Author Archives: suesspiciousminds

This means nothing to me, ahhhhh Vienna

Posted on January 14, 2014 by suesspiciousminds

The decision of the President in Re E (A Child) 2014.   

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/6.html

 You may recall from my last blog, which was about Mostyn J’s decision about a Brussels II application, in which Mostyn J posited certain ideas about whether the English Courts needed to be more proactive about alerting foreign EU authorities that the English Courts were dealing with a child who could be said to be a resident of that country rather than England, the case ending up with permission to appeal so that the Court of Appeal could give some general guidance.

 Well, before that appeal comes to pass, the President has given a decision in a case involving a child where the mother was from the Slovak Republic, lived for a time in the UK and then moved back to the Slovak Republic.

 In this case, the Slovak consulate were actively involved in the UK proceedings although were not making any application under BRII to have the proceedings transferred to the Slovak Republic.

 However, the President makes a lot of important remarks within the judgment, which may well be echoed in the Court of Appeal judgment when that case is finally heard – the Court of Appeal might well be quoting and relying upon Re E. Perhaps, as happened quite a bit in 2013, it might be the President himself quoting his own words – he does also sit in the Court of Appeal.

 In saying that, I don’t actually disagree with much if any of what he is saying here

  1. Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.
  1. In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.
  1. It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent: see Re B-S (Children) [2013] EWCA Civ 1146, para 19, referring to the speech of Baroness Hale in Down Lisburn Health and Social Services Trust and another v H and another [2006] UKHL 36, para 34. Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child’s best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases.
  1. Before turning to address the three specific issues I have identified, a more general point needs to be made. Its importance cannot be over-stressed.
  1. The English family justice system is now part of a much wider system of international family justice exemplified by such instruments as the various Hague Conventions and, in the purely European context, by BIIR. Looking no further afield, we are part of the European family of nations. We share common values. In particular in this context we share the values enshrined in BIIR

The Italian C-section case, together with a raft of cases where the Slovak authorities have intervened, have really highlighted this as an issue. If what is said within this judgment is to be believed, this particular mother’s case is as big a cause-celebre in the Slovak Republic as the C-section case is here.

If one stops being parochial for a moment, every time a British citizen gets arrested for breaking the laws of a foreign country (smuggling drugs, having sex on a beach, calling a teddy bear Mohammed to name but a few) our press gets outraged and demanding that the person be brought back to the UK for trial and punishment, or even set free.  Heck, even when the foreign country is one with whom we have a special relationship, we get twitchy about our citizens being dealt with by a foreign court (google Gary McKinnon if that is leaving you baffled)

So, if you are a person walking around in the Slovak Republic and you hear that a woman who was born in the Slovak Republic and now lives in the Slovak Republic had her child taken off her in England and can’t get the child back, you’d probably be outraged and offended too. Fair enough.

The President points out the dangers of being patrician and parochial and assuming that our justice is better than anyone elses here

  1. In In re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] EWHC 521 (Fam), [2013] Fam 253, para 37, Mostyn J expressed his complete disagreement with an approach which he characterised as “a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen”. He added that the court “should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.” I profoundly and emphatically agree. That was a case which, as it happened, also involved Slovakia. But the point applies with equal force in relation to every country which is a member of the European Union.
  1. On appeal in the same case, Re K (A Child) [2013] EWCA Civ 895, para 24, Thorpe LJ said that:

“there is a fundamental flaw in [counsel’s] submission since it essentially seeks to elevate the professional view of experts in this jurisdiction over the professional view of experts in the jurisdiction of another Member State. That is, in my view, impermissible. We must take it that the child protection services and the judicial services in Slovakia are no less competent than the social and judicial services in this jurisdiction”.

Again I emphatically agree.

We don’t get too far into the judgment before the President quotes himself (he is always rigorously transparent that he is about to do so, in fairness)

  1. Perhaps I may be permitted in this context to repeat what I said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

“Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.”

The guidance that the President gives about the operation of BRII in care cases generally in the future – subject of course to what the Court of Appeal say   (hint, Ray Winstone is urging me to wedge heavy on them agreeing with this more or less verbatim) is important.  We need to think about this in any case where a parent has come from another European country.

  1. BIIR – future practice in care cases
  1. What of the future?
  1. It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

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

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

  1. This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital. Judges must be astute to raise these points even if they have been overlooked by the parties. And where Article 17 applies it is the responsibility of the judge to ensure that the appropriate declaration is made.
  1. As I have observed, the process envisaged by Article 55 works both ways. The English courts must be assiduous in providing, speedily and without reservation, information sought by the Central Authority of another Member State. At the same time judges will wish to make appropriate use of this channel of communication to obtain information from the other Member State wherever this may assist them in deciding a care case with a European dimension.

The President then gives some guidance about the Vienna Convention, prefacing this by saying

“Articles 36 and 37 of the Vienna Convention on Consular Relations are probably not very familiar to most family lawyers”

He is quite right

He sets them out in full, so if you want to read them, follow the link at the top.

The gist of them, however, is these three points

  1. I am concerned only with what they suggest as good practice in care cases. But in that context there are, as it seems to me, three points to be borne in mind:

i) First, Article 36 enshrines the principle that consular officers of foreign states shall be free to communicate with and have access to their nationals, just as nationals of foreign states shall be free to communicate with and have access to their consular officers.

ii) Second, the various obligations and rights referred to in paragraphs (b) and (c) of Article 36(1) apply whenever a foreign national is “detained”; and where a foreign national is detained the “competent authorities” in this country have the obligations referred to in paragraph (b).

iii) Third, Article 37(b) applies whenever a “guardian” is to be appointed for a minor or other foreign national who lacks full capacity. And Article 37(b) imposes a particular “duty” on the “competent authorities” in such a case.

The President then gives general guidance for future cases  (and again, Ray Winstone is telling me that I should lump on that the Court of Appeal will echo these sentiments – he adds that it is an “andsome tickle”)

Underlining mine, because this is pretty dense stuff.

  1. The Vienna Convention – future practice in care cases
  1. What of the future?
  1. I express no views as to the effect of Articles 36 and 37 of the Convention as a matter of either public international law or English domestic law. There is no need for me to do so and it is probably better that I do not. Nor do I take it upon myself to proffer guidance to local authorities, health trusts and other public bodies as to how they should interpret whatever obligations they may have under the Convention. That is a matter for others. What I do, however, need to do is suggest how as a matter of good practice family judges, when hearing care and other public law cases, should from now on approach these provisions.
  1. In considering the possible implications of Articles 36 and 37 of the Convention, family judges should assume that, in appropriate circumstances, the court may itself be a “competent authority”. They should also assume that there is a “detention” within the meaning of Article 36 whenever someone, whether the child or a parent, is being deprived of their liberty within the meaning of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, for example, in accordance with sections 2 or 3 of the Mental Health Act 1984 or, in the case of a child, in accordance with section 25 of the Children Act 1989.
  1. In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.
  1. Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case:

i) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state. In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

ii) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for

a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or

b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

iii) Whenever a party, whether an adult or the child, who is a foreign national

a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or

b) is detained,

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay.

  1. If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that the court hears submissions before coming to a decision and that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision

This is interesting – if one of the parents of the child is from another European country, they should have the ability to share documents and information with official members of that EU State without permission of the English Court and without fear of consequence.

That sounds to me like a good thing, but I do note that in the many changes to the provisions of Family Procedure Rules, English citizens USED to be able to share information and documents from care proceedings with their Councillor or MP and now can’t.  So you have a situation in which European citizens have greater rights in English Courts than English ones.  (anyone got Nigel Farrage’s email address?)

[See Family Procedure Rules 2010 12.75, or the nice handy table in Hershman McFarlane at C2965  – we USED to have provision for a parent to discuss information or disclose documents about their case to their local Councillor or an MP, but it isn’t there any longer. Not that you would necessarily know that]

 

The final issue dealt with in this case was a Reporting Restriction Order application, and the President is forgiven here for quoting himself, since Re J is of course both the leading and transformative case.

Again here, the President says that short of reporting the name of the child or anything that would identify the name of the child anything else is permissible, and the RRO is drafted in that restrictive way.

This goes a little further than Re J however, because of the foreign element, and the existing interest of the foreign press in the story.  (I wonder what was in the President’s mind when he coins the name “The Daily Beast” as a hypothetical newspaper rather than say “The Voice of Reason”)

  1. In relation to foreign media the English court must proceed with very great caution. As a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible. In the first place, what justification can there be for the courts in one country seeking to control the media in another? If the media in a particular State are to be controlled that must be a matter for the relevant authorities in that State. For the courts of another State to assume such a role involves an exercise of jurisdiction which is plainly exorbitant, not least as involving interference in the internal affairs of the other State. What would we think, what would the English media think, if a family judge in Ruritania were to order the Daily Beast to desist from complaining about the way in which the judicial and other State authorities in Ruritania were handing a case involving an English mother? Secondly, the exercise of such a jurisdiction would be inconsistent with the principles I explained in Re J, paras 44-65. Thirdly, any such attempt would in all probability be an exercise in futility.
  1. On the other hand, a different approach may be justified where internet or satellite technology is involved, for there the media have an extra-territorial effect. It is of the essence of the internet that, wherever the service provider or the service provider’s servers may actually be located, the information is accessible throughout the world. So, in principle, attempts by a court to control the internet are not subject to the complaint that they are thereby interfering with the purely internal affairs of a foreign State.
  1. Applying this approach, proviso (ii) to paragraph 15 makes clear that the English court is not seeking to interfere in any way with the print or broadcast media in any foreign country, including but not limited to Slovakia, even if it is the English language which is being used. And in relation to internet and satellite services, proviso (iii) confines the potential application of the order to those services using the English language.
  1. So the mother can publish whatever she wants in the foreign print or broadcast media or, so long as it is not in the English language, on the internet. The only restriction on the mother’s freedom to publish her story is that she must not do so in the English print or broadcast media or, using the English language on the internet, in such a way as to identify E in one or other of the ways referred to in paragraph 15 (including by the use of her married surname).

