Author Archives: suesspiciousminds

Back to work

Posted on December 29, 2014 by suesspiciousminds

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”

 

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child abduction and child abuse

Posted on December 24, 2014 by suesspiciousminds

The case of Neustadt v Neustadt (child abduction) 2014 is an interesting and desperately sad one

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4307.html

 

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.

  1. 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.
  2. 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 lawyers work 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.

  3. 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.
  4. It is clear that an anonymised judgment cannot be published as the identity of the family would immediately be obvious.
  5. 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 the case 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.
  6. 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 different names. 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

 

  1. My findings
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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 the children’s lives. This was not just child abduction, it was child abuse.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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

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section 20 drift

Posted on December 24, 2014 by suesspiciousminds

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.

 

Re P (A child : Use of section 20) 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html

 

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.

 

If you want to know more about section 20, Sarah Philimore has written an excellent and comprehensive guide – it is valuable for lawyers, professionals and parents alike http://www.childprotectionresource.org.uk/what-does-section-20-mean/

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

  1. 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.
  2. 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 hope that 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.

  3. 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.
  4. 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.
  5. 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 that statement 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.

 

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Are YOU the Lord Chancellor? Find out in our quiz

Posted on December 23, 2014 by suesspiciousminds

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)

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!

Nothing says fun like a boy band holding scaffolding. That and LAW!

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Capacity to consent to sex – do you want a Hanc or a Hunc?

Posted on December 22, 2014 by suesspiciousminds

Mostyn J has just given a ruling in the Court of Protection  – London Borough of Tower Hamlets and TB 2014

http://www.bailii.org/ew/cases/EWCOP/2014/53.html

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…

  1. 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 of this 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

  1. 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.
  2. 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.
  3. 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 that they 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. “

  4. 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.
  5. 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 the merit 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.

  1. 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.”

  2. The appeal in Rochdale Metropolitan Borough Council v KW will be heard by the Court of Appeal on 4 or 5 February 2015.
  3. 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.
  4. 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 case where 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. “

  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.”

  1. 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.
  2. 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.
  3. 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.

 

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Another day, another appeal against Placement Orders refused

Posted on December 19, 2014 by suesspiciousminds

 

I know…  it is like autumn 2013 but in reverse.  It would be nice, once in a while if the Court of Appeal would grant some appeals and refuse others, rather than having six months of granting them all and then six months of refusing them all.

At the moment, these appeals are like turning up to play 5-a-side football with your mates, and Christiano Ronaldo turns up as one of the ten.

It isn’t that hard to predict the outcome and if you are on the other side, it is a lot of hard work for not much reward.  Even worse if you turn up thinking he’s going to be on your team, only to find out that the rules changed to put him on the other side whilst you were travelling to the match.

 

Re P (A child) 2014 http://www.bailii.org/ew/cases/EWCA/Civ/2014/1648.html

 

Nothing much in this one about the legal test and the ongoing debate about whether when the Supreme Court and Court of Appeal say “You’ve got to do A, B, C and D if you are going to make a Placement Order” that amounts to a change in law or not.

But some things of interest.

 

The difficulty for a real human being  (we lawyers call them “lay persons”, but “person” is also an acceptable term to use for a person) in understanding the appeal process and what to do, what form to fill out, where to send papers, who to send them to

 

This case yet again puts into sharp relief the difficulties which arise for the courts, the litigants and most of all the children, where unrepresented parents seek to navigate their way through a system which necessarily operates on the basis of detailed procedural rules, without which there would be chaos but which inevitably present the layman with significant difficulties. Had the father been represented, the mistakes that followed, would have been picked up by his solicitors.

 

The Court of Appeal explain that in this case, the father had thought he could appeal to the County Court, and the County Court had also thought that for quite a while because the Recorder who heard the case had also been sitting at that Court as a District Judge. Their explanation for this is so complicated, I had to read it three times to grasp it, so I feel for all involved.

