Author Archives: suesspiciousminds

Go on then, appeal me, I dare you

Posted on July 2, 2014 by suesspiciousminds

The trial judge in Re P (A child) 2014 doesn’t QUITE say what I say in the title above, but it isn’t far off.

http://www.familylawweek.co.uk/site.aspx?i=ed130704

“If you do not like it, there is always the Court of Appeal. Good luck.”

The Court of Appeal, reading that sort of thing in a transcript, don’t like it. It is rather akin to telling the heavily refreshed man with the tattoos on his neck that, yes, I AM looking at your bird.

How on earth did the Judge come to say that? Was it a truly outrageous application? Well, not really. It was the parents in a case suggesting that the grandparents who lived in Poland ought to be assessed. (And yes, that’s Poland, not darkest Peru or a remote part of the Arctic circle)

“MR SEFTON: Your Honour, we have raised with the Local Authority as well as other family members putting themselves forward. The paternal and maternal grandparents have put

THE JUDGE: Whereabouts are they?

MR SEFTON: They are based in Poland.

THE JUDGE: Yes. There are certain practical difficulties here.

MR SEFTON: Of course, there are practical difficulties.

THE JUDGE: Because, as in the next case, the parallels are remarkable without giving you any details, the next family are not from this country, the father has vanished very conveniently and the mother is saying, “He did it. I did not. Let me have my children back” and it might be that they are on the next bus to whether it is Paris, Berlin, Rome, whichever country they are from, where, miraculously, the father will spring up. So England will not wash its hands of children who are here. The applies to this child as well as in the next case. That is one huge difficulty about considering family members who are natives of and residents in Poland. If you do not like it, there is always the Court of Appeal. Good luck.”

“MS ROBINSON: Your honour, clearly, a lot of work is going to have to be done in terms of the timetabling of this matter. However, with regards to the extended family members, the Guardian is anxious that there is at least some enquiry made of them because this little girl is Polish and there are going to be significant cultural considerations that have to be borne in mind by this court. I understand that both sets of grandparents are due to visit this country over the course of the next few weeks and the Guardian would like for both sets to at least be spoken to and for some enquiries to be made. I also understand that there was a direction made by you earlier in these proceedings with regards to information from Polish Social Services regarding the father’s elder child and that information has, as yet, not been made available. Again, I would ask that that is chased and that that information is available as soon as applicable.

THE JUDGE: Yes.

MS ROBINSON: I do not think there is anything more that I can add at this stage.

THE JUDGE: I am sure what I was saying to Mr Sefton is not lost on you, Ms Robinson, but the Children’s Guardian must not think that the panaceatic remedy will be the unimpeachable grandparents from Poland. Poland is one short hop away from Merseyside and I very much doubt that I will be entertaining that as a solution should I come to the conclusion that this injury was non accidental, that it was perpetrated by one or both of the parents, that the other failed to protect or is lying through his or her teeth and in circumstances whereby it is not safe to reunite the family. If it is not safe in this country, it would not be safe in Poland. So, if anybody has the notion that the solution is rehabilitation to a member of the extended family in Poland, I would not share that sentiment in those circumstances. There we are.

MS ROBINSON: But your honour would not be opposed to the Local Authority making enquiries of the grandparents when they are in this country in terms of

THE JUDGE: No, but what I am saying is, and I direct my remarks to Ms Williams as I do to you, this is a game of chess, not draughts. Any fool can play draughts and move one step at a time. It takes rather more skill to play chess where you have to think several moves ahead. That is what I am saying. If it sounds like a crude exposition, then I apologise but that is what I have in mind.”

It is not a huge shock that with that sort of expressed view, the grandparents did not pursue their claim. It ought to have been appealed there and then, but wasn’t. By way of context, this exchange came after the Supreme Court’s decision in Re B (nothing else will do)

There follows a lovely bit, which is almost something out of Allo Allo

Finally in this context, we have the submissions by Ms Bannon on behalf of the children’s guardian. I quote from her skeleton. Referring to the July hearing, Ms Bannon says this:

“The judge made it clear to all that rehabilitation of the child to Poland was not an option and this set the backdrop against which all placement options were considered.”

39. Now, that description of the guardian’s position is, we are told, a surprise to the social workers. Equally, Ms Bannon tells us that the social workers’ surprise at what she has said is also a surprise to the guardian.

The Court went on at a later final hearing to make a Placement Order, and the parents appealed that.

It is no huge shock that the Court of Appeal felt that the Judge had got it wrong in not exploring the possibility that the child could be placed with relatives in Poland. A consequence of that was that these proceedings, which could have been concluded in September last year, had an assessment been done, is still going on.

The Court of Appeal had this to say about when robust case management crosses the line
56. I cannot, however, leave this case without expressing my disappointment with the turn of events at the hearing on 26 July 2013. There are many pressures in various fields of litigation, none perhaps more so that in family proceedings, for speed and efficient use of resources. However, there are proper limits to robust case management.

57. In my judgment, it is regrettably all too clear from the transcript that we have seen of the hearing on that day that, unfortunately, this judge appears to have closed his mind to any solution for this child’s future in Poland. My Lord has referred to the relevant passages of the transcript. There is a distinction properly to be drawn between case management and premature jumping to conclusions. Unfortunately, it seems to me that the judge’s conduct of the hearing on 26 July fell very much on the wrong side of that line.

and

I accept Mr Downs’ submission that “The reality is that two willing sets of grandparents were overlooked because the judge set his face against a placement out of England and Wales”.

60. The local authority submits that the social workers thought that the option had not been closed out, but if that is what they thought, then it appears they made no efforts to find out whether there was any possibility of a placement within the wider family in Poland. Nor does it appear from the evidence that they asked what should have been an obvious question: why was the maternal grandmother was proposing to come and live in Warrington on her own in order to be the carer for the child? What was to happen about all her other family commitments in Poland and how long was she proposing to stay?

61. In making these points, I am impressed by the fact that the guardian’s solicitor, Miss Robinson, pressed the judge at the hearing in July to no avail, that the guardian herself was present at that hearing and that she formed the view that the judge had closed out the option. At the very least, it suggests that Mr Downs’ interpretation was not an unreasonable one.

62. I do appreciate that the local authority have great burdens put upon them, but they are, as Mr Downs submits, subject to a positive obligation under Article 8 to consider ways of retaining a child within the family. That positive duty is owed also by the court. Mr Downs has not cited any authority, but the principle is well known. It is reflected in the decision of the Grand Chamber of the European Court of Human Rights in TP and KM v the United Kingdom (Application No. 28945/95). I sat as the UK ad hoc judge on this case.

63. At paragraph 71 of its judgment, and in the context of Article 8 and the margin of appreciation in relation to a local authority’s duty to disclose relevant information to the parent of a child who had been taken into care, the Grand Chamber held:

“71. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, the Johansen v. Norway judgment of 7 August 1996, Reports 1996 III, p. 1003, § 64).”

64. The judge’s observations give insufficient weight to the Convention jurisprudence. Judges have to be very careful in the way in which they express themselves. So if what they are really intending to do is to express a provisional view only to help the parties, they have to underscore, underline and make it clear that it is a provisional view only.

65. This case still has a very long way to go, sadly, before a permanent decision is made about the child’s future care and no one is predicting what that decision will be.

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Posted in adoption, case law and tagged adoption, judicial indication, re p a child 2014, robust case management. Bookmark the permalink.

Vulnerable witnesses and parents article 6 rights

Posted on June 27, 2014 by suesspiciousminds

This is a big case anyway, but it particularly struck a chord with me having heard Penny Cooper speak very eloquently at the Westminster Policy Forum yesterday on the shabby way vulnerable witnesses are treated in care proceedings as compared to criminal proceedings.

The Court of Appeal in Re J (A child) 2014 overturned a finding of fact by Pauffley J that a vulnerable witness X had been sexually abused by the father in private law proceedings. This had become pertinent in the private law proceedings because X had contacted the mother and told her, and the mother had decided that if what X said was true, the mother didn’t want father around the children.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/875.html

The witness in question, X, had been the subject of litigation that went all the way up to the Supreme Court, on the issue of whether father was entitled to see the details of what the allegations were, you may remember it

Re A (a child) 2012 http://www.bailii.org/uk/cases/UKSC/2012/60.html

The lawyer representing her, Sarah Morgan QC was arguing there that the prospect of X giving evidence in her circumstances was so traumatic that it amounted to an article 3 inhuman and degrading treatment breach.

The expert evidence about X was this

“It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy.”

The Supreme Court didn’t go that far, but were sympathetic

This was what happened in relation to X’s evidence at the finding of fact hearing.

In the light of the advice of Dr B, X gave evidence in the proceedings over a video link. Throughout she was supported by a trained registered intermediary who sat in the video room with her. It was planned that X would give oral evidence over the course of the Monday and the Wednesday during the first week of the hearing. However, for much of the morning of the first day X felt unable to contemplate answering questions and required discussion with and encouragement from her legal team assisted by the intermediary. Her evidence in chief, which was punctuated by breaks to enable X to re-gather her confidence, occupied the remainder of the first day and much of her second day in the witness box. Frustratingly, the first day of evidence coincided with what the judge described as “quite appalling noise disturbance” coming from road-works outside the video room window.
During the morning of the second day a further difficulty occurred. One of the clear ground rules established for the giving of X’s evidence was that at no time should F see X on the television screen. F failed to abide by this ground rule and, on being spotted by the judge craning forward to see X, the evidence was abruptly curtailed. The effect of this event upon X is described by the judge as being “considerable” and that “thereafter, progress was painfully slow”. In the event the judge decided that F should leave the court room. However, by that stage X had become distraught and had locked herself in the lavatories in the court building and was refusing to come out. The court therefore adjourned for the rest of the morning hoping that X’s testimony could be resumed after lunch. X’s evidence in chief then continued until shortly before 3.30 p.m. Thereafter, following a short break, counsel on behalf of F cross-examined for something short of one hour. At 4.25 p.m. the judge concluded the process for the day and also concluded that “it would have been inhuman to have required X to return for a third day”. Cross-examination on behalf of F was thereby cut short and ended at that point. There was also no cross-examination on behalf of the guardian.

Clearly the process was pretty ghastly, and also it is clear that the father did not get to have all that he wanted to put to X in cross-examination put to her.

This is what Pauffley J said about X’s evidence

Under the related heading of “X’s presentation at this hearing” the judge went on to describe X’s presentation during her evidence in striking terms:

“I should say at once that I have never before witnessed anyone of any age demonstrate such emotional turmoil and distress whilst participating in a court hearing. If one phrase encapsulates the whole experience, it is that watching and listening to X was harrowing in the extreme.”
That observation, coupled with the detailed description that the judge gives in the ensuing paragraphs, is a matter to which I give the greatest regard. This court frequently, and rightly, reminds itself of the substantial premium that must attach to the analysis of a trial judge who has had the experience, not available to those who sit on appeal, of observing the key witnesses give their testimony live at the court hearing. When the judge in question is a tribunal of the experience and standing of the judge in the present case, the level of respect and the premium that attaches to her observations must be of the highest order.

When a High Court family Judge describes hearing evidence as harrowing in the extreme, that is not something one can take lightly. The tolerance that High Court judges have for hearing things that would make most people faint or run out of the room to avoid is very high indeed.

Sarah Morgan QC described the process of X’s evidence like this

Miss Morgan submitted, and I readily accept, that the transcript of X’s evidence gives no real impression of the quality of her presentation over the video link. She told the court, and again I accept this, that this case was one that would stay in the minds of all of the professionals who had been in the court room “for decades”.

The whole thing was rather compounded by the father not being able to get legal aid, for one reason or another, and then that the barrister paid for by the Local Authority to represent him (as the alternative would have been him cross-examining X himself) not realising until very late on that she was in conflict and someone fresh having to pick up the papers.

During the fact finding hearing, the Guardian’s team took on an almost amicus role to assist with this, putting both sides of the case and making extremely detailed submissions of the pros and cons of the evidence and the considerations that the Judge had to make.

And did so similarly at the appeal

On behalf of the children’s guardian Mr Paul Storey QC and Ms Camille Haboo have, through their submissions, continued to provide the court with assistance which is of the highest quality. At the stage of the conclusion of their written submissions they retained a neutral position as to the outcome of the appeal. Their helpful oral submissions included the following points:

a) In a case where there is no direct physical evidence or other clear “diagnostic” proof of sexual abuse, the process of judicial evaluation requires great subtlety;

b) There was an inevitable imbalance in the court process as a result of the inability of any party to cross-examine X;

c) There was a need for the judge, who obviously found X to be a very impressive witness, to exercise caution in relying upon such an impression where the full process of ordinary forensic evaluation has not been seen through;

d) Where, as here, the process of cross-examination has been halted, it is incumbent upon a judge to explain the approach that she has adopted to that factor in her overall evaluation. That is especially the case where the alleged perpetrator is a litigant in person for much of the hearing;

e) The fact that F was a litigant in person meant that he had no one to call him to give evidence in chief, he had to undertake his own closing submissions and was therefore much more on display before the judge than would be the case if he were represented.

Where the Court of Appeal were critical of Pauffley J was that in her analysis of the factors, all of them were factors which were supportive of the findings being made and none setting out that counterbalance of the reasons not to make the findings and particularly not the difficulty in X’s evidence and the risk of placing weight on the emotional content and impact on it over and above the forensic issues.

Despite the very valuable support given to X by NM, a registered intermediary, who was described by Pauffley J as extremely impressive, it is clear that X found the process of discussing these matters to be highly distressing. As I have explained, her evidence was halting, truncated by the need for breaks and, in the end, concluded in the early stages of questioning on behalf of F.
Within this appeal, no criticism has been made of the sequence of decisions which led to the choice of these particular arrangements, as opposed to other less direct methods, for the court to receive evidence from X. As Baroness Hale explains, in any case there will be a scale of options, running from no fresh input from the witness into the proceedings, through written answers, video-recorded questioning by trained professionals or live questioning over a video-link, to full involvement via oral evidence given in the normal forensic setting. The aim, again as Baroness Hale says, is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It must be a given that the best way to assess reliability, if the witness can tolerate the process, is by exposure to the full forensic process in which oral testimony is tested through examination in chief and cross-examination. Just as the sliding scale of practical arrangements rises from ‘no fresh involvement’ to ‘the full forensic process’, there will be a corresponding scale in which the degree to which a court may be able to rely upon the resulting evidence will increase the nearer the process comes to normality. In each case, where a vulnerable witness requires protection from the effects of the full process, it will be necessary for the court to determine where on the scale the bespoke arrangements for that witness should sit with a view to maximising the potential reliability of the resulting evidence, but at the same time providing adequate protection for the particular vulnerabilities of that witness.
Where special measures have been deployed it is, however, necessary for the judge who is evaluating the resulting evidence to assess the degree, if any, to which the process may have affected the ability of the court to rely upon the witness’ evidence. Where, for example, the witness has simply been unable to play any active part, the court will be required to fall back upon hearsay records of what has been said outside the court context on earlier occasions and without any challenge through questioning.
In the present case it is clear that even the process of X giving evidence in chief encountered a range of difficulties, some entirely outside the court’s control, which made progress painfully slow and, at times, came to a halt. Cross-examination was very limited and was, for good reason, brought to a premature conclusion. Despite these difficulties, which the judge describes in full, the judgment does not contain any evaluation of the impact that this compromised process had upon the court’s ability to rely upon the factual allegations that X made within her evidence as a whole. This was a case where, partly as a result of the limitations on her ability to give evidence in the normal court process and partly because of the difficulty in fully understanding what she was explaining, the court only experienced X’s account ‘through a glass darkly’ because of the number of filters (both psychological and forensic) in place between X and the judge. In assessing the reliability of X’s account it was, in my view, necessary to acknowledge these difficulties and give them appropriate weight within the overall analysis.

The Court of Appeal felt that they had to overturn the findings

It is with the heaviest of hearts that I now contemplate the conclusion that must inevitably flow from the serious detriments that I have identified in the fact finding analysis conducted by Pauffley J in this case. My reluctance arises primarily from consideration of what must follow from a decision to allow this appeal, thereby setting aside the judge’s finding of sexual abuse. I have also, at every turn, been acutely aware of Pauffley J’s enormous experience of conducting these exquisitely difficult cases.
Despite giving every possible allowance for the factors that I have identified which either support the judge’s finding, or properly caution against the appellate court from interfering with that finding, for the reasons that I have given, the judge’s determination cannot be upheld. In summary the factors that have led me to this view, taken together, are:

a) The only evidence of sexual abuse came from X’s accounts given in 2009/10, as confirmed by her to be true during oral evidence. No other evidence directly supported or corroborated X’s allegation of sexual abuse. The evidence around the ‘trigger event’ established that, in at least one central respect, X’s accounts in 2009/10 were not reliable. Whilst the unsupported testimony of a single complainant is plainly capable of establishing proof of what is alleged, where, as here, there were a number of factors that detracted, or may have detracted, from the degree to which reliance could be placed on X’s testimony, a finding of fact should only be made after those factors have been given express consideration and due weight in the judicial analysis.

b) X’s emotional presentation in 2009/10 and over the video-link was a relevant factor, but the weight given to the emotional presentation was unjustified and was disproportionate in the absence of a corresponding analysis of the detail of what she was actually saying together by undertaking a process, similar to that presented on behalf of the guardian, of balancing the factors either for or against the making of a finding.

c) Once it was established that the ‘trigger event’ of X informing M had never occurred, despite being reported by X on a number of occasions in 2009/10, it was necessary to conduct a full appraisal of the impact of that highly material change in X’s account.

d) The judge’s conclusion that the ‘prohibitions’ went so far as to provide a ‘complete answer’ to the lack in X’s account of any of the detail identified by Mr Storey was a conclusion that was unsupported by any expert evidence and was not open to the judge. This is particularly as the ‘prohibitions’ themselves were shadowy and only partially understood.

e) In the light of the expert evidence concerning the difficulty encountered in determining a psychological link to X’s physical symptoms, and, particularly where some of those symptoms may be consciously generated, great caution was needed before concluding that X’s account provided a reliable foundation for the finding of fact.

f) The judicial analysis should have included assessment of the impact of the lack of any ABE interview and/or narrative statement in 2009/10.

g) The judicial analysis should have included assessment of the impact of the, necessarily, limited forensic process around X’s oral evidence.
In the circumstances, the appeal must be allowed and the judge’s findings of fact set aside.

Lady Justice Gloster went even further and accepted the submissions made by father that the process had been a breach of his article 6 rights

However I should also add that I accept Ms Branigan’s submission (as referred to at paragraph 52 above) that the trial procedure, so far as F was concerned, was unfair to him.
The allegations being made against him were extremely serious. If established they might well have led to him being deprived of contact with his daughter, to the possibility of criminal proceedings against him, and resulted in an indelible scar to his reputation and character, with potential consequences for his future employment and personal relationships.
Whatever the difficulties surrounding X’s position as a witness, F was nonetheless entitled to a fair trial of these allegations. For the following reasons, in my judgment he did not receive one:

a) First, there was no equality of arms. For various reasons, he received no legal aid, and the only legal representation which the local authority agreed to fund was a barrister solely for the anticipated 3 days of cross-examination of X and her mother (see paragraphs 17 and 18 above). This might be thought to have been designed more in order to protect X from direct cross-examination by F, than for the purpose of assisting F in the presentation of his case.

b) Second, because of the conflict of interest problem (see paragraph 19 above) his counsel was instructed on absurdly short notice for what was, necessarily, going to be an extremely difficult cross-examination.

c) Third, whilst one can readily understand the reasons why the judge terminated X’s cross-examination, the consequences of that decision so far as F was concerned were clearly highly significant. In my judgment the judge should, at the very least, have considered whether in those circumstances, where there had been no full or adequate cross-examination of X on behalf of F, it remained possible to reach any fair outcome of the determination of the issue so far as F was concerned.

d) Finally, F’s exclusion from the court room when X was being cross-examined, meant that it was extremely difficult for him, when he came to make his final submissions, to know what X’s evidence had been. I find it difficult to understand how he was expected to have successfully deployed what his counsel may have told him about X’s evidence in his own final submissions as a litigant in person. Whatever the perceived egregiousness of F’s conduct in “craning his neck” to see X on the screen, I cannot believe that practical arrangements could not have been made which would have enabled him to remain in the court-room but nonetheless would have prevented him from repeating his attempts to see X on screen. To exclude a litigant in person from the courtroom in such circumstances was a very serious step.
It is obviously important in trials with vulnerable witnesses that the trial process should be carefully and considerately managed in such a way as to enable their evidence to be given in the best way possible and without their being subjected to unnecessary distress. But that should not come at the price of depriving defendants and others, who claim that they have been falsely accused of criminal conduct, of their right to a fair trial in which they participate and a proper opportunity to present their case in accordance with natural justice and Article 6 of the European Convention on Human Rights.
It does not surprise me that, in the light of the history of this litigation, F has on occasions, as set out in paragraphs 133-136 of the judge’s judgment, expressed his dissatisfaction with the court process in strong, emotional terms. That should not, in my view, have been relied upon by the judge (as it apparently it was at paragraphs 133-137 of her judgment) as a basis for reaching adverse findings as to F’s credibility. It is not difficult to see, given the long history of this matter and the actual and potential personal consequences for F, why he might have found it difficult to refrain from making comments of this sort, or might have behaved in an inappropriate manner in what no doubt he perceived to be a hostile court environment.
Whilst I consider that the trial process was unfair to F, it is not necessary in the light of the Court’s main conclusion in relation to the inadequacy of the evidence upon which the judge based her conclusions, to consider whether this ground alone would have sufficed as a reason for allowing this appeal.

The question then arose as to what the Court of Appeal should do. The idea that the case would be reheard seemed deeply unattractive to everyone – I’m sure that the advocates involved did not relish the idea of taking X’s evidence again

Finally, there is a need to determine whether a re-trial of the issue of sexual abuse should now take place. For my part, and in the light of the material to which this court has now been exposed in full detail, and even allowing the fullest justifiable weight to X’s demeanour, I do not consider that a finding of fact against F was open to the court on the evidence as a whole.
It seems highly unlikely that X will be able to engage to a greater extent in the forensic process than she did before Pauffley J; indeed powerful submissions were made by Miss Morgan and by M to the effect that it would be abusive and/or untenable to expect X to take part in a further hearing.
In the circumstances, and whilst fully accepting that this leaves A, M, and indeed F, in the very difficult situation that M so clearly described, I consider that no greater clarity is likely to be obtained by a retrial and that this court should therefore now put a stop to the evaluation of X’s 2009/10 allegations within these proceedings.
As a result, the private law proceedings relating to A must now proceed on the basis that there is no finding of fact against F (arising from X’s allegations). The Family Court will therefore make any determination as to A’s welfare on the basis that F has not engaged in any sexually inappropriate behaviour with X.

This all leaves vulnerable witnesses very erm, vulnerable. X was about as vulnerable as anyone could get, as a reading of Re A would show – she was almost suicidal at the idea of father even seeing what she had said about him, let alone giving evidence. She had strong expert evidence about the harm that the process might do to her. I never felt reading Re A that she would get anywhere near to giving evidence.

But she did so, and the measures that the Court put in place still weren’t enough.

Adding what we know about X from Re A with the judicial comments that the process of her giving evidence was harrowing in the extreme almost turns your stomach, even at this remove.

And the remarks of Lady Justice Gloster even call into question whether a Court can safely make those protective measures without risking an article 6 breach.

So where does this leave a vulnerable witness who doesn’t have such a compelling and rich case as to vulnerability as X did here? I know that the President has been speaking about this issue, and I’m sure that some guidance is going to come our way. (For once, this is a piece of guidance that I will welcome, as I think Re J throws huge doubt on where a Judge should draw the line between protecting the witness and protecting the article 6 rights of those accused)

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Posted in case law and tagged article 3, article 6, article 6 rights, article 8, Court of Appeal, cross examination, protecting a vulnerable witness, re a 2012, re J 2014, right to fair trial, vulnerable witness. Bookmark the permalink.

Rhubarb* and custody

Posted on June 27, 2014 by suesspiciousminds

(*Story contains no rhubarb, but was prepared in an environment where there is a risk that rhubarb, rhubarb pollen (?) or rhubarb dust may have inadvertently contaminated the contents )

A committal hearing in relation to a grandmother who was using electronic media, including Facebook to protest against the adoption of her granddaughter.

Staffordshire CC and Beech 2014

There are two judgments, one being the committal hearing itself, and the second being the sentencing

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B81.html

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B80.html

Probably the most important thing is said at the very end

I conclude the Judgment by making clear to Mrs. Beech that there is no objection to her criticising the court, criticising the judge, the Social Services Department or the family justice system. She has an entitlement to campaign about these matters. What the court will not tolerate is the use of the name of her grandchild or the photograph of her grandchild in connection with this campaign.

The Court did find that the grandmother had breached the orders preventing her from naming her grandchild and using photographs of her grandchild within the campaign. Part of that had been to ask a wide network on Facebook to circulate the photograph of her grandchild with a view to tracking her down in the adoptive placement and find out where she was.

Allegation number 1. Mrs. Beech has a group Facebook page entitled “Stop social services” which has about 7,000 members. This page was compiled before my Injunction Order was granted. The page has photographs of the child and a slogan including her name. The page contains the assertion that the child has been stolen by Staffordshire County Council Social Services. On 24th January 2014 the Injunction Order was served on Mrs. Beech. On that very day she posted additional words on her group Facebook page in terms which represent a flagrant breach of the court order. I read from the relevant posting which is exhibit 5 in my papers: “I have just had court papers handed me. I have been gagged until (the child’s name) is 18 years old. How can this be? They steal my granddaughter, then gag me. Fuck off. You have no chance. I am still fighting for her, you idiots. You cannot bully this nana. The truth hurts and no one will shut me up. I will go to war for my family, you idiots. Please spread the word”. These words were posted alongside photographs of the child and other words and slogans which had been posted long before the Injunction Order was granted. However, I find that by posting these additional words on 24th January 2014 alongside the photograph Mrs. Beech was republishing the old photograph and slogans and so her breach extends not only to the new words but to the old words and the old photograph.

Allegation number 2. On 28th January 2014 the B.B.C. website reported my Injunction Order in an article carefully drawn to avoid breaching the terms of the order itself. However, Mrs. Beech on her Facebook page posted a link to the B.B.C. report together with a short extract from it. She accompanied this posting with additional words of her own which constituted a flagrant breach of the Injunction Order. She posted “Just to let you know this is me, Amanda Jane Beech. It’s about my granddaughter (named). Staffordshire Social Services think they can bully me. The truth will be heard.”

Allegation number 3. On her Facebook page Mrs. Beech posted more words of flagrant breach, this time accompanied by a photograph. Mrs. Beech claims that the photograph could have been put up by someone else. She says that the photograph was already present on her Facebook page. She says that if another person clicked on the Facebook page to indicate they liked the contents the consequence would be that the photograph came up on this profile page automatically without any intervention on her part. The Facebook page does show that people had clicked the page to show that they liked it. Mrs. Beech raised the same point in relation to allegations 5, 9 and 11, saying in relation to these other allegations that the intervention of others explains the entire posting, not just the posting of the photograph, as she says it does for allegation 3. I have looked closely at these pages. No other name appears. On each occasion the posting appears under Mrs. Beech’s own name. With the exception of allegation number 5 each photograph follows a different form of words for which it is obvious to me that the grandmother, Mrs. Beech, is responsible.

She gave me rather inconsistent evidence about these allegations. She said that she did from time to time re-post material on the Facebook page in order to encourage her campaign. In this context she accepted that some of the postings might be her responsibility but some might be the responsibility of supporters. In the course of her evidence she said that the accompanying words appeared automatically from what she had already recorded herself on other parts of the page. However, on analysis the form of words is different for each of these postings, so I reject this explanation from Mrs. Beech. One of these allegations, allegation number 5, has no accompanying words and comprises just a photograph. However, this posting appears under Mrs. Beech’s name, just like the rest. I have heard her account. I am sure that she posted this and the other postings to encourage others to support her continuing campaign.

Allegation number 4. This allegation comprises clear words of breach which Mrs. Beech accepts that she posted on her Facebook page. There was no photograph with this posting.

Allegation number 5. I have dealt with allegation number 5 above.

Allegation number 6. This allegation comprises clear words of breach which Mrs. Beech accepts she posted on her Facebook page. Again, there is no photograph involved in this breach,

Allegation number 7 caused me a moment’s hesitation. This is Mrs. Beech’s Facebook group page. She accepts that she posted on this page a link to a YouTube recording. The new words do not constitute a breach of the terms of the injunction. However, these new words must be considered with the existing words to which they were linked so the effect is a re-publication of the words previously posted. Read together the words refer to the removal of Mrs. Beech’s grandchild into care which constitutes a breach of the injunction.

Allegation number 8. Mrs. Beech accepts that she posted the words and photograph which constitute this breach. She makes the point that the photograph was already on the web as part of an online petition that she started long before the Injunction Order was imposed. The local authority accept that the photograph is not new, but on this occasion by posting the link Mrs. Beech brought the old picture back onto her Facebook page again which constitutes a re-publication of the old picture in breach of the Injunction Order.

Allegation number 9. I have dealt with allegation 9 above when dealing with allegation number 3.

Allegation 10. Mrs. Beech accepts that she posted these words which clearly breached the terms of the Injunction Order. The reference to her partner, Mr. Rogers, is accepted by Mrs. Beech as a mistake. This was a publication to a closed group without a photograph.

Allegation number 11 has already been dealt with above when I was dealing with allegation number 3.

Overall then, all 11 allegations made by the local authority have been proved so that I am sure of the truth of the allegation and the fact that it infringes the terms of the injunction

It then adjourned, to give the grandmother the chance to reflect on this, and to get legal advice before the sentencing hearing.

