Author Archives: suesspiciousminds

Adoption and American immigration

Posted on June 22, 2015 by suesspiciousminds

I have been waiting since Re B-S for one of these cases to come up, and it finally has.

Where a family member is put forward to care for a child, and that family member lives in America, the net effect of American immigration law is that in order to be able to get the child into the country to live with that family member, you’d need an adoption order. Nothing less than that would do for American immigration authorities. BUT, does that amount to ‘nothing else will do’ for the English family Court?

 

Re S and T (children) 2015  looks at that issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1753.html

 

Much of the case also involves the horrid rigmarole because in order to apply for an adoption order in England, the prospective adopters need to be habitually resident in England or Wales AND to have had a home in England for 10 weeks before the application.  (In practice, this is an utter nightmare in any case where the relatives are American, as it just causes logistical problems that don’t arise in any other country).  So if you are interested in those matters  those are in the early parts of the judgment, and it shows you the tangle that the process can become.

But my real interest is in the analysis of whether the US immigration requirements of ‘adoption or you’re not coming in’ amount to ‘nothing else will do’

This case is made more complex because they were initially private law proceedings brought about because the father removed the children to Pakistan, their mother later died of cancer, and it seems that the children have been actually living in America since July 2014  (as a result of a ‘holiday’ order made by Singer J, permitting the children, who were wards of Court, to go and stay with their maternal great aunt and great uncle for a defined period of time.  It is the great aunt and great uncle who applied for an adoption order under s84 Adoption and Children Act 2002, with the intention of later applying for an adoption order under US law.

 

[There are complicated technical reasons why they had to do it that way round, but basically if the English Court didn’t make an Adoption Order, they wouldn’t be able to get one in America, and the children wouldn’t be able to live with them]

 

The father was not consenting to the plan of adoption, and was actively opposing it, and there was no Placement Order (or application for a Placement Order)

  1. The issues: can the father’s consent be dispensed with?
  2. The father opposes the making of any adoption order and any order under section 84 of the 2002 Act. The applicants submit that his consent can be dispensed with. He disputes this.
  3. In my judgment, it is clear that there is nothing in section 84 itself to preclude the court dispensing with the father’s consent. Regulation 11(1)(p) is clear recognition that section 52(1) applies to an order under section 84. Moreover, Form A61, the application form to be used in applications under section 84, contains, in Part 3, para (j), provision for an application to dispense with parental consent. The father’s argument, however, is based on the wording of Articles 4 and 16 of the Convention which, he submits, plainly contemplates that a Convention adoption such as is proposed in this case cannot proceed in the absence of parental consent.
  4. I have set out the relevant passages already, but for convenience I will repeat the critical wording. Article 4(c)(2) provides that an adoption can take place “only” if:

    “the persons … whose consent is necessary for adoption … have given their consent freely.”

    Article 16(1)(c) provides that the Central Authority of the State of origin “shall”:

    “ensure that consents have been obtained in accordance with Article 4.”

    Article 16(2) provides that the Central Authority of the State of origin “shall”:

    “transmit to the Central Authority of the receiving State … proof that the necessary consents have been obtained.”

  5. The Convention does not contain any provisions identifying what consents are necessary. On a plain reading of the Convention, it leaves it to the domestic law of the State of origin to determine what, if any consents, are “necessary”. This is borne out by paragraph 129 of the Explanatory Report on the Convention drawn up by G Parra-Aranguren:

    “The persons whose consent is necessary on behalf of the child are determined by the applicable law: it will usually include … the child’s biological parents.”

  6. English domestic law enables the court to “dispense with” a parent’s consent in accordance with section 47(2)(c) of the 2002 Act if the requirements of section 52(1)(b) are satisfied. Those provisions apply both where the application is for an adoption order and where the application is for an order under section 84: see regulation 11(1)(l). They likewise apply in a Convention case: see regulation 55.
  7. The point is, ultimately, a very short one, incapable of much elaboration, but, in my judgment, where the court has “dispensed” with a parent’s consent in accordance with sections 47(2)(c) and 52(1)(b), that parent’s consent is no longer “necessary” within the meaning of Article 4(c)(2). It is not “necessary” because it has been “dispensed with”. It follows, in my judgment, that the court can in principle, as the applicants contend, dispense with the father’s consent in the present case.

 

The President having decided that the Court COULD dispense with father’s consent, then had to decide whether it SHOULD.

  1. The issues: should the father’s consent be dispensed with?
  2. The father submits that, even taking all the available material at its highest, there is no basis upon which the court could properly dispense with his consent and that on this ground alone I should dismiss the applicants’ claim here and now.
  3. In short, the father’s case is that, although he has been the subject of many serious findings – a proposition not challenged before me – they cannot be determinative. Indeed, it is said, they are not sufficient, on a proper welfare analysis, to justify the severing of the children’s relationship with him through adoption.
  4. It is properly common ground before me that, if the father’s consent is to be dispensed with, the applicants have to demonstrate that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625. As the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.” The local authority makes the same point when it observes, and I agree, that what might ‘tip the balance’ in a private law case does not necessarily suffice to justify adoption in the face of parental opposition.
  5. Putting the issue into context, there are two striking features of this case. The first is that the local authority, having considered the matter very carefully, has doubts (a) whether the ‘threshold’ in section 31 of the 1989 Act is met and (b) whether, even if threshold is met, it would apply for a care order, let alone a placement order. The second is that, in truth, adoption is being considered here only because of the seeming imperatives of United States of America immigration law. As the local authority puts it, the issue of adoption would certainly not have arisen but for the stance of the United States of America’s authorities. Counsel for the guardian was equally explicit: “It is purely the immigration requirements of the USA which dictate that although the dispute is between family members, a placement with the applicants will require an adoption process.”
  6. I make clear that neither of these factors can alone, or in combination, be determinative. One can, for example, conceive of a case in which “nothing else will do” precisely because of a requirement of foreign immigration law. But they are, nonetheless, very striking features of this case which must, at the very least, give one pause for thought.

 

 

The President is saying there that the US immigration requirement for adoption as a pre-requisite for the child living in the country MIGHT amount to “nothing else will do” or it MIGHT not. It isn’t determinative either way, and will depend on the merits and background features of the case.  [It appears that with strong reasons why the child can’t live with birth parents and has to live elsewhere, the immigration component might tip the balance, but where the ‘threshold’ component is weak, that it might not]

 

In looking at what might amount to ‘threshold’ against father, the President identified these matters

 

  1. What are the matters alleged against the father? They include, but are not limited, to the specific matters found by Sir Peter Singer as set out in his judgment given on 1 October 2014:

    i) Domestic violence of the father inflicted on the mother in August 2012 (judgment, paras 28-29): details can be found in the maternal uncle’s statement dated 11 April 2014.ii) The fact that the father removed the children to Pakistan in December 2012 without the mother’s consent (judgment, para 80(i)) – something emotionally abusive of both the mother and the children.

    iii) The fact that the father in effect abandoned the children between March 2013 and April 2014 (see paragraph 2 above), though he claims this was on the basis of legal advice he received in Pakistan.

    iv) The unlikelihood of the father fostering any kind of relationship between the children and the maternal family (judgment, para 79) – though this is something he now says he will do: see his statement dated 31 October 2014.

    v) The fact that the father put forward two bogus documents: a purported will of the mother dated 29 August 2013 and a purported “confession” of the mother (judgment, paras 80(ii) and 80(iii)).

    vi) The fact that the father “laid the ground for attempting” to obtain the insurance monies arising out of the mother’s death (judgment, para 80(v)).

    I am of course concerned with those matters which are relevant to the children’s welfare. It is hard to see that (v) and (vi), however deplorable, go to that issue.

  2. As against this, the following matters have to be borne in mind:

    i) Sir Peter Singer’s finding that the applicants and the children’s maternal uncle “deliberately” did not inform the father of the death of the mother “in order, as they sought, better to advance their own case for the children to remain with the mother’s family and in order to distance themselves from him for reasons which, because of his behaviour, are apparent” (judgment, para 80(vi)).ii) The quality of the contact between the father and the children as demonstrated, for example, by the records of contact sessions on 15, 17, 21 and 23 October 2014

     

 

I think that the Guardian’s conclusions are interesting and telling  (it is not really a right way to approach the law)

 

“I do not believe the father can meet the children’s global needs to the extent that [the applicants] can. I have sought in this report to delineate the differences between the father as a potential long term carer for the children in Pakistan and their great aunt and uncle in the USA.

The father’s position is not without merit and this is a finely balanced decision. If there was no one but the children’s father to care for them it is likely that despite his deficits he might be considered good enough. However if there is an alternative, and I accept that the mechanism for achieving an adoption placement for the children in the USA is inchoate, I take the view for the reasons adumbrated within this report, that this is preferable and in the children’s best lifelong interests than living with their father in Pakistan.

