I’ve had to look up Scottish adoption law today, and found this little piece from the 1995 legislation (Children Act Scotland Act 1995)
96 Duty of adoption agency to consider alternatives to adoption.
After section 6 of the 1978 Act there shall be inserted— “6A Duty to consider alternatives to adoption.
In complying with its duties under section 6 of this Act, an adoption agency shall, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of that child or whether for him there is some better, practicable, alternative; and if it concludes that there is such an alternative it shall not proceed to make those arrangements.
If you just added “And the Court” each time that this says “adoption agency”, it is a pretty workable solution to the whole “nothing else will do” debacle that has had everyone tied up in knots.
I know that in English family Courts, “the Scottish system” is whispered with an air of dread and menace much like actors referring to “the Scottish play” but I’ll point out that this was in their legislation nearly twenty years ago AND three years before the Human Rights Act was adopted. It looks pretty progressive to me.
[We don’t have anything like that in our English or Welsh adoption statutes – this principle of adoption being last resort is purely as a result of judicial interpretation. Be quite nice to have this principle set out in statute, and particularly in such a clear way.]
Re D is the case in which parents had a care order at home, the LA removed under the Care order, there was no legal aid to challenge that decision despite father lacking capacity to instruct a solicitor. Then the LA lodged an application for a Placement Order, and as it was not joined up with care proceedings, there was no legal aid for THAT either.
Father’s legal team were not only acting for free, but they had to write the Official Solicitor an indemnity that if a costs order was made against the O/S they would pay it. Which is above and beyond.
So Part 2 is all about whether Legal Aid would be granted for the father under s10 LASPO (exceptional circumstances) and if not, what would happen.
Annoyingly, as keeps happening before the President, the Legal Aid Agency eventually blinked and granted funding, thus avoiding a judgment that might declare that s10 LASPO as being practiced is incompatible with article 6. So we don’t get a valuable precedent because there was no live issue to try. Grrrr.
However, note that the public funding granted here is still subject to an ongoing merits review (that’s NOT what happens in care proceedings – even if your case looks hopeless you are still entitled to have a lawyer fight it for you)
The next hearing took place on 2 December 2014. As can be seen from the Annex, the final piece of the legal aid jigsaw had fallen into place the day before. My order recited the position as follows:
“The Father has a substantive funding certificate to cover all work undertaken to date and up to a final hearing in both the s.39 CA 1989 and s.21 ACA 2002 applications. The Official Solicitor will, in the usual manner, conduct an ongoing review as to the merits of the case and this may effect whether the funding certificate will remain in place.
The Mother has a substantive certificate to cover the period up to the exchange of final evidence in respect of both the s.39 CA 1989 and s.21 ACA 2002 applications,whereupon it will be subject to a merits review and report to the LAA which will determine whether the certificate will be extended to cover the final hearing.”
So it could be that if all of the professional evidence is against the parents, they will have no legal aid to have lawyers to challenge and test that evidence at a final hearing, although what is at stake is adoption.
The President has strong views about this (though note that parents routinely don’t get lawyers to help them on applications for leave to oppose the making of adoption orders, which also feels pretty shabby to me)
I have set out the parents’ legal aid position in paragraph 14 above. It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkablethat the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:
“To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”
A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.
The really sad thing about this case is encapsulated by the mother
This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, tolearn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.
I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this:
“The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.”
They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?
Hear hear.
Equally, it can’t be a decent solution to this situation that we have to get a case before the President before the Legal Aid Agency will blink and see sense. He can’t hear all of them.
The annexe is shocking- it has taken nine months of wrangling to sort out legal aid for something that most people would assume was automatic.
I completely agree with the position of the ALC (Association of Lawyers for Children) and ADCS (Association of Directors of Childrens Services) – parents facing an application for a placement order should get non-means, non-merits public funding regardless of when the application takes place.
…the ALC makes these two assertions:
“Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable.
Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided.”
I draw attention to two of the points made by the ADCS. The first is that:
“From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child’s parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings
In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem.”
[For the benefit of pedants, yes, I know it is ‘squib’, but I like that particular eggcorn. Actually, this case isn’t quite as damp as it appeared when I first read it, because there’s a rap over the knuckles for LASPO here, although it doesn’t end up being the declaration of incompatibility that many were hoping for]
There have been a lot of decisions recently by the Disney Court of Character Rights, sitting in Never-Never Land. Here is a round-up
Simba v Scar
In this case, Simba brought a case for breach of article 6, claiming that he was not given a fair trial against allegations of murdering his father Mustafa and that his uncle Scar in effect banished him from the Kingdom, thereafter seizing the throne.
The Court held that Scar was not in breach of Article 6, which does stipulate that in Act One, the antagonist is entitled to pass judgment and sentence on the protagonist on fairly superficial or even fabricated evidence and that the general population will go along with this PROVIDED that in Act Three there is the opportunity for redemption and forgiveness. The Court were persuaded by Scar’s evidence that prior to the death of King Mustafa, the Applicant Simba had been heard jauntily singing a song to the effect that he just couldn’t wait to be King (this being prima facie evidence of his desire for his father to die)
Fundamentally the Court felt that bringing this claim in Act One was premature and that Simba in the spirit of the Disney Character Rights Act ought to wait until Act Three to see if the injustice is remedied.
The Court found that Scar had given every reasonable opportunity for an Act Three turnaround – he had adopted a suspicious name (Scar), he had a suspicious British accent (see also Mowgli v Shere Khan) and he had properly followed the principles that Evil Antagonists Should Be Bad Rulers in somehow bringing hunger and misery to a previously thriving and colourful kingdom in a remarkably short period of time.
They did however feel that Scar’s actions in allocating two hyenas Rozencrantz and Guildenstern to be Simba’s comedy sidekicks, and the choice of song “Hasa Diga Ebowai” to be in breach of all regulation and guidance on inspirational comedy sidekicks (see also the Court’s previous decision in Ariel, where the antagonist’s choice of a rotting alcoholic squid for a comedy sidekick for the protagonist was quashed and replaced with a cheerful upbeat crab)
The Court therefore ordered that two more suitable comedy sidekicks be provided and they recommended that the song be more upbeat, suggesting “Hakuna Mutada”, which they explain means no worries for the rest of your days.
Advocates are asked to take note of the Court’s remarks in the judgment that “a little bit of Elton John may be considered acceptable, but two hours of it is a bit much”
Prince Hans of the Southern Isles v Anna
Prince Hans was claiming breach of Article 7, “Right of Princes to marry Princesses” in relation to Princess Anna’s decision to break off their engagement and marry Kristoff, a commoner ice-farmer instead.
The Court held that although Article 7 has widespread applicability, it was wrong for Prince Hans to assert that it gave him the right to marry a specific and identified princess rather than just a generic right that he would marry A princess.
In relation to the claim that Princess Anna marrying a commoner would inexorably lead to other Princesses marrying people who were not princes and thus lead to it being impossible for Article 7 to be satisfied, the Court felt that this had some force, but cited as precedent earlier decisions of the Disney Court of Character Rights in relation to Characters falling in love with people from a different social circle
[Lady and Tramp – in which the re-enactment of the spaghetti-eating sequence caused one Judge to state in his judgment that “It nearly broke my heart” and the later case of Thomas O’Malley (The Alley Cat) and his marriage to an cat who was so posh that she wore a necklace. ]
They determined that the inherent nature of Princesses to want to marry Princes was so strong that an occasional deviation such as this would not set a precedent. (One minority judgment held that once Kristoff married the Princess he would become a Prince anyway, thus satisfying Article 7)
The Court further held that in relation to Princess Anna breaking off the engagement to Prince Hans, his failure to be her One True Love and kiss her to break a curse was a material breach of his One True Love article 9 duties towards her, compounded by his later attempt to murder her, and her sister. Anna was therefore entitled to terminate the engagement.
Additionally, as the engagement had never been approved by the defacto Queen, Elsa, it was questionable whether there was in law, an engagement to break.
The Court determined that Prince Hans “had had it coming” and declined to give him the relief that he had sought. In short, they concluded that he should let it go. [The same minority judgment opined that “Princess Anna, is indisputably hot, but it is plain that she is also high-maintenance and pretty tiring and Hans might be best to consider it a lucky escape. I myself had had enough of her after about ten minutes”]
Mirror Mirror v Disney Court of Character Rights
This is satellite litigation arising from Snow White v Wicked Queen, where Snow White established that administration of a poisoned apple leading her to fall asleep was a breach of her article 5 right to liberty. (Who can ever forget Lady Hale’s moving song “A gilded cage is still a cage”? )
Within that, evidence was heard from the Wicked Queen’s mirror, particularly as to motivation and intent. The mirror was only able to answer questions that were put to it in rhyming couplets (the first of which should be related to the mirror’s geographical location)
That led to questions being put to the witness such as “Mirror Mirror on a kite – Did the Queen intend to detain Snow White?” and “Mirror Mirror on the quilty – do you say the Queen is guilty?” and from those representing the Wicked Queen – “Mirror Mirror resting on bacon – could you perhaps have been mistaken?” and “Mirror Mirror in a bath of acid – wouldn’t you say the Queen’s overall nature was placid?”
For such questions, the mirror was hoisted up on a kite, or laid on a quilt, or in the worst example, put in a bath of acid for the duration of the question.
The Mirror claimed that this amounted to inhuman and degrading treatment in breach of Article 3. Sadly, the Court were unable to explore this claim properly without the Mirror being hoisted up onto a kite or such again, with the very first question proposed
“Mirror Mirror down the drain – how do you establish your claim” being in itself potentially a breach of article 3
The Court settled this claim by writing the Mirror a substantial cheque and asking it to go away.
Sleepy v Doc and the Six men wearing shoes on their knees band
Litigation over the royalty rights to the original songs created by the Seven Dwarves (Hi Ho, Hi Ho being the major hit of the original band) rages on. Of the original line-up, only Doc is left in the band, and he claims that he wrote all the original material and is entitled to perform it with the Seven Dwarves tribute band. As readers will know, Dopey signed away his rights for some magic beans, Sneezy is in his fifth year of rehab, Grumpy is now in a death-metal band, Happy proclaims himself content with the situation, and Bashful was too publicity shy to enter the litigation, leaving only Sleepy to litigate. Progress has been slow, due in part to narcolepsy in the witness box.
Buzz Lightyear v Carbolic Smoke Ball Company
Over in Pixar litigation, this case continues into its seventh year, with the Court hearing from expert witnesses as to whether “To Infinity and Beyond” was a contractual obligation to which Mr Lightyear could be forced to meet or rather a puff of advertising. Mr Potato-head remains in custody, having taken the stand as a character witness for Mr Lightyear and then having appeared again subsequently using facial pieces stolen from Mrs Potato-head to give evidence whilst pretending to be her.
Mr Lightyear’s request to call Andy, his owner, as a character witness was refused, on the basis of the application of the Uncanny Valley principle (in short that the real people in Pixar just give everyone the creeps because they just don’t look right)
In other news
The big money divorce of Perdita v Pongo has reached a conclusion. There was considerable consternation in Court when Perdita revealed that Pongo had been pressurising her into starting a second litter. The Puppy Maintenance payments ordered by the Court are believed to be the biggest on record, and the schedule of Puppy Arrangement Orders setting out when Pongo would spend time with each puppy ran to seven lever arch files.
Baloo’s cookery programme has been taken off air after several claims for food-poisoning due to viewers following his advice to “take a glance at the fancy ants, and maybe try a few” were settled out of Court. There are also allegations that Baloo had been moon-lighting as Little John, and his showbiz career appears to be in tatters.
The lower Courts have confirmed that in Backtrack v Mowgli that when King Louis stated baldy “Oh, Shooby-Doo, Nothing Else Will do –ooh-ooh” he had never intended to mean that literally nothing else will do. Nor did he literally want to walk like you, or talk like you. It’s plain to see, that someone like Louis, can learn to be, like someone like you.
[And I’m sure that you are now humming I wanna be a man, mancub, and stroll right into town – so here it is for you. ]
If you don’t happen to read Adam Wagner’s UK Human Rights blog which inspired this pastiche, I’ll recommend it to you. It has a much broader focus than this blog, and you can usually find something very thought-provoking there – whether it be what should be done with King Richard II’s bones, whether people should have the right to die with dignity or where the limits of religious conscientious objection to abortions stretch in relation to Catholic midwives – and today, why Strasbourg was chosen as the correct venue for the European Court of Human Rights – it is nothing to do with geese, apparently.
It is immensely useful when the Press are having one of their periodical fits of morality, and you want to find out a bit more about what’s behind the story.
I had imagined that the President would be the first Judge to use the powers he speculated in Q v Q that the Court might have, to make Her Majesty’s Court Service pay the legal costs of a party who would have their article 6 rights breached by being unrepresented. But I was wrong. It was H H Judge Bellamy, sitting as a Deputy High Court Judge (always making my head hurt about whether it is precedent authority or not)
Re K and H (children : Unrepresented father : Cross-Examination of a Child) 2015 (The 2015/1 in bailii’s link suggests it might be the first 2015 reported judgment as well)
Bald facts – private law dispute, allegation about father sexually abusing the child, allegation disputed. Judge ruled that child was a capable witness and should be cross-examined. Dad did not want to cross-examine the child himself and all agreed that this would be bad – the forensic exercise much more serious than a Judge just ‘putting’ things to the child and in effect presenting father’s case.
Lord Chancellor asked to intervene, and represented very ably by Ms Whipple QC (funny how there’s always public money to get the best for the Lord Chancellor, but not for others…)
I’m going to surprise you now. I think the Lord Chancellor should appeal this decision, and I think they should win the appeal.
Why?
Because this isn’t a case of a father who would have got funding pre LASPO now not getting it, and not a case of the Legal Aid Agency being mealy-mouthed about section 10 discretion to grant funding. This man was over the financial limits for legal aid. And not a little bit – he was double the disposable income limit.
Now, that doesn’t mean that he can necessarily afford to pay privately for legal representation, nor that paying privately wouldn’t be expensive and wouldn’t hurt.
But we’ve not had in this country for private law disputes a situation where EVERYONE gets free legal advice regardless of means (we have that for parents in care proceedings, that’s different). There has always been a financial limit – a point at which the State says “you earn too much to get free legal advice” (or more accurately “you earn too much for other taxpayers to be footing your bill for free legal advice”. You might argue until the cows come home about whether that’s right or fair, but it has ALWAYS been the system. This is not a Grayling change, this man would not previously have got free legal advice under any government you care to mention.
Whether it is fair or not, the State has said, there’s a cut-off point – we soften it by saying when you are near it you can still get legal representation but you have to make a contribution to it, but if you’re double the cut off point, you don’t get free legal representation. Nobody in that position ever has, and there weren’t article 6 breaches in any of those cases.
If HMCS are going to fund this man, then they are potentially going to fund many more like him – and more to the point, all those people in the past who had to pay privately for their lawyers are going to rightly feel aggrieved.
The ECHR has never said that States can’t set financial limits on free legal aid and representation, nor where those limits are.
I’m no fan of LASPO, and have been pretty vocal about it, but this isn’t a LASPO failure or a LASPO injustice. This is a flat-out “when someone really needs legal advice and the State limits suggest that they ought to put their hand in their own pocket, should the taxpayer pay instead?”
Just because this bill is coming from HMCS doesn’t mean that the money isn’t ultimately coming from a taxpayer (and frankly, I’d be really, really wary of taking the case on for him because I don’t think whoever does it will ever see a penny – after all, if the Court stiffs you on your bill, what are you going to do about it? Sue? I think the French expression is, “to whom do you complain when it is the Judge who is screwing your wife?”)
I think it is a good judgment, and it is thorough and detailed, but for me, that key point is not given sufficient weight, and for that reason, I’d be expecting it to be appealed and successfully appealed to boot.
Amidst the jottings, pipes, story fragments, maps, papers and footnotes recovered from J.R.R Tolkien’s study, this, his sole attempt at a law report has been found. It gives a glimpse into why he did not follow that profession further. He was far better at lore than law (I’m SO sorry) Re B (A child) 2013 or “Heroes walk 2000 miles to reach a volcano, and then get a lift home from giant eagles* who could have pitched up much earlier on and saved everyone the bother”
In a hole in the ground there lived an appellant. The appellant had great cause to be vexed, and the burden of this vexation lay heavy upon their brow and their heart. They sought counsel from a wizard, Feehan the Frank, who is sometimes named Mithrandil, and from his apprentice McKenna, who is sometimes named Anna. Together, they embarked upon a Quest, such as was sung of in the days of yore, when dragons were uncracked eggs and the fire had not yet been lit in Mount Doom.
After many perils, and walks across this map
[Editor’s note – there were then inserted fifteen hand-drawn maps and labourious detail about what the party ate at every stop they made]
And after these trials, it came to pass, there in the lands of London, where the mists swirled and the streets were busy with trade, that the Council of the Wise, sometimes named the Supreme Court met, to decide what was to be done with adoption.
The Council of the Wise was divided on many things concerned with adoption – some felt that it was a good thing, a weapon to be used to tackle great evil, some feared even the mention of it, and still others felt that it was a thing that would corrupt all who attempted it.
Finally, after, much quarrelsome trouble, loaves of lambas bread and many flagons of warm foaming ale, the Council were able to agree upon this much at least.
“One does not simply walk into adoption”
Lady Hale, daughter of the evening star, she who has so often been the carrier of a Minority judgment, spoke with iron in her voice and fire in her eyes. She reminded all those who saw her of Cate Blanchett **
“it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide”
It is said by the sons of men that Feehan the Frank, had brought this precious document before the Council, and he had presented his case to them, declaiming that the forces of adoption were rallying, as they had done long ago, when the Children of Men were young to this world and the halls of the Dwarven Kings still rang with the sound of gold being mined and metal being forged. Feehan, keeper of Counsel to the Queen, had urged the Council to act, and to act now, and to act decisively.
He gave them a small scroll, on which was inscribed the word “require” – said to have been made by the Parliaments of yore. It was, said the wizard, for the Council of the Wise to decide what was meant by the word “require” on this scroll.
For if they did not, he said, it might be that the Halls of Strasbourg would take their own action and destroy adoption, fearing that it might be used for ill.
Lady Hale, she that would later take up against the Deprivation of the Liberty and do her own blood-soaked battle against the Cheshire of the West, rallied to his cause.
She spoke of the decisions made by the Council of Europe, who are not well-loved by all who sit upon the Council of the Wise, for the Europans have their own ways and thoughts and the Ways of Europans cannot always be fathomed by the Children of Albion. Nonetheless, she said, the Council of Europe know of the old things, they know of adoption, and they know of the evil that can stir in the hearts of the Children of Men.
“Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do,” she cried, and she took the ceremonial mace that had been gifted to the Council of the Wise by Lord Denning, son of Benning and cleft in two the Table of the Astute, which had been seized from the goblin halls of Berwick-upon-the-Tweed by the early rangers. The Table cracked and the sound rang out in the grand hall of the Council.
“A Fellowship!” she declared, “A Fellowship must be formed, to take this powerful tool – the word “requires” and to keep it safe and protect it. A Fellowship who will hear our words and take adoption to a place where only Nothing Else Will Do!”
At this critical and dramatic moment, Lord Wilson, son of Milson, grandson of Zilson, took it upon himself to sing a song. It was a grand song, a song that would be much remarked upon in the Shires and would be sung by the Children of Men when dark times later came. [Editor’s note – the song is recounted here in full, and lasts for nine pages. The most meaningful portion of the lyric is quoted here to give the flavour and indicate that you are not missing out by not seeing the full thing “Adoption, bedoption, it is surely the only option, it is the only thing that is viable, that is not deniable, there is no half-way house, there is no half-way mouse. Lo-Billy-Bonny, Show a brave leg, Lo-Bonny-Billy! Ho! Ho! Rack a grim jinty! Ho! Ho!”]
At the end of the Council meeting, wise soldiers from the Court of Appeal spoke out.
