Author Archives: suesspiciousminds

Now you found the secret code I use

Posted on December 18, 2013 by suesspiciousminds

(Freemen of the land, and whether you can ‘jump out of the system)

When I was an impressionable teenager, computers were all the rage. I had my own computer, and through exposure to films such as “Wargames”   (would you like to play a game Y/N?   Let’s play Global Thermonuclear War”)

I and many of my peers were under the impression that we could, if only we had the right password or combination of keystrokes, seize control of computers used by corporations and get them to do our bidding.

 

[Actually, I probably would have been a lot richer, if much more nervous of sirens, had I continued in that belief and learned how to hack properly, but that’s by the by]

 

Anyway, one of the big rumours of my adolescence, was that if you went upstairs in Boots, where there were test computers set up to play about on  (99% of the time, they were used in this sophisticated code  :-  10. Print “Steven is Skill”   (or “Steven Smells”  depending on whether or not you were Steven, or an adversary of Steven)   20  Goto 10)  and typed in the right combination of numbers and letters, you would get into the program that Boots used to operate their shop. You could turn the lights on and off, make the escalators run backwards, all sorts.

 

Nobody ever managed it [because it was b***ocks], but I can quite see the appeal that it held for me, thinking that there was a passport to all sorts of joys and benefits, if only you knew exactly the right sort of word or phrase to use.  

 

[Probably part of the appeal of Harry Potter, is that we all still think even as a sensible adult that we could use magic, if only someone taught us how to do it…  perhaps that’s just me.  In case you are in any doubt, I would use my magical or superpowers for evil]

 

 

Anyway, rambling lead in over, onto the actual topic, which is the Freeman of the Land movement.  This crops up now and then in care cases – invariably amongst males of a certain age   (young enough to be able to use the internet, but too old to know that you should take 98% of what is on the internet with a scoop of salt). 

 

I have had colleagues say “This is a really unusual letter I’ve just received”, looked at it and seen that it is at right angles to reality,  and been able to explain to them that they are dealing with a Freeman of the Land.

 

So, just in case you too have come across such a thing and hadn’t recognised it, this is a guide to identification. I can’t offer you a solution, but at least you will know what you are dealing with.

The Freeman of the Land movement effectively believe that you can avoid any unpleasant consequences of the law, or the Court system, by simply deciding that you exist outside the law, that you “step outside the system” by asserting that the law does not apply to you.

 A common ‘trick’ to this is to mentally split oneself in two and to talk about yourself not as Dougal Zebedee but  “The official representative of the legal fiction known as Dougal Zebedee”  or  “Dougal of the family Zebedee”  or “The flesh and blood man Dougal of the Zebedee family” or so forth. 

 

The belief here is that the law only applies to Dougal Zebedee, but you aren’t him, he is just a legal fiction. You are someone else, and thus the consequences that would come Dougal’s way are nothing to do with you.

 

That sort of convoluted way of referring to yourself in the third person is not, in the context of legal proceedings, an indication that you’ve been watching rather too much Game of Thrones, but that you are a Freeman of the Land or that you have stumbled across a website with some ideas that you thought were awfully clever.

 There’s some clever (if misguided) stuff going on with Freemen of the Land arguments, most of it downright peculiar, but it is so different to the arguments that one normally hears about the facts of a case or different interpretations of a piece of statute that it is quite easy to be flummoxed by it.  When someone starts with Magna Carta and that we are all governed by admiralty law, that’s not the sort of stuff that lawyers or judges are accustomed to dealing with, so there tends to be something of a goldfish response.

 

It reminds me quite a lot of the people who put huge amounts of effort into designing perpetual motion machines, many of whom have provided what seems like very competent and capable science to explain how their machine works; but who lack the fundamental underpinning of physics that would have told them that the device can’t possibly work and it is a waste of time trying.

 

[Annoyingly, I can’t recall the name of the physicist who every time he received such a proposal sent in reply a stock postcard saying “your invention, in order to work would breach at least one of the three following Laws of Thermodynamics,  almost certainly the Second, and thus does not work”…  So I’ll just quote Arnold Sommerfield, who is spot on   “Thermodynamics is a funny subject. The first time you go through it, you don’t understand it at all. The second time you go through it, you think you understand it, except for one or two small points. The third time you go through it, you know you don’t understand it, but by that time you are so used to it, it doesn’t bother you any more.” ]

 

 Some of the arguments deployed by Freemen of the Land as to why the law doesn’t apply to them (or sometimes to anyone at all) include for example :-

 

 A UK law isn’t valid until it is approved by the Monarch, and the Queen did not swear the correct oath at the time of her Coronation so she is not legally the Queen, therefore no laws made under the Reign of Queen Elizabeth have any legal status.

 

Or

 

The Act of Union was unlawful and therefore any law postdating the Act of Union is also unlawful

 

Or

 

We are all legally dead and the laws don’t apply to the dead

 

Or

 

The fact that a registration document on a car refers to the ‘registered keeper’ means that there is no concept of ownership in English law

 

 

But all at their core being the concept that the law does not apply to this person in question  – other ready ways to recognise a Freeman of the Land are references to Magna Carta, demanding to see a Judge’s qualifications and certificate of office, references to maritime or admiralty law.

 

 There is not, so far as I am aware, a judgment in the family Courts which deals with Freemen of the Land or gives any guidance on how their arguments should be considered.  [There have been some cases in which there has been a flavour of it, but the reported judgments don’t get into any detail]

 

The Court of Appeal have just dealt with an appeal where the mother had been deploying these arguments  Re J (Child) 2013

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1685.html

 

but backed off at the appeal hearing

 

 

  1. The paperwork reflected that, as had also been the case in front of Judge Bromilow, M and IM considered that they were claiming to proceed under “Common Law Jurisdiction and Authority”. They considered that this affected the proceedings in a number of ways. For example, in M’s skeleton argument for the appeal she said, speaking of the proceedings at first instance, that:

“we established Common Law Jurisdiction prior to the hearing and Mr Bromilow confirmed he was on his Oath before the hearing began. Therefore, as a Court de Jure was in effect, no consent means Mr Bromilow had no authority”

Another feature was that M treated the name by which she would normally be known as her “legal fiction” and insisted that she be addressed by a rather differently formulated version of it. Furthermore, she and IM did not consider they were bound by orders to which they did not consent.

  1. The local authority submitted to us that M’s then adherence to this notion of Common Law Jurisdiction and Authority had contributed to the case being challenging to manage. I have no difficulty in accepting that submission. The judge described the material sent to the court by M by way of evidence as “voluminous” (§19 of the judgment) and that description is corroborated by the bundles supplied to us, containing both the original material that formed part of the care proceedings and new material generated for the appeal.
  1. M freely acknowledged to us that she had been under IM’s influence and had developed misguided beliefs. She put this down to her vulnerability following an accident she had had, about which I shall say something later. She accepted that her reference to “Common Law” was wholly inappropriate and she said she could understand why objection had been taken to IM. She made a prepared oral submission in support of her appeal which was in a distinctly different tone from that adopted in her written submissions and in which her former beliefs played no part. She also abandoned some of her grounds of appeal. This was sensible given that they could not have succeeded. The effect of M’s new constructive approach was to enable us to concentrate on the issues that required determination.

 

 

That meant that the Court of Appeal didn’t need to give judgment on the mother’s previous bold submissions that a Judge has no power over her and that she is a legal fiction. That’s a shame for me, as I think a judgment about this whole concept is long overdue, but never mind.

 

 

So at the moment, the best approach will be to gently and politely explain that the magic tricks don’t actually work, that the Court will eventually find that the law does apply to them, and that it would be better to make the arguments based on the merits of their case, shedding any nonsense about Magna Carta, the Act of Union or maritime law.  The Judge will listen to those arguments, and if they are made well, may agree with them.

 

There’s a very nice retort in the Canadian authority I link to later

 

You cannot identify one instance where a court has rolled over and behaved as told. Not one. Your spells, when cast, fail.

 

 

 

I would just look at it this way :-

 

If Ian Huntley had gone to criminal trial and said in his defence “Yes, the legal fiction known as Ian Huntley murdered two children, but he is just a fictional legal construct, and the person speaking now is Ian of the family Huntley and I am not responsible and the Homicide Act does not apply to me, let me go”

 

Do you think he would now be a free man?

