Author Archives: suesspiciousminds

Experts and fairness

Posted on June 11, 2015 by suesspiciousminds

The Court of Appeal decision in Re C (a child) 2015 raises a number of important practice points. There are some important NEW things, which I’ve indicated with a NEW   subheading.  The NEW thing on litigants in person (that the judicial training and best practice is for them to take the oath at the start of the hearing so that all of their representations are effectively evidence and on oath), is a substantial new development. I can also see that where one party is represented and the other not, that the unrepresented party will perceive some unfairness in one party having sworn that everything they say in Court shall be the truth, the whole truth and nothing but the truth, and the other party not having given the same oath.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/539.html

 

This arose from a dispute over contact (Child Arrangements) between a mother who was represented by counsel and a father who was appearing in person and for whom English was not his first language. The case came before the Magistrates and mother, through counsel, made a request that father should undertake a psychological assessment.

There was no formal application and none of the requirements of Part 25 had been complied with.  Nor did the Court approach it on the correct statutory basis – that it is for the person seeking an expert to be instructed to satisfy the Court that it is necessary.  This was appealed to a circuit Judge, who upheld the decision.

 

As the Court of Appeal said

It is a matter of some surprise that both of these decisions were made as if the statutory scheme and the Rules simply did not exist. That is unacceptable and it is necessary to explain why, so that the same error does not occur again.

 

Some very quick practice points:-

 

1. The father could not be compelled to undertake a psychological assessment against his will. The original order was that father should  ‘submit’ to a psychological assessment, telling words.

The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

 

What a Court can do is indicate that a psychological assessment is necessary, and invite a parent to participate in it, and advise the parent that they may not be able to allay concerns if they don’t participate. I.e if there is compelling evidence that a parent has a psychological problem and that instructing a psychologist would allow that evidence to be countered, or a proper understanding of the nature and degree of the problem and prognosis for change isn’t available, that might remain a concern of the Court when it comes to making final decisions.

NEW

The Court of Appeal suggest that it is good practice to include in the order a judicial warning about the consequences to the party in not engaging with the assessment (which must include parents who have agreed to the assessment, in case they do not turn up to appointments)

 

Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

The Court making an order compelling father to submit to an assessment that he did not agree to submit to, in itself would have been sufficient to win the appeal – since father wasn’t in agreement, the order made was improper.

2. The costs were split equally, even though father was a litigant in person (and would thus be paying his share himself, whereas mother’s would be on legal aid) without any exploration of whether he could afford it.

The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

 

3. The Court wrongly approached it as being the father’s obligation to show why the assessment wasn’t necessary. AND in their reasons simply recited the mother’s submissions without engaging in any analysis

  1. A flavour of the proceedings can be ascertained from this exchange between the chairman of the bench and the father in response to Ms. Slee’s application and submissions:

    Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.

    A “But that is wrong”.

    Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.

  2. The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

 

AND

  1. The written reasons for the decision given by the magistrates are as follows:

    “We agree with [the mother] that any report in these proceedings should be independent and instructed by the court not by either of the parties. We consider that a report on [the father] is necessary in order for us to progress contact further. We have been presented with a number of different applications in this case and we have made little progress since February 2014. We need to ensure that contact is safe for [the child] and if contact progresses we will need to be sure that [the child] can be safe in the care of [the father] outside of a contact centre. We have concerns about the way in which [the father] is dealing with this application, for instance the videoing of [the child] within the contact centre, a complete breach of contact centre rules and the number of applications made to this court with the inability to focus on the contact application. We therefore consider that in order to rule out any psychological issues, we require a report in relation to [the father]”.

  2. That was no more than a recital of the mother’s case without analysis. It was not an analysis which had regard to the evidence or the criteria set out in s13(7) of the 2014 Act. The magistrates did not reason why they disagreed with the cogent advice of the FCA as they were obliged to do having regard to the terms of the statutory scheme and the procedural code.

4. The Court of Appeal will be slow to intervene on case management decisions of a Court, but where they have not followed the procedure and law, the Court of Appeal will intervene if asked.  Therefore, a properly formulated Part 25 application is essential  (particularly if the instruction is contested)

I entirely accept that case management is an art best practised by the judge who has conduct of the proceedings and that this court should be very slow indeed to intervene to substitute its own view. That said, welfare and procedural justice are key components of the task and if they are missing this court will be bound to intervene. I need go no further than to repeat the conclusion of the President at paragraph [37] of Re TG:

“37. None of this, of course, is intended to encourage excess on the part of case management judges or inappropriate deference on the part of the Court of Appeal. There is, as always, a balance to be struck. As Black LJ went on to observe in RE B, para [48]:

“Robust case management…..very much has its place in family proceedings but it also has its limits.”

I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted “justly”, “expeditiously and fairly” and in a way which is “proportionate to the nature, importance and complexity of the issues”, but never losing sight of the need to have regard to the welfare issues involved.

 

NEW

5. Protection for litigants in person

 

The Court of Appeal discussed the training that the judiciary have had to protect litigants in person. They point out that it is good practice to put the litigant on person on oath at the start of the hearing, so that all of their representations are classed as evidence. Not having had the judicial training, I was unaware of this. It is important to know this, so that if you are in Court with a litigant in person you know whether the Court has taken that step (or formally decided not to and set out a short explanation as to the reason for the deviation)

  1. I shall digress for a moment to consider the means by which a fair process can be afforded to a litigant in person whose language is not English, particularly in a hearing where the other party is represented. There are professional statements of good practice which already exist to ensure that a party in this position is afforded proper access to justice. The implementation of the family justice reforms has included teaching provided by the Judicial College to judges about that good practice. Magistrates sit in the Family Court as judges of that court in accordance with the Crime and Courts Act 2013. They are afforded the same teaching as professional judges. I shall simply take note of the training they have had. The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
  2. The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
  3. This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.

 

 

The really sad thing in this case is that there have been three hearings about a psychological assessment, when it appears that the chief complaint against father was that he took photographs during his contact. That particular nut was cracked with a hydrogen bomb rather than the proverbial sledgehammer.

 

  1. This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the FCA had concluded that there were no safeguarding issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The FCA’s aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.
  2. In that context what had the father allegedly done? He had photographed his son in the contact centre setting which had led to the sessions being suspended because that was a breach of the centre’s rules. He had made an allegation about the maternal grandfather which I think amounted to excess chastisement (which is an allegation not yet been determined by a court), and he had made his applications to the court. As the magistrates’ reasons record he was criticised by the mother for his behaviour during contact and for his inability to focus on and take advice about the applications before the court.

 

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Inherent jurisdiction – extending an injunction past 18th birthday

Posted on June 8, 2015 by suesspiciousminds

 

Regular readers will probably know that I feel uncomfortable about phrases like “the powers of the inherent jurisdiction are theoretically limitless” and that cases are developing which extend the previous usage of the inherent jurisdiction a bit further, and then those cases are relied on next time around to push it a little further still.  It is mission creep, and it makes me nervous.

In this case, Baker J  (who makes my Top Five Judge list, comfortably), had to decide on a mother’s application to extend an existing injunction that prevented a father contacting his daughter or coming near her, past the child’s 18th birthday. In effect, for the rest of her life.

Re SO (a Minor) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed145192

 

I am somewhat puzzled that the child was not represented in these proceedings, as the orders were all about her, and she was nearly 18 and thus presumably in a position to have a view even if it was felt unsuitable for her to attend Court.

The rationale behind wanting to protect the child was decent. The father had been convicted of offences of arranging to have the mother killed, and continued to deny those offences. One can see why the Court would want, while SO was a child to protect her from her father.  He is palpably not a nice man. I can absolutely see why the mother would be genuinely very fearful of him and genuinely want to protect herself and her child from him.

The issue for me, whilst not really having any sympathy for the father in this case, is whether the State, in the form of the Court should be making orders protecting SO from things as an adult on someone else’s request rather than SO making an application to the Court for protection.

 

The injunction sought (and made) was in these terms, and I think that these are orders that could easily have been made by way of SO making an application for a non-molestation order if she decided she wanted that protection.

“It is ordered that

(1) the respondent, whether by himself or instructing, inciting or encouraging any other person be restrained until further order from

(a) using or threatening violence or attempting the same against the applicant or S;

(b) intimidating, harassing or pestering the applicant or S;

(c) coming within a 50 miles radius of, entering or attempting to enter, any property at which he believes, knows or suspects the applicant or S to be present or living or of any educational establishment or place of work at which he believes, knows or suspects the applicant or S may attend or work;

(d) communicating or making contact with the applicant or S by letter, telephone, Skype, text message, email, any means of electronic communication, or through any social networking sights including Facebook, save through the offices of Messrs Thomson, Snell and Passmore, the applicant’s solicitors;

(2) any person on whom this order served, or who is aware of its terms, is restrained until further order from making disclosure to the respondent, or to any other person on his behalf, which would in any way identify the current whereabouts of the applicant or S, from identifying to the respondent the name or identity under which the applicant and S may be known or is currently living and/or registered;

(3) the applicant and/or her solicitors are authorised to disclose this order and any other information relating to these proceedings to:

(i) the police in the United Kingdom;

(ii) the Home Office, and any agency acting on its behalf, and any relevant government authority in Scotland;

(iii) the Department of Community Services in Australia and

(iv) the Australian Federal Police, New South Wales Police Force and any other relevant police authority and state correctional services, whether publically funded or privately managed.

An obvious question arises about the Australian element, and that might be a reason why not to use the statutory power of a Non-Molestation Order – because there might be problems with enforcing that if the father was living in Australia.  But hold on, it appears that everyone involved was living in Australia

Meanwhile the mother and S, in respect of whom of a series of non-molestation injunctions have been made within the wardship proceedings dating back to an order of Black J (as she then was) dated 14th June 2000, themselves moved some years ago to Australia, living at an address which, it was assumed, was unknown to the father. S has flourished in her mother’s care in Australia and has now embarked upon tertiary education, following the conclusion of the schedule 1 proceedings in the course of which I made a substantial order for her financial provision. Nonetheless, both the mother and S have continued to live under the shadow of the threats by the father to the safety of the mother and, indirectly, S.

[I’m somewhat mystified as to why a High Court injunction in England is the best route to protect an 18 year old girl living in Australia. It is legally permissable because:-

(4) When, as here, the court has jurisdiction at the start of wardship proceedings on the grounds that the child is habitually resident in England and Wales, that jurisdiction continues until the conclusion of the proceedings, notwithstanding the fact that the ward has become habitually resident elsewhere. That is sufficient to provide jurisdiction in this case for the making of the orders sought by the applicant. In addition, the court may have jurisdiction on the grounds that the ward is a British national. In either case, the question is, as Baroness Hale observed in Re A whether it is appropriate to exercise the jurisdiction in the particular circumstances of the case. ]

You will note from the terms of the order, which the High Court made “until further order”  (i.e possibly for the rest of the lives of those involved) that it would prevent the father replying to any attempt by his daughter to contact him.  I’m not sure if she would ever want to, but it seems odd that if she initiated contact he would be unable to respond.  Actually, SO would be in breach of this order if she contacted her father and told him her address or new name…

As a matter of law, I think that Baker J was right to rule that he had the power to make such an injunction on an adult  (I just think that the law that has laid those foundations is wrong, and built on a gradual move away piece by piece from the spirit and intent of the inherent jurisdiction. All of the individual decisions have been the Court doing what they thought was best for a person, but autonomy means that where a person has capacity they and they alone have the right to decide what is best for them. )

Let’s look at, for example, the case that set the Inherent Jurisdiction for adults hare running in the first place.

Re SA 2006  http://www.familylawweek.co.uk/site.aspx?i=ed1678  when the issue of Forced Marriage was just becoming apparent and there was not yet a statutory mechanism to protect people from it. The inherent jurisdiction had been used to prevent a minor from being forcibly married, and in Re SA Munby J (as he then was) had to decide whether that protection could continue into adulthood.

“It would in my opinion be a sad failure were the law to determine that [the court] has no jurisdiction to investigate and, if necessary, to make declarations as to T’s best interests to ensure that the protection that she has received belatedly in her minority is not summarily withdrawn simply because she has attained the age of 18.””

But in the same judgment, this passage appears

“There is, however, in my judgment a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.”

 

There’s no evidence here that SO lacks capacity to make decisions for herself about whether she wants to see her father or be contacted by him, or whether she might want to apply for legal orders to protect herself.  I am struggling to see why the Court should use its inherent jurisdiction to make an order that affects the rest of SO’s life when she has not applied for such an order.

 

{I can see why the desire to protect her from something that most people would just as being an unhealthy or unpleasant influence leads to the order being made, but it is not the job of the State to protect adults with capacity from unpleasant events. If SO wants to be left alone by her father and he is not likely to acquiesce to her wishes, then there’s a statutory remedy – non-molestation order. If she applies for it, the State in the form of the Court makes a decision about whether the order is justified. But here the State is deciding for someone who has capacity and is about to become 18 something that will have an impact on her life because it thinks that is what is best for her. I can also see why the mother and the Court felt that the father was so dangerous and toxic that they didn’t want to put SO through the risks of making her own application.  }

 

28. In my judgment, it is imperative that this court makes the order within the wardship jurisdiction, or alternatively under its inherent jurisdiction to protect vulnerable adults, extending the protection provided hitherto beyond S’s 18th birthday. In the circumstances of this case, it is essential that, in order to ensure the protection is extended for S, the mother is also kept within the ambit of the injunction.

 

There is nothing in the case to suggest that SO herself is  a vulnerable person, that there are any inherent characteristics in her that are vulnerable – the reason she is ‘vulnerable’ is because of external things not because she herself has any inherent vulnerability.  She is not a vulnerable person, she’s a person who happens to be vulnerable because of external factors. It might seem a trivial distinction, but I don’t think that it is.

What prevents that line of thinking becoming that the State has the power to forcibly remove a woman from a violent partner? She has capacity to decide that she wants to be with that awful man, but she is ‘vulnerable’ because of the risks that he poses, so  can the inherent jurisdiction  decide that it would be best for her to be protected from that man? The powers are theoretically limitless – if she is considered vulnerable….

A twenty year old decides to have a relationship with a fifty year old who has had some criminal convictions including drug use. Her relatives disapprove and think that she’s vulnerable to getting used and ending up being broken hearted. Is she vulnerable? Can the State be asked to make injunctions to protect her?

A sixty year old man with a large fortune falls in love with a twenty five year old. The family are worried that he is being taken for a ride and that this girl is a gold-digger. Is he vulnerable?

It isn’t problematic or unreasonable in this case to say that SO is vulnerable and needs protection, but the concern is that this case becomes cited in the next case along to make inherent jurisdiction orders about adults who have capacity to decide things for themselves, and then that next case gets cited in the one after that, and so on.  It feels like the classic slippery slope scenario.  As a matter of law now, the inherent jurisdiction is a theoretically limitless power, but should that be the case?

At the very least, when the Court is using such a theoretically limitless power, shouldn’t there be a very detailed analysis of proportionality and necessity, considering article 8 of the Human Rights Act?

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Medway case part 2 – a lot of practice issues

Posted on June 3, 2015 by suesspiciousminds

Following on from the last blog – I don’t often split case discussions, but in this one I felt that the issues over the foster carer and recording was worth a piece on its own.

