1, which governs the whole order. Para 1 states that the appeal is allowed. The remaining paragraphs set out the court’s directions consequential upon the allowing of the appeal. When read together with section 6 of the notice of appeal, the order that the appeal was allowed necessarily involved the court deciding that KW’s care package does involve a deprivation of liberty. The words “to the extent that” etc are perhaps unfortunate, but they cannot detract from what allowing the appeal necessarily entailed. These words were derived from para 11 of the Model Re X Order which had been published on the Court of Protection website and which practitioners had been encouraged to use. We were told by counsel that this form of words is not universally used. We understand that the form of words more often used is along the lines of: “P is deprived of his or her liberty as a result of arrangements in the Care Plan and these are lawful”. This is undoubtedly preferable to the earlier version.
  • Secondly, para 2 must also be read in the light of the consequential orders set out at paras 3 to 5 of the consent order. The reviews there provided for are clearly reviews of the kind contemplated where there is a deprivation of liberty.
  • It follows that the judge was wrong to hold that it had not been decided by this court that KW was being detained by the state within the terms of article 5. The appeal must, therefore, be allowed.

 

Was the consent order made ultra vires?

 

  • Was the judge right to say that the Court of Appeal took “a procedurally impermissible route” so that its decision was “ultra vires”? It is important that we comment on this statement in view of the general importance of the point and the fact that the judge’s comments have apparently given rise to considerable degree of public interest. We acknowledge that, despite these comments, the judge did say that the rule of law depends on first instance judges “complying scrupulously with decisions and orders from appellate courts”. And, as we have said, that is what he purported to do.
  • An order of any court is binding until it is set aside or varied. This is consistent with principles of finality and certainty which are necessary for the administration of justice: R (on the application of Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700, [2006] 1 WLR 2870, at [22]; Serious Organised Crime Agency v O’Docherty (also known as Mark Eric Gibbons) and another [2013] EWCA Civ 518 at [69]. Such an order would still be binding even if there were doubt as to the court’s jurisdiction to make the order: M v Home Office [1993] UKHL 5; [1994] 1 AC 377 at 423; Isaacs v Robertson [1985] AC 97 at 101-103. It is futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra vires or wrong for any other reason.
  • In any event, the judge was wrong to say that the consent order was ultra vires because it was made by a procedurally impermissible route.
  • The issue turns on the true construction of para 6.4 of PD 52A. Rule 52.11 provides that the appeal court will allow an appeal where the decision of the lower court (a) was wrong or (b) was unjust because of a serious procedural or other irregularity in the proceedings of the lower court. It is concerned with the “hearing of appeals” which is done by way of a review or, in certain circumstances, a re-hearing. What is envisaged by rule 52.11 is a hearing which leads to a decision on the merits. To use the language of the first sentence of para 6.4 of the practice direction, this is what an appellate court normally does when allowing an appeal.
  • The use of the word “normally” in this sentence presages a departure from rule 52.11 in specified circumstances. The word “normally” followed by the use of the word “however” in the following sentence makes it clear that what follows specifies the circumstances in which the court may depart from the norm. The second sentence states that the court may set aside or vary the order of the lower court without determining the merits of the appeal, but only if (i) the parties consent and (ii) the court is satisfied that there are good and sufficient reasons for taking this course. That such a decision will be made on paper is clear from the heading to para 6.4 and the words of the third sentence. It is true that the second sentence speaks of setting aside or varying the order under appeal, whereas the first sentence (faithful to rule 52.11) speaks of allowing an appeal. But we do not consider that there is any significance in this difference of language. Rule 52.10 provides inter alia that the appeal court has power to “(2)(a) affirm, set aside or vary any order or judgment made or given by the lower court”. These words are picked up precisely in para 6.4 which sets out the powers that the appeal court has when allowing an appeal.
  • The appeal court, therefore, has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. What are good and sufficient reasons? The answer will depend on the circumstances of the case, but we think that it would be helpful to provide some guidance. If the appeal court is satisfied that (i) the parties’ consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. In such circumstances, it would involve unnecessary cost and delay to require the parties to attend a hearing to persuade the appeal court definitively on the point.
  • At para 14 of his judgment, the judge said that, where a merits based decision has been reached at first instance which all parties agree should be set aside on appeal, para 6.4 requires there to be a hearing and a judgment. He added: “The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise”. We disagree. Para 6.4 does not require a decision on the merits in every case where there has been a decision on the merits in the lower court. There is no reason to restrict in this way the wide discretion conferred by para 6.4 to allow an appeal by consent without a hearing followed by a decision on the merits. The words “good and sufficient reasons” are very wide. Further, we reject the notion that the judge whose decision is under appeal has any entitlement to a decision on the merits. In deciding whether to make a consent order without a decision on the merits, the appeal court is only concerned with the interests of the parties and the public interest. The interests of the judge are irrelevant.
  • We accept, however, that there will be cases where it may be in the interest of the parties or the public interest for the court to make a decision on the merits after a hearing even where the parties agree that the appeal should be allowed. Mostyn J referred to cases in the field of family law. For example, in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 27, [2009] 2 FLR 922, the parties by consent asked the court to allow an appeal, set aside the order below and make a revised order. Thorpe LJ said:

 

“5. A short disposal might have followed but for our concerns that the judgment below had already been reported …..and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.

6. Accordingly, we decided to state shortly why we had reached a preliminary conclusion that the appeal, had it not been compromised, would in any event have been allowed.”

 

  • The fact that the decision of the lower court in that case was causing difficulty led the appellate court to conclude that there were not “good and sufficient reasons” for departing from the normal procedure of conducting a hearing and giving a decision on the merits.
  • An example from a different area of law is Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] [EWCA] Civ 185. The lower court had held that a certain patent was invalid. Following the issue of appeal proceedings, the case was settled. The Court of Appeal was asked to make a consent order for the restoration of the patent to the register without deciding the merits of the appeal. The court decided that it had to hear the merits on the grounds that, for a patent to be restored to the register, what was needed was a decision reversing the order for revocation and showing that the previous decision was wrong. Here too (but for a very different reason), the appellate court considered that a decision on the merits was needed.

 

 

 

But you aren’t here for the technicalities. You want to see what happened with that boxing glove and the horseshoes.

 

 

  • Mostyn J’s first judgment did not raise any issue of law. It is true that his criticism of Cheshire West (what he describes in para 20 of the second judgment as his “jurisprudential analysis”) raised a question of law. But this question has been settled by the Supreme Court relatively recently. The judge’s analysis was, and could be, of no legal effect. It was irrelevant. Indeed, he purported to apply Cheshire West to the facts of the case. The basis of the appeal was that he had failed to apply Cheshire West to the facts properly. The public interest in the first judgment has focused on his criticisms of Cheshire West. Unlike Bokor-Ingram, the decision of the lower court in the present case should have caused no difficulty for practitioners or judges in the field. It was a decision on the facts which, with benefit of the advice of counsel and solicitors, the parties agreed was wrong. The Court of Appeal must have taken the view that the parties had advanced plausible reasons for contending that the judge’s decision was wrong, so that there were good and sufficient reasons for allowing the appeal without deciding the merits. In our view, it was clearly right to do so.
  • This litigation has an unfortunate history. The judge has twice made decisions which have been the subject of an appeal to this court. On both occasions, the parties have agreed that the appeal must be allowed. This has led to considerable unnecessary costs to the public purse and unnecessary use of court time. We regret to say that it is the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided that has been at the root of this. He says at para 26 of the second judgment that “the law is now in a state of serious confusion”. Even if Cheshire West is wrong, there is nothing confusing about it.
  • In our view, the judge’s passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases. In the light of the unfortunate history, we are of the opinion that the review should be conducted by a different judge, who need not be a high court judge,
  • For the reasons that we have given, this appeal is allowed.

 

 

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Fast and the Furious – Tunbridge Wells Drift

Posted on October 21, 2015 by suesspiciousminds

 

 

Okay, this piece isn’t really about Vin Diesel and The Rock racing cars around the backstreets of Kent. But it is about a case about  Medway (which is sort of near Kent) weren’t fast, and as a result the Judge got furious. And where the central issue was drift.  Section 20 drift, y’all.

(*Tunbridge Wells have done nothing wrong in this story – I just needed a “T” town for the Tokyo Drift reference. )

 

I’ve been writing about section 20 drift for a while, but perhaps given that this is a really strong judgment, it is worth a quick recap.  The Human Rights Act compensation to be paid to the mother by Medway was £20,000 and to the child also £20,000.   (And possibly costs to follow – see bottom of this post for an explanation of that)

 

 

  • Without a court forum it was solely the local authority that empowered itself to make decisions about a child unlawfully held by them, with simply a check in the form of the IRO system on the progress and welfare of a child in local authority care (and which system I consider further below).
  • T drifted in foster care without any clear focus on her contact, her need for therapy or her and her Mother’s rights to family life. I find shocking the inattention to contact, such that Medway Council is not even able to specify clearly what has and has not taken place, but is obliged to admit to serious gaps in contact and flaws in its support for this essential aspect of their family life. There would not only have arisen a duty under s34 Children Act 1989 to promote contact if an ICO were in place, but both T and Mother would have had a voice, legal advice and representation within proceedings to pursue their concerns about her accommodation, care plan, therapeutic needs and contact and Medway Council ‘s care of T would have been subject to the necessary judicial scrutiny applying the relevant careful tests relating to the threshold and welfare criteria set out in the Children Act to ensure interference with their family life was in T’s best interests, necessary and proportionate.

 

 

Section 20 is the power under the Children Act 1989 for children to be in foster care without a Court order – it is categorised as a voluntary foster placement. Typically, the parents are asked to consent, or even they come forward and say that they can’t manage, aren’t coping or the child needs a break.  Section 20 can be a really useful tool – if there’s genuine cooperation between the parents and the social worker, nobody wants to force the case into Court and up the stakes.

Where it starts to get problematic, as we’ve seen from a number of cases over the last three years, is where the consent and cooperation isn’t that genuine but that parents either don’t understand or have explained to them what section 20 really is and that they can say no, or are pressured/cajoled/threatened into agreeing, or in the latest spate of cases where a Local Authority is relying on a parent simply not objecting to the foster placement.  There are reasons why a parent might not come forward and object – most obviously that without access to a lawyer or it being explained they don’t even know that they can, or they are afraid of rocking the boat, or they are having faith that the system will work and do the right thing, or that they are intimidated that if they object then the case will be rushed off to Court and that this will be bad for them.

So ultimately, section 20 drift cases are about an imbalance of power – the State is taking advantage of the fact that parents without access to a lawyer won’t object or will agree to section 20.  And so it becomes an alternative to going into Court proceedings. Court proceedings are expensive, and involve a lot of work (going to Court, writing statements and chronologies etc) and of course in Court social workers don’t necessarily get things their own way and the Court can disagree with them.  So there can be a temptation, if the parents aren’t demanding the child back, to just keep going with the section 20 foster placement. And this of course is the drift element – these children can wait months or even longer, sat in limbo – nobody has decided whether the child can ever go home or whether the child’s future lays elsewhere, the case just drifts.  By the time the case finally gets to Court, that relationship between child and parent can be hard to put back together, and the problems the parent has may take time to address and it can be harder for them to get the child back.

Section 20 drift, in short, is bad.

It may be happening more as a result of a series of pressures – firstly a general demand within Local Authorities to save money and cut costs (due to significant cuts to their budgets) and secondly the reforms to Care proceedings that mean that more and more is expected to be done before going to Court – there can be a temptation to keep the case out of Court until all of the assessments are done and everything is just perfect. It is a bit of an unintended consequence – which we’re seeing a lot of since the PLO (Public Law Outline) reforms came into being.  This isn’t a problem limited to Medway here, or Brent as in the last reported case, or Gloucester/Bristol where their Judge has really seized the issue.  I’ve worked in a lot of Local Authorities, I’ve worked against a lot of Local Authorities and I’ve seen it all around the country.

 

That’s the background.

On with this case

Medway Council v M &T 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B164.html

 

This case was decided by Her Honour Judge Lazarus  (readers may recall her from the case where a mother tape recorded a foster carer being dreadfully abusive to her https://suesspiciousminds.com/2015/06/03/tape-recording-paying-off/   )

 

When the child T, was five, she came to the attention of Medway Council, and her mother M, was having mental health problems and was detained under the Mental Health Act. Medway placed the child in foster care, but didn’t actually have mum’s consent (she probably would not have had capacity to give it in any event)

 

 

 

  • T was born on 9.1.08, making her 7 years 9 months old now, and just 5 when she first came to the notice of Medway Council. This was due to a referral made on 8.2.13 by T’s school that T was being collected by a number of adults and concerns that Mother may be a victim of trafficking. Coincidentally, within a few days T was placed in emergency foster care, as her Mother was detained in hospital under the Mental Health Act on 11.2.13.
  • It is clear that Mother was too unwell to discuss T’s accommodation and there are no records whatsoever of any discussion with Mother of T’s whereabouts and care until her discharge in August 2013. It is likely, and there is no evidence to the contrary, that there was no proper explanation to her within this six month period, and Medway Council do not suggest there was, albeit I accept that for some of this time she would have been suffering from severe and disabling mental ill-health. There is certainly no document suggesting that there was any agreement by Mother to this accommodation. What Medway Council claims is that this was a different kind of lawful accommodation under s20, until she was well enough to consider T’s accommodation by Medway Council. It was not, and I shall deal with this further below.

 

 

That argument you may recall from the case I wrote about last week, decided by Her Honour Judge Rowe QC  – in which she decided that the power under section 20 needed to be exercised with capacitious consent, and not merely relying on the absence of objection.

 

Unlawful removal of a child, compensation paid

 

[That’s the one where I used the comparison of a 10 year old assuming that it was okay to eat all of the Penguin biscuits whilst his mum is upstairs because “mum didn’t tell me that I COULDN’T]

 

In this case, T remained in foster care ostensibly under section 20 until care proceedings were issued – the period involved was 2 years and 3 months. She was in ‘voluntary’ foster care rom February 2013 until proceedings were finally issued in May 2015.  The mother had not even known that this had happened until August 2013, some SIX MONTHS after the child was taken into foster care.  Mother and baby are currently together in a specialist foster placement, and I wish them both well.  As the Judge points out, this is the longest reported case of section 20 drift.

 

The Judge went through everything very carefully (it is an extremely well-drawn judgment and would be recommended reading for anyone dealing with such a case – particularly the analysis of damages)

 

The conclusions were :-

CONCLUSION

 

  • For all of the above reasons I find that Medway Council ‘s accommodation of T and her removal from her Mother was unlawful, and as a result I have no need to go on to consider whether it was ‘necessary’ within the meaning of Article 8(2) ECHR.
  • I also find that Medway Council failed to issue proceedings in a proper and timely manner. This was despite warnings from June 2013 onwards. I have not found it possible to understand why there arose the original misunderstanding of the correct legal approach, why the advice given was not followed, why further legal planning meetings were not held until 2015, nor even why proceedings were not issued immediately in 2015 once the matter was looked at again by Ms Cross in January. The period involved is 2 years and 3 months, the longest currently reported in any case reported on this issue to date.

 

REMEDIES – JUST SATISFACTION

A. DECLARATIONS

 

  • T and Mother are entitled to the following declarations:

 

a. The local authority breached their rights under Article 8 ECHR in that they

i. Unlawfully removed T from Mother’s care on 11.2.13;

ii. Failed to obtain properly informed capacitous consent for T to be accommodated, or to consider/assess adequately the question of the Mother’s capacity to consent, at that date or subsequently;

iii. Accommodated T without Mother’s consent between 11.2.13 and 7.5.15;

iv. Failed to inform Mother adequately or involve her sufficiently in the decision-making process in relation to T;

v. Failed to address the issues relating to their relationship and contact between them adequately;

vi. Permitted unacceptable delay in addressing all of the above.

b. The local authority breached the rights of T and Mother under Article 6 ECHR in that they failed to issue proceedings in a timely manner.

 

What were Medway going to do to avoid this in the future?

 

 

  • Ms Cross has set out in her statement a number of vitally necessary improvements to Medway Council’s procedures and performance which I heartily welcome, particularly as this is not the only case where the use of s20 by Medway Council has been of concern (I am aware of at least three such others, including a reported judgment of mine earlier this year). The proof, as they say, will be in the pudding and depends on consistent and rigorous application of these reforms. They are as follows:

 

a. “During the period of January to July 2015 we have reviewed a number of cases where the child/ren are accommodated under S20 and where the child/ren are aged 12 and under. Where required we have issued or are issuing proceedings;. We have begun this process for children aged 12 and over and this will complete by 1st October 2015.

b. These reviews will continue and with immediate effect we have agreed that our Legal Gateway Panel, chaired by the Head of Service for Advice and Duty, Child Protection and Children in Need, will continue to monitor and track children already accommodated under S20 and will in future review all new cases involving s20;

c. The reduction in the use of S20 accommodation is built into all our service and improvement plans

d. We have reviewed how court work is undertaken within the LAC & Proceedings service and going forward will be targeting this work at the social workers who have the most suitable skills for court work;

e. Training has been provided in recent weeks for social workers on legal processes and proceedings, including the issue of s20, and this will continue on a rolling basis throughout the year.

f. We will be holding workshops on the use of S20 in September and October to provide clear guidance and support for Social Workers to ensure they are equipped to deal with any s20 issues arising and that they fully understand how S20 should be utilised and monitored. We will be providing new policies and procedures for staff across CSC in the use of s20. We plan to have these finalised by September 18th and we would be happy to share these with the Court and partner agencies including Cafcass at our quarterly meetings with the Judiciary and other agencies.

g. At monthly meetings between the 2 Heads of service from CSC and the Head of Legal S20 will be a standing agenda item and we will discuss each child who has been accommodated under s20 in the intervening month to satisfy ourselves that the appropriate management oversight and case related activity is in place.

h. I am in discussion with the Head of Adult Mental Health services to organise workshops for staff on capacity issues and deprivation of liberty (DOL’s) awareness. I hope that these workshops can be completed by 01.11.2015.

i. We have an adult mental health duty social worker located within our advice and duty services to advise and assist on those cases referred to us where the parent/s have a mental health or learning disability.

j. We are organising PAMs training for a number of staff so that we have more staff located within CSC who are able to assess parents with a learning disability in order that we can improve the service provided to them. We hope that this will have taken place by 01.12.2015.

k. We have increased management capacity and have formalised an Operational Manager post in each of the service areas. They will have direct responsibility for ensuring that court work proceeds in a timely manner and that work is of a high standard

l. S20 cases will also be reviewed at a monthly Permanence Panel wherein the permanence planning for LAC children is reviewed. This panel, chaired by my HoS colleague has attendees from Legal services, the Principle IRO and the adoption service.

m. As a result of this review I am also working with my colleagues to review the S20 form that parents sign and we are introducing a checklist for staff when seeking S20 accommodation to ensure that they address all the salient issues with parents. These issues will include considering the parent/s needs arising from a mental health/learning disability. These reviews will have completed by 31.08.2015 and the updated forms will be in use thereafter.

n. Finally the reviewing service have implemented a new review whereby the allocated IRO will review all cases between the LAC review (ie every 6 weeks) to ensure that all planning is on track. Where required concerns will be escalated to the appropriate Operational Manager and if there is still no resolution to the relevant Head of Service.”

