Author Archives: suesspiciousminds

relatives and 26 weeks – a reported Auntie Beryl case

Posted on March 12, 2014 by suesspiciousminds

 

It has been a vexed issue ever since the 26 week guillotine came in, heightened by the Supreme Court and Court of Appeal’s emphasis on adoption as ‘last resort’ where nothing else will do  – what is a Court actually going to do when a relative comes forward at week 20, week 22, week 24, and assessment of them would derail that all-important timetable?  This is something I dubbed the “Auntie Beryl” question, and it is one that crops up in these cases around the country.

We won’t really know until a Judge somewhere tells Auntie Beryl that she is too late, that she should have come forward sooner, that she can’t be assessed, and makes an adoption order. Then that will be appealed and the Court of Appeal will try to square that circle of “26 weeks” with “nothing else will do”

In this case, which is the first to touch on this point since it became a genuinely difficult issue  (since pre 26 weeks, the assessment would ordinarily be done), the High Court attempted to deal with it.

Re K (A minor) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4580.html

The grandparents in the case put themselves forward as alernative carers really early on, just after the child was born. A “guardedly positive” viability assessment was prepared.  At a hearing in March 2013, the grandparents decided with a heavy heart that they weren’t able to offer a permanent home and withdrew.

However, by 6th March when the case came on at this court, grandmother and grandfather had come to the conclusion, I am sure with an extremely heavy heart and sadness and feelings of regret, that it was not right to pursue the application. The grandmother wrote on behalf of herself and her husband to the Circuit Judge. She wrote that that it was the hardest letter she had ever had to write, that they loved K and have a bond with him, but they want what is best for him. She said that although it broke their hearts, they had to put their feelings to one side and focus on K. She said that health issues which had not initially seemed significant enough to affect them caring for K, had come to the fore during the assessment process. She was having tests for Multiple Sclerosis, and the results so far were pointing towards an MS diagnosis. The grandfather, who had had a heart attack two and a half years previously, had started having chest pains. They had done a lot of soul searching, and after a lot of deliberation and tears, decided that it was unfair to K for them to put themselves forward as carers. They could not give him 100 per cent, which they believed he deserved. They wanted him to have the very best in life, and if they truly believed they could give him this, they would still be seeking special guardianship. But they had to be realistic, so that he could have a happy, loving, secure and stable upbringing. If their health deteriorated any more, it would be hard to meet all his needs. They would always have him in their hearts, and drew strength from knowing that he would have a happy loving childhood with a family that loves him. It would be unfair for him to live with them if he would then have to live with someone else because they were unable to care for him. They hoped that K would understand when he is older that they had done this for him, to give him the best possible life.

 

In due course, having completed assessments of the parents, the Local Authority’s plan was for adoption.

Today is 8th May 2013. Last Friday, the grandparents, through their solicitors, issued their application, returnable today. The grandmother wrote another letter to the court. She wrote that they had not expressed themselves correctly in her previous letter. They were 100 per cent committed. They had wanted to tell the judge the real reason that they were pulling out but could not, because they were scared that at a later date when K was older, he would read the letter and it would upset him. She said that they did have some health problems, but that the real reason for withdrawing was that they were terrified that if they were awarded special guardianship there was nothing to stop K’s mother or father seeking and obtaining custody of K. Then he would have been subjected to their lifestyle and would have been at risk. They have since learned that this could not happen because the parents’ legal aid funding had ceased and they would never be able to make an application. They had always thought and believed that K deserved to stay with and have the benefit of his loving, large, warm and close natural family, and this would be best for him emotionally.

 

The May hearing was pushing very close to the 26 week deadline. It certainly would not have been possible to undertake the Special Guardianship assessment within that period – in fact, the assessment would have required another 12 weeks, pushing the case from a six month case into a nine or ten month case.

The Court had a hearing to decide whether to grant the grandparents leave to apply for a Special Guardianship Order (i.e to delay the final hearing to obtain that assessment) and heard some limited evidence from the grandmother.  The Court referred to the case law in relation to applications for leave (although personally, I think the caselaw cited is somewhat out of date, and there is substantially more recent authority making it plain that it is a more nuanced procedure balancing all of the factors rather than Re M 1995’s rather ‘soundbite’ approach – the Court of Appeal in Re B (A child) 2012 [2012] EWCA Civ 737  – in fact, the Court of Appeal say that rather than s10(9) containing a ‘test’ or anything like a ‘test’ to be crossed it simply tells the Court to have ‘particular regard’ to certain factors, whilst other factors can by implication be weighed in the balance too)

The Judge concluded

    1. I am sure that this application is entirely well meant and good-hearted. But it is emotional, unconsidered, unrealistic, and not thought through, I suspect that the prospect of losing contact with K has been a very powerful factor here.

 

    1. No doubt in March the grandparents reached their considered but painful decision to agree to a firm plan for this little boy for adoption with difficulty, but focussing on the child. I am afraid that whatever the love that the grandparents have for K, that their approach at the moment is not child-focussed in the objective way required. The grandparents know very well that they cannot properly commit themselves to this task. This came through in the grandmother’s evidence, when she had to face up to reality. They know that their health problems are important. They are aware of the potential disruption which could be created for K, particularly by his father, but perhaps by the mother too when she is in a less sanguine state of mind, for the rest of K’s minority. Although Mr. Taylor quite rightly stresses the benefits of this warm and close family, that was available in March when they made their decision.

 

  1. I am satisfied that there is a very significant risk that the proposed application will disrupt K’s life to such an extent that he would be harmed by it. I am quite satisfied having had the opportunity to assess in sharp and painful focus what the problems are likely to be, that this application has no real prospect of success. So I do not simply bring the guillotine down on the basis of 26 weeks. This is a summary decision but it is welfare based nonetheless, and based on an evaluation of the facts. It is for me to factor in all these considerations in K’s interests. Therefore I refuse the application.

 

Not quite an Auntie Beryl case in that the Court felt that there was enough information to say in effect that the grandparents application was not going to be successful even if the proceedings were delayed – rather than there being a paucity of information about the family member due to late presentation.