I fall back on the aspiration that this Court can do better for these children than place them with their father in Pakistan; it can honour and make possible their mother’s legacy because she knew what was best for her daughters.

 

That comes very close to (if not actually arriving at) a conclusion that if there were no  relatives in America, the children should be with their father, but because the children would have a better life with the relatives in America, adoption is the right plan.  That’s precisely the opposite conclusion of Y v United Kingdom 2012  (the case that launched Re B and all that followed it)  http://www.bailii.org/eu/cases/ECHR/2012/433.html “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

If the Court were approaching this as a pure ‘beauty contest’  – who comes across better, who might be able to meet the child’s needs better, with whom might the child have a better life, the maternal great aunt and great uncle would have won hands-down.  It is decidedly possible that if the great aunt lived in Ilford, not Illinois, and the order was a private law order rather than adoption, that the Court would have gone with that option.  There’s no presumption in private family law that a father would beat a grandparent or aunt. Re E-R 2015 for example http://www.familylawweek.co.uk/site.aspx?i=ed144557

 

But that’s not the approach with adoption.

 

It clearly isn’t the strongest set of ‘threshold’ or risks that father might pose the children, and the Guardian’s analysis whilst intending to be a reason why the Court should make the adoption order and allow the children to live /stay with their maternal family in America actually makes the legal argument as to why the Court shouldn’t.

 

 

  1. In these circumstances, the first question I have to consider is whether, on the evidence currently before me, I could be satisfied that the father’s consent “requires” to be dispensed with (the language of section 52(1)(b) of the 2002 Act) within the principles set out in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, and In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035; whether I could be satisfied that “nothing else will do.” The short answer is that I could not be so satisfied. I agree with the father that the material at present before the court falls far short of meeting the required standard. Taking the matters I have summarised in paragraph 68 above at their highest, the case for adoption is simply not made out. One really only has to consider what is said in the reports of LB and JP and, equally significant, what those reports do not say.
  2. This being so, the second question is whether the proceedings should nonetheless continue. This comes down to two questions: (1) Is there some solid, evidence based, reason to believe that with further forensic activity – the testing of the existing evidence by cross-examination or giving the parties an opportunity to adduce further evidence – the conclusion might be different? This requires a robust and realistic appraisal of what is possible, an appraisal which is evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. (2) Is there some solid advantage to the children in continuing the proceeding?
  3. In my judgment, there is no basis in the materials currently before the court for any belief that prolongation of the process carries with it any realistic prospect of the court ever being satisfied that the father’s consent requires to be dispensed with, that nothing else will do. The deficit in the existing evidence is simply too great to imagine that there is any realistic prospect of the gap being bridged. And in the circumstances, not least bearing in mind the length of time these proceedings have been going on, far from there being any solid advantage to the children in continuing the proceedings, their welfare requires finality now.
  4. The proceedings should now be brought to an end.
  5. I am very conscious that the consequence of this, in a sense, is that the father wins by default. The children go to him because the only alternative is ruled out because adoption is ruled out. But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

 

So the children were to be brought back to England by August, and to go back to the care of their father.

This, I think, is only the second reported case where a child was taken from prospective adopters who had been caring for the child for a significant period of time, and placed with either a parent or family member. The first of course was Holman J’s https://suesspiciousminds.com/2014/12/05/i-would-put-this-as-a-must-read-adoption-case-dynamite/

 

In that case, the interest of the child being placed with an aunt outweighed that of remaining with prospective adopters, in this one, the interest of the children being placed with dad outweighed that of remaining with prospective adopters who were family members.  (Blood is thicker than water, but parental blood is thicker than blood, perhaps)

Of course this one is rather different, since there hadn’t been any Court determination that adoption was the right plan for the child, and the plan of adoption arose solely as a result of US immigration law, but it does show that the Court is willing to implement the philosphy of Y v UK in real life cases and to reach decisions that it feels to me would not have been made in 2011.

Good luck anybody running a case with an American relative in getting the case done within 26 weeks.

 

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composite threshold – a living example

Posted on June 20, 2015 by suesspiciousminds

 

I wrote about the difficulties of composite thresholds here https://suesspiciousminds.com/2015/05/28/composite-threshold-documents-in-which-a-tightrope-is-walked/  particularly where a document is produced that sets out what everyone says but doesn’t end up with clarity as the precise way that threshold is said to be met.

 

This judgment by Her Honour Judge Owens  http://www.bailii.org/ew/cases/EWFC/OJ/2015/B73.html  OCC v B and T 2015 is a really good example of that.

Particularly since the Judge includes a suitably anonymised version of the threshold at the end of the judgment. I commend that, I think it makes far more sense when considering what decisions was made by a Court to see the factual background set out.  I really like it.

The version provided is a composite document, set out in tablular form (and again, I like the way that this is produced, it is really helpful in terms of seeing what the allegation is, where the evidence is for it and what the parents say).

 

But it is a composite document. It doesn’t end up by setting out the findings that the Court was either making by agreement or was asked to adjudicate upon. So it isn’t a final threshold.

And then, there’s this bit in the judgment itself

Threshold is no longer in issue in this case. A composite threshold document has been agreed and the Local Authority accepts that the concessions recorded in that document are sufficient for threshold purposes. They do not therefore seek findings in relation to the issues not accepted on that document and I adopt that threshold document as my threshold findings in this case and make no findings in relation to items 1 (e), 3(a) and (b) on that schedule. A copy of that schedule, suitably redacted in relation to the identities of the parties, is appended to this Judgement

 

All very sensible and practical – the LA deciding not to push for additional findings where there is agreement and the concessions are sufficient.

However, when I look at the composite document, I see that whilst mother accepts all of the matters that remain (3 a) and (3b) were the only bits that she disputed, father was disputing just about EVERYTHING.  And the LA were accepting that they did not seek any findings in relation to matters that were disputed, so effectively all of those matters are just crossed out of the threshold.

Here is what father actually concedes, in totality

 

1(b) I accept arguing which can be seen as verbally abusive but not aggressive.  [Really hard to see in the light of Re A and Re J – and even before then, that this amounts to threshold]

1(c) The mother made allegations of domestic abuse against father but then withdrew them.   [Well, that’s not threshold unless the assertion is that the allegations were true OR that the making of false allegations caused emotional harm to the child, neither of which are asserted]

1(d) Both parents sent abusive text messages and Facebook messages to each other

2 The father had an argument with the Health Visitor because she came to the home for an important meeting without a sign language intepreter  (again, that’s not threshold)

4. The father accepts that he had some convictions, the most recent of which was ten years ago.

 

5. The father accepts that his other children were placed on the Child Protection Register but disputes that this was the right decision.

 

As we’ve previously discussed, it is possible that on a line by line basis, each individual allegation in and of itself would not amount to threshold, but that taken as a totality, it would. But that’s also not the case here. [Given that para 5 as drafted by the LA contains reference to his two older children being adopted, the Court could have been asked to find that the threshold relied upon and found in those proceedings was sufficient to establish a risk of harm from father, depending upon what was in it and how historical it was, but that didn’t happen]

 

Given what the Judge says about threshold  – LA don’t invite Court to make findings on any matters in dispute and that those matters which are accepted are how threshold is established, then those are the only concessions that are agreed by both parents.  The Local Authority could have invited the Court to find that the threshold was met on the basis of the mother’s concessions, and the Judge would then have had to rule on the matters that father disputed, but that’s not what happened. The LA invited the Court to make a finding that threshold was met on the basis of father’s concessions.

Now, just imagine for a moment, drafting a threshold that contains only those matters set out above. As a stand alone document, saying that this is why the children are at risk of significant harm.  It appears to me that this would be very short of threshold.

 

[There are 3 matters that relate chiefly to mother that father does not dispute, so we could add those in. She wasn’t always honest with professionals, she went to a refuge and then went back to father, and refused to go into a refuge just before the Court proceedings were issued.  IF the Court established that father was domestically violent, then those are matters which could add to the threshold, but there isn’t such a finding.  On the threshold that the case has ended up with, the very high point of the findings made is that harsh words were exchanged between mother and father (both verbally and via text messages/facebook) ]

 

I’ll be clear,

(a) The allegations set out by the Local Authority in their original document (the first two columns of the composite document) were more than capable of meeting threshold

(b) From reading the judgment, I would be confident that most, and perhaps all of them, would have been found had the LA pushed for this – the evidence was there to do so

(c) I’m fairly sure that all involved were approaching the case on the basis that it was not in dispute that there had been DV between father and mother and that he posed a risk to the children

(d) But actually there was. Father’s response to threshold disputed this. And that became a live issue as to whether his admissions were sufficient or whether the Court needed to deal with the disputed issues on threshold

(e) In my opinion, the actual concessions made and accepted, are way short of threshold  (particularly threshold for deciding that the children should be permanently separated from their mother – whilst there is only one section 31 threshold criteria it is plain from the Supreme Court in Re B that the Court’s final orders have to be proportionate to the harm suffered or a risk of being suffered.  )

 

I think there was ample evidence for the Court to find that father was a risk to the children and that mother had been subjected to domestic violence and had not been able to protect. And reading the totality of the judgment, I think that’s the basis on which the Court approached the case. Additionally, there were three significant  findings made which could properly go into a finalised threshold, and given that the Judge set these out in passages of her judgment that were explictly considering ‘risk of harm’ I would legitimately be putting them into a final threshold document.  BUT that would have been dependent on the Judge’s paragraph about threshold adding ‘and the specific matters that I found in my judgment in relation to risks of harm to the children’ or something similar.

