Author Archives: suesspiciousminds

Surrogacy arrangements made overseas

Posted on April 29, 2014 by suesspiciousminds

 

Re WT (A child) 2014

 

In a situation where a childless couple want a child, sometimes the search is cast very far and wide. At the early stage of the internet, there was outcry in Britain about the Kilshaws, a couple who purchased a baby on the internet from America. That led to the creation of legislation about overseas adoption and in turn surrogacy arrangements.

In this country, there are clear restrictions about surrogacy, and the amount that can be paid to a woman to have a baby on your behalf (it has to be expenses only) and as the High Court recently pointed out in JP v LP and Others 2014, there are criminal offences associated with any actions that are dealing with surrogacy on a commercial basis (even as an intermediary, or in that particular case as a solicitor charging for drawing up documents to make the arrangements as watertight as possible)

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/595.html

 

section 2 of the Surrogacy Arrangements Act 1985 which says :

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;

and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

 

 

On a strict interpretation of that section, even doing the research about surrogacy and giving it to your client by way of advice can fall foul of that, if you then charge them for it s 2 (1) (c)   – it actually looks like not only is the solicitor committing an offence for charging, but the client also for asking them to do it and offering to pay for the advice…

[That might cause a problem with some of the guidance given by the High Court in this case that people contemplating overseas surrogacy should seek specialist advice first]

There are slightly more complicated provisions when the surrogacy is commissioned from a woman living in another country, and that is what Re WT is all about.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1303.html

 

In that case, two people sought through an agency – the Kiran infertility centre (which immediately  rang a not entirely positive-sounding bell with me… more later) to commission a woman in India to have a baby on their behalf.

 

The baby was conceived by using the male’s gametes artificially inseminating the woman in India (the use of gametes or an egg or embryo is from one of the commissioning couple what makes it surrogacy rather than an adoption that is paid for) . That woman is named SA in the judgment.

 

The couple paid the sum of $28.000 dollars to the Kiran infertility centre. The biological mother, SA, received 350,000 rupees   (the judgment never actually does the currency calculation, so I will. The woman received roughly $5,800 dollars, leaving the clinic with $22,200. )

 

The couple then made an application for a parental order in the UK, this being what would make them both legally the parents of this child.

 

As the Court carefully point out, such an application HAS to be made within 6 months of the child’s birth – the Court has no power to extend that time-limit. If it isn’t made in time, the Court can’t consider the application.

 

In order for the Court to make the parental order, one of the issues that they need to consider is the consent of the mother – that has to be given at a period after the first six weeks of the child’s life (as an insurance that the decision is not being made at an emotionally vulnerable time, when hormones are having a significant sway on emotions and decision-making)

 

The clinic were less than helpful in getting the evidence about the mother’s consent

The parental order application is dated 14 March 2013. I have dealt with the four directions hearings prior to the final hearing on 4 March 2014. The main concerns I had on the information that was available when the matter first came before me can be summarised as follows:

(1) all the documents signed by SA were in English, including importantly the consent Form A101A. There was no information available as to whether she spoke English, was literate or had had the documents read through and interpreted for her;

(2) the applicants had not met SA and were unable to provide any information about her first language or her level of literacy;

(3) the enquiries they made with the clinic to seek clarity about the circumstances in which SA signed these documents were not responded to by the Clinic in a helpful or constructive way;

(4) the attempts to locate SA at the address on the documents were unsuccessful as the address given by the clinic for her covered a very large area;

 

Because of these issues, the couple sustained considerable additional costs in obtaining better evidence about the mother’s consent, and the judgment is critical of the clinic

The Clinic in this case has not always been helpful in the way it has responded to reasonable requests made on behalf of the applicants, often such requests were following specific directions made by this Court. They were given the opportunity to make representations to this Court but have not done so. Delay was caused as the Clinic insisted on being sent hard copies of the letters requesting information and consent from the applicants to do so. The Clinic makes the fair point that it is not in their interests not to help their clients obtain parental orders. Some of the documents signed by SA appeared to be in a standard form and contained provisions that were not accurate, or were not completed. For example, the ‘Agreement for Surrogacy’ signed on 29 December 2011 contained a provision which stated ‘I have worked out the financial terms and conditions of the surrogacy with the couple in writing and an appropriately authenticated copy of the agreement has been filed with the clinic, which the clinic will keep confidential’. The applicants said they had had no contact with SA in writing and were not aware of any agreement being filed with the Clinic prior to the Agreement for Surrogacy.

 

Eventually, the couple were able to provide the evidence that satisfied the Court that mother had given free and informed consent. The Court was also satisfied that the couple were able to offer the child a good and loving home and that making the parental order was the right thing to do.

 

The Court then looked at the payments – the Court has to retrospectively  authorise those payments under s54(8) when making the parental order.

As the judgment shows, the public policy reasons for this are strong – if the payment is too low, there is a risk that the mother is being exploited, if too high there is a risk that her decision has been swayed by financial considerations. It is also clear that the Court has jurisdiction to look at payments made to the foreign agency   (remember, if you were running a UK surrogacy agency, it would be illegal to charge money for ANY of your services)

Turning finally to the question of payments under s 54(8). Whilst the focus of the court’s consideration is on payments made directly or indirectly to the surrogate mother, it is clear from cases such as Re C [2013] EWHC 2408 (Fam), the payments made to commercial surrogacy agencies operating within the law of foreign jurisdictions require authorisation by the court, insofar as such payment cannot be considered to have been for expenses reasonably incurred.

The applicants have produced a part breakdown of the payments they made totalling almost $28,000. The breakdown given appears incomplete: $11,675 was paid when they registered with the clinic in May 2011 followed by 6 payments of $2,500 between March to October 2012. There are then some one off items listed as post birth administrative fees ($245), notary fee ($260), SA’s travel expenses ($350) and courier charges ($45). No other breakdown of how the sums paid to the Clinic is given, despite requests being made to the Clinic to do so. The Clinic’s unhelpful response to such a request is as follows ‘payments made to clinic for the entire surrogacy process are available with your clients’. If that was the case the request to the Clinic would not have been made.

The applicants had no direct dealing with SA. The only information they have regarding payments made to her are the documents signed by her that confirm she received 3,50,000 R’s. In a subsequent email from the clinic dated 3.1.14 they confirmed that SA was not required to pay the caretaker or Dr Sekhar out of the monies she received and SA in her meeting with the Ms Baria confirmed she received 3,50,000 Rs. This level of payment to the surrogate is the same as authorised in D & L [2012] EWHC 2631 (Fam) [2013] 1 WLR 3135 which concerned the same clinic.

When considering whether to authorise the payments made in this case the relevant principles are firmly established by the cases, starting with Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) [2009] 2WLR 1274 (paragraph 19 and 20) and the cases that have followed (in particular Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006 Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) [2011] 2FLR 646 and Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam)).

(1) the question whether a sum paid is disproportionate to “reasonable expenses” is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will;

(2) the principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.

(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child’s welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: “it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making”, per Hedley J in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006, at paragraph 10.

(5) where the applicants for a parental order are acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child’s lifelong welfare.

I am entirely satisfied the applicants have acted at all times with good faith and without moral taint. They took great care to select the clinic they used, undertook extensive research and enquiries and also formed their own judgment when they visited the clinic. They have displayed independent judgment by not always following the advice of the Clinic, for example which FRRO to secure the exit permit from. There is no evidence to suggest they have been otherwise than honest and candid in all their dealings with the Indian and UK authorities and have complied with the directions of this court. The amounts paid to the Clinic were set by the Clinic in a jurisdiction where commercial surrogacy is not unlawful. The amount paid to SA was not negotiated by them, appears to have been fixed by the Clinic, is the same as a previously authorised payment approved by this Court and is not dissimilar from payments made in similar surrogacy arrangements in Indian clinics. There is no evidence to suggest SA did other than freely consent to the surrogacy arrangement.

In those circumstances the payments made other than for expenses reasonably incurred are authorised by the court

The Court are of course in a bit of a bind here, and that’s hinted at here. Where the Court think that the couple have behaved properly, but that the fees were too high, their only sanction is to refuse to retrospectively approve the payments. But the money has already been spent, so what good does that do? Ultimately, the Court have the power to not make the parental order if they feel that the couple have improperly “bought” the child, but in a case like this where one might feel that they have been ripped off, there’s nothing the Court is likely to be able to do for them.

 

[There’s also, for me, a grey area as to whether when considering whether the payments are so grossly disproportionate that they shouldn’t be allowed, as to whether the Court is looking solely at what the couple pay or what the biological mother receives, and compare that to the value of the money in both countries. It is possible, I don’t know, that $5,800 is not a grossly disproportionate amount here, but in another country that sum of money might compare extremely favourable to annual income]

 

And you will see from the reference to D and L (Minors Surrogacy) 2012 that I was right to recall Kiran Infertility Clinic

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2631.html

 

In that one, the clinic didn’t get an address for the biological mother, causing huge problems in evidencing their consent. If you read my piece on that at the time,

 

https://suesspiciousminds.com/2012/10/01/be-my-be-my-baby/

 

you might remember this particularly telling feature

 

At that stage, they had still to receive any signed consent from the surrogate mother. They made further requests to the director of the clinic, to no avail. On 13 September, the first Applicant emailed a long letter to the director, setting a deadline for the production of the signed consent, and warning that if the documents were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16th September, the Applicants received a DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture

 

 

As I’m not charging anyone who reads this blog any money, I can give my advice about surrogacy without breaking the criminal law. My advice is, read these judgments and shop around before you decide which agency to use.

 

The Court go on to give some general advice to couples contemplating surrogacy with an overseas woman

 

As can be seen from what I have detailed above this application has not had an easy journey to the final hearing. Adopting the words of Hedley J in the first reported foreign surrogacy case heard over 5 years ago Re X&Y (ibid) paragraph 2 ‘..the path to parenthood has been less a journey along a primrose path, more a trek through a thorn forest.  The court shares their [the applicants] hope that their experiences may alert others to the difficulties inherent in this journey.’

Having dealt with a number of these cases, many of which involve unrepresented applicants, it may be helpful to highlight the areas that cause most difficulty in these cases:

(1) Those who embark on surrogacy arrangements abroad need to be alive to the pitfalls there can be with such an arrangement and it may be wise for commissioning parents to consider taking specialist advice at the earliest opportunity, both here and in the jurisdiction where the arrangement is entered into. To proceed in the absence of such advice can lead to significant emotional and financial hardship and further delay.

[As I commented at the outset, charging for such specialist advice is not as straightforward as one might hope]

(2) It is critical that an accurate documentary account of the various steps is kept by the commissioning parents so it can be available, if required, in support of a parental order application to assist in satisfying the relevant criteria under section 54. This is particularly relevant when considering any payments made and what, if any, are caught by the provisions of s 54(8). What is most helpful for the court is a schedule setting out the payments made and what they were for.

(3) A parental order application has to be made within six months of the child’s birth. There is no power vested in the court to extend that period. The recent decision of Mrs Justice Eleanor King in JP v LP and Others [2014] EWHC 595 (Fam), although in the context of a domestic surrogacy, is a timely reminder of the legal complexities if such an application is not made in time. Parental orders change parental status permanently, extinguishing the parental status of the surrogate mother entirely (and her husband, if applicable). Such orders confer legal parenthood and parental responsibility on both applicants for such an order.

(4) The requirement for the surrogate mother (and her husband if she is married) to give consent freely, unconditionally and with full understanding of what is involved is a fundamental part of the s 54 criteria. Depending on the circumstances the commissioning parents may need to consider meeting the legal fees for the surrogate mother, limited to taking advice on the consequences of a parental order being made. The cost of such advice is likely to be considered an expense reasonably incurred. In addition, it is clearly essential there is evidence to demonstrate (if required in the circumstances of the case) that any document signed by the surrogate mother is understood by her and, if necessary, translated into her first language before she signs it. Again, any costs incurred for this are likely to be considered an expense reasonably incurred.

(5) In this case the applicants were not able to meet the surrogate mother which in the Court’s experience is relatively unusual. If they had met her they may have been able to provide helpful information to the Court. In the event commissioning parents are not able to meet the surrogate mother they should seek to establish clear lines of communication with the surrogate mother, and ensure she is made aware during the pregnancy that she will need to give consent at least six week after the birth.

 

I wish this couple the very best of luck with their child, and it is a shame that so much additional cost and stress was caused to them in this process. They chose their UK lawyers very wisely in this case, in my humble opinion, and were in the best possible hands.

Comments Off on Surrogacy arrangements made overseas

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

Pah-pah-pah-poker face

Posted on April 28, 2014 by suesspiciousminds

Hakki v Secretary of State for Work and Pensions 2014

 

This case has some impact on family law, because it arises from the decision of the First Tier Tribunal that Mr Hakki (who was earning about £500 per day from being a ‘professional poker player’) ought to pay Child Support to his children. This was appealed by Mr Hakki on the basis that as a professional gambler, he was neither employed nor self-employed, and thus not within the Child Support Agency remit.   [and on the unspoken basis that he was not a man who had a highly developed sense of shame]

 

I like this case, because it gets into a very old piece of caselaw which also has a great name   Graham v Green 1925   (not to be confused with Bill v Oddie 1951 – the famous case which turned on whether the pop singer had invited him to “put your hands all over my body” or Tim Brooke v Taylor 2004)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/530.html

 

 

The point is that in order for a person’s income to be relevant for Child Support purposes, it has to be either income received in employment, or taxable income from self-employment.

 

As you may know, the Courts have historically said that you can’t legally enforce gambling debts

 

[There is a very fine A J P Herbert legal essay explaining that as marriage in those days when cohabitation simply wasn’t done, was in effect a gamble using skill and judgment that you had picked someone who you might be compatible with, that all ancillary relief claims are in effect lost gambles, and thus gambling debts that should not be enforced by the Courts]

 

 

Graham v Green 1925 decided that it was impossible for a man who made his living from gambling to be considered to be self-employed or for his winnings to be considered as taxable income.

 

        A mere gambler was not taxable; that was what had been decided in   Graham v Green and no subsequent authority had departed from that decision of 1925. It might be fair to say that Rowlatt J’s dictum was only part of a general introduction to the law about Case 2 of Schedule D, but it was clear that he did not think a gambler could ever have such a degree of organisation as would enable his winnings to be profits or gains arising from any trade, profession or employment.

 

      Mr Graham was a person who from his own home in Amersham betted on horses at starting prices; that was his only means of livelihood apart from some interest from a bank deposit. The General Commissioners for the Burnham Division of Buckinghamshire decided that he was assessable to tax on his winnings. Mr Barrington-Ward KC submitted on his behalf that no business or system could be constructed out of betting at starting prices; there was no capital and no evidence of continuity but merely individual bets. A bookmaker was different because he bet on a system by adjusting the odds. He was therefore liable to income tax on profits made from betting. The Inland Revenue instructed the Solicitor-General (Sir Thomas Inskip) to defend the Commissioners’ decision. He submitted that betting was (as found) Mr Graham’s livelihood; it was not done casually for amusement; it was a vocation resulting in profits or gains, the vocation of a backer of horses.

 

The Judge in Graham v Green went on to suggest that a professional gambler, even one who did very well for himself, was not “susceptible to organisation” in a way that could properly categorise him as being self-employed. [underlining mine]

 

Rowlatt J then distinguished the case of the bookmaker who is (page 42)

“organising an effort in the same way that a person organises an effort if he sets out to buy himself things with a view to securing a profit by the difference in their capital value in individual cases.”

He then turned to the man who bets with the bookmaker and said:-

“These are mere bets. Each time he puts on his money at whatever may be the starting price. I do not think he could be said to organize his effort in the way as a bookmaker organizes his, for I do not think the subject matter from his point of view is susceptible of it. In effect all he is doing is just what a man does who is a skilful player at cards, who plays every day. He plays to-day, and he plays to-morrow, and he plays the next day, and he is skilful on each of the three days, more skilful on the whole than the people with whom he plays, and he wins. But it does not seem that one can find, in that case, any conception arising in which his individual operations are merged in the conception of a trade. I think all you can say of that man, in the fair use of the English language, is that he is addicted to betting. It is extremely difficult to express, but it seems to me that people would say he is addicted to betting, and could not say that his vocation is betting. The subject is involved in great difficulty of language, which I think represents great difficulty of thought. There is no tax on a habit. I do not think “habitual” or even “systematic” fully describes what is essential in the phrase “trade, adventure, employment, or vocation”. All I can say is that in my judgment the income which this gentleman succeeded in making is not profits or gains, and that the appeal must be allowed, with costs.”

 

Although this final paragraph concludes with a reference to Mr Graham himself, it is couched in terms of complete generality. It is clear that Rowlatt J thought that the effort of a gambler is not “susceptible to organisation” in the same way that a bookmaker organises his effort. If that is right an individual gambler, as such, cannot be taxable on his winnings. The fact that many gamblers may have (or think they have) a system which results in their winning more often than losing cannot constitute a sufficient degree of organisation to constitute a trade, profession or vocation.

This authority has now stood for many years and I would certainly not in 2014 wish to question it, even though it can be said that the Court of Appeal in Cooper v Stubbs [1925] 2 K.B. 723 left the matter open.

 

 

But of course, the world of the professional gambler in 1925 is slightly different to what it is today. If the way in which Mr Hakki ran his enterprise had that element of organisation , could his winnings be taxable and thus relevant for Child Support? And if not, might there be areas of Mr Hakki’s income that COULD in fact be categorised as being taxable, or self-employed?

 

For example, Mr Hakki has appeared on television programmes about poker, appeared in poker magazines and gives advice on his website about being a professional gambler. If he were to be earning from THIS, in addition to winning on the tables, the former might be taxable income, whilst the latter would not be.

 

 

 

Rowlatt J did not have to consider, however, a case of a gambler who could legitimately be said to be running a business. A poker player who appeared regularly on television advising people how to play poker and received a fee for so doing would no doubt be taxable in respect of his fees because he would be engaging in a trade or profession. If in the course of that business he also made winnings from other people participating in that programme, that might well be part of that business. Mr Bartlet-Jones suggested numerous hypothetical cases in which it might be said difficult to say precisely which side of an undoubtedly existing line each such hypothetical case might fall. I am therefore persuaded that it is possible to conceive a case in which a gambler’s winnings might be taxable.

Subsequent authorities show that such a case is indeed conceivable. In Down v Compston [1937] 2 All E.R. 475 a professional golfer was taxed on his professional earnings in the ordinary way. He also received winnings from bets on separate private games. These winnings were not taxable since his vocation as a professional golfer did not give rise to his winnings nor did he have an organisation constituting the business of betting on his private games of golf. In Burdge v Pyne [1969] 1 W.L.R. 364, by way of contrast, the taxpayer was the owner of a club which provided fruit machines, a card room and roulette. Mr Burdge was usually present and successfully played Three-Card Brag with members of the club. He (or a member of his family) always acted as dealer and he always won. These winnings were held to be part of his trading receipts and were taxable. The case was thus different from that of Mr Graham because there was a trade whereas Mr Graham “was not carrying on any trade at all”, see page 368A per Pennycuick J.

The question is therefore whether Mr Hakki had sufficient organisation in relation to his poker playing to constitute a trade in the sense that the word is used in the tax cases.

 

 

In this particular case, please bear in mind that both Mr Hakki and the Secretary of State were arguing that the income of Mr Hakki was not taxable, and thus not relevant for child support. That meant that Mr Hakki, although not impoverished, had no duty to support his children with his gambling income, and the Child Support Agency couldn’t touch him for it. You can understand why the Court of Appeal wanted to look at this with some rigour, as it doesn’t sit very comfortably when you look at it from the viewpoint of his children and the mother of those children.

 

But even with that in mind, the Court of Appeal were unable to conclude that Mr Hakki had the organisation in his enterprise to make it a taxable trade

 

 

On the facts found I do not consider that it can be said that Mr Hakki had a sufficient organisation in his poker playing to make it amount to a trade (or a business) let alone a profession or a vocation. Mr Bartlet-Jones relied on the findings (1) that Mr Hakki appeared on television for a few weeks, made the final programme and got a prize (2) that he had his own website and communicated his strategies for online poker (3) that his poker results over 7 or 8 years were published on two other poker websites, (4) that he chose his location (5) that he set a target sum to win after which he stopped and (6) that he selected the table which was most likely to pay him. Even in combination these findings do not to my mind amount to such organisation as to constitute a trade, profession or vocation. The last 3 factors must be common to many successful gamblers. Isolated appearances on television and having one’s own website are hardly, these days, evidence of organisation amounting to a trade or profession. There is just no element of what Rowlatt J called

“a subject matter which does bear fruit in the shape of profits or gains.”

There is no “element of fecundity”, merely frequent and successful playing at cards.

In these circumstances I am satisfied that, if the First Tier Tribunal had correctly directed themselves in law, they could not have found that Mr Hakki’s winnings at gambling were earnings from gainful employment within the MASC Regulations. There would have to be evidence of much more by way of organisation than found by the Tribunal before Mr Hakki could be said to be making earnings from any gainful employment. There was no such evidence in the present case and it is, indeed, the converse of Edwards v Bairstow [1956] A.C. 14 where the General Commissioners had decided that buying and profitably selling a spinning plant did not constitute an adventure in the nature of trade under Schedule D of the Income Tax 1918, when the only possible conclusion on the facts found was that it was such as adventure. In these circumstances the House of Lords held that the Commissioners’ inference that there was an adventure in the nature of trade had to be set aside. So here the only possible conclusion is that Mr Hakki was not gainfully employed as a self-employed earner.

 

 

 

Unless you are a poker-playing man with children he doesn’t want to support, I suspect you may be saying “Boo” here.

 

Me too.

 

 

The Court of Appeal do offer mother one final card to play (I will in turn suggest another )

 

One quite understands Judge Mesher’s anxiety to hold that Mr Hakki should make the appropriate contribution to his children’s upbringing when he is apparently quite able to make that contribution. Mr Buley pointed out that there may be a way to compel him to make such contribution by making a “departure direction” pursuant to sections 28A-28I of the Child Support Act 1991 as further elaborated by the Child Support (Departure Direction and Consequential Amendments) Regulations 1996. One ground for making a departure direction is:-

“where the Secretary of State is satisfied that the current assessment is based upon a level of income of the non-applicant which is substantially lower than the level of income required to support the overall lifestyle of that non-applicant” (see Regulation 25).

Once the Secretary of State gives effect to our decision setting aside the First Tier Tribunal’s assessment of Mr Hakki’s contribution to the support of Ms Blair’s children, it may be open to Ms Blair to apply for a departure direction on this or other grounds. This court cannot say whether such an application will succeed, only that the opportunity of making such an application appears to exist.

 

The other card that mother could possibly play is an application under Schedule One of the Children Act 1989, which is not asking for maintenance*, but for the children to share in the capital of a parent. If Mr Hakki has salted away some of his winnings, then this would be capital, and potentially capital that could be claimed against.

 

[*It is possible to apply for periodical payments under Schedule One, I might want to avoid that, in case the “income” arguments here arise again]

 

I believe, though would recommend getting specialist legal advice, that there have been Schedule One claims made against capital that arose from windfalls, such as lottery wins or inheritances, rather than capital that built up from an accumulation of taxable income. I can’t see anything within the Act that would fetter the Court’s ability to consider any capital that the father has based on how he happened to come by it.

 

I have made such applications in the past where a father’s level of wealth was such that the Child Support Agency cap was reached without being a meaningful contribution to the lifestyle that the children would have had if the father and unmarried mother had continued their relationship.

 

 

(The mother’s legal costs can be claimed in such an application following NMT v MOT 2006   [2007 2 FLR 925] )

 

Presumably, though it is hard to see the circumstances in which this would ever be litigated, if a man’s earnings arise predominantly from crime (such as making and selling crystal meth) then that would not be a taxable form of self-employment – it might be that the Court would find that there was a level of organisation   (although if the organisation is so bad that the mother of the drug lords children blows the whistle on him because he is too tight to pay any child maintenance, it isn’t much of an organisation)

 

 

Being the sort of loophole guy that I am by nature, I am pondering now whether one could do plastering for free, with the proviso that after the work is done, you then play poker with the person you did the plastering for. That person coincidentally being very bad at playing poker.

 

You don’t get paid for the plastering (which would be taxable income), you just WIN the same sort of amount that you would theoretically have charged by being lucky/skilful at poker (which would not be taxable income)

Or indeed, rather than charging people for legal advice, you give them the legal advice for free, and then play some poker with your new found friend for money.  

I STRENOUSLY ADVISE against attempting this. Seriously, don’t try it. I really don’t think that it would actually work in the real world. Unless you are Jimmy Carr, or a minor member of the Royal Family. Not even then, probably. DON’T DO IT.

 

4 Comments

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

“Welfare of the child : Parental involvement”

Posted on April 28, 2014 by suesspiciousminds

There was quite a lot of debate about the wording of the new section 11 of the Children and Families Act 2014.

 

You may recall, in the distant mists of time, that the Family Justice Review were asked to consider whether we should incorporate into English and Welsh law the sort of provision that Australia introduced, of there being a starting point in law that it is good for children to spend time with both parents.

 

The Family Justice Review decided not to, but the Government decided that it did want to consult on whether something along those lines was desirable.

 

I wrote about the consultation nearly two years ago, here

 

https://suesspiciousminds.com/2012/06/13/co-op-good-with-kids/

 

 

There were four options consulted on (none of them being the presumption of equal time or shared time that the media reported on, and that the fathers’ rights lobby were asking for. I’ve tried in this article to not split it on pure gender lines – I think that all parents who don’t live with their children would like the Court to have in mind that spending a lot of time with both parents is better for a child than artificially restricting one parent’s time with their child)

 

  • Option 1 requires the court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests
  • Option 2 would require the courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents
  • Option 3 has the effect of a presumption by providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents
  • Option 4 inserts a new subsection immediately after the welfare checklist, setting out an additional factor which the court would need to consider.

 

The Government decided to go with option 1, but this got diluted further in the parliamentary process, until we ended up with this

 

Children and Families Act 2014

 

Section 11Welfare of the child: parental involvement

(1)Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2)After subsection (2) insert—

“(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

(3)After subsection (5) insert—

“(6)In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

(7)The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).”

 

 

[If you want a quick explanation – there’s a presumption that it is good for a child to have involvement with both parents (unless it would cause harm or risk of harm to the child), but that involvement can be ‘of some kind, direct or indirect, but not any particular division of a child’s time’.  

It is probably worse for non-resident parents than the current Act, which tended to be interpreted that direct contact for both parents is a good thing for the child, if it can be done safely]

 

I’m grateful to Noel Arnold for alerting me and others to the fact that these provisions are not yet in force, and indeed, aren’t in any of the commencement orders (that’s the thing that turns a part of the Act from words into actual law to be followed)

 

http://www.legislation.gov.uk/all?title=children%20and%20families%20act%202014

 

Those commencement orders roll out various parts of the Children and Families Act 2014 at various stages this year – 1st April, 22nd April, 13th May, 25th July, 1st September.

 

Clause 11 doesn’t appear in any of those, and the suspicion therefore is that it won’t be rolled out this year (My own suspicion is that it may not be rolled out at all, as happened with the “no fault divorce” provisions enacted in 1996)

 

 

It does appear a little odd to me that this fairly anodyne provision can’t be rolled out at the same time as the change of Residence and Contact to “Child Arrangements Orders” (Translation for Eastenders writing staff “They’ve changed Custody and Access to Child Arrangements Orders” )

 

I’m not sure what else would need to be done to make those provisions ready to go, and it suggests to me a measure of disquiet that the provisions are not really useful to anyone and would do more harm than good if released into the wild.

 

There’s a risk, in fact, that for a parent whose contact would be safe, but the parent who lives with a child is hostile to anything more than a birthday and christmas card, the s11 change might make this something that the Court could more easily countenance than the existing position that there ought to be direct contact. There’s statutory sanction for the fact that involvement can include ‘indirect’ contact.

 

They also seem to set up a situation in which parental responsibility should not be given to a parent (really only a father, since mothers get it automatically) if there’s a risk of harm. That risk of harm isn’t then balanced against the risk of harm if it were not done, or against the possible benefits to the child of doing so. Or if there’s a risk of harm flowing from the mother towards the child as well as from the father towards the child, so that there might be harm to the child either way.

 

Or indeed that the risk that would warrant not making a parental responsibility order or a Child Arrangement Order that provides for contact flows from that person at all. For example, if a mother wrongly believed that a father was a paedophile and the Court found that he wasn’t, but that having contact would cause the mother emotional distress and anxiety that would impact adversely on the child, the father’s request for contact could be classified as one that puts the child at risk, even though he has done nothing wrong.

 

There must be a degree of doubt whether rolling out a revised section 1 (via giving s11 Children and Families Act a commencement date) might undermine the existing body of caselaw which was determined under the current s1

 

For example,

 

“The Courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa… unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular the courts recognise the vital importance of the role of non-resident fathers in the lives of their children and only make orders terminating contact when there is no alternative”

Re O (A child :Contact :Withdrawal of Application) 2003 1 FLR 1258

 

Or

 

“It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living”

 

Re P (Contact: Supervision) 1996 2 FLR 314

 

Or

 

“No parent is perfect, but “good enough parents” should have a relationship with their children for their own benefit and even more in the best interests of the children. It is, therefore, most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt”

 

Re S (Contact: Promoting Relationship with Absent Parent) 2004 1 FRL 1279

 

Or

 

“Contact between parent and child is a fundamental element of family life and was almost always in the interest of the child… there is a positive obligation on the state and therefore upon the judge, to take measures to maintain or to restore contact”

 

Re C (A child : suspension of contact) 2011 2 FLR 912

 

I would be very reluctant to have any of those vital principles, which were determined under the old s1, weakened or put in doubt by a changed s1 with a slightly different emphasis.

 

[I am sure that some non-resident parents will feel that these principles didn’t seem to get much of a look-in when their own case was decided before a District Judge, but they are principles that can be relied on and pushed under the Court’s nose at the moment, and they are important ones]

 

I have to say that I greatly prefer the current section 1 of the Children Act 1989, which is just plain and simple that when deciding anything that affects a child, the Court’s paramount consideration must be the child’s welfare.

 

If and when s11 comes into force, all we have is an embroidering of that position which if anything makes it less clear and less meaningful. It certainly isn’t a victory for those lobbying for a fairer and more equal treatment for parents who don’t live with their children.

 

[I have to confess that it has never sat comfortably with me that portions of an Act go through parliamentary scrutiny and royal assent, and in effect get voted on by the House of Commons and the House of Lords and win that democratic approval, but ultimately become law on the decision of a single government minister to push the “Release the Clause” button or not. But here, I’d be happy for the button not to be pushed – I think that the clause makes things worse for non-resident parents, and they really didn’t need the deck stacked against them]

7 Comments

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

Vests

Posted on April 27, 2014 by suesspiciousminds

I am starting to come across cases in which rather than a police notebook or statement, the Court now has the benefit of seeing the video-footage recorded by the police vest-camera of an incident. The officers have a camera fitted to their vest, and everything that they do in the course of the working day is recorded and available for later scrutiny.

No doubt this is very helpful in cases with Brazilian electricians, or where there is doubt about whether or not someone had a gun, or heaven forbid whether a Government Minister included a class-based insult when swearing at police officers.

The benefit for court proceedings is plain – rather than relying on a recollection of an event that may or may not be accurately remembered or may be coloured by other issues, what actually happened is there for the Court to see. It might back up what the prosecution is saying, it may back up what the defence is saying. I was tempted to say “The camera never lies”, but we’ve seen too many doctored photographs to believe that any more.

There are potentially other benefits, as well as the direct forensic one – chiefly about trust and relationship between the public and the police. There’s no value in the police stretching the truth, or behaving in an improper way towards a suspect if the camera footage is going to be disclosed and seen later.

So, is there merit in trialling these vest cameras (the most high-tech ones being about the size of a credit card or identity card) for social workers?

There’s not a lot of transparency online about the costs of these cameras, since they are being produced by commercial bodies who don’t want to stick their pricing up on line and give their competitors an edge, so that would be the major hurdle. But you can tell from the price of camcorders and how much cheaper and smaller they have gotten over the last five years that it wouldn’t necessarily be prohibitive.

The camera would be worn for every meeting with the family, every assessment session, every visit. The family would be entitled to request to see any of these, and to make use of any of them in Court. Equally, the Judge could see any footage of an incident where there is a dispute. Rather than having to choose between two competing stories, the Court can see for themselves what actually happened.  It cuts both ways – if a social worker is exagerrating about the home conditions or being provocative, difficult or patronising, that will get seen – on the other hand, the Court could see exactly what was said and exactly how the house looked on the day in question. Much better chance of getting to the truth.

And just as with the police, the knowledge that everything is being filmed might reduce the occasions on which professionals are heavy-handed or stretch the truth.  Which in turn might improve the relationship between professionals and families – everyone knows that the facts can’t get twisted or have words put in their mouth, because the truth is there to be watched and inspected.

 

Is it something that is worth a try? Is it the sort of thing that would make more of a difference to how families are treated than micro-management of forms and documents?

 

The counter arguments might be that being filmed might inhibit people or make them self-conscious giving a more stilted performance in assessments, that the footage might be misused or misfiled or get lost (accidentally or deliberately), that the footage might find its way online, that children might be shown it or come across it. Those are things which would need careful thought.

 

16 Comments

Posted in Uncategorized and tagged , . Bookmark the permalink.

Booker

Posted on April 19, 2014 by suesspiciousminds

 

I have just read the latest scandal piece about the family justice system by Christoper Booker.  Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published.  [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn’t any of those – so will keep an eye out]

As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.

Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.

Here is his story

http://www.telegraph.co.uk/news/uknews/law-and-order/10775631/Costs-ruling-in-family-court-penalises-those-helping-wronged-parents.html

 

Let’s break it down into the core allegations that are made

 

1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.