At that sentencing hearing the grandmother accepted that she would comply with the injunction, take down those postings and not put up things of that sort in the future.

As a result, the Judge gave her a suspended sentence of 56 days, meaning that Ms Beech would not go to prison for her breaches unless she were to breach the order again (in which case the sentence of 56 days would take effect)

It does raise difficult questions, which I raised in part at the original report of the injunction. If a person campaigns on Facebook without naming their granddaughter, the step to indirect identification is a very short one. It is likely that within the rest of the grandmother’s facebook page are pictures and names of her family, and one could deduce fairly swiftly by the appearance of say “Rebecca” on those photos up until a year ago and then no more photos that it is “Rebecca” who was the child who was removed.

The provisions about directly identifying and indirectly identifying a child make decent sense for mainstream press – a newspaper reporting about a child and calling them “Child X” doesn’t identify the child.

Moreover, newspapers have editors, and lawyers. They can pause and consider whether they might be in breach of the law by any element of their story.

But we are now in a world where anyone with a mobile telephone can become their own publisher, and put things on the internet for all to see. It’s a whole new ball-game, and the law hasn’t quite caught up yet.

Ms Beech putting on Facebook “My granddaughter, who I can’t name, was stolen by social services” doesn’t directly identify the child, but it must be arguable that it indirectly identifies the child, because you can see that that the author of the post (who is named) is related to the child in question, and probably find on that page other photographs of the child. In a situation like that, proving whether someone made that indirect identification deliberately or by accident or lack of thought is very difficult, especially to the criminal standard of proof required.

[The original injunction judgment is here

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B1.html

and my post at the time about it is here

https://suesspiciousminds.com/2014/01/24/transparency-and-facebook/ ]

12 Comments

Posted in case law, committal, transparency and tagged breach of injunction, campaigning on facebook, commenting on care cases on facebook, committal, contempt of court, facebook, staffordshire and beech 2014. Bookmark the permalink.

CSI : President

Posted on June 23, 2014 by suesspiciousminds

A decidedly quirky case in which the President (not for the first time and probably not for the last), does something unique. Kudos throughout to Mr Roger McCarthy QC, who navigated some very tricky law to find one of the great loophole solutions to what appeared at first to be an insoluble problem.

Re Z (Children) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1999.html

Within care proceedings involving several children, an issue arose as to whether a man, X, was the father of those children. X said that he was, but he refused to undertake a DNA test that would have settled it. Now, there’s quite a bit of legal authority about the Courts being able to draw an inference from a refusal to participate in a DNA test (indeed, one of those authorities was one of my own cases). But it has always felt a bit unsatisfactory, the Court ends up deciding on a “legal basis” who a child’s parent is, or is not, based on non co-operation, but the live possibility exists that X (or others like him) is being awkward and objectionable for other reasons than that the test would go against them – i.e that if you actually did the test, you would find out the truth rather than making a guess based on a person’s unwillingness to take the test.

The Court can’t compel an adult to give a DNA test (in fact, as a matter of law, the Court doesn’t really have much power to compel an adult to do anything in care proceedings – they can make an order that if breached can send the adult to prison, and they can compel the adult to attend Court and to give evidence, but that’s about it. Everything else is about there being consequences and adverse inferences if you refuse to do something)

i.e the Court can say “If you don’t give a hair-strand test, it might be inferred that you are still using heroin” but they can’t say “you WILL give a hair-strand test because the Court says that you must”

So, the Court can’t make X give a DNA test. That seems to be the end of it.

Except that in this case, X is a serving prisoner, and as part of the criminal investigation and trial, X gave a DNA sample. The issue then, was whether the Family Court could order that the existing DNA sample, held by the police, could be put to this purpose, even in the teeth of X’s objections.

X’s position

X’s position is hard to understand. He asserts that he is the children’s father, yet he refuses to do the obvious thing which would establish that, namely agree to DNA testing. Being anxious to understand his stance, I asked his counsel, Ms Rebecca Mitchell to put it in writing. This she did:

“[X] opposes the application made by the Guardian in its entirety. He does not agree to paternity testing for the children and he does not agree to provide a DNA sample in any form.

[X] believes that he is the father of all the children and the children believe he is their father. He does not therefore believe that a paternity test is required.”

He appears to be saying that he knows best.

The situation is an odd one. More usually a refusal accompanies a denial of paternity. In such a case the court may readily draw an adverse inference: see Re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463. But what is the court to do if, as here, the refusal accompanies an assertion of paternity? That is a matter which I do not have to decide and, not least because it could arise later in this litigation, it is better that I say nothing about it.

As the President outlined, there are some competing interests here – the child’s right to know who their real parents are, X’s right to keep his medical and genetic material confidential, the balance between material obtained for criminal proceedings and for care proceedings, and lastly, what PACE (Police and Criminal Evidence Act 1984) has to say about DNA samples and how they can and cannot be used after being provided to the police.

The legal framework

The issue I have to determine, which is important and thus far unresolved, lies at a number of intersections. First, there is the intersection between the conflicting rights and interests of X and of the children. Secondly, there is the intersection between the conflicting rights and interests of X and of the public authorities responsible for his arrest and prosecution. Thirdly, there is the consequential intersection between the family justice system and the criminal justice system. And, fourthly, there is, as we shall see, the intersection between Part II and Part V of the Police and Criminal Evidence Act 1984 as amended (PACE). If it is the last of these which is ultimately determinative of the question I have to decide it is necessary first to consider the others.

It is convenient to start with the rights and interests of the children. They have a right (I put the matter descriptively rather than definitively) to know who their father is. That has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W [1972] AC 24, 57, 59, Lord Hodson said that:

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth … it must surely be in the best interests of the child in most cases that paternity doubts should be resolved on the best evidence, and, as in adoption, the child should be told the truth as soon as possible.”

In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ said, apropos paternity:

“every child has a right to know the truth unless his welfare clearly justifies the cover-up.”

It is recognised in Strasbourg law as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, Mikulic v Croatia (2002) 11 BHRC 689, [2002] 1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.

From the children’s perspective their interests are best served by the ascertainment of the truth, whatever that truth may be. As I said in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, para 13(vii):

“the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out.”

X, on the other hand has the right (again I put the matter descriptively rather than definitively) to keep his medical and genetic data confidential. That has long been recognised in our domestic law. It is also recognised in Strasbourg law as an ingredient of the rights protected by Article 8, indeed, a “vital principle” of “fundamental importance”: see Z v Finland (1998) 25 EHRR 371, para 95, and MS v Sweden (1999) 28 EHRR 313, para 41. Moreover, if there is to be disclosure of such data which entails an interference with the right to respect for private life, then that interference will be justified only if there are what in Z v Finland, para 103, the Court referred to as “effective and adequate safeguards against abuse”. What those safeguards should be will, no doubt, depend upon the particular circumstances.

In the specific context of DNA samples and profiles the Strasbourg Court emphasised in S and Marper v United Kingdom (2008) 48 EHRR 50 paras 70-75, the highly personal nature of such material, the sensitivity of the substantial amounts of unique personal data contained in such material, and the possibility, bearing in mind the rapid pace of developments in the field of genetics and information technology, that genetic information might in future be deployed in novel ways or in a manner which cannot be anticipated with precision today. The Court described DNA material as being among the special categories of sensitive data attracting a heightened level of protection.

In domestic law the balance between these various interests is struck in different ways. Where paternity is in issue in a family court, the balance is defined by Part III of the Family Law Reform Act 1969, a statutory scheme which abrogates any power to direct the taking of a sample under the inherent jurisdiction: In re O (A Minor) (Blood Tests: Constraint), In re J (A Minor) [2000] Fam 139, 151. Unless he is himself a child, the father cannot be compelled to provide a DNA sample: see section 21(1). The only remedy for such a refusal is provided by section 23(1), which enables the court to “draw such inferences, if any, from that fact as appear proper in the circumstances.” It is X’s refusal to give his consent in accordance with section 21(1) that has given rise to the present application.

It is clear from the illuminating account of the history set out by Ward LJ in In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 98-101, that the policy underlying Part III of the 1969 Act had little if anything to do with the protection of personal medical data (let alone with DNA, the unforeseen forensic use of which in 1969 still lay in an unimagined future). Rather the policy derived from the undoubted fact that, at common law, the process of taking a blood sample without consent involves an attack on the integrity of the individual’s body – an assault – and the view of the Law Commission in its 1968 Report on Blood Tests and the Proof of Paternity in Civil Proceedings that it would not be acceptable to public opinion in general or to the medical profession in particular to exert physical compulsion in order to obtain blood samples.

In the context of the criminal justice system the balance is struck very differently. Part V of PACE enables DNA samples to be taken in certain circumstances without consent but provides stringent safeguards in relation to their use. Specifically, Part V prohibits use of such samples except as specifically permitted by Part V. I shall return to the relevant provisions of PACE below.

Where Part V of PACE prevents the use of a DNA sample in circumstances where the Family Court would wish to have access to that sample, or information derived from it, in a case where paternity is in issue, PACE trumps the needs of the Family Court. Neither the Family Court, nor the High Court in exercise of its inherent jurisdiction, can order the release or use of DNA material in circumstances prohibited by PACE: see Lambeth London Borough v S, C, V and J (by his Guardian) [2006] EWHC 326 (Fam), [2007] 1 FLR 152, and Lewisham London Borough Council v D (Police Disclosure of DNA sample to local authority) [2010] EWHC 1239 (Fam), [2011] 1 FLR 908.

{My goodness, we have finally found a problem that the inherent jurisdiction can’t solve – remember the regular claim that inherent jurisdiction is a power that has no theoretical limit. Well here’s one. If Part V of PACE says no to something, the inherent jurisdiction has to slink off with its tail between its legs}

We also get into the Human Tissue Act 2004, which makes it an offence to use DNA samples without lawful authority.

What specifically was the President being asked to authorise?

The facts

The facts that bear on the issues I have to decide are very shortly stated. X murdered the children’s mother. In the course of his attack he wounded her. Evidence at X’s criminal trial referred to the mother’s wound as “bleeding”. There was also evidence that X had cut his wrists, which were also bleeding, with a knife. Various samples of blood were taken from the crime scene and submitted for analysis. A sample of blood from the knife was also analysed. A sample of the mother’s blood was obtained during the post mortem examination of her body and analysed. A comparison of the various samples showed that two of the samples taken from the crime scene matched the mother’s DNA profile. The remaining samples from the crime scene did not match the mother’s DNA profile and were therefore each from a person other than the mother.

The order sought

The application before me is by the children’s guardian, whose stance is supported by the local authority but opposed by X. It is also opposed by the two interveners, the Metropolitan Police and the Secretary of State for the Home Department.

The relief sought by the guardian has been refined during the course of the hearing. In its final form, what is sought is an order that:

“1 The Commissioner for the Metropolitan Police shall provide to the … Local Authority a photocopy/scanned copy of the DNA profiles for each and every individual whose blood was found at the crime scene of the murder of [the mother] and a photocopy/scanned copy of the DNA profile in respect of the blood taken at [her] post mortem … (“copies”) provided that any copies in relation to an individual other than [the mother] shall remain anonymous.

2 The copies obtained by virtue of paragraph 1 above may be used for the purposes of (a) comparing the respective DNA profiles with one another and reaching any appropriate conclusions, (b) comparing the respective DNA profiles with the DNA profiles of each of the … children and reaching any appropriate conclusions and (c) reaching a conclusion as to whether any of the DNA profiles, and if so which, is of a person who is related to any of the … children and of demonstrating the nature of that relationship. Upon receipt by the Local Authority the copies shall only be used for these purposes and shall be returned to the Commissioner at the end of the appeal period from the substantive hearing, or if an appeal is instituted, at the date of determination of any appeal.”

It is important to be clear as to what is not being sought. I am not being asked to direct the disclosure of any DNA sample (only DNA profiles); any exhibit or original DNA profile (only copies or scans); any DNA profile derived from a DNA sample which a person has provided on a voluntary basis; any DNA profile derived from a DNA sample taken from a person under some statutory provision or power; or, except in the case of the mother, the DNA profile of any identified person. Nor am I being asked to direct the disclosure of any DNA profile with a view to proving that a man who denies paternity is a father (for X asserts that he is the father). It is also important to note the proposed safeguards. I am not being asked to direct the disclosure, use or retention of any DNA profile for any purpose beyond that defined in the order.

I emphasise the fact that I am not being asked to direct the production of any exhibit or the original of any profile. The Metropolitan Police is, understandably and appropriately, concerned that there should be no risk by contamination or otherwise to the integrity of any of the exhibits from the criminal proceedings or any of the original profiles. To understand the importance of preserving the integrity of such materials, against some future day when they may need to be put to some at present unforeseen and even unforeseeable use, one has to look no further than the eventual resolution in 2002, by the DNA testing of the original trial exhibits, of the question of whether or not the man who had been executed in 1962 for having committed the A6 murder was in act guilty: R v Hanratty [2002] EWCA Crim 1141, [2002] 3 All ER 534.

Okay, this is very clever and elegant. It would be unlawful to take a DNA sample provided by X in criminal proceedings and make use of it in care proceedings (and the inherent jurisdiction would be helpless). But, what the family Court can do is ask for the police to provide details of the DNA found at the crime scene, in the blood present at the scene which was not that of the victim. We know, to the criminal standard of proof that the DNA samples of the blood at the scene will be the victim’s and the person convicted of the offence (namely X), because if there was some other unexplained person’s blood at the scene, X wouldn’t have been convicted.

So we know that the crime-scene DNA is going to be a match to X’s DNA, although it is NOT a sample that he provided which would be covered by Part V of PACE. If you test the children’s DNA and look at the crime scene DNA profile, and the result says that the crime-scene DNA is unrelated to the children, then by inference you are sure that X is not the father, and vice versa.

That’s so clever that if they do another series of Silk they should use it as a plotline.

But, clever as it is, does it stack up, or is it a breach of Part V of PACE or the Human Tissues Act?

The issues

There are three issues. First, does what is proposed offend section 45 of the Human Tissue Act 2004? Second, is what is proposed prohibited by Part V, specifically section 63T, of PACE? Third, if not, what order should I make?

The issues: section 45 of the Human Tissue Act 2004

It is common ground, and in my judgment correctly so, that what is sought does not offend section 45, essentially because what is proposed to be done does not satisfy the criteria in section 45(1)(a). Ms Samantha Broadfoot, on behalf of the Secretary of State, suggests that section 45 is nonetheless relevant for two reasons.

First, because she says it demonstrates the clear intention of Parliament that a person should not be subject to having his or her DNA analysed except where either (i) the material held is “excepted material” under section 45(2) or (ii) it is to be used for an “excepted purpose” in accordance with section 45(1)(a)(ii). The establishment of paternity, as she correctly observes, is not an “excepted purpose”. To that, the short answer in my judgment is that what matters is what Parliament effected by the language it chose to use. Ms Broadfoot accepts, as she has to, that section 45 is not directly applicable to what is proposed in the present case.