Parker J then gave some general guidance

    1. Cases where relataives or friends come forward at the last minute are likely to present the greatest challenges to the court in complying with the 26 week limit. The Court has a duty to consider whether there are alternatives to a care order. But in my view the court is entitled to dismiss such an application without detailed assessment and must take into account delay.

 

    1. Some measures may assist the court to manage such applications :-

 

a. Orders must record that parents have been advised that failure to identify family members at an early stage is likely to preclude their assessment and that the case will not be adjourned.

b. Where a relative has come forward and then withdraws a court should record that that person understands that this is their final decision and is unlikely be revisited without the strongest justification.

c. Any application for further assessment or joinder by a relative or other person must be resolved very swiftly. Such applications will usually be able to be dealt with on paper. Oral evidence, to be adduced only if necessary and proportionate, should be short and focussed.

3 Comments

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

The new radicals

Posted on March 12, 2014 by suesspiciousminds

The philosophical issues thrown up by Re M, and Not the Nine O’clock news.

There are some things that my dad had views about that had no influence on my own belief systems. I don’t for example, believe that Freddie Mercury was “straight as a die”, that Roy Orbison was only pretending to be blind, that the moon landings were faked (and that REM know about it and their song “Man on the Moon” is not about Andy Kaufman but is really about exposing the fake moon landings).  I don’t feel the need to stand during the Queen’s Speech, or even to watch it.

But there are some things where I know that my dad’s views and philosophies stayed with me to this day – that you should always tip cabbies and hairdressers well, that West Ham are dear to my heart, that it is better to pretend to play the drums when listening to music than play air guitar, and his sense of antipathy towards Unions and Union bosses.

I’ve never had a Union treat me badly or double-cross me, or let me down, but I do have a hostility towards them, an innate, programmed hostility that comes not from my own experience but the beliefs my dad instilled in me about what a bad lot they were.  Why, even this week, when I heard that Bob Crow had died, my initial gut reaction was the one my dad would have had, and not one bourne out of any personal antipathy towards a man who had no adverse impact on my life at all.

Listening to politicians suddenly speak out about what a great man Bob Crow was reminded me of this classic Not the Nine O’Clock news sketch

 

Anyway, the point of this long rambling intro is that in Re M, the High Court were preparing themselves to tackle the issue of the influence that a father could have on his children, for good or for ill.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/667.html

The father in this case is a Libyan man, with seven children. He came to England and married an English woman and started that family. The marriage ended when the mother began to drift back to her earlier Christian beliefs, the father being Muslim. There were problems about the children being returned from an arranged holiday in Libya and a dispute between the parents as to whether this was an attempt by the father to move the family lock stock and barrel to Libya. There were allegations made by the mother about the way that the father treated her and the children – those allegations are not proven or tested and were to be the subject of a fact finding hearing in private law.

The Local Authority had been asked to undertake an investigation and they reported that the children were fine and happy with mother and they had no concerns.

 

At paragraph 10, under a heading “Recommendations”, the social worker wrote,

 

“The children are happy and content in the care of their mother, having gone through a period of instability since last year. They are attending school and many other activities. The behaviour of [the eldest two sons] has calmed significantly and [the second son] has become very close to his mother. [The mother] is providing a physically and emotionally safe environment for the children.”

The report commented also upon the relationship between the children and their father that had been observed during occasions of contact. It said at paragraph 6.6,

“[The father] was observed during contact with the children. He was very warm and affectionate towards the children. His interaction with the children was age-appropriate during the contact and the children found it a positive experience. However, all children apart from [the eldest son] requested for future contact to be supervised.”

It was therefore something of a surprise to Holman J, when the day before the fact-finding was to begin, he received a communication from the Local Authority that they intended to commence care proceedings.

On further enquiry, it emerged that fresh allegations had been made to the Local Authority, who were greatly concerned about them. The substance of those allegations were that the father was “radicalising the children” and promoting radical fundamentalist thoughts associated with terrorism, that he was not simply promoting and advocating Islam as a faith but insisting to the children that anyone who was not following the Islamic faith was an ‘infidel’

This was something that had not been raised as a specific allegation or that the Court had been asked to deal with at the fact-finding hearing, although there was this reference to it in mother’s statement

“Immediately following my return, both children were extremely hostile and rude to me and used concerning language which includes calling me a ‘fucking bitch’, a ‘Christian witch’, and [the second son] told me that I am evil and going to hell. When I asked the children where they had got these ideas from, they said that their father had told them …

On 22 May 2013 I spoke to [the eldest son] about his behaviour and he told me that he cannot love me because I am going to ‘hell fire’. He was crying and said that I was going to hell because I am not a Muslim. I comforted him and his behaviour gradually improved from this time on. [The second son] however, continued to be extremely angry and volatile. [The eldest two sons] are showing signs of radicalised behaviour and have said that they want to be a jihadist when they grow up since a young age, and that they hate England and Christians …”

The Judge made it plain that no findings had been made against the father and these allegations were both untested and strenuously denied

    1. I stress very strongly and clearly indeed that at the moment all of this material is no more than statements made by, or attributed to, the mother, and no more than allegations insofar as it relates to the father or any members of his family in Libya.

 

  1. The father himself very strongly denies nearly all of the allegations that have been made against him and which were intended to be the subject of the fact finding hearing this week. I understand from his counsel today that he also very strongly denies that he has said, or done, anything to any of the children which might lead any of them to say the things or behave in the ways described by their mother in the passage that I have just read.

 

The Judge felt that it would be unfair to start the finding of fact hearing when father had had no notice or warning of these allegations and that the detail of what was alleged was not available to him, nor had he had the opportunity to respond. The case was therefore adjourned to gather that evidence, let father have the proper chance to respond and for the allegations to be tested. It is, of course, the mother (or the Local Authority) who have to prove these allegations – it isn’t for father to disprove them.

