Author Archives: suesspiciousminds

A word in your shell-like

Posted on February 6, 2014 by suesspiciousminds

Appeals, adoption, writing a cheque for costs and ‘informal discussions’

 Re C (A Child) 2014

 http://www.bailii.org/ew/cases/EWCA/Civ/2014/70.html

 It is no longer any great surprise when the Court of Appeal overturn a Placement Order, but just when I was getting jaded with this new spirit, along comes something to raise an eyebrow. In this one, the Court of Appeal overturned the Placement Order AND made an order for costs, in the sum of £22,000 against the LA.

 It also raises a couple of important issues of principle.

 The first is the need for a Judge to take care on an appeal – in this case, the whole thing started with a DJ refusing a placement order and the Local Authority appealing it to Keehan J.

 Keehan J found all five grounds of their appeal met, granted the appeal (fine) but then went on to make the Placement Order.

 As the Court of Appeal pointed out, Keehan J therefore made a Placement Order whilst only seeing the documents in the appeal bundle (which were of course very limited) and had not seen all of the documents that would be necessary to properly consider whether or not a Placement Order was the right order.

 It is quite obvious that Keehan J was concerned at the delay in planning for S’s future care needs, which delay is statutorily recognised as inimical to the welfare of the child (Children Act 1989, s 1(2)). Unfortunately, his understandable desire to move the matter forward appears to have blinded him to the significantly defective appeal bundle created and provided by the appellant which actually rendered him incapable of proceeding with the hearing on the notice of appeal filed, let alone providing the necessary evidence to support the making of a placement order. Put shortly, there were no transcripts of evidence and some of the documents before the district judge had been removed from the bundle….

 

There was an obvious lacuna in the materials presented to Keehan J in his appellate capacity to dispose of the appeal, still less to subrogate his own assessment of the facts in making a placement order. (See paragraph 8 above). I know that he would now only too readily acknowledge that his expressed reasoning in deciding that it was right to do so is insufficient and does not comply with the subsequently reported Re B-S (CHILDREN) 2013, EWCA Civ 1146.

 

 The Court of Appeal raise an interesting point, which may well come back to bite them, about transcripts of evidence rather than just the judgment. I happen to agree with them, but it is still something of a hostage to fortune.

Keehan J’s judgment was that the district judge “misconstrue[d] the evidence of Dr Bourne”, “was wrong to conclude that [an option] was viable or available…because the social worker gave evidence to him…”; reached “a conclusion which…he was [not] entitled to reach on the totality of the evidence before him”; and, that in relation to the care plan “was plainly wrong to come to that judgment and assessment”. He concluded that “The care plan of the local authority was entirely clear”. In my judgment, these findings and conclusions simply cannot subsist in the absence of a critical appraisal of all the evidence that was before the district judge (rather than relying on such statements as he had and the summary within the district judge’s judgment. Oral evidence will necessarily colour the picture otherwise presented by the statements and reports prepared before hearing. As is obvious from the judgments of District Judge Simmonds, that is precisely what happened in this case.

 

 

  1. In challenging Counsel for the Respondent local authority as to the absence of any transcript of evidence before Keehan J when hearing the appeal, her response clearly reflected the position taken by the local authority in the first appeal. That is, that transcripts were unnecessary since the district judge had specifically summarised the oral evidence as was obviously relevant to the judgment.
  1. This submission reflects an inability to recognise the failures of the local authority in the first appeal process which I would otherwise have hoped may have occurred to its legal advisers after reflection upon the contents of the present appellant’s notice and recourse to notes of evidence. It also flies in the face of paragraph 9 of District Judge Simmonds’ first judgment, vis:

“The fact that I do not mention something in this judgment does not mean that I have not fully considered it, but it is impossible to set out in this judgment everything that I have heard and read. My analysis of the evidence and findings, although made after each witness, are on the basis of hearing and reading the entire evidence and analysing the evidence in its totality.”

  1. This observation is entirely consistent with the well established principle derived from the speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at p 1372:

“The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1 , 45:

The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

  1. Over time, inevitably and regrettably, this conspicuously articulated wisdom is diminished by familiarity and may often, as in Keehan J’s judgment, become eroded by a concisely expressed but imprecise phrase. Lord Wilson’s judgment, endorsed in this respect by Lord Neuberger in RE B (A CHILD) (CARE PROCEEDINGS:THRESHOLD CRITERIA) above is a potent reminder of the need for all appellate courts to do more than pay lip service to the doctrine. At paragraph 42, after quoting Lord Hoffmann in Piglowska he said:

“Lord Hoffmann’s remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just “is this true?” or “is this sincere?” but “what does this evidence tell me about any future parenting of the child by this witness?” and, in a public law case, when always hoping to be able to answer his question negatively, to ask “are the local authority’s concerns about the future parenting of the child by this witness justified?” The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge’s decision about the future arrangements for a child. In In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258 , Lord Nicholls said:

“16 …There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.……Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge’s decision.”

 

 

Is that authority for “in an appeal, a transcript of the entireity of the evidence should be obtained?”    – well, not quite, but I would certainly say that attention should be paid as to whether it should be obtained, and advocates be prepared to defend their decision about it either way. (Frankly, I would cover my back and include within the appeal notice a position as to whether the oral evidence given is intrinsic to the appeal and the Court is invited to direct whether a transcript be obtained)

 

A major issue in the case was whether in the original hearing, the oral evidence developed to a point where an alternative to adoption (namely the child continuing to be fostered by the existing foster carers) emerged as a credible alternate plan. That plan was the one that the District Judge approved – hence him making a Care Order but no Placement Order. At the appeal before Keehan J (who of course saw the written evidence and submissions that this was not an option on the table) what appeared to be the case was that the DJ had refused the LA plan and tried to foist upon them a plan that did not in truth exist as an option, which would of course have been wrong in law.  The Court of Appeal, having seen the transcripts of the oral evidence, felt that the option that the DJ selected was in fact an option open to him based on the evidence, and that thus not only was Keehan J wrong in granting the appeal but the LA had been wrong in issuing it.

An interesting aspect of the case was the Court of Appeal’s take on the ‘informal discussions’ that took place between counsel for the LA and the original District Judge. There is obviously a fine line between the duty to raise points of clarifications before an appeal and back-door pressure, and the Court of Appeal felt that this was wrong side of the line territory.

  1. Counsel for the local authority e-mailed the district judge timed at 3.33 am on 25 February seeking to “clear misunderstandings” as to the thrust of her closing submissions which had apparently not been accepted. The district judge responded at 9.07 in short order restating the pertinent bases of the decision reached and indicating that the order would follow. Remarkably, and with great temerity in my view, Counsel then responded “with the greatest of respect, I do not agree with your analysis”. Having re-iterated shortly the basis of his decision the district judge quite properly made clear that he was “not prepared and [would] not deal with this matter in e-mail correspondence.”
  1. Whilst other advocates were copied into the second e-mail and the first e-mails disclosed to them subsequently, apparently have made no complaint and may well regard it to be orthodox procedure, I regard this to be an entirely inappropriate, unacceptable and unsatisfactory practice. Not only was this an unwarranted ex parte approach by unconventional medium but it is a practice that lends itself to accusations of taint, bias, closed door justice and “stitch up” in the absence of an adequate and reliable method of recording what transpired. In the circumstances, the district judge was extraordinarily restrained in his responses.…

And

I agree with the reasons given by Macur LJ for allowing this appeal and I agree with the order proposed. I would particularly like to associate myself with the remarks that Macur LJ has made at paragraphs 11 and 16 of her judgment. The attempt to get the District Judge to change his judgment and order after the he had delivered his judgment was quite unjustified and inappropriate. Counsel should know better than to attempt such an inappropriate exercise, even if the client urges it. (I do not say that happened in this case; I do not know).

 

 

And

  1. I agree with both judgments. Having seen the judgments in draft, Ms van der Leij has expressed concern about the comments at paragraphs 10-11 of Macur LJ and paragraph 36 of Aikens LJ dealing with the e-mail exchanges subsequent to the hearing. She observes that “it is by no means unusual for practitioners in the Principal Registry to e mail district judges directly seeking clarification of matters raised in a hearing”. It is one thing, if invited, to make submissions in relation to the terms of an order provided that every communication is copied to every party; it is another to express dissent and seek to engage in further argument. If that is not unusual, it is important that the problems which it generates should be recognised and that the practice should cease. First, it suggests (even if it is not the case) that advocates can go behind the scenes to resolve issues in favour of their clients and, as Macur LJ observes, will give rise to allegations of ‘stitch up’. Secondly, it will encourage litigants in person (who do not have the same understanding of the law or practice) to adopt a similar approach thereby disrupting the finality of the judgment of the court and generating continued uncertainty.

I completely agree with all of this – it is hard to know what was going on here, but the best way to deal with this sort of thing is transparently, where everyone (including and particularly the parents) sees exactly what is being said to the Judge and has an opportunity to comment.

 On to costs.

The Court of Appeal point out, with a degree of acidity, that if the parents had been legally represented at the first appeal, to the circuit judge, it would have emerged that the oral evidence had been markedly different to the papers that Keehan J had seen and that the DJ had been within his rights to view that oral evidence as being that an alternative plan than adoption – namely long term fostering with the existing foster carers, was not only an option that he could chose, but one that he should.

They point out that in saving a very small amount of costs in legal aid for that hearing, substantially greater costs, and delay for the child have been incurred because that appeal itself had to be appealed.

The fact that the parents were faced with an appeal before Keehan J without any professional representation because their legal aid had been withdrawn must have been a factor which unfortunately led the judge to be persuaded to act as he did, despite the fundamental procedural failure of the respondents’ lawyers. This was, of course, their failure to produce on appeal the transcripts of the very oral evidence which the appellant alleged that the first instance judge had misconstrued/misunderstood. As Macur LJ has commented, if the parents had been represented by competent counsel this failure would doubtless have been pointed out and the appeal may never have seen the light of day. As it is, further public expense has been incurred because of the need for a further appeal to this court. What might have been saved in legal aid fund costs has been lost by incurring public expense on another (but related) part of the public purse.

They did refute the parents claim that because they had not been represented at the original appeal their article 6 rights had been breached – i.e this would not be a ground for appeal in and of itself, although it provided context as to why the original appeal had gone awry and needed to be appealed

 

 The fact that parents comprise the vastly increased number of litigants in person which appear before the courts in child public law cases since they do not qualify for non means tested legal aid is all too apparent and unavoidable as a consequence of the present regime. As here, non represented parents will often be ranged against legally qualified advocates opposing them. They have access to justice in accordance with their “Article 6 rights” but are often daunted by the process and feel understandably outgunned. In itself, this fact does not found a meritorious ground of appeal but necessarily it comprises a context for the other complaints that are raised in this application. I have every reason to expect that, if they had been legally represented by a competent advocate, this appeal may never have seen the light of day.