Secondly, she says, but for the happenstance of the existence of DNA profiles deriving from crime scene samples, the only way to obtain the information sought by the guardian would be by obtaining and handing over X’s DNA profiles without his consent, something not permitted either by PACE or by the Family Law Reform Act 1969. That no doubt is so, but, putting the point robustly, so what. Either section 45 applies or it does not, and here it does not.

I shall return to these points when considering, if it arises, the question of how I should exercise any discretionary power I may have.

[I am keen to be able to use this ‘putting the point robustly, so what’ line of argument in due course, and when a Judge pulls me up on my use of language to simply smile and say that I am borrowing from the President]

The issues: section 63T of PACE

Mr Roger McCarthy QC on behalf of the guardian submits that the answer on this point is clear. Neither the samples taken from the crime scene nor the samples taken post mortem from the mother’s body were “taken from a person under any power conferred by this Part of this Act”. Nor were they “taken by the police, with the consent of the person from whom they were taken”. So section 63T has no application, whether in relation to the samples themselves or in relation to the DNA profiles derived from them. The samples taken from the crime scene were seized in accordance with the powers conferred by section 19, which is in Part II of PACE, not Part V. Moreover, no consent was either required or given to the taking of the crime scene samples. So far as concerns the post mortem samples, they were not taken under any power conferred by Part V of PACE, they were not taken with the mother’s consent – no such consent was required – and they were in fact not taken from a “person” within the meaning of that word as it is used in the relevant provisions in Part V, because, as Mr McCarthy points out, the normal and ordinary meaning of the word “person” is a living person: R v Newham London Borough Council ex p Dada [1996] QB 507.

I add, for the avoidance of doubt, that Mr McCarthy accepts, as in my judgment he has to, that if and to the extent that any of the materials he seeks are caught by Part V of PACE, this would be an absolute bar to the relief he seeks.

Ms Broadfoot submits that a DNA sample or profile derived from a crime scene sample seized under Part II of PACE which has been matched to a DNA sample or profile taken under Part V of PACE may not be ordered to be disclosed for paternity purposes because the disclosure of the Part II sample would, as she puts it, involve the collateral (and prohibited) use of the Part V sample, in breach of section 63T. I agree with the proposition and the conclusion but it rests on an unspoken assumption which is at odds with what is sought in this case.

Ms Broadfoot says that crime scene samples and the profiles derived from them are of limited use on their own as they cannot identify any particular person. DNA, she says, only becomes significant for identification purposes once compared with that of a known person. She amplifies the point by postulating a case where samples at a crime scene produce 15 different DNA profiles. After 14 persons have been eliminated from the inquiry, the remaining man is convicted. A paternity issue arises and the guardian seeks the DNA profile from the crime scene relating to the convicted man. The only way, she says, the police can identify his DNA profile from the other 14 is by matching it to the Part V sample. This involves a use of the Part V sample (see section 63A(1)), which is not permitted for paternity purposes.

The short answer to all this, as Mr McCarthy points out, is that, whatever might be needed in another case, there is no need in this case to compare anything with a Part V sample, and that is not what he is proposing.

Evidence, entirely independent of any samples or DNA profiles, demonstrates that the blood at the crime scene in all probability includes both the mother’s blood and X’s blood. The unidentified DNA profiles obtained from those samples can, without reference to any other samples (whether obtained under Part V of PACE or, post mortem, from the mother’s body), be compared with the DNA samples obtained, pursuant to the order already made by Hogg J, from the children. If those unidentified DNA profiles identify two persons as being parents of the children, then that will, without more, establish X’s paternity. If those unidentified DNA profiles identify one person as being a parent of the children, then it will be necessary to compare the relevant profile with that obtained from the mother’s post mortem sample to establish whether it is hers or, by elimination, X’s.

Mr McCarthy submits that Ms Broadfoot’s submissions entirely miss the point of this application, which makes no reference to and is not in any way dependent upon any Part V sample. As he says, none of the examples given by Ms Broadfoot have anything to do with the factual basis upon which the guardian’s application is mounted. With brutal simplicity, he summarises his case as follows: The guardian’s case is simple. No reference is made to any Part V samples; no reference is made to any comparison with any Part V sample; no disclosure is sought of any Part V sample (or, I might add, anything derived from a Part V sample). Section 63T, he submits, does not apply.

I agree with Mr McCarthy.

Ms Tina Cook QC on behalf of the police seeks to avoid these difficulties by submitting that section 22(2) of PACE provides what she calls clear guidance as to what articles “seized” in accordance with section 19 can be retained for, and this, she says, does not include allowing others to use DNA samples or DNA profiles. It would, she suggests, be bizarre if such samples could be disclosed for a purpose not provided for by the retention provisions.

The short answer to this, in my judgment, is two-fold. In the first place, the relevant materials have in fact been retained and, moreover, in circumstances where it is impossible to suggest that such retention has been improper, let alone unlawful. Secondly, the particular purposes specified in section 22(2) are explicitly said to be “without prejudice to the generality” of section 22(1), which permits retention “so long as is necessary in all the circumstances”.

In my judgment there is nothing in Part II of PACE or Part V of PACE to prevent my making the order Mr McCarthy seeks.

I don’t know the President personally, and have only come to know him through his judgments, but at this point, given that he has established that there is a very very clever and cunning and unique legal mechanism that can be used to achieve an outcome, I would bet most of my internal organs that he is about to go on and decide to exercise his discretion to use said mechanism.

The issues: a balancing exercise

Having got thus far in the analysis, the starting point is clear. There is no insuperable statutory obstacle to the order the guardian seeks. Nor is there any public policy or other insuperable obstacle created by the mere fact that the material sought is in the hands of the police: Marcel and others v Commissioner of Police of the Metropolis and others [1992] Ch 225. There is, therefore, no absolute bar. The exercise is accordingly the familiar one of balancing the various competing interests, both public and private.

I start with the obvious and compelling point that DNA, and the information derived from it, demands a high degree of protection and that any use of it without the subject’s consent requires the imposition of robust and effective safeguards. The decision of the Grand Chamber in Marper is eloquent on the point, and not just in the passages to which I have drawn specific attention. And I readily accept the point made by Ms Cook and Ms Broadfoot of how important it is that public confidence in the system for taking, storing and using DNA samples and profiles is maintained.

Ms Broadfoot identifies the following factors which, she submits, in the circumstances of the present case argue against my making the order Mr McCarthy seeks:

i) First, she says that disclosure here would undermine the integrity of the national DNA database. There is, for the reasons I have already explained, no question of any damage to the integrity of the information on the database. Her concern is with the potential loss of confidence if the public came to believe that samples provided for one purpose could be used for wholly different purpose, thus seriously undermining the ability to detect crime. Individuals might no longer be prepared to come forward. Part of the response to public concerns about the database is to ensure that it is kept confidential and seen to operate in the least invasive manner possible. This entails, she says, that the data is retained securely and that there are strictly observed limits as to who may use the data and for what purposes.

ii) Secondly, she submits that, as a matter of principle, information gathered and retained for one purpose (the detection and prevention of crime) should not be permitted to be used for a different purpose (proving paternity) absent express statutory provision to that effect. Any widening of those purposes should result only from the operation of the democratic processes.

iii) Thirdly, she submits that it is “highly significant” that the exceptions to what she calls the “blanket ban” in section 45 of the Human Tissue Act 2004 do not include testing for paternity purposes.

iv) Finally, she makes a ‘floodgates’ point, suggesting that success in this application would pave the way for “many” such further orders in a “range” of cases. She points to what she says is the “breadth” of the guardian’s submissions and suggests that it is very difficult to articulate a coherent set of principles which would govern the circumstances in which discretion should be exercised so that it is confined to a very limited pool of cases.

I see the force of all this, but these concerns have to be seen in context. The fact is that nothing which is here proposed offends any statutory prohibition and in that situation the principle in Marcel is significant. The fact is that I am not being asked to do anything with material provided voluntarily by anyone. The fact is that the order which Mr McCarthy seeks is very narrowly drawn and includes very clear limitations and safeguards. The fact is that granting the order in this very unusual case – unusual not because of the horrific circumstances of the mother’s murder but because no recourse of any kind is needed or sought to any Part V material – is not of itself going to open the floodgates. As Mr McCarthy says, it is almost impossible to see how anything more than a very small number of cases could result from an order of the kind sought in the circumstances of this case. The reality, as it seems to me, is that the floodgates argument here is an argument against ever making an order in any case, even where statute is not determinative.

Moreover, there are powerful countervailing arguments. In the first place there are the interests of the children, to which both the guardian and the local authority draw attention and which, they say, should be preferred in the circumstances. In addition to all the usual arguments based on a child’s right to know their paternity, one cannot ignore the enormous implications for these children of what happened to their mother. Their futures will be indelibly marked by it. They need to know if the man who murdered their mother, the man who they believe to be their father, is in truth their father. As Mr Matthew Stott on behalf of the local authority points out, because X is not named on their birth certificates, the local authority has at present sole parental responsibility for the children. Moreover, as he also points out, Hogg J has already, in making orders under section 21 of the Family Law Reform Act 1969, determined that it is in the interests of the children that the truth, whatever it may be, should out. I agree with Mr Stott that the material being sought is vitally important for the ongoing care planning for the children. I agree with him that in light of the circumstances of their mother’s death it is fundamentally important for the children to have the opportunity to understand their family history and ascertain their familial identity. It will, as he says, have an enormous impact on their emotional welfare, now and into the future. As Mr McCarthy asks rhetorically, how can the children’s life story work start, how can therapy or counselling be arranged, how is the children’s psychological integrity to be preserved, if the paternity issue is not resolved?

In these circumstances the balance, in my judgment, comes down in favour of the children. The criminal justice policy arguments are weighty, though in the circumstances of this case significantly less weighty than Ms Broadfoot would have me accept. The interests of the children are compelling. There are likely to be few other cases in which an order can sensibly be sought without having recourse – prohibited – to Part V material or material the use of which is prohibited by the Human Tissue Act 2004. The order I propose to make will be subject to stringent limitations and safeguards.

I emphasise that my decision is confined to the forensically unusual circumstances of this particular case. Every case where an application is made for access to DNA samples or profiles requires the most anxious scrutiny and an intense focus on the specific facts and circumstances of the particular case. Even if there is no statutory prohibition of what is sought, an order is never to be had just for the asking. There will be cases where the policy arguments put forward by Ms Broadfoot will be found to weigh heavier in the balance than I have found in this case – a case which is not merely forensically unusual as requiring no recourse to Part V material but one where the children’s claims are unusually compelling.

As the President points out, the issue will probably never come up again (much like our recent fun case about whether diplomatic immunity for personal affairs applies after death in office) but it makes the case particularly recherche for law buffs.

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Posted in case law and tagged dna paternity test, dna sample, human tissue act, part v pace, paternity test, president, re z (children) 2014. Bookmark the permalink.

Reporting restriction orders – a pragmatic suggestion

Posted on June 23, 2014 by suesspiciousminds

London Borough of Waltham Forest and AD 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1985.html

This was an application by Waltham Forest for a Reporting Restriction Order to prevent the Press from naming a 3 year old child who had been present when her father murdered her mother. There’s evidently a criminal trial coming up, and there’s a substantial human interest story in the tragic circumstances of this little girl. The Press were always going to run the story – the issue for Waltham Forest was whether the Press should run that story WITHOUT identifying the child.

Miss Howard, in her submissions, also refers to the expert reports provided by Dr. Jones, a consultant psychiatrist and Dr. Graham, a psychologist, in the public law care proceedings. They have both examined and assessed EI. They, understandably, set out the dreadful emotional and psychological impact that witnessing the death of her mother will have on EI, compounded by this tragic loss of her mother and, if her father is convicted, the loss of her father for a considerable period of time. Their assessments are deeply troubling to read as to the future that EI now faces. Everybody will undoubtedly have the greatest possible sympathy for the terrible position that EI finds herself in now and will undoubtedly do for the rest of her life. I note that neither of those experts have been asked to give an opinion on what potential further damage, if any, publicity about EI and her mother and father would have upon her.

In the submissions on behalf of the local authority it is asserted that if EI is identified as being the child involved in this case, it will have an adverse impact on her. It is asserted that it would thwart the therapeutic process that she is engaged in now and will continue to be involved with for some time to come. It is asserted that although the reporting of the father’s trial may be of short duration – a matter of a few days or a week – anything which appears on the internet will be there for the rest of EI’s life and that were she, when she is older, to come across her name in association with her mother’s death and her father’s trial, it may have an adverse impact upon her. It is further asserted that if, in her daily life – when she starts school, for example – friends or others were to search her name on the internet, they would raise her family history with her and that would undo the benefits of the therapy that she has received and will receive. Accordingly, it is submitted that it is necessary for the court to grant a reporting restriction order in narrow terms that would prevent the publication of EI’s name.

The Press Association took a slightly different view

Mr. Dodd makes the submission that the matter has already been the subject of press reporting. However, he makes the powerful point that the evidence of harm to EI, if she is named, is speculative. He also makes the strong submission that the question is not, “Why should the press name EI?” but rather, “Why may the press not name EI?” He further submits that the issue of the use of EI’s name in connection with the reporting of the father’s criminal trial and the death of the mother is a matter to be left to the decisions of individual editors. He also makes the powerful point that just because some elements of the press or broadcast media, or others, may misuse the naming of EI is not a justification or a reason for injuncting the whole of the press.

Lord Rodger of Earlsferry observed in Re Guardian News & Media Ltd. & Ors. at paragraph 72,

“Of course, allowing the press to identify M and the other appellants would not be risk-free. It is conceivable that some of the press coverage might be outrageously hostile to M and the other appellants – even though nothing particularly significant appears to have been published when Mr al-Ghabra’s identity was revealed. But the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press … The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation”.

In considering the competing Articles – Article 10 and Article 8 – and in considering the merits of the application made by the local authority one of course has the greatest possible sympathy for EI. She very sadly will have to live with the tragic events of 31 July, 2013 for the rest of her life. The decision I have to make, however, is whether there is sufficient evidence of harm to EI if she is named, which when balanced against the freedom of expression under Article 10 of the press & broadcast media, it is an absolute necessity for me to make the reporting restrictions order sought. Mr. Dodd tells me, and I accept, that some newspaper editors have already made the decision that they will not name EI in any reporting of the father’s criminal trial.

They put the question very powerfully, and in the correct way in law – the question is not “Why should the Press name EL?” but “why should the Press not name EL?”

The Judge was not persuaded that the article 8 right to privacy for the child outweighed the article 10 right to free expression and declined to make the Reporting Restriction Order.

I accept that EI faces, emotionally and psychologically, a very difficult future. I accept that there is a possibility that if she is named in either the press or the broadcast media – in particular, on the internet – that at some future date she may come across that and it may cause her some distress or other people with whom she is associated may come across it and mention it to her. That, I accept, may cause her some distress.

However, I am not satisfied that there is clear or cogent evidence that that risk would either thwart the therapy that she is receiving or would undoubtedly undo the benefits she may derive from her therapy. I consider the potential risks of further harm to EI, if she is named in connection with the reporting of her father’s trial, to be speculative and speculation. Even if I am wrong about that, the risks of further additional harm to EI do not overcome the high hurdle that is required for the granting of a reporting restrictions order. If one was solely concerned with the welfare best interests of EI it may well be that the court would want to take the course of least harm to EI and, accordingly, would make an order. That is not the position the court is in. The court is having to balance the Article 8 rights of EI with the Article 10 rights of the press and broadcast media. I am not satisfied that the naming of EI and the risks of that to her are so clear or compelling that it justifies placing a restriction upon the press and broadcast media in the manner in which they report the father’s trial. It is submitted on behalf of the local authority that this case is very different from other reported cases because the child was present when her mother was killed. I accept that is an extremely unusual feature. But, I also have to accept that that feature is one which will be, I have no doubt, of considerable interest to the press and broadcast media and to their readers, viewers and listeners.

The more important issue is the Judge’s pragmatic suggestion for Local Authorities in this sort of situation in future (no doubt with an eye to the costs to the public purse and the time pressures on the Courts)

Mr Dodd (for the Press Association) submits that applications for reporting restriction orders by local authorities are increasingly being made at considerable cost in time and money. I endorse his submissions that local authorities, in particular, ought to give very careful thought to alternative means of achieving the aim that they seek when they apply for a reporting restriction order – namely, local authorities should, in future, consider writing to editors of the press and broadcast media, inviting them, for example, not to name a particular child or children in connection with a particular story and setting out clearly, within that letter or e-mail, the reasons in support of such a request. That, alternatively, could be done by sending a letter or an e-mail to what is now the Press Complaints Commission, which will be replaced by the Independent Press Standards Organisation, who may then be requested to transmit the letter or e-mail more widely to the press and broadcast media. In my judgment, that is a course which local authorities should first consider and should first make before launching applications for reporting restriction orders.

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Posted in case law, transparency and tagged keeehan j, keehan j's advice on reporting restriction orders, london borough of waltham forest and el 2014, reporting restriction orders, waltham forest. Bookmark the permalink.

World cup – Game of Thrones style

Posted on June 12, 2014 by suesspiciousminds

(apologies to anyone who does not follow either football or Game of Thrones – the clue that this one may not be for you is in the title. No-Telly Neville, you won’t get any of this, sorry)

With the World Cup looming, it is time to consider how the major Westeros sides are likely to do in the tournament, based on form, tactics, personnel and management style in our exclusive Betting Guide

Team Targaryean – hopes were high for one of the pre-tournament favourites – they have solidity at the back with one of the all time great defenders Barristan Selmy, the workman-like Sir Friendzone of Mormont, youth with Gray Worm, three fiery attackers and the man with “All the Flair and Too Much Hair” Daario. They also have a manager that the team will follow to the ends of the earth. What could go wrong? Well, whilst all of the other teams set up training camps in Miami or Brazil, Daenerys instead chose to base her team in Morocco, and so far has shown no signs of ever bloody booking a plane to Brazil where all the action is. When we interviewed her, suggesting that the World Cup was there for the taking and all she had to do was cross the narrow sea to get there, Daenerys instead set her sights on being in Algeria for the foreseeable future. Save your money and back someone else. 1/15 if they actually turn up 250/1 on the basis that they don’t seem to have a transport plan to get them to the action

Team Black Watch – resolute defenders, certainly. Their defensive wall is second to none, and even the most creative free-kick taker is going to struggle to get the ball over a four hundred foot wall of ice and get it up and down fast enough to beat the keeper. There have long been concerns about whether they have any attacking presence, and our sources suggest that although they claim to have a World Cup squad of 100,000 players it might actually be about seven, one of whom is blind and about 160 years old and another is very fat. Talk is also that the manager, John Snow, knows nothing. They might get out of the group, but no further. 14/1

Team Stark – sigh. Such a promising team, ripped apart by injury – and in the case of their last two captains simply ripped apart. Rickon seems to just go missing, Bran wanders about aimlessly. Arya is a deadly finisher and Sansa might be turning into a genuine player. If you MUST have a flutter on Team Stark, it should be for their former jinky winger Bran scoring with a Hodor. (sorry) 28/1

Team Oberyn Martell – charismatic Latin flair, everyone’s favourite dark horse. All the power, all the knowhow, all the tactics. However, some of us got badly burned backing him in the last semi-final, where he dominated Brazil for ninety minutes whilst never actually scoring a goal and then spent the entireity of injury time doing keepie-uppies and Cruyff turns in his own six yard box. 9/1

Team Lannister – the current holders of the trophy, rumours persist that they bought the previous three World Cups that they won (as though there could ever be financial corruption in a World Cup). They have had their own injury worries, with their star goalkeeper Jaime losing a hand. We have had Goldenballs at a World Cup before, now this is Golden-Hand. Most people’s favourite player Tyrion, with his low centre of gravity and quick wits gives them a chance. Their manager Tywin is said to be a strict disciplinarian (other than when it comes to members of his team sleeping together). Joffrey, their captain, who often plays a sweeper role hiding behind the back of his mother Cersei is another doubt – he is said to have a bad cough at the moment. Fans of the WAGS (and the TV cameras) will be hoping that doesn’t shut Margaery out of the tournament. 7/4 favourites

Team Stannis – dour, hard to beat, hard to break down. What they really need is a bit of magic. 9/1

Team Hound – we interviewed the Hound and his comments were “F**k the World Cup” – when we pressed and said that plenty of people like the World Cup, he said “Yes, plenty of C***s” – it is not entirely clear whether he is even intending to turn up. We don’t advise risking your hard earned cash on a flutter

Team Theon – all the talk is that this team has lost something in the tackle department. 90/1

Team Littlefinger – most fans did not even realise that Littlefinger was playing in this tournament. Many of them didn’t even realise he had a team. An outside bet, but he certainly plays that Andrea Pirlo role, pulling all the strings and making everything happen. The odds are against him, but frankly worth a punt. 180/1

Team White Walkers – terrifying presence, have the ability to take the players from the opposing side and make them play for Team White Walkers, virtually unstoppable – ice-cold blood in their veins, which would be useful if it goes to penalties. The one question mark is their absolute lack of pace – they seem to have made no forward progress in the last four seasons. 19/1

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Interim care order appeal (unsuccessful)

Posted on June 11, 2014 by suesspiciousminds

This is our dear old friend section 37 again, and also a regular topic on these blogs – the bringing of allegations that aren’t proven and the consquences for the person bringing the allegation.

Re W (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/772.html

In this case, private law proceedings were taking place between the two parents about where the child (an 8 year old girl) should live and how much time she should spend with each parent. As part of those proceedings, very serious allegations of sexual abuse were made against the father

[I note, and think it is probably more important than the Court of Appeal treated it, that the Court had previously made findings that the paternal grandfather had sexually abused the child – that sort of thing would probably make any parent hyper-sensitive and vigilant, and also possibly means that the child might act out in a sexualised way as a result of the established sexual abuse which might lead a mother to mistakenly but genuinely think the father had done something. I don’t say that this explains and excuses everything, but it is quite an important bit of context]

At the finding of fact hearing, the Judge found that none of the mother’s allegations were true, and went on to make an Interim Care Order removing the child from mother’s care – although no public law application by Social Services had been made, the Judge using the power under section 37 of the Children Act 1989 to make an Interim Care Order in the absence of an application (albeit for a maximum of 8 weeks, rather than for whatever duration the Court sees fit as with the new public law regime)

On that day the judge concluded at [246] to [260] of his judgment that all of the allegations that the mother had made against the father were false including, in particular, that he had ever behaved in a sexually inappropriate way towards his daughter. The judge set out his conclusions in considerable detail. The conclusions that were reasoned in the previous 245 paragraphs. He held that the mother:

(i) had wrongly suggested that the child did not want to see her father, and was frightened by him;

(ii) had knowingly sought to prevent the child from having a relationship with her father by putting pressure on her about seeing him, and by putting obstacles in the way of contact;

(iii) had deliberately and wrongly sought to exclude father from school events and being involved in the child’s life;

(iv) believed that the father was involved in the child’s abuse in London (i.e. the abuse perpetrated by the paternal grandfather), and had informed others of her belief;

(v) misled the court by saying that it was the child rather than herself who struggled with the grandfather’s abuse;

(vi) deliberately put the worst interpretation on events to place obstacles in the way of the father’s contact;

(vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother’s behest despite being a daughter who delights in seeing her father);

(viii) had told the child about alleged domestic violence on the parties’ separation to influence the child against her father and to cause her to make similar allegations;

(ix) is out of control, believing her own propaganda and convincing the child of it: creating a situation that is deeply concerning – the child was and is subject to influences which she should not be;

(x) is worryingly obsessed by the abuse of the child by her paternal grandfather to the extent that she had unfairly taken an adverse view of the father and worked against his contact at every opportunity, save when she could police it herself. Her reluctance to let him develop a natural relationship with his daughter was plain for all to see; and

(xi) had encouraged the child to have an unhealthy attitude towards her father, to make untrue allegations, to know more about sexual matters and about the case than was good for her with the consequence that her emotional and psychological progress had been damaged.

The judge concluded that the child could not remain living with her mother before the case was finalised because of the mother’s behaviour, in particular her involvement of the child, and her unjustified convictions, in particular that the father was dangerous and presented a risk of sexual abuse. The judge concluded that the child had suffered significant emotional harm in her mother’s care within the meaning of section 38 CA 1989 and that her psychological safety required her immediate removal from that care.

The mother appealed this.

The Court of Appeal rejected it. They considered firstly that the Judge had applied the correct test in law

Turning then to the implications of the findings of fact that the judge made. It should be noted that it is no part of this appeal that the judge applied an inappropriate test to the question of removal. That test was set out in Re LA (Care: Chronic Neglect) [2010 ] 1 FLR 80 at [7] by Thorpe LJ:

13. “separation is only to be ordered if the child’s safety demands immediate separation […] at an interim stage the removal of children from their parents is not to be sanctioned unless the child’s safety requires interim protection”

Safety is given a broad construction and includes the child’s emotional and psychological welfare (see, for example, Re B (Care Proceedings: Interim Care Order) [2010] 1 FLR 1211 at [56]).

That test is usually seen in connection with an application by a Local Authority to remove a child under an Interim Care Order, but exactly the same principle and legal test extends to a Judge making an Interim Care Order and his own care plan of removal [The more difficult issue of how a Judge doing this is becoming both the applicant and the tribunal is something that doesn’t get raised – to me, it is a significant problem, but the Court of Appeal when dealing with other section 37 appeals haven’t ever felt it was problematic]

The next issue was whether the Judge had properly applied the facts of the case to that test, when deciding that the test was met – and specifically whether the Judge had failed to look at whether removal was proportionate and what other options were available that would have been less interventionist.

The question is whether the test was wrongly applied to the facts. The judge rejected the mother’s allegations that the father had been involved in or was aware of the sexual abuse of the grandfather or had himself acted in a sexually inappropriate manner. The judge made extensive findings about the inappropriate conduct of the mother which I have summarised by using the analysis that the judge himself constructed at the end of his judgment. The mother’s conduct, even if explicable as a consequence of a psychological or behavioural condition, was inexcusable and highly damaging to the child. The judge’s finding that the mother was “bent on manipulation and encouraging false allegations” was a finding of huge adverse significance in relation to her capability to care for her child. The child had been encouraged by the mother to make allegations against her father despite the child’s own delight in seeing her father in the process of which she had obtained an unhealthy knowledge of sexual issues. On any basis, the risk of further significant harm to the child had to be addressed by the court. Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.

Given that context, the judge was required to consider his child protection duties and powers. The only question that realistically arises on this appeal is whether he exercised them proportionately. There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order. The test for removal was clearly satisfied on the facts as found and that only leaves the question of whether there was a less draconian, i.e. more proportionate order that the judge could and should have considered.

I ask the question rhetorically: given the court’s findings, how could the judge leave the child with the mother? No level of sufficient support and necessary protection was described by anyone. To leave the child without protection would have been unconscionable. One has only to consider physical abuse to a child that gives rise to a similar index of harm to understand that such a position was untenable. The submission made on behalf of the mother that her care of the child had in all (other) respects been good or even better than good simply misses the point. More than that level of care was needed to protect this child from her own mother. Each of the alternative orders described to this court would have left the child in that care without any better ability to protect the child than there had been hitherto. The situation might have been different if there could have been effective policing of that care in the interim and before other assessments were conducted but that was not an option addressed to the judge or to this court. I bear in mind that the family court sometimes hears cogent evidence of particular harm that may be caused on the removal of a child from the care of a parent which the court must consider and balance in the welfare analysis and proportionality evaluation, but that was not this case.

The distress that had been engendered in the child, as advised by the children’s guardian, sadly made an immediate move to the father impossible. No other relative was immediately available without assessment of the position that relative would take in the highly antagonistic and dysfunctional family relationships that existed (for example, to consider the effect on the maternal family of the mother’s discussions with them that the father was a paedophile). That included the mother’s sister who is now being assessed by the local authority. The only realistic option that remained in this case was the neutral position of short term foster care.

The judge described his decision as proportionate at [264] and in accordance with the child’s welfare having regard to the ‘welfare checklist’ in section 1(3) CA 1989. He specifically envisaged a short period of respite care while the local authority explored the possibility of placing the child with her father and/or the obtaining of therapeutic assistance for the mother. Given the need for an assessment of the child’s aunt (who has not challenged the interim conclusion of the judge), there was no immediately available realistic option for the court other than removal.

Leading counsel for the father has taken the court through the judgment, identifying the specific points at which the judge came to value judgments about the welfare factors in section 1(3) CA 1989 based on the facts that he found. None of those conclusions is seriously challenged in this appeal and it is not necessary for this court to set them out seriatim. The judge analysed his conclusions by reference to more than 40 written submissions made by the mother. The judge did not specifically address the child’s wishes and feelings in his analysis but he had set out in detail what it was that the child had been influenced to say. It is hardly surprising that there was little more that he could add given the context in which he had to make his decision. It may well have been harmful to ask the child anything else at that stage. Likewise, the judge made ample reference to the situation the child was in and focussed on the unacceptability of its continuation. To that extent the effect of the proposed change of circumstance for the child was regarded as positive and no party other than the mother disputed that.

Given that a decision by a court to remove a child into public care, whether in public or private law children proceedings engages article 8 of the ECHR, a welfare analysis and proportionality evaluation are necessary. In any case where there is more than one realistic option it will be necessary for the judge to summarise his conclusions in what is now a conventional balance sheet approach i.e. where there is a choice to be made between two or more realistic options, an analysis of each option by reference to the welfare checklist is required so as to afford paramount consideration to the child’s welfare. The court is then required to evaluate the proportionality of its proposed intervention (and / or that of the local authority) by conducting a balancing exercise in which each of the available options is evaluated by considering the positives and negatives, or the benefits and detriments, of each option side by side. An adequately reasoned judgment must deal with the reasonably available options and give them proper and focussed attention.

That was not this case. There were no other realistic options i.e. options that were reasonably available to the court and no more proportionate interference than that contemplated by the judge. Given the stark facts, no further analysis was necessary.

[Okay, this may be more widely important, because this is the Court of Appeal accepting the point that some High Court Judges, notably Pauffly J have made about Re B-S, that the Court isn’t required to rigorously scrutinise EVERY option, only the realistic ones. The Court of Appeal accept that what is required of a Judge is to analyse each of the REALISTIC OPTIONS. They say in this case that there were no other realistic options, so the level of scrutiny and weighing up was much lower. That, to me, is interesting, since I read last week of a Court of Appeal judgment that overturned a Placement Order where BOTH OF THE PARENTS WERE IN PRISON at the time of the final hearing and were going to be there for some years to come, and the Court of Appeal overturned it for lack of proper analysis of the options. Consistent much? * I have that on Lawtel as Re T (a child) 2014 but without a bailli report yet, and Lawtel is paywall-y so I can’t link]

I would be using Re W (a child) 2014 as Court of Appeal authority for the principle that only the REALISTIC options need to be scrutinised and weighed. (That raises the question of how you sift the options into realistic and unrealistic without scrutinising them, but y’know, there are degrees of scrutiny – like for example, mum is not a realistic option to care for her child because she is doing FIVE YEARS IN PRISON)

The Court of Appeal here are saying that removal on the facts of the case was such a blindingly obvious outcome that it doesn’t matter if the Judge didn’t spend much time in the judgment setting out the pros and cons, the facts speak for themselves. [They might regret that, this seems to be something that lawyers could argue about till the end of time – was THIS case bleedin’ obvious, or was it finely balanced? We call an expert witness, whose specialist subject is the Bleedin’ Obvious, Mrs Sybil Fawlty]

So, the mother’s appeal on those first two points failed – the next point was whether this was procedurally fair and whether she had been properly placed on notice that she might face an Interim Care Order and removal of her daughter.

It is convenient to take the last two propositions first because the whole context of the decision making process needs to be analysed if one is to understand what happened on the day the order was made. At the time the fact finding hearing was being case managed by Judge Cardinal on 21 June 2013 the judge indicated to the parties in the presence of the mother that if it were subsequently to be established that the mother was leading the child to make false allegations against her father, the court would consider making a residence order in favour of the father. At that stage, the judge had identified as a key issue the nature and extent of the harm that was being or would be caused to the child if the mother’s allegations were false and had rightly, in my judgment, identified one of the potentially serious consequences, namely removal of the child and a change of residence away from the child’s primary carer.

On 16 July 2013 at a hearing when mother was again present and assisted by an experienced McKenzie friend, Ms Haines, Judge Cardinal repeated his concerns to both parents: the consequences for each parent of the allegations being determined to be true or false were patent. On 18 October 2013 in the presence of Ms Haines, the judge explained to the mother that if he rejected her allegations he would have to very carefully consider the child’s future.

On the morning of 28 October 2013 before the fact finding hearing in question began, Judge Cardinal addressed all the advocates and Ms Haines. Entirely properly and to enable the parties to think about their positions, the judge indicated that if the mother’s allegations against the father were subsequently proved, he would have to consider exercising his powers to make a section 37 direction and an interim supervision order because the threshold for intervention would be met and the child would need protective assistance. He also dealt with the converse position. He explained that if the allegations were found to be false (a necessary and logical position on the facts of this case if they were not proved) he would have to consider exercising his powers to make an interim care order on the basis he would approve the removal of the child from the mother’s care. These observations were repeated by the judge more than once during the fact finding hearing.

The fact finding hearing was adjourned on 31 October 2013 at the conclusion of the oral evidence. The judge directed the parties to file written closing submissions by 10.00 am on 6 November 2013 in preparation for the resumed hearing on 11 November 2013. The judge directed the local authority as the recipient of his section 37 direction to attend court on 11 November 2013. In order to assist the mother, who did not have a legal representative, the judge identified specific questions for the mother to answer in her written submissions. The questions related to what orders he should make specifically including the options of interim care or supervision orders and residence and contact orders. The mother understood the judge’s intentions at least to the extent that she faithfully replicated his questions in her written submissions.

The mother did not answer the questions posed by the judge in her written submissions but as respects the notice she had of the judge’s powers and his realistic options, it is quite clear that she had days not hours or minutes to consider her position. Indeed, as to the key question about the removal of her daughter, she had more than 4 months notice and repeated reminders of the stark position that faced everyone if her allegations were found to be false.

As the judge records at [56] of his judgment, the mother’s closing submissions were received and considered after the deadline he set. There were in fact four sets of closing submissions from her, the last of which was received on 11 November 2013 which was the resumed final hearing day. By that time the mother would have been aware of the written submissions of the other parties specifically dealing with removal and inviting the court to take that step. The father asked the court to remove his daughter from the mother’s care and the children’s guardian recommended and reasoned the precise order made by the judge. The guardian also dealt with the difficult position that would arise if the judge decided that the mother’s allegations were false and that she had involved the child in her allegations to the extent that on removal the child would not immediately be able to go to live with her father.

At [30] and [31] of his judgment the judge records the following:

12. “[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child’s] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.

12. [31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home.”

Once the judgment had been handed down the judge gave the parties the opportunity to reflect on his conclusions and have discussions including with the local authority who were present in accordance with his earlier direction. Counsel recollect that there was a period from about 12.30 pm to 2.15 pm during which the mother asked the local authority to consider placement of her daughter with the mother’s sister. The local authority would not accept that proposal without an assessment for reasons that are understandable having regard to the content of the judgment. That decision was not at that stage a matter for them but rather for the court and it is of note that from about 2.15 pm to about 3.00 pm the mother was given and used an opportunity to make further oral submissions to the judge about her proposals and the orders that the court could make.

Given the judge’s record and that of all counsel in the case and for the reasons set out above, I cannot accept that the mother would have been in any doubt about what the judge was able to do and indeed what he proposed to do if the facts were found against the mother and absent any submissions as to other alternatives. The mother had every opportunity which she used to make proposals about placement including her sister and other members of the family. During oral submissions to this court and for the first time both without written warning or earlier complaint, the mother instructed her counsel to the effect that she had not had notice of the other parties written submissions because she had had computer difficulties and had not been able to open their documents. The process that I have described and the manner in which this complaint is disclosed to this court make it inherently unlikely but even if it is correct, there is ample other material to remain of the firm view that there was no procedural irregularity. This element of the ground of appeal is without merit and is not the case that was put to the single judge when he granted permission. There was no procedural irregularity or unfairness

There does seem to be quite a few warning shots there, that weren’t picked up on.

An argument that was not raised by the mother’s McKenzie Friend which might have been (I think the appeal was doomed, but I would have liked to see how the Court of Appeal tackled this) was the article 6 point. A parent in private law proceedings can be unrepresented – and in this case it seems that the mother was – making use of a McKenzie Friend, because she would not qualify for free legal representation.

In order to assist the mother, who did not have a legal representative, the judge identified specific questions for the mother to answer in her written submissions.

In a case where a Local Authority applies to remove your child, you automatically qualify for free legal representation. Once the Judge was contemplating the possibility of making an Interim Care Order and removing the child, should the mother not have been entitled to free legal representation in exactly the same way that she would have been in care proceeedings? From the point of view of a parent’s rights, does it matter whether the Interim Care Order is made by a Judge after a Local Authority apply, rather than by a Judge of his own motion? The issue is the removal of the child from her care and into foster care, surely?

If a Judge is contemplating removal of a child into foster care under section 37, should a parent not be entitled to free legal advice and representation about that, and be able to challenge it with the benefit of such representation? Is it a denial of the principles of Airey v Ireland for her to NOT be able to be represented? Given the warning that the Judge gave to the mother about the risks of the finding of fact hearing, might it have been beneficial for her to have had legal advice?

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Posted in case law, fact finding, private law and tagged Court of Appeal, Court of Appeal authority for only realistic options need to be considered, making an interim care order under section 37, only realistic options need to be scrutinised, re w (a child) 2014, realistic options, removal under section 37, section 37 Children Act, test for removal under interim care order. Bookmark the permalink.

Court rules on termination within care proceedings

Posted on June 10, 2014 by suesspiciousminds

Any case involving a termination is sad – setting aside any pro-choice v pro-life debates which are beyond my scope any decision about a termination has an enormous emotional impact on everyone involved and one simply can’t say how extensive those ripples will be.

In this case, the expectant mother was a 13 year old child, who was herself the subject of care proceedings. The father of the unborn baby was just 14. This case was heard by the President of the Family Division – Re X (A child) 2014.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1871.html

The assessments of the expectant mother’s capacity showed that she was not Gillick competent – that is, she wasn’t someone who could make the informed decision for herself whether to go ahead with surgery or not. If she had capacity, it is highly unlikely, as the President comments, that treating doctors would either try to undertake an abortion against her wishes (in fact, they would be sued to forever and back if they did) or refused to perform the operation. As she did not have capacity to make that decision, it was something that the Family Court could give guidance on.

The President points out in the judgment something that often gets overlooked – there isn’t actually a ‘right to choose’ abortion in English law (technically and legally, even if in practice it almost always comes down to a choice), abortion is only a lawful surgical procedure in the narrow constraints of the legislation

section 1(1) of the Abortion Act 1967 provides as follows:

“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith –

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman … ; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; …

The Family Court has no power to compel doctors to perform the surgery, or to determine whether those criteria are satisfied – the decision on both of those matters rests entirely with the doctors.

In a case such as this there are ultimately two questions. The first, which is for the doctors, not this court, is whether the conditions in section 1 of the 1967 Act are satisfied. If they are not, then that is that: the court cannot authorise, let alone direct, what, on this hypothesis, is unlawful. If, on the other hand, the conditions in section 1 of the 1967 Act are satisfied, then the role of the court is to supply, on behalf of the mother, the consent which, as in the case of any other medical or surgical procedure, is a pre-requisite to the lawful performance of the procedure. In relation to this issue the ultimate determinant, as in all cases where the court is concerned with a child or an incapacitated adult, is the mother’s best interests.

An important practical consequence flows from this. In determining the mother’s best interests this court is not concerned to examine those issues which, in accordance with section 1 of the 1967 Act, are a matter for doctors. But the point goes somewhat further. Since there can be no lawful termination unless the conditions in section 1 are satisfied, and since it is a matter for the doctors to determine whether those conditions are satisfied, it follows that in addressing the question of the mother’s best interests this court is entitled to proceed on the assumption that if there is to be a termination the statutory conditions are indeed satisfied. Two things flow from this. In the first place this court can proceed on the basis (sections 1(1)(a) and (c)) that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, to the life of the pregnant woman or of injury to her physical or mental health or (section 1(1)(b)) that the termination is necessary to prevent grave permanent injury to her physical or mental health. Secondly, if any of these conditions is satisfied the court is already at a position where, on the face of it, the interests of the mother may well be best served by the court authorising the termination.

There is another vitally important factor that in many cases such as this may well end up being determinative and which in this particular case is, in my judgment, determinative: the wishes and feelings of the mother.

Of course, given that the mother does not have capacity (and if she did, the family Court would not be getting involved at all) she CANNOT CONSENT to the surgery, but the President draws an important distinction between consenting to a course of action and accepting that course of action

This court in exercise of its inherent jurisdiction in relation to children undoubtedly has power to authorise the use of restraint and physical force to compel a child to submit to a surgical procedure: see Re C (Detention: Medical Treatment) [1997] 2 FLR 180 and Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. I say nothing about how this power should appropriately be exercised in the case of other forms of medical or surgical intervention. In the case of the proposed termination of a pregnancy, however, the point surely is this. Only the most compelling arguments could possibly justify compelling a mother who wished to carry her child to term to submit to an unwanted termination. It would be unwise to be too prescriptive, for every case must be judged on its own unique facts, but I find it hard to conceive of any case where such a drastic form of order – such an immensely invasive procedure – could be appropriate in the case of a mother who does not want a termination, unless there was powerful evidence that allowing the pregnancy to continue would put the mother’s life or long-term health at very grave risk. Conversely, it would be a very strong thing indeed, if the mother wants a termination, to require her to continue with an unwanted pregnancy even though the conditions in section 1 of the 1967 Act are satisfied.

A child or incapacitated adult may, in strict law, lack autonomy. But the court must surely attach very considerable weight indeed to the albeit qualified autonomy of a mother who in relation to a matter as personal, intimate and sensitive as pregnancy is expressing clear wishes and feelings, whichever way, as to whether or not she wants a termination.

There appears to be no clear authority on the point in this particular context (the cases in point all concerned other forms of surgical intervention) but counsel for X’s mother helpfully reminded me of something Lord Donaldson MR said in In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 79, which is in line with the approach I adopt:

“Hair-raising possibilities were canvassed of abortions being carried out by doctors in reliance upon the consent of parents and despite the refusal of consent by 16- and 17-year-olds. Whilst this may be possible as a matter of law, I do not see any likelihood taking account of medical ethics, unless the abortion was truly in the best interests of the child. This is not to say that it could not happen.”

In his oral evidence (see below) the Consultant in Obstetrics and Gynaecology captured the point, as it seemed to me, very compellingly. He said, and I agree, that it would not be right to subject X to a termination unless she was both “compliant” and “accepting”. Both, in my judgment, are important. Only the most clear and present risk to the mother’s life or long-term health – neither even hinted at in the present case – could justify the use of restraint or physical force to compel compliance. So the mother in a case such as this must be compliant. But mere acquiescence – helpless submission in the face of asserted State authority – is not enough. “Consent”, of course, is not the appropriate word, for by definition a child of X’s age who, like X, lacks Gillick capacity, cannot in law give a valid consent. But something of the nature of consent or agreement, using those words in the colloquial sense, is required. The Consultant’s word “accepting” in my judgment captures the nuance very well.

When the case had first been set up for hearing, the expectant mother X had been opposed to a termination, and all advocates had prepared on that basis, but by the time the case got to Court her position had changed to wanting a termination.

This next aspect is novel – I don’t think a Judge has ever had to undertake this exercise before. Part of what X had in her mind was whether, if she gave birth to the baby, whether there would be care proceedings and what the likely outcome of those proceedings would be. That’s a fair question on her part and it clearly would have a significant impact on her feelings. As a matter of law, the Court can’t consider an application in care proceedings until the baby is born, and even a decision at interim stage (whether the baby could be with mother immediately after birth) would only be an interim decision and the final outcome would not be known until the baby if born was about six months old. So a definitive answer was not possible – all that could be attempted was an indication of what seemed likely. Many Judges might have hidden behind the legal difficulties of expressing a view on this, but the President attempted to answer the very real and very human question.

One factor which it did seem important to take into account was the likelihood or otherwise of X being able to keep her baby if there was no termination. This required me, necessarily on the basis of incomplete information, to predict the outcome, not merely of the care proceedings already on foot in relation to X but also of the care proceedings in relation to her child which almost inevitably would be commenced after the birth. The need for a judicial view on a point which might be seen to be pre-judging the care proceedings was, in my judgment, inescapable. My view, which I expressed at the hearing and which was embodied in my order (see below) was that there was “very little chance” that X would be able to keep her baby if it was born. Having done so, however, it seemed to me that I should not be further involved in the care proceedings, so I recused myself.

[For non-lawyers, ‘recused myself’ means that the President had ruled that he would not be involved in any of the care proceedings involved in X’s baby IF she did go on to have the baby. It wouldn’t be fair for him to hear the case having indicated that X had very little chance of being able to keep her baby. We don’t know from this judgment any of the background or why the Judge would have given that indication – there are things that the Judge saw and read and heard that we have not]

The President made a raft of orders, that in effect meant that his indication should be explained to X, and that IF she was in agreement with a termination the doctors would be able to proceed if they wished to (but that if she did not agree, it would not take place).

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Posted in case law and tagged 13 year old and termination, capacity, judicial indication about likely outcome of future care proceedings, president of the family division, re x 2014, termination, termination within care proceedings. Bookmark the permalink.

A Court may look at a King

Posted on June 9, 2014 by suesspiciousminds

Harb v HRH Prince Abdul Aziz 2014 is probably the case with the narrowest applicability I have ever seen, but I liked it anyway.

http://www.bailii.org/ew/cases/EWHC/Ch/2014/1807.html
In effect, in this case, Ms Harb was claiming that she had been secretly married to the Prince’s father in 1968, who then became King of Saudi Arabia. She brought divorce proceedings against King Fahd in January 2004, which were thrown out on the basis that King Fahd had “state immunity” more of which later.

She appealed that in 2005, but the King died before the appeal could take place, resulting in the dismissal of the appeal http://www.bailii.org/ew/cases/EWCA/Civ/2005/1324.html

[I particularly enjoy in that appeal that the Court of Appeal were much exercised by the case of Dipple v Dipple, which is a splendid name for an authority.]

Ms Harb also claimed that Prince Aziz negotiated a ‘go away’ settlement (this is not a precise or technical term) to the sum of twelve million pounds and some London properties, this being at a meeting in 2003. The money and property never showed up, and Ms Harb was now suing for breach of that agreement.

The Court did not deal at all with the issues of

1. Had Ms Harb ever been married to King Fahd?
2. Had there ever been a financial agreement between Ms Harb and Prince Aziz?
3. Had that agreement been breached?
4. Should it be enforced?

Because there was a preliminary issue, and quite a tricky one of whether any jurisdiction other than Saudi Arabia could dealt with the case at all, because of ‘state immunity’

That’s in essence the legal principle that Heads of Sovereign states are exempt from the legal jurisdiction of any other country. That exemption extends to members of their immediate household.

That principle is set out here

section 20(1) of the State Immunity Act 1978 (‘the SIA 1978’). That provides:

“20. Heads of State.
(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to—
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.”

The SIA 1978 therefore directs us to the Diplomatic Privileges Act 1964 (‘the DPA 1964’) which by section 2 gives effect in United Kingdom law to certain articles of the Vienna Convention on Diplomatic Relations 1961 (‘the Vienna Convention’) as set out in a Schedule to the Act. Those articles include article 39 which provides:

“Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.”
The case proceeded on some agreed assumptions, which made things a bit easier

By the time the hearing of the application came before me the issues had been substantially narrowed by the agreement of the parties that the application should proceed on the basis of some important assumptions. These assumptions, both sides stressed, apply solely for the purpose of determining this application and will have no bearing on the proceedings if they go forward. The first assumption is that at the time of any alleged discussions and agreement with Mrs Harb in 2003, the Prince was acting as a conduit for or representative of his father, King Fahd. The effect of this assumption is that it is accepted that the Prince is entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father’s estate is entitled to now. I should make clear that this assumption has nothing to do with the issue that might arise in contract law as to whether in 2003 the Prince was contracting with Mrs Harb on his own behalf or as agent for his father – that is a different question.

The second assumption is that if Mrs Harb’s claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the Prince would have been able to claim sovereign immunity in the English courts to defeat her claim.
If King Fahd were still alive and still King of Saudi Arabia, then the state immunity would be almost certainly apply to him in relation to these claims. [It hasn’t been fully determined, since King Fahd died prior to the appeal on this very point, but it is pretty much a racing certainty]

The state immunity WHILST you are the Head of State does not just apply to ‘things you do in an official capacity’ but to all things (i.e including in your personal life or capacity too) – that is called in Latin “immunity ratione personae” (and why on earth wouldn’t we use Latin when deciding a case in London about someone from Saudi Arabia?)
During the period when the head of state holds office, there is no doubt that his immunity from suit extends to all matters whether official or private. This is illustrated by Mighell v Sultan of Johore [1893] 1 QB 149. In that case it was alleged that the Sultan, a sovereign prince, had come to England, adopted the name Albert Baker, promised to marry the plaintiff and then broken that promise. The Court of Appeal held that he was immune from suit. Lord Esher MR, having examined the relevant case law, quoted from his own earlier judgment in The Parlement Belge 5 P.D. 197 where he had said:

“The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, each and every one declines to exercise by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction.”
and went on to say that rule was ‘laid down absolutely and without any qualification’.
The next principle is that when a head of state STOPS being the head of state within their lifetime, the state immunity is just for things you did in that OFFICIAL CAPACITY(the obvious situation being that they are an elected head of state like the President of the United States, or that they abdicate) . That becomes “immunity ratione materiae”
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So, for example, a former President of the United States could not be sued in any other country for things that he did in his official capacity as President, even after leaving the Whitehouse, but after he stops being President, he COULD be sued for say, punching someone in the nose in a bar fight, even if he had been President when it happened.

That was the major issue in the General Pinochet case, referred to a lot in this judgment. General Pinochet obviously appeared before the English Courts in the extradition case, when he had ceased to be the head of state of Chile and there was an application that he be extradited to Chile to face judgment for his crimes.

The scope of immunity from suit conferred on heads of state was considered by Lord Browne-Wilkinson. He set out the relevant principles as follows:

i) The immunity enjoyed by a head of state in power is a complete immunity attaching to the person of the head of state and rendering him immune from all actions or prosecutions whether civil or criminal and whether or not they relate to matters done for the benefit of the state. This immunity is said to be granted ratione personae.

ii) At common law, a former head of state enjoys more limited immunity once he ceases to be head of state. He loses immunity ratione personae and enjoys instead an immunity ratione materiae, that is immunity in relation to his official acts during his tenure in post. He can be sued on his private obligations: see page 202F-H and the authorities cited there.

iii) Senator Pinochet was entitled to immunity from the charges of murder and conspiracy since these were official acts committed whilst he was in office. But to grant immunity in respect of the international law crime of torture would frustrate the application of the Torture Convention 1984, to which Chile was a signatory state. Senator Pinochet therefore did not have immunity in respect of charges of torture or conspiracy to torture after the coming into force in the United Kingdom of the Criminal Justice Act 1988 which implemented that Convention.
It was accepted in principle in this case that IF Prince Aziz HAD negotiated a settlement with Ms Harb in relation to his father’s marriage, that this would have been a personal matter (so would not be covered by the immunity ratione materiae – immunity for matters of official business)

The issue therefore was whether for non-elected, non-abdicating Heads of State, if they die whilst a Head of State, whether the state immunity applies to their estate for BOTH official matters AND personal matters or ONLY for personal matters.

The Prince was obviously arguing that it applied to both, and Ms Harb arguing that the immunity only applied to official matters (this not being one)

The sole question for decision in this application is therefore whether when the King ceased to be head of state of Saudi Arabia on his death, his immunity from suit (and hence the Prince’s) continued to extend to everything he did when he was head of state, whether of an official or private nature. Counsel for both parties told me that they have been unable to find any legal authority directly on this issue and that there is no commentary in text books and no learned articles considering the question.[1] Their researches have not uncovered any reference to a claim previously having been brought against the estate of a head of state who died in office. Given the calibre of the legal representation in this case, I can be confident that means that there is none to be found.
That’s the sort of thing that makes a law-geek like me behave very much like a Pointer dog. Two top Silks haven’t been able to find the definitive answer, so the case is all about the two of them battling it out and a High Court Judge working out the answer for the first (and quite possibly the last) time.

There! New law!

Note 1 The closest they have come is that Mr Fitzgerald QC drew my attention to a sentence from Satow’s Diplomatic Practice (6th edn by Sir Ivor Roberts) which contains under the heading ‘Immunity of a Former Head of State’ the sentence ‘His personal immunity ceases when a head of state is no longer, for whatever reason, in office’

[If Sir Ivor Roberts had provided a source for this bald assertion, the case could have been resolved much quicker]
Lord Pannick QC, representing the Prince distinguished this case from Pinochet with a single sharp point

Lord Pannick QC for the Prince argues that their Lordships in Pinochet (No. 3) did not have in mind the situation where the head of state had died in office, given that Senator Pinochet was very much alive during those protracted proceedings. The fact that King Fahd ceased to hold office because of his death rather than for any other reason distinguishes this case, Lord Pannick submits, from Pinochet (No. 3).
And so, there could be a two tier system – Heads of State who leave the role via death get the ‘full package’ of immunity ratione personae (for official AND personal matters) and those who leave the role by losing an election or abdication get the lesser package of immunity ratione materiae (official matters only)

I note at this point that Lord Pannick accepted that it made no difference on his arguments whether sovereign title in the particular state passed by hereditary succession, by democratic election, by effluxion of time or other means. Thus on the Prince’s case the estates of Abraham Lincoln and Franklin D Roosevelt would enjoy immunity ratione personae whereas the estates of Ronald Reagan and Harry S Truman would enjoy only immunity ratione materiae. Similarly and closer to home, the estate of King George VI would have complete immunity from suit whereas the estate of Edward VIII would enjoy only the more limited immunity. For legal purposes, it is accepted, those who leave office during their lifetimes become ordinary citizens and on their deaths their estates can claim no better treatment than they enjoyed the day before they died.

Part of the Prince’s argument was the underpinning philosophy behind state immunity – that it was to avoid affront to the personage of the state – and if we don’t want to affront them in life, nor should we do so in death. It’s not so bad when they are an ex-President or ex-King as opposed to a deceased one, who requires more respect.

Lord Pannick argues that it is as much an affront to the state to allow suits against the head of state after their death as it is to allow them before their death.
The High Court were against this (and let us imagine for a moment what it feels like to be a High Court Judge saying “no” to a Prince and a Lord, both at the same time)

In my judgment this submission is based on a misinterpretation of what it means to affront the dignity or sovereignty of a state as personified by the head of state and hence what it means to say that the doctrine’s function is to avoid such affronts. This emerges most clearly from the judgments of the Court of Appeal in Aziz. Lawrence Collins LJ distinguished there between the right that a head of state has to be protected from attacks on his dignity on the one hand and the uniform practice of host states of extending courtesy or comity to a foreign head of state ‘as a matter of diplomatic courtesy rather than as a recognition of a legal responsibility’ on the other. Sir Franklin Berman QC appearing for the Sultan in that case had put forward a very broad definition of ‘an attack on the dignity of a head of state’. He argued that this encompassed any deliberate act intended to lower the estimation of the head of state or to injure his honour or that of his office. Collins LJ held that a proposition of that breadth ‘would be a wholly impermissible invasion of the principle of free speech’: see paragraph 94. Sedley LJ agreed with Collins LJ in contrasting a legal entitlement to protection vested in the sovereign as an individual with the courts’ ‘salutary practice’ of protecting any third party from the distress caused by damaging or embarrassing allegations being made about them in open court.

Inherent in both the judgments in Aziz and in their Lordships’ speeches in Pinochet (No. 3) is the principle that a state is to be regarded as intolerably affronted by a foreign court asserting jurisdiction over the private affairs of its head of state on one day and then not so affronted if that court asserts jurisdiction the next day, the head of state having stood down or been deposed in the interim. This is not because the high esteem and affection in which that head of state is held by his subjects instantly evaporates the moment he steps down from office but rather because their esteem and affection is nothing to the point. Similarly, the fact that a nation may revere the memory of a much loved head of state after his death does not of itself justify a continuation for the benefit of his estate of the complete immunity that the sovereign enjoyed during his lifetime. The immunity recognised by international law is accorded without distinction both to the much loved and to those regarded by some or all of their subjects as an arch-devil: Lord Browne-Wilkinson was at pains to emphasise this in Pinochet (No. 3) at page 190F.

What is more to the point is the fact that, as Lord Millett said, the serving head of state is ‘regarded as the personal embodiment of the state itself’ whilst in office. It is that fact, rather than the merit of the individual concerned, which justifies the immunity and which generates the intolerable affront if the immunity is infringed. The notion of the head of state being the embodiment of the state as the underlying justification for state immunity (both for heads of state and for ambassadors) goes back to the earliest authorities. In Aziz Lawrence Collins LJ cited Vattel’s The Law of Nations published in 1758 where it was said of a head of state: (emphasis added)

“S’il est venu en voyageur, sa dignité seule, et ce qui est dû à la nation qu’il représente et qu’il gouverne, le met à couvert de toute insulte, lui assure des respects et toute sorte d’égards, et l’exempte de toute juridiction.””
I, of course, was about to say exactly the same thing. As soon as I started reading this case, I thought to myself, “Surely, s’il est venu en voyageur” [if you want to imagine me saying that in a Del Boy accent, feel free]

(The High Court don’t translate this phrase, but I’m sure that my readers have grasped the meaning entirely. Or in my mangled interpretation – something about a voyage or journey, something dignity something, something about a nation representing the government, something about an insult, something about assuring the respect of something, something about being exempt from the jurisdiction. And one need say no more, surely)

[Save that my dreadful translation reminds me of the classic D R & Quinch story by Alan Moore, where two reprobates get their hands on a movie script by an acclaimed screenwriter who then dies. Off the back of the script, they are greenlit to make the movie, and only on set do they realise that the only vaguely legible words are the final line “something something oranges something” If you haven’t read it, you should, it is great]

The High Court goes on

I do not accept that a sovereign who dies in office remains the embodiment of the state once deceased. On the contrary, a new head of state springs up, either instantly in the case of an hereditary monarchy or after due process in the case of an elected head of state (although most states will designate an interim head pending such an election). Again, this is nothing to do with whether the recently deceased head of state continues to hold a place in the hearts of the nation or is still regarded by his or her former subjects as an exemplar of all that is best about that nation’s character. We are not talking about embodying the state in that sense but in a more technical sense. There is no room in this doctrine for two embodiments of the state to exist at the same time, one dead and one living.
That, I can understand. If the state immunity applies because King Fahd IS the personification of Saudi Arabia, then you can’t have two separate people, say King Fahd I (dead) and King Fadh II (alive) BOTH being the personification of Saudi Arabia at the same time.

Counsel for Ms Harb suggested that the answer could be extrapolated from the provisions of article 39 of the Vienna Convention (as set out in the early part of this piece) – specifically the provisions which make allowance for a reasonable period of time for members of the household to leave the country and take items with them under state immunity after the Head of State has died. After all, if the state immunity continued and extended to the estate after the Head of State died, what would be the point of those provisions?
Mr Fitzgerald relies on Article 39(3) and (4) as supporting his argument to precisely the opposite effect. Those provisions are included to make clear that although generally speaking immunity ratione personae lasts only whilst the ambassador holds office, it is extended for a short period to allow the ambassador and his family to leave and to take their belongings with them, largely free of export charges and controls.

On this point I consider that the scope of Article 39 supports Mrs Harb’s case on the scope of immunity rather than Prince Abdul Aziz’s. One cannot infer from the fact that Article 39(3) refers only to the members of the ambassador’s family and not to the ambassador himself that the Vienna Convention assumes that the ambassador’s estate continues to enjoy all privileges and immunities indefinitely. It is equally consistent with a position whereby his immunities and privileges cease on death and are therefore extended briefly to those of his family for what Mr Fitzgerald referred to as a ‘penumbra or residual packing-up period’. As regards Article 39(4), it is difficult to see why this provision would be necessary if the Prince’s case were right. If the ambassador’s estate continues to enjoy full immunity ratione personae, there could be no question of levying estate, succession or inheritance duties on his estate. Moreover, there are two important exceptions in Article 39(4). First, the receiving state is entitled to prevent the removal of property that was acquired in the receiving state and which cannot lawfully be exported from that state and secondly it appears that estate, succession and inheritance duties may be levied on moveable property which is present in the receiving state for reasons other than because the deceased was the ambassador. Transposing article 39(4) to apply it to a head of state may give rise to one of the baffling legal problems to which Lord Browne-Wilkinson referred in Pinochet (No. 3). For present purposes it is enough to say that the detailed provision for the application of the receiving state’s law to the property of the estate of the deceased ambassador supports Mrs Harb’s contention that there is no continuing immunity ratione persoane enjoyed by that estate.
{I admire and applaud the Judge’s reference here to the possibility of a ‘baffling legal problem’ being raised in the future, as though the resolution of this current case was as easy as falling off some logs. Having got on a roll with how easy this was all becoming, the Judge decides to tackle the issue of whether a quick-thinking litigant could sue a Head of State for a personal matter if a coup in their own country deposes them, and considers that it is possible, although serving them before they leg it would present some obstacles}

In my judgment therefore there are no grounds for distinguishing the principles set out in Pinochet (No. 3) on the basis that King Fahd ceased to be head of state of Saudi Arabia on his death rather than during his lifetime. The principle that a former head of state enjoys only immunity ratione materiae applies to the late King as it applies to any head of state who stands down from office during his lifetime. Further, there is no justification for treating the estate of a head of state who dies in office in a more favourable way than the living former head of state or the estate of such a former head of state who dies some time after leaving office. I regard myself as bound by the House of Lords’ decision in Pinochet (No. 3) to dismiss the Prince’s application.
We can therefore look forward to more litigation between Ms Harb and the Prince in due course. I, for one, cannot wait. I shall be disappointed if some hieroglyphics don’t find their way into the judgment somehow.

[As a sidebar to this, I read an A P Herbert story recently about a tradition that if the Queen appears in the vicinity of the Old Bailey, the trials are paused until she has moved to somewhere more distant, because the notion is that the Queen is the head of law in this country, hence the head of justice and that her Judges only carry out that function to assist her and would not have the temerity to hear evidence or make decisions if the Queen were sufficiently proximate to undertake this role herself. Anyone who knows whether (a) this is true and (b) whether it has ever actually happened is most welcome to tell me about it]

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Posted in case law and tagged abdul aziz, does a king retain state immunity when he dies?, harb v hrh prince abdul aziz 2014, pinochet, state immunity. Bookmark the permalink.

Q v Q – an impasse

Posted on June 9, 2014 by suesspiciousminds

You may not be aware (it depends if you spend too much time online), that on the internet QQ in effect means stop whining, or crying about something (the Q’s looking like a pair of eyes with tears coming out of them) – if you say that someone is QQ-ing, it means that they are whining like a child about something. [ it comes up a lot]

In Q v Q 2014, the President tackles what’s been a long-standing problem in family law proceedings, particularly family law. And brings tears to the eyes of the Legal Aid Agency, Her Majesty’s Court Service and our beloved minister Chris Grayling. QQ indeed.

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/7.html

For many years now, the Legal Aid Agency, under its various guises, has had a policy that they will withdraw public funding from someone who has legal aid (free legal representation) if there is an independent report which is heavily against them. Back when I was doing private law, this quite often used to be the CAFCASS report, and you’d end up in a position where your client’s legal aid would be pulled two days before a final hearing because the CAFCASS report was very damning.

Of course, the report is at that point untested evidence – for the Legal Aid Agency to presume that just because on paper the CAFCASS officer is against your client, there would be no prospect of getting them to change their mind or getting the Court to disagree with their conclusions is presumptuous in the extreme. If all the Court did was agree with what the CAFCASS report said on paper, then we wouldn’t need Judges at all, and CAFCASS could be the investigators and arbiters of final outcomes. [Indeed, on a few such cases I recommended my client for free, and got a favourable decision for them]

That’s not a new thing, but in this case, the father was publicly funded and an expert was instructed (it was his expert) and the expert was heavily against him. His funding was pulled.

The father was therefore appearing in person, and requiring an interpreter. He wanted to be represented and he wanted to challenge the expert report. The mother, who was represented, invited the Court to dismiss his application and make a section 91(14) order prohibiting him from making further applications without leave of the Court.

The Court were unhappy about the impact of proceeding without representation for the father on his article 6 and article 8 rights, and mooted a series of possible solutions, before adjourning the case and inviting the Legal Aid Agency and Ministry to intervene to discuss those possible solutions.

In the circumstances, what I propose to do is this: I propose to adjourn this matter for, I emphasise, a short time, inviting the Ministry of Justice – or it may be the Secretary of State for Justice or it might be the Minister for the Courts and Legal Aid – to intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother’s certificate, or directly at the expense of the court.

I appreciate that this is a case in which, as Miss Spooner points out, there have already been too many adjournments of supposedly final hearings. I appreciate it is a case which has been going on for the best part of four years, which is depressing to say the least. And I am very conscious of the fact that the mere existence of the proceedings, and they must seem to the mother and her son to drag on interminably, is having a significant impact both on the mother and also on the parties’ son. Factoring that in as I do, it does seem to me that some further, but limited, delay is inescapable if I am to do justice not merely to the father but, as I have emphasised, also to the parents’ son.

I shall accordingly, in terms which I will draft, adjourn this matter so that the relevant ministry can intervene if it wishes to and on the basis that if it does not I will have to decide the issues I have canvassed without that assistance. I will reserve the matter to myself. I will direct that the hearing takes place as soon as it possibly can after the forthcoming short vacation. I would hope that the hearing can take place in front of me in June.

This is about nine years too late for the general principle, and a year late for the LASPO position which left almost all parents in private law cases unrepresented (I suspect that the father’s rights movements would also say that as a result of relative incomes, there were a huge number of cases in which fathers had to represent themselves because they had slightly too much money for legal aid representation but not nearly enough to pay privately, and I have some sympathy with that position)

It is welcome anyway, even if it is late.

The President helpfully gives people a valuable little crib-sheet in case they WERE asking the Legal Aid Agency to grant legal aid in the s10 LASPO exceptional circumstances

Putting it in the language of FPR 2010 1.1, the court is required to deal with this matter “justly” and by ensuring “so far as is practicable” that the case is dealt with “fairly” and also “that the parties are on an equal footing.” That is the obligation of the court under domestic law. It is also the obligation of the court under Articles 6 and 8 of the European Convention. Despite what Miss Spooner says, I am left with the strong feeling that I cannot deal with the matter today justly and fairly by acceding to her submission.

As I have said, the domestic obligation on the court is to act justly and fairly and, to the extent that it is practicable, ensure that the parties are on an equal footing. In the well-known case of Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, the European Court of Human Rights held as long ago as 1979 that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied her Article 6 right to be able to present her case properly and satisfactorily. In that particular case, the court held that Ireland was in breach of Mrs. Airey’s Article 6 rights because it was not realistic in the court’s opinion to suppose that, in litigation of the type in which she was involved, she could effectively conduct her own case, despite the assistance which the judge affords to parties acting in person.

Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, a judgment given by the court in March 1997, indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which was “likely to have a preponderant influence on the assessment of the facts by [the] court.”

I mention those cases merely as illustrative of the kind of issues which arise in this kind of situation. I emphasise I do so without expressing any view at all as to whether, in the circumstances I am faced with, unless there is some resolution of the present financial impasse, there would be a breach of either Article 6 or Article 8.

You may have noticed that I haven’t come on to the facts of the case yet, which is not my usual approach. You may be wondering what the facts of this case are that led to the President being so troubled about the father’s human rights (especially given that there was no such intervention on the D v K case where a father was accused of rape by the mother in private law proceedings and not given legal aid, leaving him in the position of facing those very serious allegations without a lawyer and the mother in the position of being cross-examined by the father directly, something which would be illegal if it happened in a criminal trial http://www.bailii.org/ew/cases/EWHC/Fam/2014/700.html So it must be something worse than that?)

Well, this, I’m afraid is one that the Daily Mail would exhaust the entireity of the “Outrage” section of Roget’s Thesaurus

The father is a convicted sex offender, having convictions for sexual offences with young male children, the second of which was committed during the currency of these proceedings.

That’s right – the man who the President has gone to the wall for, to defend his human rights, to single out and say “This is the case where I must defend the father’s rights” is a convicted paedophile seeking to have contact with his seven year old son.

[That, sadly, is the point of human rights, that they are universal and apply to the most deserving and those who the general public might regard as undeserving and beyond the pale. It isn’t great PR for those who support human rights – including myself, when it is cases like this that stir our courts into upholding rights. It does seem from time to time that the more unsavoury you appear to be, the more thought the Court give to your rights. I hope it only seems that way.

If you were to hold a national referendum on whether this man, a convicted paedophile, should get to see his seven year old son, I don’t imagine that it would be a finely balanced result. I don’t think bookmakers would be giving very good odds on “No” ]

Back to the legal debate, the President felt that just because the report was against the father that would not determine the matter

Tempting though it is to think that the father’s case is totally lacking in merit, it does seem to me, despite everything Miss Spooner has said, and recognising the constraints which may be imposed on cross-examination by the fact that, in part, challenge on behalf of the father would be to his own expert, I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.

For example, a perfectly proper line of cross-examination of JD might be along these lines, “In part at least, your analysis of the risks that the father poses to his son, as opposed to other children, is based upon the account you have had from the mother of what went on in the family home.” It would seem, bearing in mind the language of JD’s report, that the answer could only be, “Yes.” The next question then might be, “Suppose for the sake of argument that the true picture at home was not what the mother says but a very different picture presented by the father. Just suppose that. Would that affect your opinion?” I use that only by way of illustration of a wider point that could be made in relation to these reports. That seems to me to be a proper and appropriate line of cross-examination.

My problem and ultimately Miss Spooner’s problem is that it is completely a matter of speculation as to what JD’s answer would be to the last question I formulated. The answer might be, “It does not make the slightest difference at all because of X, Y, Z”, in which case the father’s case might evaporate. It might be, “Well, yes, that might make a difference.” The point is we simply do not know

[If you are thinking at this point – well all of that seems like it could apply to ANY witness who was against you, and thus ANY case –mmmmm, yes, I agree. This could be a very critical case for the Government and LASPO. If they don’t take it seriously, it could put a serious hole in their policy about legal aid]

What were the Court’s possible options to resolve this unthinkable impasse?

Assuming that public funding in the form of legal aid is not going to be available to the father, because his public funding has been withdrawn and an appeal against that withdrawal has been dismissed, and on the footing that, although the father has recently gained employment, his income is not such as to enable him to fund the litigation, there is a pressing need to explore whether there is any other way in which the two problems I have identified can be overcome, the first problem being the funding of the attendance of the experts, the second being the funding of the father’s representation

There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public fundsThere may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds.

It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.

May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated in justice not merely to the father but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here. I emphasise the interests of the son because, under our procedure in private law case like this where the child is not independently represented, fairness to the child can only be achieved if there is fairness to those who are litigating. There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child

If you have ever watched a submarine movie (and if you haven’t, you have wasted your life to date), you will be familiar with the sequence where disaster strikes, water breaches the hull and red lights go on and a siren blasts “Arooogah Aroogah” for the next twenty minutes of the film, where men in crewneck jumpers and/or bellbottoms use wrenches on pipes and doors burst open and water pours in.

That submarine disaster sequence is pretty much what the scene at Her Majesty’s Court Service would be like when they read this line from the President

. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters

What the President is saying there is, if a situation arises in which a party’s human rights would be breached by having to conduct litigation without a lawyer and the Legal Aid Agency won’t pay, it might have to come out of the Court’s budget, otherwise the Court would be breaching the party’s human rights.

Aroogah! Aroogah!

In private law, if someone is going to have to pay for legal representation to prevent a breach of article 6 and article 8, the options are basically limited to the Legal Aid Agency or the Court (either way, it is coming out of Mr Grayling’s budget)

Aroogah! Aroogah!

Luckily, we know from Mr Grayling’s comments about the completely opaque terrorism trial of AB and CD that “We must trust the Judges” and on that basis, I’m sure that Mr Grayling will stand by that, and not bring a Silk along to talk the President out of it, or appeal any decision that the President might make.

And also note that the President drags the poor old Local Authority into this, despite being a private law case that they aren’t involved in.

In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay

It is wrong, and probably a contempt of Court for me to refer to the President of the Family Division as Dude – so let’s for a moment imagine that I am talking about someone entirely different (which I am, I am addressing a friend of mine who has just made this very suggestion, in coincidentally the same words that the President used), but

Dude !

Are you saying that if a child has a fractured skull, and the suspects are mother and mother’s boyfriend, and mother’s boyfriend can’t get legal aid, the Local Authority should pay for the boyfriend’s lawyers to fight the case against them? That it would be fine for those lawyers to be paid by the applicant in the proceedings, who is running a case directly in opposition to their client?

Dude!

[I think in the light of Re T, we’d see what the Supreme Court thought about that. The answer it seems to me, is that we need our Courts to unlock s10 LASPO exceptions by saying that these cases would be an article 6 breach in accordance with the spirit of Airey v Ireland, and it would be Wednesbury unreasonable for the Legal Aid Agency to decide otherwise once a judge has ruled that there would be an article 6 breach. IF that is the path that the President goes down, it seems to me to have the potential to punch a big hole in the hull of HMS LASPO – it is lucky that Mr Grayling trusts the Judges]

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Posted in case law, costs, private law and tagged airey v ireland, article 6, chris grayling, costs, legal aid, legal aid cases, legal representation, q v q 2014. Bookmark the permalink.

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