Author Archives: suesspiciousminds

Manuela Sykes

Posted on February 27, 2014 by suesspiciousminds

 

Manuela Sykes, from what I have read about her, sounds like an amazing woman. I hope that her actions in this case make a difference for others like her in the future.

http://www.bailii.org/ew/cases/EWHC/COP/2014/B9.html

Lucy Series over at The Small Places has written an amazing and moving article about this woman, and it is far better than anything that I will manage, so go and read that

http://thesmallplaces.blogspot.co.uk/2014/02/i-was-ever-fighter-so-one-fight-more.html

Manuela was 89 and suffered from dementia. It was considered by Westminster that she could not be kept safe in her own home, so they placed her in a secure home and (very commendably) made an application to the Court of Protection for authorisation of Deprivation of Liberty  (making that application allowed Manuela to be represented and to challenge that and made it a judicial decision rather than an administrative one. That was a damn fine thing to do, well done Westminster)

District Judge Eldergill decided the case, and I would like to say that it is a model judgment – I hope it blazes a trail that others will follow.  (Justice Jackson decided a case on a similar rationale in 2013, a judgment I praised highly at the time)

Ms S has had a dramatic life, and the drama is not yet over.

She has played a part in many of the moral, political and ideological battles of the twentieth century. A vegetarian from an early age; a lifelong feminist and campaigner for women’s rights; a Wren in the Fleet Air Arm; a committed Christian; a political activist who stood for Parliament; a councillor on the social services committee of the local authority that now authorises her deprivation of liberty; the editor for 40 years of a trade union newspaper; a helper of homeless people and an advocate for them; and a campaigner for people with dementia, from which condition she now suffers herself.

The court is not concerned with her particular political views, whether they are left or right of centre, and nor is it concerned with her religious views. These are matters for her. Their main relevance to this court is that by nature she is a fighter, a campaigner, a person of passion. She appears always to have placed herself in the public eye, in the mainstream, rather than ‘far from the madding crowd,’ debating the issues of the day, causing, accepting and courting controversy.

In 2006, she was diagnosed with dementia and appears to have responded to that in the same forthright manner with which she has approached everything else in her life. She participated in a dementia project and campaigned for the rights of dementia sufferers, in particular older women. In December 2006, she made a living Will. Some time later, in 2011, she appointed an attorney for property and affairs, a person she trusted to act for her in accordance with guidance set out in her LPA (attorney) document.

I DECLARE THAT if at any time any of the following circumstances exist, namely:

1 I suffer from one or more of these conditions: ….

1.5 senile or pre-senile dementia (e.g. Alzheimer’s disease); ….

2 I have become unable to participate effectively in decisions about my medical care; and

3 Two independent doctors (one a consultant) are of the opinion, having examined in full my circumstances and prognosis, that any of the following apply:

3.1 there is no reasonably likelihood of substantial recovery from illness involving severe pain and distress and from which it is likely I will die in the near future; or

3.2 I am in a state of unconsciousness or coma and it is unlikely that I will regain consciousness; or

3.3 I suffer from a mental illness resulting in me having a very limited awareness of my surrounding environment and an inability to perform basic tasks and from which it is unlikely that I will recover.

THEN AND IN THOSE CIRCUMSTANCES my directions are as follows:

1 That I am not to be subjected to any medical intervention or treatment aimed at prolonging or sustaining my life;

2 That I consent to the control of physically distressing symptoms…by appropriate and aggressive palliative care even if such care is likely to have the effect of shortening my life ….

That document proved to be very important, and I hope that this case will highlight how important such documents can be in protecting your wishes – amongst other things, it ensured that Manuela’s desire that her name should be published if she ever came before the Court of Protection meant that I can name her, and gives a much greater chance that the mainstream press will follow her story.

On the issue of capacity, the Judge found that Manuela, did, as a result of her dementia lack capacity to make decisions for herself about where she should live

Effect of this dementia on MS’s capacity to make the relevant decisions

Ms S is intelligent, articulate and knowledgeable. She has no difficulties expressing herself. That her core personality is intact is clearly demonstrated by her continuing and passionate commitment to the causes to which she has dedicated her life. Her weight is healthy, physically she looks many years younger and fitter than her chronological age, she presents well and her care is good. There are, therefore, currently no signs of neglect or refusal of care.

Unfortunately, this is not the whole picture. Her short-term memory is very severely impaired. Because she is so intelligent and articulate, this may not be immediately apparent from a brief superficial exchange.

Following an examination on 2 December 2013, Dr Barker reported that her short-term memory is less than one minute. It is this inability to retain information which lies at the root of many of her recent difficulties. The consequence is that she is unable to retain, nor therefore weigh, information (highly) relevant to the decisions about the treatment, care and support she requires.

In particular, she cannot recall the circumstances and behaviour that caused others to remove her from her own home to hospital and to transfer her to residential care. Lacking this information, she does not accept that she had significant problems at home, nor therefore that she requires a significant package of care and support. Nor can she appreciate that, without additional care, it is likely that the problems will be the same as before, because the situation is the same as before. It is recorded that she has a tendency to become defiant when these issues are raised. This is logical and understandable because, unless one has a memory of the previous difficulties, the professional view must appear patronising and intrusive, and the problems made-up or grossly exaggerated.

Sadly, the preponderance of the evidence requires a conclusion that MS lacks capacity to make the relevant decisions for herself. She frequently asks, ‘Why am I here’ because she cannot remember how her situation has arisen, nor therefore understand and weigh the reasonably foreseeable consequences of accepting or refusing necessary care or support.

To summarise, I accept the professional and family view that she lacks the capacity to make these decisions for herself because her dementia has affected her ability to understand, retain and weigh the relevant information. It is more than simply an unwise decision that she chooses to make, if free to do so.

I admire District Judge Eldergill immensely for being honest about the dilemma before the Court – there was no solution that would keep Manuela Skyes HAPPY AND SAFE – there was a choice to be made between the two.

Having summarised the legal framework, I must consider MS’s best interests in the context of it.

There is, of course, no solution.

In the suggested care settings the situation will be less than optimal.

None of the options canvassed with the court will provide Ms S with security, safety, liberty, happiness, an absence of suffering and an unrestricted home life. These different considerations cannot all be reconciled and promoted within a single setting, and the realisation of some of them must inevitably involve the sacrifice of others. The task is to choose which of these legitimate values and aims to compromise and which to give expression to, in her best interests.

The Judge addressed how Manuela Sykes expressed wishes fed into the best interests decision – underlining is mine – expect to see this quoted fairly often

S’s wishes and feelings are important factors to be taken into account when reaching my decision: after all, why would anyone wish someone to be cared for otherwise than in accordance with their wishes if they can be adequately cared for in accordance with their wishes?

In taking her wishes and feelings into account, I have considered the case of ITW v Z, [19] the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court’s overall assessment of her best interests.

I have noted the consistency of her wishes and feelings; the effect on her mental health, happiness and well-being of the continued loss of her home; her attitude towards institutional life and the importance to her of her freedom. She values her privacy and the sense of security at home.

MS is still able to appreciate and express the value of being at liberty and being allowed autonomy. [20] The importance of individual liberty is of the same fundamental importance to incapacitated people who still have clear wishes and preferences about where and how they live as it is for those who remain able to make capacitous decisions. This desire to determine one’s own interests is common to almost all human beings. Society is made up of individuals, and each individual wills certain ends for themselves and their loved ones, and not others, and has distinctive feelings, personal goals, traits, habits and experiences. Because this is so, most individuals wish to determine and develop their own interests and course in life, and their happiness often depends on this. The existence of a private sphere of action, free from public coercion or restraint, is indispensable to that independence which everyone needs to develop their individuality, even where their individuality is diminished, but not extinguished, by illness. It is for this reason that people place such weight on their liberty and right to choose.

Any written statements made by her when she had capacity

Ms S’s living Will and the guidance in her Lasting Power of Attorney are written statements which I have considered and taken into account. They indicate a wish to remain in her own property for as long as ‘feasible’ and in general that she prioritises quality of life over the prolongation of life (see §5).

Relevant beliefs and values

The law requires objective analysis of a subject not an object.

Ms S is the subject.

Therefore, it is her welfare in the context of her wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests. In this important sense, the judge no less than the local authority is her servant, not her master.

Applauds

The available evidence indicates that Ms S’s relevant beliefs and values include a very strong belief in and commitment to the value of open public debate and social services for those who need them.

She has unambiguous opinions about what is right and what is wrong, and has spent much of her life airing those opinions. It seems plain that it is fundamental to her nature and purpose in life that she is free to air and promote her political and personal values through discussion, marches, rallies, newspapers, campaigning and other forms of political activity.

She has a strong will to change the world, to influence others and to draw their attention to the plight of those she believes need and deserve more care, such as the homeless and people experiencing dementia. She also has a strong desire to promote the interests of those she believes are politically disadvantaged: women as compared with men; the homeless compared to those with homes; the older and more frail compared with the younger and fitter; and, to use her term, the ‘double whammy’ disadvantage of older women.

These political and personal values have a religious element, evident from her expressed religious beliefs and attendance at church services and Quaker meetings.

One thing she seems never to have lacked is courage and a willingness to place herself at the centre of public debate and attention. She stood in two Parliamentary by-elections and campaigned to have Buckingham Palace rated. Indeed, the impression is that she relishes being at the centre of public events because it means that she is exerting influence; is being heard; is affecting the outcome of social issues important to her.

All of this is highly relevant when it comes not only to the court’s decision concerning her care package but also, and perhaps even more so, the decision whether she should remain anonymous or be identified as the person at the heart of her case. What she has done with her life indicates that she has always wanted to be ‘someone’, to have influence.

Realistically, this is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country’s political scene and, locally, the workings and deliberations of the council and social services committee which she sat on.

On a personal level, her strong sense of self, her belief in the importance of the individual, her desire for freedom and autonomy are magnetic factors, operating at positive and negative poles by providing both the pull of freedom and the counterforce of resistance to outside care.

It is undoubtedly hyperbole to suggest that Manuela Sykes is the Rosa Parks of dementia, but what the hell – that is how I feel about her at this moment.

It is my view that it is in Ms S’s best interests to attempt a one-month trial of home-based care.

Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed.

The judgment was published, and Manuela’s name not anonymised – in accordance with what she had asked for. The Judge does make this very good observation about “secret Courts” though, and I think it has wider application

Under the Court of Protection Rules 2007, the general rule is that a hearing is to be held in private.

This reflects the personal, private, nature of the information which the court is usually considering.

That is not the same as being secretive; a GP is not a ‘secret doctor’ because the press have no unqualified right to be present during patient consultations or to report what is said. All citizens have a right to expect that information about them will be held in confidence by their doctors and social workers, and to expect that any overriding, future, need to breach this right will go no further than necessary, and only exceptionally involve seeing it in national newspapers.

Everyone benefits from, and enjoys, this level of privacy and therefore there is a strong public interest in privacy. Not to allow an incapacitated person the same general right to privacy or confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.

The one, highly important, difference is that whilst in an ideal world incapacitated people would have exactly the same right to privacy and confidentiality that the rest of us enjoy, when judges make decisions for them this brings into play the competing consideration that the public ought to know how courts of law function and administer justice: what kinds of decisions they are making, the quality of those decisions, and so forth.

While it is sometimes necessary to distinguish between ‘the public interest’ and ‘matters which the public finds interesting,’ there is a high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered.