The obvious thing that occurs to me that in a document written in the Slovak press where none of this is understandable to an English reader can legitimately include the mother’s surname and child’s name.  There can be a mirror story in the UK press which contains a translation of everything but those words. And the UK press can link to the Slovak article.

That is all within the Reporting Restriction Order. The fact that you don’t need to speak the language of the Slovak Republic (sorry Andrew, I’m not even going to try to guess) to quickly work out which bits of the Slovak story give the name of the mother and child seems neither here nor there.

If the headline contains nine words, and there’s a word that follows the mother’s first name (which we know and is allowed to be published in the English print media) you don’t need to be a genius to work out that this word is probably her surname.

In order that nobody inadvertently breaches the RRO, I’ll print it in full here

  1. Reporting restriction order

“1 The applicant is E (“The Child”)

The First Respondent is M (“The Mother”)

The Second Respondent is F (“The Father”)

The Third Respondent is [name] (“The Local Authority”)

The Fourth Respondent is S (“The Maternal Aunt”)

…

9 Upon the making of this order the local authority shall be treated as the Applicant. Any duties an Applicant is expected to meet, shall be met by the local authority.

10 This order binds all persons and all companies or incorporated bodies (whether acting by their directors, employees or in any other way) who know that the order has been made.

Territorial limitation

11 In respect of persons outside England and Wales:

(i) Except as provided in sub paragraph (ii) below, the terms of this order do not affect anyone outside the jurisdiction of this court.

(ii) The terms of this order will bind the following persons in a country, territory or state outside the jurisdiction of this court:

(a) The first and second respondents and their agents;

(b) Any person who is subject to the jurisdiction of this court;

(c) Any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(d) Any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order;

(e) Any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

Nothing in this paragraph prevents the publication referred to in the proviso at the end of paragraph 15.

Undertakings to the court

…

13 The applicant will not, without permission of the Court, seek to enforce this order in any country, state or territory outside England and Wales.

IT IS ORDERED THAT:

…

Prohibited publications:

15 Subject to the “territorial limitation” above, this order prohibits the Respondents and any or all other persons from facilitating or permitting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service of any information, including the mother’s married surname (as set out in Schedule 2) that reveals the identity or name or address or whereabouts of the child (whose details are set out in Schedule 1) or the identity, or name or address of his carers (whose details are set out on Schedule 3) or the identity, or name or address of F (whose details are set out in Schedule 2) if, but only if, such publication is likely, whether directly or indirectly, to lead to the identification of the child as being:

(a) A child who is or has been the subject of proceedings under the Children Act 1989 and the Inherent Jurisdiction; and/or

(b) A child who has been removed from the care of his parents; and/or

(c) A child whose contact with his parents has been prohibited or restricted; and/or

(d) A child who has been treated or hospitalised at a psychiatric unit; and/or

(e) A child who has been placed in the care of his maternal aunt; and/or

(f) A child of Slovakian descent;

PROVIDED that nothing in this order prevents:

(i) the publication of the mother’s first name; or

(ii) the publication of anything in the print or the sound or television broadcast media in any country other than England and Wales; or

(iii) the publication of anything on any public computer network, internet website, social networking website, or satellite program service in any other language than English.”

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Brussels Sprouts II – this time it’s jurisdictional

Posted on January 8, 2014 by suesspiciousminds

There haven’t been any posts since Christmas, because there haven’t been any judgments published. That’s sort of the way that a topical law blog works – when the Courts go quiet, I go a bit quiet too.

This one from the High Court, Mostyn J, is not what one could describe as interesting (Brussels II cases are NEVER interesting) but in the context of the biggest child protection story of last year, it might be politically important.  (I was hoping someone else would write it up first, as I had my fill of BRII with all of the Slovak cases last year)

 

Re D (A child) 2013 http://www.bailii.org/ew/cases/EWHC/Fam/2013/4078.html

Brussels II is basically legal shorthand for meaning the mechanism by which the Court in one EU state says to another “Actually, you know that case you’re dealing with – well, we think it ought to come over to us and we’ll deal with it”. It is also important to note that where a BRII application is made, the rules are that it must be determined within six weeks.

You may remember a lot of discussion in the media about the C-section case as to why our courts were dealing with it at all – the answer is fairly simple – the child was physically here, an English Court was presented with an application, and no Italian Court made an application under Brussels II for the case to be transferred lock stock and barrel to them, nor did anyone else.

 

Anyway, this one involved a family who were in the UK but had originated from the Czech Republic  – care proceedings were initiated here, and eventually a plan of adoption was put forward.  The background is set out here

    1. The background to this case is set out in my very full fact-finding judgment dated 30 November 2012 ([2012] EWHC 3362 (Fam)). As I said there, the story that unfolded before me was wrenchingly dispiriting and was one of abuse, misery, exploitation, criminality, and unrelenting vice. The father here was the step-father of the mother. He seduced her (thereby committing the crime of sexual activity with a child family member as defined in sections 25 and 27 Sexual Offences Act 2003) at the same time that he was sleeping with the mother’s own mother. The mother’s half-siblings were allowed to be aware that their father was sleeping with their sister. The father plied the mother with drugs. It was a truly appalling state of affairs.

 

  1. In short, the judgment described the father as a malevolent Svengali. It described how on Day 5 of the hearing he fled to the Czech Republic.

 

The Czech authorities became involved, and put forward a plan whereby the mother and the child would live in the Czech Republic together, with support. The mother also sought to transfer the proceedings to the Czech Republic. (It would be fair to say that the Czech Republic were fairly lukewarm in their enthusiasm for that)

For the child therefore, the jurisdictional issue was not a merely semantic one – the decision as to whether this was properly an English case or a Czech one would determine whether the child would be adopted or live with mother.  Both sides indicated that they would seek leave to appeal if the decision went against them.

    1. It is important to recognise what an order authorising a transfer request under Article 15 entails. It is a request of the foreign court, no more than that. It is not a request to the government of the other EU state. Nor is it a request to its executive arm, the central authority. Nor is it a request to the local authority of the municipality of the foreign state. It is a request to a fellow EU court. And that court has the final say on whether to accept the case or not. It must decide within six weeks. If it accepts the request the case will go there. If it does not it will stay here and be determined here.

 

    1. In my judgment although Article 15 is neutrally phrased it contains an important subtext which is that in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration.

 

  1. But in most cases all things are not equal. And so a scrutiny of the facts must be made in each case.

Mostyn J decided that on the facts of the case the case ought to be transferred to the Czech Republic IF AND ONLY IF, having been told of that decision, the Czech Courts agreed to do so within six weeks, otherwise it would remain in the UK.

 

The important things about this case are :-

 

1. For the first time I am aware of, the application under BRII was made not by the foreign country or court, but by a party to the UK proceedings (Mostyn J specifically concludes that this is acceptable under BRII and that the application can originate from inside the proceedings – thus for the first time there’s a mechanism by which a party in the UK proceedings can try to PUSH the proceedings to another jurisdiction, rather than having to rely on that country seeking to PULL them). In the words of Ron Burgundy – that’s kind of a big deal.

 

2. Mostyn J highlights that in the Czech Republic there is no non-consensual (forced) adoption, and the tension therefore with the Supreme Court authority in Re B that a placement order should only be made if nothing else will do.

3. He also highlights that it is not for English Courts to critique foreign systems or indeed the actions of foreign social workers.

4. The case is obviously going to be appealed, and that will be an opportunity for the Court of Appeal to give some guidance on this issue, which will crop up more and more frequently, of how to deal with cases where one or both parents is living or plans to live in another EU country by the time of the final hearing.

In my opinion the Court of Appeal needs to consider the very difficult issues thrown up by this case and to give definitive guidance as to how future Article 15 requests in public law cases should be dealt with. Certainly I would have thought that they would wish to emphasise that any court hearing a public law case where there is a potential Article 15 aspect should raise this with counsel at an early stage and give consideration to transfer to the High Court. But that will be for them. I confine myself only to granting permission to appeal to the local authority and to the Guardian. Any appeal must be heard with great expedition and I understand that the Court of Appeal would be able to hear the appeal in the first week of the forthcoming Lent term, and in fact will be giving directions later today.

 

So, is being from another EU country a get out of jail free card? Well, perhaps, perhaps not

 

    1. The evidence here suggests that save in cases of abandonment adoption in the Czech Republic is only permitted with parental consent. It is therefore even more momentous where a local authority seeks this remedy in a case where the laws of the child’s homeland would not allow it. Indeed, it may fairly be said to give rise to diplomatic and political questions about the relations between states within the Union.

 

  1. I am fully alive to the fact that in 2004 this family came to this country and settled here. Social Services were not involved with the family until October 2011. When a family immigrates here they must be taken to accept all our laws whether they relate to tax, crime or the protection of children. The fact that our family law permit non-consensual adoption (in contrast to the law of their homeland) is part of the price of the exercise of the right to settle here. This feature is a strong pointer against making the Article 15 request.

 

Mostyn J certainly felt that where there was the potential for a BRII application, the Judge ought to discuss that with counsel, and if so to transfer the case to the High Court.  Although BRII is dry and dusty and not a lot of fun, this decision – and whatever the Court of Appeal do with it, are going to be important for any child protection case where a parent is from another EU Country  (purely anecdotally, for my own caseload over the last five years, that’s about 15-20% of them).  It will be important that the advocates understand what would be involved in such an application and what the tests and arguments are, and important for those advising parents to know that this is an option which might be available.  For some parents, moving back to their birth country might not be something they want to do, but it is certainly a powerful tool particularly where that birth country takes a different view about non-consensual adoption.

 

 

 

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He’s not the Messiah, he’s a very naughty boy (or girl)

Posted on December 27, 2013 by suesspiciousminds

 

We do get to see some unusual names within our line of work, and sometimes we do wonder why the Registrar didnt counsel the parents ought of it. (I understand that in France, their equivalent of a Registrar has a right of veto on names)

This piece came my way care of Freakonomics, which was reporting a child who had been named Colt .45 after the handgun.  The parents actually posted a comment on the subsequent discussion and they seemed to me like very reasonable and nice people.

Freakonomics is very good on the consequences of names in later life, and what it is that parents are signifying, sometimes subconsciously, when they select a name. They have also done extensive research about the social migration of names (how names that are used by very rich people tend to find their way into poorer families by way of aspiration over time and then get dropped by the rich people) .

  They also reported on the life experiences of two brothers, one named “Lucky” and one named “Unlucky”   [And they report a similar case of two brothers with the surname Fail, one named “Will” and one “Never”

 

Anyway, in this report, a US Judge forcibly changes a baby’s name from  “Messiah” to “Martin”

 http://www.npr.org/blogs/thetwo-way/2013/08/12/211348996/judge-orders-babys-name-changed-from-messiah 

Peculiarly, it turns out that “Messiah” as a name for a child in America has hit the top 400 and is one of the fastest growing names.  {Of course, it occurs to me that Jesus is not that uncommon a name in Spain or Latin America, though I think it would raise some eyebrows in the UK}   Time will tell then, whether being named Messiah causes you problems in life, or whether it is empowering, or makes no difference at all.

 

Looking at this also threw up a report on a baby named “Storm” in America in 2011, whose parents decided that they were going to try to raise Storm as a genderless child and not tell anyone whether Storm was a boy or a girl. The idea presumably being that the child would form their own personality and tastes, free from gender stereotyping. Wonder if they are still doing it?

 The detail I like from this is passers-by slowing down their cars if they saw the family on the sidewalk so that they could shout “Boy!” at this baby.

http://www.thestar.com/news/gta/2011/12/26/the_genderless_baby_who_caused_a_storm_of_controversy_in_2011.html

{I found a British couple that had done the same thing, which lasted until their child was five, and primary school made being genderless pretty tricky}

http://www.telegraph.co.uk/news/9028479/Couple-raise-child-as-gender-neutral-to-avoid-stereotyping.html

 

This is curious though, it turns out that people do act different towards even babies depending on what they believe their gender to be

One 1975 study, published in the journal Sex Roles, put 42 non-parents in a room with a 3-month-old baby and three toys: a football, a doll and a gender-neutral teething ring. A third of the volunteers were told the baby was a girl, a third thought the baby was a boy, and a third were told that the experimenter couldn’t recall if the baby was a boy or a girl.

Unsurprisingly, when the volunteers thought the baby was a girl rather than a boy, they were much more likely to offer “her” a doll to play with. If they didn’t know the baby’s gender, the male volunteers tended to go for the teething ring, while women offered the baby the doll. That could mean that women see dolls as less gendered, or it could mean that the men in the study hewed more strictly to gender roles.

Overall, people held and touched the baby less if they thought “she” was a girl. When they didn’t know the sex, a gender difference emerged again: Men held the unknown baby less, while women held the baby more.

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The last resort – without Jonathan Ross

Posted on December 24, 2013 by suesspiciousminds

Re LRP (Care Proceedings : Placement Order) 2013 and some labour saving remarks from the High Court

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/3974.html

You may recall the seismic shift in the jurisprudence about adoption law that happened in autumn of this year, following Baroness Hale’s judgment in Re B and the subsequent adoption of many of her thoughts by the Court of Appeal in Re B-S and many others.

One of the things that was in my list of unanswered questions was the extent to which the Court, in deciding that “nothing else than adoption will do” has to explore or exclude long-term fostering as an option.  Is it mandatory to give reasons for ruling it out, or can the Court – having established that nothing else than permanent care by the State will do, simply determine that adoption has advantages that make it the more desirable option?

Well, although this is a High Court authority rather than a Court of Appeal one, it is fair to say that the High Court judge gave the “long-term fostering” argument pretty short shrift  – the case involved a young child, indeed a baby.

In fact, it only arose as an issue at all because the social worker was obliged as a result of Re B-S to put it in as a possible placement option and outline the advantages and disadvantages

The only other possibility mentioned within Ms Gorbutt’s report, is that LRP might be placed in long term foster care. It emerged during the course of the evidence that the primary reason for raising long term foster care, which Ms Gorbutt does not support, was so as to attempt to satisfy the requirements of Re B-S (supra) and other recent Court of Appeal guidance.

 

 

The analysis, whilst making it plain that adoption was the preferred option of the LA, said this

Ms Gorbutt’s report suggests that long term foster care would be a “means by which permanency can be achieved”; and that “a long term foster home can offer … commitment, security and stability within a new family…”

 

 

And Pauffley J’s take on this was  (get your copy and paste button ready, it’s CTRL C then CTRL V)

  1. I profoundly disagree with those contentions. Long term foster care is an extraordinarily precarious legal framework for any child, particularly one a young as LRP. Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long term care may find themselves moved from one home to another sometimes for seemingly inexplicable reasons. Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. Most importantly of all in the current context, a long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. There is no way in which a long term foster child can count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted.
  1. The realistic, as opposed to the fanciful, options are (i) a return to her parents or (ii) a placement for adoption. So whilst I am sympathetic to Ms Gorbutt, as I would be to any practitioner who is endeavouring to fulfil the requirements of the law in the way assessments are conducted and reports written, it is worth reiterating that the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched

Well, I completely agree with Pauffley J, in relation to a newborn baby (these proceedings were actually concluded within 10 weeks), long-term fostering is not a proper care plan at all.

The final sentence is interesting – of course, as a High Court judge, Pauffley J doesn’t have the power to overturn Re B-S (court of appeal authority), but it is a clear marker that so far as the lower courts are concerned, a laborious exercise of setting out why adoption is better than long-term fostering is just a waste of everyone’s time and they don’t want to see it.

(I told you that you would want the cut and paste handy)

That also seems to me to mean, that until the Court of Appeal tell us otherwise, once the Court reaches the point of “nothing else but permanent placement outside the family will do”  there is not a need to RULE OUT long-term fostering.

A welcome authority – let’s save the arguments on long-term fostering versus adoption for those cases where there is a genuine issue as to what the better option for the child might be.

It is also interesting that although the Court of Appeal authority required the LA to spell out the disadvantages to the child of making a placement order, Pauffley J goes through those disadvantages like a drug-fuelled chef julienning some particularly tender vegetables. Perhaps the vegetables had been pre-tenderised by some forceful handling?

  1. Placement order – the disadvantages
  1. The disadvantage of making a placement order is that LRP will be deprived of an upbringing within her natural family. She will not be brought up by a mother who is obviously able to demonstrate pleasing emotional warmth and affection for her child or by a father who, similarly, can be appropriately tender when minded to show that side of himself. It may be, as Ms Gorbutt suggests, that in future LRP will need some professional assistance so as to deal with issues of loss and identity if she is not to be brought up within her natural family. But experience suggests that so long as the adoptive family deals openly and sensitively with those matters – and age appropriately as the child grows – the potential for problems is markedly reduced, even eliminated.
  1. Ms Gorbutt comments that “in the event a culturally matched placement is not found, LRP’s diversity needs will not be met.” She continues, “There is a risk of placement breakdown.” Those fears, it seems to me, are misplaced. They fail to recognise the realities, well known to all professionals who practice in the field. I mention the most obvious. First that the younger a child is placed within his / her permanent alternative family, the better the chance of a very successful outcome. Second that LRP is an infant child born to “White British” parents of average to good intelligence so that ‘family finding’ for her should be entirely straightforward. Third, that there should be no difficulty at all in identifying a culturally appropriate placement. Fourth, that I may safely ignore the absurd suggestion that LRP’s “diversity needs will not be met.”

Do we get the feeling that other than in the rareified air of the Court of Appeal, judges on the ground are somewhat patronised by being told how to do their job and at having to laboriously read arguments about the blindingly obvious?

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I say Port Harcourt, you say the High Court…

Posted on December 23, 2013 by suesspiciousminds

Two different takes from the High Court on pretty similar facts  (on one the ‘parents’ are believed, on the other they are found to be liars). It demonstrates that High Court judges don’t talk much amongst themselves, otherwise the two Judges would have been mangling their chops in the canteen and both gone “I’ve got exactly the same case as that!” and of course that Judges are human beings and not automatons.

I have written about the Port Harcourt “fertility clinic” before

 

https://suesspiciousminds.com/2012/10/29/one-of-these-nights-youre-gonna-get-caught-itll-give-you-a-pregnant-pause-for-thought/

 

in A Local Authority v S and O 2011 where the High Court in 2011 considered a case where a woman went to Port Harcourt for fertility treatment (this being in Nigeria) and came back to England with a child who was not theirs. One of the big issues in the case was whether the couple had known this and been part of a deception to pretend that this unrelated baby was theirs or whether they themselves had been duped.

 The High Court was helped in that case by extensive research by the parents legal team which showed that Port Harcourt fertility clinic had some previous form and been investigated for duping mothers into undertaking a fake labour and tricking them into believing that the child was theirs. Given that it was established that they had tricked other women, the incredible story this ‘mother’ was telling became slightly less fanciful.

 

(I have in my mind that there was another Port Harcourt case, not long after, but I can’t find it at this moment. I really thought that I had blogged about it…)

 

This is another High Court case, just reported (although decided back in winter 2011) on the same sort of facts – again the woman went to Port Harcourt for fertility treatment, underwent a false labour and came back with a child – the issue again was whether the couple were duped, or involved in the deception themselves

 

Re E (A Child) 2011

 

http://www.bailii.org/ew/cases/EWHC/Fam/2011/3453.html

 

 

As a result of timing, neither of the two High Court cases refer to each other. This is something of a shame, since the extensive research and investigation in S and O 2011 didn’t get done in Re E , and the Judge in Re E understandably took the view that the couple’s account of what had gone in in Port Harcourt was remarkably far-fetched.  (It might have been that she still had doubts about the couple’s complicity had she known that Port Harcourt had been found to have done exactly what was alleged here in another case, but it might have tipped the balance)

 

This is the only bit where the worries about Port Harcourt’s practice comes into the judgment in Re E

 

He also said that he had done some internet research: he believes from that that this Clinic may be suspected of being one where young girls give birth and babies are passed on to other families. I accept that some such reference was found on the net: I am not prepared to act on this but it does not take research to ask the question and to entertain such suspicions. If E is not the O’s child, then the social worker is entitled to ask the question, where does she come from, and is not the obvious answer some form of organised trafficking? I have also asked myself the same questions, and like him I have no satisfactory answer.

 

 

Given that the Court weren’t given evidence about Port Harcourt’s history of deception, the account given by the couple was felt to be incredible, and there was some doubt in the Court’s mind that the couple had even been to the fertility clinic at all

 

  1. The evidence that E is not Mr and Mrs O’s child is overwhelming; no person could rationally believe that she was their child: indeed Mr and Mrs O’s case involves an assumption that in certain circumstances normal scientific laws are suspended or are to be disregarded. Quite apart from the repeat DNA tests, the negative scans and pregnancy tests, and the absence of HIV antibodies, all the evidence points to an overwhelming conclusion.
  1. The refusal by Mrs O to be examined supports the inference that she knows that her body does not bear the marks of childbirth: I do not accept her explanation for refusing the examination by Mr Naylor: she may also have feared, for whatever reason, that he would not find that she is currently pregnant.
  1. I have found on the clearest possible evidence that she did not give birth to E at the Clinic or elsewhere. I cannot positively find, even on the balance of probabilities, that she was actually treated at the Clinic at all, or that she underwent any form of simulated or pretend labour. In fact, I am inclined to think that she did not. I found Mrs S’s evidence incredible throughout: she was plainly being ‘helped’ to give her evidence by someone, perhaps Mrs O’s relative, although, I thought at one stage that I heard a man’s voice as well as a woman’s. Her account that Mrs O had undergone labour is a frank lie. Mrs S must know that she is not telling the truth, and Mr and Mrs O must realise this.
  1. I cannot imagine a circumstance in which a trained midwife could imagine that she had delivered a baby from a woman when this had not happened. A suggestion in some of the early documents that Mrs O may have been duped because the labour suite was in darkness was not pursued: both Mrs O and Mrs S say that the lights were off briefly because of a power cut but that the generators were put on very shortly afterwards and the room was properly lit. Some parts of Mrs O’s account are consistent with a false labour process: a drink of herbs to ‘induce labour’ leading to internal pain, a midwife putting a hand inside her and a gush of fluid which she interpreted as her waters breaking, could have been created to deceive her: but the account is just as consistent with a complete fabrication. The Clinic plainly had dealings with Mrs O because they have supported her account. No motive has been given for Mrs S to lie and deceive Mrs O: this is not a case such as the Haringey case (Haringey London Borough Council v C, E and another intervening [2005] 2 FLR 47) where Ryder J. was able to find that the ministry running the clinic had a vested interest in ‘miracle’ births. I cannot find that there were significant financial arrangements (other than the £250 which Mrs O said that she had paid): but I cannot find that there are not, and there must have been some incentive. The presence of Mrs O’s relative at the clinic with Mrs S when the doctor was not there points to some family connection and influence, and Mrs S gave evidence under her supervision. All these factors tend to support the case that Mrs O is not an innocent dupe. Further than that I cannot go.
  1. Mrs O spoke lucidly and clearly if with a good deal of emotion and anger and with no sense that she was deluded. Much of her presentation is consistent with pseudocyesis: for instance her swollen abdomen, which is documented and of which there are a number of pictures, and which would probably be impossible to fake: but it is also consistent with simple weight gain. The picture from the medical records that she had presented herself as being pregnant consistently from July 2009 until November 2010 is also consistent with a pseudocyesis: but it may also be consistent with a consciously simulated pregnancy. Also, having heard Mr Naylor’s evidence Mrs O backtracked on crucial features of the case previously accepted or presented: for instance denying that in February 2010 (at just about the time of E’s conception) she had told the doctor that she had felt the baby kicking: saying that he had suggested that to her, and her change of case about the ultrasounds in Nigeria. This suggests to me that she was able to take a tactical and rational approach to the question of matters relating to pregnancy which may be inconsistent with a fixed false belief. Also, as I have said above, Mr Naylor told me that in his experience of women with pseudocyesis he had never encountered a woman who had then claimed to give birth and produced a baby: although a common presentation was that a woman would be admitted to hospital claiming to be pregnant, and then once confronted with evidence that she was not pregnant, accuse the nurses of stealing her non-existent baby. On the other hand in the Haringey case Ryder J. did accept that the wife had been deceived into believing that she had given birth to three children, in rather similar circumstances to these and where Ryder J said that of that couple’s belief… “faith is the answer to what medical science cannot or will not explain“.
  1. I got the impression that Mr O showed more signs than Mrs O of an unquestioning belief in the supernatural: he referred on several occasions to believing in the ‘natural’ by which he plainly meant beyond the scientific. Mrs O attempted to give a rational scientific answer, stating that the herbs were used to prevent her from ‘spotting’ blood, and to prevent miscarriage, rather than to assist in a miraculous pregnancy, as Mr O said he believed.
  1. I am not able to hazard a guess as to how a fixed mutual and irrational belief as to the birth of a child can develop in both a husband and wife.
  1. Against all the other evidence I am unable to find that Mrs O has been duped, misled, or is living in a fantasy world. I cannot accept that she truly believes, particularly in the light of all she knows now, that E is her child. I do not accept that she truly believed that when she brought E into this country.

 

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“Will you walk a little faster, said a whiting to a snail”

Posted on December 23, 2013 by suesspiciousminds

An application (unsuccessful) to commit Mr Whiting for alleged breaches of an injunction made in the Court of Protection. Re Whiting 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B27.html

 

This was an application made by a Local Authority for a committal of Mr Whiting for alleged breaches of an order made in the Court of Protection, which had been designed to protect a vulnerable woman who lacked capacity to consent to sexual intercourse from any unwelcome advances.

 

The Judge praised the LA for good practice and good social work generally

 

 

  1. Too often, bad practice is rebuked and good practice is unacknowledged. I am happy to have this opportunity to redress the balance at least a little. However, I emphasise this for another reason – as later in this judgment I have found myself driven to make criticisms of the way this application has been pursued. I intend those criticisms to be constructive and to restate guidance. I do not want them to eclipse my positive acknowledgment of the social work practice here and the way that, in my view, it has afforded WAJ much better protection against the many vicissitudes of life. Most importantly, I do not want anything I say to weaken that relationship.
  1. Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009. The details of that conviction are not in my papers but I have been told that it is a sexual offence relating to exploitation of a vulnerable adult. Mr Whiting made it clear to the court that he did not want to play any part in the proceedings when the Court of Protection was looking at the issues that I have outlined as in its focus. He declined to attend. Nonetheless, in his absence, his role in WAJ’s life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.
  1. On 21st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows:

“(1) Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order.”

 

 

 

One can see perhaps why professionals would have preferred that Mr Whiting played no further part in the life of WAJ.

 

Here are the alleged breaches

 

 

  1. In this case, the breaches were pleaded as follows:

“(1) Leslie Whiting is alleged to have contacted WAJ eight times by telephone at the end of August 2012 in breach of paragraph (2)(c) of the enclosed order.

(2) Leslie Whiting is alleged to have contacted WAJ once by telephone during September 2012 – WAJ recorded the telephone call and played it back to her social worker, and the social worker has confirmed that the voice she heard on the recording was that of Leslie Whiting and that, in her opinion, the tone of his voice was aggressive. This is in breach of paragraph (2)(c) of the enclosed order above.

(3) Leslie Whiting is alleged to have contacted WAJ by telephone on or around 23rd October 2012. He is alleged to have been heard by Rachel Curl, the manager at a respite unit, making verbal threats to WAJ and also against WAJ’s mother. This is in breach of paragraphs (2)(b), (c) and (d) of the enclosed order.

(4) WAJ was found on 15th December 2012 by Cambridgeshire Constabulary at Leslie Whiting’s residence, 19 Myrtle Avenue, Peterborough. Leslie Whiting is reported to have been heavily intoxicated and aggressive towards the police officers. WAJ’s friend, Tony Armstrong: they had visited Leslie Whiting to exchange Christmas presents but when they had gone to leave his property, he became upset. Leslie Whiting is believed to have encouraged WAJ to visit him, in breach of paragraph (2)(e) of the enclosed order.”

 

 

If one were able to prove those, particularly the last, one would expect at least a suspended sentence.

 

Now, for reasons that are not plain to me, the application for committal was lodged in January 2013, and heard in November 2013, an extraordinary delay

 

In the autumn of 2012, and certainly by December, the Adult Services in Peterborough believed that they had grounds upon which to establish that Leslie Whiting had breached the terms of the district judge’s injunction. Accordingly, an application to commit was launched. The application notice is dated 11th January 2013. It is an application which has, to say the least, a very dispiriting litigation history. That I am hearing the case in November, and now December 2013, relating to alleged breaches in the autumn of 2012 tells its own story.

 

To enlarge on that a little, the Judge cited the hearing in September 2013

 

  • District Judge Eldergill heard the case on 18th September 2013. His order records the following: 

    “(2) The application was due to be heard on 15th January 2013 then on 29th July 2013 and then on 19th September 2013. On each occasion procedural irregularities have caused the hearing of the application to be postponed.”

    The district judge went on in paragraph (3) of that order to identify the relevant guidance for practitioners in order that those procedural irregularities might not dog the case further. It is, I think, helpful to set that out in this judgment. It reads:

    “(3) The applicant is referred to the Court of Protection Rules 2007, and in particular to Part 21 and Rule 9, Court of Protection Practice Direction PD21A; committal for contempt of court (practice guidance) [2013] 1 WLR 1316, 2013 EWHC B4 (COP); committal for contempt of court (supplemental practice guidance) [2013] EWCH B7 (COP); Part 81 of the CPR and the relevant case law.”

    The district judge also signalled, by way of completeness, at (4):

    “It is unlikely that any further adjournments of the application will be granted.”

 

Now, what was the evidence produced to demonstrate that those alleged breaches were proven?

 

  1. . The applicant sought to prove the breaches by the affidavit and oral evidence of a social worker. The affidavit the social worker spoke to, at the hearing of November 2013, was dated January 2013. Exhibited to it was a short chronology of similar date. There were fundamental difficulties with the affidavit, with the chronology and indeed the oral evidence. Timescales and dates were vague. There was heavy reliance on hearsay evidence from a variety of sources. There was a dearth of primary material – for example, mobile phone records – even though it appears they may have been capable of being obtained. The passage of time also meant that the social worker’s evidence was characterised by a lack of detail, but so too, it must be said, the affidavit and the chronology were decidedly sparse. I must also add that it was particularly frustrating that the photocopies of the chronology were barely legible and the original appeared to have been lost.
  1. The injunction from which the alleged breach arises is, as I have said, that of 21st August 2012. The fundamental problem with the first breach, dealing with each in turn, is that it relates to “the end of August”. Did that include the period before the injunction was made? At this stage that is simply not known. Were some of the alleged eight telephone calls made before 21st and some after? Again, the answer to that is not known. The allegation is simply not drafted tightly enough and, to my mind, fails on that basis alone.
  1. The second alleged breach fails for a similar reason. The social worker was able to tell me that she listened to a recording made by WAJ on her phone, for evidential purposes. The social worker said that she had listened to that during September. It could therefore have been any date between 1st and 30th September. Moreover, that was the date the social worker listened to the recording, not the date the call was received. When was it received? Again, that could not be ascertained. Given that the order itself was only made ten days prior to 1st September, it lets in the real possibility that the call might have been made sometime before that. The burden here is on the applicant and the standard is the criminal standard. This drafting simply lacks the degree of specificity that is required in an application of this kind, and that, too, fails.
  1. The third allegation relies entirely on second hand hearsay. The primary witness, whose evidence must be taken to be challenged, was not available, This did not begin to meet the requisite standard of proof. The fourth allegation, however, is, in my view, established. I am satisfied that the police attended Leslie Whiting’s home on 1st December 2012; I am satisfied that the social worker giving evidence was directly informed of this and; I am satisfied that Leslie Whiting was drunk and aggressive, and I am also satisfied, on the basis of WAJ’s actions throughout the previous months, that she was determined to steer clear of Leslie Whiting if at all possible. That she had attended at his home that day was, in my view, as a consequence of being lured or coerced, probably, as the social worker told me, induced by the prospect of Christmas presents.

 

 

One can obviously see that the only allegation proved to the requisite standard was the fourth. Of course, whilst the fourth was the most serious, by the time the Court actually gave judgment on it, it was nearly a year old.

 

This piece of the judgment is a salutary lesson for professionals (not least the lawyers preparing the evidence for the committal hearing)

 

  1. The commitment and sincerity of all the professionals working in this area is beyond any doubt. It has been on display in this case. What is required, however, is an intellectually rigorous relationship between the lawyers and the social workers in every aspect of the Court of Protection, of course, but particularly on an application of this kind. The lawyers preparing the case must realise that establishing breaches to the criminal standard of proof requires forensic precision and the careful identification of evidence to support each of the particulars of the breach. It seems to me that nobody has hitherto engaged directly in that exercise. It is striking that the best attempts to marshal the evidence were in fact made by WAJ herself. The process requires the lawyer and the social worker to work closely together to look at the order, to identify the breach and to marshal the material as if proving the constituent parts on a count on an indictment. Nothing less will do where the liberty of the individual is at stake.
  1. The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny. Collating evidence when working with those who, in certain areas of their lives, may lack capacity is inevitably challenging. Having here found the fourth breach to be proved, I propose to take no action in respect of it. A year has passed since it occurred and there are no subsequent allegations. To that extent, the injunction appears ultimately to have been successful. I do, however, intend to continue the injunction in the terms made by District Judge Rogers for a further twelve months, with liberty to Mr Whiting to apply to discharge.

 

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Section 37 reports are not a vehicle into which to pour professional angst

Posted on December 23, 2013 by suesspiciousminds

The High Court decision in Re M (Children) 2013, and the strong judicial comments about the need for section 7 and s37 reports to properly analyse the issues, AND a warning for Local Authorities who try to avoid responsibility for children in designated authority disputes. Important guidance for both LA lawyers and social workers within this.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3758.html

 

The facts of this case are quite extreme and unusual. They involve children who were living with their maternal grandparents. These grandparents had had themselves four children – the mother (who had been unable to care for the children), AM (who had been sexually abused by a man 20 years older than her during her adolescence) and twin boys. The twin boys celebrated their 18th birthday by murdering another grandparent and were convicted and imprisoned.

 

Those twins were subsequently released from prison and there was some suggestion that they might move in with the grandparents and the four children in question.

 

Somehow (it is not clear from the judgment) the case came before the Court and section 7 reports and then a s37 report was commissioned from the Local Authority.

(Non-lawyer note – a section 7 report is one the Court ask for to advise on where the child should live and what contact they should be having, and a section 37 report is one the Court ask for to advise on whether the children are suffering significant harm and if so whether the Local Authority propose to do anything about it)

 

This being a London case, there was a degree of dispute as to which Local Authority was responsible, there being three possible candidates. Anecdotally, I think whilst two warring LA’s can eventually come to terms, it is nigh on impossible for three to reach an accord. (The best you get is that Trumptonshire and Chigley both gang up and agree between themselves that this is a Camblewick Green case, and hope that poor Camblewick Green buckle under pressure) 

In this case, it seems that six months were spent quarelling about that, with in the meantime, no LA actually taking the lead in protecting these children or assessing the obvious risk. The Judge wasn’t very impressed about this, and any LA lawyer needs to be aware of the scathing remark at the end (underlining mine)

 

Against this backdrop, it is, to say the least, profoundly depressing that the Social Services’ response appears to have been, at best, minimal. For months three local authorities – Hackney, Enfield and Haringey – jostled amongst themselves as to who had responsibility to lead child protective measures. It follows that without a lead there can scarcely be focus. Quite how significant that failure was will become clear when I come to determine the disputed allegations in this case. By my calculation, at least six months were lost on this issue. I can see there are many reasons why Local Authorities in this climate might wish to avoid the burden of responsibility for a case like this. It inevitably absorbs already stretched resources, both financial and in terms of personnel. I have not permitted court time to be deflected into an investigation as to whether any particular Authority was acting unreasonably or was wrong in law. There have been too many other pressing issues in this case directly concerned with the welfare of the children now that need to be considered as a priority. I do not therefore condemn any one of those Local Authorities, but I do send this signal: that if Local Authorities seek to evade responsibility for child protection to avoid costs, they are likely to face liability in negligence, administrative law and under human rights legislation. As the family courts embrace the opportunities and advantages that greater transparency may bring, Local Authorities who behave in that way will not be able to avail themselves of the cloak of anonymity under which, in the past, they might have found refuge.

 

 

Having settled on which LA was to do the work, the reports themselves came under some scrutiny

  1. Many of the issues that I have just set out were known to the authors of these reports. They concluded, however, that the children should remain with their grandparents. Quoting from the second of the two reports, which I take to have been prepared sometime in early May or late April 2012 (for, like so many other documents presented in this case, it is undated) the author concludes as follows:

“There are some issues arising from recent interventions in both psychiatry, probation and social services in relation to how disturbed the grandparents’ own children, RM, S and SM present as. These adults have made significant allegations in relation to the treatment that they received at the hands of their parents and parents’ friends. It should also be noted, however, that these three children suffer from significant personality disorders and this fact will have a significant bearing on the reliability of the allegations. However, the allegations remain concerning and will need further assessment.”

The report continues:

It would be the Local Authority’s opinion, however, that at this juncture there is no evidence indicating that this placement should discontinue. Therefore the children should remain in the care of the grandparents.”

Earlier in the report the authors observed that the children appeared to be happy, secure and settled in the placement.

 

 

If you are thinking, that seems a bit skimpy, given the wide range of issues already outlined in this brief summary, you are not alone  (again, underlining mine)

 

 

  1. The Guardian has condemned the analysis in this report as superficial. But, in my view, the real flaw is that there is an absence of analysis altogether. The language is telling. It refers vaguely to “some issues”, “significant allegations”, the ubiquitous “concerns”. These are gateways to analysis, they are not, in and of themselves, analysis, and they are certainly not conclusions. Section 37 reports are prepared for courts in order that they can consider risk and what, if any, intervention is required under the available legal framework. They are not discussion documents or a vehicle in which to pour professional angst. Issues must not only be identified or raised, they must be thought through, evaluated and placed in the wider context as it is assessed at the time. Simple report is rarely valuable; it must be challenged, and an expressed willingness to participate must be measured against evidence of past participation. In other words, at the interim stage the full panoply of risk assessment has to be deployed. Absent these conventional tools any risk assessment is of limited value, perhaps meaningless.
  1. What does one draw in the context of these “concerns” from the observation that “the children appeared happy”, when the report itself refers to killings, sexual abuse, rape and incest? The report includes the following:

“On 23rd January 2012 a legal planning meeting was held to establish whether threshold was met to go into proceedings. We were advised that at present there was not enough evidence for threshold to be met to instigate proceedings to remove the children from the maternal grandparents’ care.”

That the threshold criteria on an interim basis were met is so obvious that it is redundant of any sensible argument. As to the proportionality of a removal, that is a wholly different question. It can hardly have helped sensible decision making that it was conflated into one test.

 

 

Given the facts of this case, the Court was clearly of the view that the threshold criteria were made out, and was unhappy that the s37 report  (and probably from the remarks in para 14 above the legal planning meeting) had blurred the issue of “is the threshold met?”  with “is an application for removal likely to succeed”

 

  1. Ms. Briggs, on behalf of the Local Authority, has spent much energy in her written closing submissions and indeed in her oral submissions addressing this point. Her essential argument is that the children remained with their grandparents until sufficient evidence emerged to establish what she referred to as the high test for interim removal. This, I am afraid, will not do. The fact is that the Local Authority failed to analyse the evidence that was already available to it. Ms. Briggs talks of the need for ‘close scrutiny of all historical facts’; the need for ‘primary material’; for a ‘definitive history from source material’. The court, she submits, must be persuaded that the child’s welfare demands immediate separation. But section 38(2) is an interim protective measure. Of course the best possible evidence is required, both to establish it and the proportionality of intervention, guided by the section 1(3) criteria. It is the two in combination that point to what the child’s best interests require, or even, to adopt Ms. Briggs’ term (itself gleaned from the authorities) ‘demand’. Evaluation of risk requires balancing the two seperate sections: the reasonable grounds for believing that the children had sustained significant harm within the definition of section 31(2) of the Children Act 1989, analysed within the welfare checklist criteria, to evaluate whether or how best a child can be protected until such point as the evidence is fully marshalled and, if necessary, put to the assay in cross-examination. Ms. Briggs put the test too high. She does so, in my belief, in a brave attempt to justify ex post facto the Local Authority’s actions.
  1. In the authority which she relies on, and cites to me, Re GR [2010] EWCA Civ 871, it is absolutely plain that Black LJ is precisely prescribing the process which I have just outlined. She says at para.41:

“The most recent case to which I would refer is Re B and KB [2009] EWCA Civ 1254 in which the appeal was against the dismissal of the local authority’s application for an interim care order. The trial judge had given himself what was described as an ‘immaculate self-direction’ in these terms:

‘whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents’ care.’

However, Wall LJ [as he then was] with whom Thorpe LJ agreed, was persuaded that the judge had failed to go on properly to conduct the required balancing exercise. He said:

’56. Speaking for myself, I find L-A helpful. I agree with the judge that the section 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB’s welfare did demand her immediate removal from her parents’ care and that there was abundant material (not least the views of the police) which warranted that course of action. In my judgment, KB’s safety, using that word in a broad sense to include her psychological welfare, did require interim protection.'”

  1. My criticism of the Local Authority is, that they did not really evaluate the risk to the child at all, and indeed later to any of the children in the public law proceedings at the interim stage. They have, rather, focused on the forensic difficulties of establishing the case. Even if that were a relevant consideration – and, in my view, it is not – then there was, in my analysis, proper material upon which to undertake the exercise.

 

 

 

I think this is a first for me, seeing an advocate representing the LA being criticised for putting the test for removal “too high”. 

 

 Clearly this case presented some significant forensic challenges and the marshalling of all of the evidence and properly testing it would require a lot of painstaking work, but the Judge’s critique here is that the LA did not assess the risk to these children based on the information that they already had.

 

 

  1. The section 7 report to which I referred earlier is dated 11th February 2011. It is signed by Alison Skerritt, the social worker, and countersigned by her deputy team manager, Dina Sturgeon. I quote only from two passages at pp.19 and 22 of that document:

“AMN, RMN and JMM have suffered little harm in their lives, and this is because they have lived with their grandparents who have protected them and kept them safe from harm. However, it would be fair to say that the children would be at greater risk of suffering significant harm if they were removed from their grandparents’ care to reside with their mother or their mother and LM, as SM is struggling to resolve her mental health problems. Furthermore, due to LM’s conviction, the Local Authority would recommend that he only have supervised contact with the children. [Later:] In conclusion for the reasons above outlined, the children are well placed and settled at their grandparents’ home. No concerns have been identified from any of the agencies involved, and the children and reports have in fact been very positive. As all parents are in agreement with the current arrangements for the moment, Mr. and Mrs. M have applied for a residence order to secure the wellbeing of their grandchildren.”

  1. As I work through the evidence in this case, just how superficial the enquiries of the section 37 report and the 7 report were, I believe will become all too evident.

 

 

Later on in the process, the LA took a rather different view of the risks involved, and sought to remove the children and had a care plan of adoption. There was a long list of findings sought, but just looking at the findings that were AGREED is quite illuminating as to how those earlier assessments of risk were perceived by the Court.

 

  1. (1) The mother has a history of mental health problems. She has a diagnosis of emotionally unstable personality disorder which causes her to behave in a volatile and impulsive manner. She has reported hearing voices. Mother has a history of attempting suicide by taking overdoses and self-harming.

(2) Mother has a history of substance misuse problems. Mother reports having misused cannabis, LSD, meth amphetamines and cocaine.

(3) LM has a history of substance misuse problems. He continues to smoke cannabis.

(4) The relationship between mother and LM is volatile and violent. The parents have hit and punched one another.

(5) On 1st March 2012 mother telephoned the police and reported that LM had cut himself and threatened to jump out of their sixth-floor window. When police attended they found LM on the floor with two deep lacerations to his arm which were self-inflicted.

(6) On 20th March 2013 mother telephoned the police and reported that LM had threatened to self-harm following an argument about money.

(7) The maternal family came to the attention of the Local Authority in 1996 when AM was 12 years old, because she had been running away from home.

(8) Several referrals were made when AM was 14. Referrals came from AM’s school, the police and the maternal grandparents. AM was absconding from school, running away from home, and was in a sexual relationship with KH, a man 20 years her senior, who had previously been in a relationship with the maternal grandmother and who claimed to be the father of JM and RM Jnr.

(9) AM was sexually abused by KH from the age of 13. The sexual abuse included penetrative sex. AM was introduced to KH by FH, her paternal grandfather.

(10) AM was memorandum interviewed on 14th January 1999 and confirmed her allegations that KH had raped her.

(11) The maternal grandmother allowed FH to visit the home, help with the gardening and take A out, despite being highly suspicious of him.

(12) In early February 1999 AM took a knife from the kitchen and held her siblings hostage in a bedroom. She said she wanted to harm herself.

(13) AM was placed at Degra House, a specialist residential, unit on 3rd August 1998 at the age of 14. She received intensive psychotherapy for the sexual abuse she suffered. AM presented as suicidal and self-harming during her stay at Degra.

(14) JM and RM Jnr. had behavioural difficulties in adolescence. They truanted from school, were eventually expelled and were sent to a tuition centre. Both boys were referred to an education psychologist.

(15) In 2006 JM and RM Jnr. were convicted of the manslaughter and robbery of AH, AM’s paternal grandmother. It is recorded that they were sentenced to nine years’ imprisonment.

(16) At the time of the twins’ arrest in 2006, a computer was found at the family home with 68 indecent images of children on it. No action was taken by the police regarding these images in light of the charges of murder against the twins. Ms. Briggs has advised me, and it is not contested, that these images were set at Category 4 by the Crown Prosecution Service, which, as I understand it, means that they involve images of penetrative sex with under-age children.

(17) JM and RM Jnr. both have diagnoses of severe personality disorder. They have both reported hearing voices, have expressed suicidal ideation and have self-harmed. They are assessed to present a high risk in the community.

(18) Prior to the twins being released, the maternal grandparents stated that they did not consider that the twins presented a risk to children and they disagreed with the restrictions placed on the twins.

(19) Maternal grandmother provided mother’s telephone number to JM prior to his release from prison. He then sent several texts of a sexual nature to the mother.

(20) The maternal grandparents have said that they believe the mother deliberately engineered RM Jnr’s recall to prison.

(21) In 2006 F was convicted of two counts of sexual activity with a child under 16. The girl concerned was 13 years old. She disclosed that she was asleep and woke up to find F touching her, her bra undone. F [by which is meant LM] was sentenced to two years conditional discharge, and was on the sexual offenders’ register for two years.

  1. Those 21 findings are all agreed facts in this case. In my view, they tell their own story.

 

 

I won’t recount them all here, but in addition to those 21 agreed findings, a further 24 findings were made, including that at the time his daughter was being sexually abused in adolescence by an older man KH,  the grandfather was aware of this and that KH was boasting of it to him

 

  1. 34.   (1) In evidence and cross-examination both maternal grandparents acknowledge that their daughter was indeed sexually abused by KH – a man 20 years older than she was – and that he had been abusing her since she was 13 years of age.

(2) The grandfather agreed that he knew KH had claimed to be in a relationship with a 13-year-old girl when he, KH, was 19. Moreover, the grandfather emphasised that that was something that KH “boasted about” (I use his phrase) and “bragged about” (again his phrase). The grandfather referred to KH in evidence as “a paedophile”, though it was clear that he was not entirely comfortable with that term, and later withdrew from it. He withdrew on the somewhat tortuous basis that KH might merely have been bragging about this relationship or, to put it another way, pretending to be a paedophile when he was in fact not one. In my view a rather ludicrous proposition.

(3) Both grandparents knew that FH was associated with KH, and they accept that he raped their daughter, A.

(4) The grandfather knew, and spent time with, KH, whom he knew, it seems to me, beyond any doubt, to be a paedophile.

 

 

I don’t think it will terribly surprise anyone that the Court came to the conclusion that the grandparents were not safe and that the children had to live elsewhere.

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Secret decision to remove

Posted on December 21, 2013 by suesspiciousminds

(No, I’ve not asked Christopher Booker to do a guest blog, but this is a case which is worthy of attention, given how much press coverage the Italian C-Section case received. I am quite surprised that this made it through the Lord Nueberger view of article 8 and what the word necessary means in that context)

A Local Authority v C 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4036.html

This is unusual, because it is an application that the Local Authority made BEFORE the birth of the child. I have only ever seen one of these before, the one referred to in the judgment Re D 2009.

    1. The local authority’s application is, therefore, for a without notice order which is not to be served on the mother that:

(a) she lacks capacity to make decisions relating to the future care of her child when born;

(b) it is lawful as being in the best interests of her child when born for its Claimants, its servants or agents immediately to remove the child from the mother’s care and to maintain that separation pending a Court considering the Claimant’s application from an emergency protection order or interim care order;

(c) it is lawful for the minimum necessary force to be used, if required, in the course of effecting and maintaining such separation;

(d) it is lawful for the police to assist in the carrying out of the order by utilisation of their powers pursuant to section 46 of the Children Act 1989; and

(e) it is lawful for the Claimant to withhold from the mother its intention to remove her child from her immediately following birth and, in this regard, not to involve the mother in the planning process for her baby.

(I note that it is a shame that the order accompanying the judgment is not published, since (b) is interesting. It seems as though that might be akin to an Emergency Protection Order made before the baby is born, to take effect at birth. Edit – actually what it does is tell the police (d) that they can lawfully remove under a PPO.  That raises even more questions, since the existing law is that Police Protection ought to be behind making an EPO or ICO application in the pecking order – Liverpool v X, for example)

The mother in this case was said to have profound mental health problems and other issues

Mother has long-standing mental health problems and an IQ of 64. I have read a report from her treating psychiatrist. Her diagnosis is of paranoia and psychosis. She also abuses drugs. She is described as challenging, and she can be volatile. She has had two previous children, both of whom were removed from her very early in their lives. The elder was removed from her care in 2007 aged three weeks, when mother physically injured that child by causing twisting injuries to his arms and bruising to his chest. Both those children now live with those children’s father. She is now pregnant again, by a different father, with an estimated delivery date of 22nd September 2013.

What were the arguments for not telling her?

    1. The local authority perceives there to be a grave danger to the unborn child immediately after birth, in the light of the mother’s mental health problems and the increasingly worrying presentation which has manifested itself to her obstetrician, to social workers and to others. She is undoubtedly incapacitous in some respects, the extent to which is not clear because she has not been assessed. She is likely to have understanding in a number of respects, particularly those aspects of her own health care and her own wishes and feelings about her child which do not require sophisticated intellectual understanding.
    1. Her consultant obstetrician found a very marked deterioration in her presentation. He describes how her usually more placid demeanour has become more and more aggressive, hostile, confrontational and oppositional, during the monitoring of her pregnancy. She has had, until recently, a fairly trouble-free pregnancy and her two previous deliveries were normal. She has had some internal bleeding. It is not clear how accurate her description of the severity is of that. There is a fear there may be problems with the attachment of the baby’s placenta. She became very agitated when he needed to examine her and refused to be examined. She is not currently medicated or accepting her medication, and this cannot take place until after the birth. She showed pressure of speech; she swore, was verbally aggressive and she had what the obstetrician called “an outburst”. She was threatening. A number of minor issues were raised by her which it was impossible to “de-escalate”. He is extremely worried that the mother will not be compliant with staff during the birth process as a result of her discussions with him. I have been referred to his notes recorded in an internal meeting.
    1. If professionals attempt to hold any form of conversation with her on a topic with arouses her emotion she becomes hostile very quickly. All the professionals who have been dealing with the mother are concerned that her mental health is currently deteriorating.
    1. Her consultant psychiatrist reports that it has proved impossible to have a coherent rational conversation with her. She is “very thought disordered”. The psychiatrist anticipates a struggle if the mother is asked to hand over the baby at birth. He believes that the risk to the baby when born would be high if the mother were to be allowed to hold the baby. He also infers that the mother’s mental health was not as severely effected at the time when her older child was injured since she was not known to mental health services at that time.
    1. All those who have had dealings with her think it highly likely that the mother would inadvertently harm the baby whilst attempts are made to remove it from her.
  1. The view expressed by all the professionals is that if she is told about any plan to remove the baby at birth or after birth (under an emergency protection order or interim care order) this will exacerbate the problems with her mental health and “increase the already risky situation that is likely to occur following the birth”. She is presently in a psychiatric unit and arrangements are being made for her to undergo her delivery at a local hospital.

You should also note that the mother was not represented at THIS hearing, even through the Official Solicitor  (the agency who act on behalf of parents who lack capacity to instruct a solicitor). This was discussed, here

I raised the question with Mr Jones during the course of his carefully presented argument as to whether or not it would be appropriate for me to indeed appoint the Official Solicitor (if he so agreed) to act on behalf of this mother, and for the Official Solicitor to be informed of the nature of the application (or indeed any order), in order that representations could be made to the court. However, I perceive that the Official Solicitor, or indeed any legal representative acting on behalf of a party, incapacitous or not, cannot be bound to withhold information which comes to their notice from their client. And it seems to me that this mother probably has the capacity to understand the nature of this application and that the local authority intends to remove the child from her. In my view, the only basis upon which a legal representative can agree not to disclose information to their client is if that client consents to that course of action, and in order to obtain such consent the Official Solicitor would have to alert the mother to the nature of these proceedings. Mr Jones tells me that the authority shares that concern.

So, the order was made, using the authority of Re D, and the principles set out within that judgment

    1. I have come to the conclusion from the documents which I have read and the submissions that I have heard, that this is indeed a highly exceptional and unusual case and that the history of the mother’s mental health problems, her mistreatment of her other children (and there are other assertions of ill-treatment as well as the injury to the baby), the mother’s increasing volatility, irritability and inability to accept the concerns of others and indeed her deteriorating mental health, do give rise to an imminent, serious and present danger to the child when it is born, in particular of an inadvertent injury to the child if the child is sought to be wrested from her.
    1. It seems to me that the only way in which that risk and danger can be guarded against is by way of an order that the baby be removed immediately upon delivery. I understand and acknowledge what a drastic step this is, how deeply distressing this will be to this mother (as it would indeed be to any mother newly delivered of a child), and I am in no doubt that she will understand what is happening to her in these circumstances. But I am persuaded, and indeed now convinced, that there is sadly no other way of safeguarding the interests of this child than by making an anticipatory declaration as I am asked, in order that intervention can take place at the earliest possible opportunity.
    1. Weighing up the options (as I must do), removal is the one which safeguards the child’s interests whereas non-removal does not.
    1. This will not deprive the mother of an opportunity to be heard on an application for an emergency protection order or interim care order at the earliest possible date.
  1. I recognise that the first moments after a child’s birth are particularly precious and can never be recovered, but nonetheless the opportunity to have her case heard at the earliest possible moment will go some way to preserving the mother’s opportunity to have a relationship with her child.

It seems therefore, that what the Court did was use the inherent jurisdiction to authorise removal of the baby at birth PENDING a very fast application for an Emergency Protection Order.  The Judge makes it plain that the EPO application must be ready to be heard very swiftly

In Mr Jones’ draft order he refers to an application for an emergency protection order or an interim care order. This local authority is in no doubt as to the basis of its potential application and the application must be prepared now and must be lodged at the first possible moment during court opening hours after the child is born. If I say ‘immediately’, that means that it does not go down by courier; it means that nobody is still checking for spelling mistakes, it means that it is all sorted out and it is all ready to go and it is with the court at the drop-box or in the court office. I direct that the local authority contacts its local Court where the application is to be issued to ask that special arrangements be made for receipt of this emergency application.

I have some problems with this judgment and decision (not as a matter of law, the Judge followed Re D and balanced things but as a matter of principle and human rights).  The remedy here for the removal at birth is that the mother has the opportunity to challenge within a few hours that decision at the EPO hearing. But how realistic is that?

Firstly, she is going to be in a state of complete shock at the removal, which will be a total surprise to her.  (I know that lawyers could look at the history and say “well, an EPO application was likely” but from mother’s perspective, if social workers have been working with her and never said that the baby would be removed, she might well think that she will keep the baby)

Secondly, she is also in the immediate aftermath of childbirth, a process which is fairly stressful, painful and somewhat discombobulating  (that is a huge understatement) – not putting one in the best shape to get dressed and get on a bus to court

Thirdly, when she gets to Court, she is not entitled to instruct a solicitor to represent her, as she doesn’t have capacity

Fourthly, the Official Solicitor hasn’t been warned of the pending application so that they will be ready at court to represent her

So a vulnerable woman, with mental health problems, in the immediate aftermath of childbirth will be in Court, reeling from the shock of removal and representing herself at a contested removal hearing.

Forgive me if I don’t think that this is terribly fair.

In addition to that, the legal tests for an Emergency Protection Order are rightly very high, following Re X, and are particularly high when the Court is only hearing one side of the story (as here). Shouldn’t the Court, when making a pre-emptive EPO using the inherent jurisdiction have to meet an even higher burden on the evidence than Re X?

I don’t blame the LA here – the facts of the case make this a very tricky and difficult decision, and they did place it before a Court for consideration. Nor do I blame the Court, who applied the existing principles, had all of the evidence when I have only seen a flavour of it, and had a hard judgment call to make.  But I do think, and I suspect many of my regular readers will think the same, that this mother has not been fairly treated. Is the fact that she would react very very badly to the news of the plan for removal really sufficient to take from her her article 6 right to a fair hearing about that removal?

Do we have a proper system in place for mothers who have profound mental health problems, not least because often their drugs to control their condition aren’t conducive to being taken in pregnancy? Shouldn’t we be doing more? What are the safeguards for people like this mother?

(I don’t think this will be opening floodgates – the 2009 decision was viewed by most lawyers who read it as being something that would only be used in the most dramatic and extreme circumstances. I’m not sure these are those, however.  I do honestly think that this case probably justifies more public debate than the C-Section case – at least she had legal representation, even if one could argue that she didn’t get much of a say in it )

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B-S compliance

Posted on December 18, 2013 by suesspiciousminds

I think that this case might be useful for practitioners (and perhaps even for Courts)

Re HA (A Child) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3634.html

This is a High Court case, decided by Baker J, in relation to an application for a Care Order and Placement Order.  The Judge sets out very carefully the jurisprudence, and does so with his customary style and efficiency – I don’t think many Courts would go far wrong borrowing from his approach as to summarising the relevant law.

What he also does, is set out the judicial analysis of the advantages and disadvantages of the two main options. I think that this is useful because what Re B-S et al, have done is given us some very broad directions as to what the spirit of judgments would be post the new culture, but with directions, looking at a map of how someone else got there is much more useful in a practical sense.

Baker J does that here, and it is a good one to look at, to see how a Court deal with the B-S analysis in practice. (Of course, I could be wrong and someone will appeal and the Court of Appeal will look sniffily at it, but I don’t get that sense reading this judgment)

The Judge adds this remark, and everyone who has done care proceedings will pick up the point that Re B-S will inevitably mean that in some cases where a parent has made a difficult decision and is normally spared a painful examination of their mistakes being read aloud to them by a Judge will no longer be spared that, though it can still be done with some kindness.

 I have been very conscious preparing this judgment that the requirements explained by the Court of Appeal for a fully reasoned judgment mean that this court must be frank and clear in its analysis. That involves saying things which this mother will undoubtedly have found difficult and distressing. I regret that very much. I am only too aware that this mother has herself been a victim, both as a result of her disability, and her background. It is, however, unavoidable that the court has to set out in full its reasons for making this life-changing decision for H. The reasons for my decision, however unpalatable to the mother, have to be fully recorded.

 

 

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Reporting restriction order

Posted on December 18, 2013 by suesspiciousminds

There is a new Reporting Restriction Order case up – Re TM 2013, decided by Holman J.  In this case, there is a blanket ban on publication of information about the case, in a very wide sense.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4043.html

The purpose of these few words is solely to explain why I am imposing temporarily what has just been described as a blanket injunction on any reporting whatsoever – whether in a newspaper, by broadcast, or in any form of web-based communication – of the existence of these proceedings or anything that has taken place in court today. I do so because that is, of course, a very strong and grave restriction on the Convention right of freedom of expression which underpins the democratic rights of us all. These proceedings were listed for hearing in public, and every single word of them today has taken place in public, with journalists present in the court room. I am now delivering this short judgment in public, but this judgment, like everything else that has been said today, will also be the subject of the same temporary blanket restraint.

That immediately makes one reach for Roget’s Thesaurus of “Secret Court Outrage phrases”, but bear with me.

The Judge goes on to point out that the parents did not attend this hearing, and that part of the reason for the blanket ban on publication of details is that it would be truly ghastly for them if they were to read a story in the Press about what was happening to their child and learn something new from that reporting, rather than from the doctors caring for the child.

  • I have been very concerned throughout today at the complete absence from the courtroom of either parent or any representative on their behalves. It is very sad indeed that there has been this breakdown, which I hope is only temporary, between the parents and the hospital concerned, and I am extremely anxious that every possible step is taken to seek to repair the damage. There is a local authority social worker who knows the parents well, and steps are being taken, as I understand it, to see if that social worker can directly visit and engage with the parents.  
  • There is a real risk here that if I conclude today’s hearing with some final judgment and decision, that may serve only to deepen, rather than heal, the difficulties that currently arise. It is not difficult to imagine that a parent, who already feels in some state of disagreement or even conflict with a hospital, may feel all the more aggrieved if he or she learns that some legal proceedings have taken place, as it were, behind their back. It is desperately important that as soon as reasonably possible the relationship between the mother and the child herself resumes, and desperately important, if at all possible, that the advised medical treatment moves forward consensually rather than as a result of some court order from the outside.  
  • Because I am not able to be satisfied that either parent has been appropriately served, it seems to me that I have really no alternative but to adjourn this hearing. The treating doctor, Dr J C FRCS, has given extremely careful, measured, clear and sensitive evidence today. He has made clear that there is no serious risk of harm to the child if there is a delay of a few days in moving to the next stage of treatment, however much they might have wished to have done so now or even before today. So this is not a situation of such urgency that a grave risk to the child would override considerations even of justice to a parent.  
  • For those reasons, I am clear that I must adjourn this case part-heard to next Tuesday, which has been identified as the only available clear court day next week. The reason why I make the blanket injunction against the press really arises very obviously out of the facts that I have just described. I wish to make plain that I, as much as any judge, and perhaps more than many, am very committed indeed to open justice, particularly in this type of case. The press are very welcome in the court room; and, so far as I am concerned, provided the identity of a child and his or her immediate family is protected, they are normally very welcome fully to report anything and everything that is said in the courtroom. But it is obvious that in the current situation it could be little short of catastrophic – when I am not sure that either (or both) parents are even properly aware of these proceedings – if either parent were to turn on their wireless or open their newspaper this evening or tomorrow morning or over the weekend and read something there which revealed to them (however anonymised it might be) that some public proceedings had taken place in relation to their child in a courtroom. That clearly could have a devastating effect on relationships between the parents and the hospital, with a severe knock-on, damaging effect on the relationship even between the parents and their child.

As Holman J points out, he is a judge who is very keen on transparency, and having to take this step made him somewhat uncomfortable, but that given that the facts of the case would be likely to identify the child (at least to the parents) they ought not to learn of these important issues in the papers.

A difficult one, and one hopes that the parents re-engage with the process and attend the hearing which will move the case forward. Whether they agree with the treatment or not, it is going to be important for their views to be heard.

Obviously, with an RRO having been made, I would be unable to have comments that go further than the information set out in the judgment, and would prefer not to discuss the particular case at all (as we don’t know what we don’t know).

I do however, applaud the publication of the RRO and agree completely with Lucy over at Pink Tape about the importance of RRO judgments being published as soon as possible – for two reasons – they sometimes raise issues of public importance which can be discussed whilst keeping carefully within the RRO terms, and secondly that publication of them means that they are less likely to be inadvertently breached.

UPDATE – the parents did engage with the second hearing, and a judgment that gives more information is provided here  – there is still an RRO on identifying those involved, or going into more detail that is in the judgment. The RRO was served on broadcasters as well as print media. Very sad situation for everyone concerned.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4103.html

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