The Roll-Master said “You have my sword”
And the President pledged his bow
And Lady Black,declared that they could have her axe as well.
[They were later joined by StRyder] (again, I’m SO sorry)
So the Fellowship of Nothing Else Will Do was formed, there in the Holistic Chambers of Bs. The Holistic Chambers of Bs were a formal place and all of the architecture was in perfect proportion, and there were weighing scales in every direction that one could look upon. No linear corridors were there at any point during the magnificent building, making it treacherous and difficult to travel from one place to another in any straight line and instead one reached ones final destination by visiting every other realistic place in the Chambers seemingly at once.
It was said that not even the architects themselves of the Holistic Chambers of Bs would be capable of navigating its passages and hallways without faltering or stumbling, yet others hold that this is a myth and a lie and that the architects would always walk a true path.
[Editors note – Insert many many more songs and inconsequential characters who seem to exist for the twin purposes of being firstly a deus ex machine and secondly to sing the interminable songs. One of them, Chris Grayladill, appears time and time again, singing comedic songs about how his attempts to cut a piece of wood end up with him injuring himself and looking foolish]
Would the Fellowship of Nothing Else Will Do hold? Would the corrupting power of adoption drive a wedge between them? And what of the creature that watched them from afar, muttering “Adoption, my precious…” and occasionally saying his name “Gove-um”?
Michael Gove
Gollum
[* seriously, the damn giant eagles turn up at the end of both stories to save the day, with no explanation as to why they didn’t rock up much sooner. If Tolkein had written Apollo 13, bloody eagles would have flown Tom Hanks & Co home from space. Casablanca – giant eagles come and take Rick to Ilsa. Murder on the Orient Express – giant eagles did it] [** Do not confuse the Cate Blanchett in this piece with the Cate Blanchett of other blog posts meaning “free reign” or “unlimited budget”. And if you are a fan of Cate Blanchett who has come to the site because of a google search, I apologise for wasting your time. In fact, I’ll extend that apology to all of my readers. Sorry!]
In case, like me, you are back to work today and not quite feeling it, here’s Mark Twain putting it remarkably well. If you think of Mark Twain as being that “huckleberry finn guy” then I have a good New Year’s Resolution for you – like Raymond Chandler, he puts a diamond on every page.
In this passage, Twain having travelled across America to take part in the Gold Rush as a prospector, investor or mine-owner, unsuccessfully, has been working down someone else’s mine, doing the task of taking all of the rock and breaking it down, and then getting all of the metal out of it and then heating the metal up to make nuggets.
“I will remark,in passing, that I only remained in the milling business one week. I told my employer that I could not stay longer without an advance in my wages; that I liked quartz milling, indeed was infatuated with it; that I had never before grown so tenderly attached to an occupation in so short a time; that nothing, it seemed to me, gave such scope to intellectual activity as feeding a battery and screening tailings, and nothing so stimulated the moral attributes as retorting bullion and washing blankets – still, I felt constrained to ask for an increase of salary.
He told me that he was paying me ten dollars a month, and board, and thought it a good round sum. How much did I want?
I said about four hundred thousand dollars a month, and board, was about all I could reasonably ask, considering the hard times.
I was ordered off the premises. And yet, when I look back to those days and called to mind the exceeding hardness of the labour I performed in that mill, I only regret that I did not ask him seven hundred thousand”
The bare bones of it are that there were two boys, Daniel aged 8 and Jakob aged 6. Their father, who was Russian, took them to Russia on Christmas Day 2012 and it took 2 1/2 years for the mother to get them back, including having had to litigate in the Russian Courts.
The wider aspect of the case is probably in the name of it – although the case relates to child abduction and a state of affairs by the father which the Judge described as child abuse and brainwashing, the family’s real name is published.
That is unusual, and many readers might well be wondering why it is okay to do that in this case, but children’s names have to be anonymised in other court cases.
The above judgment was handed down to the parties on 26 November, with a request for submissions on the question of publication. The response of the mother and the Children’s Guardian, represented by CAFCASS Legal, is to support publication in un-anonymised form. The father does not oppose publication in all circumstances, but suggests that the issue should be deferred until welfare decisions about the children have been made. He argues that there is a high likelihood of an adverse impact of publication on the fairness of the proceedings and on the children’s welfare and that the issue would be easier to judge at the end of the proceedings.
I agree with the submission for the mother and the Guardian that there is a public interest in the true circumstances of this case being known, for these reasons: (i) The parties’ accounts of events have already been widely published in England and in Russia. The true facts should be known, particularly where misinformation has been published by one party.
(ii) This is apparently the first case under the 1996 Hague Convention. It shows the importance of the Convention, the willingness and ability of the courts of the Russian Federation to apply it, and the results that can be achieved when lawyerswork together across jurisdictions.
(iii) Knowledge of the outcome in this case may encourage the adult victims of other child abductions and deter potential child abductors, especially if the latter know that they might be publicly named.
Like the Children’s Guardian, I do not consider that any serious or lasting disadvantage will come to the children from further publication. The existing publicity does not seem to have had any adverse effect on them.
It is clear that an anonymised judgment cannot be published as the identity of the family would immediately be obvious.
The only remaining question is whether publication should be delayed, as the father suggests. I understand the general argument that in some situations publicity could put pressure on professional assessors, or even on the court, but I do not accept it on the facts of this case. The welfare assessment that will now take place will be carried out by experienced professionals. The court’s welfare decision will not be influenced by publicity. The British media has reported thecase responsibly and in my view nothing is to be gained from postponement. On the contrary it is in the interests of the family that its time in the public eye begins, and thus ends, as soon as possible.
Accordingly, this judgment can be published as it stands.
There were some dreadful details in this. One theme which kept emerging was the father taunting the mother in a very literary way.
On 22 January, the father e-mailed a poem by Nietzsche to the mother. It is entitled “Vereinsampt” [“Alone”]. The mother correctly interpreted this as the father crowing
and
On 7 March, the father ordered a book online that was delivered to the mother a few days later. This was “Glory” by Nabokov, which describes a Russian émigré who re-enters Russia secretly and succeeds in keeping his whereabouts unknown from family and friends.
I don’t think I have come across a case before where the menacing communication was by way of literary allusion, and a set of Cliff study guides would have been of assistance
The father had gone to extraordinary lengths with these children
The children lived in these bizarre and unlawful circumstances between November 2013 and June 2014. The only reliable source of information about how they were treated comes from their later accounts to their mother. They have told her that there were many rules of life. They were told that they were being hunted by violent “bandits” who were trying to kidnap them and that she was in the gang. They could only go outdoors one at a time so that no one would see both boys together. They were not allowed to go out on the same day. They were not allowed to look out of windows. On one occasion they had to crouch down in a car. They were given differentnames. They could not go to school. They were coached to say why they did not want to live with their mother.
90The mother says that the protracted collection was “horrific”, despite what she describes as the very professional approach of the authorities. The father was out and the grandmother, who had stayed with the children, did everything she could to obstruct the process. Her behaviour included:
Refusing to open the door until the bailiff started to drill off the locks.
Grabbing the children and inciting them to panic by shouting phrases that the children repeated in a monotonous drone: “No, no, no! Mummy is bad!” “They don’t want to go to England, they want to stay in Russia!” The children later told their mother that they were doing what they had practised.
Refusing to release the children and smacking the mother’s hand when she tried to touch and reassure them.
Refusing to hand over the children’s passports.
and
On 4 July, the father wrote an article in a Russian online newspaper, describing the children’s “forcible seizure” and saying that:
“There are about 15 people in plainclothes who took part in the taking away of the children, among them were foreigners dressed as members of a US-centric religious organisation, as well as a bailiff brought by them, who refused to produce any documents for the removal of children, but explained that he was contacted by the USA Embassy and ordered to use force. … The persons who broke into the flat used force towards the children and dragged them away by force, parting them from their father and grandmother against the children’s will. The children resisted in every possible way, cried, screamed that they wanted to live in Russia with their father and would never agree to leave for the USA or England. The children, who think of Russia as their Motherland, were irremediably traumatised by such fascist punitive squad’s methods.
The children are Russian citizens; they are fully integrated in Russia, their only native language is Russian … My children and I are Russian citizens, who legally returned to Russia in 2012. … There were numerous offers of amicable settlement suggested to the foreign party, but they were fully ignored under the pressure of Russophobe milieu of the children’s mother. The father is the only legal representative of the children in Russia, and children love Russia and the Russian culture very much.
I am requesting that all mass media, Russian authorities and human rights activists should assist in the immediate search for and discovery of children’s whereabouts … in prevention of children’s isolation from their father and their removal to the USA via England. In case of such removal and full isolation from their father in the foreign-speaking environment, the children will suffer another psychological trauma which will haunt them their entire life.”
The Judge’s findings were powerful and moving
My findings
These three children have been habitually resident in England and Wales since January 2011. After their parents’ separation, the arrangements for them to live with their mother and spend time with their father were carefully negotiated by the parents and approved by the court.
The father’s removal of the children was an abduction, not a retention. I reject his evidence that he only decided to keep them after they arrived in Russia. When he took the children from London, he had no intention of returning them. He had planned it for months, lulling the mother into a false sense of security so that she would agree to the holiday he proposed.
The father’s characterisation of Daniel Jakob and Jonathan as Russian children is a self-indulgent delusion. Of course they have a Russian parent, albeit he himself has lived most of his adult life elsewhere. But until December 2012, when they were aged 6½ and 4½, the boys had always lived in Switzerland and England. They had never even visited Russia. Their Russian heritage is important, but it has been played upon by the father because it is the one thing that he can offer that the mother cannot.
Having successfully got hold of the children, the father set about strengthening his position by engaging in a series of cynical manoeuvres, delaying tactics and deceptions that he knew the mother would be powerless to oppose. He was only willing to accommodate her in the children’s lives if she came to live in Russia, where she would be under his control. When she would not agree, her access to the children was strictly limited, and then stopped altogether. In doing this, the father counted on his legal position in Russia being secure. I find that he intended to keep the children indefinitely, and was only frustrated by the determined actions of the Russian authorities.
The father claims that his actions were influenced by Russian legal advice. I do not accept that he ever genuinely considered his position to be legitimate. He is a man who relies on advice that suits him and ignores advice that does not. He flouted every order of this court and when faced with orders of the Russian courts, he went underground. His excuse for this (danger from unidentified persons) is a bogus invention, but the children were not to know that. They were brainwashed into believing that they were being pursued by dangerous bandits, including their mother. The seriousness of this is not only measured by the length of the separation created by the father, but also by his willingness to root the mother out of thechildren’s lives. This was not just child abduction, it was child abuse.
One of the father’s strategies has been to politicise the children’s situation for his own ends. He took to the Russian media in an attempt to whip up domestic political sentiment by means of deliberate lies, and he delayed the children’s return by obtaining a travel ban. He pursued his goal of keeping control of the children in every legal and illegal way he could devise.
The children and their mother have been profoundly affected by these events. For a year and a half, their lives were turned upside down. The boys were separated from their mother and brother. They were forced to live a bizarre clandestine life, surrounded by lies and cut off from normal existence. It will take a long time for them to come to terms with these experiences.
At this hearing, the father had the opportunity to show regret and insight. Unfortunately, by his written and oral evidence, his questioning of the mother, his submissions, and his decision not to attend the hearing in person, he showed that he has little appreciation of the impact of his actions on anyone else, including the children. The only person he seemed to be really sorry for was his mother. Throughout his evidence he was pedantic, unreliable and untruthful. When confronted methodically with the clearest evidence, his reaction was to misrepresent, prevaricate, minimise, extenuate and contest. There was no sign of any real remorse. So far, his apologies are no more than a means to an end, motivated by disadvantage and the failure of his grand plan. The mother’s perception of him, recorded above at paragraph 112, is in my view justified.
Anyone meeting these parents without knowing the family history is liable to be misled – misled into underestimating past events by the mother’s extraordinary serenity and dignity, and misled into underestimating future risks by the father’s outward appearance of intelligence and courtesy. Given the sustained ruthlessness of his conduct, the risk of further alienation or abduction is high.
The collusion by the father’s family increases those risks. The children’s uncle could have used his influence for good, but instead has chosen to support the father throughout. The grandmother’s conduct can only be described as unworthy of a grandparent.
The next stage of these proceedings concerns the children’s future welfare. However harmful their father’s behaviour has been, he is an important figure for them. Unfortunately, he set about teaching them that they do not need two parents. It will take them time to unlearn that lesson.
Happy families are all alike; each unhappy family is unhappy in its own way
This case is not a legal authority, in that it was delivered by a Circuit Judge, (Her Honour Judge Atkinson) but it is a good judgment, on an important issue, so I am sharing it.
By way of context for non-lawyers, section 20 is the provision in the Children Act 1989 where a parent can agree to the child being placed in foster care – that doesn’t automatically trigger court proceedings, so the case might not go before a Judge and the parents would not have lawyers to give them free advice about their situation.
P is a little boy who was born on 04/08/09 and is now aged 5 years and 4 months. P has not lived with his mother and father for 2 ½ years. He was accommodated under s.20 Children Act 1989 by the applicant local authority, London Borough of Redbridge, (LBR) on 28th June 2012 and placed in foster care. Care proceedings were not issued until almost 2 years after his removal, on 30th May 2014.
There is not (currently) anything in law that prevents section 20 going on for so long, but it is not good practice. With a child of this age, decisions need to be made in good time about whether he is able to go home to his parents, or be found a home elsewhere. The longer he remains in limbo, the more uncertain his future is. Two years, for a child who was not quite three at the time the s20 started, is a long, long time.
In this case, that’s made even worse, because once the care proceedings did start, assessments showed that these parents would, with help, be able to look after him.
These parents accept that at the relevant date in 2012, they needed help in developing the parenting skills necessary to meet their son’s needs and that the statutory threshold is crossed as a result. On the issue of welfare, suffice to say by way of introduction, that by September 2014 it was clear, on the evidence of the jointly instructed assessment service, Symbol, that these parents were able to resume the care of their son. It was also agreed that they needed a carefully managed programme of rehabilitation which could only commence once they had somewhere to live. The problem in this case and the only reason why P has not been returned to their care is that these parents have no home of their own and it is suggested that the local authority fixed with the obligation to house them, the Royal Borough of Greenwich (RBG) is unwilling to assist.
It didn’t help that the stumbling block was housing, and that the Local Authority wasn’t doing all it could to provide the parents with suitable housing
In my judgment, P has not been appropriately cared for by the applicant local authority within the care system where for many years he has languished in s.20 accommodation with no clear plan. It is likely that he will have suffered confusion and some harm as a result. To its credit, the authority fixed with the responsibility for P’s care, LBR, has recognised the errors in its management of this family.
However those errors are compounded by P’s ongoing separation from his parents caused, I am told, by the wholesale failure of another public authority to find them somewhere to live. The RBG is unrepentant in the way that it has handled this housing issue maintaining that it has followed all proper procedures and denying any bad faith. I have listed this case next week for me to determine whether there has been any bad faith in its handling of this case and to give the authority concerned the opportunity to reflect upon the circumstances in which this family finds itself. In the interim I have fixed RBG with the responsibility to support this family through an interim supervision order in the hopethat by bringing children’s services on board I will see some “joined up thinking” develop within the authority as between housing and children’s services.
[If you want to know more about the housing side of things, I recommend Nearly Legal’s blog piece on it http://nearlylegal.co.uk/blog/2014/12/every-possible-obstacle/ which highlights that this appears wasn’t just the wheels of bureacracy moving slowly, but a conscious decision not to offer housing]
The Judge had this to say about the Local Authority’s use of section 20, particularly in relation to establishing threshold criteria (the test for whether it is right for the State to intervene in a family’s life and seek orders) and fairness
29. The relevant date for the purpose of this threshold is the date when P was first accommodated – 2 ½ years ago. For reasons which I am sure are obvious, the significance of those facts is reduced the more distant we are from them. In this case, for example, the more difficult it is to discern whether the child in question has suffered harm as a result of the parenting given to him before separation rather than the events he has had to endure after. I wonder at the impact upon P of the changes in his carers over the 2 years before proceedings were issued in circumstances in which he was living away from his parents with no real sense of why or for how long because LBR had no plan in place. I wonder at how damaging the process of holding him in s.20 accommodation without any plan for his future will have been for him.
It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.
In these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P’s accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object. Meanwhile the child is “parked” and the local authority is under no pressure or scrutiny to ensure that it is dealing with the case in an appropriate and timely fashion. In my capacity as DFJ for East London I warn that there will be nowhere to hide for those authorities in this designated family area who fail the children in their borough in this way.
Finally, I would also add that on my assessment of the undisputed facts in this case there is real doubt as to whether LBR had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the LBR there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs. These parents go everywhere with an advocate. They are vulnerable young people. It is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him.
With all of that in mind, you might well be amazed that the Local Authority proposal for the way forward was for section 20 to continue whilst housing was resolved. That shrill beeping noise you are hearing is the Court metal detector still going off three weeks later due to the balls of steel that London Borough of Redbridge’s team must have had to even suggest that as a solution.
Iron cojones or not, the Judge wasn’t much taken with that as a plan.
Turning now to the welfare decision, and contrary to my usual instinct to bring matters to a close and leave the LA to do its job, I absolutely agree that I am unable to make final orders here today. I am horrified that LBR should even ask and in doing so suggest that we should revert to the arrangement in which we use s.20 accommodation to “hold” the child until an unspecified point in the future when the other authority in this case complies with its housing obligation.
If you remember being at school and watching a classmate being told off and enjoying it, only to then have the teacher swivel towards you and say “And I don’t know what YOU’RE grinning about…” this next bit will bring back memories. Royal Borough of Greenwich are about to cop an earful too
I now turn my focus away from LBR to the RBG. The evidence before me today seems to suggest that there has been a complete and utter failure of the RBG to meet its responsibilities to provide housing to this family or even allow them to apply as a family such that these parents are prevented from bringing to an end the 2 ½ years (half of his life) that P has spent as a “looked after” child. Indeed the information that I have received suggests that the RBG has acted in bad faith and has sought to engineer a situation in which they would be freed of the obligations I might impose pursuant to a Supervision Order. I make no findings in that regard but intend to investigate that matter further when this case returns next week. I observe, however, that the most recent position statement from RBG indicates that the housing department are now satisfied that it can be reasonably be expected that P will reside with his parents and they will now consider him as part of any application for housing. However the final paragraph of thatstatement indicates that the RBG has failed to grasp what it is that this family needs in order to succeed in their reunification because it ends by pointing out that the most likely outcome of the application for housing will be the provision of “temporary accommodation” and that this may include accommodation outside of the Borough.
At least to their credit, after the judicial dressing down, accommodation was found for the family, and they were reconciled, nearly 2 1/2 years after first being separated
At the first listed hearing after the one at which I gave the Judgment transcribed above, RBG attended, asserting that they had found accommodation for the family which could be taken up by 15th December. A transition plan drafted by LBR was drafted on the basis that they would take up residence by Monday 15th. It transpired that this was not a tenancy or even an offer of tenancy but rather a referral or nomination to be considered for a tenancy by a local housing association. It also became clear to me upon hearing from the senior housing officer who attended on the day that juggling the housing resources of this London authority meant that this family was only ever going to be top of the list when they were recognised as an emergency and it had taken my order that he attend a hearing for them to be so recognised. That is not an acceptable way of working by public authorities in my view. It was known to RBG that the situation was as I have described it as long ago as September. I suggest that RBG ensures that it has systems which enable it to respond more appropriately to such emergencies.
Happily, at the second hearing on 16th December, the tenancy was confirmed as signed. The transitional arrangements had to be redrafted. I hope and expect that the parents will be assisted to take up their housing.
As a result I had no need to make findings on the disputed facts.
The LBR have committed to embark upon an investigation as to how this child was accommodated without a plan for such a long time. I am grateful to them for that.
This Judge did remarkably well to secure justice for this family. It is a shame that her remarks about section 20 drift aren’t authority, but they will be useful pointers in framing the argument in similar cases. It seems like it will only be a matter of time before Courts set down an authority that such drift and delay amounts to an article 8 breach for which compensation is payable.
I’m afraid that this can be part of human nature – social workers are busy and are fire-fighting crises all of the time. If the child is in section 20 and the parents aren’t clamouring for the return, there’s a danger that the case drifts not by design but because it never presents as being a towering inferno that has to be tackled as an immediate priority then and there.
The IRO in this case also got away without criticism, but this drift ought to have been nipped in the bud at the Looked After Child reviews. There has to be a LAC review for a child in care after 28 days, then after 3 months, and then at least every 6 months. So for P, there should have been at least four, perhaps five LAC reviews before the proceedings were issued.
And by the second LAC review, there should be a plan for the child’s permanent future, which probably did not happen here. It is the job of the IRO to make sure that this sort of drift doesn’t happen and that the case doesn’t get put on the backburner over and over.
This post guest-written by Misty St Clair, Agony Aunt of Jackie magazine in 1984 and was written by her at that time, following an excess of Advocaat and a bout of unexpected fortune-telling and a descent into legal matters – her column was not eventually run that week, the editor considering it to be “somewhat niche, dahling”.
(Suesspicious Mind note :- This was going to be by Geneva Minty, Agony Aunt of Just Seventeen magazine, but I didn’t dare face looking on Google Image for “Just Seventeen” )
Horses horses horses! (and law)
Hey Girls!
A lot of young adults write to me with their problems – “When I marry George Michael, will his chum Andrew want to be hanging around all the time?” or “My friend says you can’t get pregnant if you eat four After Eights straight afterwards” or “How can I apply lipstick like Robert Smith”, but one question comes up more than any other.
It is this “Misty St Clair, am I the Lord Chancellor?”
And it is time that this issue, which troubles so many adolescents, was answered. Find out, in this simple quiz.
1. Which of these are real Judges?
A Jonathan Sumption QC
B John Deed
C Louis Walsh
2. Your Government intends to slash and burn the legal aid budget , what do you do?
A Lobby in Cabinet for the benefits of legal aid, and educate your colleagues on the Rule of Law
B Help push through the reforms, but commit to provisions that ensure that nobody will have their human rights breached
C Pretend to do B above, but secretly issue guidance that means that those provisions will hardly ever get used, then lose in the Court case about it
3. An idea emerges that to please the Daily Mail, the Government should ensure that foreign nationals don’t get legal aid, do you?
A. Resist on the basis of unfairness and discrimination
B Reluctantly advise that it isn’t possible
C Immediately issue Regulations that you had no legal power to issue and lose in the Court case about it
4. In order to cut costs, you are asked to ensure that victims of domestic violence have to produce documentary evidence that puts them at risk of harm, do you?
A. Resist on the basis that the law exists to protect the vulnerable
B Introduce a need for documentary evidence but make it reasonable
C Introduce a need for documentary evidence, make it near impossible to satisfy, and lose in the Court case about it
5. You are asked to come up with a policy that will show how tough the Government is on prisoners, do you?
A Refuse and explain to Cabinet that no less an authority than Winston Churchill counselled that one judges a country by how they treat their prisoners
B Come up with something which looks tough but ultimately will never be followed through
C Ban them from receiving books, claim that this was never intended, lose in the Court case about it – but even then, don’t reverse the policy until after Christmas, ensuring that the unlawful and unpleasant ban on books still stops prisoners getting books as Christmas presents
6. Imagine that you are the manager of a football team (ask your dad or big brother) called “Judicial Review United” and you lose six matches in a row, do you?
A Resolve to train harder, play better and win the next game fair and square
B Grumble about refereeing decisions but keep playing the same way
C Try to change the rules of football so that it is impossible for the other team to turn up and play
How did you do?
Mostly A’s + You have nothing to worry about – it may seem sometimes that you have some Lord Chancellor tendencies, but really it is nothing to be ashamed of. Many young people go through this phase and are idealistic and naive and think about experimenting with becoming a vital check and balance on the excesses of the State, and they just come through it. More people than you know. You are not alone!
To be honest, many of your ideas about what Lord Chancellors are like are very old-fashioned – the world has changed a lot, you know!
Mostly B’s – there is a risk that you might be persuaded by more ‘grown-up’ friends to dabble in Lord Chancellor-ness, but you are far too sensible to really get caught up in it. Just remember, as Misty St Clair always says “The Coolest Thing you can ever do is Say No Thanks” . Just like Zammo in Grange Hill, you can come out the other side and live a happy and rich life.
Mostly C’s – There is no easy way to break this to you, there is a good chance that you are reading your sister’s magazine in the hope of finding some problems that help you understand girls. You are destined to become the Lord Chancellor. You may be thinking that you can avoid this fate by never studying law, working in law, having any interest in law or any knowledge of law. It will not stop what is foretold. For reasons that are inexplicable, you and you alone, will still become Lord Chancellor even though you have no working concepts of anything you would need to know to do the job well. You will also become balding, I’m afraid. That will teach you to read Jackie – stick to Shoot or Victor and you would be much happier.
Till next time, I’m Misty St Clair and remember, “a problem shared is a problem that lots of young boys will read secretly and giggle over”
Nothing says fun like a boy band holding scaffolding. That and LAW!
Within this case, Mostyn does two significant things.
The first is that he refines his own test for capacity to consent to sexual intercourse, and is much persuaded by Hedley J’s formulation.
Regular readers will be aware that the Court of Protection’s usual approach to capacity to consent to sexual intercourse is to look at three issues :-
(a) Understanding of the mechanics
(b) Understanding of the health risks
(c) Understanding of the risk of pregnancy.
Mostyn J says that he has changed his mind as to whether that is the right test
Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion.
Before Mostyn J, legal argument took place that bears some resemblance to that discussion in Gremlins 2 about whether a Mogwai is fed after midnight if he is on a plane crossing the international date line…
I deal first with the pregnancy element. In A Local Authority v TZ[2013] EWCOP 2322 Baker J concluded at para 31 that in the case of a person clearly established to be homosexual it is ordinarily unnecessary to establish that he or she has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. In this case Mr McKendrick argues that because TB has had an IUD inserted she is in an equivalent position. The argument became increasingly far-fetched. We discussed a man who has had a vasectomy. A woman who is beyond childbearing. A man wearing a condom. Mr McGuire QC rightly captured the unreality of this debate in his final submissions when he said:
“But following this link produces nonsensical results. What if a woman happens to have fertility issues? Or is already pregnant? Or is beyond childbearing age? Would knowledge ofthis link be irrelevant for a man? “
And as a result, Mostyn J decided that it would be best for the third part of the test to simply form part of the second part (health issues)
I have come to the conclusion that the third element of risk of pregnancy should not be a separate one. Rather it should be subsumed into the second which should simply be expressed as: “that there are health risks involved”. All sexual activity has some health risks. The most obvious ones are pregnancy or STDs. But over-robust sexual activity can cause wounding or bruising, external or internal. Any sexual activity can cause psychological harm. A simple criterion as I have suggested would resolve the dilemma I expressed in para 43 of D Borough Council v AB [2011] EWCOP 101, which on reflection came perilously close to introducing a quoad hanc dimension when I had been at pains to repudiate that.