[You don’t often get cases where everyone involved comes out of it well, but this is one]

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Blood transfusions, jehovah’s witness and court of protection

Posted on February 27, 2014 by suesspiciousminds

The decision of the Court of Protection in Newcastle Upon Tyne Hospitals Foundation Trust and LM

http://www.bailii.org/ew/cases/EWHC/COP/2014/454.html

Readers may be aware that followers of the Jehovah’s Witnesses faith are staunchly opposed to blood transfusions and will not accept them for themselves, even if that means losing their life. There has been quite a lot of litigation in the past about children whose parents have that faith, who require blood transfusions. A somewhat uneasy accommodation has been reached whereby the parent won’t agree but won’t stand in the way of the Court making an order that the child must have a blood transfusion.

An adult Jehovah’s Witness is legally entitled to refuse blood transfusion for themselves. It may seem silly and reckless to us, but it is a central part of their belief and faith, and they are entitled to make that decision for themselves.

That leaves one gray area – what happens where an adult Jehovah’s Witness lacks capacity and then needs a blood transfusion if they are to survive? What should the Court decide is in their best interests?

Not sure there’s a right answer here, and I expect it might cause some debate in the comments section.

On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah’s Witness. The application came into the urgent applications list at short notice. When it was made, the medical view was that LM might not survive for as long as a day in the absence of a blood transfusion and that even if one was given, she might still die. A decision had to be taken there and then. I took the view that it was not practicable or necessary for a litigation friend to be appointed.

In this case, the Judge made the following declaration

It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.

Sadly, LM died before judgment could be given

    1. This judgment concerns these questions:

 

    • Did LM (before she became unable to do so) have the capacity to make a decision to refuse a blood transfusion?
    • If so, did her decision apply to her later circumstances?
    • Alternatively, if the answer to either of the above questions was ‘no’, was the Trust’s proposal to withhold a transfusion in her best interests?

 

The Court heard from witnesses about LM’s capacity and her wishes and faith

    1. In this context, I heard from Mr R, who first met LM in 1975 and had known her ever since. He last saw her shortly before her admission. He brought letters from three other members of the congregation who knew her. Mr R described LM as a formerly active member of the congregation who fully subscribed to the tenets of the faith (including its opposition to blood transfusion) and had taught them to others, although she had become less engaged in recent years. Her beliefs on the question had been consistent. He says that if LM had been able to speak for herself she would have been distraught at the prospect of receiving a transfusion.

 

    1. Speaking on his own behalf, and expressing the united medical view, Dr C said that the evidence available to him suggested that during her time in hospital and up to 13 February LM had had capacity. There was no evidence that mental illness had interfered with her decision-making. He considered that her decision applied to her life-threatening situation, which was an unfortunate but natural progression from her underlying condition. He considered that her clearly stated views should be respected.

 

    1. Dr C said that the treating doctors intended to continue to withhold blood products, recognising that this compromised their ability to provide full care. LM would continue to receive full active medical care in all other respects in an attempt to bring her through until it became clear that all attempts were futile. At that point the team would act in her best interests as with any critically ill patient.

 

    1. The Trust’s submission was that LM had clearly made her wishes known even with knowledge of death. Alternatively, if it was a matter of best interests, the Trust did not wish to act against her wishes, being concerned to respect her individual dignity.

 

    1. Addressing the question of capacity, I find as follows:

 

1) Prior to the afternoon of 13 February, LM had the capacity to decide whether to accept or refuse a blood transfusion. There is no evidence that her underlying mental illness rendered her unable to make a decision (MCA s.2(1)). The presumption of capacity (s.1(2)) was not displaced and the criteria for capacity (s.3) were on the balance of probabilities met. I am satisfied that LM understood the nature, purpose and effects of the proposed treatment, including that refusal of a blood transfusion might have fatal consequences. 2) The decision taken by LM prior to her loss of capacity was applicable to her later more serious condition. There was no difference in kind and I am satisfied that she intended her decision to be effective in the circumstances that subsequently arose.

    1. In consequence, I find that LM made a decision that the doctors rightly considered must be respected.

 

    1. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. It is also of relevance that a transfusion might not have been effective to save her life.

 

  1. The right to life (Art. 2 ECHR) is fundamental but it is not absolute. There is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it   
  2.     The next issue was delicate and difficult – should there be a Reporting Restriction Order preventing LM’s real name being made public? All of the law on RROs relate to living persons and that made it uncertain as to whether an RRO could be made – the Judge took the pragmatic view that he would make the order and if anyone really wanted to litigate the issue then they could do so at a later stage
  3.  
  4.  
  5. The remainder of this judgment concerns an application for a Reporting Restriction Order made by the Trust on 24 February. At the hearing on 18 February I indicated that I would grant such an order subject to the proper procedures being followed, which eventually they were. I intended to formally make the order when handing down judgment on 26 February, but LM’s death intervened. Accordingly, I heard further submissions from Mr Speker and Mr Farmer about the appropriate course to take.
  6. The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death [1996] 1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court’s jurisdiction to restrict the reporting after a person’s death of information gathered during proceedings that took place during her lifetime.
  7. It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question. I will say no more than that for the present
  8. I make a Reporting Restriction Order preventing the naming of LM, and the medical and care staff who looked after her and the two Jehovah’s Witnesses who participated in the proceedings. It does not prevent the naming of the Trust or the hospital, nor discussion of the underlying issues or the court’s procedures. Anyone affected by the order may apply to vary or discharge it, whereupon its terms or existence will be looked at afresh.

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Incapacity cannot be deduced from isolated incidents of eccentric reasoning

Posted on February 27, 2014 by suesspiciousminds

The Court of Protection decision in Heart of England NHS Foundation Trust and JB 2014

http://www.bailii.org/ew/cases/EWHC/COP/2014/342.html

In this case, the Court of Protection, in the form of Mr Justice Peter Jackson, was faced with an application by the Hospital for a declaration that JB, who was not consenting to an amputation, lacked capacity to make that decision and that the surgery was in her best interests.

The case throws up some interesting issues, and I think it leads fairly neatly into my next piece, in suggesting that the Court of Protection may be moving away from a patrician “State knows best” view of cases towards a more “vulnerable people are owed some respect for their wishes and feelings” view.

You can’t really sum up the whole issue of capacity and declarations about capacity much better than the Judge does here – it is an excellent distillation of the balancing act that the Court has to perform

    1. The right to decide whether or not to consent to medical treatment is one of the most important rights guaranteed by law. Few decisions are as significant as the decision about whether to have major surgery. For the doctors, it can be difficult to know what recommendation to make. For the patient, the decision about whether to accept or reject medical advice involves weighing up the risks and benefits according to the patient’s own system of values against a background where diagnosis and prognosis are rarely certain, even for the doctors. Such decisions are intensely personal. They are taken in stressful circumstances. There are no right or wrong answers. The freedom to choose for oneself is a part of what it means to be a human being.

 

    1. For this reason, anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. In the absence of consent any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference.

 

    1. There are some who, as a result of an impairment or disturbance in the functioning of the mind or brain, lack the mental capacity to decide these things for themselves. For their sake, there is a system of legal protection, now codified in the Mental Capacity Act 2005. This empowers the Court of Protection to authorise actions that would be in the best interests of the incapacitated person.

 

    1. The Act contains a number of important general principles regarding capacity:

 

  • A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain: s.2(1).
  • A person must be assumed to have capacity unless it is established that he lacks capacity: s.1(2).
  • The question of whether a person lacks capacity must be decided on the balance of probabilities: s.2(4).
  • A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: s.1(3)
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision: s.1(4).
  • A lack of capacity cannot be established merely by reference to—

(a) a person’s age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity: s.2(3).

    1. These principles reflect the self-evident seriousness of interfering with another person’s freedom of action. Accordingly, interim measures aside, the power to intervene only arises after it is has been proved that the person concerned lacks capacity. We have no business to be interfering in any other circumstances. This is of particular importance to people with disadvantages or disabilities. The removal of such ability as they have to control their own lives may feel an even greater affront to them that to others who are more fortunate.

 

    1. Furthermore, the Act provides (s.1(6)) that even where a person lacks capacity, any interference with their rights and freedom of action must be the least restrictive possible: this acknowledges that people who lack capacity still have rights and that their freedom of action is as important to them as it is to anyone else.

 

  1. The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.

 

By way of background to this case

    1. It concerns a 62 year old lady named JB. In earlier life, before she became too unwell, she undertook responsible work. She now lives with her twin sister. She is described by her Community Psychiatric Nurse as a strong willed woman who before her latest illness was good at needlework and art, enjoyed reading, attended her local church and took a lot of interest in community events.

 

  1. JB has a number of mental and physical disabilities. In her 20s, she was diagnosed as suffering from paranoid schizophrenia for which she has received treatment of various kinds, including during several involuntary hospital admissions, the last being in 2005. Since then she has been subject to what is now known as a Community Treatment Order. She lacks insight into her mental illness but accepts antipsychotic medication to avoid being returned to hospital.
    1. On New Year’s Eve, JB, having been unwell for several days, was readmitted and has remained in hospital since then. Her right foot was now entirely mummified and by the end of January it had come off, leaving an unresolved wound. Once again, the advice of the surgeons was that an amputation was necessary to allow the wound to be closed and to prevent it becoming infected. JB continued to refuse consent for this on some occasions, though she expressed agreement on others. Indeed, on 4 February she signed a consent form. Once again, doubts were expressed about her capacity, with no clear conclusion being reached. An example is the report of Dr B, who assessed JB on 14 January and concluded that “I am of the opinion that one needs to be certain of her capacity to consent or refuse the proposed intervention… However one cannot say with certainty she lacks capacity.” It was again agreed that an application would be made to the Court of Protection.

 

    1. In the meantime, discussion was taking place between surgeons, physicians and consultants in rehabilitation as to the nature of the amputation that would be most appropriate. At different times, it has been suggested that there should be amputation below the knee, through the knee or above the knee. Each option has important consequences in relation to the process of rehabilitation and the possibility of the patient walking in future. At the outset of this hearing the Trust’s position was that a through-knee operation should be approved, but this then changed to a recommendation for a below-knee operation. It is to be noted that the consent form signed by JB only two days before the proceedings began had covered an above-knee operation. The relevance of all of this is that the attempts to assess her capacity have taken place against a background of shifting medical opinion.

 

  1. On 6 February, the Trust applied to the court for a declaration that JB lacks capacity to make a decision about serious medical treatment. It sought a declaration that it would be in her best interests to have a through-knee amputation and for her to be sedated if she resisted.

21. I turn to the question of whether JB has the capacity to decide whether or not to consent to amputation of her right leg. The Trust says that she does not, relying upon evidence given by Dr O. The Official Solicitor says that she does, relying upon the evidence of Dr Pravin Prabhakaran, consultant psychiatrist, and Mr Jack Collin, consultant surgeon. Each of these witnesses has assessed JB during the past week and gave evidence during the hearing.

 

The issue of capacity was a critical one – the Judge makes it manifestly plain – if a person has capacity to consent to surgery and understands the pros and cons and risks and benefits to make an informed choice then they also have the capacity to say no. The surgery could not be performed on JB if she had capacity, because she has the right to say no.  IF she lacked capacity, then the Court would still have to consider whether the surgery was in her best interests (which does not mean simply substituting what a rational person might do in her shoes, but a consideration of what is in HER best interests)

Frankly, if surgeons came to me and said that they couldn’t agree on whether to cut my leg off above the knee, below the knee or through the knee, I wouldn’t consent to an amputation – I’d tell them to go away and come back when they know between themselves which it was.

