Author Archives: suesspiciousminds

We’ve gone on holiday by mistake

Posted on October 20, 2015 by suesspiciousminds

 

 

The outcome of the President’s case involving parents who were found, with their four children (aged between 20 months and 7 years old) around the border between Turkey and Syria, with the suspicion that they intended to cross the border and join up with the conflict going on in Syria.

 

I wrote about the initial decision here, in which the President set out a detailed routemap for recovering such children and bringing them back into the jurisdiction

ISIS and children being taken to Syria

 

At that time, there were competing explanations

 

(a) The parents had become radicalised and sought to join the conflict in Syria, potentially with ISIS and thus exposing the children to significant danger

or

(b) the parents explanation, that they were on holiday in Turkey as a family, with no sinister motives at all.

I note that the family had travelled to this holiday in Turkey by way of ferry from Dover, and then by public transport all the way, and did so without telling anyone.  Perhaps that’s to avoid detection and suspicion (option a) or perhaps the family really like buses or are afraid of flying, and have a strong sense of privacy (option b)

In any event, one would now think in retrospect that holidaying with a baby and 3 young children near the Syrian border was something of a mistake.

 

The next bit of the hearing is to look at what should happen next.

 

Re M (Children) No 2  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2933.html

 

The outcome of this hearing is that the children are all at home with their parents, under no orders at all, and the children’s passports have been returned.

 

Now, there’s always been a background residual concern that in the concerns about radicalisation and terrorism that a wholly innocent family could be caught up and subjected to what must be a terrifying process. So if that is what has happened here, that would be hugely newsworthy.

Equally, if option (a) is what actually happened, and the family have subsequently satisfied a Court that they are safe now, that would be hugely newsworthy.

 

Annoyingly, we can’t be 100% sure of either option. The Court do not set out what findings, if any, were made about the children’s time near the Syrian border in Turkey.  It may be that the Court was not asked by any party to make such a finding, or that the parents made concessions. We just don’t know.

The closest we come is this :-

 

At a further hearing on 2 June 2015 I directed the appointment of an independent social worker, Ms RT, to address matters which, understandably, the guardian did not feel qualified to address, in particular the question of whether the parents can care adequately for the children and prioritise their needs, having regard to their religious beliefs and in circumstances when their allegiance to those beliefs could compromise the safety of the children. Ms RT’s report is dated 16 August 2015. It is a detailed, impressive and compelling piece of work. Because the family’s identity is in the public domain, I do not propose to go through the report in any detail. It is enough for me to quote one brief passage:

“It is my assessment that the intervention of the state has been a wakeup call for this couple … It is my assessment that their current beliefs do not pose a risk or will compromise the safety of their children … [They] are good parents and they are able to care for all their children. I see no reason whatsoever to remove the children from their care.”

The local authority and the guardian accept that conclusion and the analysis that underpins it. So do I.

 

It doesn’t feel ideal that we have to infer from one sentence fragment in a judgment  ‘that this has been a wakeup call for these parents’ that the more likely explanation for the children’s presence near the Syrian border was a malign one, not a benign one.

 

But, one could also read it that the ‘wake-up call’ is that the parents now realised that Syria was a dangerous part of the world and that their holiday to Turkey was ill-advised and they would never make that sort of foolish mistake again.

I know which reading I think is right, but the problem legally is that an allegation that the parents had planned to take their children into Syria is an allegation that needs to be proven – the parents don’t have to prove their innocence. In the absence of a clear finding, then it didn’t happen.

 

The order says

 

  1. Having regard to all that material, and all the other evidence before me, I had no hesitation in agreeing with the course proposed by the local authority, endorsed by the guardian and agreed by the parents. Accordingly, at the final hearing on 5 October 2015 I made an order in the following terms:

    “UPON the court receiving the independent assessment of RT dated 16 August 2015 and the position statements of the applicant local authority and children’s guardian, the contents of which recommend the discharge of the wardship orders currently in place on the basis that the identified risks are manageable under child in need plans and ongoing cooperation by the respondent parents with the applicant local authority

    AND UPON the parents agreeing in full to the terms of this order

    AND UPON the court indicating that a brief anonymised judgment will be handed down in writing on a date to be notified

    BY CONSENT IT IS ORDERED THAT:-

    1 The wardship orders first made in respect of the subject children on 4 May 2015 and renewed thereafter on 8 May 2015 are hereby discharged.

    2 The order dated 8 May 2015, requiring the applicant local authority to retain the parents’ and children’s passports to the order of this court is hereby discharged, whereupon the local authority has agreed to return the said passports to the parents.

    3 There be no order as to costs save for detailed public funding assessment of the respondents’ costs.”

  2. It follows that the proceedings are now at an end. I leave the final word to the parents, who say, and I accept, “wish to put the incident behind them and concentrate on being the best parents for their children, with the continued support of their family and friends.”

 

 

Again, that order sets out that there are identified risks, but doesn’t actually identify them. Are those ‘identified risks’ that the parents had planned to take the children into Syria but have now come to their senses, or that the parents are the worst holiday planners since Withnail?

 

"Are you the farmer?"

“Are you the farmer?”

 

Perhaps the people involved in the case know definitelively what happened, but given the importance of such cases nationally, particularly if these parents were exonerated from suspicion, it might have been rather important to actually spell it out.

 

[It may be that the fudge here is because unusually, the identity of the family is known, and they have to live within their local community, but the ambiguity isn’t helpful if they were actually exonerated and considered by a Court to have actually just taken a really badly located holiday.]

 

 

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Winding your way down on Baker Street

Posted on October 16, 2015 by suesspiciousminds

The Court of Protection, in Aidiniantz v Riley 2015 were dealing with a high level of conflict between family members relating to the affairs of an 88 year old woman who lacked capacity to manage her own finances and other matters as to where she should live.

 

The family had been the creators of the Sherlock Holmes museum in Baker Street, which one imagines does quite well and probably has been doing even better in recent years as both Hollywood, US television and the BBC have each had their very own popular version of the character.

http://www.bailii.org/ew/cases/EWCOP/2015/65.html

 

At the hearing, the Judge, Mr Justice Peter Jackson, found that the press were in attendance. It emerged that the press had been sent a press release about the case – that press release was not a neutral one approved by the Court but a partial, tendentious and sensationalised one.

 

  1. A preliminary point arises about the extent to which the proceedings can be reported. They were heard in private, in accordance with the Rules, at a hearing at which members of the press were in attendance. Two questions now arise: should the press be allowed to report the hearing, and should there be a public judgment naming the parties? Submissions have been made by the parties and by David Barrett and Mario Ledwith, journalists representing the Telegraph Media Group and Associated Newspapers respectively.
  2. It is relevant that on 25 September a media alert was issued by a PR company, notifying members of the media that this hearing would be taking place. The alert is in highly partisan terms, and includes lengthy quotations attributed to Stephen. It was this that brought the journalists to court.
  3. The respondents, having initially denied that they were responsible for the arrival of the press, were then faced with the press alert. They say that it was issued on the instructions of Mr Siddiqi and that the quotes from Stephen are not genuine but were invented by Mr Siddiqi to convey Stephen’s views. They say that they did not know what Mr Siddiqi had done until the hearing was under way.
  4. I have not heard evidence about this aspect of the matter and it is unnecessary to reach a conclusion about it. Mr Siddiqi is described by the respondents as “a long-time friend/associate of the family who has closely followed and advised the family on their affairs.” I am, to say the least, sceptical that he was acting without the knowledge and approval of the respondents, but it makes no difference. Even if Mr Siddiqi did not tell them what he was doing, he knows them well enough to know that he was doing what they wanted. Indeed, Linda made all the points that appear in the media alert when giving evidence.
  5. The relevance of this is that it alerts the court to the risk that the proceedings will be used as a platform to publicise unproven allegations.

 

 

The Press were very candid that their interest in the story was not in the arrangements to be made about Grace Aidiniantz, but in the quarrel that was going on between the family – it was the fight that they were interested in.

 

The Judge had to balance those competing interests – privacy and freedom of the press, our old friends article 8 and article 10 who have been arm-wrestling one another ever since the Human Rights Act was passed.

 

 

In the film "Over the Top", the role of Article 10 is played by Mr Stallone

In the film “Over the Top”, the role of Article 10 is played by Mr Stallone

 

[Hey, if I HAD a google image of Johnny Lee Miller arm-wrestling Benedict Cumberbatch whilst both dressed as Sherlock Holmes, I would have gone with that. I have to work with what I have. Oh, wait…]

 

 

This is them just BEFORE the match. Referee out of picture saying "We want a good clean fight"

This is them just BEFORE the match. Referee out of picture saying “We want a good clean fight”

 

  1. As to the issue of publication of this judgment and the naming of the parties, Mr Tyler QC submits that:

    (1) Real weight should be given to the general rule that the hearing should be in private: Independent News Media Ltd. v A [2009] EWHC 2858.

    (2) There is scant genuine public interest in publication of the current proceedings. The press is avowedly not interested in the issues about Mrs Aidiniantz’s care, but in the family dispute.

    (3) Mrs Aidiniantz’s privacy and dignity should be protected, even though she is incapacitated.

    (4) John has brought these proceedings in good faith, and should not thereby be exposed to vilification by the respondents. His wife and children would also be affected by publicity, as might employees of the family business.

    (5) Litigants generally should not be deterred from approaching the Court of Protection by the fear of consequent publicity.

    (6) Public identification of the parties to this “private family dispute” is unlikely to bring reconciliation closer and is likely to fuel conflict.

  2. The position taken by the journalists is that: (1) This is the latest in a long line of public disagreements between the parties that have been extensively reported in the press, evidenced by news reports from 2013 onwards.

    (2) The disagreement about Mrs Aidiniantz’s health is not in itself of public interest but is the current forum for the ongoing family dispute, which is of public interest, particularly given the family’s business interests.

    (3) Anonymisation of the judgment would make it impossible for the press to report this latest chapter in the very public disagreements between the parties.

    (4) Blanket reporting restrictions are not required to protect Mrs Aidiniantz’s privacy and dignity. There is no intention to report details of her care arrangements or medical condition, beyond saying that she is aged and infirm.

  3. There is in my view good reason for the court to publish its judgment in this case in a form that names the individuals involved:(1) Happily, very few families descend to the level of mutual acrimony that exists in this family. It is in the public interest for the public, if it is interested, to see the consequences. It is in the public interest to know how the court process operates in a recognizable case. It is in the public interest to know what it all costs: in the past year this family has spent £270,000 on this branch of its litigation alone. It is not in the public interest to suppress all that information: on the contrary, knowledge of how one family has behaved may deter another family from behaving likewise.

    (2) In this case, publication of an anonymised judgment would be futile. So much information is already in the public domain that any anonymised judgment would inevitably be linked to the family. The press would be placed in an impossible situation in knowing what it could and could not report.