 

 

Now, an important check and balance on social worker’s actions or inactions is supposed to be the Independent Reviewing Officer system. The IROs are supposed to hold social workers to account and make sure that things like this don’t happen.  There are regular reviews of children’s cases when they are in foster care. What ought to have happened at those reviews was that the IRO should have got the social workers to commit to either a plan of short assessment and then review the outcome, or make a decision to return the child to mother’s care, or make a decision that the child couldn’t go home and make the Court application to have the child’s long term future resolved. That didn’t happen.

 

LOOKED AFTER CHILDREN REVIEWS & INDEPENDENT REVIEWING OFFICERS

 

  • Ms Dunkin’s statement is helpful in its analysis of the history and the role of the Independent Reviewing Officers (IROs). They are supposed to perform a crucial role monitoring the care of Looked After children by reviewing and improving care planning and challenging drift and delay.
  • It is highly concerning that there have been five IROs in the last two years before proceedings were issued.
  • There was no IRO allocated until 18.3.13, five weeks after T was accommodated, so she was therefore not afforded a review of her care within 20 days of her accommodation as is required under the IRO Handbook and Placement Regulations. By the end of May that IRO is recorded as being on long term sick leave, and this is considered to be the reason why there is no minute of the first LAC review available.
  • Every LAC review minute inaccurately records/repeats the date of T’s accommodation as having taken place a month later than it occurred.
  • I commend the second IRO LC for correctly requiring a legal review of Medway Council’s position not to take proceedings (11.6.13), however despite it not having taken place by the next LAC review that LC conducted there then began the series of failures by LC and each subsequent IRO to challenge the Social Worker and team manager and director of services about failing to follow the clear recommendation initially made in June 2013.
  • No subsequent LAC reviews (18.9.13, 17.4.14, 8.7.14, 25.11.14) made any further clear recommendations as to parental responsibility, legal status or the use of s20 although the issues are mentioned, save to repeat (presumably by cut and paste as opposed to direct engagement with the issue) the same paragraph that set out the original recommendation of 11.6.13. By 8.7.14 what is added is a recommendation to seek legal advice with a view to securing T’s permanency. I am concerned that this betrays that the review process and LC failed to recognise both the full range of T’s needs and her and her Mother’s rights to family life, and had moved on simply to consider how to regularise what had by then become the status quo, T having been in foster care for almost 18 months at that date. This is particularly worrying as that LAC review meeting also demonstrated Mother’s vulnerability: she was accompanied by an extremely domineering ‘friend’ who described herself as an ‘auntie’ (and whom the Poppy Project is concerned may have had some involvement in Mother’s exploitation), and which led to a decision that all future meetings must be conducted with Mother alone.
  • Contact is touched on in the LAC reviews, but no clear picture or recommendation emerges. For example, the review of 17.4.14 mentions the reintroduction of contact I have already referred to, but little further is pursued. At the same meeting the problem with T’s passport and therefore the implementation of respite care during her foster carer’s holiday was raised and not addressed adequately, let alone robustly.
  • Overall, it is clear that although the fundamental fault lay with Medway Council by its social work and legal teams, the IRO process failed T, and by extension her M, by frequent changes of IRO and each one failing to rigorously apply themselves to the outstanding issues with attention or subsequently following up Medway Council’s failings, and if necessary escalating the issue. Ms Dunkin rightly concedes that previous IROs were not robust enough in this respect.
  • The statutory provisions, regulations and the guidance in the IRO Handbook covering the function and performance of IROs has been carefully reviewed elsewhere (see for example A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) at paragraphs 168-217 in particular). I do not propose to make specific declarations in relation to this aspect of the case. No such declarations are sought, and the appointment and management of IROs falls to the relevant local authority in any event. Additionally, I take into account that the correct recommendation was made in June 2013 and subsequently repeated, albeit it was not followed up adequately or at all, and was ignored by the local authority from the outset.
  • Ms Dunkin confirms that since October 2014 there has been a ‘root and branch review’ of the IRO service: immediate allocation of an IRO, with 90% of reviews now on time; improved IRO requirements and monitoring; performance and training audits with areas of improvement requiring action within a set timescale; direct input by IROs onto the electronic system at Medway Council so alerting team managers to implement their own quality and performance processes; shortened timescales for escalating challenges with a 20 day period before it is referred to the Director of Children’s Services; and mid-way reviews between LAC reviews enabling the IRO to check on progression of care plans and recommendations. Ms Dunkin as Principal Reviewing Officer now sits on the Legal Gateway Panel, resource panel and permanency panel.
  • Again these are welcome and necessary improvements, but their effectiveness will depend upon rigorous application of those improved practices.