The Judge makes a very good point about the process of assessing a person’s capacity

What is required here is a broad, general understanding of the kind that is expected from the population at large. JB is not required to understand every last piece of information about her situation and her options: even her doctors would not make that claim. It must also be remembered that common strategies for dealing with unpalatable dilemmas – for example indecision, avoidance or vacillation – are not to be confused with incapacity. We should not ask more of people whose capacity is questioned than of those whose capacity is undoubted.

 

Absolutely. Anyone faced with that decision would have had some emotional reaction to it, and some changes of heart, some denial, some over-optimism, some hopelessness. It is not fair to set the test of capacity as though the person had to approach the decision as though they were Mr Spock, coolly and dispassionately considering the pros and cons.

On assessing the conflicting medical evidence about capacity, the Judge broadly considered that those who claimed she did not have capacity were placing too high a test on JB  (underlining mine)

    1. At the hearing evidence was taken from Dr O and Dr Prabhakaran via a telephone conference call (so that the latter heard the former’s evidence), and from Mr Collin in person.

 

    1. Dr O has been JB’s community psychiatrist since October 2013. She has seen her three times: October, January and 12 February. She advises that JB lacks insight into her mental state and does not believe that she has a mental illness. This is not uncommon with schizophrenia. Dr O believes that in relation to her physical health, JB can understand and retain some but not all of what is being said by the doctors, but that her ability to weigh the information is compromised by her tendency to minimise and disbelieve what the doctors are telling her. She conceded that JB’s approach was possibly a normal reaction but said that she is not convinced that she had actually weighed all the evidence that she had been given. Nonetheless, over time JB has shown more belief and greater engagement, telling Dr O that she is frightened of surgery.

 

    1. Dr O advises that schizophrenia can have an effect on cognition but she was not in fact able to give any clear instance of irrationality in JB’s current thinking. She went so far as to say that the rejection of a through-knee operation was evidence of incapacity, although by the time she gave evidence this had been dropped as a plan.

 

    1. I note that as recently as 16 January, Dr O and Dr B expressed themselves unable to reach a conclusion as to whether JB had capacity and that during her assessment on 12 February, Dr O obtained only limited co-operation from JB.

 

    1. Dr Prabhakaran assessed JB on 9 and 12 February. She was more communicative with him than with Dr O, possibly because she regarded him as someone who is not implicated in her Community Treatment Order. He confirms the diagnosis of schizophrenia and the absence of any psychotic features or depression. He says that he had a detailed discussion with her about the various forms of amputation. JB was able to understand the main benefits and risks associated with each procedure, including the risk of death. He found her consistent in her views and reasoning process. She was very well orientated and had no problem with understanding or retaining information.

 

    1. Dr Prabhakaran discussed the then proposed through-knee operation, saying that it was the doctors’ preferred option. JB replied: “It is not my preferred option… I have a horror of the whole thing”. She said that she wanted her leg to remain as long as possible and only wanted any necrotic part removed. If she was to have an operation she wanted a longer leg and a hope of walking. She does not want to live her life with a shorter leg.

 

    1. During this conversation, JB would often pause for a long time before answering. Dr Prabhakaran considered this an effect of her schizophrenia impacting on her cognitive functioning, possibly alongside tiredness and the hospital environment. He says that given time, she can process and communicate her clear wishes. He is confident that JB has capacity to make a decision with regard to surgery, including a decision not to have it.

 

    1. Mr Collin assessed JB from a surgical perspective on 13 February. His conversation with her gave him a full opportunity to assess her understanding, as would be normal in such a case. His report details a full conversation. JB was able to give him a lucid and coherent medical history. In Mr Collin’s experience, few patients would give a better account. She has a tendency to minimise, but this is a natural response and not evidence of any incapacity. Mr Collin is aware that JB is mentally ill but throughout the discussion she gave him no reason to suspect a lack of capacity to consent or withhold consent for any essential operation.

 

    1. Mr Collin explained that JB’s decision in October to refuse surgery was unusual but not illogical and that from the medical perspective the loss of the foot by natural processes had been satisfactory. Surgically, her position is better now than it had been in October in that she is not currently suffering from any infection. As matters now stand, it is Mr Collin’s opinion that a below-knee amputation is the only sensible clinical decision to make, but if JB does not want this there would be no compelling reason to seek to persuade her otherwise. A substantial risk of infection with possibly life-threatening consequences in the longer term undoubtedly exists and the medical advice from any surgeon in the land would be clear, but she does not have to take it. Apart from anything else, the greater short-term risks arise from remaining in hospital with the risk of infection and from the small but not insignificant possibility of a major adverse consequence from surgery of this kind.

 

    1. It was, perhaps surprisingly, suggested to Mr Collin that he lacked the expertise to assess capacity. He accepted that the assessment of mental illness was outside his remit but said that he was well qualified to assess the capacity of patients to consent to operations. I agree. All doctors and many non-medical professionals (for example, social workers and solicitors) have to assess capacity at one time or another. Bearing in mind JB’s longstanding mental illness it is entirely appropriate that the core assessment of her capacity comes from psychiatrists, but other disciplines also have an important contribution to make.

 

    1. The combined and complementary evidence of Dr Prabhakaran and Mr Collin provides powerful confirmation that JB has the ability to understand, retain and weigh and use the necessary information about the nature, purpose and effects of the proposed treatment. I accept the view of Dr Prabhakaran that JB’s schizophrenia is relevant to the way in which she decides, and not to her capacity to decide. Her tendency at times to be uncommunicative or avoidant and to minimise the risks of inaction are understandable human ways of dealing with her predicament and do not amount to incapacity.

 

    1. I depart from the assessment of Dr O because I am not satisfied that she establishes the necessary link between JB’s mental illness and the alleged incapacity. Further, her analysis demands more of JB than the law requires. It is not for JB to understand everything, or to prove anything. Dr O among others has perfectly properly raised questions about JB’s capacity, but her evidence does no more than that and does not discharge the burden upon the Trust.

 

  1. I do not accept the Trust’s submission that incapacity can be deduced from isolated instances of eccentric reasoning on the part of JB: for example, agreeing to intravenous antibiotics or blood transfusion but refusing the necessary cannulation. I also reject the submission that those who conclude that JB does not lack capacity have failed to grapple with the facts that (i) she undoubtedly lacks capacity in relation to treatment for her mental illness and (ii) she has lacked capacity in relation to surgical treatment in the past and (iii) she has changed her position from refusal of all surgery to a willingness to contemplate an operation of some kind, a situation calling for investigation. As to the first element, as has already been said, there is no necessary correlation between a lack of insight into schizophrenia and incapacity to decide about surgery. The second element begs the question, in that it has not been established that JB has ever lacked capacity to decide about surgery. Finally, the development in JB’s thinking about amputation was in my view well understood by Dr Prahakaran. Insofar as it calls for any explanation, her view has evolved over time in a way that is consistent with her mental state.

 

A particular issue arises, and is dealt with in paragraph 28 – there was a time in the process, when JB was accepting that surgery was the right option (i.e following the medical advice). There’s always a risk in these situations that one tends to assume that the person has capacity when they make a decision that the doctor supports – just because JB agreed with the doctor does not mean that she had capacity. If she had said no, on the same day, the temptation would have been to dispute that she had capacity to say no, but the test and principles are the same. The ability to say no doesn’t require more capacity than the ability to say yes.

 

28. A similar issue arises from the statement of Dr W, a vascular surgeon. In common with the other surgeons he believes that an amputation is in JB’s best interests. Writing on 5 February, he said “…we now have a window of opportunity as she has become cooperative with her medical management and has consented to the operation…” There is a danger that in a difficult case like this the patient is regarded as capable of making a decision that follows medical advice but incapable of making one that does not.

 

The conclusion therefore was that JB had capacity, and that there was no locus to make a declaration. It seemed that JB might be more willing to consent to the surgery, but that had to be her free choice.

My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her.

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And I ain’t talking ‘bout chicken and gravy

Posted on February 21, 2014 by suesspiciousminds

I’m afraid that I have to tackle the Court of Appeal decision in Re M (A Child) 2014, but it relates to Brussels II, article 15 and the Vienna Convention, and frankly it is hard for even me to have any enthusiasm for it

 So this is better – not sure who wrote this translation of a Human Rights blog article so that Snoop Doggy Dogg is the only person alive who could understand what is being said, but courtesy of John Bolch over at www.familylore.com   it did entertain me

 

http://www.gizoogle.net/index.php?search=http%3A%2F%2Fukhumanrightsblog.com%2F2012%2F11%2F21%2Fthe-bailii-lecture-no-judgment-no-justice%2F&se=Gizoogle+Dis+Shiznit

 

Sample :-

In relation ta tha straight-up original gangsta requirement, dat shiznit was blingin ta recognise dat tha hood was tha real crew: judgments had ta drop a rhyme ta tha public, as well as ta tha lawyers n’ litigants, n’ you can put dat on yo’ toast. They should therefore be sufficiently well freestyled ta enable reasonably intelligent non-lawyers ta KNOW what tha f**k tha case was about.

 

Quite so.  

 

Sigh, onto Re M

 This is the appeal from Mostyn J’s decision

 https://suesspiciousminds.com/2014/01/08/brussels-sprouts-ii-this-time-its-jurisdictional/

 in which, to be fair, he had clearly grasped that there were some wider public policy issues that were worthy of being looked at by the Court of Appeal, so gave a judgment which made it plain that he expected / indeed wanted to be appealed.

 

The issue that troubled him was the argument in the case that where one of the parents is from a European country that DOESN’T have non-consensual adoption, shouldn’t the presumption be that the case SHOULD be transferred to that country under Brussels II article 15. That’s what he went for in the end.  

[You can see some force in it, but the consequence of it is that you get a “Get out of Adoption free” card so long as one of the parents is from a country in the EC that isn’t Britain]

 You may also recall, that although this appeal was pending, the President got stuck into many of the Brussels II issues that Mostyn J had raised in Re M, and gave a judgment in a case called Re E

 

https://suesspiciousminds.com/2014/01/14/this-means-nothing-to-me-ahhhhh-vienna/

 

I speculated at the time that this was something of a pre-emptive strike to the Re M appeal, and I also speculated that (a) The President would find himself sitting on that appeal and (b) that the Court of Appeal would probably not stray far from Re E

 

Well, how wrong I was

 (Wait, no, I wasn’t)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/152.html

 The Court of Appeal’s panel of three Judges did include the President, and Re E was greatly preferred to Mostyn J’s decision in Re M

 

The Court of Appeal heard the argument that where a parent is from an EC country and adoption is an issue, there should be a presumption that the case SHOULD transfer to the country that DOESN’T countenance non consensual adoption.

 

They also heard the argument that the opposite presumption should apply, as only a Court that can hear and consider ALL of the options can do it properly.

