Author Archives: suesspiciousminds

Pure and Simple – the Court of Appeal attack hearsay

Posted on November 14, 2013 by suesspiciousminds

 

 

To clarify, the Court of Appeal did not attack the manufactured flash-in-the-pan pop sensation that was Hear’say, who deserve it merely for the superfluous apostrophe.  

[In their defence, the band produced not only Kym Marsh who has been ace in Corrie, Myleene Klass who was top viewing on I’m a Celebrity, but also their reject pile produced Jessica from Liberty X, a major factor in keeping Kevin Pieterson happy and in good shape to thrash the Aussies at cricket in the upcoming Ashes series]

 

No, this is really about  Re W (Fact Finding : Hearsay) 2013, and hooray for a meaningful title AND a Court of Appeal case that is not about bloody placement orders.

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1374.html

For the real people who read this blog, here’s a quick illustration of what hearsay means

 

  1. Kevin Pieterson goes into the witness box and describes how he watched Ian Bell hit a six right over the head of Mitchell Johnson  (direct evidence, no hearsay)

 

  1. Matt Prior goes in the witness box and describes how Kevin Pieterson TOLD him about seeing that six.  (That’s direct evidence that KP SAID it, but only hearsay evidence that Ian Bell did actually hit the six) 
  2. Graham Swann (swanny!) goes in the witness box and says that Matt Prior told him (swann)  that KP told him (prior)  that he (KP) had seen Ian Bell hit a six   (that’s now getting very removed from someone who can say whether Ian hit that six, and is hopeless at establishing whether it happened or not. Hearsay pure and simple)

 

 

 

In crime, there are complicated and technical rules on when hearsay evidence is admissible and when it is not. That’s why we family lawyers put those thick Law of Evidence tomes into cardboard boxes, scotch-tape them shut and put them in the attic as soon as our exams were over.

 

In family law proceedings, hearsay evidence is generally admissible

 

  1. There is a great deal of authority on the subject of hearsay evidence in cases concerning children. I will list below the authorities that were cited to us as of particular relevance to the issue but we were not asked to revisit them or to venture any general guidance, the appeal being approached with commendable practicality on the basis that the judge erred in the way in which she treated the evidence in this particular case. The authorities were: Official Solicitor v K [1965] AC 201; Re W (Minors)(Wardship: Evidence) [1990] 1 FLR 203; R v B County Council, ex parte P [1991] 1 FLR 470; Re N (Child Abuse: Evidence) [1996] 2 FLR 214; Re D (Sexual Abuse Allegations: Evidence of Adult Victim) [2002] 1 FLR 723; Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773; H v L [2006] EWHC 3099 (Fam); B v Torbay Council [2007] 1 FLR 203; W (a child) [2007] EWCA Civ 1255; JFM v Neath Port Talbot Borough Council [2008] EWCA Civ 3; Enfield LBC v SA (By her Litigation Friend, The Official Solicitor) [2010] EWHC 196 (Admin); Re W (Children)(Abuse: Oral Evidence) [2010] UKSC 12 [2010] 1 FLR 1485; Surrey County Council v M, F and E [2013] EWHC 2400 (Fam).
  1. We were also referred to the Children (Admissibility of Hearsay Evidence) Order 1993, the Civil Evidence Act 1995 and Articles 6 and 8 ECHR.

 

 

In this case, a 28 year old woman T, made allegations that she had been sexually abused as a child. That was important, because she had younger siblings who were still children.  If T’s allegations were false, then there was no risk for those children. If, however, they were true, then there would be a potential risk.

 

A fact finding hearing therefore took place, for the Court to determine which of those two options was correct. The Court made findings that T’s allegations were true. T did not give evidence herself, and that’s why the case was appealed.

 

  1. Much of the local authority’s evidence in relation to the sexual abuse findings was hearsay. The principal source of evidence about what happened to T was obviously T herself. She had spoken to social workers about her experience in late 2012/early 2013 and they reported to the court what she had said. However, Judge Davies (who very properly attended to the case management of this case throughout) was quite rightly intent on ensuring that her evidence should be received by the court in a more direct form and made an order on 20 March 2013 that if the local authority were relying on her evidence, they were to file a statement from her. A date was given for the filing of the statement and when that was not complied with, an extension was given. However, still no statement was forthcoming.
  1. T’s position was discussed at a directions hearing on 6 June 2013. There is a difference of recollection as to the extent to which any reason was given for the absence of a statement from her but it may be that the local authority explained to the judge that T was not co-operating with the process, as Miss Heaton QC explained to us on their behalf during the appeal hearing. No orders were sought from Judge Davies or made by her with a view to resolving such problems as there were.
  1. By the time that the final fact finding hearing commenced on 17 June 2003, nothing had changed. T had not made a statement and she did not attend to give evidence. It seems that the hearing proceeded without any discussion of why this was or what should be done about it.
  1. T is a vulnerable adult who has suffered from depression and she has learning difficulties, although no one suggested that they were such as to prevent her from giving evidence. Social services are involved in relation to her children, of whom there are four, the youngest having been born at the end of April 2013. In her statement of 3 May 2013, Ms McMenemy (one of the social workers who gave evidence to Judge Davies) spoke of reports that T was under a great deal of pressure from her family to write a statement supporting them and said that T was not now willing to provide a statement confirming what she had said about abuse (B62/3). However, it appears that there was no up to date evidence about T’s position offered to the court either at the directions hearing on 6 June 2013 or at the fact finding hearing. The judge should at least have been told, for example, what efforts had been made to obtain a statement from T and/or to secure her attendance at court and why these had foundered, and she should have been fully informed about any continuing personal difficulties on T’s part which it appeared were getting in the way of the process.
  1. It may not be entirely surprising, in the circumstances, that the judgment contained no reference at all to the reasons why direct evidence from T was not available. The judge said only this about T’s absence:

“On behalf of F, I am reminded that he has Article 6 rights to a fair trial. I must bear in mind that he has a right to cross examine witnesses and, if witnesses have not been called to give evidence, I must consider what weight should be given to their evidence.” (§7)

“T has not been called to give evidence, either by the local authority or by the parents; and I must remind myself it is for the local authority to prove the case, it is not for the parents to disprove it.” (§8)

“I have to bear in mind that T has not attended court to be cross examined…” (§22)

 

 

The parents were not arguing that the hearsay evidence in relation to T’s allegations was not admissible (as they might have in a criminal trial) but rather that in the absence of T being available to be challenged, the Judge ought to have given that evidence much less weight.

 

The Court of Appeal took the view, and gave some guidance, that where the allegations that are central to the case are being made by an adult, all endeavours ought to be made to get that adult to give the evidence [particularly where, as here, T had previously retracted the allegations]

 

  1. Where an adult’s evidence is so central to a finding or findings sought, I would normally expect that adult to give evidence, although there can, of course, be situations in which that is not possible. Judge Davies herself made clear by her order of 20 March 2013 that she expected that T would furnish direct evidence. She was never asked to revoke that order, although equally she was not asked to direct that the local authority could not rely on the hearsay material as to what T had said.
  1. Where it is said to be impossible to obtain a statement from a witness or to secure a witness’s attendance at court, the court needs to know the reasons why so that that can be considered when, to use the phraseology of section 4 Civil Evidence Act 1995, “estimating the weight (if any) to be given to hearsay evidence”.
  1. There are ways in which witnesses can be assisted to overcome difficulties in engaging in court proceedings and the various options should always be considered when there are problems in getting evidence from a central witness. They include special measures such as screens in the court room or a video link. Alternatively, a witness summons may be appropriate. None of these options seem to have been considered in this case. We were told that T has recently given a statement to the police by way of an ABE video interview. Had that course been taken before the fact finding hearing, the video interview would at least have covered the ground that would have been covered by a statement. The question of cross examination could then have been addressed as a supplementary issue in the knowledge of what T had said in the ABE interview.
  1. Assuming that none of the available measures secures direct evidence from the witness, the judge has to have regard to the reasons for this in weighing the hearsay evidence on which reliance is placed instead. A judge may be less uncomfortable in giving weight to such evidence where there is a good reason for the witness’s non-engagement (such as the sort of profound psychological difficulties from which C is suffering or a protracted physical illness) than where the reason is hard to divine or the non-engagement appears to be a matter of deliberate choice on the part of the witness.
  1. The estimation of the weight to be given to T’s recent complaints was complicated by the fact that she had retracted what she said. She did so in the form of two letters. She has problems with literacy and they were written by her brother B and signed by her. The first is dated 6 February 2013 (E105). It alleges that social services are trying to “manipulate and intimidate me into making a statement” and says that she is not willing to make a statement about F molesting her as it would be a false statement. The second letter (E253) is undated but I think it was received by social services towards the end of April 2013. It says that social services had blackmailed her by saying they would pay for a deposit for a house move if she made a statement about F but that she would not do so as it would be false.
  1. The judge referred to the two letters in §§20 and 21 of her judgment but went on to make her findings about T’s complaints in §22 without setting out how she had approached them in her evaluation. She had earlier rejected the suggestion that the social workers had put pressure on family members to make untrue allegations (see §10) and found the social workers to be very careful in their evidence and accurate in their note-taking and recollection. This was, of course, material to her approach to the retraction letters in which improper conduct on the part of social services was suggested. She also stated in a different section of the judgment later on (§31) that she found that pressure had been put on T by B and by both parents to withdraw her allegations but this was a bald statement without any supporting analysis or details and without specific reference to the letters.
  1. The retraction of a complaint normally requires careful and specific consideration and this case was no exception. Obviously the fact that a complaint is subsequently retracted does not prevent a judge from accepting that it is in fact true but it gives rise to questions which must be addressed sufficiently fully and directly in the judge’s reasons so that one can be confident that the fact of the retraction has been given proper weight in the judge’s conclusions about the subject matter of the retracted allegation. Where, as here, the only evidence before the court about the complaint is hearsay, it seems to me that this is particularly so and the judgment was insufficiently specific in my view.

The Court of Appeal concluded that the findings made should be set aside and the case sent back for rehearing. In this particular case, they felt that there should be a fresh start before a different judge  (although that was not decided as a principle applicable to all cases)

 

 

[When I find myself in times of trouble, Andy Flower talks to me, we need a batting hero, get KP… Get KP, get KP, get KP, oh get KP, we need a batting hero, get KP]

 

 

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There are compelling reasons of public policy why ‘sham marriages’ are declared non-marriages

Posted on November 13, 2013 by suesspiciousminds

 

This is the Court of Protection decision in A Local Authority v SY 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/3485.html

Much of the case involved SY’s difficulties with capacity and plans for her future, which involved her living in a care home – having not consented, this was being treated as a deprivation of liberty (I add in parenthesis that I am pleased to see the Courts taking a common sense pragmatic approach on someone having to live in a home when they don’t consent as being a Deprivation of Liberty DoLS, as I think that was always the spirit of the Mental Capacity Act 2005, though we seem to have drifted from that in the short years the Act has existed)

An additional issue, however, was that SY had entered into a marriage to a man TK.   I have to say, the man TK, doesn’t come out of this well  (I have reordered the judgment here, simply because it scans better in this particular context)

 

    1. TK was born in Pakistan. He came to the United Kingdom on 7 September 2009 as a student. His application to continue his studies was refused and his appeal was dismissed on the basis of a tribunal finding that he had submitted two forged documents and had attempted to deceive the immigration authorities. His rights of appeal were exhausted in June 2011. It is in this context that he began a relationship with SY in August 2011.

 

    1. On or around 15 June 2012 TK was arrested for immigration offences and detained by the UK Border Agency pending his deportation. He claimed asylum on the basis that he feared he would be killed by his family who disapproved of his marriage to a white British woman, namely SY.

 

    1. Following an adult case conference on 20 June 2012, SY moved to her current placement on 27 June 2012. The following day an associate of TK attended the placement and attempted to gain entry for the purpose of seeking SY’s signature on a document allegedly prepared to assist TK with his asylum claim. In light of the risks to SY of harm and exploitation, an urgent authorisation was issued and then a standard authorisation to deprive her of her liberty at the placement was granted.

 

  1. On 17 July 2012 TK’s appeal against the refusal to grant him asylum was dismissed on all grounds. His relationship with SY lay at the heart of the case he sought to mount. The tribunal judge found that “The relationship, if there is one, does not have the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8…”. He later observed that “viewed objectively her best interests are likely to be served by there being no further interference by [TK] and his friends with the care arrangements which social services have put in place”. He was found not to have given a truthful account in his evidence and not to be a credible witness.

 

    1. On 23 January 2012 her then carers notified the authority that she had returned from TK’s property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a ‘lawyer’ about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The carers reported they had overheard TK speaking to SY on the telephone in a controlling and aggressive manner.

 

    1. Social workers attempted to undertake a capacity assessment but SY refused to co-operate. For the same reasons a clinical psychologist, Dr. C, was unable to assess formally her capacity to litigate and/or to make decisions as to residence, contact, marriage and sexual relations but concluded it was unlikely she was able to do so.

 

  1. On 24 May 2012 the authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home.

 

So, the issue in the case was whether the Court of Protection should make a declaration that this marriage was not recognised, as being one that SY had no capacity to consent to.  The eagle-eyed or attentive reader may recall that there was a blog post recently about a Holman J decision, in which he held that the Court had no jurisdiction to make such a declaration  – the difference HERE is that the unfortunate wife in that case COULD have made her own application for nullity but was vulnerable and unwilling, which was what caused the bar to the declaration. Here, there was no possibility that SY had the capacity to make an application in her own right, so the Court would have power to make the declaration.

(It isn’t QUITE as simple as that, because the marriage never purported to be a ceremony to which the Marriage Act applies, so the Court can’t use the powers under that Act – this was clearly an Islamic ceremony. So, to declare it a non-recognised marriage  involves the use of the inherent jurisdiction, and the Court needed to walk through very carefully the existing authorities,  hence the debate and determination below – underlining mine for emphasis)

Discussion – Declaration of Non-Marriage

    1. There is no provision in the 2005 Act to make a declaration in respect of the ceremony in which SY and TK participated on 10 June 2012.

 

    1. The issue is whether the Official Solicitor should make a freestanding application for a declaration or whether the court, of its own motion, should invoke the inherent jurisdiction of the High Court and make a declaration of non-marriage. The parties invite me to take the latter course.

 

    1. The ceremony was conducted at TK’s home by a Mr MA. He is not a registrar and the ceremony did not take place at an authorised place. A document entitled ‘Marriage Certificate according to Islamic Laws’ appears in the court bundle [A35].

 

    1. It is submitted by counsel for the authority and for the Official Solicitor that the ceremony failed to comply with essential requirements of the Marriage Acts 1947-1986 in that:

 

a. it was not conducted in a registered place; and

b. it was not conducted by a registrar or by a priest according to Anglican rites.

    1. Furthermore it is submitted that the evidence indicates that in all probability the ceremony was not intended to attract the status of a marriage under English law being a ceremony undertaken to create a marriage expressly according to Islamic laws.

 

    1. In A-M v. A-M (Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, Hughes J. (as he then was) considered the status of an Islamic marriage ceremony conducted in England. He said, at paragraph 58,

 

“It is clear, however, that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal consequences. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant of, a superintendent registrar’s certificate, and it was conducted in a flat which was clearly none of the places which were authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts……It is not any question of polygamy which ipso facto takes this ceremony outside s. 11, but the fact that it in no sense purported to be effected accordingly to the Marriage Acts, which provide for the only way of marrying in England. …It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity”.

    1. The self-same facts and considerations apply in this case in relation to the ceremony conducted on 10 June 2012.

 

    1. In the case of Hudson v. Leigh (Status of Non-Marriage) [2009] 2 FLR 1129, a ceremony was undertaken in South Africa which the parties had deliberately modified to avoid strict compliance with local formalities. They intended a civil ceremony would be conducted some weeks later in England, but it never took place. Bodey J. held, at paragraphs 80-84,

 

“As to Mr Leigh’s amended petition, Mr Mostyn has abandoned the secondary prayer in it for a declaration that “…no marriage between the parties subsisted on the 23rd January 2004 or thereafter”. That had seemingly been inserted into the pleading by amendment and as an afterthought so as to try to bring Mr Leigh’s case into S55 (1) (c), as being ‘a declaration that the marriage did not subsist on a date so specified in the application’. I am clear that the making of such a declaration would have been wholly impermissible as being a device to get around S58 (5) (which outlaws any declaration that a marriage was at its inception void) and I would therefore have dismissed that prayer had it stood alone. There remains Mr Mostyn’s application for a declaration that the Cape Town ceremony did not effect a marriage at all….It goes without saying that, if appropriately worded, the mere dismissal of Miss Hudson’s petition for divorce and alternatively for nullity would inform any reasonably knowledgeable interested party that there was not a marriage between herself and Mr Leigh. There would indeed be nothing to prevent a specific recital to that effect. That would not be entirely satisfactory, however, since it would not theoretically bind third parties and problems might arise if either party wanted to marry here or abroad, or otherwise needed to demonstrate his or her status. A declaration, if permissible, would be in the public interest of creating certainty and would be beneficial and convenient for both parties. In my judgment, the making of such a declaration is not outlawed by S58 (5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception. When the facts dictate the latter (which, as found here, they do not) then the only route to resolution is nullity. Nor do I find persuasive Mr Le Gryce’s argument about the former practice of the ecclesiastical courts. For so long as the High Court has an inherent jurisdiction, as it does, and has the authority of the RSC to make free-standing Declarations in appropriate circumstances, then such jurisdiction needs within reason to be flexible and to move with the times. I cannot accept that it is stuck in the mid-19th century. Were it so, then countless orders must have been made (for example in the management of life-support systems) without jurisdiction. Accordingly I propose to make a Declaration that the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh.”

    1. Bodey J., in a later case, considered the status of an Islamic marriage ceremony conducted in the ‘husband’s’ London flat in the presence of an imam. He held there had been a wholesale failure to comply with the formal requirements of English law and there was nothing that could be susceptible to a decree of nullity under s. 11 of the Matrimonial Causes Act 1973. He made a declaration of non-marriage: El Gamal v. Al Maktoum [2012] 2 FLR 387.

 

    1. On the basis of those authorities I am satisfied that the ceremony which took place between SY and TK on 10 June 2012 did not comply with the formal requirements of the Marriage Acts 1947-1986. I find it was a non-marriage.

 

    1. What is then to be done? The Official Solicitor on behalf of SY could make a freestanding application pursuant to the inherent jurisdiction of the High Court to seek a declaration of non-marriage. Alternatively, the court in these proceedings could, of its own motion, invoke the inherent jurisdiction and make a declaration of non-marriage.

 

    1. In the case of XCC v. AA and Others [2012] EWHC 2183 (COP), Parker J. was invited to make a declaration of non-recognition of a marriage within Court of Protection proceedings by invoking the inherent jurisdiction of the High Court. She said, at paragraphs 54 and 85,

 

“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne…..I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion, particularly if such orders are ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults is an aspect of the parens patriae jurisdiction the court has particularly wide powers to act of its own motion.”

    1. I, respectfully, agree.

 

    1. Parker J. held that the provisions of the 2005 Act were not to be imported in to the inherent jurisdiction evaluation, the decision was not dictated only by considerations of best interests but public policy considerations were also relevant [paragraphs 56-57 and 71-76].

 

    1. It is plain on the facts of this case, especially taking account of the immigration judgment handed down on 17 July 2012 in respect of TK’s asylum appeal, that TK exploited and took advantage of SY for the purpose of seeking to bolster his immigration appeal and his prospects of being permitted to remain in this country. The ceremony he and SY engaged in on 10 June 2012 formed the bedrock of that objective.

 

    1. TK well knew that SY had learning difficulties and was a vulnerable young woman. He knew that the police and the care services were extremely concerned about his involvement with SY.

 

    1. I can reach no other conclusion than he deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation.

 

    1. Fortunately, it would appear that TK’s involvement in SY’s life is not now causing her emotional distress or harm. It was, however, yet another abusive and exploitative episode in her life which could have had serious physical, emotional and psychological consequences for her.

 

  1. In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham ‘marriages’ are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.

 

Over and above the facts of this case, and that judicial steer underlined above (which I suspect will be cited in many of these cases to come), the Court made some interesting observations about the capacity assessment.

 

    1. The assessment of capacity (COP 3) was completed by SY’s social worker, NU. It is a full, detailed and helpful assessment of SY’s capacity to make decisions as to her residence, contact with others, her care needs and to enter into a contract of marriage.

 

  1. I am told by counsel that it is more usual for the assessment of capacity to be undertaken by a medical practitioner or a psychiatrist. The assessment in this case demonstrates that an appropriately qualified social worker is eminently suited to undertake such capacity assessments. I commend the practice which I hope will be followed in appropriate future cases.

 

[I am not entirely sure how I feel about that – I represent and work with social workers and believe that those who work in adult social care do have the necessary expertise and skill to conduct such assessments and that they would strive to make them fair. However, it can be the case that the Local Authority take, and sometimes have to take, a line as to what they consider to be in the best interests of the person. It may be that such a role doesn’t sit entirely comfortably with conducting an assessment to decide whether a person is capable of exercising autonomy or should have decisions about their future made by the State in their ‘best interests’.  (I am not saying that there WOULD be bias or unfairness, but in law, the perception of bias can be as important as the actuality.  R v Sussex Justices being the lead on this – the law must not only be fair, it must be seen to be fair)

 

 

 

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London Borough of Ealing v Connors (committal hearing)

Posted on November 13, 2013 by suesspiciousminds

I wrote recently about a committal hearing arising from a breach of orders made in private law proceedings. This is one that relates to public law proceedings. The committal hearing was held in open court, thus it is possible to report the names of those involved.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3493.html

 

The background which led to orders being made on these children is very worrying. The Court report it in this way

    1. This matter concerns two girls, A born on 12th October 1999, who will be 14 years of age tomorrow, and B, born on 22nd November 2001, who is now 11 years of age, nearly 12. The Respondent is the mother and the father has taken no part in the proceedings. The children have an older brother C who is now 16 years of age. There are seven half siblings as a result of the mother’s previous marriage, or relationship.

 

    1. Both of these young girls were made the subject of emergency protection orders on 23 September 2013 and interim care orders on 1 October 2013. Both of those orders were accompanied by recovery orders as the girls had gone missing and their location was unknown. Immediately prior to the emergency protection order on 23 September 2013 they had been living with their mother. Neither child has been seen since 23 September 2013. On the application of the Local Authority on 8th October 2013 I made a Collection Order to assist the Local Authority in seeking to locate the whereabouts of the children.

 

    1. There is a background to this matter which is carefully set out in the case summary provided by the Local Authority. In summary, there has been involvement between this family and the Local Authority since about October 2012, following A being admitted to hospital with suspected meningitis. Further investigations were undertaken in relation to her medical position. She is currently under treatment for rheumatic fever and requires monthly injections of penicillin. Since May of this year there has been inconsistency in relation to her attendance for these injections. She missed her August injection, was late for her September injection, and, as far as I am aware, has not had her October injection. So the medical position in relation to A is extremely worrying.

 

    1. The Local Authority have sought to engage with the mother around issues concerning lack of school attendance and A’s behaviour. Unfortunately, that has not been very fruitful. There have also been issues in relation to domestic violence within the home with the father. He is reported not to live at the home, but attended there in April when there was an incident and he was asked to leave by C. The father damaged the property and left before the police arrived. C has been arrested in relation to a criminal matter concerning a burglary, and has been bailed back to the home.

 

    1. The matters that precipitated the issue of these proceedings occurred on 19 September when it is alleged that A was assaulted by being kicked repeatedly and punched by C and her father in the family home. At the time of the incident those present were A, C, the father, the mother, and a five year old niece and young six month old nephew. A reported that the brother and father had called her a prostitute and accused her of sleeping with her uncle. It is alleged that during the argument C specifically put on steel toe capped boots to carry out the assault, and it is alleged that the father punched and kicked her, pulled her hair, and threatened to kill her.

 

    1. The mother was noted to be intoxicated by the London Ambulance Service when they attended, and A was observed to be shaking, crying and extremely distressed. There was swelling on her leg, redness to her face and ribs, and she was taken to hospital and kept overnight. It is clear from the examinations that subsequently took place there were a number of injuries on A’s body which are consistent with the account of assault that had been given, including bruising, grazing, and areas of redness in various parts of her body. A was discharged to the home of her cousin K on 20th September.

 

  1. The whereabouts of B are unknown. C has been bailed in relation to the assault back to the home address. The question of police protection was discussed. The Local Authority undertook home visits on 20 and 23 September. The mother was not at home, and it had not been possible to contact the mother. On 23 September the EPO and recovery orders were granted without notice.

 

Over and above the concern then that children whom the Court had determined there was reasonable grounds to believe had suffered significant harm, in the form of both assaults from adults and intoxication of their main carer, there were considerable health reasons why A needed to be found so that her treatment for meningitis could be resumed. It is no great surprise that the Court made what is called a Collection Order (this being one of the powers of the High Court, to authorise an officer of the Court known as the Tipstaff, to conduct investigations as to the whereabouts of a child and to recover them if possible. I like to think, personally, that the Tipstaff looks like the motorcycle cop robot from Terminator 2.   I note from a quick search for information on Tipstaffs/Tipstaves that they are the only people permitted to arrest a person within the precincts of the Royal Courts of Justice – which given that there are only two of them and it is a massive, massive building, is slightly unnerving)

In terms of that investigatory/recovery process, the Court said this

    1. This matter came back before me the following day, 9 October, because the Tipstaff had arrested the mother on the Tuesday evening for alleged breach of the Collection Order. The actual order required her to deliver the children into the charge of the Tipstaff, or inform the Tipstaff of the whereabouts of the children, or in any event inform the Tipstaff of all matters within her knowledge or understanding which might reasonably assist the Tipstaff in locating the children.

 

    1. The record in relation to the visit when the mother was arrested states that the police officers attended the address and spoke with the mother. She informed the police that the children were with Paddy and Mary in Manchester and she had no contact details for them. Further, she said that the children may now be with a different unknown family. The suggestion by the mother that she did not understand the terms of the order, and that she may be arrested, is not supported by that account because she must have clearly understood the terms of the order requiring her to give information otherwise she would not have given the information that she did. So as of Tuesday evening that was the information that the mother had given.

 

    1. When she attended court on 9 October and was asked by her legal team about the whereabouts of the children she said that they were with her sister-in-law, BC at an address in Edgware. She gave oral evidence on that day when she said she had not seen the girls since 23 September but had “heard” from others that they had been in Manchester with her cousins, Paddy and Mary. She said she had been told by one of her older daughters, called M, that the children had returned to London on Monday of this week and were staying with BC. Her daughter M told her she had seen them there; she had seen them playing outside BC’s home.

 

    1. When the police attended on the Tuesday evening the mother agreed she knew what the order required her to do, but she did not disclose this important information as to the whereabouts of the children to the police. I remanded the mother in custody on Wednesday until the following day so that the police could make enquiries at BC’s address to see if the children were there. They attended at BC’s property on three occasions; once at about 9 o’clock on the Wednesday evening, when BC was there but denied that she had the children; again in the early hours of the morning of 10 October, when there was no response to their knocks on the door; and, finally, yesterday afternoon when BC was arrested. BC was going to be brought before me this morning, but I have been told this morning that she had been taken ill overnight and is currently in hospital waiting to be seen by a consultant.

 

    1. Once it became apparent yesterday afternoon that the children were not at BC’s home I heard further oral evidence from the mother. She was adamant that the children were with BC. I remanded the mother in custody again to this morning as it was expected BC would be brought to court.

 

    1. In her oral evidence given on Wednesday and Thursday the mother accepted that there have been many opportunities when she could have produced the children, but did not do so as she did not want them to come into care. She accepted that at any time she could have got the children back. She maintained she had no address or phone number for Paddy or Mary, who allegedly had the children in Manchester. She further maintained that she did not have A’s mobile telephone number, although she did accept that A had a mobile phone. She revealed that when the police sought to execute the recovery order at BC’s home on about 23 or 24 September, after the EPO was granted, the children had in fact been there but they were hiding; and that is why they were sent to Manchester. The mother said in her oral evidence that she would now co-operate with the Local Authority and that she was concerned about A not receiving her injections.

 

    1. When the matter was listed before me this morning counsel for the mother, Mr. Nosworthy, who has been present at all the hearings made an application that I should adjourn this matter until the court could hear from BC. I rejected that application, for the reasons that I have given earlier. Importantly, on his instructions, he said that if the mother is given the opportunity to speak to K (who is the daughter of BC) and gives the instruction for the children to be brought to Social Services they will comply with her instructions. She believes K will be at BC’s accommodation looking after BC’s children. Mr. Nosworthy stated as follows:

 

“Once the mother relays her permission that the children are to be brought to Social Services whoever has them will do so.”

  1. That demonstrates to me that this mother has always known where these children are, she has always known that they would be able to be brought back at her command, but for reasons which are known only to her she has chosen not to do that.

 

The issue then was whether this conduct on the part of the mother amounted to a breach of the Collection Order punishable by committal for contempt.

    1. I remind myself, of course, that the test in this matter is that I have to be satisfied to the criminal standard, namely, that it is beyond reasonable doubt. I have to be satisfied so that I am sure. Having seen the mother it is quite clear there are strong emotions felt by her about the orders made by the court regarding the children and she opposes them. Her lack of co-operation with the court process to date in locating the children supports that view. I have made clear to the mother that any orders I make today are not final decisions about the children, those are for another court on another day. It is extremely regrettable that due to the circumstances of this application, and the mother’s behaviour, a hearing set in Willesden County Court for today to consider a contested interim care application cannot take place. The mother has failed to act in the children’s interests by denying them the opportunity to attend that hearing.

 

    1. I am satisfied so that I am sure that this mother knows perfectly well where these children are, or at least where they can be contacted or located and she knew that when she was arrested on Tuesday. She acknowledged as much in answer to questions from Ms Hall in her oral evidence yesterday, when she accepted that she could have got the children back any time prior to her arrest by the Tipstaff if she wanted to. Despite saying that she has refused to give any details about the whereabouts of the children other than them being at BC’s house when clearly they were not. She told the police on 8 October, just prior to her arrest, that they were in Manchester, which on her own account to the court the following day was a lie.

 

    1. I have reached the conclusion that it is inconceivable that as their mother who had their full time care prior to 23 September she has taken no active steps to find them or speak to them. Her evidence is inherently unreliable due to the inconsistencies in her accounts, coupled with her acknowledgment that she does not wish the children to be placed in care. In that context, her expressed intentions of future co-operation with the Local Authority rings very hollow. That is reinforced by the submission made by her counsel, on her express instructions this morning, that once she relays her permission to the family that the children should be produced at Social Services they will do so. That, in my judgment, makes it very clear it is within her control to ensure that these children are produced to the Local Authority and she has failed to do so.

 

  1. Therefore, I am satisfied so that I am sure she is clearly in breach of paragraphs 2 and 3 of the Collection Order that I made on 8th October, and she has failed in the continuing duty to provide information in relation to the whereabouts of the children.

 

There then followed a plea in mitigation (i.e mother’s lawyer setting out the reasons why this breach should not result in imprisonment, or if it did, that the sentence should be lenient.

    1. Mr. Nosworthy has very thoughtfully and eloquently made submissions on behalf of the mother in relation to the sentence that this court should impose in relation to the contempts that I have found. He has very properly referred me to the case of Hale v Tanner, reported at [2000] 2 FLR 879, and the guidance that is given in that case, in particular at paragraphs 26 and 29, and the summary in the head note in relation to the matters that the court should take into account, and I do take those matters into account.

 

    1. In mitigation he says that the mother has a clear sense of remorse, which of course I accept at face value, but I have to take into account that that remorse has not been coupled with any kind of direct action by her to assist in recovering the whereabouts of these children. He also says that the evidence is clear, she has failed to co-operate in the past but now wishes to co-operate. Again, I understand why that submission is made, but there has not been co-operation in relation to locating the whereabouts of these children.

 

    1. In relation to the cultural background, whilst of course that is an important consideration that the court has to bear in mind, in particular the concern by this mother that she may be ostracised by her community if she worked together with the Local Authority. Whilst it is a factor it does not give her an entitlement to be able to disobey orders of the court.

 

    1. I accept the difficult background this mother has had, as is clear from the papers that I have read, which have included unhappy relationships with her partners, and also difficulties with a number of her children. I also take into account that she has, I think, two other children living with her, C who is 16 years of age, and M, who is 24 years of age. But I look at that in the context of what has been clear in this case, there is a wider family that step in and support where necessary.

 

  1. I take into account the mother has spent three days in custody, and also that there may be difficulties in relation to her rental payments and practical matters as regards her living accommodation. However, I am very clear that the message needs to go out loud and clear in relation to court orders relating to the whereabouts of children. It is an extremely serious matter when the court is unable to trace the whereabouts of children, and it is particularly serious when the court is unable to do that because the person who can assist in that will not provide the help to locate the children.

 

The Court imposed a custodial sentence of 28 days, taking into account the 3 days that the mother had already spent in prison, but reminded her that if she remained in breach of the order (by not providing the details of where the children were) that a further application for committal could be made and that the maximum sentence would be 2 years. The Judge urged the mother to consider her situation, and that she could purge her contempt at any point (comply with the order, apologise, and be released/have her sentence reduced)

 

It is worth noting that however much you disagree with orders made by the Court, and however much you want to fight those orders, there are significant consequences and risks for taking that challenge or fight out of the Court room and taking things into your own hands.

 

I suspect the Tipstaff can't turn his arms into metal knives. he wouldn't get through the security checks at the RCJ entrance

I suspect the Tipstaff can’t turn his arms into metal knives. he wouldn’t get through the security checks at the RCJ entrance

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Seven!

Posted on November 13, 2013 by suesspiciousminds

 

Sorry, am thinking of the Experts on Strictly…    The Government have determined the standards for expert reports in care proceedings. From the press releases, you would think that these standards would transform the expert reports that the independent study showed were pretty ghastly and not fit for purpose in a significant number of cases, particularly given the cost to the taxpayer and the delay for children that obtaining them often caused.  

As usual with modern government, you can find press releases and news reports of the launch – plenty of stuff saying how marvellous the new arrangements are or will be, but finding the actual substance underneath all of the fluff is always difficult. That’s what I’m here for

 

The link is here: – https://consult.justice.gov.uk/digital-communications/expert-witnesses

 

But as the standards are so skimpy   (sorry, thorough, but condensed into short, practical guidance) I have just set them out in full here. 

 

[I wrote on this before at the time of the consultation, and am disappointed to see that the formulation of ‘has been active’ rather than ‘is active’ survived to the final draft. I wrote then, and I re-emphasise now, that I am aware of experts who have done nothing but Court work in the last two decades if not longer, and they still meet this test because ‘has been active’ doesn’t even have a ‘recently’ caveat.   One might also think, given how fast the law on adoption has been developing that the expert might be obliged to keep up to date with the legal requirements before recommending options]

 

The Final Recommended Standards

‘Standards for Expert Witnesses in Children’s Proceedings in the family court’

Subject to any order made by the court, expert witnesses involved in family proceedings (involving children) in England and Wales, whatever their field of practice or country of origin, must comply with the standards (1-11)

1. The expert’s area of competence is appropriate to the issue(s) upon which the court has identified that an opinion is required, and relevant experience is evidenced in their CV.

2. The expert has been active in the area of work or practice, (as a practitioner or an academic who is subject to peer appraisal), has sufficient experience of the issues relevant to the instant case, and is familiar with the breadth of current practice or opinion.

3. The expert has working knowledge of the social, developmental, cultural norms and accepted legal principles applicable to the case presented at initial enquiry, and has the cultural competence skills to deal with the circumstances of the case.

4. The expert is up-to-date with Continuing Professional Development appropriate to their discipline and expertise, and is in continued engagement with accepted supervisory mechanisms relevant to their practice.

5. If the expert’s current professional practice is regulated by a UK statutory body (See Appendix 1) they are in possession of a current licence to practise or equivalent.

6. If the expert’s area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation, and experts in exclusively academic appointments) the expert

should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case by case basis. Registering bodies usually provide a code of conduct and professional standards and should

be accredited by the Professional Standards Authority for Health and Social Care (See Appendix 2). If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals) but consideration should be given to appropriate professional accountability.

7. The expert is compliant with any necessary safeguarding requirements, information security expectations, and carries professional indemnity insurance.

 

 

 

8. If the expert’s current professional practice is outside the UK they can demonstrate that they are compliant with the FJC ‘Guidelines for the instruction of medical experts from overseas in family cases’

 

9. The expert has undertaken appropriate training, updating or quality assurance activity –

including actively seeking feedback from cases in which they have provided evidence21

– relevant to the role of expert in the family courts in England and Wales within the last year.

10. The expert has a working knowledge of, and complies with, the requirements of Practice Directions relevant to providing reports for and giving evidence to the family courts in England and Wales. This includes compliance with the requirement to identify where their opinion on the instant case lies in relation to other accepted mainstream views and the overall spectrum of opinion in the UK.

 

 

Expectations in relation to experts’ fees

11. The expert should state their hourly rate in advance of agreeing to accept instruction, and give an estimate of the number of hours the report is likely to take. This will assist the legal representative to apply expeditiously to the Legal Aid Agency if prior authority is to be sought in a publicly funded case.

 

 

[I’m afraid, channelling Mr Revell-Horwood, this is at best a Four. A-bys-mal]

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Don’t get too hung up on the lies

Posted on November 8, 2013 by suesspiciousminds

 

 

The Court of Appeal decision in Re Y (A child) 2013 

http://www.familylawweek.co.uk/site.aspx?i=ed120637

This was actually, I think the first appeal about Placement Orders post Re B-S, it has just been beaten to the published judgment case by all of the others. Anyway, in this one, the Court of Appeal determined that the judgment was deficient in the sort of rigorous analysis that is now required (notwithstanding that not all of the authorities that established the need for such analysis having existed at the time the judgment was made).

 

The Court of Appeal were very critical of the Local Authority final evidence.

“In upholding the criticism made of the judgment as to inadequate identification of risk and consequent evaluation of likelihood of that risk in subsequent analysis of measures which mitigate that risk, that is articulation of the proportionality of the order sought and subsequently made, the judge was not assisted by the dearth of relevant evidence which should have supplied, in particular by the local authority.  Relevant evidence in this respect is not and should not be restricted to that supportive of the Local Authority’s preferred outcome.”

(re-emphasising, if such emphasis were needed, that a B-S compliant final statement analysising the pros and cons of each potential final option is essential)

 

But this bit is a development from the multitude of other Placement Orders sent back for re-hearing.