    (3) It is undesirable that there should be any greater difference of approach than is necessary between two courts dealing with different but related aspects of the same dispute. As recently as 4 June 2015, an extensive public judgment in relation to financial issues was given in the Chancery Division.

    (4) This is not just “a private family dispute”. These parties have repeatedly chosen to air their differences in the courts. There is little likelihood of reconciliation. A public judgment will not make matters any worse for Mrs Aidiniantz than they already are. The parties might even reflect on their future conduct if they know that it may come to public attention.

    (5) Mrs Aidiniantz’s right to privacy and dignity is undoubtedly an important consideration. Even though she herself will not be aware of publicity, her reputation is affected by it being known that she is at the heart of the family discord. However, in the overall circumstances, I do not consider that the publication of this judgment amounts to a significant further intrusion into her privacy. It contains little personal information and makes no criticism of Mrs Aidiniantz: on the contrary, any fair-minded reader would be bound to feel sympathy for an elderly parent in her situation.

  4. The contents of this judgment can therefore be published, but there will be no other reporting of the hearing.

 

 

The Judge sets out all of the background, for those who are interested. He then gives his decision, saying that unusually this is a case where in determining what is in Grace’s interests he can give no weight to the views of the family

 

  1. Discussion
  3. It is not disputed that Mrs Aidiniantz lacks capacity to make decisions about the matters in issue within the meaning of the Mental Capacity Act 2005, and I so find. I also consider that as a result of her circumstances she is a vulnerable person in need of the protection of the court.
    1. It therefore falls to the court to make decisions in Mrs Aidiniantz’s best interests, applying the provisions of s.4 of the Mental Capacity Act 2005. In doing so, it must consider all the relevant circumstances and, in particular, take the following steps:
    • Consider whether it is likely that Mrs Aidiniantz will at some time have capacity in relation to the matter in question.
    • So far as reasonably practicable, permit and encourage her to participate as fully as possible in the decisions affecting her.
    • Consider Mrs Aidiniantz’s past and present wishes and feelings, the beliefs and values that would be likely to influence her if she had capacity, and the other factors that she would be likely to consider if she were able to do so.
  • Take into account the views of anyone engaged in caring for Mrs Aidiniantz or interested in her welfare as to what would be in her best interests.
    1. As to the first three of these matters:
    • While it is possible that if Mrs Aidiniantz’s physical health improves she may recover some degree of decision-making capacity, this is not foreseeable at the present time.
    • Mrs Aidiniantz has participated as fully as possible in the decision-making process by means of the involvement of Mr Gillman-Smith, Ms G and Ms Gieve.
  • Mrs Aidiniantz is someone with strong family values, whose already much-reduced ability to assert herself has long been overborne by the ferocity of the family conflict. She would want to be at home if it were possible. She would want to have normal, easy relations with all her children if it were possible.
  2. The obligation to take into account the views of those caring for Mrs Aidiniantz or interested in her welfare takes me to the heart of the difficulty in this case. I am aware of the views of her four adult children and have set them out above.
  3. Having done that, I have concluded, uniquely, that I should attach no weight at all to their views about their mother’s welfare. These children have, in my view, forfeited the right to have their views taken seriously on the question of what is in their mother’s best interests. They have no insight into her obvious longing for peace. The evidence of John and Linda showed only bitterness and contempt for each other. Neither side sees how important the other is to their mother. None of them reflects on their own behaviour. Instead, every action is dictated by the wish to get the better of the other. I have referred to John’s aggressive efforts to get Stephen and Ruth out of 1 Parkgate Road and his willingness to put his mother in a home he knows nothing about. I have referred to the respondents’ blatant attempts to obstruct John’s contact. As soon as Mrs Aidiniantz’s voice was heard by outsiders, however faintly, they physically removed her; in 2014 it was to Linda’s home, and a year later to the day it was to Florida. That trip was a blatant defiance of the court’s intentions and it is a measure of their lack of insight that the respondents imagine that it would be seen in any other way.
  4. Nor can I attach weight to the views of Ms AH. Normally the views of a professional carer in the midst of a family dispute will be of value, but she has become too emotionally involved and partisan to see where Mrs Aidiniantz’s best interests lie.
  5. I have some sympathy for Mrs Aidiniantz’s sister Ruth, but she is in the same camp as Linda, Stephen and Jennifer and has not been able to moderate their behaviour.Decision
  6. Turning to the issues and taking account of all the circumstances, I conclude that it would not be in Mrs Aidiniantz’s interests to return to 1 Parkgate Road. In the first place, I accept the evidence of Ms G that she needs the care package that is on offer at the nursing home. Two medically qualified staff are needed at all times. Ms AH and those she enlists to help her are unqualified and unsuited to demonstrating the necessary professional standards. Secondly, and more decisively, it is impossible to approve an arrangement that returns Mrs Aidiniantz to her home when her children have turned it into a warzone. If John took over 1 Parkgate Road, things would be no better. Mrs Aidiniantz needs a safe haven from her children’s activities, and that is what she has found in the nursing home. She would not have this respite in a setting that was controlled by either camp.
  7. The family collectively has the means to pay for Mrs Aidiniantz’s care in the nursing home. When promoting their preferred options, both John and Linda said that they would pay for them if necessary but would expect a contribution from the other. Now that the identity of the placement has been resolved, the family should act in accordance with that principle.
  8. As to contact, I will adopt the plan supported by the nursing home and the Official Solicitor for separate daily visiting by both sides of the family. Outings that are acceptable to the home on medical grounds can take place, but I suggest that visits to 1 Parkgate Road are approached with caution.
  9. Each side of the family can bring whoever they want with them during their contact times, provided the home is content with this. There is no more reason to prevent John from bringing his family than to prevent Jennifer from bringing hers. If she is invited by the respondents, Ms AH can visit from time to time, but she will not be resuming her role as a carer. If anyone thinks it is a good idea for Mr Siddiqi to visit, they can share their time with him.
  10. I note that the Official Solicitor proposes that visiting should be restricted to family members and that contact with others can take place on trips outside the home. He expresses concern about the role played by Ms AH and Mr Siddiqi. There is in fact no sign of any harm having come from their few visits to date and, given the way in which the family members themselves behave, I cannot share the view that the exclusion of other partisans would allow Mrs Aidiniantz to feel “free of influence”. The management of the home should be left to manage these issues.
  11. While Mrs Aidiniantz resides at the care home, there is no need for a welfare deputy. The management of the home will protect her day-to-day interests.
  12. Finally, I shall not appoint a property or affairs deputy, nor require the Official Solicitor to carry out further financial inquiries into Mrs Aidiniantz’s affairs. I agree with the Official Solicitor that any financial abuse of the elderly is a serious matter, but that here a third party investigation would be complicated, expensive and unlikely to be of benefit to Mrs Aidiniantz, whose needs are currently being met. I will make the appropriate orders for the reception of her modest pensions. Other disputes about money, property and shares can be pursued by her children elsewhere if that is their choice.Costs
  13. The parties can make submissions on costs, and I will consider them on their merits. I will nonetheless indicate my current thinking in an attempt to foreshorten matters and save further expense.
  14. The parties’ costs are, broadly: John £104,000

    Respondents £110,000

    Official Solicitor £57,000

    The Official Solicitor has been given security from the parties equally for the full amount of his costs. There is no reason why the public should bear any of those and I expect to order that the Official Solicitor’s costs will be met equally by the parties.

  15. As to costs as between the parties, the normal rule is that there should be no order. Each side rightly cautions the court against assuming that because there are so many allegations and counter-allegations it is a case of “six of one and half a dozen of the other”. I make no such assumption but nevertheless reach the conclusion that there is little to choose between these parties in regard to their litigation conduct and their conduct towards their mother. While the respondents’ conduct during these proceedings has been even worse than the applicant’s, it would be unrealistic to separate these matters from the overall history. Any departure from the ‘no order’ principle would probably be in the form of an order that each side should pay the other side’s costs as a mark of the court’s indignation.

 

 

 

 

"Benedict! HEY Benedict, you bum! What happened to the good clean fight I asked for? That ain't ARM wrestling"

“Benedict! HEY Benedict, you bum! What happened to the good clean fight I asked for? That ain’t ARM wrestling”

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A stance which could not be described as honourable

Posted on October 16, 2015 by suesspiciousminds

 

I don’t often write about Court decisions relating to British citizenship, but this one

 

Bondada and Secretary of State for the Home Department 2015

 

http://www.bailii.org/ew/cases/EWHC/Admin/2015/2661.html

 

had some incendiary stuff in it.  We all got fairly used, in the last two years, to Judges giving Chris Grayling a polite kicking, but Chris Grayling was… well, you don’t need me to tell you.  This is a Judge giving Theresa May an impolite kicking. And Theresa May is a much more formidable opponent.

 

As will be seen, however, the stance taken on behalf of the Home Secretary on other occasions during the period from early December 2012 onwards, and throughout these proceedings, is a stance which cannot be described as honourable. From early December 2012 onwards, both before and after the letter of 29 August 2013, untenable objections were taken to Deelavathi’s claim. The stance taken in those objections refused to engage with compelling DNA evidence. The result was that this stance effectively made an accusation that Deelavathi’s mother has lied about the parentage of her children for more than 60 years. At a very late stage in the present proceedings the Home Secretary accepted the DNA evidence. Nevertheless the stance taken on behalf of the Home Secretary when rejecting Deelavathi’s claim has, without a shred of evidence to support it, continued to make the same effective accusation. The conduct of the UK government in this regard has been grotesque. I add that in making these observations I do not criticise Ms Parry and I do not criticise the legal team in the Government Legal Department. They have approached their task with all such professional courtesy as is consistent with seeking to defend an impossible position.

 

Even against the backdrop of Chris Grayling and all those judgments against him, I don’t think that I have ever seen a High Court Judge use such strong language about a sitting Government minister.  This Judge is Walker J, not someone I’ve previously encountered. I like him.

 

Ms Deelavathi Bondada is the daughter of Mr Chandraiah Bondada. He had British citizenship and had it at the time of her birth. He was married to her mother, and he was married at the time of her birth.

 

The Home Office, during the course of the litigation were alleging that that she was not his daughter and that she might have been an illegitimate product of an affair and thus couldn’t rely on her father’s British citzenship to establish her own.

When she produced DNA evidence that she and her siblings shared the same father, and that her mother is the mother of all five children  (it not being possible to take a DNA sample from her father, who was deceased), the Home Office instead of accepting the utterly obvious and inevitable, instead suggested that all five children had a father who wasn’t Mr Chandraiah Bondada, and that the children’s mother had had an affair with another man and fathered FIVE children with him, whilst being married to Mr Bondada and lying to him.

 

If you find it abhorrent that our Government made such an assertion without any evidence to support that, then you will probably agree with the Judge’s views

 

 

  1. The November 2011 Consular Department letter complained that the passport held by Chandraiah at the time of Deelavathi’s birth had not been submitted. It said in this regard:

    … therefore we are unable to ascertain whether your parents were together at the time of conception or not …

  2. In this way UK government officials raised the possibility that Deelavathi might not be Chandraiah’s daughter. The family did not have the passport held by Chandraiah at the time of Deelavathi’s birth. The only copy that it had was of the initial pages only. This meant that they could not produce the rather limited evidence which the November 2011 Consular Department letter had sought. Accordingly the family decided to do better than had been sought, and to put the matter beyond doubt by obtaining DNA evidence.
  3. In my view the family did not need to do this. The Consular Department already had the evidence that it needed, for it had had since April 2009 the original of Ganikamma’s 1978 passport. If those dealing with the matter had studied that passport at any time between April 2009 and November 2011 they would have seen that their own predecessors had in October 1978 accepted that Chandraiah was Deelavathi’s father. No reason has ever been suggested for thinking that the British consular officials in October 1978 might have failed to carry out all appropriate checks. Accordingly, even without DNA evidence, I would have held on the balance of probabilities that the conclusion reached in October 1978 remained valid today.
  4. If there had been any reason to doubt this, however, the DNA analyses provide an overwhelming answer to any such doubt. At a very late stage in the proceedings the Home Secretary has conceded that these analyses show that Deelavathi is the daughter of Ganikamma, that Ganikamma is also the mother of Kurma, Kandeswara, Tata and Punyavathi, and that these siblings and Deelavathi have the same father.
  5. In these circumstances it is both astonishing and grotesque that those acting on behalf of the Home Secretary have put in issue whether that same father was Chandraiah. The Home Secretary’s stance is astonishing because it necessarily asks the court to say that Ganikamma may have had a secret lover who was the biological father of Kurma, Kandeswara and Tata while she lived with Chandraiah in Burma in the 1950s, and after the birth of Tata in India had the same secret lover who was the father of her remaining two children, Punyavathi and Deelavathi. This unsupported speculation is so far-fetched as to be absurd. It is not a real possibility, let alone a possibility of such substance as to enable the court to make a finding that Deelavathi has not shown on the balance of probability that Chandraiah was her father.
  6. However it is not merely an astonishing stance. The Home Secretary’s stance in this regard is grotesque. The finding that the Home Secretary urges upon the court would amount to a repulsive distortion of evidence that had repeatedly been put before those acting for the Home Secretary, had rightly been accepted on behalf of the Home Secretary by the Liverpool Nationality Enquiries Team, and had with unfailing courtesy and meticulous care been explained repeatedly to others acting on behalf of the Home Secretary. With not a shred of evidence capable of justifying such a stance, those acting on behalf of the Home Secretary have chosen to impugn the fidelity of a blameless 86 year old woman and to impugn the parentage of her five remaining children. Those acting on behalf of the Home Secretary have stopped short of explicitly advancing a positive assertion that the admittedly common father of all five children was someone other than Chandraiah. But they have instead adopted a stance which, with no justification at all, puts the siblings’ parentage in issue, and thereby unwarrantably impugns the whole basis upon which Ganikamma and the children have conducted their lives as a family.
  7. I accordingly conclude that the Home Secretary’s stance on this issue is unjustified and totally without merit. In this regard I do not rely upon the presumption of legitimacy. Deelavathi’s parentage has been proved by overwhelming evidence and without the need to rely upon any presumption.

 

Having said at the outset that I’d never seen a Judge use such strong language about a sitting Minister, at this point in the reading, I felt that he had gone a bit easy on her.

 

You will not be staggered to learn that the Judge ruled that this woman should have her British citizenship. As a fellow British citizen, and I can speak only for myself,  I’d like to say “welcome to Britain, Ms Bondada. We aren’t all like Theresa May”

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Unlawful removal of a child, compensation paid

Posted on October 12, 2015 by suesspiciousminds

 

Her Honour Rowe QC considered this case, where a Local Authority removed a child and placed the child in foster care when at the time, the mother knew nothing about it.  It is a decision by a Circuit Judge and thus not any new binding law, but it is interesting and potentially important nonetheless.

 

Re AS (unlawful removal of a child) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B150.html

In this case, both the mother and father had mental health problems. On the 9th October 2014, the mother suffered a significant episode of mental ill-health. She arranged for a neighbour to look after her son who was aged 9, and to take him to school. She called an ambulance to take her to hospital.

She was admitted to hospital and was detained under section 2 of the Mental Health Act.  She was not told until 16th October by letter (!) that Brent had removed her son from the care of the neighbour, whom they considered unsuitable on 9th October, using section 20 of the Children Act 1989.

Brent issued care proceedings on 11th November, and an ICO was made on 13th November 2014.  The child was thus in foster care on “section 20” from 9th October to 13th November, although mother had not consented, had not been asked to consent, and for at least some part of that time would not have had the capacity to consent.

It was not really in dispute that if Brent had sought an EPO or ICO at that time that the Court would have made one, the dispute was whether they had the legal authority to keep the child in foster care without an informed and capacitous consent from mother.

 

The argument from Brent hinged around the wording of section 20 (1) (c)

 

20 Provision of accommodation for children: general.

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

And on a technical basis, they might be said to be right. The Act itself never mentions a parent consenting to section 20.  The latter passages of section 20 make it plain that the LA cannot provide a child with section 20 accommodation if a parent with Parental Responsibility OBJECTS.  In practice therefore, most Local Authorities would seek the parents consent and for the parent to sign a consent form.  Brent’s argument here was that they didn’t need a consent, they just needed the absence of an objection. There was no objection, therefore the child was validly accommodated under s20(1)(c)

 And on the bare words of the statute, they are right.  However,  it would be a really technical defence to run, and it is not very surprising to me that it did not succeed.  If mum wasn’t asked or told, how could she object? She didn’t know it was happening. And if she HAD objected, Brent could have argued that she didn’t have capacity to object.

There’s quite a big difference between getting someone’s consent, and saying that something is okay because they didn’t object. Especially if they didn’t know.  It is a bit like being ten and saying “Well, mum didn’t tell me that I COULDN’T eat nine Penguin bisuits whilst she was upstairs”

OR

If for example, I have the opportunity for a canoodle with Keira Knightley, I would not expect to be able to tell Mrs Suesspicious Minds that it was perfectly fine because she had not explictly objected to my doing it.  Particularly if I didn’t tell her in advance that it was a possibility, thus giving her the chance to object.  I think that Mrs Suesspicious Minds would be absolutely entitled to take the view that this is the sort of thing that I’d need to raise in advance and that only with her explicit consent (which would not be forthcoming) would it be okay.  [I’d best make it plain that this is an illustrative hypothetical example only, and that I would never put myself in this situation. Not with Keira Knightley.  With Rachel Weisz?  No, I still wouldn’t. Honestly. ]

24. …I accept that the removal of AS took place in good faith and that removal would almost certainly have been sanctioned by the court had the local authority applied for an EPO, however for the reasons that follow I conclude that the removal was unlawful.

  2. The removal of a child from his parents by a local authority is a fundamental interference with the right of the parents and child to family life, and can only be carried out if the removal is “in accordance with the law”. The framework for the removal of a child is set out in the CA 1989, and with apologies as the principles are so well established I have set them out above.
  3. Both Hedley J and Munby J, as he then was, said clearly in the cases cited above that in the absence of consent, a child can be removed only in the circumstances set out in s38, s44 or s46 CA 1989. These provisions appear under Part IV and Part V, CA 1989. Each provision contains stringent safeguards intended to ensure that a removal is lawful. In particular: a. Each section refers to the s31 threshold criteria, requiring either that there are reasonable grounds to believe that the threshold criteria are met or, in relation to emergency provisions, that there is reasonable cause to so believe;b. Whilst removal under s46 (police protection) does not require prior judicial approval, the power to remove is strictly time limited to a maximum period of 72 hours. The police are under a duty to notify both the relevant local authority and the parents as soon as practicable of the steps taken;c. Removal under either s38 or s44 requires prior judicial approval;d. Even with prior judicial approval, an emergency protection order is strictly time limited so that any longer term sanction for continued removal follows an application for a care order and a further appearance before the court where all parties can be represented, where a Children’s Guardian will have had time to make initial enquiries and where all parties will have had an opportunity to consider the relevant evidence and will be able to make full submissions to the court, which can hear evidence if necessary.
  4. The provision of accommodation for children by the local authority is dealt with in Part III which, as Hedley J confirmed, addresses “Support for Children and Families”. As already cited above, Hedley J made clear that the emphasis in this Part is on partnership and “involves no compulsory curtailment of parental rights“. Self evidently the whole of s20 falls within Part III, and Hedley J made no distinction between the provision of accommodation under s20(1) and the provision of accommodation under s20(4). His judgment referred throughout to s20 as a whole.
  5. In the case of R(G) v Nottingham City Council referred to above, the President re-emphasised the clear principle that save perhaps in exceptional wardship cases (where in any event a High Court Judge would need to give prior judicial authority) in the absence of the agreement of the parent, removal of a child could only be achieved by the statutory routes in ss38, 44 or 46. On the facts of the Nottingham case, the local authority plainly considered that the mother was prevented from providing her baby with suitable care, just as the London Borough of Brent considered that this mother was prevented from providing AS with suitable care. If Mr Poole were correct in his analysis of s20(1)(c), then Nottingham City Council would have been entitled lawfully to remove the baby under the same provision. The President concluded without hesitation that the removal was unlawful.
  6. s20(1)(c) contains no requirement for the threshold criteria under s31(2) CA 1989 to be satisfied on any basis, even reasonable cause. If Mr Poole were correct, then a local authority could, on its own assessment of whether a parent was prevented from “providing a child with suitable care”, remove that child without any reference at all to the threshold criteria. The parents would have no forum in which to contest that assessment, and there is no application open to them under the provisions of the 1989 Act to challenge the local authority and seek the return of their child. The child would have no Children’s Guardian. There would be no parameters for the position after removal, there would be no requirement for the local authority to apply to court and there would be no time limit on the duration of the removal. In short there would be no safeguards to mirror those that are expressly included in ss38, 44 and 46. It would seem perverse if a local authority could more easily remove children from their parents in cases where the threshold criteria were not necessarily met than in cases where there were reasonable grounds to conclude that they were met.
  7. There is no authority supporting the proposition advanced by the local authority in this case and, as I have already indicated, that proposition appears to be in direct contravention to the principles established in the cases relied on by the mother.
  8. Finally, the structure of s20 itself is, I conclude, inconsistent with the proposition that parental consent is required where a local authority is acting under s20(4) but is not required where the local authority is acting under s20(1)(c). s20(7) prevents a local authority from accommodating a child if a parent objects and s20(8) permits anyone with parental responsibility to remove a child from accommodation. The important point is that both of these provisions apply to accommodation under “this section” ie s20 as a whole; they do not distinguish between accommodation under s20(1)(c) and s20(4).
  9. For all of these reasons I find that the removal of AS from his mother was unlawful. I therefore do not need to go on to consider whether the removal was “necessary” and therefore in accordance with Article 8(2) ECHR].

[I think that I’d probably distinguish the Nottingham case – in that case, mum DID know that the baby was being removed and she DID object. So clearly the social workers in the Nottingham case couldn’t have been using s20(1) (c) as a legal basis for removal. Nevertheless, THIS Court has found that s20(1) (c) requres active capacitious parental consent, not mertely the absence of an objection]

The question then arises about delay in issuing proceedings

If I find, as I have, that the removal of AS was unlawful, I am then asked to find that the local authority failed to issue proceedings in a timely manner, in breach of the mother’s Article 6 ECHR rights. Since the initial removal of AS was unlawful, it follows that until the local authority issued proceedings on 11 November 2014 and secured judicial approval for continued separation on 13 November 2014, AS was being kept separate from his mother unlawfully. The local authority did not issue proceedings in a timely manner. I was unable to understand the reason for this delay, especially given that at the legal planning meeting held on 13 October 2014 the local authority decided to issue care proceedings and the application itself, though issued only on 11 November 2014 was actually dated 7 October 2014.

The LA were ordered to pay £3,000 in compensation and £750 in costs.

The LA did try to escape compensation by saying that the declaration that they had breached mother’s human rights and their apology was sufficient. Sadly for them, they had tried one of those “modern” apologies, where the person says “I’m sorry that X made you feel bad” rather than “I’m sorry that I did X, that was wrong of me”

  1. The local authority reassured the court that it had at all times acted and will continue to act in good faith and with AS’s best interests at heart; no party suggested otherwise. Further the local authority submits that if I do find a breach, then the making of declarations together with the local authority’s apology to the mother together amount to just satisfaction. The local authority resists any award of damages or costs.
  2. For the mother, Miss James points to the terms of the apology and submits that it is not really an apology. The local authority, in counsel’s position statement, says “the Local Authority does not accept that its actions breached the mother or AS’s article 6 or 8 rights…The Local Authority offers a sincere apology to the mother for any upset that she feels LB Brent has caused her.” Miss James makes, I find, a good point. Miss James further makes clear the fact that the mother did not bring these proceedings for financial reasons; she was and has throughout remained upset and distressed about the manner of AS’s removal and she wants to make sure that this could not happen again to another child.

 

 

I think I might have tried another line – I’m not sure it would have worked either, but I would have considered it. On 9th October, the LA or any other LA, could have had no idea whether mum might be suffering from a really short episode of ill-health and be home the next day, or whether she might be ill for six weeks or more.  As they wouldn’t be able to rely on mum having capacity to sign a s20 consent  (pace Hedley J’s decision) and they can’t rely on s20 (1) (c) if the Judge is right here, that puts any LA where a mother has an episode of mental ill-health which might mean them being hospitalised in a position where they HAVE to seek an EPO / ICO.  That might in itself not be a terribly healthy thing for mum to hear at a time when she is getting treatment, and might wildly escalate a situation which could, after all, have been resolved the very next day with mum getting discharged with a change in medication.

 

The ultimate thrust of this judicial decision is to drive LA’s to issue care proceedings the moment that a mother or father providing care for a child is taken to hospital or has an episode of florid behaviour.  That might led to a number of care proceedings being issued prematurely, and also to a situation where mothers feel undermined and criticised by professionals just at a time when they need support and a working relationship.

You might say that making use of s20(1) (c) as a very short term holding position so that the child can be cared for whilst it is established whether the episode of mental ill-health is very short-lived and can be stabilised in a day or two, might be much more illustrative of working in partnership than dashing off to Court at a time when mother is unwell, stressed and anxious and where she won’t have capacity to instruct someone to fight the case, won’t have an Official Solicitor to represent her, may not actually be allowed by the hospital to be present and will be told that a Court are ruling that she presents a risk to her child EVEN THOUGH she has recognised that she is unwell and asked for help.

 

(I’d have to concede that in this particular case there are some major problems with that argument…firstly taking the child away from a neighbour who mum has asked to care for the child and who is willing to do it doesn’t really help my argument here, and secondly that NOT TELLING mum for a week doesn’t help in the slightest.  I’d mean more in cases where no alternative care provision has been made and mum is told immediately or as soon as practicable. )

 

But ultimately the Court interpreting that s20 (1) (c) requires active parental consent also puts LA’s in a position where they’d have to go to Court for a parent who is in a road-traffic accident and who is in a coma. The child can’t be accommodated under s20 (1) (c), the parent can’t consent. If the parent hasn’t got someone else who steps in to look after the child, how does this work?   You couldn’t conceivably argue that the child is at risk of harm from the parent, but what are you going to do?   [Accommodate, and take the chance of being sued afterwards is probably the answer]

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I am sailing, I am sailing – judicial recusal

Posted on October 12, 2015 by suesspiciousminds

 

Given how much fun the last case about judicial recusal was to write about, I was pleased to see a new one.

 

Judicial baggage

 

This one, Mackay v Mackay 2015, relates to what is presumably a big money divorce. As the amounts of money are discussed as £X million and £Y million, we can’t be sure exactly how much money, but a decent estimate is that it is at least two million, and probably quite a bit more.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2860.html

 

In this case, Holman J was made aware of a situation.

 

I personally have had no prior involvement in this case whatsoever prior to today. Very early in the hearing today, Mr Valentine Le Grice QC, who appears today on behalf of the husband (but does not act for him generally in these proceedings), said that there were certain facts that he, Mr Le Grice, had been informed about that required to be drawn to my attention in case they impacted upon the appropriateness of my dealing with this case at the substantive hearings. There has been no suggestion, nor could there be, that I should not deal with this directions stage of this case today. I was somewhat surprised to hear that, since the full names of the husband simply do not impact upon me at all and, to put it bluntly but colloquially, I have simply never ever heard of him before. Further, when the husband came into court, he is not somebody who, frankly, I have the least recognition of, or the slightest recollection of ever having met; nor, indeed, do I have the slightest recognition of the wife, who is also in court.

 

My interest was massively piqued here. If the Judge doesn’t know the names of the parties, and doesn’t recognise their faces, under what scenario could there possibly be a suggestion that the Judge might have to consider whether it was appropriate for him to continue?   (I have to confess that the idea of some sort of Eyes Wide Shut masked ball scenario came to mind, but of course it isn’t that)

I am a very open judge and I have never concealed, for instance by entries in “Who’s Who” and Debrett’s “People of Today”, that one of my recreations is sailing. I was told that the husband is also keen on sailing. I have been told that he thinks that in the more distant past he has competed in boats racing against boats in which I myself was also racing. Whether or not that is so is, frankly, completely irrelevant to the situation with which I am now faced. However, I was also informed that the husband knew that I am a member (as I am) of a certain sailing club. He is not a member of that club. He is a member of another sailing club of which I am not a member, but the question was raised whether, through my membership of the sailing club, I might know or have friendship with certain sailing friends of the husband.

 

Certainly the fact that at some point in the past, the husband might have seen Holman J’s catamaran, or what have you, either sail off into the distance or whistle past it at a rate of knots during a race is neither here nor there.

Whether they might, as fellow afficiandos of the sail, have some mutual friends, is a possibility.

  1. A list containing 14 names was then produced to me. It is right to say that I recognised as names every name on that list. The majority of the people named I do not personally know at all. One or two of the others on the list I know very slightly or have met at some stage in the past. None of that, frankly, impacts on me at all. However, there is one name on the list which for the purposes of this judgment I will call “AB” (although those are not the person’s actual initials). I was told that he is somebody whom the husband knows well. I was told that, in the past, there have been business dealings between, or involving, the husband and AB. I was told that the husband currently meets AB about once a month and met him as recently as about two weeks ago. I was told that in the past AB has stayed at these parties’ villa in the south of France whilst participating in a sailing event.
  3. On behalf of the wife, Mr Nigel Dyer QC said on instructions that she did not appreciate that, and doubts whether, the true strength and extent of the connection between the husband and AB is as great as has been described by Mr Le Grice. Without hearing oral evidence on the point, which would be disproportionate and extraordinarily invidious, I have to take the state of affairs as being as described by Mr Le Grice.
  4. AB is not someone whom I would describe as a close personal friend of mine. He is, however, someone whom I have known for many years. There is, undoubtedly, friendship between us, friendship also between him and my wife, and friendship between me and his wife. He and his wife are people whom I and/or my wife meet from time to time in the sailing social context, and we and AB have numerous other mutual friends in common.
  5. The question that arises is whether that connection of a shared mutual relationship with AB is such that I should not have further involvement in this case. The expressed position of Mr Le Grice on behalf of the husband was that he was merely drawing these facts to my attention so that I should be aware of them. There was no application by Mr Le Grice that I should recuse myself as a result of them.
  6. The position of the wife, after Mr Dyer had had an opportunity privately to discuss the matter and take instructions from her, was that she was not concerned about this mutual relationship and that she did not apply that I should recuse myself

 

Well, that’s that then. The father knows AB fairly well, and AB also knows Holman J fairly well. Neither father nor mother say that this intersection would make Holman J unsuitable to hear the case. That’s that.

 

Aha! Not quite.  If you’ve been following the Appleton v Gallagher divorce case, you may have picked up that there is something of a schism in the High Court about divorce and publicity.   On the one hand, represented by Mostyn J, is the school of thought that there should be no publicity in divorce proceedings unless the case itself represents case law and that divorcing celebrities or millionaires should not have their innermost financial affairs set out by the Press just because they are getting divorced. On the other hand, represented so far chiefly by Holman J, is the transparency camp, which is publishing the details in judgments and thus the Press have access to it.   The Appleton v Gallagher case is going up to the Court of Appeal to see who might be right.

http://www.familylaw.co.uk/news_and_comment/appleton-v-gallagher-and-ors-2015-ewhc-2689-fam

 

If you are a millionaire or celebrity who wants privacy then, at the moment, you might well prefer that your divorce is not dealt with by a pro-transparency  Judge, or one who you think might be pro-transparency.

 

The Wife makes this implied motivation explicit.

 

  1. The position of the wife did, however, go further than that. One of the applications that was issued by the husband on 11th September 2015 and returnable today was for orders to do with privacy. He sought orders that the hearings in October and February should be heard not only in private, but with the press and media excluded; and, further (most unusually in my experience) some advance order as to the terms in which any judgment might ultimately be couched. To exclude the press even from a hearing held in private is these days a strong step, and one which can only be taken in tightly circumscribed circumstances provided for in the relevant rules and practice direction; but it is known at the Bar that I am a judge who favours as much openness as possible in all court proceedings. Mr Dyer, frankly, speculated that the purpose of the husband in even referring to the possibility of overlapping friendships was a device deliberately aimed at causing me to recuse myself.
  3. It is, indeed, of the utmost importance that judges are very astute to spot, and not be trapped by, attempts to manipulate the identity of a judge for whatever purpose. Obviously, there may be judges who are believed to make high awards or low awards, and it is only too easy for a party who is seeking a low or a high award respectively to try to manipulate the position so that that judge is unable to hear the case. Similarly, it would, indeed, be intolerable if parties could manipulate the position so as to obtain or avoid, according to where their interests lay, a judge who favours openness in legal proceedings as opposed to secrecy. I am very alive to that risk.
  4. Unquestionably, if nothing had been said today about this shared interest in sailing and the possibility that there may be some overlapping friendships, then I would have continued to deal with this case and there could not have been the slightest difficulty. The fact is that the point has been raised. The fact is that it has been identified that amongst the friends or associates of the husband is this person, AB, who is also a friend of mine.

 

(In short, is this sailing issue, a well-disguised attempt at forum shopping?)

 

  1. The leading authority on the circumstances in which a judge should recuse himself probably remains Locabail (UK) Limited v Bayfield Properties Limited and others [1999] EWCA Civ 3004, a judgment of the court consisting of the then Lord Chief Justice, Master of the Rolls and Vice-Chancellor. The situation with which I am faced today is not one that falls within the principles which are the focus of that judgment. There is no question in this case of my having any kind of interest in the outcome of these proceedings and, in my view, no question in this case of any possible objective or apparent bias. Indeed, at paragraph 25 of their judgment in that case, the Court of Appeal were at pains to list many circumstances upon which, at any rate ordinarily, no objection could soundly be based. But at paragraph 21 of the judgment there is reference, albeit passing, to a judge recusing himself, “If, for solid reasons, the judge feels personally embarrassed in hearing the case.” Further, the broad approach at paragraph 25 is as follows:

    “In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case.”

  2. I have given very careful consideration indeed to this matter. Apart from some obvious situations where I actually knew a party concerned, I can only recall one occasion in the over 20 years in which I have been a full-time judge, in which I have felt the slightest need to recuse myself for considerations of this kind. In that case, I had a long-term friendship dating back to university with the brother of the husband in the case. Although the brother did not feature at all in the case, it did not seem to me appropriate that I should hear it. This case is more remote than those facts, but I have decided that I do, or might, “feel personally embarrassed” in hearing this case.
  3. I wish to stress that I believe myself to be an independent-minded and fearless judge. I do not doubt my ability to be detached and objective in decision-making. But the context of this case, as I have outlined above, does, or may, involve making a judgment about the integrity or probity, and possibly the very honesty, of this husband. I do not yet know much about the facts, nor, of course, how the evidence may turn out. But, at any rate at its highest, the wife’s case will involve a proposition that the husband deliberately failed to disclose the discussions that he was having for the sale of his company at that much greater value, and may well involve the proposition that, at some stage or another, he deliberately lied or, certainly, deliberately suppressed the truth. If there is a common friendship with AB, I do feel that it could be a source of personal embarrassment to me in my relationship with AB if I had to find that another friend of his had acted in a fraudulent, devious or untruthful way.
  4. There is the further consideration in this case that, currently, a two-stage hearing is envisaged, with some months between the first and second stage. Undoubtedly, during that interval, there will be occasions upon which I will be meeting AB, since, as I have said, he is a friend whom I do meet from time to time.
  5. It seems to me that what I have described does amount in this case to “solid reasons” why I personally, as I do, feel personally embarrassed about further involvement in this case. For those reasons, I must, as I now do, recuse myself from any further involvement in the case after today.

 

It seems a shame to me that we may be moving towards a scenario where a Judge can’t have interests, hobbies or pastimes outside of the law, for fear that they may bring them into a position where someone they met at “Jam Club”,  “Abseilers Anonymous” or simply someone who shares their love of “Yacht Rock” might be a friend of a future Party.

 

mmmm.... smoooth

mmmm…. smoooth

 

 

[I know, I had a perfect opportunity to crowbar in a photo of Nicole Appleton, and I decided instead to use a photo of people pretending to be Hall and Oates.  I did really want to use the Nicole Appleton photo, but then a voice in my head said  “I can’t go for that (no can do)” ]

 

The weakest recusal I’ve ever seen in real life was a Judge who recused himself from what was going to be a really desperately boring hearing on the basis that one of the parties had a job as an insurance salesman for Norwich Union (you can feel the dullness of this case seep out) and the Judge concluded that he would be potentially embarassed as he had once received an unsolicited telephone call from someone trying to sell him Norwich Union insurance and had put the phone down “more abruptly than perhaps was reasonable”, and it could not be excluded as a possibility that it was the Party in question.  If you can suitably anonymise them, I’d love to hear weak recusal decisions or even applications…

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Court proceedings were a shambles

Posted on October 12, 2015 by suesspiciousminds

 

I would agree with the Court of Appeal’s summing up here.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/992.html

In the case of Re K-L (Children) 2015, the Court of Appeal had to unpick an appeal centred around a judgment of Her Honour Judge Lyon after a finding of fact hearing in care proceedings. There were a raft of allegations to determine, and centrally, some of them involved findings that the father had sexually abused a child.

However a Judge determines those findings, it is vital that everyone knows exactly what was and wasn’t decided.

At the end of the finding of fact proceedings on 23rd April 2015, which had overrun somewhat, the Judge was more than a little exasperated

  1. At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge’s judgment was as follows:

    “I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time. Unfortunately your colleagues massively underestimated how much time they needed on their case, which I ended up taking in, and of course we have the police as well so I have not had a full run at this at all today so my apologies. However, as I say what I am going to do is just give a rough indication of what I am doing and how I have set things out in the judgment.”

  2. The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

    “10. The court heard the next day from the mother, TL, who became very upset as she recalled her discussion with both T and P as to what had happened to them. Then finally the court heard from Mr LE. The court is finding in accordance with the submissions made on behalf of the Local Authority and counsel for the mother, who united in their submissions, with the Local Authority adopting those of the mother. Therefore I am basically going with the submissions made on behalf of the Local Authority and the mother and supported to a considerable degree by the submissions made on behalf of the guardian so I have reproduced all of those. I have also reproduced the submissions made on behalf of Mr E by Mr Heaney but I am finding against him essentially with regard to the abuse of the children.

    11. The issues are set out very clearly in the various submissions and as I say the court is accepting those of the Local Authority supporting the mother and that is the purport of your submissions, was it not, Miss Mallon?

    [Miss Mallon: Yes]

    12. Miss Mallon, in relation to the mother, however, you did raise issues about whether the mother had acted appropriately and so in accordance with the findings sought, and I am just having to leaf back to those, I am finding points 3, 4 and 5 of your findings sought which will be between pages 1 and 2 of the document, I am finding those to be made out again on the basis of the evidence that we heard. Again I am going to have to craft this appropriately to indicate what I am finding there but the First Respondent, TL, failed to protect the children from sustaining physical harm at the hands of LE; that she failed to seek medical attention for P and for T after they had sustained physical harm at the hands of LE and finally that she repeatedly failed to protect the children from witnessing, whether through hearing or seeing, domestic violence. Are you with me, Miss Mallon?

    [Miss Mallon: Yes]

    13. Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, LE, sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom. Also finding that the third respondent, LE, physically abused the children, PL and TK, as exemplified by kicking T on the leg, attempting to strangle T — and so the court does not accept the “play” explanation offered by the father — and punching P on the back which, as was submitted, was a very serious injury to inflict on a child of P’s age with all the attendant concerns that would have arisen.”

 

Whether or not those findings were right, it is absolutely and totally clear that the Judge had made findings that father had sexually abused the child as alleged, and had physically abused the child including strangling him on one occasion.

It was therefore something of a shock to everyone when the judgment itself was circulated on 8th May 2015 and set out that those findings were NOT proved in relation to sexual abuse, but were proved in relation to the physical abuse allegations.

 

Understandably, the parties sought clarification from the Judge

 

What the judge said in judgment 3 was this:

“I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

The legal issues for the case are :- can a Judge change his or her mind about a judgment, and when does that power end?  And was the Judge wrong in changing her mind in this particular case?

As long-term readers may recall, this issue has come up before. And the Supreme Court resolved it.

https://suesspiciousminds.com/2013/02/21/if-you-change-your-mind-im-the-first-in-line/

A Judge CAN change their mind about a judgment even after delivering it even after the order arising frtom the judgment is sealed, but they must provide reasons for doing so.

  1. The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.
  2. The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

    “As the court pointed out in Re Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

  3. Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.
  4. At paragraph 46, Lady Hale said this:

    “As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsel’s email of the 16 December 2011. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents’ and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mother’s mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.”

In passing, I’ll remark that “tergiversation” is not a word that I’ve ever enountered in polite conversation, and I’d even be slightly surprised if it cropped up in an email from long-time reader Martin Downs who does occasionally seek to expand my vocabulary.

It has two meanings :-

1. Evasion of straightforward action or clear cut statement

2. Desertion of a cause, position, party or faith

 

As luck would have it, both apply here. Keen-eyed readers will have spotted that Her Honour Judge Lyon was not claiming here that having thought further about her judgment, she had reconsidered her position and changed her views, she was just flatly denying that she’d ever found that father HAD perpetrated the sexual abuse.

So it was a bit different to the Supreme Court case, in which the Judge freely admitted that having decided X she later came to the conclusion that Y was the only proper decision to make. This was more an Orwellian “we have always been at war with Eurasia”

 

So, was Judge Lyon right in the assertion made in the third judgment?

  1. What the judge said in judgment 3 was this:

    “I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

  2. That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.
  3. At paragraph 13 of judgment 1, the judge said:

    “Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, [the father], sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom.”

  4. The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.

 

Given that the Judge HAD changed her position, the failure to provide a compelling explanation of what led to that was obviously going to fall short of the high test of the Supreme Court to change a judgment in a safe way.

 

  1. In my view, the history of this case is such that no one can have any confidence in the judge’s findings contained in judgment 3.
  3. In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.
  4. Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.
  5. On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.
  6. If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.

 

 

The case therefore will have to be re-heard.

Ryder LJ agreed, whilst defending that this was clearly out of character for Liverpool  Family Court.  [hmmm. There have been some decidedly peculiar appeals coming out of Liverpool in 2015 though]. And of course adds that there should never have been a finding of fact hearing in this case anyway…

 

  1. My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.
  2. I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.
  3. She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.
  4. This is not, in my judgment, a circumstance described by the Supreme Court in Re: L. That is where the change of mind can stand. In this case the change of mind was not made judicially.
  5. I say in parentheses that this was a public law children’s application and I can see no basis for a split hearing upon the facts.
  6. Be that as it may, I am very concerned about the other aspects of the judge’s conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.