 

That’s a fairly decent test to how the Court is going to look upon your Freeman of the Land arguments.  Honestly, truly, there hasn’t been a case in which these arguments have been deployed and the Court has just rolled over and said  “hey, it turns out we are powerless against this guy”

 

 

[If you want chapter and verse on how the Canadian Court dealt with someone running these arguments, and provides a dissertation on the various techniques and devices and how the Canadian Courts have rejected each and every one of them, each and every time they have been deployed

 

http://www.canlii.ca/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html  ]

 I would welcome something similar in English law, for the benefit of Judges who have to tackle this on a piecemeal basis.

 

For some of the background on this piece, I am very grateful to a number of law bloggers who write in other fields, and particular to Adam Wagner’s UK Human Rights blog who pulls a lot of it together here  [His title is a quotation from the above judgment]  :-

 

http://ukhumanrightsblog.com/2012/09/30/freemen-of-the-land-are-parasites-peddling-pseudolegal-nonsense-canadian-judge-fights-back/

 

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conditions on placement order, what does the Fox say ? (By fox, i mean Court of Appeal)

Posted on December 17, 2013 by suesspiciousminds

 

The Court of Appeal in Re A (Children) 2013 grappled with an interesting issue.  In the care proceedings, the Judge was weighing up the needs of the children and reached the conclusion that adoption was in their best interests IF and only IF, the adopters that the LA would find in the future would meet a series of conditions. The Judge then reserved the case to herself for any future applications and made a Placement Order with a series of conditions – if the conditions weren’t met, the placement order couldn’t be exercised.

“2. The court has accepted the list of attributes of prospective adopters for M and K recommended by the court appointed expert psychologist, Mrs Buxton, that as a pre-requisite to placement of the children for adoption, prospective adopters to be suitable must be:

a) two in number;

b) energetic;

c) free from attachment difficulties of their own;

d) experienced carers;

e) fully appraised of the children’s background, attachment difficulties and placement needs for the duration of their minority and willing to undergo specific training so that they will be able to cope with M in particular;

f) there must be no other children within the home

g) ready, willing and able to promote direct face to face contact with their brothers, B, B and L preferably four times per year but at least a minimum of twice per year.

3. The court was satisfied on the basis of all the evidence before it and on its analysis of the welfare checklist issues that adoption of M and K was proportionate and the most appropriate care plan to promote and safeguard their welfare, save that the care plans are approved and placement orders granted on the basis that the list of attributes set out above is adhered to by the local authority.”

The LA appealed that, on the basis that this was law out of thin air (no such thing as conditional placement orders) and that this was in complete breach of the separation that Parliament had set up between Courts (decide the facts, make the decision about applications and orders) and LA’s (deliver the orders on the ground and make day to day decisions)

The Court of Appeal having forgotten / ignored that principle entirely in Neath Port Talbot, found it again down the back of the sofa.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1611.html

    1. All parties accept Mr Rowley’s description of the statutory boundary that exists between the role of a court and that of a local authority upon the making of an order authorising placement for adoption under ACA 2002, s 21. The statutory structure established in relation to placement for adoption orders is, in this respect, on all fours with that which applies to final care orders under CA 1989, s 31. The House of Lords decision, and in particular Lord Nichols description of the inability of a court to impose conditions upon a final care order, in Re: S; Re: W (Care Order: Care Plan), applies in like manner with respect to an order under ACA 2002, s 21 authorising placement for adoption. No party before this court sought to argue to the contrary and there cannot be any ground for drawing a distinction between the two statutory schemes in this respect.

 

    1. In the absence of any express statutory provision to the contrary, Parliament must be taken to have intended that the ‘cardinal principle’ identified in Re: S; Re: W would apply to the making of a placement for adoption order. The wording of the key provision in ACA 2002, s 21(1) could not be more plain:

 

‘A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority‘ [emphasis added].

The fact that in almost all cases the court will be making a final care order under CA 1989, s 31 at the same time as making a placement for adoption order, and there is plainly no power to add conditions to a care order, only goes to underline the position.

    1. When a placement for adoption order is made, the family court retains only limited powers arising from the court’s jurisdiction to:

 

a) vary or revoke the placement order [ACA 2002, ss 23 and 24];

b) make orders for contact [ACA 2002, s 26].

The position is as described by Wilson LJ in Re A (A Child) (Adoption) [2007] EWCA Civ 1383 (set out at para 20 above); the only opportunity that a family court has to consider the merits of a particular person to adopt a child who is the subject of a placement for adoption order occurs when that person applies for an adoption order.

    1. In the present case the judge was clearly driven to take the unusual step of setting out, in express terms, the attributes that she considered to be essential if adoption were to be beneficial for each of these two boys. The judge was obviously anxious that the past performance of the local authority indicated that, if left to its own devices, the necessary mix of attributes might be watered down or compromised for the sake of achieving an adoptive placement. As a child focussed and well motivated action, the judge’s stance cannot be faulted. The question is whether her action was legally permissible, or whether it crossed the boundary that is so clearly drawn between the role of the court and that of a local authority under a placement for adoption order.

 

    1. The debate before this court has focussed upon what label might best describe the judge’s actions in seeking to maintain the local authority’s search for adopters to those who meet the attributes on the ‘shopping list’. The local authority categorise the judge’s stipulations as ‘conditions’; Miss Heaton describes them as a transparent ‘invitation’ to the local authority; and Mr Weston says that they are no more than a ‘recording’ in the court order of the shopping list of ‘requirements’. To my mind these proffered labels are matters of semantics. There is no magic in whether or not the judge’s requirements are ‘conditions’; the word ‘condition’ has no legal status in this context. What matters is the substance of the structure that the judge sought to deploy in order to achieve what she saw as necessary to meet the needs of these children. In terms of the substance of that structure I am in no doubt that the judge’s order in this case, together with the stipulations in her judgment, fall well beyond the line that divides the role of the court and the role of a local authority under a placement for adoption order. That conclusion is established by the following aspects of the judgment and court order:

 

a) the judge’s conclusions at paragraphs 7.13-7.16 and 7.18 (set out at paragraphs 10 and 11 above) hold that only an adoptive placement that meets each of the ‘shopping list’ requirements will be in the welfare interests of each of the boys;

b) the conclusion at paragraph 7.30 in terms that ‘if the right adopters cannot be found, adoption is not in the interests of these children and should not take place’;

c) in ‘recording’ number 2 in the court order the ‘shopping list’ attributes were described as a ‘pre-requisite’ to the placement which ‘must’ be met;

d) recording number 3 states that the care plans are approved and the placement orders granted ‘on the basis that the list of attributes set out above is adhered to by the local authority’.

    1. The judge’s decision to reserve all future hearings to herself is not, looked at on its own, a matter of concern. On the contrary, judges are encouraged to ensure judicial continuity in children cases if at all possible. However, when set against the other matters which, as I have held, were beyond the judge’s jurisdiction, the decision to reserve the case only goes to add to the establishment of a role for the judge in this case which amounted to overseeing the implementation of the care plan in a manner which is impermissible.

 

    1. The matters raised in this appeal are not academic. Miss Heaton has confirmed that if the mother were not satisfied with prospective adopters chosen by the local authority, she would seek to bring the matter back to court by applying for leave to revoke the placement orders (under ACA 2002, s 24) and/or issuing judicial review proceedings. Indeed, this court was told that the mother has already issued an application under s 24(2) which is now due to come before HHJ Kushner for determination.

 

  1. In all the circumstances, the local authority has made good its appeal and, if the placement orders are to survive this appeal hearing, I would allow the appeal, strike out recordings 2 and 3 from the court order and declare, through this judgment, that the placement orders are to stand as unencumbered orders in the standard terms of ACA 2002, s 21.

 

Hooray say the local authority, wiping their collective brows with a polka dot handkerchief.