It will be an interesting judgment to read when the finding of fact hearing is concluded – I don’t want to comment particularly on this individual family as the allegations are yet to be tested and no real detail is available for anyone to form any view as to their truth or not – the whole thing might be a  misunderstanding, an exagerration or even outright falsehood.

I do think though that the case raises interesting debates about whether there is a bright line between sharing your beliefs and values – even if those might not be the cultural norms of the UK – and emotional harm to children.  Is this a Hedley J  Re L case, where society ought to tolerate a broad spectrum of behaviour and views and values, or a Supreme Court Re B case where the behaviour of the adults was held to cross the line into significant harm?

The Judge captures this very elegantly

“Radicalising” is a vague and non-specific word which different people may use to mean different things. There is quite a lot of material in this case to the effect that the elder of these children are committed Muslims who like to attend, and do attend, at a mosque and wish to display religious observance. This nation and our culture are tolerant of religious diversity, and there can be no objection whatsoever to any child being exposed, often quite intensively, to the religious practices and observance of the child’s parent or parents. If and insofar as what is meant in this case by “radicalising” means no more than that a set of Muslim beliefs and practices is being strongly instilled in these children, that cannot be regarded as in any way objectionable or inappropriate. On the other hand, if by “radicalising” is meant, as appears in paragraph 12 of the draft addendum report that I have already quoted, “negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism” then clearly that is a very different matter altogether. If any child is being indoctrinated or infected with thoughts involving the possibility of “terrorism” or, indeed, hatred for their native country, which is England, or another religion, such as Christianity which is the religion of their grandparents and now, again, their mother, then that is potentially very abusive indeed and of the utmost gravity.

 

 

It is very difficult, when you start thinking of concrete situations, to see where that bright line would be.

For example – a man says to his fourteen year old son

1.  Islam is a faith with many followers throughout the world, it is something that I firmly believe in. I also believe that there are substantial elements of Western society that are decadent and not in keeping with my faith and tradition and the world would be a better place if more people followed Islamic traditions.

seems fine to me

Let’s add

2. There are those in the Western world that are threatened by Islam, and are frightened that their time of dominance based on greed and capitalism will come to an end. As a result, they oppress Islam, they stir up fear and hatred of Muslims, they scapegoat us for the ills of the world and start wars against Islamic countries using lies and deceit.

Now let’s add

3. There are Muslims who fight back, who resist this oppression. They risk their lives for what they believe in. They stand up for what is right, and they are honourable men to do so. We cannot fight against the West with tanks and planes because we do not have their resources and might – instead we rely on brave men who sacrifice their life to do what they must to bring the West to realise that what they do to Muslims is wrong. Being a martyr for something you believe in is better than tolerating oppression.

 

[For the avoidance of any doubt, I do not suggest at all that these views are in any way representative of mainstream Islamic thought or belief – it is just laying out a trail of how one might move away from mainstream Islamic thought and justifiable feelings of wanting to share your faith with your children towards the very tiny proportion of radical fundamentalist viewpoints]

Even that third one still seems to me to be an expression of faith and values – it might be edging towards stuff that might make people uncomfortable, but if you live in a free society you don’t just defend the right of people to say things that you agree with – sometimes people need to be free to say unpalatable things, unpopular things.

Almost certainly before you get anywhere near the point where the child is going to start hating the West or wanting to take action, you’ve got many many more steps than that – but how many? How far down that route do you go before what is happening is not an expression of views but emotionally abuse and indoctrination or radicalisation?  But putting your finger on where that point is that crosses the line between expressing your faith and views and saying what you believe and becomes harmful is not easy.

Even if the Judge has a verbatim account of what was said to a child, fixing that the bright line has been crossed might prove to be a difficult task.
 

16 Comments

Posted in case law, emotional harm, fact finding. Bookmark the permalink.

Midsomer night’s dream

Posted on March 10, 2014 by suesspiciousminds

[Just absolute nonsense – no law in it at all]

Ladies and gentlemen, this is my report on crime, and crime solving methodology within the last forty years. There will be surprising results for you within my research – it will challenge the way in which we fund and fight crime, and some of it may be unpalatable for you to hear.  I have been brought to this hotbed of crime to see if what can only be described as a tidal wave of slayings can be reversed. With my help, ladies and gentlemen of Midsomer, it can.

In the 1970s – there were two major types of crime. Murder, which was dealt with by what we think of as traditional police work – interviewing suspects, gathering evidence, following leads and eventual arrest. The second type of crime, equally prevalent, was committed by perpetrators disguising themselves as ghosts – usually in order to scare people away from visiting a funfair so that they could buy the land cheaply or to frighten people away from an abandoned mine so that the proceeds of a robbery could be recovered. Ghost-related crime proved extremely resistant to traditional policing methods.

In fact, during the entireity of the 1970s, not a single arrest was made by a uniformed police officer – either here, in the United States, or in England.

A different approach was required, and so investment was made into the assembly of unorthodox units – staffed not by trained investigators but by teenagers – one of whom would be very attractive but contribute little , and with the smartest person being rather plain. This group dyamic worked far better in practice than groups where all of the teenagers were bright and useful. The other key element in successful ghost-related crime-solving was that the group be accompanied  by some sort of animal.

Those results were startling. Arrest levels for ghost-related crime went through the roof. These teenagers and an animal sort of thing made in-roads into ghost crime that ordinary police forces simply weren’t able to deal with.

Their names will be known to many of you involved in criminology or law enforcement, usually by way of the animal-thing who tended to grab most of the media attention – Scooby Doo, Goober and the Ghost Grabbers, the New Smoo, Fangface – there are many more.  They were so successful that by the mid-80s, funding was withdrawn, it being believed that the ghost-crime menace had been defeated.

Now what we have, instead of teenagers and a goofy sidekick are crack teams of scientists or forensic psychologists, or criminal profilers – working in groups of six or seven, with no animal sidekicks. And what they end up dealing with are multiple murders with sick twisted elements, killers who have unfathomable motives and a methodology that always seems far more trouble than it is worth.  Invariably, these murders are solved by establishing that the killer is a short-order chef, who collects Lego, and whose mother was killed by a bee-sting, and then this data is put into a computer and a list of one suspect arrived at.