 

The Court of Appeal, being no mugs, decided instead that there was no presumption either way and that BRII should be decided on the circumstances of the case and that the wording of article 15 needed no gloss or subtext

 

15.   ) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child’s nationality (see Art 15(3) (c))?

ii) Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

 

 

51. There is, in my judgment, no room for a “sub-text” in the interpretation of B2R, as the judge held at [29]. Still less is there any room for a sub-text that directly contradicts the basic policy of B2R as set out in recital (12). So the real question is whether the judge’s view that there was a sub-text of the kind that he identified vitiated his balancing exercise. It is difficult, in any event, to shake off the impression that the text of the judge’s judgment had its own sub-text, which he had articulated at [29]. But even allowing for the fact that he posed himself the right questions, I agree with Ryder LJ, for the reasons that he gives, that his answers were vitiated by his mistaken view of the underlying policy of B2R.

 

And 54

 

  1. The language of Article 15 is clear and simple. It requires no gloss. It is to be read without preconceptions or assumptions imported from our domestic law. In particular, and as this case demonstrates, it is unnecessary and potentially confusing to refer to the paramountcy of the child’s interests. Judges should focus on the language of Article 15: will a transfer be “in the best interests of the child”? That is the relevant question, and that is the question which the judge should ask himself.

v) In relation to the second and third questions there is one point to be added. In determining whether the other court is “better placed to hear the case” and whether, if it is, a transfer will be “in the best interests of the child”, it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other State. As Mostyn J correctly said, that is “territory into which I must not go.” I refer in this context, though without quotation, to what I said in Re E, paras [17]-[21].

vi) In particular, and in complete agreement with what Ryder LJ has said, I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, “what outcome to these proceedings will be in the best interests of the child?”

vii) Article 15 contemplates a relatively simple and straight forward process. Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of B2R and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process. Too ready a willingness on the part of the court to go into the full merits of the case can only be destructive of the system enshrined in B2R and lead to the protracted and costly battles over jurisdiction which it is the very purpose of B2R to avoid. Submissions should be measured in hours and not days. As Lady Hale observed in Re I in the passage already cited by Ryder LJ, the task for the judge under Article 15 “will not depend upon a profound investigation of the child’s situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum.”

 

 

Note the strong remarks made by each of the Judges about the need for the issue of which jurisdiction should properly hear the case to be fully considered at an early stage

 

 

47 Jurisdiction must be considered in every children case with an international element and at the earliest opportunity i.e. when the proceedings are issued and at the Case Management Hearing. 

 

 

And the President

 

  1. The ultimate outcome of this appeal should not be allowed to obscure the great importance of Article 15. In the nature of things one cannot be sure, but I have an uncomfortable feeling that Article 15 has hitherto played far too little part in the daily practice of our courts and that its great importance has not been as widely appreciated as it should be. I repeat what I said in Re E, paras [35]-[36]:

“It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

(i) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;

(ii) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital.”

I added: “Judges must be astute to raise these points even if they have been overlooked by the parties.”

  1. It is also vital, as this case has demonstrated, that the Article 15 issue is considered at the earliest opportunity, that is, as Ryder LJ has pointed out, when the proceedings are issued and at the Case Management Hearing. I agree with him that the Family Procedure Rules Committee should be invited as a matter of urgency to consider appropriate alterations to Practice Direction 12A to ensure that this happens in future

 

I’m not sure, if I read this judgment that it is sufficiently well freestyled ta enable reasonably intelligent non-lawyers ta KNOW what tha f**k tha case was about, but that’s no easy task, you get me?

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“Oh, I did, I did, I did, I did”

Posted on February 20, 2014 by suesspiciousminds

I may be reading too much of the Telegraph this week (I blame John Bolch at Family Lore, who I am sure is buying two bottles of Buxton water and getting a free copy of the telegraph from a well-known newsagent).

This one is about a Supreme Court judge, Lord Wilson, giving a speech in Belfast, which included his comments that gay marriage and divorce and mixing of nuclear families post separation might not be a bad thing.  In the world of the Telegraph, this sort of thing is ‘controversial’

 http://www.telegraph.co.uk/news/religion/10649774/Decline-of-nuclear-family-may-have-benefits-says-judge.html 

 

Anyway, that’s not the bit that struck me, it was this bit

 

Lord Wilson also pointed out that Australia allows a woman to wed her uncle, and France permits about 20 posthumous marriages to take place a year, if the surviving member of the couple can prove they were genuinely engaged.

 

That was actually news to me, and on doing a bit of digging (sorry, probably poor choice of word) I find that it is true.

You really can apply in France, if you have good evidence that a person who has died did intend to marry you, for a posthumous marriage. It doesn’t change any financial matters or inheritance (so you can’t wait until Rupert Murdoch dies, and then agree to marry him for the loot)

At the ceremony, the deceased is represented by a photograph, and rather than the bride/groom saying  “I do” they say “I did”   – the wording also misses out, for obvious reasons the “till death us do part” bit.

 It happened after a dam broke and killed a woman’s fiance and she wrote to the President to ask him to allow the marriage to happen anyway. He allowed it and the law was later changed to permit it. Lord Wilson does seem right that about 20 happen per year. [In my researches, I haven’t come across any MEN who have asked to marry their dead fiancee, only the other way around]

[Perhaps it is because I am in my own first month of marriage that I think this is rather sweet rather than freakish and morbid.  ]

 

Anyway, that tied in to something I read about a long time ago, and have been waiting for an opportunity to crowbar in, which is the trial of Pope Formosus.

Pope Formosus was Pope for just five years, 891 to 896. His reign as Pope was quite troubled and controversial. That would explain why he was put on trial.  One of his crimes was trying to escape the Vatican and escape being Pope  (which is described as “Conspiring to destroy the papal See”  – or if you are our last Pope, “resigning”)

 

What is slightly harder to explain is why his trial was two years after he died, in what is called the Cadaver Synod.

 

His successor, Pope Steven VI, had Formosus dug up, dressed in robes, sat on a chair and made him undergo a posthumous trial as the defendant. Steven served as prosecutor and Judge.  During the trial, a Deacon (appointed by Steven) answered all of the questions on behalf of Formosus.

 

I suspect that these answers were more on the lines of cringing admissions rather than spirited rebuttals.  Unsurprisingly, Formosus didn’t beat the rap, and as punishment, all of his papal orders were set aside, three of his fingers cut off and he was then thrown in a river. He was later fished out and buried.

 

There is a story, although this is disputed, that a later Pope, Sergius III was so taken with this that he also dug up poor Formosus again, put him on trial again and this time beheaded him.

 

Clearly in the “Big Book of Rainy Day Vatican City Games”,  there was a purple bookmark on the page “digging up previous Popes and putting them on trial for a laugh”

 

Under Stephen VI, the successor of Boniface, Emperor Lambert and Agiltrude recovered their authority in Rome at the beginning of 897, having renounced their claims to the greater part of Upper and Central Italy. Agiltrude being determined to wreak vengeance on her opponent even after his death, Stephen VI lent himself to the revolting scene of sitting in judgment on his predecessor, Formosus. At the synod convened for that purpose, he occupied the chair; the corpse, clad in papal vestments, was withdrawn from the sarcophagus and seated on a throne; close by stood a deacon to answer in its name, all the old charges formulated against Formosus under John VIII being revived. The decision was that the deceased had been unworthy of the pontificate, which he could not have validly received since he was bishop of another see. All his measures and acts were annulled, and all the orders conferred by him were declared invalid. The papal vestments were torn from his body; the three fingers which the dead pope had used in consecrations were severed from his right hand; the corpse was cast into a grave in the cemetery for strangers, to be removed after a few days and consigned to the Tiber

 

Catholic Encyclopaedia Chapter 13

 

This also reminds me that in my recent research into trial by ordeal (don’t ask) – whilst most of the ordeals were pretty grim (carry a red hot bar of iron for twenty paces, plunge your hand into scalding water for a minute  – if you don’t scar on either of those you are innocent) there’s one that was “Trial by Ingestion” just put the communion wafer [or dry bread and cheese] in your mouth and then eat it without choking. That seems to me to be the one I would have been advising clients to take. 

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Donating your… ahem… time

Posted on February 20, 2014 by suesspiciousminds

 

The High Court have recently dealt with another case (there have been a lot, relatively speaking) where a man (DB) fathered a child for two women in a relationship and later wanted to have more contact than the two mothers had in mind.

 One of the contested issues in the case was whether the man had (as he said) offered to father a child to be raised by the two women but play a part in the child’s life, or whether (as both of the mothers  said) he was basically being asked for nothing but his biological contribution.

 It was common ground that the child had been conceived in the usual way, rather than by artificial insemination, the argument was about whether the common understanding was that this was where DB’s role ended.

 

Re SAB (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/384.html

 

One of the big lessons from this (as indeed from most of the previous cases about this sort of situation) is that if you are embarking on a plan of conception that is something out of the ordinary, firstly make sure that all of the adults involved have exactly the same understanding and thoughts about what is intended, and secondly get something down on paper that reflects that.

 

This case was complicated further by the fact that the father DB, and the biological mother AB, had previously had a romantic and sexual relationship, which was over by the time of the conception of the child.

 

The tension that this must have brought to bear on the whole dynamic probably wasn’t helped when DB engaged in some ‘sexting’ and sent a photograph of his  [Menswear Department]  in a mobile phone text. This text and image ended up being received by AB. 

 

DB said later that it was meant to go to an entirely different woman, hopefully one who was a willing or keen recipient of such image. In fact, he had never sent it to AB and wasn’t sure how it had ever reached her.

 

One can appreciate how AB, and the other mother CB might have misconstrued his intentions there.  The Court accepted that this was entirely an accident and not an attempt to rekindle his relationship with AB or cause tension between her and her partner CB.

 

In any event, what happened was that from going from a voluntary arrangement whereby the father was seeing his child in the first year, contact was completely ended, and the Court needed to become involved.

 

The tensions, already high, were not helped by a long paragraph in a statement filed by the father   – this, whatever it was, ramped up the temperature so much that it led AB to express the feeling that she hated him. 

 

19. Throughout this hearing, which has now spanned three days, I have, frankly, been puzzled as to the intensity of the opposition to contact now, when, until a year ago, it was happening relatively smoothly and given that it was accepted that DB had not, himself, sent or caused the obscene photograph to be sent. It was very difficult to discern any other clear explanation in the facts and circumstances of this case as to why attitudes now appear to be so entrenched

  1. I have read, of course, the third statement of DB, originally signed and dated in November 2013. That included at paragraph 9 a paragraph of some length, and I have been shocked at what DB thought it appropriate to state in that paragraph. Nothing, however, had been said about it throughout the first two and a half days of this hearing. Almost at the very end, whilst she was asking some questions of the child’s guardian, Mrs Susan Scott, this morning, AB referred to her “hatred” for DB. Apparently she had used the word “hatred” in some meeting or meetings with Mrs Scott, but it was certainly the first time a word of such intensity and violent emotion had been used within the courtroom. I enquired of AB why she felt such “hatred” and it emerged that it stemmed from what he had chosen to say in paragraph 9 of his first version of that statement.
  1. As a result, that statement has been edited so as to remove altogether the highly offensive parts of paragraph 9, and a fresh version, with a much shorter paragraph 9, has been signed by DB today, 23rd January 2014. All the copies in the courtroom of the earlier version with the longer paragraph 9 have all been returned to Mr Shelton, counsel for DB, who will ensure that they are totally destroyed. I am not going to make any reference whatsoever to the offensive parts of paragraph 9. But it tragically appears that AB expresses a feeling of hatred toward somebody for whom she previously felt friendship and affection, in considerable measure because of his foolish lack of judgment in saying such unnecessary, deeply offensive and highly intimate things. As I observed earlier this afternoon, however, it would be very wrong for decisions to be made affecting the entire childhood and, indeed, lifetime of this tiny, vulnerable child on the basis of one foolish misjudgment of that kind.

 

I rather like the pragmatic solution that the Judge hit upon for this. Rather akin to Basil Fawlty dealing with Bernard Cribbins’ flawed Spanish omelette  (“There, I’ve torn it up, you’ll never see it again”).  I think there’s a line in one of A P Herbert’s imaginary judgments about a judgment given by a High Court judge having been locked in a trunk, secured with chains and thrown into the depths of the ocean so that nobody need ever refer to it again.

 

As ever, the Bard puts it well

 

“I’ll break my staff. Bury it certain fathoms in the earth. And deeper than did ever plummet sound. I’ll drown my book”

 

[Although, hands up anyone who is NOT insanely curious about what was said in paragraph nine. The guess would be that rather than discussing the facts or issues or principles, he said something that was sticking the boot in and personal and offensive to AB. This is what lawyers sometimes call “playing the man and not the ball”  – a term borrowed from football, where the intention is not in a tackle to get the football but just to hurt the other person] 

 

On the whole discord about whether father was a “sperm donor who would walk away” or an intention to father a child and play some role in that child’s life, the Judge said this

 

  1. There is, of course, one major conflict of fact in this case, namely, whether or not it was agreed that the father would simply be a “sperm donor” and then “walk away” or whether, as the father says, there was a joint intention to conceive a child who, it was anticipated, would have some relationship with both his parents. I can only resolve that conflict on what lawyers call a balance of probability. I am not at all persuaded on a balance of probability that DB did agree, as is alleged, that he would merely be a sperm donor. That does not seem to me to fit either his personality or his personal history. As I have said, his situation was that it had been a source of sadness and regret to him that he had been unable to have a child or children throughout a marriage of some length due to infertility on the part of his wife. It was also a source of the utmost regret and guilt to him that he had never had a proper relationship with his one daughter, L. It seems to me highly unlikely that he would have been willing on the one hand to father a child and on the other hand to completely “walk away”.
  1. Further, there are a number of facts in the case which do not seem consistent with the notion that, having had intercourse and conceived a child, he would then “walk away”. Indeed, it is agreed that in September 2011 he and the mother went on a camping weekend together in the Yorkshire Dales where the two of them shared a tent. They did not have sexual intercourse on that occasion but nevertheless the circumstances were obviously ones of some intimacy.
  1. As I have said, after the birth of S the father was permitted to see S quite regularly and amicably. So there was certainly no concept of “walking away” in play for an appreciable period of time after the birth of S. Further, in such texts as are available, nowhere is there an assertion that he had agreed to “walk away”. As I have already said, some of the texts are, indeed, quite affectionate; and even where the mother did ask for some time and space away from him, she did not put that in terms that he had agreed always simply to be a sperm donor and walk away.
  1. It may be that in this case there was, as so often in these sorts of situations, a lack of clarity and understanding between them. It may very well be that A and C, in the spring and early summer 2011, were looking for a mere “sperm donor” as RS might, indeed, have been. But I cannot accept that when DB had intercourse that night he had, himself, agreed that his role was simply to be that of a sperm donor.
  1. In any event, as authority of the Court of Appeal makes clear, even somebody who has agreed to be a mere “sperm donor”, unless anonymous, should not necessarily be excluded from the life of the resulting child. However, it is not necessary to wrap up my decision in this case by reference to authority. It is absolutely clear that cases of this kind are highly fact specific. It is absolutely clear that there is only one legal principle in play, namely, that the welfare of the child concerned must be the paramount consideration.

 

 

It is clear that feelings were running high on this one, and the Judge makes some very helpful remarks, applicable to other cases about what the role of the Court is in this regard.

 

  1. The principal reasons that A and C advance against any contact are these. First, A, in particular, clearly has a very strong view as to parental autonomy, and it is her view that she and C (who also has parental responsibility for S) alone know what is best for their child and that they, and they alone, should decide. Whilst I have some appreciation of that point of view, it is, of course, not the law, and it is precisely because an individual parent, or in this case two mothers, do not have that degree of autonomy that courts in the end do have to decide the outcome of cases such as this.
  1. Next, they stress that from the outset the agreement was that DB would simply be a sperm donor and walk away. I have already explained that I cannot accept that there was agreement to that effect. It may have been their hope and expectation, but it certainly was not that of DB.
  1. Next, A in particular refers to the intensity of her feelings now in relation to DB. As I have said, earlier today she used the word “hatred”, and her overall position is that it could not be in the best interests of S to be brought up in a situation of conflict between the adults.
  1. Allied to that is a similar, but discretely different, point, namely, that in any event she, or they, cannot bring themselves to promote the image of DB as the father and present him in a positive light.
  1. So their overall position is that this would simply be a situation of such stress and intensity of emotions that they would inevitably impact upon S and be damaging to him.
  1. I do, of course, appreciate and understand all those arguments. They are often deployed in situations where there is conflict and disagreement as to contact. But the argument and consideration the other way is the real benefits that S may gain throughout his childhood and, indeed, into his adult life from having proper knowledge of, and interaction with, and some relationship with his father.
  1. Of course, at this moment, when he is aged 20 months and a mere toddler, none of this is immediately apparent. No one could suggest that S is suffering at this moment from the absence of his father from his life. But it is in infancy that the seeds should be laid for slowly developing a relationship in the most natural of ways as the child grows up. The position of the mothers is that S can, of course, see his father when he is older if he wants to do so. But that would not happen in that spontaneous way, at any rate for many years, unless he has grown up with knowledge of, and some relationship with, his father.

 

 

The Judge opened his judgment with this, but I have moved it for my purposes to the end

 

  1. In a letter written as long ago as 23rd August 2013 the mothers forecast that:

“Unfortunately, it is becoming increasingly clear to ourselves that this awful situation will just have to play its course within the court system.”

 

That is what has happened and, despite repeated attempts and encouragement on my part and my affording ample time and opportunities in which to do so, the parties have, unfortunately, not been able to narrow their differences and agree an outcome. Nonetheless, it is very clear that the three adults involved in this case are all, if I may say so, very worthy, caring and decent people, and it is a matter of the utmost sadness that there is currently so great a rift between them.

 True enough. Sad when three decent people end up in such a  situation.

So, three golden lessons to avoid it happening to you / your client

 

  1. Make sure you are all on the same page, and have it written down, before embarking on an unorthodox conception

 

  1. When you write a statement and you play the man and not the ball, bear in mind that this might cause significant problems in due course, and if it has really inflamed things too much, an offer to remove the offensive remarks is not a bad idea. In fact, just don’t play the man and not the ball. It never works.

 

  1. If you think that hell hath no fury like a woman scorned, imagine taking two irate mothers on at once…

 

Get it in writing, always get it in writing.

 

Or as Sam Goldwyn didn’t say  “A verbal contract isn’t worth the paper it’s written on”

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After ten years of war, peace breaks out

Posted on February 18, 2014 by suesspiciousminds

The High Court decision in Re J and K (Children : Private Law) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/330.html

Another judgment from Pauffley J – not remarkable on the facts, nor indeed on the law, and I suspect it is one that might not have been published were it not for the transparency guidance. But it is another good judgment, and remarkable in that a set of private law litigation, which began in 2003 and involved 24 court hearings finally ended with agreement.

This opening is worth reading, for a start

This private law dispute demonstrates a number of phenomena. Firstly, that it is sometimes possible to achieve real and substantial progress as the result of the hearing itself. Secondly, that there can be incalculable benefits from the simple exercise of parents giving evidence and, just as importantly, listening to the evidence of others. Thirdly, that proceedings which begin in an atmosphere of adversity may swiftly evolve into an exercise in constructive collaboration. Fourthly, that protracted litigation over children is profoundly harmful to everyone concerned. And fifthly, that the involvement of skilled and insightful professionals – in this instance Miss Wiley, Ms Bushell and Mr Kirkwood – has immeasurable advantages in (a) achieving a better understanding of the genesis of past problems and (b) assisting parents to an infinitely more constructive way of working together for the benefit of their children.

The Judge tried, in this case, to understand, and describe why it was that two loving, caring and kind parents had ended up in a horribly conflicted and contentious bout of litigation that lasted so long. It is worth a read, if you advise parents in this position, or if you are finding yourself in this position. It is possible to get sucked into a fight that neither side really intended – there doesn’t have to be a good guy and a bad guy in family cases. Sometimes everyone is a decent person and a good parent, and a wrong turning just gets made and the case escalates into something nobody wanted.

Why did the problems arise?

    1. So why did things go so badly wrong for this couple such that there was serious and persistent disagreement even although there has never been a valid welfare argument against ongoing contact? Peeling away the layers of mistrust and antipathy has been both painful for the parents but also, I would say, illuminating. In addition, it has been, as Mr Kirkwood so rightly says, cathartic. And the best demonstration of that is the scene he witnessed at lunch time on Wednesday when all the family members were together in the coffee shop, standing around and chatting.

 

    1. To revert to the reasons for the difficulties, I would identify the following as having contributed to the atmosphere of hostility. The twins were alarmingly small when delivered – less than 3 lbs each – and had to stay in hospital for 8 weeks. Their mother had been ill herself in the period prior to their birth. Thereafter, the boys were not physically robust for a couple of years. The mother, entirely understandably, was intensely protective of them as was their closely involved maternal grandmother. It must have been a time of enormous stress and anxiety for the whole family, particularly the mother whose attachment to the babies, of necessity, was of the most concentrated kind.

 

    1. The father felt excluded to an extent though he would say he always did his best to support the mother and his children. During the twins’ first year, the long standing relationship between the parents ended. Doubtless there was disappointment and a sense of loss on both sides. Inevitably, the maternal grandmother would not have been inclined to give the father ‘a good press’ at that time or indeed in the years that followed. Clearly, she had views about his actions in the earliest months of the boys’ lives which were highly unflattering and, I would have to say, very hurtful to him.

 

    1. In the years that followed, the father’s applications to court – his efforts to ensure he played a proper fatherly role in the boys’ lives – were seen as “attacks” upon the mother. Doubtless she was strongly encouraged, by successive CAFCASS officers and judges, to play her part in ensuring the smooth progress of a developing contact routine. Her husband and the children’s father are very different individuals. By trying to do right by her husband, there must have been times when she did wrong by the children’s father. She was criticised for the way in which contact handovers were undertaken at the children’s schools. She complained to various bodies when she believed her behaviour had been wrongly reported as having been confrontational. When a suggestion was made by Cafcass that her actions may have had a psychological or psychiatric component requiring of expert advice, she responded defensively. There was, as it is all too easy to see now, a downward spiral of alarming dimensions.

 

    1. If there was one thing that the parents seemingly failed to do for all of the years they were in dispute, it was that they did not consider the impact upon the other – and the children themselves – of their actions. A prime example of that lack of empathy and its harmful impact was the regularly repeated performance at the children’s schools on a Friday afternoon when the handover was effected. It was easily done; and could, with the benefit of hindsight, have been so straightforwardly avoided as the mother conceded in evidence.

 

    1. For his part, I have no doubt but that the father had not considered the repercussions for the mother and her very respectable, well ordered and closely governed family of repeated court appearances. I am sure they became almost too much for her to bear; and the impact upon the children was a sense that their mother was under attack. They are and were both incredibly loyal to and, said the mother’s husband, fiercely protective of her. He could see though that the boys would have been far better off had they not been inappropriately exposed to the detail of the adults’ dispute.