 

 

 

On the issue of costs, we have a peculiar situation at present, where if a parent follows the law which is to make the Human Rights Act compensation claim within care proceedings, the Legal Aid Agency (the Government department who pay for the ‘free’ legal representation of a parent within care proceedings) will take all of the compensation to cover the legal costs, and the parent or child would only get anything left over.  That pretty much sucks.  Is there anyone who thinks that it is the Legal Aid Agency who should be compensated for what was done to mother and this child? Of course not.

 

So, apparently there are moves afoot to reverse this fairly recent and frankly moronic policy, and the Judge reserved the issues of costs until then.  If the policy doesn’t change, I’d expect an order that Medway also pay mother and T’s court costs, so that the compensation award goes to the mother and T rather than to a Government agency.

 

While I have assessed this award, I am asked for the time being not to order its payment nor to consider costs. This is at the request of the Official Solicitor who is currently investigating the most appropriate way to manage such an award for a protected party within care proceedings given that this is an award properly made within care proceedings (cf. Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam)) and Mother is rightly in receipt of non-means and non-merits tested Legal Aid, but where concerns exist that the Legal Aid Agency may intend to take steps purporting to claim the whole costs of Mother’s representation in these care proceedings from that award. I shall therefore deal with the issue of ordering payment and costs at a later date.

 

 

The Judge here also considered the issue that I raised in the Her Honour Judge Rowe case, as to whether a very short piece of section 20 accommodation if the parent is unable to care for the child and one is establishing whether that’s a really short period  (i.e mum goes into hospital overnight, but the next day is released with medication and is fine) might be warranted – because the alternative is for the mother to be sectioned and on the same day social workers go to Court to get an Emergency Protection Order which would be awful if she happened to be released the next day.

 

It could be argued that where there is such an emergency as this, and indeed as in the Brent case, that it may be reasonable to wait for a short period without taking proceedings in order to review the parent’s progress in hospital in the event that their ability to care for their child might return. This would then avoid the stress and expense of time and resources in bringing unnecessary proceedings that would then have to be withdrawn. I concur with HHJ Rowe’s analysis that a month in the Brent case was too long. It may be reasonable, in rare and very clear cases where such enquiries could be reasonably considered as likely to bear fruit, to wait for at most a day or two while the local authority explored the possibility of an imminent return to a parent’s care. I bear in mind here that both in logic and principle such a period should be less than the time limit of 72 hours which is stipulated in the Children Act as applicable to PPOs. However, otherwise, save perhaps for the first few hours while the child’s status is considered, and advice sought and steps taken to issue proceedings, it must be right that proceedings are brought as immediately as possible for all the reasons discussed above.

 

I think that’s really sensible and pragmatic.  Like the Brent case, this is not legally binding precedent on anyone other than the parties who were in the case, but it would certainly be persuasive in such cases and equally a Local Authority who go beyond that 72 hour period are badly exposed to a Human Rights claim of this type.

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