 

  If they return to the care of their mother, however, I find that the likelihood is that this placement would breakdown due to her inability to apply the required parenting skills to a good enough standard

I find and the only conclusion I can draw is that she is simply not capable of working openly and honestly with the local authority in the best interests of her children.

The stakes are therefore very high indeed for them and the risk of them suffering further disruption and emotional harm is, as I have found, high

 

The Judge also makes comment that mother failed to understand the risk that father poses (and that’s very important, but it is equally important to remember that the Court hasn’t actually made findings about the level of risk father poses, and the adverse findings against him relate to mutual exchanges of harsh words between him and mother. )

 

There is also reference to what was probably the most important incident

On the 9th December 2014 RB moved to a place of safety following an alleged assault on her by ST on 8th December 2014. This assault was witnessed by a member of the public and ST was arrested. The Police records of this assault are at F110-112 and F129 – 144 and I have also seen the DVD recordings of ST’s Police interview and RB’s statement to the Police about this incident.

 

Although that is in the LA threshold document, at 1(d),  it is disputed by the father, and because of the formulation of words in the judgment about threshold (which I’ll repeat here) it is NOT a finding made. The Judge had done sufficient to make a decision about that allegation, and would probably have made the finding if asked, but was not in fact asked to do so.

 

Threshold is no longer in issue in this case. A composite threshold document has been agreed and the Local Authority accepts that the concessions recorded in that document are sufficient for threshold purposes. They do not therefore seek findings in relation to the issues not accepted on that document and I adopt that threshold document as my threshold findings in this case and make no findings in relation to items 1 (e), 3(a) and (b) on that schedule.

 

It is really obvious that the Court is proceeding throughout on the basis that it is established that father is a risk to the children and indeed to the mother.

BUT the threshold findings that were actually made by the Court were astonishingly low – far lower than I suspect anyone involved really grasped. And if there had been a second threshold document, one that went beyond just setting out a Scott Schedule  (we say,she says, he says) and into just setting out the precise allegations that were actually agreed i.e a final threshold, looking at that on a piece of paper would have made it clear that the concessions given were not sufficient to cross threshold and that the Judge would have to be invited to make findings.

IF this father were to be involved in future Court proceedings, someone picking up this judgment might consider that the Court had made findings that he posed a risk to his children and that he had been domestically violent to the mother   (and I’m sure that’s what those involved thought had happened) BUT as a matter of law, the findings against dad that were made were only those things that he admitted to – which amount to an exchange of harsh words with mother and an argument with a Health Visitor.  Would the actual findings that were made by this Court be sufficient to establish a likelihood of harm with future children?

 

I don’t mean to be critical of anyone involved – this is just an illustration of how a composite style threshold can pose a problem. Had a second document that sets out, taking into account just those matters that were accepted, it would have been really plain that the LA needed to go above and beyond just the accepted matters and into asking the Court to make findings on the central issue (was father domestically violent towards the mother and was he a risk to the children?).   I am sure that all involved took those matters as a given – I’m sure that if father had been fighting the allegations he would not have succeeded, but the approach that the concessions themselves were sufficient to meet the threshold doesn’t seem to stack up when you look at it with fresh eyes.

 

There’s a lot of other stuff to praise in this judgment, it is just a shame about that one element.

 

 

 

 

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Taking forty thousand pounds in cash to Pizza Express

Posted on June 18, 2015 by suesspiciousminds

 

I mean, I know it is a tad more expensive than other pizza restaurants, and yes those doughballs ARE tempting, but I don’t think you need to go with that much cash in your back pocket.

Kaur v Randhawa 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1592.html

This is an ancillary relief case in which the Ex Wife (who we’ll call Wife) was making applications for the Ex-Husband (who we’ll call Husband) to make good on the payment that he had been ordered to pay her in the final order of their divorce settlement. He had been ordered to pay her £80,000.

The Husband had a retort to this, which is that he had met with his Wife months earlier and agreed to pay her forty thousand pounds in cash, as a full and final settlement.  (It isn’t wonderfully clear why she’d agree to take £40,000 when a Court had just ordered that she would get £80,000, and the argument that it was ‘so that she wouldn’t lose her benefits’ isn’t that convincing)

The Husband’s case is that he met with the Wife in Pizza Express  (in Slough) and there handed her £40,000 in notes. Assuming that they were in £50 notes, that’s 800 notes.  One fifty pound note weighs 1.1 grams, so 40k is 800 grams or 1.75 pounds for the more experienced reader.

If you piled up £40k in fifty pound notes, it is about ten inches high.  I’m going to go out on a limb and say that even in Slough, where people routinely light their Romeo y Julietta cigars with crisp fifty pound notes, a ten inch thick pile of banknotes is going to attract some attention.

 

[I’m grateful to this website for allowing me to calculate and visualise just what £40,000 in cash might look like

http://www.reviewmylife.co.uk/blog/2010/05/09/what-does-one-million-pounds-look-like/ ]

 

 

One might imagine that if you were handing over £40,000 in cash, in full and final settlement of an £80k debt, you’d want to get some proof of that.

 

7. the husband says that in December 2013 he met the wife (and their child) at a Pizza Express in Slough where he paid her £40,000 in cash she having earlier agreed with him to accept this sum in satisfaction of her entitlement under the order. He says she agreed to accept this lesser sum in cash so that her receipt of benefits would not be disturbed. She agreed that her “charge” over the property would be lifted on payment of the £40,000.

  1. The wife flatly denies this. She says that the last time she met the husband was in 2011.
  2. The husband says that he borrowed the £40,000 from his brother. It was in £50 notes in packets of £2,500 – 16 packets in all. He says his brother came with him as well as another person who would act as a witness. He says that he took photos on his phone of him handing over the money but unfortunately he has since lost the phone. He says that his brother told him to get a receipt but he did not do so, as he trusted his wife. He said he had Facebook messages which would prove that the wife received the money.
  3. The brother says that he had the £40,000 in his safe. Alternatively he may have got it out via a casino. At an earlier hearing he had explained to me that “whenever we need cash, yes, I often go to a casino and take out the money there because its very lot easier to take it out”. He says he accompanied the husband to Slough with the cash. He advised the husband to get a receipt. He did not see the husband hand over the money. He did see the wife walking past in the street. The husband did not mention taking photographs. He could not remember if they brought a third person with them; they might have done.
  4. These stories, which were given in witness statements, were repeated from the witness box on oath.

 

Just to pull that together, the Husband got £40k in fifty pound notes, in sixteen separate bundles, and he got this from his brother, who got it from a safe, or from a casino. And they didn’t get a receipt. And he took photos, but those photos were on his phone, which is now lost. And he took a witness but can’t produce that witness.

 

One would expect that if the Wife was being handed a ten inch pile of fifty pound notes in Pizza Express that their waiter  “Hi, I’m Russell and I’ll be your waiter tonight” was lingering around and being particularly attentive in the hope of a really good tip.  I would have tried to track him down, I bet he would have remembered it either way.

Do you think Mostyn J went for this plausible account?

I have no hesitation in rejecting the evidence of the husband and his brother. I am certain it is false. Not only is it implausible in the extreme but it is not corroborated by contemporaneous documentary evidence or subsequent events. The husband has not produced any evidence from the alleged witness. His printouts of his Facebook account show no admissions from the wife (although the husband says that those were in audio clips which are referred to in the printouts.) The brother’s bank account does not show £40,000 taken from a casino at that time. It shows over four days in December 2013 £35,000 paid into a casino and £50,000 paid out, a net withdrawal of £15,000. Perhaps most significantly on 12 February 2014 in a conversation with the wife’s solicitor the husband said he “was not going to comply with the order”. In that conversation, as recorded in the attendance note, the husband did not say that two months earlier he had paid the wife £40,000 in cash which she had accepted in full satisfaction of her entitlement under the order. It is inconceivable that he would not have mentioned this if it had in fact happened.