 

  1. I am hopeful, very hopeful, that for the future similar mistakes will not be made; and that, as Ms Bushell suggested, the mother and her husband will be able to parent the boys authoritatively. There is very little which frightens children more than an absence of appropriate parental guidance and firm boundaries about the things in life which matter most.

I think that it is also worth drawing specific attention to the praise that the Judge gave to Ms Bushell, who acted as the McKenzie Friend for the father.  McKenzie Friends are a bit like Environment Ministers – you only usually know who they are when they are getting told off, but the reality is that 99% of the time they are silently getting on with it and doing very good work.  I have been lucky enough, in the writing of this blog, to come into contact with some very good and thoughful McKenzie Friends, and it is a role that requires all of the qualities praised here by the Judge.

So, it is nice to see a case that recognises that McKenzie Friends can be a powerful force for good and common sense.  (It is also worth noting that the mother’s counsel was acting pro bono – which is a way of masking by clever use of Latin to your clerks and bank manager that you are doing  work for free)

    1. The very last matter for comment is the extent to which each of the parents has been assisted by highly skilled, insightful and intuitive representatives.

 

    1. Ms Bushell has acted as the father’s McKenzie friend. Her background is in social work; her experience of the family justice system as a former guardian is extensive. I had no problem in agreeing that she should perform the role of speaking for the father, asking questions of him and on his behalf. Ms Bushell explained that the father is a shy man who would have encountered considerable difficulty if left to conduct the advocacy on his own. Having seen him give evidence, I agree wholeheartedly with that assessment. He is also, unsurprisingly given what he had lived through, extremely emotional, and would not have managed the advocacy task unaided.

 

    1. Miss Wiley is a member of the Bar with very considerable experience of high conflict private law disputes as well public law Children Act and inherent jurisdiction cases. She enjoys a reputation, deservedly, for diligence, economy, realism and innovative thought. She responded with immense generosity and in the very best traditions of the Bar when she accepted the invitation to act pro bono for the mother. Minor adjustments were made to the court’s sitting time on Wednesday to accommodate another one of her professional commitments in the High Court. Miss Wiley’s questions of her own client as well as of the father demonstrated just how well she understands the dynamics of a dispute of this kind. Her wisdom and emotional intelligence played a very large part in achieving so pleasing an outcome – not just as to the order itself but more importantly as to the shifts in attitude.

 

  1. Both parents were fortunate indeed for the professionalism and legal assistance provided by each of their ‘representatives.’ But of greater significance still, it seems to me, they were in the hands of individuals unafraid to show kindness, generosity and with a desire to help others.

 

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X-box mother – the judgment

Posted on February 18, 2014 by suesspiciousminds

 

You may have read about the children who in private law proceedings were taken away from their mother and placed with their father, the headline being that she was found to be too permissive, had spent too much time in bed and the children had spent too much time playing on their X-box. It was on Radio 5 this morning, in quite a balanced way, and in the Telegraph yesterday, here.

http://www.telegraph.co.uk/news/uknews/law-and-order/10643643/Mother-loses-custody-battle-over-permissive-parenting-style.html

You will see from that account that the children were removed from the mother because of her ‘permissive attitude towards parenting’ and because she was letting the children spend too much time playing on their X-boxes. To be fair to the Telegraph reporting, it  does quote quite a lot from the judgment AND bothers to ask a family lawyer to provide some context as to the circumstances in which the Courts change residence, so it isn’t actually a bad report of the case.  It  at least makes an effort to get some of the facts and to understand the principles. Not something that’s always true of press reports on family cases. cough.

 

But, if you believe that these children were taken away from mother and placed with father because she was a bit slack with discipline and let the children play on their X-boxes too much, well in the words of Ben Goldacre “I’m afraid you’ll find its a bit more complicated than that”

In these days of transparency, we can see the judgment itself, here

RS v SS 2013  http://www.bailii.org/ew/cases/EWHC/Fam/2013/B33.html

And again, to be fair to the press reports, there is mention in there of X-Boxes, but rather more in the context of the mother appearing to be depressed, of withdrawing from the care of the children and the children being left to their own devices (pardon the pun).   One of the things that you pick up is that even from the Judge’s conclusions and findings that are set out below, there’s far more content than could comfortably fit into a newspaper article, and it is not a great surprise that one or two elements of the raft of issues were the ones that were highlighted.  For reasons of space, and pace, and hooks and drama, newspaper reports of family Court decisions tend to be flattened out and compressed and you can form a different impression than when you read the whole case.  That’s not necessarily the fault of the reporters – even a short judgment is dense, packed with concepts and long. It is something that we are going to encounter more and more as more judgments get published, but at least now readers can actually turn to see for themselves what the Judge actually did. [The X-box paragraph is 107]

FINDINGS IN RELATION TO THE PARENTS

    1. As must be clear from some of the findings that I have rehearsed along the way in this judgment, I found the father to be an honest witness, and, where the parents’ evidence differed, I undoubtedly preferred his evidence to that of the mother. His frustration and distress at this long-standing situation were palpable during his oral evidence. He has been tenacious to the extent of being dogged in his pursuit of a relationship with his sons. I do not criticise him for his tenacity. Many fathers would have given up by now. He has, in my view, demonstrated far better insight into the needs of his teenage and pre-teenage boys, for example, around issues of guidance and boundaries, than the mother. Their parenting styles are very different. He is much more in favour of structure, boundaries and discipline, and I can understand why the boys might baulk at that, given what I consider to have been the very permissive atmosphere in which they have lived at home. He is totally committed to his sons. He has given his proposals a great deal of thought, and I was impressed with the breadth of the proposals and their depth. I was impressed with how he said he would deal with difficulties, for example, if either of the boys ran away. His analysis of what he saw facing the boys if they stayed with their mother was insightful.

 

    1. My only minor criticism of him – and I stress that it is minor – is that he may sometimes have handled situations somewhat maladroitly or clumsily in the past, for example the knocking repeatedly at the door. But he did, I stress, take advice when the Guardian spoke to him. I recognise also that he was between a rock and a hard place. On the one hand, his tenacity was alienating the boys further but, on the other hand, if he did not attend with the tenacity he did, no doubt it would have been represented to the boys by their mother that he did not care about them. I make a minor criticism that he turned up on 8th December with the whole family. My intention had been that it would just be him and his parents, so that he could have one-to-one time with his boys, but it is a minor criticism. As I have said, he has frequently been between a rock and a hard place and cannot do right whichever way he goes. The boys found it embarrassing his attending at their schools, but the court had endorsed that and, as I said, if he did not attend, he would be equally culpable in their eyes.

 

    1. So, overall, I consider that, as I have said, he has a good understanding of what these boys need and he is, in my judgment, up to the challenges that a change of residence would entail. I consider he has extensive support not only from his partner but also from the paternal extended family. I have no doubt that they will give him as much support as they can bring.

 

    1. I will turn now to my finding about the mother. I found the mother to be a very angry and wilful woman. Her hated of the father is almost pathological. In my judgment, this is likely to have its origins in the circumstances of the breakdown of their marriage: the father leaving when CD was but a few weeks’ old, and her belief that the father had already begun an affair with SB. That has been fuelled, in my judgment, by financial issues, in particular the mother’s assertion, which has not been tested in these proceedings, that the father walked away with all the funds obtained by re-mortgaging the marital home. In her oral evidence, she accused him of adultery and of fraud on her. The years have done nothing to abate this anger. I consider that the fact that the father has made a new life, when she does not appear to have really moved on, has further fired her up. She also asserts that he has years of unpaid maintenance and, again, this is simply an allegation which was not pursued in evidence. To cap it all, from her point of view, the father has now had the nerve to apply for a change of residence. So preoccupied is she with her own sense of grievance that she completely overlooks the effect of her behaviour on her children. In my judgment, she has prioritised her own needs and feelings at the expense of the needs of her children. That is not to say that she does not love her children, I have no doubt her does, although I find her love to have something of a possessive quality about it.

 

    1. A key example, a glaring example of her prioritising her own needs was the parents’ evening when her behaviour was petty, childish and petulant. She has done nothing to shield the children from the fallout, rather, the converse. She has consistently and repeatedly put them in the centre of this dispute and has used them, or their contact, as a weapon against the father. In my view, her anger is always ready to spill over into uncontrollable rage at the slightest perceived provocation. This was clearly demonstrated by the voicemails. I am quite satisfied that, contrary to her denials, there have been numerous occasions when the father has been exposed to outbursts like these. I reject her evidence that the children have not been exposed to such outbursts other than during the September 2012 phone call, which led to the child protection referral.

 

    1. In my judgment, she has either been untruthful in her evidence when she says that she has done everything to promote contact, or she is in denial about the concerns. Her evidence was characterised by denial and minimising, and she showed no insight into the harm she has caused the boys. Indeed, I found her complacent about the educational issues and that she minimised the concerns about lateness, homework and general progress. I agree with the Guardian that she has not got to the point where she can acknowledge that anything is wrong, and it is difficult to see, in those circumstances, how a change can be effected. It is sometimes referred to as the pre-contemplation stage of change.

 

    1. I consider it also to be quite likely that she may be depressed to a greater or lesser degree. I accept the evidence of AB, as related to CH, that she does spend hours under the duvet, on the phone or using her iPad, and that the children are left to their own devices. It also seems to me to be likely, from what the father and AB said, that they are spending a lot of time playing on their own on their Xboxes. I cannot imagine why AB would say such things to CH unless they were true, given his loyalty to his mother. As I said, they tie in with father’s perception of the situation. I consider, in fact, that it might have been very helpful to have had a psychological assessment of the mother. I agree entirely with the Guardian that the children have done what so frequently happens in such a dispute: to remove themselves from the conflict which is painful and distressing to them, they have firmly aligned themselves with one side, and that is always likely to be the primary carer who is providing for their day-to-day material and emotional needs, and rejected the other parent. This is their attempt at self-protection, and in that view I am at one with the Guardian.

 

    1. This is, however, in my view, a profoundly unhelpful coping mechanism from the point of view of their own emotional development. A child should not be forced to choose one parent over the other. Further, in my judgment, by all her sayings and doings, the mother has exhibited, with capital letters, her negative feelings for the father, which have been adopted wholesale by the children and particularly CD, who has not got the same pre-existing link with his father. The children have been wholly inappropriately drawn into the court proceedings. They have been allowed to read the report of BH, and their statements to BH and indeed to me make this absolutely clear. They talked to me about the meal with their father and the grandparents being a biased test and about seeing the grandparents as strengthening the father’s case. They talk in the language of court proceedings and tactics. I note that AB said to the Guardian: “He is tactically lying in court. Technically he is harassing us”. As I have said, it is quite plain that the mother has exposed to them to the details of the court proceedings. Because their information has come solely from her, they have a wholly distorted view of what is going on, and lay the blame at their father for their discomfort at having been involved in these proceedings for many months and having to be interviewed by different people. That is because, as I have said, they have been presented with a wholly distorted picture.

 

    1. The mother is a powerful personality. She presents as tough and somewhat arrogant. She seemed to me to show no regret for or insight into her behaviour in her evidence. Her expressions of regret, for example, for the voicemail messages and other incidents, referring to them as “not being an ideal situation”, I found to be half-hearted and unconvincing. I considered the regret related more to the fact that they showed her in a bad light. I agree that in her evidence she repeatedly sought to deflect the question, and at times was argumentative. At other times her evidence was self-justifying and minimising. There was not really a chink in the armour until she showed some signs of distress right at the end. Whether and how far her face to the world is a defence mechanism is hard to say. I consider another explanation for her behaviour may well also be her fear that she will lose her children, who are the central focus of her life. I note that in the father’s position statement, made in March of this year, he reports that AB said that his mother was apparently worried about losing them. I do not consider that she understands the importance of a relationship with both parents for a child’s healthy, emotional development.

 

    1. The mother has failed also, in my judgment, to meet the children’s needs in other important respects. She has, in my judgment, consistently failed to meet their educational needs and therefore risks compromising in particular AB’s educational prospects. It is likely that CD would be in the same situation as he grew older. I consider that she does have a very permissive style of parenting, and I accept the father’s evidence that she is more like a friend than a parent. I am satisfied that there is a failure to provide proper guidance and boundaries essential for the social and emotional development of these pre-adolescent and adolescent boys.

 

    1. Further, I have real concerns about her as a role model. I agree with the Guardian that she turns on anyone who challenges her or does not seem to agree with her. Examples are the Guardian herself and CH. She has effectively said that they are lying or have been lying. She was going to change AB’s school after the referral, despite his being settled at the school and it being a good school. I consider that these attitudes are picked up by the boys, especially AB. I consider that AB was reflecting the mother’s belief when he referred to CH as a liar when he saw me, and I find that their hostility to BH has been largely due to their following the example provided by the mother. I note her evidence that she did have the beginnings of a relationship with them when she first met them, but then the door was firmly closed. I find the mother allowed the boys to be profoundly disrespectful to both the father and BH when she did not take them to task for poking them both with the crutch from the cab in August of this year. On other occasions the father has reported the boys shouting abuse to him when he attended contact, and in April holding up a sign telling the father “I’ve told you a million times to fuck off. Go away you gay bastard”. This behaviour went unchecked by the mother. In fact, so far as the April incident is concerned, the mother was challenged by the father, and laughed. This lack of respect for the father and other adults is profoundly unhelpful to these boys, both now and in later life, for example, in a job situation or when they are in disagreement with anyone in authority. Further, the mother has no respect or regard for the father as a father.

 

    1. I am sad to come to the conclusion that I find on all these fronts this mother has significantly failed these boys. Their views across the board faithfully reflect hers. Their repeated complaints of being dragged through the courts by the father are a precise echo of the mother’s own words. Any decision I make has to have their welfare as my paramount concern, and I have to apply the welfare checklist set out in section 1(3) of the Children Act. I have to consider first of all, the boys’ wishes and feelings. In this regard I have been referred to some helpful case law as to how to approach children’s expressed wishes and feelings in a situation where there has been alienation. In particular I have been referred to the case of Re S [2010] EWHC 192, a decision of His Honour Judge Bellamy sitting as a Deputy High Court judge. In the headnote to the case at (2) it states:

 

“Section 1(3)(a) of the Children Act 1989 did not permit the court to pay no regard to the clearly and consistently expressed wishes and feelings of a child, but such wishes and feelings were to be assessed in the light of his age and understanding, in particular the impact of alienation upon the reliability of the child’s wishes and feelings, and some modest signs that his expressed views might not in fact reflect his true feelings were matters to be taken into account when assessing the weight to be attached to his expressed wishes and feelings.”

    1. At para.69 of the judgment, the learned judge said this:

 

“S’s wishes and feelings must be assessed in accordance with his age and understanding. It is here that the assessment becomes more difficult. I have found that S has become alienated from his father. S has said that his father is a ‘monster’ and that he ‘hates’ him. It is clear from Dr. W’s evidence that such behaviour fits within the pattern of behaviour of children who have become alienated from their non-resident parent. In his report of 18th July 2008 Dr. W was very clear. He said that

‘It is also important for both parents and for all professionals working with the child to recognise that the child’s expressed wishes and feelings are irrational and should form no part in the Court’s decision making.’

70. The law requires that the court should take account of S’s wishes and feelings. It would be wrong, therefore, for me to pay no regard at all to the views which S has so clearly and consistently expressed. The Act, UNCRC and case law all emphasise the importance of listening to and respecting the wishes of the child. As a general proposition I accept that the older the child the greater the respect that should be accorded to his or her wishes and feelings. As Butler-Sloss LJ said in re S… a case involving two children aged 13 and 11,

‘Nobody should dictate to children of this age, because one is dealing with their emotions, their lives and they are not packages to be moved around. They are people entitled to be treated with respect.’

I cannot and do not ignore S’s expressed wishes and feelings. However, in the light of Dr. W’s evidence, it would be equally inappropriate for me to proceed on the basis that those expressed wishes and feelings should necessarily be taken at face value. They need to be assessed in the light of S’s age and understanding. The impact of alienation upon the reliability of those wishes and feelings and the signs (albeit modest) that they may not in fact reflect his true feelings, are matters to be taken into account when assessing the weight to be attached to them.”

    1. That judgment was expressly approved in the more recent Court of Appeal decision of Re A [2013] EWCA (Civ) 1104. At para.68, Lord Justice McFarlane said this:

 

“The evaluation of the weight to be given to the expressed wishes and feelings of a teenage child in situations where the parent with care is intractably hostile to contact is obviously not a straightforward matter, no matter how consistently or firmly those wishes are expressed. In this context, the decision of HHJ Bellamy in Re S… provides a good illustration.”

    1. I take into account all those observations in my evaluation of the wishes and feelings of the children. I have very much at the forefront of my mind that I am dealing with two young men, aged 14 and 11 respectively. Their expressed wishes and feelings have consistently been not to see or have a relationship with their father. Indeed, as the Guardian says, their views appear to have hardened over time, and I note the penultimate report of the Guardian as to how AB referred to his father. I have to evaluate how reliable those expressed wishes and feelings are.

 

    1. It is a consistent theme throughout all the reports of BH and her predecessor from CAFCASS that the wishes and feelings expressed are a result of the mother’s negative influence and/or are derived from loyalties to the mother and from being provided with inappropriate and often misleading information about the court proceedings. For example, the boys blame their father for not being able to travel to Z last December. What they did not appreciate, as they only had their mother’s side, was the reason behind the court imposing the prohibition, namely the mother’s behaviour and her threats to remove them. The mother’s unhappiness at being, as she put it, dragged to court, has clearly been communicated to the boys, and they then express this as being the reason for their anger with the father. I have referred to the work done with the boys by the CAFCASS officer. Again, they could not appreciate that the reason for the repeated court hearings was the behaviour of their mother. They also referred to their father lying in court. Otherwise, it is a consistent theme that they could give no adequate reason why they did not want to see their father, and they would refer to historic incidents, which the father in any event denies, and which the Guardian concludes would not in any event lead them to have the apparent hatred that they have expressed of their father.

 

    1. AB sent his mother a long list of complaints about his father by an email sent at 3.22 in the morning on 16th August. He said it had been prepared some time before. I am unclear how that came about. What he said in the email to BH and to me was about the father being aggressive. In her statement, the mother said this referred to two incidents in contact going back to 2004 and 2005. AB refers to an incident in 2012 when the father allegedly dragged him on to an underground train, and he referred to lies being told to his school and Social Services. As I have said, CH told me exactly what AB said to her, leading to the social care referral. My concern is that both these boys have a distorted view of the reality. Some of the complaints they make, or AB makes in his email, such as hardly having any food and doing practically nothing at his father’s I simply do not accept. It is also a factor that these boys worry about the mother. They see the proceedings as causing her stress and, because they have been manipulated by the mother, they blame the father for this.

 

    1. In my judgment, their consistent expressed wishes and feelings are not reliable for a number of reasons. Firstly, because I accept the Guardian’s view that AB does not feel hate for his father inside. Glimpses of the real AB have been available during these proceedings at different stages. I note the evidence is that he relaxes once he has been with his father for a period of time. The wishes and feelings are not reliable for these reasons. Firstly, these boys have been manipulated by their mother and greatly influenced by her in their views of their father. Also they have aligned themselves with her in the mechanism I have described to protect themselves from the ongoing dispute. Further, they have a wholly distorted view of the reality of the situation because the information they have received has come from one source, their mother, and therefore, despite their ages, in particular the age of AB, I do not consider that their wishes and feelings are reliable. CD, who does not have the same attachment to his father, I consider is simply mirroring what his mother says about his father, and that this situation therefore is akin to the situation faced by His Honour Judge Bellamy in considering the wishes and feelings of the child in the case before him.

 

    1. I consider that if these children had emotional permission to have a relationship with their father, they would be able to do so, and that has been shown to a small degree by the fact that they have been able to have contact on these two occasions, albeit with some difficulties.

 

  1. Turning to the particular characteristics of these boys, I do not think either boy is a particularly happy boy. Of course in part that is due to the ongoing nature of these proceedings, but I consider it is due centrally to the parental conflict, where they find themselves as innocent parties in the middle. I consider that the boys are guarded. It is no coincidence that neither interacts with adults at the school. I find that they are both anxious about the mother’s reactions should they speak out of turn. I find it likely, for example, that AB said to his mother that CH upset him by talking to him in school to appease her and/or deflect her questioning, because CH’s view of it was that he seemed quite relieved to have someone to talk to.

 

You can see from that, that the initial impression you might have gained about the case – that mum was a bit lazy and let the children spend more time on their X-boxes than a middle-class parent might think was appropriate and that’s why the children were taken away from her and placed with dad – well, it was a bit more complicated than that.   [The extract above hasn’t even included the time the mother had the father arrested and detained for 18 hours because he knocked on her door]

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Another month, another faked pregnancy

Posted on February 18, 2014 by suesspiciousminds

This is, I think the third, possibly fourth, decision of the High Court  in the last two years involving “parents” who undertook fertility treatment in Nigeria, underwent some form of “labour” and returned to the UK with a child that was not biologically theirs.

London Borough of Hillingdon v AO 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/75.html

In this one, after the DNA test showed that the baby was not biologically related to either of them, the Lagos fertility clinic told the parents that the treatment process and herbal drinks would have altered the baby’s DNA… that wasn’t an explanation that the Court accepted.

In this case, as in Coleridge J’s case (but unlike Parker J’s case) the Judge accepted that the parents had been deceived by the clinic, rather than participants in a deliberate deception.

    1. In July also the parents co-operated with the request for DNA testing, which had they known for certain would have proved they were not A’s parents they may have resisted or prevaricated about.

 

    1. What is striking in their evidence is that the mother attended the surgery three times in March and April when she says she was 7 plus months pregnant and approaching her due date. If the mother had known that she was not in fact pregnant this was an extraordinary action, not just once but three times. It would have been very risky because a doctor may have wanted to examine her, and the truth would have been ascertained relatively easily and quickly, and had she refused an examination the doctors may well have been sufficiently concerned to raise child protection issues with the Local Authority. Had she known she was not pregnant it would have been more prudent to stay away and if necessary forego any maternity benefits or sick leave. Or, I ask myself did she go to see the doctors with a form of arrogance and bluster thinking she could bluff and delude them.

 

    1. I have seen both parents in Court over a number of days. They certainly do not give the appearance of people who can assert and bluster their way through difficult situations.

 

  1. In the end, having considered all the evidence before me and notwithstanding the inconsistencies in their account I am driven to conclude that in some way they allowed themselves to be duped by fraudsters. They so much wanted a baby. They come from Nigeria with the heritage of traditional herbal medicine, and allowed themselves to fall under the spell of the herbalists believing what was said to the mother, and acting faithfully upon the instructions given to them. Contrary to the submissions of the Local Authority and Guardian I do not find the parents were wilfully and knowingly involved with or parties to a wrongful removal of A from her mother, or that they cynically ‘bought’ a baby. Throughout this evidence the father referred to ‘a process’ they went through. I accept there was a process, a charade in which they were unknowing players, in which they were deceived.

If anyone who reads this blog does happen to be an investigative journalist OR knows one, there’s a good story here one way or the other.  Either some Nigerian fertility clinics are a cloak and cover for illicit child trafficking which is a conspiracy with people living in England (and America) who want children  OR they are deceiving and hoodwinking in an elaborate and interesting way people who desperately want to conceive children and taking money off them before passing off a stranger’s baby as their own.   {I actually genuinely believe that it is the latter, which makes it a really good subject for hidden camera investigation}

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“Wrapping a person in forensic cotton wool”

Posted on February 17, 2014 by suesspiciousminds

The Court of Appeal recently decided a particularly tricky legal point in  IM v LM 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/37.html

 

That point being, when it comes to issues of capacity to consent to sexual intercourse, is it “Act-Specific”  (as concluded in civil cases such as A Local Authority v TZ [2013] EWHC 2322 (COP))  or is it “person specific”  (as considered in the criminal case of R v Cooper  Regina v Cooper [2009] UKHL 42, [2009] 1 WLR 1786 ,  which was a House of Lords case)

 

That may seem a narrow distinction, so I’ll try to explain it.

 

In the civil cases (usually Court of Protection) the law has usually been expressed as being an act-specific test.

 

Does the person lack capacity and understanding, and the three things needed to be understood are :-

 

  1. The mechanics of the sex act
  2. The possible consequence of pregnancy (and how to avoid this)
  3. The possible consequence of sexually transmitted disease (and how to avoid this)

 [In the Court of Protection, where a person doesn’t understand this, they can be given education and help to see if they can develop that understanding, and it is only if that doesn’t work that a person should be declared as lacking capacity to consent to sex]

 

Whereas in the criminal courts, following R v Cooper, there has been the additional possibility that the person needed the ability to not only consent to sex generally, but to be able to weigh up the choice of having sex with this individual person, in this individual situation.

 

Cooper was a difficult case, and the facts were that  that a vulnerable person was taken to an unpleasant setting (a crack-den) and pressured into performing a sexual act.  She would have met capacity on the civil test (and thus there would have been no sexual offence in the act) but the House of Lords felt that she lacked capacity to say no, or express her resistance to the act in this specific situation and setting.

 

 

  1. The complainant, an emotionally unstable woman with schizo-affective disorder, low IQ and a history of harmful use of alcohol, left a community mental health team resource centre in a distressed and agitated state, met the defendant who offered to help her. He took her to a friend’s house, gave her crack cocaine and asked her to engage in sexual activity which she did. She later said that she had consented because she had been panicky and afraid; she had both stayed and submitted because she did not want to die.
  1. In relation to a charge of sexual touching of a person with mental disorder impeding choice contrary to s. 30 of the Sexual Offences Act 2003 (‘the 2003 Act’), the jury were directed that the complainant would have been unable to refuse sexual activity if she lacked the capacity to choose whether to agree to it for any reason, including an irrational fear or confusion of mind arising from mental disorder or if through her mental disorder she was unable to communicate such a choice to the defendant even though she was physically able to communicate. Quashing the conviction, the Court of Appeal (Criminal Division) agreed with the conclusion expressed by Munby J that a lack of capacity to choose to agree “cannot be person specific or, we would add, situation specific” and held that irrational fear which prevented the exercise of choice could not be equated with lack of capacity to choose and that inability to communicate referred to a physical inability.
  1. The House of Lords restored the conviction. The headnote summarises the decision in this way:

“[T]he words ‘or for any other reason’ in section 30(2)(a) of the 2003 Act encompassed a wide range of circumstances in which a person’s mental disorder might make her unable to make an autonomous choice whether to agree to sexual touching even though she might have sufficient understanding of the information relevant to making it; that those circumstances could include an irrational fear preventing the free exercise of choice; that incapacity to choose could be person- and situation-specific; that section 30(2)(b) of the 2003 Act referred to an inability to communicate choice which was the result of or associated with a disorder of the mind and its meaning was not limited to a physical inability to communicate; and that, accordingly, the judge’s directions on lack of capacity and inability to communicate would be upheld.”

 

 

 

 

[There’s a very very good piece by Lucy Series over at the Small Places law blog  http://thesmallplaces.blogspot.co.uk/2014/01/framing-test-of-capacity-to-consent-to.html#more   and Lucy highlights very well that the confusion about the tests, and where the duties of public authorities lay in preventing a person from being a victim of a criminal act of ‘sexual activity with a person with a mental disorder impeding choice’  – Sexual Offences Act 2003, can sometimes end up with a person’s rights and liberty being interfered with to prevent them becoming a victim of crime, often oppressively so.  Lucy also points out fairly that there are people with capacity who might struggle with some of those questions – after all, sexual health clinics dealing with STDs aren’t solely populated by persons lacking capacity.  One of the problems with having a judicial declaration that a person lacks capacity to consent to sex is that the Court cannot substitute its consent for the persons on a best interests decision – as can happen with other issues where a person lacks capacity to make an informed decision but is showing clearly what they WANT. So once you have that declaration, there is uncertainty as to what professionals working with the family should do? Is it sufficient that they warn those seeking to enter a relationship that the person lacks capacity to consent to sex? Or do they in effect have to chaperone and deny the person the opportunity to participate in sex that they can’t consent to? These are tricky ethical topics. Lucy’s piece is a very good way to get up to speed with these dilemmas and is thought-provoking as usual ]

 

 

Back to IM… the Court of Appeal were then wrestling with the issue of whether the test should be the same in both criminal and civil cases (and in fact whether the House of Lords decision in R v Cooper might be binding on civil cases) or whether there are advantages to the test being framed differently in civil cases.

 

One of the issues is that simply adding the ‘person specific’ element to Court of Protection cases would involve the Court of Protection having to look in detail at prospective future sexual partners, or perhaps cases coming back every time a person who had capacity issues formed a new friendship / relationship, which would be intrusive and cumbersome.

 

The Court of Appeal cited with considerable approval,  Hedley J’s decision in a Court of Protection case  (underlining mine)

 

  1. The short judgment of Hedley J in A NHS Trust v P [2013] EWHC 50 (COP) (which involved capacity to decide whether or not to continue with, or terminate, a pregnancy) is also worthy of note for its more general observations as to the proper limits of the Court of Protection’s jurisdiction (para. 10):

“Most importantly, the Act provides:

‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’

In the field of personal relationships that is a very important qualification to the powers of the court. The plain fact is that anyone who has sat in the Family jurisdiction for as long as I have, spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships. The intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.“

 

 

In short, that just because a person lacks capacity we should not as the Court of Protection presume to simply make flawless and logical decisions on their behalf – just as humans routinely make bad, emotional, or irrational decisions, so persons lacking capacity should not be wrapped up in cotton wool to rob them of these experiences.  There is a very real danger that the Court of Protection becomes too patrician and risk averse in making ‘best interests’ decisions. Sometimes it can be in a person’s best interests to make mistakes.

 

[Long-term readers of this blog may see echoes in Hedley J’s famous family law case

 

 Re L (Care threshold criteria) 2006  “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”     

 

Which I think is a principle long overdue in the Court of Protection, and I hope that having it cited here by the Court of Appeal might promote its widespread use in Court of Protection cases]

 

 What the Court of Appeal decided, eventually, was that both sets of Judges (Baroness Hale in the criminal arena, and the President (largely) in the  civil arena) were right. There are two different aspects being looked at, and it is right that there be two different tests.

 

  1. Having already laid the ground during our summary of the case law (in particular at paragraphs 41 to 44) it is not necessary to dwell unduly on this point in which, in our view, each of the judges, including Baroness Hale, was correctly stating the law. The reason why the words used are diametrically opposed to each other arises, in our view, from the two distinct and different contexts in which the respective judgments were given. We regard the passages that we have quoted from Mostyn J in D Borough Council v B and Hedley J in A Local Authority v H as being correct in drawing a distinction between the general capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the person-specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld which is the focus of the criminal law.
  1. Baroness Hale is plainly right that: ‘One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place’ [emphasis added]. The focus of the criminal law, in the context of sexual offences, will always be upon a particular specific past event with any issue relating to consent being evaluated in retrospect with respect to that singular event. But the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place.
  1. Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.

 

 

So, for the criminal offence, a person can lack capacity even if they understand the act, the issue of pregnancy and of STDs IF they lacked capacity for whatever reason to say yes or no to this specific person in these specific circumstances.

 

For the Court of Protection, however, when asked to make a declaration about a person’s capacity to consent to sex, one is simply looking at the person’s understanding of those three aspects  (the mechanics of the act, pregnancy and STDS) and not at the person they might be consenting to sex with.

 

The Court of Appeal then go on to say that although those three issues have to be capable of being understood by a person if they are to have capacity to consent to sex, there’s a danger in trying to suggest that a person who has vulnerabilities or capacity issues needs to conduct a sort of logical root-and-branch analysis of the pros and cons of saying yes to sex before their “yes” is good enough, and importing a requirement on them to undertake an exercise that doesn’t normally play that much of a role in agreeing to make love with someone.

 

[Hedley J’s forensic cotton wool comes back into play here]

 

  1. The requirement for a practical limit on what needs to be envisaged as “reasonably foreseeable consequences” derives not just from pragmatism but from the imperative that the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity. That process, as Ms Richards observes, is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis.
  1. It is for that reason also that the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations. It is not an irrelevant consideration; indeed (as we have emphasised) the statute mandates that it be taken into account, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity. That is the point which Munby J was seeking to make in MN at paragraph 84, which we have reproduced at paragraph 35 above. It is precisely this point at which Hedley J was driving in A NHS Trust v P when he observed that “the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do”.
  1. We agree. Perhaps yet another way of expressing the same point is to suggest that the information typically, and we stress typically, regarded by persons of full capacity as relevant to the decision whether to consent to sexual relations is relatively limited. The temptation to expand that field of information in an attempt to simulate more widely informed decision-making is likely to lead to what Bodey J rightly identified as both paternalism and a derogation from personal autonomy

 

 

 

This point is again stressed here

 

88. Mr Gordon also castigated as legally irrelevant to the question of capacity the judge’s observation that “The respect that a person with disabilities such as LM is entitled to must mean that she is given opportunities which may carry with them at least some levels of risk.” In our judgment the judge was there expressing in different language precisely the point espoused by Hedley J in A NHS Trust v P to the effect that the intention of the Act is to allow a protected person as far as possible to make the same mistakes as all other human beings are at liberty to make and not infrequently do.

It will be interesting to see how this develops – one possible reading of this case is that the very risk-averse approach of some local authorities to insulating a vulnerable person and curtailing their freedoms to prevent them being sexually taken advantage of might end up being toned down, and that the Court will view such things as being somewhat contrary to the Court of Appeal’s stance that vulnerable people must be allowed, as far as possible to make the same mistakes that all other human beings are free to make.

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