My research shows that these crimes are WORSE than scaring away people from a funfair by dressing as an old civil-war infantryman with luminous paint on your clothes. By re-establishing zero tolerance on ghost-crimes, which are a gateway to these more heinous crimes, we could substantially improve people’s quality of life and reduce the chance of them being butchered and then turned into a Lego Bee or something.

We know, it is tried and tested that maverick pairs of police officers – who have nothing in common, are almost opposites and who fight like cat and dog are many many times more effective than trained, thoughtful methodical officers working in harmony. This approach reaped huge dividends throughout the United States, but came to a halt following a little known, but deeply unsuccessful attempt to pair Robin Williams on coke, with Dustin Hoffman on Quaaludes as  “The Extrovert and the Introvert”  – although arrests were made, multiple lawsuits arose from suspects who claimed that they had been ‘deeply freaked out’ by the process.

We also know that whilst the average police investigation is slow and time-consuming, any maverick detective given twenty-four hours to solve the case will achieve that desired result. This “Twenty-four hours or you’re off the case” efficiency drive ended up being overused, with one Chicago police department issuing the demand for every case, including minor office stationery thefts and the entire police department was then left with nothing to do until crime built up again.

But as with so many of these bold initiatives – the baby is thrown out with the bathwater when the scheme is abandoned.

Why, I have learned that police in Baltimore recently spent FIVE years investigating some drug lords, making less than six arrests in that whole time. The entire case could have been wrapped up in twenty four hours, if only the simple “I’m taking you off the case” management technique had been deployed.

Case study 1

In the 1980s, in Hawaii, a bold experiment was attempted. All police officers were laid off and the entire island’s crime prevention unit was placed in the hands – or rather, moustache of one man, Thomas Magnum. During the 1980s, every crime in Hawaii was solved by Mr Magnum – this covering murders, robberies and the fairly common kidnapping of foreign princesses or movie stars. The initial outlay of capital was heavy, yes. Multiple redundancy packages to existing police officers, huge increase in unemployment benefit, investment in a mansion, a Ferrari and a helicopter.

The start up costs are what made most other parts of America fail to take up the Magnum model  (although Los Angeles attempted a similar venture outsourcing all of their kidnapping of foreign princesses or movie star cases to a washed-up stuntman. His travel expenses eventually led to the suspension of the experiment) .  If they had carried on, however, that capital expenditure would have easily been recouped in the annual savings of not employing lots and lots of police man to do the work of one moustached detective.

Fact, ladies and gentlemen – since Thomas Magnum was laid off, there was a twenty year period where NO criminals were caught in Hawaii at all.  (This desperate pattern has been ended by the employment of Steve McGarratt’s grandson or something to form a crack Hawaii 5-0 investigation team – it is anticipated that this programme will be cancelled fairly soon. The lack of moustache makes it an inevitable failure)

Moustaches solve murders. FACT.

Case study 2

Again in the 1980s, five hundred and nine murders were solved by one single woman. Not a cop, not a private investigator. Just an old woman, a writer of mystery novels, who solved murders that happened at social events that she was invited too. The State did not have to pay her a dime for solving any of these crimes, making Jessica Fletcher by far and away the most cost-effective law enforcement operative in history. Some might say that although those 509 murders were solved, no convictions resulted – the jury returning not guilty pleas on the basis that they couldn’t understand how the accused was supposed to have done it.

Others might point to the book that Ms Fletcher published, entitled “If I did it” which explained that she was a psychopathic killer who had murdered all 509 people and set up other people for the crime without ever once having been suspected, but as Ms Fletcher said with a twinkle in her eye, this was merely a hypothetical and fictional account of how she could have done it rather than a confession.

Codgers crack cases. Demonstrable FACT.

Case study 3

The county of Midsomer in England currently accounts for 98% of homicides in the UK, yet their police force consists of just two officers and occasional input from a dog, Sykes.  Midsomer now has a higher murder per capita rate than Detroit, Washington DC – in fact the only place that has a higher murder per capita rate is a prison for Russian mobsters where there was a short-lived experiment to set the prisoners to work making knives. Property prices are dwindling – once a week, three houses become available because the owners have been killed, and nobody wants to move in because of the high probability that they will be murdered.

This cannot go on.

Solution

Part of the solution for Midsomer’s problems is already in place. I of course refer to Sykes the dog.  He will be the cornerstone of Midsomer’s new approach. A pretty teenage girl will be appointed to the investigation team. She will have a plain friend who will be a computer whizzkid, who will do internet searches for “Hang-gliding enthusiasts who are allergic to lamb bhuna and just bought some patio furniture” quicker than any ordinary human could actually type that sentence. The junior detective will grow a moustache or be replaced by someone else who will. The senior detective will rigorously enforce the “Twenty four hours or you’re off the case” technique.

There will be a zero-tolerance approach to ghost-related crime. The sale of luminous paint within Midsomer will be prohibited and the full force of the law will come down on any miscreant who dresses up as a haunted deep sea diver in order to get the biscuit factory for themselves.

The final piece of the puzzle will be to recruit a local pensioner, ideally one who talks too much and seems to ramble on and on about nothing and then look perplexed once an hour saying something like “Oh dear, an egg-whisk – how could I have been so foolish as to miss that?”

[In the event that the old woman HAS a moustache, the junior detective at Midsomer can be laid off. Therefore, sales of Immac or other hair-removal products is banned to anyone over sixty-five in Midsomer ]

If these methods do not work, we know that getting all of the suspects into a room* and having a long rambling conversation where each person is almost accused in turn has a high success rate. That should be what happens in the 24th hour, if the case is not solved by then.  [*none of these suspects will bring a lawyer, or give a no comment interview, or even decline to attend the gathering]

My apologies for  (a) nonsense (b) lack of the powerpoint style pie charts and bar graphs that were in my mind when I thought of this nonsense and  (c) that the lecturer can’t quite decide whether he is English or American with some of his turns of phrase.  In fact, I’m just sorry overall for the whole thing.

2 Comments

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

Another C-section case

Posted on March 10, 2014 by suesspiciousminds

I know that these Court of Protection decisions, authorising a hospital to undertake interventions / treatment without a patient’s consent are of interest to my readers, following on from the case with the Italian mother that attracted considerable notoriety in December 2013.

This one, Re P 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/4581.html

once again involved a mother said to have mental health problems (rather than say a learning difficulty) . The media were present, and save for being able to identify the mother or the Trust, the Judge was amenable to the details of the case being made public.

If you aren’t aware, there is broadly a two stage test – firstly does the patient have capacity to take the decision for themselves (and if they do, they are entitled to make a decision which flies in the face of medical advice or even common sense) – and secondly, if not, the Judge has to apply a best interests decision – taking into account all of the circumstances and what is known about their wishes, what is in the patient’s best interests.

As a matter of particular interest in this case, the Judge raised an issue which I have debated with people before. As you may be aware, the ‘best interests’ decision relates to the patient themselves, not in the health of the child. Unlike Children Act cases where the child’s welfare is paramount, the unborn child has no legal rights to take into account. The decided C-section cases have always been that the operation avoids a risk to the mother’s health as a result of her medical situation, and the fact that a C-section might be the safest way for the child to be born has not, thus far come into the decision-making process.

The debate therefore is whether, when taking into account the mother’s best interests, one can take into account that it would be in her best interests and in accordance with her wishes if the baby were to be delivered safely and well – this being something that any mother would want for her baby.

The Judge decided that it absolutely could be taken into account.

Next, there is no doubt at all that it would be in the best interests of Mrs. P for her baby to be safely delivered. The court cannot be concerned with the interests of the unborn child, but can, and does, have regard to the extremely adverse effect on Mrs. P if unnecessarily her child was not born safely or was born with some avoidable disability as a result of a lack of obstetric care which might have been given. Furthermore, the proposal that the Trust makes offers the best chance of a secure labour and delivery for Mrs. P if it is approached in a planned way rather than awaiting the chance moment.

 

Therefore, although this decision was taken primarily on health grounds for the mother, the door is possibly opened in another case for the decision to be primarily about safely delivering the child.

The other aspects of this case were 1) that the mother was not merely not consenting to the operation (although she did not have capacity to consent), but actively hostile to it. And that was a factor that had to be taken into account when deciding the best interests element and 2) that at the time of the application the mother was described as being calm and lucid, so the declaration sought was to ensure that if things deteriorated during labour, the hospital could take action.

  The current situation is that Mrs. P is in hospital awaiting the arrival of her baby. She is relatively calm and accepting of the idea of being induced as described. However, that may change if she was to become agitated during her labour, as she has been in the recent past. There is a good chance that she will be able to give birth by normal means. That is the outcome which everybody hopes for. However, if that does not happen it is said, and I so find, to be in her interests for emergency measures to be taken for the benefit of her physical and mental health by means, as a last resort, of a Caesarean section.

It might be helpful, given that the reported cases on C-section are somewhat slight on guidance over and above the standard Mental Capacity Act tests, and the St Georges case (suggesting that the patient also ought to be helped by the Hospital to develop understanding to make an informed decision) predates the Mental Capacity Act for one of these cases to be appealed in the future. There’s perhaps not enough weight at present in these judgments as to the nature of the act being authorised and its invasiveness and any sort of  guidance as to how serious the health risks ought to be before one performs the operation on a person who is not in a position to agree to it as a result of mental illness.

(Of course, the reality of these applications are that they are done swiftly, often as an emergency, and that after the C-section is performed, it can’t exactly be undone, so a later appeal is more academic than practical)

20 Comments

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

Warren v CARE 2014

Posted on March 6, 2014 by suesspiciousminds

In this case, the High Court decided that the right to private and family life, including the right to start a family in the future, for Ms Warren overrode the strict legal requirements of the Regulations governing freezing of gametes.

Click to access warren-judgment.pdf

It was a very sad case – Ms Warren’s partner, Mr Brewer became unwell in 2005 and a treatment of radiotherapy was decided upon. Because of the risks that this treatment could affect fertility, discussions took place and Mr Brewer and Ms Warren made the informed decision that they would both want Ms Warren to have the opportunity in the future, even if Mr Brewer were to die, to have the ability to have his child, and thus gamete samples were taken and frozen.

 

Ms Warren had a series of awful life events, culminating in Mr Brewer’s death in 2012. She had, very understandably, not elected to become pregnant whilst all of these awful events were occurring.

As a result of a chain of paperwork and consents, the situation arises where in accordance with the Regulations governing the freezing of gametes, the gametes would need to be destroyed by April 2015. Ms Warren wanted to keep them for longer, to have the time to grieve properly before starting a family.

This is why the law is problematic

s14 HFEA 1990 states that gametes shall not be kept in storage for longer than the statutory storage period and if stored at the end of that period shall be allowed to perish – the statuory storage period s14(3) is ten years OR a shorter period OR if specified by Regulations a longer period.

The Human Fertilisation and Embryology (Statutory Storage Period for  Embryos and Gametes) Regulations 2009 give the circumstances in which that period can be longer, and one of the requirements is that the donor has consented in writing to the storage period being longer than ten years  (the maximum is fifty five years).

Although Mr Brewer had signed oodles of paperwork consenting to the storage of his gametes what he had NOT been asked to sign was anything indicating that he was consenting to them being kept for longer than ten years. There is very little doubt, and the Judge was comfortably satisfied that if he HAD been asked to sign such a consent he would have done so – it was an omission, but not his fault. It just wasn’t an option he was asked or invited to consider in the Clinic’s paperwork.

So, what was left was either strict adherence to the law and the Regulations – or, as Ms Warren urged, the Court to determine that in this situation the Regulations were not compatible with her right to private and family life and in interpreting the law to do so in a way that WAS compatible with those rights.

