Author Archives: suesspiciousminds

Special Guardianship versus adoption

Posted on May 10, 2014 by suesspiciousminds

Ever since Re B-S, there has been a potential issue for the Courts to resolve – given that Re B-S talks about the test in leave to oppose being not about whether a parent might get the child back necessarily but about whether the Court might make an order OTHER THAN Adoption, with the test for making an adoption order still being ‘nothing else will do’ – what happens if a parent invites the Court to leave the child in the placement, but make a Special Guardianship Order rather than an adoption order?

Why does it matter? Well, if you are a prospective adopter about to commit to taking on a child, you might need to know that you might not get to adopt the child after all, if you are someone who already has a child placed with them that you were intending to adopt, it might be that you will end up with an SGO instead, and if you are a birth parent who wants to stop the adoption happening you would want to know whether the Courts are going to entertain (even in cases where you can’t persuade them to return your child) making a less drastic order than adoption. Also important for Judges dealing with those cases, social workers planning for the future for children, lawyers advising clients and politicians making policy about adoption. As even the President of the Family Division has recently acknowledged, there’s a tension between the direction of travel of Government (social workers should stop thinking of adoption as a last resort) and the Courts (adoption is still a last resort, even way after the Court have already decided it is in the child’s best interests to approve a plan of adoption)

So this is the first case that rolls up its sleeves and gets under the bonnet of the issue, the High Court have just dealt with exactly such a scenario. I wrote about the hearing that decided that the father should be given LEAVE to oppose the adoption order here

Re B-S can itself be the change of circumstances

And this is now the judgment from the contested adoption case itself.
Re N (A child) Adoption Order 2014
http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html

The Judge in this case concluded that an adoption order was preferable for this child than SGO, weighing the pros and cons of each type of order, and bearing in mind that adoption could not be sanctioned unless “nothing else will do”

46. I accept that adoption does have the disadvantage of severing the legal tie between N and her paternal family. In every other respect it is the preferable order to make in this exceptional case. Some of these reasons for adoption are so important that they lead me inexorably to the conclusion that it is the only order that can be made. In any event, the combination of all these factors is overwhelming such that it is abundantly clear that nothing else will do. Notwithstanding the draconian nature of the order, adoption is necessary and proportionate given the huge advantages that it provides to N for the rest of her life.
47. I have formed the view that an adoption order is overwhelmingly necessary. N has only ever known one home. She has significant special needs. She is a vulnerable child. She will become a vulnerable adult. She has received a very high quality of care from the Applicants. She has thrived with them. She now needs the security, trust and confidence of being made a permanent legal member of their family such that the Applicants will be fully and solely responsible for her needs throughout her life.

He sets out clearly that the Court WOULD have jurisdiction to make an SGO rather than adoption order (and to do so even where the prospective adopters didn’t WANT an SGO)
32. the key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be which order will better serve the welfare of this particular child. It seems clear to me, however, that this must be subject to the law as set out in Re B that an adoption order is to be made only where nothing else will do. In this regard, it is a material feature of the special guardianship regime that it involves a less fundamental interference with existing legal relationships. I further accept that I have power to impose a special guardianship order on an unwilling party to the proceedings if I am satisfied that, applying the welfare checklist in the 1989 Act, a special guardianship order will best serve the welfare interests of the child concerned
I think the most important part of this judgment will be this line from para 48

I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate

(If you listen carefully when you read that sentence you can hear the sound of future litigation – and a lot of it)
The Judge goes on to set out what those exceptional circumstances are, and one can readily see that most of them would not arise in a traditional SGO v adoption case

(a) N’s serious disabilities require a lifelong order rather than a special guardianship order that expires on her 18th birthday. I am satisfied that, regardless of the excellent progress that she has made, she will still be dependent on the Applicants, probably indefinitely and certainly well into her adult life. Many of her disabilities (such as her autism and development delay) have not altered and will not alter notwithstanding her progress in other areas. I am not going to consider in detail the jurisdiction of the Court of Protection after her 18th birthday. The simple fact of the matter is that she needs to have as her legal parents at that point the people who will by then have cared for her exclusively for over 17 years of her life. This is what makes this case so exceptional. Special guardianship simply does not fit the bill in this regard at all. Adoption does. It is necessary and required.
(b) The only home that she has ever known has been with the Applicants. She is embedded emotionally into their family but she needs to be embedded legally there as well. This is as important for her as it is for the Applicants and their son. I accept that she does not and probably never will understand the legal concept of adoption but she does understand the concept of being a full member of a family. It is overwhelmingly in her interests that she is a full member of this family as a matter of law. In short, she must have permanence and total security there. Adoption is the only order that will give her that permanence and security.
(c) Whilst I look at this entirely from the perspective of N, the position of the Applicants is a very relevant consideration. They have invested an enormous commitment into N. They need to know that her presence with them is complete and not susceptible to challenge. If that were not the case, I consider there is a real possibility that it might have an adverse impact on the welfare of N. This would not be because the Applicants would not remain fully committed to her but the uncertainty and potential concerns as to what might be around the corner and what problems they may encounter when she attains her majority have a real potential to cause difficulties for N herself.
(d) I am very concerned about the litigation that has taken place in this case. Litigation is a real concern for carers at the best of times. This litigation has been going on for over five years at an intense level. I have not heard oral evidence from the Father and Paternal Grandmother but I do have a real concern that a special guardianship order would not be the end of the battle. The Father’s statement talks about unsupervised contact, staying contact and even contact in Nigeria. In one sense it is understandable why he makes such comments. I am, however, concerned that he has not fully come to terms with being ruled out as a carer. Mr Macdonald’s submissions reinforce that concern in so far as they repeatedly refer to there being no threshold findings having been made against him. The risk of ongoing continuing litigation with no understanding of the effect of that on N’s carers is something that this court must consider in deciding on the appropriate order.
(e) N has never lived with her Father or her Paternal Grandmother. There is no family member available to care for her. The Father and Paternal Grandmother have been ruled out and their appeal in that regard was dismissed. N has only ever had supervised contact to them. This is not to downplay their importance. It is merely a fact. It is accepted by the Applicants that the Father and the Paternal Grandmother are a vital part of N’s heritage. They are committed to contact. I accept the evidence that this is a genuine commitment that will not be reconsidered once they have adopted N. They have shown their attitude clearly by setting up contact with N’s mother’s other children. It follows that adoption in this particular case will not stop contact from continuing with the parental birth family. This is important.

Breaking them down, the 5 exceptional factors here were

1. The child has serious physical disabilities that will require lifelong care, not just until her 18th birthday
2. The only home she has ever really known is with the prospective adopters
3. The enormous effort and commitment that the prospective adopters have put into the care of this child
4. That this child has been the subject of intense litigation for 5 years and making an SGO would probably see that continue in the future
5. That the father has never cared for the child and that the evidence is plain that he would never be able to

But even in this case, the Court was plain that ongoing contact (four times per year) would be necessary, though the Court declined to make a contact order on the basis that the adopters were in agreement with that plan for contact.

It seems, therefore, that in a contested adoption hearing where the parents have as either their primary position or a fallback position – there should be an SGO rather than an adoption order, there is a live issue to be tried. (and if that’s the case, if a parent actually puts forward that argument rather than straight ‘give me the child back’, their application for leave to oppose must surely have some solidity and the prospect of being granted?)

Most parents, of course, will want to oppose the adoption order on the basis of the child coming back to their care – obviously that’s what they want. But those who take up the fallback position of “Even if not, an SGO is better than adoption, because adoption is the last resort” have a case that would be tricky to throw out at leave stage.

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“The pages of the most extravagant French novel…”

Posted on May 9, 2014 by suesspiciousminds

Rapisarda v Colladon 2014 – new areas of transparency, journalism and Monarchs trying to protect public morals – it has it all.

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1406.html

This is a very quirky case, decided by the President. It arises from divorce and ancillary relief proceedings. In particular, it arises from an application by the Queen’s Proctor, to dismiss a large number of divorce petitions, and to set aside a number of decree absolutes and decree nisis.

(Who the heck is the Queen’s Proctor, you may be asking – well, he or she, is the person who is authorised to intervene in litigation on behalf of the Queen, i.e when there’s some heavy issue at stake. For divorce, that all flows from s8 of the Matrimonial Causes Act 1973)

This case is described by the President in his opening paragraph as being

what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale

Vexingly, for me, the judgment doesn’t give chapter and verse on what on earth was going on here.

The issue that the judgment is principally concerned with, is whether the Press could report what the Court was uncovering. At the moment, they are prevented from reporting details from divorce cases (not, as you might imagine to protect the confidentiality of the individuals but to protect public decency)

That allows the President to do two of his favourite things – (a) to test where the boundaries of transparency are and whether they could be expanded; and (b) to give a history lesson as to how the current framework came to be.

For a law geek like me, (b) is really rather absorbing, and I have to say that few people have ever been as skilled as the President in doing that sort of exercise.

So, what prevents the Press reporting about what happens in divorce or ancillary relief proceedings? * (As to whether any of this applies to ancillary relief proceedings, having analysed it very carefully, the best we can do is “It might”)

It is the Judicial Proceedings (Regulation of Reports) Act 1926 (from now on in this piece “The 1926 Act”

3. Section 1 of the 1926 Act is headed “Restriction on publication of reports of judicial proceedings”. As amended, it provides as follows:
“(1) It shall not be lawful to print or publish, or cause or procure to be printed or published –
(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.
(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding level 5 on the standard scale, or to both such imprisonment and fine:
Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act.
(3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General.
(4) Nothing in this section shall apply to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
So, in normal language –

1. the Press can’t report anything arising from Court proceedings which might injure public morals (I’m not convinced that is routinely adhered to, thinking of the many sexual abuse celebrity crime reporting, or the level of detail that was published arising from evidence in murder trials – the murder of Lee Rigby springs to mind, and the Press have hardly been sparing in the Oscar Pistorius details)

2. The Press can’t report anything arising from the evidence given in divorce proceedings or PROBABLY ancillary relief proceedings (they can report things in broad summary, but not chapter and verse). And if they do, they can be prosecuted.

3. That does not stop the reporting of bona fide LAW REPORTS
The President explains how the 1926 Act developed. In effect, at around the same time as the law banned Obscene Publications the Press started publishing fairly routinely the juicy and salacious details from divorce cases to titillate and/or shock their audience.

8. Kate Summerscale, in her recent retelling in Mrs Robinson’s Disgrace: The Private Diary of a Victorian Lady (Bloomsbury, 2012) of the remarkable case of Robinson v Robinson and Lane (1859) 1 Sw & Tr 362, notes (at page 187) what one can only think of as the delicious irony that in the summer session of 1857 “Lord Palmerston’s government had pushed through the Matrimonial Causes Act, which established the Divorce Court, and the Obscene Publications Act, which made the sale of obscene material a statutory offence.” Both, she opines, had identified sexual behaviour as a cause of social disorder. But, she continues:
“A year on … they seemed to have come into conflict: police officers were seizing and destroying dirty stories under the Obscenity Act, while barristers and reporters were disseminating them under the Divorce Act. ‘The great law which regulates supply and demand seems to prevail in matters of public decency as well as in other things of commerce,’ noted the Saturday Review in 1859.” – The author, she suggests, was James Fitzjames Stephen, later Stephen J – “‘Block up one channel, and the stream will force another outlet; and so it is that the current dammed up in Holywell Street flings itself out in the Divorce Court.'”
9. Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (Viking, 2013), comments (at page 45), that:
“Born at the same moment, the Divorce Court and the mass-circulation press were made for each other. The Divorce Court got the publicity to humiliate moral reprobates. The newspapers got the fodder they needed to power a gigantic leap into the mass market.”
This state of affairs even led Queen Victoria to become involved, and she caused this letter to be written

“to ask the Lord Chancellor whether no steps can be taken to prevent the present publicity of the proceedings before the new Divorce Court. These cases, which must necessarily increase when the new law becomes more and more known, fill almost daily a large portion of the newspapers, and are of so scandalous a character that it makes it almost impossible for a paper to be trusted in the hands of a young lady or boy. None of the worst French novels from which careful parents would try to protect their children can be as bad as what is daily brought and laid upon the breakfast-table of every educated family in England, and its effect must be most pernicious to the public morals of the country.”

Obviously the comparison between lurid French novels and the details of divorce reports in the English newspapers was a popular one, because the metaphor was still going in 1922, when King George V caused this correspondence to be written

12. Despite all this, as Cretney records, every attempt to remedy matters by legislation failed until the notorious Russell divorce case (see Russell v Russell [1924] P 1, [1924] AC 687, and, for the eventual denouement, The Ampthill Peerage [1977] AC 547) was opened before Sir Henry Duke P and a jury on 8 July 1922. On the fourth day of the hearing, the King’s Private Secretary, Lord Stamfordham, wrote to the Lord Chancellor, Lord Birkenhead:
“… the King is disgusted at the publication of the gross, scandalous details of the Russell divorce case. His Majesty doubts whether there is any similar instance of so repulsive an exposure of those intimate relations between man and woman which hitherto through the recognition of the unwritten code of decency indeed of civilisation have been regarded as sacred and out of range of public eye or ear. The pages of the most extravagant French novel would hesitate to describe what has now been placed at the disposal of every boy or girl reader of the daily newspapers.”
So for all of our modern obsession that Prince Charles has been exercising influence behind the scenes and pulling strings, it is nothing new.
The King wasn’t done there, and had another try later on

14. The final catalyst seems to have been the newspaper reporting in March 1925 of Dennistoun v Dennistoun (1925) 69 Sol Jo 476. King George V returned to the point, Lord Stamfordham writing to the Lord Chancellor, now Lord Cave, in striking terms:
“The King feels sure that you will share his feelings of disgust and shame at the daily published discreditable and nauseating evidence in the Dennistoun case. His Majesty asks you whether it would not have been possible to prevent the case coming into Court, either by a refusal of the Judge to try it, or by the joint insistence of the respective Counsels to come to an arrangement, especially when, apparently, the question at issue was one of minor importance.
The King deplores the disastrous and far reaching effects throughout all classes and on all ranks of the Army of the wholesale press advertisement of this disgraceful story.”
And so the 1926 Act came about, to protect those delicate flowers that were serving in the British Army, and the vulnerable working classes from having to read such filth (the upper class could of course, afford to buy the most extravagant French novels, and get their filth that way)

[I began pondering just how juicy Dennistoun v Dennistoun was, the case that changed the law and remains law ninety years on, and which got a King so disgusted and ashamed that he wrote letters complaining about it. So I had a look – the salacious details from the trial are all here

http://alminacarnarvon.wordpress.com/2012/04/01/lady-almina-scandal-the-dustbin-case-dennistoun-v-dennistoun/

after two pages, the strongest I found was that the wife had been having an affair, her paramour nicknamed Tiger, and he called her “Brown Mouse” – it rather pales in comparison to what we know Prince Charles said to Camilla when they were both married to other people]
The major decision about the 1926 Act, prior to this case was Moynihan v Moynihan 1997, which coincidentally, also dealt with an application by the Queen’s Proctor to set aside a decree of divorce obtained by fraud. Sir Stephen Brown P heard the case and considered that section 1 was mandatory and did not give the Court a discretion to waive it in certain cases.

24. To return to Moynihan v Moynihan, Sir Stephen continued as follows:
“The point is made by counsel for the Attorney-General that this is a statute which is mandatory in effect; it does contain a criminal sanction and therefore must be construed restrictively. No point arises, as I have already said, as to the merits of any reporting of details likely to be made public in the course of the evidence. It is merely a question as to how that will be achieved.
The matter is of importance because the representatives of the press and the media are entitled to be clear as to what their duties are and what restrictions apply to them, and I have a great deal of sympathy with their position. For that reason the question has been raised at the outset of these proceedings. However, it seems to me that the court simply cannot construe the statute in a way which is contrary to the language of the statute itself. I have to rule that the Judicial Proceedings (Regulation of Reports) Act 1926 does apply to these proceedings. The Attorney-General has through counsel indicated that he would not be very anxious to institute criminal proceedings if by some oversight there was a breach of the strict letter of the law. That is not a matter which is before me, but it seems to me that until or unless Parliament were to intervene the Act does apply in this instance.”
25. Sir Stephen concluded with these words, which I read out in the present case to the journalists present in court:
“However, having said that, it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.”

26. Sir Stephen seems to have been unenthusiastic about the application of the 1926 Act to the proceedings before him but concluded that section 1(1)(b) did apply. With equal lack of enthusiasm I am driven to agree. The logic of the analysis propounded in turn by the Law Commission Report, by the LCD Review and, finally, by Sir Stephen is, in my judgment, irrefutable.
That would seem to be problematic in authorising the reporting of a case where transparency would be in the wider public interest, such as here. If there has been fraud on an industrial scale about obtaining divorces, then the Press ought to be allowed to tell us about it. But there’s no judicial discretion to relax s1(1) (b) of the 1926 Act.

But our President wouldn’t be the President if he didn’t have a sharp mind, and if there’s someone who is going to find a way on transparency, it is going to be him.

Firstly, he suggests that Parliament need to look long and hard about the 1926 Act – in our modern era, we are hardly short of titillation and scandal and we really don’t need to be mollycoddled and protected from things that might shock us from divorce proceedings. And particularly when the hearing itself is in Open Court, it seems a nonsense to prohibit the Press reporting the case. The days when one needed to go to either the tabloids or Soho if you wanted a fix of smut are long gone.
27. Though driven to this conclusion by the words Parliament chose to use in 1926, and reiterated in 1973, I find it almost impossible to believe that this is an outcome intended by Parliament. No doubt it is some imperfection on my part, but I do not begin to understand how the protection of public morality and public decency, or indeed any other public interest, is facilitated by subjecting the reporting of proceedings in open court of the kind that Sir Stephen Brown P was hearing in Moynihan v Moynihan and that I am hearing in the present case to the restraint imposed by section 1(1)(b) of the 1926 Act. On the contrary, this restraint would seem to fly in the face of the “fundamental, constitutional rule” (Scarman LJ’s phrase in In re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, 93) previously articulated in Scott v Scott [1913] AC 417.
28. This is not, I venture to suggest, the only reason why Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book is justified

But even in the absence of that, a way has been found. We can publish, we will publish, we must publish…

36. Pending any review of the 1926 Act by Parliament are there any legitimate means of avoiding the impact of section 1(1)(b)? The answer is clear: only as allowed by one or other of the express provisions of section 1(4).
37. For convenience I set out section 1(4) again, but inserting additional lettering and creating subparagraphs for ease of reference:
“Nothing in this section shall apply
(A) to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or
(B) to the printing or publishing of any notice or report in pursuance of the directions of the court; or
(C) to the printing or publishing of any matter
(i) in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or
(ii) in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
In the context of the present proceedings it is quite clear that neither (A) nor (C) can avail the media generally. But what of (B)?
38. This is not something which Sir Stephen Brown P considered in Moynihan v Moynihan. As I have already noted, he made no reference at all to section 1(4). Indeed, so far as I am aware, there has never been any consideration of the point.
39. The language of (B) is quite general. It excludes from the ambit of the 1926 Act the printing or publishing of “any notice or report in pursuance of the directions of the court”. Although I agree with Sir Stephen that section 1(1) is mandatory and confers no discretion, section 1(1)(b)(iv) plainly leaves the judge free to include in or exclude from his judgment whatever material he thinks fit. In that sense the judge has a discretion – and, in my judgment, a discretion which is fettered only by the dictates of the judicial conscience. As the Law Commission Report put it (para 17):
“The prohibition on publishing the evidence in divorce and similar cases, though it protects the public from being titillated by morning and evening accounts of the salacious details brought out in evidence, does not prevent it from learning those details in due course if the judge thinks it necessary or desirable to review the evidence in full in his judgment or summing up.”

40. So too, limb (B) of section 1(4) confers a similarly unfettered discretion enabling the judge to give “directions” in relation to any “notice or report”. The word “directions” is quite general; it is neither defined nor circumscribed. In my judgment it embraces any direction of the court, whether a direction that something is to be published or a direction that something may be published. Likewise, the other words are quite general; they are neither defined nor circumscribed. Although the word “report” will no doubt include such things as a medical or other expert report to the court, whose publication the judge then authorises, I see nothing in the 1926 Act to limit it to such documents. In my judgment, the word “report” is apt to include a report of the proceedings.
It follows, that limb (B) of section 1(4) recognises a discretion in the judge to make a direction authorising the publication by the media of a report of the whole of the proceedings, as opposed to the concise statement, allowed by section 1(1)(b)(ii), of the charges, defences and countercharges in support of which evidence has been given
So, having devised a judicial discretion, with some creative thought, to allow a Judge to authorise the publication by the media of a report of the whole of the proceedings, is the President going to exercise this discretion in this case? (If you think that the answer is “No”, then I would like to talk to you about a bridge you might be interested in buying)

42. Should I exercise that discretion? In the circumstances of the present case there can, as it seems to me, be only one answer. Publication by the media of a report of the proceedings before me does not, given the nature of the proceedings, engage the mischief at which the 1926 Act is directed. On the contrary there is, in my judgment, every reason why the media should be free to report the proceedings – proceedings which, to repeat, were conducted in open court and related to what, as I have said, was a conspiracy to pervert the course of justice on an almost industrial scale.
43. I shall, therefore, make a direction that there be liberty to the media and others to publish whatever report of the proceedings which took place before me on 9 and 10 April 2014 they may think fit. I make clear that this direction is, and is to be treated as, a direction within the meaning of limb (B) of section 1(4) of the 1926 Act.

44. On the assumption that the 1926 Act perhaps applies to ancillary relief (financial remedy) proceedings, judges may in future wish to consider whether to exercise discretion in such cases under section 1(4).
We should, therefore, get chapter and verse on this whole story from the Press soon. I am a bit miffed that they get to know, in breach of a ninety year old act, whereas I, as a member of the legal profession who could legitimately get to know all the details by way of a published law report am in the dark, but such is life.

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Posted in case law, transparency and tagged press reports and ancillary relief, press reports and divorce, publication of information from divorces, queen's procter, rapisarda v colladon 2014, the 1926 Act, transparency. Bookmark the permalink.

Successful appeal against placement order

Posted on May 8, 2014 by suesspiciousminds

The Court of Appeal’s decision in Re R (A child) 2014 and why an appeal is now even worse news for a Local Authority

http://www.bailii.org/ew/cases/EWCA/Civ/2014/597.html

It has been a little while since we had one of these “non B-S compliant” appeals, but just to let you all know that they haven’t gone away.

This was an appeal about four children, who were all made subject to Care Orders in August 2013, and the youngest two were made subject to Placement Orders.

The mother appealed, and when the case got to the Court of Appeal, the Court of Appeal were very troubled that from the original judgment, it simply wasn’t possible to tell whether the Court had really looked at the other options available, the positive benefits of those other options and whether adoption really had been the last resort.

The fundamental concern in the case had been the risk posed by the father. The Court of Appeal quoted what Lewinson LJ had said when granting the permission to appeal

“The risk …. that the judge found was clearly tied to Mr J and his inappropriate sexual behaviour. The material submitted by the local authority, which I have read and which is confirmed by the mother’s grounds of appeal, shows that the mother and Mr J are now divorced, no longer living together and the mother has no intention of resuming any relationship with Mr J. In those circumstances, I have a considerable concern that the judge did not make any clear findings about whether the risk which he identified continued to exist after the disappearance of Mr J from the life of the mother and her children. I have a concern also that the judge did not expressly deal with less draconian outcomes than the orders which she eventually made.”

And the final conclusions that the Court of Appeal reached were not markedly different to that.

On risk

21 The central issue in this case, as the judge saw it, was the sexual risk posed by Mr J. That risk was based upon the 2006 conviction although the judge referred to the allegations made by S as particularly troubling too. Plainly, she was entitled to take into account the existence of those allegations and M’s response to them but given that she had not made a finding that the disputed events in relation to S had taken place, she was not entitled to proceed on the basis that Mr J was a risk because he had sexually abused S. This is appropriately reflected in her formulation of the risks.

22 Two points immediately stand out in relation to the sexual risk posed by Mr J.

23 First, Mr J is only a risk to these children if he remains on the scene or is going to return to it. M’s case is that she separated from him within weeks after the events of August 2012 and has since divorced him. LA say that there is no direct evidence that she has continued to associate with him but they remain suspicious on grounds which they explained. However, the important point for the present judgment is that no finding was made by the judge about whether M was still associating with Mr J or would be likely to do so in future. Without a finding that he was likely to feature in her life or the children’s in some way, it is difficult to see how he could be said to pose a risk to these children. If he did not pose a risk, then it was academic whether M would be able to protect the children against him and no finding was made that she would be likely to take up with another man who would pose a similar risk.

24 Second, even if the evidence were to establish that Mr J may be part of the picture in future, any evaluation of M’s attitude to the risk he poses would have to take into account LA’s own attitude to that risk in May 2012. The risk flows principally from Mr J’s 2006 conviction and, knowing about that, LA permitted Mr J to live in the family home with the children from May 2012 onwards, without even supervisory oversight by LA who had closed the case. A rather sophisticated analysis of the situation would be required in order to accommodate this feature. The analysis may be further complicated by the need to take into account also M’s attitude to the August 2012 allegations that S made. Although it was not proved that things had happened as S said, there was no question but that she made serious allegations and LA would say, no doubt, that M’s failure to keep an open mind about them shows that she lacks the capacity to behave protectively. However, whether M’s attitude to the allegations counted for anything in the analysis of her ability to protect the children from risk in future would depend upon what facts were available to her about the situation in relation to S, either from her own knowledge or from elsewhere. Particularly careful evaluation of this feature of the case would therefore be required. The fact is that the judgment does not deal with these factors at all, neither referring to the older history of the case leading to it being closed in May 2012, nor dealing with the complex situation in relation to the August 2012 allegations.

25 This is a deficiency in the judgment which undermines the judge’s welfare decision fatally in my view.

26 Without a sufficient evaluation of the risk flowing from Mr J’s sexual activities, all that was left as a foundation for the judge’s view that M could not provide the children with emotional care and was unable to protect them was what she set out in §38.3 (supra). It would be difficult to argue that that alone was enough to justify the orders that she made.

On a failure to properly explore the other options

27 Lewison LJ questioned whether the judge had dealt sufficiently with the less draconian outcomes that might have been possible for these children. We explored this question further during the hearing and I concluded that the judgment did not, in fact, deal sufficiently with this.

28 Exactly what might be possible for the children will depend upon the precise nature of the risk that is found to exist – what is at risk of happening, how likely it is to happen and what the consequences would be for the children if it did happen. However, there is an obvious need at least to consider, in every case, whether the children could be protected whilst living at home by LA maintaining a supervisory role through the medium of a supervision order or even a care order. I note that M’s case was that the children would live with her and her parents (judgment §17). The judgment reports that the social worker did not see this as a viable arrangement for the children but there is no explanation as to why not. The social worker gave evidence about the difficulties of communicating effectively with the children and gaining an understanding of what was happening in their home (judgment §15) and also about the near impossibility of establishing a working relationship with M (§18). That may weigh heavily against a placement at home under supervision but whether or not it did would depend upon the nature of the risks against which the children needed to be protected, as to which I have already expressed my views above.

29 Part of the overall welfare evaluation needed to be a thorough examination of the implications for the children of being removed from home permanently, split up from their siblings (the plan being for them to be placed in two pairs) and, in the case of the youngest two, removed from their family permanently. These were not infants by any means. The evidence was that they were very loyal to M. The judge recorded that the oldest two were expressing a desire to go home. There was evidence that the youngest two, whose primary carer had consistently been M, seemed to have largely secure attachments and were resilient children, engaging and sociable and not giving rise to any concern in relation to their behaviour or social presentation (see the report of the clinical psychologist who assessed the children).

30 The judge précised some of the evidence of the clinical psychologist in her judgment. She reported, for example, that the psychologist said it was difficult to balance the sibling relationship against the individual needs of the children for stability and permanence in a placement (judgment §20) but this was in the context of a consideration of what should be done about the children’s placements away from home i.e. whether they should all be placed together or split so as to give the younger children the chance of being adopted. That was predominantly the focus of the rest of the evidence précised by the judge as well, from the social worker and the guardian.

31 As Re G [2013] EWCA Civ 965 has made clear, the decision whether an order should be made which will result in the children not going home has to be taken following a global, holistic consideration of all the factors in the case and each of the options available for the children. The judgment in Re G was, of course, only handed down on 30 July 2013, which was during the hearing of evidence in this case. It is well understood that its implications would not have been digested by the time that submissions were made and judgment given. Indeed, it is only fair to observe that 2013 was a year of upheaval for family law and I have no doubt at all that keeping abreast of developments must have been very difficult indeed for practitioners and judges alike.

32 For whatever reason, however, even taking the judgment as a whole and concentrating on substance rather than form, it cannot be said that the judge carried out “a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options” (see §54 of Re G). What was required was not only a comparison of adoption vs fostering and splitting the children vs not splitting them. The judgment needed also to deal with the possibility of returning them to their home, taking account of losses that the children would suffer if this were not to happen. Those losses needed, in turn, to be taken into account in considering the case for adoption/long term care. It may well be that the judge considered that she had covered the possibility of a return home in her précis of the evidence of the social worker and the guardian, whose evidence she found impressive and who considered that it would not be feasible because it would not be possible to work with M or the children. However, more was needed in my view, and I am confident that the judge would have dealt with these issues more fully had she had the benefit of all the observations that emerged from this court and the Supreme Court during the course of 2013.

The Court of Appeal therefore discharged the final orders and sent the case back for re-hearing.

They also raise a practice point, one which will make the average Local Authority lawyer’s hair stand on end like quills upon the fretful porpentine. They point out that as the appeal was brought by a litigant in person, the procedural formalities (making sure everyone was served, setting out clearly the issues, having all of the relevant documents in the bundle) weren’t complied with. They then say “there’s no resources for the Court to do all of this”

And of course they then say “So, Local Authorities, with their bottomless resources and pockets, will have to sort it out” (bear in mind that the LA are opposing these appeals, not bringing them)

6 This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

7 The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

8 It is important also that the respondents to the appeal make themselves aware of the issues that will be aired at the hearing. If permission is given in writing there will be an order which sets out shortly what the Lord Justice decided and why. If permission is given at an oral hearing, a short judgment will almost invariably be given explaining why and a transcribed copy of this should be sought.

9 I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014. Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult

In effect, if an appeal is brought by a litigant in person, the Local Authority should undertake all of their requirements as a Respondent, but also now do everything that the Court would normally expect an Applicant to do.

(And of course, remembering that whilst there’s no chance of the LA recovering THEIR costs if the appeal is hopeless or lost by a country mile, there’s authority to say that if the appeal succeeds costs orders can be made against the LA. )

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Posted in adoption, case law and tagged adoption, appeal, placement order, re b-s analysis, re r a child 2014, successful appeal against placement order. Bookmark the permalink.

the article 8 right is to family life, not a happy family life

Posted on May 5, 2014 by suesspiciousminds

Another case involving unregulated artificial conception of a child, and the difficulty in resolving the fall out afterwards

L v C 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1280.html

L and C were a same sex female couple. L was English, C Irish. They decided to have a baby together, and a male donor was found. C conceived and had a baby, G. G was born in October 2013.

Between August and December 2013, L and C lived together in England, and from Oct-Dec 2013 they shared in the care of G. They then split up, rather acrimoniously. C took G back to Ireland to live, and L has not seen her since. L made an application in the English Courts – believing that she would have no rights to make any applications in Ireland.

For permission to apply for a residence order and a contact order under the Children Act 1989.

For declarations that at the point of G’s departure from England, L v C was acting as her ‘psychological parent’ and that they shared family life within the meaning of Article 8 of the European Convention on Human Rights

Before the Court could hear the application on residence and contact, they had to consider jurisdiction. At the time the application was issued, G was back in Ireland with C, her biological mother.

Jurisdiction in respect of the Children Act application falls under the Family Law Act 1986 and the Council Regulation (EC) No. 2201/2003 (‘Brussels II Revised’ or ‘BIIR’) which, as its title states, concerns among other things ‘matters of parental responsibility’.

The effect of this regime is that this court will only have jurisdiction to entertain the application if G was habitually resident here on 25 February: Family Law Act 1986 ss. 2 and 3 and Arts. 8 and 16 BIIR.

If the court concludes that it does not have jurisdiction, and that the Irish court does, it must declare that it has no jurisdiction: Art. 17 BIIR.

If G’s place of habitual residence cannot be established, the Irish court will have jurisdiction on the basis that she is present there: Art. 13 BIIR.

The meaning of habitual residence has been considered by the European Court of Justice, by the Supreme Court and by the Court of Appeal.

In Re A (Jurisdiction: Return of Child) [2013] UKSC 60, the Supreme Court reviewed the European decisions in the cases of Re A (Area of Freedom, Security and Justice) (Case C-523/07) CJEU and Mercredi v Chaffe (Case C-497/10) CJEU. Baroness Hale, summarising at [54], emphasised that habitual residence is a question of fact and not a legal concept. The test is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends on numerous factors. The environment of an infant or young child is shared with those upon whom she is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

In Mercredi v Chaffe the European Court referred to the factors that must be taken into consideration as including, first, the duration, regularity, conditions and reasons for the child’s stay in the State in question and for the mother’s move there and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections that the mother and child have with that State.

The facts of the Supreme Court case of Re A are not at all similar to the present case. However, the facts of Mercredi v Chaffe are. A French mother and a British father cohabited until five days after the birth of the child. The father did not have parental responsibility. When the child was two months old, the mother unilaterally took him overseas. The father began proceedings in England and the mother began proceedings in France. Following the reference to the European Court, the Court of Appeal (at [2011] EWCA 272) held that the removal of the child had been lawful, that the English court’s jurisdiction was at best doubtful and in any event should not have been exercised in competition with that of the French court.

Applying the guidance to be found in these decisions, I find that when L v C’s proceedings were issued G was not habitually resident in England and Wales:

G had by then been living in Ireland for over seven weeks, a significant period for a baby then aged four months.

She was dependent on her mother, who was then habitually resident in Ireland, to which she had returned with the intention of remaining permanently and where she has deep, longstanding family and social connections.

G’s removal to Ireland by Ms C was lawful, a fact conceded by L v C.

I reach this conclusion despite accepting that:

Ms C was quite possibly habitually resident in England between August 2013 and G’s removal. (For what it is worth, the facts do not appear to sustain her argument that this four-month period of residence in England was the result of duress. Duress requires a complete overbearing of the will: see Re T [2010] EWHC 3177 (Fam) at [31]. That is not alleged here.)

G had not been outside England for the first 11 weeks of her life and was very likely habitually resident here during that period.

L v C has been habitually resident in England throughout.

L v C had had full parental involvement in G’s life up to the point of her removal.

In accordance with Art. 17 BIIR, I must therefore declare that this court has no jurisdiction in relation to matters of parental responsibility concerning G

Because G was not habitually resident in England at the time of the application and had not been unlawfully removed, the Court had no jurisdiction on residence or contact. (I think that where the judgment says “L v C” it means “L” and this has been some sort of find-and-replace snafu in anonymising the document)

That left the issue of whether L had acquired family life (and thus article 8 rights) with G in the period between October-December 2013.

There was firstly the argument about jurisdiction to consider – C was arguing that as all matters regarding G ought to be dealt with in the Irish Courts, the English court should stay out of this.

Ms Guha argues that the court does not have carte blanche to consider L v C application. She raises two objections. The first (which I shall call the ‘territorial’ objection) is a submission that the court cannot interfere in matters that are properly within the province of the Irish courts. The second (the ‘procedural’ objection) is that the court cannot make a free-standing declaration of human rights in the absence of substantive proceedings concerning the child. Ms Guha further argues that even if jurisdiction exists it should not be exercised in the circumstances of the case, and that if the court was considering doing so it would need to hear oral evidence.

On the ‘territorial’ argument, the Judge found against C

What is at issue here is the competence of this court to rule upon a specific situation that existed in England in respect of a child who had never lived anywhere else, involving the nationals of two contracting states, one of them English and all of them resident in England at the material time. As to the existence of an alternative forum, I entirely accept that this court should not trespass upon matters that would fall within the territorial jurisdiction of the Irish court. For example it would, as I have already held, be improper for this court to make orders about future arrangements for the child. But I do not accept that the declaration that is being sought would encroach upon the Irish court’s territorial jurisdiction. In fact there is as yet no indication that there will be proceedings in Ireland, that jurisdiction not having been invoked by either party at this point. And even if proceedings were taken in Ireland, their central focus would be on the child’s actual situation and not upon declarations as to past events. Nor do I accept that the issue of Art. 8 rights can only be determined by a court considering substantive remedies relating to the child. As discussed below, I would hold the question of whether such rights existed to be independently justiciable.

In the circumstances, while I understand the logic of Ms Guha’s objection, I would hold that there is no territorial obstacle to L v C’s application for a declaration being considered by this court.

That left the ‘procedural’ argument, that the Court could not consider article 8 rights purely in isolation with no substantive application. The Court was more sympathetic on that, but found against C

I turn then to Ms Guha’s ‘procedural’ argument. This is that the court cannot make a free-standing declaration of human rights in the absence of substantive proceedings. The argument is based upon s.7(1) of the Human Rights Act, which provides that a person who claims that a public authority has acted (or proposes to act) unlawfully may bring proceedings against the authority under the Act in the appropriate court or tribunal, or rely on the Convention right in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. It is argued that L v C’s application falls outside the ambit of s.7 because she is not claiming unlawfulness by a public authority, nor relying on her Convention rights in any substantive proceedings.

The relief L v C actually seeks is a free-standing declaration as to her Art. 8 rights. This is not a claim falling within s.7 of the Act, even though her claim has on a number of occasions been described as being brought ‘under the Human Rights Act’. Likewise, Ms Markham has suggested that the court could invoke its inherent jurisdiction to enable it to hear the application. In my view, recourse to the inherent jurisdiction would not add anything of substance. Lastly, the suggestion that the application for a declaration might gain a sound jurisdictional foundation as a result of being made alongside the ill-founded Children Act application cannot be right.

I therefore have some sympathy for Ms Guha in having had to respond to these distractions from the main point: that is whether a free-standing declaration as to human rights is possible or whether s.7 prevents this.

It is true that the Human Rights Act is normally deployed to challenge allegedly unlawful acts by public authorities (s.6) by making the claim within judicial proceedings (s.7) for a specific remedy (s.8). This provides a route for the enforcement of Convention rights, but it does not provide a statutory route by which their existence can simply be asserted in an appropriate case.

The whole tenor of the Human Rights Act is the protection of Convention rights domestically. There being nothing explicit within the Act to state that declarations cannot be granted in the absence of proceedings brought under s.7, there is no good reason to infer such a restriction. (I would add that I do not find that s.11, entitled ‘Safeguard for existing human rights’, assists on this issue. Its purpose is not procedural in relation to Convention rights but protective of rights arising outside the Convention.)

My overall conclusion is that the terms of the Act do not exclude the court’s power to make free-standing declarations as to Convention rights in appropriate cases and that such an application can be approached in the same manner as any other application for a declaration.

Rule 40 of the Civil Procedure Rules 1998 provides that the court may make a binding declaration whether or not any other remedy is claimed, or can be claimed. As stated in Financial Services Authority v Rourke [2002] C.P. Rep. 14 (Neuberger J), the power to make declarations is discretionary. The court can grant a declaration as to their rights, or as to the existence of facts or as to a principle of law. When considering whether to grant a declaration, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why the court should or should not grant the declaration.

Standing back, a conclusion that this court is impotent to make human rights declarations arising from past events occurring within its territorial jurisdiction would to my mind be capable of leading to a denial of justice. This casts doubt upon the correctness of such a conclusion.