 

If you ARE going to claim that you paid your wife 40 grand in used fifties, but that you can’t prove it in any way, it is probably NOT a good idea to tell her solicitor two months after the alleged transaction  when they ask you for the money  that you aren’t going to pay it, rather than “I have already paid her it”

 

Not only did Mostyn J not believe the Husband and make orders that the proper sum of money owed to the Wife would have to be paid, but he ruled that the Husband should pay the Wife’s legal costs at an indemnity rate (i.e as though her firm were charging private client rates rather than legal aid)and his Brother should have their evidence considered by the Director of Public Prosecutions to consider whether they should face trial for perjury.

 

 

 

  1. If an inter partes order for indemnity costs were made against the brother and the husband on a joint and several basis then the wife’s solicitors would be entitled to relinquish the legal aid certificate and be paid on a private basis. This is perfectly acceptable; indeed given the very low rates of pay by the agency legal aid firms depend on such orders for their survival.
  2. In my judgment the disgraceful conduct of the husband and the brother well justify an order for indemnity costs. The freezing order will remain in place until the balance of the costs award has been ascertained and paid. Obviously the freezing order is varied to permit the third party debt order to be executed.
  3. I direct that this judgment and the court bundle be sent to the DPP for her to consider whether proceedings for perjury should be brought against the husband and the brother.

 

 

 

 

 

 

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Minnock judgments (part 2) and a different judicial approach

Posted on June 17, 2015 by suesspiciousminds

Well, firstly, I’m pleased that the child has been found. And I’m not going to speculate about the future outcome of the case.

 

But I thought that people who have been interested might like to see the next four judgments.

https://www.judiciary.gov.uk/judgments/roger-williams-v-rebecca-minnock-and-ethan-freeman-williams-2-judgments/

 

They are the bottom four (beginning 12th June)

The 12th June judgment is unusual, in that it doesn’t read as a case where the Judge was being asked to decide an issue or make an order. Rather, he is helpfully setting out for those involved that if there is a commital application (where a person might get sent to prison) they are entitled to free legal advice and representation and what the magic words are. He then goes on, largely for the benefit of the Press and public to set out how the Courts make decisions about where a child lives, what factors come into account, the representation that the parents have had, and what factors the Court would take account of in the future, stressing that what the Court wants is to make sure that the child has a proper relationship with both parents. It is almost a judicial press release.  I’ve not seen that happen before, but I think in a case with so much media attention and public interest, it is actually a really sensible thing to have done and I hope that future Judges consider it.  If you wanted to understand what the legal background was to the case, it is all there.

The next judgment is describing that the child is safely returned, and explaining that the mother’s plan in the case was to use the Press to gain sympathy for her cause and to thwart the decision of the Court.  People may have their own view as to whether she was justified or not, but if you have a strong view, I’d recommend that you read that judgment to see if it remains the same. The really remarkable thing about this judgment is that at the end, the Judge allowed members of the Press to ask him questions directly and answered them.

I’ve never seen that happen in a family case before, but it seems to me a remarkably sensible approach. It must surely result in more responsible, balanced and nuanced reporting that the Press had the chance to ask questions directly of the Judge.  I applaud it.

The third (private hearing 15th June) sets out that the future decisions in the case need to be made without public spotlight, although a judgment will be published after the case is over, and allowing father to provide a short statement to the press.

 

And the fourth (and so far final) is a purge of contempt (by the partner of the maternal grandmother) for his part in the press campaign and more importantly in lying about the child’s whereabouts. For non-lawyers a purge of contempt is where a person who has been sent to prison for breaking court orders goes before the same Judge to express remorse and regret and ask for his sentence to be reduced or ended. In this case, the man was released from custody.

 

The Judge did ask, in his judgments, for the Press to refrain from speculation about where the child might live and whether mum would get to see him again and how that would work, and I’d therefore ask people to do the same in comments.

But what do people think about the Judge’s approach to openness in the case ? Very fast publication of the judgments, allowing the Press to come in, delivering a judgment that explained all of the balancing factors and principles, and allowing the Press to ask him questions? I think it is all very new, and the law is generally terrified of innovation, but we may come back to look on this case as a watershed in the family Courts not merely paying lip-service to the idea of transparency but really engaging in the process of explaining to the Press and public what is happening.  And balancing that with keeping really private things private.

 

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adoption and payments

Posted on June 17, 2015 by suesspiciousminds

A and Another v Local Authority 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4816.html

 

This is a short judgment by Keehan J, involving a case where a couple who wanted children had entered into a private arrangement with a woman who had been pregant and considering termination. They agreed that the couple would have the child and later adopt the child.

 

(That is a criminal offence, since it is prohibited for individuals to arrange adoption between themselves, it has to be done through an authorised agency UNLESS the High Court approve it in advance. I remain mystified as to how anyone asks the High Court for that approval without committing the offence first, since you would be unable to be either Person A asking Person B if they might be willing to enter into an arrangement about adoption, or Person B offering to enter into such an arrangement. So you’d have to be Person A going to the High Court saying  “I’ve no idea if Person B is up for letting me adopt their unborn baby, but is it alright if I ask them?”  That might seem like a rather scattergun approach to finding a baby to adopt, since it might take until Person Q before you find someone who with no prior discussion says “Yes, that would be fine”)

 

s92 Adoption and Children Act 2002 (1)A person who is neither an adoption agency nor acting in pursuance of an order of the High Court must not take any of the steps mentioned in subsection (2).

(2)The steps are

(a)asking a person other than an adoption agency to provide a child for adoption,

(b)asking a person other than an adoption agency to provide prospective adopters for a child,

(c)offering to find a child for adoption,

(d)offering a child for adoption to a person other than an adoption agency,

(e)handing over a child to any person other than an adoption agency with a view to the child’s adoption by that or another person,

(f)receiving a child handed over to him in contravention of paragraph (e),

(g)entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,

(h)initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),

(i)causing another person to take any of the steps mentioned in paragraphs (a) to (h).

 

and then s93 clarifies that taking those steps is an offence, punishable by a £10,000 fine or up to six months imprisonment

 

93 Offence of breaching restrictions under section 92

(1)If a person contravenes section 92(1), he is guilty of an offence; and, if that person is an adoption society, the person who manages the society is also guilty of the offence.

(2)A person is not guilty of an offence under subsection (1) of taking the step mentioned in paragraph (f) of section 92(2) unless it is proved that he knew or had reason to suspect that the child was handed over to him in contravention of paragraph (e) of that subsection.

(3)A person is not guilty of an offence under subsection (1) of causing a person to take any of the steps mentioned in paragraphs (a) to (h) of section 92(2) unless it is proved that he knew or had reason to suspect that the step taken would contravene the paragraph in question.

(4)But subsections (2) and (3) only apply if sufficient evidence is adduced to raise an issue as to whether the person had the knowledge or reason mentioned.

(5)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding £10,000, or both.

 

The police in this case decided to take no action.

[If you are wondering why this is adoption and not surrogacy, it is because the couple who were going to care for the child had no biological material involved in the conception – surrogacy is where the child is concieved with genetic material from at least one of the people who are going to be caring for the child]

The next issue was that the prospective adopters had given the birth mother money.  In this case a loan of £5,000.  (If you want to imagine me doing Russell Harty style air quotes around the word loan, feel free) and that loan was paid back (same again) although many of the repayments were in cash and there was no proof of that.

Again, it is a criminal offence to make payments to someone in order to facilitate adoption of a child.

95 Prohibition of certain payments

(1)This section applies to any payment (other than an excepted payment) which is made for or in consideration of”

(a)the adoption of a child,

(b)giving any consent required in connection with the adoption of a child,

(c)removing from the United Kingdom a child who is a Commonwealth citizen, or is habitually resident in the United Kingdom, to a place outside the British Islands for the purpose of adoption,

(d)a person (who is neither an adoption agency nor acting in pursuance of an order of the High Court) taking any step mentioned in section 92(2),

(e)preparing, causing to be prepared or submitting a report the preparation of which contravenes section 94(1).

(2)In this section and section 96, removing a child from the United Kingdom has the same meaning as in section 85.

(3)Any person who

(a)makes any payment to which this section applies,

(b)agrees or offers to make any such payment, or

(c)receives or agrees to receive or attempts to obtain any such payment,

is guilty of an offence.

(4)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding £10,000, or both.

 

As the Judge explains, there are very good public policy reasons why the law prohibits a person who wants a child paying someone to hand over that child to them for adoption – it would be a very easy thing for a rich person to exploit a poor mother in that scenario

There are very strong public policy considerations against permitting monies to be paid for the handing over of a child or for the adoption of a child. There are very strong public policy considerations against permitting privately arranged adoptions. The reasons for those are all too obvious. On occasions the court is aware that privately arranged adoptions have taken place in circumstances which are wholly inimicable to the welfare of the child concerned.

 

In this case, the prospective adopters had been caring for the baby for nearly a year and caring for the baby well. The professionals involved were of the view that the adoption order they were applying for should be made, as were the baby’s biological parents.

 

The Judge explained

However, whilst criminal offences may or may not have been committed, either by arranging a private adoption or making payments, there is no provision in the 2002 Act which sets out that such offences are a bar to the court going on and nevertheless approving and making an adoption order; that is because the ultimate consideration for the court is the welfare best interests of the child.

 

The Judge went on to make the adoption order.

 

Clearly the right thing to do in this case.

With unlawful payments made under adoption, AND excessive payments made under Surrogacy Arrangements, the Court is more and more taking a welfare-centred approach that any illegal actions can be cancelled out by the benefit of making the orders sought. Does this have the effect of watering down the protection offered to vulnerable mothers (particularly mothers living in poverty and in countries where £5000 is a huge amount of money) ?   All that is happening to people who want a baby who make unlawful or even criminal payments is that they get a smack on the wrist (sometimes not even that) and the Court still makes the orders.

 

Very difficult. Nobody wants to make an example of people just for the sake of it or to move the baby from carers who clearly loved the child and were doing a good job and had been ignorant of the law; but if there’s no consequence in practice for breaking the law what’s the point of having it?

 

My admittedly limited research hasn’t turned up any prosecutions for offences under section 93 or section 95 of the Adoption and Children Act 2002. And whilst you might think that this is because the Act has provided a deterrent and so people aren’t committing the offences, this case shows that it isn’t the case. It is more that you simply can’t concieve of either a jury convicting someone like this or a Judge removing the child from them.

 

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The Minnock judgments are up

Posted on June 12, 2015 by suesspiciousminds

This case has been in the news this week.  What little we know from the public domain is that a mother was involved in court proceedings and the Court ordered that the child go to live with father, and that mother instead took the child and went on the run with him. She has contacted the Sun, who ran a story and now the Daily Mail.

http://www.dailymail.co.uk/news/article-3120750/Ethan-needs-home-t-bear-Mother-run-son-3-says-s-thought-handing-in.html

I’m not going to comment much on the story, because it is still a live issue before the Courts, but given the extent of feeling about the case, I think it is helpful for people to see what the Court judgments say on the case.

 

https://www.judiciary.gov.uk/judgments/roger-williams-v-rebecca-minnock-and-ethan-freeman-williams-2-judgments/

There are 3 judgments, on the 8th June, 9th June and 11th June. You can find them all at that link.

 

The 8th June judgment is probably the most helpful in terms of understanding the background of the dispute between mother and father and why the Court decided that a change of home from mother to father was warranted.  (Bear in mind though that all three of these judgments are about efforts to find the child, and aren’t the judgment that sets out the full facts in the private law case deciding where the child should live and making conclusions about the allegations in the case. That isn’t yet published. It would be very helpful to understand things, but I can understand that whilst the child is missing why it might be thought that it should not yet be published)

 

I am sure that people will have very strong views and that those views may well be polarised. Let’s all hope though that the child is okay. Regardless of the rights and wrongs of the case, this must be a very difficult and worrying time for all of the real people involved.

 

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Someone had blunder’d

Posted on June 12, 2015 by suesspiciousminds

 

In these times where every week seems to give family practitioners another raft of guidance to follow, another lecture on how awful we all are for not doing this that and the other and another bout of finger wagging, this case might make some of us happy.

 

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1627.html

 

In which there was a terrible cock-up, and it wasted a lot of time and money, and was unfair and an apology had to be made. But for once, it was the Court having to say that they got it wrong, rather than wagging fingers at everyone else. Even more sweet because the apology was delivered by the President himself.  (Fair play to him, he came out and did it straight)

 

This was a case where mother was told by Pauffley J to return her child to America forthwith. Mother made an application to appeal.  That application came before King LJ as a paperwork request. The mother and her solicitors were told that the application for permission to appeal was refused. A stay had been made to prevent Pauffley J’s order taking effect for 3 weeks, to allow the application for permission to appeal to come before the Court of Appeal for an oral application.

 

When that 3 week period expired, father applied to the High Court for enforcement of the order (as he was entitled to), because the child had not been returned to America. The case came before the President on 29th May 2015 and the President made a series of orders, including an order to seize mother’s passport.

 

What the President did not know, and what none of thelawyers  knew, was that King LJ had extended the stay to 12th June (at a hearing where mother appeared in person and permission to appeal was refused). Everyone knew that permission to appeal had been refused, but nobody (save the mother and King LJ knew about the stay being extended)

 

So, at the time that the President was making really serious orders (the tipstaff going out and forcibly taking mother’s passport away from her) on the basis of mother being in breach of Pauffley J’s order, the Court had already granted a stay of that order. The mother was  not in breach of the Court order.

 

Rather embarrassingly, it was the mother who had to notify the Court when she was served with the President’s order, drawn on the basis that she was in breach of Pauffley J’s order that she (and apparently she alone) was in possession of knowledge that King LJ had extended the stay until 12th June and thus she wasn’t in breach.

 

 

  • So far as concerns events after I had made the orders on 29 May 2015, what appears to have happened was this. When the passport order was executed on 31 May 2015, by police officers acting on the authority of the Tipstaff, the mother complained and spoke to the Tipstaff by telephone. He was told by her that the Court of Appeal had granted a stay until 12 June 2015. Quite properly, and clothed with the authority of the passport order I had made, he indicated that my order would nonetheless be enforced. The police officers accordingly seized the mother’s passport.
  • The Tipstaff communicated what the mother had said to him to Dawson Cornwell in a telephone conversation at about 9.30am on 1 June 2015. Dawson Cornwell emailed the CAO at 10.50am, setting out the history of the matter in appropriate detail, attaching a copy of the order I had made on 29 May 2015, and saying:

 

“We today spoke to … the Tipstaff. He confirmed that he spoke to the Mother on the telephone yesterday when the officers attended her property. She informed him that it was her understanding that the Court of Appeal had told her that she was to return to the USA by 12 June 2015. We have not been informed of this, nor has our client. Please would you urgently confirm if this is the case?”

They added:

“We should be most grateful to hear from you as to whether the Court of Appeal has indeed set the return date for 12 June 2015.”

Dawson Cornwell received no response from the CAO. Later the same day, and apparently as a result of a request from her, the CAO emailed the mother, sending her a copy of the draft of the order made by King LJ, saying that it was awaiting approval by the judge.

 

  • The next day, 2 June 2015, King LJ’s order of 22 May 2015 was sealed. It was emailed to the mother and the father by the CAO at 16.26. That email was not copied to Dawson Cornwell or anyone else. Almost immediately, however, the mother sent the order to the office of the Clerk of the Rules, which helpfully passed it on immediately to Dawson Cornwell. Very promptly, and very properly, Dawson Cornwell emailed the mother’s solicitors the same afternoon a letter saying:

 

“Given that a stay of execution has been granted by the Court of Appeal, we confirm that we will not seek to enforce paragraph 7 of the Order of the President of the Family Division of 29 May 2105 until 23.59 on 12 June 2015, in the event of your client’s non-compliance with that Order.”

The mother’s solicitors responded by email (by now it was 17.40) saying that they had emailed the letter to their client. On the morning of 4 June 2015 the mother emailed Dawson Cornwell asserting that there was a stay of execution until 12 June 2015.

 

  • I have set out the unhappy history of the matter in some detail, but the key fact is stark and simple. When I made the orders on 29 May 2015 I was unaware that King LJ had granted a stay until 12 June 2015. That fact alone, irrespective of how it had come about, necessitated the setting aside of the relevant parts of my order. As the order I made on 4 June 2015 recited, I was:

 

“setting aside the order … dated 29 May 2015 on the basis of inadvertent non-disclosure of critical information (that being that the Court of Appeal granted the mother a stay of execution of the order of 24 April 2015 until 12 June 2015).”

Paragraphs 7 and 9 of the order of 29 May 2015 were simply inconsistent with the stay.

 

  • Had I known of the stay, I would still have been prepared to make the passport order, and the orders consequential upon the passport order, for the basis of that order was the mother’s non-compliance with the earlier order made on 20 March 2015 by the Deputy Judge, and the need for such an order, in all the circumstances, was not affected by the stay. That is why I have not set them aside. Had I known of the stay I would not, however, have been prepared to grant any other relief. It would have been premature to do so while the stay was in force.
  • I wish to make it absolutely clear that, in my judgment, no criticism of any kind attaches to Dawson Cornwell, Ms Hutchinson or Ms Chaudhry. Given the terms of the email sent by the CAO on 26 May 2015, especially when contrasted with the language of the earlier email sent by Ms Said on 7 May 2015, they were entitled to assume that there was no longer any stay in place. Certainly, when I read that email on 29 May 2015 it never occurred to me that there might be a stay. After all, King LJ had refused permission to appeal, so there could be no question of a stay pending an application to the Supreme Court. And given the critical significance of a stay, any reader of the email from the CAO dated 26 May 2015 was surely entitled to assume that, if a stay had been granted, the news that “permission to appeal is refused” would have been caveated by a reference to the fact that there was nonetheless a stay. Most unhappily, it was not.
  • There is one further matter I must place on record. On the afternoon of 22 May 2015, King LJ’s clerk had emailed the Clerk of the Rules with the information that King LJ had extended the stay until 12 June 2015. Again most unhappily, the information in that email, which of course was unknown to Dawson Cornwell, was not passed on to me when I was dealing with the matter on 29 May 2015. It did not come to my attention until later in the afternoon following the hearing before me on 4 June 2015.
  • The mother and J are entitled to an unreserved apology for what has happened. It should not have happened. It did happen. I am very sorry that it did. I hope that nothing similar happens again. Procedures in the court offices will, no doubt, be tightened up in the light of what this most unfortunate case has revealed.

 

 

I note that in looking at the reasons why a Court did not know that extremely relevant Court orders on the case had been made which would have transformed the Court’s thinking, it is a shame that the President did not refer to the seminal case of Right Hand versus Left Hand  (ex parte Escher) 1854  in which it was held that the Left Hand had no knowledge of what the Right Hand was doing and vice versa.

 

Perhaps we need a brand new Monopoly card

Court error in your favour. Collect ten red faces!

Court error in your favour. Collect ten red faces!

 

It is mean of me to gloat. Everyone can make mistakes, even very significant ones like this. We are all human beings, and working under pressure and tight deadlines. The Court, like all of us, is only human.

 

As Alexander Pope said, “To err is human, to forgive, divine”

 

So on behalf of those of us who have been getting nothing but lectures and grief from judgments, speeches, Practice Directions and Views about how every tiny thing we do we are doing wrong and the solution is to become more cumbersome, time-consuming and intricate over the last two years, Mr President, we forgive you.

 

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“I know it when I see it” – deprivation of liberty

Posted on June 11, 2015 by suesspiciousminds

 

Readers will know that I don’t always agree with Mostyn J on issues of deprivation of liberty, but I think that he makes some very powerful points in this case and he makes them well.

 

Bournemouth Borough Council v PS 2015

http://www.bailii.org/ew/cases/EWCOP/2015/39.html

It involves a 28 year old, who the Court is naming “Ben”  (not his real name) who is on the autistic spectrum and has learning difficulties. The Local Authority who are providing him with care, asked the Court to make a ruling as to (a) whether the care package they were providing amounted to a deprivation of liberty and (b) whether if so, the Court would declare that this was in his best interests.

 

Firstly, Mostyn J wanted to ensure that all of the savings that Ben had accrued during his life by living frugally were not immediately eaten up by lawyers, since he would have to pay for a lawyer if represented through the Official Solicitor.  Mostyn J put different arrangements in place to ensure that Ben’s voice was heard, without draining his savings.  I applaud him for that, and it is a shame, that as he says, this may be one of the last times that this clever solution is useable.

  1. By virtue of COP Rule 2007 rule 141(1), as presently in force, Ben, as a party lacking capacity, is required to have a litigation friend. By virtue of great frugality Ben has accumulated appreciable savings from his benefits. It was foreseeable that were Ben to have a litigation friend who instructed solicitors and counsel, his savings would soon be consumed in legal costs. In my own order of 17 March 2015 I caused a recital to be inserted recording my concern that his means should not be eroded by legal costs. That same order recorded that Ben would be referred to the IMCA service for the appointment of an IMCA. That has duly happened and I have had the benefit of a helpful report from the IMCA, Katie Turner, where Ben’s wishes and feelings are clearly set out.
  2. In Re X (Deprivation of Liberty) No. 2 [2014] EWCOP 37 [2015] 2 FCR 28 Sir James Munby P at paras 12 – 15 and 19 explained that Article 6 of the 1950 Convention required that a protected person should be able to participate in the proceedings properly and satisfactorily with the opportunity of access to the court and of being heard, directly or indirectly, in the proceedings. However, these standards did not necessarily require that the protected person should be a party to the proceedings. There was no obstacle to the protected person participating in the proceedings without being a party.
  3. This ruling has been put on a statutory footing by a new rule 3A to the COP rules. This permits the protected person’s participation to be secured by the appointment of a non-legal representative. However this new rule does not take effect until 1 July 2015, some three weeks hence.
  4. In the circumstances, in what I suppose will be one of the last orders of its kind to be made, I directed that Ben be discharged as a party. I was wholly satisfied that his voice has been fully heard through the IMCA Katie Turner. Further, in relation to the question of deprivation of liberty, all relevant submissions have been fully put on both sides of the argument by counsel for the applicant and the first respondent.

 

One of the real hopes about Cheshire West when it went to the Supreme Court was that there would be a working definition of what ‘deprivation of liberty’ actually amounts to.  I didn’t like the Court of Appeal solution that it could be person specific  (i.e that a person with special needs can have less liberty and more restrictions to his liberty than an average person because his needs require it), but the Supreme Court’s acid-test is not proving much simpler than the old tangled case law.

The facts in this case which might have amounted to a deprivation of liberty were these:-

  1. There are no locks on the doors but there are sensors which would alert a staff member were he to seek to leave, although he has never tried to do so. Mr Morrison explained the situation as follows:

    “The property is such he is in theory able to leave his home on his own volition. Since he has lived at his bungalow he has never left of his own accord or verbally requested to leave without staff. However a door alarm is in place which would alert staff should Ben attempt to leave without staff attendance. If Ben were to leave the property without this having been arranged by staff they would quickly follow him, attempt to engage with him, and monitor him in the community. Ben requires one to one staff support at all times in the community. If he decided he didn’t want to return to his home, staff would firstly verbally encourage him to return, if this proved unsuccessful the Manager of Ben’s care agency would be contacted and they or another staff member would arrive and assist. If this proved unsuccessful further advice, support and attendance by Crisis Team and Social Services for crisis management would be sought and to consider whether a Mental Health Act assessment would be required. If this proved unsuccessful then consideration would be given to the attendance of the Police. Police attendance would be determined by the circumstances and if it is deemed his health and safety and that of others are at risk of harm. At all times staff would remain with Ben.”

  2. In his oral evidence Mr Morrison explained that if all attempts to persuade Ben to return home failed they would ask the police to exercise the powers under section 136 of the Mental Health Act 1983 to remove Ben to a place of safety. He also explained that consistently with a duty of common humanity if staff were out with Ben and he appeared to be about to step in front of a car they would prevent him from doing so. He stated in his witness statement:

    “Ben needs 1-1 staff support in the community as he lacks road and traffic awareness. Without staff support Ben would not take into account the traffic or road conditions at any given time. If Ben was unescorted in the community it is highly likely he would walk out into the road presenting a high risk of serious harm to him and potentially others. When Ben is escorted in the community he would be guided either verbally or physically and supported to cross a road and staff would intervene should he put himself at risk of significant harm.”

  3. He accepted under cross-examination that such an act of humanity could not amount to a deprivation of liberty, and I emphatically agree.
  4. In his witness statement Mr Morrison dwelt on one particular aspect of necessary supervision. He stated:

    “There is particular risk associated with Ben accessing public toilets in the community as the result of past incidents of Ben engaging in inappropriate sexual activity in public places including toilets. Ben has no understanding of the rights of other members of the public having access to public toilets safely and that any sexual activity in a toilet is illegal. Ben is supported by staff to access public toilets should he need to do so. … He is encouraged to use the locked cubicle of the disabled toilet and staff have a key to access should this be required. When Ben uses a male communal toilet the worker either remains outside the building or goes inside to support Ben. If Ben does not want to leave the toilet a male worker would enter the toilet and encourage him to leave. If a female worker was in attendance they would remain on site and the manager of the care agency would be called for assistance and attendance. A male worker or the intensive support team worker will arrive to support Ben. If this proved unsuccessful the Intensive support team would be called for specialist support and if unsuccessful then Police would be called.”

 

Remember that in deprivation of liberty, there’s a two stage test. Firstly, are the restrictions such as to amount to a deprivation of liberty? And secondly, if so, are those restrictions in the person’s interests?

I think it is really easy to conflate the two. It is really easy to look at this and say “of course he would be stopped if he tried to run into the road” and rather than answering it as a two stage question to simply combine the two, ending up with “someone with Ben’s difficulties would and should be stopped from running into the road, so no deprivation of liberty”  – but that’s a re-set to the Court of Appeal take on Cheshire West.

The comparison is not of Ben with other people with his difficulties and the liberty that they enjoy, but of Ben with other twenty-eight year olds, or Ben with other adults. Other adults are allowed to leave the place where they live, and are not going to be brought back by the police.  (unless their liberty is being deprived as a result of the criminal justice system, or secure accommodation, or the Mental Health Act, or a Deprivation of Liberty under the MCA).  You might consider it to be daft or irresponsible to give Ben the freedom to leave his home and go wherever he wants even if that’s in the middle of the night, but that’s why there’s the second limb – are the restrictions in his best interests?

Whether they are in his best interests or not, doesn’t stop the fact that the restrictions on his life amount to his liberty  being deprived, that’s a deprivation of liberty.

I think there’s also a blurring of whether deprivation of liberty is to be taken with a silent word ‘complete’ in there.  Few would argue that a man locked up in a prison cell, told when to eat and sleep and when he can exercise or go outside is a complete deprivation of liberty, and that what Ben is experiencing is not qualitively the same thing at all. But the Act doesn’t talk about ‘complete’ deprivation, and nor do the Supreme Court.

 

As Mostyn J says, the fuzziness around the edges of deprivation of liberty lead to applications of this kind being made, and as we saw at the outset, they don’t always make things better for Ben and people like him. He could have had all of his savings chewed up by a technical legal debate that he couldn’t care less about, because the chances are whether a Judge decides that his circumstances amount to a deprivation of liberty or not, the Judge is going to go on and say that the restrictions are in his best interests.

 

  1. In her lecture Lady Hale frankly stated that the decision of the Supreme Court of 19 March 2014 has had “alarming practical consequences”. I was told by Miss Davies that in the immediate aftermath of the decision the rate of suspected DOLs cases in this local authority rose by 1000% (it has recently reduced to 800%). This local authority is one of three in Dorset. Statistics from the Department of Health state that in the six month period immediately following the decision 55,000 DOLs applications were made, an eightfold increase on 2013-14 figures.
  2. The resource implications in terms of time and money are staggering. In the Tower Hamlets case I stated at para 60:

    “Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers.”

  3. I do not criticise this local authority in the slightest for bringing this case. In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers’ costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court.

Although I disagree with Mostyn J about the merits of returning to the Court of Appeal Cheshire West decision, I can’t argue with him on the underlined passage. This is not public money being well spent to make people’s lives better. This is a huge amount of money being expended to achieve very little.

 

Mostyn J’s view on the individual case is that the current circumstances do not amount to a deprivation of liberty and that it would only arise at the point where the police were asked to bring him back

 

I cannot say that I know that Ben is being detained by the state when I look at his position. Far from it. I agree with Mr Mullins that he is not. First, he is not under continuous supervision. He is afforded appreciable privacy. Second, he is free to leave. Were he to do so his carers would seek to persuade him to return but such persuasion would not cross the line into coercion. The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act. Were that to happen then a range of reviews and safeguards would become operative. But up to that point Ben is a free man. In my judgment, on the specific facts in play here, the acid test is not met. Ben is not living in a cage, gilded or otherwise.

Famously, a group of professionals working in the field were given case studies about various scenarios and asked to conclude whether each was, or was not, a deprivation of liberty and there was barely any consensus. Have things got better post Cheshire West, or are we now arguing relentlessly about ‘acid tests’ and ‘freedom to leave and ‘continuous supervision”?

 

What I like most about Mostyn J is that you never leave one of his judgments without having learned something new. There are not many people who would produce both poetry and an American case about hard core pornography to prove a point, but Mostyn J is one of them, and he has enriched my day by doing so.  I also believe that this case is now legal authority for both the elephant test and ‘if it looks like a duck’ and should you need to demonstrate those principles, you may pray this case in aid.   [The formulation of the duck principle is expressed in slightly different wording to the traditional use, so beware of a pedant challenging you]

 

  1. The continuing legal controversy shows how difficult it is to pin down a definition of what is a deprivation of liberty (i.e. detention by the state) as opposed to a restriction on movement or nothing beyond humane and empathetic care. It has been said on a number of occasions by the Strasbourg Court that the difference is merely one of degree or intensity, and not one of nature or substance (see, for example, Stanev v Bulgaria (2012) 55 EHRR 22 at para 115). Ultimately I think that whether a factual situation does or does not satisfy the acid test is likely to be determined by the “I know it when I see it” legal technique. That received its most famous expression from Justice Potter Stewart in the US Supreme Court in Jacobellis v Ohio (1964) 378 U.S. 184, an obscenity case, where he stated “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” The technique has been expressed in zoological metaphor. In Cadogan Estates Ltd v Morris [1998] EWCA Civ 1671, a case about a claim for a new lease, Stuart-Smith LJ stated at para 17 “this seems to me to be an application of the well known elephant test. It is difficult to describe, but you know it when you see it”. Another expression is the well known aphorism attributed to the American poet James Whitcomb Riley who wrote “when I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck”. The case of Stanev was perfectly obviously one of rigorous state detention. In describing Mr Stanev’s circumstances the court referred to the “severity of the regime”. The complainant was held in dire conditions in a remote compound enclosed by a high metal fence. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives. The complainant needed prior permission to leave the compound, even to visit the nearby village. He had been denied permission to travel on many occasions by the management. In accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. The complainant had in fact been arrested by the police on one occasion.
  2. One does not need to reach for many legal tomes to realise that this was unquestionably a case of deprivation of liberty. The Strasbourg court knew it when it saw it.
  3. In KC v Poland [2014] ECHR 1322 a 72 year old widow, under the apparent care of a social guardian, who had previously been declared to be partially incapacitated, was placed by a court, against her wishes, in a care home on account of chronic schizophrenia and a disorder of the central nervous system. She could ask for permission to leave the care home on her own during the day. When she asked for the court order to be varied to allow her to leave for one hour a day to go to the shops and to allow her to stay in her room all day, this request was declined by the court on the basis that it was provided for by the internal regulations of the care home. The Polish government’s position was that she had never requested permission to leave on her own even for a short period of time. However, and unsurprisingly, the government did not contest that she had been deprived of her liberty under Article 5. It knew it when it saw it. The court, inevitably, agreed. At para 51 it stated:

    “In the present case, although the applicant has been declared only partially incapacitated and although the Government submitted that she could ask to leave the social care home on her own during the day, they did not contest that she had been deprived of her liberty. She was compulsory placed in the social care home, against her will, on the basis of a court decision. Therefore, the responsibility of the authorities for the situation complained of is engaged.”

  4. In my opinion that was a very obvious case of state detention

 

The problem with “I know it when I see it” is that it is going to be completely subjective. As Mostyn J pointed out, if a Local Authority worker or lawyer decides “I know it when I see it” and this isn’t a Deprivation of Liberty, and someone later challenges that it was and was an unlawful one, that then hangs on what a Judge will decide when he or she runs the “I know it when I see it” exercise. If they disagree with the LA, financial consequences will rack up. It is risk and uncertainty, and who wants risk and uncertainty?  (other than casinos and fans of Game of Thrones)

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“Immigrants who beat their children should get special treatment”

Posted on June 11, 2015 by suesspiciousminds

 

This was the headline of a piece in the Daily Telegraph, similar stories in other newspapers.

http://www.telegraph.co.uk/news/uknews/immigration/11663029/Immigrants-who-beat-their-children-should-get-special-treatment-says-judge.html

 

It ticks all of the boxes for a Telegraph story – we have here a High Court Judge (and as she is female, for some reason it is considered appropriate to set out within the story her marital situation and how many children she has), social workers, ‘secret’ family Courts and immigrants being treated more favourably than UK nationals. It’s a great story for the Telegraph.

 

The story leads with this

Immigrants should be allowed to “slap and hit” their children because of a “different cultural context” when they are new arrivals in Britain, a High Court judge suggested yesterday.

and it has some quotations from the Judge, and a bit of rent-a-quote from a politician.

 

Is it accurate?

Well, I don’t think is misleading. I don’t think that the Judge intended to convey that meaning, but the meaning that the Telegraph have derived from it is the fault of the judgment not the fault of the reader. I also don’t think that the Telegraph have sensationalised it or are wrong to report it. I don’t think that it says everything that the Telegraph believes that it says, but I think that their reading of it is one that a common sense reader would derive from it.

 

Re A (A child: Wardship) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1598.html

 

[I’ll quickly hold up my hands – I read this on Tuesday when it came out and my reading of it was that the case was far too dull to blog about – I missed paragraph 67 when I first read it. I’m like the guy who decided that Fred Astaire ‘can’t sing, can dance a little’ ] 

This is the paragraph that has caused all of the fuss

 

67.I do not believe there was punitively harsh treatment of A of the kind that would merit the term physical abuse. Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. In this instance, and on the basis of his ABE interview, A did not appear to have suffered more than sadness and transient pain from what was done to him.

 

A common sense reading of that is that we must make allowances in law for a parent who has just come to this country and that social workers should treat them differently. Which is the Telegraph’s take on it. They aren’t misquoting or misleading – they report what the Judge said and then report how an ordinary person would read those remarks.

 

The allegations were being made in private law proceedings (the argument being between mum and dad , rather than public law proceedings where the argument would be between social workers and parents).

The allegation made by mum was that the father had slapped the child twice. The child  when interviewed by the police said that dad had hit him with a belt, causing him pain and leaving marks which went quickly. Father said that he smacked the child as part of normal discipline.  The job of the Judge therefore was to decide which of these three versions (if any) was correct, and what impact that this would have on any decisions about whether the child should see his father and spend time with him.  [There were also a lot of allegations between mother and father as to domestic violence, and the Judge found that father had been violent to the mother including an attempt at strangulation with a head scarf and a violent push]

 

  1. One of the last matters for discussions arises from A’s physical assault allegations comprised principally within his ABE interview. In the context of a question from the officer about what he did on 17 October – and seemingly out of the blue – A said, “I did my homework … With his belt, he kind of hits me.” A little later, A is asked, “OK and how does he hit you?” A who was by then looking directly at the officer, said, “With a belt … A long belt.” He described being hit on his back and leg and said it was “kind of fast, to hit me.” Asked how he felt, A said “Sad … But I’m little brave … I’m not scared of him… But normally I’m sad.” In response to questions as to whether it hurt, did it leave marks and whether they ‘went quite quickly’, A did not reply verbally but nodded his head to all three inquiries.” Towards the very end of the interview, A responded affirmatively when asked if he missed his father.
  2. The father wholly denies ever striking A with a belt or otherwise. He described with evident emotion that if he could not see A he does not “want to live.” He can “only say (he) never hit A with a belt” and he is “dying to see A.” The father also described what he meant by a “slap or a tap” the words used when he was interviewed by the police in connection with A’s allegations. He said this was not to slap A “badly but to keep him disciplined.”

At the end of my determination on this issue I make the following observations. I did believe the mother when she told me she had not said anything bad about the father although it had been for her “really horrible being separated from her son.” The mother also said that during the time they were together, she had seen the father slap A twice and there had been occasions when he had been pushed and shouted at. She had not told her Solicitor because there had been “so many things.”

 

The conclusion of the judgment is that what father did to the child was not something that amounted to physical abuse (and thus, that it would not amount to any criminal offence).

 

The law in this country is that it is lawful to lawfully chastise a child (that’s a bit redundant, but I was trying to use the emotive word ‘smack’). The line is crossed where the physical discipline becomes a criminal offence.

The Telegraph piece says:-

The Children’s Act 2004 made it illegal for parents in England and Wales to chastise children if blows led to bruising, swelling, cuts, grazes or scratches, with the offence carrying up to five years’ imprisonment.

This is what the Children Act 2004 actually says (it is much, much much less clear cut than the Telegraph summary ) – picking through all of the legal jargon, what it says is “If you have hit a child in such a way that a criminal offence may have resulted, it is not a defence to cite reasonable punishment’  – for most of those offences, the impact on the child would be that the injury caused bruises, marks or fractures (ABH, GBH) or cuts or breaks to the skin (Wounding), but the offence of cruelty or battery don’t require those things.

If you were thinking that the Telegraph has given you legal advice that you can beat your child as long as you don’t leave marks or break the skin, you’d be wrong.  [For example, the sack of oranges scene in the Grifters]

 

 

58Reasonable punishment

(1)In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.

(2)The offences referred to in subsection (1) are

(a)an offence under section 18 or 20 of the Offences against the Person Act 1861 (c. 100) (wounding and causing grievous bodily harm);

(b)an offence under section 47 of that Act (assault occasioning actual bodily harm);

(c)an offence under section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under 16).

(3)Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.

(4)For the purposes of subsection (3) actual bodily harm has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861.

(5)In section 1 of the Children and Young Persons Act 1933, omit subsection (7).

 

 

Right, so let’s get back to that first paragraph of the Telegraph story – the lead of the whole article

Immigrants should be allowed to “slap and hit” their children because of a “different cultural context” when they are new arrivals in Britain, a High Court judge suggested yesterday

 

I think that it is a fair reading of the case that the Judge suggested that. I don’t think it is quite what she meant, but it is a common-sense reading of what paragraph 67 says.

If, however, someone reads this to mean that immigrant parents have a ‘get out of jail card’ or that they can hurt their children in a way that would get a British parent into trouble but they would get off scot-free, and that this is now the law in this country, that wouldn’t be right.

Firstly, as the case was not decided on that particular point, the remarks would not be binding on any other Court.

Secondly, the Judge wasn’t deciding here that as a matter of principle different standards apply. She was taking into account the individual circumstances of the parents in deciding whether what happened to this child constituted something that would be a barrier to the father having contact with him.

 

I can’t defend the case entirely. I think it is significantly flawed. When I read it, I can’t ascertain whether the Judge found that

a) As the child said in the police interview, father hit him with a belt on his back and legs and that it hurt, it left marks but the marks went quite quickly; OR

b) as the mother said, she had seen father slap the child twice; OR

c) as the father said, that he slapped or tapped  the child as reasonable discipline

 

It is such an important point that it is really quite problematic that the Judge doesn’t say whether she concluded that the child’s account was right or that father’s account was right.

For example, if the Judge had said :-

I find that the father did smack his child on the back of the leg for being naughty, but that this caused no lasting harm to the child.

 

I suspect that it wouldn’t really be in the Press to the extent that it is. I certainly think that the majority of the Telegraph’s readers (and possibly mine too) would nod in agreement with that sentiment.

Whereas the reading of

The father hit his child with a belt, but that’s okay because he was an immigrant

is obviously newsworthy.  [And the readership of the Telegraph and my readers would not be nodding in agreement, but reaching for either a pen, a keyboard or a revolver]

 

And because such an important piece of information is not clear in the judgment (we know that the Judge concluded that WHAT happened to the child was not that serious, but not WHAT she concluded had happened), it does cause legitimate confusion.

The inference has to be that it was the hitting with a belt that she believed happened (since if it was the smack for reasonable punishment, then most of paragraph 67 doesn’t need to be said at all, since this would be within the boundaries of acceptable parental behaviour, whether the parent was from Clapham or Calcutta)

and that then leads to the Press reporting that the Judge is suggesting that a parent from Calcutta in this situation is to be treated differently to a parent from Clapham.

 

Going back to my original question – is the Telegraph piece accurate?  Well, it isn’t inaccurate. The judgment here is unclear about what father was found to have done, but then goes on to excuse what he has done. Part of that is because the effect on the child was very temporary and transient * , but part is the cultural issue set out in paragraph 67.

 

* There might be those who consider that this is not a helpful way of looking at it – a child can recover from the physcial signs of  a bruise on the face in a few days, but the emotional impact can be much more than that. I haven’t been a child for many many years, but I can still vividly recall each and every occasion that an adult struck me in rage as a child.  Whereas the reasonable smacks I got for being naughty are long forgotten. The bruises from a violent assault fade much more easily than the memories.

I think that paragraph 67 is not terribly helpful, and if an argument was being developed in that way it needed more space within the judgment.  I don’t read anyone within the case as having run the argument as “Father did X, but we do X in India”

Father’s case was that what he had done was reasonable chastistment (in Clapham) not, that what happened might have been unreasonable in Clapham but it was reasonable in Calcutta.

 

I’m not sure that the controversial parts of para 67 needed to go in the judgment at all, or play any part of the decision-making. This wasn’t one of those cases (and they do happen) where a parent says “I did do X, and I now know that X is considered wrong in this country, but it isn’t where I’m from”

 

It would be worrying if as a result of the reporting of the story  (and I’ll stress that I don’t think the Press are either inaccurate or irresponsible in their reporting on this), that social workers formed the view that if they are told that a recently arrived immigrant had hit their child with a belt, they should not take that seriously and not take action if they consider it appropriate.  Or that a lawyer thought that as a result of this case, that wouldn’t be capable of establishing threshold.  It would also be worrying if a parent thought that they are being treated more harshly than a parent just arriving from another country would be.  OR that a parent who is in a relationship with someone recently arrived from another country thought that it was okay for their partner to discipline the child with a belt.

For me, the cultural issues are about understanding, rather than condoning. There are parts of the world that tolerate, support, believe in Female Genital Mutilation, and we can understand that parents who have arrived in the UK might have those views, but we can’t condone them acting upon them.  We have to judge all parents on the standards of what is acceptable and lawful in the UK, though we can understand that those standards can be different in other countries.

 

 

 

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