 

Then the age old difficulty of getting a transcript

Meanwhile, notwithstanding that the county court had asserted that a transcript of judgment had been sent to the parties in December 2013, it was not until the 11 July 2014 that the local authority received a copy, and even then they obtained it only because counsel for the father sent it to them. Unhappily, whatever defect in the system for the obtaining and distribution of transcripts had been responsible for the delay in the onward transmission of the Recorder’s judgment did not lead to a revision of those systems as there were further significant difficulties with regard to obtaining transcripts. It is not being suggested that the resulting delays were the result of indifference on the part of the court staff. No doubt the problems stem from a lack resources leading to a shortage of appropriately trained and experienced court staff able to identify the problem and put in place a system for ensuring the prompt and efficient ordering and distribution of transcripts of judgments and evidence.

 

The County Court actually wrote a letter of apology to the father in this case for all of the things that had gone wrong. That’s a fairly rare occurance  (in twenty years of practice, I’ve never heard of the Court apologising to anyone)

As I understand it the father has received two letters of apology from the County Court for the mistakes which led to the wholly unacceptable delay in this matter coming before the court; a delay unacceptable for the father, but also for the prospective adopters. Whilst the father was obviously distressed during the course of the hearing, he behaved with dignity and composure throughout. It will inevitably be hard for him to accept that the outcome of this appeal, and the making of the adoption order which will in due course be made in respect of S, are not a direct result of an inadequate judgment and delay within the family justice system. I can only assure him that it is not so; Mr Hayes put forward every possible argument to convince the court that the case should be remitted, but even his skill and tenacity could not undermine the fact that upon close analysis of the findings and assessments available to the court at the time of the hearing, the making of a care order and placement order in respect of S was the inevitable outcome.

 

In this case, the appeal was based on the judgment not being sufficiently clear about what basis various options had been discounted to arrive at adoption – one might think from reading Re B-S that when they said THIS

 

41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

42. The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

that they meant that a judgment ought to grapple with the factors at play and give proper focussed attention for the specifics.

The Court of Appeal had been taking a very hard line on this, but seem to have softened their approach and are prepared to look at the totality of the judgment and the evidence heard by the Judge  (which was not the case in the low-watermark case where the parents had both been in prison at the time of the Placement Order and the appeal was granted)

  1. One of the difficulties where a judgment lacks structure and fails to present the reader with a clear analysis of the evidence, its application to the law and thereafter of its cross check with Convention rights, is that a reviewing court is not only presented with a formidable task in determining whether the decision reached by the judge was wrong, but it potentially leaves a litigant, (often a parent destined as a consequence of that judgment to have their parental tie severed), with a sense of unfairness, even where there is no question of his or her Article 6 rights having been compromised.
  2. At first blush it appeared that the deficiencies in the judgment with which this court is concerned were such that, no matter what further delay was occasioned in determining S’s future, the appeal must be allowed and the matter remitted for rehearing. The process of determining whether the essentials can in fact be found within the judgment and the evidence has been immeasurably assisted by the careful analysis of Miss Morgan QC, through which it has become clear to the court that notwithstanding the difficulties inherent in the judgment:

    i) All the material necessary for a proper determination of the case was before the judge and tested in cross examination.ii) That, whilst the finding in relation to developmental delay cannot stand, there were nevertheless more than adequate findings to allow the threshold criteria to be satisfied and therefore the court to proceed to consider what, if any order, should be made.

    iii) The father was assessed by both the Guardian and the social worker as to his ability to care for S. The judge was entitled, having heard the evidence, which included oral evidence from the father, to accept the recommendation of the Guardian and indeed, if a court decides not to follow the recommendation of the Guardian, it should give its reasons for failing to do so. (Re J [2001] 2 FCR 44)

    iv) The evidence before the judge addressed the available options and the judge took into account the father’s strengths as well as weaknesses. The Recorder gave his reasons for concluding that it was not in the best interests of S to be rehabilitated to her father.

    v) Whilst the judge failed to state in terms that he made a care order before moving on to consider the placement order application, it was implicit that, having determined that the child could not return to the only parent who was a realistic option, a care order would follow. The conditions necessary for the making of a care order were undoubtedly made out.