 

(4) I consider the case appears to have been hijacked by the issue of the mother’s dishonesty. Much of the local authority’s evidence is devoted to it.  The Children’s Guardian adopts much the same perspective.  It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case.  No analysis appears to have been made by any of the professionals as to why the mother’s particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance.

(5) This is not a case which is remitted for re-hearing merely to correct a procedural defect. The existing evidence plainly is inadequate for the purpose of the task of the judge who will re-hear the case at first instance in the light of recent authorities.

[This is of course mildly ironic, since the case that launched a thousand appeals in relation to plans for adoption, Re B, is almost entirely about the dishonesty of the parents and the disconnection between that level of dishonesty and firm cogent reasons as to why and how that dishonesty would harm the child.  It is also worth bearing in mind that the Supreme Court were 4-1 in favour of the Placement Order, notwithstanding that it was one of the flimsiest thresholds I’ve ever encountered]

 

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Life, liberty and the pursuit of happiness

Posted on November 8, 2013 by suesspiciousminds

 

 

The compelling case of Re M (Best Interests : Deprivation of Liberty) 2013

 

http://www.bailii.org/ew/cases/EWHC/COP/2013/3456.html

 

This is a Court of Protection case,  decided by Justice Peter Jackson – who has delivered a number of very cogent judgments in the short time I have been running this blog. I think this one is a model of its kind.

 

The issue was whether the Court would approve a Deprivation of Liberty for a woman, meaning that she would have to live in a care home, or reject it meaning that she could return to her own home. The care home option would be safe but make her unhappy, being in her own home carried considerable risks but would make her happy.   [Hence the title of the piece]

 

There was no doubt in this case that the woman in question, M, lacked capacity to make decisions on her own behalf, and that the professional agencies concerned could have done nothing other than make the recommendation they did

 

my decision implies no criticism whatever of any of the witnesses from the local authority or by the CCG. I understand the position taken and the reasons for it; indeed it would be difficult for them to have taken a different view on the facts of the case. There are risks either way and it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court and not on the shoulders of the parties.

 

 

Another interesting point for wider application is this :-

 

I have already noted the visit made by the District Judge to M in the care home about a month before this hearing. A careful written record was made and placed with the papers. The visit has therefore had the dual purpose of informing the court of M’s views and of making M feel connected to the proceedings without putting her into the stressful position of having to come to court in person. I commend this as an approach that may be of value in other cases of this kind.

 

 

The fundamental issue in the case was the management of M’s diabetes, the assessment being that she needed 24 hour supervision to manage this so that it would not be life-threatening. The authorities therefore wanted M to live in a care home, where this supervision could take place. M (despite lacking capacity to make a decision) was clearly expressing her huge antipathy to this and her desire to live at home.

 

 

 

 

The risk from the management of her diabetes was real and vivid

 

In relation to the management of M’s diabetes, Miss L, a senior specialist nurse, clearly explained the processes involved, the nature of the medication regime, and the range of consequences arising from non-compliance of different kinds. Her evidence establishes that if there is a default in the insulin supply that M receives there will undoubtedly be a deterioration in her physical health. The probability is that this would be picked up, but the length of time that would be available to take action would be limited with the likeliest scenario being a situation that had to be resolved within a certain number of hours or a few days; however the possibility of a more urgent and possibly fatal event cannot be discounted.

 

Counsel for the Care Commissioning Group (the agency responsible for M’s care) put it very crisply to the Court

 

at the care home there is almost complete certainty of physical safety at the cost of the happiness of M

 

 

 

You may already be anticipating that we are about to move into very interesting territory in Deprivation of Liberty law   – if someone needs to be detained to preserve their physical safety, but the effect of that is to lose their happiness and quality of life, where does that balance fall?

 

 

  1. In relation to the views of others, I have taken account of the views of all those referred to above. I am in no doubt that everyone concerned has thought hard about what is in M’s best interests. It is not surprising that witnesses called by the CCG are by vocation highly motivated by their responsibility to keep her safe. I also place substantial weight upon the judgement of A, who knows M and her situation extremely well.
  1. Ultimately the court must balance these factors:
  • M’s wishes, feelings and values which point towards a return home.
  • The best possible control of her diabetes, which points towards her remaining in the care home.
  • The risks to her health that exist in the care home, both by way of a possible deterioration in her physical and mental state consequent upon her being made to stay there, and by way of her threats of self-harm.
  • The risks to her health that would exist following a return home, as described by Miss L.
  • The possibility that cannot be ignored that M will cause herself serious physical harm if she is told that she is not going home.
  • The real possibility that her enjoyment of life might to some degree be recovered following a return home even if it does not fully meet her expectations.
  1. Having weighed these matters up I have reached the clear conclusion that the case for a continued deprivation of M’s liberty has not been made out. I accept that there are many uncertainties in a return home, indeed more uncertainties both of a good and a bad kind than in maintenance of the status quo. Negatively these include a possible deterioration in her physical and mental state as a result of non-cooperation. The deterioration may be gradual, but might also be sudden, occurring in a matter of a few hours, and may even, though perhaps less likely, be instantly life-threatening. Any decision that M returns home must accept the real possibility that the attempt will fail and the possibility in the worst case that she may die as a result of a sudden deterioration in her condition. Like Dr Leonard, I do not however accept the view that failure is inevitable.
  1. The above disadvantages are, in my view, outweighed by the following considerations.
  1. In the end, if M remains confined in a home she is entitled to ask “What for?” The only answer that could be provided at the moment is “To keep you alive as long as possible.” In my view that is not a sufficient answer. The right to life and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life. In M’s case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable

 

 

The Judge therefore ruling that in this case, M’s best interests would be better served by being at home and being at happy (albeit with an element of risk) rather than being safe but unhappy in the care home.

 

Obviously, there was some emphasis on trying to make the option at home safer, and the Judge had this message for M

 

My message to M is this: I hope that you will be happy when you return home. If you accept the support you will be getting from district nurses and carers it may be possible for you to stay there. If you do not accept that support you will probably have to return to a care home

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I agree with Nick

Posted on November 6, 2013 by suesspiciousminds

Ah, those heady days of the televised election debates, where Brown and Cameron were falling over themselves to position as the party who most agreed with Nick Clegg, and for a time Nick Clegg had the brightest burning star in British politics…

 

No, this is about District Judge Nicholas Crichton, and his very firm views about the PLO.  For those who don’t know D J Crichton, he is the pioneering judge behind the Family Drug and Alcohol Court in London, which has done so much to help troubled families and children.  He is not the ,ost influential or powerful family judge in the country – the Daily Mail wouldn’t be able to call him “Top Judge” but he is one that most of the profession look up to as a thoroughly decent, committed and imaginative judge who has tried to help those who come before him.

Therefore, when he speaks out, what he says is worth listening to.

http://www.lawgazette.co.uk/practice/pioneering-family-court-on-the-edge/5038532.article

 

And what he says here is that the rigid 26 week mandate is a tyranny that will lead to grave injustice for individual families who could have turned things around given the time, and he urges solicitors to appeal decisions where the 26 week mandate is rigidly imposed.

I think regular readers of this blog will know that I share those concerns myself – not that aspiring to cut out delay and the ‘dead time’ in care proceedings where nothing happened other than waiting for experts is a bad idea, rather that the rigidity of ‘one size fits all’ was inevitably going to lead to some cases being decided at the wrong time for that family.  So yes, largely I do agree with Nick.

I possibly agree less vehemently than I would have done two months ago. I think that DJ Crichton suspects now, as I did then, that the 26 week mandate was part of a greater political drive to faster and more adoptions and that troubled families weren’t going to be given a fair and reasonable chance to turn things around.  My only interpretation of the recent batch of Court of Appeal cases is that there is some judicial moving around of chess pieces on the board to lay the foundations for less adoptions and more Care Orders at home, with Local Authorities being ordered to hold onto higher levels of risk than they have historically been prepared to, and to provide more services at home to families than have historically been available.

It might be argued that this is long overdue, it might be argued that as we have a Child and Families Bill going through Parliament, that a proper and thorough debate about what Society and Parliament wants to do about families who come into the family justice system – are we there to penalise them, to test them, to help them, to prop them up? would have been the appropriate place for such a shift in national policy to happen.

 

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From Russia, with love

Posted on November 5, 2013 by suesspiciousminds

 

The committal decision in Re Davies 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3294.html

 

This one is likely to rekindle the debate, both amongst professionals and the wider public, on the powers of the Court to deal with breaches of court orders and contempt of court.

 

There are some, John Hemming MP springs to mind, who consider that imprisoning people for family Court matters which fall far short of being criminal offences is not acceptable in a modern society and illustrative of the family Courts having too much sway and not enough accountability. The secrecy/confidentiality of the family Courts just exacerbates these concerns. They might well say that punishment and resolving family disputes don’t go together.

 

There are others,  I suspect many in the Father’s Rights movements, who would say that the family Courts are largely toothless when it comes to dealing with people who have no respect for orders and decisions and just take matters into their own hands to thwart contact. If you have spent two years of litigation and jumping through hoops and possibly thousands on legal costs to get your contact order and then it doesn’t happen because the parent with residence of the child just ignores the order, then you can see that you would WANT there to be consequences for breaking court orders and you would WANT those consequences to be dished out.

 

On the one hand here, we have grandparents who spent five days in prison because they did not want to tell the Court where their daughter had taken their granddaughter Alice too.

 

On the other, we have a mother who defies a Court order for contact, takes the child away to another country and leaves the father not knowing where his child is or how to find her, who then gets her family to lie in the witness box and breach Court orders that are designed to locate this mother and get her to bring the child back to the UK so that the arguments can properly be heard. 

 

 

This particular case made some of the national press, who took the understandable emotive line of how awful it is to lock up grandparents for not telling the Court where the child was.

 

One also has to look at it from the side of the father, and of the child who has been denied the lawful contact she should have been having with her father because the mother took the law into her own hands.  [i.e one could have written the story as a very emotive one about how the child had been whisked away from dad and he had no idea even which country she was in or whether she was safe]

 

Firstly, it is worth noting that although the grandparents and the aunt were locked up on 25th October, the Court adjourned sentencing until 30th October (the judgment on that is not yet reported) to allow them the chance to get some legal advice and do what is called “purging their contempt”   (in essence, apologising to the Court for breaching the orders and complying with the order now by giving what information they have about the child’s whereabouts).  

 

Secondly, it is worth noting that although the father was present in Court and represented, he was asking for the family members NOT to be imprisoned.

 

Of course, with the media being the way it is, what we want is a simple good guy and a simple bad guy, and where the stories are more complex than that, the press coverage struggles to set out the nuances. So much easier to just side with either the grandparents or the father, and paint the other side as being wicked.  I don’t even know that you could paint the mother as the bad guy here – she was certainly foolish, but until she gets back and has her say, we don’t know what lies behind her decisions.

 

[The grandparents were released on 30th October. As I understand matters, the Aunt is due to appear in Court on Tuesday 5th November]

 

 

Anyway, by way of background

 

  1. In this matter I am concerned with one young child, Alice Gabrielle Davies, who was born on 18th September 2008 and is five years of age. Her mother is Jacqueline Davies. Her father is Julian Brown. Her maternal grandparents are Patricia Anne Davies and Brian Davies. Her maternal aunt is Melanie Williams. The parents’ relationship broke down and they had recourse to court proceedings. The father was unable to have contact with Alice. Those court proceedings resulted in an order being made on 29th June 2011 for the father to have contact with his daughter on a regular basis. In fact, subsequent to that order, he has not seen her since 18th December 2011.
  1. On 1st March 2012, the mother submitted an application for the cessation of contact because she was planning to leave the jurisdiction. In the reasons that she gave for applying for that order she said:

“Unfortunately, because of the constant need to take time off to prepare for and attend court, my job became untenable and my employment terminated. So due to the financial circumstances of not working and the implications of the continuing costs of solicitors’ fees etc, which has left me in debt and without the security of a job, and trying to sort out the finances of the here and now, I have had to make an uncomfortable decision. Therefore, because of the need to support my child and myself and the economic climate in the United Kingdom, after months of looking for work, I have had to take drastic action and have been forced to seek a position further afield, leaving my roots and family support.”

  1. Sometime after that application – the date is not at all clear – the mother did indeed leave this jurisdiction with Alice. From the enquiries made by the Tipstaff, it appears that she flew to Russia. There is no record of her returning from Russia to this jurisdiction, and it is unknown whether she remains living in Russia with Alice or in a country somewhere else.

 

So, the father had to go to Court to get an order for contact with his daughter, the contact wasn’t provided and mum intended to apply to discharge the existing contact order because she wanted to move abroad.  What she then did, in leaving the country with the child without the Court having granted permission, was unlawful.

 

In those circumstances, it is entirely understandable that the Court made orders that Alice should be returned to the UK, and that she should be in the UK whilst the Court considered the respective applications of the mother (to end dad’s contact order and move abroad) and the father (to continue his contact and presumably resist any move abroad unless his contact was going to be adhered to)

 

It is important to note that the Court had not made any decisions about who was right in the long-term on those applications, just that it was premature to move Alice abroad before both sides had their say and the Court reach a view.

 

Because of the difficulties in tracking down the mother and Alice, the Court used their powers to make orders that members of mother’s family provide any information they had about where mother and Alice were.

 

  1. Mrs. Davies, accompanied by her husband, Brian Davies, attended before me yesterday, and I made an order requiring her, on one last chance, to divulge the details of the whereabouts of Alice and the mother. During the course of that hearing the maternal grandmother, Mrs. Davies, gave evidence on oath before me. She told me repeatedly and in no uncertain terms that she had no means by which she could make contact with her daughter and that she was solely reliant upon her daughter making contact with her, which she did from time to time. She also told me repeatedly that she had no idea where her daughter or Alice were in the world. Mr. and Mrs. Davies then left court and travelled by car back to Cardiff.
  1. During the course of that hearing, at the request of the Tipstaff, I required Mrs. Davies to give him the name and address of her other daughter, Melanie Williams. The police attended upon Mrs. Williams last night and served her with the location order and explained that order to her, and the duty that she was therefore under to cooperate with this court and to give information that was available to her about the whereabouts of Alice and her sister Jacqueline.

 

The police, in serving those orders, asked some questions of the family, and it was their answers to these questions which got them into difficulty and eventually into cells  [underlining mine, for emphasis]

 

  1. I have statements from the two police officers who attended upon Mrs. Williams – a Police Constable and a Police Sergeant. The statements record the self-same evidence, namely that when they asked Mrs. Williams when she had last been in contact with her sister, Jacqueline, she replied, to start with that it was “about three years ago“. She insisted that since they were 18 and had left home they had gone their separate ways and they had not spoken for some time. She said that she had sent some emails to her sister. Those had not been returned undelivered, but she claimed that she had not received any reply. She continued to deny having any knowledge about where her sister lived. The police officer records as follows: “Whilst looking for the mobile number for Patricia Davies, I noticed a contact ‘Jacq’. I asked Melanie if this was her sister. She did not reply. I therefore noted down the mobile number”. Again, the police officers asked Mrs. Williams about when was the last time she had contact with her sister. The police officer says: “Melanie eventually stated that she had had a Skype text conversation in August 2013 but insisted she did not know where her sister had been when they had that conversation.”
  1. Because one of Mrs. Williams’ daughters was present at the home when the police were there, they advised her that they were minded to arrest her for breach of the order. They therefore contacted the maternal grandparents, who were still en route from this court, to look after their granddaughter. The police were still present when Mr. and Mrs. Davies arrived. The Police Sergeant explained to all three of them the reason they were there and urged them to provide any information in order to prevent the arrest of Mrs. Williams. The Police Sergeant then sets out in his statement the following: “Patricia Davies then said loudly, ‘I can’t, I can’t, I won’t. They’ll take the baby away’.” The Police Sergeant again urged the grandmother, Mrs. Davies, to provide any details she had of her daughter Jacqueline. She then told the police officer that she had a mobile number. She went out to her car and came back and gave the telephone number to the police officer. The Police Sergeant asked her to telephone that number. He records Mrs. Davis replying: “Jacqueline wouldn’t answer because it was the middle of the night where she was”. She was asked how she knew it was the middle of the night. She said: “I don’t know”. She was again asked: “How do you know it is the middle of the night?”, and she replied: “Because it’s thousands of miles away”. She was asked how she knew that, and she said that Jacqueline had told her. She finally said: “You’ll just have to arrest me. I don’t care what they do to me”.

 

 

The family were brought back to Court on 25th October and gave evidence to the Court about these matters. On the face of it, they had a contact telephone number for the mother, knew where she was and were refusing to provide the information “You’ll just have to arrest me. I don’t care what they do to me”.  The prospect of them being imprisoned for contempt was very high as a result of this.

 

  1. Over the course of this afternoon, Mrs. Davies, Mr. Davies and Mrs. Williams have given evidence on oath. Mrs. Davies gave evidence first and then her husband and then her daughter, Melanie. Having considered their evidence, I am in no doubt whatsoever that all three of them are lying to me. I find that Patricia Davies has lied and has admitted lying on oath when she told me yesterday that she had no mobile number for her daughter and had no means of contacting her. It is wholly remarkable then that on her journey back from this court she is sending texts to her daughter. Of note, she was asked by the police officers prior to them arresting her whether she had been in contact with Jacqueline today – that is yesterday. She replied: “Yes, but by text but I’ve deleted the texts now”. Mrs. Davis claimed that those texts were deleted because that is her normal practice. I regret to find I do not believe her. I find that she deleted those texts so that nobody would be able to see what she had sent to her daughter or what her daughter had sent to her. I am satisfied, so that I am sure, that Mrs. Davis did say to the police officers: “I can’t, I can’t, I won’t tell you”. That is entirely in keeping with her final comment to the police of: “You’ll just have to arrest me. I don’t care what they do to me”. She said in evidence to me that she knew it was the middle of the night where Jacqueline was because she said Jacqueline had told her. I find once again, so that I am sure, that Mrs. Davies is lying to me. She knew it was the middle of the night because she knows precisely where her daughter is, but she refuses to tell this court.
  1. In relation to Mr. Brian Davies, in my presence in court yesterday I heard him, and I am quite satisfied and sure I heard him, instruct the maternal grandmother when she was giving evidence “not to tell them”. He denied that in the witness box. Mr. Cheesley, the Tipstaff, told me at the start of this hearing that after I had risen from court yesterday Mr. Brian Davies had said: “I’m the head of the family. I told her to leave the country”. Initially, he appeared to accept that that is what he had said, but then he changed it and said that, no, he had not told his daughter Jacqueline to leave the country, he had told her to leave his house. However, he then claimed not to remember whether his daughter had left the house immediately after he had said that or how long a period it was after he had apparently told her to leave the house that she in fact did so with Alice. I note that it is significant that in her application of March 2012, giving her reasons for leaving this jurisdiction, the mother (a) does not assert that she had been thrown out of the home where she was living by her father and (b) quite the contrary, she states that she had a difficult decision to make which will result in her losing the support of her family.
  1. I regret to find so that I am sure that Mr. Brian Davies is lying when he denies saying in court yesterday that he told his daughter to leave the country. I regret to find that I am satisfied, so that I am sure, that he is lying when he claims he threw his daughter out of the house. He claims to have had no contact whatsoever with his daughter for about four years or thereabouts. I regret he gave me no satisfactory explanation whatsoever as to why he should take that course with his daughter or why he does not like her anymore and does not want to have any relationship with her. The best he could come up with was that it was because she had had sex before marriage with her then partner, which resulted in the conception of Alice. I am satisfied that Brian Davies is lying to the court, that he has information he could give but he refuses to give it.
  1. In relation to Melanie Williams, I regret to find that she has lied to this court. First, I note that she told the police that it was some three years since she had last communicated with her sister, Jacqueline. She then changed that in evidence to me, that it had been about two and a half years since she last spoke or had communication of any kind with her sister. When she was reminded of what she had told the police yesterday, that in fact it was August 2013 when she had last had a Skype text conversation, she was unable to be clear in her recollection that that took place, although she admitted that she had said that to the police. When I asked her about what conversation she had with her sister, she could not remember any details at all, and then told me that it was not a conversation at all, and she had not said to the police it was a conversation. She had sent a text to her sister, she said, but received no reply. She then accepted that she had said to the police it was a conversation that she had had with her sister in August 2013, but maintained that that conversation consisted of merely sending a text to her sister and receiving no reply. I regret to find, so that I am sure, that in giving those accounts to the police and to me, Mrs. Williams is lying.
  1. I am satisfied, when I consider the reasons why Mrs. Davies, Mr. Davies and Mrs. Williams are lying to this court, that it is for one reason and one reason only (because, although I have pondered the matter, I can think of no other reason for them lying) and it is this: they know full well where Jacqueline and Alice are but they refuse to tell this court or the Tipstaff where that is because they do not want to assist in any respect in the attempt to try and secure the return of Alice to the jurisdiction of this court. I am satisfied, so that I am sure, that they also have the means of communicating and contacting Jacqueline but they have sought, particularly Mrs. Davies, to obfuscate that position and they have not told me the truth about the communications that they have had with her not only over the last few years but in the last few months and in the last few days. Again, they are lying about those matters because they do not wish to assist this court in seeking to recover Alice back to this jurisdiction.
  1. On those findings, I am in no doubt that all three of them are in contempt of this court

 

 

 

Of course, on a completely human level, one can empathise with the family, they had been asked by their daughter / sister to keep her secrets and not tell the Court or the father where she was, and they ended up in an intolerable position of having to obey the Court order or keep their promise.  Without being in that intolerable position, it is really hard to know how you would react.

 

It is always important though, to have an eye on the other side of the case, which is that the father and child were kept apart and denied contact as a result of the mother acting unlawfully and asking her family to act unlawfully to help her, include them lying to the Court;  and the Court has to treat matters like this very seriously.

 

If there’s no consequence to breaking court orders or lying to the Court, then what’s the point of the Court at all?

 

I think that if I had been hearing the case, I  probably would not have imprisoned them pending the sentencing hearing, and allowed them to have a short opportunity (say two or three days)  to reconsider their actions knowing that a prison sentence was on the cards. But the Judge had been faced with lies in the witness box on two separate occasions,  even after they had been blatantly caught out, and of course the risk that wherever mother currently was, the family might have tipped her off to run away. It would not have been an easy decision to make.

 

Should the remedy or sanction be imprisonment? Should anyone really be imprisoned for something that isn’t a criminal offence?  There are those who think that imprisonment ought to be reserved for criminal matters, and that one ought not to be faced with it as a result of breaching orders in the family courts.

 

I suspect that there are also parents who have gone to Court and argued successfully for contact with their child, who see orders flouted or ignored or thwarted by the other parent, who are pulling out their hair at how toothless the law seems to be on dealing with a parent who has no intention of obeying Court orders, who would be devastated at the one sanction that the Court has being removed.

 

It depends entirely on which side of the fence you happen to be on, or which group of people are telling you the story. If you were sitting down talking with the grandparents in this case, you’d form a very different view of it than if you were sitting down with the father.

 

I think those are legitimate questions and I’m sure the debate will continue, but in the meantime whilst the law provides for imprisonment for contempt of court and failure to comply with court orders, those who are served with court orders need to bear in mind that this is a risk they take, even if they are pensioners trying to do what they think is right for their own daughter.  

 

 

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Null and void (or not)

Posted on November 4, 2013 by suesspiciousminds

A Local Authority v X and Another 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3274.html

This was a set of care proceedings, within which the Local Authority applied under the Inherent Jurisdiction for a declaration that the marriage the child had entered into should not be recognised in English law.  It was an application supported by everyone, but ultimately refused. The reasons for the refusals are interesting and potentially applicable to other cases.

The child, X, underwent a marriage in Pakistan when she was aged 14.  A gun was produced to compel X to undergo the marriage against her will, and she was also abused by her “husband”

The LA position was that this was an unlawful marriage, given that X was domiciled in England at the time of the ceremony and was considerably under age.

The impact on the care proceedings was this :-

That X conceived a child as a result of that marriage. The father of that child would have parental responsibility IF the marriage was lawful, but if it was not lawful he would only have PR if X agreed to it (either by registering him as the father on the birth certificate, or entering into a parental responsibility agreement)

That would have consequential implications for any proceedings taking place in relation to X’s baby – whether the man who married X (and by all accounts was pretty vile towards X) would be a part of the care proceedings.

I hold by this judgment, as a mixed finding of fact and law for the purpose of the care and placement proceedings, (but not making any declaration to this effect) that the marriage between ‘X’ and the father of the baby is, on a balance of probability, void. Under English law, the father was not validly married to the mother on the date of the baby’s conception or birth. Section 1(3)(a) of the Family Law Reform Act 1987, read together with section 1(1) of the Legitimacy Act 1976, provides that a child shall nevertheless be treated as legitimate (with the consequence that the father does have parental responsibility) if at the time of the child’s conception either of the parties reasonably believed that the marriage was valid. However section 1(1) of the Legitimacy Act 1976 is subject to subsection (2) . Subsection (2) provides that subsection (1) only applies where the father of the child (viz. of the baby in this case) was domiciled in England and Wales at the time of the birth which, patently, the father of this baby was not. I therefore hold that the father does not have parental responsibility for the baby.

Now, you may well be thinking, that as a result of the judge finding as a fact that the marriage was probably void and that father does not have PR, that going on to end the marriage by making a declaration would be quite straightforward.

That declaration was sought by the LA and supported by the mother and Guardian.

The Judge was troubled that X could herself apply for nullity of the marriage, and had given this direction earlier

“‘X’ must give consideration as to whether she wishes to issue a petition for a decree that the said marriage is void on the grounds that (i) on the date of the marriage she was domiciled in England and Wales; and (ii) on that date she was under the age of sixteen, so that the marriage was void pursuant to section 2 of the Marriage Act 1949 and section 11(a)(ii) of the Matrimonial Causes Act 1973 (see Pugh v Pugh [1951] P 482). In the event that she voluntarily decides to issue a petition, it should be issued in the Birmingham County Court and an application made for it to be transferred to the High Court of Justice in the Birmingham District Registry

 

 

X had not applied for nullity.

  1. At paragraph 23 of her most excellent position statement prepared for the hearing today, Miss Vanessa Meachin, counsel on behalf of ‘X’ (through her guardian), wrote as follows:

“‘X’ is the victim of a forced marriage and rape. She is sixteen and struggling with the complexities of the two sets of legal proceedings that she is already involved in. It is respectfully submitted that it is unrealistic to consider that she is presently equipped to proceed with a petition for nullity.”

  1. Later, at paragraph 26, Miss Meachin wrote:

“The applicant local authority have set out their position comprehensively as to why such relief is sought and is entirely appropriate. In this respect ‘X’, her guardian and legal team entirely support the position taken by the applicant and commend the relief sought to the court. This is a matter that is capable of being resolved at this hearing.”

  1. In elaboration of what she wrote there, Miss Meachin has added today, with eloquence and cogency, that it is really too much to expect ‘X’, at any rate at her present age and stage in life, herself to take an active step that would be so defiant of her parents and family as herself to petition for a decree that the marriage that they forced her to enter into, as I have described, is void. In effect, ‘X’ and her legal advisors on her behalf seek to shelter behind the application that the local authority have issued, as I have described.

 

 

I would suggest that those are all very appropriate reasons why X would not seek a nullity in her own right, and why if it were lawful for the Court to declare the marriage void, it would be beneficial.

However, as Holman J observed, if there is a statutory remedy which can be exercised in relation to a marriage, the Court is prohibited from using the inherent jurisdiction to declare the marriage unlawful.   [You never fail to learn something in a Holman J judgment]

  1. There is a line of authority, both at first instance and in the Court of Appeal, whereby in certain circumstances courts have made declarations that a marriage contracted abroad is not recognised here for one reason or another. Sometimes that outcome is sought in situations where the party to the marriage lacked mental capacity to contract a marriage and continues to lack mental capacity to take any steps to seek its annulment. Lack of mental capacity, however, and also duress, are not grounds which render a marriage void but, rather, which render it voidable under section 12(c) or (d) of the Matrimonial Causes Act 1973.
  1. This case, however, is different. There may, indeed, have been reasons why the marriage is voidable under section 12 since it was achieved in consequence of duress; but in the present case there is the overarching fact that the marriage is altogether void because of the age of ‘X’. The advocates have sought to rely, in particular, upon the authority of Baron J in B v I (Forced Marriage) [2010] 1 FLR 1721. In that case the young woman in question was already aged sixteen at the time of the ceremony of marriage. It was, however, a forced marriage into which she had been forced by duress. There was no question of the marriage in that case being void, although it was, at its inception, voidable. However, section 13(2) of the Matrimonial Causes Act 1973 has the effect that there is a statutory bar on petitioning for a decree of nullity where a marriage is voidable for duress if more than three years have elapsed from the date of the marriage. In that case, the issue as to the status of the marriage was only raised after more than three years had elapsed, and accordingly at a stage when it was no longer legally possible to obtain a decree of nullity. It was in those circumstances that Baron J was asked to make, and did make, a declaration that the marriage in question was never a marriage which was capable of recognition as a valid marriage in England and Wales.
  1. It is very important to note that at paragraph 14 of her judgment Baron J said:

“A number of authorities have been placed before me which persuade me that judges at first instance and, more importantly, the Court of Appeal regard the inherent jurisdiction as a flexible tool which must enable the court to assist parties where statute fails…” [my emphasis]

  1. At paragraph 16 of her judgment, Baron J quoted a passage from an earlier judgment of Coleridge J in which he had said:

“There is a real stigma attached to a woman in the petitioner’s situation if merely a divorce decree is pronounced and it is desirable from all points of view that where a genuine case of forced marriage exists, the courts should, where appropriate, grant a decree of nullity and, as far as possible, remove any stigma that would otherwise attach to the fact that a person in the petitioner’s situation has been married.”

Baron J continued by saying:

“In this case, nullity is not an option for it is statute barred.”

  1. The facts and legal situation in that case were, therefore, completely different from those in the present case. In the present case statute does not “fail”, for there is no time bar to obtaining a decree of nullity in the case of a marriage which is void. So in this case nullity is “an option” and is not statute barred.
  1. In her judgment in B v I Baron J correctly adverted to subsection 58 (5) of the Family Law Act 1986. That provides as follows:

“(5) No declaration may be made by any court, whether under this Part or otherwise – (a) that a marriage was at its inception void.”

Note that that subsection contains an absolute statutory prohibition on any court making a declaration that a marriage was at its inception void, “whether under this Part or otherwise”. It, therefore, absolutely forbids the making of a declaration, even in the so-called inherent jurisdiction of the High Court, to the effect that a marriage was at its inception void.

  1. As Baron J said in paragraph 12 of her judgment in B v I :

“That term was included in the Family Law Act 1986 to ensure that the Act was not used to circumvent the strict requirements of the Matrimonial Causes Act 1973.”

She continued:

“However, it is clear that the inherent jurisdiction must be used in a manner that is flexible enough to ensure that justice is provided for all. The plaintiff in this case does not seek a declaration that the marriage was void at its inception, rather, she seeks a declaration that there was never a marriage capable of recognition in England and Wales.”

  1. As Baron J herself later said at paragraph 17, the distinction between making such a declaration and a declaration that the marriage was at its inception void is “an extremely fine” one. But, on the facts of that case, Baron J was never faced with the situation where the court might have been able to make a decree of nullity on the ground that the marriage was void or a declaration that the marriage was “at its inception void”. On the facts and in the circumstances of the case with which she was faced, the marriage was never a void one but was, at most, one which was voidable in the discretion of the court on the grounds of duress which fall under section 12 rather than section 11 of the Matrimonial Causes Act 1973.

 

So that presents a problem. Counsel in the case were urging Holman J to follow Baron J’s line and make a declaration that there was never a marriage capable of recognition in England and Wales.   But the difference here was that there was a statutory option available.

  1. It seems to me that there is a fundamental distinction between the facts and circumstances in the case of B v I and those with which I am faced. In the present case, as I have said, this marriage is a void one. If ‘X’ chose to present a petition for nullity, which she has ample age and mental capacity to do, being now aged almost seventeen and of normal maturity and intelligence, then (if satisfied as to the facts) the court could and would pronounce a decree of nullity on the ground that the marriage is void.
  1. There is no statutory gap in this case. If, on the facts of this case, I were to grant a declaration to the effect that the marriage is not recognised in England and Wales, or that there never was a marriage which is capable of recognition in this jurisdiction, I would not be filling a gap. I would, frankly, be bypassing and flouting the statutory prohibition in section 58(5) of the 1986 Act by a mere device. I cannot do that and I am not prepared to do that.
  1. I do understand and have sympathy with the point and position that it might be particularly defiant by ‘X’ of her family for her herself to initiate proceedings for a decree of nullity, although she now has little contact with most members of her family. The reality is that sooner or later she needs fully to resolve her legal status and to face up to the obviously necessary step of obtaining a decree of nullity, not least for the reasons given by Coleridge J in the passage quoted at paragraph 27 above. That, however, is a matter for her own decision, her own timing, and her own choice. For the reasons that I have now given, I simply refused to make the declaration sought.

 

 

One hopes that this issue never crops up again, but sadly such under age marriage continue to occur, and whilst it might be helpful and useful that the child herself does not have to drive the dissolution of the marriage, the inherent jurisdiction does not help where the statutory remedy exists.

{I have to say that my initial instinct was to look at the Forced Marriage (civil protection) Act 2007 for a remedy here, but that doesn’t seem to me to give the Court power to dissolve a forced marriage over and above the existing provisions. }

http://www.legislation.gov.uk/ukpga/2007/20/pdfs/ukpga_20070020_en.pdf

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Sanctity and futility

Posted on November 4, 2013 by suesspiciousminds

The Supreme Court recently gave judgment in

 Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67

{This is the first Supreme Court decision on Mental Capacity Act – there’s obviously the Cheshire West decision pending, but this is still quite a big deal} 

http://www.bailii.org/uk/cases/UKSC/2013/67.html

 

 Lady Hale captures the importance of the judgment in one simple opening

 

This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?

 

There’s a really excellent summary over at UK Human Rights blog

 

Supreme Court weighs in on patient’s best interests and the meaning of futility

 

The Court of course re-emphasised the existing law and the starting point that human life has a sanctity and that making any decision that might hasten the end of life is a very serious one requiring very careful analysis. That’s long-standing authority, of course backed by Article 2 of the Human Rights Act which protects an individual’s right to life.

 

In a nutshell the patient David James had severe medical conditions and complications arising from those. He reached a point where neurologically he was no longer able to make decisions about his own treatment. The hospital took the view that the treatment they were able to provide was not going to cure him or help him recover. He did appear to recognise his family during their visits and take pleasure from them.

 

The hospital sought a declaration from the Court that they should be permitted to not provide Mr James with treatment which would be invasive or painful. The family opposed this, considering that Mr James was still able to take some pleasure from life and that his life should continue.

 

The three treatments that they wished to withhold were these [Note that there was not a suggestion of ending Mr James life through an overdose of pain medication, nor of ceasing to provide him with food or liquid – though of course, if Mr James HAD needed CPR to keep him alive and that would not be provided, it would hasten his death]

 

  1. The three treatments in question, as described by the judge (para 8), were as follows:

(1) Invasive support for circulatory problems. This meant the administration of strong inotropic or vasopressor drugs in order to correct episodes of dangerously low blood pressure. The process is painful, involving needles and usually the insertion of a central line. The drugs have significant side effects and can cause a heart attack. They had previously been used to treat Mr James.

(2) Renal replacement therapy. This meant haemofiltration, filtering the blood through a machine to make up for the lack of kidney function. It too requires a large line to be inserted and an anti-coagulant drug which brings the risk of bleeding or a stroke. It can be very unpleasant for the patient and may cause intense feelings of cold. Mr James had not so far required this treatment.

(3) Cardiopulmonary resuscitation (CPR). This aims to make a heart which has stopped beating start beating again. So the decision has to be taken at once. It can take various forms, including the administration of drugs, electric shock therapy and physical compression of the chest and inflation of the lungs. To be effective, it is “deeply physical” and can involve significant rib fractures. CPR had successfully been given to Mr James when his heart had stopped beating in August.

 

The debate hinged really on the Mental Capacity Act Code of Practice

 

 

  1. The Mental Capacity Act Code deals with decisions about life-sustaining treatment in this way:

“5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.

5.32 As with all decisions, before deciding to withdraw or withhold life-sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person’s best interests. All the factors in the best interests checklist should be considered, and in particular, the decision-maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment.

5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests.” (Emphasis supplied.)

 

 

The issue here was therefore whether the three treatments in question met that criteria of being ‘futile, overly burdensome to the patient or where there is no prospect of recovery’

 

The initial Court of Protection decision was to refuse the hospital’s application for a declaration that they could decline to provide those 3 forms of treatment. That was appealed and the Court of Appeal overturned that, and allowed the declaration.

 

The family then appealed to the Supreme Court.  The Supreme Court actually found that the original trial judge at the Court of Protection had been right BUT that by the time the case got to the Court of Appeal, deteriorations in Mr James condition meant that the Court of Appeal HAD also been right to reach the opposite decision.

 

[But that on two areas of principle, the original judge had been right and the Court of Appeal had been wrong]

 

In particular, the Supreme Court reached two key decisions

 

 

  1. That a treatment was not futile just because it had no real prospect of curing or palliating the illness – a treatment that could improve or restore some quality of life might not be futile

 

Thus it is setting the goal too high to say that treatment is futile unless it has “a real prospect of curing or at least palliating the life-threatening disease or illness from which the patient is suffering”.  ….where a patient is suffering from an incurable illness, disease or disability, it is not very helpful to talk of recovering a state of “good health”. The patient’s life may still be very well worth living. Resuming a quality of life which the patient would regard as worthwhile is more readily applicable, particularly in the case of a patient with permanent disabilities. As was emphasised in Re J (1991), it is not for others to say that a life which the patient would regard as worthwhile is not worth living

 

  1. The test is not an “objective” test as to whether a reasonable person or even reasonable patient would consider the treatment to be futile or burdensome, but a subjective one  – whether that is the case for THIS patient, where the Court should as best as possible put themselves in the shoes of the patient and take into account as much as is known or can be established about what the patient’s own view would have been.

 

The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that “It was likely that Mr James would want treatment up to the point where it became hopeless”. But insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.

 

The Supreme Court made it plain that there might be circumstances in which medical professionals, or even families, might make the decision that it was right to seek a declaration from the Court of Protection about treatment in such cases, but that it would ultimately be a matter for the Court of Protection to make such a decision, and the court might take a different view to that of the applicant.

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