If you are wondering what quoad hanc means [i.e you are not my regular commentor Andrew, or David Burrows] it raises its head in this judgment here, where Mostyn J raises a complaint that a formulation is unnecessarily overcomplicated and goes on to explain it in Latin. (I am biting my tongue here)
The first thing that the cases have decided is that the test for capacity to consent to sexual relationships is, to use rather laboured language, general and issue specific, rather than person or event specific: see IM v LM[2014] EWCA Civ 37 at para 79. In canonical language the incapacity must be quoad hunc not quoad hanc, in contrast to the position under section 12(a) Matrimonial Causes Act 1973 where the incapacity to consummate may be on either basis[2].
Quoad Hanc is where someone is not able to have sex with a particular individual, and Quoad Hunc is where they are not able to have sex with anyone. i.e the difference between not being able to have sex with Hank (perhaps because he has body odour) and not being able to have sex even with a hunk (because you just can’t have sex with anyone)
[I am sure Andrew and David will be able to put it better than I have]
Having digressed a bit, is the capacity to consent to sexual intercourse test now just
(a) Understanding of the mechanics, and
(b) Understanding of the health risks ?
Well, not so fast there Hank.
Mostyn J reminds himself and us that he had previously been asked to consider whether the understanding of the ability to say “yes” or “no” to sex should be a factor, and had rejected this. He has now changed his mind, and gives credit to Hedley J in relation to this
I now turn to the question whether the relevant information should include as a separate element an awareness that lawful sex requires the consent of all parties and that that consent can be withdrawn at any time. In my previous decision of D Borough Council v AB I accepted at para 35 that I should not conflate the capacity to consent to sex and the exercise of that capacity. Therefore I rejected Dr Hall’s third head of capacity.
In this case the OS agrees that being able to say yes or no to sexual relations is part of the weighing process under section 3(1)(c), and that this is made explicit by the terms of section 3(4)(a). Notwithstanding this concession Ms Greaney disputes that it should be an independent head of awareness because to do so would conflate capacity with the necessary exercise of free will. She argues that consent is the product of capacity and the exercise of free will.
However, in A Local Authority v H[2012] EWHC 49 (COP) Hedley J with his customary erudition, sensitivity, lucidity and eloquence convincingly persuades me that I was wrong then, and that the OS is wrong now. At para 25 he said this:
“And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand thatthey do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. “
In my judgment this simply cannot be gainsaid. It was accepted by everyone in this case that sex between humans must involve more than mere animalistic coupling. It is psychologically a big deal, to use the vernacular. Hedley J’s formulation captures perfectly why and how that extra ingredient should be defined.
Therefore I conclude that when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following elements on the part of P:
i) the mechanics of the act; and
ii) that there are health risks involved; and
iii) that he or she has a choice and can refuse.
I would add that the excellent witness Dr Joyce was of the firm view that this third element was very important. I would also suggest, with all due humility, that the test as formulated by me has themerit of simplicity.
I have to say that for my part, I prefer this revised three part test. I did have to quickly check whether it clashes with the Court of Appeal in Re IM v LM 2014 and I don’t believe that it does. So this is now the new test to be used.
[In the instant case, the woman understood the mechanics, understood that she enjoyed sex but did not understand that she could say no. Her husband for religious reasons believed that it was her duty to have sex with him on request – her general level of functioning was that of an 8 year old. Mostyn J held that she did not have capacity to consent to sex on the basis that she had no understanding of her ability to say no]
The second issue of import in the judgment was that there was a Deprivation of Liberty Element – this woman wanted to go back to her husband and was being prevented from doing so. In part because he intended to have sex with her about twice a week and she lacked capacity to consent.
That allowed Mostyn J to revisit his decision in Rotherham. And if you think that he has softened on that, as he has changed his mind on the capacity test, you are wrong.
My decision of Rochdale Metropolitan Borough Council v KW[2014] EWCOP 45 has aroused a certain amount of criticism. For example, Sarah Lambert, the head of policy for the National Autistic Society has stated that:
“This decision appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability.
Any move to revisit or unpick this definition would be a huge step back. NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism.”
The appeal in Rochdale Metropolitan Borough Council v KW will be heard by the Court of Appeal on 4 or 5 February 2015.
If nothing else, I think it is important that I meet the criticism that I have sought to encroach on essential protections for disabled people, and amplify my reasoning.
In para 17 of my decision I said this:
“It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a casewhere an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5. “
The suggestion that “the dissimilarity justifies differential treatment in the nature of protective measures” was not a personal idiosyncrasy. It is justified by high authority
Mostyn J goes on to set out those authorities, but I will pass over those – they are available in the judgment if you wish to see them.
57…The state is obliged to secure the human dignity of the disabled by recognising that “their situation is significantly different from that of the able-bodied”. Thus measures should be taken “to ameliorate and compensate for [those] disabilities.”
But to characterise those measures as state detention is to my mind unreal. I referred to the historical context in which Article 5 of the ECHR 1950 came to be formulated. It followed the Universal Declaration of Human Rights of 10 December 1948 which in its preamble referred to “the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind”; which in article 3 guaranteed liberty; and which in article 9 proscribed “arbitrary arrest, detention or exile.” It was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
In this case TB will not be cared for at a place which she understands to be her home. Further, she has the motor functions to achieve a departure in a meaningful sense. She will be monitored round the clock and were she to leave to try to go “home” she would be brought back. Her situation is therefore very different to Katherine’s, and the acid test is met. Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB’s care regime does involve detention under Article 5.Accordingly there must be at least six-monthly reviews by this Court, no doubt at some considerable expense to the public purse.
At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers
There’s some force in that – the Supreme Court have, in setting out the law, put many thousands of people in living circumstances which now amount to a breach of article 5, and the Court of Protection is going to be swamped with cases. Mostyn J has taken a pragmatic line, and we wait to see if the Court of Appeal think the same. For my part, I think that the Supreme Court captured this point and the fact that on the ground it has enormous consequences for very many cases doesn’t detract from the principle. The Supreme Court have explained what the test is, and the fact that it is going to have massive repercussions can only go so far.
suesspiciousminds 