Author Archives: suesspiciousminds

Children giving evidence

Posted on July 22, 2014 by suesspiciousminds

 

This is a Court of Appeal decision, arising from a private law case in which there was an issue as to whether a child should give evidence as part of the forensic exercise of determining the truth of what happened.

Re B (Child Evidence) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1015.html

 

John Bolch does an excellent summary here

http://www.familylore.co.uk/2014/07/re-b-children-giving-evidence.html

 

The case builds on, but doesn’t change the principles set down by the Supreme Court in Re W  http://www.bailii.org/uk/cases/UKSC/2010/12.html

 

The fundamental difference is that in Re W, the potential child witness was the subject of proceedings (thus the welfare of the child was a legitimate component of judicial decision-making, though not the paramount consideration), whereas this was a sibling/half-sibling of the child in question and thus wasn’t covered by that umbrella of welfare.  Other than in the broader philosophical sense that a Court dealing with the welfare of a particular child ought not to cause harm to another child in that pursuit of a decision. Also, in Re W, the child had given a video interview to the police and that could potentially stand as evidence, in this one, the child had not given any interview and the issue was whether and how the child’s evidence ought to be placed before the Court if at all

 

The original trial Judge had decided that a series of questions ought to be drawn up and the CAFCASS adviser ask them of the child and record the answers, deciding to leave the issue of live evidence to one side until that information was available.

I’m not quite sure why the appeal was brought before that decision was made, or how the Court of Appeal dealt with it so quickly (it feels a bit premature to me, but nonetheless they did)

 

The Court of Appeal backed the decision of the trial judge to proceed in that way, but were keen to stress that this was not sanctioning an opening of the floodgates (as Jack of Kent has pointed out, floodgates opening is actually a good thing contrary to the metaphor – they are SUPPOSED to open).

 

  • I would not expect our endorsement of Judge Cameron’s decision to open the floodgates, leading to a widespread practice of calling children as witnesses in cases such as this one. The Supreme Court did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be the conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her. I am sure that the natural sensitivity and caution of the family courts, which originally generated the now defunct presumption, can be relied upon to ensure that matters are approached in a way which properly safeguards all the interests involved.

 

 

 

  • In addition to the argument that G’s evidence was peripheral, it was also argued on F’s behalf that it was wrong to have embarked upon the Family Court Adviser path because it would (or should) lead nowhere as the shortcomings in G’s evidence rendered that evidence of little value. The shortcomings were said to arise from matters such as G’s age, the lack of a contemporaneous statement from her, the passage of time since the incidents, and the likely influence upon her account of having lived in the meanwhile with M who was negative to F.

 

 

 

  • I recognise the logic in the submission that the court should not involve a child in steps designed to explore the possibility of him or her giving evidence unless satisfied that the evidence is likely to be of value. However I would not take such an absolute position. It can be difficult to take a reliable decision in a vacuum and there can sometimes be merit in a step by step approach which enables more information to be gathered before deciding irrevocably. In deciding what steps to take, the apparent nature, quality and relevance of the evidence are obviously material but the court may not know enough in the early stages to form a concluded view about matters such as this.

 

 

 

In the light of the Court of Appeal’s decision to nuke fact finding hearings in public law from orbit, a decision I respectfully think is something one could happily eat with cheese, I thought these remarks from the Court of Appeal were interesting

The pursuit, in public and private children proceedings, of “the truth” about past events is not an abstract endeavour. What happened in the past is the foundation for informed decisions about the future, including decisions as to what, if any, risk of harm a particular course of action may present to the child who is the subject of the proceedings. The more reliable the court’s findings as to what happened in the past, the more reliable should be the prognosis for the future and the better the court should be able to judge where the welfare of the subject child lies.

 

Quite so.

9 Comments

Posted in case law, fact finding, private law and tagged , , , , , . Bookmark the permalink.

Suggested improvements to case management orders

Posted on July 21, 2014 by suesspiciousminds

 

Look, we know what you’re up to. They are intended to be soul-destroyingly tedious – perhaps you have some sort of vested interest in treatment of aneurysms, perhaps you just hate lawyers, perhaps you want to make us all quit.  Or you read Catch 22 but completely missed that the bits where the bureacracy intended to serve people in their jobs ends up hampering them or took those as a call to arms rather than a satirical barb. Who knows?

 

Every time I open up a blank one, I feel like this

 

 

But form designers, you can strive even harder to ruin the day of anyone who has to complete the things.  Here are just five suggested additions

 

1.  Code numbers.  To protect anonymity, from now on, the name of any individual or party, including Judges, social workers, experts, lawyers, will have its own unique 26 number code. That code will not be consistent with that used for that person in any other case, and will be changed every 27 days for security purposes.  This will result in clauses like this   97233861182418618690207116900  shall file and serve their assessment of 18y790393700122 and 10089279972291772  as carers for 11909078667672291 and 492280661512982 . Much better for everyone

 

2.  Section 2 of the order will now require that the author complete in handwriting (to prevent cutting and pasting) every section of the Human Fertilisation and Embryology Act that does not apply to the case, even where the case involves a perfectly routine pregnancy.

 

3. Section 9 of the order requires the author to give two examples of irony in literature (such examples must not have been replicated in any other order lodged in that Court. The Court will not divulge in advance whether the example has been previously used)

 

4. In the event that any of the parties has ever been on holiday to a foreign country, indicate whether you have written to that country to see whether they have any intention to intervene in these proceedings.

 

5. Again for security purposes, a code system like those Captcha things on websites is introduced when lodging the form. The computer system will give fourteen words and the advocate lodging the form must identify which View from the President the words are a quotation from.

 

 

[I might, perhaps, just perhaps, have drafted too many Case Management Orders this month]

 

2 Comments

Posted in stuff that isn't law at all and tagged , . Bookmark the permalink.

Being late to the party (turns out Auntie Beryl was Grandma Beryl…)

Posted on July 16, 2014 by suesspiciousminds

 

KS v Neath Port Talbot 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/941.html

 

This was an appeal by the grandmother who was refused her application to be joined as a party to care proceedings, which resulted in Placement Orders. She put herself forward in a formal application five days before the final hearing.

 

The Judge arrived at a sort of half-way house, refusing party status for the grandmother, but allowing her to be in Court, to give evidence and to ask the father’s representatives to put questions on her behalf. This unusual position was not helped by the Judge believing when judgment was delivered that the grandmother’s primary application had been dismissed by the Judge on day one of the final hearing (it hadn’t, it had been adjourned for decision until the end of the case)

 

 

 

  • Some five days before, on 9 October 2013, the child’s paternal grandmother had made a formal application to be made a party to the proceedings and for an expert assessment concerning her capability to care for the child. The application was adjourned at the beginning of the hearing and refused at the end. The effect of the adjournment was, however, to refuse the grandmother party status for the hearing that was taking place. Despite this, the judge permitted the grandmother to remain in court during the hearing and to give oral evidence. He records in his judgment that the grandmother:

 

 

“… opposes the applications and has played a part in these proceedings in as much as she has given evidence and has put herself forward as a potential carer for her grandchild”

 

  • There was a real issue before this court about what the judge intended to decide by his case management ruling. Although it is clear from the words he used that he adjourned the grandmother’s application until the end of the hearing on the merits, when he refused it, he later recollected (erroneously) that he had refused her application at the beginning of the hearing. Furthermore, although he failed to grant to the grandmother some important due process protections that a party would have, in particular notice of the issues in the case and knowledge of the evidence filed relating to those issues, he afforded the grandmother a partial opportunity to participate in a hearing which decided those issues.

 

 

The trial judge’s determination of the grandmother’s case was fairly short, and viewed criticially by the Court of Appeal

 

 

  • The terms in which the judge dealt with the grandmother’s application at the beginning of the hearing are as follows:

 

 

“This is an application for leave to make an application under section 8 of the Children Act. I bear in mind that this is a very late application and I bear in mind the Family Proceedings (sic) Rules and the overriding principle that I have just referred to. Although this is a late application, it has the potential for disruption not only of these proceedings but the interests of this child.

I am not going to shut the grandmother out of these proceedings at this stage. She can stay and hear the evidence, she can stay during all the proceedings, she can find her seat comfortably with other parties and she will be able to give evidence and through the solicitor for the father she can cross examine the author of the assessment that was made of her which was negative. I, therefore, adjourn her application to a stage in the proceedings after all the evidence has been completed. I do so in balancing the fairness to all the parties here and to the child.

There will be no ostensible delay of these proceedings by doing this, I allow her interests at least to be considered and for her to hear all the evidence as it potentially may interest the third party.”

 

  • At the end of the hearing the judge refused the application for five reasons that involved no analysis of the evidence, no analysis of the content of the assessment of the grandmother or the potential merits of her case, as follows:

 

 

i) the late nature of the application and the delay that an additional expert would occasion;

ii) the nature of the grandmother’s proposed application, namely for a residence order which the judge described as lacking in detail;

iii) the limited connection with the child: the judge accepted that there was an emotional attachment but erroneously described the continuous and significant contact arrangements as being “some ad hoc inter-familial arrangement for contact”;

iv) the real disruption that the application would cause to decision making about the child’s immediate future; and

v) the fact that the grandmother did “not fall within the remit of the local authority’s plans”.

 

  • As to the merits of the grandmother’s case, the judge was brief. The analysis in his full judgment was limited to the following words:

 

 

“The original assessment of the grandmother on 12th July of 2012 was negative. There is scope to believe that things have not so fundamentally changed that that report should stand to be considered as being valid. Any contribution as sought by the grandmother would require considerable analysis of the family dynamics, including of course an exploration of the father’s upbringing which itself has been the subject of various explanations, and also the management of contact. That was the view of the Guardian and I accept it. There is no merit in the application for the grandmother to care for the child. I appreciate that she may well have a kind heart and show commendable maturity as a grandparent herself in conceding that the time is now right for a decision to be made in respect of [the child].”

 

 

On the other side of the coin was the grandmother’s case, and the Court of Appeal felt that she had a better case than the Judge had recognised

 

 

  • The grandmother’s case was that she has a meaningful connection with the child who had regular contact including staying contact with her. That contact had existed before the child’s placement with the great grandparents, had continued after that placement had ended and was still taking place during the proceedings on a twice weekly basis. In addition, the July 2012 assessment acknowledged that the paternal grandmother and her husband displayed genuine emotion for and were clearly concerned about the child’s future. They were assessed as being fully aware of the local authority’s concerns about the parents and the child’s care needs. There was a significant attachment between the child and her grandparents that would be severed by the adoptive plan. By the time of the final hearing, the child’s parents supported the grandmother’s application.

 

 

 

  • The assessment also described the manifestly good care that was provided by the grandparents for a 14 year old boy and a 12 year old girl within what was evidently a long term stable relationship. There were no concerns about their parenting abilities in respect of these children and there had been no involvement of children’s services.

 

 

 

  • The local authority response to this court about the merits of the grandmother’s case was that the positives in the assessment were outweighed by the negatives which included the paternal grandmother’s partner having significant mobility problems such that he might not be able to assist with his granddaughter’s care. There were also fears about the impact the parents might have in undermining a placement with the grandparents, the appropriateness of the grandparents’ accommodation and the grandparents’ commitment to the children already cared for by them and whether that would be compromised by another child in the household.

 

 

 

  • In my judgment, the analysis of the negatives in the local authority’s evidence and by the guardian did not exclude the grandparents as a realistic option. To put it another way, the grandparents’ prima facie case on paper was stronger than that of the local authority relating to them. It is difficult to conclude other than that the grandparents’ case was arguable on any basis. It went to the critical proportionality evaluation of whether ‘nothing else would do’ than adoption. The grandmother’s application accordingly demanded rigorous scrutiny of the factors set out in section 10(9) of the Children Act 1989 in the context of the reasons for the late application.

 

 

Decision

 

  • The paternal grandmother submits and I agree that the case management decision that the judge made was plainly wrong because it was procedurally unfair. If, by his case management decision, it was the judge’s intention to exclude the grandparents from the care of the child, then he did not have regard to evidence relating to the section 10(9) factors or to the potential merits of her case which he would have found in the content of the assessment to which I have referred. His reasons lacked sufficient or any analysis. Case management decisions that have the character of deciding a substantive issue must be treated with particular care: hence the nature and extent of the enquiry that is made necessary by section 10(9) of the Act and its associated case law.

 

 

 

 

 

  • The purpose of section 10(9) of the 1989 Act and the case law that supports it is defeated if there is no analysis of the benefits and detriments inherent in the application and the arguability of the case. The section provides a framework for decisions of this kind to be made so that there is an appropriate balance between case management principles and the substantive issues in the proceedings. Furthermore, the lack of attention to detail and in particular the lack of analysis of what had been happening during the proceedings in particular as between the local authority and the grandmother and the child, including the timetable for the child and for the proceedings, deprived the decision of the character of individual and collective proportionality that application of the overriding objective would have provided. In simple terms, the decision was too superficial and un-reasoned to stand scrutiny.

 

 

 

  • If it was the judge’s intention to consider or re-consider the grandmother’s case at the end of the evidence, in what would then have been an holistic overview of the options to which a welfare analysis and proportionality evaluation were applied, then he failed to put in place any procedural protections for a person whose case was distinct from the other parties. In particular, his decision at the beginning of the hearing had the effect of refusing to make the grandmother a party, thereby denying her access to the documents so that she could challenge matters relating to her own case and condemned her to giving evidence without knowledge of the relevant evidence in the case. The essential due process protections of notice of the issues and an opportunity to challenge evidence relating to those issues was missing and in my judgment that was also procedurally unfair.

 

 

 

  • By reason of the manner in which the case management decision was made, the evidence relating to whether grandmother was a realistic option was not identified and tested. It was neither tested by reference to applicable case management principles nor substantively as one of the options in the case about which the court was hearing evidence with the usual due process protections. The judge allowed the issues raised by the grandmother to fall between two stools. That was plainly wrong and as a consequence the process was procedurally unfair.

 

 

 

  • At the end of the hearing, the case management decision made by the judge was re-iterated as a substantive decision to exclude the grandparents from the care of their granddaughter. Whether or not the grandmother as a non-party to that decision has the locus to challenge that aspect of the case, the mother does. She submits that as an exercise of value judgment it was wrong and in any event the judge failed to conduct a non linear, holistic welfare analysis and proportionality evaluation of all of the care and placement options and that was an error of law. The judge did not reason why the grandparents were to be excluded, there is no comparative welfare analysis of the benefits and detriments of each option and a proportionality evaluation is entirely missing from the judgment. Further and better reasons of the judgment were requested but they do not assist in any of these respects. That has the effect that there is no consideration in judgment of the effect on the child of breaking family ties, in particular her attachment to her grandparents and whether nothing else would do other than adoption.

 

 

 

  • In summary, the grandmother supported by the mother submit that the judge failed to address that which is required by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 in analysing whether ‘nothing else will do’ and the subsequent Court of Appeal cases of Re P (A Child) (Care and Placement: Evidential Basis of Local Authority Case) [2013] EWCA Civ 963, Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re B-S (Children) [2013] EWCA Civ 1146. I agree. There was no overt analysis of the child’s welfare throughout her life nor the likely effect on her of having ceased to be a member of her original family in accordance with section 1(2) and 1(4)(c) of the 2002 Act. The distinctions between the factors in the welfare checklists in the 1989 Act and the 2002 Act were not explored. The essence of the recent case law and of the statutory tests was not sufficiently demonstrated.

 

 

 

  • The local authority concede that the judge’s approach to the welfare analysis and proportionality evaluation was not in accordance with the authorities. Their case rests on the ability to exclude the grandmother from that exercise. That would have involved an analysis by the judge of the timetable for the child and the timetable for the proceedings as part of the overriding objective, the section 10(9) factors and the arguability of the grandmother’s case. That analysis was missing with the consequence that neither the grandmother’s case nor the local authority’s case was properly considered during case management and the grandmother’s case was not considered on the merits. It is fortunate that the child’s interests can be protected by an expedited re-hearing before the Designated Family Judge for Swansea.