 

2. Mother removed him from foster care

3. Mother was sent to prison for removing him from foster care

4. Whilst in prison, she was assaulted by prison staff and crippled

 

5. That she was then deported to America

 

6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought

 

7. At a hearing in April, at which her McKenzie Friends “could not be present”,  Mrs Justice Simler decided that the case was entirely without merit  (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )

 

7a  That Mrs Justice Simler is “the latest recruit to the High Court team”   [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely.  EDIT  – it does appear that she became a High Court Judge in October 2013, so I stand corrected.]

 

8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000

 

9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.

 

 

I am fairly sure that points 6, 7 and 8 ARE true.  We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing).  You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.

 

Well, not quite.

The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible.  One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order.  It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad.   That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk

 

Here is the deal

 

If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.

The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it

In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.

You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case.  You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.

 

So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court.  Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.

 

[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that’s probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]

 

 

ADDENDUM

It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012  http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html.

 

There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.

 

My previous piece  https://suesspiciousminds.com/2013/11/01/it-aint-me-babe-it-aint-me-youre-looking-for/   .

 

Mr Booker’s previous column about this woman   http://www.telegraph.co.uk/health/children_shealth/10308803/Deported-imprisoned-and-beaten-for-being-a-parent.html ]

183 Comments

Posted in Uncategorized and tagged , , , , . Bookmark the permalink.

Bundles

Posted on April 17, 2014 by suesspiciousminds

 

Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11

 

Well, perhaps having hit practitioners with 18 new statutory instruments containing the rules for how things are to be done on Tuesday 22nd April, many of which we got on Wednesday (two working days before) might not be classed by some churlish curmudgeons as smooth and efficient.

[As you may have picked up over the last two years, I READ. I quite like reading law. I even quite like reading statutory instruments. But I draw the line at reading 18. If even I’m not reading them, I have to ponder “Who is?”]

 

Perhaps also having changed the rules about bundles from next Tuesday, and doing so two working days before, after most of them would have already been sent out, could have been smoother and more efficient, but you’d be a fool and a communist to say so.

 

Anyway, here are the President’s new rules about bundles.

 

http://www.familylaw.co.uk/system/uploads/attachments/0008/5165/FPR_PD_27A__Bundles_.pdf

 

I think on the whole, I rather prefer Sedley J’s rules

 

http://heinonline.org/HOL/LandingPage?handle=hein.journals/judire1&div=8&id=&page=

  1. First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.
  2. Second Law: Documents shall in no circumstances be paginated continuously.
  3. Third Law: No 2 copies of any bundle shall have the same pagination.
  4. Fourth Law: Every document shall carry at least 3 numbers in different places.
  5. Fifth Law: Any important documents shall be omitted.
  6. Sixth Law: At least 10 per cent of the documents shall appear more than once in the bundle.
  7. Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.
  8. Eighth Law: At least 80 per cent of the documents shall be irrelevant. Counsel shall refer in Court to no more than 10 per cent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.
  9. Ninth Law: Only one side of any double-sided document shall be reproduced.
  10. Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.
  11. Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by: a steel pin sharp enough to injure the reader; a staple too short to penetrate the full thickness of the bundle; tape binding so stitched that the bundle cannot be fully opened; or a ring or arch-binder, so damaged that the 2 arches do not meet.

 

 

In any event, changes are afoot on bundles. People need to be aware that none of the source material will be in a bundle read by the Court UNLESS the Court has specifically directed its insertion. If you want to rely on contact notes, foster care records, police disclosure, medical records, school reports, then you are going to need to apply for them to be added to the bundle – and expect to have to justify exactly why they are proportionate and necessary.

 

That is going to be particularly important if you have picked up a final hearing brief for which someone else did the IRH – if they got the contact notes in, you’re going to be expected to make some use of them or annoy the Judge who agreed to their insertion, or worse – if counsel at IRH didn’t ask for them and you want them, you’re going to have to make an application. (And those notes won’t be available at a moments notice, so I suspect you will need to put everyone on notice in good time that you intend to do so)

 

Everyone is to file a position statement, limited to 2 pages, for each hearing. And they are expected to set out the orders they seek both at that hearing and final hearing.  (Expect to see a lot of bland “We seek Care / Supervision Orders at final hearing, depending on the outcome of assessments” because anything else from the LA or Guardian is a hostage to fortune / evidence of prejudgment)

 

Case summaries are limited to 4 pages – bad news for any existing pro-formas in courts around the country  which would run much longer than that.

 

Case summaries for cases done before justices are to be anonymised.  (I know, they are sent to the justices along with a bundle of papers that are not anonymised, I have no idea what ill this is intended to remedy or what sense it is intended to make)

 

4.4 Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents.

 

 

You will also note that in cases before the justices, we need to count the pages for them. DJ’s and circuit judges are expected to be able to count for themselves, one surmises.

 

This bit is going to be loved by Local Authorities who are dealing with the RCJ  (thank God, it only applies to  the RCJ. The people who wrote this have CLEARLY never tried to have a productive telephone call with the RCJ)

8.2 Upon learning before which judge a hearing is to take place, the clerk to counsel, or other advocate, representing the party in the position of applicant shall no later than 3 pm the day before the hearing:

(a) in a case where the hearing is before a judge of the High Court,

telephone the clerk of the judge hearing the case;

(b) in a case where the hearing is before any other judge email the Clerk of the Rules at RCJ.familyhighcourt@hmcts.gsi.gov.uk;

to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall organise prompt delivery by the applicant’s solicitor.

 

The bundles are to be limited to 350 pages or less – unless the Court orders otherwise. In case you were thinking of being a wise-guy loophole sort of person, they have already anticipated that you might just use REALLY HUGE pieces of paper

 

5.1 Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text.

 

 

Okay, so if I can’t use REALLY HUGE pieces of paper, I’ll just write really small. Nope, already got that covered

 

 

5.2 All documents in the bundle shall (a) be copied on one side of paper only,unless the court has specifically directed otherwise, and (b) be typed or printed in a font no smaller than 12 point and with 1½ or double spacing.

 My last loophole is that there is not a requirement that the bundles be written in English, so I can lodge everything in shorthand and still comply with the practice direction.

[By the way, all of my bundles are currently double-sided, which means that everyone now has to photocopy them all again single-sided and confidentially shred the ones that were perfectly fine yesterday.  Approximately 11,000 cases across the country, each shredding 200 pieces of paper purely for the benefit of this practice direction. I hope Sting doesn’t read my blog. Also, 350 pages of single sided paper don’t actually fit into a single lever arch folder… 350 pages of double-sided can be a bit of a tight squeeze]

 

5.3 The ring binder or lever arch file shall have clearly marked on the front and the spine:

(a) the title and number of the case;

(b) the place where the case has been listed;

(c) the hearing date and time;

(d) if known, the name of the judge hearing the case; and

(e) where in accordance with a direction of the court there is more than one ring binder or lever arch file, a distinguishing letter (A, B, C etc).

 

[As has been pointed out, as nobody any longer knows how to distinguish between two separate buildings – Trumpton Family Proceedings Court and Trumpton County Court, since on Tuesday they are both just Trumpton Family Court, that’s not that easy any more]

 
All numbering is to be “Arabic”  

Well, if that will help…

  • 1 – Wahid
  • 2 – Ithnaan
  • 3 -Thalaatha
  • 4 – Arba’a
  • 5 – Khamsa
  • 6 – Sitta
  • 7 – Sab’a
  • 8 – Thamania
  • 9 – Tiss’a
  • 10 – ‘Ashra

If you need to go up into the hundreds, here’s the link http://blogs.transparent.com/arabic/arabic-numbers-1-100/

And of course, there’s a stick for any breach of the practice direction – you can be kicked out of the list, kept back to the end of the list or be hit for costs.

 

Penalties for failure to comply with the practice direction

12.1 Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a “wasted costs” order or some other adverse costs order.

 Remember, this applies from Tuesday next week. Happy Easter.

 We ask again…

Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11 

To end on a happier note – this being Easter, and it being a piece about bundles AND my blog title being inspired by Dr Seuss  – this is an actual genuine US judgment refusing to allow a party to exhibit a hard boiled egg to his statement

http://kevinunderhill.typepad.com/Documents/Court_Orders/Hard_Boiled_Egg.pdf

 

 

12 Comments

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

The President’s decision in Re S (26 weeks and extensions) Part 2

Posted on April 17, 2014 by suesspiciousminds

 

The judgment is on the previous blog (I’m sure it will be on Bailii shortly)

This case really turns on the provisions of the Children and Family Act 2014 that come into force on Tuesday 22nd April. What we have here, somewhat unusually, is a leading Judge giving authority as to the interpretation of an Act which has not yet come into force.  Sentence first, verdict later, as it were.

At least it avoids any other Judge giving a judgment on Tuesday or afterwards which doesn’t accord with the President’s view of the test, so we all know where we stand.    [In fairness, because the decision that was being sought was to adjourn the case well beyond 22nd April, the future provisions would have kicked in by the time that the case fell to be determined, so it might have been hard to simply ignore them]

 

On the facts of the particular case, this was about a mother with a history of substance misuse problems, on child number four, with the previous three having been removed. There had been drug tests within the proceedings showing  “at worst very low levels of drugs in the mother’s hair”

The proceedings began in October, and we are now April. The mother’s application was for a residential assessment, that would last for a period of six to twelve weeks and if successful that would be followed by an assessment in the community. That would obviously take the case beyond the 26 week target of the PLO (and of course, given that the Children and Families Act provisions about timescales come into force next week, by the time of any final hearing, that would go beyond the new statutory requirement of 26 weeks). There were, however, three expert reports suggesting that the mother was making progress and that such an assessment might bear fruit.

The President was therefore considering whether to grant the adjournment and application for residential assessment, and doing so against the backdrop of the 26 week statutory position and the new provisions of the Children and Families Act as to exceptional circumstances that justify an adjournment of 8 weeks beyond that.

What was also in his mind was the new statutory provisions about expert evidence (which in effect incorporates into section 38 of the Children Act the current Rule 25 Family Procedure Rules tests and guidance)

 

21. For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3.

 

This is what the President says about the statutory provision that care proceedings should be concluded within 26 weeks

24. Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6) and (7), a mandatory limit which applies to all cases. It follows that there will be many cases that can, and therefore should, be concluded well within the 26 week limit. I repeat what I said in my first ‘View from the President’s Chambers: The process of reform’, [2013] Fam Law 548:

“My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks.”

 

The issue then was the statutory provision in s32(5)

 

            A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

and what factors the Court should consider when determining whether to grant such an adjournment.

One might think that those factors are already set out in the Act

s32 (6)        When deciding whether to grant an extension under subsection (5), a court must in particular have regard to –

(a)        the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b)        the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7)        When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification.

The President cites various authorities  (Re B-S and Re NL notably, as authorities for the principle that there will be cases where an extension of time IS necessary to resolve the proceedings justly)

31. In what circumstances may the qualification in section 32(5) apply?

32. This is not the occasion for any elaborate discussion of a question which, in the final analysis, can be determined only on a case by case basis. But some preliminary and necessarily tentative observations are appropriate

Let’s look at those preliminary and tentative observations

34. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be “necessary”:

i)                    The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, [2014] 2 FLR (forthcoming), para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent’s disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii)                   The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii)                 The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).

34. I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly”. Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.

 

So, to skip to the chorus  – three categories of case where an extension might be warranted  (forgive my short-hand mnemonic prompts, which Malcolm Tucker has helped me devise)

 

1. The case was always going to be super-complicated from the outset (heavy duty fact-finding, FDAC cases, heavy duty international element, parents with disabilities such that specialised assessments are necessary)

“This case was fucked from the beginning”

2.  Something massive emerges during the proceedings – (fresh allegations that need to be resolved, death or imprisonment of a key player, a realistic family member comes forward late in the day  – “Auntie Beryl alert! Finally an answer – adjournment is going to be permissable for an Auntie Beryl situation!”)

“This case got fucked in the middle”

 3. Litigation failure on the part of one of the parties means that it would not be fair to conclude the proceedings

“Some fucker has fucked up”

 

The Judge then goes on to praise FDAC but delivers this guidance (which probably has wider applicability)

 

38. Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child’s timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child’s timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’.

Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale

 

I think those principles have wider applicability, because the President goes on to use them in this case, which although the background is drugs and alcohol, is NOT a FDAC case.

For this particular case, this is what the President says (bear in mind that this is NOT a final hearing, but an application to adjourn the final hearing and seek a residential assessment. As far as I can tell from the judgment, no live evidence was heard.  The remarks don’t leave much room for manoeuvre at final hearing…)

44. there is no adequate justification, let alone the necessity which section 32(5) of the 1989 Act will shortly require, for an extension of the case so significantly beyond 26 weeks. Again, there are two aspects to this. Looking to the mother, there is, sadly, at present no solid, evidence based, reason to believe that she will be able to make the necessary changes within S’s timescale. Even assuming that there is some solid, evidence based, reason to believe that she is committed to making the necessary changes, there is, sadly, not enough reason to believe that she will be able to maintain that commitment. In the light of her history, and all the evidence to hand, the assertion that she will seems to me to be founded more on hope than solid expectation, just as does any assertion that she will be able to make the necessary changes within S’s timescale. Secondly, I have to have regard to the detrimental effects on S of further delay. Far from this being a case where the child’s welfare demands an extension of the 26 weeks time limit, S’s needs point if anything in the other direction. I accept the guardian’s analysis.

 

If you were thinking that this was all very peculiar, I haven’t even got to the best bit

 

I have been sitting at Bournemouth in the Bournemouth and Poole County Court hearing a care case. It is a very typical County Court case

[There is nothing in the history of the litigation set out in the judgment that ever shows that the case was transferred from the County Court to the High Court. So is this binding authority about provisions of an Act which weren’t in force at the time the judgment was given, actually a County Court judgment? ]

 

 

 

1 Comment

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

President’s judgment Re S (26 week and time extensions) Part One

Posted on April 17, 2014 by suesspiciousminds

 

 

This has come my way but is not yet on Bailii – so blog on it to follow, but first things first, the judgment, which the President himself has circulated to interested persons  (I’ve put it on here in full, as it is going to impact on all cases from our next working day)

Case No: DO13C00782

IN THE BOURNEMOUTH AND POOLE COUNTY COURT

(In Private)

 

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Date: 16 April 2014

 

Before :

 

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

– – – – – – – – – – – – – – – – – – – – –

In the matter of S (A Child)

 

– – – – – – – – – – – – – – – – – – – – –

– – – – – – – – – – – – – – – – – – – – –

 

Mr Anthony Hand (instructed byTanya Hall, Bournemouth Borough Council legal services) for the local authority

Mr Andy Pitt (of Aldridge Brownlee Solicitors LLP) for the mother

Ms Nicola Preston (of Dutton Gregory) for the father

Mr Steven Howard (instructed by Pengillys) for the children’s guardian

 

Hearing date: 25 March 2014

– – – – – – – – – – – – – – – – – – – – –

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

 

 

………………………..

 

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

 

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

 

 

 

Sir James Munby, President of the Family Division :

 

  1. I have been sitting at Bournemouth in the Bournemouth and Poole County Court hearing a care case. It is a very typical County Court case but, as it happens, it raises a point on which it is desirable that I should give a judgment directed to a wider audience.

The background facts

  1. S, the child with whom I am concerned, was born in October 2013. She is the youngest of her mother’s four children. The three older children have all been taken into care. The mother, as is common ground, has a history of street prostitution and drug taking. Her third child was born with drug withdrawal symptoms.
  2. The proceedings in relation to S began in October 2013. An emergency protection order was granted on 21 October 2013, followed by an interim care order on 28 October 2013. The case was transferred to the County Court. It came before His Honour Judge Bond on 14 January 2014 for a further case management hearing. There was a formal application by the local authority for permission to instruct an expert, a psychiatrist, and an informal application by the mother for an assessment in accordance with section 38(6) of the Children Act 1989. Amongst the papers before Judge Bond was a parenting assessment by the local authority dated 20 December 2013, a further report from the local authority dated 6 January 2014, and reports dated 3, 4 and 30 December 2013 from Dr Menzies Schrader, a specialist psychiatrist with the local Mental Health Team who had been treating the mother. Judge Bond directed the filing by 14 February 2014 of a report by a consultant forensic psychiatrist, Dr Jane Ewbank. He adjourned the mother’s application pending receipt of Dr Ewbank’s report.
  3. The mother’s adjourned application came before me on 25 March 2014. By then Dr Ewbank had reported. Her report is dated 18 February 2014. Mr Andy Pitt on behalf of the mother renewed her application for an assessment under section 38(6). As refined before me, the proposal was that I should direct a residential assessment of S and her mother at Orchard House, a Family Assessment and Intervention Centre in Taunton, initially for a weekend and, if that proved successful, for a period of between six and twelve weeks. This residential assessment might then (see below) be followed by a further period of assessment in the community. The application was opposed both by Mr Anthony Hand on behalf of the local authority and by Mr Steven Howard appearing for S’s guardian, as well as by Ms Nicola Preston representing S’s father. There were reports from Orchard House dated 15 December 2013 and 20 March 2014 setting out what they could offer. There was also a report dated 20 March 2014 from the Dorset Working Women’s Project, a sexual health project working with women who sell sex, particularly those who misuse drugs and/or alcohol.
  4. I also had the results of various hair-strand drug tests which the mother had recently undergone. These results were not easy to interpret, though they showed at worst very low levels of drugs in the mother’s hair. Mr Pitt did not invite me to hear evidence from the mother, so on this point I cannot come to any conclusion. Nor do I express any views. There is in the event no need for me to do so. I am content for present purposes to proceed on the assumption, though without deciding, that the mother was ‘clean’ during the periods covered by the tests.
  5. Having reflected on the matter overnight, I informed the parties the following day that I had decided, for reasons which would be given in due course in a written judgment, to refuse the application. It was accordingly dismissed.  

The mother’s problems

  1. There are various strands to the mother’s problems. For present purposes they can be summarised as follows. The mother is a vulnerable woman who struggles to care for herself. She has mental health problems, an anxiety disorder (exemplified by fears of travelling on public transport and at times elective mutism) with intermittent depressive episodes and borderline low IQ. She has a long history of polysubstance drug misuse and street prostitution.
  2. In relation to this, Mr Howard took me to the notes of the mother’s supervised contact sessions with S. Two themes emerge. The first relates to the mother’s personal appearance and presentation. There is frequent reference to the mother arriving for contact unkempt, with dirty clothes and smelling of tobacco smoke and unpleasant body odour. She is recorded as being shaky, swaying and shuffling (though apparently not smelling of alcohol). The relevance of this, I assume, is that the mother’s inability to look after herself throws light on her ability to look after S. More important are the recordings of the interaction between S and her mother. There is quite frequent reference to the fact that S rarely makes eye contact with her mother but does with the workers, that the mother “has her vacant expression throughout contact” – what on one occasion is described as her “dreamy frozen stare” – and that there is very little interaction between S and her mother. The note of contact on 3 March 2014 comments that S “does not get much stimulation during her contacts.” The note of contact the following day records that when her foster carer arrived to collect her, S was “very happy and smiled at the foster carer.” The comment is added that “S is a very different child when she is with the foster carer S is a happy laughing child.”

The expert evidence

  1. The local authority’s parenting assessment dated 20 December 2013 contains an analysis of which the following are the most significant passages:

“[A report] evidenced some positives in the basic case of S provided by [the mother] during the parenting assessment sessions. [She] has also evidenced a high level of motivation during the assessment, and has engaged to a high level

[She] has remained stable on her methadone prescription as proven by her hair strand test. This is a positive step forward and indicates a desire and ability to remain clean even at times of stress such as current proceedings

…

The child protection risks are of concern and there are still considerable risks potentially posed to S.

However [the mother] has showed some positive insight into parenting and has showed potential for further growth and change.

[Her] mental health difficulties are complex and difficult to understand and I feel we require in depth support from her mental health professionals, to ascertain if there is further support that could be provided with regards to her mental health that may improve [her] position as good parent.

There is a possibility that a short term mother and baby placement tailored to [her] additional needs may be appropriate dependent on other professionals reports and professional opinions. This would be to further determine if she can parent in the whole when responsible for her child, or whether or not, she can merely manage basic parenting in a controlled environment such as FRC for 1½ hours.

It should be noted that since completion of the report, I have had access to case recordings from recent contacts from the start of December and there has been deterioration in [her] parenting skills and presentation.

There have been concerns raised by the contact worker regarding her physical support of S, her hygiene and nappy changing. It is unclear why this change in [her] skills has changed.

[She] has also expressed to contact workers she is experiencing panic attacks and cannot cope with the short journey by taxi to FRC. This contradicts the information she provided to me, and is concerning she is mentioning this now the assessment is complete.

The fundamental concern this raises is that since completion of the parenting assessment, [she] has been unable to sustain the level of parenting she previously was providing S. This could be due to instability in her mental health or an inability to maintain good level of parenting.

S requires a safe, nurturing and consistent upbringing to ensure she has the best possible opportunity for a health and happy life.

If [the mother] is unable to provide this in the confines of the FRC, it is questionable whether or not she could long term.”

  1. The further report dated 6 January 2014, which records a visit to the mother’s home on 4 December 2013, contains this comment:

“It was very evident during my visit that [the mother] is fully dependent on her sister … to fulfil her day to day needs which concerns me in respect of [her] ability to parent S independently.”

  1. The mother’s key worker at the Dorset Working Women’s Project describes working with the mother from 2001 until 2008, when “she appeared to have settled down and was stable.” She next saw the mother in December 2012, describing her then as being “clearly mentally unwell and extremely vulnerable.” She continues:

“[She] appeared to be making progress until she was befriended by a known perpetrator who has a history of violence and abuse towards vulnerable women … Unfortunately once the relationship began [he] had complete control over [her] … and she appeared to be working more.”

That man is S’s father. He has been in prison again since July 2013. Of the mother’s subsequent re-engagement with the Project and more recent presentation the key worker says that the mother’s presentation has “improved greatly” and that she “continues to make good progress”.

  1. Dr Schrader was supportive of a residential assessment to assess the mother’s parenting abilities. In his report dated 30 December 2013 he said that “Her presentation currently is vastly improved from how she presented in 2012 and in January of this year and I believe is primarily as she is having input and been abstinent from substances. This is the first time she has engaged to this extent”. On the other hand, he noted that she “continues to have difficulties with anxiety” and described her as “a complex lady who desperately would like to raise her daughter, but who has numerous issues which could impede this process.” He added, “Improvement in these areas of difficulty is going to take time.”
  2. Dr Ewbank accepted that the mother “appears to be demonstrating an increased capacity to engage in treatment with both the drug services and the CMHT”. Commenting that “Historically she has been a very poor engager, missing multiple mental health appointments and repeatedly disengaging from drugs services either by not attending or by using illicit drugs on top of her Methadone prescription,” Dr Ewbank continued, “There does appear to be evidence over recent months of sustained engagement with both services and she has clearly benefited from the support of … the Dorset Working Women’s Project.” Asked to indicate the prognosis for change, Dr Ewbank said:

“Given [her] long standing drug problems, dating back almost 20 years, it is likely that achieving and sustaining first stability and subsequently abstinence from illicit drugs may take some time and is likely to require on-going treatment and support for many years.”

She added, “there is still a very real risk that she may resort to buying other medication to help her sleep … and thus exacerbate her problems again.”

Orchard House

  1. Having reviewed the papers in the case, Dr Freda Gardner, a consultant clinical psychologist and the clinical director of Orchard House, expressed the view in her report dated 15 December 2013 that a residential assessment was appropriate and indicated. She described the regime:

“The high level of monitoring, 24-hours a day, afforded by a residential assessment would allow a thorough assessment of parenting to be undertaken whilst concurrently ensuring the safeguarding of S. This would include [the mother’s] parenting ability, and capacity for further change, and a consistent period of assessment regarding her current drug use.”

She continued:

“During assessment at Orchard House [she] would be provided with a tailored package of support and intervention to develop her capacity / potential capacity to meet the full range of S’s needs, including ‘Keep Safe’ work around prostitution, appropriate adults, and ongoing drug use.

The Social Work led Assessment Team and the Family Support Workers at Orchard House are highly experienced in working with a wide range of parents, and benefit from full integration of Clinical Psychologists experienced in a wide range of clinical presentations including personality disorder presentations and selective mutism. The staff support parents in developing skills and provide immediate verbal feedback, as well as written / pictorial feedback to improve parenting skills, which are based on research evidence. All staff at Orchard House aim to ensure that each family receives appropriate and consistent information The staff use a variety of techniques and specialist materials designed to help parents learn new skills, which may include formal instruction, modeling, breaking tasks down into small chunks, and giving lots of opportunities for rehearsal and repetition.

…

I am aware that any assessment will need to be within S’s timescales, and would therefore recommend that the residential assessment be kept as brief as possible, with regular reviews held to ensure the progression of the assessment. Typically, residential assessments are 6-12 weeks in length, though this depends on the specific needs of the family and the key issues of the assessment. Following a successful period of residential assessment, it may be appropriate for the assessment to move to the community or to the Orchard House community base. Orchard House are able and willing to provide carefully considered plans for transition.”

  1. In her further report dated 20 March 2014 Dr Gardner confirmed her opinion that Dr Ewbank’s report did not change her view.

Section 38(6) – the legal framework

  1. Section 38(6) of the Children Act 1989 provides so far as material that:

“Where the court makes an interim care order … , it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child …”

  1. The meaning of this provision is authoritatively explained by the House of Lords in two cases: In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, [1997] 1 FLR 1, and In re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 AC 576, [2006] 1 FLR 601. It suffices for present purposes to cite two brief passages from the speech of Baroness Hale of Richmond in In re G. In the first (para 69) she said:

“In short, what is directed under section 38(6) must clearly be an examination or assessment of the child, including where appropriate her relationship with her parents, the risk that her parents may present to her, and the ways in which those risks may be avoided or managed, all with a view to enabling the court to make the decisions which it has to make under the Act with the minimum of delay. Any services which are provided for the child and his family must be ancillary to that end. They must not be an end in themselves.”

Referring to the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719, the precursor to the revised Public Law Outline (PLO), due to come into force in its final form later this month, she added (para 71):

“if the aims of the protocol are to be realised, it will always be necessary to think early and clearly about what assessments are indeed necessary to decide the case. In many cases, the local authority should be able to make its own core assessment and the child’s guardian to make an independent assessment in the interests of the child. Further or other assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring.”

I draw attention to Lady Hale’s use of the word “necessary”.

  1. Two other authorities cited to me require brief mention. In Re J (Residential Assessment: Rights of Audience) [2009] EWCA Civ 1210, [2010] 1 FLR 1290, para 10, Wall LJ, as he then was, said:

“I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother’s right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question?”

Referring to this in Re T (Residential Parenting Assessment) [2011] EWCA Civ 812, [2012] 2 FLR 308, para 93, Black LJ rejected the proposition that “a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority.” She continued:

“Still less is there a principle such as that for which [counsel] contends, namely that parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made’.”

Sir Nicholas Wall P, para 53, identified the “critical questions” as being:

“(1) does this child’s welfare warrant an assessment under section 38(6) of the Act? And (2) in looking at the timetable for the child, is there evidence that this mother will be able to care adequately for the child within the child’s timetable?”

  1. Later this month, the amendments to section 38 of the 1989 Act effected by the Children and Families Act 2014 will be brought into force. Sections 38(7A) and (7B), inserted by section 13(11) of the 2014 Act, provide as follows:

“(7A)   A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.

(7B)     When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to –

(a)        any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b)        the issues with which the examination or other assessment would assist the court,

(c)        the questions which the examination or other assessment would enable the court to answer,

(d)        the evidence otherwise available,

(e)        the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f)         the cost of the examination or other assessment, and

(g)        any matters prescribed by Family Procedure Rules.”

  1. The language of section 38(7A) replicates, in all material respects verbatim, the more general provision in section 13(6) of the 2014 Act which applies to the calling of expert evidence (and which in turn replicates, with the addition of the word “justly”, the language of FPR 25.1). Likewise, the language of section 38(7B) is very similar to that of section 13(7) of the 2014 Act.
  2. For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3.

The wider context

  1. By the time the case came before me on 25 March 2014, the proceedings had already been on foot for a little over five months. What was being proposed by Orchard House envisaged a process that might extend the proceedings well beyond six months, indeed possibly for as long as eight months or even longer. This requires consideration of the principle set out in the interim PLO – which applies to this case – and shortly to be reinforced by section 14 of the 2014 Act.
  2. Section 14 of the 2014 Act amends section 32 of the Children Act 1989 so that from later this month section 32 will in material part read as follows:

“(1)      A court hearing an application for an order under this Part shall …

(a)        draw up a timetable with a view to disposing of the application –

(i)     without delay, and

(ii)    in any event within twenty-six weeks beginning with the day on which the application was issued; and

(b)        give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.

…

(5)        A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

(6)        When deciding whether to grant an extension under subsection (5), a court must in particular have regard to –

(a)        the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b)        the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7)        When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification.

…

(10)      Rules of court may provide that a court –

(a)        when deciding whether to exercise the power under subsection (5), or

(b)        when deciding how to exercise that power,

must, or may or may not, have regard to matters specified in the rules, or must take account of any guidance set out in the rules.”

No rules have been made pursuant to section 32(10) and none are proposed to be made for the time being.

  1. Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6) and (7), a mandatory limit which applies to all cases. It follows that there will be many cases that can, and therefore should, be concluded well within the 26 week limit. I repeat what I said in my first ‘View from the President’s Chambers: The process of reform’, [2013] Fam Law 548:

“My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks.”

  1. What then of the qualification in section 32(5)?
  2. In In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, paras 32-46, the Court of Appeal spelt out the essentials which the law and good practice demand in all cases when the court is being asked to approve a care plan for adoption or being asked to make a non-consensual placement order or adoption order. Giving the judgment of the court, I said this (para 49):

“We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption.”

I continued:

“If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.”

  1. That approach, which is entirely compatible with the requirements of section 32, applies not just in the particular context under consideration in In re B-S but more generally.
  2. In my seventh ‘View’, [2013] Fam Law 1394, I described the remarkable work being done by the Family Drug and Alcohol Court (FDAC) under the inspirational leadership of District Judge (Magistrates’ Court) Nicholas Crichton. I touched on the question of how the FDAC model was to meet the challenge of the 26 week time limit and fit with the PLO. I said:

“ … we must see how best the PLO can accommodate the FDAC model (I put it this way, rather than the other way round). We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy.”

  1. More recently, in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), para 40, Pauffley J has expressed the point in words which I cannot improve upon and which I wholeheartedly endorse:

“Justice must never be sacrificed upon the altar of speed.”

  1. So despite the imperative demand of section 32(1)(a)(ii), there can be exceptions. But before going further it is vital to recall the equally imperative language of sections 32(5) and 32(7). An extension beyond 26 weeks is to be permitted only if it is “necessary to enable the court to resolve the proceedings justly”. This is precisely the same language as appears in section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act, so it must mean the same. Specifically, the learning in Re TG and in In re H-L must, in my judgment, apply as much to section 32(5) of the 1989 Act as it does to section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act. Moreover, extensions are “not to be granted routinely” and require “specific justification.”
  2. In what circumstances may the qualification in section 32(5) apply?
  3. This is not the occasion for any elaborate discussion of a question which, in the final analysis, can be determined only on a case by case basis. But some preliminary and necessarily tentative observations are appropriate.
  4. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be “necessary”:

i)                    The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, [2014] 2 FLR (forthcoming), para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent’s disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii)                   The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii)                 The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).

  1. I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly”. Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.
  2. I referred above to FDAC type cases. I have in mind cases of the type that might benefit from what I will call the FDAC approach. The approach (see the description in my seventh View, [2013] Fam Law 1394) is based on problem solving by a specialist, multi-disciplinary team supporting the parents in overcoming their problems where children have been put at risk, for example by parental substance misuse. The aim is to help to keep the family together, where possible. The team formulates an intervention plan to test whether the parents can overcome their problems and meet their child’s needs within the child’s timescale. Expectations are clear. The progress made by the parents is monitored regularly. If the parents cannot maintain the necessary progress the process is brought to an end.
  3. Originally, the FDAC approach was pioneered in the FDAC court created by DJ(MC) Crichton at Wells Street in London. Another FDAC is now running at Gloucester and others are planned elsewhere. But the FDAC approach does not necessarily require a FDAC. Similar principles are being applied, for example, in Plymouth, pre-proceedings in a community based model pioneered by Bath and North East Somerset Council, in Liverpool by the use of a pre-proceedings protocol and in a small number of specialist domestic abuse survivors’ projects. No doubt other models will emerge. Typically, a multi-disciplinary team approach is agreed with the designated family judge or judge in charge of the specialist court, so that the support network and assessment team are available and funded in accordance with an agreed model. Decisions in principle about the capability of the parents to care for their child are usually made within 26 weeks, leaving such longer implementation as may be within the child’s timescale to be achieved within an extended timetable for the proceedings.
  4. The FDAC approach is crucially important. The simple reality is that FDAC works. DJ(MC) Crichton has shown what can be achieved for children and their parents even in the most unpromising circumstances. FDAC is, it must be, a vital component in the new Family Court.
  5. Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child’s timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child’s timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale?

Discussion

  1. On behalf of the mother, Mr Pitt submits that she has complied with everything asked of her, is no longer taking drugs, has made progress in relation to her mental health – she is now talking freely – and continues to engage with the agencies and professionals who are in place to support and assist her.
  2. Mr Hand on behalf of the local authority accepts that, to her credit, the mother has been making improvements. But, he submits, she has a long way to go. There is, he says, no realistic way in which she could care, or be supported long term to care, for S. Given the range of expert material already before the court, further assessment will not, he submits, assist the court in discharging its responsibilities. The combined effect of all the material is, he says, that the mother will not be able to care for S long term. Moreover, given the poor quality of the mother’s contact with S he questions whether it is compatible with S’s welfare to expose her to a residential assessment with the mother in the absence of it having a good chance of success. On top of all that, he questions whether the inevitable delay can be justified unless there is a good chance of success.
  3. Mr Howard, for S, makes much the same points as Mr Hand. While the mother has made improvements they are insufficient and too late to indicate that she would be able to care for S within the child’s timescale. The assessment is not necessary. The guardian, moreover, is particularly concerned about the impact on S of the proposed assessment. The mother’s parenting of S during the assessment could undermine the secure attachment S currently has. Given the extensive assessments already undertaken, the mother’s poor prospects of success do not justify the “experiment” she is proposing, nor is it within the child’s timescale.
  4. After careful reflection I concluded that Mr Hand and Mr Howard were right, and essentially for the reasons they gave. I can summarise my conclusions quite shortly.
  5. In the first place I agree with them that the proposed assessment is not necessary, either in the sense described by Lady Hale in In re G or in the sense (the same sense) in which the word is used in FPR 25.1 and in section 38(7A) of the 1989 Act. There are two aspects to this. Further assessment is not going to add significantly to what the court already knows. Moreover, the kind of assessment proposed by Orchard House, although it may tell us something about the mother’s ability to parent S in a practical sense (though nothing important we do not already know) is not going to be able to tell us very much about the mother’s ability to address her many other difficulties, let alone her ability to sustain in the long term in the community whatever improvements may be noted in the short term in the supportive and controlled environment of Orchard House.
  6. Secondly, there is no adequate justification, let alone the necessity which section 32(5) of the 1989 Act will shortly require, for an extension of the case so significantly beyond 26 weeks. Again, there are two aspects to this. Looking to the mother, there is, sadly, at present no solid, evidence based, reason to believe that she will be able to make the necessary changes within S’s timescale. Even assuming that there is some solid, evidence based, reason to believe that she is committed to making the necessary changes, there is, sadly, not enough reason to believe that she will be able to maintain that commitment. In the light of her history, and all the evidence to hand, the assertion that she will seems to me to be founded more on hope than solid expectation, just as does any assertion that she will be able to make the necessary changes within S’s timescale. Secondly, I have to have regard to the detrimental effects on S of further delay. Far from this being a case where the child’s welfare demands an extension of the 26 weeks time limit, S’s needs point if anything in the other direction. I accept the guardian’s analysis.

 

3 Comments

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

Withdrawing care proceedings

Posted on April 15, 2014 by suesspiciousminds

 

Re J, A, M and X (Children) 2013

Cobb J gave a judgment in this case which would now be your go-to place to see the law on a Local Authority’s application to withdraw care proceedings.  [There’s a potentially important bit at para 63 of the judgment, where the Judge gives a view as to whether an injury deliberately caused by a sibling could be capable of crossing the threshold even if the parents had done nothing wrong]

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4648.html

The long and the short of the case was that it involved a head injury to X, who was 18 months old. This head injury presented with subdural haematoma and retinal haemorrhages.  That, ten years ago, would have had shaking injury written all over it. The Courts and experts are a bit more cautious these days, but it is still a concerning set of injuries and the possibility of deliberate harm is one that is explored by the Court.

The parents explanation is that they were in an adjacent room, J (their 16 year old) was in a room with the other children, and M who was 3 1/2 had pushed X, who had fallen over.

The medical opinion:

 

 

  • In this case, the parties have been fortunate to garner the expertise of some of the finest medical experts currently available to the family courts. I have read their reports with care, and the transcript of the meeting at which they were able to share their views. There is some measure of professional consensus about the medical evidence, and I attempt to do no more than to distil some of the key aspects of their evidence as follows.

 

 

 

 

  • Mr. E, Consultant Ophthalmologist, has opined that, taken with the other findings in the case, the retinal haemorrhages provide strong evidence that X was subjected to a shaking injury. He describes him fulfilling the “characteristic profile” and refers to the triad of features which includes encephalopathy and subdural haemorrhage; he considers that unilateral retinal haemorrhage is not unusual in NAHI. He concludes that by reference to his expertise on ophthalmological features alone, the fall described cannot be considered a plausible explanation for the retinal findings. I remind myself that I do not consider one aspect of the medical evidence in isolation from other aspects.

 

 

 

 

  • Mr. R Consultant neurosurgeon, suggests that on current medical understanding a low level fall of the type described would not be expected to cause an acute subdural bleed and that developing a subdural haematoma from such a fall would therefore be a very unusual event. The account of X being pushed over and hitting his head could explain the acute subdural haematoma although it would be an unusual event in these circumstances. The appearances of the bleeding do not assist in determining the explanation, and can be explained by a single localised impact to the top of the left cerebral hemisphere. He opines that the accidental event described causing this haemorrhage is a possibility although it would be unusual. Another event involving greater force that has not been reported remains a possibility but this cannot be definitively stated on the appearance of the subdural haematoma alone.

 

 

 

 

  • Dr. SA, Consultant Paediatrician, reminded the Court that there are exceptions to the rules that generally short falls do not give rise to significant cranial or intracranial injury whereas large falls and severe impacts will do. He considers that X did not simply fall to the ground, he was pushed and although this was by a small child this will have increased his velocity and impact. He concludes that the injuries found are consistent with the fall and that this is consistent with an accidental event. The injuries are more likely due to the reported fall.

 

 

 

 

  • Dr. ST, Consultant Neuroradiologist, concluded that on imaging grounds alone he could not exclude shaking as a cause for the subdural bleeding. The inter-hemispheric component and the bleeding in the posterior fossa are somewhat unusual in the context of being secondary to head trauma. However, because of the unusual nature of the fall in his view it is possible to explain the imaging features as having occurred as a result of that event. He does not exclude the event as a reasonable possible cause.

 

 

 

 

  • The experts have met, and I have a transcript of their discussions; this reflects the expert view that the constellation of injuries was caused by the same event which occurred shortly before X’s collapse; that there are a whole series of atypical features in this case; that the experts cannot from their respective areas of expertise reasonably exclude any of the possibilities that were debated, and that it is a matter for the Court to “put all the pieces of the jigsaw together”.

 

 

 

 

  • A Schedule of Concurrence (of expert views) has been helpfully prepared by Mr Rothery arising from the meeting. The Local Authority relies upon this analysis and summary of the expert medical evidence. The document summarises the nature of the injuries; there is agreement that the injuries are a result of trauma on a single occasion, and more likely to be impact than shaking alone.

 

 

 

 

  • The doctors conclude (para.4.1) that it is not possible on the medical evidence alone to determine whether the injuries were accidental or non-accidental. The summary discloses that the experts considered a range of possible mechanisms which may account for X’s injuries (para.2.4). Paragraph 4.2 reads:

 

 

 

“the explanation given by J that X fell over having been pushed by M is a possible explanation of all Xs injuries“.

What that means is that medically speaking, the experts considered that the accidental explanation could account for the injuries. What of course they could not say, is whether this explanation happened. That would be ultimately a matter for the Judge.  The Local Authority COULD have pressed on with the finding of fact hearing, and asked the Judge to hear the evidence and reach a decision. They decided instead that they would accept that the injury had been caused accidentally by M pushing X over.

The application for leave to withdraw

 

  • The Local Authority, upon whom the burden of proof falls at this essentially adversarial stage of these proceedings, does not seek to prove that the injury sustained by X was non-accidental.

 

 

  • It takes as its starting point the unanimous expert medical opinion that the accident described by J “is a possible explanation of all X’s injuries“.

 

 

  • The Local Authority has then weighed into the reckoning what the parents and J have said about the incident. Ms Cross and Ms Hobson have rightly in my view formed the view that where the medical evidence is poised so evenly on the fulcrum of possibility, it is necessary critically to evaluate the other aspects of the case and, in particular, what it is that the parents and J say about the events which may tilt the balance. Only, say the Local Authority, where the forensic process could significantly damage the credibility of the parents or J would the Local Authority be able to contend that the balance tilted against this being an accident. But, Ms Cross continues, there is little in the relevant lay accounts which gives cause for such a conclusion

 

 

  • Even the inconsistencies in the accounts, such as they are, lend weight to (rather than detract from) the conclusion that an essentially honest account has been given: there has been sufficient consistency about the incident: It occurred when X was trying to negotiate the sofa; X was not confident or steady on his feet; M ran at him and collided with him; M pushed him over and he fell to the ground; X hit his head and it ‘bounced’; X reacted adversely and immediately, developing symptoms consistent with a seizure; J shouted for her mother; all the children were together in the room; the parents were in an adjacent room; J alerted the parents immediately, indicating her distress and concern for X; upon arriving at the scene the parents witnessed X in a state of collapse.

 

 

  • Moreover I note as context to the key events that:

 

(a) No-one gives any hint that there had been any stress or tension within the home immediately prior to the incident

(b) J has never shown any aggressive behaviour towards her younger siblings;

(c) There been no particular health or behavioural issues relating to the children

 

  • If I were to embark upon a fact-finding enquiry, it seems to me that I would probably need to reach a position in which I was satisfied that J had been able to maintain quite a sophisticated lie in inventing an account which coincided in some important respects with the expert medical opinion as to key elements of causation of the injuries. I would further need to satisfy myself that J was prepared to blame her little half-sister M for injuring X to protect herself, and that the younger children were able to maintain a consistent and impenetrable wall of silence in relation to a different type of event causing the injury. While I cannot form a concluded view on this point on the papers, the indicators point the other way: I have noted the comments in Ms LM’s report, and note the comments of J’s guardian who (in her recent Analysis document) describes her as a “lovely young person”.

There is an issue of relevance here – the existing case law is that if the Judge is satisfied that the threshold could not be crossed, they can deal with the Local Authority’s application to withdraw on that basis alone (the statutory test for making orders not being met, the proceedings ought to end), whereas if the Judge considers that the threshold COULD be crossed, the Judge then has to consider whether the withdrawal of the proceedings is in the children’s best interests

28.  The Local Authority submitted – per paragraph 44 to 46 of its skeleton argument – that as this is an application to withdraw proceedings at the pre-threshold stage (because it says, it does not believe that it can cross the threshold), then I would be required to “evaluate the application” by reference to that “fact alone” (i.e. that the threshold cannot be crossed), without engaging any consideration of welfare; it is said that my compass of enquiry on this application is accordingly is a narrow one.

 

 

Reliance for this proposition was placed on a decision of Hedley J in Redbridge London Borough Council v B C & A [2011] 2 FLR 117 in which he said (at para.9 of the judgment) that:

 

 

“If the local authority could not prove the threshold criteria, then of course, their application would succeed without more as otherwise I would have no alternative but to dismiss the proceedings. If, however, the threshold could be established, then the application would really depend upon the court concluding under s 1(5) of the Children Act 1989 that no order was necessary; that is to say on the basis that withdrawal was consistent with the welfare needs of A – see London Borough of Southwark v B  [1993] 2 FLR 559 and WSCC v M, F, W, X, Y and Z [2010] EWHC 1914 (Fam), [2011] 1 FLR 188.”

(emphasis by underlining added for emphasis).

 In this case, as it is presented before me, I am not in fact being asked to conclude (and indeed I do not conclude) that the Local Authority could not on any view prove the threshold. Plainly on one or more than one construction of events, the threshold could be crossed. To fall into the category of case envisaged by Hedley J in para.9 of his judgment, wherein the court would have no alternative but to permit the withdrawal, it seems to me that the inability of the Local Authority to demonstrate facts to cross threshold ought to be obvious.

 

 

  • The Local Authority here invites me to adopt their likely construction of the evidence, and on that basis they invite me to say that they will not be likely to cross the threshold. They further maintain that it is not in the interests of the children concerned that an enquiry is embarked upon to establish whether that construction or another construction should be preferred.

 

 

  • In a case where there is argument whether the threshold could be crossed, I have to remind myself that answers to the questions relating to threshold may also inform the answer on welfare. The crossing of the ‘threshold’ is simply one part of a two-stage process (and the court has two questions to ask i.e. has the threshold been crossed? If so, what will be best for the child?) The same factual issues are often relevant to each question. Just because a hearing is split, does not mean that the evidence relevant to stage 1 may not be just as relevant to stage 2: “the finding of those facts is merely part of the whole process of trying the case. It is not a separate exercise” (see Baroness Hale in Re B (supra) at para.74).

 

 

  • After oral argument before me, all counsel agreed that this was not such an ‘obvious’ case that the Local Authority could not prove the threshold; it was acknowledged by all that on the evidence there were plainly significant difficulties in them achieving this.

{i.e it is POSSIBLE that the Judge could have heard all of the evidence and found the parents and J’s account of the accident implausible, and made the finding. Well, actually, it goes even further than that, because of paragraph 63, which I think might come up again}

  • The Local Authority has further maintained (para.47 and 48 of the Skeleton Argument) that at its highest, the threshold may not have been capable of being crossed even if I were to be satisfied that J injured X (i.e. non-accidentally). I respectfully disagree with the analysis of the law set out in these paragraphs of the skeleton argument. If I were to have found that X had sustained non-accidental injuries, these injuries would unquestioningly have represented ‘significant harm’, and that harm would have been “attributable to the care given to X” not being what it “would be reasonable to expect a parent to give him”. The fact that X was at the critical point being cared for by J does not mean that the threshold is not crossed. I do not consider that there are grounds for distinguishing the situation relating to X (as the injured child) from the situation relating to the parents (as opposed to the childminder) of the parents’ child in the Lancashire v B case in respect; and given that the mother/father and J would all form part of the family unit hereafter, there is no proper basis for considering the other children differently either.

You need to read that carefully – what the Judge is saying is that EVEN if the finding was that it had been J who harmed X (rather than the parents, or the 3 1/2 year old M) the threshold could have been crossed, the Local Authority were saying that it would not have been.

If you do care proceedings regularly, you will come across the explanation that the injuries were caused by a sibling very often, and I think that this paragraph offers a suggestion that if the injuries were caused deliberately rather than accidentally, threshold might still be crossed  – even though the parents had done nothing wrong.   (It isn’t unreasonable, to leave a 16 year old in charge of younger siblings for a short period whilst the parents are in an adjacent room – if it was, there would be an intolerable number of care proceedings)

I’m not sure how I feel about this – my gut feeling was that I agreed with the Local Authority and that I wouldn’t have been saying that threshold was met if the Judge had decided that J (16 year old sibling) had caused the injury and lied about it. But having mulled for a few days, I can see what the Judge is getting at – if  J had injured the infant deliberately and was still going to be a member of the household, then the risk of future injuries isn’t one that could sensibly be ignored.  My suspicion is that if a Judge were to make a finding in relation to threshold on that basis, we would be finding out what the Court of Appeal think.

That’s all something of an academic sidetrack, since there wasn’t evidence that anyone sought to rely on that J had done anything of the kind.

But, having decided that this was a case where threshold COULD have been made out, the Judge had to then consider the application to withdraw on welfare grounds.

  • Given that this case does not fall into the realms of what I call the ‘obvious case’ (where I would have no option but to give leave to withdraw), the question of whether or not a particular fact-finding exercise is to be conducted within care proceedings is a question which requires me to look at the whole application. In this respect I have been particularly guided by the judgment of McFarlane J as he then was in A County Council V DP, RS, BS (By The Children’s Guardian) [2005] EWHC 1593 (Fam) [2005] 2FLR 1031 . He set out (in rather different factual circumstances) the factors which should weigh in the evaluation of whether it was right for proceedings to be pursued (see [24]):

 

(a) the interests of the child (relevant not paramount);

(b) the time the investigation would take;

(c) the likely cost to public funds;

(d) the evidential result;

(e) the necessity of the investigation;

(f) the relevance of the potential result to the future care plans for the child;

(g) the impact of any fact finding process upon the other parties;

(h) the prospects of a fair trial on the issue;

(i) the justice of the case

 

(a) The interests of the child (relevant not paramount) I have to consider whether it is in the interests of the children that the application is pursued. There is, I can acknowledge, nothing in the material which actively supports the contention that it is in the interests of any of the children for the fact-finding hearing to go ahead; I can say with reasonable confidence that it be contrary to J’s interests for it to do so;
(b) The time the investigation would take This fact-finding hearing is listed for 12 days – 10 further court days from now. If the threshold were established, there would be likely to be a second stage hearing some way down the line IF I were to find that the threshold were crossed
(c) The likely cost to public funds The cost to public funds would be highly significant given the estimate for the length of the hearing (above) and the fact that the parties are rightly (given the issues involved) represented by leading and junior counsel
(d) The evidential result It is difficult to assess the evidential result were I to conduct a factual enquiry; I have attempted no more than a rough forecast on the information available, and cannot say with any confidence at all that the picture at the end of a long enquiry would be any clearer from what appears now.
The key components of the account of the incident have been maintained by the protagonists up to now, and are broadly consistent; I would need to be satisfied that there was a real chance of a clearer evidential outcome.
(e) The necessity of the investigation I am not convinced that the investigation is necessary, given that it appears to be the intention of the Local Authority to reconstitute this family sooner rather than later;
(f) The relevance of the potential result to the future care plans for the child; The enquiry is unlikely to have any effect on the future care plans for the child; in this respect the situation can be distinguished from the decision of McFarlane J in A County Council V DP, RS, BS (By The Children’s Guardian)
(g) The impact of any fact finding process upon the other parties I am particularly concerned about the impact of the fact finding process on J. I am aware that only J can provide a direct account of the alleged events. The accounts of the Mother and the Father are, necessarily, secondary, rehearsing what J told them of the event itself and describing only the aftermath directly. The pressure on her of the process would be not inconsiderable.
J’s ability to give a clear and coherent account of the events may be affected not only by her own limitations – such as they are – but also by the shock and panic associated by being in the vicinity of the events.
I have been told that J has already been advised that she may well not have to give evidence; whether that was sensible is a moot point given that this decision was not yet available, but I nonetheless note that she was described as “buoyant” to discover that she may well be spared the process of recounting her events to the court, however sympathetically we were to arrange that for her
(h) The prospects of a fair trial on the issue; I believe that a fair trial is possible; arrangements have been discussed and agreed for J to give evidence
(i) The justice of the case The justice of the case lies in reaching a swift, reliable, welfare-based conclusion for the children.

Conclusion:

 

 

  • Having reviewed the material carefully, listened to the views of the parties, their submission as to outcome and their reasons, I have concluded that the Local Authority should indeed be given leave to withdraw the application for a care order.

 

 

 

  • I have paid close regard to the checklist of factors set out above. Those factors, many taken individually but certainly taken cumulatively, point firmly against a fact-finding enquiry.

 

 

 

  • I have applied an overall welfare test to my decision, and have satisfied myself that it is not in the interests of any of the children to subject the family, the parents and J in particular, to this enquiry. Such a process would be neither proportionate nor in the children’s interests, it is a course which no party wishes, and which the guardians on behalf of the children discourage me from embarking upon.

 

 

 

 

  • Where does that leave the allegations of Non Accidental Injury? And how does that leave the parties?

 

 

 

 

  • I can do no better than to apply the principles most clearly set out in the speech of Lord Hoffman in Re B [2008] UKHL 35, [2009] AC 11:

 

 

“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

 

  • By reason of the withdrawal of the proceedings, the allegation of non-accidental injury now scores a zero.

 

 

 

 

  • It follows that the lives of this family should now proceed on the basis that the injuries to X were no more or less than a terrible, fluke, accident. There is not even room for a suspicion that the injuries were caused in any other way. The family, and the professionals around them, should proceed now on the basis that no-one (and I include in this of course M) is to blame for X’s injuries.

 

 

 

 

  • For the avoidance of doubt, I wish to add that the application for care order was entirely appropriately made in this case on the basis of (a) the presenting features of X at hospital in April 2012 when viewed against (b) the backcloth of concerns about this family, and (c) the medical opinions early expressed about the aetiology of the serious injuries. It is apparent from all that I have read that the social workers have worked conscientiously, not always in the easiest of circumstances, in the interests of the children. The court is, and the family should be, indebted to them for that.

 

1 Comment

Posted in Uncategorized and tagged , , , , , . Bookmark the permalink.

Italian C-section case – the final chapter

Posted on April 15, 2014 by suesspiciousminds

 

I don’t know that this one needs a lot of introduction – it was national, if not international, news in December (although the facts were rather different to the media reports).

This is the judgment from the adoption hearing, which was the last stage left.  It was allocated to the President of the Family Division, a judge who has not been afraid to grant leave to oppose  (indeed his lead judgment in Re B-S on that very point was the decision that led to such changes)

 

Re P (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1146.html

You may remember from all of the press reports at the time that mother now had solicitors and was going to fight for her child back. That has not materialised. As the President says :-

 

 

  • As of 1 April 2014 the position remained as it had been on 17 December 2013. Despite what had been said in the correspondence from Brendan Fleming and Dawson Cornwell in December 2013, no application of any kind had been made on behalf of either the mother or the Italian authorities, whether to the Court of Protection, the Chelmsford County Court or the Family Division, nor had any application been made to the Court of Appeal. In particular, it is to be noted, neither the mother, nor for that matter the father, had made any application in accordance with section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of an adoption order.

 

To be fair to them, getting public funding for a leave to oppose adoption application isn’t easy (though I have seen determined solicitors get it on a much less contentious case than this one, and of course if one is deeply committed to the cause there is always pro bono option – for example, the mother in the Re B-S case didn’t have legal aid and her lawyers did the work for free)

The Judge sets out quite a lot of the email and correspondence between the Local Authority and the mother about this hearing and the chance to express her views

 

  • The email notifying the mother of the hearing was sent to her on 7 March 2014. A follow up email was sent on 12 March 2014. The mother responded by email later the same day:

 

 

“Dear Lynne thank you for your email I don’t have an advocate and unfortunately I will not able to attend Court, I received all the paperwork that you mailed to the adresse. Thank you very much”

Essex County Council replied by email on 13 March 2014:

“Many thanks Allesandra.

Would you wish to express your view via an email which we can present to the Court on your behalf?

Lynne”

There was no response, so Essex County Council emailed again on 27 March 2014:

“Alessandra – I just wish to remind you that the hearing in respect of [P] will be on Tuesday 1st April.

I know that you are unable to attend the hearing, but as previously stated, if there is anything that you wish the Court to know about your views on the proposed adoption then please email me by Monday 3 p.m. so I can ensure your views are available to the Court.””

The final email from the mother arrived on 28 March 2014:

“Dear Lynne

I wish for my daughter the best. Me personally I am trying to forget this bad experience I had in England. I love my daughter with all my heart and I pray to see her one day again.”

 

With that in mind, it is not a surprise that the President went on to make the adoption order, as there was no challenge to it. Obviously this is a sad case, as all adoptions are. Perhaps the mother had given up hope, perhaps she thought that she would have no chance of success, perhaps she just wasn’t in a place where a fight was something she could manage. I feel for her. Less for some of the journalists who high-jacked her tragedy to make cheap and inaccurate points.

I suspect that this judgment won’t get the publicity that the shrill allegations got back in December.

 

 

 

 

28 Comments

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