But stop, mother had anticipated this, and cross-appealed on the basis that if the conditions didn’t stand, the Placement Orders should be set aside – the “nothing else will do” test not having been met

 

2. The Cross Appeal: ‘What is a judge to do?’

    1. On more than one occasion during her submissions, Miss Heaton gave voice to a question that is likely to have been at the forefront of HHJ Kushner’s mind as she contemplated how best to proceed within the formal structure of ACA 2002 to produce an outcome which met the needs of these two boys as she so plainly saw them. That question was ‘what is a judge to do?’ in circumstances where she is satisfied that the welfare of a child only requires adoption if an adoptive placement can be found which meets a number of specific attributes, but, if those attributes are not present, the child’s welfare would not be best served by adoption. The judge chose a course which, as I have held, was not, as a matter of jurisdiction, open to the court. My conclusion therefore begs a repetition of the question, ‘what, then, is a judge to do?’.

 

    1. The answer to the question is, in my view, plain and straightforward. It is to be found in ACA 2002, s 52(1):

 

‘The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption … unless the court is satisfied that … the welfare of the child requires the consent to be dispensed with.’ [emphasis added]

    1. The judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 set out in clear terms how the word ‘requires’ in s 52(1) is to be applied. The passage in Re P is well known and there is no need to repeat it here. The question, after applying the life-long focus of the welfare provisions in ACA 2002, s 1, is whether what is ‘required’ is adoption, as opposed to something short of adoption. The interpretation of s 52 in Re P was expressly endorsed by the Supreme Court in Re B (A Child) [2013] UKSC 33 and given general application in the judgments of the court where the need for a proportionate justification for adoption was underlined by the use of phrases such as “nothing else will do”, “a very extreme thing” and “a last resort”.

 

    1. As I have already held, it was not open to the court to seek to limit or exert direct influence over the choice of prospective adopters under a placement for adoption order. On that basis and on the express findings of the judge it was simply not open to the court in the present case to go on to conclude that the welfare of either of these two boys required adoption as opposed to something short of adoption; it was not possible to hold that ‘nothing else will do’. The judge was expressly contemplating that long-term fostering would ‘do’ and, indeed, would only be displaced as the better option for the boys if a ‘shopping list’ compliant adoptive home could be found. In the absence of a power to influence and control the local authority’s role under a placement for adoption order, the test in ACA 2002, s 52(1), in so far as it relates to a placement order, must be read in the light of s 21(1) with the welfare requirement being evaluated on the basis that the placement is to be ‘with any prospective adopters who may be chosen by the authority’.

 

    1. A court may only make a placement for adoption order if, under ACA 2002, s 21(3), it is satisfied either that each parent or guardian is consenting, or that the parent or guardian’s consent to the child being placed for adoption should be dispensed with under the terms of ACA 2002, s 1 and s 52. Against the test in ACA 2002, s 52(1) and on the findings of the judge, the ground for dispensing with parental consent in this case was simply not established and as a result the court did not have jurisdiction to make placement for adoption orders.

 

    1. I would therefore hold that the cross appeal of the mother succeeds and that the placement for adoption orders made in this case must be set aside with the result that the two boys will now simply be subject to final care orders.

 

  1. The absence of placement for adoption orders will no doubt render more difficult the task of finding prospective adopters for these two children, but the local authority remain able, under the care order, to continue to search for adopters.

 

So, although the LA won on the principle that conditions couldn’t be attached to a Placement Order, it was the most pyhrric of victories, since that persuaded the Court to nuke the Placement Order.

 

Look at that last sentence – it is a masterpiece of understatement.

 

At the moment, we have a national crisis of adopters – far more children need places than there are places for them. Do you honestly think that anyone who is approved as an adopter, who are in high demand and sought after by multiple local authorities for multiple children, are going to commit to a process of matching with children WHEN THE CHILDREN may not be approved for adoption? No way.

Assuming that you get someone nuts enough to do that, what would the process actually involve?

1. The LA revives their application for a Placement Order

2. The mother, the father, the Guardian and Judge all say – we need to see as much detail as possible about the adopters

3. Every inch of that information is pored over, critiqued, nit-picked looking for flaws.

4. If there has been  passage of time in the search, one of the parents will revive their desire to be reconsidered or to put forward a family member

5. The parents may not get public funding (stand-alone Placement Orders aren’t non-means, non-merits public funding, you are at the whim of the Legal Aid Agency)

6. In order to get the Placement Order, the Court will want to be satisfied that these carers ticked all of their criteria

 

All of this being before the child can be placed with the carers identified. How is that sitting with no delay?

 

 

How is this not moving the assessment of adopters and the matching of children with adopters away from qualified professionals and into the Court? How does this square even for a second with the view in the Children and Families Bill on Courts backing the heck out of care planning?  (I know, the Bill isn’t law, but that hasn’t stopped us wholesale adopting the 26 week proposal and ramming that through – why is the other major limb, care planning being firmly back with LAs being utterly ignored?)

I have no problem with the Courts having jurisdiction over this stuff, if Parliament debates it and gives it to them, but not like this. An important decision for any family practitioner – it is another tool in the argument toolkit for fighting a Placement Order, and another obstacle for LA’s.

 

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It’s clobbering time ! Or not, as it turns out – Italian C-section case, the President’s judgment

Posted on December 17, 2013 by suesspiciousminds

 

Thanks to Jerry for tweeting that this was up – I didn’t even know there was an application. Okay, if you have been on a desert island in December – the Sunday Telegraph ran a story about social workers arranging a c-section for an Italian mother who had had a panic attack so they could steal her baby. A few days later, the press reported that Munby LJ (now the President of the Family Division) had called the case in, and demanding that social workers answer for their dreadful actions.

 

Over the course of a few days, we got more of the official judgments published, and one could see that although there were problems here the luridness of the reporting was not perhaps bourne out by the actual facts. (There are legitimate public debates about whether the mother’s representation in these situations is forceful enough against the State’s wishes, whether there should be a higher test for judicial declarations on c-sections, whether the placement order judgment made before Re B, Re B-S et al would now survive if we re-ran the case now, whether the State ought to have a mechanism to get the country that the mother is from to seize the case, and a few other bits and pieces) – but the press driven debate of “Should social workers be able to impose a c-section to snatch a baby” is a non-starter. The answer is an emphatic, no, they shouldn’t. Which is why they don’t.

 

Anyway, the case found its way to the President, ostensibly as a return of the Reporting Restriction Order (see last blog), although it appears that part of the thinking was that the President was about to open up a can of whoop ass on social workers.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4048.html

On 3 December 2013 a national newspaper ran a front page story under the headline ‘EXLAIN WHY YOU SNATHCHED BABY AT BIRTH’. The strapline, ‘Judge’s order to social workers behind forced caesarean’, was elaborated in the accompanying article, which stated that I had “demanded to know why the girl should not be reunited with her mother”. That was simply not so. All I had done was as I have set out above. I had directed no hearing. How could I? And I had given no directions as to the evidence that might be required at some future hearing of an application that had not yet been made. How could I? All I had done was to direct that any further application was to be heard by me. In other words, if any application was made, either in the Court of Protection or in the family court, I would hear it. That was all. Unhappily this canard has been much repeated in the media.

 

What the President does say is that the case raises important principles which are worthy of discussion, and building on his judgment in Re J, considers that transparency and being able to see the judgments and scrutinise them is a vital part of that.

 

    1. In the present case, as typically, a number of competing interests are engaged, protected by Articles 6, 8 and 10 of the Convention. Three competing interests, in particular, have to be considered here. I take them in no particular order.

 

    1. The public has an interest in knowing and discussing what has been done in this case, both in the Court of Protection and in the Chelmsford County Court. Given the circumstances of the case and the extreme gravity of the issues which here confronted the courts – whether to order an involuntary caesarean section and whether to place a child for adoption despite the protests of the mother – it is hard to imagine a case which more obviously and compellingly requires that public debate be free and unrestricted.

 

    1. The mother has an equally obvious and compelling claim to be allowed to tell her story to the world. I repeat what I have on previous occasions (see most recently Re J, para 36) about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system and likewise being able to criticise local authorities and others. I repeat what I said last week (Re P [2013] EWHC 4037 (Fam), para 4):

 

“The mother wishes to complain publicly about the way in which the courts in this country have handled her and her daughter. The court should be very slow indeed before preventing a parent doing what the mother wishes to do in the present case.”

If ever there was a case in which that right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out – and, I emphasise, to speak out, if this is her wish, using her own name and displaying her own image – would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.

    1. P also, it should go without saying, has an equally compelling claim to privacy and anonymity.

 

  1. How then, in the final analysis, is the court to balance these competing demands?

 

The Judge defends, to an extent, some of the inaccurate and tendentious reporting

 

    1. Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country.

 

    1. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

 

  1. The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges.

 

It is a reasonable point. Whilst the placement order hearing had little of public import until the case broke, my view is that every Court of Protection declaration judgment ought to be published in anonymised form. Looking at the law reports, there are such few c-section cases reported since the introduction of the Mental Capacity Act, I think all of them ought to be published as a matter of routine – Mostyn J’s judgment was important and should have been published and available even before this furore. If it had been, it is likely that when the story broke, factual inaccuracies could have been put right (or heaven forbid, the journalists involved might even have tried to find the judgments)

I also happen to believe that any family court application for a Reporting Restriction Order should be published in such anonymised form as is necessary to protect the individuals privacy. We can’t have family law becoming like super-injunctions, where we don’t get told that there is something we can’t know.  (The RROs in this case were put up very promptly, which does the Court service and the judges involved a lot of credit)

 

Munby does have a word of caution for the Press, however

 

think I should repeat what I said earlier this year when addressing the Annual Conference of the Society of Editors:

 

“dare I suggest that the media should remember the great C P Scott’s famous aphorism that “Comment is free, but facts are sacred.” I recently gave a judgment that received coverage in the media. A legal commentator* suggested that readers might wish to compare and contrast what I had actually said with how it was reported: “Compare. And contrast … And weep.””

 

*Waves at Pink Tape

 

 

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The Italian Caesarean section case – Reporting Restriction Order

Posted on December 10, 2013 by suesspiciousminds

 

For background on this case see the whole of the internet for the first week in December…

[The basic facts, established from the judgments rather than doughty investigative journalism… Italian mother in this country for a short period not intending to live here, detained under mental health act, court of protection gave a declaration that surgeons could perform a ceasarean section on her, she knew nothing about it, child removed from her care immediately afterwards, placement order made in February 2013.  Readers must supply their own outrage]

This particular aspect was the application by Essex County Council for a Reporting Restriction Order. That was heard by Mr Justice Charles, a High Court judge.  At the time there was speculation that the RRO (an order which prevents the Press from publishing certain bits of information) was aimed at stopping the publication of photographs of the mother/baby, these having been linked to by various websites and on Twitter.

 

As one can see from the judgment

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/transcript-judgment-re-p.pdf
 
and order
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/reporting-restriction-order-matter-of-child-a%20.pdf
 
What is actually prohibited is naming the child, or the current address or the names or address of the carers.  
 
As you can see from the judgment, the Press actually had no interest in doing so, so there wasn’t much argument about the tension between article 8 (protection of the child’s privacy) v article 10 (freedom of the press) which these things normally turn upon.  If the RRO had been intended to restrict the public debate, I have little doubt that it would have been refused, with article 10 triumphing.
 
Whilst the Judge acknowledged within his judgment that mother’s name is widely available (and hence why he did not prohibit the reporting of that name within the RRO), I am NOT going to have it on the site or the comments. If people want to find it, I’m sure that they can.
 
Given that at this stage, we simply don’t know whether there is an application or pending application for either adoption, leave to oppose adoption or revocation of the Placement Order, it seems to me that the s97 prohibitions could bite at any time, and that would involve me having to go back and remove any such references later on. So, please don’t put the mother’s name in any comments, there’s no need.
 
Be aware that the RRO, due to some cunning wording, is binding on anyone who is aware of it.

 

9. Subject to the following paragraph, this order binds all persons and all companies or unincorporated bodies (whether acting by their directors, employees or in any other way) who know that the order has been made.

(Note that you don’t have to be aware of the exact contents, or to have been served with it to be bound by it, you just have to know that a Reporting Restriction Order was made – the onus is on you, if you want to write about the case to find out from the RRO what is okay to say and what is not)

In practice, the public debate is not stifled at all – one doesn’t need to say what the child’s name is, or the address she is living at to discuss the wider implications.  Some of my readers should also note that the RRO is potentially binding on people outside of the UK (such as Monaco) but only if the RRO was actually served upon them.  [This is the “following paragraph” referred to in para 9 above]

 

10. 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 or concern 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 or 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.

 
 
There is an interesting aspect to the RRO, which is that mother was not present or represented. The Judge took into account that her obvious views were that publicity and exposure of the case was what she wanted, and also made it plain that it was open to both her, and the Italian government if they so wished to make an application to vary or set aside the RRO.
 

 

I should also indicate that I have been told that the Italian Government or State has instructed solicitors and it may be that it would wish to take advantage of that permission to apply to vary or discharge equally any media organisation or other person affected by the injunctive relief can take advantage of that, as of course can the mother and the father, they not having been served as yet with the process

 

[The interesting thing remaining in this case, is of course, that the judgment which authorised Essex to remove the baby from the mother, which was given either on the day of birth or the next day, has not been published.

What we know about this is that there was (a) certainly a suggestion from the hospital that there was an option that might have kept mother and baby together in a hospital ward and (b) Mostyn J had originally indicated that he would hear the case but then released it to a District Judge.  There may be something sinister and suspicious and dreadful about the delay in publishing this judgment, it might just be that the District Judge is on holiday – it can’t be published until he/she approves it.   It probably isn’t too much of a stretch that there is a District Judge presently wishing that they had just let Mostyn J deal with it, as people are going to dissect every single line of that judgment when it is published]

 
I’m afraid that I won’t take any bets on what day of the week this RRO will be side-stepped by use/misuse of Parliamentary privilege.

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Children in small ads

Posted on December 10, 2013 by suesspiciousminds

Another day, another scandal. The Telegraph reports this case where an Adoption Agency, “Adoptionplus” placed adverts in local newspapers saying that two children needed an adoptive placement and seeking adopters to care for them.

 

http://www.telegraph.co.uk/health/children_shealth/10505544/Adoption-agency-advertises-children-in-local-newspapers.html

 

Now, although I am very cautious about the accuracy of the Telegraph as a source at present, this one does seem to stand up. There is a copy of the advertisement and one can see from it that this was in a local newspaper, rather than a specialist adoption publication.

 

(Adoptionplus, if you are wondering, is an adoption agency whose role is to find adoptive families for children on behalf of Local Authorities. They won’t work for one particular Local Authority, but for a range of them)

I have seen this sort of ad before in the national press, but to be honest, always assumed that where a photograph was used it was a model or stock photo, rather than being an actual child who was awaiting an adoptive placement.

Let’s cover a few basic points from the story, because this is important.

 

  1. The names of the children used aren’t their real names.
  2.  The newspapers used weren’t ones local to the children’s birth family
  3. The Local Authority / the Adoption Agency ought to seek permission from the Court to advertise children for adoption (more on that later)
  4. A Local Authority/ the Adoption Agency  cannot properly seek that permission until their Adoption Panel (now Agency Decision Maker) has approved the plan of adoption
  5. Not all Local Authorities / Adoption Agencies use adverts in specialist press, and generally it is used only for children who it is known will be difficult to place or who have been waiting a long time.
  6. Undoubtedly there is a national shortage of adopters and a large number of children whom the Courts have decided that adoption is what they need.    [There would be many critics of the family justice system who might say here, if we have too many children waiting for adoption already, maybe we should stop using adoption so readily as a solution for families, and y’know, they’d have a point]

 

 

 

The Telegraph say that they have pixellated the child’s face so that you can’t identify it, which was responsible journalism. From that, I take it that the original advertisement does NOT pixellate the child’s face.

 

But in this instance, I don’t disagree with the Telegraph’s take on it; which is that children who are waiting to be adopted shouldn’t be marketed like second-hand sofas.

 

This does feel distasteful; for me there is a significant difference between advertising seeking adopters in the local press and advertising particular children. It also seems to me that in days where people have extended family that don’t always live closely to them and where there is social networking such that people’s social circle spreads very widely, even advertising outside of the geographical home of the parents is no guarantee that you aren’t indirectly identifying the child with a photograph.

 

If you were a parent and someone rang you up to say “Hey, I’ve just seen your Kevin in an advert saying he needs to be adopted, what have you done?” you’d be rightly aghast and horrified.

 

There is also a difference between advertising specific children in a specialist adoption publication (with permission of the court) and doing so to the general public.  The specialist adoption publications go only to people who have been approved as adopters or social workers involved in matching adopters and children. 

 

I suspect that somebody can point to some strong research that says that for a difficult to place child, having an advert that makes them come to life (a name, some information about what they like or their personality and a photograph) is by far and away the best way to garner interest. 

 

I suspect that somebody can also say that as a way of getting prospective adopters to come off the fence and to make that call to say “Yes, I AM interested in adoption, I’ve been thinking about it for a long while, what do I do next?”   seeing a real child or hearing a story about a real child who needs an adoptive parent is a powerful way to achieve that.

 

I am still uncomfortable about it – I’ll touch on the legal context in a moment, but in my view, if the intention is to advertise to the public (rather than the specialist press which produces magazines or publications that go only to persons who have already been approved as adopters and social workers who are looking for children to match those approved adopters with) then that ought to be spelled out very plainly to the Court and to the parents before that is done.  I would not be happy with using the permission given by the Court to advertise the children being used to place adverts in local newspapers  (because that wouldn’t be what the Court or the parents had in mind when the permission was being sought)

 

Frankly I don’t like it full stop.

 

 

We then go on to what the Telegraph say that the advertisement says

 

The advert claims adoption is a quick process saying there is “no cost”, “no waiting time” and “no hoops to jump through”.

 

 

I can’t see that in the advert that they show, it may well be in the blurb below that piece. IF Adoptionplus did say that in their advert, it is obviously a crock and deeply misleading.

Their website makes it plain that they aim to complete the assessment process in 6 months  (most human beings would describe that as waiting time).  They are right about there being no cost, to be fair.

But the last claim “no hoops to jump through”…  well, if you mean literally, precisely, at any stage in the process does someone produce a plastic or wooden hoop and ask you literally and precisely to jump through it, they are accurate. But if you mean in the figurative sense of the words that anyone would apply to “no hoops to jump through”  that there are no checks or tests that you have to successfully pass in order to move forward, well no.  There are statutory tests and checks to become an adopter, most of which could accurately be described as hoops to jump through

 

For example, you’d need to show that you were financially capable of managing to care for yourself and a child (which would involve looking at your earnings, savings, outgoings and debt),  you’d need to show that you had no relevant criminal convictions, you’d need to show that you were medically fit to care for a child (which would involve having a medical) and that you had understanding about caring for a child and meeting their needs. Chances are that if you had any serious past relationships, the assessment would explore those and might actually go to the point of wanting to speak to your significant exes.  

Let’s put it this way, if I ring Adoptionplus and say “I understand from your ad that there are no hoops to jump through, I have had five children removed from my care, I’m currently addicted to heroin and I am racist and homophobic”   I think they might qualify the ‘no hoops to jump through’ claim a bit.

 

 

 

The Legal Context

 

The lead case is Re K (Child) (Adoption : Permission to Advertise) 2007 EWHC 544

 

That case makes it plain that the welfare of the child is the court’s paramount consideration, and that the process of advertisement is an interference with the child and the parents right to a private and family life under article 8 of the Human Rights Act 1998, and thus is not something that can be done unless it is necessary and proportionate to do so.  (That, following Lord Neuberger’s comments in Re B 2013 might well be a high test indeed)

 

Although the case doesn’t place a mandatory duty on Local Authorities to seek the Court’s permission (it says that the LA CAN’T place an advert BEFORE their internal Adoption Agency has approved adoption as the plan for the child and that the LA MAY apply to the Court for permission), it is fairly common practice to make such an application if an advertisement is to be placed.

 

There are potential questions as to whether publication of a photograph of a child, saying that this child is available to be adopted, might cause problems with section 57 of the Adoption and Children Act 2002   (I have put in bold the portion that I think MIGHT be problematic, although there are all sorts of qualifiers on the ability to make such disclosures)

 

 

57 Restrictions on disclosure of protected etc. informationE+W

This sectionnoteType=Explanatory Notes has no associated

(1)Any section 56 information kept by an adoption agency which—

(a)is about an adopted person or any other person, and

(b)is or includes identifying information about the person in question,

may only be disclosed by the agency to a person (other than the person the information is about) in pursuance of this group of sections.

(2)Any information kept by an adoption agency—

(a)which the agency has obtained from the Registrar General on an application under section 79(5) and any other information which would enable the adopted person to obtain a certified copy of the record of his birth, or

(b)which is information about an entry relating to the adopted person in the Adoption Contact Register,

may only be disclosed to a person by the agency in pursuance of this group of sections.

(3)In this group of sections, information the disclosure of which to a person is restricted by virtue of subsection (1) or (2) is referred to (in relation to him) as protected information.

(4)Identifying information about a person means information which, whether taken on its own or together with other information disclosed by an adoption agency, identifies the person or enables the person to be identified.

(5)This section does not prevent the disclosure of protected information in pursuance of a prescribed agreement to which the adoption agency is a party.

(6)Regulations may authorise or require an adoption agency to disclose protected information to a person who is not an adopted person.

 

 

And of course, the publication of a photograph of a child saying that the child is available to be adopted is clearly Sensitive Personal Data for the purposes of the Data Protection Act and one needs to be sure that the public bodies involved had met the criteria for such use of Sensitive Personal Data.

 

We don’t know here whether Adoptionplus or the Local Authority involved had made that application to Court and gained the Court’s permission. If they had, they are of course completely covered.  If they had not, then there might be an article 8 claim to be brought by the parents.

 

 

(If I were representing a parent in a Placement Order case, I would probably want some reassurances from the LA that they would make an application to Court if they intended to advertise the child for adoption, and for that application to be very particular about where such advertisements might be run and what would be in them)

 

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What IS the Court of Protection?

Posted on December 6, 2013 by suesspiciousminds

This is intended to be a beginner’s guide to the Court of Protection, not exclusively intended for lawyers. There are, in fact, some journalists who might benefit from it.  You may have been reading about the Italian woman who underwent a ceasarean section without her consent, and want to know how decisions like this are supposed to be made and what powers the Courts have.

To be fair to the national press, I’ve just had to expand 3000 words to absolutely race through even the basics of the Court of Protection, without even getting into the nuts and bolts of this case, so one can see why they end up saying “A secret Court” and leave it at that.   Perhaps in future, this piece might be a handy link or source for anyone who wants to understand the basics of  how that secret court is meant to operate.

I in no sense think that the Court of Protection is flawless or perfect, and it is perfectly possible for very bad decisions to be made, but at least understanding the nuts and bolts of the fact that decisions are made by a Judge, with a lot of tests and guidance might help people avoid some of the more dreadful factual errors that came about with some of the recent reporting. Otherwise you end up endlessly debating the rights and wrongs of a set of abhorrent things that DIDN’T actually happen, as opposed to very real and important rights and wrongs of a set of very troubling things that DID.

[It is like determining US and UK foreign policy post 9-11 based on Kay Burley’s account on Sky News on the day that “The entire Eastern Seaboard of the United States has been decimated by terrorist attacks” rather than what actually happened, which was awful and significant enough without lurid inaccuracies *]

What is the Court of Protection, and is is a secret court?

The Court of Protection is a branch of the English and Welsh court system, dealing with cases involving people who either do not have capacity to make decisions about certain things for themselves, or to determine whether in fact they do have that capacity. The Court of Protection as we now know it was set up by the Mental Capacity Act 2005, building on the Court of Protection which had previously dealt with financial matters  (Thanks to @barbararich for pointing out my original inacuracy, now fixed, and for doing so nicely).

It is not open to the public. The Press have to make an application if they want to attend the hearing. Some decisions of the Court of Protection (judgments) are made public on law sites like Bailii

http://www.bailii.org/ew/cases/EWHC/COP/

if they contain important points of law or principles which might apply to other cases or are in the public interest, but the day to day decisions are not made public  (yet – the President of the Family Division has indicated that he intends to bring about publication as a matter of course of all decisions of the family courts and probably the Court of Protection too).  When those decisions are made public, the identity of the person concerned is usually anonymised.   (There are certain, though rare cases, where the identity is revealed, such as the Mark Nearey case http://www.independent.co.uk/news/people/profiles/mark-neary-they-didnt-understand-steven-they-saw-me-as-a-fly-in-the-ointment-2295565.html )

So the Court of Protection is certainly secretive – there are arguments that this is done to protect the vulnerable people concerned, but the President of the Family Division takes the view that the counter argument that without exposing their decisions to public scrutiny there’s a risk that the public lose confidence in the work they do and that hyperbolae is taken as gospel  (he would seem, from events this week, to be right) and it is almost irresistable now that judgments from the Court of Protection will be made routinely available, and probably that the Press attendance at Court of Protection hearings will become the default position (with the Court having to given reasons why they SHOULDN’T be there)

Why did the Court of Protection come about?

It was introduced by the UK Parliament as a result of a case that went to the European Court of Human Rights, involving a man who is known as “L”  (the case is also well known as the “Bournwood” case, after the Trust involved). L had been a day patient at a centre, and lived normally with a family. He did not have capacity to make decisions for himself, but was not mentally ill or dangerous. One day he had an episode at the centre and when his family came to collect him, they were told that he had to stay at the centre. Now, if L had been detained under the Mental Health Act, his family would have had all sorts of legal safeguards and abilities to challenge his detention. Equally, if L had had the capacity to say to the unit “I want to go home” they would have had to let him, but L fell between these two situations, and there was no proper mechanism. Many commenters and professionals working with vulnerable adults felt that it was inherently wrong that someone like L could be detained for months or years with no legal safeguards, just because he wasn’t in a position to object. The ECHR agreed.

At the same time, Parliament brought into one statute, legal provisions for some decisions that the High Court had historically made under their Inherent Jurisdiction  (Inherent Jurisdiction would require a whole other beginners guide, but if you just read Inherent Jurisdiction as “High Court superpowers” you won’t go far wrong) – for example deciding whether doctors could carry out surgery on a patient who was refusing it, dealing with marriages where people had no ability to understand the marriage vows, protecting the finances of vulnerable people, and wrapped it all up into one statute.

The thinking was to give protection and safeguards for the most vulnerable people in society, those who are not able to look out for their own interests.  (Many commenters believe that the MCA began with those noble intentions but hasn’t in practice delivered on them)

Who brings cases to the Court of Protection ?

The cases are normally brought by one of these four groups (though others are possible) : –  the health trust whose doctors are treating the person, the care home who is providing care for the person, the Local Authority who are providing services for the person, or on behalf of the person or their family.

How does the Court decide whether a person has capacity?

The Mental Capacity Act sets out a test as to the REASON why the person lacks capacity

Section 2

(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)It does not matter whether the impairment or disturbance is permanent or temporary.

And then sets out a test for deciding WHETHER  a person lacks capacity

Section 3 Inability to make decisions

(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)to understand the information relevant to the decision,

(b)to retain that information,

(c)to use or weigh that information as part of the process of making the decision, or

(d)to communicate his decision (whether by talking, using sign language or any other means).

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)deciding one way or another, or

(b)failing to make the decision.

It is VERY VERY important to note that a person is entitled in law to make a bad decision, an unwise decision, a daft decision, a decision that no other person would take; AS LONG as they understand the situation they are making the decision about.   (For example, Carla out of Corrie is entitled to marry Peter Barlow even though he is a love-rat with a history of bigamy, an alcoholic and is trying it on with Tina from the Rovers, even though many people would think she was foolish to do so. But if she does not understand that marriage is the union of one man and one woman (currently) and is intended to be for life although it can be ended through divorce, then she can’t marry him.  Just as, if he drinks and is so intoxicated that he can’t understand that, he can’t legally enter into a marriage contract  – but that is PRETTY drunk)

It is also important to note that just because a person lacks capacity to make one particular decision, it doesn’t mean that they lack capacity to make any sort of decision. Some decisions are more complicated to weigh up than others and need more capacity to understand.  Over a period of time, the Court of Protection has decided cases and set up guidelines for what sort of understanding a person has to have for certain decisions.

For example, classically, in order for a person to have the capacity to consent to sexual intercourse they have to be able to understand the following three things :-

(i) The physical mechanical act

(ii) That pregnancy can occur and what pregnancy is  (and contraception)

(iii) that you can get diseases through sex (and how to avoid that)

The person doesn’t have to understand the emotional implications (that you could get heart-broken or sad, or that the other person might) or be able to weigh up who is a good person to have sex with and who is not, just those three factors.    (For homosexual sex, the second factor is taken out)

You will see from the legal test that the person has to be helped, with explanations suitable for them, to reach the point of understanding the issues so that they can make the decision for themselves. The law WANTS people to make the decision for themselves, and it is also worth noting that the starting point is that every person HAS capacity unless evidence is provided to the contrary.

If the Court decide that a person lacks capacity, what then?

The Court then have to make what is called a “best interests” decision.  That means deciding what is in the best interests of the person. That might be what the State (the doctors or social workers) say is best, it might be what the person themselves is saying or showing that they want, or it might be something else entirely.

The legal test is set out in the Mental Capacity Act

section 4 Best interests

(1)In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—

(a)the person’s age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)He must consider—

(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)if it appears likely that he will, when that is likely to be.

(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)He must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

(7)He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)anyone engaged in caring for the person or interested in his welfare,

(c)any donee of a lasting power of attorney granted by the person, and

(d)any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a)are exercisable under a lasting power of attorney, or

(b)are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10)“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)“Relevant circumstances” are those—

(a)of which the person making the determination is aware, and

(b)which it would be reasonable to regard as relevant.

You can see that the Court are obliged to consider and take into account all that is known about what the person themselves wants, or would want, or has previously expressed about wanting (remember that a person might only temporarily lack capacity, so the Court have to take account of anything the person said or showed about the issue in the past), and also has to take into account the views of anyone who cares for the person or is interested in their welfare.

This is the difficult bit, and in most Court of Protection cases, the majority of the judgment is spent on the Judge deciding what is in the ‘best interests’ of the patient to do.  Sometimes that accords with what the patient is saying or showing they want, sometimes it does not.  It is the hardest part of the exercise, and to an extent, I agree with Lucy Series from The Small Places blog about capacity and mental health :-

“ A recently ratified UN treaty – the Convention on the Rights of Persons with Disabilities – poses the question: why should people with disabilities and mental illnesses face these kinds of interventions when people without do not? It looks very much as if the Mental Capacity Act itself is not compatible with this Convention, although views on this differ. It is certainly a question it would be good to see the media asking more often… Again, this is an issue that comes up a lot around the Mental Capacity Act 2005: how can we distinguish decisions which are merely irrational or unwise, which everybody is entitled to make, from those which are incapable. This is actually quite a profound philosophical problem (my own view is that it is insoluble; ‘mental incapacity’ is a conceptual device which we cling onto to mask the value judgments we are bringing to bear when justifying interventions in situations which we regard as intolerable). The disability Convention referred to above poses serious questions about how we deal with ‘capacity’, and emphasises the role of support for decision making. Even the Mental Capacity Act requires support to be provided for a person to make their own decision before it is made on their behalf, and decisions made on their behalf should involve the person as far as possible. “

How does the Court ensure that it is making the decision that is right for the person, and not the decision that “seems” the right thing to do from a paternalistic “The State knows best” approach.  The Court of Protection at essence is a referee between the tension of “the State needs to decide what is best for vulnerable people” and “people should be free of State interference and make their own decisions”.  It is not easy, and it can seem to those outside that the Court of Protection doesn’t always get things right.

It is certainly a new system (in terms of law, 8 years of operation is a baby) and it would be astonishing if mistakes weren’t being made and lessons were there to be learned. So it is important to scrutinise the decisions and for the Court of Protection to be responsive and reflective to changes both in law and attitudes in society. Twenty years ago, a man saying that he intended to marry another man would have seemed peculiar to most of society, now a Conservative Prime Minister is driving that change.

But, if a person doesn’t have capacity to make a decision, how do they fight the case?

Well, this is the million dollar question. Remember firstly that just because a person lacks capacity to make one decision doesn’t mean that they lack capacity to make all decisions. So it is possible for a person to be able to instruct his lawyers to fight the case, whilst the Court decides on the real issue in question. But very often the issue of capacity will also affect the person’s capacity to instruct a solicitor.  There is firm guidance on the legal test to be able to instruct a solicitor, and where a person doesn’t meet that test, they can’t give instructions directly to a solicitor.

[A person who HAS capacity is able to tell their solicitor to do something really foolish or unwise or downright dumb – i.e Carla can tell her solicitor to put all of her assets in Peter Barlow’s sole name and to sign a pre-nup saying that she has no claim on any of what is now his property. That’s stupid, but if she understands the nature of what she is doing, she can do it.]

What happens ordinarily then is that an agency known as the Official Solicitor is appointed by the Court   (not by the social worker or Trust, as certain national newspapers seem to think) and the Official Solicitor will decide how the case is to be run on the persons behalf  – that might be to fight the case every inch of the way, it might be to offer no resistance, it might be to be neutral and say that the doctors or social workers have to prove their case, or it might be that some parts of the case are challenged very hard and others aren’t. It is up to the Official Solicitor)

Now, one can see where that causes a problem. The person lacks capacity, say, to make an informed decision that if surgeons don’t cut off their foot they will die of gangrene, but is very vocally saying “Don’t cut off my foot, I would rather die”.   The doctors will be able to tell their lawyers to argue all the reasons why the surgery will happen. The Judge knows what the person is saying and has to take it into account. But there could very well be no lawyer who actually argues to the Court all of the reasons why the surgery SHOULDN’T happen, they will only do that if the Official Solicitor decides that it is in the person’s best interests to fight the case.

(You may see that you end up with both the Official Solicitor and the Court making decisions about what each of them CONCLUDES is in the person’s best interests to do and that can appear to be a blurring of roles.  When a lawyer acts for someone who has capacity, she gives them ADVICE about what is in their best interests, often very strong advice, but where a person says “I hear all that, but I still want to do X instead” that lawyer goes into Court and argues fearlessly and without favour for X.  You end up with, here, a situation where the most vulnerable people in society get less protection from the lawyer charged with representing them, than they would if they had capacity)

If you want to know more about the decision of the Court of Protection in ceasarean section cases, I heartily recommend this piece , which focuses on the legal side and the tests to be met

http://thesmallplaces.blogspot.co.uk/2013/12/more-questions-than-answers-on-forced.html#more

and this piece

http://www.birthrights.org.uk/2013/12/views-on-the-forced-cesarean-judgment/

Which looks at it from the perspective of the pregnant mother

* She actually did say that. And what better reason do I need to crowbar in a “Who said this, Kay Burley or Ron Burgundy” quiz?

http://www.huffingtonpost.co.uk/2012/03/29/anchorman-2-ron-burgundy-kay-burley-quiz_n_1387332.html

Stay classy, internet

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the judgment from court of protection in the caesarean section case

Posted on December 4, 2013 by suesspiciousminds

 

This is Mostyn J’s decision (see the two Untimely Ripped posts, and most of the press since Sunday if you don’t know the background)

 

http://www.judiciary.gov.uk/media/judgments/2013/re-aa-approved-judgement

 

I think the note from Mostyn J is important to read

 

NOTE BY MR JUSTICE MOSTYN (4 December 2013)
Although no-one has sought to appeal the judgment dated 23 August 2012 during the last 15 months, or to have it transcribed for any other purpose, I have decided to authorise its release together with
the verbatim transcript of the proceedings and the order made so as to inform and clarify recent public comments about this case.
It will be seen that the application to me was not made by the local authority or social workers.
Rather, it was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust, supported by the clear evidence of a consultant obstetrician and the patient’s
own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone
two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.
The patient was represented by the Official Solicitor who instructed a Queen’s Counsel on her behalf. He did not seek an adjournment and did not oppose the application, agreeing that the
proposed delivery by caesarean section was in the best interests of the patient herself who risked uterine rupture with a natural vaginal birth. I agreed that the medical evidence was clear and,
applying binding authority from the Court of Appeal concerning cases of this nature, as well as the express terms of the Mental Capacity Act 2005, made the orders and declarations that were sought.
Although I emphasised that the Court of Protection had no jurisdiction over the unborn baby, I offered advice to the local authority (which were not a party to or represented in the proceedings, or
present at the hearing) that it would be heavy-handed to invite the police to take the baby following the birth using powers under section 46 of the Children Act 1989. Instead, following the birth there
should be an application for an interim care order at the hearing of which the incapacitated mother could be represented by her litigation friend, the Official Solicitor
Okay, there’s quite a lot in that, so let’s break it down :-
1. The application for the Court to rule that the surgeons could undertake a C-section was made by the health authority, not by social workers
2. Social workers weren’t a party to the proceedings or represented
3. The mother was represented through the Official Solicitor and by Queen’s Counsel
4. The Court heard evidence that the mother was seriously mentally unwell and incapacitated  (not quite Brooker’s “panic attack”)
5. The decision about the C-section was on the basis of very clear medical evidence that it would prevent a uterine rupture
6. Mostyn J gave advice to be communicated to the local authority social workers, that any decision about removal of the baby should take place at a Court hearing with the mother represented through the Official Solicitor
 rather than the police exercising their powers to remove for a period of 72 hours and place the baby in the care of social workers
7. The decision about the C-section was made lawfully, taking the statutory matters into account and following the clear principles already established in English law   (i.e there isn’t anything dramatically new about what happened here, in relation to the Court of Protection decision)
Now, there is still a public debate here about point 3, and I am sure that John Hemming MP would still wish to have it. Although the mother was represented through the Official Solicitor and had a very very experienced and senior barrister representing her; as the mother did not have capacity to instruct a solicitor and tell them what she thought about the operation, the Official Solicitor did not oppose the application.  (I know that Mr Hemming MP taes the view that this procedure is unfair for vulnerable people and there is a disconnection between the mother and those who are purportedly representing her. It is a tricky one, and worthy of further debate. However, what was done here is the usual process with a person lacking capacity – even slightly more so, given that Queen’s Counsel was instructed.
What there ISN’T here, is the smoking gun that the Sunday Telegraph and others following in their wake were hinting at (or indeed expressly saying) that the C-section had been done at the behest of social workers to facilitate an easier time of removing the child into care.  Let’s see if the Press correct that.
There is STILL a genuine debate to be had about the circumstances in which the child was removed – but the Local Authority made an application to the Court (as Mostyn J had advised) and it seems very likely that the mother was represented through the Official Solicitor for that hearing (they already being seized of the situation).  Let’s wait and see what that judgment says – of the three judgments, that is probably the pivotal one, since it will illuminate whether the evidence and the risks involved really required this baby to be removed whilst mother was unconscious and recovering from her operation.
(I may come back to the judgment, but wanted to get it up so that people could read it for themselves)

 

 

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The work of Guardians in care cases

Posted on December 4, 2013 by suesspiciousminds

 

One of my regular readers, Boxerdog, asked me to have a look at the CAFCASS commissioned research into the work of Guardians in care cases – it has been a bit of a week, and ordinarily this would have been much higher up my agenda.

Anyway, the report is here :-

Click to access FINAL_VERSION_Cafcass_-_The_work_of_children%27s_guardians_in_care_cases.pdf

 

The report sets out to answer two questions

1. What work was undertaken by Guardians?

2. When in the proceedings did that work take place?

 

So the fact that the research isn’t particularly helpful is the fault of the persons framing those parameters and questions, rather than flaws with the research itself.  I don’t think many people’s big unanswered questions with CAFCASS were these, but more about were they a genuine check and balance to the State, were they genuinely representing the voice of the child and looking at things in the round rather than the focus on “safeguarding” which seems to have crept in, was their work considered helpful and useful by other (shuddering at the word) stakeholders in the process – the children, the parents, the Judges?

 

But anyway, those are the questions we got. The answer to the second is “Mostly at the beginning” and in the first three months, chiefly.  Of course, most of the really important stuff in care proceedings is happening at the end, as assessments are completed, decisions are being made and the views of children about the range of options for their future is being gathered, so some might think that the balance here is a bit askew.  As a counterpoint to that, the meeting of the parents and relatives, reading the court papers, deciding on an expert and questions, and reading the social work files (ha!) all happens at the beginning, so I am perhaps being slightly unfair.  It depends whether the ‘front-loading’ means  “More at the front, but quite a bit all the way through”  or “almost all at the front and very little thereafter”

 

The report shows that CAFCASS met with the parents in 90% of care cases  (giving the benefit of the doubt, there ARE SOME parents who don’t involve themselves in any point in the proceedings, think 10% is rather high estimate of that) and met with/observed the children in 95% of care cases

 

Contact with the child
: the guardian had contact with the child in 95 per cent of cases. Four of the five cases in which there was no contact had some features in common, notably previous proceedings in respect of older children and the child being 0 years of age. In the fifth case the court found that the significant harm threshold was not met. The mean number of contacts per case was three, and the range was 0- 13 contacts. The type of contact was influenced by the age of the child. Thus, the guardian met with the child in 33 per cent of cases, but in every case where the child was aged 12 or older. Fifty seven per cent of children in the sample were aged four or under, the guardian observing children in this age group, in the presence of a parent, carer of foster carer, in 92 per cent of cases. There was telephone contact between the guardian and the child in nine per cent of cases
Not blaming individual workers for this, it is a shift in our times and the organisational priorities and how workloads are managed. But when I started, if a Guardian had visited the child 3 times during the course of the proceedings, they would have been SLAUGHTERED in the witness box. I remember on rare occasions seeing a Guardian ad Litem (as they then were) get completely taken to the cleaners for having made just 3 visits.  And that was in the days when care proceedings were shorter  (yes, before we had all of the protocols and PLOs to reduce the duration of care proceedings, they were actually quicker than 55 weeks) and more pertinently, before the Human Rights Act and article 8 was at the forefront of our minds.
What the report doesn’t look at, of course, is whether that contact is sufficient for the purpose of representing the child and being their voice in proceedings. As we diminish the role of independent experts in the court process (by a combination of cutting their fees until they don’t want to do it, and raising the bar on getting permission from the Court to instruct them), a good, solid, robust, inquiring and genuinely independent Guardian with no axe to grind other than “what does this child want, and what is best for them?” becomes a vital check and balance to the State, and this low-level of input doesn’t always provide for that.
Not the fault of individual Guardians – there are damn good ones who are very committed and work very hard, and rightly pull Local Authorities up on bad practice or decisions or unfairness, but the organisation s a whole decided to try to manage the increased volume and workloads by spreading the individual Guardians more thinly, and that has had profound knock-on repurcussions.
Back when I started, if you had a new baby born and there had been previous proceedings on a brother or sister, the first thing anyone would read from the old papers would be the Guardians report, which would tell you everything you needed to know, it would set the scene and give you all of the story of what had happened in the case. (you might agree with the final recommendation, you might disagree with it, but the report would tell you the story). I haven’t started with the Guardian’s report for many years now.

 

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Can one simultaneously be baffled and pleased?

Posted on December 3, 2013 by suesspiciousminds

It appears so. The MoJ have published a consultation on Court fees. Long time readers of this blog will know my rather low opinion of consultations  (they are a way of breaking bad news to people whilst pretending that “your view can make a difference”)

 

And any consultation on Court fees normally means one thing – they’re going up, stand still whilst the MoJ mugs you. It is so tiresome for the MOJ if you wriggle about whilst they go through your pockets and wallet.

 

This one, it appears not

 

https://consult.justice.gov.uk/digital-communications/court-fees-proposals-for-reform

 

 

Please send your response by 21/01/14 to:

Graeme Cummings Ministry of Justice Law and Access to Justice Group Post Point 4.38 102 Petty France London SW1H 9AJ

Tel: (020) 3334 4938

Fax: (020) 3334 2233

Email: mojfeespolicy@justice.gsi.gov.uk

 

[Might actually be worth doing that, this time]

 

 

Here are some good news items from it  (good news, from an MoJ consultation on fee changes, you can see why I am baffled)

 

Removing the fee from Non-molestation or Occupation order applications (currently £75).  Given what a palaver getting the fee-exemption was, many people ended up just paying the fee, and it always seemed wrong to me that people should have to pay a fee to get protection from domestic violence.

 

The fee for any application in Children Act cases (other than s31) is now just £215, same across the board. No more looking up in a chart to try to work out just what the bloody fee is for those applications that you hardly ever make. It’s just a standard fee across the board. That’s gone up a bit (£35) for most of the applications.

 

And here’s the odd one  – you may recall that the fee for issuing care proceedings went up several thousand per cent – from about £175 to over £5,000, and went up again in April.

The lie / spin at the time was that this was completely cost-neutral and would be covered by central government funding and that it was not an attempt to artificially depress care proceedings or provide a financial incentive for Local Authorities not to place cases before the Court.  You may recall a judicial review that didn’t succeed, and then all the various reports saying “these fees should be abolished”.   If the fees ever were cost-neutral, which almost anyone in local government would dispute, they certainly aren’t now, as central funding has been salami sliced over many years. Those court fees represent a significant drain on public authorities limited resources.   

 

The current arrangement is that the LA pay the court a fee of £3,320 up front, and then a further fee of £2,155 if there’s a final hearing.

 

Well, I immediately look for that section, to see how much care proceeding court fees are going to go up by, and see the proposals are :-

 

Flat fee on issue to change from £3,320 to £2,000   (yes, that’s actually gone DOWN)

 

Fee for final hearing to change from £2,155 to £0   (yes, that’s actually nothing)

 

This is something of a climb-down – I mean, it’s not the recommendation of the Laming report, the Plowden report or the Family Justice Review (all of which the Government said in advance they would implement in full) that the fees be scrapped entirely, but it’s a START.

 I couldn’t find anything within the consultation document that was a rationale for this reduction, so I went to the public attitude survey here

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/262917/public-attitudes-civil-family-court-fees.pdf

 in which people were surveyed about court fees and given some hypothetical examples to set fees for. (There are some interesting things, more useful for private law, about public attitudes towards fairness of the court system)

 

[I did this exercise  because if I see a gift horse, the first thing I DO is look in its mouth. It is nonsensical advice to say “Don’t look a gift horse in the mouth”  – the story comes from the Trojan War, and OF COURSE the Trojans should have been wary about the gift horse…]

 

Anyway, there’s nothing in that either.  In any event, thank you MoJ for a consultation document that made me happy rather than miserable. Let’s see if it translates into action.

 

(That’s potentially a lot of money that can be spent on services to help and support troubled families, so it is not just good news for Local Authorities, but for real people too)

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Death by a thousand cuts – expert fees take another hit

Posted on December 3, 2013 by suesspiciousminds

 

You might remember some time back that there was a consultation on a proposal to reduce expert fees further from the drastic cuts brought into play in October 2011   (I say consultation, what I mean of course is, breaking the news to experts that this was definitely going to happen and giving them a few months notice whilst pretending that no decisions had yet been made)

 

As ever with a Government agency, finding the document that actually publishes the new rates is a forensic ferreting exercise all of its own, but this is it, below

 

http://www.justice.gov.uk/downloads/legal-aid/funding-code/remuneration-of-expert-witnesses-guidance.PDF

 

These rates now come in to all cases with a start date after December 2013   (so it is worth knowing that an expert who is INSTRUCTED in January 2014, might get paid at the old rates if the CASE itself started before December 2013. If you’re an expert, that might well be a question worth asking)

 

 

Picking out the ones most common in care proceedings  (these are non-London rates, some of the London ones are slightly different)

 

[When I say 2011 rate, that was the rate from Oct 2011 until April 2013, when there was an interim cut]

 

Child psychiatrist now £108 per hour  [the rate in 2011 was £135]

 

Child psychologist £100.80 per hour [the rate in 2011 was £126]

 

DNA testing  £252 for the sample and testing, £72 for the report  [2011 was £315 and £90]

 

Interpreter £28 per hour   [2011 was £32]

 

Neurologist £122.40 per hour [2011 was £153]

 

Paediatrician £108 per hour            [2011 was £135]

 

Psychiatrist £108 per hour               [2011 was £135]

 

Psychologist £93.60 per hour          [2011 was £117]

 

Risk assessment expert £50.40 per hour [2011 was £63]

 

 

 

If you imagine a ballpark of the costs having been cut by 33% in two years (having already been cut down extensively in the 2011 changes) you’d be about right.

 

The new guidance is silent on social work costs, which have historically been at £30 per hour.  Let’s take that to mean that ISWs can still be paid at £30 an hour, which is good news, because applying the 33% cut given to other experts would mean ISWs working at £20 an hour, and there really would be none left at that rate.

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