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Missing boy and cancer treatment

Posted on October 8, 2015 by suesspiciousminds

 

The news that the parents of a child have taken him abroad for cancer treatment and that the Courts here are dealing with the case have echoes of the Ayesha King case which was such big news last year.  I wrote at that time about some of the legal issues about when a parent can decide to reject medical advice about their child

Parents deciding not to go ahead with cancer treatment

 

 

The Press reports about this particular child are in most of the newspapers today – here’s an example from the Guardian   (I picked up today that I always tend to use the Guardian for these, but they don’t sponsor me.Yet)

 

http://www.theguardian.com/society/2015/oct/07/boy-needing-urgent-surgery-for-cancer-disappears-from-home-in-england

 

The judgment from Mostyn J is available, and people may want to read it

Re JM (a child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2832.html

 

The boy is 10 years old. His parents are originally Polish but have lived here for two years. Very tragically, the boy JM has a very rare and aggressive cancer on the right hand side of his jaw. The medical advice is that it should be removed. If it is not removed soon, then JM will suffer an agonising and painful death.

 

 

  1. The operation would be lengthy, lasting up to 12 hours. There is a 2% risk of mortality or morbidity in the operation. It would involve harvesting skin and bone from his leg in order to rebuild the removed jaw bone. The result would be that J may be affected by lameness in future. He would need false teeth inserted in the lower right quadrant of his mouth. As he grows his face may develop a lop-sided appearance. He may suffer from chewing problems and need to be on a softish diet in the long term. Above all of this is the estimate that he has a 55% – 65% chance of survival for 5 years. Therefore there is a 35% to 45% chance of a fatal cancer re-emerging in that period. This might be at the same site or elsewhere in the body, most likely the lungs. All of these statistics are based on adult patients. It is not known whether they are equally applicable to children as the incidence of this disease in children is so rare that there is insufficient data on which to found empirical conclusions and predictions. There are only a handful of children in this country with this cancer. Dr X has treated five or six in 16 years of practice.
  2. I have seen photographs of a child who underwent this surgery. The facial swelling before the operation is very pronounced indeed. It is huge. At present J’s swelling is about a third of that size. The photographs post-operation show extensive skin grafts under the jaw. J may be able to escape skin grafts. The child in the photographs does not appear greatly disfigured, although the result of the operation is clearly noticeable.
  3. There is no doubt that the proposed surgery carries serious risks. However in the very clear opinion of Dr X they are risks which should be taken given the awful alternative. In her oral evidence she stated:

    “I would be hopeful of a young boy growing into a very able teenager. So far he has not had major organ toxicity and, depending on his engagement and motivation, I would have an expectation that he will be walking, running – Mr. Z has put in his statement not playing football, but I think that he means competitively. I mean, he will be able to kick a ball around. So I would expect, externally, that he will look and feel like most teenagers. He will have a scarred face and there is a worry that there will be asymmetry of his face as he grows older. He will be engaged with my team and the surgical team as he grows up, so he still will be medicalised, because he will be caught up in routine surveillance, which goes on for years; so we check out his lungs and do a clinical assessment every two months for the first year, every three months for the next year, every four months for the next year, every six months after that, and then annually, so he will be engaged in his medical outcome, so that makes him different, perhaps, from some of his peers, but, going back to my general clinics of those who survive, then some people find this whole process, actually, is a constructive outcome rather than a destructive one.

    Now, there are outliers of that. There are people who are very challenged by their cancer experience, who find it difficult to re-engage with their peers and who have ongoing psychological problems, but I would counter that with – so that may happen with other traumas in other walks of life. The only benefit to J, though, is that he will be in a very medicalised system that would hope to be able to support and manage problems that he brings to our attention. I would be very hopeful, if he survives, that his outlook is reasonable.”

 

 

The parents did not agree to the surgery, and nor did JM (though of course at aged 10 his views aren’t determinative)

  1. J’s parents do not consent to the operation. Neither does J. He has written to me to say “I don’t want the operation and there is not 100% [chance] to survive after the operation”. To Dr X he put it more graphically. He screamed out: “I don’t want to have it, because I don’t want to have a foot in my mouth”.
  2. J’s parents prefer to seek to treat him with Chinese medicine. The practitioner has not treated a cancer like this before and his technique is to treat the whole body to seek to promote overall wellness. The evidence before me is that even in China, where the use of Chinese medicine is widespread, surgery is the standard treatment for a cancer of this kind.
  3. J’s parents have explained to Dr X why they do not consent to the operation. She told me:

    “They are very frightened and fearful of what their son will blame them for when he grows up, that they worry that he will be so disfigured that he will blame them for allowing the operation to go ahead. That is one of their stated words. But they have not heard that the prospect of him growing up is completely remote, completely impossible, if they do not have surgery. …It is not that I have not tried to say that, and I have been very explicit, but there is a difference between hearing the words and processing the words. …That is one of their issues. I think that they have struggled with the consent process.”

 

The hospital can’t carry out the surgery if the parents don’t consent, unless the Court authorises it. Hence the hospital made an application to Court. The parents would have been able to attend that hearing and make their arguments, but did not attend.  Of course, in the Ayesha King case, the parents favoured a particular form of treatment proton beam therapy, which wasn’t available in the UK but was a form of treatment that was recommended in other countries for cancer treatment. Here, note that not even in China would this form of cancer be treated by “chinese alternative medicine”

 

The Judge weighed up the issues and the parents known objections and the child’s views very carefully, and came to the conclusion that the only option for JM was for this surgery to occur.  We now know that the child has been removed from the country – possibly to Poland, possibly to China.

You may be asking whether it really should be up to the Polish courts to decide, if the parents are from Poland and that’s where they are physically located there – if they disagreed with English doctors and decided to go back home, what’s it to do with the English Courts? Well, Mostyn J did explicitly deal with this

 

  1. It is possible that J is now in Poland. On 17 September 2015 when these proceedings were commenced J was habitually resident here in England. Therefore under Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility this court had jurisdiction over him at that time in relation to the matter of parental responsibility then in controversy namely his medical treatment. Since then it is possible (but unlikely) that with joint parental authority his habitual residence has changed to Poland. If so, it may be that courts here do not have jurisdiction to determine where or with whom he should live. As things stand at present however the evidence is that J remains habitually resident in this jurisdiction.
  2. However, there is no doubt that this court is seised of the specific issue of J’s medical treatment. Therefore under Article 19 the Polish court must decline jurisdiction in relation to this matter in favour of this court. I have explained that implementation of my primary decision will require a further hearing before me. If J is now permanently in Poland it may be that it would be appropriate for that aspect to be remitted for decision by the Polish court under Article 15

[It stays with the English Courts for now – if the parents have genuinely moved permanently to Poland, then an application can be made to transfer the case to the Polish Courts]

We will have to see how this story develops. And just as with the Ayesha King story, your heart absolutely goes out to the family who are in the middle of an absolute nightmare and just hope that a resolution can be reached.

 

[Mostyn J being Mostyn J, he still managed in the midst of all this to explain that if the imposition of treatment is on a 16 or 17 year old, the application ought properly to be made solely under the High Court’s inherent jurisdiction and not to a family Court under the Children Act and  hence

Note 1 It is for this reason I think that Ian McEwan’s excellent novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion, is in fact incorrectly titled.

 

which leads me to think that at either a book club or some cocktail party, someone has made the mistake of asking Mostyn J what he thinks about Ian McEwan’s novel and has wished twenty minutes later that they hadn’t.  I LOVE Mostyn J, in case you didn’t realise. His judgments always contain something extraordinary and marvellous.  I know that Ian McEwan read a LOT of judgments when he was researching his novel. If he still keeps up with them, he may be pleased to (a)  be in one, and (b) have received a positive book review.  I suspect he’ll be content with the title of “The Children Act” rather than “The Inherent Jurisdiction of the High Court”   ]

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Totally radical, dude

Posted on October 8, 2015 by suesspiciousminds
"Put them in the Iron Maiden"

“Put them in the Iron Maiden”

 

The President has published guidance on radicalisation cases within the family Court, which you can find here:-

 

Click to access pfd-guidance-radicalisation-cases.pdf

 

The Guidance says that ALL radicalisation cases are to be heard in the High Court, and that this specifically excludes Circuit Judges who have a section 9 ticket allowing them to sit as a High Court Judge. [UNLESS an actual High Court Judge explicitly releases an individual case to them]  The cases will purely be in the High Court.

To address the fact that this means that say, the family Judges in Luton would be oblivious to there being a major radicalisation problem in Luton because they won’t see any of the cases, the Designated Family Judge in each area must be notified of each application when they are made.

 

The guidance goes on

Judges hearing cases falling within the description in paragraph 1 above will wish to be alert to:

(a) the need to protect the Article 6 rights of all the parties;

(b) the fact that much of the information gathered by the police and other gencies will not be relevant to the issues before the court;

(c) the fact that some of the information gathered by the police and other gencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk;

(d) the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies;

(e) the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is “necessary to enable the court to resolve the proceedings justly” within the meaning given to those words when used in, for example, sections 32(5) and 38(7A) of the Children Act 1989 and section 13(6) of the Children and Families Act 2014;

(f) the need to safeguard the custody of, and in appropriate cases limit access to, any sensitive materials provided to the court  by the police or other agencies;

(g) the need to consider any PII issues and whether there is a need for a closed hearing or use of a special advocate;

(h) the need to safeguard the custody of, and in appropriate cases limit access to, (i) the tape or digital recordings of the proceedings or (ii) any transcripts;

(i) the need to ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited either because a child is a ward of court or because of any order made by the court;

(j) the assistance that may be gained if the police or other agencies are represented in court, including, in appropriate cases, by suitably expert counsel.

 

 

 

 

This is a major issue, or potential issue.  Imagine for a moment that the X family come to the attention of the Police or the intelligence services. They are believed to be radicalising their child. That would, when shared with the Local Authority, give rise to the need for care proceedings being initiated, and possibly that an application be made for the removal of that child.  But imagine that the REASON the police or intelligence services have that concern is that they are monitoring the phone calls, text messages or emails of Mr Y, someone who is recruiting for ISIS.  They may very well prefer that the X family don’t learn that Mr Y’s emails are compromised, and that hence Mr Y is alerted and changes his phone, and email account.   Suppose that the REASON is not monitoring emails but that Mr Y has a colleague in the terrorist cell,  Mr Z who is actually clandestinely working with the intelligence services – that really could be a matter of life and death if the X family learned that Mr Z was a spy. Both for Mr Z and for the future intelligence that might save lives whilst he remains undetected. This is big stuff.