 

This piece now tackles some of the many practice issues raised by Medway Council v A  2015 http://www.bailii.org/ew/cases/EWFC/OJ/2015/B66.html

 

Let us start with our old friend section 20

 

 

  • 6 On 6.8.14 the SW claims she contacted the Maternal Grandmother and Mr S to see if alternative arrangements could be made within the family to support them. Issues have been raised about her manner of doing so, and whether appropriate support was offered. I make no finding as it has not been possible to explore this fully, but I note that there were several meetings that took place on this date and the SW will have wanted that information beforehand and so may have sounded abrupt and left little time for matters to be considered.
  • 7 By the end of that day the parents had signed a section 20 agreement which they and Mr S thought simply covered a two week period in a mother and baby foster placement. It is clear from the notes in the medical records, and the SW accepts, that the issue of Mother’s vulnerability was raised by Mrs Rose before Mother signed the section 20 agreement. The SW also accepted that in addition to the hospital’s concerns, Mr S and the Maternal Grandmother had confirmed that Mother had a learning difficulty. The SW accepted that it was not appropriate to have obtained Mother’s signature to an agreement under s20 in such circumstances where her cognitive abilities had been questioned by other professionals and no assessment had taken place. I also note that it was obtained prior to the strategy meeting taking place on 7.8.14.

We now know that the mother’s IQ was 54, making it extremely questionable that she had capacity to sign a section 20 agreement – certainly without it being really carefully explained to her. In any event, the parents understanding was that they were agreeing to a two week placement and the placement was actually intended to be for twelve weeks, breaking down after 40 days. This, once again is not a fair and proper use of section 20.

 

  • The guidance of Hedley J in Coventry City Council v C, B, CA and CH [2012] COPLR 658 is as follows, at paragraph 46: “i) every social worker obtaining consent to accommodation of a child from a parent (with parental responsibility) is under a personal duty to be satisfied that the person giving consent does not lack the required capacity; ii) the social worker must actively address the issue of capacity, take into account all the prevailing circumstances and must consider the questions raised by Mental Capacity Act 2005, section 3 and in particular the mother’s capacity to use and weigh all the relevant information; iii) if the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion. Advice should be sought from the social work team leader or management.”
  • I acknowledge that the Father signed the section 20 agreement, but this is not good enough (cf s.20(7) Children Act). I have been appalled at the reliance placed by Medway on a section 20 agreement signed by the Mother. She was encouraged to sign it on 6.8.14 without any assessment of her learning difficulty or her capacity. This is wholly unacceptable when the SW knew from the hospital staff and family members that Mother had a learning difficulty and appeared to have problems with her understanding.
  • Medway should not have waited to rely on assessments prompted and undertaken by another agency. Given the anxieties expressed by Mrs Rose at the meetings on 6.8.14, I consider that a section 20 agreement should never have been pursued that day.
  • While I accept that subsequent assessments, by the Learning Disability nurse and by Dr Conning, have suggested that she has capacity, these should not vindicate this practice of relying on a section 20 agreement that was obtained beforehand. In any event I do not consider that an Learning Disability nurse’s assessment on the ward should have been relied upon in relation to the import of a section 20 agreement by which a parent agrees to major interferences with the family’s life. And I further note that Dr Conning’s assessment of the Mother’s capacity in October 2014 was couched in terms of having capacity in the context of her being supported by her legal team and her husband (also legally advised by then).
  • It is likely that the cognitive assessment appointment two weeks after the section 20 agreement was signed, on 21.8.14, followed from the Resource Panel’s concerns expressed at the meeting on 19.8.14, and there appears to have been no attempt by the SW or her team manager to arrange one before then. Although I acknowledge that efforts were then made to obtain a cognitive assessment of Mother on 21.8.14 and 2.9.14 that were not successful due to the Mother’s non-attendance, nonetheless it meant that the section 20 agreement that was extended on 3.9.14 was equally flawed.
  • Mr Crimes’ assessment was sent on 8.9.14. He assessed Mother as having a full IQ score of 54, and as he noted in the accompanying email to the SW this was about the lowest level of functioning he had ever assessed. This was not an assessment of her capacity but set out a grave picture of impairment of her ability to comprehend and make decisions about complex information. Mother was not then assessed as to her capacity until 10.10.14 which was within the care proceedings and with the benefit of legal advice and representation – an important difference. Given the information from Mr Crimes on 5.9.14, Medway should immediately have taken steps in early September and not continued to rely on a section 20 agreement obtained from a vulnerable new mother with this degree of learning disability.
  • Several difficulties arise for vulnerable adults in these circumstances. They are unlikely to want to appear to be difficult or obstructive and so they may well agree to section 20 arrangements that are not necessarily appropriate. Once they have agreed to such arrangements, and are in a mother and baby foster placement as in this case for example, there is a natural impetus to remain with the child and so be locked into a continued agreement to the arrangement. Most significantly, the use of section 20 agreements results in vulnerable adults coping with such circumstances without legal advice or representation.
  • This was compounded here by there being no referral to adult services and no input from social workers experienced in working with vulnerable adults and who are not focussing simply on child protection issues, but are able to bring their knowledge and experience to bear on the case.
  • Just over 40 days passed between the section 20 agreement and the issue of proceedings. It was in this period that the Mother was placed in an inappropriate placement, isolated from her family and increasingly deprived of the support of her husband, and moving towards the breakdown of the placement. I acknowledge that this is not the length of time experienced by the families in the recently reported cases of Re P (A child: Use of section 20) [2014] EWFC 775 and Northamptonshire and DS [2014] EWHC 199 (Fam), but the real significance is this: if it had been properly recognised that section 20 should not be used in these circumstances and proceedings had been issued at an earlier stage, it is likely that arguments about appropriate placements and assessments would have been raised by the parents’ legal representatives, and an inappropriate placement and lack of assessment and ultimately early separation of baby A from his parents may well have all been avoided.

 

 

Learning difficulties

 

We touched in the last piece on the failure to find a specialist placement for the mother, and as you can see from the passage above, no referral was made to Adult Services to get help for mother in her own right, though it must have been apparent that she needed it. There simply wasn’t proper thought given to what the mother’s difficulties meant in terms of how she should be supported, helped or treated

 

 

  • I have set out in Appendix A and B to this judgment respective links to the 2007 DoH Good Practice Guidance on working with parents with disabilities which is cited as a relevant resource in the 2015 Working Together Guidance, together with limited extracts from those documents (while of course recommending that these documents should be properly considered by those involved in this case in their entirety).
  • I also quote here from Mr Justice Baker’s analysis in Re X Y X (Minors) [2011] EWHC 402 (Fam):

 

“132. The last thirty years have seen a radical reappraisal of the way in which people with a learning disability are treated in society. It is now recognised that they need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice. This policy is right, not only for the individual, since it gives due respect to his or her personal autonomy and human rights, but also for society at large, since it is to the benefit of the whole community that all people are included and respected as equal members of society. One consequence of this change in attitudes has been a wider acceptance that people with learning disability may, in many cases, with assistance, be able to bring up children successfully. Another consequence has been the realisation that learning disability often goes undetected, with the result that persons with such disabilities are not afforded the help that they need to meet the challenges that modern life poses, particularly in certain areas of life, notably education, the workplace and the family. 133. To meet the particular difficulties encountered in identifying and helping those with a learning disability in the family, the government published in 2007 “Good Practice Guidance on Working with Parents with a Learning Disability”. In their closing submissions, Miss Ball and Miss Boye contended that such good practice guidance is required because there is little evidence of effective joint working between adult and children’s services and practitioners in each area rarely have a good working knowledge of the policy and legislative framework within which the other is working. They submitted that local authorities frequently do not take account of the fact that, if children are to be enabled to remain in their own families, a specialist approach to a parent with a learning disability is absolutely central to any work that is done, any protection which is offered and any hope of keeping the family together. The 2007 guidance points out, inter alia, that a specialised response is often required when working with families where the parent has a learning disability; that key features of good practice in working with parents with a learning disability include (a) accessible and clear information, (b) clear and co-ordinated referral and assessment procedures, (c) support designed to meet the parent’s needs and strengths, (d) long-term support where necessary, and (e) access to independent advocacy; that people may misunderstand or misinterpret what a professional is telling them so that it is important to check what someone understands, and to avoid blaming them for getting the wrong message; that adult and children’s services and health and social care should jointly agree local protocols for referrals, assessments and care pathways in order to respond appropriately and promptly to the needs of both parents and children; and that, if a referral is made to children’s services and then it becomes apparent that a parent has a learning disability, a referral should also be made to adult learning disability services. The guidance also stresses that close attention should be paid to the parent’s access needs, which may include putting written material into an accessible format, avoiding the use of jargon, taking more time to explain things, and being prepared to tell parents things more than once.”

 

  • And Wall LJ makes a relevant comments in P v. Nottingham City Council and the Official Solicitor [2008] EWCA Civ 462:

 

“175. It is, I think, inevitable that in its pre-proceedings work with a child’s family, the local authority will gain information about the capacity of the child’s parents. The critical question is what it does with that information, particularly in a case where the social workers form the view that the parent in question may have learning difficulties.’ 176. At this point, in many cases, the local authority will be working with the child’s parents in an attempt to keep the family together. In my judgment, the practical answer in these circumstances is likely to be that the parent in question should be referred to the local authority’s adult learning disability team (or its equivalent) for help and advice. If that team thinks that further investigations are required, it can undertake them: it should, moreover, have the necessary contacts and resources to commission a report so that as soon as the pre-proceedings letter is written, and proceedings are issued, the legal advisers for the parent can be in a position, with public funding, to address the question of a litigation friend. It is, I think, important that judgments on capacity are not made by the social workers from the child protection team.’

181. In the pre-proceedings phase local authorities should feel free to do whatever is necessary in social work terms to assist parents who may become protected parties. My view, however, is that this is best achieved by members of the adult learning disabilities team who do not have responsibility for the children concerned.”

 

  • It is clear that the purpose of the 2007 DoH Good Practice Guidance, namely to ensure that appropriate steps are taken to ensure services and training are in place to meet the needs of parents with disabilities, has yet to be met in Medway; and there appears to have been little if any awareness of the DoH Good Practice Guidance’s recommendations shown by Medway’s practice in this case.
  • In order to comply with their duties under s17 Children Act 1989 and in accordance with the good practice set out in the Guidance, this SW, her managers and this local authority should have:

 

  • Immediately made a referral to the adult services Learning Disability team and worked together with them to benefit from their advice, training, experience and resources;
  • Triggered an assessment of Mother’s abilities via the Learning Disability team;
  • Ensured the appointment of an adult care SW for Mother:
  • Identified and provided a specialist resource within a short period of time, in order to assess the Mother, and her and the family’s needs for support;
  • As soon as the parents expressed complaints about the placement, if not before, provided her with details of how to complain;
  • Investigated more fully the support options available from Father, friends and family.

 

Bundle-culling

 

The stipulations of Practice Direction 27A were followed in this case – care was taken to produce a bundle that did not exceed 350 pages in length. The problem is that despite that intention to comply with those stipulations, the culling exercise itself was problematic.

 

  • Thus at the outset of this hearing there were significant contested findings and the most serious of final orders sought against the parents. However, it became apparent that the preparation for such a hearing had been a mess, and there were a number of evidential and procedural issues that almost forced the adjournment of an entire final hearing that would have caused significant delay and extended further the separation of parents and child. I will discuss aspects of this case management as a separate final section of this judgment.
  • In short, it quickly emerged that the documents included in the 350 page PD27A compliant bundle prepared by Medway had been ‘culled’ (to use the term coined by counsel for Medway) from all the documents relating to the case. That cull had been undertaken unilaterally by Medway at the last minute and without agreement of the other parties, and they unsurprisingly considered it to be partial and incomplete. Last minute attempts were made by A’s advocate to prepare a more comprehensive bundle. Given the wide-ranging and serious counter-factual issues it was necessary to further expand the bundle during this hearing to include key missing documents. These have included the medical notes and social work case recordings for the key period of August to September 2014, but the bundle was also even missing the Mother’s statement and the Father’s first statement.
  • Additionally, the evidence has now included the statements and notes of the Safeguarding Midwife Mrs Rose and the Health Visitor Ms Gibson. These were directed by DJ Gill at the IRH held on 5.2.15 to be filed by Medway by 12.2.15 and they were named in the IRH order as witnesses to be heard at the final hearing, but their evidence and notes were still outstanding at the outset of this hearing (mid-April). I made peremptory directions to ensure, in A’s interests, that this evidence was available by day 3 of this hearing. Such directions were among those that should and could have been sought and made since the IRH but long prior to the final hearing. I was also obliged to direct that missing foster carer’s notes and social work recordings from the crucial period in August and September 2014 should be provided. I did not permit Medway to file a further statement by Ms Down, supervising SW from ISP (the agency providing the foster placement), as to what she had seen, heard or done regarding the foster placement. This application was made over a week after the final hearing had begun and on the morning that the foster carer was due to give evidence. Ms Down had not been one of the named witnesses in the IRH order, and I considered it was unfair for the local authority to be attempting to add further evidence and witnesses at this very late stage in the proceedings, and would risk an unnecessary and disproportionate adjournment.
  • I have read all the documents and evidence filed in this case and all the documents additionally prepared by the advocates (whom, I must add, have been of great assistance to the court in the challenging circumstances in which this final hearing came to court). I have heard evidence from Mrs Rose, Ms Gibson, Ms Anyimiah, Ms Barton, the foster carer Ms McG, Ms Stewart, the parents and the Children’s Guardian; and I have heard and read the parties’ submissions.

 

 

 

a) PD27A COMPLIANT BUNDLE – There is little point in Medway having created a bundle a few days before a final hearing by unilaterally selecting documents to fit the 350 page limit. Needless to say it was not considered fit for purpose by the other parties and I have already identified that it lacked crucial documents. This, and the various acts of non-compliance discussed elsewhere, betray an unacceptable failure by Medway to adequately prepare the case, to consider properly which documents would be required, to focus on the issues and the evidence, and to apply itself with care and a sense of the necessarily heavy responsibilities borne by applicant local authorities when applying for care and placement orders which have life-changing consequences for families.

b) In order to achieve a meaningful compliance with PD27A, the local authority should liaise with the other parties at an advocates’ meeting prior to the IRH to agree a provisional core bundle index. This will not only assist with the proper analysis of the issues and evidence in readiness for an IRH, and permit a proper resolution of issues at that hearing, but will also identify any further documents that may need to be the subject of an application to depart from PD27A and form a supplemental bundle, and which can be addressed and resolved at that IRH. I will be implementing directions to facilitate this approach at CMHs, but even absent such directions it is evident that a local authority applicant should be taking on this responsibility in any event.