It was plain that allowing the sample to be kept had no adverse effect on anyone, but strict adherence to the Regulations would rob Ms Warren of the chance to have the child that she and Mr Brewer had wanted.  The Judge was also satisfied that the Clinic had taken steps to ensure that their paperwork for any future cases had remedied the deficiency and that this was not a floodgate case but either a unique or very rare situation and that declaring that the Clinic could and should keep the samples for a total of 55 years was the right thing to do.

A tip of the hat also to Miss Jenni Richards QC and Catherine Dobson, junior counsel, who both represented Ms Warren and supported her through this difficult process, doing so entirely free of charge.

 

8 Comments

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

Concessions and fact-finding

Posted on March 6, 2014 by suesspiciousminds

The High Court dealt with these issues in a case called Re AS (A child) 2014.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/606.html

There was to have been an 8 day finding of fact hearing. The central allegation was that the child who was six, had been given excessive doses of insulin, causing him to become very unwell.  Although he had diabetes, his condition and situation had been made worse by this over-medication, and therefore this was a case of Fabricated or Induced Illness.

It was also noteworthy that the mother had told the child, and many other people, that she herself had cancer, when it was clear from her medical records that she did not.

Before the finding of fact hearing began, mother’s legal team talked to her – what is said is obviously confidential, but the end result is that the Judge was told that mother did not make any admissions that she had administered the excessive doses of insulin to her son, but accepted that it was inevitable that at the conclusion of the finding of fact hearing that those adverse findings would be made against her, and thus if certain amendments were made to the Local Authority threshold document, there would be no challenge to the Judge making findings in accordance with that threshold document.

That’s quite a nuanced position, since mother was not making any admissions but simply accepting that the findings were inevitable and not wanting to put everyone through an 8 day process to end up at that result. It is also quite a smart way of avoiding the self-incrimination issue that I’ve previously blogged about, whereby if there were any criminal proceedings being considered the admissions if any made might end up being used in criminal trial as inconsistent statements.

The Judge obviously mulled over this position – on the one hand,mother was making no admissions , on the other there was the need to be proportionate given that the threshold was not actually challenged.

(a) I have read the papers in this case in great detail. I have formed exactly the same view as Ms Henke and Ms Japheth, namely that it was inevitable that I would find, on the balance of probabilities,, that the threshold criteria were established for the reasons given by the Local Authority and, in particular, that I would have concluded that there was induced illness in relation to AS by the Mother secretly giving AS excessive dosages of insulin. At this stage, I do not know why she did so. This will be a matter for the welfare hearing that is fixed for May.

(b) The binary system adopted in this jurisdiction means that my findings become a fact. In other words, it would no longer be open to the Mother to challenge those findings. The case would proceed on the basis that this is what happened. The assessment I have already ordered by Professor A Mortimer, Consultant Adult Psychiatrist will be conducted on the basis that the Mother has indeed induced illness in AS, which was, of course, extremely serious and potentially life threatening. The Mother understands and accepts this.

(c) I have already noted that the Mother has not been able to bring herself to admit to me that she did this. I wondered for a time whether it was therefore necessary for me to conduct a fact finding after all but I concluded that counsel were right when they said I did not need to do so. The Mother is prepared to accept today that I will make the same findings as I would have made if I had heard evidence over eight days. There seems absolutely no purpose therefore in doing so. I have to remember the overriding objective of dealing with cases justly. This includes ensuring that the case is dealt with expeditiously and fairly in a way that is proportionate. I must also consider the need to save expense. I cannot see that it would have served any useful purpose to proceed with a very emotionally draining hearing, which would inevitably have caused immense unnecessary distress to the Mother. I am quite sure there would be no material advantage in doing so as the findings of fact I would have made after a contested hearing would have been exactly the same as the ones I make now. I therefore approve unreservedly the course of action urged upon me.

(d) The fact that the Local Authority has proved its threshold document does not mean that there will inevitably be a final care order. I will have to consider that issue in May, acting on the basis of what is in the best interests of AS.

(e) Finally, I do accept that it has taken considerable courage for the Mother to accept the inevitability of my finding of induced illness. I have already indicated that I am sure she was right to do so. It follows that I commend her for the position she has adopted and confirm that the advice she has received was undoubtedly correct. She is to be praised for having accepted it and taken what I entirely accept will have been a very difficult decision for her.

1 Comment

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

surrogacy – be warned, charging to draw up an agreement is a crime

Posted on March 6, 2014 by suesspiciousminds

 

Re JP v LP and Others 2014

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

in which the High Court deal with a surrogacy arrangement that went wrong. As I’ve suggested in the past how important it is, if you are creating a baby in a slightly unorthodox way that all adults involved are clear about what they all intend, and ideally get it down in writing.

In this case, the adults HAD done that, and had a surrogacy arrangement reduced into a legal document intended to be binding. Mrs Justice King points out that in charging for that document to be drawn up, the solicitor was committing a criminal offence.

    1. The parties agreed and an agreement was prepared by a firm of Birmingham solicitors. The solicitors were in fact committing a criminal offence as, whilst such agreements can lawfully be drawn up free of charge, the solicitors in preparing and charging for the preparation of the agreement were negotiating surrogacy arrangements on a commercial basis‘ in contravention of section 2 of the Surrogacy Arrangements Act 1985 which says :

 

2 Negotiating surrogacy arrangements on a commercial basis, etc.

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

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

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

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

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

(2) A person who contravenes subsection (1) above is guilty of an offence;

Worse than that (for the adults, not the solicitor) was the fact that under s36(1) Surrogacy Arrangements Act 1985 surrogacy arrangements are not enforceable by law. So a document was drawn up and charged for that had no legal status, and the solicitor doing it was unwittingly committing a crime.

So, lesson number one is that if you are a solicitor and someone seeks advice about a surrogacy agreement, you’re either doing it pro-bono or you’re potentially committing a crime.  And if you are doing it pro-bono, then the document is only really going to be any use as a statement of people’s intentions BEFORE the birth. Once the baby is born, all bets are off.  The fact that a biological mother agrees to have a baby and hand it over and puts that in writing doesn’t mean that she can’t when the baby is born just say “Sorry, changed my mind, I’m keeping the baby – and the ‘expenses’ that you gave me”

    1. Notwithstanding that a surrogacy arrangement may have taken place outside the structure of the HFEA 2008, The act itself nevertheless spells out the legal effect of such an informal arrangement:

 

(i) The surrogate mother having carried a child following assisted reproduction ‘and no other woman’, is the child’s legal mother s33(1) HFEA 2008. This remains the case unless the child is subsequently adopted or parenthood transferred through a parental order. Absent adoption or a parental order she has and retains parental responsibility.

(ii) The father is the genetic and social father of CP

The surrogate mother was not married …section 35 HFEA 2008) and was neither treated in a UK Licensed clinic, she was not in the category of relationship which would satisfy the so called ‘Fathership’ conditions’ (s37 HFEA 2008) which relationships could otherwise have the effect of making the husband/partner of the surrogate mother the legal father in place of the genetic father.

(iii) The mother, absent legal intervention, has no status other than the emotional and social status of being CP’s psychological mother. Crucially she does not have parental responsibility, she cannot therefore give consent to medical treatment, register CP for a school or take a myriad of decisions in relation to CP which parents routinely do without a thought as to whether or not they have the authority so to do.

3 Comments

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

Little boxes and the ark of the covenant

Posted on March 3, 2014 by suesspiciousminds

As part of the continuing desire to standardise everything, and a belief that any problem can be solved if only there is enough written guidance, practice directions, policy frameworks and standard documents, there is a proposed model for the initial social work statement.

I am not sure why it is that there is a belief that one can collapse the diversity and detail of families into one standardised little-boxes pro-forma, as though all parents and children were Lego figures rather than individuals with hopes and fears, dreams and disappointments, struggles and triumphs.  If you have read any of the cases in my blog over the last two years, you will see that the Family Courts deal with surprising and intricate things, that people can end up in situations or predicaments that no person could anticpate and cater for in a standard document.  Structure, yes, guidance to avoid jargon and verbosity and sloppy attention to the difference between evidence and assertion – all good things. But don’t try to make a pro-forma that fits every case. It just isn’t do-able.

[I’m not entirely neutral on this point, I have to confess]

This one has been put together by the Association of Directors of Children’s Services.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/279212/Annexes_to_statutory_guidance.docx

I don’t want to be unkind.  (I should just end the blog there to be honest). Apologies if you, or your friend, or your cousin was one of those people. I’m afraid that I don’t like it. Others may differ from my opinion – I may just be one loud-mouthed jerk, after all. Don’t take it to heart.  Honestly, stop reading right now. There is a really nice you-tube thing of ducklings on a waterslide – go and find that, it will cheer your heart.

In a Solution-Focused-Therapy style, let’s try to say something nice  “What were you pleased with?”

Well, people have clearly worked very hard on it.

Not necessarily the right people, but people have obviously worked very hard on it.

This version is actually worse than the first version of it, which takes some doing. It is also worse than the standardised model laid out in the revised PLO. A sentence I never thought that I’d type – I prefer the version in the new PLO document.

It is packed full of everything that is worse about design by committee – it is little boxes galore, it is reductionist, it assumes that everyone who will be writing the document is a moron incapable of independent thought without being led by the nose to the next little box to complete. The process of reading it is offensive to your eyes. It doesn’t include a Welfare Checklist. (I mean, the Act gives everyone a specific tool for analysis, is it too much to ask that this tool would be a centrepiece of the evidence produced?) It makes the Core Assessment look gorgeous and inspirational (this is some feat)

My actual reaction to this, when I opened it up and read it was…. well, do you remember the bit at the end of Raiders of the Lost Ark, where the nazi’s open the ark and one of the chief bad guys has his face melt off whilst screaming? Sort of that.

It’s the sort of thing that when you read it, you wonder who it is supposed to help? The workers writing it? Clearly not. The parents reading it? No way. The Judges? I’d be amazed if any Judge would prefer this cumbersome little-box form (that at one point tries to encapsulate all of the issues and thought processes around contact into a six column table) to a considered narrative document.  So, other than the designers of whatever computer programme will standardise this onto every social work computer in England, who is it FOR?

I think, comparing it to Lucy Reed’s suggested pro-forma for social work assessment, which was intended to be a nasty satire – I think Lucy’s is more rigorous as a document.

Family Justice Modernisation Programme Update No. Nine and Three Quarters

 

This document, however, it at the moment still just a consultation (which means that it is inevitable unless people who will be writing them, reading them, trying to explain them to parents speak out and say how ghastly and unfit for purpose it is – OR of course if you disagree with me, you should tell them that too)

https://www.education.gov.uk/consultations/index.cfm?action=consultationDetails&consultationId=1949&external=no&menu=1

Consultation ends 26th March.

If you can’t manage a long and detailed response, just send them this link.

 

17 Comments

Posted in consultation, social work and tagged , , . Bookmark the permalink.

There’s Norway you are serious about a costs order

Posted on February 28, 2014 by suesspiciousminds

 

The Court of Appeal in Re S (Children) 2014 set aside another Care Order and Placement Order and sent the case back for re-hearing because the judgment was not sufficiently rigorous and “B-S compliant”. No great surprise there – it is something of a novelty these days when the Court of Appeal uphold a judge who makes these orders. What is a bit peculiar is making an order that the LA pay the appellants legal costs, nearly fourteen thousand pounds.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/135.html

You may recall that the Supreme Court in Re T *dealt with the temptation to make Local Authorities pay costs to parties who won their case but had to pay for their own legal advice, rather than getting it for free, and were very plain that in the absence of bad conduct by the Local Authority, Courts should not make costs orders against Local Authorities just because they have money and the other side had bills.

 

* https://suesspiciousminds.com/2012/08/07/when-they-begin-to-intervene/   is the Re T blog

Why is this one, which involves a series of complex international issues and the father moving to Norway to live permanently during the hearing, different to Re T? Well, I can’t work out why not, reading the judgment.

There was an appeal recently  (Re C 2014 http://www.bailii.org/ew/cases/EWCA/Civ/2014/70.html ) where a Local Authority got stung for costs, but in that one it was chiefly as a result of the LA counsel having a series of peculiar email exchanges with the judge at first instance, not being properly frank with the High Court judge during their own appeal and not having properly accepted that the evidence at first instance had sunk their case. That, in the view of the Court of Appeal had amounted to bad conduct, and thus a costs order could legitimately be made

A word in your shell-like

 

In this one though, the judge at first instance is criticised for not giving full enough reasons for refusing further assessment of the father and for not robustly tackling the Re B-S issues in the judgment. That’s not the fault of the Local Authority, that’s due to the Judge.

    1. The father has funded this appeal privately and seeks his costs in the sum of £13,787.70. He does not aver that the local authority have engaged in reprehensible behaviour or took an unreasonable stance in the hearing at first instance to justify a departure from the normal rule that costs are not awarded in children’s cases. However, Mr Bainham argues that the judgment in Re T (Children) [2012] UKSC 36 to this effect is directed at first instance hearings where public policy considerations militate against any possible financial deterrent to an authority taxed with the responsibility of protecting children from pursuing proceedings. Likewise, in the case of an appeal neither should a parent be deterred from challenging decisions which impact upon the most crucial of human relationships. Ms Markham argues the case is not so restricted and resists the application.

 

    1. I consider the question of costs in the appeal to be of a discrete category and the discretion of the Court broad. Re T is distinguishable for the reasons argued by Mr Bainham.

 

  1. In this case, Ms Markham has been forced to recognise the deficiencies of the judgment of the lower court but nevertheless has resisted the appeal. In the circumstances of the father’s limited means, already decreased by his travel from Norway to the United Kingdom to exercise contact, I would grant his application and order costs in the sum of £13,787.70.

 

It is that difficult sum which means that the costs of taking this case to the Supreme Court to correct that decision (which I respectfully suggest is wrong)  dwarf the amount ordered, so the decision will only be appealed if the LA involved decide that there’s an issue of principle involved.  As a long-standing advisor to Local Authorities, I know well that whilst someone at the coalface will say “It’s not the money, it’s the principle of the thing, let’s appeal”, someone higher up the chain of command who makes that decision will say “It’s not the principle, it’s the money, let it go”.   I can see why the Court of Appeal made that decision – the father had won his appeal and yet was out of pocket, Local Authorities (in the eyes of the Courts) have bottomless pockets – job done; but I think it flies in the face of Re T.

I hope they do appeal, and I think they would win; but I suspect pragmatism will win out over the principle of the thing.

If father incurs costs as a result of a flawed judgment, why aren’t his costs paid for by the Court service?  Don’t ever see the Court of Appeal deciding that…

 

The other unusual element here is the Court of Appeal suggestion that the Lucas direction (just because a person lies about X, doesn’t mean that they are lying about the major issue in the case) ought to be expanded

It has become de rigueur for a trial judge expressly to articulate their self direction in accordance with R v Lucas [1981] QB 720 in fact finding hearings. That is, the significance that may or may not attach to the lies told by a party in relation to the injury/ behaviour in question. There is none such in this judgment which deals with outcome. A specific reference to the same is unnecessary but I do consider that it was unrealistic for the judge, and the professionals not to have appraised the same exercise in the context of the non disclosure and/or deceit in question. The fact of a parent’s non disclosure or deceit is not necessarily determinative of parenting capacity or, depending on the circumstances, an ability to co-operate with the authorities.

You have been warned.

[The list of things that need to go into a final judgment now to make it bullet-proof is swelling – good news for those transcription firms that are charging by the page]

5 Comments

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

Taken into care for being too fat

Posted on February 28, 2014 by suesspiciousminds

 

The Daily Mirror ran an interesting piece this week, as a result of Freedom of Information queries revealing that over the last five years, 74 children have been taken into care across the country for being too obese.

http://www.mirror.co.uk/news/uk-news/seventy-four-kids-taken-care-protection-3190690

It is quite a balanced piece and has some interesting views within it – it is neither a hatchet job on parents who let their children get fat, nor on busybody professionals who interfere, but tries to look at both sides of the equation. It is probably the best article in a mainstream newspaper on child protection that I’ve read in a long while – recognising that these are difficult issues, hard choices and that there is no simple right answer either way.

From a strictly legal standpoint, it is worth remembering that a child can’t be removed from a parents care  (other than for a very short period by the police) unless a Court is satisfied that the child is suffering or is likely to suffer significant harm. Being a bit overweight (even quite a bit overweight) isn’t going to be enough for that.  In fact, these numbers tell you that – given the number of media articles bemoaning how Britain’s children are out of shape and obese, that’s quite a small number over a five year period. [If the NHS stats are right, ten per cent of children are significantly overweight]

In order to get anywhere close to meeting the significant harm test, a child would have to be massively overweight AND there would need to be some medical evidence about the harm that this would be causing the child.   (Mere common sense assertions that a child of eleven being sixteen stone is harmful won’t do – you need a medical opinion as to the damage that this is causing their health, their joints, their heart, their ability to participate in ordinary childhood life)

 

Even if a child does reach that level of obesity, the Court would still be carefully balancing the two types of harm in this case – that physical and medical harm that the obesity is causing against the emotional harm and trauma of removing a child from parents.  (I think the Mirror article covers that very well).  The Court would want to be thinking about whether there is anything else that can be done – better education, a dietician, stern warnings, therapy, putting the child on a prescribed diet – those are all things that would usually be tried before contemplating making an order to remove a child.  It would very much be the last resort when anything else one could reasonably try hasn’t worked.

And of course, the removal into care isn’t a magic wand – it isn’t a magic solution that will solve the problem. For some of these overweight children, there’s an emotional or comfort component to their over-eating and it might be that being away from the parents makes them far more unhappy and far more likely to eat more. The article, and the statistics, can’t tell us how many of those children went home again after their time in care, or how many had their problems addressed / made worse.

2 Comments

Posted in Uncategorized and tagged , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →