Author Archives: suesspiciousminds

Re B-S can itself be the change of circumstances

Posted on February 14, 2014 by suesspiciousminds

The Prospective Adopters v London Borough of Croydon 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/331.html

In this case, the father was seeking leave to oppose an adoption order, that adoption arising from a Placement Order made on February 2012, in relation to proceedings that have now been going on for five years. There have been unsuccessful appeals to the Court of Appeal and the Supreme Court. The father has lodged an ECHR claim, and that has not yet received any date or directions.

It is not altogether surprising that the leave to oppose application found its way up to the High Court, given that history of litigation.

Here are the five points on which the father based his claim of a change of circumstances (that being the first limb to meet the statutory test to oppose adoption – the second being in effect a balancing of the solidity of the case against the impact on the child of reopening the case)

a) The effect of Re B and Re B-S;

(b) The alleged cancellation of one or possibly two periods of contact in June 2013;

(c) Improvements in the health and development of the subject child; and

(d) The pending application in the ECHR.

(e) The paternal grandmother obtaining her leave to remain in the UK

The High Court (corrected from earlier error) had little difficulty in rejecting (b), (c) (d) and (e) as not being changes in circumstances since the Placement Order was made and thus not meeting the first limb of the test.

First, it cannot possibly be said that the cancelling of one or possibly two periods of contact in June 2013 gets close to a change of circumstances. There was a genuine mistake made by a social worker and there was an offer to make up the lost contact. The argument was modified by Mr Macdonald in submissions to be based on the fact that the Applicants had previously supported twelve periods of contact between N and her Father after adoption but were now saying there should be only four. This has just as little merit. The Judge had considered this in detail in his judgment and had preferred the Local Authority position which was for four periods of contact, rather than that of the Guardian (or even the Applicants) for more. He approved the Care Plan which provided for four contact visits, so there has been absolutely no change in circumstances.

Second, it is alleged that there have been improvements in the health and development of N. The only relevance of this, in my view, would be if it meant that she was going to be able to be independent by the time she attained her majority rather than remaining dependent on the Applicants.

Whilst it is quite clear that there have been improvements in her physical condition and, in particular, in relation to the tracheotomy, it is clear that she remains a very disabled child. I have a medical report from Dr O, a Consultant Community Paediatrician dated 21^st January 2014 which makes it clear that N has cerebral palsy (spastic diplegia); autism (diagnosed since the hearings before HHJ Atkins); and global development delay as well as speech and language delay. She is inattentive and impulsive. She is likely to have significant and complex communication needs. It is right that Dr O has not seen N recently. At the PTR, I gave permission for the doctor to be asked three follow up questions. I do not have the answers to hand as yet but it is clear to me that there has been no significant change of circumstances in this area.

The third alleged change of circumstances is the application to the ECHR. I cannot see how this can be a change of circumstances, particularly where the ECHR has not accepted the case.

Fourthly, the Paternal Grandmother has, since the judgments of HHJ Atkins, been given permission to remain in this country, albeit initially for a two year period. It seems pretty clear that this will, in due course, be extended so as to enable her to become a British Citizen. Again, this is most certainly not a change of circumstances. The expert evidence before Judge Atkins considered this was the likely outcome, even if the reason seems to have been different to that postulated at the time. Moreover, the case against adoption was in part based on the possibility of the Father and Paternal Grandmother being removed from this country if the placement order was made. Although this argument was firmly rejected by the Judge, it is impossible to see how the favourable resolution of the Grandmother’s position can assist the Father in alleging a change of circumstances. It follows that this ground also fails.

That left the “The change in the law with Re B and Re B-S is in and of itself a change of circumstances” point.

It is, however, the final ground with which I have had the most trouble. It is argued that the effect of Re B and Re B-S invalidates the decision to make a placement order and is therefore a sufficient change of circumstances to warrant the Father being given permission to oppose the adoption.

I do not propose to deal with arcane arguments as to whether or not the Supreme Court and the Court of Appeal were merely stating the law as it has always been. The simple fact of the matter is that HHJ Atkins did not have the benefit of those judgments when he gave his judgments.

I have come to the conclusion that is impossible to say that Judge Atkins applied the test in Re B. In doing so, I am not being critical as he did not have that test available to him. It is though right that he did not find that adoption was “necessary” nor that “nothing else will do.” In fact, he found the opposite. He found that special guardianship was a “possible solution” albeit with disadvantages. He found adoption to be “the best solution” rather than the only solution.

It is, of course, quite possible that, if he had properly directed himself, he would have come to the same conclusion but he has not said that. Moreover, I take the view that it is impossible to come to that conclusion in the way that Black LJ was able to do in Re J.

I must consider the fact that both the Court of Appeal and the Supreme Court dismissed the Father’s appeals. It is, though, undoubtedly the case that the Court of Appeal did not dismiss the appeal on the basis that a proper construction of the judgment was that there had been a determination of the competing arguments between special guardianship and adoption. The judgment in the Court of Appeal is entirely based on the fact that the Judge had not been asked to perform this exercise. The subsequent cases have made it clear that he should have done so.

I have therefore come to the conclusion that there has been a change of circumstances in accordance with section 47(5)

That is a somewhat huge decision, suggesting as it does that a parent need make no actual changes themselves of any kind post the making of a Placement Order, but can rely on the legal requirements of a judgment having changed a YEAR after the judgment was delivered, to demonstrate a change in circumstances.

That also leaves individual cases poring over this decision and that in Re J (see below) trying to work out which of the two camps that particular case falls into.

In Re J (A Child) [2013] EWCA Civ 1685, Black LJ dealt with the approach to judgments given on the issue before publication of the decisions in Re B and Re B-S. She said:-

“I have already remarked that the judge’s judgment is short. It has to be borne in mind that the judge can hardly have been aware when he gave it of the intense focus that there would be this year on the form and content of judgments…However, although he kept the judgment short, the judge gave clear signposts to the evidence that supported his conclusions…it is not incumbent on a judge to replicate all the evidence in his judgment, provided that he identifies sufficiently the evidence he has accepted, what he takes from it and what findings he makes based upon it. In my view, this judge did that and, taken as a whole, his judgment clearly shows that he engaged with the essence of the case and directed his mind to, and answered the key questions. We can see from it why it was that he made the orders that he did.”

Okay, so father met the first limb of the test, but given how technical the limb was met, it can hardly have the requisite solidity to move forward to a contested adoption, can it? It absolutely can, and it does.

I must now turn to the second question, namely whether or not the Father has shown that his prospects of success are more than just fanciful but have solidity. I cannot say what conclusion I will come to when the arguments in favour and against adoption are correctly marshalled before me. I can, however, say that it is not inevitable that the end result will be adoption. It follows that I have concluded that the prospects of success are not fanciful and do have the required solidity.

My paramount concern is the welfare of N. Mr Main Thompson for the Local Authority rightly concedes that, given her disabilities, it will not adversely affect N’s welfare if I give permission so her welfare is not a ground for refusal.

I have been troubled about the position of the Applicants. I do not want them to suffer undue distress, which I accept could itself have a detrimental effect on N. In this regard, however, I am reassured by the evidence that was before HHJ Atkins. They were asked in writing as to their views and they said that their priority was to provide consistency and stability for N and that the type of order made by the court was, for them, less important than this. I recognise that they now seek an adoption order but it is not a case where N was placed with them solely on the basis of a placement order.

To reassure them further, I make it quite clear that there is no question whatsoever of N being removed from their care. The Father’s appeal against the final care order has been dismissed and he can have absolutely no complaint about that. He has been excluded as a carer and that will remain the position. The issue is solely between special guardianship and adoption. I make it equally clear that, by giving leave to oppose, I am not indicating that I favour special guardianship over adoption. I will decide on the evidence. I am merely saying that the Father is, on the authorities, entitled to have the matter heard and properly determined.

I therefore give the Father leave to oppose the adoption application. As I indicated at the beginning of this judgment, I am very troubled by the immense delay that has taken place in this case. I will hear the case with a two day time estimate commencing on 30^th April. It will not be adjourned. It will be reserved to me. The hearing will concentrate solely on the issues identified in Re B and Re B-S. I will not consider anything else. If there has to be oral evidence, it will be extremely strictly controlled.

The contested adoption hearing will not, therefore, be Adoption v return to father’s care, it will instead be Adoption v Special Guardianship Order to the people who wanted to adopt the child.

Perhaps it is just a pragmatic decision, on the facts of this individual case, but it muddies waters which were already far from pellucid.

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I’m off to a meeting with my social worker…at 3am..with all of my possessions

Posted on February 14, 2014 by suesspiciousminds

A committal hearing in relation to a grandfather

London Borough of Harrow v Afzal and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/303.html

I try to write on all committal hearings, not because each of them necessarily has a new key bit of law, but because I think that sending someone to prison for breaching a court order is a big deal, and that it is also important that people who might find themselves in this grandfather’s position can see what the consequences might be.

I try, when I can, not to argue in articles on committal whether the decision was right or wrong. I will leave that to others. The important thing, for me, is that people in this position know that breaching court orders can result in imprisonment, and that they make their decisions on an informed basis.

In this case, both parents had a long history of drug misuse, and the arrangement for the care of the baby was that the mother and baby would live at the home of the maternal grandparents, it being believed that the grandparents would act protectively and make sure that the baby was not exposed to harm.

On 16th January, the mother left the grandparents home. The father came to collect her in a car. The grandfather helped carry the baby buggy into the car. All of mother’s possessions were loaded into suitcases and taken in the car. This was all at 3.00am.

The grandfather’s evidence to the Court was that the mother had told him that she was going to a meeting with her social worker and that he had believed her.

The family Court made an order on 24th January 2014, containing these provisions :-

the grandparents should take all steps within their control to ensure that Farah is returned immediately to the jurisdiction of England and Wales.

Further, that they must immediately on service of this order provide to the London Borough of Harrow Social Services Department all information relating to the whereabouts of the child, Farah, which is presently within his or her knowledge or control. Further, during the period that this order remains in force, each of them must provide all information relating to the whereabouts of the child to the Local Authority where it comes into his or her possession and control after service of this order as soon as is practicable after receipt of the information

After that hearing evidence came to light that later that day 24th January, the grandfather sent money to his daughter, £500, to Barcelona in Spain. On 30th January, the grandmother sent a further £500 to her daughter in Barcelona.

The idea that this grandfather would be told by his daughter that they were visiting social workers at three o’clock in the morning is utterly absurd and totally incredible, and I conclude that the grandfather is lying. I asked him why, when given that alleged explanation, he did not ask his daughter why they were taking the baby with them at three o’clock in the morning. He could not answer, despite being given repeated opportunities to do so.

I have found the grandfather to lie on many material aspects. He claims not to recall, or be confused about, the events of 16 January and other occasions. Again, I do not believe him. I do not believe that this grandfather would not clearly remember the events of 16 January. Given my findings in respect of the grandfather and his evidence, I consider him to be a totally unreliable witness and to be a dishonest one. He has lied to me repeatedly on serious matters. I ask myself rhetorically: what reasons might he have for lying? There is, in my judgment, only one reason why he is lying, and that is to protect his daughter and to prevent their whereabouts being discovered and, most importantly of all, the baby, Farah, being returned to this jurisdiction. I am satisfied so that I am sure that the grandfather is lying. I am satisfied so that I am sure that he knows the location of the mother, the father and the child. I am satisfied so that I am sure that he is withholding highly material evidence from this court. Accordingly, I have not the slightest hesitation in finding him to be in contempt of court. That is my judgment.

The sentence for contempt was 28 days imprisonment, with an indication that the grandfather would be likely to serve 14 days.

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P-p-p pick up a penguin

Posted on February 14, 2014 by suesspiciousminds

I see a “Family Assistance Order” case flit across my screen, and have to look it up because they are orders that rarely involve case law, and there’s a lot of vagueness about them still.

Imagine my surprise when I see that this is a Falkland Islands case.

http://www.familylaw.co.uk/articles/family-assistance-order-re-c-family-assistance-order

In further surprise, there are a lot of similar terms in this case to ones used in the mainland (I wonder if, like the Isle of Man, the Falkland Islanders refer to themselves as the mainland, and the UK as “that island)

There are social workers, private fostering, guardians, wardship…

There are also criticisms by the Court of systemic failures in social work and legal practice and understanding. The more things change, the more they stay the same, eh?

I also find that this, according to Bailii *, is the second reported case ever from the Falklands, the last being 1864. That might explain why the social workers and lawyers were a bit rusty on their court skills. It also means that if you do happen to be a monthly subscriber to “Falkland Island Law Reports” you are about to get a bit of action. You probably forgot what that direct debit was for, after 150 years of silence.

I can’t wait to see the full judgment now, because I am (a) sad (b) easily pleased and (c) hoping that one of the anonymous referrers might be a penguin. “Place your right fin on this book and squawk after me…”

I do wonder how the whole President’s notion of transparency would work in the Falklands, where the population is just under 3,000 people. I imagine these people might be able to work out from the one published case every 150 years who it might be about.

I also want to know from the author of that article whether she just read this report online, or whether she flew out to Goose Green Magistrates Court to hear the historic moment for herself.

*Bailii might be wrong, and the Falkland Island courts may be a hotbed of activity, but it suits my purpose more to believe that they are right

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The war on cut and paste

Posted on February 13, 2014 by suesspiciousminds

If you have ever drafted Facts and Reasons for the Magistrate’s Court, or ever seen Facts and Reasons drafted by one of the parties, you are going to want to read this. Likewise if you are a Magistrate, or a legal advisor to magistrates.

In 2013, there was a civil case, in which the Judge lifted about 90% of his judgment from the written submissions of one party.

Crinion v. IG Markets [2013] EWCA (Civ) 587

http://www.bailii.org/ew/cases/EWCA/Civ/2013/587.html

In that case, the Court of Appeal felt that the Judge had (just barely) added enough of his own material to avoid the decision being overturned on appeal, but deprecated the practice [the extracts below are one from each of the Appeal Court judges, just to illustrate how much they didn’t like it]

Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgment of the latter’s arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys.

Information technology has made it seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done.

But we trust that no judge in any future case will lift so much of a claimant’s submissions into his own judgment as this judge has done and that, if substantial portions are to be lifted, it will be with proper acknowledgment and with a recitation of the defendant’s case together with a reasoned rejection of it. It is only in that way that unnecessary appeals can be avoided and the litigant be satisfied that he has received the justice that is his due.

Since that time, and certainly post Re B-S, I have been waiting for the Courts to rule on the widespread practice that one party (usually the applicant) is asked to draft Facts and Reasons (the equivalent in the Family Proceedings Court to a judgment) which the Magistrates then consider.

It didn’t seem to me a practice which could stand. Even where the practice is very transparent, with all parties seeing and having an input into the draft, and it being confined to agreed orders or orders that are “not opposed but not agreed”

[In case you think I am not being clear enough, I think it was WRONG that Magistrates Court asked Local Authorities to do this and I am GLAD that this High Court case below brings it to a stop]

The High Court looked at this issue in Re NL (A Child) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/270.html

In this case, the drafting of the Facts and Reasons was even more dubious, since it appears that the draft was sent by the Local Authority to the Legal Advisor and it wasn’t something where there was input or oversight by the other parties.

Compilation of the Justices’ Findings of Fact and Reasons

Lastly in relation to the way in which the proceedings were dealt with at the Family Proceedings Court, I should mention the manner in which the Justices’ Findings of Fact and Reasons were compiled.

The 1^st November draft within the appeal bundle caused me to question whether the local authority had been involved in its creation. Initially, I was told not. Later, and having taken more detailed instructions, Miss Watson explained that Counsel (other Counsel), rather than the Joint Legal Team, had drafted the entire document.

The draft was sent to the court, by email, at some stage prior to the hearing. It was made available to the parties’ legal representatives, in hard copy, outside court on the morning of 1^st November.

The mother’s Solicitor had “an inkling” the document may have been handed out at court by Counsel for the local authority. The mother’s legal team had no input into the draft.

Miss Watson has also discovered that on 1^st November at court, Counsel then instructed for the local authority amended the draft to reflect the parties’ positions and included reference to Dr van Rooyen’s report. The amended document was sent electronically to the legal adviser during the hearing and became the perfected ‘Facts and Reasons.’ I had assumed, wrongly, that such minor amendments as there were, had been made by or at the behest of the Justices.

It is suggested on behalf of the local authority and the children’s guardian that it would have been possible, in theory, for the mother’s legal team to have requested alterations to the document. In practice, I entertain doubts as to whether those who represent parents at interim care hearings would have the temerity or, indeed, any proper opportunity to undertake a significant re-draft on the day.

More generally, Miss Watson explained that the Family Proceedings Court expects the local authority to provide draft ‘Facts and Reasons’ for every public law hearing; and that where such a document has not been sent in advance, a request for its production will be made. Miss Watson described a customary practice of such documents being sent electronically; and thus, they may be easily adapted. Over the last 18 months or so, the local expectation – that such drafts will be provided – has become the norm.

The Family Proceedings Court, so I was informed, does not expect or require that such draft documents are circulated to the parties in advance of the hearing. Legal advisers do not routinely inquire as to whether the parties have received them before the hearing begins. According to Miss Watson, whilst local practitioners know about the court’s expectations, none of these practices “sits easily” with the Solicitor members of the Joint Legal Team.

Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country.

The first matter for emphasis is that every parent is entitled, pursuant to Article 6 of the European Convention on Human Rights to a fair trial.
Article 6.1 reads as follows – “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Seemingly, there were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.

Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587. As Sir Stephen Sedley observed,

“Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for … appearances matter.”

Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.

I am reassured that whatever has occurred in recent years, it has not always been the case that, nationwide, local authorities have been required to provide draft ‘Facts and Reasons’ documents. I know from past personal experience that diligent legal advisers have provided legal and sometimes proper secretarial assistance to Justices in formulating their Reasons. I have been present whilst such judgments have been compiled.

Whatever else, it should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.

The President of the Family Division, Munby P, has read and approved this section (paragraphs 57 – 71) of the judgment.

Just in case all of that was too long, let’s just look at paragraph 69

Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.

This judgment may also be of interest to professionals (and parents) for three other matters

The first is the rapid instruction of an expert (in this case it was Dr Celeste van Rooyen) who was asked by the Local Authority on 31^st October 2013 if she could prepare a report and the report was then provided by 5pm that same day, based on reading the papers and a telephone conversation between the expert and the social work manager – the case was in Court the next day. Underlining is mine for emphasis.

The ambit of Dr van Rooyen’s instruction

My reading of the papers prior to the hearing on 28^th January revealed causes for considerable anxiety as to whether there had been a fair and appropriate assessment exercise in relation to the mother’s abilities to look after NL.

The letter of instruction to Dr van Rooyen invited her to undertake “a triage psychological assessment in respect of (the mother) by reading the papers, liaising with the Practice Manager and liaising with [the resource] (as necessary) and report upon (her) findings.” She was asked, insofar as she was able, to provide her view in regards to (the mother’s) history of drug use, the current treatment she’s receiving and her prognosis for abstinence in the future.” The second question of Dr van Rooyen invited her commentary upon what (the mother) would need to demonstrate in order to care for NL long term and her progress in achieving these goals. She was also asked to comment upon further advisable treatment and likely timescales.

There was no suggestion that it might be necessary for Dr van Rooyen to meet with the mother in order to provide her report. The terms of the letter make clear that what was being requested was a paper assessment supplemented by a telephone discussion with the Practice Manager, [named]. The mother, I should say, has never met [the Practice Manager].

Although it had been thought, on the part of the local authority at least, that it might be advisable for Dr van Rooyen to discuss the case with [the resource], her report makes clear she did not avail herself of that opportunity. In evidence, she said, according to the note, “I hadn’t because of tight timetable.”

That last piece of information leads on to consideration of exactly how and within what period, Dr van Rooyen’s report came to be prepared. The letter of instruction is dated 31^st October 2013. In the section headed “Timetable,” it is recorded that the local authority’s lead Solicitor understands that Dr van Rooyen was “able to file (her) report by 5pm on Thursday 31^st October,” that same day. The first hearing in the Family Proceedings court was scheduled for 1^st November.

Dr van Rooyen’s involvement – fundamental flaws

I am gravely troubled by the speed, the manner and the ambit of Dr van Rooyen’s involvement. It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.

It surprises and alarms me that Dr van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. I struggle to understand how Dr van Rooyen’s apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the resource].

To my mind, it is quite simply unacceptable for an ‘independent’ expert to be instructed in the way Dr van Rooyen was – to conduct such a scant inquiry in preparation for a hearing which was to have such wide ranging consequences for the child.

The second is the High Court’s investigation into why that expert evidence was obtained in such a way, and the importance that 26 week deadlines don’t lead to unfair practices. “Justice must never be sacrificed on the altar of speed” [Hear, bloody hear]

Rationale for the instruction

The reason why the local authority acted as it did, requesting Dr van Rooyen’s assistance in preparation for the 1^st November hearing, may be associated with the family justice reforms and the impetus to complete public law cases within 26 weeks. I have not conducted any kind of inquiry into exactly why the instruction for a “Triage Assessment” occurred but gained the distinct impression that this case is not an isolated instance, rather that similar practices have been applied in other proceedings locally so as to assist in ensuring the case achieves a conclusion within its allotted timeframe.

Albeit in the context of care proceedings where the care plan is for adoption, the President has made it abundantly clear that justice must not be subverted by the requirement that public law cases be concluded within 26 weeks. In Re B-S (Children) [2013] EWCA Civ 1146 he said – “Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.”

More recently, in his ‘View from the President’s Chambers (7)’ entitled “The process of reform, changing cultures” the President reiterated that message saying, “We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy.”

My enduring anxiety in relation to this case is that in the frenzy of activity which preceded the first hearing in the Family Proceedings court, there was too much local authority emphasis upon securing an expert opinion to support removal from the mother and too little focus upon ensuring a just and fair assessment process. Justice must never be sacrificed upon the altar of speed.

Overall, having conducted an extensive review of what happened in the period between NL’s birth and 7^th November, I conclude that the mother and NL were unfairly treated; that the evidence justifying their separation was flawed; that the Justices’ decision to separate was wrong because NL’s immediate safety could have been secured by remaining with his mother at [the resource]; and that, accordingly, the interim care order predicated upon continued separation must be set aside.

The final point of interest is this

NL was exactly one week old at the time of the hearing. He had been with his mother throughout his time at hospital. The midwifery reports from [the hospital where he was born] were uniformly positive as to the way in which he was being cared for on all levels by her. The mother’s suggestion had been placement together at [the resource] where there is an abundantly safe and protective environment for a neonate. It has a deservedly high reputation – no one has suggested otherwise. As Dr van Rooyen said in evidence albeit on 7^th November, “[It] is excellent.”

The Justices’ first consideration should have been to keep NL together with his mother for the very short interval – 6 days – between the ‘holding’ and contested hearings. That should have been “the default setting”. Nothing within the papers, to my mind, justified immediate separation because of risks to NL’s physical or emotional safety; quite the reverse. I would like to believe that had their attention been drawn to the three propositions identified within Re LA (supra), the Justices’ decision at the first hearing would have been different. There is, after all, an elemental as well as a physiological need to keep mothers and new born babies together wherever possible, so long as the child will not be endangered.

(This is nothing new, but it is put so very plainly that it may be a quotation that comes up in future cases)

And the remarks made by the Judge about the second contested ICO hearing a week later, where the Magistrates Court seemed to place emphasis on the harm of moving the child from foster carers

7^th November hearing

There can be no denying that the outcome of the 1^st November hearing paved the way for what happened 6 days later. It is not just that the two Findings of Facts and Reasons documents are strikingly similar – the majority of the paragraphs are identical – as the result, almost certainly, of ‘cutting and pasting.’ It is also that by the time of the second hearing, NL’s move to a foster home on 2^nd November is identified as a reason against reuniting him with to his mother. The Justices decided that such a change in his circumstances “may have an effect upon him. NL is very young and needs to form an attachment to his primary carers.”

I found that evaluation both startling and disturbing. The fundamental principle is that wherever possible, consistent with their welfare needs, children deserve an upbringing by their natural parent(s). It seems to me wholly unwarranted to deploy the status quo argument as part of the reason for continuing an interim foster placement for a week old infant.

This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the more reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.

[My thanks to Martin Downs of counsel for his snappy title, which I have been waiting to use for about six months…]

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Revocation of Lasting Power of Attorney (green fingers versus light fingers)

Posted on February 13, 2014 by suesspiciousminds

This is a Court of Protection case Re DP (Revocation of Lasting Power of Attorney) 2014, published under the President’s Guidance that any Court of Protection decision of this kind should be published.

http://www.bailii.org/ew/cases/EWHC/COP/2014/B4.html

It also serves as another helpful reminder that being appointed as an Attorney for someone who lacks capacity is a responsibility that comes with rules and obligations that the Attorney ought to make themselves familiar with, and is not a licence to dip into that person’s pockets or bank accounts.

In this case, the woman, DP, had appointed her former gardener as her Attorney in a Lasting Power of Attorney whilst she had capacity. He was then entitled to manage her affairs, and in many regards, he did this well. He was able to identify that she had been wrongly advised to switch a Legal and General Policy to an Aviva one, and get her compensation worth £38,000 for this.

Unfortunately, that good deed was somewhat undone by the Attorney then making a cash gift to himself to the value of £38,000, and also paying himself a salary for being the Attorney (An LPA can authorise the payment of a salary, but if, as here, it is silent then the Attorney can only claim legitimate and evidenced out of pocket expenses), also withdrawing money to pay for his wife’s motability scooter and weekly amounts of £55 to pay for the upkeep of it.

It is no great surprise that the Court, having investigated this matter carefully, concluded that the Attorney had exceeded their powers and the LPA should be set aside and a Court appointed deputy have the power of attorney to run the estate.

[Underlining mine – as it makes plain what an Attorney is to do if they WANT to use the person’s estate in this way, which is to get permission from the Court of Protection first]

It is unusual for the OPG to receive referrals about an attorney’s conduct from two completely unrelated sources. In this case concerns were initially raised by Oxleas NHS Trust more than a year before Aviva alerted the OPG to the attorney’s suspicious behaviour in seeking to transfer the balance on DP’s investment bond into an account in his own name by means of a gifting arrangement.

By making a gift of £38,000 to himself, JM contravened the provisions of section 12 of the Mental Capacity 2005, which sets out the limited circumstances in which an attorney may make gifts to persons, who are related to or connected with the donor, including himself. In order to have made a gift of this magnitude, he should have applied to the Court of Protection for formal authorisation pursuant to section 23(4) of the Act.

Regardless the inherent artificiality of his claim for remuneration at a rate of £20 a day for 365 days’ house clearance and rubbish removal and £20 a week for 52 weeks’ gardening, JM contravened his authority by awarding himself a salary. Section 7 of the LPA, ‘About paying your attorneys’, was left blank by DP. The guidance to that section states: “You can choose to pay non-professional attorneys for their services, but if you do not record any agreement here, they will only be able to recover reasonable out-of-pocket expenses.” JM had no authority to charge for his services under the LPA itself and, if he wished to receive a salary, he should have applied to the Court of Protection for directions under section 23(3)(c) of the Act, whereby the court can authorise an attorney’s remuneration or expenses.

By failing to keep proper accounts and financial records, he was in breach of his fiduciary duties as an attorney.

I was unmoved by JM’s suggestion that, if the LPA is revoked, he will be unable to afford the Motability vehicle and will no longer be in a position to visit DP and take her on outings. The purpose of the Motability scheme is to enable someone who is in receipt of Disability Living Allowance (in this case, JM’s wife) to use the mobility component in their DLA to lease a vehicle. I do not understand why JM’s wife cannot apply her mobility component for the purpose for which it was intended and I am surprised that, having received a substantial gift of £38,000 from DP’s estate as recently as November 2012, JM should have insufficient resources to keep up the payments on the vehicle.

At the end of his witness statement JM said that the police had concluded that there was no case to answer, and he asked why he was still being investigated by the OPG.

There are significant differences between a police investigation and an investigation conducted by the OPG. When the police investigate an alleged crime, they need to consider whether there is sufficient evidence to present to the Crown Prosecution Service (‘CPS’) to guarantee a realistic prospect of conviction, which in this case would have been on a charge of theft or fraud by abuse of position. The CPS would have had to prove that JM was aware that he was acting dishonestly and they would have had to prove this ‘beyond reasonable doubt’, the standard of proof in criminal proceedings. The decision not to prosecute him simply means that the CPS was not totally confident that it would be able to prove JM’s guilt so as to ensure a conviction. It does not imply that his behaviour has been impeccable.

By contrast, an investigation by the OPG is concerned primarily with establishing whether an attorney or deputy has contravened his authority under the Mental Capacity Act 2005, or has acted in breach of his fiduciary duties under the common law of agency, or has behaved in a way that is not in the best interests of the person who lacks capacity. The standard of proof, ‘on the balance of probabilities’, is lower than the criminal standard.

Like the police and the CPS, the OPG carries out a comprehensive sifting process, and the Public Guardian will only make an application to the Court of Protection in cases where he has good reason to believe that an attorney or deputy has acted inappropriately and that it is in the best interests of the person who lacks capacity for the attorney or deputy to be discharged.

In fact, the OPG make comparatively few applications to the court. According to the Office of the Public Guardian Annual Report and Accounts 2012-2013, at pages 6 and 7, the Public Guardian received a total of 2,982 safeguarding referrals during the financial year 2012/13. 728 (24%) were referred for full investigation and the Public Guardian approved 480 investigation case recommendations. Of these, only 136 resulted in an application to the Court of Protection for the removal of an attorney or deputy.

Having regard to all the circumstances, therefore, I am satisfied that JM has behaved in a way that has both contravened his authority and has not been in DP’s best interests.

Accordingly, I revoke the LPA under section 22(4)(b) of the Mental Capacity Act 2005 and direct the Public Guardian to cancel the registration of the instrument under paragraph 18 of Schedule 1 to the Act. I also direct that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP’s property and affairs.

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The whole caboodle landed in…

Posted on February 11, 2014 by suesspiciousminds

Once in a while, even in family law, you read a case where the circumstances are brand-new (I think of the Port Harcourt fertility clinic undertaking fake labours, the case where the District Judge took the whole court on an uninvited excursion to a grandparents home to check it out, the peculiar case of whether a child was concieved by artificial insemination or biological insemination) and this is another of those.

SA v BN 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4417.html

The case began as private law proceedings, about a 3 year old girl named JN. JN’s father sought parental responsibility and contact with her, following his separation from JN’s mother. The mother initially responded by saying that J was not the biological child of the father and DNA tests were directed. It then came to light that JN’s mother had had previous children who were the subject of care proceedings. The Court asked the Local Authority to look into this.

On 10 February 2012 the section 37 report, was filed, it recorded the mother’s failure to cooperate with the preparation of the report and concluded: “At this stage it is not clear if J is at risk of significant harm; due to Miss N’s lack of engagement, J has not been seen and historical information that has come to light has not been discussed with Miss N“. It went on “The local authority will be considering initiating child protection proceedings in respect of J. The local authority will also be making a referral to the First Response Team so that an assessment can be carried out in respect of J and GN to assess the risk in the light of information received from Children’s Services.”

When the matter came on again before District Judge Dowding on 15 February 2012, the mother did not attend but she was represented. District Judge Dowding extended the period for the DNA testing to 9 March 2012 and required the mother to attend with J in order to provide mouth swabs a penal notice was attached to her order.

On 27^t February 2012 the mother and the grandfather took J for the DNA testing.

On 1 March 2012 the mother, without any prior notice took J to Kinshasa in the Democratic Republic of Congo (DRC), allegedly for the funeral of her mother, the paternal grandmother

The next hearing is where things started to get properly weird. The maternal grandfather and later, the mother began to assert that whilst in the Democratic Republic of Congo, J had been involved in a car accident and had died.

On 5 April 2012 when seen by RC a social worker the grandfather said the mother was in the Congo and had died following a road traffic accident On 10 April 2012 the maternal grandfather sent a text and two photographs to RC a social worker, saying that J had died in a road traffic accident in the Congo on Saturday, 3 of March 2012. The two unidentified photographs show a coffin with people sitting around it and a second photograph of a body of an old woman in a coffin.

Four days later on 16 of April 2012 the maternal grandfather sent three further photographs. Subsequently, the maternal grandfather e-mailed what purported to be J’s Congolese death certificate. It was in this context that RC duly prepared the section 37 report, (dated 4 March 2012) attaching to it the photographs and the purported death certificate,.

This hearing then, as a prelude to whether the Court could make any orders about the return of J to the country, had to firstly establish as a fact whether J was in fact, deceased. As the mother was the person asserting this, the burden of proof was on her. Prima facie, she produced quite a lot of evidence.

i) the death certificate of JN, 700/N008080;

ii) medical report of cause of death, 603 2012;

iii) burial permit, number 012/2012;

iv) pro-justice official police report, 0403 2013;

v) expert request form, 007/201204032012;

vi) death certificate of Sisika Masamba; [the grandmother]

vii) hospital transfer ticket for JN.

However, on forensic examination, this evidence rather crumbled

(i) Death certificate.

On about 5 February 2013 EM spoke to a Dr. N from the relevant medical facility about J’s case. A transcript of that telephone call was forwarded to the UK. Dr. N was asked about the death certificate of J and said as follows:

“I am familiar with this case and I have seen your colleague here. The girl you are talking about did not die here. The number on the documents bears the name of another person. Thank you for raising this problem because we have now discovered that there is a Mafia network in trafficking in documents. We have just had a second case in death certificate from our department but it is a fraudulent document. Briefly, J did not die here, not a trace has been found and I don’t know what to tell you. What we can do is ask you to help us. If the woman in London could give us the contact details of the person who presented her with these documents, after that we could retrace the networks this document is trafficking. I have no further comment.”

Subsequently, on 26^t July 2013, Dr. N signed a witness statement in which he dealt with the authenticity of the “cause of death report“, but not the death certificate. It follows therefore that there is no official written record emanating from the Congo confirming that the death certificate, (as opposed to the cause of death report), is a fake. Taken, however, with the information in relation to the report in relation to the “cause of death” form set out below in this judgment, I find on the balance of probabilities that the death certificate filed herein is a fake.

(ii)Medical Report of Cause of Death.

Both Dr. N of the medical facility, and the medical director of the medical facility in Africa, have signed witness statements saying that the “cause of death” report is a fake.

Initially, CATSR were unable to verify the authenticity of the report as the signatory, a Dr. EKM had been on long-term sick leave. Subsequently, CATSR sent an e-mail to CFAB that Dr. K had been seen on 15 January 2013 and did not wish to discuss the matter. That was not the end of the matter as in a further e-mail AW was informed that Dr. N and Dr. T had told CATSR that Dr. K had been dismissed from the medical facility.

The short statement prepared by Dr. N says as follows:

“I believe that this document is a forgery as this document does not relate to the death of JN, but to another person. The document is a false document. The child, JN, did not die in this hospital. Accordingly, I have no hesitation in concluding that this document was a fake.”

(iii) Burial Permit.

On 14August 2012 Mr. M was interviewed Mr. M is the manager of a Cemetery where the mother says that J is buried and which it is said is shown in one of the photographs produced by the grandfather showing the mother and a young man standing next to a wooden cross upon which is written J’s name. Mr. M says (and he thereafter confirms in his statement) that until July 2012 he alone was the person authorised to produce a burial permit for the cemetery. Since July 2012 the system has changed and officials in the town hall now produce the permits. This burial certificate is however dated March 2012 and therefore he would have been responsible for issuing a permit.

Mr. M said that the document is a fake for the following reasons:

a) Mr. M does not recognise the stamp, (which is not that of the cemetery), or of the signature of the person purporting to sign it.

b) The date of birth is not written in the usual way and the age of the child is simply written as one and a half, which Mr. M says, makes no sense.

c) The telephone number on the document is incorrect as there are ten digits in Congolese phone numbers and there are only eight written on the document.

It was confirmed, for completeness sake, that the burial permits now used and issued by the Civic Hall are in a wholly different format from that of the burial permit carrying J’s name.

I accordingly find that the burial permit is a fake.

(iv) The Official Police Report.

Mr. MM (Commandant in the DRC police force in Kinshasa), was seen and confirmed that the report carrying his signature is accurate and that an accident indeed took place. There are, however, two matters of significant concern in relation to this document which would otherwise be the only document confirmed by its author to be genuine. The document which is entitled Official Police Report, gives the wrong date for the accident, referring to it as happening at 9 a.m. on 4 March, instead of the date universally referred to elsewhere and which the mother maintains, namely 3 March and not 9 am rather 16.27 was a date referred to in some of the documents.

Added to this, it is accepted by Mr. MM that an official register of all accidents is maintained by the police in the city. When Mr. MM was asked for that register and provide confirmation of his report, he said that “they” had just moved offices and the register had been lost.

Taken with the totality of my findings in relation to the other documents produced, I find on the balance of probabilities that the official police report is a fake and the officer in question was lying when he said the report was genuine.

(v) Expert Request Form, dated 4 March 2012.

The same observations apply to this document as the official police report, the provenance being the same.

(vi) Death Certificate of Sisika Masamba.

A Dr. ZM, who certified this document, has filed a statement in these proceedings saying that this death certificate purporting to relate to the death of the grandmother is a fake. Dr. ZM was seen and said that the certificate was from his hospital, and the name on the document was his, but the writing and the signature were not his. Furthermore, and significantly, the number on the death certificate (700/NO06050) was produced on 7 October 2011 for an entirely different woman called D L and not for the grandmother.

The death certificate for the grandmother is a fake.

(vii) Hospital Transfer Ticket.

The mother gave evidence that J was initially admitted to one hospital and was then transferred to the hospital where she died. Officials from the original hospital, a Mr. CK and a Mr. KN, were seen at the hospital. They said that the document bore the name of their hospital but that it had not been produced by the hospital. When asked to clarify, they gave the following reasons for saying the document was a fake:

a) The transfer tickets produced at their hospital are booklets, whereas this was a full format A4 piece of paper.

b) They do not accept serious accident cases at the hospital.

c) They place the stamp at the bottom and not at the top of their documents and their stamp is small and not the same size as the stamp that appeared on the document.

d) On the transfer ticket in the place marked they always write: “CH” this had not been done.

e) For clinical information they always refer to the general condition of the person and write a comment such as “traumatisation” or “lesion” or “wound“, in the transfer ticket produced there is no reference at all to the general condition of the person.

f) For the destination, if it was a transfer ticket originating from their hospital they would have spelt the destination hospital differently

g) For the dates they always write …/…/20.. and the rest is written in by hand. On this transfer ticket the 2012 had been made by machine.

h) There was no-one in the hospital with the signature that appeared on the purported transfer document. Generally, when a transfer document is produced it mentions the name of the person who authorised the transfer and his signature is at the end, but this document did not bear the name of the person responsible for the transfer.

i) The document produced showed someone else had taken a page from a folder and scanned it in to increase the font for the typeface. In their tickets that the records are keyed in, but they do not much use either type face or the font on the purported transfer document.

j) Finally, the document does not even have a reference in hospital records which are kept at the so-called originating hospital.

On 13 August 2013 Mr. M of CATSR returned to the hospital in order to obtain statements confirming all this information. He met with Mr. C again and on this occasion a Nursing Sister RK. They felt unable to produce a confirmatory statement or comment on the authenticity of the document without the original alleged hospital transfer ticket, which has not been produced by the family.

Whilst a signed witness statement to confirm the contemporaneous note of the conversation Mr. C had with CATSR would be preferable, I conclude, on a balance of probability, that the hospital transfer ticket is a fake for the reasons listed by Mr. C and that it bears no resemblance to a genuine transfer document.

If you are thinking that right about now, none of this looks too good for the mother, and that faking your child’s death to avoid a contact order is somewhat extreme, you are not wrong

Finally, in considering the evidence purporting to support the mother and grandfather’s case that:

i) the grandmother, SM, died on or around 27^th of February 2012 and was buried on 3^rd of March, and ii) that J was killed in a road traffic accident on 3^rd March 2012,

I consider also the photographs produced by the grandfather in April.

In relation to the photographs of the woman in the coffin, there is absolutely no evidence that the woman in that photograph is the grandmother. Further doubt, if necessary, is cast on them by the fact that notwithstanding she was said to have died in February and the photograph was produced in April, the photographs have a Christmas border on them. I do not accept the grandfather’s evidence that it is traditional to put a border on such a photograph and to decorate them in such a way; neither do I accept that this border was other than specifically Christmas related. One glance at the photographs showed these are definitely Christmas decorations.

In relation to the photograph purporting to be the mother standing by her child’s grave, I have no doubt that this was staged for the benefit of these proceedings. It shows a wooden cross, easily made, with hand rather machine printing on it.

The agreed evidence in this case, endorsed by the doctor’s evidence, is that the level of corruption in the Congo is such that there would be little difficulty in obtaining fake documents of the type produced in this case.

In my judgment the documents are fake; there is no credible evidence that the grandmother died around 27 February 2012 or that J died on 3^rd of March, whereas there is very considerable evidence that the family have set out to produce false documentation in order to try and deceive this court and, more importantly J’s father, into believing that she is dead.

On 11 July 2012 the mother was ordered to hand her passport over to the guardian for safekeeping until further order. According to the mother, her father (the grandfather) wanted the mother to go to France to friends for Christmas. The grandfather contacted the mother’s solicitor to ask whether or not agreement could be reached for her to have her passport to enable her to obtain a visa and thereafter go to France. By consent, an order was made on 13 November 2012 granting leave for the passport to be released, on the basis that the passport would be returned to the guardian within three days of the mother’s return to England.

The mother’s case is that she was unable to get the necessary visa and so the planned trip to France did not take place. She says in her statement that she forgot to return the passport and kept it in a handbag where she used it to enrol at college for the new term. In addition, she needed it, she said, in order to make arrangements in relation to her bank account.

The mother’s case is that on 2 February 2013 she got the bus to college and on arrival her passport was missing. The mother denies having travelled outside the area and insists that the passport was genuinely lost.

The court ordered the mother to produce evidence from both the college and the bank that she had used the passport for the purposes stated. She has failed to produce any such evidence. There must be a very strong suspicion that the mother travelled to the Congo or France to see J over Christmas 2012 and that far from losing her passport, she was unable to give it back to the guardian showing, as it would, that she had travelled to that country.

Whilst the court may have strong suspicions that the mother’s account in relation to the passport is untrue, I do not feel able on the necessary standard of proof to find as a fact that the mother travelled to the Congo.

So, not only did JN not die in a road traffic accident whilst visiting the Congo with the mother to attend the grandmother’s funeral, the Court didn’t believe that the GRANDMOTHER was dead either.

Findings and Conclusions

I am satisfied on the balance of probabilities that:

i) The mother left the United Kingdom on 1 March 2012 as a result of the section 37 report and in the knowledge that social services intended to launch child protection proceedings in relation not only to J, but significantly as far as the grandfather was concerned, to J and G, the children of his most recent marriage. I am unable to say to the requisite standard of proof whether concern about the outcome of the DNA test played any part on the decision. ii) That the application made by the mother for a visa allowing her to travel to the Congo made on 15 February was made as a direct response to that report.

iii) There was no telephone call to the effect that the maternal grandmother had died. I have no idea whether she is dead or alive. It maybe that the photographs produced by the grandfather are indeed photographs of the funeral of the grandmother. If so, that funeral took place, I am satisfied, near to Christmastime, some time before, and not in March 2012. The death certificate was a fake.

iv) The mother travelled to the Congo with J on 1 March. Thereafter the mother and J lived with the extended family and probably her uncle until such time as the grandfather obliged the mother to return to the UK in June of 2013. In my judgment it is a moot point as to whether or not she would have in fact returned to this country had not the grandfather travelled to the Congo and obliged her to return.

v) I find as a fact that J did not die whether in a road traffic accident or in any other way and the documentation produced is fake. It follows that I find that J is alive and that the mother and grandfather each know of her whereabouts whether it be the Congo, France or UK.

vi) I am satisfied that the grandfather’s relationship with his daughter is enmeshed and unhealthy at best and that the grandfather has shown on more than one occasion that he will not allow his daughter to move away from him and establish her own life. I am satisfied that he brought the mother’s relationship with the father to an end, wishing her to return to live him.

vii) Similarly, I am satisfied that he would not allow her to stay away in the Congo and that his relationship with her was more important to him than the fact that by bringing her back to England he was separating mother and child.

[I haven’t really gotten into the whole dynamic of the relationship between the mother and the grandfather, which is a whole other can of worms in the judgment – but the Judge had to look at whether this tissue of lies had been orchestrated by the mother alone…]

The question then arises as to who masterminded this elaborate façade. In her assessment, prepared in the care proceedings and dated 29 July 2009, the social worker (J Cl) spoke to the mother on a number of occasions. She referred to the mother as appearing: “Distracted and disinterested in most of the questions and did not speak freely. Although she provided an answer to all of my questions, she provided short answers. I found it extremely difficult to draw her into free conversation. B was unable to maintain eye contact in the course of any of my sessions with her.”

Those observations chimed with my own assessment of the mother during the course of her evidence. She was virtually monosyllabic. She was courteous and replied to the questions she was asked, but she was throughout completely flat, showing no emotion whatsoever, even when speaking of what, on her case, were the simply appalling events of 3 March 2012.

In assessing this mother I bear in mind that whatever the truth of J’s death, she is a young woman who was abused and has been traumatised by her life experiences since she came to this foreign country at fourteen-years of age. In those circumstances it would not be right for me to use her demeanour as evidence against her assertion that J died as opposed to evidence of a deeply troubled young woman.

I do, however, feel able to say with certainty that this mother would have been quite unable to have planned and put into effect the removal of J to the Congo and to have thereafter arranged the production of the documentation.

It follows that I am satisfied that the grandfather has organised and manipulated events every step of the way. It should come as no surprise to the court that J was spirited away to the Congo. DN was sent back to the Congo to avoid the consequences of his having raped and impregnated his half-sister and I have no doubt that the mother would have been sent back to the Congo had the police not acted on the tip-off after the grandfather’s arrest for rape. Throughout the papers one can see the grandfather’s manipulative hand. He is there at each appointment, making arrangements, organising things and was, and I am satisfied remains, in complete control of every aspect of his daughter’s life.

The grandfather made it clear that the uncle in the Congo is the member of the family who controls matters at that end that is where the mother lived I have no doubt that the grandfather and the uncle between them organised and obtained the various documents.

The mother has recently remarried and is expecting another child. It remains to be seen whether she will now be allowed to make a life of her own.

The grandfather as unrepresented Intervener has played a full part in the proceedings. He has been courteous and polite throughout. On one level he gave plausible evidence, although his self-centred approach was apparent at every turn. He was considerably more animated than the mother, particularly towards the end of his submissions when he was bordering on tears but tears of self-pity in relation to the effect the proceedings had had upon him. This was in contrast to the way in which he spoke of the death of J, in positively callous manner, saying that the hearing of her death had “spoilt my day, spoilt my shift at work” and saying, quite brutally, that once J was dead he had destroyed everything about her, including any photographs he may have had.

I am satisfied that the grandfather knows of the whereabouts of J and that he could organise, if he so chose, to ensure her return to the UK, her country of habitual residence immediately. Accordingly, I find that J is alive and will make a raft of orders designed to ensure her return to this country as soon as practicable.

I know that private law proceedings can get vitriolic, and even have false allegations thrown around, but telling a father that his daughter is dead sets something of a new low.

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Posted in case law, fact finding, private law and tagged democratic republic of the congo, establishing whether a child is alive, faking a child's death, sa v bn 2013. Bookmark the permalink.

Reporting Restriction Order – Swansea

Posted on February 11, 2014 by suesspiciousminds

The decision in Swansea v XZ and Another 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/212.html

It is rather strange, in this week where all judgments by Circuit Judges or above relating to children are to be published online following the President’s guidance, to also see a Reporting Restriction Order case; although the order makes a great deal of sense in the particular circumstances of the case.

In this one, a mother from the Swansea area faced criminal charges relating to the murder of one child and the wounding of another. The mother pleaded guilty to the criminal charges in November 2013. The alleged offences happened in 2006 and 2007, although the criminal charges were brought many years later.

This was touched on by the Court here

On 27th September 2011, the police finally applied for disclosure of the case papers. I note that this was already nearly three years after the finding of fact hearing before Wood J. The case came before Charles J on 1st November 2011. Even at that stage, he said that there was, as far as he could see, “no reasonable justification” for the delay in applying which appeared to be “inexcusable.”

Between 2007 and the present day, care proceedings took place on the second child and subsequent children those proceedings seem to have taken place over many years, with what seems like several different sets of proceedings, finally ending in 2013 with the family court deciding that all of the surviving children could live with their parents. [The precise chain of where they had all been living in the interim is not easy to follow, but it seems that it had mostly been with either both parents, or the father alone]

I should make it clear that the Mother’s care of the children that were staying with her has, since the institution of the proceedings, been, at all times, exemplary. The children very much wanted to be with their Mother and it was in their best interests to be with her provided she was mentally well and it was safe for them. By 11th March 2013, it was clear that, despite the criminal charges, her mental health had not deteriorated. I therefore directed that those children should return to live with her on 19th March.

The Local Authority applied in this case for a Reporting Restriction Order to prevent the mother’s name being published – in the usual course of events, there would be nothing to prevent the Press publishing the outcome of the criminal trial (which is certainly newsworthy) and naming the mother – even though that would indirectly identify the children. Hence, the Local Authority applied for the order. (It was not intended to keep the care proceedings secret, but prevent the children from being identified as being the children of a woman who killed a baby)

The Local Authority case is that permitting the media to report the identity of the Mother will cause very significant harm to the children. First, it is said that, for reasons I cannot explain fully in this public judgment, anyone in the locality reading a media report naming her would instantly know which family it was.

It is then said that there are a number of features of this case that could well result in real danger and harm to these children. In particular, it is argued that this case involves a significant number of features that have, rightly or wrongly, caused great contention of late in this country. These stem from the family background details and that very serious harm was done to two babies; and the Mother has cared for those children notwithstanding what has happened.

It is said that, as a result, the family would be at high risk of being targeted within their community by threats and reprisals if they were identified. It is argued that reprisals might be both physical against them and against their homes. There would be a real risk of serious bullying at school. I am told that the effect on the children is potentially devastating.

Significant evidence has been put before me as to the risk that the children will suffer significant harm

The evidence that has been placed before me comes into exactly this category. It is from a very experienced social worker, Carol Jones, who is well aware of local conditions. I also have evidence from the Guardian (albeit that she has only relatively recently been appointed in this case) and from the consultant psychiatrist, Dr D.

Carol Jones says that, for reasons explained in her evidence, the family are easily identifiable. She is concerned that the community may, wrongly, feel that the family has been treated differently because of their background. She tells me that something similar happened to another family in the locality where there was a conviction for child murder. She adds that, if there is no custodial sentence, that may itself fuel resentment.

She goes on to say that, if the application for the Reporting Restriction Order fails, the Local Authority has decided that it will have to remove the family immediately to a completely new area of the country and give them new identities. This, of itself, shows how very seriously this matter is viewed. If this happens, the children will lose the stability that has been painstakingly acquired since the tragic events of 2006 and 2007. They will also lose the consistency and security of their schools that have provided them with significant stability, notwithstanding the difficulties faced by the family. They will lose friendship groups. I accept everything that Ms Jones writes.

The Guardian, Joanne Bamford, says that she is particularly concerned about one of the children, who is well aware of what has happened. That child has found the stress of the last few months increasingly intolerable and is exhibiting signs of anger and frustration. Ms Bamford considers exposure will have a particularly devastating impact upon that child who uses Facebook and will be exposed to what is written about the family. The child may well be bullied and threatened. There is concern as to the child’s mental health and even the possibility of self-harm or even attempted suicide. I accept all this evidence as well.

As noted above, the Local Authority has prepared a Safety Plan that involves immediate relocation out of the Swansea area even before the reaction of the public is tested, so serious are the concerns. In my view, the effect of all this on the children will be nothing short of devastating. In due course, they will all know that one of their siblings has died and that another sibling was seriously injured. These events happened as a result of the actions of their Mother, who they love so much. None of this was in any way their responsibility yet they are the ones who would now suffer the most. They would have to move home and school. They would lose their friends and all that is familiar to them. They would have to change their identities. Moreover, in all likelihood, they would suffer significant vilification and abuse. Once this is all clear, it becomes immediately clear why this is such an exceptional case.

This case is a good illustration that there’s a tension between public policy and interest that people who commit crimes should be identified and their crimes reported and the privacy of children who have done nothing wrong but might face serious detriment or harm if the local community linked them to the mother who committed these crimes. It is that tension, otherwise expressed as article 10 (freedom of expression) v article 8 (right to private life) that the Court had to wrestle with.

The law as it relates to this particular case

I have already said that, very responsibly, having considered all the evidence, the media organisations represented before me accept that this is one of those very few wholly exceptional cases in which anonymity is justified not just for the children but also for the Mother (and Father) because identifying the parents will lead to identification of the children.

I agree with that assessment. I am solely concerned in this regard with the effect on the children, not the effect on their Mother but the evidence points inexorably to serious harm being done to the children if their identity was to become known. The fact that the Local Authority considers, rightly in my view, that it would have to uproot them immediately from the area where the children have lived for many years, if I was to refuse to make the Reporting Restriction Order, is clear evidence of the serious damage such exposure will do.

I am, however; equally clear that I must permit reporting of anything that does not lead to the identification of the children. I must therefore assess what is likely to lead to their identification and what can safely be put in the public domain without leading to their identification. I accept the submission of the Local Authority and the parents, with which the media organisations do not dissent, that, in dealing with this area, I must consider “the jigsaw effect“. In other words, I must remember that there may be an individual piece of evidence that itself may not lead to identification but that is likely to do so if combined with other pieces of information also placed in the public domain.

It is accepted that they would be identified if their name was known. It is for this reason that it is accepted that the Mother and Father’s names must be given anonymity as well as those of the children. I also remind myself that there may be a significant number of people who know that this family lost a baby in 2006.

The individual issues

The first issue I had been asked to consider was whether or not to permit reference to the family’s origin. I am absolutely clear that such reporting must be prevented as was agreed by the media once they had read the further papers. Having considered the statistics relating to persons from that country living in the Swansea area, I am quite satisfied that, if any reference had been made to their origin, there would have been a likelihood of exposure.

I will therefore now turn to deal with the areas that remain in dispute.

The first issue was whether or not there could be reference to their religious faith. Again I have considered the statistics in relation to this and I have come to the clear conclusion that permitting disclosure of her religious faith would also be likely to lead to identification of the children. I therefore refuse to do so.

I consider that it also follows that the media should not be entitled to name AZ. It certainly points to a family of their origin. I have come to the conclusion that AZ should be referred to as “A” and BZ as “B”.

Ms Gallagher perfectly properly pointed out at the end of the submissions that the draft Reporting Restrictions Order would appear to permit the media to report how the Mother came to be in this country. The other parties were surprised by this as they had assumed that this would not be possible. I was therefore additionally asked to decide on that.

I am particularly aware of the fact that the Z family are not living in an area where there are a significant number of people who might potentially have this background. I have come to the same conclusion in relation to this aspect. In other words, I consider that permitting disclosure would run too high a risk of identification.

Finally, there is the question of the composition of the family. I consider that very different considerations apply here although I am still concerned about naming the exact number of the children. To do so would immediately show that this is a family with a particular number of surviving children plus one deceased in 2006. I do not believe there are likely to be many families in the Swansea area in that category and certainly not where they live. It therefore follows that I consider it would be to run too high a risk to permit naming of the number of the children.

I do not, however, see that there is any reason to prevent reporting that the parents are separated. Indeed, it would be surprising if they were not. Equally, I consider there is no reason to prevent the media saying that there is more than one surviving sibling and that they see their Mother. Further, I consider that it is appropriate to report, if the media wishes to do so, that, since the institution of care proceedings, her care of them when with her has, at all times, been exemplary.

[This latter bit explains the earlier suggestions about how giving much of the family’s background would easily identify them – let’s pretend for hypothesis sake that they are Martians, and have green skin and surnames like M’Hxtelkraw, and you can then see what is being hinted at, and also the talk of ‘how the family entered the country’ makes sense of the earlier suggestion that the local community might, wrongly, feel that they had been treated differently because of their background]

The Press were very responsible in this case – reading between the lines, this would be a very newsworthy story, particularly for the more erm… ‘traditional’ newspapers for whom the story would have pursued several agendas, but they recognised and accepted the balance between the children’s welfare and running a juicy story.

3 Comments

Posted in case law, transparency and tagged article 10, article 8, reporting restriction order, right to free expression, right to privacy, swansea v xz 2014. Bookmark the permalink.

An important unimportant judgment

Posted on February 11, 2014 by suesspiciousminds

I believe that Re A, B and C (Children) 2014 is the first judgment to be published and made available online despite not having any significance or importance in and of itself. It is not a precedent for anything, it does not raise any unusual or interesting areas of law, nobody is likely to ever cite it in a skeleton argument or a legal article. But it seems to me to be the first, so it has some degree of novelty and importance despite itself. [I could be wrong, it might just be the first one that has flitted over my radar, but I have been keeping an eye out]

http://www.bailii.org/ew/cases/Misc/2014/2.html

It is a fairly short judgment, the case moved at the Issues Resolution Hearing (the hearing that the Court has once all of the evidence is in, to see if the case can be agreed or whether a full-blown final hearing is needed) from a dispute between the LA and parents on the one hand (who were saying the children should stay at home under Supervision Orders) and the Guardian who had reservations as to whether that was safe, to agreement that Supervision Orders were the right orders to make.

It might actually be more interesting for what is NOT said – whilst the name of the LA and the Guardian are up, there is no naming of the social worker (this may not be intentional, it might just be that in such a short judgment, the social worker’s name simply did not come up).

Cases like this, where the parents work to make changes, succeed in doing so, and there’s a good outcome for the family that means the children stay at home and have a happier life than they would have had before the proceedings started, don’t often get reported – the cases that historically get reported are the ones where there’s a big fight – such a big fight that the case is either in the High Court or gets appealed. Maybe it is a good thing to see that there are cases like this, where the hard work a family does to make changes makes a difference.

Happiness writes in white ink on a white page – Henry de Montherlant

4 Comments

Posted in case law, transparency and tagged openness in family law, publication of judgments, transparency. Bookmark the permalink.

Mostyn-tacious – a judgment that makes your temples throb

Posted on February 7, 2014 by suesspiciousminds

The case of Re D (A child) 2014 presented Mostyn J with a very very serious issue to try.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/121.html

The child, D, was profoundly unwell, with a great deal of problems.

A very full report by a consultant paediatrician, indicates that D suffers, or is suspected to suffer, from, inter alia, sublugotic stenosis, chronic lung disease, cerebral palsy, visual impairment, epilepsy, sickle cell disease inherited from her parents, aspiration pneumonia, and gastroesophageal reflux. As a result she has suffered multiple cardio-respiratory arrests, is fed naso-gastrically and has undergone both insertion of a central line and a tracheostomy through which she is continuously administered oxygen – she is oxygen dependant. She will require 24 hour intensive care even upon discharge from hospital.

On 2^nd July 2013, there was a suspicion that D’s mother had deliberately turned off the tap which controlled the oxygen supply to D.

There ended up being three, and only three possibilities

The tap had not been turned off, and the medical staff who believed that it had were wrong
The tap had been turned off, but it had been done so accidentally by a student nurse J
The tap had been turned off deliberately by the mother

It is fairly easy to see that if a student nurse had made such a dreadful mistake, that would have some consequences. Likewise, if the Court were to find that mother had done so deliberately that would have very serious consequences for her. Therefore, if the medical staff who believed the tap had been turned on were wrong, that would be important to know.

The police had undertaken a forensic exercise, but the only DNA on the tap was D’s herself. Obviously D was not capable of touching the tap, so the DNA would have been transferred there by another person touching the tap. So, the forensic evidence did not really help one way or another.

Here’s where things start to get complicated. Obviously, before you move to the identification of a perpetrator (the whodunit exercise), you first want to establish whether anyone did anything.

Mostyn J indicated that he was satisfied that it was more likely than not that the tap HAD been turned off.

As he then pointed out, once he had found that it was more likely than not, the binary approach turns that into a probability of 100%. Once a Judge finds that X event was more likely than not to have happened, then it happened.

The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para [2] per Lord Hoffmann.

And moving onto the ‘whodunnit’ part, the Court no longer takes into account that there was doubt about the first element, because it is a proven fact. [i.e once the Court has found as a fact that an injury happened, then on considering who perpetrated it there is no longer a final option of “nobody did anything”]

Mostyn J was clearly in difficulties with that. He provided some probabilities, purely by way of example.

Counsel for the Local Authority asks me to consider scenario (i) first. She invites me to find first on the balance of probabilities that the oxygen supply was indeed turned off and that Nurse G is not mistaken about that. As I will explain, I accept that submission notwithstanding that I have some serious concerns that I may well be wrong. I will find on the barest balance of probability that the supply was turned off. I appreciate that in a different context in Re B (Care Proceedings: Standard of Proof) at para 44 Lady Hale stated that “it is positively unhelpful to have the sort of indication of percentages that the judge was invited to give in this case”. However I do not think that prevents me from indicating, only for the sake of example, that the probability that the supply was turned off was 55% (or as the mathematicians would say P = 0.55 and Q = 0.45). Indeed, were I not to do so I believe that a serious injustice may well arise in this and other cases, for the reasons that follow.

If I approach the exercise in the staged way suggested by Counsel for the Local Authority then the 55% probability which I ascribe to scenario (i) is converted by reason of Lord Hoffmann’s binary method of judging to a 100% certainty (or P = 1). What is a mere likelihood (in the true sense of the word) is transmuted into a certainty. The 45% probability that the oxygen supply was not turned off simply will not feature in the second stage which inquires into who turned it off.

What he then says, is (and indicating that he ascribes these percentage values purely for illustration) – what if the Judge then thinks that between the two remaining probabilities (the student nurse did it v mother did it) he ascribes a 60% chance to the student nurse and 40% to mother…

On the traditional approach, having established that someone turned off the tap (it is more likely than not that someone did, so it becomes a judicial fact), one would then just find that it was more likely than not that the student nurse did it accidentally.

But if you sit down and do some maths, as Mostyn J did

Well, you then end up with

1. The chance that the tap was not turned off and it was a mistake 45%

2. The chance that the tap was turned off by the student nurse 33% [that being 60% of the 55% chance that the tap WAS turned off]

3. The chance that the tap was turned off by the mother 22% [that being 40% of the 55% chance that the tap WAS turned off]

[That adds up, as probabilities must, in a closed system where there are no other options, to 100%. And the largest of those probabilities is that the tap wasn’t turned off – although none of them hit the magic 51% that would show that it was MORE LIKELY THAN NOT]

As you can see, you get two contradictory results, depending on whether you approach the three possibilities in a LINEAR way (deciding first whether the tap was turned off, and then who did it) or whether you calculate the probabilities of each event and THEN look at which is the most likely.

What is being illustrated here, is that if, instead of a two stage process

1. Did the event happen?

2. Who did it?

One compresses that into a one stage process

1. Is it more likely than not that person x did event y ?

You can end up with two different answers.

That led Mostyn J to form these two conclusions

I have already indicated that on the barest balance of probabilities Nurse G was right to deduce that the oxygen supply was turned off. The grip on the tap in the off position is distinct if slight. She has been consistent in her contemporaneous statements. She is an experienced and meticulous nurse. On the other hand, she accepted that this may well have been an event where the oxygen saturation level fell even though the oxygen was on, and that she may have jumped to a conclusion. There was a great drama happening and attention to detail may have been wanting. Having considered the matter very carefully I am satisfied, just, that the supply was turned off, but I do record that my doubts are very real.

[i.e that the Court finds it was more likely than not that the tap WAS turned off, although there’s a significant possibility that it wasn’t.]

But then

Having weighed all the evidence very clearly I conclude on the balance of probabilities that if the supply was turned off the mother did not do it. In the light of Lady Hale’s strictures I do not ascribe a percentage probability to this finding but I am confident in it. But it does not follow from this finding that I am concluding that J did turn the supply off by accident. Far from it. A correct application of the laws of probability leads me to conclude that in relation to her also I am not satisfied on the balance of probability that she accidentally turned off the supply.

[Explicitly finding that IF the tap was turned off, mother did not do it, but also making clear that this does not mean that the only remaining of the three possibilities – that the student nurse, J, did it, was what the Court found. In fact, that this possibility is not found either. ]

I think (deep breath) that the finding actually ends up being (though this is never baldly stated)

Whilst it appears that it is more likely than not that the tap was turned off, once one factors in the doubt about this, it is not more likely than not that the tap was turned off EITHER by J, the student nurse, or by the mother, and thus no findings can be safely made against either mother OR J the student nurse.

I can see what Mostyn J is getting at here, but it is clearly problematic that a Judge faced with the exercise of hearing the evidence about a very grave allegation ends up not finding that any of the only three probabilities is more likely than not to have happened. You end up with an odd situation that the Judge basically hints that the MOST likely of the three explanations is that the tap was not turned off, even though the only thing that he found WAS more likely than not was that the tap WAS turned off.

A problem here is that the case before him didn’t easily settle into a Lancashire finding – i.e that (i) it is more likely than not that someone turned off the tap (ii) the Court can’t identify the perpetrator, but that the only two possibilities are the student nurse J and the mother and neither can be safely excluded

The reason being that the ‘motivation’ for turning off the tap is different for the two potential perpetrators – one is an accident, and one is deliberate. So a Lancashire finding doesn’t really resolve anything. [It is, at least arguable that if the scenario had been that either mum or dad had deliberately turned off the tap and nobody else could possibly have done it, then, a Lancashire finding would have been made]

The other problem is that whilst the numbers used by Mostyn J are arbitrary, for illustrative purposes, the residual impression is that Mostyn J considered that if the tap HAD been turned off, it was much more likely to have been by the student nurse than by the mother, that being caused simply by the numbers he plugs into his calculations.

That residual impression is quite a big deal for the nurse in question, and I wonder whether the human importance of what was being deliberated here got somewhat lost in the maths.

I wonder if these arguments are going to be imported into other cases, or whether Mostyn J is pretty much the only Judge who is going to divert from the standard way of dealing with findings.

One thing is for sure, counsel appearing before Mostyn J in finding of fact cases would do well to read up a bit on probability theory and bring a calculator (and perhaps some Migraleve).

19 Comments

Posted in case law, fact finding and tagged finding of fact hearing, findings, high court, mostyn, probability. Bookmark the permalink.

“What’s got two thumbs and just cost family justice a million pounds per year?”

Posted on February 6, 2014 by suesspiciousminds

My quick unscientific estimate of the cost of a transcript (I took the ones I’ve obtained in the last year and took an average, although I think my judgments are all fairly short) £130 per case

From the CAFCASS figures on number of care proceedings issued in 2012 (april 2012-march 2013) that was 11,107

If, as a result of the President’s decision on transcripts, we obtain a transcript for each final judgment, that would cost the family justice system £1,443,910

(yes, that’s nearly one and a half million pounds. A year.)

Now, to be fair, some of those final hearings are heard by Magistrates or District Judges, which aren’t included (at the moment) within the guidance that a transcript be obtained of each final hearing.

It is a bit tricky to work out what proportion – let’s be generous and say half.

That still leads three quarters of a million pounds of taxpayers money. A year. And the system isn’t getting any extra, so that’s money that has to be found from existing resources, which means £750,000 of cuts from somewhere else.

[I don’t have the statistics on how many Court of Protection judgments there are a year, but those all have to be transcribed now too. ]

There’s also the harder to calculate figures (a lawyer has to anonymise the judgment and arrange the transcription, invoices have to be drawn up and paid, everyone’s lawyer has to wrangle with the Legal Aid Agency about the costs each and every time, the Judge has to check the judgment, someone has to arrange for the transcript to go up on Bailii, Bailii have to host probably ten thousand more family judgments a year than they are used to doing). Oh, and of course, the basic law of economics that as demand increases about five-fold, the price is probably going to go up too.

Now, when the MoJ ran pilot schemes in five Courts, where all judgments were anonymised and published online for a year, they calculated the administrative costs, if it were rolled out nationally to be £500,000 per year, pushing the costs back up above a million pounds.

https://www.justice.gov.uk/downloads/publications/moj/2011/family-courts-information-pilot.pdf

This pilot was hardly a glowing endorsement for rolling the scheme out nationally, as you can tell by the fact it was published in 2010 and the scheme wasn’t rolled out nationally (until the President decided to do it this year). In fact, the conclusion was that publishing judgments online was pretty much only useful for researchers and legal commentators; and that journalists and the parties didn’t think it had much value. One of the few positives (because the transcripts were paid for by the Court) was Local Authorities who were pleased to be getting anonymised transcripts.

The tenor of the recommendations was that the statistical analysis of overall trends was far more useful, and to keep publishing anonymised judgments limited to either cases that had a value as a precedent or where one of the parties specifically sought publication.

If you don’t want to read the full report on the pilot, then there’s a reasonable summary here:-

http://www.familylawweek.co.uk/site.aspx?i=ed85957

Now, I’m not saying that transparency isn’t a good thing – I think that it is. Maybe it is a good enough thing to be paying over a million pounds a year for even in our straitened times of cuts and belt-tightening. I’d just like to see the cost-benefit analysis that shows that to do it this way is worthwhile, because the pilot study doesn’t.

[See also David Burrows excellent analysis of the fact that making the decision on an individual case to publish a judgment still requires an actual judicial balancing of article 10 and article 8

http://dbfamilylaw.wordpress.com/2014/02/01/guidance-from-the-president-of-the-family-division-on-publication-of-judgements/

If you think I’m a stroppy swine, you need to read a bit of David’s blog. He’s only been doing it a week and he’s already threatened two judicial reviews…. The spirit of John Osborne is lurking nearby, taking notes for a new play named “Angrier Less-Young Man”]

7 Comments

Posted in transparency and tagged cost of transcripts, costs of publishing judgments, pilot on publishing judgments, pilot study, transcripts, transparency. Bookmark the permalink.

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Author Archives: suesspiciousminds

Re B-S can itself be the change of circumstances

I’m off to a meeting with my social worker…at 3am..with all of my possessions

P-p-p pick up a penguin

The war on cut and paste

Revocation of Lasting Power of Attorney (green fingers versus light fingers)

The whole caboodle landed in…

Reporting Restriction Order – Swansea

An important unimportant judgment

Mostyn-tacious – a judgment that makes your temples throb

“What’s got two thumbs and just cost family justice a million pounds per year?”

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