 

That is the only way that the 350 page stipulation can actually work. However, that hinges on getting actual responses from the other advocates. If they have not yet read all of the source material and records, or are not going to be trial counsel, then there’s resistance to culling any document. I can see why – who wants to agree that “we don’t need the Health Visitor records” only to find later during exhaustive preparation that there’s something vital within them.  And rather than argue that those particular records must go in, it is simpler just to not agree to any culling at all.  Of course, if everyone came to an IRH having prepared their cross-examination and knowing all of the issues they would want to take up with witnesses at final hearing and what documents would assist, that would solve everything. But that’s not likely to happen. Preparation for an IRH IS different to preparation for a final hearing. For one thing, you’ve got all of the evidence, whereas all too often at IRH final statements from this or that party are still outstanding.  For another, counsel preparing for a final hearing knows that they are actually going to be the ones asking the question, whereas at IRH the final hearing will be listed at the Court’s convenience and it will be pot-luck whether counsel at the IRH will be free to do the final hearing.  [That’s a solveable problem by going back to the old system of listing a final hearing at the early stage of the case that everyone can work towards. That’s even more important given that we have to conclude cases by week 26, so only deciding to list a final hearing at week 20 is a recipe for disaster. Everyone bar HMCS thinks that is a good idea, but as HMCS don’t like it, it won’t happen]

 

 

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Tape recording paying off

Posted on June 3, 2015 by suesspiciousminds

Prepare to be very shocked. And then very angry.

At the Transparency Project Conference on Monday, a question was asked about whether parents should be allowed to tape record discussions and conversations. Both Lucy Reed (www.pinktape.co.uk) and myself gave the opinion that where a parent wants to do this, they should be able to.  Social work can involve an imbalance of power with a parent, and where a parent feels that they want their own record of what was said, or to be able to go back to it later to hear it again, they should be able to.  That’s my own opinion, I don’t speak (as always in this blog) for anyone other than myself. But I think that the mood and the ground has shifted on that.

It is easier and easier for a parent to record conversations, and I can absolutely see why they might want to do it. I’ve always said to social workers that they should never say or write anything that they wouldn’t be happy hearing being read out loud in Court. Good social workers have nothing to fear from a parent recording them. It is awkward, it feels uncomfortable, but if you put yourself in the parents shoes for a moment, that must be how they feel all of the time. If it levels the playing field a little, that may be a good thing.

This case, decided by Her Honour Judge Lazarus in Medway County Court is a good example of how that really paid off.  Without the recording, would the mother have been believed? Hard to know, but it certainly provided incontravertible evidence of the most appalling behaviour that she was subjected to by those who were supposed to be helping her.

The case involves a huge catalogue of errors and lessons that need to be learned, and I think I’ll tackle it in two posts rather than one.

This particular issue of recording (both written records and sound recording) is worthy of its own piece, I think

Medway Council v A and Others (Learning Disability: Foster Placement) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B66.html

 

The case involved a mother with a learning disability, and an IQ of 54, who was British but of Indian origin.  The case began very poorly with the Local Authority placing the child in care through a section 20 agreement.  It seems that the lessons about misuse of section 20 are still not being learned. She eventually went to a mother and baby foster placement. There were arguments about whether that placement was the right sort of placement for someone with the mother’s needs – it wasn’t a specialist placement or one experienced in teaching and supporting parents with learning difficulties or disabilities.

 

  1. I find, and the SW accepted, that this was not an appropriate placement. I accept that Ms McG is an experienced foster carer and has successfully cared for children including her current charges for many years. I also accept that in the first couple of weeks she described getting on very well with the parents. However, Ms McG was not a specialist foster carer with specific training and/or expertise in working in partnership with parents with learning disability, as is recommended in the DoH Guidance (at 2.2.15). This placed A and the Mother, and indeed Ms McG, at a disadvantage which it was Medway’s responsibility to avoid. Ms McG explained that she underwent two days training a year as a foster carer, and that this contained elements relevant to learning disability such as having to speak slowly and make sure that parents understood. It was absolutely clear from her oral evidence that any comprehension she had of Mother’s difficulties was extremely limited. She described her as ‘unwell’ or that ‘she wasn’t well’. And she also, at the strategy meeting described the Mother as trying to ‘turn the tables on me’. She repeated this in her oral evidence, saying that Mother was ‘devious’, and ‘building [a case] up so that she would be removed from the house’ and that her actions had been ‘calculated to provoke me’. This implies a degree of cleverness, cunning and forethought that it is clearly beyond the Mother’s abilities, and thoroughly demonstrates Ms McG’s lack of understanding of learning disability. It is clear to me that Ms Mc G’s lack of experience and understanding in this area, and the attitude to Mother’s learning disability that she betrayed in her evidence, must have meant that her interactions with Mother were unlikely to have been sympathetic to Mother’s needs and therefore unlikely to have been successful in supporting Mother.
  2. I also accept that it was not ideal to place Mother in a non-Muslim household. While Ms McG had a Muslim teenager placed with her, this is vastly different to living in a Muslim household and being in an environment geared to and familiar with the practices and expectations of a very different culture. Ms McG was asked about her accommodation of Mother’s needs as a Muslim and gave three practical examples in that she had provided a mat for prayer and had bought halal food and not cooked pork, and had provided separate eating utensils which were not used after the first occasion. These were appropriate steps and I do not criticise the foster carer for doing her best in this respect. Parents cannot always expect to be placed in culturally matched placements, and it should not necessarily have determined whether this placement should be used, but it was an additional difficulty for an already vulnerable mother to cope with in an otherwise ill-suited placement in terms of meeting her and A’s primary need for an environment skilled in supporting parents with a learning disability.
  3. The SW acknowledged that a specialist foster placement or a ‘specialist placement setting’ (as in her email of 10.9.14 to her managers) should have been provided. She asked for a specialist foster placement and was offered this placement. I appreciate that Mother and Baby placements are a scarce resource, but if it was not suitable it was not suitable and an alternative resource should have been pressed for. The success of Mother and Baby placements often relies heavily on the direct relationship forged between a mother and the foster carer. This will become all the more crucial and potentially fragile where the mother suffers from a difficulty such as a learning disability. I find that Medway fundamentally let down A, his Mother and indeed Ms McG, by placing them together in what should have been evident at the time was an unsuitable arrangement.

 

 

Additionally, there were differing accounts of a dispute between the mother and foster carer. Each said that the other had been aggressive and hostile during an incident towards the other.  I am sure that parents who read this will be imagining how that plays out – the foster carer has recordings and credibility, the parent won’t be believed.

What happened in this case was truly extraordinary.

 

Firstly, the foster carers notes:-

 

  1. The foster carer’s records and statements gave me great concern. Her initial recordings are in the form of brief and informal emails. These recordings progress in late August/early September to more formal notes using a set form. The first set of her records filed by Medway in these proceedings was missing all her notes from 8.8.14 to 3.9.14 and the note of 14.9.14 and the document entitled My Personal Statement dated 15.9.14. By day 3 of this hearing most of those missing documents had been provided, at my direction, but notes for 11, 12, 19, 26, 27, 28, 30 and 31 August, and 3 and 8 September were still missing.
  2. When the foster carer attended to give her evidence, I directed her to email and bring on the following day any of those remaining missing notes that had been emailed at the time in August and September. I stipulated that these should only be the original emails bearing the original notes to ISP, so that we could be quite clear that they had been sent at the time and what they had said at the time. I also clearly explained that they should not be newly written up, but that I was directing the provision of only the original recordings sent at the time in August and September. This was not done by Ms McG. Instead she chose to bring newly written notes of most of those dates, unconnected to any emails. She confirmed that they had not been sent at the time, but she had written them up that night before returning to court with them, and had done so from her handwritten notes that she had found for the purpose.
  3. This was concerning in a number of respects. Firstly, they had not been written up at the time and thus were not sent, but neither ISP nor the SW noticed that these dates were missing. This is indicative of poor management and supervision of this placement by ISP and Medway. Secondly, she had claimed the day before that she had shredded all the hand-written notes that she had made, but was now claiming that she had found some notes. She had also claimed that she used a ‘diary’ to record her observations. This then became a ‘notebook’, the pages of which she tore out and shredded, and so she said she was unable to bring any original notes to court. I have taken into account her submissions that this was all a misunderstanding, and that she meant that she had only shredded the notes she had written up and sent. This was not what she told me during her oral evidence, and I find that Ms McG was dishonest and actively misleading about her note-keeping practice. I find that I cannot rely on her assertion that none of her original notes could be inspected, as she clearly then found some in order to cover up her gaps in recording. I also find that she did not regularly write up her notes each evening as she claimed, or there would have been no such gaps.

 

 

[This would have been a good point to deploy the nice bit of case law which was excavated in the Mirror phone-hacking case –  Armory v Delamarie  1722 http://www.bailii.org/ew/cases/EWHC/KB/1722/J94.html  a case in which a chimney sweep boy went to a jeweller to ask him to value a jewel. The jeweller pocketed the jewel and would not return it. Because the jeweller then concealed the jewel, how could one establish how much it was worth and what the chimney sweep was owed?

“. If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent that is possible in the circumstances.”  

 

In short, if a foster carer shreds her notes, then the Court is entitled to take the dimmest view possible of what might have been contained within them.  ]

 

I have not before encountered a finding that a foster carer had been dishonest and misleading about their records. It gets worse

  1. The document My Personal Statement dated 15.9.14 (N45-46) differs from the placement recording note she completed bearing that date (N21-22). It appears to have been sent to Ms Down at ISP either late that night or the next morning as Ms Down attaches it to her email to the SW at 09:01 on 16.9.14. Ms McG claimed in her oral evidence that she thinks she wrote it several days later over the following weekend (20-21.9.14) and that is why it was not in her foster placement recording of that date. I do not believe that it was written so long afterward given Ms Down’s email. I note that My Personal Statement contains an inaccurate reference to the conversation in which Ms McG viciously shouts ‘piss off’ repeatedly at the Mother before slamming the door on her, characterising it instead in both the note recording and My Personal Statement as a rude attack by Mother to which Ms McG claims she mildly responded.
  2. We know however, having listened to the recording and read its transcript, that in fact the Mother was calmly and fairly meekly pointing out that the conversation was noisy for the baby and that Ms McG was ‘shouting so loud’ and that she did not ask who Ms McG was talking to as Ms McG claims. After a few exchanges of this nature Ms McG explodes against the Mother, shouting and using a remarkably vicious, loud and nasty tone:

    “R….. piss off out I’m getting it on the phone piss off out R….. piss off out I’m on the phone when you on the phone chatting loud in your in your Pakistani language I don’t say anything I just grin and bear it yeah I don’t (indistinct) so piss off out and leave me on the phone piss off. Piss off when (indistinct) your Pakistani language I not saying anything I leave you (indistinct) but get with I don’t say anything to you right, so get lost”

    This is then followed by the sound of steps walking away and a door loudly slammed.

    Ms McG accepted that this is her voice and this was how she behaved to Mother on this occasion. She was unrepentant during her oral evidence, but in her submissions indicates she has now reflected on this and accepts that she behaved inappropriately, for which she now apologises and will be seeking support from her fostering agency. She claims that this inappropriate behaviour was as a result of repeated provocation and the breakdown of the placement. I shall return to that assertion later.

  3. I find it is significant that My Personal Document is written after this incident and is then sent to Ms Down, and contains an allegation against the Mother that she had slapped Ms McG that is not in the recording note covering that period; and that it also contains an inaccurately anodyne account of this wholly inappropriate loss of temper and swearing at Mother. I do not understand why its content about Mother slapping her was not included in the recording note of 15.9.14, unless it simply had not happened and so had not been written up into it earlier that evening.

 

So not only had the foster carer shouted at mother and racially abused her, but she lied about it in her notes and made up an allegation that it had been the mother who behaved badly towards her.  It isn’t easy to be sympathetic to a professional who has said the things set out above – and I’m afraid that I can’t manage it.  I do, however, place it in the context that this was a wholly unsuitable match from the outset and the blame for that doesn’t lie at the foster carers door.

 

I am afraid that it continues to get worse.

 

  1. Ms McG tried to claim in cross-examination that her tirade against the Mother on 15.9.14 that I have set out above did not use swearing, and that it was not ‘abuse’. This is obviously an absurd minimisation in the face of wholly inappropriate behaviour. She was thoroughly and vehemently unrepentant, claiming she would do ‘absolutely nothing’ differently. She also tried to claim that this was the only occasion she spoke this way to the Mother, and that the Mother had deliberately provoked her by coming down and asking her to be quiet. In her submissions she further claims that the parents began a campaign to complain about her and repeatedly provoke her in order to bring about the end of the placement so that they could live together and thereby preserve the Father’s immigration status. I do not accept these assertions. A good point well made by the Children’s Guardian’s advocate was how unlikely it was that on the occasion that Mother tries to record the foster carer it happens to be the only occasion the foster carer swears loudly and viciously at her. The Mother’s case is that she was recording her as she was not being believed about being treated abusively and that this was a regular occurrence. I find that it is highly unlikely that this was the only occasion, and that the Mother was indeed trying to record her following a series of such occasions of verbal abuse and mistreatment that she had tried to complain about. I also consider that it is highly unlikely that the parents could have planned such a campaign, hoping to get such a response from the foster carer, or could have predicted what outcome would arise from highlighting the problems they were experiencing.
  2. Ms McG also submits that her allegations against the Mother that the Mother was abusing and slapping her were not properly investigated and so she could not present her explanation fully. Ms McG attended a strategy meeting on 17.9.14 at which she repeated at least some of those claims, and was assisted by Medway’s legal department to prepare her first statement filed in these proceedings. Her agency ISP has supported her in making her statements and by attending court to support her attendance. Until a point in this hearing after Ms McG had completed her evidence, Medway itself was pursuing these findings against the parents. Ms McG was the source of these allegations and has been able to set them out in statements and repeat them to me and be questioned about them, and therefore I do not follow and reject this submission.
  3. There is no contemporaneous written note by the foster carer of her allegation that she saw Mother shaking the baby. It only appears via the recordings of professionals involved at the time and in the foster carer’s first statement dated 11.3.15 which provides little clarifying detail. The foster carer’s oral evidence was inconsistent with accounts recorded by those professionals. She said it took place soon after midnight and she demonstrated two slow shakes by Mother while saying ‘shush shush’ to A. The records suggest she claimed there were three shakes to the SW and paediatrician, and she subsequently accepted she may have said three shakes to them. ISP worker Ms Hannett’s account of what Ms McG told her was noted by the duty SW in the early hours of 17.9.14 and state that Ms McG told her she saw Mother holding A under the arms but with her hands behind his head. The call from a PC French also set out in the duty SW recording at 04:51 states that ‘the actual shaking incident did not involve the baby’s head moving separately from its body’. I conclude from these recordings made very soon after these professionals had spoken with the foster carer that they are recounting a description given by her of a limited kind of shake involving some protection of the head from moving, although it is difficult to imagine someone both holding a baby under the arms and holding their hands behind his head. This contrasts with the ‘vigorous shaking’ described by the foster carer to the paediatrician and repeated in the strategy meeting notes. Finally, Ms McG’s submissions refer to seeing Mother “jolt the baby whilst trying to shush him”, and this is a slightly different version again, and certainly not one shared at the time with the child protection and medical professionals. These descriptions were not greatly assisted by Ms McG’s oral evidence where she demonstrated two limited forward and backward movements. She was unclear when pressed about the position of Mother’s hands. She said she had not seen Mother’s face as Mother’s back was to her. She described Mother as holding A out in front of her, in which case I am not convinced that she could have had the clear view of what was happening in front of Mother’s body as she claims. For these reasons, and as outlined already in conjunction with the timing of her extremely abusive reaction to Mother on the night of 15.9.14 and the timing of Mother’s complaint against her on 16.9.14 of being pushed and hurt, I do not consider that this can be seen as a reliable account by the foster carer of having witnessed Mother shaking A. I was unsurprised when Medway chose not to pursue these allegations against Mother further.
  4. The second conversation, in which her adult son can be heard speaking, I also find to have been wholly inappropriate. The foster carer claims that some disrespectful comment by the Mother precedes the start of the recording and led to her son’s reaction challenging the Mother not to disrespect his mother. I acknowledge that her son does not raise his voice and I accept that on one level they do simply point out that she is not prevented from leaving but if she were to do so they would have to inform social services, but the foster carer does not intervene to control or limit the conversation which repeatedly challenges the Mother and in which she is accused of being attention-seeking. She joins in the conversation with a number of challenges and some sarcastic laughter. However, it is all conducted with a level of inconsideration bordering on scorn for her predicament and her learning disability. Ms McG claimed that there was nothing wrong with this conversation and that the Mother was attention-seeking. She should not have permitted or conducted such a conversation with the Mother, and (until receipt of her submissions) has clearly failed or refused to see why. As I have already discussed, this conversation is likely to have taken place some time on the morning of 16.9.14 before the situation escalated further.
  5. I am asked to consider whether the foster carer was racially abusive to the parents. She denies it, claiming that as she is black she is aware of how inappropriate it would be, and countering with her own accusations that the Mother called her a ‘black bitch’. In her oral evidence she added that the Mother had called her a ‘black bastard’ and said that she had never wanted to live in a black home. Being called a ‘black bastard’ has not featured previously in any account given by the foster carer. I am aware that the parents were indeed very unhappy at not being in a Muslim household, but given the manifest difficulties with the foster carer’s evidence and that Medway do not seek such a finding, I do not consider making such a finding against the parents.
  6. In her oral evidence the foster carer made some notable remarks. She repeated several times, and with almost as much venom and resentment as in the recording I have quoted above, that she had to ‘grin and bear it’ while the Mother was talking on the telephone ‘in her Pakistani language’. Mother speaks Urdu and is British of Indian origin. She never once in her recordings or her evidence correctly used A’s name, but dismissed this due to the name having been changed. She denied using the terms ‘Indian dog’ or ‘Pakistani dog’. She described the parents as ‘reeking’ of body odour that permeated her home, and in her emailed note of 15.8.14 wrote that they ‘absolutely stink’, a phrase she repeated more than once and with emphasis in her oral evidence. While I accept that she needed to draw attention to examples of poor hygiene, I find that the manner in which she did so was vindictive and pointed, and not simply a straightforward observation. Overall I find that there was an ongoing vigorous antipathy to the very physical presence of the parents in her home, that she resented listening to Mother speaking in Urdu, and I do find that she demonstrated in court gross racial insensitivity and a visceral dislike of the parents, nastily expressed. The evidence is however insufficiently clear to make any finding of racial abuse and I do not make such a finding against the foster carer.

 

 

Bear in mind that not only was the mother having to live in a home with this foster carer, but that this foster carer was (a) going to be a large part of the assessment of how mother was doing and whether she could parent AND (b) was supposed to be providing her with support and guidance, and one can see just how catastrophic a failure this placement was.  It must have been utterly unbearable.

 

The Council were rightly criticised for their failure to investigate the complaints made by mother about the placement and to take action

  1. It will be evident from what I have set out so far, that Medway did not adequately investigate these complaints by the parents. It is unclear whether Ms Down of ISP was requested to look into the earliest set of complaints, which included verbal abuse by the foster carer, or whether she was simply informed of these complaints and looked into them automatically as part of her role as supervising SW at ISP. It can immediately be seen that the SW of the agency being paid by Medway to provide this foster carer is in a compromised position with an obvious conflict of interest in doing so. The brief discussion of the complaints at the pre-proceedings meeting and LAC review meeting on 3 and 4.9.14 were not adequate: full details were never sought from the parents, nor their complaints properly noted in the social work records; the only forum for exploring the issues was at formal child protection meetings primarily concerned with other matters; no complaints process was offered or explained to the parents; and even the ‘agreement’ referred to at the end of the LAC review minutes was never pursued. This forms part of my concern that the parents’ complaints were never properly attended to or taken seriously by the professionals, but were dismissed as insignificant or unworthy of proper attention. This was a serious corporate failing by all concerned.
  2. It beggars belief that after the events of 16.9.14, when the foster carer was claiming that she had been slapped by Mother and Mother was claiming she had been pushed and hurt by the foster carer, that the SW encouraged Mother to return to the placement and her management sanctioned its continuation. Notwithstanding where the truth of those allegations lay, this was clearly not an appropriate environment for A, nor his vulnerable Mother. As I have already mentioned in considering the Children’s Guardian’s evidence, I find that this environment would undoubtedly have had an extremely negative effect on Mother, depriving her of the support of the Father, exposing her to unskilled and unsympathetic foster care, and in a hostile environment about which she complained but where her complaints were dismissed. It is unsurprising that she became anxious, upset and distressed and that the placement broke down.

 

 

This is the most dramatic of the failings of the case, but there were many many others, which I’ll deal with in part 2.  This case is a perfect illustration of the benefits of the President’s drive for transparency.  Her Honour Judge Lazarus is not (yet) in a position to make binding case law [though she does earn herself a Tag in ther blog], and so a case of this kind three years ago would not have been reported, I would never have seen it and the dreadful catalogue of poor practice and decisions would have been brushed under the carpet.  Never has the President’s motto of “sunlight is the best disenfectant” been truer.  We need to drag cases like this into the light, and hold them up to public exposure.

What happened here was dreadful and the only hope of stopping it happening again is to make sure that everyone sees just how bad it was.

If you want to know the outcome – the Local Authority were seeking a Placement Order – to place the child with adopters, and the Judge instead granted the application that mother and father should be placed with their child in a specialist assessment centre who could report fairly and accurately on whether they would be able to care for their child with the right support.

 

 

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Smokey and the Bandit – “boy adopted due to smoky house”

Posted on June 2, 2015 by suesspiciousminds

 

This story appeared in the Guardian yesterday.  Two year old boy from smoky house to be placed for adoption.

http://www.theguardian.com/uk-news/2015/jun/01/two-year-old-boy-adoption-cigarette-smoke

 

It relates to a case decided by a Circuit Judge (in Hull)- so the case is not binding authority for later cases*, but it is still of public interest.  (* the reason it is not binding is because it was decided by a Circuit Judge, not because it was decided in Hull)

Re AB 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B58.html

 

The author of the Guardian story had clearly read the judgment, and read it carefully, because it draws out all of the many, many references to the smoky atmostphere in the house being a concern. This is a continuing theme throughout the judgment.

  the most graphic testimony came from health visitor Julie Allen, who told the judge that the family’s living room was “so smoke entrenched that I had difficulty breathing”.

“On entering the living room Allen described being able to see a visible cloud of smoke surrounding the father and [the boy],” said the judge. “[The boy] was asleep on the sofa and had been unwell for some time by this point.

“Ms Allen described the room as ‘so smoke-entrenched that I had difficulty breathing’. She immediately expressed concern to the parents as to the impact of such smoke on [the boy], who had already been prescribed an inhaler within the previous month to help his breathing.

 

That’s obviously the public interest debate, because it raises a spectre that a parent doing something lawful (smoking) can find themselves in care proceedings, and could ultimately find the child being adopted. If that was right, it would obviously worry people, and be thin end of the wedge material.

Remember that in establishing threshold, one has to not only show that X event happened and that the child suffered significant harm as a result (or is likely to) but that X is a type of behaviour that one wouldn’t expect from a reasonable parent or care that it would not be reasonable to expect a parent to provide for him.

 

Of course, reasonable is always a difficult concept. It ties into the Illusory Superiority concept – just as everyone considers that they are above average (in terms of intelligence, sense of humour, looks, driving ability), everyone considers that THEY are reasonable, and they assess other people’s behaviour as reasonable or unreasonable based on their own standards.

A non-smoker, or anti-smoker might hold that no reasonable parent would smoke within the same building as their child. Someone who smokes twenty a day might hold that a reasonable parent would smoke, but try not to blow smoke into the child’s face.  Someone else might think that a reasonable parent would try to smoke in a different room to the child, and so on.  What consitutes reasonable parenting is a really subjective issue.  (And it may well be part of the problem of care proceedings, since a social worker assessing reasonable parenting does so from the mindset of  (a) someone who was concerned enough about children to go into a profession aimed at safeguarding their welfare (b) has a degree and (c) is working in a culture where protection of children is the paramount concern)

I personally would prefer that a parent smoked outside, but I wouldn’t consider it unreasonable if they decided to smoke in their own home, or to give up entirely and insist that no visitors to their home smoked whilst there. I have a pretty broad spectrum of what is reasonable in terms of smoking near children. I know others who would have a much narrower band of what’s okay and what is unreasonable.

 

{My experience may be coloured by the fact that (a) I was able as a child to go to my ice cream van and buy cigarettes for my grandmother, something you can’t imagine today and that (b) when I was about twelve, our sweet shop sold a product called Skoal Bandits – sachets of tobacco that you would put in your mouth and suck, till they were banned  – I see that you can still buy them in America and other places and I suppose (c) that I began my childhood smoking on cigars, so I never ended up becoming a regular smoker}

 

"Smokey and the Bandit Two - Smokey IS the Bandit!"

“Smokey and the Bandit Two – Smokey IS the Bandit!”

When looking at smoking, and a smoky atmosphere, I would argue that it would need to be a very very high level of smoking to amount to threshold – since smoking, even heavy smoking in your own home is a type of behaviour that some parents would think was abhorrent and some would think was normal. It would be hard, I think,  to categorise even a sixty-a-day habit as behaviour that would amount to threshold.   (There might be exceptions – for example, if your child has a lung disease and has to breathe with the assistance of an oxygen tank, or suffers with life-threatening asthma attacks then a reasonable parent would take steps to prevent him being exposed to smoke)

 

So if the smoky house was the sole, or main reason for the decision, the decision would be very questionable and probably wrong.  We need to see if that WAS the sole, or main reason.

 

The Guardian piece does say several times that smoking was one of a number of concerns, and touches on some of the others during the article.

To provide some of that context, the Judge sets them all out as bullet points

  • potential drug paraphernalia observed at the parents property on 2 occasions
  • Mother failing to engage with DVAP and the freedom programme
  • the lack of involvement of the father in AB’s care
  • outstanding therapy for the father
  • concerns re the father’s mental health
  • parents responding aggressively/defensively to challenge
  • a decline in the parents engagement with agencies whose role was to support them in their care of AB
  • the amount of smoke in the home of the parents and AB
  • risks within the household including objects left in AB’s reach and electric wires being within his reach
  • dirty, smelly and unhygienic home conditions
  • the parents and AB presenting as dirty and with an unpleasant odour
  • father testing positive for cocaine in October 2014 and subsequently failing to fully engage with hair strand testing

 

So it is certainly true that the smoky atmosphere was part of the Local Authority case, but there were other matters – probably the most serious one being the use of drugs.

 

The Guardian piece doesn’t cover this much, but actually the electrical wires were put as a high concern by the Health Visitor

A further risk that Ms Allen documents is the issue of trailing wires which she described as being a strangulations risk, running across the room directly over AB’s toybox. It was put to her in cross-examination that she was perhaps exaggerating in describing this as a strangulation risk but she was very clear on this point. She showed clear frustration and exasperation as to why the parents did not address and rectify this issue, describing that it took them some 8 weeks to remove this risk. She described how they were clearly capable of addressing risks when they were identified as they had dealt with a similar concern in their previous home. She described that all it would have taken to make the wires safe was to buy some inexpensive tacks to secure the wires to the wall.

 

That’s one of those common bugbears. Yes, wires running over  over a child’s toybox have a strangulation risk, but what effort is made to quantify that risk?  Risk isn’t binary – something is either completely safe, or there’s a risk that X could happen which is not worth taking.  Human beings take risks every day. Every time they cross a road, or put food in their mouths, there’s a risk that this activity could lead to serious injury or death. But we weigh up that the risks are very very small, and the consequences of trying to lead a risk free life (by avoiding say, the risk of choking on some food, by not eating, or liquidising all your meals in a blender) are more problematic than taking a slight risk.

I’ve no doubt that seeing electrical wires dangling over a toybox doesn’t feel nice, that you’d feel much more comfortable if it was fixed and it seems a small thing to ask, but when you describe it as a strangulation risk without quantifying that the risk there is very very small, for me, it is over-stated.  For example, if I let a pet python sleep in a baby’s cot, that is a strangulation risk, and one that most people would think was more risky than overhead wires.  You lose sense of risk and risk management if you describe both the wires and the python scenarios as ‘risk of strangulation’

[It is a not unreasonable point to respond by saying ‘it would be very easy and relatively painless to remove that small risk entirely, so why not do it in this case?’ ]

 

A lot of the evidence about home conditions was contested and challenged, so the Judge had to reach conclusions.

 

  1. I find that I prefer the evidence of the health visitor, Julie Allen and the support workers, Emma green and Janine Potts in terms of their observations of the home conditions and I find that the recordings of Laura Gill provide further corroboration of these matters. I find that the home conditions were sometimes extremely dirty, unhygienic, and placed AB at risk of exposure to germs and contracting illness. I further find that he was at risk of sustaining serious injury or possible strangulation through clutter in the home and the failure to deal with unsecured wires. AB himself was exposed to these conditions and his personal care was sometimes inadequate with him being dirty and on occasions smelling of smoke. I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.
  2. I find that his weight plateaued when he returned to the care of his parents and that he dropped by one centile on the growth charts. I find that his diarrhoea and general unwellness is likely to have been impacted on by the lack of cleanliness and unhygienic home conditions. When a child is suffering as AB was and there are simultaneous concerns about his lack of weight gain, the advice of the health visitor to maintain hygienic and clean home conditions should have been prioritised.
  3. As a general observation, I find that the parents do not accept or follow advice if they do not agree with the advice (both parents disputing the strangulation risk identified by Julie Allen and the risk from cigarette smoke identified by several professionals).
  4. I also find that the parents failed to engage fully with the support services that were available and provided for them, in particular the family links programme, the safety workshops, the children’s play sessions and freedom programme for the mother. I am afraid that whilst I accept that these parents had a lot going on, these courses and programmes were important and needed to be prioritised, if the mother was to attend, the father had a responsibility to ensure that she was supported and encouraged by him in attending. Even if he was working long hours, he needed to be staying on top of the housework when he returned if the mother had been unable to attend to it during the day. This plan for AB to be cared for by his parents needed these parents to work together and support each other to ensure that AB’s needs were fully met.
  5. I find that the father struggles in managing his levels of anxiety and that sometimes this can manifest itself in him presenting as aggressive or confrontational, as recorded by the health visitor and the social worker. Whilst I am pleased that the father is now receiving some appropriative assistance with this, it is clear that this is at an early stage of what will be a long therapeutic process. I also find that as a way of managing stress the father has reverted to illicit drug use on at least one occasion and I find that this is an ongoing risk for the future. I find that the communication between the parents was extremely poor with the mother not knowing about the father’s heightened stress levels and the fact that he reports he was reducing his anti anxiety medication (I cannot understand why he would be doing that just after AB had been removed from his care) and the father not knowing that the mother was failing to attend the courses and groups that were expected of her.
  6. When considering the evidence in relation to the care that AB has received and is likely to receive, I have found it helpful to consider in some detail the documents from the care proceedings and in particular the assessments. I also find that is of real significance that the parents, having achieved their aim of a plan for AB to be placed in their care, were then unable to motivate themselves sufficiently to ensure that the home conditions were suitable for him to be placed. The standard that was needed was simply good enough, I would have thought it would not have been too much of a sacrifice for the parents to stop smoking (or at least to stop smoking in the home) and to ensure that the home was clean and tidy. In addition, I accept that the parents delay in seeking the courses that had been recommended and were to some extent part of the plan for AB to be placed in their care, demonstrates a lack of organisational skills and lack of commitment. Following the court approving a plan for AB to be cared for by his parents, I would have expected the parents’ commitment and motivation to be at its very highest.

 

The Judge had to analyse both harm, and whether the parents were able to meet the child’s needs to a ‘good enough’ standard, and if not whether they could be supported to do so.

  1. Has he suffered harm? I am afraid that I find that he has. Those changes in placement will themselves have been harmful and I think it will have been harmful to him that his return to his parents care was delayed by 4 months, a significant contributory factor to that delay was the parents’ lack of action and motivation. In addition he has been placed at real risk of injury to his health and wellbeing by his exposure to hazards in the home, lack of appropriate supervision and unsuitable and dirty living conditions. The impact on a child’s self esteem as they get older of being dirty and smelly should not be underestimated. They can be isolated from their peers and struggle to form friendships.
  2. The father still has some issues with managing his moods and with a risk of reverting to illicit drug use when he is under stress. The mother on her own, without significant support from the father cannot consistently meet AB’s needs. Dr Parsons found that and there is no evidence that this has changed since his assessment. Therefore the father’s difficulties are all the more significant. He has not been able to compensate for the mother’s own limitations and indeed some of the recent issues in relation to his mental health and anger issues and drug use actually heighten the risks. I do not accept that the issue is as simple as him now being available as he in no longer working.
  3. Are the parents capable of meeting his needs? Yes they are. At times it is clear that they are able to recognise and prioritise his needs. They have shown that they can maintain a clean and suitable home; they can show commitment to AB by attendance at contact and consistent care within contact. However, I must consider the evidence in relation to their actual care of AB when he was living with them and was due to be living with them. Sadly, I find that this fell well below the level that I would say is good enough. I really don’t know why this was.
  4. The parents are entitled to support in their parenting. Having considered the evidence of all parties I consider that the level of support offered to the parents was extremely high (indeed the mother reported the support worker visiting “every day”). Not all of the support that was available was taken up. Given the significant concerns that then arose, it is apparent that support from the LA or other services unable to redress the parents’ difficulties in meeting AB’s needs. It is hard to see what other or further services could have been offered. The level of support offered through Janine Potts visiting all day and every day is simply unsustainable in the longer term and ceases to be “support” and instead becomes substituted parenting.
  5. I think that the mother is right when she recognises that some of the problems that the couple experienced were due to immaturity. This couple needs to be able to care for themselves and maintain an appropriate home, manage their finances and address the issues in their relationship in respect of communication and The father needs to be much further on with this therapeutic work before they would be in a position to take on the care of a dependant child. In my view they still have some way to go with this.
  6. I am afraid that all of these matters lead me to an unavoidable and difficult conclusion that the risks to AB in being placed once again with his parents are far too high. The parents have given me no confidence in their written or oral evidence that they have sufficient understanding and awareness in relation to the processionals concerns to ensure that such concerns would not arise again in the future. Adoption really is the only option now available to AB, in my view, nothing else will do. I therefore refuse the parents application for discharge of the care order and make a placement order authorities n the LA to place AB for adoption.
  7. I want AB to know that in my judgement his parents loved him very much and tried very hard but due to their own difficulties and difficult backgrounds, they were simply not able to meet his needs.

 

 

This is a difficult one – it isn’t the most overwhelming case for adoption that I’ve seen, but the Judge does do what the Court of Appeal have commanded – to grapple with the issues and weigh up both sides of the argument, and the Judge makes conclusions. I don’t think that it is a judgment that is vulnerable to appeal (which is not to say that the Court of Appeal might view that differently if asked) but there are no obvious flaws in the decision making.

If the case had been solely on the basis of the smoking and smokey atmosphere, then I don’t think it would have had this result, and if it had, it would have been successfully appealed.  As part of the large number of issues, its evidential importance becomes less significant.

 

I think that there’s an argument or debate about whether too much emphasis appears in the judgment on the smoking, but looking at the analytical portion of the judgment (as opposed to the passages where the Judge is quoting what the witnesses said), I don’t think that the Judge puts particular emphasis on the smoking – it is mentioned, but not disproportionately so.

Does this bit of the findings go too far?

I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.

 

He probably was exposed to excessive levels of smoke on the evidence. It is whether there was evidence that this exposure caused him harm, that might be more problematic. There is the evidence that the child had been prescribed an inhaler to help with his breathing a month earlier, so if the evidence before the Court was that the child had breathing difficulties, which would be causing him harm or discomfort, there could be a caustive link that the cigarette smoke, if excessive, was impacting adversely on his well being.  (In light of the President’s comments on Re A, I think that if there is to be a finding that the parents smoking caused him significant harm, the link needs to be very explicit)

Nor do I think that the report in the Guardian was misleading or distorted – its a very good summary of the case and certainly when you read the judgment, it is possible to see it being largely about smoking, too much so on first reading.  It was only when I read the analytical sections with close inspection that the case became more balanced than first appeared.

 

It is also worth noting that the Judge was critical of the Local Authority – when this case was first listed for final hearing,  it was only really in the mother’s evidence, that it became apparent that there were pfoessionals who had been frequently visiting the home for whom the Court had no records and no statements.The records were produced the next day. .  The parents wanted time to prepare their case and also wanted these witnesses to be called. In the event, those witnesses turned out to be key witnesses. The adjournment had to be granted. The Judge criticised the Local Authority for not having addressed their mind to the case that they were trying to prove and that these witnesses should have had statements prepared and served much earlier.

It was a shame that the Guardian (and the other advocates) had not grasped the significance that there was valuable evidence in the knowledge of potential witnesses who had not been called.  This case highlights that Guardians now very rarely read the primary evidence – the social work files and records, and are urged by CAFCASS not to do so – on the basis of ‘proportionate working’   (I’d sarcastically comment that where the order sought or contemplated is one that leads to adoption, that it would be proportionate for the independent representative of the child to look at the files, but that would be beneath me)

 

25. I queried whether the Guardian had considered the LA records and seen the significant involvement of these other workers. I was told that the guidance from Cafcass, in line with proportionate working, is that LA files will only be inspected if it is necessary. Sadly, in this case I think it was. I also made it clear to the LA that in my view the Presidents guidance, whilst helpfully sending out a clear message, is not new law. It is always for the LA to prove its case and it must do so on the best evidence available. It is unfortunate that no-one within the LA took a step back to assess what case it was trying to prove and what evidence there was to support such a case and then what witnesses could give that evidence. For example, a large plank of the LA case is that the home conditions were frequently dirty and cluttered and that the home was very smoky and smelly. Ms Tomblin had only visited on one occasion prior to AB’s removal and what she observed on that date whilst raising some issues, was not the picture that had been recorded by others of a home situation that was unsafe and unsuitable. Thought should have been given to what evidence she would actually be able to assist the court with and whether there were others who were able to give more direct evidence of the matters that the LA was seeking to prove.

  1. This became even more stark when I was told at the resumed hearing of this matter that the LA had actually obtained a statement from Emma Green who was heavily involved with the family at the relevant time and who’s evidence was highly relevant, but for some inexplicable reason this had not formed part of the bundle, nor had it been served on the other parties.
  2. I reminded all of the representatives, that I saw a collective responsibility between them to consider the evidence that it was proposed the court would be asked to consider and whether further evidence was needed, whether to support a party’s case or to enable an effective challenge and to alert the Judge to the fact that there may be evidential difficulties. Applications can be made on short notice and consideration could have been given to whether further witness evidence was necessary. It is disappointing that the parties have held a number of advocates meeting and as I have already said, the case has been listed for final hearing previously, yet these matters have never been raised. Nevertheless, the parents’ right to a fair trial undoubtedly required them to have the opportunity to see direct evidence and to have the ability to challenge such evidence. Inevitably therefore a further adjournment was necessary. I was also concerned that there should be no abuse of process and that the matter needed to be heard as soon as possible and therefore directed that the final hearing would be adjourned to commence afresh. I directed that the LA file evidence from those professionals who had been involved with the family during the rehabilitation period, specifically the Family Support workers and the Health Visitor. These documents have now been filed and all parties have had the chance to consider and respond to them. The parents have filed a further statement in which they perhaps go a little further in acknowledging some of the concerns.

 

 

 

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Recommendation :- New blog written by a parent

Posted on May 29, 2015 by suesspiciousminds

 

I would like to recommend Surviving Safeguarding to all of my readers.

http://survivingsafeguarding.co.uk/

 

It is written by a mother who has been through the family justice system and after a lot of struggle and hard work has been reunited with her child, and now spends time helping others. She therefore gives a very different perspective than the other child protection blogs written by professionals can give, and she’s also a very gifted communicator.

Please give her writing support and comments – I think this blog has the potential to be an amazingly helpful resource for parents, and also for social workers and lawyers who want to connect with how the process can feel for a parent caught up in it.

 

31 Comments

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Rip it up and start again – rebuilding family justice

Posted on May 29, 2015 by suesspiciousminds

 

I was having a conversation on Twitter yesterday with someone who passionately felt that the family Courts needed to be scrapped entirely, rather than improved. That’s not a view that I share, but it did strike me that we don’t really discuss radical options for child protection in this country.

When the Family Justice Review was commissioned, and roved the country talking to ‘stakeholders’ the one group it didn’t really capture was those people who had been through the system and were campaigning against it. It is really easy to just write those people off as conspiracy nuts and bad losers. I don’t think that’s fair.  If you don’t listen to criticism, how do things ever get better?   I don’t necessarily accept everything that the campaigners say uncritically, but in writing this blog I have been able to spend time discussing with the campaigners their real grievances.  The Review never looked at the culture of child protection or whether we could learn lessons from other European methods.

The Family Justice Review didn’t start with a blank piece of paper. They started with a piece of paper that said don’t change much, don’t spend anything, and ideally save us lots of money.

 

So in terms of change, it was rather like having a house that isn’t really working out for the people living in it or visiting it, and arranging for a  cleaner to come in.

You hope that the end result is that things look better, that it feels nice and that everything works a bit more smoothly.  Of course, what can also happen is that things get out of place and not put back quite how you want them, or ornaments get broken.  What we didn’t have, was an architect coming along and saying “we can build a new building and make it work exactly the way we want it to”

So, this piece is thinking of methods you could use to rip family justice up and start again.  I’m not advocating that we do any of these things, but nor is it going to be a piece where I set out the options and sneer at them.  If you never think about the other possibilities, how do you know that there’s nothing better worth trying?

 

Of course, all of these options have pros and cons, some of them have major drawbacks, all of them would cost money and take time that it is unlikely that the Government is ever going to put in. But the current system has pros and cons, has some major drawbacks and costs money and time that is being steadily removed from it.

 

These are just some models that COULD be used, and I’d be interested in a debate about whether any of them are what the family justice campaigners have in mind, or whether they’ve got something different to my thoughts. I don’t want, in this piece, to delineate the pros and cons, because that would be me as part of the System stifling the debate. Let’s have the pros and cons come out as part of the debate.

 

 

1.  The Just Leave parents alone model.   Does exactly what it says on the tin. We stop the child protection systems in the country and leave it to parents to parent.   [Perhaps there is a tweaked version in which there’s a state safety net for the children who are at very very high risk, say about 2% of the current number of care proceedings.]

 

2. The Criminal Justice Model.   If you are a parent and you commit a criminal offence for which you are imprisoned, someone else of your choosing will have to look after your child until you finish your sentence. If you do something which doesn’t result in a custodial sentence, then you get on with looking after your child. Maybe this will result in more prosecutions for child abuse, neglect and possession of heroin, maybe it won’t. But if the law doesn’t think that what you have done is serious enough to be locked up for, let parents get on with it.  We would thus have no family courts (for care proceedings) and a very small number of social workers – for those cases where there is a custodial sentence and the parent can’t find someone who will look after the child.

3.  The Quasi-criminal Model  – the standard of proof is changed to the criminal standard. The rules of evidence become in line with criminal evidence. The case is decided by a jury, assisted and guided by a Judge conducting the hearing and summing up. Perhaps we even just move the process lock stock and barrel into the criminal Courts.

 

4. The Scandanavian Model –  we have social workers and family Courts, but the emphasis is shifted massively to providing support for families and making things work at home, solving those problems. Courts have the power to tell social workers what help a family needs and the social workers have to provide it.  There may be a rump of cases where the risks are just too great to manage at home, but that is something like 2%.  It should be thought of as a failure if the child isn’t able to stay with the family.  We lose the concept of permanence and making permanent decisions about children, and do what is right for them at that time. If a child HAS to stay somewhere else for a time, then the child can and should go home when circumstances change.

 

5. Splitting support and investigation Model   –  is there a conflict between the role of social workers in supporting a family and helping them, and investigating child abuse and making applications to Court?  Could that role be split, so that the people helping a family and looking after the child are kept completely separate from the investigation and prosecution role?  Perhaps the investigation/prosecution role moves over to the police, and social workers stick to support and help.

 

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Challenging a consent order

Posted on May 28, 2015 by suesspiciousminds

 

It is not every day that you see the President of the Family Division have to consider whether a Practice Direction is, in part, ultra vires. This is one of those days.

 

Re CS v ACS and Another 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1005.html

 

The case hinged on the legal mechanisms for challenging a consent order.

The language of Practice Direction 30A (on appeals) is very very stark

PD30A para 14.1, headed ‘Appeals against consent orders’ provides that:

“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged” (emphasis added).

 

So, the only route is by appeal.

However, wait

section 31F(3) of the Matrimonial and Family Proceedings Act 1984 (as inserted by the Crimes and Courts Act 2013) provides that:

“Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties.”

However, section 31F(6) provides that:

“The family court has power to vary, suspend, rescind or revive any order made by it, including –

(a) power to rescind an order and re-list the application on which it was made,

(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and

(c) power to vary an order with effect from when it was originally made.”

Rule 4.1(6) of the Family Procedure Rules 2010, which is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, provides that:

“A power of the court under these rules to make an order includes a power to vary or revoke the order.”

So that’s a statutory mechanism to invite a Court to vary, suspend, rescind or revive any order made by it.

There are also a line of authorities (including marvellously one named Tibbles) showing that there are two routes – either appeal, or application to the original Judge to rescind or set aside the original order  (there are limitations to that power – either material change of circumstances, or establishing that the factual basis on which the order was made was incorrect – the classic example being ancillary relief cases where financial agreement was reached and people learn later that there had been concealment of substantial assets which make the consent order unfair)

So, which is right?

  1. Mr Brunsdon Tully takes his stand on PD30A, para 14.1. He points to Financial Remedies Practice 2015 where the editors, who include both Sir Peter Singer and Mostyn J, suggest (para 4.8) that the old cases suggesting that such applications could be made at first instance “are all now overreached” and (para 30.97) that “that single short sentence in PD30A had rendered otiose a great deal of sterile case law”. In previous editions the editors had added “This long overdue reform is much to be welcomed.” Mostyn J has expressed similar views judicially (see below).
  2. Ms Sharghy and Mr Hubbard point to the more sceptical view expressed by the editors of Dictionary of Financial Remedies, 2015 edition, page 65, where, after saying that “There is an element of confusion about the appropriate way of launching an application of this nature”, they opine that “the most likely solution” is an application under FPR 4.1(6).
  3. Following the hearing it occurred to me that there might be a question as to whether the final sentence of PD30A, para 14.1, was ultra vires. On 21 March 2015 I sent counsel a draft judgment setting out my preliminary conclusion that it was ultra vires. I invited counsel to make any further submissions they wished. Both Mr Brunsdon Tully and Ms Sharghy and Mr Hubbard availed themselves of the opportunity.
  4. The power to make Practice Directions in relation to family proceedings is conferred by section 81 of the Courts Act 2003. Section 81(1) confers power to make directions as to “practice and procedure”. Section 81(2A) provides that directions as to the practice and procedure of any relevant court in family proceedings “may provide for any matter which … may be provided for by Civil Procedure Rules.” As Mr Brunsdon Tully points out, PD30A was made by the then President of the Family Division in accordance with Schedule 2 to the Constitutional Reform Act 2005 and approved by the Parliamentary Under Secretary of State.

 

 

As can be seen above, the PD was made by the former President Wall LJ and approved by the Minister. Consideration that both acted ultra vires in relation to that passage is significant.

 

Let us have a quick gander at the legal arguments  (there’s much much much more of this, I’ve tried to grab the bits where they are distilled)

  1. Mr Brunsdon Tully submits that, since FPR 4.1(6) is identical to CPR 3.1(7), there is no reason why the principle spelt out by Hughes LJ should not apply equally in family cases. In particular, he says, there can be no question of the final sentence of PD30A, para 14.1, being ultra vires, for all it does is to bring the limited class of case to which it applies into line with the true meaning and effect of CPR 3.1(7), and thus of FPR 4.1(6), as explained in Roult.
  2. He adds three supplemental submissions. First, he submits that the final sentence of PD30A, para 14.1, does not encroach on the right of a litigant to apply to the court or on the substantive legal remedies available to a litigant if material non-disclosure is proved; it merely stipulates the procedural route, namely appeal, under which all these remedies are available. I cannot accept that: it encroaches upon the right of a litigant to apply to the court without first obtaining permission. Secondly, he submits that the power of the family court to exercise its powers under section 31F(6) is not fettered, either by FPR 4.1(6) or by the final sentence of PD30A, para 14.1, because an appeal from a district judge sitting in the family court lies to another judge, either a Circuit Judge or a judge of the High Court, of the family court. This, however, as Ms Sharghy and Mr Hubbard point out, overlooks the fact that the powers conferred by section 31F(6) of the 1984 Act include powers to “vary, suspend [or] rescind” any order. Thirdly, he submits that the final sentence of PD30A, para 14.1, which is the relevant provision in issue here, is not the rule that imposes the requirement that the litigant can proceed only with permission, and in any event a permission requirement is not a fetter or encroachment on the court’s powers such as to lead to a conclusion that the final sentence of PD30A, para 14.1, is ultra vires. The first part of this is, with respect, legal sophistry: since any appeal requires permission, a provision that challenge can only be made by way of an appeal is, in its effect, a provision imposing a requirement that the litigant can proceed only with permission. I have already said that I do not accept the argument that the final sentence of PD30A, para 14.1, does not fetter or encroach on the rights of the litigant or, consequently, on the powers of the court.
  3. In response, Ms Sharghy and Mr Hubbard submit, by reference to more recent authorities, that Mr Brunsdon Tully reads more than is warranted into Roult. They submit that the final sentence of PD30A, para 14.1, purports to abrogate what they say is a long-established and indeed recently recognised right to challenge, at first instance, and without being subjected to any sort of prior filter by way of application for leave (see Re C (Financial Provision: Leave to Appeal) [1993] 2 FLR 799, 801), an order such as the one I am concerned with here. They submit that this right is recognised by both section 31F(6) and FPR 4.1(6). They point to Binks v Securicor Omega Express Ltd [2003] EWCA Civ 993, para 8, and Brennan v ECO Composting Ltd [2006] EWHC 3153 (QB), [2007] 1 WLR 773, para 28, as showing that in case of conflict between a rule and a practice direction, the practice direction must yield to the rule.

 

In my new technique of establishing whose argument is best – where I take the names of the authorities that each relies on and decide which of those sound more intriguing, I would rule that Binks, and Eco Composting are going to beat Roult.  Over a period of time, I hope to demonstrate that this methodology is (a) dazzlingly accurate and (b) if adopted wholesale would lead to really interesting law reports with mind-boggling case names being pressed into service by each side.   [If anyone can successfully work “Four Exotic Dancers versus Spearmint Rhino and the Wild Goose 2009” or “Death v Graves 2006” into their skeletons, they richly deserve a victory]

The President used more established methodology in deciding which argument was correct.

  1. In the light of this survey of the authorities, I conclude that the decision in Roult will not bear the weight of the argument that Mr Brunsdon Tully seeks to derive from it. In common with Mostyn J in In re F, I read the decisions of the Court of Appeal in Musa v Karim, Sharland v Sharland and Gohil v Gohil (No 2) as demonstrating that FPR 4.1(6) continues to permit what had long been established, namely that an application such as the one being made here by the wife can be made to the judge at first instance.
  2. What then of the final sentence of PD30A, para 14.1? In my judgment, and with all respect to the makers of PD30A, it was ultra vires their powers. And if that is so, then I can without more ado say so and treat it as a nullity: compare General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272, where, in the course of ordinary proceedings in the Queen’s Bench Division, CPR rule 48.7(3) was held to be ultra vires. (I make clear that I refer to this case, which was very different from the present case, not in support of my conclusion that the final sentence of PD30A, para 14.1, was ultra vires but only as to the procedural consequences which flow from such a finding.)
  3. There are essentially two reasons which lead me to this conclusion. First, and whatever the exact ambit of the phrase “practice and procedure” in section 81(1) of the 2003 Act, it cannot in my judgment extend, as here, to a provision purporting to forbid a litigant to have recourse to a form of remedy long recognised by the common law, let alone to a remedy expressly conferred by both statute (section 31F(6) of the 1984 Act) and rule (FPR 4.1(6)). Secondly, there is, for the reasons given by Ms Sharghy and Mr Hubbard, a conflict between, on the one hand, the statute and the rule and, on the other hand, the practice direction, which requires the latter to yield to the former.
  4. It follows, in my judgment, that the wife is entitled to proceed as she has and that she does not require the permission of the court to do so.
  5. More than 25 years after Ward J’s first complaint, too little has yet been done to remedy matters. The continuing complexity of the law is exemplified by the necessarily detailed analysis of the point by the editors of Financial Remedies Practice 2015, paras 4.5-4.17. The continuing lack of clarity is illustrated by my analysis in this judgment. It is profoundly unsatisfactory that the courts should still have to take up so much of their time and their litigants’ resources dealing with such matters. The final Report of the Financial Remedies Working Group, 15 December 2014, expressed the view (para 13) that “clarification of the procedures for re-opening first instance orders in financial remedy proceedings is required” and said that it “would strongly support amendments to the Family Procedure Rules for that purpose.” I doubt that anyone could possibly disagree. Remedial work is now a matter of pressing urgency, unless we are complacently to condemn another generation of litigants to a procedural maze which is a discredit to family justice. I add only this. The Working Party may wish to consider the extent to which these problems are capable of solution by either Rule or Practice Direction. It may be that primary legislation is required

 

Until that time, both routes are potentially open, and it will depend on the circumstances which is the best approach. The rest of PD 30A remains valid, but you can draw a line through para 14.1 now.

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Composite threshold documents – in which, a tightrope is walked

Posted on May 28, 2015 by suesspiciousminds

 

Two nightmares of legal blogging this week. The first was the McKenzie Friend case in which I had to write an account of the Court roasting a person for bad behaviour when that person was not just a name on a page but someone that was in my mind a real flesh and blood person.  And now this one, where the judgment is written by my local Designated Family Judge.

That’s something that I dread seeing, because it puts me in an ethical quandary. If I praise it to the skies, I’m a suck-up. If I take a red pen to it and dissect its flaws – well, I’m stupid but I’m not THAT stupid.  So if I see one, I hope that it has nothing of wider relevance and I can ignore it. That avoids the need for me to walk a tightrope.

 

Damn. This one does have some wider relevance. It says things that have been said before and emphasises them, but it also says some things that haven’t been said before and that have been worth saying.

Behold, Suesspicious Minds walks a tightrope, without a safety net. GASP as he wobbles. WONDER if he will plummet to his certain demise?  PUZZLE as to why he has thought up too late that he could have put at the start that this particular article was a Guest post…

 

Why am I going to walk the tightrope for this case?

Firstly, it is the DFJ identifying several flaws in practice and I know that many of my readers practice in Sussex and will come before this DFJ. Forewarned is forearmed, and actually many of these practice issues would, if fixed, make for smoother running of Court hearings. What the Judge has to say about practice issues is important to read.  The less time that the Court has to spend in a hearing on fixing practice issues, the more that everyone can concentrate on the child and the child’s future, and we all want that.

 

Secondly, the DFJ says things about composite threshold documents which have wider implications for practitioners in all parts of the country.  What the DFJ says about composite threshold documents is, in my opinion, very long overdue, and I can’t think of an authority which sets out just how problematic they have become.

So I’d recommend that all Sussex practitioners put this judgment high on their “to-read” pile, and I have little doubt that these issues are troubling other Judges across the country and that similar judgments will be following, so it should go on everyone’s “to-read” pile, which will for many of you involve getting a stepladder and sliding the authority in the ever-decreasing gap between the top of the pile and the aertexed ceiling of the office.  (Top tip – avoid starting the pile directly under a ceiling fan)

 

East Sussex County Council v BH and Others 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B57.html

 

A quick note, for readers who aren’t lawyers. (Ah, how I envy you all).

The threshold document is a 2 page document prepared by the Local Authority setting out the harm that the child has suffered or is at risk of suffering and the allegations/facts that lead to that. The parents both respond to that, with the help of their lawyers. The Local Authority then prepare a final, or composite threshold document that sets out exactly what is agreed.

The problem is, and this isn’t a Sussex problem – I’ve seen it all over the county, and it has always irked me,  that often what you end up with is a “He said, she said” document, that doesn’t set out what the parties agree happened, so much as just squash the parents responses in next to the Local Authority allegation.

 

I’ll give you an example.  We are going to work on the basis of a single sentence within the LA threshold, and for illustrative purposes it is going to be  “The quick brown fox jumped over the lazy dog”

[Pedantic note – I originally used ‘jumps’ as in the typist sentence, but because the threshold is in the past tense, it made me wince every time, so I had to go back and change it. Also, because my father was a speed typist and taught me with the sentence  “The quick brown fox jumps over the lazy dog’s back”  to put a punctuation mark into the mix, I felt guilty for not using that version. ]

[That is NOT real threshold, before anyone rings the Daily Mail and claims that children are taken into care as a result of athletic foxes]

 

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

 

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

 

And the composite threshold document then becomes.

 

Paragraph 7.  The quick brown fox jumped over the lazy dog

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

 

Not only is that cumbersome and unwieldy, but it doesn’t actually tell you anything about what actually happened.  It could instead be put like this.

 

Paragraph 7.  Something happened. Nobody agrees what, but they all agree that something happened.

And you can end up with two pages of long-winded “Something happened. Nobody agrees what” as being apparently the factual basis on which the Court is invited to make final orders – serious final orders.

When a Judge comes to hear the case, and considers what the risk of a future episode of a lazy dog being jumped over by a fox might be, how on earth does that composite threshold help anyone?

 

This is a problem on two fronts. Firstly, there’s a tendency in responses to threshold to put in extraneous detail and mitigation, when that could be in a statement instead. If the response focussed on – is the allegation accepted in full, accepted in part or denied?  And if accepted in part, provide a form of words which would be acceptable to your client, we would avoid much of the superfluous detail that clouds the issues.  In this case – was there a dog, was there a fox, did the dog jump over the fox?

Secondly, there’s a failure by the person drafting the final composite threshold (that’s someone like me, and even though I hate it, I’m sure I’ve been guilty of it) to not be able to strip away all the superfluous detail and mitigation, to be able to get to the core of what form of wording would be agreed.

 

For example, here are three acceptable composite documents.

 

The quick brown fox jumped over the lazy dog   – this is accepted

The fox jumped over the dog and the dog showed no later ill-effects – this is accepted

The quick brown fox jumped over the lazy dog – this is denied by the parents and the Court is asked to make a finding

 

(and a fourth, which the allegation is disputed, and the Local Authority agree to remove it from the document.   There are some important issues about whether you’d go for option 3 or option 4 and whether a parents concessions are sufficient – I’ve written about it here  http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/view-from-the-foot-of-the-tower-horse-trading-and-threshold-concessions#.VWa9FEY1Ouc)

 

So, for parents lawyers, please please please stop your documents being pleas of mitigation, and hone in on the task of ‘is this agreed, partially agreed and here’s my form of words, or denied’ .  It’s a response to threshold, not a plea of mitigation.  And for me, and those like me – produce a final threshold document that actually sets out for the Judge (and those to read it in years to come), what the AGREED basis for the order is, and where there is not agreement, set out what finding is sought from the Court.

 

The Judge deals with this without the need for fox and dog imagery.

 

  • As frequently happens, a “composite threshold document” had been completed in a cut-and-paste fashion. By that I mean the document set out the evidence relied upon by the local authority, together with the responses and explanations of each parent in turn. However, whilst it was clear from the document that the threshold was met to the requisite standard, the replies when examined clearly revealed that a number of facts relied upon were not accepted, and not capable of being resolved. There was no indication to me, even at the eleventh hour, as to what I was being expected to determine from the outstanding facts and matters which were in dispute. Threshold must be thought out, and any issues in need of determination identified at the earliest possible stage and the PLO applies. It is entirely unsatisfactory to present a court at the start of a final hearing with matters relied upon which have not been either agreed or identified for determination. Precious time was therefore taken up on this issue alone. Either a threshold is agreed or it is not at the earliest possible stage, in which case the court takes a view. In the event the parties managed to agree threshold at the start of the hearing.

 

Finally, the judgment makes a point about judicial reading time. There is never enough of it allocated, but the parties don’t help by not estimating it properly. We are obliged to put in the case summary how much judicial reading time is needed.  That bit is never nice to fill in – if you are realistic, and put that for an IRH the Court ought to read everything, and have a grasp and knowledge of it, then for a 350 page bundle, a minute a page gives you a 6 hour reading time.  A minute a page might be breezy for some parts of the bundle but others might take much longer than that.  Handwritten medical notes for example… Or a page of heavy analysis or cross-references – you might have to slow down to check that the quotations from other documents are fair and representative rather than cherry picked and misleading.

 

Do you think any Judge is going to thank you for putting a 6 hour – or a cut-down slightly unrealistic 3 hour (30 seconds per page) time estimate for a hearing that is listed for an hour?  So we all fudge and put 2 hours…

If judicial reading time is included, advocates might consider how long it took them to prepare the case for hearing in terms of reading time and allocate judicial reading time accordingly.

 

Of course, if we had the old days of special prep SIPS forms, a Judge could tackle this by saying that the reading time that counsel would get paid for would not exceed the reading time allocated to the Judge. That would have made for more accurate estimates of judicial reading time…

 

 

 

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The cat is still a cat. It can be put back in the bag

Posted on May 27, 2015 by suesspiciousminds

 

Ah yes, the little known verse from Casablanca’s wonderful song :-

 

you must remember this,

a cat is still a cat,

it can be put back in the bag,

the fundamental rules of legal professional privilege apply,

as time goes by

 

 

G v G 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1512.html

 

A disappointingly plain name for the case – I wish they had gone for G v G (on Cats and Barbeque Etiquette) 2015…

 

This is an insanely complex legal debate about whether or not a conversation was subject to privilege or not.

 

This case also establishes that those awful conversations where someone finds out at a barbeque that you are a lawyer and asks you for advice about this that and the other, do not attract legal professional privilege.

 

It is a perfect excuse to get out of giving that advice for free, in your spare time, when you really just want to be mangling a burger. You may therefore want to make like Samuel L Jackson’s character Jules Winnfield in Pulp Fiction, and have this passage memorised for such occasions.  [Or you know, just use Jules’ speech about “and you will know my name is the Lord, when I bring my vengeance upon thee’  – I have found that this also gets people to stop talking to you and frees up elbow room at the condiments table]

 

As is stated in paragraph 1.51 of The Law of Privilege (2nd edition) edited by Bankim Thanki QC,

 

 

‘If you ask your lawyer for advice about your love life, this will clearly not be privileged. But even if he is consulted about the law, privilege will not arise if a lawyer is consulted on a social rather than a professional basis. While a formal retainer is not necessary, there are limits. Buttonholing your lawyer neighbour for free advice at a barbeque is unlikely to attract privilege, even if the subject matter is entirely legal. …. The fact that an individual happens to be a lawyer will not cloak all communications with him with privilege unless he is consulted professionally in his capacity as a lawyer.’

 

 

 

Here is the nub of it. A wife, W, was having some matrimonial issues. She told her friend, Debra Spurway about those issues. Her friend Debra, had a second friend, Patricia Ledwith who knew a “top family lawyer” – Miss Deborah Bangay QC (DBQC).

 

Miss Ledwith spoke to Debra Spurway, who spoke to W, and then the message went back up to Miss Ledwith, asking for Miss Ledwith to see whether DBQC would act on behalf of the wife. Telephone numbers were exchanged, and Miss Spurway spoke to DBQC by telephone.

 

During which it was confirmed that DBQC did not take direct access cases or through agents, but suggested to Debra Spurway that W speak to a particular solicitor, a Mr Ribet of Levison Meltzer Piggot solicitors.

 

DBQC then sent Mr Ribet an email, indicating that he might be receiving a new referral.

 

This is what she said in the email

 

Having spoken to Miss Spurway on either the evening of 19 September or the early morning of 20 September 2012, DBQC sent a short email to Mr Ribet. It was sent at 08:54 (‘RE: ‘Poss new case’) and its substance is recorded below :-

 

 

‘[Mrs G] – may call you re non performance of a Consent Order and ? poss non-disclosure’.

 

The Wife did later consult with Mr Ribet, but they did not later go on to formally represent her in the Court proceedings. It does not appear that she ever formally met with or instructed or discussed the case with DBQC.

 

That much is obvious, as by happenstance, DBQC was instructed by the Husband in the proceedings.

 

The proceedings at that point related to an application to appeal out of time.

 

H and W were married to one another in 1996 after a lengthy period of cohabitation. Their relationship endured for some 22 years during the course of which three children were born to this couple. In the context of divorce proceedings which were issued in 2009, they were able to resolve all issues arising in the context of the pending ancillary relief proceedings (as they were then known). On 1 June 2010, Deputy District Judge Marco approved the terms of a consent order which provided W with a comprehensive financial award on the basis of a clean break between the parties. The global wealth available for distribution between the parties at that time was said to be in the region of £15.7 million. W’s settlement was worth slightly less than half of that sum.

 

 

Some four years later, on 23 July 2014, W issued a notice seeking permission to appeal out of time against the consent order alleging material non-disclosure on the part of H at the time of the 2010 financial negotiations. In essence, her case in the substantive proceedings (which are due to be heard by Moor J between 6 and 8 July this year) is that she did not know until May 2014 that H (as opposed to their three children) was the primary beneficiary of two family trusts. At the heart of her case in relation to the alleged non-disclosure lie the central allegations that (a) he failed to disclose the existence of two trusts; (b) she was unaware at the time of the agreement which underpinned the consent order that the trusts had recently received payments amounting to just over £4 million; and (c) that he was the primary beneficiary under the terms of both trusts.

 

 

As part of the issue in the appeal was Wife’s claim that the appeal was out of time was a result of discovery in July 2014 that there had been material non-disclosure, one can see why DBQC’s email in September 2012 suggesting that the Wife had wanted advice on ?poss non-disclosure was pertinent and relevant.

 

The issue was, was that email subject to legal professional privilege and admissible only if the Wife chose to waive that privilege?

 

 

The email came to light when the Husband changed solicitors, and by happenstance, chose Levison Meltzer Piggot – a conflict check revealed that the Wife had consulted with the firm and that check turned up the email sent by DBQC to Mr Ribet of that firm.

 

 

On the factual basis, the Court found the following facts

 

  1. My observations and findings of fact based upon the evidence presented in the court bundle

 

Before turning to the law, it seems to me that by this stage we have reached a situation where the facts as I find them to be on the balance of probabilities can be stated as follows :-

 

 

  1. The conversation between W and Miss Spurway

(i) According to W’s own recollection and prior to Miss Spurway’s conversation with DBQC on 19 or 20 September 2012, W had spoken to Miss Spurway on one occasion in the context of her wish to seek legal advice. She was driving alone in her car at the time of this conversation. [B/3:38][B/7:54]

(ii) At some point during its course, Miss Spurway asked W if she might speak to DBQC whose identity was then unknown to W but who had been recommended to Miss Spurway as an expert in her field of family law by a friend. That friend’s identity was entirely unknown to W at the material time and it is her evidence that she did not even know the name of Miss Spurway’s friend (who was the initial point of contact with DBQC) until the existence of the email chain of 19/20 September 2012 was disclosed to her in H’s solicitors’ letter dated 30 September 2014 : see [A/4:46].

(iii) W was subsequently informed that Miss Spurway had spoken to DBQC and had told her a number of matters about W’s (then) concerns. There is no further information or particularity as to what was said save that DBQC had sent an email to the solicitor she had recommended (whom we know to be Mr Ribet). That email refers to (a) non-performance of a consent order and (b) (perhaps) possible non-disclosure [A/4:42].

(iv) Miss Spurway reported to W that DBQC had said that she wished to be kept informed as to developments.

(v) As a result of that recommendation, on a date subsequent to 20 September 2012 (which W says was ‘late 2012’), W did establish contact with LMP to take advice.

  1. The conversation between Miss Spurway and Miss Ledwith

(vi) At an unidentified point in time, Miss Ledwith had communicated to Miss Spurway in a conversation between them the fact that she knew DBQC whom she described to Miss Spurway as ‘a top family lawyer’ [B/6:50].

  1. The conversation between Miss Ledwith and DBQC

(vii) Whatever information Miss Ledwith imparted to DBQC during their telephone conversation it did not come first hand from W (who did not then know of Miss Ledwith’s existence and had never spoken to her).

 

  1. The conversation between Miss Spurway and DBQC

(viii) There is nothing in the written evidence to assist me with the precise date and time when the conversation between Miss Spurway and DBQC took place. Miss Spurway’s evidence is simply that Miss Ledwith ‘arranged for her to speak with Miss Bangay’ [B/6:50]. In particular, I do not know whether DBQC’s email sent to Mr Ribet at 08:57 on the morning of 20 September 2012 alerting him to the possibility of a call from W was sent before or after her conversation with Miss Spurway. I find that it is likely to have been after her conversation with Miss Spurway because of the reference in the latter’s written statement to DBQC’s agreement to contact Mr Ribet to let him know that W might get in touch with him. This would put their conversation at some point prior to 08:57 on 20 September 2012.

(ix) This telephone conversation was short [B/6:50].

(x) During its course, Miss Spurway referred to the name of the family company (SC) and ‘discussed matters [unidentified] which are alleged to be sensitive and private relating to W and her family’ which Miss Spurway understood DBQC would not share with anyone else (including, presumably, Mr Ribet unless and until she might be formally instructed). [B/6:50]

(xi) There is no suggestion in any of the evidence put before the court by W and/or Miss Spurway that DBQC was either asked for legal advice or gave legal advice during the course of this conversation. There is no suggestion in the email which DBQC subsequently sent to Mr Ribet on 20 September 2012 that she had given any such advice although it is clear from the reference in that email to both the possible breach of a consent order and potential issues of non-disclosure that some information had been exchanged which led her to deduce that these were possible legal issues which might need to be explored in the event of a formal instruction by W. The other alternative is that these issues were identified by Miss Spurway herself without any input at all from DBQC and the tentative nature of her succinct email to Mr Ribet was no more nor less than a reflection or reportage of what she had been told might be the subject of W’s wish to seek legal advice.

(xii) DBQC explained to Miss Spurway that she could not accept direct instructions from W (and therefore, presumably from any agent instructed on W’s behalf). She tendered Mr Ribet’s name as a solicitor whom W might wish to go to see. She appears to have explained to Miss Spurway (although it may be no more than a deduction on Miss Spurway’s part) that in the event such contact was made by W, it would then be possible for Mr Ribet to instruct DBQC on W’s behalf.

 

 

The legal arguments were tricky. On the one hand, Wife asserted that throughout the chain of discussions, she was obtaining advice in confidence and that legal professional privilege applied to each stage, including fundamentally the email between DBQC and Mr Ribet.

 

The fact that Husband actually HAD the email in his physical possession did not affect the fact that it was privileged and he could not make use of it.

 

Finally, Mr Pointer reminds me that the fact that the emails passing between DBQC and Mr Ribet have been disclosed to H does not mean that the privilege and/or confidentiality belonging to W are now irrevocably lost. The court in these circumstances retains the power to regulate the evidence.

 

 

In B v Auckland District Law Society (cited above), Lord Millett said this at paragraphs 69 and 70:

 

 

‘The Society argued that, once the documents were produced to Mr Ennor, they ceased to be privileged. Their Lordships consider that this was playing with words. It confuses the nature of the documents with the rights to which the arrangements with Mr Ennor gave rise. The documents are privileged because they were created for the purpose of giving or receiving legal advice. If they are not produced voluntarily, production cannot be compelled. If they are produced voluntarily, the right to withhold production no longer attaches to them. In that sense the privilege may be said to be lost. But they are the same documents, and it is not inappropriate to describe them as privileged. Their inherent characteristics are the same. The policy which protected them from unauthorised disclosure is the same. The cat is still a cat. It can be put back in the bag.

There is another confusion also. The appellants want to recover the documents because they are privileged. But they do not rely on privilege to found their cause of action. A party who has parted with possession of documents may have a right to recover possession on any one of a number of grounds. He may reclaim them because they belong to him; or because he has a contractual right to recover then; or because they are confidential; or because he has parted with them for a limited purpose and equity will not permit the recipient to retain them once that purpose is fulfilled. In the present case the documents are both privileged and confidential, but the appellants do not rely on privilege or confidentiality to found their claim to recover them. They rely on the terms of the arrangements under which they were supplied and the limited purpose for which they permitted use to be made of them. Their case is that there is no legal basis on which the Society can retain and make use of the documents free from the limitations which Mr Lusk imposed and Mr Ennor accepted.’

 

On the other, Husband asserted that what passed between Wife and Miss Spurway, and later between Miss Spurway and Miss Ledwith was ‘confidential between friends’, it was not legally privileged. There had been no authorization by Wife to appoint Miss Spurway or Miss Ledwith as AGENTS on her behalf to instruct a lawyer and obtain legal advice, therefore the conversations that resulted in the production of the email were not legally privileged. Also, fundamentally, that it is the task of the person asserting that privilege applies to prove it.

 

I was also referred to the older authority of Wheeler v Le Marchant (1881) 17 Ch D 675. In that case Jessel, MR said this, at page 681:

 

 

‘… In the first place, the principle protecting confidential communications is of a very limited character. It does not protect all confidential communications which a man must necessarily make in order to obtain advice, even when needed for the protection of his life, or of his honour, or of his fortune. There are many communications which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. The communications made to a medical man whose advice is sought by a patient with respect to the probable origin of the disease as to which he is consulted, and which must necessarily be made in order to enable the medical man to advice or to prescribe for the patient, are not protected. Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected. Communications made to a friend with respect to matters of the most delicate nature, on which advice is sought with respect to a man’s honour or reputation, are not protected. Therefore it must not be supposed that there is any principle which says that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected. The protection is of a very limited character and, in this country, is restricted to obtaining the assistance of lawyers, as regards the conduct of litigation or the rights to property….‘.

 

I was taken also to the judgment of Buller J in Wilson v Rastall 4 TR 753 (1792); 100 ER 1283. Whilst the authority now has to be seen in the context of more recent authority on the subject, the principle remains undisturbed in relation to the basis of the privilege. At page 1287, his lordship stressed that the doctrine of LPP was confined to cases of counsel, solicitor and attorney and ‘in order to raise the privilege, it must be proved that the information, which the adverse party wishes to learn, was communicated to the witness in one of those characters’. Later he said, ‘It is indeed hard in many cases to compel a friend to disclose a confidential conversation; and I should be glad if by law such evidence could be excluded. It is a subject of just indignation where persons are anxious to reveal what has been communicated to them in a confidential manner ….’.

 

 

A modern restatement of the law can be collected from the decision of the Court of Appeal in R (Prudential PLC) v Special Commissioners of Income Tax [2011] QB 669 where Lloyd LJ (with whom Mummery and Stanley Burnton LJJ agreed) reaffirmed the principle that a conversation between friends, however confidential and sensitive, does not attract LPP even if its contents relate to legal matters or concerns. The Supreme Court upheld this judgment and, in so doing, made it plain that it was for Parliament to decide whether, and in what circumstances, it might be appropriate to expand the doctrine ([2013] 2 AC 185 at [51] to [52] (per Lord Neuberger); at [77] and [80] (per Lord Hope); at [92] (per Lord Mance); and at [96] to [98] (per Lord Reed)).

 

 

 

 

The Judge had to decide on the nature of the conversations and whether they attracted privilege

 

(i) Does the conversation (or conversations, if more than one) between W and Miss Spurway prior to her making contact with DBQC attract the protection of LPP (and specifically LAP) ?

 

Was W, in the context of her conversation(s) with Miss Spurway, giving instructions, or authorising her friend, to seek from DBQC (i) a recommendation for a lawyer, and/or (ii) legal advice generally and/or in relation to the way forward in terms of any potential claim she might be advised to bring ? If so, was W’s conversation with Miss Spurway, and the ‘number of matters discussed’, to form the description of the case or set of facts from the basis of which DBQC was being asked to advise ?

 

 

Having considered carefully the contents of the statements prepared by both W and Miss Spurway, I can find no evidential basis for finding that there was ever a request or authorisation made or given by W to Miss Spurway to seek legal advice from DBQC. I am satisfied that W understood that Miss Spurway was going to approach DBQC with a view to securing a recommendation as to who might act on her behalf in the event that she were to dispense with the services of the lawyers who had been advising her throughout the 2010 proceedings. It is clear that Miss Spurway was able to secure through information passed to her by Miss Ledwith the name of ‘a top family lawyer’. No doubt that description (or words to that effect) was conveyed to W by Miss Spurway in the context of her securing W’s authorisation to speak to DBQC on her friend’s behalf. Whatever the nature of the ‘sensitive and private matters’ which were discussed on that occasion, it is clear that DBQC explained to Miss Spurway at some point during their short conversation that she could not accept instructions directly from W (and thus could not give advice).

 

 

Miss Spurway confirms in her statement that she understood that DBQC would not in any event share the content of whatever was discussed with any other third party. Inevitably, it seems to me, there must have been some preliminary discussion between them to inform the content of DBQC’s subsequent email to Mr Ribet. I know not whether the reference in that email to ‘.. non performance of a Consent Order and ? poss non-disclosure’ was a deduction made by DBQC from the content of her conversation with Miss Spurway or whether these were the words used by W’s friend. In either event, having provided Mr Ribet with a ‘heads up’ on the possibility that W might make contact, DBQC ceased to have any further involvement in the case prior W’s instruction of Mr Ribet in ‘late 2012’. I have already explained in paragraph 62 my reasons for concluding that she had no further involvement on behalf of W after his instruction and prior to her subsequent instruction by Pinsent Masons LLP on behalf of H.

 

 

Thus, I have reached a clear conclusion that, in answer to the question posed above, the conversation between W and Miss Spurway (or conversations, if there was more than one) cannot on any view be said to attract the protection of LPP (and specifically LAP). These were simply conversations between friends. During the course of one of those conversations, W learnt that Miss Spurway had been able (through assistance from a friend of hers, unknown to W) to identify a ‘top family lawyer’ with whom contact had been established through the good offices of this friend. W accepted her friend’s offer to speak to this lawyer with a view, as I find, to securing a recommendation as to whom she might go to for professional advice. I can find no basis whatsoever for a finding that she specifically authorised her friend to secure that advice from DBQC on her behalf.

 

 

 

Next

 

(ii) Does the (admittedly, short) conversation between Miss Spurway and DBQC on 19 / 20 September 2012 attract LPP ?

 

It follows from my conclusions in relation to the first question that the approach made by Miss Spurway to DBQC was directed towards securing assistance for W in terms of a recommendation as to who might assist her friend to take these matters forward. Had Miss Spurway intended to pursue the conversation beyond the point of securing a recommendation, she was stopped firmly in her tracks by DBQC who made it plain that she could not accept W’s instructions (and thus, in my view, could not give advice) other than through formal instructions from a solicitor. I am satisfied that there is nothing in the material put before me which establishes that W herself authorised Miss Spurway to act as a conduit or agent for the purposes of a specific request for legal advice or, upon the receipt of any such advice, for onward transmission back to her. All that W said was that she was happy for Miss Spurway to speak to DBQC on her behalf. She provides no evidence which would come close to establishing on the balance of probabilities that Miss Spurway was being instructed as an agent of communication to relay information on her behalf to a lawyer. As is stated in paragraph 1.51 of The Law of Privilege (2nd edition) edited by Bankim Thanki QC,

 

 

‘If you ask your lawyer for advice about your love life, this will clearly not be privileged. But even if he is consulted about the law, privilege will not arise if a lawyer is consulted on a social rather than a professional basis. While a formal retainer is not necessary, there are limits. Buttonholing your lawyer neighbour for free advice at a barbeque is unlikely to attract privilege, even if the subject matter is entirely legal. …. The fact that an individual happens to be a lawyer will not cloak all communications with him with privilege unless he is consulted professionally in his capacity as a lawyer.’

 

It seems to me that this passage is entirely analogous to the position in which DBQC found herself when she took the telephone call from Miss Spurway on 19 or 20 September 2012. There is no issue at all but that Miss Spurway was entirely unknown to DBQC

 

 

Thus, I have reached the conclusion that at no stage of the time line was there a formal relationship between DBQC and Miss Spurway (as agent for W) and/or between DBQC and W of professional legal adviser. DBQC was very clear to Miss Spurway that this relationship could not be achieved unless and until she received formal instructions. At no point during that short conversation was she acting in a professional capacity

 

 

This is looking very bad for Wife.

 

 

Does Minter v Priest save her? Minter v Priest says that conversations between a person and their lawyer can be capable of being privileged where they are ‘sounding out’ conversations prior to formal instruction, but where the intention is that a person is seeking to engage a lawyer to advise or represent them. If Wife had not formally instructed DBQC, as found above, could it be argued that she had ‘contemplated the relationship” in accordance with Minter v Priest?

 

 

Equally, I do not accept that Minter v Priest (cited above) affords W any assistance in these circumstances.

 

 

In Minter v Priest, the Court of Appeal explained that the confidential relationship between a solicitor and client is established from the moment when the solicitor invites that prospective client to tell him about matters on which he seeks advice and which are within the scope of that solicitor’s particular expertise. It matters not whether that solicitor has by that stage been formally engaged by the prospective client. The House of Lords approved that test and explained that “the contemplated relationship … of solicitor and client … was sufficient” (per Lord Buckmaster at 588, above).

 

 

This situation is not on all fours with Minter v Priest because, as I find, W was never in a relationship with DBQC as a contemplated client of a professional legal adviser. The facts will simply not support that analysis at this point of the time line. DBQC’s rejection of her ability to assist unless and until she received formal instructions to act does not, in my view, place her in the position of a prospective adviser to W. She gave her recommendation of Mr Ribet. W could have conducted further research about Mr Ribet’s professional credentials on his firm’s website or from any other source and decided not to instruct him. Even in circumstances where she did subsequently instruct Mr Ribet, I am satisfied that he, on her instructions, did not deliver any formal instructions to DBQC to act on W’s behalf. It is just as possible that W might have been presented with a number of different barristers’ names by Mr Ribet and she might well have decided to instruct someone other than DBQC. In these circumstances and applying the law as I have referred to it above, I have reached an equally clear conclusion that the conversation between Miss Spurway and DBQC on 19 September 2012 did not, and could not on any basis be said to, attract LPP.

 

 

 

Thus, Wife’s application for an injunction that Husband could not make use of the contents of the email between DBQC and Mr Ribet on the basis of legal privilege failed. Could she instead rely on a general position of confidentiality – i.e that she had understood, and the parties in the chain had understood that what was being discussed was confidential? It isn’t as robust as legal privilege, which the Court can’t waive, but in some cases that confidentiality can lead a Court to rule that the documents should not be used in evidence.

 

 

The cat point comes up again here – Husband argued that whether or not confidentiality applied, once the documents were disclosed, they were now fair game.

 

I nevertheless have to consider whether W is entitled to some form of equitable relief on the basis that her communications with Miss Spurway and Miss Spurway’s communications with DBQC were regarded by the two friends as confidential. On the basis of my review of the authorities (above), I am minded to consider the position in relation to injunctive relief on the basis of a hypothetical acceptance of Mr Pointer’s submission that there remains in the court a residual discretion to prevent the use of confidential material even in circumstances where a claim for LPP is not made out.

 

 

I accept, self-evidently, that relevance alone, whilst a necessary ingredient, does not provide the answer. The court retains a discretion even in circumstances where a document is clearly relevant. Mr Green has confirmed, as I have already said, that H has no intention of seeking to invade the privilege of LMP’s file insofar as it relates to W’s instruction of that firm in late 2012. Mr Pointer seeks to persuade me that, if he is wrong about LPP attaching to W’s conversations with Miss Spurway and that lady’s conversations with DBQC, I should consider in the balance whether, and how far, the contents of these conversations are likely to assist Moor J in his determination of the issues which will be ventilated at the forthcoming hearing in July this year. He points to the issue being W’s state of knowledge about H’s beneficial interest in the trusts in 2014. He says that there is no evidence that she had that information before that date. He says that there is nothing in the confidential information which is likely to advance the case one way or another as to W’s actual knowledge in 2012. Thus, he concludes, there is a real issue as to how far the confidential information can be considered as necessary for the purposes of disposing of the appeal.

 

 

I am ignoring for these purposes the fact that H now knows about this information. It seems to me that the law is clear : the cat can be put back into the bag if this is necessary and that end can be achieved by the grant of an appropriate injunction.

 

 

The Court could therefore, make an injunction that the email would not be used in evidence, even though it was in Husband’s possession. But would they?

 

No.

 

As I said in paragraph 66 of my judgment, if W had indeed been alive to potential issues of non-disclosure in 2012 but allowed matters to rest for a further two years before taking any steps to set aside the consent order, that factor will undoubtedly be one which the learned judge will wish to consider in deciding whether to grant W the relief which she seeks. In this context, it seems to me that her state of knowledge in 2012 is likely to be highly relevant and material.

 

 

In the circumstances, I have decided that notwithstanding the absence of any privilege in DBQC’s email of 20 September 2012, there are no overriding circumstances which would justify the grant of injunctive relief on the basis of confidentiality per se to restrain the use of that document or the information contained within it at the forthcoming hearing before Moor J in July 2015. Whether or not I have jurisdiction to grant the declaratory relief which H seeks in his cross-application dated 15 April 2015 (the email and any record of it and the conversations between W / Miss Spurling / DBQC can be adduced as evidence) seems to me to be subsidiary to the principal point in issue. I have found as a fact that there is no privilege attaching to either the document itself (i.e. the email dated 20 September 2012) or the conversations which informed the content of that email. In the circumstances, I dismiss W’s applications dated 4 and 25 March 2015 in respect of injunctive relief which might otherwise prevent either of Mr Sear and/or Pinsent Masons LLP from continuing to act for H. It is no longer necessary for me to determine whether DBQC should be precluded from acting, she having withdrawn from the case on 15 April 2015. I decline to make any orders requiring H to redact any part of his witness statement dated 23 January 2015 and I make no orders in respect of injunctive relief concerning the correspondence passing between H’s and W’s solicitors insofar as it relates to the use of confidential information.

 

 

There is also in this case all sorts of exciting Game-show / Brendan Rodgers stuff about the Wife having put some information in a sealed brown envelope that she was prepared to let the Judge see but not the other parties. The Judge (rightly in my humble opinion) decided not to open this envelope or look at its contents before considering the case.

 

 

W has filed a fifth statement in these proceedings. It is dated 31 March 2015. In that statement she refers to the fact that she has deliberately refrained from including in her earlier statements the substance of her conversation with Miss Spurway in September 2012. She continues to maintain that this conversation was confidential and any information passed on to DBQC by Miss Spurway and from DBQC to Mr Ribet was similarly impressed with that confidence. In order to ‘cure’ or remedy the absence of any specific details, she has provided a summary of that conversation in a sealed brown envelope lodged with the court which she invites me to read despite the fact that she continues to maintain her privilege and confidentiality over that material. I indicated at an early stage of these proceedings that I was not minded to accede to any request which might be made of me by Mr Pointer and Mr Webster to read that material. Whilst I accept that I am entitled to look at that information, I take the view that it would be wholly inconsistent with my obligations to reach a conclusion in these matters on the basis of a fair and transparent hearing in which neither party had any forensic or other advantage over the other. It would have placed Mr Green and his junior counsel, Mr Hickman and Mr Sear, in an impossible position. Further, it might well have resulted in my having to produce a redacted version of my judgment if and insofar as it might have included reference to the ‘brown envelope’ material. The lawyers and the parties in this case are fully entitled to know the reasons underpinning any decision I might reach. That would prove impossible if I were to have read material which I regarded to be relevant, the contents of which were unknown to H and his team. Transparency and openness lie at the very heart of fairness and judicial impartiality. Whilst there may be circumstances in which other outside interests and public policy considerations might entitle a judge to read material which is not disclosed to the other side (for example, in situations regarding public interest immunity applications), this is not such a case. As I shall explain when dealing with the law, the authorities to which I have been referred make it quite clear that there is an obligation upon an applicant who seeks to rely upon LAP to include in his or her evidence as much detail as possible in his or her evidence in support precisely in order to avoid this sort of situation arising.

 

 

 

At the end of the case, the brown envelope issue is dealt with.

 

 

It seems to me that the next step is for H’s legal team to be shown the statement made by W which is presently contained in the ‘sealed brown envelope’. Mr Green tells me in paragraph 8 of his skeleton argument that she has accepted that, if the material is not privileged, H should be provided with her written ‘summary’ of the conversation she had with Miss Spurway. That may enable both sides to take a view as to the way forward. As I have already said, I have not read this material and it may very well be that W has a complete answer to H’s allegations as I have set them out in paragraph 102 of my judgment.

 

 

 

The big lesson from this case is – if you want to have a conversation that is genuinely off-the-record, then it has to be with a lawyer that you have either formally instructed or you are genuinely contemplating instructing. Friends, even very well-meaning ones, don’t count.

 

I have just realised that if you don’t know the Brendan Rodgers brown envelope story, and your only knowledge of him is that he is a football manager then you may wrongly think that the story is about the envelopes being full of off-the-record cash used to influence transfer dealings – or “Bungs” as in the case of [name removed on legal advice] or [name removed on legal advice] or [name removed on legal advice]

 

No, it is no allegation of criminal misdeeds, just some management bull**** technique. Before a match, Brendan told his Liverpool players that he had written the names of three players who would let the club down that season inside envelopes and sealed them – and then told them “don’t let your name be in that envelope”

 

http://www.mirror.co.uk/sport/football/news/being-liverpool-brendan-rodgers-envelope-1369893

 

The clever trick being ‘ha ha’ there never were any names in the envelopes.

You may be thinking here, if Brendan Rodgers was my boss, I’d be doing everything in my power to get away from him. I will cite Luis Suarez  (biting people at a world cup), Steven Gerrard (signing for an American team) and Raheem Sterling  (throwing toys out of pram, saying that he wouldn’t sign a new contract if Liverpool offered him £900,000 a week to play), as reasonable evidence that your belief is shared by others.

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