 

This does seem to be the right decision for the child, but it raises real questions about the 26 week timetable.  It has been a long-standing question as to what the Court of Appeal would do with a Judge that refused in an adoption case to allow a delay to assess a relative who came forward last minute, and now we know. If the Judge is robust and looking at the new wording of the Act and the principles of the Act in relation to delay and achieving finality, they run the risk of being successfully appealed.

 

There’s another Court of Appeal decision forthcoming which does much the same in relation to giving a parent more time to demonstrate the ability to provide good enough care (even when the proceedings had reached 64 weeks http://www.bailii.org/ew/cases/EWCA/Civ/2014/991.html  ), so the message here is somewhat muddled.

In speeches, it is 26 weeks can happen, it must happen, it will happen.

 

In the cases that hit the Court of Appeal it seems to me more – 26 weeks can happen, it must happen, it will happen – but to those other cases, not the ones we’re looking at.

So can a Judge who delivers that sort of robust judgment, refusing delay, be confident that the Court of Appeal will back them?  That’s exactly what happened with the ‘robust case management’ that was supposed to be the underpinning of the Protocol and PLO Mark One.  If the Court of Appeal aren’t really behind the 26 weeks, and the appeal process takes forever (as presently), then won’ t Judges cut out the middle man, save time and just allow the adjournment requested knowing that the Court of Appeal will probably grant it eventually anyway?

 

 

*To be scrupulously fair, this Court of Appeal decision, though only now released, was decided in March BEFORE the Children and Families Act 2014 came into force. But hardly in ignorance of the culture, and the main judgment was delivered by Ryder LJ, a major architect of the revised PLO.

 

4 Comments

Posted in adoption, case law, children and families act 2014 and tagged , , , , , , . Bookmark the permalink.

Capacity to live with your husband

Posted on July 16, 2014 by suesspiciousminds

 

The Court of Protection case of Re PB (2014)

http://www.bailii.org/ew/cases/EWCOP/2014/14.html

 

The case involved a 72 year old woman PB, whom Norfolk CC considered to lack capacity and also felt that she could not safely live in her own home with her husband TB who was 50 and also said to lack capacity.

As ever with the Court of Protection, the first step is to establish whether  a person lacks capacity to make decisions on their own behalf, with the starting point of the Mental Capacity Act 2005 being that they DO unless proved otherwise. A person with capacity is entitled to make poor or foolish decisions, decisions that nobody around them thinks are right. We have autonomy to make our own mistakes, as long as we understand the nature of our decision and what the pros and cons are.

 

We end up with, in the Mental Capacity Act 2005, a clear bright line between someone who has capacity (in which case the Court of Protection have to let them make their own decisions) and someone who does not (in which case the Court of Protection can be asked to make a decision on their behalf striving to do so in their best interests)

Is capaciy really such a clear bright line? This case throws up some doubts for me.

 

Let’s look at what PB herself said to Parker J

 

 

  • PB wrote to me before the hearing. In particular she wrote that “I should like to point out that it is the right of every individual to choose for himself or herself whom to live with and where to live and not to live under the shadow of regimentation and have to live in an institution”.

 

 

 

  • I was asked prior to the hearing, and when I had had no opportunity to assess the background, whether I would see PB at the hearing. I reserved that decision for the trial. At court I was also asked to see TB. I was happy to do so, but stressed that care has to be taken as to how a meeting shall be treated. The protected party does not give an sworn/affirmed account, and in particular if the meeting takes place only in the presence of the judge, with no opportunity to test the evidence, then in my view no factual conclusions save those which relate to the meeting itself should be drawn, in particular with regard to capacity (see YLA v PM and Another [2013] EWHC 4020 (COP) at [35].

 

 

 

  • As it turned out, neither wished to give evidence. They each asked to speak to me in the courtroom with all representatives present. This took place on day three. PB spoke to me first, followed by TB. Each sat close to the bench and was at liberty, as I told them, to talk about what they felt and wanted, and any other topic. They were not cross examined, and I did not ask any questions. I did speak to PB about the medical procedure which she was reluctant to undergo.

 

 

 

  • PB is likeable, highly intelligent, sophisticated and articulate, well-read and knowledgeable. She writes poetry. With regard to marriage she told me “Let no man put asunder” and “once a couple are married – meant to be together”. She denied that she had been ill for 50 years. She stated “I haven’t lived with my siblings for 50 years”.

 

 

 

  • It is obvious to me from all that I have read and heard as well as from the meeting that PB’s intellectual understanding is at a high level. She stated “I understand that this Act only came in in 2005. I wonder whether it’s working out as it should be”.

 

 

 

  • She told me, when asked what she wanted to happen, “I’d like to be free to wander the universe without being told to sit down and be quiet”, “I’d like to get my poetry published”, “I’d like [TB] to be always at my side”, and “I’ve never hit a carer” (the evidence is that she has).

 

 

 

  • TB is also likeable, and he was articulate and sincere. He said “How do you take decisions” “we have a lot of confidence in one another, we should be living together as man and wife”, “The social worker has done a good job”. He wants to go back to F House to be with PB. He volunteered that he had “tapped the manager on the nose”.

 

 

 

  • I accept that whatever their respective problems this couple has a long standing and committed relationship and that they love one another dearly. There is no issue as to their capacity to marry: the marriage was celebrated many decades ago

 

 

 

PB here comes across as intelligent and articulate – the Judge saying that her intellectul understanding is at a high level  (her critique of the Mental Capacity Act is one which is put very well, and which many people share)

 

What did the medical experts say about her capacity?

 

 

  • Particularly since PB presents in a sophisticated manner, as Dr Khalifa told me, it has been an advantage for me to have had the treating physician with long term knowledge to give evidence on the issues. Dr Khalifa stems from Sudan but has worked in Ireland before coming to practice in England as a consultant in old age psychiatry. English is not her first language and her idiomatic understanding has some gaps. That gave rise to a misunderstanding in writing, as will be seen. Her reports were also not clear, taken in conjunction with the joint statement (appended hereto).

 

 

 

  • There is a considerable degree of consensus between the experts:

 

 

i) Dr Barker thinks that the diagnosis is schizo-affective disorder. Dr Khalifa thinks it is residual schizophrenia. I agree, as the doctors agreed, that this makes no difference to their overall views.

ii) Both agree that PB has cognitive problems. Dr Khalifa says that she has compromised executive function stemming from her frontal lobe. This is a known problem in schizophrenia. Dr Barker accepts that she has frontal lobe damage, which he described as “mild brain damage”. Dr Barker also thinks that she has an “ageing brain”.

 

  • Dr Khalifa explained in oral evidence (which she gave the day after Dr Barker) that:

 

 

i) Executive dysfunction is progressive.

ii) It is implicated in planning, judgment, and decision making.

iii) PB has problems with working memory, keeping information “on line”, and manipulating the information to make a decision.

iv) She suffers from “poverty of thought” (a global reduction in her quality of thought where the person keeps returning to the same limited ideas).

v) She shows “negative thinking” and lack of initiative.

vi) She is unable to judge situations.

vii) She has problems in “set shifting”: that is in shifting her choice to a new one in the face of negative feedback, and the ability to stick to a new choice.

viii) She has problems in doing more than one thing simultaneously.

ix) Other problems are of selecting appropriate responses and inhibiting inappropriate ones, of generating plans and resolving problems.

x) She cannot compare the risks and the benefits.

 

  • This formulation had not been put forward by Dr Barker and he was not asked about it, since Dr Khalifa’s formulation was not elicited until she gave evidence. But the upshot is that it was not challenged. Nothing that Dr Barker said was inconsistent with it.

 

 

 

  • Dr Khalifa states that PB suffers from intense anxiety which can reach clinical levels and which prevents her from making a decision. She “gets stuck”, as described by Ms Thompson. Dr Barker thinks that many people without mental health problems have problems making difficult decisions. But he agrees that PB’s anxiety can reach clinical levels so that it constitutes impairment/ disturbance.

 

 

 

  • Broadly, Dr Barker is not certain about the extent to which PB’s decisions may be based on her beliefs about marriage, and to what extent TB’s influence leads her to be incapacitous all the time.

 

 

 

  • Dr Barker states that PB is heavily influenced by her husband. When not with TB she has capacity (in his original report he wrote “has considerable capacity”) but may be incapacitous when with him. He does not know to what extent influence may be taken into account in deciding that she is incapacitous.

 

 

 

  • In his report and evidence he suggested that PB may simply be making a decision based on her commitment to marriage over her own wellbeing which is unwise but which is not caused by her mental impairment. “If she has preferred to ally herself with her husband she may accept the level of squalor”. In cross–examination he said that in his view her decisions “are not solely driven by mental impairment” and “it is difficult to judge whether it is cognitive impairment, or other factors which lead her to make unwise, or incapacitous, decisions when with TB”.

 

 

 

  • He said that assessment of whether she was unable to use and weigh might be skewed if PB had chosen to withhold information. She might have different thought processes but was choosing not to disclose that to him. There is evidence that she understands the issue but she may not want to give evidence which may “damage her cause”. This may be a natural denial.

 

 

 

  • That is the best summary of Dr Barker’s views which I can provide. His views were in fact set out in a number of different formulations. Mr Reeder has set them out in his closing document. I need not review that in detail. Dr Barkers’ final position in evidence was that the issue of PB’s capacity is finely balanced and should be decided by the court. He ‘leans’ to the conclusion that she has capacity to make decisions about residence, care and contact in optimal conditions He wavered somewhat as to whether he thought that PB lacked capacity when not with TB, and eventually concluded that he thought that she might do. “I agree that PB lacks capacity in certain situations, for example because of anxiety, mental disorder or influence. I don’t know if she has capacity in optimal circumstances, but I have not seen sufficient evidence that she lacks capacity then”. Ms Street says that the Official Solicitor “interprets” Dr Barker to have said that he thought that the presumption of capacity had not been rebutted.

 

 

 

  • Dr Khalifa’s consistent position in oral evidence was that PB’s mental illness, anxiety and influence from TB all contribute to her inability to weigh information. She lacks capacity at all times, sometimes at a greater level that at others.

 

 

 

  • Dr Barker had drafted the joint statement after their joint meeting. Dr Khalifa told me, and I accept, that he sent it to her and she signed it without further discussion. They recorded agreement that capacity was “finely balanced”. Dr Khalifa told me that she had misunderstood. She did not consider capacity to be finely balanced. She regarded PB and always has as clearly lacking capacity. Furthermore, although they agreed that PB had “considerable capacity” when not subject to TB’s direct influence (adopting Dr Barker’s phrase, by which he seems to have meant something different) both in her report and the joint statement, she did not mean that PB ever had capacity. She “would not separate influence and major psychiatric disorder.” In any event TB’s influence is pervasive. Whenever PB has to consider decisions about living with him or spending time with him she either cannot recall or use and weight the information or is paralysed by anxiety, or both.

 

 

 

  • The joint statement does not clearly address the capacity issue and Dr Khalifa’s clear view only emerged at court. Dr Khalifa told me also that she had wanted to “harmonise” their views. I accept this. Dr Barker’s view was never clearly enough expressed and it seems to me that she thought that this was the best they could do since there was no prospect of getting any clearer formulation. She was wrong to sign up to an accord when in fact there was none. But I am sure she did not appreciate that this would prolong the debate and the enquiry.

 

 

 

  • Both agree that “whether or not the Court finds that she lacks capacity, she is a vulnerable adult and as such requires protection in the context of her relationship with TB.”

 

 

[I don’t personally care much for the last sentence – if PB has capacity, then she has the same autonomy as any of us to make choices and decisions without the State interfering.  I come across this patrician attitude quite a lot, and I’m afraid it is something that makes me bristle. It isn’t the job of the State to make decisions for people who are capable of doing that themselves]

 

There are some problems in this – it appears that Dr Barker felt that PB had capacity to make decisions about where she wanted to live ‘in optimal conditions’ and that PB had ‘considerable capacity’ when not subject to TB’s influence.

 

We’ve all come across people who act foolishly in relation to a love affair  (this might be described as the ‘Gail Tilsley effect’ – a person who is normally sensible, cautious and fairly dull, has all of their common sense go out of the window when their head is turned by love.  Is that a lack of capacity?  Sometimes when this is happening to you, you might describe it as not being able to think straight, you might come out of it saying ‘what was I thinking?’  ‘what possessed me to do that?’  – but is it a lack of capacity?

 

The Judge was asked to prefer the evidence of Dr Barker to Dr Khalifa (who had put things on a much more medical footing regarding decision making, as opposed to Dr Barker, who felt that PB’s judgment was clouded when it came to making decisions about her relationship with TB – which would NOT be a lack of capacity for the purposes of the Act). The Judge instead preferred the evidence of Dr Khalifa.

 

 

  • Ms Street and Mr Reeder asked me to prefer the opinion of Dr Barker to Dr Khalifa. I decline to do so.

 

 

i) I do not agree that Dr Khalifa was approaching the task of assessment from a Mental Health Act “diagnostic” standpoint or safeguarding perspective.

ii) Dr Barker’s evidence was speculative, approached more as a philosophical or academic debate than an opinion. As I have commented above he was reluctant himself to factor a consistent body of information from reliable sources as to PB’s thought processes. He focused on his own assessment rather than looking at the history, in particular the stark picture presented by Ms Thompson’s evidence.

iii) His emphasis on PB’s sophisticated, dextrous use of language, which was not in dispute, caused him to lose focus on the issue of using and weighing the information and the inability to take any decision at all: getting “stuck”, “going along with it”, “acquiescent” (a word which struck him by its “sophistication”).

iv) He had no evidence that PB was deliberately concealing information from him, or her motivation if she was. What she said to him was consistent with “sliding away” from the issues.

v) Dr Barker took the individual elements but did not put them together. He did not address the matters in issue. As I have said, the question was not the wish to be with her husband. The issue was not whether she was wise or unwise to regard their trips together as “romantic” or to regard the bonds of marriage as sacred; but whether she is able to decide where and with whom she is to live and how her care is to be managed.

vi) Dr Khalifa broke down the elements then approached capacity on a holistic basis. I found her oral evidence clear and focussed, well argued, cogent and compelling.

vii) I am satisfied that PB suffers from impairment/disturbance which directly results from the psychiatric disorders identified by Dr Khalifa.

viii) I do not accept Dr Barker’s opinion that PB is only under TB’s influence when she is actually with him. I agree with Dr Khalifa that TB’s influence remains effective even when not she is not with him. This is apparent from the conversations recorded above with Ms Nicholas, Ms Masters, and Dr Khalifa.

ix) And finally key issues on which he focussed are, as he accepted, matters of law or of judgment for the court.

 

Because this issue arose as to whether PB’s mental condition and disorder of the mind was causing her lack of capacity, or whether it was a contributing factor together with her feelings towards her husband and her inability to process logical decisions when considering him, there was a legal issue to be resolved

 

 

  • capacity in this context must mean with regard to the “matter in issue”. Furthermore, “for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (s 2(1)).” The key words “because of” should not be replaced by “referable to” or “significantly relates to”: PC v City of York Council [2013] EWCA Civ 478.

 

 

 

  • Ms Street submits that “because of” in Section 2 MCA 2005 means “is the sole cause of”. Mr Reeder submits that it means “is the effective cause of“. Ms Burnham suggests that it means “is an effective cause of” and submits that there is no material distinction between “the sole cause” and “the effective cause“.

 

 

 

  • Ms Burnham refers by way of analogy to the Equality Act 2010, where the words “because of” have been construed as meaning “a substantial reason”: it need not be the main reason so long as it “an effective cause”. She cites pre- EA 2010 authority: Owen v Briggs and James, 1982 ICR 618 (CA) and O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1997] 1CR 33. I note other analogous areas of statutory interpretation where a purposive construction has been adopted. Under s 423 Insolvency Act 1996, in order to set aside an impugned transaction its “purpose” must have been to defraud creditors. Purpose does not mean sole purpose: substantial purpose or intention is sufficient (Inland Revenue Commissioners v Hashmi) [2000] 2 BCLC 489, 504, [2000] BPIR 974. Under s 37 Matrimonial Causes Act 1973 there is power to set aside a transaction made with the intention to defeat a claim for a financial remedy. The intention to defeat the claim does not have to be the dominant motive in the transaction; if it is a subsidiary (but material) motive then that will suffice: Kemmis v Kemmis (Welland and Others Intervening), Lazard Brothers and Co (Jersey) Ltd v Norah Holdings Ltd and Others [1988] 1 WLR 1307, [1988] 2 FLR 223.

 

 

 

  • I agree with Ms Burnham that where there are several causes it is logically impossible for one of them to be “the effective cause”. I agree that to hold otherwise would lead to an absurd conclusion because even if impairment or disturbance were the most important factor, wherever there were other factors (however little part they might play) the s 2 MCA 2005 test would not apply.

 

 

 

  • There is nothing Convention incompatible in the concept that multiple factors may affect a decision. Otherwise a person with impaired capacity whose disturbance/impairment of mind operates to disable her from weighing and using information would not fall within the protection of the Act.

 

 

 

  • It seems to me that the true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction.

 

 

 

  • The issue is not, as Mr Reeder puts it, whether “the effect of PB’s views about her marriage is itself an impairment or disturbance or results from an impairment or disturbance”.

 

 

 

  • The question is whether PB lacks capacity in respect of the matter in issue by reason of a disturbance or impairment in the mind or brain so that she cannot use and weigh her choices (which may include choices impelled to whatever extent by such beliefs of feelings) so that he/she is unable to understand, retain, or use and weigh them.

 

 

 

  • Ms Street and Mr Reeder also submit that Dr Khalifa approached the test the wrong way round. They submit that the Code of Practice stipulates that the first step is to decide whether there is a disturbance of mind, and the second to decide on capacity whereas McFarlane LJ in PC v City of York [2013] EWCA Civ 478 stated that this should be considered in reverse order. In my view MacFarlane LJ did not purport to lay down a different test: nor did he take the questions in the reverse order, but simply stressed that there must be a causative nexus between the impairment and the incapacity.

 

 

 

  • I do not consider that it matters what order the expert addressed the issues so long as she or he observes the causative nexus. Dr Khalifa identified the impairment or disturbance, which she described compellingly and in detail, and then clearly advised that this caused the inability to use and weigh.

 

 

 

  • When Dr Khalifa was asked whether PB’s inability to use and weigh the information was “due to” her constantly and clearly communicated views about marriage and her role within that marriage as TB’s wife, Dr Khalifa rightly rejected this as the relevant question and repeated her opinion as to PB’s condition and its effect on the ability to use and weigh. I do not agree that this was “ducking the question”. Dr Khalifa said and repeated that it is difficult to separate PB’s impairment or disturbance of functioning of mind and brain from the question of influence.

 

 

 

  • I regard PB’s condition as the cause of her inability to use and weigh. Her inability to challenge TB may at one time have stemmed from a belief in the ties of marriage: I do not know. But now she is unable to use and weigh the information because of the compromise in her executive functioning and her anxiety.

 

 

and the Judge specifically looked at the issue of Overbearing of the Will

 

Influence/overbearing of the will

 

  • In R v Cooper [2009] UKHL 42, [2009] 1 WLR 1786 at [13] the Supreme Court noted that “The commission therefore recommended the functional approach: this asked whether, at the time the decision had to be made, the person could understand its nature and effects…”. However, the commission went on to accept that understanding might not be enough. There were cases where people could understand the nature and effects of the decision to be made but the effects of their mental disability prevented them from using that information in the decision-making process. The examples given were an anorexic who always decides not to eat or a person whose mental disability meant that he or she was “unable to exert their will against some stronger person who wishes to influence their decisions or against some force majeure of circumstances”: para 3.17. (underlining added for emphasis).

 

 

 

  • I do not accept as Ms Street submits that the underlined passage supports the proposition that the impairment or disturbance must be the sole cause of the inability to make a decision. It does support Ms Burnham’s submission that inability to exert the will against influence because of the impairment or disturbance is relevant.

 

 

 

  • I do not accept that pre MCA authority is irrelevant. It has been held that the jurisdiction of the High Court is not usurped where capacity has been lost because of the influence of another or the impact of external circumstances, and only regained because the court has regulated exposure to such influences which if subsequently reasserted will cause capacity to be lost once more Re G (an adult) (Mental capacity: Court’s Jurisdiction) [2004] EWHC 222 (Fam) and a Local Authority v SA and others.

 

 

 

  • In Re A (Capacity: Refusal of Contraception) [2011] Fam 61 at [73] Bodey J specifically found that Mrs A’s inability to use and weigh was the consequence of the influence of a husband to whom she was fiercely loyal. Ms Street says that this decision is not relevant in the instant case since the words “because of” were not the subject of argument. In my view the issue of influence is a general one, and not limited to the causal nexus between impairment or disturbance of functioning of mind and brain and inability to make a decision. In that case the legal focus was the capacity to use and weigh information in order to make the decision. I do not accept that Bodey J was approaching the case on the wrong “inherent jurisdiction” test.

 

 

 

  • In IM v LM the Court of Appeal recorded Peter Jackson J’s observation that the threshold for those who wish to establish that a person cannot make a decision because they are overborne by influences from others must be a high one “in relation to an act which is so very hard to rationalise.” The Court did not further comment on this formulation. I assume that they approved it. There is no suggestion that influence is not a relevant consideration. They specifically approved Bodey J in Re A (Refusal of Contraception).

 

 

 

  • As I have commented the type of decision to be made in this case is quite different from a decision to engage in sexual relations. It requires consideration of quite complicated choices and an assessment of past and future. In any event the influence/pressure of TB is common ground and is overwhelmingly demonstrated.

 

 

 

  • PB is under TB’s influence whether he is physically present or not. Every time she is asked to make a decision about him his influence, in conjunction with her psychiatric condition, cognitive deficits and anxiety, prevents her from using and weighing the information.

 

 

 

  • But in any event by reason of her condition alone, even without the influence of TB, in my view PB lacks capacity to use and weigh. The history over March and April 2013 in particular demonstrates that PB was not able in reality to make any decision at all which related to TB, or to her care needs. And what she has said during the course of these proceedings demonstrates the same process. Her impairment /disturbance is the effective cause, the primary cause of her inability to make a decision.

 

 

 

  • I have had the advantage, which the experts have not, of surveying all the material in this case and in particular the oral evidence of Ms Thompson. PB, notwithstanding her high intellectual capacity and verbal dexterity, and in spite of her superficial and partial acknowledgement of the risks, is simply unable to factor into her thought processes (i.e. use and weigh) the realities of the harm that she will suffer if she resumes living with TB or has uncontrolled contact with him. And perhaps, even more importantly, she is unable to weigh up the risks to her of being in an unsupported environment, with or without him, without a package of care. This is not to be paternalistic, or to fail to allow her to experience an acceptable degree of risk. It is not a question of allowing her “to make the same mistakes as all other human beings are at liberty to make and not infrequently do.”

 

The Judge decided that PB did lack capacity for the purposes of the Mental Capacity Act 2005 and made the declarations sought by Norfolk, which were in effect that PB could be detained in a home against her wishes and that this deprivation of liberty was authorised.

 

An important point to arise was that Parker J had indicated that IF she had decided that PB DID have capacity, she would still have authorised the same actions (keeping PB in a home and apart from her husband) under the inherent jurisdiction. This is a big deal, because if this became law, it would mean that Local Authorities could ask Courts to make decision about ‘vulnerable’ adults who had capacity to make their own decisions. And as we keep hearing ‘the inherent jurisdiction theoretically has no limits”.  I believe that the Official Solicitor intended to appeal on this point of law, and I wish them all the luck in the world – this would be a major development in the law and a major erosion of the principle that people have autonomy to make bad decisions as long as they have capacity.  It would be a bad day for personal liberties in this country if the inherent jurisdiction were to be extended in this way   (on the flip-side, if you believe that the State is there to protect vulnerable people from making mistakes, then it would be a good day. We can agree to disagree on that)

 

 

 

  • I expressed the view at the conclusion of the hearing that if I did not find that PB lacks capacity I would have made an order in the same terms pursuant to the inherent jurisdiction. This is not strictly necessary, but I understand that the Official Solicitor will consider whether to appeal the decision following receipt of the judgment.

 

 

 

  • Miss Street submits that if PB has capacity that the court cannot impose a residence regime. She submits that the authorities only sanction, in essence, an adjunctive, supportive regime to restrain and protect from others.

 

 

 

  • All accept that the inherent jurisdiction can be invoked where capacity is vitiated by constraint, coercion, undue influence and other disabling circumstances which prevent her from forming and expressing a real and genuine consent: see Munby J (as he then was) in Re SA [2006] EWHC 2942 (a forced marriage case). I accept that this can result from improper influence of another person (indeed this is what is asserted here). Vulnerability, I accept, is a description rather than a precise legal formulation.

 

 

 

  • The reported cases are all fact specific. But I do not read them restrictively, as I am urged. In Re G (an adult) (Mental Capacity: Court’s Jurisdiction) [2004] All ER (d) 33 (Oct) Bennett J determined the place of residence of a vulnerable adult who had regained capacity. He held that he could not ignore the consequences if the court withdrew its protection. If the declarations were in her best interests, the court was not depriving G of her right to make decisions but ensuring that her stable and improved mental health was maintained.

 

 

 

  • Macur J, as she then was, in LBL and (1) RYJ and (2) VJ stated that the court has the ability via the inherent jurisdiction “to facilitate the process of unencumbered decision making by those they have determined free of external pressure or physical restraint in making those decisions”. I do not see that formulation as restricting the exercise of the inherent jurisdiction to prevent placement in a care home, subject to deprivation of liberty issues. In Re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) No 2 [2012] WLR 1439, the Court of Appeal confirmed the inherent jurisdiction as a safety net to protect vulnerable adults subject to coercion or undue influence. The inherent jurisdiction exists to protect, liberate and enhance personal autonomy, but any orders must be both necessary and proportionate. Miss Burnham submits that what is proposed is protective and necessary and proportionate and is not a coercive restricting regime. I am inclined to the view that a regime could be imposed on PB if that is the only way in which her interests can be safeguarded. To be maintained in optimum health, safe, warm, free from physical indignity and cared for is in itself an enhancement of autonomy. In Re L injunctive relief was granted against the parties’ adult son. That in itself was an interference with autonomy in one sense (freedom of association) and an enhancement of autonomy in another (protection against coercion).

 

 

 

  • I see no indication that the inherent jurisdiction is limited to injunctive relief. Each case depends on the degree of protection required and the risks involved. And the court must always consider Article 8 rights and best interests when making a substantive order.

 

 

 

  • Ms Street of course submits that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and “lawful pursuant to Article 5 of the Convention”. She cites Lord Hope in R (Purdy) v DPP [2010] 1 AC 345: (i) there must be a legal basis in domestic jurisdiction (ii) The rule must be sufficiently accessible to the individual affected by the restriction and (iii) it must be sufficiently precise for the person to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.

 

 

 

  • If I made such an order here a regime would be imposed by a court of law through a legal process of which notice had been given and it would be perfectly possible for a person of sufficient capacity to understand its effect. That fulfils the “Purdy” criteria.

 

 

 

  • However Ms Street also submits that there would be no or insufficient connection between the deprivation of liberty and “unsoundness of mind” within the meaning of Article 5. That would be the only basis upon which I could impose restraint.

 

 

 

  • A person who is incapacitous does not necessarily suffer from unsoundness of mind (see again for instance the anorexia cases). I note that deprivation of liberty is specifically authorised under the 2005 Act in cases of incapacity without reference to unsoundness of mind. It has never so far as I am aware been suggested that the DoLs provisions are in breach of Article 5.

 

 

 

  • “Unsoundness of mind” is not the same as “incapacity”. PB has a diagnosed psychiatric condition which compromises her decision making. If it is not established that she lacks capacity this would be on the narrowest interpretation of MCA 2005 (“because of”) and would not impinge upon her diagnosis or her vulnerability, which results from her psychiatric condition.

 

 

 

  • Ms Street concedes that TB’s influence would be highly relevant under the inherent jurisdiction. PB cannot litigate on her own behalf. The Official Solicitor would be entitled to make an application on her behalf for injunctive relief against TB in her best interests. I would be entitled to make an injunction of my own motion under the inherent jurisdiction preventing him from coming into contact with her, if the Official Solicitor declined to do make an application. If such an order were made she would have nowhere to go. In fact she cannot presently return to his flat in any event because of the landlord’s injunction against her.

 

 

 

  • In my view the inherent jurisdiction does extend to orders for residence at a particular place. If that constitutes a deprivation of liberty then in my view the court could authorise it pursuant to the inherent jurisdiction.

 

 

 

  • Assuming that it would not constitute an unlawful deprivation of liberty in my view I would be entitled to make an order for placement against her will pursuant to the inherent jurisdiction. There are serious risks to PB if she is not properly cared for or if she is not protected against TB. Both Dr Khalifa and Dr Barker recognise that reality.

 

 

 

 

 

3 Comments

Posted in case law, court of protection and tagged , , , , , . Bookmark the permalink.

Misrepresenting the views of an expert

Posted on July 16, 2014 by suesspiciousminds

 

 

 

X County Council v M and Others 2014
http://www.bailii.org/ew/cases/EWHC/Fam/2014/2262.html

This is a High Court case, involving the application by a Local Authority for a Care Order, and more crucially an Interim Care Order sanctioning continued separation of a newborn baby from her mother.

The child had been removed under an Emergency Protection Order, and prior to birth there had been one of those unusual applications under the Inherent Jurisdiction for permission not to tell the mother that this would be the plan at birth. Those applications had been made on 20th May, and the child was born on 1st June and removed under an Emergency Protection Order.

That application arises from the President’s decision, when he was Munby J in Re D (Unborn Baby) [2009] 2 FLR 313. http://www.bailii.org/ew/cases/EWHC/Fam/2009/446.html .

[That’s not a decision that I like – I think there were extremely peculiar circumstances of that case, but I hoped at the time that we would never see its like again, and I don’t enjoy seeing it being made use of. Frankly, I think the family courts would be better to stick to the traditional view of events that until there’s a subject of the application to litigate about, the Court should stay out of it. No child, no Children Act]

Anyway, that is just to provide the background colour that this was a newborn baby, with features so unusual that one of the most unusual applications one can make in family courts was applied for, together with a Reporting Restriction Order. And the proceedings were being done in the High Court.

None of that is straightforward stuff, so it is a bit surprising that the case ended up being allocated to a very junior and inexperienced lawyer at a time when there were no experienced lawyers around to supervise or guide.

[Of course, I have the luxury of working for a decent sized authority, where there are a lot of childcare lawyers – if this is a very small authority one can see that holidays or illness might have taken the available stock of lawyers out of the equation]

Anyway, Keehan J was not happy with the application and evidence as it appeared before him on the first hearing, and asked for it to come back.
4. The local authority’s application for a care order and for an interim care order was allocated to be heard by me on 3 June 2014. I adjourned the hearing to 6 June, in particular for the following three reasons:
i) I was not satisfied with the evidence relied on by the local authority in support of its application.

ii) Further, the local authority had not notified the mother nor the putative father of the applications. Accordingly, neither were present before the court nor represented.

iii) Before I went into court on 3 June my clerk received an email from one of the mother’s treating consultant psychiatrists Dr Z, setting out that his professional opinion and views had been mis-represented by the local authority in the application for a care order and in the social worker’s statement filed in support of the same.

5. I was dismayed by the actions of the local authority’s legal department subsequent to the hearing on 3 June. The parents were not formally notified of the hearing listed on 6 June until the very late evening of 5 June. Further, Dr Z was not notified of the direction that he prepare an addendum report on the current state of M’s mental health until the late afternoon of 4 June. The Official Solicitor was not given notice of the hearing until the late afternoon of 5 June.

6. At the hearing on 6 June the local authority and the children’s guardian were present. The putative father, F, attended in person. The mother was not present nor represented. Ms Clift of the Official Solicitor’s Office however was present in court, because the mother had been assessed as lacking capacity to litigate, although the Official Solicitor had not yet been formally appointed to act as her litigation friend.
He then asked for the Chief Executive to explain what had gone wrong.
In light of the failings identified in paragraph 4 above, I required the Chief Executive of X County Council to prepare a letter explaining these events. She did so. It appears a very junior and inexperienced member of the legal department was entrusted with preparing the case for the hearing on 6 June. She was unsupervised by a more senior colleague because of holiday commitments. I was assured such events would not occur again and that provision would be made for the supervision of junior members of staff when more senior members were away on vacation.
These are not trivial complaints – not serving the parents with the application is a big deal, particularly where the mother lacks capacity. It is unfair to them, and it leads to them not having the opportunity to put their case and to have the time to prepare their case properly.

But far worse than that is the suggestion that the LA in their application and social work evidence had misrepresented what Dr Z had to say about mother’s situation and condition. Of course everyone makes mistakes, and if you are new, it is easy to make a mistake, but these are things that would trouble most people.  It may have been an honest mistake, but it was an important mistake.

I am a little surprised that the Council is not named here, in accordance with the President’s guidance on transparency, but perhaps there are reasons for that relating to the Reporting Restriction Order or risk of jigsaw identification.
That wasn’t the only issue

When the application first came before me on 3 June, I was dismayed that the local authority had not obtained an up to date report from Dr Z. In my view when considering the local authority’s care plan to continue the separation of mother and child, it was vital to have a report from the mother’s treating consultant psychiatrist.

Further I was extremely concerned to learn that following the baby’s removal to foster care on 2 June, there had been no contact between mother and child. The local authority told me it proposed to undertake a risk assessment of whether contact could take place and in what circumstances. It was suggested the local authority would need two weeks to undertake the assessment. I made it plain that such a delay was wholly unacceptable.
It is hard, when looking at these mistakes, when dealing with a mother who was so vulnerable and when the Courts were being asked to make very important and draconian decisions, and feel anything but dismay and a sense that the parents have been badly treated.

I’m not a local authority basher – but this falls far short of what one would want to see, and a Judge would have been entitled to be less measured than this one has been.

9 Comments

Posted in case law and tagged , , , , . Bookmark the permalink.

Jude the Apostle versus Sybil Fawlty

Posted on July 10, 2014 by suesspiciousminds

The Court of Appeal decision in Re T (a child) 2014

http://www.familylawweek.co.uk/site.aspx?i=ed130924

 

 

Jude the Apostle is of course, the patron saint of lost causes, and Sybil Fawlty (wife to Basil) had as her Mastermind Specialist Subject “The bleeding obvious”. This was an utterly hopeless case, that succeeded on appeal.

 

The original decision in Re T was that a child, who was 6 months old at the time (and is now 18 months old), should be subject to a Care Order and Placement Order. The parents, at that time, were two months into prison sentences; as a result of a drunken incident involving wounding and ABH. The mother had been given a five year prison sentence, and the father a two year prison sentence.

 

The Judge, decided that neither parent was in a position to care for the child and that the child could not wait for them to be able to do so.

 

This is what the trial judge had to say about the various options (this being a judgment given in July 2013 – at around the time that the huge volumes of new case law were emerging like lava from the Court of Appeal)

 

“There are no other family members who are ready, willing or able to look after M, and, in the enforced absence of the parents, there is simply no realistic alternative to the local authority’s plan, supported as it is, I should say, by the children’s guardian. I am afraid that the parents’ case is unrealistic and it is uncertain. It inevitably involves delay and M would have to be kept waiting on the possibility that a combination of circumstances might somehow come about whereby at the age of approaching three he could be brought up at home by his parents. I am satisfied that the local authority’s intervention was necessary, was unavoidable, because there simply was no alternative and its plan for M is in the circumstances proportionate. The threshold is manifestly crossed. A care order is the only order that will safeguard and promote M’s well being, and approving of the care plan as one of adoption I dispense with the consent of the mother and the father on the basis that M’s welfare requires me so to do, and that will enable a search to begin for an adoptive placement. So I make orders as asked and those are my reasons for doing so.”

 

 

It obviously isn’t a Re B-S analysis, but for goodness sake, the parents were just beginning prison sentences. What value is there in setting out the manifold benefits of the child being placed with mother when she was going to be locked up for the next 2 ½ years of this child’s life? What’s the point in weighing up whether the child can wait for the sentence to be finished when the Government has decided that cases should be finished in 26 weeks?

 

Well, the Court of Appeal didn’t see it that way.

 

18. The judge dwells upon, rightly, the choppy water that would be encountered by M over the coming months and probably year or so were he to have to wait for his parents to complete their prison sentences and be assessed and be seen to be able to provide full, stable, secure care for him in the community. All of those negatives were rightly in the judge’s mind. He also had the positives of the potential for the parents to care. He also, as Ms Anna Fox, counsel for the guardian before us has indicated, had in mind the “elephant in the room” as she referred to it. That is a reference to the fact that the case was not actually about the potential for the parents to deliver day to day to care to their baby; it was about whether they could by relied upon to live quietly, soberly, safely, boringly, in the community with him and not engage in volatile, unpredictable, highly violent, behaviour in the future and lay themselves open not only to injury but also to the potential of being taken out of the community and once more returned to prison. And the judge was aware of that aspect of the case.

 

19. But nowhere at all in the judgment does the judge look at adoption as an option for the child. Plainly at this age, M would have been said to be readily adoptable, and we are told that after the hearing the local authority were able to identify a match for him and the case was ready to go to an adoption panel meeting to approve that match in January 2014. But the big issue in the case was whether life with the parents was going to be so detrimental, so harmful, that it was necessary to remove him from all of that; remove him from any ongoing relationship with his parents and with his kith and kin. At no stage, it seems to me, does the judge indicate in what he says that he has grappled with that. He does use the phrase that he is satisfied that the local authority’s intervention was “necessary, was unavoidable, … and that there was no alternative”. And he indicates that the plan was “proportionate”. But those are labels and are only going to indicate that the judge actually has grappled with the factual circumstances that underlie them if he has demonstrated, at least shortly in these pre Re B S days, that he has in fact undertaken that exercise.

 

20. I am not satisfied that he has and I am of the view that, because of the words he uses, he failed to undertake the necessary balancing exercise on this occasion. The result therefore is in my view that the appeal has to succeed and that the order should be set aside.

 

 

 

It begins to feel to me that we lawyers are riding a horse where someone else is holding the reins, and that the people holding the reins are steering in two different directions. On the one hand, the Act is telling us that cases should be concluded in 26 weeks and that delay is bad for children, and on the other that a Judge is actually supposed to genuinely contemplate that a 6 month old baby should wait for his parents to come out of a prison sentence that they have only just begun. [This sensation is exacerbated by the Court of Appeal decision on s32(5) adjournments which I’ve read today and which should be made public soon]

 

 

The Court of Appeal do express some concern about the fact that this appeal took A YEAR to resolve. A YEAR. Two thirds of this child’s life have been in limbo.

 

And why is that?   (If you work for a Local Authority, you are about to guess that the Court of Appeal is going to (a) blame the LA and (b) impose some new chore/expense on us, and you are right)

 

22. Before leaving this judgment I wish to say something, albeit briefly, about the appalling delay that has been visited upon this case between the notice of appeal being issued on 14 October 2013 and this hearing coming on before us on 4 June 2014. There are difficulties in the system as a whole in obtaining transcripts of judgments. It is, I suspect, obvious that for any appellant process to be effective, the judges of the Court of Appeal, and indeed if they are circuit judges hearing appeals from lower courts, can only function by having an accurate record of what was said in the judgment of the lower court. It is impossible even, in my view, to evaluate whether permission to appeal should be given without an accurate note, if not a full transcript, of what took place.

 

23. Delay is all too often encountered in cases across the board for the civil division of the Court of Appeal. In a case involving the welfare of children, particularly a baby such as M, who is facing either carrying on on the road towards adoption if the order is upheld or being the subject of a different course of action, any delay, even if it is measured as a matter of weeks or a month, is to be avoided.

 

24. In the current climate, where the entirety of a care case is now, as a matter of statute law, to be undertaken from beginning to end in 26 weeks, an appeal process which lasts 10 months, is plainly entirely contrary to the interests of the child let alone the other parties and the system.

 

25. I have enquired about what occurred or did not occur in the present case, and a problem seems to be that this mother is a litigant in person, and she is not to be criticised for this, was sent a form requiring her to apply for a transcript of the judgment to be provided at public expense. She, for whatever reason, either did not receive the form or did not return to promptly, or did not understand its significance. A chasing letter was sent to her in December 2013 and the transcript was only ordered by the Court of Appeal office on 22 January 2014 (3 months after the appeal was lodged).

 

26. The facts of this case are stark. They are outside the ordinary: the mother, a litigant in person, was serving a 5 year prison sentence. It is to my eyes obvious that she would require public funding to pay for the provision of a transcript. In any event, in the ordinary course of a case where a litigant in person is at liberty, the need to process that request has to be given the upmost priority. Where a local authority, as here is the case, have a pressing interest in the appeal process being resolved one way or the other promptly, there is an argument for the local authority being asked to consider paying for the transcript of the judgment. In this case, months and months went by before the court eventually received a transcript which runs to three pages. The local authority would have known that it was a very short judgment and the whole delay in this particular case might have been avoided by an early pragmatic step such as the one I have described. Thereafter, following the request for the transcript in January 2014, the transcript was not received until 1 April 2014 (a further delay therefore of 10 weeks). It seems that delay on the account I have been given, without having had any recourse to an account from the local county court, occurred because of difficulties in communicating with the local county court and obtaining their cooperation in obtaining the transcript. It is a sorry story but, more than that, it is totally unacceptable, and I am going to invite those responsible for the system here and, at local level, the designated family judges to do all that they can to ensure that transcripts of judgments in cases such as these are obtained with the utmost speed so that a view can be taken promptly on the merits of any potential appeal.

 

27. But with those remarks, as it were, on the side, in my view, the outcome of this appeal is that the appeal must be allowed and the placement order should be set aside. Nobody seeks to appeal the final care order in this case. The matter will have to be remitted to a circuit judge at Liverpool County Court other than HHJ Dodds. For my part, I would invite the parties, if my Lords agree that this is the outcome of the case, to spend some short time now at court this morning drawing up a tight timetable for the steps that now need to be taken before the case can come for a case management hearing before the new judge at the earliest opportunity, either in next week or very early in the following week.

 

 

 

You will remember that the Court of Appeal have already decided that Local Authorities have to prepare a bundle in appeal cases that they did not bring, to save litigants in person doing it, and now it is their job to obtain and pay for a transcript as well.

 

13 Comments

Posted in adoption, case law. Bookmark the permalink.

Judicial bias

Posted on July 8, 2014 by suesspiciousminds

The Appeal in Q (Children) 2014

 

Grumblings that the Judge was biased are fairly commonplace, complaints that the Judge was biased get made from time to time – appeals on the point are pretty rare and successful appeals rarer still.  Q is one of the latter, and as such a rare breed is worthy of some consideration.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/918.html

 

 

  • The case concerns two boys, W, born 12th January 2003 and therefore now aged 11 years, and R, born 9th August 2012 and therefore now aged 21 months. Proceedings with respect to the children commenced nearly two years ago and comprised, for the first three months, a private law dispute between the two parents. However, the local authority then issued care proceedings and it was in those proceedings that HHJ Tyzack undertook an extended fact finding process involving some 13 days of evidence between July and November 2013 and culminating in an extensive judgment given on 28th January 2014.

 

 

 

  • The case has a number of complicating features. As a result of circumstances during the course of her own birth, the mother has a significant learning disability; her IQ is measured at the level of 61 and she is said to function at a mental age of approximately 12 years. In addition the mother also unfortunately suffers from ordinary epilepsy, which is controlled by medication and, separately, from non-epileptic seizures which apparently have a psychological origin for which no medication is provided.

 

 

 

  • The father originates from Bangladesh and is a practising Muslim. The mother is English and is a practising Jehovah’s Witness.

 

 

 

  • The eldest boy, W, has special needs and is apparently described as being the most complex child in his school amongst those who are registered with special educational needs. Although of ordinary intelligence, he is considered to have a condition which is either somewhere within the autistic spectrum or an attachment disorder or a combination of both.

 

 

 

  • The couple had generated a level of concern in a number of local authority areas with respect to their care of W and as a result of the fact that they had moved some 10 times in the 10 years between the date of their marriage in 2002 and the date of their separation in 2012.

 

 

 

  • Private law proceedings between the parties commenced in September 2012 when the mother issued an application for residence orders and a non-molestation order. Within those proceedings she alleged domestic violence against the father and alleged that he had raped her. In October 2012 the mother undertook a four or five hour Achieving Best Evidence interview with the local police in which she raised a range of allegations, including assault and rape, against the father. The father was arrested and granted bail on condition that he had no contact with the mother. However on 13th November 2012 both parents presented themselves together at the local police station indicating that they wished to reconcile. As a result of this turn of events the local authority sought and obtained the agreement of the maternal grandmother for her to care for the children and not to allow the mother to take the children out without supervision. These care proceedings were then issued on 3rd December 2012.

 

 

 

  • Initially it was considered that the mother lacked sufficient mental capacity to act as a litigant in the proceedings and she was therefore represented by the Official Solicitor. However on 7th June 2013 HHJ Tyzack found that the mother did have capacity and was competent to give evidence.

 

 

 

  • The fact finding evaluation conducted by the judge involved consideration of a range of allegations made by the mother against the father relating to dominant behaviour, physical assault and sexual assault on her. In addition two specific allegations of potential assault on W were raised together with more general assertions as to the volatile nature of the parent’s relationship and their inability to work co-operatively with the social services. The schedule of allegations, together with responses by the parents, runs to 30 pages. In addition the judge was required to consider allegations which the father made against the maternal grandmother. During the course of the hearing the judge heard evidence from all of the key players, including the mother. In view of the intellectual vulnerability of the mother a screen was used to prevent the mother having sight of the father whilst giving evidence and the topics for cross examination were disclosed to her in advance.

 

 

 

  • The judgment of 28th January 2014 effectively dismissed each of the allegations made by the mother, whose evidence the judge found to be totally unreliable. He was also highly critical of the maternal grandmother whom he described as “a devious and manipulative woman”. He concluded that both the mother and the maternal grandmother had told “wicked lies” to the court. In contrast the judge formed a favourable view of the father both as an individual and as a credible witness.

 

 

 

  • In order for the court to have jurisdiction to consider making a care order or a supervision order with respect to these children, it was necessary for the local authority to satisfy the “threshold criteria” in Children Act l989, s 31 to the effect that the children were suffering, or were likely to suffer, significant harm as at the date that protective measures were first put in place. That date was identified as 13th November 2012, being the date on which the local authority first insisted that the maternal grandmother should take over control of the children’s care.

 

 

 

  • In the light of his findings, which were to reject the mother’s factual allegations which had hitherto been relied upon by the local authority to establish the threshold, the judge went on, at the conclusion of his judgment, to hold that the threshold criteria were satisfied on the basis that

 

 

“both children would be likely to suffer significant harm if living with the mother and [maternal grandmother] because of it being likely that they would become caught up in the emotionally destructive atmosphere of [maternal grandmother’s] home in which false allegations have been made by the mother against the father and which have been completely and immediately accepted, uncritically and unquestioningly by [maternal grandmother] and reported as fact to the police.”

The judge found that this was a potentially toxic atmosphere for these children to live in and that those circumstances therefore met the threshold criteria.

 

 

None of that (with the exception perhaps of the Judge’s decision that the mother was a competent witness) is that extraordinary, so it must turn on the conduct of the case. With that in mind, this next bit is illuminating

A further striking feature of this case is that each party, with the exception of the children’s guardian, has issued a Notice of Appeal complaining about one aspect or another of the judge’s handling of the fact finding exercise. A total of no less than 7 Notices of Appeal have been issued. Having considered the matter on paper, I adjourned the determination of the permission to appeal applications to a one day hearing before the full court with the appeal to follow if any of those applications were granted. Finally, although not a direct applicant for permission to appeal, the children’s guardian’s skeleton argument supports a number of the points that were raised as criticisms of the judge’s handling of the case.

 

It is really not unusual in cases involving children for one party to leave the court aggrieved. When all of them do, something has gone badly wrong. Seven separate notices of appeal on one case is new to me. The Court of Appeal did not deal with all seven aspects, because one issue cut across all of it

 

 

  • One of the central matters raised by the mother is a complaint that at an early case management hearing [‘CMH’] on 20th March 2013 HHJ Tyzack displayed apparent judicial bias by making a number of clear indications that he had formed a concluded view as to the validity of the mother’s allegations and her credibility and the judge had done so during a process which was itself conducted in an unfair manner. The mothers’ case is that this premature adverse conclusion infected the judge’s whole approach to these proceedings thereafter and came to be replicated and crystallised in his final judgment.

 

 

 

  • Having identified the mother’s claim of apparent judicial bias as being a separate and discrete criticism which, if established, would cut across the entirety of the process before the judge, we proceeded, with the parties’ agreement, to hear submissions on that aspect alone. At the conclusion of those submissions we were satisfied that the mother’s criticisms were, unfortunately, well founded and that as a result the appeal must be allowed and the entire proceedings re-heard by a different judge.

 

 

It is, as I said at the outset, rare for an appeal to be upheld on the basis of judicial bias, so let’s explore that further. First, what was happening at this hearing on 20th March 2013 – well, it related to some fresh allegations against father made by mother, and the CPS decision not to prosecute   (there’s some read-between-the-lines on what the CPS say)

 

 

  • Shortly before the CMH hearing the local authority had prepared a special guardianship report in relation to the grandmother. That report was distributed to the parties at the hearing on 20th March. The report contained reference to fresh allegations that had been made by the mother to the police. Understandably Mr Hickmet, counsel for the father, sought clarification and the judge requested the police officer in the case, Detective Constable C, to attend, which he did. The transcript of the day’s hearing shows that the officer gave evidence and also produced his copy of the relevant file that had been submitted to the Crown Prosecution Service. The file was handed to the judge, who read it, but no copies were distributed or shown to any of the advocates at that hearing. The judge did, however, read out the relevant notes recording a meeting undertaken on 11th February 2013 between a different police officer, the mother and maternal grandmother. The note commences as follows: “I met with [mother] with her mother. [Mother] stated, but prompted by mother that…”. The record then goes on to chronicle the serious allegations that the mother made on that occasion. For the first time she alleged that W was a victim of sexual assault. She described both W and herself being sexually assaulted, not only by the father, but also by other unnamed men who would be invited into the house for that purpose.

 

 

 

  • The note of the mother’s list of allegations made to the police on 11th February 2013 concludes with these words: ‘She did not say offences had been committed, though, only that she was worried they had.’

 

 

 

  • The hearing continued and counsel on behalf of the mother cross-examined the officer. It should, however, be recalled that, as a result of her incapacity, the mother acted in the proceedings at the time through the Official Solicitor. Counsel confirms that before being afforded the opportunity to cross-examine, she had not asked for, nor been given, an opportunity to take any instructions from the mother on this important new information. The cross-examination was not lengthy.

 

 

 

  • In addition to this fresh material the judge was given additional information about another matter. Soon after making her original allegations, which had supported the bailing of the father, the father and mother attended the local police station together and the mother sought to withdraw the allegations that she had made. Her account, later, however was that she had been forced by him to do this as a result of being kidnapped, placed in a van and driven to the police station. In contrast, the police file showed that CCTV recording of the foyer of the police station depicted the mother and father kissing and cuddling immediately prior to her making her request to withdraw her allegations.

 

 

 

  • Cross examination of the police officer by Mr Hickmet, on behalf of the father, included the following question and answer after the officer had stated that the CPS had concluded that there was not enough evidence to charge the father:

 

 

‘Q: Can you assist the judge as to why the CPS came to that view?

A: They were unhappy with the ABE interview which covered the main original offences. They were also unhappy with [mother], due to her behaviour when [father] was arrested for the second time for the breach of bail condition.’

 

  • During exchanges with counsel following the conclusion of the police officer’s oral evidence the judge is recorded as making the following observations:

 

 

‘What the notes … reveal … is that first of all the grandmother prompts the mother to make allegations, that then they are not really allegations at all, but just thoughts in the mother’s head.’

 

  • In relation to the content of the police note of the mother’s ‘allegations’ made in February 2013, the judge questioned, rhetorically, why not a word had been said by the mother in relation to these more serious allegations in her initial ABE interview and, secondly, he questioned whether it was safe for the children now to be in the same house as the mother. The judge asked ‘How is it credible? How is any of that credible?’ and stated that he found it ‘simply incredible’ that these allegations were not raised during the lengthy ABE interview [Appeal bundle page M580]

 

 

 

And there then follows this exchange

 

 

  • Later the judge, without having heard submissions on the point, went to the local authority document which set out a draft of grounds on which the s 31 threshold criteria might be established and observed:

 

 

‘Let us have a look at the threshold together. … Then paragraph 4, the harm, they say, is emotional harm in relation to both children, and actual physical in relation to W and risk of physical in relation to R. Well now that must go. Any suggestion of actual physical harm or risk of physical harm, in the light of what the police are now saying, that is knocked out, surely, is it not? Does everyone agree with that?’

The judge then further queries the basis upon which the local authority could establish the allegations emanating from the mother which underpin the proposed threshold criteria:

‘Well I think that, for myself, how it can be proved, in relation to a lady who within minutes of getting to a police station withdraws her allegation that she has been kidnapped there by the father, and is observed on the DVD at the police station kissing and cuddling him. That is what I am told by a police officer on oath this afternoon. How then can the local authority bring a lady like this into the witness box and say to a court, “We want you to believe this lady on a balance of probabilities?” At the moment, as I see it, I do not see how it can happen.’

 

  • Counsel for the local authority, Miss Ireland, objected to the manner in which the analysis of the case was being conducted by the judge. She said:

 

 

‘At the moment, the evidence is incomplete. I entirely understand the court’s desire to actively case manage this case, which is clearly a difficult case to manage. However the evidence is incomplete. All of the parties agree that one of the most important aspects which is required is the psychiatric evidence of Mother, and whilst I can understand that the court is concerned at the current state of the case, I would respectfully submit that understanding of the case will improve significantly after that report has been prepared.’

 

  • The judge gave a short judgment at the conclusion of the hearing on 20th March. In it he noted the various matters that had been raised and he recorded the fact that, after a full investigation, the police had decided not to take any action against the father in respect of any of the matters that had been raised.

 

 

 

  • In relation to the allegation that she had been forced to retract her complaints the judge says this:

 

 

“Indeed, the breach of bail allegation, of course, was not pursued either, in the light of the fact that the mother retracted that fact that she had been abducted by the father in his van and brought to the police station; that turned out to be a pack of lies, it would seem.”

 

  • In relation to the most recent allegations, in which the mother alleged very serious sexual assault upon her and upon W by the father and other unnamed men, the judge described the situation around those allegations as “very shocking indeed”. He notes that it is said that the mother was “prompted” by her own mother and he notes that, after the list of very serious allegations was complete, “it was simply said that the mother is not saying that these things happened, she is not saying these were offences, but rather that she thought they might have happened”. The judge expressed strong concern at the manner in which serious allegations of sexual abuse of children simply seemed to “be flung around” in the case. After recording that consideration had to be given to the fact that the mother was a very vulnerable person, and represented by the Official Solicitor, and was recorded as having a mental age of twelve, the judge went on to say:

 

 

“…even a twelve year old person would know what is happening if a child is being sexually abused or not. And even a twelve year old would be able to say in an interview if it had happened, how it had happened and when it had happened. The mother had an ample opportunity in the hours of her ABE interview to make clear, if indeed it had been the case, that W had been sexually abused, and it is that that the police were concerned about in the notes, as everybody will be able to read for themselves in due course.”

 

  • Later in the judgment, at paragraph 11 the judge says this:

 

 

“Another thing I want to say in my judgment is that I am very concerned indeed to have heard from the police officer about the fact that the mother has made allegations then retracted them, has made allegations of a serious kind about sexual abuse, and then it transpired that they were not really allegations at all. What I am concerned about is that this child is living, or the children are living, it is not really apply to R quite so much, but these children are living in a home in which such allegations are being made and I was particularly concerned to read that it was the grandmother who prompted the mother to make the allegations in relation to the sexual abuse matters. Now, that leads me to be concerned that the mother, who is said to have a mental age of twelve, is living with this boy of ten in which she believes in her mind that serious things have happened. I am therefore directing that the mother must not be alone with either of these children without there being supervision.”

 

  • The judge then went on to look forward to the forensic consequences of the information to which he had been exposed during the hearing. The local authority case was that the threshold criteria were established on the basis of the allegations made by the mother. In the light of what he had heard, the judge was concerned as to the ability of the authority to establish the threshold in this case. At paragraph 12 he said:

 

 

“…what I need the local authority to tell me at [the next] hearing is what they are pursuing by way of threshold criteria at the moment, because reading the police documents that I read today, it seems to me that the local authority could be, I am using that word advisedly, could be in some difficulty in getting over the threshold in this case. It seems to me unjustified and disproportionate at the moment for there to be 5 days of court time made available in July….because, as I say, at the moment, on the basis of what I have read in those police papers, I very much doubt, and I put it no higher than this, but I very much doubt that threshold would be made out. I can put it no higher than that at the moment, because obviously I need to give the parties an opportunity to investigate that, and the local authority, perhaps to file further threshold documents.”

 

  • The judge repeated his requirement that the mother should not be alone with the children and he stated:

 

 

“I have to say that for two pins I very nearly removed these children today from the grandmother’s care, and even if they could not have gone to the father would have invited the local authority to have placed them in foster care. I came very close to that indeed today, and I want everyone to know that, because I am sufficiently concerned about the placement of these children as to what influence they may be receiving from the grandmother and the mother, and these children need to be protected from that.”

 

  • During the course of further discussion with counsel after the conclusion of the judgment the judge made the following observation:

 

 

“…it seems to me that the father can legitimately say in this case that he has had to be on the receiving end of serious allegations when they are not now being pursued, and also in circumstances where he can say that it would appear that for some reason or another he has been manipulated.”

 

Whilst this is all expressed in fairly robust language, looking just at this, I can see that establishing threshold based on mother’s allegations about father is not in the slightest bit straightforward and I can quite see that a Judge would want the Local Authority’s team to go away and have a long hard think about whether they were relying on (and hoping to prove) mother’s allegations in the light of the forensic problems that posed. Judges are being caught between a rock and a hard place here – on the one hand, they are being told to robustly case manage, cut down irrelevant issues and narrow the issues (which they can only really do by sharing what is on their mind) and on the other, when they do, the Appeal Court shakes its head disapprovingly at them.   I’m not saying that I think that this Judge is beyond reproach on these exchanges, but I would draw the distinction between  a Judge who is off on some wild frolic and a Judge who is trying to avoid huge public expense and litigation over allegations which appear hopelessly short of the requisite standard of cogency but doesn’t choose their method of expressing that in an ideal way.

 

The appeal was put on this basis

 

 

  • On behalf of the mother Miss Janet Bazley QC, who did not appear below, leading Miss Bridget McVay, who did, submits that the various observations made by HHJ Tyzack on 20th March 2013 demonstrated that he had formed a view that the mother was a liar who, with the encouragement of her mother, fabricated and repeated allegations. Alternatively, that she was a fantasist who, with the encouragement of her mother, repeated imagined allegations to the police. These conclusions were expressed by the judge without having heard any account of her side of the matter either from or on behalf of the mother and, similarly, without affording the grandmother any opportunity to explain her position to the court. It is submitted that the judge was in error in permitting evidence to be given of the reasons that the officer understood that the CPS had decided not to charge the father.

 

 

 

  • On behalf of the father, Miss Tina Cook QC, leading Mr Hickmet, submitted that the process undertaken by the judge, which involved immediate investigation of the source of fresh allegations that had been described, for the first time in the family proceedings, within a report circulated at the court hearing, was a perfectly proper one. No party sought time to take instructions during the hearing, and no party raised the issue of apparent judicial bias on that day. The issue was raised for the first time at a hearing in May 2013 before Baker J, who advised that any question of recusal should be raised first with the trial judge, HHJ Tyzack, himself. Thereafter the matter was not raised until the middle of the final hearing in late 2013.

 

 

 

  • Both in their written submissions and orally, Mr Christopher Sharp QC, leading Ms Penny Ireland, for the local authority made a range of measured and helpful submissions, the first of which was that, looked at generally, ‘this is a case that has lost its way’. Mr Sharp told this court that the local authority were very concerned about the manner in which the case was proceeding and the way in which they perceived that the judge was not listening to any part of the case other than matters that he himself had generated.

 

 

 

  • In relation to the hearing on 20th March, Mr Sharp drew attention to the following passage [appeal bundle page M543]:

 

 

HHJ: Let me try this issue now. Call the mother.
F’s counsel: Well I think, my Lord, that is a problem.
LA counsel: Well the problem with calling the mother is that there is an outstanding issue as to whether or not she is competent to give evidence.
M’s counsel: Yes.
HHJ: Yes, but this man cannot just go on facing allegation after allegation. Where are we on this case?

 

 

  • The local authority, having heard the submissions in the appeal made on behalf of the mother, altered its position to one where it was conceded that the judge’s conduct at the 20th March hearing was sufficient to disqualify him from fairly and accurately assessing the evidence of the mother and maternal grandmother.

 

 

 

  • Ms Kathryn Skellorn QC, on behalf of the children, again after hearing the submissions made on behalf of the mother, accepted that a valid ground of appeal had been established with respect to the judge’s conduct of the hearing on the 20th March.

 

[Without deviating from what I said in the earlier paragraph, that exchange there does seem to me to determine the appeal, and the Court of Appeal thought the same. That is an exchange that goes too far]

 

Miss Tina Cook QC, representing the father (who was obviously happy that the Judge had thrown out all of mother’s allegations and taken a dim view of them) had a crack at salvaging this

 

 

  • Miss Cook invited the court to consider how the proceedings would have appeared to an impartial observer had there been one, as a fly on the wall, in the courtroom on 20th March. There was no need to imagine what such an observer would conclude in this case, it was submitted, because both the local authority and the children’s guardian were in just that position. Miss Cook asserted that neither of those parties made any complaint at the time, and, indeed, did not support the mother’s appeal on this point until some time during the oral submissions in this court. On that basis, Miss Cook submitted that it is plain that an impartial observer would not have concluded that there was a real possibility that the judge was biased. The judge was doing no more than, quite sensibly, expressing a preliminary view.

 

 

 

  • Miss Cook’s secondary position was that, even if there had been some falling short in the judge’s approach, this was corrected by and during the extensive process of hearings thereafter.

 

 

The legal test in relation to judicial bias

 

 

  • The test to be applied is on the issue of apparent judicial bias is now well settled and was not controversial as between the parties in this appeal. It is set out in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357. The House of Lords approved the test to be applied in such cases in the following terms [at paragraphs 102 and 103]:

 

 

‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased.’

[Which is why Miss Cook framed her submissions in that way]

  • One of the purposes of such hearings is for the court to focus upon the real issues in the case and the evidence required to resolve those issues. The entry relating to the CMH in Family Procedure Rules 2010, PD12A lists the matters to be considered including:

 

  • identifying the key issues
  • identifying the evidence necessary to enable the court to resolve the key issues
  • deciding whether there is a real issue about threshold to be resolved.
  • More generally, a judge hearing a family case has a duty to further the overriding objective of dealing with cases justly (having regard to any welfare issues) by actively managing the case [FPR 2010, rr 1.1(1) and 1.4(1)]. Active case management involves a range of matters set out at FPR 2010, r 1.4(2) which include identifying the issues at an early stage [r 1.4(2)(b)(i)] and deciding promptly which issues need full investigation and hearing and which do not [r 1.4(2)(c)(i)].

 

  • Family judges are encouraged to take control of the management of cases rather than letting the parties litigate the issues of their choosing. In undertaking such a role, a judge must necessarily form, at least a preliminary, view of the strength and/or merits of particular aspects of the case. The process may well lead to parties reviewing their position in the light of questioning from the judge and, by agreement, issues being removed from the list of matters that may fall to be determined.

 

  • Despite having to adopt a ‘pro-active’ role in this manner, judges must, however, remain very conscious of the primary judicial role which is to determine, by a fair process, those issues which remain live and relevant issues in the proceedings. The FPR 2010 makes provision for an ‘Issues Resolution Hearing’ [‘IRH’] at a later stage of care proceedings. As the IRH label implies, it is intended that some, if not all, of the issues will be resolved at the IRH stage. The rules are however plain [FPR 2010, PD12A] that the ‘court resolves or narrows issues by hearing evidence’ and ‘identifies the evidence to be heard on the issues which remain to be resolved at the final hearing’.

 

  • The task of the family judge in these cases is not an easy one. On the one hand he or she is required to be interventionist in managing the proceedings and in identifying the key issues and relevant evidence, but on the other hand the judge must hold back from making an adjudication at a preliminary stage and should only go on to determine issues in the proceedings after having conducted a fair judicial process.

 

  • There is, therefore, a real and important difference between the judge at a preliminary hearing inviting a party to consider their position on a particular point, which is permissible and to be encouraged, and the judge summarily deciding the point then and there without a fair and balanced hearing, which is not permissible.

 

  • As the words used in some parts of the formal judgment given on 20th March make plain, HHJ Tyzack, as an extremely experienced family judge, was aware of the need to express himself with care for the reasons that I have described. Two examples come from paragraph 12 of the judgment:

 

‘… it seems to me that the local authority could be, I am using that word advisedly, could be in some difficulty in getting over the threshold in this case.’

‘… at the moment, on the basis of what I have read in those police papers, I very much doubt, and I put it no higher that this, but I very much doubt that threshold would be made out. I can put it no higher than that at the moment, because obviously I need to give the parties an opportunity to investigate that, and the local authority, perhaps, to file further threshold documents’.

  • Such expressions of judicial opinion, given the need for the judge to manage the case and be directive, are commonplace and would not be supportive of an appeal to this court based upon apparent judicial bias. The question in the present appeal is whether the other observations made by the judge, and the stage in the overall court process that those observations were made, establishes circumstances that would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased in the sense that he had formed a concluded view on the mother’s allegations and her overall veracity.

 

  • As will be plain from our decision to allow the appeal, I am clear that a fair-minded and informed observer would indeed have concluded that there was a real possibility that the judge had formed such a concluded view at the hearing on 20th March. I am also concerned that the process adopted by the judge during the hearing prevented there being a fair and balanced process before the judge came to his apparent conclusion

{This, in essence, is our newfound friend – a phrase that keeps coming up, and will continue to do so – “Robust case management has its place, but it also has its limits}

  • Having already rehearsed the detailed circumstances, it is possible to set out the matters upon which I have based my conclusion in short terms. I deal first with the procedural matters which are of concern:

 

a) The judge based his analysis upon a police file which only he had read and which was not copied or otherwise disclosed to the parties until after the hearing;

b) Although the judge did read out the note in full of the 11th February 2013 meeting between the mother, grandmother and a police officer, the note was no more than a note. It had not been compiled by the officer who gave oral evidence to the judge. The phrase ‘[Mother] stated, but prompted by [her] mother that …’ is capable of describing a wide range of intervention by the grandmother from mild and neutral encouragement (such as ‘just tell the officer what you want to say’) to overt direction of the mother (for example ‘tell the officer about the time that you were tied up and the men came to assault you and W’). Without the author of the note to explain the word ‘prompted’ and without affording to the mother and the grandmother the opportunity to submit evidence on the point, it was neither appropriate nor possible for the judge to place any reliance on that word, and certainly not to rely upon it to the degree that he went on to do;

c) In like manner, the closing phrase in the note (‘she did not say offences had been committed, though, only that she was worried they had’) may have required some explanation from the author, but the need for a fair process certainly required the mother being afforded an opportunity to give her account of what, if anything, she said and what she had meant;

d) The judge proceeded with the hearing without giving those acting for the mother any opportunity to take her instructions on this new material and either to submit her account to an adjourned hearing or, at the very least, to make submissions to the judge at that hearing. The need to allow the mother to meet the point applies to any party in this situation. The fact that the mother lacked litigation capacity at that time, was a vulnerable witness and was represented by the Official Solicitor only goes to add to the weight of this factor in this case.

  • Turning to the occasions on which the judge conducted himself in a manner that would have caused a fair-minded and informed observer to conclude that there was a real possibility that he had formed a concluded adverse view as to the mother’s allegations and her veracity, I would highlight the following:

 

a) ‘what the notes … reveal … is that first of all the grandmother prompts the mother to make allegations, that then they are not really allegations at all, but just thoughts in the mother’s head.’;

b) ‘How is it credible? How is any of that credible?’ ‘[I find it] simply incredible’ [that the mother had not raised the more serious matters during her ABE interview];

c) Regarding the threshold criteria schedule with respect to physical harm to W – ‘Well now that must go. Any suggestion of actual physical harm or risk of physical harm, in the light of what the police are now saying, that is knocked out, surely, is it not? Does everyone agree with that?’;

d) Again regarding proof of the threshold: ‘How then can the local authority bring a lady like this into the witness box and say to a court, “we want you to believe this lady on a balance of probabilities?” At the moment, as I see it, I do not see how it can happen.’

e) Although it was the case that the mother had indeed retracted her allegation of being abducted and forcibly taken to the police station, the judge’s description of her account as ‘a pack of lies’ at a stage before the mother had been given any opportunity to explain her actions and when the court knew that a psychiatric assessment of the mother was awaited, was in unnecessarily striking terms and surely would, in the context of the legal test, have struck a fair-minded observer as indicating that the judge had formed a strong and clearly adverse view of her on this issue.

  • I am keenly aware of the need to avoid criticising a judge who is doing no more than deploying robust active case management. There is, as I have described, a line, and it may be a thin line in some cases, between case management, on the one hand, and premature adjudication on the other. The role of a family judge in this respect is not at all easy and I would afford the benefit of the doubt to a judge even if the circumstances were very close to or even on the metaphorical line. Here, I am afraid, the words of the judge to which I have made reference, both separately and when taken together, take this case well over the line and indicate at least the real possibility that the judge had formed a concluded view that was adverse to the mother’s allegations and her veracity.

 

  • I take Miss Cook’s point that it may be informative, in the context of the fair-minded and informed observer, to look to the reactions on the day in the court room of those representing the local authority and the children. In this regard, however, it is of note that Miss Ireland, as counsel for the local authority, did indeed object to the approach that was being taken at a time when the evidence in the case was incomplete (see paragraph 26 above). In so far as it goes, Miss Ireland’s intervention would seem to confirm, rather than to question, the conclusion at which I have arrived.

Conclusion

 

  • For the reasons that I have given, I am clear that the process conducted at the CMH on 20th March was seriously flawed if, as it was, it was used by the judge to reach any conclusion as to the state of the mother’s allegations. It was not a fair process and it was not an evidentially sound process. The judge is not to be criticised for attempting to use the hearing to clarify the material that lay behind the reference in the special guardianship report to fresh allegations which apparently took most of the parties by surprise at the hearing. Getting the officer to court and hearing basic factual evidence allowed the family court to receive disclosure of the relevant police material in a very prompt fashion. Thereafter, the judge should have left it up to the parties to take the disclosed material on board, take/give instructions and, if necessary, file further evidence setting out their account of these matters. Thereafter the judge might well have invited the local authority to explain how it proposed to approach the mother’s evidence in the light of disclosed material. He may well have invited them, at that stage, to consider how the threshold might be proved.

 

 

 

  • The judge did not, however, take the course that I have just described. Instead he strayed beyond the case management role by engaging in an analysis, which by definition could only have been one-sided, of the veracity of the evidence and of the mother’s general credibility. The situation was compounded by the judge giving voice to the result of his analysis in unambiguous and conclusive terms in a manner that can only have established in the mind of a fair-minded and informed observer that there was a real possibility that the judge had formed a concluded and adverse view of the mother and her allegations at a preliminary stage in the trial process.

 

 

 

  • In the circumstances my conclusion was that the appeal must be allowed on this point with the inevitable result that there will now have to be a retrial in front of a different judge.

 

 

 

2 Comments

Posted in case law and tagged , , , , . Bookmark the permalink.

Barbecue tongs and police being given power to force entry to a home

Posted on July 8, 2014 by suesspiciousminds

 

Another C-section Court of Protection case. You may have seen the Daily Telegraph piece already

http://www.telegraph.co.uk/news/uknews/law-and-order/10952683/Judge-allows-police-to-break-down-womans-door-for-enforced-caesarean.html

 

The Telegraph’s reporting is very faithful to the judgment here, and it is more of a factual report than a comment piece.  The judgment itself is the Mental Health Trust and DD 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/11.html

 

This is the sixth pregnancy that DD has had. She has mild to borderline learning disability (Full scale IQ of between 67 and 75 – if you read cognitive assessments often, that’s in the bottom 1% of the general population, but in the area where USUALLY , and I stress USUALLY the person has the capacity to make decisions for themselves and conduct litigation), but this was compounded by her autistic spectrum disorder, and it was the combination of the two difficulties that led the Court to conclude that she lacked capacity for the purposes of the Mental Health Act.

 

None of the previous five children live with DD or her partner, BC  – her partner is said to have significant learning difficulties and a lower IQ than DD. The obvious compelling fact from the five previous children is this, in relation to child 3

 

In June 2010, on a home visit, DD was found cradling a baby born in her home; the baby was believed to be 5-10 days old. Child 3 (male) was at that point seriously dehydrated and undernourished (it appears that the parents had sought to feed him with cup-a-soup), with lesions on his head believed to be caused by Bar-B-Q tongs which (from information provided by DD and BC at the time) BC had used to assist in the delivery (DD denies this)

 

Added to that is that during the pregnancy of the fourth child, mother suffered an embolism, leading to increased health risks in pregnancy and labour for future children

 

  • On a routine visit to DD’s and BC’s home in July 2011, DD was observed to be very unwell; she was fitting, and unconscious. It later transpired that she had suffered an intracerebral embolism causing fitting (status epilepticus), probably brought about by the pregnancy. BC was unable to say for how long DD had been in this dire state. DD was admitted to hospital as an emergency; her fitting could not be controlled, and she was therefore given general anaesthetic and ventilated on the intensive care unit. Monitoring of the unborn baby revealed evidence of foetal bradycardia (slowing of the heart and consequent distress). In order to treat the patient (DD) and relieve the foetal distress, an emergency caesarean section was therefore performed. DD suffered significant post-partum haemorrhage, and required a 2 unit blood transfusion. Child 4 (female) was born very prematurely at 29 weeks.

 

 

 

  • Following the birth, neither parent sought to see Child 4, nor did they engage with child care proceedings. Child 4 was made the subject of a care and placement order and placed for adoption.

 

 

 

  • Significantly, DD resisted prophylactic injections to prevent further blood clots. The occurrence of the embolism means that any future pregnancy carries an increased risk of stroke and of haemorrhaging

 

 

And then child 5

 

 

  • Child 5: Later in 2012, DD became pregnant again. The pregnancy was once again concealed from the professional agencies (including social workers from the adult and child services) which were endeavouring to work with the parents. The parents withdrew from engagement with professionals, and on occasions refused entry to their home. In mid-July, an unannounced visit by child care social workers was made to the home; BC declined their request to enter. Following protracted negotiations (involving discussion of police attendance to obtain access to DD), BC relented. On entering the property, DD was seen attempting to breast feed a baby (Child 5: female), swaddled in a dirty pillow case soiled with blood. The home was dirty; there was no sign of baby clothes, blankets, bottles, nappies or anything suggesting preparation for a child. DD was evasive when asked where the afterbirth was; there was concern that it may not have been delivered. DD looked unwell. BC handed Child 5 to the social workers, and gave permission to have her examined in hospital.

 

One can understand why any professional involved with DD would be concerned about her pregnancy and anxious to ensure that the baby is not born at home without medical supervision. It appears that DD and BC withdrew from medical and other services during this pregnancy

 

 

  • Between late February and early April, twenty-five social work visits were made to DD and BC’s home. Even allowing for the fact that on occasion DD will undoubtedly have been out, the social workers were not able to obtain access on even a single occasion. Occasionally, DD and BC have been sighted at the windows within the property, but have not responded to knocking at their front door. On one occasion, BC responded to the knocking by telling the visitors (through the locked door) that DD was “not pregnant“; DD was heard shouting in the background.

 

 

 

  • Given the level of concern, and belief in the advancing pregnancy, the Adult social services sought and obtained a warrant under section 135 Mental Health Act 1983 which authorised them to enter, with police presence and if need be by force, DD’s home, and, if thought appropriate, to remove her to a place of safety with a view to making an application in respect of her under Part II of the Mental Health Act 1983. Mr. D told me that there was reasonable cause to suspect that DD (a person believed to be suffering from mental disorder) was being kept otherwise than under proper control.

 

 

 

  • On 8 April 2014, the warrant was executed. On entering the flat that evening (17:00hs), there was an overwhelming smell of cats’ urine; the home was dirty and dingy. DD and BC were initially distressed, but (according to Mr. D and Mrs. C, who were both present) the situation was soon calmed, and DD was conveyed to a mental health unit for full mental and physical assessment. DD co-operated with a physical examination, an ultrasound scan, and blood sampling.

 

 

 

  • Following this assessment, fifteen further attempts were made to see DD at home. On none of those visits did DD or BC answer the door. DD did not attend pre-booked ante-natal appointments on 23 April, or on 21 May 2014; transport had been offered and provided. The letter reminding her of the ante-natal appointment was returned with a message on the envelope ‘return to sender, moved away‘.

 

 

 

  • To add context to this level of ante-natal intervention, NICE (National Institute for Health and Care Excellence) Guidelines recommend nine appointments for a high-risk pregnancy (which this is – see §97(vii) below); by this time, DD had had one appointment, and only (as is apparent from the history above) when she had been removed from her home following court order.

 

 

 

The Trust (ie the hospital and doctors at the hospital) made an application to the Court of Protection for a number of declarations about DD

 

i) DD lacks capacity to litigate in respect of the issues below;

ii) DD lacks capacity to make decisions in respect of whether to undergo a caesarean section and to make decisions generally about her care and treatment in connection with her impending labour, including the place and mode of delivery of her unborn child;

iii) It is in DD’s best interest to undergo a planned caesarean section in hospital with all necessary ancillary treatment;

iv) DD lacks capacity to consent to be subject of an assessment of her capacity to make decisions in relation to contraception (by way of sections 48 or 15 Mental Capacity Act 2005);

v) It is in DD’s best interest to be subject of a one day assessment of her capacity to make decisions about contraception;

vi) The Applicants may take such necessary and proportionate steps to give effect to the best interests declarations above to include, forced entry, restraint and sedation.

 

The Court of Protection were not dealing with, were not asked to deal with, and have no powers to deal with, what would happen to DD’s baby once it was born. The Judge,  Cobb J, simply says this

I exhort the Council to make sure that any application for orders fully engages DD, so that she can be represented by her litigation friend, the Official Solicitor. It is plainly important, in DD’s best interests, that plans for the baby are formulated and presented to her in a way which engages her to the fullest extent.

 

 

The Court assessed DD’s capacity.  (I will set out now, because it is an issue that continues to trouble some practitioners in this field and also campaigners, that although DD was represented through the Official Solicitor, the Official Solicitor had not met with her or taken her views on the issues and did not in effect mount a challenge or defence to those declarations. The Official Solicitor’s role is to make representations to the Court about what they consider to be in DD’s best interests – in some cases that means agreeing or not opposing the declarations sought, in some cases it means a very robust opposition to the declarations sought, but there is no general principle that the Official Solicitor ought to argue against state intervention and FOR autonomy for people like DD)

 

The peculiar issue in relation to capacity was that DD in five sets of care proceedings had been adjudged to have capacity to litigate, and had NOT been represented through the Official Solicitor. That would be fairly unusual in a case where the Court was contemplating surgery against the person’s will

 

  • I am satisfied that “all practicable steps” (section 1(3) MCA 2005) have been taken to help DD to make a decision as to litigation, and mode of delivery, but that such steps have been unsuccessful – not just because of the low level of co-operation, but because she has displayed such rigid and unshakeable thinking (‘mind-blindedness’) about the information provided.

 

 

 

  • Her decision-making is undoubtedly “unwise“, but it is not, in my judgment, just “unwise“; it lacks the essential characteristic of discrimination which only comes when the relevant information is evaluated, and weighed. I am satisfied that in relation to each of the matters under consideration her impairment of mind (essentially attributable to her autistic spectrum disorder, overlaid with her learning disability) prevents her from weighing the information relevant to each decision. While anxious that in the past DD has ostensibly participated (albeit in a limited way) in public law proceedings without any finding of the court as to her capacity to do so (which causes me to reflect yet more carefully on the issue under consideration now) I must consider the issue with regard to this particular piece of litigation (Sheffield Crown Court v E & S – supra).

 

 

 

  • Moreover, on the evidence laid before me, there is reason to believe (section 48) that she lacks capacity in relation to whether to participate in an assessment of her capacity to decide on future contraception.

 

 

 

  • In these conclusions, I am fortified by the fact that the Official Solicitor, on DD’s behalf, does not seek to persuade me otherwise.

 

 

 

  • These conclusions can be drawn as declarations reached pursuant to section 15 Mental Capacity Act 2005, save for the conclusion in relation to capacity to consent to an assessment of decision-making relevant to future contraception, which will be drawn as a declaration under section 48 MCA 2005

 

 

 

The Court then went on to consider, what the best interests of DD required, given that she lacked capacity to make her own decision. The analysis that Cobb J undertakes of the various options for delivery of the child, the pros and cons of each and the balancing exercise is the best of these that I have seen, and I hope that this sort of root-and-branch analysis becomes more widely used in these cases. He reaches the conclusion that caesarean section is the best course of action, and makes the declarations that would allow the hospital to carry out that surgical procedure.

 

We then move to the headline item – in all of the other C-section Court of Protection cases the expectant mother has been in hospital, here she is at home. How is she to be conveyed to hospital?

 

Achieving the admission to hospital: Use of reasonable force & deprivation of liberty

 

  • I am conscious that steps may need to be taken to give effect to the decision which I make, if compelled attendance at hospital is required (for caesarean or induced vaginal delivery) in the face of DD’s objection. The extent of reasonable force, compulsion and/or deprivation of liberty which may become necessary can only be judged in each individual case and by the health professionals.

 

 

 

  • On two recent occasions forcible entry has had to be made to DD’s home in order to achieve some form of assessment: once with the authorisation of the lay justices (section 135 MHA 1983: 8 April 2014) and once pursuant to an order of Pauffley J (section 48 MCA 2005: 19 June 2014).

 

 

 

  • Any physical restraint or deprivation of liberty is a significant interference with DD’s rights under Articles 5 and Article 8 of the ECHR and, in my judgment, as such should only be carried out:

 

 

i) by professionals who have received training in the relevant techniques and who have reviewed the individual plan for DD;

ii) as a last resort and where less restrictive alternatives, such as verbal de-escalation and distraction techniques, have failed and only when it is necessary to do so;

iii) in the least restrictive manner, proportionate to achieving the aim, for the shortest period possible;

iv) in accordance with any agreed Care Plans, Risk Assessments and Court Orders;

 

  • On each previous occasion, after DD’s (and BC’s) understandable initial distress at the intrusion, DD has been calm and co-operative; BC less so. The presence of the police has not aggravated the situation; on the contrary, I was advised by Mr. D that DD sees the police as neutral and therefore helpful in maintaining peace. DD does not see the police as a risk; indeed, it was felt, the presence of police (in fact, uniformed police underline for the concrete thinker the visual confirmation of authority) creates a brake on her anxiety, anger, frustration and fear. The police add a ‘message’ to DD that the situation is ‘serious’ (according to Mr D) and has the effect of calming DD and BC.

 

 

 

  • In fulfilment of the plan as a whole, it is critical that the particular team of trained and briefed professionals is involved.

 

 

 

  • I recognise that sedation may be needed to ensure that DD does not cause herself harm at the time of the transfer to, and in-patient stay, in the hospital. General anaesthesia is likely to be necessary in my judgment to facilitate the caesarean section given the risks to herself if she were to interfere with the surgical procedure, or choose to be non-compliant with localised anaesthetic.

 

 

 

Finally, the Trust were proposing that DD be told of the general plan – that she would be taken to hospital and undergo a C-section, but not detail as to the date. The Judge considered the pros and cons of this here

 

 

  • The Applicants propose that neither DD nor BC should be advised of the date planned for the caesarean procedure, but should be provided with partial information: they are aware of this hearing, and it is proposed that they should be informed of the Applicants’ plan to arrange a caesarean section for her.

 

 

 

  • It should be noted that neither DD nor BC were advised in advance of the date of the localisation scan which took place two weeks ago.

 

 

 

  • There are plainly risks associated with providing DD and BC with full information (i.e. about the planned date), and, in the alternative, providing them with partial information. The professionals consider that the risks associated with providing them with full information are greater given DD’s likely raised stress and anxiety levels as the date approaches; this may have a serious impact on her mental health. This concern is underlined by the fact that she was adamant that she should not have her planned caesarean at the time of the birth of Child 2 until the exact due date.

 

 

 

  • There is a further risk that in advising DD and BC of the date of the caesarean, that they may seek to leave their home, and disappear. This in itself would create risks to DD, in that:

 

 

i) There is no guarantee that the specialist team local to her current home which has been identified to look after DD on the appointed date could be assembled on short notice, once DD and BC have been located;

ii) Health professionals in any new area would be unfamiliar with her situation, and less well equipped to deal with her, and her particular needs;

iii) Managing a safe transition from the community to hospital may be less easy or (if she is located in a public place) dignified.

iv) If she attempts a vaginal delivery at home (particularly any temporary home which is unfamiliar), she may be putting herself at additional risk.

 

  • If DD and BC are given partial information (omitting specific dates) the levels of anxiety are likely to be lessened and DD may have difficulty relating the information to herself given her autism spectrum disorder. This condition may make it difficult for DD to see how the information relates to her until concrete actions take place. Recent experience (8 April and 19 June) has demonstrated that while DD has been initially distressed, this reduces quite quickly and effectively using skilled de-escalation techniques.

 

 

 

  • I acknowledge that giving full information to DD and BC about the plans for the delivery of the baby would most fully observe their Article 8 and Article 6 ECHR rights.

 

 

 

  • However, in my judgment the provision of only partial information (i.e. that the plan is for a caesarean section, but not giving her a date) is a justified interference with her potent Article 8 rights on the facts of this case, as necessary in the interests of her health and the health of her unborn child. Moreover, I am of course satisfied that her Article 6 rights have been observed by her full and effective representation – with the fullest opportunity for her engagement – in this hearing

 

 

 

These cases, as with so much that falls to be decided by High Court judges, are extraordinarily difficult, with there being no perfect answer. Nobody can, or indeed should, feel wholly comfortable with a deeply vulnerable woman being removed from her home by police officers and taken to a hospital to have surgery performed on her against her will; not least because one can see that her prospects of remaining together with the baby are not strong given the previous history. It makes me feel squeamish and uncomfortable. But when one contemplates the alternative – that two parents of such limited abilities try to deal with a home birth unsupervised and a labour that has medical complications, given that they previously tried to use barbecue tongs as forceps and injured child 3’s head during the process, that feels terrible too.  I don’t know how we get these decisions right and do them fairly, but it would be hard for anyone who takes the time to read Cobb J’s judgment carefully to think that he didn’t try his utmost to make this difficult decision fairly.

 

My one caveat is that I think there should be someone in Court who is advocating for non-intervention, and for DD’s autonomy. If the Court don’t consider that DD’s autonomy can outweigh her wider interests and safety, then so be it, but I would feel better if someone was really arguing ‘fearlessly and without favour’ for the State to leave this woman alone. That way, all of the competing options are rigorously argued out and tested. Otherwise, that is left entirely on the shoulders of a Judge – and we may not always be as fortunate to have a Judge like Cobb J, who has the mindset, the knowledge and in this case the time, to vigorously consider the counter arguments that are not being made by the advocates.

15 Comments

Posted in case law, court of protection and tagged , , , , , , , , . Bookmark the permalink.

Can the Court of Protection authorise detention of an adult in a Children’s Home?

Posted on July 2, 2014 by suesspiciousminds

There is something of a rule of thumb that if a newspaper headline poses a question, the answer on reading the full article is invariably “No”   (as in  “Can a glass of red wine cure cancer?”  “Were Al-Qaida involved in Diana plot?”

 

Some good examples here

 

http://www.independent.co.uk/news/media/press/the-top-ten-questions-to-which-the-answer-is-no-8788687.html

 

This one though, is a question to which the answer (somewhat inexplicably to the naked eye) is  Yes

 

Liverpool City Council v SG 2014

http://www.bailii.org/ew/cases/EWCOP/2014/10.html

 

In good, dramatic novelist style, Holman J gets stuck into it from the very off, and lets us know in paragraph 2 that this is not some mere dull Court of Protection case, but that something peculiar is about to happen, read on !

 

  • This case raises the following question:

 

 

Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children’s home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children’s Homes Regulations 2001 (as amended)?

Both parties and their counsel in these proceedings submit that the answer is “yes”. I agree with them that the answer is “yes”.

 

We go on

 

 

  • I wish to stress at once the scope of that question which I have precisely drafted. This judgment and my answer to the question applies only in the case of a person who is not a child, that is, who has attained the age of 18. This judgment says nothing at all in relation to a person who has not attained the age of 18, and in particular to persons between the ages of 16 and 18. Further, this judgment is only concerned with a person in a children’s home, and says nothing at all with regard to a person who may be detained in a residential school.

 

 

 

  • I also wish to emphasise that both parties and their counsel who are before me in this case are agreed upon the answer to that question and the reasons for the answer. In other words, I have not heard any argument or submissions to the contrary. If, in some other case, on a future date, some party wishes to argue to the contrary, then of course that limitation or reservation upon the value of this ex tempore judgment as a precedent may be noted.

 

I have more of the average human allowance of curiosity to be sure, but my curiosity is piqued by this. It is sounding like some sort of trick question. Let’s go over it piece by piece.

 

The Court of Protection – dealing with a person who has reached the age of 18. Not a child.  They are in a children’s home though.  (we don’t yet know why). The Court of Protection is being asked to authorise their detention (we don’t yet know why). And being asked to authorise their detention in a children’s home (we don’t yet know why)

 

All of my instincts are screaming out at me that the answer to this must be no. Adults don’t get locked up in children’s homes. It just doesn’t happen. If the person is an adult, then the detention is either through the criminal justice system, the mental health act or an authorisation of deprivation of liberty under the Mental Capacity Act  – this one is the last of those, which is why it is in the Court of Protection. But the Court of Protection only deals with adults, so why has a children’s home been dragged into this?

 

I stopped reading the judgment at this point to see if I could guess why. Here’s my crack at WHY – this is a person who has huge problems, lacks capacity, and has been in a particular children’s home for many years, maybe six or seven years. They have only just turned 18 – their liberty has to be deprived, but they are doing so well in the particular children’s home that nobody wants to move them. So, in order to let them stay where they are, the Court has been asked to authorise detention of an adult in a children’s home.  Maybe I am wide of the mark, we shall see.  That’s a plausible-ish WHY, but I’m still baffled on the HOW element. How did the Court of Protection decide that this was lawful.

 

Let’s return to the judgment itself

 

  • The reason why the question has been posed appears to derive from two relatively recent developments. The first development is the recent decision of the Supreme Court in the Cheshire West case. The explanation given in that case by Baroness Hale of Richmond as to the scope or breadth of the concept of a deprivation of liberty has led to a concern that a significant number of people are, or may be, being deprived of their liberty who were not previously thought to have been. As is well known, this has led to a very large number of applications to the Court of Protection in order to seek authorisations for the deprivation of liberty.

 

 

 

  • The second development is a document headed “Deprivation of Liberty – Guidance for Providers of Children’s Homes and Residential Special Schools” dated 12th February 2014 and issued jointly by the President of the Court of Protection and the National Director Social Care OFSTED. It appears that as a result of that guidance document there has been, or is, uncertainty on the part of many lawyers and providers in this field as to the scope or extent of any power of the Court of Protection to authorise, when appropriate, the deprivation of liberty of certain categories of person who are accommodated in children’s homes or residential special schools. As the above defined question indicates, that concern has arisen in the present case, but I know that it is much more widespread as a result of the circumstances which I now describe.

 

 

{Absolutely – the Supreme Court’s decision in Cheshire West means that a range of people who were not thought to be having their liberty deprived actually ARE, and the President has heard a case but is yet to give judgment helping explain what the heck lawyers and Local Authorities and the Courts are going to do with the 10,000 extra cases that are believed to now be deprivation of liberty applications. Some of those cases might arise with young persons who are currently in children’s homes, but haven’t been the subject of Secure Accommodation Orders because they lack capacity to try to abscond

Treasury Solicitors said this ” These issues potentially affect a large number of children and young people who lack capacity but who currently reside in non-secure children’s homes or residential special schools. By way of example only, as at 31st March 2014, there were more than 6,500 over 16 year olds residing in care homes, children’s homes or residential special schools. The Secretary of State has not yet been able to determine the proportion of those 6,500 odd young people who may lack capacity.”    So at the moment, we don’t know how big a problem Cheshire West is for children}

 

Now, the facts of the case in question

 

 

  • It concerns a young woman, SG, who was born in early June 1995. Today she is in fact now 19. She was born in Romania and was apparently rapidly abandoned by her parents and taken to a state orphanage there. The first few years of her life appear to have lacked human affection and natural processes of bonding or attachment. When she was about 4 she was adopted by an English couple, who are, of course, now her parents.

 

 

 

  • As she grew older, it became increasingly plain that she suffers a number of lasting disabilities or disorders. She certainly has learning disability, a disinhibited attachment disorder, and quasi autism. Features of her condition have always been hypersensitivity to external stimuli, and challenging behaviour. More recently there has been a tragic history of self harm. Her childhood has, as a result, been very disrupted. She attended, but was removed from, various schools. She has had to spend long periods in hospitals. More recently she was placed in children’s homes. Challenging behaviour towards staff, absconding, damaging property, episodes of self harm and hitting out at her father have all been recorded.

 

 

 

  • For some time before she actually attained the age of 18 she was accommodated in a certain children’s home in the area and it is in those actual premises that she remains accommodated to this day. However, now that she has attained the age of 18 and is indeed now 19, it is completely recognised by the responsible local authority, in agreement with her parents, that arrangements must be made to enable her to move on to what is described as “supported living” in the community. This will take time to identify and set up, and, I have no doubt, considerable funding issues will need to be addressed. The local authority need to find a provider who will purchase or otherwise make available a suitable property and recruit a sufficient number of staff to care for her and keep her safe. The plan is that some premises will be found in which she can live together with a small number of other young women with similar needs. I have been told in the words of the skeleton argument on behalf of the local authority that:

 

 

“…one provider has already identified a suitable property and indicated a service could be in place for October 2014. It is hoped that securing a property will take no more than six to nine months after appointing the care agency, but it may be much quicker than that.”

As I understand it, it is contemplated that a high level of staffing and supervision will be required under that plan. If (as I assume is likely) it will involve a deprivation of liberty, then, in due course appropriate authorisations will be required.

 

  • Meantime, however, she has continued to live seamlessly in the children’s home where she was living before she attained the age of 18. There, too, she is the subject of very considerable staffing on a 3:1 basis. The staffing includes monitoring her while she is in the bathroom (ensuring her dignity is maintained at all times), locking the front door as a preventative measure, following, observing and monitoring her on visits into the community, and if she “attempts to leave the staff supporting her, they should follow several paces behind her and attempt to maintain conversation.” Items which may be used for self harm will be removed, and she remains supported 3:1 during the day and 2:1 during the night.

 

 

 

  • It is completely accepted by and on behalf of the local authority that that package of existing measures clearly amounts to a deprivation of her liberty as that concept has now been explained, in particular in paragraph 46 of the judgment of Baroness Hale of Richmond in the Cheshire West case, which I do not need to cite for the purposes of this judgment. Having appreciated in the light of the Cheshire West case that they currently do, and propose to continue to, deprive the patient of her liberty, the local authority commenced the present proceedings in the Court of Protection for appropriate authorisations.

 

 

 

 

Okay, I wasn’t that far wrong with my guesses – she is 19, has severe problems and has been in a children’s home doing as well as one could hope – she needs to be moved to another placement, and everyone involved wants her to stay in the children’s home until the RIGHT adult home can be found for her, rather than just moving her into any old adult home and potentially setting her back. That makes sense. But whereas before Cheshire West, professionals could ‘overlook’ that this was an 18 year old living in a children’s home, once the Supreme Court ruled that people like this were being deprived of their liberty, an application to authorise that had to be made.

 

Having done the WHY, we can now deal with the HOW.  But first, why is the HOW potentially difficult?

 

 

  • Section 121(1) of the Care Standards Act 2000, the interpretation section, defines that in that Act “child” means a person under the age of 18. Section 1(2) of that Act provides that: “An establishment is a children’s home… if it provides care and accommodation wholly or mainly for children.” The premises in which the patient in this case currently resides, and was residing before she attained the age of 18, is premises which have provided care and accommodation wholly or mainly for children in that there were at one time several children resident there. It is currently “registered” as a children’s home pursuant to the Care Standards Act 2000 and regulations made under it.

 

 

 

  • I have been told today that as a matter of fact no other person (apart from staff) currently resides in those premises apart from the patient. So, on one view, currently it is not providing care and accommodation even “mainly for children”, as no child resides there at all. However, all parties have proceeded on the basis that, notwithstanding the fact that currently no children reside there, it remains a children’s home for the purposes of the Act and the regulations, and I will proceed on that basis and assumption.

 

 

 

  • Assuming the premises to be a children’s home, the Children’s Homes Regulations 2001 SI [2001] No 3967 are in general terms engaged. Part III of those regulations is entitled “Conduct of Children’s Homes”. Chapter 1 of Part III is entitled “Welfare of Children”. Within Chapter 1, regulations 11 to 24 make a range of provisions with regard to the welfare of children, the food provided to children, communications with children, the protection of children, the behaviour, management and discipline of children, health needs, hazards and safety and other matters.

 

 

 

  • Of most relevance to the perceived problem in the present case is regulation 17A, which is entitled “Restraint”. Paragraph (1) provides as follows:

 

 

“(1) Subject to paragraph (2) a measure of restraint may only be used on a child accommodated in a children’s home for the purpose of-

(a) preventing injury to any person (including the child who is being restrained);

(b) preventing serious damage to the property of any person (including the child who is being restrained); and

(c) in the case of a child accommodated in a children’s home which is a secure children’s home, preventing the child from absconding from the home,

and then only where no alternative method of preventing the event specified in sub-paragraphs (a) to (c) is available.”

 

  • Just pausing there, whilst the regulation is prominent, it will be noted that throughout that part of that regulation the references are entirely to “a child”, that phrase being used five times in that short quotation.

 

 

 

  • The guidance that was issued on 12th February 2014 states at paragraph 3:

 

 

“3. The Court of Protection should be reminded by the parties of the regulations that apply to children’s homes and residential special schools. The Court of Protection does not have the jurisdiction to require any home or school to act in breach of such regulations or to authorise any such breach. Accordingly, the Court of Protection should not make an order authorising a plan for the care and supervision involving the detention of a person, where to do so would involve the children’s home or a residential special school breaching the regulations that apply to it. If compliance with an order of the Court of Protection would involve such a breach of the relevant Regulations it cannot be relied on to justify breach of the Regulations or enforced in a manner that would involve such a breach.”

 

  • Pausing there, that paragraph contains, if I may respectfully say so, no more than a legal truism. Regulations have the force of law, and no court, frankly, in any circumstances that I can readily think of, can authorise a person or body to act in a way that contravenes a regulation, or still less a statute, so as to be in breach of the regulation or statute. On a careful reading of that paragraph of the guidance, it ultimately says no more than that. The question, therefore, in any case is whether what the Court of Protection is otherwise being asked to authorise would amount to a “breach” of some regulation.

 

But one can see that the children’s home is authorised and approved to accommodate children, and in certain very narrow circumstances to restrict the liberty of children. The Act doesn’t give them as a children’s home, any right to restrain an adult or restrict the liberty of an adult.

 

 

  • he guidance continues at paragraph 4 as follows:

 

 

“4. All children’s homes must meet the Children’s Homes Regulations (2001). In this instance, the relevant regulations are:

Regulation 11 (Promotion of Welfare),

Regulation 17 (Behaviour, management and discipline) and

Regulation 17A (Restraint).

As restraint can only be used to prevent a child from leaving a secure children’s home, there is no purpose to be served in seeking an order of the Court of Protection authorising such restraint by a non-secure children’s home because the Court of Protection has no jurisdiction to order or authorise a breach of these regulations.”

 

  • Pausing there, it is possible (I put it no higher than that) that the accuracy of that part of the guidance is more debatable. It may beg the question of whether paragraph 17A(1)(c) of the regulations is a platform or a ceiling. But that is territory into which I simply should not and do not venture in the present case because paragraph 4 of the guidance is directed to “a child” and, as I have stressed, the patient in this case is not a child.

 

 

 

  • Finally, in a section that is avowedly headed “In Summary”, paragraph 13 of the guidance provides:

 

 

“13. Orders of the Court of Protection authorising a deprivation of liberty by non-secure children’s homes or residential special schools should not be sought or made and they should not be advanced or relied on to permit such homes and schools to act in breach of the regulations that apply to them.”

That, of course, is merely a summary, and the content of paragraph 13 is more fully elaborated in paragraphs 3 and 4 from which I have already quoted.

[The reason why this guidance is important is because it makes it plain – that might be too strong a description – it intends to make it plain – that the Court of Protection authorises deprivation of liberty for ADULTS, and the Family Court through s25 Children Act secure accommodation authorises the deprivation of liberty of CHILDREN. The idea is that the Court of Protection should not sidestep s25 Children Act – which has its own protections and safeguards by authorising the detention of children who lack capacity and using the Mental Capacity Act.  So, if SG was 17, the Court of Protection would not be able to tell the children’s home that it was okay to detain her.  And conversely, as she is 19, the Court of Protection can authorise her detention or restriction of her liberty under the MCA. But this person is betwixt. They are an adult in a children’s home. ]

The issue was, does all that guidance mean that the Court of Protection have to butt out (technical term there, but ‘accept that they have no jurisdiction’) for anyone whose liberty is being deprived in a children’s home, as para 13 says?  Or is it nonsense to suggest that para 13 applies to anyone other than CHILDREN?

Holman J takes the latter course, and now finally it all becomes clear (if by clear, you mean – gosh, my head hurts, I feel the need to lay down in a dark room and listen to soothing music)

  • The short and simple point is that the relevant parts of the Children’s Homes Regulations 2001 simply do not apply at all in the case of a person who is no longer a child. It may often happen, as it has happened in this case, that the premises in which a person, now adult, resides or is detained happen also to be a children’s home. But it frankly makes no difference whether the premises themselves are a children’s home or are some dedicated premises that have been provided in the community under the kind of “supported living model” contemplated for this very patient in this very case.

 

  • In my view, the Court of Protection has undoubted power in the present case to make, if appropriate, an order authorising the deprivation of liberty. Further, it is the duty of the person or body, in this case the local authority, who is or are depriving the patient of his liberty, to apply to the court for an authorisation; and, indeed, the duty of the court to make such authorisation as in its discretion and on the fact and in the circumstances of the case it considers appropriate.

 

  • In the present case it is common ground, and there is abundant evidence to support the proposition, that this patient lacks capacity to litigate and to make decisions as to her care and residence, and that it is in her best interests to continue for the time being to reside in the premises which are a children’s home in which she has been residing for some time, and that the deprivation of her liberty which is involved should be authorised.

 

  • So for those reasons I, myself, answer the question posed in paragraph 2 above as “yes”, and there will be an order which records that the court does consider that neither the Children’s Homes Regulations 2001 nor the joint guidance issued by the President of the Court of Protection and OFSTED dated 12th February 2014 prevent the Court of Protection from authorising under the Mental Capacity Act 2005 that a person who is an adult (viz. over the age of 18) may be deprived of his liberty in premises which are a children’s home. There will be appropriate declarations as to the lack of capacity and best interests of the patient and authorising the deprivation of her liberty; and I now transfer this matter back to the Court of Protection sitting in Liverpool where future decision making will be resumed after an appropriate interval by the local district judge there.

 

 

If you thought that the recent case about whether a former head of state had immunity after their death for marrying someone and not paying them any money was (a) complex and (b) a set of circumstances so recherche that they would never arise again if we lived and litigated until the sun ran out of fuel and the stars went out, then this one probably matches it.

 

It does show that the litigation fallout from Cheshire West is the gift that keeps on giving. There was a theory I read once that crossword puzzles were designed by an enemy of Britain, to soak up the brainpower of our most able people so that they would waste time on solving those rather than inventing things to help the War effort. The same may be true of Cheshire West – it may all be a cunning ruse by Baroness Hale to keep all Mental Capacity Act lawyers embroiled in solving what appear to be intractable problems and getting them all to take their eye off something far bigger and more significant.

 

3 Comments

Posted in case law, court of protection and tagged , , , , , , . Bookmark the permalink.

yet more international surrogacy

Posted on July 2, 2014 by suesspiciousminds

 

This time, Re D (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2121.html

 

This case was heard in the High Court, by Moylan J

 

 

  • This case provides a clear example of the difficulties created as a result of surrogacy arrangements being subject to varying degrees of domestic regulation, from significant regulation to none at all, and also because of the existence of significant differences in the effect of such domestic regulation. There is, in my view, a compelling need for a uniform system of regulation to be created by an international instrument in order to make available an appropriate structure in respect of what can only be described as the surrogacy market.

 

 

 

  • These proceedings concern a young boy called D who was born in 2010. He was born in the Republic of Georgia as a result of a commercial surrogacy arrangement, using eggs from a donor and the First Respondent’s sperm, which took place at and through a clinic in Georgia.

 

The particular wrinkle in this case was whether the surrogate mother was married at the time of this arrangement. Because if he was, under English law, he would be the child’s legal father, leaving the ‘commissioning father’ the genetic father, but having no legal rights about the child.

 

  • By virtue of section 35 of the HFEA 2008 the answer to the question, “Who is the legal father?”, depends on whether the surrogate mother was married at the relevant time. Section 35(1) provides:

 

 

“If – (a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and;

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

Section 35(2) provides:

“This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).”

 

  • Section 48 of the HFEA 2008 provides that where, by virtue of the provisions of the Act, a person is to be treated as the mother, father or parent of a child,

 

 

“that person is to be treated in law as the mother, father or parent (as the case may be) of the child for all purposes”.

Section 48(2) provides the converse, namely that where, by virtue of the HFEA 2008, a person is not to be treated as a parent of the child,

“that person is to be treated in law as not being a parent of the child for any purpose”.

 

 

The surrogacy and insemination was managed through a clinic, whose director is named MK in this judgment. MK sadly gave two rather different accounts of the surrogate mother’s matrimonial status

 

 

  • When the mother and MK went to the British Embassy in Georgia on 5th January 2011 MK informed the consular official that:

 

 

“The surrogate mother is divorced and was divorced before she entered into the surrogacy arrangement. There are a further five surrogate mothers waiting to deliver their babies in February/March all destined for the UK.”

On 30th December 2011 MK sent an e-mail to the mother’s solicitors in which she said:

“As for surrogate mother, yes, she is and was legally married. She is married also now. We have holidays here until January 3rd and then I will send official letter to public registry and obtain the proof that the surrogate mother is and was legally married, also request copy of her marriage certificate.”

[On version 1 the ‘commissioning man’ who provided the gametes was the genetic father and legal father, on version 2 he was only the genetic father. You absolutely don’t want any doubt about this issue, but the doubts just got worse]

In an e-mail dated 5th January 2012 MK said:

“Also one more important issue. Surrogate signed a contract with us claiming she was single. This was declared to the UK Embassy but very recently we became aware that the surrogate was married. I went to the UK Embassy with the mother to declare the surrogacy but I do not think this is problematic because some of our UK citizen surrogate mothers were married but UK law regulates this and none of our former potential parents has any problem because of this. You can check same in UK Embassy.”

On 20th February 2012 MK said that they had been unable to find the surrogate mother.

  • On 15th October 2012 MK said that the surrogate mother:

 

“Was either divorced or single. We do not match married surrogates to UK couple but we cannot provide any proof as we do not have any further link with her and only she can obtain proof of her marital status from public registry.”

The fact that only the surrogate mother could obtain proof of her marital status from the public registry was subsequently confirmed by the detective agency. In another e-mail of the same date, 15th October 2012, MK said:

“Paperwork was completed and D was granted papers to go to UK. At the time the surrogate mother has declared that she was single. We were later to be informed she had, indeed, been married.”

And then a bit later:

“I had a declaration (just my team member reminder) that surrogate mother was single when she signed and was given to the Embassy.”

In answer to the question as to whether she had any more information, MK said nothing more.

[I think that this Judge was very kind in not naming the agency or MK. Well, kind to them. Not so much to people who are wanting to enter into a surrogacy arrangement and might want to avoid complications, doubts and costly litigation down the line…]

Determination

  • Turning now to my determination, the evidence in this case, on the issue of whether the surrogate mother was married at the relevant time, is clearly not satisfactory. The only person able to give direct evidence is MK and she has refused to provide a statement. She has said, at different times, that the surrogate mother was single, married and divorced. I do not consider that any greater weight can be given to MK’s e-mail of 30th December 2011 than her other statements, which were either also provided to the mother’s solicitors or to the consular official at the British Embassy. These were, as I would describe them, equally official statements.

 

  • The mother’s evidence is inevitably unclear, based, as it is, on what she was told by MK or the impression she gained from MK.

 

  • In my view, the evidence does not establish that the surrogate mother was married at the relevant time. The evidence is not sufficient to enable me to come to that conclusion on the balance of probabilities. Indeed, in my view there is considerable doubt as to whether the clinic provided accurate details as to the identity of the surrogate mother. It is notable that the clinic has failed to provide its contract with the surrogate mother, although this may be explained by being unwilling to reveal the terms of that contract.

 

  • I propose, very briefly, to outline the orders agreed by the parties. In their position statements the parties were seeking different solutions. Those being addressed were adoption, special guardianship and shared residence. The mother sought either an adoption order or a special guardianship order. The father, in an extremely balanced statement, sought a shared residence order. The Local Authority supported the making of a special guardianship order. The guardian did not support the making of either an adoption order or a special guardianship order, having regard in particular to the effect those orders would have on the parties’ respective positions as parents. The guardian’s recommendation was that both parties should have parental responsibility and that there should be a shared residence order.

 

  • The parties, through sensible discussions, have agreed on a structure which follows that made by King J in the case of JP v LP & Ors [2014] EWHC 595 (Fam), including that D should remain a ward of court and that there should be a shared residence order. As I said at the beginning of this judgment, I am entirely satisfied that the proposed orders are in D’s best interests and, accordingly, at the request of the parties, I make such orders.

 

1 Comment

Posted in case law, international and tagged , , , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →