Author Archives: suesspiciousminds

A gilded cage is still a cage (Lady Hale finally wins one!)

Posted on March 19, 2014 by suesspiciousminds

If you do Court of Protection work, you have probably been waiting for the Supreme Court’s decision in Cheshire West and Chester, which is here

http://www.bailii.org/uk/cases/UKSC/2014/19.html

 

 The Supreme Court decided unanimously that P’s liberty was being deprived, and on a 4-3 split that MIG and MEG’s liberty was being deprived. [Yes, a 4-3 split in which Lady Hale finished on the winning side. A 4-3 split does, however indicate that the issues are difficult and that it wasn’t an easy decision or foregone conclusion – they also overturned the Court of Appeal on these two linked cases]

 At the same time, they dismantled the Court of Appeal’s notion that a factual determination of whether someone’s liberty was being deprived was a subjective comparison with what would be reasonable to do for someone of similar characteristics. This is also, as far as I know,  the first finalised deprivation of liberty decision applying to a person living in a foster placement rather than a care home or hospital.

 If you do only care or children work, you’ve probably never heard of Cheshire West, or MIG and MEG, or possibly even DoLs; but just in case you think you can cheerfully ignore all of them, give me one paragraph of your time, to convince you that you ought to learn a bit about this case.

 

The President has issued guidance saying that Deprivation of Liberty applications don’t apply to children under 17 (he is right), and that if there is in a child’s case a deprivation of liberty issue then the mechanism is either detention under the Mental Health Act or an application for a Secure Accommodation Order. The Supreme Court here decided, on a 4-3 split, that what was happening to two young women (formerly children) in a foster care / residential home setting WAS a deprivation of liberty. And therefore, if this was happening to children in other cases, those other cases ought to be the subject of a Secure Accommodation application, or Mental Health Act intervention.

 

Children have historically been the subject of Secure Accommodation applications if they are absconding, or taking deliberate actions, but this case raises that if their liberty is being deprived as a result of their vulnerabilities or medical situation or functioning, that can still equate to a deprivation of liberty which needs to be sanctioned by the Court.

 

That is only the case if it is the State, or a limb of the State that is restricting the child’s liberty.

 

54. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

 

 

I come back to this at the very end of the piece, so if you really don’t care about Court of Protection work, you can skip to the bottom.

 

What sort of restrictions were being applied to those young women, and why?  (I’ll call them MIG and MEG, as they were initially dubbed. This is interchanged in the judgment with P and Q, but because the Supreme Court were dealing with two cases interlinked  “P” and “MIG and MEG” / “P and Q”  I think it is confusing to have two separate “P” cases in the same discussion)

 

11. MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sister’s and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour.

 

  1. At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her “mummy”). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication.
  1. MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister.

 

 

The original Court of Protection hearing decided that what was happening was NOT a deprivation of liberty, and that any restrictions were for the best interests of MIG and MEG and were justified.

 

The Court of Appeal agreed: [2011] EWCA Civ 190 [2012] Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the “relative normality” of the sisters’ lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the “greater fulfilment in an environment more free than they had previously had” (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that “what may be a deprivation of liberty for one person may not be for another” (para 40).

 

 

That sentence lays at the heart of the two appeals to the Supreme Court.  In the other case, involving an adult named P, the Supreme Court were unanimous that his liberty had been deprived.

 

  1. P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Down’s syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the local authority.
  1. Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to P’s family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one “waking” member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a “body suit” of all-in-one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication.
  1. By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance” (para 59). Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty” (para 60). Nevertheless it was in his best interests for those arrangements to continue: [2011] EWHC 1330 (Fam).

 

 

That decision was reversed by the Court of Appeal

 

The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: [2011] EWCA Civ 1257, [2012] PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of “relative normality” adopted in P and Q, and considered it appropriate to compare P’s life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P” (para 120).

 

 

This concept of ‘relative normality’ or ‘what might be a deprivation of liberty for one person might not be for another’ really lays at the heart of these appeals to the Supreme Court.  In essence, is whether someone is deprived of liberty an OBJECTIVE test, or a SUBJECTIVE test?

 

There is an excellent history of how the “deprivation of liberty” legislation came about in Lady Hale’s judgment, well worth a read.

 

There were a category of people who weren’t detained under the Mental Health Act, or under criminal legislation, but who were being effectively detained because they lacked the capacity to say “I want to leave” or that if they tried to leave weren’t allowed to do so.

 

This came to a head with a man named L, who took his case up to the House of Lords. R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458.  He had been living with foster carers, became agitated one day at a day care centre and was taken off to hospital, and the carers were not able to get him out. If he HAD been detained under any legislation, then the carers would have had access to legal routes to challenge the decision, but were left in a grey area where they and L seemed to have no rights at all.

 

The majority decision  of the House of Lords was that he had not been detained, and if he had been, it had been under the doctrine of necessity.

 

Lord Steyn disagreed, forcefully and  said

 

  1.  “Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale.”

 

When the case went to the European Court of Human Rights, Lord Steyn was shown to be right, and went about his day without egg on his face.

 

  1. The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL.
  1. Key passages from the judgment are these:

“89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.

90. . . . . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . . . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.

91. . . . the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. . . .

Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court’s view, fairly described by Lord Steyn as ‘stretching credulity to breaking point’ and as a ‘fairy tale’.”

 

 

As a result, it became necessary for the UK to introduce a statutory mechanism to deal with people like L, and that mechanism was the deprivation of liberty powers within the Mental Capacity Act 2005

 

Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the person’s condition while a case is pending before the court.

 

Lady Hale goes on to say that the safeguards have the appearance of bewildering complexity   (only the appearance?)  and a few High Court Judges, notably Peter Jackson J have remarked in judgments that the law on deprivation of liberty has become so complex that nobody can understand it, least of all the relatives or carers of the vulnerable people who need to be safeguarded by it.

 

 

Let’s get on with the central argument

 

  1. The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in P’s case appears to have thought that it is not, for he criticised the trial judge for failing to grapple with the

“question whether the limitations and restrictions on P’s life at Z house are anything more than the inevitable corollary of his various disabilities. The truth, surely, is they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. P’s life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker J’s phrase…, dictated by his disabilities and difficulties” (para 110).

This view has been confirmed by the rejection in Austin v United Kingdom (2012) 55 EHRR 14, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania (2013) 56 EHRR 11).

  1. The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty.

 

 

To be honest, you can just assume that I am saying “hear hear” at most paragraph breaks from here on in. But hell yeah.

 

  1. Allied to the “inevitable corollary” argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.
  1. The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present-day conditions and continued:

“It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008).”

 

 

So, there isn’t a different test about whether someone’s liberty is being deprived because of the circumstances of that individual   (that might go to the later question of whether the deprivation is justified or justifiable, but it is a straight factual decision – EVERYONE has the right not to be deprived of their liberty, and you don’t lose that right just because you are autistic or vulnerable in other ways. We certainly don’t compare sedating a vulnerable person and preventing them from leaving with putting a seatbelt on a wriggling child in the back of a car.    (Or at least, we don’t any more, that comparison was made in one of these Deprivation of Liberty – DoLS cases)

 

Second question then, if deprivation of liberty is a factual question, what are the characteristics that decides whether someone is, or is not being deprived of their liberty?

 

The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.

 

…

 

  1. In none of the more recent cases was the purpose of the confinement – which may well have been for the benefit of the person confined – considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46:

“I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . . . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified?”

 

 

ie, something doesn’t cease to be a deprivation of liberty just because there are good reasons for it  – what you have there is a deprivation of liberty which is justified, and the Court can sanction it.

 

 

  1. In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
  1. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
  1. For that reason, I would reject the “relative normality” approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading

 

 

 

  1. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their “concrete situation” on which we need to focus?
  1. The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave” (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.
  1. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach

 

 

 

You are looking for  – is a person under continuous supervision and control, are they free to leave.

 

It is NOT relevant that the person is complying or not objecting.

 

It is NOT relevant that a person in similar circumstances to this person would have the same sort of placement or restrictions

 

It is NOT relevant that the reason for the restrictions is to protect the person or that it is for their own good   (that comes into the second stage – is the deprivation justifiable)

 

 

54. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

 

And on P

 

  1. In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that “a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person’s care and movements” (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the person’s life, which in my view are not relevant factors. But when he considered the circumstances of P’s life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that P’s life was as normal as possible, but continued (para 59):

“On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.”

In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that “looked at overall, P is being deprived of his liberty” (para 60) should be restored.

 

 

And in conclusion Lady Hale says

 

Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.

 

 

 

As I said at the outset, the Supreme Court was unanimous that P’s liberty had been deprived, but were 4-3 split on MIG and MEG, the majority agreeing with Lady Hale that their liberty had been deprived.

 

 

The dissenting views were in very broad terms based on agreement with this proposition by Parker J in the original decision on MIG and MEG

 

  1. 107.                        “225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made.

226. In my view it is necessary to analyse what specific measures or restraints are in fact required. …”

 

And that

 

nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIG’s liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG.

 

 

 

I am aware, in conclusion, that I have devoted far more time to the majority judgment and lead judgment of Lady Hale than to the dissent; an analysis of the nuances between them is probably beyond the scope of this blog and I’ll leave it to specialists like Lucy Series over at The Small Places blog. 

 

 

[Lucy hasn’t written on it yet, but can I refer you to this brilliant, stirring and beautiful piece on the House of Lords dissection of the MCA  http://thesmallplaces.wordpress.com/2014/03/14/democracy-in-action/

 

I wish that I could write with an ounce of Lucy’s passion – she’s the sort of writer that makes me want to man the barricades. If, as the House of Lords hint, there should be some sort of monitoring/oversight/scrutiny/guidance body other than the Courts overseeing the MCA, Lucy should be on it ]

 

Plus, as I have not even attempted to disguise during this piece, I wholly agree with Lady Hale’s determination.

 

It may well be that there are far more people than the current 11,800 DoLs applications as a result of this decision. Well, so be it. For me, that is more people whose liberty is being deprived having the opportunity to challenge and test that before the Courts, rather than workers on the ground deciding that they aren’t being deprived of their liberty because the restrictions are right for ‘that sort of person’ and ‘for their own good’

 

Maybe the number of applications will break the system. Well, then the system needs to be broken and rebuilt.  Because of the extreme vulnerability of people like P and MIG and MEG, we should err on the side of extreme caution when protecting their rights.

 

 

As to the children and secure accommodation orders approach, it might be worth noting Lord Kerr’s observations (this one of the majority judgments)

 

  1. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
  1. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.
  1. Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age.  There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting.  A comparator for a young child is not a fully matured adult, or even a partly mature adolescent.  While they were very young, therefore, MIG and MEG’s liberty was not restricted.  It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.

 

So in order to ascertain whether a deprivation of liberty is occurring you are looking at whether the restrictions being put on THIS child are comparable to that of another child of similar age  – of course carers and parents put different restrictions on an 8 year old than a 15 year old, and it is nonsense to say that the 8 year old’s liberty is being deprived as a result of not having the same freedoms as a 15 year old.  But if a particular 15 year old is having restrictions that are over and above what an average 15 year old might be allowed, then the question might arise.  It is important to note that whilst Lord Kerr is tolerating a degree of subjectivity, he is not saying that the test is completely subjective – the comparator is an average child of this age, not a child who has the same sort of problems, or behaviours, or vulnerabilities of this child.

 

 

For example

 

Most 14 year olds wouldn’t be allowed to leave their home at 2.00am, so a foster carer doing the same won’t be depriving the child of their liberty.

 

Most 14 year olds have had the experience of being ‘grounded’ for bad behaviour and having a period of time in which they aren’t able to go out with their friends, or use the computer or similar, so a foster carer doing the same isn’t depriving a child of their liberty

 

However, most 14 year olds aren’t told that they can never leave the home except under adult supervision, or have their door locked at night, so that would be a deprivation of liberty if it happened to a child in foster care.

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If you can’t do what you’re told, the Minister will take your role away from you

Posted on March 18, 2014 by suesspiciousminds

 

A bit more dissection of the Children and Families Act 2014 (or perhaps autopsy is a better word)

This is the provision in the Act, brought in without much fanfare, without pickets or protests, but it might end up being significant

section 4 of the CFA 2014 makes an amendment to the Adoption and Children Act 2002, giving the Secretary of State (that would be the Education Minister, i.e Michael Gove at present) the power to take the functions of the adoption agency away from a particular Local Authority and give those functions to another adoption agency. These powers kick in from 1st March 2015.

Well, that’s the stick to beat Local Authorities with when the adoption targets get published and they are not doing what Michael Gove wanted them to do. Given the upheaval in adoption law in 2013 which is still rippling through the system, it would be rather a surprise if the next batch of figures weren’t full of delays because of the volume of appeals and cases being adjourned and evidence resubmitted to avoid appeals. I think most people were expecting that at some point after the legal tables were publised, a Local Authority would be singled out and have their adoption agency functions taken off them.

What is rather more surprising is the next power, which will be a new section 3A (2) of the Adoption and Children Act 2002

The Secretary of State may by order require all local authorities in England to make arrangements for all or any of their functions within subsection (3) to be carried out on their behalf by one or more other adoption agencies.

(Subsection 3 set out that those functions are recuitment of adopters, assessment and approval of adopters, and matching of adopters to children.  Please, anti-adoption campaigners, don’t get over excited and think that this means that the bit you really have a problem with – social workers being able to RECOMMEND adoption for a child and seek orders to achieve that, is going to be taken off social workers, it doesn’t mean that at all. This is about the bit that happens AFTER the Courts have made the orders, and relates to finding the right people to provide permanent homes for children)

If you have missed the significant word in s3A(2) it is ALL.   The Secretary of State can, at any time after March 2015, with no parliamentary scrutiny or approval, decide that the assessment of adopters and matching of children with adopters won’t be done by Local Authorities any more, take it off all of them and give it to other adoption agencies.

That would be, presumably to independent Voluntary Adoption Agencies. There are around fifty of those in England – some are Catholic societies, some regional agencies and of course agencies like Barnardos. These organisations do a great job and fill a valuable role, and I am not knocking them or the quality of their work. But doing what they do, and doing it well, doesn’t mean that they are in a position to take ALL of the adoption work that is being done by individual Local Authorities at present.

And what do you do if you move it all over, disband all of the Local Authorities teams and staff and local knowledge and expertise, to deliver better stats, and the stats don’t get any better ?

(not that this would happen of course, because the private sector has a flawless record of taking over public sector functions and delivering them on time, to budget, with no loss of quality. IT projects, cleaning hospitals without incubating MRSA, building schools, private prisons, security for the Olympics, consultancy that states the bleeding obvious. I could name the companies who do such sterling work, but you can read about them for yourself in almost every edition of Private Eye)

There’s nothing said about the circumstances in which Michael Gove or his successors might exercise this massive power.  Luckily we can take it as read that no Government Minister ever has, or ever would, take measures for political gain without serious regard for the consequences.

There’s nothing in the section about TUPE either – the general provision of TUPE is that if the functions transfer, so do the staff  (this in very broad terms, I’m not an employment lawyer and would not attempt to give employment law advice).  Not sure how that works if the Voluntary Adoption Agency  (a term that I can already sense is making blood boil over in Monaco) is based three hundred miles away.  There’s also nothing in there about procurement – if the Government is going to dish out juicy contracts for public sector work to a variety of private sector agencies, there has to be a proper tendering process for the distribution of those contracts, in line with European procurement rules.

Seems a bit odd to me that the Government boast in the press releases to the Act that it will speed up justice for children and allow decisions to be reached faster, but are only prepared to wait a year to see how those changes bed in and affect the pace at which children who the Courts have approved for adoption are being found places.  Also slightly odd that the assessment of adoption support plans and management of those budgets isn’t included in the functions that would transfer over.

 

 

 

 

 

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Justices reasons

Posted on March 18, 2014 by suesspiciousminds

Arising from Pauffley J’s decision in Re NL, which set out that it was no longer permissable for Justices Facts and Reasons to be drafted by the parties, or any of the parties, in agreed or not opposed cases, some guidance has been published by the Justices Clerks society, endorsed by the President of the Family Division.

Click to access Family-_Provision_of_Justices__Reasons_in_uncontested_cases_March_2014.pdf

 

It is fairly short, but in a nutshell

 

Under no circumstances should any of the parties be involved in drafting the Reasons.

The Court should never ask any party to supply draft Reasons to be adapted

It is fine for parties to provide their own position statements setting out their case, including submissions on the legal principles and how they say that that facts of the case relate to those legal principles

It is fine for the Court to refer to those position statements and as appropriate facts may be adopted  (they give as an example “The factual background of this case is as set out in the Local Authority position statement dated…”)

Any contested issues must be identified and the reasons for the Court deciding on a particular course of action or order arising must be set out

The length and complexity of the reasons will depend on the circumstances of the case

The guidance confirms that this applies to private law as well as public law.

“In every case, even when the order is said to be agreed or where there is no active opposition, there is still a judicial task to perform. Justices must ensure that not only justice is done but also that it is seen to be done”

 

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X and Y (Children : Disclosure of judgment) 2014

Posted on March 17, 2014 by suesspiciousminds

 

This is a case arising from care proceedings where the parents gave evidence about physical injuries to a child, and a judgment was given that the father had caused the injuries and told lies about it. The police sought disclosure (wanted to see) the judgments in the care proceedings. The father resisted.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/278.html

As this case was decided by Baker J, you get the excellent distillation of the law in this area to date  (if I were still of an age where I had to write law essays, Baker J would be my first port of call for finding the answers)

As you probably know if you’ve read this blog before, I have a view on the issue of whether the police ought to be able to USE what is said by a parent in care proceedings in the criminal proceedings. I think firmly that they should not, that the whole ethos of care proceedings is to encourage and promote honesty and that the provisions of s98 of the Children Act 1989 removes a parents right to silence and as a trade-off promises them that what they say can’t be used against them in criminal proceedings for anything other than perjury.

If the police aren’t hoping to make use of the material, that rather begs the question of why they want to see it at all.  Of course it informs and shapes their investigation and the way they put their case and even the questions asked, even if the documents themselves never appear before a jury.

Baker J touches on the critical problem (a problem that keeps getting ducked by the family Courts) here

Furthermore, it is suggested by Mr Storey QC on behalf of the father in this case that, whilst section 98(2) prevents an admission made in family proceedings being introduced in evidence in a criminal trial, it may still be possible for that admission to be put to a defendant in the course of his oral evidence as a “previously inconsistent statement” pursuant to section 119 of the Criminal Justice Act 2003. No reported case was cited in support of this submission.

There are several reported cases in the family Courts where this has been raised, and they have never ruled on whether s98(2) trumps s119 or vice versa. Whilst this is undecided (and one of the cases where it was raised ends with the father who had been silent in care proceedings on advice from his criminal lawyers being committed to prison for contempt), lawyers are going to remain very apprehensive about whether their client’s interests and rights are being properly observed.

The law, at present, is very much in favour of disclosure  (that the police can SEE the documents) – there’s less reported law on whether they can USE the material.

This case only decides that the police can SEE it, and if, having seen it they wish to USE it (ie produce it in the criminal trial, or put it to the parents in police interview) they need to make another application and the Court make it clear that letting them SEE it doesn’t automatically mean that they would succeed in the next application to use it.

A very nice point was taken by the father’s team

    1. On occasions, a judge gives a warning or direction to a witness in care proceedings as to the ambit of section 98. This procedure was adopted at first instance by the judge in Re ECand was subsequently described and considered by Swinton-Thomas LJ in the Court of Appeal at page 732.

 

“Prior to the hearing of the care proceedings, there were five members of SC’s family who fell under suspicion of having caused her injuries. Each of them gave evidence. Before they gave evidence, the judge gave them this warning:

‘Before you give evidence I have to tell you, as I will tell the others who give evidence, that anything you say from the witness-box cannot be used in any criminal trial against you which relates to the death of SC.

Where relevant the judge added the words ‘or your wife’ and ‘or your husband’. That statement by the judge was somewhat wider than the words of s98 envisage.

The Judge did not tell any witness that the evidence given by that witness would remain confidential. The proceedings themselves are confidential but subject to the power of the judge, in appropriate circumstances, to order disclosure. Nothing in s98 detracts from that power. Section 98(2) gives protection only against statements being admissible in evidence in criminal proceedings except for an offence of perjury. Accordingly, the judge could not give any guarantee for all time as to confidentiality, even had he wished to do so because the law makes no provision which would enable him to do so. It may well be that in fairness to persons giving evidence in these circumstances judges may wish to point this out to a witness to whom the warning is given and, almost certainly, a legal adviser should do so. “

  1. In this case, I gave no such warning to the parents at the conclusion of my first judgment when encouraging them to be more frank with the court as to the circumstances in which Y had sustained the injuries. The absence of any such warning in that judgment is a crucial component of the arguments advanced by Mr Storey against disclosure of the judgment of the police in this case

…

    1. On behalf of the father, Mr Storey QC and Mrs Storey-Rea craft their submissions as follows.

 

(1) The father has an absolute right to a fair trial. The Court having failed to give the parents any warning as to the consequences of making a confession, it would be an infringement of the father’s article 6 rights were the court now to allow disclosure of the transcripts in which his confession can be described and analysed.

(2) Alternatively, exercising its discretion by applying the criteria identified in Re EC, the court should conclude that the balance comes down against disclosure. In particular, Mr Storey submits that two factors identified in Re EC should carry decisive weight, namely (a) the welfare of the children and (b) the perceived unfairness in disclosing a confession in respect of which no warning had been given.

 

      1. Mr Storey submits that, by failing to add a warning at the end of my first judgment to its encouragement to the parents to be frank about the causes of Y’s injuries, the court was infringing the father’s article 6 rights. In the course of argument, Mr Storey clarified his submission by indicating that the failure to give the father such a warning amounted to an infringement of his rights to a fair trial in these proceedings (i.e. the care proceedings), not any future criminal proceedings. His submitted that the warning should have been along the following lines.

 

“But you should know that, if you do confess to causing injury to your child, the rules without more enable the guardian and local authority to convey the judgment in this respect to the police who may use it to investigate you or investigate you further in relation to child abuse. I therefore make it clear that, though I have issued this invitation, I can give no guarantee of confidentiality in respect of any admission that you make.”

Mr Storey and Mrs Storey-Rea submit, that if the potentially far-reaching consequences of the current rules are not explained to a party at the time when a judge makes a plea for transparency, later dissemination of any admission is unfair. They contend that there can be no greater inducement than that of a person of high authority such as a judge who has the power to bring about or inhibit family reunification.

 

The Judge didn’t go for it.

        1. I accept that the father’s confession was induced by the encouragement voiced at the end of my first judgment. I do not, however, accept the submission that the court’s failure to give a warning in the terms proposed by Mr Storey amounted to a breach of the father’s right to a fair trial in these proceedings. By urging both parties to tell the truth, the court was seeking to ensure a fair trial in these proceedings for all parties, in particular the parents and the children. The inducement held out was that, if the perpetrator of Y’s injuries gave a full and frank account, the children could be rehabilitated within the family. The father duly confessed, the mother has been exonerated and as a result the children have been returned to her care. The father does not resile from his confession, and the outcome of these proceedings is manifestly fair to all parties.

 

      1. I accept that the fact that no warning was given is relevant to my decision as to disclosure of information relating to the proceedings, but only as one factor to be considered when undertaking the necessary balancing exercise.

 

It is a very careful and considered judgment, and much as I dislike the outcome, I think that on the existing law, the Judge got it right. The problem is that I think that the law, as it has developed, has not properly taken account of the potential erosion of the s98 protection against self-incrimination as a result of the inconsistent statements can be put as evidence s119 Criminal Justice Act 2003.  The law which favours disclosure to the police and puts the burden on the parent resisting disclosure emerged prior to s119, and has been relied on to bolster decisions made subsequently. Without properly determining whether, notwithstanding the ability to put inconsistent statements as evidence, s98 prevents the Crown doing so where that statement was made in care proceedings, we are left at sea.

The problem for this particular case is (a) I think the judgment is right, on current law and (b) we already know that the Court of Appeal aren’t interested in the s119 argument, so an appeal isn’t much use; unless one is going to go all the way to the Supreme Court, who would be able to say either s119 trumps s98 and the prosecution of offenders is more important than honesty and openness in care proceedings, or vice versa.

 

(This becomes even more of an issue once all judgments are published, since even if the Court doesn’t give permission, the police who know the Local Authority area, judge who decides the case, date of the hearing and the factual background, will very readily be able to spot that Re H, L and K 2015 relates to real life people, and be able to read all about it online. As will any inquisitive juror…)

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Obtaining a fresh assessment late in proceedings

Posted on March 17, 2014 by suesspiciousminds

Re Z (A Child : Independent Social Work Assessment) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/729.html

My compliments to the Judge for giving this a meaningful case name that allows people to find it in the future.

This one was a judgment given in March 2014, for care proceedings arising out of injuries to a child that occurred in September and October 2012. The proceedings were into week 72.  The father applied for a fresh independent social work assessment, and also sought a fresh assessment of the paternal grandmother, challenging the negative viability.

If you are at the moment, thinking, meh, I know how this one ends up – I’ll give you a spoiler.  He gets the assessments.

Ah, now you want to know more…

    1. In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority’s decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.

 

    1. Was RD’s assessment of the father fair, robust and thorough? In my judgment it was not. In arriving at that conclusion I bear the following factors in mind. They are not ranked in any particular order:

 

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.

(2) To the extent that RD’s observation of contact and reading the contact supervisor’s notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z’s care needs (unlike the foster carer for whom training has been provided).

(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.

(4) The father is criticised for lack of understanding and insight yet his knowledge of Z’s injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports – or more likely some parts of those reports – read to him in Punjabi. To this must be added the local authority’s failure to give the father opportunity to meet with any of the health care professionals responsible for Z’s care.

(5) The local authority’s social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.

(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

  1. I am satisfied that the local authority’s assessment of this father falls short of the standard required.

 

Fair, robust and thorough seems like a good test in appraising the evidence – I expect to see others make use of this test   (whether this authority is binding or not is tricky – but it is a High Court case, so it is at least persuasive)

 

One major part of father’s case was this :-

 

108. As a result of the negative outcome of the social work assessment, on 31st January 2014 the father issued an application for permission to instruct an independent social worker to undertake a parenting assessment. The father complains that the social worker ‘failed to approach the assessment with an open mind’ for which submission he relies on the fact that the social worker informed the LAC review on 12th December 2013 that the outcome of her assessment was negative even though the assessment was still ongoing.

 

If father was able to establish that, which one would hope would be confirmed or refuted by the LAC review minutes, that is fatal to the LA’s opposition to an independent assessment. This is not announcing the outcome when all that is left is to finish dotting the i’s and crossing the t’s in the written report , this was a final view of the outcome of the assessment given whilst it still had six weeks to run.

 

Unhelpfully

    1. The minutes of the LAC review held on 12th December note that,

 

‘Social Worker RD is carrying out 6 assessment sessions with [the father] 5 have been completed. The assessment is negative. He denies any knowledge of the injuries or reasons she was harmed, he has very limited understanding of her health and overall prognosis. He does not understand the impact of the brain damage. He has no clear plan – originally he said his mother would help out in India, then his sister. It is assessed he is not considering Z’s best interests. All professionals shared these concerns. Becky will inform [the father] of the outcome of the assessment and will file the statement by 8.1.14.’

    1. Although the father attended the LAC review he was not permitted to be present throughout the whole of the discussions. He was not present when RD told the meeting that her assessment of him was negative. He was not present when the decision was taken that the local authority’s plan for Z should be one of adoption.

 

    1. The minutes of the LAC review have little to say about contact: ‘Supervised contact takes place twice a week during the assessment period. Z has been fine before and after contact’. If that is an accurate reflection of the information given to the members of the LAC review then it is woefully lacking. The social worker said that she ‘was not asked’ to provide the Review with evidence relating to contact. Given that contact was extremely positive for Z one would have expected the LAC review to have been informed of this and that it would have considered how contact might develop. This is a requirement of the Care Planning Placement and Case Review (England) Regulations 2010 [‘the Regulations’]. Schedule 7 sets out the considerations to which the responsible authority must have regard when reviewing a child’s case. Schedule 7 paragraph 4 requires the LAC review to consider

 

‘The arrangements for contact and whether there is any need for changes to the arrangements in order to promote contact between [the child and her parents].’

  1. The social worker was asked whether the minutes of the LAC review provided an accurate summary of what was discussed. She confirmed that they do, though she went on to describe them as ‘brief’. The minutes have been signed by the Independent Reviewing Officer. There is space for them to be counter-signed by the social worker. In this case the social worker confirmed that the minutes had been sent to her for approval and signing. She had not responded. She has not signed them. She said that she does not routinely sign minutes of LAC meetings.

The Judge’s comments on LAC reviews, that arise from those failings, are also ones that I expect to see crop up in other cases

    1. LAC meetings are very important meetings. That that is so is made very clear by the Regulations. The records of such meetings are also important. Regulation 38 provides that,

 

“The responsible authority must ensure that a written record of the review is prepared, and that the information obtained in the course of the review, details of proceedings at the review meeting, and any decision made in the course of, or as a result, of the review are included in C’s case records.”

  1. It should be apparent from the minutes of a LAC meeting that the meeting has considered each of the matters which the Regulations require the meeting to consider. The minutes should be balanced. So far as the parents’ relationship with the child is concerned, they should identify any positive points as well as any negative points. Although there is no requirement in the regulations for minutes to be signed, as a matter of good practice it is clearly appropriate that they should be signed. They should be signed by the Independent Reviewing Officer and by the allocated social worker, if present at the meeting, and if not present then by the most senior social worker present at the meeting. Their signatures provide the assurance that the minutes give an accurate and balanced account of the matters discussed at the meeting.

 

Assessment of paternal grandmother next

    1. That leads me back, finally, to what the local authority describes as a viability assessment of PGM. For the reasons set out earlier in this judgment I regard that assessment as inadequate. The notion that a Punjabi speaking grandmother living in India, expressing a clear interest in being assessed as a long-term carer for her granddaughter, not having been provided with any of the background papers translated into Punjabi, can be ruled out on the basis of two telephone conversations one of which was conducted by a Hindi speaking English social worker, is in my judgment wholly unsupportable.

 

    1. Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 concerned an application for a viability assessment. The judge at first instance had described the local authority’s viability assessment of the father of the subject child’s half-brother as “wholly inadequate” and “flawed”. The judge nonetheless declined to order a full independent assessment. In the Court of Appeal, giving the leading judgment, Wall LJ (as he then was) said that,

 

‘the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject….Accordingly, in my judgment, to do proper justice to [the child’s] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.’

  1. Z’s care needs require support from a multi-disciplinary team of health care professionals. Is there any possibility that a similar package of support could be available in India? If the answer to that question is ‘no’ then it seems to me that notwithstanding PGM’s offer to care for Z and the duty on the local authority pursuant to s.17 Children Act 1989 to promote the upbringing of Z by her family, it would be difficult to argue that a move to India would be in Z’s best welfare interests. However, making that point simply serves to highlight the fact that the court does not, at present, have sufficient evidence to enable it to make that judgment. There needs to be a proper assessment of PGM. Any such assessment also needs to identify and consider the services that would be available to meet Z’s care needs in India. These are now issues for further case management.

 

And the Judge wasn’t finished – given that the Local Authority care plan was for the current foster carers to adopt, he felt that their Re B-S analysis was badly flawed – it had not properly taken into account that such a placement could be under a Care Order (fostering) or a Special Guardianship Order and why those options should be discounted in favour of adoption. He made it plain that even if the independent assessments of father and grandmother weren’t positive, this case was a considerable distance from being “then adoption is the right plan”

136 My decision to allow the father’s application for leave to instruct an Independent Social Worker means that it is unnecessary and inappropriate, at this stage, to go on to consider the local authority’s final care plan. However, it is appropriate that I should make the point that it should not be assumed that if the assessment of the father is negative then that, without more, will lead to endorsement of the present final care plan. Even leaving to one side the local authority’s flawed assessment of the father, it is plain that the current final care plan is deficient. For example, it does not consider and analyse realistic alternatives to adoption (long term foster care, special guardianship); it does not consider whether it is appropriate for Z to remain in a placement in which there is a changing population of children in short term foster care; it assumes that post-adoption letter-box contact is appropriate without making any attempt to consider whether ongoing direct contact would better meet Z’s needs; it proposes by way of contingency plan that if the placement with FC breaks down it will search for an alternative adoptive placement even though it acknowledges that it is highly unlikely that an alternative adoptive placement could be found. These are all issues which must be addressed. The local authority has more work to do before this case can fairly be concluded.

 

I can’t quite find from the judgment what the timescales for the further assessment are, and obviously those assessments will need to be considered, final evidence filed from all parties and a final hearing take place. It probably amounts to a final hearing taking place at around week 90, or week 100.

 

But that is palpably and manifestly the right thing to do, to get the RIGHT answer.

I do worry that now that the Children and Families Act 2014 will lock Judges into 26 weeks, or an extension of 8 weeks, whether cases like this will get their proper determination.

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Legal aid for section 51 applications – contact post adoption

Posted on March 17, 2014 by suesspiciousminds

Forgive me for this, because it is going to be dryer than eating a packet of Jacob’s Cream Crackers in the Gobi desert, but it is potentially important, and might save someone else an hour of slogging through law to find the answer.

 

“Can you, or your clients,  get legal aid to help you make an application for post adoption contact, when the section 51 provisions come into force?”

 

 

If you haven’t read the preceding blog, none of this s51 stuff will make any sense, so you might want to do that first.

 

There’s a bit tucked away in the Children and Families Act 2014, that specifies that there are some changes to the Legal Aid, Sentencing and Punishment of Offenders Act  2012  (LASPO).

 

Why does that matter? Well, because LASPO is what decides whether a person can get legal aid to make their application 

 

[It also probably has the unique distinction of being a piece of legislation that every English lawyer can agree about hating. Usually, even if an Act comes in that is stupid and frustrating, say the “Hairdryers – Prohibition against making them out of Ice Act 2009”  you can find a couple of lawyers who made some money out of training on it, or suing someone for breaching the Act, or defending someone accused of breaching it.  This one, everyone hates. And you can’t even think – well, I’m diametrically opposed to everything that LASPO stands for, but I can still admire it as a beautifully crafted and mechanically sound piece of drafting. It isn’t that, either]

 

This is what s9 (12) of Children and Families Act 2014 says:-

 

 

(12) In Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (civil legal services)—

(a) in paragraph 12(9) (victims of domestic violence and family matters), in

the definition of “family enactment” after paragraph (o) insert—

“(p) section 51A of the Adoption and Children Act

2002 (post-adoption contact orders).”, and

(b) in paragraph 13(1) (protection of children and family matters) after

paragraph (f) insert—

“(g) orders under section 51A of the Adoption and Children Act 2002 (post-adoption contact).”

 

[The Children and Families Act 2014 is no Mona Lisa of the drafting world, either, to be frank]

 

Which brings the potential that section 51 applications MIGHT be eligible for legal aid.

 

Under LASPO, there are two distinct categories

 

1)     Cases which are within scope, and will be funded if there is means and merits to the application, but are the SORT of cases that in principle that legal aid can be given for  (those are ones that are contained in Part 1 of Schedule 1 of LASPO, so you can see that there is POTENTIAL for s51 applications

 

2)     Cases that are not within scope, but MIGHT be funded if the Legal Aid agree that there are exceptional circumstances that justify it  (in practice, no chance)

 

 

You find that explicitly in LASPO, though written in oblique language

 

9 General cases

(1)Civil legal services are to be available to an individual under this Part if—

(a)they are civil legal services described in Part 1 of Schedule 1, and

(b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).

 

10 Exceptional cases

(1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.

(2)This subsection is satisfied where the Director—

(a)has made an exceptional case determination in relation to the individual and the services, and

(b)has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

 

 

[What section 10 means in practice is “we were obliged to say that this Act was compatible with the Human Rights Act, so we stuck in this exceptional provision for legal aid to be granted in cases where NOT granting it would be a breach of Human Rights, but actually dishing it out to real people, for real cases? I should cocoa”    *]

 

 

*I wish people said “I should cocoa” more often

 

 

Anyway, the addition of s51 applications to Part 1 Schedule 1 means that the applications MIGHT fall within scope for legal aid (and thus be applications which might get legal aid after a means and merit test is applied)

 

However, it is not as simple as that (sorry) because where s51 gets placed in Part 1 Schedule 1 of LASPO means that these applications are only in scope in narrow circumstances, and for all others you are stuck with exceptional (remember, when I say exceptional here, the statutory definition of whether that will actually occur is  “as likely to happen as a comet made of solid gold landing in your back garden and striking oil where it lands”      –    The Let’s Pretend Something is Available when it really isn’t Act  2014 section 1(1) )

 

 

 

So, in Part 1, Schedule 1 of LASPO  (as amended by Children and Families Act 2014),  applications under s51 come in two possible categories where the application can qualify for public funding

 

 

Paragraph 12

 

Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

 

So, if you can persuade the Legal Aid Agency that the reason you are applying for an order for post-adoption contact is that you are the victim of domestic violence or are at risk of domestic violence and that the application is in some way a remedy for that, you might get legal aid.

 

[Is it just me, or does that seem inherently unlikely? I mean, I have a creative brain and love thinking up crazy scenarios, but I’m struggling to come up with a set of circumstances that would fit that]

 

I suppose, racking my brain, that given that s51 allows for the Court to make an order that there shall be no contact, there MIGHT, just MIGHT be a conceivable circumstance in which the post-adoption contact order application might be to stop the perpetrator of domestic violence having contact and that would in some way alleviate the risk to the applicant. 

 

 [It is also possible, and perhaps more likely,  that this is referring to the adopters themselves as applicants for an order for NO contact to an individual, though the amount of adopters who would pass the means element of the Legal Aid test is microscopic, I suspect]

 

 

The other category is

 

Paragraph 13

 

Protection of children and family matters

13(1)Civil legal services provided to an adult (“A”) in relation to the following orders and procedures where the child who is or would be the subject of the order is at risk of abuse from an individual other than A

 

 

So the applicant would need to persuade the Legal Aid Agency that the purpose of the application for post-adoption contact is to protect the child from risk of abuse from a named individual  (that individual has to be someone other than the applicant)

 

If you are the biological mother, you MIGHT be able to persuade the Legal Aid Agency that the risk of abuse comes from the child’s father and not yourself, or vice versa.  But I’m struggling to see how you persuade the Legal Aid Agency that the right way to protect the child from the risk of abuse is that you have some post adoption contact.

 

I again think that this is probably aimed more at financially impoverished adopters who meet the means test for Legal Aid, and are saying that contact poses a risk of abuse to the child from the parents.

 

 

I’m afraid that all of that was very long, because it is complicated, but how it ends up, it seems to me, is that section 51 applications aren’t going to be backed by Legal Aid UNLESS the LAA agree that there are exceptional circumstances   [solid gold comet strikes oil – you are now so rich you don’t need Legal Aid]

 

You could argue that if Parliament genuinely intended section 51 applications to be made, and for deserving cases to result in section 51 orders, they could have placed such applications squarely in Part 1 Schedule 1 of LASPO without the bizarre qualifications.  The gatekeeping provision could have been that the Legal Aid Agency would have to determine whether the application had sufficient merits to justify the funding being awarded.

Unless and until either the English Courts or the ECHR give a decision saying that failure to provide funding for such an application is in breach of human rights, it looks as though any parent making such an application would be doing so as a litigant in person.  Good job the legislation is written in such plain English.

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

Applying for contact AFTER a child is adopted

Posted on March 16, 2014 by suesspiciousminds

The family law provisions of the new Children and Families Act 2014 come into force on 22nd April.

The Act itself (as opposed to press releases boasting about how it will solve everything, give us free energy, a perpetual motion machine and bring peace and harmony to both the Middle East and the pro and anti-Europe wings of the Tory party) can be found here

Click to access ukpga_20140006_en.pdf

There’s a LOT of it, so am going to try to tackle it in chunks. Today’s topic is going to be the new section 51A of the Adoption and Children Act 2002, which makes provision for applications for contact AFTER an adoption order has been made.

Historically, Courts have been able to consider applications for the contact that a parent would have POST-ADOPTION, but that application and determination of it would have been BEFORE the adoption order was made. Thus, the adoption order would in effect be the last time the child would be the subject of litigation, and the Court’s involvement in their life would end.  (There are exceptions – as we saw in Re W the President was willing to overturn an adoption order to hear an appeal, there are adopters who end up being involved in subsequent care or private law proceedings themselves, but generally, once the adoption order itself was made, the Court were done with the child)

So, what about post 22nd April? Well, s9 of the Children and Families Act 2014 says this :-  [bold bits are mine, for emphasis]  – and it is important to note that this doesn’t just apply to adoption orders made after 22nd April, it applies to ALL adoption orders

9 Contact: post-adoption

(1) After section 51 of the Adoption and Children Act 2002 insert—

“Post-adoption contact

51A Post-adoption contact

(1) This section applies where—

(a) an adoption agency has placed or was authorised to place a child for adoption, and

(b) the court is making or has made an adoption order in respect of the child.

(2) When making the adoption order or at any time afterwards, the court may make an order under this section—

(a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or

(b) prohibiting the person named in the order under this section from having contact with the child

(3) The following people may be name d in an order under this section—

(a) any person who (but for the child’s adoption) would be related to the child by blood (including

half-blood), marriage or civilpartnership;

(b) any former guardian of the child;

(c) any person who had parental responsibility for the child immediately before the making of the adoption order;

(d) any person who was entitled to make an application for an order under section 26 in respect of the child (contact with

children placed or to be placed for adoption) by virtue of subsection (3)(c), (d) or (e) of that section;

(e) any person with whom the child has lived for a period of at least one year.        [This has a cut-off of not applying if it was more than 5 years ago, but seems to me that it would potentially cover relatives who cared for the child, foster carers, and possibly siblings]

(4) An application for an order under this section may be made by—

(a) a person who has applied for the adoption order or in whose favour the adoption order is or has been made,

(b) the child, or

(c) any person who has obtained the court’s leave to make the application.

(5) In deciding whether to grant leave under subsection (4)(c), the court

must consider—

(a) any risk there might be of the proposed application disrupting

the child’s life to such an extent that he or she would be harmed

by it (within the meaning of the 1989 Act),

(b) the applicant’s connetion with the child, and

(c) any representations made to the court by—

(i) the child, or

(ii) a person who has applied for the adoption order or in whose favour the adoption order is or has been made

Obviously, there’s a lot there, and it is written in Law not English.

The nub of it is, a birth parent, or someone with whom the child has lived for at least a year, can apply for an order for contact with that child, including staying contact, and the application can be made AFTER the adoption order is made.  They will need Leave of the Court to make that application – i.e there is a two stage test – can you persuade a Court to give you permission to make an application for contact, and then the Court deciding whether your application succeeds and you GET contact.

Leave applications are tricky – if you imagine that there’s a high jump bar, and that the parent will get leave if they can jump over it, and won’t get leave if they can’t, that’s a helpful way to look at it. The problem is, making sure that everyone knows exactly how high that bar is set and that a Judge doesn’t end up setting it too high, or too low. (That has been the subject of much of 2013s  law developments, with the Court of Appeal concluding that the bar on leave to oppose adoptions has been set too high for parents and needs to be adjusted to make it a fair test)

This test is contained in s51(5) which says that the Court MUST consider whether granting permission might disrupt the child’s life to such an extent that they would be harmed by it  (note that this is NOT whether contact would cause that harm, but allowing the ARGUMENT about contact would cause that harm). The wording here is strange, in that the reference to ‘harm’ then says in the meaning given in the Children Act 1989.  Does that therefore mean ‘significant harm’?

The Court MUST also consider the applicant’s connection with the child, and any views expressed by the child or the adopters.

You would have to say, in light of Re B-S, Re W et al of 2013, it is at best uncertain as to how any application for leave under s51 to apply for a contact order post adoption order being made would go. What we DO know is that the application would have to be served on the adopters (presumably via the Local Authority, as the parents won’t know the adopters address), and they would be represented in the leave argument hearing.

We don’t know whether public funding would cover a parent making a s51 application – it certainly isn’t automatic, which puts the parents in the hands of the generous discretion of the Legal Aid agency in making that decision. The adopters won’t automatically get legal aid to fund their legal costs either, even if they financially qualify.  That probably leaves the adopters going cap in hand to the Local Authority asking for help with legal fees, or paying out of their own pocket, or trying to represent themselves  (I honestly can’t see how the latter would work, particularly if the parent is representing themselves too)

In reality, a leave application can need the filing of evidence and a few hearings before the fight itself can take place. Note that in this leave requirement (unlike revocation of an SGO or Placement Order or leave to oppose adoption) there’s no requirement on the parent to show change or significant change since the order was made – they can just say that they want to have contact with their child.

The leave application can be a worrying and anxious time. It can potentially unsettle the child.

So my question really is

For a birth parent – is this a power that is potentially going to end up in you being able to get contact with your child post adoption, in which case it would be a good thing for you, or is it a ‘fake’ potential avenue that is actually a dead end just putting you through stress and optimism and then disappointment as each and every application for leave is refused? If it is the latter, why even put it in the Act?

For adopters – how does having this provision, knowing that you could be drawn into court proceedings and having to file statements and have arguments in court about contact, after the adoption order was made, make you feel?  And again, are they applications that have a chance of being made, or are you going through stress and anxiety for nothing?

Unless you are actually going to make s51 contact orders on parents applications after the adoption orders being made, it seems to me to just cause emotional pain to the parents because of false hope, and emotional pain and anxiety to adopters as they go through the process.  Does that then suggest that Parliament envisages that in some cases (not just the exceptionally rare ones) parents will succeed in these applications and get their contact?  And how will that change the character of adoption?

And in a final round-up, what prevents a parent who fails to get leave under s51 making another application next year, or the year after, or the year after that? They may never get their s51 leave, but they could hope to make life awkward and difficult for the adopters, maybe get the adopters worn down to offer a compromise or agree the contact sought.

Well, what “stops” this sort of hopeless, frivolous or vexatious litigation in the Children Act 1989  (and ‘stops’ is a bit strong) is section 91(14) of the Children Act 1989, which gives the Court the power to say to a person who is making those applications, you can’t make them any more – or not without leave of the Court anyway

s91 (14)On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.

Two problems with this

1. s91(14) applies to orders or applications made under the Children Act, whereas a s51 application is made under the Adoption and Children Act 2002 – there’s no provision similar to s91(14) under the Adoption and Children Act  (why would there be? Up until now, all applications ended once the adoption order was made)

2. Even if it did, all it does is turn the 2 stage test?  (May I make the application, can I have contact?) into a 3 stage test (may I ask whether I may make the application, may I make the application, can I have contact?)   And stage 1 still involves the adopters being notified, and having to come to court and fight the first stage, so really, what difference does it make?

So, to stop s51 applications being rained down on the adopters, the only real mechanism is to apply to the High Court to have the applicant declared as a vexatious litigant.  That forbids them from making any Court application without permission of the High Court   (so, we are back to the 3 stage test, with the problems already discussed)

[if you are interested further in the concept of vexatious litigants, this is a good speech on the topic, which gives the history and some projections for the future  http://www.judiciary.gov.uk/media/speeches/2006/speech-mor-30062006 ]

You also need to bear in mind that the current caselaw on making contact orders against adopters is not terribly helpful to parents. It has effectively two strands  – if the contact is agreed don’t make an order, and if the adopters don’t agree the contact there would need to be very compelling reasons to impose it on them.  (Are those guidelines dead in the water now that s51 is upon us? Is there genuinely a different ethos in Parliaments, and thus the laws view on making contact orders against adopters? We’ll have to wait and see how the Court of Appeal views this)    .

 
 
ADDENDUM EDIT
 
 
I am aware that my analysis of this has probably stirred up feelings of hope for birth parents and a degree of anxiety for adoptive parents. I am also aware that the Adoption Tsar, Martin Narey, considers that the provisions of s51 are primarily about allowing adopters to control contact and that there is no need for anxiety. I don’t want to make people worried unnecessarily, I’m not interested in scaremongering.
 
But, the power of the Court to make an order for contact AFTER the adoption order has been made is one that is within the new Act, and the power for a birth parent to seek to make that application is also there.  (I have seen the new application form, and it also makes it clear – there’s a box to fill in if you are a biological parent, and a box to fill in if the adoption order has already been made)
 
For me, the wording in s51A is clear – an order about contact can be made AFTER the adoption order is made, and an application can be made by a parent. The parent needs leave, and we simply don’t know at this point how the Courts will approach that leave decision. Post Re B-S, any application for leave is not as hopeless an application as it would have been a year ago, and the same is possibly true here.
 
For the child, it is certainly the case that contact post adoption won’t be ordered unless the Court look at it carefully and decide that it is in the child’s best interests (and the burden falls on the person seeking that contact). But for the adopters, and the parents, the actual leave application can still be stressful and anxious – both will have to attend Court and won’t be sure of the outcome.
 
As discussed in the blog immediately after this one, it seems highly likely that a biological parent won’t get legal aid to make the application – whether that makes things better or worse from an adopters point of view is hard to call.

 
 

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Equality of arms – D v K and B 2014

Posted on March 14, 2014 by suesspiciousminds

 

One of the principles of article 6 of the Human Rights Act (the right to fair trial) is the ‘equality of arms’ – in essence that there should be a level playing field. Of course, there isn’t always – in a big money divorce, the person who has the assets might well be paying for the better lawyer,  sometimes one party will go and get a QC and the other can’t afford it.  Equality of arms was something that concerned a lot of people when the legal aid reforms came in and established that a person making very grave allegations would have the opportunity to get free representation, whereas the person defending themselves against what might be false allegations was very unlikely to get the same treatment.

D v K and B 2014 brings that into sharp focus

http://www.familylawweek.co.uk/site.aspx?i=ed128264

1. An issue arises in private law proceedings concerning B who is three years old. A fact finding hearing has to take place. One of the many serious allegations made by the mother is that she was raped by the father in 2010. The allegation of rape would be central to the fact finding hearing and so a court conducting that hearing would have to decide whether the alleged rape took place. The Father denies that it did. That allegation is not the subject of criminal proceedings.

2. The mother has the benefit of legal aid. The father does not. His application for legal aid has been rejected. This judgment was given on 27th January 2014 with the intention that it should be referred to the Legal Aid Agency. I invited them to reconsider the father’s application for legal aid as a matter of urgency. At the most recent hearing on 12th March I was told that the application had been reconsidered and had been rejected again.

 

This does seem, to me, to be a case where there should be equality of arms – father’s case is not rejected because he is wealthy and can afford to pay, but because of the principle that the person defending the allegations is unlikely to get funding (you need the Legal Aid Agency to decide that it is exceptional and justified)

The Judge outlined why he considered that this was an exceptional case and why public funding would be justified

6. If ever there was exceptional private law litigation then this must be it. I say that for these reasons:

i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother’s allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event.  In March this issue was being investigated further.

ix) As to the position of the Guardian’s representative everything that I have said about the position of the judge applies in at least equal measure to the guardian’s solicitor if not more so. The guardian’s statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children’s solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child’s solicitor could be expected to conduct cross examination on behalf of this Father.

The final point is saying, in very careful terms, that in order for the truth to be determined about these allegations, mother and father would both have to give evidence. Father would be cross-examined by a barrister – a trained professional not emotionally connected to the case (and in this case, I note, a very good and skilful one, who sadly won’t be able to comment on this case).  Mother, however, would be cross-examined by father – leaving him at a disadvantage because there’s not equality of arms, but also making it much more of an ordeal for both of them.

You simply can’t cross-examine on an allegation like this without putting to the mother that her allegations aren’t true, that she has made them up, that they are malicious. You can’t do it without going into some detail. You can do that as gently and sensitively as you can – it is still not a nice experience. If the person asking the questions is the subject of the allegations, then it is ghastly for everyone.  This is why in crime, it isn’t possible to represent yourself on some criminal charges (such as sexual offences)

s34 Youth Justice and Criminal Evidence Act 1999

34 Complainants in proceedings for sexual offences.

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

There were damn good reasons for that – and I’d suggest that the same good reasons mean that you want to avoid it if at all possible in family cases too.

Obviously it can’t be that the lawyer brought in to represent the child can do this on father’s behalf – the father isn’t his client. That’s not someone frankly and fearlessly fighting his case for him.

Could the Judge do it? That made the Judge uneasy, and rightly so.

7. I am now going to quote from H v L & R. A similar issue arose in H v L & R [2006] EWHC 3099 (Fam) and Wood J said this at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”

8. I respectfully agree with Wood J and therefore, in January, asked the Legal Aid Agency to think again. As matters now stand, it seems highly unlikely that legal aid will be granted.

Sadly, you may detect from the final sentence that the Judge is not optimistic that this will work. Legal Aid Agency and ‘see reason’ aren’t concepts that go hand in hand.

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Contempt – adult breaching a recovery order

Posted on March 14, 2014 by suesspiciousminds

This is the London Borough of Newham v CA 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4597.html

I note, wryly, the explanation at the start of the transcript as to why it took so long to produce  (an explanation which contains three misspellings and confuses ‘of a’ for the word ‘over’)

Note: this is a judgement from an oral judgement and sentence for contempt given in open court on 20th December 2013. The transcription was over very poor quality as a result it took some time to collate notes from those present and to produce this judgement

Anyway, in this case, there was an adolescent girl absconding from care and it was believed that she was being the victim of sexual exploitation. A recovery order was applied for by the Local Authority and obtained.

The child was located and was with an adult, Mr Quasim Shah, who was the subject then of this committal application. I pass little comment as to the circumstances in which this girl was with Mr Shah other than

1. Note the concern over what risk this girl was at

2. She was found attempting to leave his property at 5 Hartington Road on 27th November 2013. At the time he was found naked, or almost naked, and trying to stop police from gaining entry and by those actions he is in contempt of court, specifically the terms of the collection order.

3. The case has been referred to the CPS

Mr Shah had been served with the recovery order and denied knowing where this girl was – he is not  a relative or carer of hers (fill in the blanks yourself)

 

These are the breaches he admitted

(i) That he had text contact with the child throughout the 17th October 2013 from 00.21 up until 16.32 compromising of 152 text messages to the child from him and 117 text messages to him from the child which grew in frequency nearing one text per minute during the period 15.13 to 16.22. The child absconded from her placement at 17.20. The telephone contact completely stopped until 25th October 2013.

(ii) He it is accepted that he made plans with the child to abscond. It is not accepted that he physically collected her from her placement and thus aided her absconding, although he does not deny being involved in her absconding on that occasion.

(ii) He accepts that he had contact, every day, with the child from 17th October to 22nd October and on 25th October the calls and that the calls and texts stopped when the child stopped using her mobile.

(iii) He accepts that he provided his mobile telephone number ending 8840 to the child, which she used to call her mother on 1st November 2013; the child informed her mother that she was with a male in his 30 who was taking care of her.

(iv) He accepts that he telephoned the Mis-per Police Unit on 1st November 2013 and stated that he did not know the child except for the party on 17th October and that he did not associated with her.

(v) He accepts that he told the police that he had not seen the child since the party on 17th October when the police Mis-per telephoned him on the 2nd November 2013 trying to locate the child.

(vi) He accepts that he denied the child used his telephone on 1st November, that he had not seen her for a few weeks when police officers attended his home and spoke to him on 2nd November to try to locate the child.

(vii) He accepts that on 14th November 2013 police officers attended his home and spoke to him and he did not disclose his knowledge of the child or her whereabouts.

(viii) He also accepts that when the police officers attended his home he made some threats towards them. The exact nature of those threats as contained in the papers filed with the court is not accepted.

(ix) It is accepted that the child was found in his company at his property on 27th November.

(x) He accepts that he attempted to bar entry tried to impede entry to his property on 27th November 2013 by sitting on the floor naked, or almost naked, against the door and that he did not move from that position when asked by police officers three times.

(xi) Finally, he accepts that when service was attempted by the process server who came with the documents at his property dated 20th November, including the witness summons of the High Court he refused to open the door.

 

It is not a huge surprise that he received a prison sentence

In respect of the contempt in the face of this court I pass a sentence of six months.

In respect of the breaches of the collection order I pass a sentence of three months, to be served consecutively.

 

Many readers of the blog might be mentally comparing this sentence, for what happened here, with the sentences for grandparents who did not reveal where their daughter and grandchild had fled to, or the man who facing criminal charges declined to give a potentially incriminating statement in care proceedings on legal advice.

If you are ever served with  a Recovery Order, it is worth noting that if you breach it, and that is proved, Courts really do send people to prison for this.

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Legal Aid Agency wasteful and inefficient (also important news about the Pope’s religion of choice)

Posted on March 12, 2014 by suesspiciousminds

Re R (Children : Temporary Leave to Remain) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html

This was a private law case that really hinged on the fact that parents who were involved in difficult litigation could not agree about the mother taking the children to India on a holiday. The father was concerned that there was a risk that mother would not return from India with the children, and that India not being a Hague Convention country, that would mean a very costly and time consuming process to start litigation in India.

The Court, whilst feeling that mother’s RISK of doing that was relatively low, considered that nontheless there was a risk and the consequences could be very devastating. Within the proceedings therefore, an expert report was ordered by the High Court, determining that it was necessary to resolve the dispute justly and inform the Court. Part of that report was to examine the Indian law to see whether anything could be put in place.  The costs were to be divided equally between the mother and the Guardian’s public funding certificate.

The LAA refused to pay for this, and six months of bureacratic conversation and form-filling took place.

In an attempt to cut through all of this, King J set out in detail in an order why the report was necessary and why the costs were split in that way (rather than 3 ways – mum, dad, Guardian)

    1. I declined to proceed with the hearing as a contested hearing. I listed the application for directions before Mrs Justice Eleanor King as Family Division Liaison Judge for the Midland Circuit. The application came on before Eleanor King J for directions on 28th November. The preamble to her order contains the following:

 

‘And Upon the Court observing that:

a. the expert’s report directed at paragraph 1 of this order is absolutely necessary for the proper determination of this case; this is both the view of the learned Judge and represents settled authority from the Court of Appeal; the case cannot be fairly decided without the expert;

b. the report is appropriately the instruction of the mother and the Children’s guardian; it is not properly the instruction of the father who has already filed evidence in relation to the disputed international legal issue; the proposed report does not, accordingly, ‘support’ the father’s case; rather it is obtained by the mother to meet the case brought by the father, and is necessary for the Children’s Guardian, in order that she can advise the court from a position of informed neutrality.

c. the assertions at (b) above are determinative of the question of whether instruction is shared by the father and would be so whether or not he were publicly funded; as such s.22(4) of the Access to Justice Act 1999 is not activated;

d. any further delay in obtaining the expert report is likely to jeopardise the current hearing dates, engender further costs (including publicly funded costs) and prejudice the interests of the children.’

    1. Eleanor King J went on to order that the mother and the guardian have permission to instruct Professor Martin Lau to provide an expert opinion in relation to the relevant law obtaining in India. She approved his hourly rate (£175 per hour) and capped his fees at £2,100 plus VAT. She directed that the final hearing should take place before me.

 

  1. The Legal Aid Agency again refused to grant authority for the instruction of an expert. There has been no alternative but to determine this application without having the benefit of expert evidence. That is an issue to which I return at the end of this judgment.

 

That didn’t do the trick – as indicated, the Court actually had to determine the case without the expert report that they had already ruled was “necessary” to properly resolve the case.

This is an issue that the Court of Appeal had looked at in another case called Re R

    1. In Re R (A Child) [2013] EWCA Civ 1115 Patten LJ, giving the judgment of the court, repeated a point made in previous cases:

 

’23. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.’

 

That’s pretty compelling authority for the use of experts in that scenario – one can’t expect a UK lawyer, or a UK Judge to understand the intricacies of family law in each and every non-Hague Convention country, and it is vital to know what those safeguards might be.

The final paragraph of the Court of Appeal decision in Re R anticipates the problems of funding such expert evidence

’28. Before leaving this case we wish to draw attention to a real difficulty that seems likely to be a feature of future cases where application is made to remove a child temporarily to a non-Hague Convention state. We have already restated the importance of the court having access to clear and reliable expert evidence before being in a position to determine the application. Both parties in the present case are legally aided but counsel have confirmed that, following recent changes to the provision of Legal Aid, public funding will no longer be available to parents in these applications (save where there has been domestic violence). The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person). The questions of how and to whom particular cases are allocated to individual judges are a matter for the President of the Family Division. Our present purpose is not to trespass upon the President’s responsibility but simply to flag up this new potential complication for cases which are already at the most difficult end of the spectrum. In doing so we would simply wish to repeat Thorpe LJ’s exhortation for these cases ordinarily to be dealt with by the judges of the Division.’

 

As can be seen from this case, the Court of Appeal were prescient.

Bellamy J concludes his judgment with a coruscating evaluation of the Legal Aid Agency’s failings in this case, which meant that they in effect defied the orders of High Court Judges. There’s loads of it, and if you’ve ever had to wrestle with the LAA, it warms the cockles of your heart to see them take a kicking.

The Judge opens with this

I return finally to my concerns about the negative, costly and unhelpful impact the Legal Aid Agency (‘LAA’) has had in this case. If this case is at all illustrative of the way the LAA normally discharges its responsibilities then that is deeply troubling. My concern that it might be illustrative of a wider malaise arises not only from anecdotal evidence given to me by solicitors in my role as a Designated Family Judge but also from the observations recently made by Holman J in Kinderis v Kineriene [2013] EWHC 4139 (Fam).

and then goes on to consider the labyrinthine process

    1. As a result of my order of 18th July giving leave to instruct an expert in Indian law and limiting his fees to £2,500 plus VAT, the mother’s solicitor sent the LAA an application for prior authority in LAA Form APP8. Form APP8, be it noted, is a lengthy (11 page) complex form which needs to be completed with care. Failure to complete it properly is almost certain to lead to the application being refused. Completion of this form is, of itself, a time consuming task.

 

    1. On 13th August the LAA wrote to the mother’s solicitor refusing to grant prior authority. The letter is clearly a standard letter. It sets out five reasons for refusal. In summary, these are, (i) the estimate of the expert’s fees is excessive, (ii) no alternative quotes have been obtained, (iii) there is insufficient breakdown of the costs to be incurred, (iv) the expert’s costs should be borne by or shared with the other party, (v) the application does not appear to fall within the regulations. The letter ends by saying, ‘since the introduction of the 2010 Standard Civil contract and the 2012 Family Contract there is no right of appeal’.

 

    1. On 2nd September I was asked to reconsider my decision that the cost of the expert should be borne solely by the mother. I declined. The mother’s solicitor made a second application to the LAA, again in Form APP8. That application was again refused. There followed an exchange of e-mails between the solicitor and the LAA which were discouraging.

 

    1. I have seen the APP8s that were submitted. They appear to me to have been properly and adequately completed and to have been supported by relevant documentation.

 

  1. As I noted earlier, on 28th November there was a hearing before Mrs Justice Eleanor King in which she gave new directions for the instruction of an expert. She ordered that the expert’s costs should be borne by the mother and the children’s guardian, and explained why s.22(4) Access to Justice Act 1999 did not apply. She also had a telephone conversation and an e-mail exchange with Michael Rimer, Head of Litigation Team and Senior Legal Adviser with the LAA. Mr Rimer is the agreed point of contact between the judiciary and the LAA in cases where there are funding difficulties. If that dialogue led to quiet confidence that progress could be made, that confidence was misplaced.

 

(I particularly like that last line)

and finally wraps up with this  (having recounted some spectacular missing the point emails from various workers at the LAA

    1. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.

 

    1. There is a further point which follows on from that last point. On 28th November Mrs Justice Eleanor King gave clear, detailed case management directions in respect of expert evidence and even went so far as to set out her reasons for not ordering the father to pay a proportionate share of the expert’s fees. Her case management directions on this issue have effectively been overridden by the LAA. That is simply unacceptable.

 

  1. In light of my criticisms of the LAA I direct that the solicitor for the Children’s Guardian shall forthwith forward a copy of this judgment to the Chief Executive of the LAA and order that he shall respond to it in writing within 28 days.

 

 

I expressed some doubt via Twitter that the response in writing would (a) ever be received and (b) ever be published, but I am reassured on both points. Once it is published in anonymised form, I will gladly report on it.

There are some “costs against third party” decisions from Courts, and it is clear that expenditure did get incurred both for the parties and the Court – it seems to me that it is legally possible to make an order for costs against the LAA.  It does raise the obvious issue with the parties that if they are being paid by legal aid, then the LAA are ALREADY paying their costs, so a costs order there does nothing at all. But it might be possible to calculate the time wasted by the High Court judges (who are not a free, or inexpensive resource) and decide that the LAA should recompense HMCS for that waste of time. If the father was paying privately for the litigation (and I simply don’t know the answer to that) then I would imagine that the wasted costs bill for that would make the £2,100 the LAA were quibbling about pale in comparison.

 

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