    vi) The care plan was for adoption. The necessary information was available to the judge for the welfare analysis within the extended assessment of the Children’s Guardian. The Recorder noted the exceptionality of the order sought and said that the making of such an order was ‘necessary’. Even though the case was heard before Re B-S the Recorder took into account the importance of the order for adoption being ‘proportionate’ and importantly, that it is not enough to say that “it would be better for the child to be adopted than to live with his natural parents”

    vii) This was a little girl who had just turned 2 at the time the orders were made in circumstances where there was no one within the extended family who could appropriately offer her a home. Once the court had concluded that it was not in her best interests to be returned to the care of either parent then, given her age and need for a secure, stable and permanent home, it could not be regarded as wrong for the judge who had heard the case to conclude that her welfare required an adoption order to be made.

  3. Pieced together in this way, I conclude that the Recorder did engage with the essence of the case and that his judgment contained the essential ingredients necessary for there to be a proper determination of the issues which determination also respected the Convention rights of all the parties

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Re R – is B-S dead?

Posted on December 18, 2014 by suesspiciousminds

 

That’s the Court of Appeal case that we’ve been talking about all week.  It happened to come in time for my deadline for my Family Law column, so my analysis of it is over there.

 

I know not all of you read Family Law, so here is the link.

 

In very short terms, the Court of Appeal layeth the smackdown on those people who were pushing, stretching and exagerrating Re B-S to be an authority for “leave no stone unturned, climb every mountain, ford every stream – till you avoid adoption, that’s B-S’s dream”.   BUT  Re B, and Hale’s formulation stands – the President specifically says that Courts can’t make a Placement Order unless satisfied that Lady Hale’s formulation applies, and every single bit of content in Re B-S still applies.  In a nutshell, Re R says to advocates, don’t take bad points and don’t appeal on flimsy technicalities based on your notion of what a post Re B-S judgment looks like.

 

http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back#.VJLA_3vzOud

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Child Sexual Exploitation (Birmingham injunction case)

Posted on December 16, 2014 by suesspiciousminds

 

This case, in which Keehan J made wide-ranging injunctions against a number of men who he was satisfied had been involved in grooming children for nefarious purposes, made the news. I have been waiting for the judgment for the following reasons :-

 

1. This remedy, if it stands up, is a better approach than placing victims of child sexual exploitation in secure accommodation (locking up the victim)

2. The precise methodology was not in the press reports, particularly in the use of the inherent jurisdiction not only to protect AB, the subject of the application, but all children under 18.  Is this lawful, and if so, how?

 

[On the latter point, the Inestimable Martin Downs has written persuasively over at the UK Human Rights blog

Inherently Uncertain: Is there authority for that? Questions over Birmingham’s Grooming Injunctions

 

particularly on whether  there are difficulties in using the inherent jurisdiction to achieve something for which Parliament has laid down a statutory mechanism for  (albeit one with different tests)  ]

Birmingham City Council v Riaz and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html

 

Here are the injunctions that Keehan J made   (I have italicised the bits that I consider problematic)

From the time this order is served upon X until the date specified in this order X Must Not:

a. contact AB by any means, in person and or through any third person whether by way of face to face contact, telephone (mobile/landline/facetime/skype etc.), text messages, MSM, blackberry, chatrooms, or other social media whether or not such contact is invited in the first instance by AB

b. seek the company or be in the company of AB whether or not invited to do so in the first instance by AB

c. approach AB in any manner, whether in public, on the street or other public areas such as parks, in private addresses open to certain members of the public such as any food outlet, retail outlet, café, public house, bar, hotel, club, nightclub etc, on public transport, in or at any premises associated with a sporting or entertainment activity or in any private residence, whether or not invited to do so in the first instance by AB

d. follow AB in any location public or private

e. approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station.

f. pass on details for AB for example name, location, address, telephone numbers at which she can be reached or the names of other persons through whom she can be contacted save as directed by the police or order of the Court.

g. incite, encourage or facilitate the introduction of AB to any other male.

h. incite or encourage any other male to seek any form of contact with AB

i. cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

And is bound by such order until 18th August 2015.