 

 

An application for costs was made. As readers will know, costs in care proceedings are fairly unusual, although possible,

  1. The mother is now legally aided. However, during the preparation for this appeal it appears that there were periods when it was withdrawn. In any event, the mother apparently is at risk of future recoupment from the Legal Aid Agency. She applies for costs of the appeal. Written submissions and revised cost schedules have been submitted.
  1. The local authority relies on Re T (Costs: Care Proceedings: Serious allegation not proved) [2012] UKSC 36 to resist the application. It argues that it has not adopted an unreasonable stance or been guilty of reprehensible behaviour. For the reasons above I believe that the position that it has taken to have been unreasonable. In the alternative, it cites London Borough of Sutton v Davis (Costs) (No 2) [1994] 1 WLR 1317 as authority to the effect that this court should not make an assessment but should order costs to be paid in a sum assessed by the director of the LAA. This proposition is based upon the obiter dicta remarks of Wilson J, as he then was. He urged reform of the then current legal aid regulations. They do not endure in the light of the 2010 Standard Civil Contract entered into between the mother’s solicitors and the Legal Aid Agency, section 1, General Provisions 1.50B of which provides: “This paragraph represents our authority pursuant to section 28(2)(b) of the Act, for you to receive payment from another party….and to recover those costs at rates in excess of those provided for in this Contract or any other contract with us. This court must address the claim for costs with a view to the context in which it arises. The director of the LAA is not in a position to assess whether the same have been unreasonably incurred.
  1. The necessity for this appeal emanates from the local authority’s failures to address the issues correctly in front of Keehan J. I would order them to pay the costs of the mother claimed in the sum of £22,756.68

The Court of Appeal don’t formally say that the informal approaches by counsel to the DJ played any part in this decision, but they hardly take pains to point out that they played no part. Those might have been very expensive emails.

 

[I am grateful to one of my readers for politely, judiciously and correctly letting me know that Keehan J is of course not a Circuit Judge, as I had been wrongly designating him – I have now edited out those incorrect references. ]

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Nothing else will do in the USA

Posted on February 3, 2014 by suesspiciousminds

Readers may be aware that in care proceedings, if it is not possible for a child to live with a parent then a family member is the next best thing. They may also be aware that the Supreme Court and Court of Appeal have been saying in 2013 that in order for a plan of adoption to be approved that the Court must be satisfied that “nothing else will do”

 You might not be aware, unless you happen to have done such a case, that where a family member lives in America, that the only lawful way to get the child INTO America is for the family member to adopt the child. That’s because of the way that the US authorities deal with immigration and visas and such.

 That poses something of a tension between “I want to place with Auntie Beryl, who lives in America” and “adoption is the last resort” because in this situation, adoption is actually the only legal route one can take to get the child placed with Auntie Beryl. 

 

But at the same time, you end up with a substantially more draconian order, one that ends the legal relationship between the birth parents and the child, than you would have countenanced had Auntie Beryl lived in Stoke instead of Tallahassee.

Should you find yourself in that tricky spot, this piece of caselaw will be helpful

 

RO v A Local Authority & Others 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/97.html

 

Exactly that situation arose, and where a Court would normally be looking to place the child with Auntie Beryl under a residence order or Special Guardianship Order, here they have to do so under a regime of adoption, which is now considerably more difficult than it was pre June 2013, when the caselaw shifted radically.

 The Judge approved the plan of placement with the relatives who were living in America, and outlined very carefully the reasons that this could only be done under the auspices of adoption, and thus why the making of a Placement Order was justified. It would stand as a good model for any one seeking to persuade a Court to place with relatives in the USA in future.

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uncharted waters

Posted on February 3, 2014 by suesspiciousminds

The limits of current medical knowledge on fractures and rickets, discussed in the case of A Local Authority v M and Others 2013

 

http://www.familylawweek.co.uk/site.aspx?i=ed127031

 

This was a case where His Honour Judge Hayward-Smith had considered a fact-finding hearing about a child who had suffered multiple fractures, including a skull fracture. At that hearing, the medical evidence had been unanimous that the child had been suffering from rickets but that the injuries had been caused by the parents, and hence the findings were made.

 

Subsequent to that, the judgment in Al Alas Wray was published, and that obviously highlighted the possible connection between Vitamin D deficiency, rickets and fractures in children.

 

The case came back before the Judge, who authorised some fresh experts, to look specifically at whether the presence of rickets in the children might mean that the fractures were not caused deliberately by the parents.

 

The medical evidence here was not simple, and not agreed, and the Court had to not only address the conflict between the medical evidence, but also to address the fact that the issues in question were butting up against the edge of what was known medical science and attempting to extrapolate from that what might be learned in the future.

 In particular, it became clear that what was not known at this stage, and did not exist in the research was

 

(a)   Whether having rickets meant that a child could suffer fractures more easily or with less force than a child without rickets would require to cause the same injury; and

 

(b)   If so, how much more easily, how much less force?

 

(c) The extent to which rickets affected the healing speed of fractures, and thus the reliability of usual dating techniques to decide WHEN the injury happened where rickets is a feature.

 

On the first issue, the experts were agreed that the existing research on animals did strongly suggest that for animals there was a sufficient link between the presence of rickets and fractures occurring more easily or with less force to be confident that a causal relationship existed, and that this PROBABLY mean that the same was true of humans, and human children too.

 

On the second and third issues, there was no certainty at all and no research evidence yet to point clearly in either direction.  (Again, with animals, the research showed that rickets did impact on the healing rate of fractures)

 

One of the evidential issues that arose was whether, within the body of children who have rickets (and are known to have rickets) fractures and multiple fractures as in this case was a common feature, a fairly rare feature or an almost unheard of feature.

 

 The problem here was that although the Court had the benefit of two experts with a lot of experience on the issue, their experience differed, and neither had the raw data or research, just their own observations. One thought it was almost unheard of (and thus that with multiple fractures NAI was a more likely explanation for the injuries), the other felt that it was fairly rare but within his own experience.

 

Is the multiplicity of fractures significant?

33. As the evidence developed this issue appeared to me to lie at the heart of this case.  Professor Gardner went so far as to say that Professor Bishop’s experience in this area led him to conclude that this is a case of non-accidental injury.  There is no doubt that Professor Bishop is a very distinguished expert in this field.  He was described by one of the experts as knowing more about this field than anyone else in Europe.  Professor Bishop said during the course of his evidence:

“In Sheffield we see approximately 500 children in any one year.  The majority will have conditions leading to bone fragility, the majority being osteogenesis imperfecta [which is not rickets].  I have been involved in this area since 1987 with babies, including premature babies, and older children since mid-1990s.  I have seen cases of rickets and the number reaches three figures.  [He did not go further as to what he meant by three figures, but it is clearly a large number of children]. 

“Of the children that I have seen with rickets, as far infants are concerned and indeed older children, I have only had three or four with fractures and only one had multiple fractures.  The children, in my experience, with multiple fractures are mobile and not as young as M who would have been immobile, but in one case a child was so ill that the bones could hardly be seen on x-ray and there were multiple fractures; and in that child, indeed, the rib cage had fallen in, it was very severe de-mineralisation of the bones.” 

That evidence reflected what he had said at the experts’ meeting.  The transcript of what he then said reads as follows:

“My concern remains that I have seen a number of cases of rickets which are more severe than this where there has only been one fracture.  I have not seen any other child in my own clinical experience with this number of fractures with rickets or, alternatively, in the literature with a description of this number of fractures in the presence of clinically apparent rickets.  So to me, this is a disproportionate number of fractures and it was actually the reason that I agreed to take this case on in the first place because it was unusual and because I was expecting, when I reviewed the child clinically, to find evidence of some other underlying bone disease that would provide an explanation for the fractures not the rickets.” 

Professor Barnes then asked the question whether that reflected Professor Bishop’s experience in relation to children under the age of six and Professor Bishop said:

“Yes, certainly, it does reflect my experience that it is unusual to see this number of fractures in an infant with vitamin D deficiency, rickets, at this age and that is an experience that goes back over quite a large number of years.  Before I did bone disease I did a lot of neonatology for ten years and we did see from time to time infants in the premature baby unit who had fractures as well, although the aetiology there is quite different.  But this is a stand out from my perspective over that long period of time.”

Professor Barnes then asked him whether his experience had reached the literature and Professor Bishop answered: 

“No, it has not reached the literature because, as I say, it is a scattered experience over a long period of time and I have not kept the case notes of each individual child seen over that period so it is a cumulative experience.  I have talked as well with a number of colleagues about what their experience has been and the general agreement, I have to say, is that one fracture is not unusual in rickets, occasionally two, but, you know, more than that, four, no, we don’t see that.” 

He then said in further evidence:

“Even with that child that I referred to with very severe rickets, there were only three or four fractures.  The majority of rickets cases don’t have a single fracture.  Given the likelihood of multiple fractures in the context of rickets, it is more likely in this case that there has been a use of excessive extraneous force.”

He went on to say:

“There is no objective measure of force required to produce fractures.  In normal children, multiple fractures would indicate abuse.  Multiple fractures in rickets is not borne out on the evidence of my experience, but there is very little published evidence in relation to children under six months.  We x-ray babies all the time.  If rickets was responsible for a lot of fractures we would be seeing multiple fractures in children with rickets and we just don’t see them.  In some parts of the world many children have rickets and there are no reports of multiple fractures.  A fracture, and certainly multiple fractures, is uncommon in rickets.”

That is strong evidence from a distinguished source and I take it very seriously, as indeed I did at the last hearing.

34. There is no objective research and no literature to assist much in this field.  Professor Nussey told me that animal research indicates that rickets in animals greatly reduces the force required to break bones and all the doctors agree that that is likely to be so in humans.  Reference was made at this hearing, as at the last hearing, to the Chapman study, but it is of limited value because of the limited number of children involved.  Professor Nussey’s written report includes the following passages:

“The question as to whether the presence of several fractures rather than one is an indicator of abuse rather than general bone fragility is impossible to answer in the absence of any objective measure of the change in the tensile strength of bone in rickets.  Skull fractures are said to be unusual in rickets, but they have been reported.”

Professor Nussey said that he deferred to Professor Bishop’s experience in this area, but I did not take him to be wholly jettisoning his own evidence. 

35. Professor Barnes had much greater direct experience in this area than Professor Nussey.  In his hospital he treats approximately twelve children a year who have rickets, but in addition cases are referred to him and his unit from across the United States and he has seen a total of about thirty-six cases a year since 2008.  He is compiling a database of such cases.  Most of the children referred to him have fractures; that is usually why they are referred to him, as he put it, to sort out which are the cases of non-accidental injury and which are not.  He has a particular interest in children under the age of six months.  Most of them referred to him that he sees have multiple fractures, but by no means were all of them caused non-accidentally. 

36. Professor Barnes’ experience of children with rickets having multiple fractures differs from that of Professor Bishop. The reason for the difference in their experience is unclear, but it has been suggested that more x-rays are taken in the United States and so more fractures come to light.  In the United States most cases of rickets are referred to major centres, whereas in the United Kingdom they tend to be dealt with locally. 

 

 

 

In the concluding passage of the analysis of the medical evidence, the Judge said this:-

 

All experts agree that there has been little research into the nature of the issues in this case.  Rickets has been curable since the 1920s and there has, therefore, been no pressing need for such research.  All experts agree that the issues in this case should be approached with caution and that there were many unknown factors including the amount of force required to cause a fracture.  Professor Bishop said that he could not be sure to the criminal standard of proof that this was a case of non-accidental injury.  He put the balance of probability at about 75%.  Both Professor Nussey and Professor Barnes say that there is insufficient evidence to say whether or not non-accidental injury has occurred in this case and that the evidence is consistent with innocent parents. 

43. At the last hearing the medical evidence pointed inexorably to the findings I made.  This hearing has been very different.  I am now doubtful whether the parents would necessarily have noticed any of the fractures, apart from the humerus and the skull to both of which they reacted appropriately.  I have conflicting evidence as to the relevance of multiplicity of fractures.  I bear in mind that the parents have given no explanation for the injuries apart from a tight garment pulled over the head and a possible knock on the head in the car, but – given the nature of the rickets, the uncertainty of how bad it was prior to 2nd January and the lack of knowledge of how much force would be required to break a bone – it would, in my view, be wrong to draw the inference that a lack of explanation from the parents indicates non-accidental injury.  For all those reasons, I am not persuaded on the balance of probability that the parents did cause these injuries to M.  I do not find, therefore, that the section 31 significant harm threshold has been crossed. 

44. I add one final word about the medical evidence.  I have great respect for all the experts in this case. They are all very impressive.  I would not wish to be taken as criticising any of them or rejecting the expertise of any of them.  This case involves areas of scientific uncertainty where there has been a paucity of research for reasons I understand.  Medical experience differs and caution is required, as indeed all the doctors involved accept. 

 

 

The Judge could have done nothing other than this, I think. We have reached a point in determining non-accidental injuries where rickets is demonstrated to exist where we simply do not know, and are not likely to find out any time soon, whether it makes such a difference that injuries that appear deliberate are in fact caused by relatively minor trauma; and where such doubt exists, the benefit of it has to be given to a parent.

 

It is an invidious position for all involved to be placed in – for the parent who can’t find the definitive answer and might end up being separated from a child temporarily or permanently, for a social worker who is trying to make a decision about whether the risks mean that such a separation should be sought, for the doctors on the ground trying to reach a conclusion, and for Judges who are having to make a decision as to whether what on the face of it are awful and serious injuries may have their causes in biochemistry outside the parents control or responsibility.

 

One thing is for certain, in any case of suspected fractures to children, getting an answer as to whether rickets or vitamin d deficiency are a clinical feature and getting that answer early will be vital.

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“You can’t see me”

Posted on February 3, 2014 by suesspiciousminds

Withholding documents in Court proceedings from a party, and documents being shown to that party’s lawyer

 RC v CC and Another 2014

 http://www.bailii.org/ew/cases/EWHC/COP/2014/131.html

 This is a Court of Protection case, but has wider implications (in fact, it imports a lot of the principles established in care proceedings into Court of Protection cases)

 It does sometimes (but only very rarely) happen within court proceedings that there is a document, or something within a document that might be problematic for one of the parties to see. In those circumstances, the Court have to decide whether the reason for keeping it from that party are sufficiently strong to interfere with the usual principle that a party gets to see all of the evidence against them.

 

It is absolutely right that the test for keeping evidence secret from one party is a very very very high one. It does very little good for the perception of fairness and equality in Courts if things are kept away from a party.

This is a very rare course of events – I’ve come across it twice in nearly twenty years of practice. In the overwhelming majority of cases, the parent is entitled to see all of the evidence, and to ask for whatever documents or disclosure that they or their lawyers think is fit. It is also worth noting that even in these rare cases where a piece of evidence is determined by a Judge that the parent should NOT see it, the process itself ought to be transparent  (i.e that the parent knows that SOMETHING is being kept back, they just don’t know what it is).

 

In this case, which was an appeal heard by the President, a birth mother had been applying for contact with her daughter who had been adopted. There were circumstances that led to that being a Court of Protection case. There were three pieces of social work evidence which the Local Authority had argued ought not to be seen by the mother (though they were seen by the Judge) and the Judge ordered that they were not to be disclosed.

 

The President accepted the appeal, for reasons set out below, and sent the case back to the original judge for reconsideration. The President was able to confirm that the principles which govern non-disclosure of documents to a party in care proceedings applied equally to Court of Protection cases.

 The original Court had properly identified the tests to be followed (and they are all helpfully set out within the judgment)

 

  1. How is the jurisdiction to be exercised? I return to what Lord Mustill said in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, page 615:

“Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order nondisclosure only when the case for doing so is compelling.”

  1. In Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, having examined a number of both domestic and Strasbourg authorities, I concluded my judgment as follows (para 89):

“Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant’s access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.”

As I pointed out in Dunn v Durham County Council [2012] EWCA Civ 1654, [2013] 1 WLR 2305, para 46, this approach, so far as I am aware, has never been challenged and has often been followed.

  1. Dunn v Durham County Council is in fact clear authority (see paras 23, 24 and 26) that the test is, indeed, one of “strict necessity”, what is “strictly necessary”.
  1. In a case such as this the crucial factor is, as we have seen from the passage in the speech of Lord Mustill in In re D, page 615, which I have already quoted, the potential harm to the child. Lord Mustill summarised the proper approach as follows:

“the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

… If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

… If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.”

  1. Before leaving this part of the case, there are two further points to be noted. The first is that, as I put it in Dunn v Durham County Council (para 50):

“disclosure is never a simply binary question: yes or no. There may be circumstances … where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if it has first been anonymised.”

To the same effect, Maurice Kay LJ said (para 23) that:

“in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.”

  1. A related point, often commented on in the authorities, is that the position initially arrived at is never set in stone and that it may be appropriate to proceed one step at a time. This is not the occasion to discuss this in any detail. I merely draw attention, as examples, to what was said by Hale LJ, as she then was, in Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828, [2002] 2 FLR 476, para 28, and, most recently, by Baroness Hale JSC in In re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2012] 3 WLR 1484, para 36.
  1. Thus far, as will be appreciated, the authorities to which I have referred have mainly related to children. Do the same principles apply in cases in the Court of Protection relating to adults? To that question there can, in my judgment, be only one sensible answer: they do.

 

 

Part of the appeal was that although the original judge had drawn his attention to those authorities and the test, in the discussion passages of his judgment it appeared that he had reversed the test and begun talking of there being no strong reason why the mother needed to see the documents  (as can be seen from the above guidance, the test is the opposite – it has to be demonstrated why it is necessary that she SHOULD NOT see them)

 

  1. First, Mr Fullwood submits that Judge Cardinal misdirected himself, failing in fact to apply the law as he had summarised it. He points to the passages I have set out in paragraph 34 above where Judge Cardinal says “I do not consider that RC needs to see the social work evidence” and, again, “I do not take the view at this stage that it is necessary for the … social worker’s evidence … to be disclosed”, submitting that this is to put the point the wrong way round. The question, he submits, and I agree, is not, is it necessary for RC to see the documents? The question is whether it is necessary (in CC’s interests) that RC does not see the documents. Now particular phrases in a judgment are not to be torn out of context. The judgment must be read as a whole, giving it a fair and sensible reading, not a pedantic or nit-picking reading. Are these particular passages on which Mr Fullwood fastens, passages which taken on their own are wrong, saved by the rest of the judgment and, in particular, by Judge Cardinal’s concluding summary quoted in paragraph 25 above? I cannot be confident.
  1. Second, Mr Fullwood submits that in any event Judge Cardinal has given inadequate and unsustainable reasons to justify his conclusion. There are a number of points here. There is no differentiation between the obvious necessity to prevent the disclosure of anything that might lead to CC being identified or traced by RC and the far less obvious necessity to restrict RC’s access to other personal information about CC. It is surprising, even allowing for what Judge Cardinal says are the difficulties in redacting the material, that it is necessary that nothing in the three witness statements should be disclosed. After all, a large amount of sensitive personal information about CC was disclosed to RC in the redacted psychologist’s report. What is it about all the information that makes it necessary not to disclose it? And how does this square with the fact that Judge Cardinal thought that RC’s counsel should be able to see it? It may be that, with fuller explanation, Judge Cardinal’s decision could be sustained, but as it stands it provides inadequate justification for such a drastic restriction of what RC can see.
  1. Mr Fullwood’s third complaint is that Judge Cardinal has in effect introduced a closed material procedure, which, he says, was inappropriate in this particular case and is in any event, as a matter of general principle, inappropriate in the Court of Protection. I am not sure that it is helpful to categorise what Judge Cardinal did here as a closed material procedure as that expression is more generally understood. I take him to have been doing no more than has been hallowed by long practice in these cases and now has the weighty imprimatur of Baroness Hale. Whether, on the other hand, it was appropriate in this case is another matter. I have already alluded to the deficiencies in Judge Cardinal’s reasoning. But there is another point. As Moses LJ made clear, this is a process dependent upon counsel’s agreement – an agreement which counsel for the reasons given by Moses LJ may feel unable to give and which in any event the instructions from his lay client may prevent him giving. Judge Cardinal does not seem to have explored these aspects of the matter. Nor, for that matter, does he consider other possible solutions: allowing RC to read, but not to borrow or copy, suitably redacted copies of the documents, or directing that there be disclosure to her of a document setting out the gist of what is being said by the social workers.

Conclusion

  1. In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal’s order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment

 

 

The other matter of interest was that the original Court had ordered that the documents in question could be seen by mother’s legal team (presumably to reassure themselves that there was not a “smoking gun” being kept back from them) but on the basis that the documents or their contents were not to be shared with the mother.

 

That puts the lawyers in a difficult spot, and the President makes it plain that such an arrangement

 

(a)   can only happen with the agreement of the legal team and not be imposed upon them, and

(b)   they can only agree if they have instructions to do so, and

(c)   They can only agree if they are satisfied that they can do so without any damage to their client’s interests (which is, of course, bloody difficult when they don’t know what might be contained in those documents)

 

  1. It is apparent from Official Solicitor to the Supreme Court v K and Another [1965] AC 201 that disclosure limited to a party’s legal representatives was already by then a recognised practice in wardship. It is mentioned by Sir Nicholas Wall P in A County Council v SB, MA and AA [2010] EWHC 2528 (Fam) , [2011] 1 FLR 651, para 37. There can be no doubt as to the legality of the practice: see, for example, R (Mohammed) v The Secretary of State for Defence [2012] EWHC 3454 (Admin). But there are obviously potential difficulties, some identified in a characteristically thoughtful discussion in the June 2013 issue of the Thirty Nine Essex Street Court of Protection Newsletter of Judge Cardinal’s judgment in this case.
  1. Importantly, such disclosure cannot take place without the consent of the lawyers to whom the disclosure is to be made; and they may find themselves, for reasons they may be unable to communicate to the court, unable to give such consent. Moreover, they cannot consent unless satisfied that they can do so without damage to their client’s interests. As Moses LJ said in Mohammed (para 28):

“The free and unencumbered ability to give and receive instructions is an important facet of open and fair trials. That ability is hampered if in some respects the lawyer is unable to disclose all the relevant evidence and material and, in that respect, the client is deprived of the opportunity to give informed instructions. But the degree to which that is of importance will vary from case to case. No lawyers should consent to such a ring unless they are satisfied they can do so without harming their client’s case. But provided the legal advisers are satisfied they can safely continue to act under a restriction, the inability to communicate fully with the client will not in such circumstances undermine the fundamental principles on which a fair application for judicial review depends.”

 

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Enjoy the (right to) silence

Posted on January 24, 2014 by suesspiciousminds

 

Another case on the right to silence, and the frustration of the family Court in having parents refuse to give evidence or file a “no comment” document on the basis of legal advice given by their representatives in criminal proceedings.

I have written about this a few times

 https://suesspiciousminds.com/2013/02/04/is-there-a-meaningful-right-to-silence-in-care-cases/

 Essentially it is that s98 of the Children Act 1989 has two key provisions – that a parent cannot refuse to give or provide evidence on the basis that to do so might incriminate them  AND vitally that such evidence that they give many only be used in prosecutions against them for perjury and nothing else.

 Over recent years, that principle has been rather eroded, as the family Courts have become more and more amenable to requests by the police for disclosure of care proceedings AND more importantly, changes to the criminal law which allow for inconsistent previous statements to be admissible in evidence.  S 119  of the Criminal Justice Act 2003  (which never really seems to get tackled when the family courts look at this issue)

 That is a backdoor by which admissions made in care proceedings could be evidence in criminal proceedings if they are an inconsistent statement. The s98 protection may prevail, and a criminal judge rule that it overrides the later legislation which permits inconsistent statements to be adduced as evidence, but it may not. When your client might be looking at an eight year prison sentence, that’s not a risk you want to be taking.

 As a lawyer, it is part of your job, if a client says “Is there any risk in my doing this?” to advise them whether there is or not, including whether it is a grey area.  [It is not necessarily a question of telling them NOT to give a statement in care proceedings, but you have to advise them that doing so involves a risk to them.  HOWEVER, note this judgment, which now makes it plain that it is a contempt of court for a lawyer to tell a parent not to make a full and frank account in their evidence in the family Court, even if that lawyer’s job is to defend them in the criminal court]

 That means that if a parent in care proceedings gives an honest account of what went on, as they are encouraged to do and on the basis of the s98 protection, it may come back to haunt them in criminal proceedings and they are unwittingly potentially waiving their right to silence.

 It is little surprise then that where the issues in question relate to serious criminal offences where a significant custodial sentence might await a parent if convicted, that those representing the parent in criminal proceedings are keen for them not to incriminate themselves.

 One of the other problems is that there are relatively few lawyers who are utterly at ease with both the criminal justice system and the family justice system – so criminal lawyers are nervous and wary about anything that goes into the family court, and family lawyers aren’t going to tell their client to go against the advice they’ve been given by their criminal lawyers.

 The family Courts have been less keen on the parent taking that legal advice, rebuffing the argument in various appeals and also last year committing a man to prison for failing to give evidence in a family court on legal advice.

 https://suesspiciousminds.com/2013/09/19/inconsistent-statements-and-eating-more-porridge-than-orinoco-womble/

 

[So actually, the risk is twofold – if you file the statement it is possible that the prosecution get it and use it as an inconsistent statement, and if you don’t you can be sent to prison by the family court.  If you are thinking that it seems unfair that you might get sent to prison for trying to exercise your right to silence because the framers of legislation left a grey area, then I agree with you]

The family Courts have AGAIN had a crack at this thorny issue, which is not going away, and will not go away until either a very senior criminal court or  family Court address once and for all whether s98 genuinely does offer protection against prosecution for anything other than perjury.

 Part of the problem here is that we have two statutes in conflict with one another – it is all very well for the family courts to think that s98 Children Act 1989 beats s119 Criminal Justice Act 2003, but it ain’t necessarily so.

 

A Local Authority v DG and Others 2014

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/63.html

 Exactly this issue arose – father in care proceedings was directed to file a response to threshold, his legal advice was not to waive his right to silence and that if he was to file anything it should be very very anodyne.

 The Judge was unhappy about the whole debacle, and was  critical of the advice given to the father  although understood why it had been given.

 

The Court was asked to provide some guidance, which it duly did. It does not resolve the ultimate issue of whether it is safe to make admissions in care proceedings or not, but it does clarify WHEN that argument should be heard.  (Clue, if you guessed “When it is too late”, you would be right)

 

40.   Guidance

  1. The interplay between linked care proceedings and criminal proceedings was considered extensively by Wall LJ, as he then was, in Re W (Care Order: Sexual Abuse) [2009] 2 FLR 1106 and by Judge LJ, as he then was, in R v. L [2006] EWCA Crim 1902, [2006] 1 WLR 3092. The guidance I propose to give is intended to complement the guidance given and observations on best practice made in Re W and R v. L.
  1. I consider it necessary and appropriate to give the following guidance to family and criminal practitioners on the issue that has arisen in this matter:

a. when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;

b. the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;

c. a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;

d. it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;

e. It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all;

f. the date on which a party to care proceedings is to file and serve a criminal defence statement in linked criminal proceedings is wholly irrelevant to the court’s determination of the date on which that party should file and serve a response to threshold and/or to file and serve a narrative statement in the care proceedings;

g. the mere fact that a party is ordered to file and serve a response to threshold and/or to file and serve a narrative statement before the date a criminal defence statement is to be filed and served in criminal proceedings is not a ground for failing to comply with the former order;

h. nor is it a ground for an application to extend the time for compliance with an order to file and serve a response to threshold and/or to file and serve a narrative statement until a date after the criminal defence statement has been filed and served;

i. any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. The court will then proceed to consider the application for disclosure in accordance with principles set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725.

 

 

Well, that’s helpful in a way, because the Court makes it plain that the parent HAS to file a statement, HAS to comply with the orders of the family Court, HAS to do so on time (even where this means that they are filing a statement that might later be contradicted by their defence statement)  and that the TIME to argue about whether or not the statement might prejudice their right to silence is when the police ASK for it and not before.

 

At least there is a clear process and procedure now. But it still puts the parent and their legal team out on a limb – this is “Tell us everything now, and we’ll decide later whether it will be shared with the police”

 

This isn’t an easy situation, and I have sympathy for all involved, including the Courts. For me, it is a real shame that when this issue got up to the Court of Appeal, the Court of Appeal didn’t just grasp it and make it plain that s98 stands, exactly as written, and that nothing a parent says in evidence in a family Court can be used against them in a criminal court, other than in a prosecution for perjury.

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Split-hearings and “non-accidental injuries”

Posted on January 24, 2014 by suesspiciousminds

The Court of Appeal decision in Re S (A child) 2014.

 http://www.bailii.org/ew/cases/EWCA/Civ/2014/25.html

 

 Very quick summary, to persuade you that this case is worth reading

 

  1. Guidance on whether split-hearings are needed and when (hint, the new Court of Appeal isn’t keen on them any more – expect to be taken to this case during any Case Management Hearing where the issue is physical injury or sexual harm)
  2. Confirmation that for “findings of fact” the appeal test is PLAINLY WRONG, not wrong.
  3. Really important stuff about threshold criteria and notably criticism of the phrase “non-accidental injuries” and the need to go to the statutory construction of the threshold criteria

 

If you aren’t familiar with the term, “split-hearing” is what happens when there is a narrow (although sometimes complex) factual issue to determine in a case involving children, and that resolving that factual dispute is done at a hearing with evidence and cross-examination and a judgment AND THEN the case goes on to a hearing to decide what the Court should do about those facts that have been proved or disproved (what is usually called the Welfare stage)

 

For the majority of children cases, the hearing about the factual dispute and the welfare dispute (What happened, what should happen next) are all dealt with together, but there are some cases where historically the hearings have been split in two (hence “split hearing”) and had a hearing to decide “What happened” first and then “What should happen next” later.

 

Indeed, for a while, split-hearings were very much in vogue and the higher courts were keen on them and critical where they had not happened. There are a few reasons for that

 

  1. If a parent is accused of injuring a child and it can be proved that they didn’t, the sooner that happens the better
  2. Everyone can plan for the future of the child KNOWING what happened, rather than speculating about what might have happened and ending up with plans that are “If X, then what should happen next is…. But if Y, then what should happen next is”
  3. If the Court finds that one parent injured the child and the other didn’t, then the parents have an opportunity to think about whether they want to stay together or split up
  4. If the Court finds that the parent injured the child, there can then be an assessment of whether that is likely to happen in the future – maybe there would be treatment, maybe having had the Court make those findings frees people up to talk about how the injury happened and those discussions can potentially identify the stress points and triggers and avoid it happening in the future.

 

Well, over the last year, it seems that the Courts have been getting cold-feet about split-hearings with hints being dropped that they were being used in too many cases and that Courts must be carefully to ensure that they are only used in cases where it really helps.

 

And of course, nobody has a real clue how a “split-hearing” works in the rigid 26 week timetable – the PLO guidance is clear that the fact that a split hearing is needed or the case involves physical injury isn’t itself a reason to go beyond 26 week. At the moment, it is a struggle to get ONE hearing done within 26 weeks, never mind two.

The Court of Appeal looked at this in Re S, and go the farthest that they have done since the concept of “split-hearings” was introduced to suggest that they have had their day.

 

To give the background, the care proceedings were issued because of an injury to the head of a one year old child, resulting in two skull fractures. The Local Authority considered that the parents had caused/contributed to the injury (more of this later), the parents saying that this was an accident or some other medical explanation.

 

In the case, there was an account of the evening leading up to the injury which was demonstrated to be false  (as the Judge and the Court of Appeal remind us, just because a person is caught out in a lie on one thing does not mean that they are lying about everything else)

 

This was an appeal by the Local Authority, because the Judge concluded this

 

The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury

 

They lost the appeal, the Court of Appeal found that it was misconcieved and there was no reason to interfere with the findings. [In essence, the LA had put all of their eggs in the “deliberate harm” basket and didn’t satisfy the Judge of that, and hadn’t sufficiently explored the possibility that there could have been some form of negligence or carelessness without a deliberate element] 

 

Guidance on split-hearings

 

 

  1. It is by no means clear why it was thought appropriate to have a ‘split hearing’ where discrete facts are severed off from their welfare context. Unless the basis for such a decision is reasoned so that the inevitable delay is justified it will be wrong in principle in public law children proceedings. Even where it is asserted that delay will not be occasioned, the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (i.e. whether a statutory order is necessary) to be made more expeditiously. The reasons for this are obvious: to remove consideration by the court of the background and contextual circumstances including factors that are relevant to the credibility of witnesses, the reliability of evidence and the section 1(3) CA 1989 welfare factors such as capability and risk, deprives the court of the very material (i.e. secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made. It may also adversely impinge on the subsequent welfare and proportionality evaluations by the court as circumstances change and memories fade of the detail and nuances of the evidence that was given weeks or months before.
  1. I ought to emphasise for the avoidance of doubt that although parallels can be drawn between the use of fact finding hearings in public and private law children proceedings, the appropriate and measured use of fact finding hearings in private law proceedings which are often safety cases, for example involving recent domestic abuse between parents, are not the subject of this court’s consideration in this judgment. An example of this court’s guidance in relation to those proceedings can be found in In the matter of C (Children) [2009] EWCA Civ 994. In private law proceedings it is the court that is defining an aspect of parental responsibility in its determination of the arrangements that are put in place for the child and findings of fact are appropriate, where necessary, to inform that process by reference to the factors in section 1(3) of the 1989 Act and in particular where safety issues have arisen which justify the court’s interference with the article 8 ECHR rights of the family members. In public law children cases where a care order is in issue, the court is being asked to sanction an agency of the state, namely the local authority, being permitted to exercise parental responsibility for a child. The jurisdiction in the court to undertake that task has to be based upon the existence of facts (primary and / or secondary) that satisfy the threshold in section 31 CA 1989. Accordingly, concessions or findings of fact relevant to the threshold question will always be necessary in public law cases alongside such further findings of fact as are necessary to inform the welfare evaluation.
  1. It ought to be recollected that split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is inappropriate. The oft repeated but erroneous justification for them that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice. The justification comes from an era before the present Rules and Practice Directions came into force and can safely be discounted in public law children proceedings save in the most exceptional case.
  1. Social work assessments are not contingent on facts being identified and found to the civil standard (see, for example Oldham MBC v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597 and Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776 per Scott-Baker J at [34] and [35]). That is the function of the court not a social worker (Dingley v Chief Constable of Strathclyde Police [2000] UKHC 14 per Lord Hope of Craighead at [120] and [122]). Social work assessments are based upon their own professional methodology like any other form of professional risk assessment. In care cases, an appropriate social work assessment and a Cafcass analysis should be undertaken at the earliest possible opportunity to identify relevant background circumstances and context. In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider (see, for example, In the matter of W (Children) [2009] EWCA Civ 644 at [33]).
  1. It may be helpful to highlight the fact that a decision to undertake a split hearing is a case management decision to which Part 1 of the Family Procedure Rules 2010 [FPR 2010] and Pilot Practice Direction 12A ‘Care, Supervision and Other Part 4 Proceedings: Guide to Case Management (the PLO)’ apply. A split hearing is only justifiable where the delay occasioned is in furtherance of the overriding objective in rule 1 FPR 2010, that is:

i) as a consequence of active case management by the court which includes in accordance with rule 1.4:

“(a) setting timetables […],

(b) identifying at an early stage […] the issues,

(c) deciding promptly (i) which issues need full investigation and hearing and which do not; and (ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

[…]

(i) considering the likely benefits of taking a particular step justify the cost of taking it;

(j) dealing with as many aspects of the case as it can on the same occasion;

[…]; and

(m) giving directions to ensure that the case proceeds quickly and efficiently.”

ii) in accordance with the child’s welfare having regard to the timetable for the child within the meaning of that concept in para [5] of pilot PD12A; and

iii) in accordance with the timetable for proceedings within the meaning of that concept in para [5] pilot PD12A.

  1. On the alleged facts of this case, there was no discrete issue which was appropriate for trial without its social or welfare context and delay was the inevitable consequence of the decision to have a split hearing. Given that by rule 1.3 FPR 2010 the parties have a duty to help the court to further the overriding objective, it is all the more surprising that one of the submissions made to this court was that a split hearing was inappropriate. That professional analysis should have been offered to the court below. The benefits and detriments of such a course, if proposed, should be analysed by the children’s guardian. In future, a decision to undertake a split hearing should be reasoned in court at the case management hearing and the reasons should be recorded on the face of the Case Management Order alongside what has always been the good practice of the court which is to settle the issue to be tried on the face of the order

 

 

Of course it must be right that the Court ought to have clear thinking and rigour before listing a split hearing and deciding what the benefits are, that’s hard to argue against. But this seems to be a heavy hint that split hearings will rarely be effective.

 

I have to say that I struggle with this – there clearly was a discrete issue here. If the parents had done nothing wrong, there was clear advantage for everyone in deciding that as soon as possible. If there had been some wrong-doing, then it was important to determine what that was and allow the parents to make decisions about what they put forward as the best future care of the child at the earliest opportunity. 

 

This is exactly the sort of case that split-hearings were meant for, and one has to ask – if the Court of Appeal think a case like this isn’t right for a split hearing, is one left with any split-hearings in public law cases?

 

Probably not.

 

So, at a final hearing on week 26, when the Court decide that a child suffered a skull fracture and that this was caused by dad but mum didn’t know about it and did nothing wrong, what exactly is supposed to happen?

 

Are the Courts going to say that mum ought to have separated from dad and gone it alone months before the Court made its decision? Or is mum to be given half an hour with her lawyers to make a decision whether to leave dad or not?

 

 

 

Non-accidental injury

 

Another interesting and potentially important development in the case is the discussion about “non-accidental injury”.

 

What the Court was interested in was whether this term was being used in a sloppy, “catch-all” fashion, and indeed being used differently by the medical professionals and the social work professionals.

 

When the phrase “non-accidental” is being used, is what is meant simply that the injury is not a result of an action, or does it mean that the parent is culpable, or that the injury was caused deliberately? 

 

It seems that the Local Authority in the case were putting the case on the basis that if the medical evidence was that this was a “non-accidental injury” that the parents had thus inflicted the injury.

 

Going back to the judicial finding, it is obvious that the Judge at first instance (and the Court of Appeal did not interfere with his discretion) did not make THAT finding

 

The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury

 

 

On the face of it, that seems unsatisfactory to both sides. If there was an accidental or “innocent” explanation for the injury, then the threshold criteria ought not to have been made out –  whilst the skull fractures were significant harm, the harm is not attributable to the care given or not given by the parents not being what it would be reasonable to expect a parent to give. So  from the parents viewpoint, why did the Judge find that threshold was met? And from the LA viewpoint, if the Judge did not consider that there was an accidental explanation and found threshold met,  how had the injuries occurred? How can anyone plan for the future on that basis?

 

 

 

Is there anything else that the Judge found that helps in understanding what happened to this child, and from there to see whether there is any future risk?

 

  1. It was a conceded fact before the judge that a false history of how the harm occurred had been given at the hospital. The false history was subsequently repeated in various degrees of detail to suggest that the child had been in a bouncer suspended from a door in the flat at a height of about half a metre from the ground when a strap broke, the bouncer fell and the child hit her head. That false history was discarded by the family when the child’s father voluntarily went to the police and said that the history previously given was not true. It was also discovered that the strap had been cut (it is said by grandmother) to make it look like it had snapped. A new history was then proffered by the family which was given to the judge in evidence. The evidence was that father was standing holding S in the kitchen behind mother and grandmother when S wriggled and in some way fell to the floor.
  1. With the possible exception of grandmother’s partner, who was not said to have witnessed anything of relevance, the judge found the family’s account of what happened on the night in question including the timings to be wholly unconvincing. He regarded the grandmother as a particularly unconvincing witness and was satisfied that father, mother and grandmother had conspired to attempt to exculpate father from what had occurred.
  1. The judge’s ultimate finding was that the grandmother and the parents had lied to the hospital and again to the police and the court i.e. both histories were untrue. He found as a fact that the court had not been told the truth about what had occurred. He found as a fact that something happened to S in the care of her parents (i.e. that the harm was not a true accident) but did not find that either of the parents deliberately injured their child. Having read and heard the evidence he was not satisfied on the balance of probabilities that either parent had deliberately inflicted the injury. That was not a positive finding that exculpated the parents or indeed any other adult. The case management order which purported to record the findings is erroneous if it was intended to suggest otherwise.
  1. The judge’s conclusion left open the question of how the injury occurred. The judge put down a marker to himself for the future welfare hearing that what had happened “may well involve negligence”. It is clear from the terms of the judgment that he did not find that the parents or any of the adults had been negligent but he opened up that possibility no doubt for future examination in the light of any other evidence that the court may consider at a subsequent hearing.

 

 

This is what the Court of Appeal had to say  [underlining mine for emphasis]

 

  1. It may be obvious to the interested bystander that there was a theoretical range of possibilities relating to what had happened to S: from accidental harm through to deliberate infliction of injury, but that was not the way the case developed in evidence. The neuroradiologist who gave evidence to the court gave his opinion about the range of possibilities in the following terms:

“The skull fracture can occur as a result of accidental injury. In this context fracture most commonly arises from a fall from a carer’s arms and results in an un-displaced unilateral fracture most often of parietal or occipital bone. Skull fractures may also occur as a result of impact in the context of non-accidental head trauma. If the injury is non-accidental, a fracture may also be displaced, comminuted, involves (sic) more than one bone or if there are multiple fractures in the same bone, it is more likely that the injury is non-accidental in origin”

  1. The local authority chose to pursue deliberate infliction of injury with the witnesses at the hearing and both at that hearing and before this court equated the term non-accidental injury with infliction. The local authority submitted that infliction was not necessarily deliberate infliction, but it is by no means clear that anyone else defined the terminology in that way and that characterisation of the evidence ignored the statutory formulation that the local authority needed to prove. This court was helpfully taken by counsel to the questions put to the witnesses which appear to demonstrate that the local authority assumed that ‘non-accidental injury’ if proved would be deliberate. They did not adequately explore the circumstances of the adults’ care other than to cast doubt on both of the histories that had been given nor did they explore what has come to be known as the attributability element of section 31(2) of the Act. Whether there had been reckless or negligent acts and omissions or what the neuroradiologist meant by the terminology that he had used or the causative mechanisms he had described remain in doubt.
  1. This court has sympathy both with the judge and the advocates in a situation where the direct evidence from those who were present is false and the local authority rightly assumed the burden of demonstrating that. In doing so, however, they appear to have lost sight of the rest of the case and of the statutory formulation in section 31(2) of the Act.
  1. The term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
  1. The court’s function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, ‘accidental injury’ is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.
  1. The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.
  1. This court has not been addressed about the volume of guidance in materials issued by professional bodies (including the medical Royal Colleges) and Government which makes reference to ‘non-accidental injury’. Indeed, counsel for the local authority went so far as to submit that none of that material provided a generally accepted medical or legal definition of the term. Whether that is right or not, it is not necessary for this court to analyse that material because all that is required in a case of this kind is for the court, legal practitioners and experts to have regard to the statutory formulation with which the court is concerned. If other terminology is used in evidence its meaning should be precisely ascertained so that the court knows what is being alleged and advised.
  1. In this case, the judge was careful to sever the question of whether the harm was an example of a true accident i.e. a chance happening that is by definition unexpected and unintentional, from the question of attributability which in the circumstances of this case was said to include perpetration of harm and lack of protection from harm. The local authority’s case was of (deliberate) infliction by one or the other parent and that was the case they put. They did not succeed in establishing that case. No other possibilities were sufficiently examined to enable the judge to make conclusions upon them. The medical expert had left open the possibility of an accidental cause, albeit that it was unlikely and in that circumstance anything between accident and deliberate infliction must also have been possible. Accordingly, there was no inconsistency between the findings and the evidence and the local authority’s description of the findings in the grounds of appeal are misconceived.
  1. The judge examined what were conceded before him to be the false explanations for the injury given by those who took S to the hospital which were subsequently repeated by other members of the family and also what was said to be the true history of the events of the night in question which he decided was also false. He directed himself to consider that there may be innocent explanations or explanations that do not attract responsibility for telling an untruth about a fact in issue: the so called Lucas direction (R v Lucas [1981] 1 QB 720). Far from failing to consider drawing an inference of attributability from the repeated lies that were told, the judge overtly considered the options and having given himself a Lucas direction concluded that the lies were more likely to be related to their inexperience as parents. Having heard the parents in evidence the judge declined to draw the inference that they had deliberately inflicted injury but did draw the inference that they had failed to protect S by delaying the obtaining of medical treatment.

 

 

There is a big hint here for advocates, particularly Local Authority advocates that in any case where harm is disputed, one has to avoid tunnel vision and just exploring the binary possibilities  (the parents deliberately injured the child v this child had an accident which simply could not have been helped) and to explore all of the middle ground, and focus particularly on not just the harm but how that harm might, or might not, have been attributable to the parents care.

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Transparency and Facebook

Posted on January 24, 2014 by suesspiciousminds

This is a County Court case, dealing with some of the transparency issues that I’ve been writing about recently, and highlights that there are going to be teething problems as the Courts move from very secret to fairly open. 

[If we were moving to 100% open where there were no restrictions at all, the lack of clarity about what is ‘direct identification’, what is ‘indirect identification’ and what is neither, wouldn’t be such an issue, but at the moment, given that what the Courts are prohibiting is direct or indirect identification of the child and linking that to identification that that particular child had been the subject of Court proceedings, not being clear about what is meant by those terms is no longer helpful.]

 

Re B (A Child) 2014

 

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B1.html

 

 

The case involved an application by the Local Authority (Staffordshire) for a Reporting Restriction Order  – given that Staffordshire were the LA who lost so badly on this issue when they came before the President in Re J they must have been fairly nervous about making the application.

 

The child is 2 years old and on 23rd May 2013 the Family Proceedings Court made her the subject of care and placement orders.  There had been extensive assessments of the problems faced by these parents.  The mother and the father came to the courageous and wise decision that they would not oppose the local authority’s plan for their child to be placed for adoption.  The maternal grandmother had a different view and she made an application to the court for an order that she should care for the child.  The grandmother was also the subject of extensive assessment which concluded that the child should not be placed with her.

 

What happened after that final hearing was that the grandmother did not accept the outcome in the way that the parents had. She was against it, and not afraid to say so.

 

She appealed to the County Court, and lost, and appealed to the Court of Appeal and lost.

 

The grandmother is clearly very disappointed by this outcome and she has

complained that the outcome is unfair.  No one suggests that the grandmother

should be prevented from commenting on this saga or from criticising the local

authority or the court.  However, the local authority says that the grandmother

has gone beyond that.  They say that she has caused harm to the child by using

her name and her photograph.  Examples have been shown to me.  I have seen

the grandmother’s Facebook postings in the bundle at C13, C15 and C17.  There

is a further very relevant Facebook posting at the back of the local authority’s

written submissions, an entry which I am told is dated 13th December 2013 and

starts by an indication that it was posted 11 hours ago.  In addition the

grandmother has started an online petition bearing the name and photograph of

the child.  Details are in the bundle at C17.  The grandmother has contributed to

an internet radio station where there was a discussion forum to which the  

grandmother contributed the name of the child.  This is accessible from a link

which appears on page C19 of the bundle.

6.                  The local authority’s application for a reporting restriction order seeks

to prevent this identification of the child but otherwise does not seek to prevent

discussion, comment and criticism of the local authority and court processes.

So it is only anything that would directly or indirectly identify the child which would be prohibited.

 

That of course was easy in an age where the only people who could publish anything were newspapers – they would just be told “you can print the story but not the name” and would decide whether sans the name the story would have sufficient public interest to make it worth publishing. And the sanction for breaking that restriction would be fairly simple – it is easy to dish out a fine to a newspaper, who can pay the fine.

 

But we now live in a different age, one where anyone who wants to publish anything can do so. For example, this very blog that you are reading. Anybody who wants to can set up a blog and write about what they like. Or they can use their Facebook page, or Twitter, or join an internet chatroom or post comments on Mumsnet or other similar sites.

 

The considerations are different for a journalist or editor whose natural tendency is to comply with the Court’s wishes or orders, and that of an aggrieved person who is personally and fundamentally affected by the decision and has lost all faith in the Court.

 

The most natural place for most people these days, to express their views is on their Facebook page. The grandmother, of course, doesn’t have to give the surname of the child to have indirectly identified them if she writes about them on her Facebook page, because the Facebook page directly identifies HER, and her comments directly link the children to HER.

 

 

   The evidence presented to me leaves me in no doubt that the grandmother has embarked upon a campaign to undermine these rights enjoyed by the child.  The Facebook entry of 13th December 2013 attached to the written submissions can only be described as a call for others to help a search for the depicted child in her new adoptive placement.  The accompanying text and other text refer to the child as a stolen child but by that date the Court of Appeal had determined that the plan for adoption could not be challenged.  This kind of publication is very harmful at a number of levels.  It is harmful to the child in the present if the search established her whereabouts and led to disturbance and destabilisation.  It is harmful in the present even if the search does not succeed in that it exposes the prospective adopters to anxiety at a time when the child’s best interests would be served by them accepting her into their household from a standpoint of emotional stability.  It is very harmful to the child in the future in that these internet postings can remain so that when a little older and accessing the internet herself the child may encounter these destabilising messages and find her own wellbeing undermined.  Alternatively these postings might be accessed by friends of the child and form the basis of comment or even bullying.

11.              I remind myself that the courts of the land at the highest level have determined that placement for adoption is the only appropriate outcome for this child and an outcome which is inherently lawful.  In these circumstances it is clear that Article 8 and Article 10 are in conflict.  Both represent important rights.  However, as so often in these cases, a proportionate balanced reconciliation emerges.  The right to freedom of expression does not need the elements of personal identification which are so harmful.  The right to respect for family and private life does need a prohibition to be placed upon identification but does not need to prevent all comment and debate.  It is clear to me that the proportionate outcome is to allow discussion but to prevent identification

 

The Court balanced the article 8 right to private and family life for the child against the article 10 right to freedom of expression, and determined that it was right that the grandmother should be able to debate and discuss the case, including the facts of the case (and including within that scope her own view of the case, which might be at variance to the Court’s own conclusions) BUT that she should not be allowed to identify, directly or indirectly, the child.

 

 

There is one area in which I find the present case to differ from the President’s case of Re: J [2013] EWHC 2694 (Fam).  In that case the restraint of publication of photographs of a tiny baby was considered to be inappropriate.  The present case I find to be very different.  This child is significantly older and correspondingly easier to identify from photographs.  Indeed, the grandmother has used a photograph as part of her campaign to seek out the whereabouts of the prospective adoptive placement.  This is one of the most harmful aspects of the case and an element from which the child needs protection.  Carrying out the same balancing exercise as did the President I reach a different conclusion and find that the publication of photographs must be restrained alongside the publication of names.

 

 

 

I shall conclude with a note addressed to the grandmother. I am sorry that she has chosen not to attend court today. There may be points which she could raise which are relevant to my decision. I have done my best in her absence to anticipate them. However if there are other points I invite her to apply to the court. The worst thing she could do would be to act in breach of this order and only when steps are taken to enforce the order against her, to raise points which should have been raised today. The order does not prevent campaigning, discussion or debate. However as in many other cases, these must not include the use of the true names or photographs of the child as this would be harmful to her.

 

 

 

The judgment does leave me in some doubt, and sadly the precise terms of the Reporting Restriction Order are not set out to aid in interpretation, as to whether the grandmother can continue to post commentary or discussion about the case on her own Facebook page subject to NOT naming the child or including photographs, or whether doing that commentary or discussion under her own name indirectly identifies the child.

 

Likewise, if she posts an article about the case on a website, using her own name but not naming the child, is that okay? What if she puts up a photograph of the PARENTS but doesn’t name them? What if somewhere else in her Facebook page, there’s understandably a photograph of her grandchild?

 

As we get farther and farther along the transparency route, the vagueness about what would constitute indirect identification of the child in these sorts of cases becomes less and less satisfactory.

 

Lawyers need to be able to know where the boundaries are drawn to properly advise their clients how not to cross them.

 

People who are unhappy about outcomes of court proceedings need to know where the lines are that they should not cross in talking about the case

 

Newspapers and moderators of online discussion groups need to know where the lines are so that they don’t inadvertently cross them

 

Local Authorities need to know where the lines are so that they don’t end up warning or threatening legal action for things that they might wrongly think is a breach

 

Guardians need to know where the lines are so that children who are capable of understanding know what can and cannot be said about them in the press

 

And Courts need to know, so that these things can all be transparently expressed.

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Assault committed in Court – the Ramet case

Posted on January 22, 2014 by suesspiciousminds

You may have come across this in the newspapers when it happened a while back, that during a Court hearing relating to a dispute over children, the father assaulted the mother and when the Court Clerk intervened, the father assaulted him as well.

 The committal hearing for an application to commit Mr Ramet for contempt in the face of the Court was listed to be heard by the President of the Family Division and that judgment has now been published.  (Mr Ramet can be named, as happens with all committal cases, even though that indirectly identifies the children who are the subject of proceedings)

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/56.html

 

In terms of the facts of what happened, those are not in dispute

 

  1. I return to Southend. Judge Roberts has been describing Mr Ramet, his evidence and his closing submissions:

“he made no reference at all to the overwhelming mass of evidence, which was critical of his own conduct … [he] has focused on his own feelings … and finds it very difficult to see any fault on his own part.”

Having referred to a report by a CAFCASS officer in 2007, she continues “If Mr Ramet had listened to that advice then, and since then, the situation may not be as it currently is. He did not”. Having referred to another expert report from 2011, she says “I accept all this expert evidence, and it is of huge regret that that advice was not followed.” She now turns to the mother. She says

“I found [her] to be sensible, reasonable and thoughtful. I have read the older reports, and it is clear to me that she has listened to much of the advice she has been given.”

At that point the transcript abruptly ends. What has happened?

  1. Mr Ramet has got up, as if to leave court, but in fact he attacks the mother, grabs her, repeatedly punches her about the head with his clenched fist, grabbing her hair and kicking her after she has fallen to the floor. The court clerk gallantly goes to her assistance, being assaulted by Mr Ramet for his pains. Mr Ramet is restrained. Order is restored. Judge Roberts adjourns. Mr Ramet is arrested. He is charged and appears in the Magistrates’ Court, where he indicates that he pleads guilty. He is remanded in custody for trial in the Crown Court.

 

The President begins the case by talking about how long this particular private law case has been going on (ten years – the parents separated in 2003 and began the litigation immediately, and the child who was three is now thirteen) and makes reference to the many other authorities that deplore that such important issues are taking so long to resolve and that more must be done.

 

Prior to the committal proceedings, Mr Ramet appeared in the criminal court charged with assaulting the mother, and assaulting the court clerk. He pleaded guilty to both offences and received a 20 month prison sentence.

 

The Judge in the Crown Court was alive to the sensitivities of the family court, the frustrations that arise and the need for parties to contain their understandable high emotions

 

15.   “It is hard to imagine any case for assault taking place within a courtroom which did not cause it to be within the most serious of that type of offence and the reason is quite clear.

In a criminal court it is entirely appropriate to be acting in a secure atmosphere. There is a dock. There is a considerable presence by way of security, if necessary. Family proceedings cannot operate in that way. The family court cannot operate in that way. It is, of its very nature, less structured, somewhat less formal, and in cases where the emotional temperature is inevitably high. Parties are going to be in close proximity to each other. That increases the risk of matters such as that which occurred on this occasion happening. It also increases the responsibility of people involved in such proceedings to keep their emotions in trim, to act with appropriate dignity, not to lose their temper and the court will always act by way of deterrent sentences to ensure that proceedings which needs to be conducted in a proper dignified and non-violent matter. Where they are interrupted, the courts will act entirely appropriately to punish those who act in that way.”

 

The President indicates that he agrees entirely with these remarks.

 

 The interesting aspect in this case, over and above it being a clear marker that persons who commit assaults within a court room can expect to be imprisoned as a result, was how the Court dealing with the committal for contempt should proceed, in light of the fact that a criminal court had already dealt with, and sentenced, Mr Ramet for the very same actions.

 

  1. The other point on which Mr Jerman addressed me was as to the approach to be adopted by the family court where, as here, the same conduct has given rise to both criminal proceedings and committal proceedings, something that has been considered in a number of authorities. The first five decisions, in Smith v Smith [1991] 2 FLR 55, Hale v Tanner (Practice Note) [2000] 1 WLR 2377, Director of Public Prosecutions v Tweddell [2001] EWHC Admin 188, [2002] 2 FLR 400, Lomas v Parle (Practice Note) [2003] EWCA Civ 1804, [2004] 1 WLR 1642, and H v O (Contempt of Court: Sentencing) [2004] EWCA Civ 1691, [2005] 2 FLR 329, were all surveyed in masterly fashion by Wilson LJ, as he then was, in Slade v Slade [2009] EWCA Civ 748, [2010] 1 WLR 1262. I cannot improve on his analysis and do not take up time repeating what he said.
  1. All I need do here is extract a few propositions which are particularly apposite in the present case, where the criminal proceedings have already concluded:

i) First, as Balcombe LJ indicated in Smith v Smith, page 64, my task is to sentence for the contempt – the matters arising under sections 14 and 118 of the 1984 Act – rather than for the crimes.

ii) Second, I must take into account the outcome of the Crown Court proceedings. As it was put by Thorpe LJ in Lomas v Parle, para 48, “It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence.”

iii) Third, a person is not to be punished twice for the same conduct. So, as Wilson LJ put it in Slade v Slade, para 21, “the second court should … decline to sentence for such of the conduct as has already been the subject of punishment in the criminal court.” What I must do “is to sentence only for such conduct as was not the subject of the criminal proceedings.”

  1. In the light of these principles, Mr Jerman’s submission was simple and, in my judgment, unanswerable. Having regard (a) to the charges to which Mr Ramet pleaded guilty in the Crown Court and those to which he pleaded guilty before me and (b) to the way in which he was sentenced in the Crown Court by Judge Lodge, there is no further sentence that I can properly impose on Mr Ramet. In relation to the whole of the conduct with which I am concerned, Mr Ramet has already been prosecuted and sentenced. He is not to be punished twice for the same conduct.
  1. In relation to the assault on the court clerk the point is really very simple. Before the Crown Court Mr Ramet was convicted of, and sentenced for, an assault (common assault) on the clerk. Before me he is summonsed for having “hit” the clerk in circumstances constituting an “assault” within the meaning of section 14(1) of the 1984 Act. Insofar as section 14(1) involves an additional ingredient – an assault on the clerk “while in the execution of his duty” – that factor was taken into account by Judge Lodge (“insofar as the clerk to the court was concerned … this was an offence committed against those working in the public sector”).
  1. In relation to the assault on the mother, the point is perhaps slightly more complex but the final outcome is the same. Before the Crown Court Mr Ramet was convicted of, and sentenced for, an assault occasioning actual bodily harm. Before me he is summonsed for having “attacked” his victim in circumstances bringing him within the reach of section 118(1) of the 1984 Act. There were here, judged from the perspective of the law of contempt, two aspects to what Mr Ramet did: first, there was the disturbance in the court room – a contempt in the face of the court irrespective of the identity of his victims; second, there was the retaliatory attack on the mother, as his opponent in the proceedings, which is a criminal contempt of court irrespective of where it occurs. Now whatever the ambit of the statutory contempt under section 118, a matter on which there is no need for me to express any view (though see R v Bloomsbury County Court ex p Brady (1987) Times 16 December), it is clear that every aspect of possible contempt was taken into account by Judge Lodge (“She was in a courtroom, she was there as your ex-partner in proceedings which were being taken in respect of your son … Location is the most serious aggravating feature”).
  1. I conclude therefore that it would be wrong as a matter of principle for me to impose any additional sentence on Mr Ramet. To do so would be to punish him twice for the same conduct.

 

 

If this situation does ever arise again, the timing of the subsequent litigation is important – it would seem sensible for the Crown Court case to be dealt with first, to deal with the element of the actions which are a criminal offence and only if there are residual matters which were not dealt with as a criminal offence but WERE capable of being contempt, should a committal hearing go ahead.  It is also seems that this would be quite a compelling argument to adjourn any committal proceedings where the actions complained of are also being dealt with by the criminal courts.

 The obvious negative consequence of the committal hearing is that it ends up identifying the child, who would ordinarily be entitled to anonymity. In this case, the child’s privacy and the mother’s privacy was lost, to little tangible benefit, given that the criminal court had already sentenced Mr Ramet for his criminal behaviour.

 

 

(The President indicated that IF there had not been a criminal prosecution, he would undoubtedly have found that Mr Ramet had been in contempt and wished to deliver a sentence of imprisonment which was longer than the contempt powers provide for)

 

  1. Before passing from this case there are a number of other matters I need to address.
  1. The first relates to the appropriate sentencing of persons guilty of behaviour such as Mr Ramet’s. Those guilty of violent disorder in a court and those who resort to actual physical violence against a person in court can expect an immediate and lengthy custodial sentence. I agree with Judge Lodge that deterrent sentences are justified in such cases, so as to ensure, insofar as the law can, both that the proper administration of justice is not impeded and that persons attending the court can do so without fear. Where there is serious violence – such as would amount to actual bodily harm or worse – consideration should be given, as in the present case, to inviting the appropriate authorities to consider bringing criminal proceedings in the Crown Court.
  1. It is in this context that I have to express serious concerns about the adequacy – in fact, in my opinion, the utter inadequacy in modern conditions – of the statutory penalties available under the 1984 Act. So far as concerns the family justice system I accordingly invite the Family Procedure Rules Committee to consider whether there is some way in which, compatibly with the provisions of the Crime and Courts Act 2013, District Judges, Circuit Judges and Recorders can be given powers more extensive than those currently available to them in these cases.

 

 

 

The President also drew attention to the difficulties that Mr Ramet had in obtaining public funding for the committal proceedings – clearly given that his liberty was at stake, he ought to have received public funding, but the provisions for providing free legal advice for committal proceedings in CIVIL cases is problematic. The President worked out a clever way around this, which may be worth knowing and borrowing in future cases.

 

  1. I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says:

“The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) –

…

(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.”

The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings.

  1. Because this is criminal public funding, it can be ordered by the court. So, in the present case I made an order on 28 November 2013 granting Mr Ramet legal aid for solicitor and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party) [2013] EWHC 3390 (QB), to which I would invite the attention of all family judges and practitioners.

 

 

Finally, because there had been an issue with serving Mr Ramet in prison and allegations that prison staff had been difficult and had taken the papers off him before he could properly consider them, the President sets down this marker – again, it may be worth borrowing should this situation arise in other cases

 

  1. There is one final matter to which I must draw attention. As I have already mentioned, there were difficulties in serving Mr Ramet because he was in prison. Service was eventually effected by the expedient of having him brought to the Royal Courts of Justice on 7 November 2013 pursuant to a production order and served by the Tipstaff. Mr Jerman tells me on instructions that the papers were removed from Mr Ramet on his return to prison and not returned to him until a day or two before the hearing on 28 November 2013. He also tells me that there were, despite what I had said in court on that occasion, difficulties in arranging access in prison to Mr Ramet by his legal team, with the consequence that proper instructions could not be taken until Mr Ramet’s arrival at court on 17 December 2013.
  1. Recognising that I have not thought it appropriate to conduct any kind of investigation into these matters, and that I accordingly have only one side of the story, I must nonetheless record my concerns. Prisoners have a constitutional right of access to the court, the obstruction of which may be a contempt of court: Raymond v Honey [1983] 1 AC 1. Mr Ramet was facing penal proceedings before me: denial of access to the papers which the court itself, acting by the Tipstaff, had served on him and preventing adequate access to his lawyers, if indeed that is what happened, are very serious matters. I trust there will be no future occasion when I have to express such concerns.

 

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Transparency Guidance

Posted on January 20, 2014 by suesspiciousminds

You probably recall that the President of the Family Division is rather keen on transparency – he’s been saying so for many many years, he’s certainly no Johnny-come-lately on the issue, and was saying so for a long time as pretty much a lone voice.

He called for views on a proposal to publish every judgment in care proceedings decided by Circuit judges or above, and all Court of Protection judgments back in October, and those views have now been considered and the plan is going ahead.

In fact, from 3rd February, the overwhelming majority of judgments in care proceedings will be published on Bailii. These will be anonymised (by the poor saps who work for local authority legal departments, with the anonymising then being approved by the judge) and will be available for anyone who wants to read them.

I think that in principle this is a good thing – as the President has said many times, in the debate between those within the family justice system who say that confidentiality and respecting the child’s privacy is the point and those outside who say “secret courts – if there’s nothing to hide, why is it secret”  – the transparency camp have clearly won.

If we are to move the debate about family justice beyond “secret court, what have you got to hide” and into proper areas of where the family justice system is getting it wrong, and where it is getting it right, and what can be done differently, then publishing judgments is an idea whose time has come.

I am absolutely in favour of transparency and the public being able to see what is being done by the State in their name. Only by doing that can we properly test the system and to recalibrate if things are taking place that don’t have public backing, that are being done wrong. Every wrong decision in family justice is a huge tragedy, but at present we have very limited ability to see whether wrong decisions are a rarity or endemic.

 

Pink Tape writes very efficiently about the issue and the guidance here

 http://pinktape.co.uk/rants/and-suddenly-it-all-becomes-clear/

There are things that I worry about – not least being that we are going to go very fast from announcing it to doing it in 2 weeks, that the previously expressed views from children don’t seem to have played much of a part, how we prevent jurors from finding those judgments and contaminating the criminal trial,  that there doesn’t seem much in the way of safeguards about privacy (the President is of the view that as long as the name doesn’t get out, privacy of the child is preserved – I am slightly more cautious about the ability of the general public, journalists and determined people on the internet to put known facts together to be able to link Mr X with a genuine name), and a lack of clarity about the boundaries.

It is the latter one which troubles me, because I really think there are now gray areas – once the judgment is a public document, how direct does one have to be in highlighting that the person in that public document is the same as this very real person here.

For example, if what is currently forbidden is the parent (or anyone else) directly or indirectly identifying that the child in  Re B (Parents who snort Polyfilla) 2014 is called “Timmy Grout” but that publishing the judgment or facts in the judgment is fine, are any of these actions going to get people in trouble?

 

1. Pam Grout, the mother of Timmy, posts a link to the judgment on facebook, and makes no comment about it.

2. People add comments under the link saying “you were robbed Pam”

3. A member of Pam’s extended family posts a link to the judgment and says “Don’t talk to me about British justice”

4.A campaigner about family justice who lives abroad, say a resident of the Vatican posts a link on their website, hosted abroad, saying “Pam Grout was betrayed by the State, read the case here and see how the Judge stitched her up”

5. People living in England post links to that website

6. Pam Grout posts a link to the website on facebook, but with no comment, or someone posts a link on her facebook wall and she ticks “Like”

7. A person on Twitter says “This judgment LINK is awful. My friend Pam Trout had an awful experience in Court”

8. A newspaper runs a story about the case, quoting the judgment. In the comments section, someone says “Pam Grout is not a bad person”

9. A prominent tweeter posts “Why is Pam Grout trending? #innocent face”

10. An MP stands up in Parliament and says “Pam Grout is the mother in the well known miscarriage of justice that the Courts call Re B (Parents who snort polyfilla) 2014

11. Every newspaper in the land reports what the MP has said.

 

12. Or how about this – one of the children is 14 and tweets “I am the brother of  Timmy Grout, the Polyfilla boy” and that goes viral?  

Are any of these actually breaches, would there be sanctions? Or are all of these things okay, and the only breach would be Pam Grout saying in terms “My son Timmy was taken off me by social services”

If you are advising Pam, how confident are you in telling her which of those twelve things are breaches and which are not?

 

It may well be that we end up having a debate about whether, once these anonymised judgments are out there, that we are playing a semantic game in saying that the child is not identified, given that they clearly become IDENTIFIABLE by what’s already a simple process of putting two or three facts together.

If you live in Bon Temps, and are one of six children, and you are all taken into care, and children in your class know that this has happened to you, but they only know the lurid details if you chose to tell them; then it isn’t that hard for anyone who wants to know more to find it.   Because a  judgment is published about six children who were taken into care in Bon Temps at about the right time and the ages and genders of the siblings match up, it isn’t rocket science for people who know a few things about you – perhaps your friends, perhaps people at school who have taken an unhealthy interest in you or who dislike you, to be able to read a judgment about you online and learn about your family life, allegations that have been made – perhaps that you still wet the bed, maybe you self-harmed, perhaps you have been confused about your sexuality,  maybe your dad has mental health problems, maybe your mum smokes crack, perhaps that your uncle molested you?

Maybe that won’t just be in your childhood – perhaps a prospective love interest will search about you, perhaps a future employer, perhaps future work colleagues.  If the link between Timmy Grout and Polyfilla boy ever gets out into the public domain, that information will be there for years to come, capable of being found by anyone who wants to know a bit more about Timmy. 

Perhaps when we are all wearing Google-Glass or whatever supersedes it in five years time, every time anyone sees Timmy Grout in the street they will be alerted to who he is and what happened to him as a child and be able to read all about it.  {Google Glass is here now, and facial recognition software that sees a face and can take you to any websites they are mentioned on is already here – this sort of thing is going to be commonplace in the near future}

It may be that we reach a point where society says that the interests of transparency mean that anonymity can’t be totally preserved, and that if children’s identities are found out and that people who are not invited by them to know about their lives can find out the most intimate details themselves then that is a price worth paying for opening up our family justice system and ensuring that there are no secrets.  Maybe we will eventually get rid of the bar on identification completely.  

There are many people who think that this will be a good thing. Me, I’m mostly interested in what Timmy has to say about it.

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Let’s make habitual residence a bit more complicated

Posted on January 15, 2014 by suesspiciousminds

Because heaven knows, it has always been so simple, and nobody has ever had to argue  in Court about where a person lives.

 The Supreme Court have handed down their decision in LC (Children) No 2 2014.

 

http://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0221_Judgment.pdf

 

There’s a press release which nicely summarises it all  http://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0221_PressSummary.pdf  

 

 

I’ll try to break the facts down very simply.  Not that easy, because if it were, it wouldn’t have reached the Supreme Court.

 

Four children, oldest 13, youngest 5. They lived in England with both parents. The parents relationship broke down and mum moved to Spain with them in July 2012. The children came to stay with dad in England over Christmas 2012 and then did not go back. Mum made applications under Hague Convention for the return of the children. There are claims, strong ones, that the 13 year old in particular did not want to go back to Spain and viewed that she was not living in Spain but had gone there for a while and wanted to stay in England now.

 

[The whole issue is complicated because mother is a Spanish citizen, and the father had himself lived in Spain for a time, and there were certainly strong Spanish connections for the family as a whole]

 

A question that came up was whether the children were habitually resident in Spain (they had moved there with mum and had lived with her there for five months by the time the dispute arose) or in England (where they were physically present, and certainly the oldest child was indicating that she wished to remain), or possibly had no habitual residence.

 

All sorts of things flow from habitual residence. There are not just rafts of caselaw, but ocean-liners of caselaw about habitual residence.

 

What the Supreme Court say it had boiled down to prior to this case was that one looks at habitual residence as being whether there is some degree of social integration of the child in a social and family environment in that place.

 

(That gets rid of the ‘intention’ element which can be problematic, because one can have an intention or desire to live in say, Monaco, without actually being habitually resident there. I’d love to live in Moncao, but unless I actually do something about that desire, I’m not actually resident there)

 

So, on that test, it would have been fairly straightforward that the children’s habitual residence was Spain – they had moved there, they had integrated there and had spent months there.  

 

However, the Supreme Court accepted father’s argument that with a child who has understanding and a view about where she wants to live, such as the 13 year old, the Court ought to take that into account when deciding the factual question of habitual residence.  The Supreme Court also found that the lower Courts were wrong not to have joined the 13 year old as a party.

 

 

 

Courts are now required, in analysing the habitual residence of a child, to search for some integration of her in a social and family environment [34]. Where a child goes lawfully to reside with a parent in a state in which that parent is habitually resident it will be highly unusual for that child not to acquire habitual residence there too. However, in highly unusual cases there must be room for a different conclusion, and the requirement of some degree of integration provides such room [37].

 

 No different conclusion will be reached in the case of a young child. Where, however, the child is older, particularly where the child is or has the maturity of an adolescent, and the residence has been of a short duration, the inquiry into her integration in the new environment may warrant attention to be given to a different dimension [37].

 

 

[There was some dispute amongst the Supreme Court Judges as to whether the state of mind of a child is a relevant issue in determining habitual residence for ALL children or only ones that have reached a sort of Gillick-esque competence to weigh things up. Two Judges felt it was relevant to all, but had less weight with younger children, the majority felt it was only applicable to children who had that sort of understanding]

 

So, when looking at whether a child’s particular situation changes the starting point that their habitual residence is with the parent they usually live with, the Supreme Court say that what is to be looked at is

 

 

The Court notes that what can be relevant to whether an older child shares her parent’s habitual residence is not the child’s “wishes”, “views”, “intentions” or “decisions” but her state of mind during the period of her residence with that parent

 

 

They were clear that where a child was of sufficient age and understanding and wished to be joined as a party in circumstances like this, the Court ought to allow it.

 

Having been joined as a party, how are the enquiries into the child’s state of mind to be conducted?

 

 

the Court notes that an older child in particular may be able to contribute relevant evidence, not easily obtainable from either parent, about her state of mind during the period in question [49]. However, it is considered inappropriate to hear oral evidence from T even as a party. Instead, a witness statement from T; cross-examination of the mother by T’s advocate; and the same advocate’s closing submissions on behalf of T should suffice to represent her contribution as a party [55]

 

 

The Supreme Court make it plain that the sort of features of this case, where a child of the right sort of age and understanding leaves one country to go to live in another and then returns for a short time to the first country, whereupon  an issue arises about where she should live in the long-term are very rare, so they are not envisaging quizzing the children in every Hague Convention case about where they see their habitual residence – it is about ensuring that where this becomes a live issue in a case that the child’s position is not ignored.

 

Of course, arguments about habitual residence don’t merely become confined to England and Spain – you can have them about England or Scotland, Cumbria or Cornwall, Stoke or West Bromwich.  It is not that uncommon for families when they break up to have geographical separation between the parents as well as emotional separation.

So much flows from habitual residence and ordinary residence that we probably still have not heard the last of this. I suspect that even now, there are some Local Authorities bickering about who has responsibility for a child who are wondering whether the child’s state of mind might prove to be the vital key.

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