 

[If you ever watched The Wire, you’ll be familiar of the constant battle with the police and drug dealers to get the information from the phone taps but without tipping the drug dealers hand to the fact that their communications are compromised, and thus that the drug dealers would ‘change up’ their systems. And if you have never watched The Wire, then I recommend that you remedy that. ]

 

"Omar comin' ! "

“Omar comin’ ! “

 

This puts the debate into really clear terms – if there’s information that is relevant to the proceedings – for example those representing the parents are likely to want to know exactly why the parents are suspected of radicalisation and what the evidence-base is, but it might impact on national security, then the Judge is going to have to ensure that the disclosure requests are very focussed, and that if there’s to be an argument that the documents should not be disclosed, that a proper Public Interest Immunity hearing takes place which balances the article 6 arguments in favour of disclosure with the national security PII arguments.

 

Because let’s not foreget, that parents in this situation are entitled to a fair trial. The allegations or information might be a mistake, or malicious, or mistaken identity.  We can’t lose sight of the fact that it is the State who have to prove that these parents have radicalised the child, not for the parents to prove their innocence.

Where this happens in crime, the Judge generally sees the documents in order to conduct what is called an “Air Canada” exercise, to consider them on a line by line basis to see what can be disclosed and what might have to be withheld. You cannot assume that article 6 will trump national security always or vice versa, it will be very case and fact specific.   Might this procedure even eventually extend to police or intelligence witnesses giving evidence behind closed doors, with the parents not hearing it?  How do we feel about that?

 

It is worth noting that in this guidance, when the phrase “Special Advocate” is used, it may not be simply meaning a ‘specialised’ or ‘specialist’ advocate, but rather that at the hearing where the documents are considered and arguments deployed, that the Court would appoint a barrister specifically to make those arguments on the parents behalf – NOT the ones representing the parents in care proceedings, and ones who would not have a duty to share that information with the parents.  That would be a very big deal in care proceedings. It is somewhat controversial generally, but as far as I’m aware, we haven’t done it in care proceedings before.  [I’m not absolutely sure that we can even do it without a statutory basis or a strong precedent that it can be done. But I’m no expert on the Special Advocate jurisprudence]

 

The guidance continues

 

11 This is a two-way process. The court can expect to continue to receive the assistance it has hitherto been given in these cases by the police and by other agencies. But there must be reciprocity.

12 The police and other agencies recognise the point made by Hayden J  that “in

this particular process it is the interest of the individual child that is paramount. This

cannot be eclipsed by wider considerations of counter terrorism policy or operations.”

The police and other agencies also recognise the point made by Bodey J that “it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities … or other public bodies.” But subject to those qualifications, it is important that the family justice system works together in cooperation with the criminal justice system to achieve the proper administration of justice in both jurisdictions, for the interests of the child are not the sole consideration. So the family courts should extend all proper assistance to those involved in the criminal justice system, for example, by disclosing materials from the family court proceedings into the criminal process.

13 In the same way, the police and other agencies will wish to be alert to the need of the court for early access to information, for example, information derived from examination of seized electronic equipment, so far as such information is relevant to the issues in the family proceedings. Accordingly, the court should be careful to identify with as much precision as possible in any order directed to the police or other agencies: the issues which arise in the family proceedings; the types of information it seeks; and the timetable set by the court for the family proceedings.

 

I have been worried about the balance between confidentiality and national security on the one hand and fairness and article 6 on the other for a long while in relation to radicalisation. I think that it is helpful to have published guidance as to the very difficult issues that Judges dealing with these cases are faced with.  How they will be dealt with in practice is something I’ll be very interested to read about (assuming that I’m allowed to)

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Good grief, Charlie Brown. Can I make sense of adoption statistics?

Posted on October 6, 2015 by suesspiciousminds

Lots of news about the adoption statistics – for example

http://www.theguardian.com/society/2015/oct/01/fall-in-adoptions-of-vulnerable-kids-sparks-charity-warning

 

Well actually, adoption numbers are broadly rising, though they might dip a bit in 2015 (it is more that everyone expects them to drop considerably in 2016/2017 because less Placement Orders are being made – or are they?)

Adoption orders made

2011  4709

2012 5260

2013 6078

2014 6750

2015 (half year’s figures 3242, so we can guess that the full year will be about 6,500 ish)

 

I’m not really going to get into the political debate about whether adoption numbers going up is automatically a “good thing” or whether it represents something of a failure, or indeed whether adoption should be as politicised a topic as it has become.

What I wanted to work out was whether Placement Orders  (which is the order that a Court makes at the end of care proceedings deciding that adoption is going to be the plan for the child) have gone up or down, and whether the landmark case of Re B-S has had any impact on this.

 

I’ve been holding off on writing about the adoption statistics, because I was searching for a particular answer that would make sense of it.  I’m very grateful to staff in the MoJ statistics department for helping me find it (hello Wincen!)

 

Right, the Family Court Quarterly stats are here  https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2015  but what I needed was the raw information from the Family Court tables.

You’d need the Excel spreadsheet programme to look at it, but I’ll do my best to summarise.

 

The questions that have been in my mind are

 

“Are less Placement Orders are being made since Re B-S came out? And if so, how many less?”

and if so

“Is that because the applications are being made less often? or because they are being made but turned down? Or both?”

 

 

Re B-S came out in Sept 2013, so you’d expect if it was significant to see some sort of dip in 2014, it wouldn’t really affect the 2013 figures.

 

So, the first question.

Placement Orders made

 

2011 – 5116

2012 – 6471

2013 – 6242

2014  – 4286

2015 – 2035  (but that is only the figures for Q1 and Q2 – so let’s guess at a yearly figure of twice that, 4070)

 

Looking at that, then, in the year after Re B-S came out, the number of Placement Orders MADE by the Court dropped by nearly two thousand (1956), or about a THIRD. And that number hasn’t recovered in 2015, it is about the same.

So it would be fair to say that Re B-S has had an impact on the number of Placement Orders being made by the Courts. A decrease of a third is more than a statistical anomaly, there’s something real happening there.

 

What I haven’t known to this point is whether that is because the Courts have been refusing the applications, or whether the applications were just being made less often. But now I have the raw numbers to share with you all.

 

 

Placement Order applications. 

2011 – 5821

2012 – 7085

2013 – 7182   (Re B-S came out in sept 2013, so would affect the fourth quarter only)

2014 – 4942

2015   – 2445  (but that is only the figures for Q1 and Q2 – so lets guess at a yearly figure of twice that 4,890)

 

So again, we can look at the figures and see that in the year after Re B-S,  the number of applications made dropped by 2,240, just over a third. And they have remained at that level since.

There seems then quite a strong correlation between the Placement order applications decreasing and the number of orders then decreasing.

Let’s imagine that you are a teenager going out Trick or Treating on Halloween. If you kept count of the number of doors you knocked on each year and how much candy you get each year, and in 2014 and 2015 you knocked on a third less doors and got a third less candy, you’d reach a pretty obvious conclusion.

 

"I got a rock"

“I got a rock”

 

But does that mean that if you just knocked on a third more doors, you’d get a third more candy?  Or had those houses you din’t knock at put up signes saying “no Trick or Treaters”, so you didn’t botherknock at a door if it was clear you’d be wasting your time?

 

[I’m reminded of a particular Judge who once said to me “Mr Pack, if you keep knocking at an open door, eventually you’ll fall through and break your neck”. And that certainly stopped me knocking at that particular door]

Or in our case, if the number of applications went back up, would the “problem” of declining Placement Orders, which is going to lead in turn to a “problem” decline in adoption numbers  go away?

 

IF there had been six thousand Placement Order applications last year, would  the Courts would have made roughly six thousand in line with previous years , or whether they would have made roughly four thousand ? (i.e were there a third less orders only because LA’s lost their nerve, or were LA’s correctly judging that the applications would be refused and presenting alternatives?)

Really hard to say. I guess what might give us some form of clue is looking at the proportion of successful applications. These aren’t exactly like for like, because of course a Placement Order application made in December 2013 might get decided in 2014’s stats, but it probably roughly balances itself out over a year.

 

So what proportion of Placement Order applications were turned down each year?

Gap between applications and orders

In 2011  – 705  about 12%

In 2012 – 614 about 9%

In 2013 – 940 about 13%

In 2014 – 656  about 13%

In 2015 – 820  about 17%  [the 2015 stats are least reliable, since they don’t have the full year to even out the flow and balance out that 2015’s final decisions include some 2014 applications]

 

It doesn’t look like the Courts are turning down a higher proportion of applications, so initially, you think that the LA’s have just lost their nerve.

But hold on.

And if  you can’t hold on.

Hold on.

 

[By the way, isn’t Brandon Flowers the worst person to ask for advice ? Brandon, my problem is that I can’t hold on. Okay, well you should hold on. But Brandon, I can’t hold on. Ah, well you should hold on then. Thanks Brandon]

Remember that the number of applications MADE went down by a third, but the rate of applications that were refused  stayed about the same. Now surely the one third of applications that would have been made that the LA didn’t instead issue are their weakest cases – they should have been winnowing out the weak cases that were likely to be turned down and only presenting the strongest ones.

But even having done the exercise of trying to throw out the weakest cases and only make Placement  Order applications when they felt confident or semi-confident about persuading a Court that “nothing else will do”, the Court was turning down about 13% of the applications – about the same as when the applications were a mixed bag of weak cases, middling cases and strong cases.

That suggests, but I can’t be sure because the numbers only tell you so much , that IF the LA’s had made six thousand applications in 2014 and were going to make six thousand applications in 2015, that the number of Placement Orders wouldn’t necessarily return to 2013 levels – we might well have just had more marked results in the proportion of unsuccessful applications.

We can only really find out if the number of applications go up and we see whether we return to 2013 levels of Placement Orders, or whether the rate of unsuccessful applications go up.  (I seem to have argued myself into supporting Sir Martin Narey’s original suggestion that LA’s should just hold their nerve and go back to making the same level of applications  – which I so fervently disagreed with at the time. I still think that what would happen is that the rate of refused applications would go up, but I really can’t be sure either way)

 

Or maybe I’m just a blockhead.

 

 

 

 

 

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Adoption and immigration

Posted on October 6, 2015 by suesspiciousminds

I was very surprised to see that Mostyn J’s decision not to award an adoption order to an 18 year old when he felt that the only tangible benefit was British citizenship was appealed. I wrote about his decision here

 

Adoption of an adult

 

and I had felt that he had got that absolutely spot on.

Nonetheless, the prospective adopter in that case did appeal, and the Court of Appeal judgment is here

 

FAS v Secretary of State for the Home Department and Bradford MBC 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/951.html

 

I was even more suprised that the Court of Appeal decided that Mostyn J had been wrong in law.  You will see from the initial blog and judgment that Mostyn J had decided that the only benefit of making the adoption order for this person was to confer British citizenship on them, and that this was barred as a result of the House of Lords decision in Re B (a minor : Adoption Order :nationality) 1999

 

“The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental responsibility but merely wish to assist the child to acquire a right of abode. This is what Cross J. in In re A. (An infant) [1963] 1 WLR 231, 236 called an “accommodation” adoption. The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the “first consideration.” The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

 

The appeal here was on the basis that as the 1999 decision of the House of Lords predated the 2002 Adoption and Children Act, AND that the Act moved the test from ‘the welfare of the child’ to ‘the welfare of the child throughout the child’s life’ that in effect Parliament HAD given the power to the Court to take impact of British citizenship into account.