 

There isn’t really much doubt that the High Court has power under the inherent jurisdiction to make all of those injunctions about AB, the subject of the application. The issue is, are the bits in italics stretching the inherent jurisdiction too far?

 

I appreciate that for many readers, their reaction might be the same as mine was initially – they are grown men who shouldn’t be hanging around with teenagers anyway, they should be stopped.

As a matter of morals and ethics, I probably agree. I’m no fan of what these men are said to have done.

Legally speaking though, this is very widely drawn, and is it a proper use of inherent jurisdiction?  Long-time readers might know of my disquiet when judges trot out that old saw about the powers of inherent jurisdiction being theoretically limitless.

 

It is a long and detailed judgment, but the passage that deals with whether there is power to make the order is very short.

  1. The inherent jurisdiction of the High Court “may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits” Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23.
  2. The use of the inherent jurisdiction has been substantially curtailed by the provisions of s100 Children Act 1989. A local authority may not apply for any exercise of the court’s inherent jurisdiction with respect to children without the leave of the court: s100 (3) Children Act 1989.
  3. The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:

    1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

    1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: –

    a) orders to restrain publicity;

    b) orders to prevent an undesirable association;

    c) orders relating to medical treatment;

    d) orders to protect abducted children, or children where the case has another substantial foreign element; and

    e) orders for the return of children to and from another state.

  4. In Re M and N (Minors) [1990] 1 All ER 205 at 537, Waite LJ said:

    “the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages”.

  5. I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the “self imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.

 

The Court applied the civil standard of proof here – in fact, as is plain from the judgment, the police were unable to seek prosecutions on this case and the criminal standard of proof would not have been made out.  It might surprise family lawyers, who think that the civil standard of proof was put to bed with Re B, to know that for other civil proceedings the debate rages on.

For serious allegations, and particularly where the consequences are serious, there is authority – Haggar for one, suggesting that the civil standard of proof approaches the criminal standard.

These men have been named and reported in the Press as predatory paedophiles or at least grooming with that sort of end in mind. And on the balance of probabilities rather than that higher test. Is it the right standard of proof, given the serious consequences that must have had for them?

 

Readers may be interested in the judgment as it relates to publicising the men, but that’s outside the scope of my interest for today, and others are better placed to write about it.

 

The “Riaz” route is an option for Local Authorities, and the Judge praised the Local Authority for their hard work and creative thinking. Is it robust? That would probably have to wait for a judgment in a case where the challenge to (a) powers and (b) standard of proof is more vigorously raised.

(Or heaven forbid, a committal application for breach, when the validity of the original order might be tested more fiercely)

 

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An appeal

Posted on December 16, 2014 by suesspiciousminds

 

Not the President’s judgment in Re R a child 2014  (I need a bit longer to do my piece on that, but it is here http://flba.co.uk/blog/2014/12/16/re-r-a-child-2014-ewca-civ-1625/   and Lucy has done a piece on it here http://www.pinktape.co.uk/legal-news/sorry-whats-that-you-say/  )

 

My gut feeling is that this is really just the Court of Appeal saying “If you are appealing against a Placement Order, come to us with an actual argument as to why the Judge got this wrong, not just on a technicality, but an actual argument about the facts”    (or an even shorter version “Stop making b**locks appeals”)

 

No, this is an appeal via one of my readers.  This reader, a very nice person, read my “What to do if Social Workers are Trying to Steal your Children” blog post with some practical advice.

 

This mother was helped enormously by a charity, and she in turn would like to help them. As with any charity, money and funding is scarce, so this is an appeal that if you were in a charitable frame of mind at this time of year, this looks to me to be a very good cause.

 

 

  www.familiesincare.com.   This is a very small charity which supports, advocates, and advises North East families who are faced with Child Protection Proceedings.
In order not to get this mother into any difficulties and at her request, I’ve taken out the very moving and impressive story, but I can absolutely tell you that this charity has made a massive difference to her life and other people like her, and I think they need to be helped to keep doing so.

 

  They have students – both Law and Social Work – who come in on placement, and many stay on to volunteer. There is a Parents Group for parents who have lost children to adoption, gently supporting them through their own disenfranchised grief process, and Families In Care help parents with Letter Box Contact.  

 

In short, this is a rare gem, a beacon of hope to parents faced with the most horrifying of times.     However, Families In Care are struggling. Having had their funding removed from a particular source, they are now in a position where they face imminent closure. This just cannot happen. It just can’t. So many families rely on their presence, their hands to hold, and their commitment to ensuring parents are heard and fairly treated.  

 

Families In Care have made an Urgent Christmas Appeal for help:   http://shoutout.wix.com/so/97a9fcf6-5dfa-4cc7-b4f3-25f19be6934b#/main   

 

Families In Care need £3000 before January or they will close and families will be left without support at the worst, most vulnerable time.     Please help, it really would mean an awful lot.

 

If you can help Families In Care at all, they seem like people who have the potential to really make a difference to people who need help.   Even better, if you happen to be someone in the North East who has some sway over budgets and resources, please see if you can give this charity some support.

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Forthcoming Court of Appeal judgment on adoption

Posted on December 16, 2014 by suesspiciousminds

We know that there is one coming, because the President told The Times (sadly behind a paywall) that there would be one coming out this week in which the Court of Appeal would clarify Re B-S. The Times article is in the context of the “crisis” in the lower adoption figures – that “crisis” is itself in the context of adoption figures having gone up 26%.

The Times, you may be aware has moved from the Camilla Cavendish line of secret oppressive family Courts into pro-adoption.

 

We will have to wait and see what the President says. I suspect the direction of travel can be read from recent Court of Appeal judgments – my guess would be that all of the rigorous demands on social work evidence and a comparison of all of the various options will remain.  But that there will be clarification that Re B-S never intended to raise the bar or heighten the legal test.

 

The language in the Times piece talks about Courts being satisified that adoption is “the best option”  which is quite a distance from “last resort” never mind “nothing else will do”

 

If Re B-S was being misunderstood, it seems odd that it has taken a year and a half for the President to speak out. He sits in the Court of Appeal, he has brother and sister Judges routinely hearing appeals, he gives speeches and judgments all the time, he has his View from the President’s Office, all of which have been silent.

 

The closest we have come until now, was this Press Conference in April 2014

Click to access munby-press-conference-290420141.pdf

Philip Hoult from Local Government Lawyer. The question I have is recent rulings on adoption from the judiciary implies that what’s said, from the steer, that adoption should be a last resort where nothing else will do. The government is saying to councils, “We want you to place more children for adoption,” and they’re threatening to remove local authority powers if they fail to do so. Do you have any advice for councils in that situation?

JM: Well, I stopped giving advice when I left the bar 14 years ago. All I would say is that it is the Supreme Court, very recently in a case called “Re: B” which used the phrases which you’ve just mentioned. Last resort and so on and so forth. Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the  judges to decide what the statute means. The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so. I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in “Re: B” in I think the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year, the tension being that whereas the Supreme Court said that adoption is the last resort, the Government, as I recall in the guidance it gave, said that local authorities should get away from the idea that adoption is the last resort. So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if the Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law. In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.

 

It does seem to me that the President is explicit there – there was a tension between what the Courts were saying in Re B and Re B-S and the pro-adoption policies of the Government. And the President was explicit – if the Government disagree with the judicial line, they must change the law.

 

So will the President hold firm, or is there a change coming?  (I know where my money is going. I suspect we are about to learn that we have always been at war with Eurasia)

 

I can’t cut and paste in the entireity of the Times piece, due to copyright issues, but if this bit is accurate, it really troubles me

 

Officials in the Department for Education made a series of pleading phone calls to heads of local authority children’s services departments telling them that the judge’s intervention had been misinterpreted.

Perhaps that isn’t right. But if it is, is that the way for judgments to be interpreted? Is that the way for Government to approach judgments that they don’t like? *

 

 

*( well, given that the Lord Chancellor just lost the book ban judicial review, but isn’t reversing the policy until after Christmas to stop prisoners getting books as presents for Christmas, maybe it is)

 

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