For the above reasons, I would therefore hold that this court has procedural jurisdiction to entertain L v C’s application for a free-standing declaration.

All that this means is that the Court could legitimately consider L’s application for a declaration that she and G had family life, not that it had agreed that she had. That comes next

The first matter of relevance to the question of justice to the parties and to G is the degree of cogency of L v C’s argument in favour of her family rights. As to that, it is to be noted that there is no precise definition of ‘family life’ in Convention case law. It is a question of fact and one of substance, not form. There need to be close personal ties but these need not yet be fully developed provided there is potential for them to develop. There is no pre-determined model and family life must be interpreted in the light of modern trends. (See Clayton and Tomlinson ‘The Law of Human Rights’ 2nd ed. 13.04 -13.06). With less conventional family structures, the courts have taken a broad purposive approach. So it was held that a family relationship did exist in X, Y and Z v UK 1997 24 EHRR 143 between a woman, her female-to-male transsexual partner and the child she had conceived by artificial insemination. The court emphasised that the notion of family life is not confined to families based on marriage and can depend on a number of factors including whether the couple lived together and whether they demonstrated their commitment to each other by having children or by any other means (see Clayton and Tomlinson at 13.134 and 13.145 and Lester, Pannick and Herberg ‘Human Rights Law and Practice’, 3^rd Ed. at 4.8.49).

Applying these principles to the present case, L v C’s claim that family life existed is a compelling one. A balancing of these rights against the Art. 8 rights of Ms C and G is not a precondition to determining the rights of L v C. The fact that all such rights are qualified and would have to be balanced against each other in any welfare determination should not be confused with the question of whether they exist in the first place.

I next consider the question of fairness to Ms C and to G. Ms C undoubtedly dislikes any recognition of L v C’s role, saying hyperbolically that ‘she destroyed my and my baby’s family life’, but this does not translate into any unfairness towards her arising from the court evaluating the circumstances objectively. G’s own position is of great importance and in my view fairness to her calls for the circumstances of her conception and neonatal period to be reflected as accurately as possible amidst the adult discord.

This is also relevant to the question of whether a declaration would serve a useful purpose. There are two ways in which it might: first, as an objective contribution to G’s future wellbeing, and secondly as a record that may be useful to any other court considering her situation. Ms Guha argues that such a declaration would be meaningless in isolation from substantive proceedings in respect of the child. I accept that this might be the case, but it equally might not and I cannot see any detriment arising from the existence of an accurate declaration, any more than it would arise from an accurate judgment.

In the course of her argument, Ms Markham submitted that one reason why a declaration should be granted is that there would otherwise be a lacuna in English law in failing to protect L v C’s rights, and that there is positive obligation on the State to remedy this. I am not influenced by this argument. There is in my view no such gap in the law. Had the matter come before the court at a time when G remained in England, there are a number of legal remedies that might have been available to L v C, whether or not she had the support of Ms C. Nor can it persuasively be said that the law is failing in its treatment of the non-biological partner (male or female) of a biological parent who conceives as a result of informal arrangements. There would be many difficulties in seeking to equalise the legal consequences of licensed and unlicensed arrangements, fuller consideration of this issue being far beyond the scope of this judgment.

The international element is undoubtedly a special feature of the case, but I do not find that it provides a reason for declining to make a declaration. As stated above, the matter arises from events in England. It has been capably argued before this court, and there are no existing proceedings in Ireland. The limited nature of the declaration in question would not trespass on any potential Irish proceedings, and might even assist if there were any. It is said on Ms C’s behalf that an alternative legal remedy is available to L v C in the Irish courts, but this rests on the doubtful assumption that she has the emotional and financial resources to pursue that course in practice.

I do not consider that oral evidence is required to enable a decision to be reached in this matter. There is a mass of written material from which the picture is clear in all material respects. Both women speak of unhappy features of their relationship and ascribe responsibility for them to the other. But given the extent of the agreed facts, this difference in perception cannot colour the question of whether family life existed. What is in issue is the existence of family life, not the existence of happy family life, nor the reasons for unhappiness.

Drawing all these matters together, I shall refuse L v C’s applications except to the extent that I declare that at the date of G’s removal from England on 3 January 2014 family life within the meaning of Article 8 of the European Convention on Human Rights existed between G and L v C.

It is another important example that if you are in a situation where a child is being concieved by non-traditional means, you should think long and hard about how everyone involved feels about it, what they want, whether they should play a role in the care of the child, whether they should have parental responsibility, how legally you would acquire that, and what might happen if your non-nuclear family breaks up at some point in the future.

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Posted in case law, private law and tagged article 8, artificial conception, family life doesn't have to be happy to be article 8, l v c 2014, right to family life. Bookmark the permalink.

journalist’s right to private and family life with her source

Posted on May 2, 2014 by suesspiciousminds

A very interesting decision by the President sitting in the Court of Protection in Re G (an adult) 2014

http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

This is the 3rd judgment in relation to this 94 year old woman in the last two months. I’m going to try here, not to get too far into the controversy (I’m sure the comments will descend into that, but let’s TRY to focus on the principles and issues in THIS judgment)

THIS judgment relates to the application by the Daily Mail news group (ALN) to be joined as a party to the Court of Protection proceedings, to have an input into the questions to be posed to the expert, and ultimately to have the chance to cross-examine everyone. That’s a unique application, and the reasoning behind the decision is therefore interesting.

We do need SOME historical context though, so we need to know that the decisions being made by the Court of Protection are controversial, that G is 95 and that C her live-in carer is very actively campaigning about the controversial decisions and unfairness, part of that campaign includes involving the Press (the ubiquituous Mr Booker, and this time Ms Reid of the Mail on Sunday). G has talked to those journalists, and at times been very keen to tell her story, at other times it is said that she finds the press involvement intrusive. The Press want to report on the injustice that G and C may have suffered, and want to report as much as possible. In the second judgment, Cobb J ruled that there were doubts about G’s capacity to talk to the Press and that there needed to be an assessment of that and in effect a cease-fire on the Press talking to G until it could be established whether she (a) had capacity to do that and (b) if not, would it be in her best interests to do so.

If you want to skip to the chorus, it is HEARING THREE heading

Hearing one

The first judgment, 26th February 2014 was decided by Russell J. http://www.bailii.org/ew/cases/EWCOP/2014/485.html

That case was brought by the Local Authority, who had become concerned about the influence that C (the carer) was having over G, and particularly that G was being influenced to change her will to the benefit of C. (These allegations are all disputed by G)

This is the judge’s summary

In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

That judgment made reference to the press reporting of the case to that point, and that the press were present in Court

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

G had a degree of dementia. She was assessed by an Independent Social Worker (underlining mine)

Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

There was also an expert, Dr Lowenstein, who reported. Again, underlining mine for emphasis

The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

[The Court of course, did not HAVE to consider Dr Lowenstein’s evidence at all, since it had been obtained without leave of the Court, but they did so]

Russell J’s conclusions on G’s capacity were these

In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

A request was made for an order that C not exercise any of her powers under the Lasting Power of Attorney to manage G’s affairs and finances, and the Court agreed with this.

[Everything that the Judge decided is very hotly contested by those lobbying on C’s behalf, and indeed the journalists who have spoken to G, but the judgment was not appealed]

Hearing two

This was before Cobb J on 26th March 2014 http://www.bailii.org/ew/cases/EWCOP/2014/959.html

This hearing was particularly about whether G had the capacity to give interviews to journalists or be interviewed with a view to stories being reported. G remained living in her own home, with C as her carer (the only real change from the previous hearing was that C was no longer in a position to manage G’s finances)

Cobb J begins by remarking that members of the Press are present and that they are welcomed. He does pass comment on the reporting of the Russell J decision

I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.

Cobb J felt that the issue of whether G had capacity, and if not, whether it was in her best interests to talk to the Press required some specialised assessment and evidence

Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today’s application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

This approach was supported by the Official Solicitor in all respects.

Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

It is self-evident that the question of G’s capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority’s application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2^nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

Having made the decision to get expert evidence from Dr Barker on those issues, the only issue remaining was what should happen in the interim – should the Press be talking to G, or should those legitimate journalistic desires to get the story be put on hold until the Court could decide whether G had capacity to make that decision for herself?

I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G’s best interests that I should make such an order.

On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was “happy” that the article written by Ms Reid had indeed been written: “… it let them know what they do to the elderly“.

Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life.

On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: “The newspaper trying to say I am crazy when I am not crazy…” She has gone on to say, when asked about the article in the Daily Mail: “I don’t know how happy I would be about that. I don’t want anybody from the press. They put what they like. They put in details that are not correct.” She also told me that she valued her privacy.

There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly “in the spider’s web … the fly cannot get out of the spider’s web“. She has confirmed elsewhere and to others that C is “the spider“.

There is a concern that while Ms Reid has indicated to me that she has made but one visit to G’s home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

“She said reporters are always at her home or phoning her“.

That said, she added:

“She said she wants people to know what is happening to her and that it has gone all around the world already.“

And

“I asked her if she remembered the name of anyone she had spoken to. She said she did not.“

I bear in mind, when considering G’s best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

It seems to me that, weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2^nd May.

I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form

Readers may also be interested in the paragraphs dealing with C taking G to protest at Parliament.

The other issue was that C was resistant to social workers visiting G

I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

“were not in a position to act as a substitute for Social Services … she” [that is a representative PCSO from the Redbridge Neighbourhood Team] “…did not think they had the resources to commit to twice-weekly visits … the Neighbourhood Team did not want to get drawn into court proceedings but would agree to resume visits to [G’s home] on an ad hoc basis … the team could not commit to a weekly visit but would ‘pop in every so often and have a chat with G for ten minutes’.”

For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G’s welfare within the home.

I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

Again, this is all hotly contested, but the judgment has not been appealed

Hearing Three

This one was before the President, on 1st May 2014 http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

Apologies in advance, some of this is going to have to get technical.

There were two issues raised

1. Was Ms Reid, journalist for the Mail on Sunday, in any trouble? And latterly, did she have an article 8 right to private and family life that allowed her to visit G and have a say in her life?

2. Should Associated Newspapers Limited ( the Mail) be joined as a party to the proceedings, as per their application, and could they have an input into the questions to be put to Dr Barker following Cobb J’s judgment above?

The first is thankfully pretty short. Cobb J of course said that until the next hearing when Dr Barker’s report was available, journalists should not interview G, that it was not in G’s interests to talk to the Press and that “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings … “

What happened, allegedly, after that judgment was given, was that Sue Reid from the Daily Mail spoke with G and in effect said that she was not allowed to interview her anymore, but would visit her as a friend. (I say alleged, because of course the Court has not made any findings or heard any evidence, and this assertion might be complete nonsense. One has to be fair. All I can see is that from THIS judgment, the President does not say that the allegation is denied. It could well have been, but it just did not get recorded in the judgment. So it is an allegation only.

On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

“After the hearing Ms Reid was heard outside court telling G that as the judge had stopped Ms Reid contacting her, Ms Reid would have to make social visits to G instead. Clearly this would be completely inappropriate in view of the judgment of Cobb J. The court heard that Ms Reid has only met with G at her home on one occasion and we assume that this was for the purpose of publishing her article dated 20 February 2014. We are not sure why Ms Reid would seek to make social visits to G

We write to clarify that Ms Reid will not seek to circumvent the Order of Cobb J by making social visits to G. Please respond urgently confirming that Ms Reid will not attempt to visit G before this matter returns to Court on 2 May 2014.”

ANL replied on 3 April 2014. Its response prompted the Official Solicitor’s solicitors to write again on 8 April 2014:

“We write further to your letter dated 3 April 2014. The Official Solicitor remains concerned about your client’s proposed actions and note that you have not provided an assurance that Miss Reid will not seek to visit G before the matter is again before the Court on 2 May 2014. We refer you specifically to paragraph 40 of the Judgment of Mr Justice Cobb dated 26 March 2014.

We enclose a sealed copy of the Order of Mr Justice Cobb dated 26 March 2014. In view of this please can you confirm whether your client has made any social visits to G since the hearing on 26 March 2014 and whether she intends to make any visits in the future?”

In the interests of fairness, I shall report that whether those allegations were true or not did not trouble the President, since even if they were true, he didn’t think they raised any concern that should worry the Court.

As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

So there you go, whether Ms Reid had said this or not, it would have been fine if she had said it, and it would have been fine if she had in fact gone to visit G as a friend. [I might myself have had a different view as to the true purpose of those visits, but what is sauce for the goose is sauce for the gander – the Judge has said it, nobody has appealed it, so the issue is settled]

On the secondary issue, whether Ms Reid had article 8 rights in relation to G

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

[In a case that is already peppered with D and G, and F and H, the Judge explained all of the article 8 issues by use of X andY, which makes it hard going. In effect what he says is that G can have an article 8 right that she wants to spend time with Sue Reid, but if G doesn’t want to spend time with Sue Reid (or lacks capacity and the Court have to rule on her best interests) then Sue Reid doesn’t have an article 8 right to access to G. It is more complex than that, I’ve reduced it to a manageable form because there are real people reading this blog]

The big stuff then – should ANL be made a party? Having already dragged X and Y into the alphabet soup, we broaden out by introducing here S (the subject – here G) and J (the journalist, here Sue Reid).

Where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.

But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

“in a case such as this there are in principle three questions which have to be considered:

(i) Does Pamela lack capacity? If yes, then

(ii) Is it in Pamela’s best interests that the film not be broadcast? If yes, then

(iii) Do Pamela’s interests under Art 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Art 10.”

The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.

Assuming that S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.

As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

Of course, the court’s best interests decision in relation to S is not necessarily determinative. If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought.

[That’s very considered and dense stuff – basically the Judge is saying that people get party status to litigate if there is a conflict between them and the other parties that gives right to an argument that the Court has power to resolve and needs to resolve. There isn’t that here. ANL have legitimate interest in any application for Reporting Restriction Order or injunctions against them or their staff, but they don’t have a legitimate interest in the argument between G, C and the Local Authority. They might be interested IN IT, but that’s not the same thing]

ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person’s best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. On the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another [2014] EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.

I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.

(I will conclude by saying that whilst I too think that the ANL application was misconcieved in law, I can see why in practice they made it. IF their story is (and it pretty much is) that the Court of Protection is a wicked terrible body, interfering with people’s freedoms and ignoring what dear old G wants, then I can see why they think that the Court of Protection DECIDING whether G should talk to the Press is something of a conflict of interest. Imagine for a moment that it had been Maria Miller’s decision and it had been solely up to her whether any of the Press were allowed to report her expenses scandal. As the ANL think that the expert is going to be set up to say “Don’t let G talk to the Press, it isn’t good for her” they wanted to have an input into what he was asked and to have the chance to cross-examine him if that’s what he said. That somewhat ignores the fact that C is already a party and is able to have that input and cross-examine Dr Barker, but I can honestly see why the Mail made this application from an emotional and journalistic perspective. They couldn’t have got a judge who was more keen on transparency and openness though, so if they couldn’t persuade the President, it was a hopeless application)

I will add that I think that Sue Reid genuinely believes that what is happening here is an outrage and a miscarriage of justice, and that she is reporting what C and G are saying to them with absolute sincerity. It is absolutely right that she follow her journalistic instincts and that if there is something rotten in the State of Denmark that this be exposed.

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Posted in adult social care, case law, court of protection, transparency and tagged article 10, article 8, associated news limited, booker, court of protection, daily mail, president, re G (adult) 2014, sue reid, transparency. Bookmark the permalink.

Blood transfusion and Jehovah’s Witnesses part 2

Posted on May 1, 2014 by suesspiciousminds

Nottinghamshire Healthcare NHS trust and RC 2014

http://www.bailii.org/ew/cases/EWCOP/2014/1317.html

This one came before the Court of Protection earlier this year, and I wrote about it here

https://suesspiciousminds.com/2014/04/14/ethical-dilemmas-and-blood-transfusions/

Where Holman J was sympathetic to the hospitals decision not to impose blood transfusions on someone who did not want them, even though there was an argument that they COULD impose them under s63 of the Mental Health Act, but decided he needed the patient to be represented through the Official Solicitor and to hear full argument before deciding the case.

It is important to remember throughout that the Trust were minded to follow RC’s wishes and not administer blood transfusions (even life-saving ones) against his will, but because of the risk that this could contribute to his death, they wanted to seek a declaration from the Court of Protection / High Court that it was acceptable to do this.

[Peculiarly, this judgment never once mentions that earlier judgment, but it would be astronomically surprising if Nottinghamshire had two different Jehovah’s Witnesses who were self-harming and refusing blood transfusions and the doctors sought a declaration that they wanted to respect his wishes even though it might result in his death, so I think it is the same case]

Mostyn J gives a very thoughtful judgment, and draws on some important jurisprudence and philosophy

8. In principle, every citizen who is of age and of sound mind has the right to harm or (since 1961) to kill himself. This is an expression of the principle of the purpose of power found in the Declaration of the Rights of Man and of the Citizen (1793) and in John Stuart Mill’s essay On Liberty (1859) where he stated at pp14 – 15:

“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign”^[1]

9. Thus Judge LJ in St George’s Healthcare NHS Trust v S [1969] Fam 28, 43 stated:

“Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it.”

10. This right applies equally to detained citizens. In Home Secretary v Robb [1995] 1 FLR 412 Thorpe J stated:

“…every person’s body is inviolate and proof against any form of physical molestation …. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner”

However, there are three sets of circumstances in which a person’s autonomy over their own body can come into question and where the State might override their decisions

13. There are three circumstances where adult citizens may have treatment or other measures imposed on them without their consent.

i) Adults lacking capacity who pursue a self-destructive course may have treatment forced upon them in their best interests pursuant to the terms of the MCA.

ii) Similarly, adults who have capacity but who can be categorised as “vulnerable” and who as a consequence of their vulnerability have been robbed of the ability to give a true consent to a certain course of action, may also have treatment or other measures imposed on them in their best interests pursuant to the inherent jurisdiction of the High Court (see DL v A Local Authority [2012] 3 WLR 1439, and Re SA (Vulnerable adult with capacity: marriage) [2006] 1 FLR 867).

iii) Under the Mental Health Act 1983 (“MHA”) a detained patient may have treatment imposed on him or her pursuant to section 63 which provides, so far as is relevant to this case:

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, … if the treatment is given by or under the direction of the approved clinician in charge of the treatment”

At first blush section 63 strikes one as an illiberal provision, given that it applies to all detained mentally ill patients who may well not lack capacity (as here). However, it can be well justified when one reflects that the treatment in question may be needed not merely for the protection of the patient but also for the prevention of harm to others, given the violent eruptions to which mental illness can give rise

On the first of those, the Judge very carefully considered the capacity issue and determined that RC had capacity to decide to refuse blood transfusions and the fact that his decision was centred on religious beliefs did not diminish his capacity

33 A fundamental principle under section 1(2) MCA is that capacity is to be assumed unless it is established, on the balance of probabilities, to be lacking. The effect of section 2 and section 3 MCA is that a person will lack the capacity to make a decision if, by reason of mental disorder, they are unable to understand, or retain, or use or weigh up the information relevant to that decision, or to communicate their decision. In this case Mr Francis QC correctly argues that the only the possible question relates to whether RC is able to weigh information in the balance. In his report Dr Latham says:

“His ability to weigh the risks of refusing blood against his religious beliefs is difficult to describe because his religious beliefs effectively create, in his mind (and others) an absolute prohibition on blood products and so there is relatively little “weighing” when it comes to this decision.”

34 This aspect of the test of capacity must be applied very cautiously and carefully when religious beliefs are in play. In his essay John Stuart Mill speaks of the prohibition in Islam on the eating of pork. He describes how Muslims regard the practice with “unaffected disgust”; it is “an instinctive antipathy”. There can be no circumstances where a Muslim could “weigh” the merit of eating pork. It is simply beyond the pale. So too, it would appear, when it comes to Jehovah’s Witnesses and blood transfusions. But it would be an extreme example of the application of the law of unintended consequences were an iron tenet of an accepted religion to give rise to questions of capacity under the MCA.

35 I therefore place little emphasis on the fact that a tenet of RC’s religious faith prevents him from weighing the advantages of a blood transfusion should his medical circumstances indicate that one is necessary.

36 I am completely satisfied on the evidence and so declare that RC has full capacity to refuse the administration of blood products.

That rules out the possibility that the Court could declare under the MCA that the treatment was in RC’s best interests, because RC has capacity to say no.

Mostyn J agreed that the Trust were right to have sought the guidance of the Court before finalising a decision about whether to impose blood transfusion treatment under s63 of the Mental Health Act

21 In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a “full merits review” of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.

Was this, as a matter of fact and law, a s63 case in any event? Mostyn J eventually concludes that it is, and that the Trust COULD theoretically administer the blood transfusions against RC’s wishes

27 Both the treating clinician, Dr S, and the independent forensic psychiatrist Dr Latham made written reports, attended a meeting (by telephone) and gave oral evidence to me. They were almost unanimous. They agreed that:

i) RC suffers from a mental illness namely antisocial and emotionally unstable personality disorders. This is a disturbance of the functioning of the mind, which is one of the classic definitions of mental disorder.

ii) However, he has full capacity to refuse blood products. His refusal derives almost exclusively from his religious faith. Further, he had full capacity to enter into the advance decision on 4 April 2014. Further still, his decision to adopt the religion of the Jehovah’s Witnesses was made with full capacity.

iii) So far as RC’s capacity to harm himself is concerned on occasions he does so with full capacity. However, on other occasions, particularly at times of severe emotional distress, it is likely that he does so without the capacity to choose to self-harm.

iv) RC harms himself with the intention of distracting himself from distressing thoughts and feelings. He does so without really thinking about the consequences and dangers. However his view is that it is his body and therefore his choice to damage it.

28 Where they disagreed was whether the administration of a blood transfusion amounted to treatment which prevented the worsening of a symptom or manifestation of RC’s mental disorder. Dr S was of the opinion that it plainly was. Dr Latham disagreed. He wrote in his report

“In my opinion, it is crucial that any “treatment” for mental disorder provided under the direction of an approved clinician is recognised as a treatment for mental disorder in psychiatric terms and is given [as] a direct consequence of the symptom or manifestation of the mental disorder. In this regard, the treatment of force-feeding for eating disorders could be recognised as a “treatment” but I think it is highly unlikely that a blood transfusion could be. This in my view, might provide a way to “draw a line” so as to ensure proper protection of people’s right to refuse treatment where they have capacity to do so.

In conclusion, any treatment with a blood transfusion is not, in my opinion a treatment for mental disorder, nor is it treatment for a symptom of that mental disorder. It is a treatment for a physical consequence of a symptom of the mental disorder; hypovolaemic shock or life-threatening anaemia. This consequence is not wholly as a result of the self harm but contributed to by his treatment with warfarin. The treatment with warfarin is unrelated to his mental disorder.”

29 Miss Watson, who represents RC, adopts this reasoning and states that it is in fact consistent with the authorities. Miss Dolan, who represents the NHS trust, and Mr Francis QC who acts as advocate to the court, disagree and suggest that a proper interpretation of the authorities must lead to a conclusion that Dr S is right and that a blood transfusion would plainly amount to treatment of a symptom or manifestation of the underlying mental disorder.

30 If I were confined to the literal words of sections 63 and 145(4) I think I would agree with Dr Latham and Miss Watson. However, the authorities have supplied a definition which is some distance from the meaning of the literal words. In St George’s Healthcare NHS Trust v S at 747F Judge LJ stated that “section 63 of the Act may apply to the treatment of any condition which is integral to the mental disorder”.

On reflection I am in agreement with Mr Francis QC’s analysis. It cannot be disputed that the act of self harming, the slashing open of the brachial artery, is a symptom or manifestation of the underlying personality disorder. Therefore to treat the wound in any way is to treat the manifestation or symptom of the underlying disorder. So, indisputably, to suture the wound would be squarely within section 63. As would be the administration of a course of antibiotics to prevent infection. A consequence of bleeding from the wound is that haemoglobin levels are lowered. While it is strictly true, as Dr Latham says, that “low haemoglobin is not wholly a manifestation or symptom of personality disorder”, it is my view that to treat the low haemoglobin by a blood transfusion is just as much a treatment of a symptom or manifestation of the disorder as is to stitch up the wound or to administer antibiotics

In this case, where the hospital did not intend to go against the patient’s wishes, that decision may not have too much importance, but it has wider implications for other patients. If a mentally ill person is self-harming and bleeding, then s63 of the MHA can be used, the Court have ruled, to administer a blood transfusion. [Although see the next portion of the article to see that this is very substantially qualified]

The next question was, having established that the Trust COULD do this under s63, SHOULD they?

41 Finally I turn to the declaration which is sought pursuant to the inherent jurisdiction of the High Court concerning the decision of Dr S not to invoke the powers under section 63 MHA. In her first witness statement at paragraph 8 she stated

“I have some ethical difficulty in using the MHA to override a capacitious patient’s wishes based on religious wishes and I would not choose to use my MHA powers to override his advanced (sic) decision”

42 In my judgment, conducting, as I must, a full merits review, I conclude that the decision made by Dr S is completely correct. In my judgment it would be an abuse of power in such circumstances even to think about imposing a blood transfusion on RC having regard to my findings that he presently has capacity to refuse blood products and, were such capacity to disappear for any reason, the advance decision would be operative. To impose a blood transfusion would be a denial of a most basic freedom. I therefore declare that the decision of Dr S is lawful and that it is lawful for those responsible for the medical care of RC to withhold all and any treatment which is transfusion into him of blood or primary blood components (red cells, white cells, plasma or platelets) notwithstanding the existence of powers under section 63 MHA.

That would seem then to be that s63 MHA could be used to administer a blood transfusion to a patient who was refusing it, but where that patient has capacity to refuse it and gives reasons, it would be wrong to impose it on them, and acceptable for the hospital to withhold that treatment.

The distinction, I suppose, being a patient who says “I don’t want any treatment” and one who expresses a decision to refuse blood transfusions. It is a little bit tricky to square this decision (which I think is right) with the Brady decision to impose force-feeding under s63 on Ian Brady (which I personally think was wrong).

Both involve the use or not of s63 for treatment which comes lawfully within the section, but this case involves more consideration of whether, having established that s63 COULD be used, it SHOULD be used

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Posted in case law, court of protection and tagged blood transfusion, jehovah's witness, nottinghamshire healthcare nhs trust and j 2014, nottinghamshire nhs trust and rc 2014, right to refuse blood transfusion, section 63 mental health act. Bookmark the permalink.

Misuse of police protection – human rights claim

Posted on May 1, 2014 by suesspiciousminds

The High Court have ruled on a case involving the misuse of police protection in Re A-W & C (children) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B41.html

Section 46 of the Children Act allows for a police officer to remove a child from a parent (i.e without an order) for a period of up to 72 hours. [Most professionals call this removal under police protection a PPO , in echoes of an EPO, but it is not actually an Order]. The decision is made by a senior police officer, not the Court.

In this case, the removal under police protection happened DESPITE solicitors representing the mother alerting the Local Authority that they were seeking a declaration from the High Court that the use of those police protection powers would be unlawful.

When the High Court dealt with the interim care order hearing, the child having been removed shortly after birth by the police, they ordered that a mother and baby foster placement be found, to reunite the mother and baby.

It is alarming how something like this could occur, the Courts having made it extremely plain in both Langley v Liverpool 2005 and A v East Sussex 2010 that in almost every case where removal is sought, this should be by way of a Court’s decision, not the use of police protection. The words used in those cases were not vague, they are crystal clear

“It is also right to say, I think, that the separation of mother and child under an ICO in care proceedings is, for good reason, usually a judicial as opposed to an administrative decision. The court is the parent’s safeguard against arbitrary or inappropriate action by a local authority. Thus in the overwhelming majority of the cases, it will be for the judge or magistrates to make the decision. I can thus readily understand Her Honour Judge Finnerty’s view that both she and the Family Proceedings Court were, inappropriately, being presented with a fait accompli.
67.

“For the local authority to succeed in this appeal, therefore, the facts have to be regarded as wholly exceptional.”

The President goes on at paragraph 68, having dealt with some of the facts of that case:

“In anything other than wholly exceptional circumstances, the rule must be that it is for the court to make the relevant decision unfettered by events which effectively curtail its powers. The question, therefore, is whether or not the current case can be said to be ‘wholly exceptional’.”

And even if nobody reads law, then the police ought to have regard to the Home Office circular which gives advice on the use of those powers

Home Office Circular 17/2008, to which I have already made reference, helpfully provided to me by Mr Firbank. That Circular issues guidance to the police in the use of their powers under section 46. There had been earlier guidance both in 1991 and 2003 and I suspect that the 2008 guidance was issued after the Liverpool case to which I have made reference to reflect the law as it emerged from that case. Paragraph 3 of the guidance reads as follows:

“The provisions of the Act aim to strike the proper balance between the provision of speedy and effective help to children at risk and unwarranted interference in family life. The underlying principle of the Act is that the welfare of the child is paramount.”

The guidance goes on to say at paragraph 15:

“Police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent should be made by a court.”

It goes on to say at paragraph 16:

“All local authorities should have in place local arrangements (through their local Chief Executive and Clerks to the Justices) whereby out of hours applications for EPOs may be made speedily and without an excess of bureaucracy. Police protection powers should only be used when this is not possible.”

In this particular case, the Local Authority had concerns about the safety of the child at home (such concerns would have entitled them to commence Court proceedings and perhaps even to seek a plan of separation). The mother had got legal advice, was talking to the Local Authority, was not threatening to leave the hospital or go home – she did not agree section 20 voluntary accommodation in foster care, she wanted the opportunity to fight the Local Authority’s case in court.

Because the social worker and a police officer turned up at the hospital, mother’s representatives very quickly worked out that the child was going to be removed under police protection (i.e by administrative decision not a judicial one) and wrote to the Local Authority indicating that this would be unlawful and that they would be seeking a declaration from the High Court to this effect.

That didn’t dissuade the LA from their unlawful course of action, and the police duly removed the child.

By the time of the Human Rights claim, the LA had put their hands up to the breach of the mother’s human rights.

However

They would not concede any declaration that the local authority should have sought an emergency protection order pursuant to section 44 of the Children Act 1989 when they erroneously believed that a contested ICO could not take place. The police have made no concessions at all as to the process adopted by their officers on that day.

And therefore the Court had to deal with the matter and give judgment

This was the written evidence of the police officer about the decision to remove

I turn back to DC K’s document. This document is a Lancashire Constabulary pro forma document prepared, presumably, in compliance with the Home Office guidance that I have read. It sets out the identity of the officer taking the child into protection, that is DC K. It sets out the details of the child. It sets out her location when taken into police protection, namely neonatal ward RLI. The paragraph under the heading “Reasons for Taking Child into Protection” reads as follows:

“Baby is currently subject of a child protection plan (neglect). Parents under investigation on suspicion of physical assault towards older sibling.”

Those are the reasons as they are set out in their entirety on that form. The form goes on to record that the child was taken into police protection at 12.40 on Monday, 18^th February and records the address to which she was taken. It seems to me from the evidence that the point at which the advice was taken, during the morning before attendance at hospital, was likely to be when that document was prepared.

You might be thinking that this is rather sketchy on the critical issue – why it was necessary to do the removal without going to Court. The Court agree with you.

I pause to say that the grounds set out in that document appear to me to be thin and poorly reasoned. The use of police protection was seen by DC K as necessary by reason of the mother’s lack of co-operation and failure to agree to section 20. That was referred to by both the social worker and DC K in evidence repeatedly as a mother refusing to work with or engage with the local authority. References were made in the written evidence of both witnesses to the mother’s solicitor’s demands as if those demands were in some way obstructive. That did not seem to me to be a proper approach to a young and vulnerable parent who was merely following her own legal advice properly given. In any event the social worker and two policewomen – I think there was also a student social worker there as well – met up at the hospital that morning. The social worker had invited the police to come and they had gone ready to use section 46 if necessary. There can have been absolutely no other purpose to the police officers attending on that day and this is confirmed by DC K’s statement (from G203 in the Court bundle):

“On Monday, 18^th February 2013 Michelle Lee contacted me and said that the baby was ready for discharge but the parents are not agreeing to voluntary accommodation. I agreed I would attend the hospital to try and encourage the parents to engage with social services. I updated Inspector BL about the situation. Myself and DC L attended the neonatal to see the mother and father.”

It emerged during the evidence of the social worker that DC K was quite set upon asserting a need for separation to the social worker. I, frankly, do not understand why the efforts of the local authority were not directed at getting an urgent hearing to scrutinise the separation rather than at that stage enlisting the police to secure one as a backstop. I note again that the mother was not threatening to remove A from the hospital. Equally the hospital was reporting her care of A over the weekend as having been good. ML did have conversations with the local authority solicitor during the morning. She told me that she did not think a hearing on a contested ICO would be achievable until Wednesday or Thursday of that week and she did not consider it safe for mother to care for A until then. I think she was particularly concerned about overnight care. Privilege as to advice about why an EPO should not be used was not waived and I, therefore, do not know why that alternative, which would have afforded mother and father some voice in decision-making, if not the children’s guardian as well, was not considered. In fact, had that alternative been investigated it would have become clear that a contested ICO before me was possible that afternoon. The real significance for me, therefore, is not whether or not the local authority legal advice as to EPO would be preferable but as to whether any effort was made to investigate or re-investigate whether an application for an EPO or an ICO could take place.

One of the problems in this case was that those at the hospital, the social worker and the police officer, did not keep themselves informed about when the earliest court hearing could take place. They were not asking their superiors to press for such a hearing. I consider that both finding out and pressing for an earlier hearing were reasonable expectations in respect of both the social worker and the police officer in executing their duties under their statutory responsibility. Quite apart from this, even if a contested ICO hearing were not possible until the Tuesday or Wednesday or Thursday there is an onerous burden upon a local authority to find alternative arrangements during the delay which would hold the balance of protection and which do not require separation.

The Court went on to remind the Local Authority about Re CA, and that s20 consent must be freely given, not “compulsion in disguise” and that having a police officer present during the discussions would have led to a legitimate complaint that the principles of s20 had been breached, even if mother had agreed.

This is bolstered by the existing caselaw

The second is Surrey County Council –v- M, F & E [2012] EWHC [2400] a decision of Mrs. Justice Theis and at paragraph 60 she said this:-

“To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, reinforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the local authority sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order.”

It isn’t a genuine discussion about s20 consent if there is an explicit or implicit threat that the police will remove the child.

The police officer gave evidence (bear in mind that the police position was that the use of powers was lawful and not a breach of mother’s human rights, so the idea of giving evidence is to persuade the Judge of that)

I heard oral evidence from DC K. I have already referred to her statement, but I have not yet read into this judgment the sentiments contained in that statement at the end, which I consider to be somewhat alarming. She says this:

“I can categorically state that I was in no doubt that a police protection order was absolutely essential in order to keep A safe. I came to that informed decision having paid great attention to the background of this family, in addition to my recent involvement with them. Basically if this child had been allowed to return home with the parents then I would have been neglecting my role as a police officer. I am a child protection officer and that is what I did on that day. My actions were not at the instigation of the local authority.”

She did not draw back from that stance during her oral evidence. She is obviously a very experienced officer. She demonstrated pride in the role she holds in child protection. Her demeanour is pleasant and sensitive and I can well imagine that she has an excellent manner with both the parents and the children she encounters in the course of her duties. However, I consider her approach on 18^th February in taking A into police protection at the point in time that she did to have been fundamentally flawed. It was plain that she went to the hospital with the intention, were mother not to agree to accommodation, of taking the child into police protection.

Euphemistic language was used during her evidence about encouraging parents to co-operate or engage with the local authority. However, it is plain that in DC K’s mind the co-operation could only take one form, namely agreement to section 20. When the mother, acting on her solicitor’s advice, refused to consent DC K encapsulated her was “We can’t just go up there and be blocked”. Later I repeated this in asking her questions myself and she seemed to think that the word “blocked” was one that I had used and not her. I am quite clear in my note that those were her words. She failed to weigh into the balance the fact that the parents were co-operating with the local authority in every regard except with regard to a separation pursuant to section 20. They were not threatening to remove A; they were responding to their own legal advice; they had cared for A well on the ward. Not only did DC K have a low threshold for the need for intervention, which to my mind did not arise at all unless or until the hospital was to insist upon discharge and at that point the parents sought to go home with A, but she also seemed to pay little or no heed that the S46 route into to the care of the local authority is the one to be least preferred, affording, as it does, no right of argument or judicial scrutiny.

I refer again to the document that she wrote, as I said probably in advance of attending the hospital, countersigned by her Inspector. It seems to me that it would be strongly arguable, that, even had the decision to go by section 46 occurred out of hours, the justification set out in that document is insufficient. I know that DC K in evidence advanced a lot of other reasons in addition to those set out in the document, but it is very important that the documents to be kept as records of when an authority is to take an action of such consequence as this one contain full reasons even if in summary and note form. She and Inspector BL both took as read that there could be no court hearing until later in the week and that an EPO was not an available route. I consider that both DC K and Inspector BL as the designated officer had a separate duty from the local authority to ensure, not only that separation and protection were absolutely necessary, but also that this route to it was absolutely necessary and that there was no prospect that a separation could be scrutinised or, if necessary, endorsed by a court. She should have been asking herself, “Why do I have to make this decision now?”. So, however impressive DC K was in terms of her commitment and her demeanour, her failure in exercising such a draconian power to establish that this route to protection was absolutely necessary was unimpressive

The Court made its decision about whether the police action had been unfair and a breach of human rights

The separation of a parent and child by any authority is a most serious act and it must be necessary and proportionate. The gravity and importance of that principle is all the more acute where that child is a newborn and magnified when the mother of that child is herself a child. Protection of the child, of course, is a foremost priority but protection does not require in every case an enforced separation. There are a whole range of remedies before enforced separation, which is the absolute last resort. Decisions as to whether that protection is necessary should be made by a court, and decisions as to what course is the least interventionist necessary should be made by a court. There was a duty, it seems to me, not just on the social worker but on the police themselves to look at the route into protection. DC K did acknowledge in her evidence that separation is always the last resort. It did not seem to me there was any real acknowledgement that section 46 as the route of that separation is also the route of last resort. As I have said, the local authority has made concessions. The police are completely unapologetic. DC K was absolutely convinced of the need for intervention but she is ill equipped to look at the form of protection needed. Her assumption was that the local authority plan for separation was the only route and she made no or no sufficient effort to find out whether a court was available to weigh up the alternatives. She was far too ready to assume responsibility and take the decision without acknowledging that it was for a court to determine what was necessary and proportionate. That type of decision making is quite understandable late at night, at weekends, at Bank Holidays, in the context of parents determined to not work with the local authority, demonstrating violence or threatening to snatch a child from where that child is considered to be safe. None of those things applied here.

The mother had not sought any financial compensation, wanting just the principle to be decided

The relevant parts of those declarations read as follows:-

Lancashire County Council has acted incompatibly with the rights of CMC, as guaranteed by Article 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms 1950 in that it:

• Failed to complete its pre-birth assessment and that consequent pre-proceedings steps were not taken (article 6 and 8).

• Failed to issue its application for a care order and an interim care order at the time of A’s birth to enable there to be consideration by the court of whether to exercise its powers prior to her discharge from hospital. (article 6 and 8).

I note what was said by Mr Rothery in his submissions that it is the experience of the children’s guardian in this case that this is not an isolated incident of an over willingness to use section 46 in this area. If that is the case it is very much to be hoped that better practice will emerge from this hearing, hence I have taken some time and trouble to deliver that part of the judgment.

[I continue to hear about misuse of s46 powers from a variety of parts of the country, and I believe that the Guardian was right here]

The principles in this case really ought to go without saying, but it seems that the lessons from Liverpool and East Sussex still haven’t been learned.

If the police are exercising their power under s46, the fundamental question is not “Is this child at risk of harm” but “What are the reasons why a police officer should do this NOW, rather than a Court decide it?”

There are circumstances in which the use of s46 powers will be warranted (the shorthand that used to be used when I started was “life and limb” – i.e the harm or risk of harm was so great that waiting even an hour would be unthinkable), but the use of s46 is clearly still prevalent in the country as a speedy and efficacious way of removal before going to Court, and that is fundamentally wrong.

I would be amazed if the next mother this happened to was as sanguine as this one was about compensation.

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Posted in case law and tagged a v east sussex 2010, langley v liverpool 2005, liverpool v x 2005, police protection, police removing children, ppo, re a-w and c 2014, section 46 children act, wrong to have a police officer present during s20 discussion. Bookmark the permalink.

Did Adam and Eve receive a fair trial?

Posted on April 30, 2014 by suesspiciousminds

Nonsense.

I came across a quotation from a very old criminal case a few weeks ago and it has been on my mind – I can’t turn up the reference today save that the Judge was Fortescue, will try to find it. Anyway, the thrust of it was that the Judge, in explaining the need for fairness and procedure in criminal proceedings brought in the reference of Adam and Eve, in effect saying that God did not immediately punish them for their original sin, but gave them a trial first. If that’s so, then a criminal trial is either one of the first important things in human history (if you are a creationist) or something that is in one of our oldest pieces of literature (if you are not).

So, it has been on my mind as to whether or not they received a FAIR TRIAL.

Let’s start with the offence – was there an establishment of a criminal offence, and warning of consequence of the offence?

Genesis chapter 2

And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat:

¹⁷ But of the tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that thou eatest thereof thou shalt surely die.

On that basis, Adam clearly knew that God did not want him to eat the fruit from the tree of knowledge (in effect, that’s the equivalent of the Government enacting the Theft Act). I would point out that shortly afterwards Eve is created, and the warning isn’t given again. So it is arguable that God did not communicate the Theft Act to Eve, relying on Adam to tell her. Given that they were the only people in the world, and that God’s entire conversations to that point with Adam were less than a page, it seems reasonable to assume that at some point Adam would have mentioned it to Eve, it being the only rule of the Garden of Eden.

We now come to the offence itself

Now the serpent was more subtil than any beast of the field which the LORD God had made. And he said unto the woman, Yea, hath God said, Ye shall not eat of every tree of the garden?

² And the woman said unto the serpent, We may eat of the fruit of the trees of the garden:

³ But of the fruit of the tree which is in the midst of the garden, God hath said, Ye shall not eat of it, neither shall ye touch it, lest ye die.

⁴ And the serpent said unto the woman, Ye shall not surely die:

⁵ For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods, knowing good and evil.

⁶ And when the woman saw that the tree was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise, she took of the fruit thereof, and did eat, and gave also unto her husband with her; and he did eat.

(In addition, we establish here that Eve DID know that God had prohibited the eating of the fruit, so she can’t later claim ignorance of the law, which as we know is no excuse anyway)

At this point, we are aware that Adam and Eve knew that eating the fruit was unlawful, and that they ate it. One can hardly claim that you recklessly ate an apple from a tree, so although God wasn’t specific about mens rea for the offence, there seems to be both the act of eating the apple and the intention to eat the apple.

The offence comes to light here, and God probes the couple as to what happened

And they heard the voice of the LORD God walking in the garden in the cool of the day: and Adam and his wife hid themselves from the presence of the LORD God amongst the trees of the garden.

⁹ And the LORD God called unto Adam, and said unto him, Where art thou?

¹⁰ And he said, I heard thy voice in the garden, and I was afraid, because I was naked; and I hid myself.

¹¹ And he said, Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?

¹² And the man said, The woman whom thou gavest to be with me, she gave me of the tree, and I did eat.

¹³ And the LORD God said unto the woman, What is this that thou hast done? And the woman said, The serpent beguiled me, and I did eat.

I’m not sure that I would classify that as a trial, so much as an interview. Both of them confess (Eve after Adam has already turned Queen’s Evidence on her)

If they HAD denied it, given that God was both prosecutor and Judge, what chance would they have got? Remember that God is omnipotent and omnipresent, so he was also a witness to them eating the fruit at the time, and can also see the past and see the future. He would appear to be the perfect eye witness, and is also the Judge and the jury. He clearly would not have reasonable doubt, given that He was an eye-witness.

I think that Adam and Eve would be doomed if they tried to defend the case.

One might argue that they did it, and we know that they did it, so does it matter that they had no real opportunity to defend themselves? Does it matter if a system absolutely ensures that the guilty are always punished (the corollary of God being a perfect witness is that the innocent would never be convicted by Him, because of his omniscence. Perhaps it is only that our imperfect human minds are not omniscent that means that we NEED reasonable doubt and the chance for people to persuade a jury of those doubts)

The better line of defence here might be in relation to the agent provocateur, the serpent. At no point in the ‘trial’ is it revealed that the serpent was previously employed by God. And of course, as God as ominiscent, then He was there when the serpent tempted Eve and could have intervened, and He knew in advance that the serpent WOULD try to tempt Eve and gave no guidance. Is there the possibility of an entrapment defence here?

Well, that is going to hinge on whether God is English or American (other nationalities are possible, but come on, clearly God speaks in a similar voice to either David Niven (English) or Charlton Heston (American) )

In English law, entrapment is not a defence

R v Loosely

LORD HOFFMANN

My Lords,

35. The question in both of these appeals is whether the English law concerning entrapment is compatible with the Convention right to a fair trial. In my opinion it is. I have had the advantage of reading in draft the reasons of Lord Nicholls of Birkenhead for reaching the same conclusion. I agree with them.

English law on entrapment

36. Entrapment occurs when an agent of the state – usually a law enforcement officer or a controlled informer – causes someone to commit an offence in order that he should be prosecuted. I shall in due course have to refine this description but for the moment it will do. In R v Latif [1996] 1 WLR 104, 112 Lord Steyn said that English law on the subject was now settled. It may be summarised as follows. First, entrapment is not a substantive defence in the sense of providing a ground upon which the accused is entitled to an acquittal. Secondly, the court has jurisdiction in a case of entrapment to stay the prosecution on the ground that the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state itself has caused to transgress. Thirdly, although the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence on the ground that its admission would have an adverse effect on the fairness of the proceedings, the exclusion of evidence is not an appropriate response to entrapment. The question is not whether the proceedings would be a fair determination of guilt but whether they should have been brought at all. I shall briefly enlarge upon these three points.

(a) Not a defence

37. The fact that the accused was entrapped is not inconsistent with his having broken the law. The entrapment will usually have achieved its object in causing him to do the prohibited act with the necessary guilty intent. So far as I know, the contrary view is held only in the Federal jurisdiction of the United States. It is unnecessary to discuss the cogent criticisms which have been made of this doctrine, notably by Frankfurter J in his dissenting judgment in Sherman v United States (1958) 356 US 369, because it has never had any support in authority or academic writing in this country. Indeed, the majority judgment of Rehnquist J in United States v Russell (1973) 411 US 423, 433, which describes the criticisms as “not devoid of appeal” suggests that its survival in the Federal jurisdiction owes more to stare decisis and its perceived constitutional and pragmatic advantages than to its intellectual coherence.

So in English law, the fact that the serpent, whose connection to the Prosecution / law enforcement agencies is uncertain but at least raises doubts, lures Eve into the offence is not a defence. It might be that if the circumstances are so repugnant to justice that the EVIDENCE obtained can’t be relied upon the prosecution might be stayed, but that would be God’s decision as the Judge.

It is God acting as Judge and jury and police and prosecutor which raises the biggest issues here. That would seem to give rise to a right of appeal, on the R v Sussex Justices point – “Justice must not only be done, it must be seen to be done”

The right of appeal doesn’t help though, since any appeal would (a) also be to God and (b) Him being omniscent, already knows the outcome of the appeal.

It is quite difficult to work out what a fair criminal justice system in which the only individuals in existence are God, the serpent, Adam and Eve; so one must be careful in criticising what was set up, but this arrangement where God sets the law, brings the charges, is a wtiness of fact, decides the case and delivers sentence seems lacking in the fundamental separation of powers.

Perhaps that explains why God (who had told Adam and Eve that if they ate the fruit, they would die that same day) ends up giving a more lenient sentence than the death sentence originally specified.

Unto the woman he said, I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.

¹⁷ And unto Adam he said, Because thou hast hearkened unto the voice of thy wife, and hast eaten of the tree, of which I commanded thee, saying, Thou shalt not eat of it: cursed is the ground for thy sake; in sorrow shalt thou eat of it all the days of thy life;

¹⁸ Thorns also and thistles shall it bring forth to thee; and thou shalt eat the herb of the field;

¹⁹ In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it wast thou taken: for dust thou art, and unto dust shalt thou return.

And the LORD God said, Behold, the man is become as one of us, to know good and evil: and now, lest he put forth his hand, and take also of the tree of life, and eat, and live for ever:

²³ Therefore the LORD God sent him forth from the garden of Eden, to till the ground from whence he was taken.

²⁴ So he drove out the man; and he placed at the east of the garden of Eden Cherubims, and a flaming sword which turned every way, to keep the way of the tree of life.

So, hunger, banishment from paradise, a life-cycle involving hard toil and then death rather than eternal life, and horrible pain in childbirth. (That in itself raises an Equalities Act issue, in that Eve’s sentence for the same offence seems markedly more harsh than Adam’s. The serpent also gets a sentence, and there’s clearly no trial of the serpent, who is not asked anything – AND God had not established that incitement was an offence)

[The later sentence of merely banishment for Cain, for murdering at that time one quarter of the world’s population, seems somewhat out of kilter to the harsher sentence for eating an apple, but the Lord moves in mysterious ways]

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Posted in stuff that isn't law at all and tagged adam and eve, did adam and eve get a fair trial, fair trial, nonsense. Bookmark the permalink.

Let’s find you a nice young man

Posted on April 30, 2014 by suesspiciousminds

The law on capacity and sexuality is developing swiftly at the moment, and throwing up some really difficult decisions.

In A Local Authority v TZ (no 2) 2014, the Court of Protection went on from its first judgment that the man, TZ, had the capacity to consent to sexual intercourse. TZ was homosexual, so one of the three principles (does the person understand the mechanics, the risk of STDs and the risk of pregnancy) doesn’t apply.

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

The issue that then arose was whether TZ had capacity to make safe choices about people he might chose to have sex with.

Accordingly, the questions arising here are:

(1) whether TZ has the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe, and, if not,

(2) whether he has the capacity to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.

[I personally bear in mind that almost every parent ever would have wanted at some point and even for a brief flickering moment, the right to veto their child’s choice of boyfriend or girlfriend, but we have to let them make their own mistakes in life. There are certain people who like “bad boys”, sometimes they grow out of it, sometimes they don’t. Most teenagers would prefer someone that their parents disapproved of – John Bender in the Breakfast Club would be no parents choice for their child, but the parents choice of Brian isn’t going to fly. But this is a tricky situation – TZ clearly had some vulnerabilities. The Judge carefully reminded himself of the tension between being protective and giving people freedom to make what others might see as poor choices]

John Bender (bad boy alert)

Parent’s choice, lovely Brian

In addressing the issues of capacity in this case, I bear in mind a number of other points of law.

Importantly, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether, at the date on which the court is considering capacity, the person lacks the capacity in issue.

Next, as Macur J (as she then was) observed in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” The question is whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made” (ibid, paragraph 58).

Furthermore, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other professionals who have experience of treating and working with P, the subject of the proceedings, and sometimes from friends and family and indeed from P himself.. As Charles J observed (in the analogous context of care proceedings) in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. Thus, when assessing the ability of a person to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert.

Finally, I reiterate the further point, to which I have alluded in earlier decisions, including PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam) and CC v KK [2012] EWHC 2136 (COP). In a case involving a vulnerable adult, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.

and later

In this context, as so often, the way forward is illuminated by observations of Munby J, as he then was, on this occasion in Re MM (An Adult) [2007] EWHC 2003 (Fam). In that case (decided under the inherent jurisdiction), the Court was concerned with the approach to be adopted in a case of a person who had capacity to consent to sexual relations but lacked the capacity to make decisions about contact with a long-term partner. In such circumstances, Munby J held that “the court … is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk” (paragraph 119).

The following much-quoted paragraph is particularly relevant:

“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

I won’t get heavily into the particular facts in the case, they are all set out in the judgment should you want to read them – there was quite a body of professional opinion that TZ lacked the skills to weigh up whether someone was a safe person to approach or have sex with.

The Court’s decision on capacity is set out below

I find on a balance of probabilities that TZ does not have the capacity to decide whether a person with whom he may wish to have sexual relations is safe. I base that finding on the detailed assessments of TZ carried out by JS and Dr X, both of whom have had an opportunity to assess him over a period of time. These assessments include extensive conversations with TZ in which he has himself acknowledged that he lacks this capacity. In particular, while he has the ability to understand and retain information, he lacks the ability to use or weigh up the information, including the ability to assess risk and, in the language of s. 3(4), to understand the reasonably foreseeable consequences of the decision. This is, in my judgment, a good example of the distinction identified in paragraph 4.30 of the Code of Practice between, on the one hand, unwise decisions, which a person has the right to make, and, on the other hand, decisions based on a lack of understanding of risks and the inability to weigh up the information concerning a decision.

I have also borne in mind s. 1(2) – that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Having regard to Dr X’s advice, however, I consider that there is no immediate prospect of extending TZ’s capacity via a programme of education. Such a programme must, of course, be an integral part of the best interests care plan which would be put in place as a result of a declaration of incapacity.

The evidence therefore establishes that he lacks the capacity to decide whether or not any individual with whom he may wish to have a sexual relationship is safe. As to the second capacity in issue, JS concluded in her report that he did have the capacity to make decisions regarding his care and support. In oral evidence, however, JS qualified this opinion, saying that TZ can understand why he needs support “if he is in the right frame of mind”, and that his capacity in this respect is variable. She said that sometimes he is more open about taking things on board than at other times. Dr X concluded that TZ lacked this capacity. He thought that TZ’s current compliance with support did not mean that he understands the need for that support and thought it quite likely that at some stage he would ask a support worker to leave.

Notwithstanding the view set out in JS’s written assessment, I conclude after close analysis that TZ does not have the capacity to decide what support he requires when having contact with an individual with whom he may wish to have sexual relations.

In reaching these conclusions as to capacity, I have reminded myself, again, of the need to avoid what could be called the vulnerable person’s protective imperative – that is to say, the dangers of being drawn towards an outcome that is more protective of the adult and thus fail to carry out an assessment of capacity that is detached and objective. I do not consider that I have fallen into that trap in this case.

But having established that TZ lacks that capacity, the Court then have to approach any declarations with a view to what is in TZ’s best interests

Mr. McKendrick reminds me of the dicta of Munby J in ITW v Z [2009] EWHC 2525 (Fam) at paragraph 35:

“First, P’s wishes and feelings will always be a significant factor to which the court must pay close regard …. Secondly, the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific …. Thirdly, in considering the weight and importance to be attached to P’s wishes and feelings, the court must … have regard to all the relevant circumstances … [which] will include … (a) the degrees of P’s incapacity … (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that [his] wishes and feelings are not being given effect to … (d) the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and, pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in [his] best interests.”

Mr. McKendrick further submits, rightly, that in applying the principle in s.1(6) and generally, the Court must have regard to TZ’s human rights, in particular his rights under article 8 of ECHR to respect for private and family life. As the European Court of Human Rights observed in Niemitz v Germany (1993) 16 EHRR 97 at para 29, “private life” includes, inter alia, the right to establish relationships with other human beings. This has been reiterated on a number of occasions, see for example Pretty v UK (2002) EHRR 1 at paragraph 61 and in Evans v UK (2008) 46 EHRR 34 at paragraph 71. There is a positive obligation on the state to take measures to ensure that his private life is respected, and the European Court has stated that “these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”: Botta v Italy (1998) 26 EHRR 241 paragraph 33.

These principles plainly apply when considering what steps should be taken to protect someone, such as TZ, who has the capacity to consent to sexual relations but lacks both the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual. In such circumstances, the state through the local authority is under a positive obligation to take steps to ensure that TZ is supported in having a sexual relationship should he wish to do so.

In passing, it should be noted that this is consistent with the provisions of the United Nations Convention on the Rights of Persons with Disabilities, (ratified by the UK in 2009 although not yet incorporated into English law) and in particular article 23 which requires states to “take effective and appropriate measures to eliminate discrimination against persons with in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”.

In addition, the state is under an obligation to take steps to protect TZ from harm.

How to apply those principles to TZ’s case

In the light of these principles and dicta, what steps should this court now take in TZ’s best interests?

On behalf of the Official Solicitor, Mr. McKendrick asserts that the challenge for the parties and the court is to develop a best interests framework which permits TZ sufficient autonomy of decision-making and respects his right to a private life whilst balancing the need to protect him from harm. He identifies three options: (1) take no best interests decision at this stage but react should TZ find himself in a situation when he is the subject of harm or at risk of harm; (2) require the applicant local authority to draft a care plan and submit it to the court for approval; (3) appoint a welfare deputy to make decisions on TZ’s behalf. Neither party is advocating for the first option. Both parties agree that the court should direct the local authority to file a care plan. The issues are, first, as to the contents of that plan and, secondly, whether a welfare deputy should be appointed.

The local authority has filed a draft care support plan. The Official Solicitor has made a number of observations about that plan. There is considerable common ground between the two parties, but some differences remain.

What follows are some proposals by the court for the sort of measures that should be included in the plan. Decision-making for incapacitated adults should, as far as possible, be a collaborative exercise. The observations as to the contents of the plan should be seen as part of that process.

I propose that the plan should contain the following elements: (a) basic principles; (b) education and empowerment; (c) support; (d) intervention; (e) decision-making. Under this last heading, I shall consider the local authority’s application for the appointment of a deputy.

(a) Basic principles

The basis for the plan is uncontroversial and can be summarised as follows.

(1) TZ lives at H Home. In due course, he may move to a step-down facility and, in the long run, into supported living.

(2) He will have available to him a number of hours of 1 : 1 support every week. Currently that is fixed at 32 hours.

(3) He has capacity to consent to and enter into sexual relations. He has the right to establish relationships with other human beings and wishes to meet other men with whom he may have sexual relations.

(4) He lacks the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual.

(5) The local authority and the Court are under a positive obligation to ensure that he is supported in having a sexual relationship should he wish to do so, but also to ensure, as far as possible, that he is kept safe from harm.

(6) The purpose of the plan is therefore to identify the support to be provided to assist him in developing a sexual relationship without exposing him to a risk of harm.

You can see, hopefully, that the overall goal of the plan is to keep TZ safe whilst teaching him the skills he will need to keep himself safe – he is not prevented from forming relationships with other men, nor indeed from having sex with them; it is more that he is to be assisted in making those decisions.

Getting down to brass tacks though, what are professionals supposed to do if TZ meets someone he is attracted to?

Mr McKendrick submits, and I agree, that TZ must have some “space” to make decisions for himself, even if this involves making mistakes, to assist him to learn (as far as he can) from the consequences of those decisions. Mr Dooley indicated that the local authority agreed that learning through experience is critical for TZ.

Mr McKendrick further submits, and I accept, that, should TZ meet a stranger, he is entitled to have private time with that person and support staff should intervene only if there is an identified risk of that person being abusive towards TZ. I agree with the Official Solicitor that the local authority and its support staff cannot interview or ‘vet’ anyone with whom TZ wishes to communicate and cannot assume that everyone he speaks to is likely to present a risk of abuse. Mr Dooley stated that the local authority’s position is that, if there is a problem in these circumstances, there will need to be a risk assessment to determine whether intervention is required. Having identified that intervention is required, the next step would be to consider the least restrictive intervention necessary to ensure that TZ is safe.

In the event that TZ decides he wishes to spend the night with someone, the care plan must provide that a private space can be made available. H Home has now indicated that he will be permitted to have a visitor to stay subject to the proviso that any visitor would have to be subject to safeguarding checks to protect other residents. A similar provision would be made in the event that TZ moved to a step-down facility.

If TZ meets someone and develops a relationship, or if he says he wishes to leave H Home and cohabit with another person, a specific capacity assessment will be required to determine whether he has the capacity to make a decision about contact with that person. If the outcome is that he has capacity, the sexual relationship should be facilitated, unless it is concluded that there is a significant risk of harm. If the assessment concludes that he lacks that capacity, or that there is a likelihood that he will suffer significant harm as a result of a relationship, a further application will have to be made to the court. If the court accepts that he lacks capacity, a best interests decision will then be made. If the court concludes that he has capacity, but that he is at risk of harm, it may be that the court would resort to protective powers under its inherent jurisdiction as to vulnerable adults. At all stages, of course, TZ must be assisted to participate in the decision-making process.

It is not the role of the Local Authority to ‘vet’ TZ’s partners or potential partners, nor do they have a role of veto

the plan must clearly delineate the circumstances in which care workers may intervene to protect TZ and the steps they are entitled to take when intervening.

On behalf of the Official Solicitor, Mr McKendrick submits, and I accept, that it is not the role of the local authority staff to vet TZ’s sexual partners. They must not deny him private time with a proposed sexual partner simply because they consider that partner is unsuitable, unless there is a clearly identified risk that the proposed partner poses a real risk of abuse to TZ during their contact. As the Official Solicitor submits, the assessment of abuse must be rigorous and evidence-based, or, adopting the phrase used by Munby J in Re MM, (supra) “pragmatic, common sense and robust”. As the Official Solicitor points out, capacitous adults also run the risk of abuse and harm. The adults protecting TZ must be given the tools to assist him, because of his vulnerabilities, but they cannot act in his best interests by attempting to eliminate all risks of harm. (“What good is making someone safe if it merely makes them miserable?”)

As JS has set out in her draft support plan, if TZ says he wants to go off with someone he has just met, the care workers would try to dissuade him, reminding him of the staged approach to new relationships previously discussed and agreed. In the event that he refused to listen to support workers in those circumstances, and where there were concerns regarding the risk of harm, the care worker involved should immediately alert management, who would in turn ensure that legal representatives were informed. A decision would then be taken as to whether the police should be informed, and/or whether an application should be made to the Court of Protection.

There was a mental health case in the last year, where a Judge set down a seventeen point plan of things that ought to be considered by a hospital before deciding that a patient was so dangerous that he needed to be transferred to a safer hospital, and the Court of Appeal ended up observing that if you get a Judge to draw up a model, he or she invariably draws up a very judicial/lawyery one which attempts to dot every i, and cross every t, but reality doesn’t always allow for that. I think that this is a damn good attempt to put a framework in place that tries to give TZ freedom and keep him safe and they are laudable aims – I am certain that I could not have done any better. But it does bring up the mental picture of a man smiling at TZ in Starbucks and staff members thumbing through the judgment to initiate “Phase Four of the plan”

Do you suspect that the staff will be likely to be on low alert for a Brian, but be contemplating intervention for the bad-boy type?

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Posted in case law, court of protection and tagged a local authority v tz (no 2), capacity, capacity to consent to homosexual sex, capacity to consent to sex, capacity to consent to sex with a specific person, court of protection, mental capacity act, protection of vulnerable adults. Bookmark the permalink.

Presidential press conference

Posted on April 29, 2014 by suesspiciousminds

There’s quite a lot in here, and as we know, speeches and views and opinions seem to have a habit of making their way into judgments, so it might be an advance insight.

Click to access munby-press-conference-29042014.pdf

The one that has already made the news is the President suggesting that consideration be given to taking divorce (as in the dissolution of the marriage, not the financial issues) out of the hands of judges and giving it to Registrars. That one needs a post all on its own (probably tomorrow) – I tend to agree with quite a lot of what he says on this, and the need for proper remedies for people who are not married but have had long term relationships / periods of cohabitation.

Here are the other big talking points

1 . Not helpful to think about adversarial v inquisitorial, but as more and more cases involve litigants in person who would rather be represented, Judges are going to need to play a larger role in the conduct of proceedings

The President says that in cases where there are litigants in person, the Judges are going to have to be more inquisitorial in style, and that sitting Sphinx-like until judgment isn’t going to work. He doesn’t think we are likely to end up with a continental style inquisitorial system, but we are a long way removed from the traditional adversarial system already.

2. Doesn’t think that the cuts will adversely affect the reforms

In fact the thrust of what the President seems to be saying here are that the reforms are vital because of the cuts, and that drive towards efficiency, cost-effectiveness and reducing time taken before the Court will allow for the litigant in person cases, which he accepts take longer

3. Believes that there will be a tipping point for mediation, where when it is sold correctly as to the benefits, more and more people will want to take it up [We are in an almost- crisis situation at the moment but once we get the message across it will be a very attractive option]

He was not keen on the idea of cost sanctions for failure to mediate or engage properly in mediation

4. Next stage of transparency will be greater access to court papers

As he rightly points out – if so much of a hearing is “Can I refer to to page B64, paragraph 6” then a journalist sitting in Court is not able to get any real sense of what is happening, what is being referred to. He says that there are going to be proposals about this in the very near future. He also indicates that because of the way that case numbers are coded, anyone who tries to work them out can quickly decipher that a Case Number refers to a Private Law case in Sunderland, as opposed to a Public Law case in Wolverhampton (He is wrong about the code for Brighton being BH though – for some reason I have never fathomed, it is UQ)

5. He is aware of the tension between what the Government say about adoption and what the Courts say

For me, this was the most interesting question, and indeed answer. It is clear that on the one hand, the Courts are implementing a “nothing else will do” philosophy on adoption, and on the other the Government has a pro-adoption agenda and is measuring Local Authorities on performance and threatening to remove these functions from Councils who don’t meet what the Government have in mind. What the President says, in effect, and much more politely than my shorthand summary, is that Parliament make the statutes, not Governments, and that if Parliament disagree with how the Courts are interpreting statute, then Parliament will need to change the statute. He acknowledges the tension (explicitly referencing that the Government have talked about local councils need to get away from the idea that adoption is the last resort) and says that on the ground, for Directors of Children’s Services, “it must be slightly difficult to know exactly what they should be doing given that tension” (something of an understatement)

1 Comment

Posted in Uncategorized and tagged adoption, divorce as administrative process, government v courts, inquisitorial v adversarial, president of the family division, press conference. Bookmark the permalink.

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