The Secretary of State was an interested party to the proceedings, because obviously if the law is going to move to say that immigration status is a relevant consideration in making an adoption order that opens some doors that the Secretary of State might prefer remained closed.

 

Nonetheless, the Court of Appeal held that Mostyn J was wrong in law and that those doors ARE open

 

  1. I should explain why I consider that the judge has erred in his interpretation of section 1(2) of the 2002 Act. In my view, the natural meaning of the language used in section 1(2) requires regard to be had to the welfare interests of the child in question as they may be affected “throughout his life” – that is to say, not merely as they may be affected during his childhood, as was the test under section 6 of the 1976 Act. As a matter of language, there is no limitation as regards the nature of the child’s welfare interests which should be brought into account in this way, and none can be spelled out of the context. Given that it is readily possible to envisage things that might be done in relation to a child which may profoundly affect him for good or ill in the part of his life once he ceases to be a child (e.g. whether and how he is educated), it would be arbitrary to try to read down section 1(2) to limit its effect to purely emotional matters in the way that the judge sought to do. The wide ambit of the matters which may be relevant to assessing what promotes the child’s welfare contemplated by section 1(4), as indicated by its opening words (“… among others …”), also supports an interpretation which gives the words in section 1(2) their natural meaning.
  3. I do not think that section 1(4)(c) supports the judge’s narrow interpretation of the phrase “throughout his life” in section 1(2). If anything, it seems to me to point in the other direction. The phrase obviously bears its natural linguistic meaning in section 1(4)(c), meaning that the factor identified has to be brought into account by reference to the effects over the entirety of the child’s life. It would be very odd to give the same phrase a different, more restricted meaning when it is used in section 1(2). There is nothing in section 1(2) to suggest that the phrase only applies in relation to some (or only one), rather than all of the factors which might be found to be relevant to the welfare of a child.
  4. In my view, the reasoning of Lord Hoffmann in his speech in Re B (with which the other members of the appellate committee agreed) supports an interpretation of section 1(2) of the 2002 Act in accordance with the natural meaning of the words used in that provision. The case concerned an application by grandparents under section 6 of the 1976 Act to adopt their grandchild, T, who had only two years of minority remaining, to allow her to acquire British citizenship and avoid deportation, so that she could continue living with them in the UK and continue to attend school here: see p. 140B-D. The judge at first instance made an adoption order, even though the Home Office argued that this would be contrary to immigration policy, on the basis that he could not ignore these welfare benefits to T merely because they were dependent on the acquisition of a right of abode as a citizen: p. 140F-H. The order was set aside by the Court of Appeal on the grounds that in applying section 6 the court should ignore benefits which would result solely from a change in immigration status: pp. 140H-141C. The House of Lords held that this was contrary to the express terms of section 6 and restored the order made at first instance.
  5. Lord Hoffmann held that on the language used in section 6 the court could not ignore the considerable benefits which would have accrued to T during the remainder of her childhood:

    “Section 6 requires the judge to have regard to ‘all the circumstances’ and to treat the welfare of the child ‘throughout his childhood’ as the first consideration. I do not see how, consistently with this language, the court could simply have ignored the considerable benefits which would have accrued to T during the remainder of her childhood. That the order would enable her to enjoy these benefits was a fact which the court had to take into account. No doubt the views of the Home Office on immigration policy were also a circumstance which the court was entitled to take into account, although it is not easy to see what weight they could be given. Parliament has not provided, as I suppose it might have done, that the adoption of a non–British child should require the consent of the Home Secretary. On the contrary, it has provided that the making of an adoption order automatically takes the child out of the reach of the Home Secretary’s powers of immigration control. The decision whether to make such an order is entirely one for the judge in accordance with the provisions of s 6 . In cases in which it appears to the judge that adoption would confer real benefits upon the child during its childhood, it is very unlikely that general considerations of ‘maintaining an effective and consistent immigration policy’ could justify the refusal of an order. The two kinds of consideration are hardly commensurable so as to be capable of being weighed in the balance against each other” (p. 141C-F)

  6. The effect of this reasoning is that, in respect of the period in which the child’s interests were to be treated as a first consideration (i.e. “throughout his childhood”, according to the terms of section 6), the interests of the child (including material welfare benefits he would derive as a result of being granted British citizenship) would almost invariably have to be given priority as against the state’s interest in maintaining effective immigration controls. Lord Hoffmann contrasted the position in relation to benefits which would accrue after childhood (i.e. after the period in respect of which the child’s interests were to be treated as a first consideration according to section 6) at p. 142D-F, as follows:

    “I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of s. 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary’s discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow Ms B to remain in this country for the 2 years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given Ms B any benefits during her childhood which she would not have been able to enjoy anyway.”

  7. As Lord Hoffmann said at p. 141H-142A, the approach to be adopted under section 6 where the benefits from conferral of citizenship would accrue after the childhood of the adopted person has ended was as follows:

    “… the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the ‘first consideration’. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

  8. Thus, in relation to benefits for the child which would only accrue in the period after that in which the child’s interests were to be treated as a first consideration, as a matter of interpretation of section 6 there was far greater scope for the state’s interest in maintaining effective immigration controls to be treated as outweighing those matters, and it would ordinarily do so.
  9. Lord Hoffmann’s reasoning in relation to both periods (i.e. benefits accruing during childhood, on the one hand, and benefits accruing after childhood, on the other) was tied to the language and structure of section 6, which gave paramountcy to the child’s interests in the first period but not in relation to the second. In relation to both periods, on the proper construction of section 6 in accordance with the ordinary meaning of the language used in it, Lord Hoffmann treated the practical benefits which would accrue from becoming a British citizen by operation of the 1981 Act as relevant matters to be brought into account in deciding whether to make an adoption order.
  10. On the present appeal Mr Greatorex, for the Secretary of State, submits that the change between section 6 of the 1976 Act and section 1(2) of the 2002 Act cannot be taken to indicate an intention on the part of Parliament to change the presumption in favour of giving greater weight to the state’s interest in maintaining immigration controls with respect to benefits accruing after childhood which had been identified in Re B in relation to section 6. I cannot accept this submission.
  11. Parliament has made a deliberate change in section 1(2) in specifying the period in relation to which the impacts (both positive and negative) of adoption for a child should be brought into account for the purpose of determining what is for the welfare of the child as being “throughout his life”, by contrast with the more limited period specified in section 6 of the 1976 Act (“throughout his childhood”). Apart from this change, the basic structure of section 1(2) remains the same as for section 6, namely that in relation to assessment by reference to the relevant period the child’s interests are treated as paramount or a first consideration and that all practical benefits and disbenefits for the child (including those which would accrue as a result of any automatic conferral of citizenship under section 1(5) of the 1981 Act) are treated as relevant matters. Like section 6 of the 1976 Act, section 1(2) of the 2002 Act cannot be construed as containing any artificial limitation on what types of benefit are capable of counting as a relevant matter when considering whether an adoption order should be made. Therefore, in my view, the points made by Lord Hoffmann in Re B by reference to the then relevant period under section 6 for bringing benefits into account (during childhood) at p. 141C-F, set out above, apply with similar effect in relation to the new relevant period under section 1(2) (throughout the child’s life).
  12. The result of this is that if, after taking account of the practical benefits of adoption for a child throughout his life, it can be seen that it best promotes the child’s welfare that he be adopted by a British citizen so as automatically to acquire British citizenship under section 1(5) of the 1981 Act, the court should ordinarily make the adoption order which is sought. Just as for the first of the periods considered by Lord Hoffmann in the context of applying section 6 of the 1976 Act in Re B, the state’s interest in maintaining effective immigration controls will have very little significance. It will not be appropriate for a court to refuse to make the order as some sort of indirect means of reinforcing immigration controls.
  13. I can readily see that the Secretary of State for the Home Department might be concerned at this result. But if she wishes the courts to have the ability to give greater weight to considerations of immigration policy in the context of deciding whether an adoption order should be made, she will need to persuade Parliament to change section 1 of the 2002 Act to allow that to happen.

 

 

So, having decided that the legal basis for Mostyn J to refuse to make the adoption order was wrong in law, the Court of Appeal surely then make the adoption order?  Well, no, because it turns out that as an 18 year old, simply making the adoption order would NOT confer British citizenship on the young man. And as that was the only tangible benefit identified by Mostyn J, there would be no benefit in making the order, and one can’t make such an order without being satisfied that it is better than making no order.

29…the judge erred in making the assumption he did that if he made an adoption order the effect of section 1(5) of the 1981 Act would be that MW would automatically acquire British citizenship. When the matter was before the judge, MW was already aged 18 and hence was no longer a “minor” as defined for the purposes of the 1981 Act. Therefore, if an adoption order had been made it would not have had the effect of automatically conferring British citizenship on MW. Once this is appreciated, the only benefit in terms of the welfare of MW associated with adoption identified by the judge drops out of the picture. There is no good reason to warrant the making of an adoption order in this case, and it is on this basis – different from the reasoning of the judge – that the appeal must be dismissed.

  1. Mr Rudd, for FAS, sought to argue that even though MW would not automatically become a British citizen if an adoption order were made, nonetheless it would greatly assist him in making an application for leave to remain in reliance on his rights to respect for his private and family life under Article 8 of the European Convention on Human Rights and the Human Rights Act 1998 if the court had recognised his family connection with FAS by making the adoption order, and that this should be treated as a factor indicating that the making of such an order would promote his welfare. If MW obtained discretionary leave to remain, and such leave were sustained over some years, he might become a British citizen by that route.
  2. In my judgment this argument is unsustainable. Such family and private life as MW has established in the UK by living with FAS was formed at a time when it was known that he had only a very limited right to remain in the UK as a visitor for a few weeks, and hence was precarious. Any adoption order would be made after MW became an unlawful over-stayer and was known to be such. On the ordinary principles applicable under Article 8, in a case affected by precariousness of this kind it is only in exceptional circumstances that a right to remain could be established on the basis of private or family life (see e.g. R (Agyarko) v Secretary of State for the Home Department [2015] EWCA Civ 440 at [28]), and there are none here. MW has no prospect of being granted leave to remain on the basis of Article 8 in exercise of the Secretary of State’s discretionary immigration powers, so this factor cannot justify the making of an adoption order in relation to MW.

 

 

The Court of Appeal thus achieving the unusual outcome of sending every single person in the Court room away being deeply unhappy about what was decided. Absolutely nobody would have been happy or even content with this.

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